05-16-2018
Employers will have to take more care in crafting their job advertisements. The Seventh Circuit Court of Appeals has ruled that job applicants may pursue age claims based on employment practices that have a disparate impact. Disparate impact applies to workplace practices that appear neutral but have a disproportionately negative impact on a protected group.CareFusion Corporation sought candidates for an in-house counsel position. Candidates were asked to have at least three years of experience but not more than seven years. At 58, Dale Kleber had extensive experience in the legal field, far beyond seven years. He had been out of work for some time and thus applied for CareFusion’s opening. The company ended up hiring a 29-year-old attorney that met the experience criteria. Mr. Kleber sued, claiming that the job posting necessarily had a disparate impact on older workers.
The federal district court had dismissed Mr. Kleber’s case on the grounds that the Age Discrimination in Employment Act (ADEA) did not protect older job applicants from discrimination arising out of disparate impact. However, the circuit court considered that conclusion erroneous. The Seventh Circuit found that the plain language of the statute extended protection to “any individual” and not just an “employee.” Previous court interpretations of Title VII’s disparate impact protections further guided the appellate court to conclude that the ADEA included job applicants. The court found it nonsensical to allow employees, but not job applicants to bring disparate impact claims. Such an interpretation would be at odds with an essential underlying purpose of the ADEA, which was to diminish the barriers for older employees seeking work. The case was sent back to the district court to determine whether CareFusion’s policy was discriminatory.