Yesterday, the U.S. Supreme Court heard the first arguments of the Term. One of the cases presented, Madigan v. Levin, addresses the remedies available to government employees who have suffered employment discrimination. Specifically, the parties in that case are asking the Court to decide whether the Age Discrimination in Employment Act (ADEA) precludes age discrimination claims that are brought directly under the Constitution’s Equal Protection Clause via 42 U.S.C. § 1983.
In this column, I will first describe the facts leading up to the case, as well as the legal framework for the analysis. I will then explain how the court below, the U.S. Court of Appeals for the Seventh Circuit, reached a decision contrary to those that were reached by other circuit courts that have addressed the issue. In light of the Supreme Court oral arguments yesterday, I argue that while this particular case does not present as pressing a question of law as the briefs had suggested, courts should still generally be wary of interpreting civil rights laws as precluding constitutional claims unless the laws provide adequate and broadly accessible remedies.
The Facts Underlying Madigan v. Levin
The plaintiff, Harvey Levin, worked as a senior assistant attorney general in Chicago until 2006, when he was terminated from his position after working there for almost six years. He alleged that he had received only positive evaluations during his tenure in the office, so it came as a surprise to him when his superiors cited “low productivity, excessive socializing, inferior litigation skills, and poor judgment” as reasons for his termination. The office replaced Levin—who was 61 at the time—with a female attorney in her thirties.
Levin then filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) in accordance with necessary administrative procedures, and the Commission conducted its investigation and cleared him to sue his former employer in federal court.
In August 2007, Levin filed a lawsuit in federal court in Chicago. He named as defendants his former bosses, including Attorney General Lisa Madigan, both in their official capacities and in their individual capacities. He alleged that the defendants’ decision to terminate him unlawfully discriminated against him on the basis of his age and gender. He sought compensatory damages and punitive damages, as well as injunctive relief.
The Legal Bases for Levin’s Claims
Levin argued that his termination violated Title VII of the Civil Rights Act of 1964, the ADEA, and the Fourteenth Amendment of the U.S. Constitution.
Levin’s sex discrimination claim arises under Title VII, which prohibits employment discrimination on the basis of race, color, religion, sex and national origin. His age discrimination claim arises under the ADEA, which prohibits discrimination on the basis of an employee’s age. Levin argues that both discrimination claims also fall under the purview of the Equal Protection Clause of the Fourteenth Amendment, which requires that no state “deny to any person within its jurisdiction the equal protection of the laws.” (Private employers cannot violate a person’s Fourteenth Amendment rights, but the employer here is the State Attorney General’s Office.)
Although the U.S. Constitution does not itself create a right to sue for violations of its provisions, 42 U.S.C. § 1983 provides a means for individuals to enforce the provisions of the Fourteenth Amendment.
The District Court and Appellate Court Decisions
Across several rulings, the district court dismissed Levin’s claims under both the ADEA and Title VII because he did not constitute an “employee” within the meaning of those statutes (Levin’s position of Assistant Attorney General was an appointed position, which falls within an exemption to employee status under both statutes). However, the court held that Levin’s constitutional claims were sufficient to go to trial.
For a constitutional claim to survive a motion for summary judgment, “a plaintiff claiming a violation of § 1983 must produce evidence that the defendant caused or participated in [the] constitutional deprivation.” Further, if the alleged misconduct is not “clearly established” (by existing case law) to be unconstitutional, then the officials are entitled to qualified immunity, and the claim against them cannot proceed. In denying that portion of the motion for summary judgment, the district court found that the facts adequately supported Levin’s claim of a constitutional violation, and that age discrimination is clearly established as unconstitutional (in so holding, the court was disagreeing with and overturning an earlier ruling by another judge in the same proceeding).
The defendants appealed the denial of summary judgment as to these constitutional claims. On appeal, the Seventh Circuit panel affirmed the partial denial of summary judgment, finding additionally that the ADEA does not preclude constitutional claims of age bias.
The issue turns on legislative intent; if a court infers that Congress intended for a statutorily defined remedy to be the sole remedy for a specific type of injury—either because the statute states so explicitly, or by other means—then a plaintiff may not circumvent that statutory scheme for relief by suing directly under the Constitution. In this case, all other circuit courts that had considered whether the ADEA displaced constitutional claims had answered that question in the affirmative. The Seventh Circuit was the first to break ranks, undertaking a deeper analysis of congressional intent to reach the opposite conclusion.
Although the oral arguments suggest that the Supreme Court may dismiss the case without reaching the merits, due to technical procedural issues, the case presents an important issue for consideration.
In this particular case, it came up at argument that Levin might have had access to another avenue of relief that he did not pursue, and which did not come up at all in lower court proceedings—the Government Employee Rights Act of 1991. In light of the availability of this remedy, the statutory scheme for employment discrimination is adequate to justify the preclusion of constitutional claims in this context.
In another context—such as one involving a transgender plaintiff whose coverage under federal antidiscrimination statutes like Title VII—the adequacy of the statutory scheme is less clear. Although some courts have correctly held that Title VII prohibits discrimination because of transgender status (under its “because of . . . sex” language), that point is not settled law in every circuit. Thus, it is important in these cases for courts to permit the constitutional claim when the statutory scheme provides inadequate coverage or relief for actions that violate constitutional rights. The Eleventh Circuit correctly recognized this in Glenn v. Brumby. (I discussed that case in a prior column on Verdict.)
American jurisprudence has long recognized the principle that for every violation of a right, there must be a remedy. No law passed by Congress should abrogate a person’s right to sue for constitutional violations unless Congress has provided an adequate and accessible remedy as a replacement. Although this case seems to fall short of a viable challenge to Congress’s ability to abrogate constitutional claims of employment discrimination, it may serve as a reminder that Congress may not take lightly its power to strip us of our right to seek redress for constitutional violations.