In an important decision, the full U.S. Court of Appeals for the Seventh Circuit has joined the en banc Eleventh Circuit in ruling that valid disparate impact claims under the Age Discrimination in Employment Act (ADEA) can be brought only by individuals with “status as an employee,” not by outside applicants.

The ruling by the en banc Seventh Circuit in Kleber v. CareFusion, No. 17-1206 (7th Cir. January 23, 2019), reversed a split decision by a three-judge panel of the court that found that the ADEA’s disparate impact protection covers both applicants and employees. On rehearing, however, the full court concluded in a 6-4 ruling that a plain reading of the ADEA excludes outside applicants from bringing disparate impact claims.

The case involved a 58-year old attorney who responded to a job posting that specified the successful candidate must have at least three, but no more than seven, years of relevant experience. He sued after he was denied an interview, claiming the cap on years of experience amounted to unlawful disparate impact.

We should note that although the Seventh and Eleventh Circuits have now reached the same conclusion, the issue of whether outside applicants can bring ADEA disparate impact claims is not settled, as there is at least one federal trial court ruling that has gone the other way.

A copy of the Seventh Circuit’s decision in Kleber is available here.

Members of the Center for Workplace Compliance (CWC) can read more here.