A question that has been pending for many years has been whether applicants, and not just employees, can avail themselves to the Age Discrimination in Employment Act (ADEA) disparate impact provisions. 

The EEOC believed so and filed the Texas Roadhouse case, which settled before trial.   The EEOC alleged that Texas Roadhouse discriminated against applicants for hourly “front-of-the house” positions, such as servers and hosts, because they were 40 or older since at least 2007.  Although many applicants may suspect so, Mark Penzel, the EEOC’s co-lead trial attorney for the Texas Roadhouse case points out that “applicants rarely know that they have been denied a job because of their age."

“It’s harder to prove age bias on the hiring end,” says Laurie McCann, a senior attorney at the AARP Foundation in Washington. “When you’re applying for a job, you’re on the outside and usually don’t know who was hired instead of you.” 

Now comes a definitive ruling from the U.S. Seventh Circuit of Appeals that affirms the proposition that applicants are covered under the ADEA disparate impact provisions.  In this case, a 2014 job posting for “Senior Counsel, Procedural Solutions” stated applicants must have “3 to 7 years (no more than 7 years) of relevant legal experience.” Kleber applied for the job.  Kleber was 58 years old at the time, with much relevant legal experience.  Kleber had previously worked in private law practice in Chicago, as a general counsel for a major national company, and in leadership roles at a national trade association, a real estate development company, and a medical device company.   CareFusion Corp did not interview Kleber and filled the position with a 29‐year‐old applicant.

Kleber, upon finding out what happened, filed a charge of age discrimination with the Equal Employment Opportunity Commission, who issued a right to sue letter.  Kleber then filed suit, alleging disparate treatment and disparate impact.  At the trial court, the case was dismissed in favor of the company stating that Kleber did not have a cause of action because the ADEA did not apply to non-employees. 

On appeal the 7^th Circuit reversed the ruling, stating that Kleber does have a cause of action.   First the court reviewed the specific provisions of the ADEA upon which the suit was filed:

29 U.S.C. § 623(a):  It shall be unlawful for an employer—(1) to 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 individualʹs 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 individualʹs age; or (3) to reduce the wage rate of any employee in order to comply with this chapter.

CareFusion argued that the specific language of the ADEA above referred only to employees.  The court disagreed and stated that “such a reading would make it appear that Congress, which meant to outlaw those practices depriving older workers of opportunities for employment, instead deliberately chose to leave a wide array of discriminatory hiring practices untouched.”  When the court reviewed the history of the ADEA, the court found that there could be "no doubt" that Congress enacted the statute to address those employment practices that make it more difficult for older workers "to find jobs."

After disposing CareFusion’s other arguments, the 7^th Circuit ruled that the ADEA applies to applicants as well as to employees.  The 7^th Circuit emphasized that the seven‐year experience cap is at the heart of this lawsuit and that the writing of the job requirements may have been a practice that discriminated against older applicants like Kleber. 

This case may be appealed again to the Supreme Court as there appears to be a split in Circuits.  The 11^th Circuit ruled in 2016 in a case involving college job fairs for new graduate positions that the ADEA provisions only apply to employees and not to applicants.  Yet the EEOC is still pursuing cases where the job descriptions state “new graduates” for entry level hires.  Therefore, employers need to be aware how they write their job requirements and not practice exclusion of applicants who have greater experience than what is required. 

Source:  Kleber v CareFusion Corp, No. 17-1206 (7th Circuit Court of Appeals. 2018), CCH 5/17/18,  EEOC 3/31/17, Bloomberg 9/24/15