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Job Applicants Are Not Protected Under The ADEA On The Theory of Disparate Impact

In Kleber v. CareFusion Corporation, CareFusion Corporation (“CareFusion”) denied job applicant, Dale Kleber, 58-years-old, the position of senior in-house counsel.  Mr. Kleber sued CareFusion for age discrimination, claiming that CareFusion’s policy of not hiring applicants with more than seven years of experience violated the Age Discrimination in Employment Act (“ADEA”).  The district court dismissed the claim, concluding that the ADEA did not allow job applicants to bring a disparate impact claim against a prospective employer.  A divided panel of the Seventh Circuit reversed the district court’s decision, and CareFusion appealed to the Seventh Circuit en banc, which upheld the district court’s decision.

In March 2014, Mr. Kleber applied for a position as senior in-house counsel at CareFusion. The job description required applicants to have “3 to 7 years (no more than 7 years) of relevant legal experience.”  Mr. Kleber was 58 at the time and had more than seven years of relevant experience.  CareFusion, however, passed over Mr. Kleber and instead hired a 29-year-old applicant who met, but did not exceed, the prescribed experience requirement.  Mr. Kleber sued, claiming that CareFusion’s policy of establishing the maximum years of experience for jobs, discriminates against older workers in violation of the ADEA, on the theory of disparate impact. Disparate impact occurs when policies, practices, rules, or other systems that appear to be neutral result in a disproportionate impact on a protected group.  On January 23, 2019, the Seventh Circuit en banc heard the case but did not consider whether CareFusion Corporation discriminated against Mr. Kleber on the basis of age because it found that § 4(a)(2) of the ADEA did not apply to Mr. Kleber at all.

The Seventh Circuit reviewed the original language of the statute, which “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.”  The Court held that this language “plainly demonstrates that the requisite impact must befall on the individual with ‘status as an employee’” and does not extend to applicants for employment.  Further, “common dictionary definitions confirms that an applicant does not have an employment status,” explained the Court.  As such, the Court reversed the panel’s decision and affirmed the district court’s decision to dismiss Mr. Kleber’s claim.

While this is a Seventh Circuit case, this case is important because it prevents any job applicant from challenging hiring policies they believe have a discriminatory impact.  If you feel that your employer has discriminated against you on the basis of age, contact The Harman Firm, LLP.

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