Sunday, June 29, 2008

Age discrimination can violate Section 1983

The rules of the game if you want to file an age discrimination case in Federal court include filing a discrimination complaint with the Equal Employment Opportunity Commission. Then you have to wait two months before you can bring the lawsuit, giving the EEOC an opportunity to investigate and possibly resolve the claim. But there is another way: Section 1983.

The Supreme Court has never taken up this issue, but in the Second Circuit, the district courts for the most part are allowing plaintiffs to litigate their age discrimination claims under the Equal Protection Clause of the Constitution, enforceable through Section 1983. Other Circuits have held that you can't do this, because the Age Discrimination in Employment Act is sufficiently comprehensive to preeempt Section 1983 (the general civil rights law which allows you to enforce your federal rights in court). See, e.g., Zombro v. Baltimore City Police Dep't, 868 F.2d 1364, 1366-67 (4th Cir. 1989) (availability of the ADEA's detailed procedures forecloses age discrimination claim brought under § 1983 because a plaintiff may not "cavalierly bypass the comprehensive process fashioned by Congress in the ADEA"). But for the time being, in the Second Circuit, you can litigate both under the ADEA and Section 1983.

This issue was brought to life once again recently in Shapiro v. New York City Department of Education, 2008 U.S. Dist. LEXIS 46327 (S.D.N.Y. 2008), decided on June 16. My office co-represented the plaintiffs in Shapiro. In that case, some of the plaintiffs did not file EEOC complaints. Their only remedy for the age discrimination against their government employer, then, was Section 1983. This statute holds that state actors who violate your civil rights can be sued in court for damages. There is no damages cap under Section 1983, which also offers punitive damages and attorneys' fees. It also has a longer statute of limitations than the ADEA: three years to 300 days.

Why can plaintiffs sue both under the ADEA and Section 1983? Because the Second Circuit held in 1993 that race and gender discrimination, normally litigated under Title VII of the Civil Rights Act of 1963, may also violate the Equal Protection Clause. That case was Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134 (2d Cir. 1993), which held that Title VII did not preempt a § 1983 claim for gender discrimination in violation of the Equal Protection Clause of the Constitution. As the district courts in the Second Circuit have held that age discrimination claims against the government may be litigated under the Constitution, see, e.g., Purdy v. Town of Greenburgh, 166 F. Supp. 2d 850 (S.D.N.Y. 2001), Judge Rakoff adopts the reasoning in those cases and allows the plaintiffs' Section 1983 claims in this case to go forward.

1 comment:

Michael L. Gooch, SPHR said...

Before you find your company a victim of Section 1983, a few words of advice for the uninitiated. Yes. Age Discrimination happens and rather frequently. However, the offenders often do not know that they are engaged in this activity. Inappropriate behavior and off-hand remarks will sneak up to bite you. As a corporate director for a fortune 500 company, I have been blindsided many times by disparaging remarks made by your management team? The managers don’t realize at the time that they are in a discrimination mode. I detail these likely events in my management book, Wingtips with Spurs ( Usually they will ‘get it’ when their depositions start. When you hear the following phrases, stop the offender, offer some education, and hope to goodness no one else heard them. If it happens again with the same person, it may be time to sell the cow. The courts and juries will decide if the remarks are ‘stray comments’ or direct evidence of a discrimination mindset.
• “We need sharp, young people.”
• “We need people who can come in early and stay late.”
• “They’re dinosaurs.”
• “They’re too old to learn something new”
• “We want employees who are young, lean, and mean.”
• “They wouldn’t be able to keep up with the fast company
• “We’re looking for longevity.”
• “We need some young blood in this department.”
If a manager allows a culture that tolerates remarks such as the ones above, then the manager will probably get what he or she is asking for. The great leader will remind management on a frequent basis that they should never forget silence is often the best answer. Michael L. Gooch, SPHR Author of Wingtips with Spurs: Cowboy Wisdom for Today’s Business Leaders