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Supreme Court to take up state workers' age discrimination options

When a lawyer in his early 60s was fired from the office of the Illinois Attorney General, he suspected that his age was the reason. He did not bring his case under the Age Discrimination in Employment Act, however. Instead, he brought his age discrimination claim under one of the nation's older civil rights laws, Section 1983 of the Civil Rights Act of 1871.

The question of whether a state employee can use Section 1983 to file an age discrimination complaint has been the source of some consternation among the federal circuit courts, with the 7th Circuit holding that the Illinois man did have the right to file under Section 1983 and other circuits ruling the opposite in similar cases. This week, the U.S. Supreme Court announced it will take up the case in its next term.

Why did this man file under Section 1983 -- a reconstruction-era law allowing civil rights lawsuits against private actors when authorities won't intervene? While Section 1983 cases are not unusual, choosing this law instead of more specific employment laws is relatively rare.

In this case, one reason may be a 2009 Supreme Court ruling in a case called Gross v. FBL Financial Services, Inc. In that case, a divided court issued a ruling that made it much harder to prove discrimination under the ADEA than under other federal civil rights laws, such as Title VII of the Civil Rights Act of 1964 and laws crafted using similar language.

In Gross, the high court ruled that people suing under the ADEA must prove that, if it weren't for age discrimination, the employer would not have taken the adverse job action. In other civil rights cases, the plaintiff only has to prove that discrimination was a substantial ""motivating factor" in the demotion, termination or other negative action by the employer.

For public-sector employees in particular, the Supreme Court has also held that such employees cannot bring "disparate impact" claims under the ADEA. A disparate impact claim typically asserts that an employer's policy or actions -- intentionally discriminatory or not -- have the effect of harming members of a protected group.

In light of these rulings, many state and municipal workers would like to be able to file age discrimination claims under Section 1983 instead of the ADEA. Section 1983 offers two main advantages: to be put their claims on an even playing field with similar claims and the possibility of compensatory damages.

No date has yet been set for oral arguments before the Supreme Court.

Source: Thomson Reuters News & Insight, "U.S. Supreme Court to consider age discrimination case," Carlyn Kolker, March 19, 2013

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