A New Split on Old Age: Preclusion of § 1983 Claims and the ADEA

October 1, 2013

In 1967, Congress enacted the Age Discrimination in Employment Act (ADEA) to combat employer bias against older workers and to reject the idea that the job performance of all employees declines with age. The ADEA provides a statutory scheme for addressing age discrimination against employees aged forty years and older. Some older workers, however, have turned instead to the Equal Protection Clause of the Fourteenth Amendment, using § 1983 claims as a means of relief.

A six–to–one circuit split has emerged as to whether the ADEA is the exclusive remedy for age discrimination or whether an aggrieved older worker can seek relief by means of an equal protection‐based § 1983 claim. In Levin v. Madigan, the Seventh Circuit became the first circuit court to conclude that the ADEA does not preclude age discrimination claims brought pursuant to § 1983. Recently, the U.S. Supreme Court granted a writ of certiorari in the Levin case and is set to resolve this split in its upcoming term.

This Note examines the legal conflict surrounding the ADEA’s preclusion of § 1983 claims. Based on recent developments in the doctrine of implied preclusion, the ADEA’s language, legislative history, and a comparison of rights and remedies, this Note argues that the Supreme Court should adopt the approach of the Seventh Circuit and find that the ADEA does not preclude § 1983 claims. It suggests that comparisons both of Title VII with the ADEA, and of age discrimination claims with race discrimination claims under the Equal Protection Clause of the Fourteenth Amendment, further support this position.

October 2013

No. 1