ADEA Not Exclusive Remedy for Federal Employees

Harvey N. Levin worked as an Illinois Assistant Attorney General until his termination on May 12, 2006. Levin was older than age 60 at the time and claims he was replaced by a female in her 30s. He alleges he was terminated because of his age and gender and filed a lawsuit for relief under the ADEA, Title VII of the Civil Rights Act of 1964, and the Equal Protection Clause of the 14th Amendment via 42 U.S.C. § 1983.  

The defendants argued that the ADEA precluded the § 1983 claims, so Levin would have to exhaust his available remedies under the ADEA before pursuing relief in court.  

The 7th U.S. Circuit Court of Appeals decided that in determining whether a § 1983 equal protection claim is precluded by a statutory scheme, the most important consideration is congressional intent. The court noted that all other circuit courts to consider the issue have held that the ADEA is the exclusive remedy for age discrimination claims, so this was a case of first impression for the 7th Circuit.  

 The court found that while the decision was admittedly a close call, especially in light of the conflicting decisions from its sister circuits, it based its holding on the ADEA’s lack of legislative history or statutory language precluding constitutional claims, and the divergent rights and protections afforded by the ADEA as compared with a § 1983 equal protection claim.  

Nothing in the text of the ADEA expressly precludes a § 1983 claim or addresses constitutional rights. The ADEA does not purport to provide a remedy for violation of federal constitutional rights and no express language indicates that Congress intended to foreclose relief under § 1983 for constitutional violations. The appellate court also said it cannot conclude that Congress’s mere creation of a statutory scheme for age discrimination claims was intended to foreclose preexisting constitutional claims. Congress frequently enacts new legal remedies that are not intended to repeal their predecessors, the court pointed out.