November 27, 2020

Volume X, Number 332

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November 25, 2020

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Seventh Circuit Limits ADEA Protections for Job Applicants

On January 23, 2019, the Seventh Circuit held that the ADEA’s prohibition of disparate impact discrimination does not extend to job applicants. Kleber v. CareFusion Corp., No. 17-cv-1206.

In Kleber, a 58-year-old attorney unsuccessfully applied for a General Counsel position within the Company’s law department. The job posting required applicants to have fewer than seven years of experience. Kleber had more than seven years of relevant experience. The position was received by a 29-year-old applicant. The company defended its experience maximum with its concern that an applicant with more experience would be unsatisfied working on the less complex duties associated with the position, which could lead to retention issues. Kleber filed suit under the ADEA, alleging disparate impact and disparate treatment theories. The district court dismissed the disparate impact claim on the grounds that the ADEA’s disparate impact protections do not extend to job applicants. A divided Seventh Circuit panel reversed that decision.

Sitting en banc, the Seventh Circuit concluded that ADEA’s disparate impact protections only apply to employees and not job applicants. The court pointed to the language in the ADEA’s disparate impact provision stating an employer may not take action which would “deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.” 29 U.S.C. § 632(a)(2) (emphasis added).

While consistent with other federal circuit court decisions, this ruling is at odds with EEOC guidance. The lack of a circuit split following this most recent decision makes it unlikely that the United States Supreme Court will weigh in on this question any time soon.

While this decision may prove useful for employers defending against federal disparate impact claims under the ADEA, employers should carefully review their hiring procedures to ensure compliance with state and local laws prohibiting age discrimination, as they may impose more stringent standards with respect to hiring practices. In addition, disparate impact theories remain available for job applicants asserting claims of discrimination under Title VII.

© 2020 Proskauer Rose LLP. National Law Review, Volume IX, Number 29
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About this Author

Steven J Pearlman, Labor Employment Law Firm, Proskauer Law firm
Partner

Steven Pearlman is a partner in the Labor & Employment Law Department and co-head of the firm's Whistleblowing & Retaliation Group, resident in the Chicago office. Steven’s practice focuses on defending complex employment litigation involving claims of discrimination and harassment, wage-and-hour laws and breaches of restrictive covenants (e.g., non-competition agreements). He has successfully tried cases to verdict before judges and juries in Illinois, Florida and California, and defended what is reported to be the largest Illinois-only class action in the history of the U.S....

312-962-3545
Edward C. Young, Proskauer Rose, Harassment Lawyer, Labor Rights Attorney
Associate

Edward C. Young is an associate in the Labor & Employment Law Department. He represents companies nationwide in a broad range of employment issues, including discrimination, retaliation and harassment claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the Family Medical Leave Act, as well as other federal and state employment statutes and various common law torts. In addition, Eddie represents employers in trade secret matters and challenges to the independent contractor status of workers.

...

312-962-3595
Holly Ren Morris, Proskauer Law Firm, Chicago, Labor and Employment Law Attorney
Associate

Holly “Ren” Morris is an associate in the Labor & Employment Law Department. Their practice focuses on defending companies in all aspects of employment litigation.

Ren earned their J.D. from Northwestern University Pritzker School of Law, where they worked for the Bluhm Legal Clinic Center on Wrongful Convictions, served on the Journal of Criminal Law and Criminology and assisted in death eligible murder cases for the Mississippi Office of Capital Defense.

312-962-3556
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