An interesting case is making its way through federal court after initially being dismissed at the early stages by a district court judge. The case is Kleber v. CareFusion. The plaintiff, 59-year-old Dale Kleber, is an attorney in the Chicago-area. Mr. Kleber has extensive experience in the legal and professional world, serving as the chief executive officer of a trade association and practicing law for many years.
But around 2011, Mr. Kleber’s luck was not so good; he had been out of work for a while and began the process of seeking other employment. In 2014, after unsuccessfully applying to more than 150 jobs, he saw an advertisement for a job posted by a medical technology company called CareFusion. The advertisement was for the position of “Senior Counsel, Procedural Solutions” and sought applicants with “3 to 7 years (no more than 7 years) of relevant legal experience.” Having failed in his search for a job for years, Mr. Kleber applied for the position, knowing that he had more than 7 years legal experience.
CareFusion eventually hired a 29-year-old applicant with less than 7 years legal experience, while Mr. Kleber was not given an interview.
After this rejection, Mr. Kleber filed an age discrimination charge with the Equal Employment Opportunity Commission (EEOC) and then eventually filed a lawsuit in the Northern District of Illinois. The suit was filed under a theory of “disparate impact” in violation of the Age Discrimination in Employment Act (ADEA). Under the ADEA, employers with 20-or-more employees cannot discriminate against applicants and employees who are 40 years of age and older, a group known as a “protected class.” The law protects both applicants and current employees against direct age discrimination. For instance, an employer could not advertise for a job opening by saying “those over 40 need not apply.” This is an easy example of blatant discrimination based on age which is forbidden under the ADEA. But another theory of discrimination, called “disparate impact,” allows plaintiffs to sue not because they were directly discriminated against, but because an employer’s policy has a “discriminatory effect” on a protected class.
However, up to now courts have interpreted the ADEA to only protect current employees against disparate impact type discrimination. In EEOC v. Francis W. Parker School, the Seventh Circuit Court of Appeals held that the language of the ADEA omits from its coverage “applicants for employment.” The Supreme Court has also previously weighed in on the question in Gross v. FBNL Financial Services, finding that congress chose not to amend the ADEA to match other provisions of Title VII relating to discrimination to allow for disparate impact claims. As a result, Mr. Kleber’s lawsuit was dismissed at the district court level early in the process.
But Mr. Kleber appealed, and a three-judge panel found this reading of the ADEA untenable and contrary to the purpose of the ADEA. In an expansive opinion, the court dove deeply into the details of textual arguments underpinning previous court decisions not to grant relief to applicants for employment based on a theory of disparate impact under the ADEA. Ultimately, the three-judge panel for the Seventh Circuit reversed the ruling of the district court judge. CareFusion filed and was granted an appeal in early June, arguing that the decision of the three-judge panel is contrary to binding precedent and creates a circuit split.
The Seventh Circuit will soon sit en banc (all the judges) and hear the appeal. The decision could have a significant impact on the ways employers advertise for jobs seeking applicants with a specific level of experience.
Attorneys at Fishel Downey Albrecht & Riepenhoff LLP routinely advise and defend employers regarding discrimination, harassment and retaliation laws. For questions about this case or any other matter, please contact Angel Jarmusz (ajarmusz@fisheldowney.com) or Grant Bacon (gbacon@fisheldowney.com) by email or phone (614) 221-1216.