Ogletree offices in Washington, D.C. Photo: Diego M. Radzinschi/NLJ

Federal age-bias protections do not extend to outside job applicants but only to employees, a healthcare company told the U.S. Supreme Court on Thursday in rebutting claims from a 58-year-old lawyer who was not hired for an in-house legal post.

The lawyer, Dale Kleber, who applied for a senior counsel position at San Diego-based CareFusion Corp., filed claims under the federal Age Discrimination in Employment Act. A federal appeals panel in Chicago ruled in his favor last year, but a subsequent order by the full appeals court overturned the decision. Kleber's lawyers filed a petition in the Supreme Court in May.

“This break with settled law threatens to materially harm the ability of millions of current and future older workers to secure financial security and to cause significant damage to the nation's economy,” Kleber's lawyer, Laurie McCann of the AARP Foundation, told the justices.

Kleber sought a position that was advertised with a seven-year experience cap. His attorneys said more than 100 other applicants applied for the position, and CareFusion interviewed 10 of those prospective hires. The position was awarded to a 29-year-old lawyer.

New Jersey-based medical technology company Becton, Dickinson and Co. is the parent of CareFusion, which is represented in the Supreme Court by David Schenberg in St. Louis, co-chairman of the appellate practice at Ogletree, Deakins, Nash, Smoak & Stewart.

Schenberg disputed that federal appeals courts are divided over whether the Age Discrimination in Employment Act covers both job applicants and employees. “The issue continues to percolate in other circuits, offering the opportunity to address it should a split later develop,” Schenberg said in Thursday's filing.

The U.S. Court of Appeals for the Seventh Circuit, sitting en banc, said in January that the Age Discrimination in Employment Act “makes clear that Congress, while protecting employees from disparate impact age discrimination, did not extend that same protection to outside job applicants.”

The appeals court said provisions in the law protect “older employees who encounter age-based disparate impact discrimination in the workplace. 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.”

Kleber's lawyers contend the appeals court too narrowly construed the civil rights law, “despite the statutory language and the great weight of Supreme Court precedent.” The AARP team told the Supreme Court that “the Seventh Circuit engaged in historical as well as linguistic gymnastics to justify its disregard of controlling Supreme Court precedent.”

The Supreme Court in 2017 turned down a petition that addressed similar questions about the scope of the Age Discrimination in Employment Act.

Read more:

Older Job Seekers Face Court Setback in Quest to Bolster Anti-Bias Protections 

US Appeals Court Restricts Age-Bias Claims to Employees, Not Job Applicants