Full Seventh Circuit Holds That ADEA’s “Disparate Impact” Protections Do Not Extend to Outside Job Applicants

On January 23, 2019, the Seventh Circuit Court of Appeals held in Kleber v. CareFusion Corp., 2019 WL 290241 (7th Cir. 2019) that the Age Discrimination in Employment Act (ADEA) “disparate impact” provision does not cover claims brought by job applicants who are not current employees.  Rehearing the case en banc, the court split 8-4 to reverse the original decision of a three-judge panel on the same case from eight months prior, in April 2018.

In this case, the Plaintiff, Dale Kleber, was an attorney from Chicago with extensive legal and business experience. In 2014, after unsuccessfully applying to more than 150 positions, Kleber applied for a senior in-house position with Defendant CareFusion Corporation. The job description required applicants to have “3 to 7 years (no more than 7 years) of relevant legal experience.” Kleber was 58 at the time he applied and had more than seven years of pertinent experience. CareFusion passed over Kleber and instead hired a 29-year-old applicant who met but did not exceed the prescribed experience requirement.

Kleber filed a charge of age discrimination with the EEOC and then brought suit in the Northern District of Illinois. In his lawsuit, Kleber alleged 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 applicants over the age of 40.”

The district court dismissed Kleber’s disparate impact discrimination claim, citing to existing Seventh Circuit authority that held that the ADEA’s disparate impact provision applied only to employees and job applicants who were already employed by the employer. Kleber then appealed to the Seventh Circuit. In his first appearance before the Seventh Circuit, the court decided to reverse the district court’s dismissal and overturn its precedent on this issue, holding that outside job applicants can bring disparate impact claims under the ADEA. With this initial decision, the court’s holding seemed to indicate that certain job postings that might screen out older applicants would violate the ADEA.

On reconsideration of Kleber’s case with a full bench, however, the Seventh Circuit reversed the three-judge panel and upheld the district court’s original dismissal. The court concluded that, on further scrutiny of the precise language of the ADEA provision at issue, and in the context of similar provisions in other civil rights statutes, the law’s disparate impact protections were limited to current employees and internal applicants and did not extend to outside job applicants.

Importantly, while the court ultimately ruled that the ADEA’s disparate impact protections do not apply to outside job applicants, the court left intact its prior rulings that outside job applicants’ claims for disparate treatment remain viable (i.e., employers are still prohibited from failing or refusing to hire an individual because the individual is 40 or older).

This ruling re-establishes in the Seventh Circuit the concept that outside job applicants cannot challenge neutral job qualifications that may have a disparate impact on older applicants like the maximum experience limit for the position at issue in Kleber.

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