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On April 26, 2018, the Seventh Circuit Court of Appeals held in Kleber v. CareFusion Corporation, 888 F.3d 868 (7th Cir. 2018) that the Age Discrimination in Employment Act’s (“ADEA”) “disparate impact” provision protects both current workers and outside job applicants. The ADEA’s “disparate impact” provision applies where an employer’s neutral policy has a disproportionate adverse effect on older workers.

In this case, the plaintiff, Dale Kleber, was an attorney with extensive legal and business experience who practiced law in Chicago. In July 2011, Kleber involuntarily resigned from his position as the Chief Executive Officer of a national dairy trade association. He then began applying for other legal jobs, primarily seeking general counsel or division counsel level positions. He applied to more than 150 positions, without success.

In 2014, when Kleber was 58 years old, he applied for the “Senior Counsel, Procedural Solutions” position at the defendant, CareFusion Corporation. Although Kleber’s experience apparently qualified him for the position, CareFusion indicated in its job posting that it was seeking someone with “3 to 7 years (no more than 7 years) of relevant legal experience.” CareFusion received Kleber’s application, but selected a 29 year old attorney for the position.

After Kleber was not selected for the position at CareFusion, he 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 claim. The district court’s dismissal was based on a prior Seventh Circuit decision that held that the ADEA’s disparate impact provision applied only to job applicants who were already employed by the employer.

On appeal, the Seventh Circuit reversed the district court’s dismissal of Kleber’s disparate impact claim and overturned its prior decision on this issue. The court, after a detailed analysis of the ADEA’s text, held that outside job applicants can bring disparate impact claims under the ADEA. The court’s decision means that facially neutral job requirements that may disproportionately impact or screen out older job applicants could be subject to challenge under the ADEA.