An Illinois attorney with 25 years of experience applied for an in-house job at a medical supply company and lost out to a younger lawyer half his age. A group of older workers argue they missed job opportunities because of a financial company's college-recruiting tactics, and aerospace engineers in Kansas are fighting to get their jobs back.

Such cases of alleged age discrimination abound in federal courts, and a new front has opened up in recent years: claims that employers are biased against older job applicants, not just employees. Plaintiffs have faced challenges in these cases, and advocates for workers suffered a new setback last week when a federal appeals court said the primary law protecting against age discrimination should be construed narrowly. Job seekers such as Dale Kleber, the Illinois lawyer who sued his would-be employer, cannot bring claims.

Worker advocates, including the AARP Foundation Litigation, which brought the case on behalf of Kleber and which has advocated against alleged age bias, bristled at what they called a cramped interpretation of the Age Discrimination in Employment Act of 1967, or the ADEA, the civil rights statute that protects workers over 40 years old.

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“The majority does word gymnastics against Mr. Kleber and older job applications. The ADEA is a civil rights statute [and] it needs to be interpreted through that lens. The court went out of its way to deny older applicants a chance to get through the door,” said Laurie McCann, senior attorney with the AARP Foundation. “This is an in-your-face example of how age discrimination is treated differently from other forms of discrimination.”

The U.S. Court of Appeals for the Seventh Circuit, sitting as a full court, said its ruling did nothing to diminish the “teeth” of the age-bias law. “And Congress, of course, remains free to do what the judiciary cannot—extend [the law] to outside job applicants, as it did in amending Title VII,” Judge Michael Scudder wrote for the majority.

The court drew a distinction with Title VII of the Civil Rights Act of 1964—passed just three years before the ADEA—which protects workers from discrimination on the basis of sex, race, religion and national origin. Congress clarified the statute to ensure applicants, as well as employees are included in those protected.

Kleber sued CareFusion, now owned by New Jersey-based Becton Dickinson. A representative reportedly said the company is “deeply committed to providing equal employment opportunities and a workplace free from discrimination.”

Kleber's lawyers have not said whether they will ask the U.S. Supreme Court to review the decision. The justices, without comment, in 2017 turned down a challenge from the Eleventh Circuit, which said the federal age discrimination law only protects workers, not applicants.

Two age-bias cases are in the pipeline in different federal circuits, setting up the possibility of a clash in the coming months.

One case, against PricewaterhouseCoopers, is pending in San Francisco's federal trial court. In that case, U.S. District Judge Jon Tigar rejected PwC's argument that job seekers did not have a right to sue. The AARP and Outten & Golden are seeking to certify a class that argues the company has shown preferential treatment to younger workers, including the practice of targeting college campuses.

Judge Jon Tigar, U.S. District Court for the Northern District of California (Photo: Jason Doiy/ALM)

“The [Seventh Circuit] decision uses tortured reasoning and semantic somersaults to try to reach a result that is contrary to Congress's intent and common sense,” Outten & Golden partner Jahan Sagafi said. “Judge Tigar's decision to the contrary is far more reasonable and well thought-out.”

PwC's lawyers at Kirkland & Ellis, including partner Emily Nicklin, did not immediately comment on the Seventh Circuit's decision. Nicklin has said PwC is “tremendously inclusive, not just because they follow the law but because they want to build the best possible workplace on a nondiscriminatory basis.”

A case in Kansas federal court was filed by a group of former employees at Spirit Aerosystems who contend the company wrongfully terminated them and then excluded them from being rehired. The lawsuit claims that older workers, over the age of 40, were more than half of the group in a round of layoffs.

Spirit, represented by teams from Foulston Siefkin and Constangy, Brooks, Smith & Prophete, has denied the allegations.

Sagafi said questions about the scope of the ADEA are not ripe for the Supreme Court without a split among federal appeals panels.

The Supreme Court has previously looked at the liability under the ADEA. In 2005, the  justices said in Smith v. City of Jackson that employees could pursue so-called disparate impact claims under the law, similar to provisions in Title VII of the CRA.

That ruling focused on claims brought by employees, not applicants, said David Morrison, a principal at Goldberg Kohn in Chicago.

“The facts did not impact the majority of the Seventh Circuit's judges, who stuck with a strict interpretation of the statutory language to reach its decision, guided by other Supreme Court cases addressing similar issues,” he said.

Laura Friedel, a partner at Levenfeld Pearlstein, said the Seventh Circuit's ruling gives employers more “peace of mind” about the lawfulness of experience caps and college hiring.

“Employers have an aging workforce and there is a natural inclination to want younger workers,” Friedel said. “But clients are working on this. We need to look at skills and recruiting a wider array of applicants.”

But she added, “If a company did choose to have a policy such as only recruiting on college campuses, would this [ruling] help them? Probably, yes.”

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