Seventh Circuit: ADEA Disparate Impact Protections Do Not Apply to Job Applicants

In Kleber v. CareFusion Corporation, the Seventh Circuit Court of Appeal stated that the disparate impact protections under the Age Discrimination in Employment Act (ADEA) do not apply to job applicants who are not current employees. Specifically, Section 4(a)(2) of the ADEA specifically states that it applies to “employees.” There, a job posting indicated a position available for an individual with “3 to 7 years (no more than 7 years)” of experience. A 58-year old applicant did not get an interview, and sued for disparate impact under the ADEA because the stated experience requirement necessarily excluded him due to his age.

Interestingly, the EEOC has taken the position that the ADEA does apply to job applicants; however, this recent case only applies to applicable employers in the Seventh Circuit. The court did distinguish that internal job candidates who are current employees may make disparate impact claims given that they are existing employees.

Additionally, the court acknowledged that job applicants may make claims for disparate treatment under Section 4(a)(1) of the ADEA because the language refers to “individuals” not employees. Specifically, employers may not “fail or refuse to hire or discharge any individual or otherwise discriminate against him … because of such individual’s age.” Thus, employers must still take care to ensure hiring practices do not discriminate against job applicants.