concurring in part and dissenting in part:
I agree with the majority that Zombro has failed to state a legally sufficient claim under 42 U.S.C. § 1985. However, the majority has thwarted congressional intent in declaring that the Age Discrimination in Employment Act (“ADEA”)1 precludes Zombro’s use of 42 U.S.C. § 1983 to assert an equal protection claim for alleged age discrimination. Zombro’s § 1983 claim remains viable. I would reverse the grant of summary judgment on the § 1983 claim and remand the case for further proceedings.
I.
The majority has overstepped its bounds by substituting its judgment for that of Congress on the question of whether enactment of the ADEA repealed § 1983 remedies for alleged equal protection violations arising out of age discrimination in government employment. It is for Congress, not this Court, to decide whether to repeal the statutory remedies created for plaintiffs to seek redress for constitutional violations. The majority, however, has ignored its proper role and has assumed for itself the power to nullify § 1983 remedies previously available to government employees. The majority has acted without any evidence whatsoever that Congress intended ADEA to foreclose equal protection claims under § 1983 and despite several indications that lawmakers in fact wished to preserve the § 1983 remedy for constitutional claims in age discrimination cases.
A.
To decide whether the enactment of the ADEA foreclosed Zombro’s age discrimination claim under § 1983, we must focus on what Congress intended. See Smith v. Robinson, 468 U.S. 992, 1012, 104 S.Ct. 3457, 3468-69, 82 L.Ed.2d 746 (1984). The majority argues that ADEA’s comprehensive enforcement mechanism demonstrates Congress’ intent to preempt use of § 1983 to redress equal protection violations arising from age discrimination in public employment. That reasoning is flawed because it blurs the crucial distinctions between two very different types of § 1983 claims in age discrimination cases.
The existence of a comprehensive remedial scheme in the ADEA would preclude Zombro’s suit only if he were basing his § 1983 action on the substantive rights created by the ADEA itself. See Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 20, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981) (§ 1983 remedy foreclosed because plaintiffs based claim on rights created under two federal statutes, both of which contained “quite comprehensive enforcement mechanisms”). Zombro, however, bases his § 1983 action on rights created by the Equal Protection Clause of the Fourteenth Amendment, not the ADEA. When Congress enacts a law creating substantive rights and in that statute prescribes a detailed and comprehensive enforcement scheme, it is reasonable to presume, absent specific evidence to the contrary, that Congress intended that mechanism to be the exclusive method for remedying violations of rights created by that statute. See id.; McCroan v. Bailey, 543 F.Supp. 1201, 1209-10 (S.D.Ga.1982) (rights created by ADEA may not be enforced in § 1983 action); Day v. Wayne County Board of Auditors, 749 F.2d 1199, 1204 (6th Cir.1984) (§ 1983 cannot be used to enforce Title VII, because Title VII has its own enforcement mechanism). See also Great American Federal Savings & Loan Ass’n v. Novotny, 442 U.S. 366, 378, 99 S.Ct. 2345, 2351-52, 60 L.Ed.2d 957 (1979) (violation of Title VII cannot be asserted in § 1985(3) action). However, the mere existence of ADEA’s comprehensive statutory remedy tells us nothing about whether Congress intended to retain or to repeal the § 1983 cause of action for enforcement of *1373rights that existed prior to and independently of the ADEA.
The majority adopts a presumption that congressional enactment of a statute containing a comprehensive enforcement mechanism will result in repeal of all existing remedies for violations of rights that are similar to, yet independent of, those created by the statute. Such a presumption runs counter to the Supreme Court’s strong policy against repeals of legislation by implication. “In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974). Here, the ADEA and a § 1983 equal protection claim are hardly irreconcilable. They merely represent complementary methods of fighting age discrimination. We must presume, unless there is specific evidence to the contrary, that Congress intended to allow state and local government employees to challenge alleged age discrimination on equal protection grounds under § 1983, as well as under the ADEA.
The majority tries to bolster its contrary conclusion by relying on two cases in which the Supreme Court held that the existence of a comprehensive statutory enforcement mechanism precluded a § 1983 action based on alleged constitutional violations. Neither case conflicts with the view that the ADEA does not foreclose Zombro’s § 1983 claim. Both Supreme Court decisions involved statutory schemes specifically designed by Congress to provide methods for enforcing constitutional rights violations. In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Court held that state prisoners could not assert their constitutional claims through § 1983 because Congress had enacted the federal habeas corpus statute, 28 U.S.C. § 2254,2 which provided a more specific mechanism for prisoners to challenge their custody on constitutional grounds. Id. at 489-90, 93 S.Ct. at 1835-1837. In another decision on which the majority relies, the Supreme Court held that the Education of the Handicapped Act (“EHA”)3 precluded the plaintiff from using § 1983 to “assert an equal protection claim to a publicly financed special education.” Smith v. Robinson, 468 U.S. 992, 1009, 104 S.Ct. 3457, 3466-3467, 82 L.Ed.2d 746 (1984) (holding superseded by 20 U.S.C. § 1415(f)).4 The language of the EHA and its legislative history convinced the Court that Congress intended the statute to provide, inter alia, a detailed mechanism for handicapped children to assert their constitutional claims. Id. at 1009-10, 1016, 104 S.Ct. at 3466-67, 3470.5 In contrast to the statutes at issue in Preiser and in Smith, the ADEA does not purport to provide a remedy for violation of constitutional rights. Instead, it provides a mechanism to enforce only the substantive rights created by the ADEA itself. Thus, the comprehensiveness of the remedy prescribed in the ADEA, since it does not extend to constitutional claims, does not rebut the presumption that Congress in*1374tended to retain § 1983 in age discrimination cases as a method of enforcing substantive rights arising from sources other than the ADEA.6
B.
The presumption against preemption can, of course, be rebutted by specific evidence that Congress intended to foreclose use of § 1983 to bring equal protection claims for alleged age discrimination in the workplace. However, neither the statutory language itself nor the extensive body of legislative history evinces any intent by Congress to eliminate remedies for age discrimination that existed prior to the enactment of the ADEA. In fact, the legislative history suggests precisely the opposite.
In the course of enacting the 1978 amendments to the statute,7 Congress demonstrated its understanding that the ADEA did not preclude age discrimination plaintiffs from bringing federal equal protection claims. Specifically, members of Congress acknowledged that some government employees had challenged mandatory retirement rules on equal protection grounds, as well as under the ADEA, and had succeeded on rare occasions in having the rules declared unconstitutional. See House Select Committee on Aging, Mandatory Retirement: The Social and Human Cost of Enforced Idleness, 95th Cong., 1st Sess. 15-17, 38 [hereinafter “Committee on Aging Report”], reprinted in EEOC, Legislative History of the Age Discrimination in Employment Act 324-26, 347 (1981) [hereinafter “Legislative History”];8 123 Cong. Rec. 34,306-07 (1977), reprinted in Legislative History, at 493-94 (“A Federal court held recently that equal-protection guarantees preclude the singling out of certain employees for early retirement when most others in similar circumstances were allowed to continue”) (excerpt from newspaper column inserted by Senator Church into record during floor debate). Despite knowing that some government employees, *1375whom the ADEA had protected since 1974, were framing their age discrimination actions as equal protection claims, Congress expressed no disapproval of the practice or suggested in any way that it intended ADEA to foreclose such constitutional challenges. In fact, one committee report indicates that some members of Congress expected such constitutional challenges to continue in the future, although they realized the chance of success was slim in light of the Supreme Court’s per curiam opinion in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), which upheld a mandatory retirement law against an equal protection challenge. See Committee on Aging Report, at 38, reprinted in Legislative History, at 347.9
Had Congress wished to foreclose access to remedies other than ADEA to fight age discrimination, it certainly could have done so in the 1978 amendments, or at least could have expressed its desire to do so in the various floor debates and committee reports. But Congress did not. I must infer from Congress’ inaction that it intended that age discrimination plaintiffs would continue to have § 1983 available to seek redress for alleged equal protection violations.
Title VII of the Civil Rights Act of 1964,10 the statute on which the ADEA was closely patterned, also provides useful insight into whether Congress intended ADEA to foreclose all § 1983 actions for age discrimination. See Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755-56, 99 S.Ct. 2066, 2071-72, 60 L.Ed.2d 609 (1979) (relying on Title VII to interpret ADEA); Kelly v. Wauconda Park Dist., 801 F.2d 269, 271-72 (7th Cir.1986) (same), cert. denied, 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987). Although it is generally established that § 1983 cannot be used to enforce rights created by Title VII itself, see, e.g., Day, 749 F.2d at 1204, the Fourth Circuit has concluded that Title VII, even though it has a comprehensive enforcement mechanism, does not preclude a public sector employee from bringing a § 1983 action based on alleged violations of the Fourteenth Amendment’s Equal Protection Clause. Keller v. Prince George’s County, 827 F.2d 952, 953, 958-63 (4th Cir.1987) (plaintiff sought redress for racial discrimination under both § 1983 and Title VII). The legislative history of Title VII’s 1972 amendments, which extended coverage to government employees, made clear Congress’ intent that Title VII not foreclose equal protection claims under § 1983 based on racial, sexual or other types of discrimination covered by the statute. Id. at 958-62.
The legislative history of the 1972 Title VII amendments is particularly helpful in deciphering congressional intent in amending ADEA in 1974 to extend coverage to government workers. Kelly, 801 F.2d at 271. Senator Bentsen first sponsored that amendment to the ADEA in 1972 at the same time Congress was considering extension of Title VII to government employees. Id.; EEOC v. Elrod, 674 F.2d 601, 607 (7th Cir.1982). At that time, Senator Bentsen stated on the floor of the Senate: “I believe that the principles underlying these provisions in the EEOC bill [extending Title VII protection to government workers] are directly applicable to the Age Discrimination in Employment Act.” 118 Cong.Rec. 15,895 (1972), reprinted in Legislative History, at 208. The Supreme Court and other circuits have relied upon Senator Bentsen’s 1972 comments on his proposed ADEA amendments as evidence of congressional intent in enacting those amendments two years later. See Lehman v. Nakshian, 453 U.S. 156, 166-67 nn. 14, 15, 101 S.Ct. 2698, 2704-05 nn. 14, 15, 69 L.Ed.2d 548 (1981); *1376Kelly, 801 F.2d at 271; Elrod, 674 F.2d at 607.
The legislative history convinces me that, in extending ADEA’s protections to government employees in 1974, Congress intended to follow the approach taken two years earlier in amending Title VII. That is, Congress intended to provide new statutory protections to government workers, while allowing them to retain their rights of action under § 1983 for alleged equal protection violations arising from discrimination in the workplace. See Keller, 827 F.2d at 958-62 (citing legislative history that explicitly demonstrates Congress’ intent that Title VII not foreclose state and local governmental workers’ rights to seek redress for discrimination under 42 U.S.C. §§ 1981, 1983).
The majority argues that Congress could not have intended to preserve § 1983 as a remedy for age discrimination because such a cause of action “would severely undermine, if not debilitate, the enforcement mechanism created by Congress under the ADEA.” I find the majority’s reasoning unpersuasive. It is up to Congress, not this Court, to balance the risks and benefits inherent in allowing alternative remedies to co-exist in the fight against discrimination. In the context of Title VII, Congress clearly believed that the need to retain a variety of methods to combat discrimination outweighed the risk that multiple remedies would undermine Title VII’s comprehensive enforcement mechanism. Keller, 827 F.2d at 959-61. Nothing indicates that Congress intended to strike a different balance in enacting the ADEA.
Contrary to the majority’s dire predictions, preserving the § 1983 remedy for equal protection violations in age discrimination cases will not “severely undermine” nor “debilitate” the ADEA’s enforcement mechanism. In fact, any effect that the availability of the § 1983 remedy might have on ADEA would be minuscule compared to the impact that allowing such a remedy would have on Title VII’s comprehensive enforcement scheme. Government employees who are victimized by the types of discrimination covered by Title VII have a far greater incentive than age discrimination victims to bring their claims under the equal protection clause. That is because the types of discrimination covered by Title VII are subject to much closer scrutiny than age discrimination claims when challenged on equal protection grounds. Whereas race-based classifications are subject to strict scrutiny under the Equal Protection Clause and gender-based classifications are reviewed under intermediate-level scrutiny,11 the Supreme Court applies the far more deferential rational-basis scrutiny in equal protection challenges to age discrimination. See Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979) (upholding mandatory retirement rules against equal protection challenge); Murgia, 427 U.S. 307, 96 S.Ct. 2562 (same). Under rational basis scrutiny plaintiffs rarely prevail. But they may still bring suit.12 Thus, the vast majority of government workers who assert age discrimination claims will choose to rely on ADEA and its prescribed enforcement mechanism.13 They simply have a much better chance of winning if they sue under the ADEA. Wholesale bypassing of the statute hence is altogether unlikely to occur.
Since Congress was willing to take the risk that government employees might bypass Title VII’s statutory enforcement mechanism in the areas of sex and race discrimination, see Keller, 827 F.2d at 961, it seems reasonable that Congress intended to tolerate the much smaller risk that age discrimination plaintiffs might forego the ADEA remedies in favor of a constitutional challenge under § 1983. I conclude that *1377Congress intended to allow state and local government employees, such as Zombro, who are subject to alleged age discrimination in the workplace, to retain the option of bringing an equal protection claim under § 1983, as well as a claim under the ADEA.
C.
The result I reach is consistent with previous decisions of the Supreme Court and this Circuit.14 Although neither court has directly addressed the issue of whether the ADEA forecloses an action for an alleged equal protection violation, both have assumed that such a constitutional claim remains available. See Bradley, 440 U.S. at 94, 95 n. 2, 99 S.Ct. at 940-41 n. 2 (analyzing plaintiff’s claim under equal protection component of Fifth Amendment, even though plaintiff had previously asserted a claim, based on same facts, under the ADEA); Johnson v. Mayor & City Council of Baltimore, 731 F.2d 209, 210-11 (4th Cir.1984) (in suit alleging age discrimination, court considered both an equal protection claim under § 1983 and a claim based on the ADEA), rev’d on other grounds, 472 U.S. 353, 105 S.Ct. 2717, 86 L.Ed.2d 286 (1985); Arritt v. Grisell, 567 F.2d 1267, 1269-72 (4th Cir.1977) (same). See also, Alford v. Lubbock, 664 F.2d 1263, 1266-71 (5th Cir. Unit A 1982) (same), cert. denied, 456 U.S. 975, 102 S.Ct. 2239, 72 L.Ed.2d 848 (1982). The courts in those cases expressed no concern about the propriety of bringing a § 1983 action in an age discrimination case. My proposed disposition of the case merely makes explicit the correctness of the assumption on which the Supreme Court and our own Circuit have operated under for several years.
In sum, the legislative history and prior decisions of the Supreme Court and our Circuit support the conclusion that Zomb-ro’s § 1983 claim for alleged equal protection violations remains viable despite the existence of the ADEA.
II.
The majority is not content merely to hold that the ADEA precludes Zombro’s § 1983 claim. Unfortunately, the majority compounds its mistake by adding to its opinion dictum that grossly misstates equal protection law. The majority opinion appears to assert that even if Zombro’s suit were not preempted by the ADEA, his Fourteenth Amendment claim under § 1983 would not be justiciable because he has not alleged discrimination based on race or sex or exercise of protected First Amendment rights. Under the majority’s strange view of the law, government employees apparently could never raise equal protection challenges to age discrimination in the workplace, even if the ADEA did not exist. Although that view is mere dictum and thus has no precedential value, I feel compelled to respond because I fear the majority’s unnecessary and misleading comments could produce confusion which will come back to haunt us in future cases.
The majority’s position flies in the face of several decisions of the Supreme Court and our own Circuit. As I noted earlier, the Supreme Court at least twice has allowed litigants to challenge age discrimination on equal protection grounds. See Bradley, 440 U.S. 93, 99 S.Ct. 939 (challenging mandatory retirement law under equal protection component of Fifth Amendment); Murgia, 427 U.S. 307, 96 S.Ct. 2562 (challenging mandatory retirement under Equal Protection Clause of Fourteenth Amendment). We also have allowed such challenges. See Johnson, 731 F.2d 209 (equal protection challenge to *1378mandatory retirement rule); Arritt, 567 F.2d 1267 (same).
Our decision in Clark v. Whiting, 607 F.2d 684 (4th Cir.1979), provides no support for the majority’s position that Fourteenth Amendment claims are non-justiciable if based on alleged age discrimination in government employment. The majority conveniently ignores the fact that Clark expressly recognized that courts will entertain some equal protection claims from public employees even though neither race nor sex discrimination is alleged. To make that point clear, we inserted the following footnote in Clark: “Of course, if the rule on its face discriminated against out-of-sta-ters or non-graduates, a justiciable equal protection claim might be presented.” 607 F.2d at 641 n. 13. Clark merely used sexual and racial discrimination as examples of violations of “positive constitutional requirement's]” that must be alleged to raise a justiciable equal protection claim. See id. at 638. Zombro has alleged such a constitutional violation. He has asserted a claim based on age discrimination, a claim that the Supreme Court and our own Circuit have been willing to examine under the Equal Protection Clause.
The majority also attempts to derive support for its non-justiciability argument by emphasizing that Zombro has brought his claim against “a police department, a paramilitary department, where internal discipline and public safety require that a police commissioner be afforded broad discretion and authority to assign and reassign members of the department to various posts.” That fact in no way makes Zombro’s constitutional claim non-justiciable, as the Supreme Court has illustrated.15 In Murgia, the Supreme Court allowed a Massachusetts state police officer to assert an equal protection claim based on age discrimination. 427 U.S. 307, 96 S.Ct. 2562. Three years later, the Court allowed foreign service officers, who performed hazardous duty and who occupied “positions critical to the conduct of our foreign relations in the post-war world,” to raise an age discrimination claim under the equal protection component of the Fifth Amendment’s Due Process Clause. Bradley, 440 U.S. at 97, 101, 99 S.Ct. at 942, 944.16 The plaintiffs in both cases occupied positions at least as hazardous and sensitive as that of a Baltimore City police officer, and yet the Supreme Court did not consider their equal protection claims non-justiciable.
Of course, the sensitive and dangerous nature of law enforcement may make it difficult for Zombro to succeed on the merits of his equal protection claim. The plaintiffs in both Murgia and Bradley ultimately failed in their constitutional challenges, at least in part because the special nature of law enforcement and the Foreign Service made it particularly difficult for the plaintiffs to show that age was not rationally related to the government’s interests. See Bradley, 440 U.S. at 101-09, 99 S.Ct. at 944-48; Murgia, 427 U.S. at 314-17, 96 S.Ct. at 2667-69. However, the likelihood that a plaintiff will ultimately lose an equal protection challenge does not make his or her claim non-justiciable.
Here, Zombro would bear a heavy burden in his equal protection challenge even if he were to prove that the police department transferred him because of his age:
“[T]hose challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 949, 59 L.Ed.2d 171 (1979). In a case such as this, the plaintiff can carry this burden by submitting evidence to show that the asserted grounds for the legislative classification lack any reasonable support in fact, but this burden is nonetheless a considerable one.
*1379New York State Club Ass’n v. New York, — U.S. -, -, 108 S.Ct. 2225, 2236, 101 L.Ed.2d 1 (1988) (citation omitted). Although a successful equal protection challenge to age discrimination may be unlikely, it is not impossible. See, e.g., McMahon v. Barclay, 510 F.Supp. 1114, 1117 (S.D.N.Y.1981) (invalidating, under rational-basis test, New York Civil Service Law provision prohibiting employment of persons over age 29 as police officers).
We should remand Zombro’s § 1983 claim to the district court for further proceedings. We do not have before us the asserted grounds on which the Baltimore police department apparently based its alleged practice of transferring older officers away from the Inner Harbor. In fact, the police department denies that it has such a practice and asserts that Zombro was transferred for reasons other than age. Thus, we are unable to conduct the necessary rational-basis scrutiny on the record before us. On remand, Zombro might not succeed on his claim, but he should be given the chance to try.
. 29 U.S.C. § 621 et seq.
. Section 2254 provides in pertinent part:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(Emphasis added).
. 20 U.S.C. § 1400, et seq.
. It remains to be seen whether the Supreme Court will modify its analysis on preemption of § 1983 remedies in light of Congress’ overruling of Smith's major holding. Despite the uncertainty, I will assume here that the Supreme Court would continue to follow the same analytical approach.
.See also S.Rep. No. 168, 94th Cong., 1st Sess. 13, reprinted in 1975 U.S.Code Cong. & Ad.News 1425, 1437 ("It is the intent of the Committee to establish and protect the right to education for all handicapped children and to provide assistance to the States in carrying out their responsibilities under State law and the Constitution of the United States to provide equal protection of the laws") (emphasis added); 20 U.S.C. § 1400(b)(9) ("it is in the national interest that the Federal Government assist State and local efforts to provide programs to meet the educational needs of handicapped children in order to assure equal protection of the law") (emphasis added).
. Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), another case cited by the majority, is inapposite to the issue to be decided here because Zombro is not a federal employee. Brown held that § 717 of the Civil Rights Act of 1964 provided the exclusive means of challenging racial discrimination in federal employment. 425 U.S. at 835, 96 S.Ct. at 1969. However, as we have emphasized before, Brown's holding was based on legislative history showing that Congress believed, albeit mistakenly, that prior to extension of Title VII to government workers, "federal employees had no judicial remedy for intentional acts of employment discrimination.” Keller v. Prince George's County, 827 F.2d 952, 956 (4th Cir.1987), citing Brown, 425 U.S. at 828, 96 S.Ct. at 1965-66. However, "Congress was aware of the remedies for state employees such as § 1983 which preexisted Title VII." Keller, 827 F.2d at 962 (emphasis added). Thus, we held in Keller that state and local government employees could assert race discrimination claims under § 1983, notwithstanding the holding of Brown. As discussed in the text below, Congress’ intent with respect to Title VII remedies for state and local government workers provides significant aid in interpreting the similar provisions of the ADEA.
. The 1978 amendments raised the protected age category to 70 and prohibited mandatory retirement of certain employees. See S.Rep. No. 493, 95th Cong., 2d Sess. 1, reprinted in 1978 U.S.Code Cong. & Ad.News 504.
.The Committee on Aging Report recognized that plaintiffs would continue to challenge age discrimination in governmental employment on equal protection grounds:
A number of witnesses before the committee contended that mandatory retirement based solely on age is unconstitutional because it violates the “due process" and "equal protection” clauses of the 5th and 14th Amendments to the Constitution. Proponents of this position were encouraged by two almost simultaneous decisions in 1974 which were seen as favorable to their position.
Committee on Aging Report, at 15, reprinted in Legislative History, at 324. Among the court decisions discussed in the Report is Bradley v. Vance, 436 F.Supp. 134 (D.D.C.1977), which had struck down mandatory retirement rules on equal protection grounds. Following passage of the 1978 amendments to the ADEA, the Supreme Court reversed Bradley, holding that the mandatory retirement rules complied with the Fifth Amendment’s equal protection requirements. 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979).
For further legislative discussion of equal protection challenges to age discrimination in government employment, see M. Rosenblum, The Next Steps in Combating Age Discrimination in Employment: With Special Reference to Mandatory Retirement Policy, Working Paper of the Senate Special Committee on Aging, 95th Cong., 1st Sess. 8-11 (Comm. Print 1977), reprinted in Legislative History, at 288-91.
. The Report states:
Many believe that the Court’s ruling in the Murgia case does not close the door completely to successful constitutional attacks on mandatory retirement in the courts — as demonstrated by the recent decision in Bradley v. Vance [436 F.Supp. 134 (D.D.C.1977), rev'd 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979)] — but they also agree that the likelihood of success is very bleak.
Committee on Aging Report at 38, reprinted in Legislative History at 347.
. 42 U.S.C. § 2000e et seq.
. See, e.g., Mississippi University for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3335-36, 73 L.Ed.2d 1090 (1982); Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976).
. That Zombro’s likelihood of success may be bleak is wrongly relied on by the majority to eliminate his claim as a matter of law, altogether.
.It is unclear from the record why Zombro did not choose ADEA as the means for asserting his claim.
. The majority suggests that Scruggs v. Campbell, 630 F.2d 237 (4th Cir.1980), compels a different result. Scruggs, however, does not conflict with my conclusion that the ADEA does not foreclose Zombro’s § 1983 claim. Scruggs involved statutes other than the ADEA. Whatever Congress may have intended in enacting those statutes, I have illustrated that Congress demonstrated no intent to foreclose § 1983 actions based on equal protection violations when it enacted the ADEA. Furthermore, it is unclear whether the plaintiffs in Scruggs based their § 1983 action on the rights created by the statutes containing the comprehensive enforcement mechanisms, or instead, on constitutional or other rights arising independently of those statutes. As I have explained, that distinction is crucial in deciding whether a statute forecloses an action under § 1983.
. The question here is not who should win, but whether the court should entertain the suit.
. We also have allowed government workers whose duties implicate public safety to challenge age discrimination on equal protection grounds. See Johnson, 731 F.2d 209 (firefighters); Arritt, 567 F.2d 1267 (police officers). Although we considered the equal protection challenges, we ultimately found no constitutional violations in those two cases.