Dale Klebar, a 58-year-old lawyer with over seven years of experience practicing law applied for an in-house counsel position with Care Fusion Corporation. Care Fusion’s job placement advertisement for the in-house position limited applicants to persons with 3-7 years of experience. Klebar’s application was rejected and the job was given to a 29-year-old attorney with more than three years but less than seven years of experience, consistent with the job advertisement.
Klebar filed suit under the Age Discrimination in Employment Act (ADEA) claiming Section 4(a)(2) was violated because Care Fusion’s job advertisement discriminatorily and adversely impacted older job applicants. The District Court dismissed the case finding that Section 4(a)(2) of the ADEA applied only to employees of an employer and not potential job applicants. A divided panel of the 7th Circuit reversed the District Court’s ruling. However, an equally divided en banc panel affirmed the District Court’s dismissal with Circuit Judge Scudder authoring the opinion for the majority. Circuit Judges Easterbrook, Hamilton, Rovner and Chief Judge Wood dissented.
The majority opinion focused on language within the ADEA itself for the proposition that certain sections of the ADEA applied to both employees and applicants alike (Section 4(a)(1)) while others did not and applied only to employees (Section 4(a)(2). The majority also focused on language in Title VII and Supreme Court opinions interpreting the Title VII sections that allowed for disparate impact claims brought by applicants.
Outcome: As it stands now, within the Seventh Circuit’s jurisdiction, disparate impact claims can be brought by failed job applicants under Title VII but not under the ADEA when it comes to restrictive job advertisements. Employers should still scrutinize their job placement advertising to avoid language that may create an adverse job impact as the Supreme Court will likely address this issue. Until then, other Circuits may hold differently than the Seventh Circuit. Additionally state anti-discrimination statutes may still provide disparate impact protection to job applicants on the basis of age.
To view the full ruling, click here.
Questions about how this ruling might affect your employment policies? Please contact Joseph F. Spitzzeri, co-chair of Johnson & Bell's Employment group.
