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No Qualified Immunity for IL AG in Age Discrimination Lawsuit

By Robyn Hagan Cain on August 17, 2012 | Last updated on March 21, 2019

No employer is safe from a discrimination lawsuit. Not even those employers who are expected to uphold the law.

Recently, we learned from a Ninth Circuit case that the Equal Employment Opportunity Commission isn't above a disability discrimination claim. This week, the Seventh Circuit Court of Appeals ruled that individual employees in the Illinois Attorney General's office can't assert qualified immunity to avoid an age discrimination lawsuit.

Harvey N. Levin worked as an Illinois Assistant Attorney General for almost six years. He was over 60 at the time of his termination and believes he was fired because of his age and gender, so he sued the State of Illinois, the Office of the Illinois Attorney General, Illinois Attorney General Lisa Madigan, in her individual and official capacities, and four additional Attorney General employees in their individual capacities.

Levin sued under the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act, and everyone's favorite civil rights standby, 42 U.S.C. §1983.

The individual-capacity defendants argued at the district court that they were entitled to qualified immunity for the §1983 age discrimination claim because the ADEA is the exclusive remedy for age discrimination claims. The district court disagreed. The Seventh Circuit Court of Appeals affirmed that decision on interlocutory appeal.

The appellate court noted that the ADEA is not the exclusive remedy for age discrimination in employment claims, and does not preclude a §1983 equal protection claim. Although age is not a suspect classification, the Supreme Court has held that states may not discriminate on that basis if such discrimination is not "rationally related to a legitimate state interest." Since, at the time of the alleged wrongdoing, it was clearly established that age discrimination in employment violates the Equal Protection Clause, the individual defendants were not entitled to qualified immunity.

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