7th Circuit Provides Narrow Interpretation of Age Discrimination Employment Act

The 7th Circuit Court of Appeals, sitting en banc, ruled 8 to 4 that job applicants do not have legal standing to bring claims for unintentional age discrimination under the Age Discrimination Employment Act (ADEA). In Kleber v. Care Fusion Corporation, decided on January 23, 2019, the Court of Appeals ruled that disparate impact claims are not permitted by the ADEA in the job application/hiring process. The Court relied heavily on Section 4(a) (2) of the ADEA. This section of the ADEA makes it illegal for an employer to limit, segregate, or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect employee status, because of an individual’s age. The Seventh Circuit held this language makes it clear that the protection exists for existing employees only, not applicants. The Court reasoned that an applicant has no status as an employee under the common meaning of the term “employee.” In reaching its decision, the Seventh Circuit also reviewed Section 4(a) (1) of the ADEA. This section prohibits disparate treatment and indicates that it is illegal for an employer to fail or refuse to hire individuals because of their age. Thus, the Seventh Circuit makes clear that an employer cannot intentionally refuse to hire people because of their age. However, the Court rejected the argument that the ADEA covers challenges to facially neutral policies or criteria that happen to disproportionately affect the protected group.

It is entirely possible that the Kleber decision will make its way to the Supreme Court. The Seventh Circuit is the first Court to rule that there is no disparate impact claim for applicants based upon age. Also, it is important to note that the long-standing practice across the country under the ADEA is to avoid age discrimination whether by formal policy (intentional) or by facially neutral policies that adversely impact individuals based upon age (disparate impact). Avoiding both types of potential discrimination claims remains the best practice throughout the country. However, for the time being, at least it will be the rule in the Seventh Circuit (Illinois, Indiana, Wisconsin) that a disparate impact claim based upon age in the hiring process will not be a viable claim.

For more information contact a member of Barrett McNagny's employment group. 

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