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A Common Hiring Practice May Violate the ADEA


A recent Seventh Circuit Court of Appeals decision addressed the issue of whether the disparate impact provisions of the Age Discrimination in Employment Act (ADEA) apply to job applicants just as it does to current and former employees. In doing so, the Court discusses how a common hiring practice, limiting experience levels, can create a disparate impact on older individuals.

Allegations of Age Discrimination Impacting Job Applicants

In the case Kleber v. CareFusion Corporation, a 58-year-old plaintiff with thirty years of experience as an attorney, applied for an attorney position with CareFusion. However, the job posting stated that applicants must have “3 to 7 years (no more than 7 years) of relevant legal experience.” In spite of his obvious qualifications otherwise, his substantial work experience resulted in him not being offered an interview. As a result, he filed a lawsuit against CareFusion arguing that the use of a seven-year experience cap constituted age discrimination based on the ADEA’s disparate impact provision.

What is “disparate impact?”

Disparate impact refers to situations where an employment practice is not necessarily based on discriminatory intent, but instead has a disproportionately negative impact on a specific protected class of individuals. That “disparate impact,” in many cases, is just as unlawful as disparate treatment of an individual.

The Seventh Circuit Decision

Initially, the district court dismissed the lawsuit based on its interpretation of the ADEA disparate impact provisions – specifically, that they apply only to current and former employees. That would mean those provisions would not protect job applicants. However, the appellate court disagreed, holding that the plain language of the statute provides protection to “any individual,” not to “employees” only.

Reasons why the ADEA provisions apply to job applicants

The Seventh Circuit based its decision on more than just the plain language of the statute. The court also considered that the consequences of finding that job applicants cannot bring disparate impact claims would be “arbitrary and even baffling.” The Seventh Circuit compared the ADEA provisions with those of Title VII, which applies to both employees and applicants. Finally, the basic purpose of the ADEA is to eliminate barriers to older individualsfinding employment, which would not be served if job applicants were not equally protected.

The Eleventh Circuit does not agree with this finding

As important as this decision may be for job applicants, Alabama citizens are not as lucky. This holding in Kleber v. CareFusion Corporation contradicts a prior decision by the Eleventh Circuit which held that only current or former employees could bring disparate impact ADEA claims.

What does this mean for older job applicants?

Regardless of the Eleventh Circuit position on this issue, the Kleber decision signals to employers the need to reconsider policies and practices that may have an impact on older individuals, regardless of whether those policies or practices are meant to intentionally discriminate based on age. The experience cap being challenged in Kleber is only one example. If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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