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UPDATE: Seventh Circuit Changes Course And Holds Applicants Cannot Bring Disparate Impact Claims Under The ADEA

Published by and on April 10, 2019

The Seventh Circuit sitting en banc reaches a different conclusion than the panel that first decided whether applicants can bring disparate impact claims under the Age Discrimination in Employment Act.

This post is an update to our previous post here regarding the Seventh Circuit decision in Kleber v. CareFusion. The plaintiff in Kleber, was an attorney who had extensive legal and business experience. In 2014, plaintiff applied for a position with defendant CareFusion, but the job posting called for 3-7 years of legal experience and explicitly said the candidate could not have more than 7 years of experience. The position was filled with a 29-year-old.

Plaintiff then filed suit alleging disparate treatment and disparate impact claims under the Age Discrimination in Employment Act (ADEA) for the criterion that barred more experienced attorneys from being considered for the position. The district court granted CareFusion’s motion to dismiss plaintiff’s disparate impact claim on the grounds that applicants could not bring disparate impact claims under the ADA, and plaintiff appealed. On appeal, the Seventh Circuit Court of Appeals held that applicants could bring claims under the ADEA’s disparate impact provision and reversed the district court’s ruling.

The Court then granted an en banc review in which all Seventh Circuit justices heard the case. Upon an en banc review, a divided court rejected the holding that applicants could bring disparate impact claims under the ADEA. Rather, the Court held that the plain language of disparate impact provision of the ADEA made clear that the provision applied only to employees, and not to applicants, a conclusion that was also supported by the statute’s broader structure and history. Additionally, the Seventh Circuit noted that amendments that were made to Title VII to explicitly include protections for applicants were not also made to the ADEA.

The dissent in Kleber, however, strongly disagreed with the majority’s reasoning. The dissent believed the language of the ADEA was ambiguous regarding whether applicants can bring disparate impact claims. The dissenting justices also noted how similar language in Title VII (before it was amended to explicitly include applicants) was interpreted as including applicants. Additionally, the dissent concluded that reading the disparate impact clause as including applicants is more consistent with the purpose of the ADEA.

Welter Insight

The reversal of the Seventh Circuit’s initial decision by a divided en banc court demonstrates that the issue of whether applicants can bring disparate impact claims under the ADEA will most likely continue to divide courts in other jurisdictions. Employers in jurisdictions that have yet to rule on the issue should not assume that applicants will be barred from bringing disparate impact claims. Employers should keep in mind the potential for age discrimination claims when posting job positions and carrying out other hiring practices.

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