You might have seen all the buzz about the Seventh Circuit’s recent decision in Kleber v. CareFusion Corporation holding that job applicants were not covered by the Age Discrimination in Employment Act (ADEA). Does that mean you can refuse to hire someone because of their age? Not surprisingly, no, it does not mean that. Let’s take a minute to look at what happened.
What’s the Difference between Impact and Treatment Claims?
The difference between disparate treatment and disparate impact claims can be very important. Disparate treatment requires evidence of intentional acts taken to discriminate against an individual. Disparate impact claims cover facially neutral employment practices that have the effect of adversely impacting a protected class of individuals. For example, a plaintiff may prove a disparate treatment age claim with evidence that an employer made overt statements such as “We want to hire a younger person.” On the other hand, a plaintiff might prove a disparate impact claim by showing statistically that the application process tends to exclude females.
The Impact on Applicants
The difference between the two types of claims played out in the Seventh Circuit last week in an opinion looking at age discrimination claims under the ADEA. Dale Kleber, an attorney, applied for an in-house position at CareFusion seeking applicants with no more than seven years of experience. Kleber was 58 years old and had experience that exceeded that requirement. CareFusion did not hire Kleber, and instead went with a 29-year-old applicant who had fewer than seven years of experience. Kleber filed a claim against CareFusion under both disparate impact and disparate treatment claims. The district court dismissed his claim for disparate impact, and Kleber voluntarily dismissed his disparate treatment claim. Kleber then appealed.
The Seventh Circuit, like the court below, looked to the specific text in the ADEA statute discussing disparate impact claims. That part of the statute, unlike protections against disparate treatment, does not provide protections for applicants for employment. Instead, the only individuals who can file claims for disparate impact based on age are those already with the status of “employee.” The statute specifically protects applicants from intentional disparate treatment age discrimination, just not from disparate impact. In this case, Kleber apparently didn’t have direct evidence that he was refused employment due to his age. Since he instead was claiming that the seven-year experience limitation had the discriminatory impact of excluding older applicants, his claim failed under the ADEA.
Does This Mean We No Longer Have to Hire Old People?
Absolutely not. Intentionally discriminating against older (over 40) applicants is still illegal. However, if your company has a facially neutral requirement that may statistically exclude older applicants, such as CareFusion’s experience cap, the Seventh Circuit says that is not subject to a challenge using an adverse impact theory. However, employers should be wary of intentionally trying to fashion employment requirements that would exclude older applicants — that might push you into the disparate treatment realm.