Griesing Law Legal Alert on Federal Protection for Older workers

The Supreme Court just made it more difficult for older job applicants to establish that they were discriminated against by potential employers.  Last month, the Supreme Court declined to review the Seventh Circuit Court of Appeals’ decision in Kleber v. CareFusion Corporation, which held that the Age Discrimination in Employment Act (“ADEA”) does not apply to job applications who allege that a hiring policy adversely impacts older workers.  While older applicants are still protected from hiring practices that explicitly discriminate against older applicants, the Seventh Circuit opinion prevents older applicants from bringing disparate impact claims (i.e., alleging that a policy has the effect of discriminating against a job seeker based on age even if that was not the employer’s original or stated intent).

In Kleber, a 58-year-old attorney applied for a senior in-house position in CareFusion’s law department.  The job description required applications to have “3 to 7 years (no more than 7 years) of relevant legal experience.”  While Kleber had more than seven years of relevant experience, he applied for the job anyway.  CareFusion passed over Kleber for the position and hired a 29 year-old instead, whose experience level fell within the time period listed in the job description.  Kleber then sued CareFusion for age discrimination under the ADEA.

In January, the Seventh Circuit heard the Kleber case on appeal and decided that the ADEA doesn’t protect job applicants from employment policies and practices that have a disparate impact but instead only protects applicants from employment practices that overtly discriminate based on age.  The appellate court found that only current employees are protected from employment practices that have a disparate impact.  By refusing to review the Seventh Circuit opinion, the Supreme Court is leaving the appellate court’s opinion as the controlling law in the Seventh Circuit (Illinois, Indiana, and Wisconsin).

While this distinction is good for the employer, it greatly weakens federal protections for older Americans seeking employment.  The concern is that employers can now use facially neutral tactics to weed out older applicants (e.g., using terms such as “recent graduate” as a qualification or advertising only on mediums frequented by younger applicants such as college campuses).   However, it is important to note that even if this precedent is applied in states outside the circuit, depending on the state they live in, older applicants can still avail themselves of protections under state law.  States like California expressly protect older applicants from this type of age discrimination and offer victorious plaintiffs higher possible damage award amounts.  Therefore, while this decision appears to be a victory for employers, it may be a hollow one.

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