The Supreme Court opened its new term yesterday with an interesting case regarding the right of public sector employees to bring age discrimination claims under the U.S. Constitution. After oral argument though, it seems like the Court might be having second thoughts about whether to decide the case after all.
In 2006, at age sixty-one, Harvey Levin was fired from his job as an Illinois Assistant Attorney General and replaced with an attorney in her thirties. Levin claimed his age, among other things, was the reason he was fired. He brought suit against Illinois Attorney General Lisa Madigan under the federal Age Discrimination in Employment Act. In addition, he brought an age discrimination claim under the Equal Protection Clause of the Fourteenth Amendment. Although the District Court threw out the ADEA claim, it held that Levin could take his constitutional age discrimination claim to trial. On appeal, the federal Seventh Circuit Court of Appeals agreed.
Because of various procedural and damages limitations in the ADEA, pursuing age discrimination claims under the Constitution would be a more appealing option to many public employees. Until the Seventh Circuit’s decision in Levin, however, every federal Court of Appeals to address the issue had held that public employees cannot bring those claims under the Equal Protection Clause. Without getting overly technical, the Courts have held that because Congress passed the ADEA as a means to pursue age discrimination claims, public employees cannot alternatively rely on the Constitution to pursue them.
Based on this “circuit split” between the Seventh Circuit and the other Courts of Appeals, Harvey Levin’s case, Madigan v. Levin, made its way to the Supreme Court on Monday. The issue before the Court is whether public employees can bring age discrimination claims under the Equal Protection Clause in addition to, or instead of, under the ADEA. At oral argument, the Justices appeared unlikely to decide the case on the merits. The Court instead seemed preoccupied with the technical procedural question of whether the Court of Appeals even had jurisdiction to decide the issue in the first place (because the appeal took place before trial, which is somewhat unusual).
In their song “Freewill,” 2013 Rock and Roll Hall of Fame inductees Rush sang “If you choose not to decide you still have made a choice.” No doubt inspired by the induction of Rush into Cleveland’s own Rock and Roll Hall of Fame, the Supreme Court may have decided not to decide the issue in Levin. If that is the case, it seems the law regarding which age discrimination claims public employees may bring will remain unsettled.