By Carlyn Kolker
(Reuters) - The Supreme Court has agreed to consider a case
about whether state workers alleging age discrimination can sue
under federal civil rights law.
The case concerns Harvey Levin, a lawyer who worked for the
Illinois attorney general's office who sued the office for sex
and age discrimination after he was fired in 2006 in his early
The 7th U.S. Circuit Court of Appeals, affirming a trial
court decision, ruled that Levin can sue under the equal
protection clause of the 14th Amendment, using a
Reconstruction-era law known as section 1983 that allows state
workers to bring claims against their employers.
Four other appellate courts that tackled similar cases ruled
that state-sector employees must bring their age discrimination
cases only under the federal Age Discrimination in Employment
Act, and can't sue under section 1983. Section 1983 gives
plaintiffs certain remedies that the Age Discrimination in
Employment law does not, such as the ability to sue state
workers as individuals, and the possibility of compensatory
The Supreme Court included the case on Monday in the list of
cases it would hear next term. No date has been set for
"It's sort of a narrow case because it only applies to state
workers," said Marcia McCormick, a professor at St. Louis
University School of Law who specializes in labor and employment
law. "But it's really important for those workers because in
recent years the Supreme Court limited the damages they can
A decision agreeing with the 7th Circuit would "put age
discrimination claimants on a more even playing field with
employees suing for sex and race discrimination," said Paul
Mollica, an attorney at Outten & Golden in Chicago who
represents employees in litigation.
Those plaintiffs, Mollica said, can sue under multiple laws
and are not limited to one course of action.
The 7th Circuit was "bucking the trend," said Darrell
VanDeusen, a partner at law firm Kollman & Saucier who
represents employers, including public sector agencies and
municipalities in litigation.
VanDeusen said that in the wake of the Supreme Court's 2009
decision in Gross v. FBL Financial Services, which raised the
bar for discrimination under the Age Discrimination in
Employment Act, workers are searching for more ways to press
"Since the Gross case, plaintiffs or plaintiffs' lawyers are
taking a renewed interest in trying to find other ways to
challenge actions they think are discriminatory based on age,"
said VanDeusen, whose practice includes public-sector agencies
and municipalities in litigation.
The case is Lisa Madigan et al v. Harvey Levin, No. 12-872,
U.S. Supreme Court.
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