Older Job Applicant Loses Age Discrimination Claim Based on Job Posting Mandating “No More than 7 Years” of Experience

February 6, 2019

By: Jill C. Davis

The United States Court of Appeals for the Seventh Circuit recently issued a key opinion interpreting the Age Discrimination in Employment Act (ADEA), which prohibits discrimination against people aged 40 and older.

The issue in the case, Kleber v. CareFusion Corporation, was whether the ADEA allows an unsuccessful job applicant to sue an employer for an otherwise neutral practice that has a disparate impact on older workers.  In March 2014, Dale Kleber, an attorney, applied for a senior in-house position in CareFusion’s legal department. The job description required applicants to have “3 to 7 years (no more than 7 years) of relevant legal experience.” At the time, Kleber was 58 and had more than seven years of relevant experience. CareFusion hired a less-experienced 29-year-old.  Kleber filed suit, alleging that the company’s experience cap had a disparate impact against older workers in violation of the ADEA.

The court held that the “discriminatory impact” provision of the ADEA only applies to employees, not applicants like Kleber. The court based its decision on the plain language of the ADEA, and emphasized that other portions of the ADEA, including the provision that prohibits discriminatory treatment (as opposed to discriminatory impact) expressly apply to both employees and job applicants. The court concluded that the plain language of the ADEA left room for only one interpretation: that Congress authorized only employees to bring disparate impact claims. The court also noted that Congress remains free to do what the judiciary cannot – revise the law to extend the discriminatory impact provision of the ADEA to job applicants.

The Seventh Circuit’s holding is consistent with a 2016 holding by the Eleventh Circuit in Villarreal v. R.J. Reynolds Tobacco Co., which has jurisdiction over Florida.  Other circuits have not yet weighed in on the issue, but one California district court has held that job applicants can bring disparate impact claims under the ADEA, and the Equal Employment Opportunity Commission (EEOC), which has nationwide jurisdiction, has taken the same position.

Although the issue has largely been resolved favorably for employers so far, the issue may be addressed by the U.S. Supreme Court if the high court deems a sufficient split among the circuits, or Congress may amend the ADEA. Regardless, employers should, as a best practice, regularly examine their hiring practices to ensure legal compliance and that any practices that may disadvantage workers over 40, even if not unlawful, are reasonable and supported by a legitimate business purpose.

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