Dive Brief:

• The disparate impact protections of the Age Discrimination in Employment Act (ADEA) do not apply to external job applicants, according to an 8-4 en banc decision from the 7th U.S. Circuit Court of Appeals (Kleber v. Carefusion Corp., No. 17-1206 (7th Cir. Jan. 23, 2019)).
• Attorney Dale Kleber, 58, applied for a senior in-house position at medical technology firm CareFusion that required three to seven years' experience, but "no more than [seven] years," according to court documents. Kleber, who had more than seven years of pertinent experience, was passed over in favor of a 29-year-old applicant who met — but did not exceed — the experience requirement. Kleber filed suit, alleging disparate impact and a district court granted CareFusion's motion to dismiss. Kleber appealed.
• The 7th Circuit, reversing its earlier opinion, held that the "plain language" of the area of the ADEA, § 4(a)(2), "makes clear that Congress, while protecting employees from disparate impact age discrimination, did not extend that same protection to outside job applicants," adding that its conclusion was "reinforced by the ADEA's broader structure and history." The court contrasted the language of § 4(a)(2) with that of § 4(a)(1), ADEA's disparate treatment provision. "All agree that § 4(a)(1), by its terms, covers both employees and applicants," the court said; "We cannot conclude that this difference means nothing."

Dive Insight:

Age discrimination has garnered attention in the employment law community given recent statements by the U.S. Equal Employment Opportunity Commission (EEOC) affirming its commitment to investigating such claims. The issue also has an important demographic component, as a number of baby boomers are nearing retirement age, despite having very high participation in the U.S. labor market.

Ageism has been called employment's "open secret" by advocates, even 50 years after the ADEA's passage. And enforcement of the law isn't always enough, then-EEOC Commissioner Chai Feldblum said in an interview with HR Dive. "There will not be evidence that that you did not get a job because of your age," she said. "You'll just be going to interview after interview after interview, and you just don't get hired, and the people that get hired are younger. But you still don't have evidence to point to say that says it was because of age. So we have to change the culture."

Employers should note that the 7th Circuit's decision applies only in Illinois, Indiana and Wisconsin and that it doesn't affect employee's rights. A disparate impact claim deals with the consequences of a decision on a group of people rather than the motivation for the decision,  according to an emailed statement from David Morrison, principal at Goldburg Kohn. "Thus, what seems like a neutral policy but in application discriminates against older employees could be invalidated under the ADEA's disparate impact provision, even though the policy was not drafted with the intention of disadvantaging older people," Morrison said.

Moreover, applicants in the circuit can still bring disparate treatment claims under the ADEA, he said. The law's disparate treatment provision makes it illegal to intentionally discriminate against older people in making a decision. "If a disparate impact claim could be applied to applicants under the ADEA, Kleber presented pretty compelling facts," Morrison said.

Employers looking to be proactive about preventing age discrimination claims can institute certain changes, like changing procedures for separations, or editing language to job descriptions. Removing certain requirements, like applicants needing to be a "digital native," also can help prevent a description from being exclusionary.