Recently, the United States Court of Appeals for the Seventh (7^th) Circuit (applicable to the State of Illinois, Indiana and Wisconsin) issued a far-reaching decision on the basis of an 8 to 4 decision (all twelve justices of the 7^th Circuit Court of Appeals Hearing and Ruling on the case) establishing that job applicants may not bring a claim for unintentional age discrimination under the Age Discrimination and Employment Act (ADEA) (Kleber v. Care Fusion Corporation decided by Seventh Circuit En Banc Panel January 23, 2019).

In the case at hand, the involved plaintiff, Dale Kleber had applied for a senior in-house attorney position in the Care Fusion Law Department. Kleber who was 58 had applied for a position based on a posted position that obviously required the individual to have a law degree and certain limited experience. While Mr. Kleber certainly had the law degree and more than the requisite experience, Care Fusion hired a 29 year old applicant who met but did not exceed the posted experience requirement. Kleber sued at the Federal District Court Level claiming both disparate treatment discrimination (i.e., that the company intentionally refused to hire him because of his age) and disparate impact implication (i.e., claiming that the company unintentionally discriminated against him because of its hiring policies which appeared neutral but had a disproportionate impact on the individuals over the age of 40. The District Court dismissed the disparate impact claim and Kleber voluntarily dismissed his disparate treatment claim and the matter went up to the Seventh Circuit.

While the initial three-judge panel of the Seventh Circuit reversed the District Court decision, a subsequent request for En Banc review was requested and the case went before all twelve (12) judges. The Seventh Circuit En Banc panel held that the provisions of the ADEA permit disparate impact claims but those claims do not apply to job applicants. Specifically, Section 4(a)(2) made it unlawful for an employer “to limit, segregate or classify his employees in any way that would deprive or tend to deprive the individual of employment opportunities or otherwise affect his status as an employee, because of his age”. The Court held that, therefore, Section 4(a)(2) limited the protection of disparate impact claims solely to employees and that an applicant had “no status as an employee”. The Court further stated that while Section 4(a)(1), the disparate treatment portion of the statute did specifically deal with applicants predicated on the terminology that Section 4(a)(1) applied to an individual who an employer “failed or refused to hire” because of their age and therefore, while applicants could make a disparate treatment claim under Section 4(a)(1), an applicant was not able to make a claim under Section 4(a)(2) because job applicants were not part of the protection of the Age Discrimination and Employment Act for disparate impact claims.

Whether or not the United States Congress will modify the statute with regard to future claims is an issue that is subject to debate and/or consideration but, for now, based on the En Banc court decision in the Kleber case, disparate impact claims do not have validity with regard to job applicants.

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