Justices May Not Reach Merits of Age-Bias Case

By Mark Walsh — October 07, 2013 3 min read
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The U.S. Supreme Court heard arguments Monday in a case about whether state and local government employees, including teachers and other school workers, may bring age-discrimination claims under the 14th Amendment’s equal-protection clause rather than the federal Age Discrimination in Employment Act of 1967.

The issue in Madigan v. Levin (Case No. 12-872) is an important one that could affect job-discrimination protections for many workers in the public sector, though by the end of the argument it appeared that the justices were not inclined to reach the merits of the case.

The ADEA has comprehensive rules and procedures designed in part to limit bias lawsuits, while the ability to bring an age-bias allegation as a federal constitutional claim might help certain workers who fall outside the statute’s definitions (the ADEA covers those 40 and older) or who have missed its deadlines.

The case has attracted competing friend-of-the-court briefs from education groups. The National School Boards Association argues that the ADEA provides all the protection that workers need from age bias.

The NSBA says that the K-12 teaching workforce “is aging rapidly” and that school districts often must make education-related work decisions that carry “age-related implications.”

“For example, teachers who have recently completed teacher preparation programs in fields such as English-language learners (‘ELL’) programs and computer technology literacy tend to be younger,” the NSBA brief says. “School districts should be free to hire and place individuals they believe are best qualified to teach ELL and technology skills irrespective of seniority or the impact such assignments may have on older workers.”

Allowing age-bias claims under the equal-protection clause could even lead to so-called disparate-impact claims of age discrimination, based on patterns of activity affecting older workers, the NSBA says.

The National Education Association argues that the statute was aimed at protecting a distinct age class of older workers with specific remedies, while Congress did not mean to preclude a broader class of workers from also being able to turn to the equal-protection clause for age-discrimination claims.

The NEA says the NSBA’s disparate-impact fears are off base because the equal-protection clause “imposes liability only for purposeful discrimination,” and " a plaintiff cannot prevail in an equal-protection case under a disparate-impact theory.”

“NSBA’s argument that school districts are uniquely vulnerable to age-based equal-protection claims is wholly meritless,” the NEA brief says.

Tough Arguments

Whether the justices will actually resolve the question presented appeared doubtful by the end of oral arguments. The case before the justices involves an age-bias allegation by an assistant state attorney general of Illinois who lost his job at age 61 and was replaced by someone in her 30s.

The U.S. Court of Appeals for the 7th Circuit, in Chicago, issued a rather sweeping ruling last year that even though the ADEA provides a comprehensive remedial structure, Congress did not intend the statute to bar plaintiffs from relying on so-called Section 1983 of the United States Code to bring age-bias claims under the 14th Amendment’s equal-protection clause.

At the oral arguments, several justices expressed concern that lower courts in the case had not adequately considered whether the assistant attorney general, who all sides now seem to agree was not covered by the ADEA because he was a high-level appointee, might fall under a more obscure federal statute known as the Government Employee Rights Act of 1991.

“I looked to see whether it’s obvious that GERA does apply or doesn’t apply,” Justice Stephen G. Breyer said. “I don’t know. Maybe I’m just being thick. But nonetheless, where I don’t know so much and the whole case turns on it, why are we hearing an issue that might not even be in the case?”

Breyer and others suggested that the appeal should be dismissed or perhaps sent back to the lower courts.

A version of this news article first appeared in The School Law Blog.