May 10, 2018

By: Allen Smith

For years the Equal Employment Opportunity Commission (EEOC) has advised that the Age Discrimination in Employment Act (ADEA) applies to job applicants in disparate impact cases, but a 2016 appeals court decision ruled otherwise. Now, another appeals court has reached the same conclusion as the EEOC’s, creating a split the Supreme Court may have to resolve.

In Kleber v. CareFusion Corp., the 7th U.S. Circuit Court of Appeals ruled on April 26 that the law prohibits employment practices that have a disproportionately adverse impact on older applicants, although the ADEA’s disparate impact provision refers just to employees. Relying on this statutory language, the 11th U.S. Circuit Court of Appeals held in the 2016 Villarreal v. R.J. Reynolds Tobacco Co. decision that the ADEA does not make disparate impact claims available to applicants.

The employer in the 7th Circuit case said its seven-year experience cap for an attorney position was necessary, as someone with more experience would be dissatisfied with less-complex duties. Without ruling on the merits of this defense, the appeals court addressed the company’s claim that the ADEA doesn’t make disparate claims available to applicants. The court determined it would be illogical for the ADEA to allow disparate impact claims by current employees, including internal job applicants, while excluding outside applicants.

“The court ruling should be a wake-up call for companies and HR professionals to examine what recruiting or hiring practices can easily result in disparate impact claims,” said Monica Velazquez, an attorney with Clark Hill in Collin County, Texas. While the 7th Circuit decision applies to employers in Illinois, Indiana and Wisconsin, “the trend is likely headed toward protection of older job applicants,” she said.

Dawn Knepper, an attorney with Buchalter in Orange County, Calif., predicted that the ruling will result in more age discrimination claims.

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Source: Society For Human Resource Management