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En Banc Seventh Circuit Finds ADEA Excludes Job Applicants for Disparate Impact

The full Seventh Circuit Court of Appeals has ruled that job applicants may not bring claims for unintentional age discrimination under the Age Discrimination in Employment Act (ADEA).
When he was not hired as senior in-house counsel at CareFusion’s law department, 58-year-old Dale Kleber filed an ADEA lawsuit. The job description sought applicants with three to seven years of legal experience. Mr. Kleber alleged that the limited experience parameters required for the job had a disparate impact on older attorneys, who often have significantly more experience. The federal district court dismissed his case and a Seventh Circuit panel reversed its. The full Seventh Circuit reviewed those decisions.
The ADEA 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 circuit court determined that this language aimed at disparate impact claims plainly does not apply to job applicants because the impact must harm an individual with “status as an employee.” Citing the dictionary as its support, the court stated  “applicant” is not an employee. Under the disparate treatment subsection of the ADEA, Congress made it unlawful to “fail or refuse to hire” an individual because of age. Thus, job applicants are clearly protected from disparate treatment i.e., intentional discrimination. Per the court’s interpretation, the side by side comparison showed Congressional intent to distinguish the two provisions.