On January 23rd the US Court of Appeals for the Seventh Circuit held that applicants cannot make a claim for disparate impact age discrimination under the ADEA. Disparate impact discrimination occurs when a facially neutral policy has a disparate or disproportionate impact on a protected class of persons.
In March 2014 Dale Kleber, an attorney, applied for an in-house counsel position with CareFusion Corporation. The job description required applicants to have “3 to 7 years (no more than 7 years) of relevant legal experience”. Kleber, who was age 58 when he applied, had more than seven years experience and was thus not selected for the position. CareFusion hired a 29 year old applicant who met but did not exceed the experience requirement. Kleber then sued claiming that the experience requirement created a disparate impact in violation of section 4(a)(2) of the ADEA.
In affirming the dismissal of Kleber’s case the Seventh Circuit focused on the plain language of section 4(a)(2) of the ADEA. Section 4(a)(2) makes it unlawful for an employer:
“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.”
Since the relevant statutory language only protects employees the Court held that Kleber could not state a disparate impact claim. In doing so, the Seventh Circuit joined the Eleventh Circuit in holding that a disparate impact claim is not available to applicants under the ADEA. Other Courts of Appeals have held to the contrary.
While this decision is a win for employers it does not change the fact that:
- All employment policies, selection tests, and other selection procedures and criteria must be neutral on their face;
- These policies and selection procedures and criteria must not have a disparate or disproportionate impact on a protected class; and
- A disparate impact theory is still available to employees under the ADEA .
Remember, an ounce of prevention is worth a pound of cure!