The United States Court of Appeals for the Seventh Circuit recently ruled that the protections against disparate impact age discrimination afforded by the ADEA apply only to employees, not outside job applicants, in the plain language reading of the law.
The plaintiff in the case, Dale Kleber, was an external applicant who originally filed this lawsuit after “he applied to a senior in-house position in CareFusion’s law department.” The position in question required applicants to have “3 to 7 years (no more than 7 years) of relevant legal experience.” The defendant (Carefusion) ultimately gave the position to a “29-year-old applicant who met but did not exceed the prescribed experience requirement.” This recent decision responded to Kleber’s claim of violation of “§ 4(a)(2) of the ADEA.”
“Section 4(a)(2) 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.”
In sum, the Seventh Circuit stated that “This language plainly demonstrates that the requisite impact must befall an individual with ‘status as an employee.’ Put most simply, the reach of § 4(a)(2) does not extend to applicants for employment, as common dictionary definitions confirm that an applicant has no “status as an employee." The decision making process that led to the court’s conclusion is described here.
While this decision appears to reduce the burden of evidence that a company may be required to produce in order to defend its hiring practices under federal law, it is important to recognize that the plaintiff may have won this case under state laws (i.e California Fair Employment and Housing Act). Additionally, the EEOC still states that “The law prohibits discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.” (https://www.eeoc.gov/laws/types/age.cfm). This language suggests a broader interpretation of who is covered by employment discrimination laws.
DCI expects this will be an ongoing issue and will provide updates on the subject as they become available.
By Cliff Haimann, Senior Consultant, and Alexander Hsu, HR Analyst at DCI Consulting Group
