Recently, the Seventh Circuit on appeal determined that the discrimination protections for older workers in the ADEA don’t extend to job applicants. The court held that the law applies only to employees. Let’s examine this case further. This decision has already generated some controversy. However, it impacts only the states in the Seventh Circuit, which include Illinois, Indiana, and Wisconsin. Other states can use this decision as guidance, but it’s not controlling law outside of the Seventh Circuit.

More Than Likely the EEOC Will Continue Applying the ADEA to Job Applicants

If a potential employer denies your job application based on age, that employer may be liable. Job applicants should understand that more than likely, the EEOC will continue applying the ADEA to job applicants. Additionally, Congress may pass legislation to fill this language gap. However, until then, this ruling is damaging to individuals applying for work in those states. Whether this restriction on rights extends to other states remains to be seen.

Our Employment Lawyers Can Help You Sort Out Your Discrimination Claim

If you believe you’ve experienced employment discrimination because you’re over 40, you should talk to an employment lawyer at Kilgore & Kilgore. If you have questions about your rights under the ADEA, Title VII of the Civil Rights Act of 1964, or any state law, use this link to contact us through our website. Just click here Contact Kilgore & Kilgore, fill out the form on the website and send it in. We’ll be happy to walk you through the legal dynamics that arise when employment discrimination occurs.

Older Workers Deserve Equal Treatment Under the Law According to the ADEA

In today’s workforce, employees are working longer than in previous generations. Whether it’s because people stay healthier longer or for financial needs, people are working in some capacity well into their 60s and 70s. In fact, 25 percent of the workforce, roughly 41 million people, is made up of Baby Boomers, and 33 percent consists of Gen Xers, topping out at 53 million.

With the increase in older workers in the workplace, we’ve seen a rise in age discrimination reports, with almost double the complaints filed by women, African Americans, Asians, and workers over age 65 years old. In 2017, over 18,000 age discrimination complaints were submitted to the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that enforces workplace discrimination laws. Those were the cases that were filed. Many instances of age discrimination go unreported.

Under the ADEA an Employer Must Apply the Same Employment Policies to all Employees

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits employers from intentional discrimination against older workers, meaning employees over the age of 40. Additionally, under the ADEA, an employer can’t engage in different employment practices that impact older workers.

Recently, the Seventh Circuit determined whether the ADEA applies to employees only or if the law encompasses job applicants. In Kleber v. CareFusion Corporation, January 23, 2019, the Seventh Circuit held that the ADEA does not provide legal recourse for rejected external job candidates. Let’s examine this case further.

Older Worker Applies for Job

On March 5, 2014, Mr. Kleber, a 58-year-old job applicant, applied for a senior in-house attorney position at CareFusion Corporation. The job description required job applicants to have three to seven years, and no more than seven years, of relevant legal experience. Kleber applied, knowing he had more than seven years of legal experience. CareFusion hired a 29-year-old job applicant who had between three and seven years of applicable experience. Thus, the company passed over Kleber’s application, not giving him the opportunity to interview.

Older Worker Brings Lawsuit Claiming Disparate Treatment Citing the ADEA

In response to CareFusion’s actions, Kleber filed a lawsuit in district court alleging claims of disparate treatment and disparate impact under the ADEA. Kleber stated that the maximum experience cap for this position was “based on unfounded stereotypes and assumptions about older workers, deters older workers from applying for positions. . . . and has a disparate impact on qualified applicants over the age of 40.”

CareFusion requested the dismissal of both allegations. In dismissing the disparate impact claim, the district court stated that the ADEA didn’t extend to job applicants. Kleber voluntarily dismissed the remaining claim for disparate treatment. However, he appealed the court’s decision, challenging the dismissal of the disparate impact claim.

Federal Court Reverses District Court Decision Citing the ADEA

The Seventh Circuit reversed the district court’s ruling in a divided opinion. The Seventh Circuit then granted an en banc (meaning all the judges) review of the case, upholding the district court’s conclusion that the ADEA does not extend to external job applicants, that these protections are available only for employees.

How did the Federal court arrive at this conclusion? Let’s take a deeper dive into the court’s reasoning.
In reviewing Kleber’s disparate impact claim, the court examined the following language from the ADEA:

To limit, segregate, or classify 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.

Disparate Impact Definition

Illegal employment discrimination is often described as disparate treatment. A disparate treatment claim alleges that an employee or job applicant was treated differently than other employees in similar situations, and the difference involved a protected characteristic such as age. Disparate impact is often referred to as unintentional discrimination. Disparate impact lawsuits claim that an employer’s facially neutral practice had a discriminatory effect. It is a way of proving employment discrimination based on the effect of an employment policy or practice rather than the intent behind it.

ADEA Needs Congressional Action

The judge writing the majority opinion stated that the ADEA differed from Title VII of the Civil Rights Act of 1964, which prevents employers with more than 15 employees from discriminating against workers based on sex, race, color, national origin, and religion. In Title VII, Congress amended the law to extend protections to job applicants. Here, regarding the ADEA, Congress has not passed explicit language concerning job applicants. Furthermore, the ADEA differs from Title VII in that that ADEA requires that a company employs at least 20 employees in order to be liable.

One dissenting judge stated that extending the protections of the ADEA would track the U.S. Supreme Court’s application of Title VII, which prevents employers with more than 15 employees from discriminating against workers based on sex, race, color, national origin, and religion. You may be interested in reading our other blog post on age discrimination and a recent U. S. Supreme Court decision. Just click here Supreme Court Defines Federal Age Discrimination Law Upon Which Lower Courts Were Split.

Discrimination in the Workplace Occurs in Many Different Types of Situations

Perhaps you suffer from other types of discrimination in the workplace. If so, click here Contact Kilgore & Kilgore to connect with an employment lawyer for a free evaluation of the facts of your case.