Prosecutor Given Fresh Angle for Age Bias Fight

     CHICAGO (CN) - The 7th Circuit expanded age-discrimination remedies in advancing claims from an Illinois prosecutor who was fired in his 60s.
     Harvey Levin was hired as an Illinois assistant attorney general in September 2000 when he was 55 years old. After a 2002 promotion, however, the office fired him along with 12 other attorneys.
     Though Levin's annual reviews indicated consistently acceptable performance, both sides acknowledged that supervisors had made Levin aware of his low productivity, excessive socializing and poor judgment.
     Levin filed suit, pointing out that two of the other fired attorneys were over age 40 and replaced by younger hires.
     U.S. District Judge David Coar declined to let Levin sue Illinois Attorney General Lisa Madigan and others individually, finding that the age-discrimination protections under Section 1983 of the Civil Rights Act were not clearly established at the time of Levin's termination.
     But Coar also found that the Age Discrimination in Employment Act does not foreclose the Section 1983 claims against Madigan and others in their official capacities.
     After the case was reassigned, U.S. District Judge Edmund Chang dismissed the ADEA claims after finding that Levin does not statutorily qualify as an "employee."
     Chang also reversed immunity for the individual defendants, finding that a reasonable official should have known that age discrimination violates an established constitutional right, whether the claim is brought under Section 1983 or the ADEA.
     Fearing that the federal appeals court would reverse the decision that left him with a viable Equal Protection claim, Levin had argued that the 7th Circuit lacked jurisdiction to decide whether the ADEA precludes a Section 1983 age discrimination claim.
     The three-judge panel instead ruled in Levin's favor.
     "Whether the ADEA precludes a Section 1983 claim is a matter of first impression in the Seventh Circuit," Judge Michael Kanne wrote for the court. "All other circuit courts to consider the issue have held that the ADEA is the exclusive remedy for age discrimination claims.
     "While we freely acknowledge that the ADEA's heightened scrutiny provides a stronger mechanism for plaintiffs to challenge age discrimination in employment, absent any additional indication from Congress, we simply cannot infer that Congress intended to do away with a Section 1983 constitutional alternative," Kanne added.
     Section 1983 allows suits against individuals, rather than just employers, and provide state employees with remedies other than the ADEA, which limits claims by most governmental employees.
     The Aug. 17 decision creates a circuit split that may eventually send the question to the Supreme Court.