Seventh Circuit: ADEA Applies to Employees and Job Applicants

APPLIES TO

All Employers with IL, IN, and WI Employees

EFFECTIVE

April 26, 2018

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In a split from an Eleventh Circuit ruling last year, the Seventh Circuit Court of Appeals recently stated that the Age Discrimination in Employment Act of 1967 (“ADEA”) provides protections not only to current employees aged 40 or older, but to similarly situated job applicants as well.

In Kleber v. CareFusion Corp., Dale Kleber responded to a job posting by CareFusion.  CareFusion chose not to interview Kleber, since his extensive legal and business experience exceeded a requirement CareFusion included in the posting for an applicant with “three to seven years (no more than seven years)” legal experience.  CareFusion ultimately hired a much younger individual for the job.

The ADEA prohibits employers from enacting policies that have a disproportionate impact on older workers.  While the statutory language of the ADEA refers only to “employees” – a point raised in the Eleventh Circuit’s review of Villarreal v. R.J. Reynolds Tobacco Co. – the Seventh Circuit majority stated that there was no plausible reason the ADEA would permit disparate impact claims by current employees and internal applicants, but not external job applicants.

Currently, the Supreme Court has declined rehearing the Eleventh Circuit decision.  However, with the split in authority between the Seventh and Eleventh Circuits, the conflict in readings of the ADEA may now encourage Supreme Court review.

Action Items

  1. Review job postings and other pre-employment materials with counsel for questions or requirements that disproportionately affect employees and applicants aged 40 or older.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

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