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ADEA Claims Supposedly Just Got Harder for Some Job Applicants: But Have They Really Lost All Avenues for Litigation?

In a recent decision, the Seventh Circuit Court of Appeals held the Age Discrimination in Employment Act (ADEA), does not protect disparate impact claims for job applicants.  The ADEA generally provides protections from age discrimination for individuals 40 years or older. The Seventh Circuit covers the federal courts in Illinois, Indiana, and Wisconsin. 

In the case, Kleber v. Carefusion Corporation, Dale Kleber was a 58-year-old attorney who applied for a position at Carefusion, which required 3 to 7 years’ experience.  Kleber did not receive the job.  Instead, a 29-year-old who met the minimum requirements of the job posting was offered the job.  Kleber sued, asserting in part, a disparate impact claim based on age.   Disparate impact claims arise when policies, practices, rules or other systems that appear to be neutral on their face result in a disproportionate impact on a protected group.

The district court held the plain language of the portion of the ADEA statute involving disparate impact claims did not extend to job applicants because it spoke in terms of employees.  Specifically, ADEA Section 4(a)(2) makes it unlawful for an employer 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 individual’s age.  29 U.S.C. § 623(a)(2).

A three-judge panel of the Seventh Circuit reversed.  Then, an en banc panel of the Seventh Circuit reheard the case and reversed, upholding the ruling of the district court.  An en banc sitting involves all judges of the Court. This ruling means job applicants cannot effectively bring disparate impact cases under the ADEA in the Seventh Circuit. 

This, however, is not the end of the issue.  State and local laws also prohibit age discrimination.  Moreover, state statutes are often more protective than federal laws because they are designed to fill in the gaps from other laws for the protection of the employee.  For instance, state laws have lower employee thresholds for the law to apply whereas the ADEA applies to employers with twenty or more employees.  For instance, the New York State human rights law applies to employers with four or more employees.  Additionally, state laws routinely do not have damage caps like federal laws and oftentimes provide for punitive damages. 

Therefore, while this holding is good news for employers in some ways, it does little to limit the amount of litigation exposure employers face.  Even if an applicant is not protected under the federal law, a comparable state or local law is likely available.  Therefore, unfortunately, this case does not mean employers are litigation proof from job applicants; they merely have one less claim to potentially fight in the Seventh Circuit.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.