117.3 Age Discrimination in Employment Act (ADEA)

Sec. 633(a) of the federal Age Discrimination in Employment Act (ADEA) provides that the commencement of an action under the ADEA “shall supercede any state action.” The language of the statute, as well as the legislative history of the Act, makes it clear that state judicial review proceedings, as well as state agency proceedings, are to be stayed. Maynard v. LIRC (Brown Co. Cir. Ct., 07/13/04).

LIRC declined to review a non-final order by an Administrative Law Judge which denied the Respondent's motion to strike the Initial Determination of probable cause. The Respondent had argued that the Initial Determination was improperly issued because the Complainant had commenced a court action against the Respondent under the ADEA prior to the issue of the Initial Determination, and the ADEA provides that once an action is commenced under the Act, it supersedes any state proceeding on the same matter. Mattson v. Green Bay Broad. (LIRC, 08/28/90).

After the hearing, but before a decision was issued, an action was commenced in Federal Court by the employee under the Age Discrimination in Employment Act. The Age Discrimination in Employment Act required the Commission to stay its proceedings with respect to the employee’s age discrimination claim even though it had already held a hearing on that claim, although the Commission could proceed to issue a decision on the aspects of the employee’s complaint which alleged handicap discrimination and retaliation. Harris v. DHSS (Wis. Pers. Comm’n, 08/18/87).

An age discrimination complaint commenced in federal court supersedes the identical complaint filed at the state agency level, and the state proceedings should be stayed pending the disposition of the federal action. Rynski v. Price-Waterhouse (LIRC, 12/02/78); also, Schwartz v. Univ. of Wis. (Wis. Pers. Comm’n, 10/02/79).