| From writing code in Silicon Valley to making parts for planes in the heart of Kansas, older workers are finding their career ambitions thwarted by age discrimination. And they’re fighting back in court.
Over the past 50 years, the federal Age Discrimination in Employment Act (ADEA) and a strong network of state laws have protected the workplace rights of people over age 40 who legally could have been sidelined in the generations that came before.
But as older workers seek to stay on the job longer or get a new job, the limits of how much protection these laws provide are being tested. Three cases making their way through the courts could deliver answers to key questions about how much shelter the current age discrimination laws offer older workers.
Can job seekers be rejected for having too much experience?
Thanks to age discrimination laws, employers can no longer post want ads that say things like “no one over the age of 55” need apply. But what about a job description that says candidates can’t have more than a particular number of years of experience? Surprisingly — even after five decades of antidiscrimination law — it’s unclear whether job applicants are protected from tactics like these that aren’t explicitly discriminatory but seem highly likely to hurt older workers in practice.
In 2014, Dale Kleber, an experienced attorney who was then 58, applied for a job as senior counsel at CareFusion, a medical device company in Illinois. When he wasn’t granted an interview — the company hired a 29-year-old instead — Kleber filed an age discrimination suit, citing the job description’s stated maximum of seven years of experience. In its response to the lawsuit, CareFusion stated that it set the cap based on the "reasonable concern" that a candidate with experience beyond the seven-year maximum would be dissatisfied with job responsibilities and would "lead to issues with retention."
“There are many reasons why an employer might not want to hire people who exceed the minimum qualifications for a job, but they shouldn’t be ruled out arbitrarily,” says Laurie McCann, who as a senior attorney at AARP Foundation Litigation is part of the legal team representing Kleber. To win, they’ll have to first convince the court that the ADEA protects applicants, like Kleber, from age-neutral employer policies or practices that have an adverse impact on individuals age 40 and over — an argument the district court rejected. The case is now before the U.S. Court of Appeals for the Seventh Circuit in Chicago, with a ruling expected early next year.