AARP headquarters in Washington, D.C. Credit: Diego M. Radzinschi / NLJ

Job applicants, and not just current employees, can sue employers for alleged age discrimination, a divided federal appeals court ruled Thursday, splitting from another court and highlighting tension within the aging workforce.

The U.S. Court of Appeals for the Seventh Circuit said Dale Kleber, the applicant and a longtime attorney, can sue prospective employer CareFusion Corp. for alleged age discrimination. The company did not hire Kleber, who had 25 years of legal and business experience, for a senior counsel position that included a seven-year experience cap. Kleber's lawsuit tested the scope of the 1967 Age Discrimination in Employment Act, or ADEA, which prohibits discrimination against older workers.

“The central issue in this appeal is whether the disparate impact provision protects only current employees or whether it protects current employees and outside job applicants. We hold that it protects both outside job applicants and current employees,” Judge David Hamilton wrote for the majority. “That is the better reading of the statutory text. It is also more consistent with the purpose of the act and nearly 50 years of case law interpreting the ADEA and similar language in other employment discrimination statutes.”

Writing in dissent, Judge William Bauer said the court went too far in extending liability to job applicants, beyond what Congress considered in adopting the ADEA. “While the judicial branch is afforded the duty of determining the constitutionality of statutes enacted by Congress, we are not afforded the right to pencil in words Congress does not itself include,” Bauer wrote.

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The Eleventh Circuit in 2016, ruling in favor of R.J. Reynolds Tobacco Co., concluded that job seekers do not have a right to sue would-be employers under federal age discrimination laws. The U.S. Supreme Court declined to hear that case. No other circuit courts have directly addressed the issue, said Dara Smith, senior attorney with AARP Foundation, which took on Kleber's case.

“We are very pleased by the Seventh Circuit's decision. It upholds the letter and the spirit of the ADEA by preserving the full range of protections Congress intended for older job applicants facing numerous barriers to finding work,” Smith said in a statement Thursday.

Tobias Schlueter of Ogletree, Deakins, Nash, Smoak & Stewart, a lawyer for CareFusion, was not reached for comment Thursday. The New Jersey-based medical technology company Becton, Dickinson and Co. acquired CareFusion in 2015.

The ADAE is distinct from Title VII of the Civil Rights Act, which defines protections for current and prospective workers regarding sex, race, religion and national origin from discrimination.

Then 59 years old, Kleber, an Illinois resident, sued CareFusion in 2015 after the company gave the position to a 29-year-old. His complaint alleged he was not contacted for an interview. At the heart of the lawsuit was the wording for “seven-year” experience cap. A trial judge ruled against Kleber; the appeals court Thursday reversed.

CareFusion's lawyers have argued that the in-house counsel post was an “entry-level position that would have less complex job duties” and be under the supervision of a higher-level attorney. “Although Kleber had more than 25 years of legal experience at the time, he chose to apply for the position,” Ogletree's Schlueter wrote in CareFusion's brief last year in the Seventh Circuit.

The U.S. Chamber of Commerce filed an amicus brief backing CareFusion in the appeal. The Chamber's lawyer at Akin Gump Strauss Hauer & Feld said Congress intentionally chose to create narrow liability under the ADEA.

“Policies that give rise to disparate impact liability, by definition, are neutral on their face and often supported by valid business judgments having nothing to do with a protected trait,” the Chamber's lawyers wrote. “These policies, unlike acts of intentional discrimination, are not inherently suspect.”

The U.S. Equal Employment Opportunity Commission and worker-friendly advocates have trained a new focus in recent years on the employment practices that can weed out older workers on the front-end. These include online applications that include required graduate dates, campus recruiting and maximum years of experience. Another case is pending in a California federal court against PriceWaterhouseCoopers that targets certain campus recruiting tactics.

The number of age discrimination claims is expected to rise, with 10,000 baby boomers turning 65 every day, according to a 2010 Pew Research Center report. As of 2015, about 33 million Americans over age 55 were in the workforce, and that demographic is expected to make up a quarter of the entire U.S. labor force by 2019.

 

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