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Older adults are protected from even subtle forms of age discrimination when applying for jobs, a federal appeals court ruled Thursday, dealing a victory to job applicants who increasingly are victims of recruiting tactics that effectively prevent older candidates from being considered.
The case before the U.S. Court of Appeals for the Seventh Circuit involved Dale Kleber, a Chicago attorney with more than 25 years of experience. Kleber was 58 years old when he applied for a position as a lawyer with CareFusion Corp. in 2014. The job posting said that applicants should have “3 to 7 years (no more than 7 years) of relevant legal experience.” When CareFusion, a health care products company, did not contact him for an interview, Kleber sued for age discrimination based on the seven-year accepted maximum on experience. Represented by AARP Foundation attorneys, he argued that the cap shut out candidates older than 40 and violated the Age Discrimination in Employment Act (ADEA).
The legal issue in the case, Kleber v. CareFusion, is whether the ADEA protects job hunters from hiring practices that are more likely to hurt older candidates, even if the policies are not expressly age-based. These disproportionate effects are called “disparate impact” in legal terms. CareFusion argued that the ADEA provision Kleber says the company violated protects only current employees, not job applicants. The district court ruled in favor of CareFusion, a decision that the appeals court panel overturned Thursday by a 2-1 vote.
“We have not been presented with, and could not imagine on our own, a plausible policy reason why Congress might have chosen to allow disparate impact claims by current employees, including internal job applicants, while excluding outside job applicants,” the majority wrote in its ruling.
“The importance of the ADEA law is less about people being able to sue for age discrimination and more about making sure that employers are not shaping their hiring processes in ways that prevent older workers from getting jobs,” says Dara Smith, senior attorney for AARP Foundation Litigation, which represents Kleber in his lawsuit.
The case has been sent back to the district court for another hearing. There is also a possibility the U.S. Supreme Court might choose to review the case because the issue has been decided differently in courts around the country. In 2016, in the case of Villarreal v. R.J. Reynolds, the 11th Circuit Court of Appeals ruled that federal age discrimination law does not cover job applicants in cases of disparate impact. The Supreme Court declined to hear an appeal of that case.
In recent years, hiring practices have become a key focus of efforts to protect older workers from age discrimination. Another prominent case currently working its way through federal courts, in California, examines whether PriceWaterhouseCoopers discriminates against older workers by focusing recruiting efforts almost exclusively on college students and recent graduates. AARP Foundation attorneys are representing the plaintiffs in that lawsuit.