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Will the Supreme Court Punt on an Age Discrimination Case?

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The Supreme Court's new term started off with a bang on Oct. 7 with the oral arguments in Madigan v. Levin, a major age discrimination case. Harvey Levin, 61, was asking the Court to decide whether the federal Age Discrimination in Employment Act (ADEA) blocked him from any asserting any claims he might otherwise have under the U.S. Constitution.

Here's the lowdown:

After a long career during which he says supervisors reviewed his work positively, Levin was fired from his job as an Illinois assistant state attorney general. His replacement? A lawyer in her 30s. What's more, two other older attorneys were also fired, and the office later hired younger ones. (The AG's office and Levin disagree about whether the new employees were replacements; Levin argues that they were, while the AG's office says they were assigned to different cases.)

Levin sued under the ADEA, which prohibits job discrimination on the basis of age. He also argued, using another federal law, that his civil rights were violated because he was denied equal protection of the law.

Although it may sound as if Levin had a lot of ammunition against the AG's office, the trial courts tossed out his ADEA claims pretty unceremoniously, saying the law was intended to protect employees, not political appointees (as he was).

Levin's attorneys then turned to Plan B, arguing that the AG's office had violated his constitutional rights. Illinois Attorney General Lisa Madigan countered that Congress intended for the ADEA to be the sole remedy for age discrimination claims.

After a lot of debate, the Seventh Circuit Court of Appeals sided with Levin, although other appeals courts have answered the same type of question differently. It said that even with the ADEA on the books, employers still have to act constitutionally. When they don't, the court said, wronged employees can sue, even if they're not covered by the ADEA.

Then the Supreme Court entered the picture by agreeing to hear the appeal. Because of the "circuit split" on the issue of whether constitutional remedies are available in addition to the provisions of the ADEA, the Court agreed to resolve the question once and for all. AARP filed a friend-of-the-court brief in which it argued that it simply makes no sense to say that Congress intended to preclude Constitutional protections for an older person who is not protected under the ADEA.

Sounds simple, right?  But now it seems likely that the Court won't make a decision about protection against age discrimination at all.

Here's the problem Levin faces. In the oral arguments, the justices focused chiefly on procedural issues (mostly about how the case made its way through the lower courts) and asked hardly any questions about what actually happened to Levin or about whether or not his constitutional claim had merit. In fact, Justice Antonin Scalia suggested that the Court never should have agreed to hear the case in the first place.

In some ways, says Dan Kohrman, the AARP senior attorney who wrote its friend-of-the-court brief, if the Court dismisses the case, there's no harm, no foul as far as Levin is concerned. The Court, statistics show, rarely agrees to hear an appeal when it intends to agree with what the lower court said. Still, says Kohrman, "If the Court punts, it would be disappointing that the Court didn't see this case as an opportunity to confirm that there is a Constitutional remedy for age discrimination."

So what will happen? It's hard to know. The Supreme Court acts in mysterious ways. But it will have to decide the case - or kick it back down to the trial court - by the end of its session next June. We'll stay tuned.


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