January 25, 2019

7th Circuit: ADEA Does Not Extend to Job Applicants

The federal Age Discrimination in Employment Act (ADEA) does not extend to disparate impact claims for job applicants, according to a decision issued by the U.S. Court of Appeals for the 7th Circuit on Wednesday, January 23.

The federal appeals court decision affirmed an earlier Illinois District Court opinion and is helpful for employers in the context of failure to hire claims.

In Kleber v. CareFusion Corp., the plaintiff was a job applicant, a 58-year-old attorney who applied for a senior in-house position with an Illinois-based employer. The posted job description for the position required applicants to have “3 to 7 years (no more than 7 years) of relevant legal experience.”

The applicant had more than seven years of pertinent experience and was not selected for the position. In fact, he was not even called for an interview. The company ultimately hired a 29-year-old applicant who met the posted experience requirement for the position.

The job applicant then filed suit under the ADEA, which prohibits discrimination against those 40 years old and older, alleging that he was discriminated against in the hiring process because of his age. The applicant set forth a disparate impact theory of discrimination on the basis that, although neutral on its face, the cap on relevant experience for the posted position disparately excluded older workers.

The employer initially obtained dismissal of the applicant’s ADEA claims in U.S. District Court for the Northern District of Illinois, but that decision was reversed in a panel ruling by the 7th Circuit in April 2018. Wednesday’s decision reinstates the District Court’s decision after review by the full 7th Circuit in an 8 to 4 split.

The relevant sections of the ADEA under which the job applicant sued makes it 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.”

In the split decision, the majority of the court held that, when viewing the statute as a whole, including the plain language and the legislative intent, the ADEA was meant to protect employees from disparate impact age discrimination, which does not extend to outside job applicants seeking employment.

The Court noted that Congress has the power to extend the statute to protect outside job applicants just as it did with Title VII and other portions of the ADEA.

With this decision, the 7th Circuit joins the 11th Circuit in holding that the ADEA’s protections do not extent to job applicants in these circumstances.

Takeaway For Employers

Employers in Indiana, Illinois or Wisconsin should have some comfort that they can defend claims from job applicants alleging they were not selected or considered for positions because of age under the federal ADEA statute. Other courts may take notice of this decision.

However, state discrimination laws may provide a basis for other discrimination claims for job applicants, even following this decision.

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