The federal 7th Circuit Court of Appeals has affirmed that the Age in Employment Discrimination Act (ADEA) does not apply to applicants for a job. The age issue of applicants is a hot issue because a number of cases have popped up where older applicants were passed over for jobs on the basis of age and sued. The general theory for these cases is based on disparate impact, the fact that the job posting is neutral on its face, but in fact discriminates.
In a case that was just decided, Kleber v CareFusion Corporation, No. 17-1206 (7th Circuit Court of Appeals, 1/23/19), Kleber, an attorney, applied for a senior in- house position in CareFusion’s law department in March 2014. The job description required applicants to have “three to seven years (no more than seven years) of relevant legal experience.” Kleber was 58 at the time he applied and had more than seven years of pertinent experience. CareFusion passed over Kleber and instead hired a 29-year-old applicant who met, but did not exceed, the prescribed experience requirement.
Kleber sued claiming that the advertisement violated the ADEA because the “up to seven years experience” basically made anyone who had more years of experience ineligible for the position, even if they were highly qualified and willing to work at the salary level for the job. Generally, law school graduates are approximately 25 years of age. Add seven years of experience, and the age of the lawyer with the most experience would be approximately 32 years of age.
Kleber argued that the language in the statute that states to “deprive or tend to deprive any individual of employment opportunities” shows that Congress wished to cover outside job applicants. The 7th Circuit disagreed and focused on the construction of the paragraph within the law. The Court that stated that the ADEA “makes clear that Congress, while protecting employees from disparate impact age discrimination, did not extend that same protection to outside job applicants.” The Court then stated that the decision was grounded in the “plain language” of the law and “reinforced by the ADEA’s broader structure and history.” The Court further wrote that although Congress’s choice to add “applicants” to § 703(a)(2) of Title VII but not to amend § 4(a)(2) of the ADEA in the same way is meaningful.
The 11th Circuit Court of Appeals has taken a similar approach, narrowly construing the law to employees.
However, the EEOC still has an expansive view of the ADEA. Other programs have been targeted by the EEOC as age repellant including online applications that include required graduation dates, campus recruiting, and maximum years of experience. New graduate programs especially have been targeted by the EEOC.
State laws may pick up the slack on ADEA enforcement, similar to equal pay laws.
However, there may still end up being a conflict of circuits. In the 9th Circuit Court of Appeals, there is a case against PricewaterhouseCoopers pending in the trial court in San Francisco, which rejected PwC’s argument that job seekers did not have a right to sue. The AARP and Outten & Golden are seeking to certify a class that argues the company has shown preferential treatment to younger workers, including the practice of targeting college campuses.
In Kansas there is a case filed by a group of former employees at Spirit Aerosystems who contend the company wrongfully terminated them and then excluded them from being rehired. The lawsuit claims that older workers, over the age of 40, were more than half of the group in a round of layoffs.
Resolution of the interpretation of the ADEA with respect to applicants by the Supreme Court is likely years away. Employers tend to think long-term workforce and costs; however, given the fact that talent is scarce, the old model needs to be reimagined. Talent is talent and employers will not be able to grow without a more robust talent program in place.
Source: law.com 1/30/19, 1/23/19, Law360 1/28/19