The Seventh Circuit has split from all of the other federal appellate courts that have addressed the issue to hold that the Age Discrimination in Employment Act (ADEA) does not preclude the bringing of a Constitutional equal protection claim under 42 U.S.C. § 1983. Levin v Madigan, 2012 U.S. App. LEXIS 17291 (7th Cir. August 17, 2012). Every other appellate court has followed the Fourth Circuit’s decision in Zombro v. Baltimore City Police Dept., 868 F.2d 1364 (4th Cir. 1989). Taking a hard look at a case of first impression in the court, the Seventh Circuit found that Supreme Court decisions over the past decade – most recently the Title IX case of Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009) – render the conclusion that Congress intended the ADEA to be the exclusive remedy for age discrimination incorrect.
Of course, even if the Seventh Circuit’s view is correct, it will take a decision from the Supreme Court to convince the other circuits not to follow their precedent. Moreover, the “rational relationship” test will apply to Section 1983 claims, suggesting that all but the most ridiculous custom, policy or practice used by a public employer acting under color of state law will likely withstand scrutiny if challenged as age biased.