Legal Update: Limits of ADA in State and Federal Govt

Some government employees may be feeling a little more unprotected in the workplace. The first case discussed here involves state and local officials. The second involves feds.

Last month’s update described a case (Okwuv. McKim, No. 11-15369, 9thCir. 6/12/2012) that refused to allow a disability claim against state officials individually under § 1983 where the Americans with Disabilities Act (ADA) does not permit suit against a state agency. The court ruled that the ADA provides exclusive federal remedy for disability discrimination. Watch out if you’re a state or local official in Seventh Circuit territory and someone has an age discrimination charge. The Age Discrimination in Employment Act (ADEA) does not preclude suing state officials under § 1983; so ruled the appellate court in Levin v. Madigan, No. 11-2820, 7thCir. 8/17/2012. Levin is a fired assistant attorney general in Illinois. He alleged sex discrimination (Title VII), age discrimination (ADEA), and violation of constitutional equal protection (§ 1983). He sued the state and five employees individually. The trial court ruled that Levin was a policy making official and so was not covered by Title VII and the ADEA. But the court also ruled that an age discrimination claim could be made under § 1983 and that the individual defendants did not have qualified immunity, i.e., they could not claim they were simply doing their jobs as state officials.

On appeal the Seventh Circuit ruled that Congress did not intend the ADEA as the exclusive remedy for age discrimination claims. The court acknowledged that this decision was at variance with the six other circuits that had considered the issue. Because “irrational age discrimination is clearly forbidden by the Equal Protection Clause, “constitutional protection was established and the individual defendants should have known this. Accordingly, they had no immunity regarding § 1983, aimed at state and local officials who deprived people of constitutional rights “under color of law.”

The Federal Circuit on a split decision limited federal employees’ review of personnel actions where there are security considerations in Berry v. Conyers, No. 11-3207, Fed. Cir. 8/17/2012. Berry is John Berry, Director of the U.S. Office of Personnel Management. The U.S. Merit Systems Protection Board (MSPB) is a co-respondent with Conyers. The case is not an appeal from a lower court decision but a petition for review of a MSPB decision. The long-standing Supreme Court precedent in this area is Navy v. Egan, 484 U.S. 518 (1988), which bans MSPB from reviewing agency personnel decisions involving security clearance necessary for the job. The Federal Circuit has now held that Egan applies to personnel decisions involving “sensitive” positions. In the present case the plaintiffs did not have access to classified information, but occupied “noncritical sensitive” positions. Such positions are designated by the agency. The current decision could also prevent judicial review of whether the “sensitive” label was appropriately applied. The dissent indicated that the court’s ruling is vulnerable to abuse, with agencies able to foreclose review of personnel decisions on the basis of a national security claim.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

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About Richard Tonowski

Rich joined EEOC in 2001 as a Psychologist, worked as the assistant HR director for strategic policy and planning from 2003 to 2006, and then became Chief Psychologist. In that role he reviews test validation documentation, conducts statistical analyses regarding employment practices, and consults with EEOC attorneys and investigators. Prior to his time with EEOC, he had over 20 years of experience involving public sector test development and validation, performance appraisal, employee surveys, diversity management, and labor relations. He also had experience in providing written and oral testimony as an expert witness in court cases, and in federal sector hearings conducted by EEOC and the Merit Systems Protection Board. Rich was awarded his Ph.D. in psychology by Rutgers University, and is certified as a Senior Professional in Human Resources by the credentialing affiliate of the Society for Human Resource Management. He is also an Adjunct Associate Professor of Human Resources Management and Development at University of Maryland University College where he teaches a graduate course.

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