Friday, January 7, 2011

7th Circuit Rules Former State Prosecutors Cannot Sue for Age Discrimination

Three former assistant prosecutors in the State’s Attorney Office in Cook County, Illinois were terminated in 2007 and then filed age discrimination suits under the Age Discrimination in Employment Act (ADEA). On appeal before the Court of Appeals for the Seventh Circuit, the court held that the prosecutors are, by definition, policymakers, and are therefore exempted from coverage of ADEA, thus, dismissing the actions. The Wisconsin Law Journal has an article on the ruling:

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.

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

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