Appeals court: Age discrimination protections apply only to employees, not job applicants

By Scott Holland | Jan 23, 2019

A federal appeals court has determined federal age discrimination protections should apply only to those people currently employed, and do not extend to job applicants.

On Jan. 23, the full contingent of judges on the U.S. Seventh Circuit Court of Appeals, in Chicago, split on the question 8-4, overturning the 2018 ruling on the matter by a three-judge panel of the same court.

Last May, a 2-1 ruling asserted the hiring practices of CareFusion Corporation may have inflicted disparate impact on plaintiff Dale Kleber and other older job applicants, reversing a federal district judge’s decision.

Kleber sought review of the full court, also known as an “en banc” review. All 12 judges heard arguments Sept. 6 and issued a decision Jan. 23.


Judge Michael Y. Scudder  

Seventh Circuit Judge Michael Scudder wrote the majority opinion. Judge Frank Easterbrook wrote a dissent. Judge David Hamilton also wrote a dissent, joined fully by Seventh Circuit Chief Judge Diane Wood and circuit judges Ilana Rovner and Easterbook, in part.

Kleber was 58 in 2014 when CareFusion hired a 29-year-old applicant for a position he’d sought to serve as the company’s senior counsel for procedural solutions. He filed a charge of age discrimination with the Equal Employment Opportunity Commission, which issued a right to sue. Kleber filed a federal lawsuit in December 2014, alleging disparate treatment and disparate impact under the relevant clauses of the Age Discrimination in Employment Act.

The majority opinion focused on the language Congress used to craft the ADEA, specifically noting the law “proscribes certain conduct by employers and limits its protection to employees,” adding the act’s wording “plainly demonstrates that the requisite impact must befall an individual with ‘status as an employee.’”

Scudder further wrote, saying subjecting ADEA text “to even closer scrutiny reinforces our conclusion.

“Congress did not prohibit just conduct that ‘would deprive or tend to deprive any individual of employment opportunities.’ It went further” by employing “a catchall formulation — ‘or otherwise adversely affect his status as an employee’ — to extend the proscribed conduct,” Scudder wrote.

“Congress’s word choice is significant and has a unifying effect,” such that references to “any individual” clearly only refer to present employees, not aspiring applicants, he said.

In his dissent, Easterbook said the majority looked too narrowly at one ADEA subset, finding the entire “statute lacks a plain meaning.” But he differed from the first portion of Hamilton’s dissent, which he said was an attempt at guessing legislative purpose rather than focusing on the text as written.

Hamilton’s dissent said Kleber’s disparate impact claim should be remanded to district court for further proceedings. Invoking Robinson v. Shell Oil Company, a 1997 United States Supreme Court opinion, Hamilton wrote: “While other ADEA provisions protect job applicants more clearly, the Supreme Court guides us away from the majority’s word-matching and toward a more sensible and less arbitrary reading.”

The second part of his dissent, with which Easterbrook agreed, said making sure job applicants get ADEA protections “tracks the Supreme Court’s reading of identical statutory language in Title VII of the Civil Rights Act,” for which he referenced the 1971 opinion in Griggs v. Duke Power Co.

In the third part of the dissent, Hamilton returned to the notion that protecting employees as well as applicants is “more consistent with the purpose of the (ADEA) … and avoids drawing an arbitrary line.”

He said CareFusion never offered a reason why Congress might have written the law to protect employees and internal applications while excluding job seekers from outside a company.

“The en banc majority does not even try to do so,” Hamilton wrote, “following instead a deliberately naïve approach to an ambiguous statutory text, closing its eyes to 50 years of history, context and application.”

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Carefusion U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois

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