Illinois Judges Rule That They Cannot Be Forced to Retire Based on Age While Justices in Washington Raise the Bar for Age Discrimination for Citizens

FreemanA state judge in Illinois has ruled that an Illinois law requiring state judges to retire after turning 75 is unconstitutional. Notably, the author of the four-judge decision Justice Charles Freeman (left) would himself be forced to retire under the law. In the meantime, the U.S. Supreme Court has voted against age discrimination claims of older workers.

I am in Campaign, Illinois speaking to Illinois judges who just received news of this ruling yesterday.

The law was challenged by Judge William Maddux, head of the law division of the Cook County Circuit Court, and five voters. Maddux will be 75 next year when his term runs out.

Freeman noted that the law treated individuals in grossly unfair ways. For example, while a 75-year-old judge would have to retire, someone who had not been a judge could run for a term. “This entirely undermines the notion of a mandatory retirement based on age,” he wrote.

The four-judge majority further noted that the Illinois Constitution does not mention age in setting the criteria for judges and thus the Constitution might have to be amended to achieve such a result.

Two judges dissented, including Justice Lloyd Karmeier who wrote a dissenting opinion.

Justice Charles Freeman is 75 will benefit from the decision and may now run for retention in the 2012 election. That fact creates an bit of an appearance of a conflict of interest. Yet, eliminating judges “of a certain age” may create logistical problems and all judges will technically benefit from the elimination of an age ceiling. On the U.S. Supreme Court such age-based elimination would leave the matter largely in the hands of Chief Justice Roberts and Justice Sam Alito.

Back in Washington, jurists were making it harder for citizens to sue for age discrimination. In Gross v. FBL Financial Services, in a 5-4 decision, Justice Clarence Thomas wrote a majority opinion that set a higher standard for age discrimination.
The Court ruled that workers over 40 suing under the Age Discrimination in Employment Act (ADEA) cannot use a prior balancing test and must also show that not only did age play a role in an adverse employment decision, but also that it had a “determinative influence.” Thomas wrote:”We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.”

Thomas relies on a rule of statutory construction the amendment of another law, Title VII, but not the same amendment of ADEA shows an intent with regard to the latter law:

We cannot ignore Congress’ decision to amend Title
VII’s relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally. See EEOC v. Arabian American Oil Co., 499
U. S. 244, 256 (1991). Furthermore, as the Court has explained, “negative implications raised by disparate provisions are strongest” when the provisions were “considered simultaneously when the language raising the
implication was inserted.” Lindh v. Murphy, 521 U. S. 320, 330 (1997). As a result, the Court’s interpretation of the ADEA is not governed by Title VII decisions such as Desert Palace and Price Waterhouse.

Notably, the Court ruled on a specific question that was not raised in the original appeal. Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito joined Thomas. Justices Stephen Breyer, David Souter and Ruth Bader Ginsburg also dissented.

Justice John Paul Stevens dissented, calling the opinion “an unabashed display of judicial lawmaking.” That is as strong language as it gets in such decisions and comes quite close to calling the majority opinion judicial activism. He addes “Unfortunately, the majority’s inattention to prudential
Court practices is matched by its utter disregard of our
precedent and Congress’ intent.” Justice Breyer also wrote a dissenting opinion joined by Justices Souter and Ginsberg.

The case stems from a claim filed by Jack Gross, a longtime employee of insurance company FBL Financial Services Inc., in Des Moines, Iowa. When the company reorganized, it demoted Gross and replaced him with a less qualified and younger worker.

This is the opinion, Gross 08-441

For the full story out of Illinois, click here.

6 thoughts on “Illinois Judges Rule That They Cannot Be Forced to Retire Based on Age While Justices in Washington Raise the Bar for Age Discrimination for Citizens”

  1. During Thomas’ tenure as the Chairman I was doing labor advocate work and used the EEOC regularly. Thomas was the kiss of death for EEOC. He specifically targeted age discrimination as the lowest priority and due to the Commission’s indifference the time limits on thousands of cases were missed and the complaints were dismissed.

    This was done under a doctrine already debated elsewhere: it’s incumbent on the plaintiff to move forward even if they have been given the wrong information or the office holding/investigating a complaint runs out the time without finishing the investigation the plaintiff has to move forward within the regulatory time limit.

    Lawyers I worked with, both labor and others regularly referred to Thomas as ‘Uncle Tom’. He was and is a disgrace to his profession and ‘Uncle Tom’ (how I still think of him and refer to him) is too good a characterization.

    Why am I not surprised by his action in this case?

    From Wiki:
    “In 1981, he joined the Reagan administration. From 1981 to 1982, he served as Assistant Secretary of Education for the Office of Civil Rights in the U.S. Department of Education. From 1982 to 1990 he was Chairman of the US Equal Employment Opportunity Commission (“EEOC”). Newsweek characterized Thomas as “openly ambitious for higher office” during his tenure at the EEOC. As Chairman, he promoted a doctrine of self-reliance, and halted the usual EEOC approach of filing class-action discrimination lawsuits, instead pursuing specific acts of individual discrimination.[22] He also asserted in 1984 that black leaders were “watching the destruction of our race” as they “bitch, bitch, bitch” about President Reagan instead of working with the Reagan administration to alleviate teenage pregnancy, unemployment and illiteracy.[23]”

  2. Shouldn’t this judge have recused himself since the law he was deciding a case that would impact him directly? Congress needs to take the reins and provide Ledbetter-like legislation to overturn the evil the Supremes have wrought to make sure older persons have a fair chance to litigate age discrimination claims.

  3. At first blush it would seem that the Illinois law treats everyone equally in that situation. So what is the problem?

    I have started a dialogue which says, inter alia, that law is one of the fundamental requirements for us to survive our position in the galaxy.

    This case is of the type that questions our ability to create law that will survive “The Test”.

    Lets keep trying.

  4. The Roberts court has undone decades of progress in just a few years. The Federalist Society is undoubtedly proud, but I fear we will be governed by 18th century principles before Roberts leaves the court.

  5. No conflict of interest here. There’s nothing to see. Go back to sleep. Your government is in control. Pay no attention to the man behind the curtain. Go back to sleep.

  6. Well heck, My Job security is more important than yours. I can assure you of that.

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