Age discrimination claim against federal government fails

One of these days, the Supreme Court will square away how and when you can bring a constitutional claim for age discrimination against the government. The law still seems murky in this area. The Second Circuit addresses this issue in an unpublished decision, ruling against the plaintiff.

The case is Neary v. FDIC, issued on April 5. Neary was a 41 year old applicant for a position at the FDIC. He says he was denied the position because of his age, in part, because 53 of the FDIC's 54 new hires were under the age of 40, as per an Obama-era directive to focus on hiring recent college graduates. Apart from the fact that the directive was not yet in effect when Neary was denied the position, his constitutional claim fails for another reason: the government had a rational basis to focus on younger hires.

While the Equal Protection Clause (and related provisions that we invoke in suing the federal government) makes it difficult for the government to discriminate on the basis of age and race (heightened scrutiny applies), the Supreme Court has never said that age is a suspect class. This means the government can avoid liability upon a showing that its age-related decisonmaking has a rational basis. The leading case on this issue is Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976). The Second Circuit (Jacobs, Wesley and Eaton [by designation]) says:

The government’s proffered justification for the program is “to replenish a workforce containing an evergrowing number of Federal employees near[ing] retirement age with students and recent graduates.” Neary may be correct that the government could have adopted a different selection process to identify qualified applicants who would likely become long‐serving federal employees, and it may be true that the selection criteria the program used failed to account for the work preferences of Millennials, but that is not the relevant inquiry. “[W]here rationality is the test,” the government does not violate equal protection “merely because the classifications made by its laws are imperfect.”

Courts in the Second Circuit have ruled in favor of plaintiffs who sue the government for age discrimination under the Equal Protection Clause. I worked on one of those cases, Shapiro v. New York City Dept. of Education, 561 F. Supp. 2d 413 (SDNY 2008), where Judge Rakoff treated the Section 1983 claim like a traditional ADEA claim, stating, "In order to establish a prima facie case of age discrimination under either the ADEA or § 1983,a plaintiff must show that (1) he was a member of the protected class, i.e. an employee over 40 years of age; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) the circumstances surrounding the action give rise to an inference of age discrimination." The Court in Shapiro also said that "although the Second Circuit has not yet decided the precise issue, 'the weight of authority in the Second Circuit favors the position that the ADEA does not preempt claims under § 1983 for age discrimination.'"

The plaintiff in Neary also sued under the ADEA. At first glance, he has a great case, as he notes that nearly all of the FDIC's recent hires were less qualified than he was. But that it not enough to plead an ADEA claim under the Iqbal pleading rules. The Court of Appeals rejects the case because "he fails to plead facts that allow us to infer that the applicants ultimately hired were disproportionately younger than 40, relative to the applicant pool. And Neary cannot complain of a disparate impact based on the CEP Program’s recent graduation requirement because, as a recent graduate himself, he lacks standing to challenge it."