Key Part of Age Bias Law Doesn’t Protect Job Applicants, Court Says

A federal appeals court dealt a blow to older workers Wednesday when it ruled that an important piece of the federal law barring age discrimination in employment applies only to current employees, not job applicants. The provision outlaws employment policies and practices with a “disparate impact” — actions that have the effect of discriminating based on age, even if that wasn't the employer’s intent. 

The 8-4 ruling from the full U.S. Seventh Circuit Court of Appeals based in Chicago states that “Congress, while protecting employees from disparate impact age discrimination, did not extend that same protection to outside job applicants.” The decision reverses a 2-1 ruling last April from a smaller panel of the same court, which ruled that the law applies to “any individual” who is “deprived of employment opportunities” because of age, including job applicants.

The plaintiff in the case, Dale Kleber, applied for a position as a senior counsel at CareFusion in 2014, when he was 58 years old. The job posting said that the health care product company was only seeking candidates with no more than seven years of experience, a restriction that some argue would likely hurt the chances of older applicants. CareFusion hired a 29-year-old candidate instead, and Kleber filed an age discrimination lawsuit in December 2014.

“We strongly disagree with the decision and find it very disheartening that the court interpreted a civil rights law so narrowly, despite the statutory language and the great weight of Supreme Court precedent,” said Dara Smith, an attorney for AARP Foundation Litigation, which represented the plaintiff. “Mr. Kleber and all older job seekers deserve all of the protections Congress intended to give them. As of now, we are considering our options for next steps.”

The Age Discrimination in Employment Act (ADEA), which took effect in 1968, is designed to protect workers age 40 and older from bias in the workforce. In a dissenting opinion to this week’s ruling, Judge David Hamilton wrote that the majority was “closing its eyes to 50 years of history, context and application.”