The U.S. Court of Appeals for the Seventh Circuit (which covers Indiana, Illinois, and Wisconsin) recently held that the federal Age Discrimination in Employment Act (ADEA) does not protect outside job applicants from disparate impact age discrimination. Kleber v. Carefusion Corporation, Case No. 17-1206, January 23, 2019. Here’s what you need to know…
Age Discrimination Basics
The ADEA applies to most employers with at least 20 employees. It protects individuals who are at least 40 years old from employment-related age discrimination. Unlawful age discrimination can be intentional (sometimes called “disparate treatment” discrimination). It can also arise without intent (“disparate impact” discrimination).
Disparate impact discrimination arises when a policy or practice that is neutral on its face has a disproportionately adverse impact on a protected class. Kleber provides an illustration. The employer advertised for applicants with “3 to 7 years (no more than 7 years) of relevant legal experience.” This experience requirement is neutral on its face. The plaintiff was 58 years old and had more than 7 years of relevant experience. The employer hired a 29-year-old applicant who met but did not exceed the required experience. A disparate impact age discrimination analysis likely would have focused on whether the cap of 7 years of relevant experience disproportionately excluded older applicants based on age.
An employer’s defenses to a disparate impact discrimination claim often focus on the business reasons for the challenged policy or practice. A discussion of defenses is beyond the scope of this post.
Claims that Survive Kleber in the Seventh Circuit
The ADEA clearly protects outside applicants from intentional age discrimination. Employers should continue to know the rules when it comes to establishing selection criteria and advertising for positions.
The Court’s ruling focused on outside applicants, not all applicants. A current employee who applied for transfer or promotion and was turned down due to a facially neutral job requirement may bring a claim of disparate impact age discrimination under the ADEA.
Kleber dealt only with age discrimination. Title VII protects outside applicants from disparate impact discrimination based on race, color, religion, sex, or national origin.
Employers should keep in mind the impact of State and local laws. For example…
- Indiana has a statute that prohibits age discrimination in employment against individuals who are 40-74 years old. It applies to most employers with at least one employee in Indiana. However, it does not apply to employers that are covered by the ADEA, so it is not likely that an outside applicant could work around Kleber by filing a disparate impact age discrimination claim under Indiana State law.
- Wisconsin has a statute that prohibits age discrimination in employment against individuals who are at least 40 years old. It applies to most employers with at least one employee in Wisconsin. In contrast to Indiana, an outside applicant might be able to work around Kleber by filing a disparate impact age discrimination claim under Wisconsin State law.
Employers within the Seventh Circuit should continue to have job-related business reasons for each job requirement that do not unlawfully factor in any protected class.
(This post is not legal advice. Consider consulting with a lawyer about specific situations.)