Prosecutors can’t sue for age discrimination

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State prosecutors cannot sue for age discrimination under federal law.

The 7th Circuit held Dec. 29 that all prosecutors are, by definition, policymakers, and are therefore exempted from coverage of the Age Discrimination in Employment Act (ADEA).

Three assistant prosecutors in the State’s Attorney Office in Cook County, Illinois were terminated in 2007 when the office needed to make personnel cuts. The three sued the State’s Attorney Office, alleging that their terminations violated the ADEA.

The district court dismissed the actions, concluding that the prosecutors were appointees on the policymaking level, and thus, the State is immune, even if they were terminated because of their age. The prosecutors appealed, but the 7th Circuit affirmed on Dec. 29, in an opinion by Judge William J. Bauer.

The ADEA gives immunity to states and their political subdivisions from suits by certain employees. Among the employees excluded from the ADEA are “appointee[s] on the policymaking level.”

The court concluded that all of Illinois’ Assistant State’s Attorneys are appointees on the policymaking level and therefore not within the coverage of the ADEA.

Under the 7th Circuit’s ADEA precedent, an employee is an appointee if “the position held by the individual authorizes, either directly or indirectly, meaningful input into governmental decision-making on issues where there is room for principled disagreement on goals or their implementation.”

The court derived this test from Supreme Court cases permitting termination of individuals holding policymaking positions based on political affiliation. Elrod v. Burns, 427 U.S. 347 (1976).

The prosecutors argued they were not policymakers, and that, looking at their actual job functions and duties, each held a “low-level position.”

The court acknowledged that, in some cases, where an employee’s role is uncertain, it is for the jury to decide whether the employee is a policymaker.

But the court found that the duties of the prosecutors are clearly defined by precedents interpreting Illinois law, and render them policymakers.

In Livas v. Petka, 711 F.2d 798, 801 (7th Cir. 1983), the court held, “an Assistant State’s Attorney may, in carrying out his or her duties, make some decisions that will actually create policy.”

The court elaborated, “an Assistant State’s Attorney’s decisions and actions in the courtroom are binding on the government. The State’s Attorney grants an Assistant State’s Attorney the authority to conduct a case in court, and, from that point, the Assistant State’s Attorney acts as the State’s Attorney in all respects. The Assistant State’s Attorney may choose to prosecute or dismiss a case, with or without the State’s Attorney’s input and guidance. This alone raises Assistant State’s Attorneys to the level of policymakers.”

Because the prosecutors’ positions give them “inherent policymaking authority,” the court held that inquiry into their actual duties is irrelevant.

Milwaukee employment attorney Jeff Hynes criticized the opinion as “extraordinarily myopic.”

Hynes said the definition of “policymaker” for First Amendment purposes should have no bearing on its definition under the ADEA, calling the two “apples and oranges.”

Hynes noted that the definition of “policymaker” under the First Amendment represents a balancing of the right of elected officials to implement their policies, with public employees’ right to political expression.

Hynes said that definition is inapplicable to an employment civil rights statute, which is intended by Congress to be interpreted liberally. “The whole First Amendment analogy is, in my view, comparing apples and oranges,” Hynes said. “First Amendment constitutional doctrine is totally divorced from analysis of a statutory exclusion.”

Because the opinion creates a split with other circuits that have rejected the 7th Circuit’s definition of ‘policymaker’ under the ADEA, and because the opinion would except thousands of public employees from the ADEA, Hynes said the case is a good candidate for en banc review, or review in the U.S. Supreme Court.

What the Court Held

Case: Opp v. Office of the State’s Attorney of Cook County, Nos. 09-3714, 09-3923 & 10-1060

Issue: Are low-level prosecutors policymakers excluded from the coverage of the ADEA?

Holding: Yes. All prosecutors have inherent policymaking authority.

David Ziemer can be reached at [email protected]