Is Age Discrimination a Violation of the Constitution?

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A state worker can bring a claim for age discrimination through the Equal Protection Clause of the 14th Amendment, at least according to a decision by the Seventh Circuit Appellate Court here in Chicago, Illinois. Levin v. Madigan, 692 F.3d 607, 615-22 (7th Cir. 2012). However, other jurisdictions have disagreed with this decision, and instead have indicated that an employee can only bring a claim for age discrimination pursuant to the Age Discrimination in Employment Act (“ADEA”).

In Levin, an Illinois government agency fired an employee that was in his early sixties. The employee relied on the 14th Amendment to argue that his employer discriminated against him and discharged him because of his age. The Seventh Circuit allowed the employee to pursue his constitutional claim.

The Seventh Circuit’s decision is important because an employee receives several benefits by pursuing a constitutional claim instead of a claim through the ADEA. First, a constitutional claim allows an employee to sue the individuals that made the decision to end the employment. However, the ADEA only allows for claims against the employer, an employment agency, or a labor organization.

Second, the ADEA limits the types of individuals that can bring claims, and prevents “reverse discrimination” cases and lawsuits by individuals under the age of 40.

Third, a state worker is unable to sue an employer through the ADEA because the employer receives sovereign immunity. That is not the case for a constitutional violation.

Finally, the Supreme Court has articulated higher standards when an employee makes a claim for the ADEA.

Recently, the Supreme Court indicated it will decide this matter in its next term. There are several jurisdictions that disagree with the Seventh Circuit’s decision in Levin. Hopefully the Supreme Court’s decision will provide some clarity to age discrimination law.