One of the constants over the last few decades in Labor and Employment Law has been the fact that our society has become more litigious (i.e. people file lawsuits at the drop of a hat). Unfortunately, that saga now seems to be impacting the “older generation” as well.

On April 26, 2018, the Seventh Circuit Court of Appeals became the first Federal Court of Appeals to hold that a job applicant can, in fact, bring a Disparate Impact Claim under the Age Discrimination in Employment Act. In Kleber v. CareFusion Corp., No. 17-1206 (2018), a divided panel reinstated a previously dismissed claim at the United States District Court level of a fifty-eight (58) year old attorney who had extensive experience and applied, but was not selected, for an in-house job that had been advertised as “requiring three (3) to seven (7) years – no more than seven (7) years – of relevant legal experience.” The Seventh Circuit (covering Illinois, Indiana and Wisconsin) is the first and only Federal Court of Appeals to make such a finding although a California District Court (Rabin v. PricewaterhouseCoopers LLP, 236 F. Supp. 3d 1126 (2017)) and the Equal Employment Opportunity Commission have taken the exact same position – i.e. the Age Discrimination and Employment Act does, in fact, provide to “applicants for employment” the same protections as “employees” with regard to “Disparate Impact Claims.”

This conflict arises under the fact that the Age Discrimination in Employment Act Disparate Impact Provision (29 U.S.C. § 623(a)(2)) refers to “employees” unlike the statutes in the Disparate Treatment Provision (29 U.S.C. § 623(a)(1)), which refer more broadly to the term “individuals”. Whether or not the decision of the Seventh Circuit Court of Appeals will become the “law of the land” is subject to speculation, but Employers within the Seventh Circuit’s Jurisdiction should examine their hiring practices to determine whether these practices tend to disadvantage older workers and thereby create a “Disparate Impact” and face the possibility of the costly burden of litigation.

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com