Monday, April 30, 2018

Job Applicant May Pursue Claim of Disparate Impact Discrimination Based on Age

Overruling the lower court and its own previous rulings, the 7th Circuit Court of Appeals held that job applicants can sue for disparate impact discrimination based on age pursuant to the Age Discrimination in Employment Act.

In Kleber v. CareFusion, the plaintiff, Kleber, who is a 58 year old attorney, applied for a job with the defendant company. The job posting put a maximum seven years of experience cap for eligibility for the job. Kleber exceeded that experience cap and his job application was rejected.  He sued the company for age discrimination, alleging that the maximum experience cap was “based on unfounded stereotypes and assumptions about older workers, deters older workers from applying for positions ... and has a disparate impact on qualified applicants over the age of 40.”

The key provision of the ADEA, 29 U.S.C. § 623(a), reads:
(a) It shall be unlawful for an employer
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; ...
Disparate impact claims are brought under (2) above. As the decision noted, disparate impact claims under the ADEA must both identify a specific test, requirement, or practice that has an adverse impact on older workers and, where applicable, overcome the rebuttal that the practice is based on reasonable factors other than age.

In previous decisions by the 7th Circuit, the court held that disparate impact claims could not be brought by job applicants because the language of the Act itself limits protections against disparate impact discrimination to employees, because only employees were identified in that section of the Act, unlike other sections containing broader language.

In deciding that Kleber could move forward with his claim, the Court determined for the first time that disparate impact claims could be brought by applicants, and not just existing employees of an employer. The Court reasoned
“If an employer classifies a position as one that must be filled by someone with certain minimum or maximum experience requirements, it is classifying its employees. If the classification 'would deprive or tend to deprive any individual of employment opportunities,' paragraph (a)(2) can reach that classification. The broad phrase 'any individual' reaches job applicants, so the focus turns to the employer's action and its effects on the individuals impacted by it—i.e., whether the employer has classified jobs in a way that tends to limit any individual's employment opportunities.”
Whether Kleber, who is supported in his claims by AARP, can prevail has yet to be seen. The company’s position has been that the experience cap is related to the job responsibilities only, arguing that applicants with more than seven years of experience will likely grow bored with the job quickly and leave. Therefore, the maximum experience cap is designed solely to boost employee retention. This case is important, though, not only because it changes course in the Court’s interpretation of disparate impact claims under the ADEA, but it expands potential liability of employers for disparate impact age discrimination claims to include applicants, and not just current employees. Employers may want to re-examine eligibility restrictions in job postings to ensure that they do not inadvertently limit successful applicants to those under 40 years old.