Seventh Circuit Limits Age-Based Claims by Job Applicants

By: Jessica Jackler

On January 23, the 7th Circuit Court of Appeals held that the Age Discrimination in Employment Act (ADEA) does not extend to disparate impact claims for job applicants.

In Kleber v. CareFusion Corp., No. 17-1206 (7th Cir. 2018), the 58-year-old plaintiff applied for a senior in-house attorney position with an Illinois-based employer. The position’s posted job description required applicants to have “3 to 7 years (no more than 7 years) of relevant legal experience.” The applicant had more than 7 years of experience and was not even called for an interview. The company instead hired a 29-year-old applicant who met requirements for the position.

The applicant then filed suit under the ADEA alleging that he was discriminated against in the hiring process because of his age. He 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 7th Circuit ultimately rejected the ADEA claim saying that the “plain language” of ADEA showed that Congress meant for it to cover only current employees, not candidates, in the case of disparate impact. 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.

Practice Tip: Employers in Indiana, Illinois, and Wisconsin are bound by this decision and will benefit them in defending future age claims by job applicants. However, it is important to note that this decision is limited to disparate impact claims and not disparate treatment claims (general age discrimination claims), which was not part of the Court’s analysis. Employers should remain vigilant in screening their applicants based on non-discriminatory factors.

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