On April 26, 2018, the U.S. Court of Appeals for the Seventh Circuit ruled that portions of the Age Discrimination in Employment Act (“ADEA”) protect job applicants, in addition to internal employees.
Dale Kleber, a 58-year old attorney applied for a legal position with CareFusion, a healthcare product company. The job posting called for a “business person’s lawyer” capable of “assum[ing] complex projects.” The position’s qualifications required “3 to 7 years (no more than 7 years) of relevant legal experience.” CareFusion reviewed Kleber’s application, but ultimately hired a 29-year old applicant. Kleber filed a charge of age discrimination regarding the 7-year maximum experience cap with the Equal Employment Opportunity Commission, who issued Kleber a right-to-sue letter in 2014.
In turn, Kleber filed suit against CareFusion, under the disparate impact provision of ADEA (§ 623(a)(2)).¹ He contended that the maximum experience cap “was based on unfounded stereotypes and assumptions about older workers, deters older workers from applying for positions . . . and has a disparate impact on qualified employees over the age of 40.” CareFusion moved to dismiss his claims, and the United States District Court for the Southern District of Illinois agreed, on the grounds that ADEA does not apply to job applicants.
In Kleber v. CareFusion, a split panel of the Seventh Circuit reversed. On appeal, the panel majority zeroed in on the text of § 623(a)(2), which provides that: “It shall be unlawful for an employer…to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” Though candidly recognizing the plain text of the statute bears no mention of job applicants, the panel majority relied heavily on the Supreme Court’s interpretation of Title VII of the 1964 Civil Rights Act in Griggs v. Duke Power Co. (1971), which extended identical language in Title VII to job applicants. In the end, the panel majority found Title VII and Griggs too similar to the text of § 623(a)(2) to reach a contrary result. And so too, the panel majority determined that job applicants are equally protected under the ADEA.
Going forward, it is difficult to predict how future courts will react or rely upon Kleber, but employers should take notice of the decision and remain cognizant that potential exposure under the ADEA goes beyond current employees and may extend to any potential hires.
¹ Kleber also alleged disparate treatment under § 623(a)(1) of the ADEA, but he eventually dismissed that claim voluntarily.