A divided three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled recently that the federal Age Discrimination in Employment Act (ADEA) permits both employees and applicants to sue for unlawful discrimination under a disparate impact theory. A successful disparate impact plaintiff does not have to prove intentional discrimination.
The court’s decision in Kleber v. CareFusion, No. 17-1206 (7th Cir. April 26, 2018), found that while not explicitly referencing “applicants,” the ADEA “easily reaches employment practices that hurt older job applicants as well as current employees.”
The plaintiff in Kleber was a 58-year-old man 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. Believing that he was not interviewed for the position because he could not satisfy the seven-year “cap,” plaintiff claimed he was the victim of disparate impact discrimination based on application of the maximum-years-of-experience requirement.
At the company’s request, the trial court dismissed the disparate impact claim, agreeing that the ADEA does not explicitly extend disparate impact protection to job applicants. By reversing the trial court, the Seventh Circuit has now created a conflict with the Eleventh Circuit, which held in Villarreal v. RJR Tobacco that the ADEA does not permit applicants for employment to sue and recover damages for disparate impact age discrimination.
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.