Everyone knows that employers covered by the Age Discrimination in Employment Act (ADEA) cannot intentionally refuse to hire job applicants because they are 40 years old or older, and that it is generally unlawful to post a job advertisement that says “people over the age of 40 need not apply.” Such practices constitute impermissible “disparate treatment” under the statute. But what about age-neutral hiring practices that may have a “disparate impact” on older applicants, such as posting advertisements for candidates with only “one to three years of experience,” or recruiting for entry-level professional positions exclusively on university campuses? These and other common practices may also be unlawful, according to a recent decision by the U.S. Court of Appeals for the Seventh Circuit.

The Supreme Court held in Smith v. City of Jackson, 544 U.S. 228 (2005), that the ADEA prohibits employment practices that have a disparate impact on existing employees, unless the employer can prove that the practice is based on a “reasonable factor other than age.” But whether the ADEA similarly protects job applicants from disparate impact remains unsettled. The ADEA’s disparate impact provision (29 U.S.C. § 623(a)(2)) refers to “employees,” unlike the statute’s disparate treatment provision (29 U.S.C. § 623(a)(1)), which refers more broadly to “individuals.” This difference led the Eleventh Circuit, sitting en banc, to conclude in Villareal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 2292 (2017), that age-neutral recruiting practices that merely disparately impact older applicants do not violate the ADEA.

Parsing the statutory language differently, the Seventh Circuit on April 26, 2018, became the first federal court of appeals to hold that job applicants can, in fact, bring disparate impact claims under the ADEA. In Kleber v. CareFusion Corp., No. 17-1206 (7th Cir. Apr. 26, 2018), a divided panel reinstated the claim of a 58-year-old attorney with extensive experience who applied and was not selected for an in-house job advertised as requiring “3 to 7 years (no more than 7 years) of relevant legal experience.”

The Seventh Circuit’s ruling is potentially far-reaching, since other common hiring practices, including internship programs for recent graduates, and recruiting at colleges and universities, also have a tendency to disadvantage older workers. Whether these practices, or “experience caps” such as the one at issue in Kleber, can be justified by a “reasonable factor other than age” (RFOA) remains to be seen. Under the EEOC’s regulations, the RFOA defense requires proof that a practice is “both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose,” in light of all the circumstances, including the potential harm to older workers. 29 C.F.R. § 1625.7(e).

Kleber generated a lengthy majority opinion as well as a dissent, and CareFusion has petitioned the full Seventh Circuit for en banc review. Villareal produced no less than four separate opinions at the en banc stage. Although the Supreme Court denied certiorari in Villareal, the circuit split created by Kleber, if it persists, makes it more likely that the Court will take up the question of disparate impact protections for older applicants under the ADEA in the future.

Kleber applies only within the Seventh Circuit (Illinois, Indiana, and Wisconsin). However, one California district court has also held that job applicants can bring disparate impact claims under the ADEA, see Rabin v. PricewaterhouseCoopers LLP, 236 F. Supp. 3d 1126 (N.D. Cal. 2017), and the Equal Employment Opportunity Commission (EEOC), which has nationwide jurisdiction, has taken the same position. Employers throughout the country should therefore examine their hiring practices to determine whether practices that tend to disadvantage older workers are supported by a legitimate business purpose and are otherwise reasonable.