Age DiscriminationCircuit CourtDiscriminationEmployer UpdatesLabor & Employment LawLegal NewsNews7th Circuit Affirms that Age Discrimination Includes Applicants

 
In the case Kleber v. CareFusion, the Seventh Circuit Court of Appeals held that the disparate impact section of the Age Discrimination in Employment Act protects job applicants and not just current employees. The fifty-eight year old Plaintiff Dale Kleber sued CareFusion Corp. alleging that he faced an unlawful barrier when he applied for a position as in-house counsel. CareFusion’s job posting said that applicants must have “3 to 7 years (no more than 7 years) of relevant legal experience.” The seven year maximum effectively removed Kleber from consideration and the company awarded a twenty-nine year old attorney the job.
The Plaintiff’s complaint alleging age discrimination was dismissed at the trial court level based on the fact that the Plaintiff was a job applicant and not an employee. On appeal, the central question on review was whether the disparate impact provision of Section 623 of the Age Discrimination in Employment Act (ADEA) protects only current employees or whether it protects outside job applicants as well. Section 623 reads: “It shall be unlawful for an employer to (1) fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals age; (2) 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 individuals age…”
In the majority opinion, the Seventh Circuit Appellate Court held that Section 623 protects both outside job applicants and current employees based on the courts interpretation of the statutory text and its interpretation of case law. The court reasoned that although the language of Section 623 does not refer to “job applicants,” it clearly applies to them by making it unlawful for the employer to fail or refuse to hire any individual based on their age.
In light of this decision, employers should ensure that their hiring practices and postings do not have the effect of discriminating against job applicants based on their age. The attorneys at Tristan & Cervantes have advised clients in regards to all aspects of the employment relationship. If you or your organization have questions, please contact our office at info@tristanlegal.com or call us at 312.345.9200.