7th Circuit Rules Age Discrimination Law Does Not Include Job Applicants

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

The US Court of Appeals for the Seventh Circuit decided in Kleber v. CareFusion Corporation last Wednesday that disparate impact liability under the Age Discrimination in Employment Act (ADEA) applies only to current employees and does not include  job applicants.

The case was brought by Dale Kleber, an attorney, who applied for a senior position in CareFusion’s legal department. The job description required applicants to have “3 to 7 years (no more than 7 years) of relevant legal experience.”

Kleber was 58 at the time he applied and had more than seven years of pertinent experience. CareFusion hired a 29-year-old applicant who met but did not exceed the experience requirement.

Kleber filed suit, pursuing claims for both disparate treatment and disparate impact under the ADEA. The Chicago Tribune notes in Hinsdale man loses appeal in age discrimination case that challenged experience caps in job ads that “Kleber had out of work and job hunting for three years” when he applied for the CareFusion job.

Some Basics

Let’s start with some basics, as the US Equal Employment Opportunity Commission (EEOC) set out in a brief primer on basic US age discrimination law entitled Questions and Answers on EEOC Final Rule on Disparate Impact and “Reasonable Factors Other Than Age” Under the Age Discrimination in Employment Act of 1967. The EEOC began with a brief description of the purpose of the ADEA:

The purpose of the ADEA is to prohibit employment discrimination against people who are 40 years of age or older. Congress enacted the ADEA in 1967 because of its concern that older workers were disadvantaged in retaining and regaining employment. The ADEA also addressed concerns that older workers were barred from employment by some common employment practices that were not intended to exclude older workers, but that had the effect of doing so and were unrelated to job performance.

It was with these concerns in mind that Congress created a system that included liability for both disparate treatment and disparate impact. What’s the difference between these two concepts?

According to the EEOC:

[The ADEA] prohibits discrimination against workers because of their older age with respect to any aspect of employment. In addition to prohibiting intentional discrimination against older workers (known as “disparate treatment”), the ADEA prohibits practices that, although facially neutral with regard to age, have the effect of harming older workers more than younger workers (known as “disparate impact”), unless the employer can show that the practice is based on an [Reasonable Factor Other Than Age (RFAO)]

The crux: it’s much easier for a plaintiff to prove disparate impact, because s/he needn’t show that the employer intended to discriminate. Of course, many if not most employers are savvy enough not to be explicit about their intentions to discriminate against older people as they don’t wish to get sued.

District, Panel, and Full Seventh Circuit Decisions

The district court dismissed Kleber’s disparate impact claim, on the grounds that the text of the statute- (§ 4(a)(2))- did not extend to outside job applicants. Kleber then voluntarily dismissed his separate claim for disparate treatment liability to appeal the dismissal of his disparate impact claim. No doubt he was aware – either because he was an attorney, or because of the  legal advice received – that it is much more difficult to prevail on a disparate treatment claim, which would require that he establish CareFusion’s intent to discriminate.

Or at least that was true before this decision was rendered.

Unfortunately, the seventh circuit has now held  that the disparate impact section of the ADEA does not extend to job applicants. .Judge Michael Scudder, a Trump appointee, wrote the majority 8-4 opinion, which reverses an earlier 2-1 panel ruling last April in Kleber’s favor that had initially overruled the district court’s dismissal of Kleber’s disparate impact claim.

The majority ruled:

By its terms, § 4(a)(2) proscribes certain conduct by employers and limits its protection to employees. The prohibited conduct entails an employer acting in any way to limit, segregate, or classify its employees based on age. The language of § 4(a)(2) then goes on to make clear that its proscriptions apply only if an employer’s actions have a particular impact— “depriv[ing] or tend[ing] to deprive any individual of em- ployment opportunities or otherwise adversely affect[ing] his status as an employee.” This language plainly demonstrates that the requisite impact must befall an individual with “status as an employee.” Put most simply, the reach of § 4(a)(2) does not extend to applicants for employment, as common dictionary definitions confirm that an applicant has no “status as an employee.” (citation omitted)[opinion, pp. 3-4]

By contrast, in the disparate treatment part of the statute (§ 4(a)(1)):

Congress made it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privi- leges of employment, because of such individual’s age.”[opinion, p.6]

The court compared the disparate treatment section – § 4(a)(1) – directly with the disparate impact section – § 4(a)(2):

Yet a side-by-side comparison of § 4(a)(1) with § 4(a)(2) shows that the language in the former plainly covering appli-cants is conspicuously absent from the latter. Section 4(a)(2) says nothing about an employer’s decision “to fail or refuse to hire … any individual” and instead speaks only in terms of an employer’s actions that “adversely affect his status as an employee.” We cannot conclude this difference means nothing: “when ‘Congress includes particular language in one section of a statute but omits it in another’—let alone in the very next provision—the Court presumes that Congress intended a difference in meaning.” (citations omitted)[opinion, pp. 6-7]

The majority’s conclusion:

In the end, the plain language of § 4(a)(2) leaves room for only one interpretation: Congress authorized only employees to bring disparate impact claims.[opinion, p.8]

Greying of the Workforce

Older people account for a growing percentage of the workforce, as Reuters reports in Age bias law does not cover job applicants: U.S. appeals court:

People 55 or older comprised 22.4 percent of U.S. workers in 2016, up from 11.9 percent in 1996, and may account for close to one-fourth of the labor force by 2022, according to the Bureau of Labor Statistics.

The greying of the workforce is “thanks to better health in older age and insufficient savings that require people to keeping working longer,” according to the Chicago Tribune. Yet:

numerous hiring practices are under fire for negatively impacting older applicants. In addition to experience caps, lawsuits have challenged the exclusive use of on-campus recruiting to fill positions and algorithms that target job ads to show only in certain people’s social media feeds.

Unless Congress amends the ADEA to include job applicants, older people will continue to face barriers to getting jobs.

The Chicago Tribune reports:

The [EEOC], which receives about 20,000 age discrimination charges every year, issued a report in June citing surveys that found 3 in 4 older workers believe their age is an obstacle in getting a job. Yet hiring discrimination is difficult to prove and often goes unreported. Only 3 percent have made a formal complaint. Allowing older applicants to challenge policies that have an unintentionally discriminatory impact would offer another tool for fighting age discrimination, Ray Peeler, associate legal counsel at the EEOC, has said.

How will these disparate impact claims now fare?

The Bottom Line

FordHarrison, a firm specialising in human relations law, noted in Seventh Circuit Limits Job Applicants’ Age Discrimination Claims:

The decision narrowly applies to disparate impact claims of age discrimination under the ADEA. It is important to remember that job applicants are protected under the disparate treatment portion of the statute. There is no split among the federal appeals courts on this issue, making it an unlikely candidate for Supreme Court review, but the four judges in dissent read the statute as being vague and susceptible to an interpretation that includes job applicants.

Their conclusion: “a decision finding disparate impact liability for job applicants under the ADEA is unlikely in the near future.”

Alas, for reasons of space, I will not consider the extensive dissent. My purpose in writing this post is to discuss the majority decision, not to opine on which side made the better arguments.

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  1. antidlc

    8-4 opinion. Which judges ruled for the majority? Which judges ruled for the minority opinion?

    Sorry,,,don’t have time to research right now.

    It says a Trump appointee wrote the majority opinion. Who were the other 7?

    1. grayslady

      There were 3 judges who dissented in whole and one who dissented in part. Of the three full dissensions, two were Clinton appointees (including the Chief Justice, who was one of the dissenters) and one was a Reagan appointee. The partial dissenter was also a Reagan appointee.

    2. run75441


      Not your law clerk, read the opinion. Easterbook and Wood dissented. Find the other two and and you can figure out who agreed.

  2. YankeeFrank

    “depriv[ing] or tend[ing] to deprive any individual of employment opportunities or otherwise adversely affect[ing] his status as an employee.”

    –This language plainly demonstrates that the requisite impact must befall an individual with “status as an employee.”

    So they totally ignore the first part of the sentence — “depriv[ing] or tend[ing] to deprive any individual of employment opportunities…” — “employment opportunities” clearly applies to applicants.

    Its as if these judges cannot make sense of the English language. Hopefully the judges on appeal will display better command of the language.

    1. Alfred

      I agree. “Employment opportunities,” in the “plain language” so meticulously respected by the 7th Circuit, must surely refer at minimum to ‘the chance to apply for a job and to have one’s application fairly considered’. It seems on the other hand a stretch to interpret the phrase to mean only ‘the chance to keep a job one already has’. Both are important, however; to split them would challenge even Solomonic wisdom, as I suppose the curious decision discussed here demonstrates. I am less convinced that the facts as presented here establish a clear case of age discrimination. True, they point in that direction. But a hypothetical 58-year old who only earned a law degree in his or her early 50s, perhaps after an earlier career in paralegal work, could have legitimately applied for a position requiring 3 to 7 years of “relevant legal experience.” That last phrase, is of course, quite weasel-y: what counts as “relevant” and what counts as “legal” experience would under any circumstances be subject to (discriminatory) interpretation. The limitation of years of experience in the job announcement strikes me as a means to keep the salary within a certain budgetary range as prescribed either by law or collective bargaining.

      1. KLG

        Almost like the willful misunderstanding of “A well regulated militia being necessary to the security of a free State…”? Of course, that militia also meant slave patrols and the occasional posse to put down the native “savages,” but still.

    2. Lambert Strether

      > “depriv[ing] or tend[ing] to deprive any individual of employment opportunities or otherwise adversely affect[ing] his status as an employee.”

      Says “or.” Not “and.”

      1. Knute Rife

        Yes, yet another example of selective strict construction by the strict constructionists. Scalia lives!

    3. InformaticsMD

      It seems the problem is the “or”, implying the whole sentence applies to an employee.

      Probably should have said “or otherwise affecting the status of someone already employed.”

      However my belief is that the intention was to apply to both.

  3. Magic Sam

    Being pro-Labor will not get you Federalist Society approval to be nominated to the bench by Trump.
    This decision came down via the ideological makeup of the court, not the letter of the law.
    Their stated pretext is obviously b.s.. It contradicts itself.

  4. Mattie

    Yep. That is when their Utah et al property mgt teams began breaking into homes, tossing contents – including pets – outside & changing locks

    …Even when borrowers were in approved HAMP, etc. pipelines

    PLUG: If you haven’t yet – See “The Florida Project”

  5. nothing but the truth

    as an aging “stem” (cough … coder) worker who typically has to look for a new “gig” every few years, i am trembling at this.

    Luckily, i bought a small business when I had a few saved up, so I won’t starve.

    Health insurance is another matter.

    I forbade my kids to study programming.

        1. Joe Well

          I’m re reading the classic of Sociology Ain’t No Makin It by Jay MacLeod, in which he studies the employment prospects of youths in the 1980s and determined that even then there was no stable private sector employment and your best option is a government job or to have an excellent “network” which is understandably hard for most people to achieve. So I’m genuinely interested in what possible options there are for anyone entering the job market today or God help you, re-entering. I am guessing the barriers to entry to those trades are quite high but would love to be corrected.

        2. jrs

          what is the point of being jackpot ready if you can’t even support yourself today? To fantasize about collapse while sleeping in a rented closet and driving for Uber? In that case one’s personal collapse has already happened, which will matter a lot more to an individual than any potential jackpot.

          Plumbers and electricians can make money now of course (although yea barriers to entry do seem high, don’t you kind of have to know people to get in those industries?). But permaculture?

    1. Ford Prefect

      I think the trick is to study something and programming, so the programming becomes a tool rather than an end.

      A couple of my kids used to ride horses. One of the instructors and stable owners said that a lot of people went to school for equine studies and ended up shoveling horse poop for a living. She said the thing to do was to study business and do the equestrian stuff as a hobby/minor. That way you came out prepared to run a business and hire the equine studies people to clean the stalls.

      1. jrs

        Do you actually see that many jobs requiring something and programming though? I haven’t really. There seems no easy transition out of software work which that would make possible either. Might as well just study the “something”.

        1. rd

          Programming is a means to an end, not the end itself. If all you do is program, then you are essentially a machine lathe operator, not somebody creating the products the lathe operators turn out.

          Understanding what needs to be done helps with structured programs and better input/output design. In turn, structured programming is a good tool to understand the basics of how to manage tasks. At the higher level, Fred Brooks book “The Mythical Man-Month” has a lot of useful project management information that can be re-applied for non computer program development.

          We are doing a lot of work with mobile computing and data collection to assist in our regular work. The people doing this are mainly non-computer scientists that have learned enough programming to get by.

          The engineering programs that we use are typically written more by engineers than by programmers as the entire point behind the program is to apply the theory into a numerical computation and presentation system.

          Programmers with a graphic design background can assist in creating much better user interfaces.

          If you have some sort of information theory background (GIS, statistics, etc.) then big data actually means something.

      2. nothing but the truth

        the problem is it is almost impossible to exit the programming business and join another domain.

        Anyone can enter it. (evidence – all the people with “engineering” degrees from India)

        Also my wages are now 50% of what i made 10 years ago (nominal). Also I notice that almost no one is doing sincere work. Most are just coasting, pretending to work with the latest toy (ie, preparing for the next interview).

        Now almost every “interview” requires writing a coding exam. Which other profession will make you write an exam for 25-30 year veterans?

        Can you write your high school exam again today? What if your profession requires you to write it a couple of times almost every year?

        1. jrs

          yea interviews have little to do with work. So I see why people are studying and memorizing instead of working (though it’s a sad life) because the actual skills used working (the ability to learn and figure things out as necessary, within reason) is not what’s tested, but raw memory of and pretending one has worked with every single damn thing.

    2. Hepativore

      I am an “aging” former STEM worker (histology researcher) as well. Much like the IT landscape, you are considered “over-the-hill” at 35, which I turn on the 31st. While I do not have children and never intend to get married, many biotech companies consider this the age at which a worker is getting long in the tooth. This is because there is the underlying assumption that is when people start having familial obligations. Most of the positions in science and engineering fields now are basically “gig” positions, lasting a few months to a year. A lot of people my age are finding how much harder it is to find any position at all in these areas as there is a massive pool of people to choose from, even for permatemp work simply because serfs in their mid-30s might get uppity about benefits like family health plans or 401k

  6. Steve

    I am 59 and do not mind having employers discriminate against me due to age. ( I also need a job) I had my own business and over the years got quite damaged. I was a contractor specializing in older (historical) work. I was always the lead worker with many friends and other s working with me. At 52 I was given a choice of very involved neck surgery or quit. ( no small businesses have disability insurance!) I shut down everything and helped my friends who worked for me take some of the work or find something else. I was also a nationally published computer consultant a long time ago and graphic artist. Reality is I can still do many things but I do nothing as well as I did when I was younger and the cost to employers for me is far higher than a younger person. I had my chance and I chose poorly. Younger people, if that makes them abetter fit, deserve a chance now more than I do.

    1. Joe Well

      I’m sorry for your predicament. Do you mean you chose poorly when you chose not to get neck surgery? What was the choice you regret?

      1. Steve

        My career choices. Choosing to close my business to possibly avoid the surgery was actually a good choice.

        1. Joe Well

          I’m sorry for your challenges but I don’t think there were many good careers you could have chosen and it would have required a crystal ball to know which were the good ones. Americans your age entered the job market just after the very end of the Golden Age of labor conditions and have been weathering the decline your entire working lives. At least I entered the job market when everyone knew for years things were falling apart. It’s not your fault. You were cheated plain and simple.

    2. Lambert Strether

      > I had my chance and I chose poorly.

      I don’t see how it’s possible to predict the labor market years in advance. Why blame yourself for poor choices when so much chance is involved?

      With a Jobs Guarantee, such questions would not arise. I also don’t think it’s only a question of doing, but a question of sharing (“experience, strength, and hope,” as AA — a very successful organization! — puts it, in a way of thinking that has wide application).

  7. Dianne Shatin

    Unelected plutocrat and his international syndicate funded by former IBM artificial intelligence developer and social darwinian. data manipulation electronic platforms and social media are at the levels of power in the USA. Anti justice, anti enlightenment, etc.

    Since the installation of GW Bush by the Supreme Court, almost 20 yrs. ago, they have tunneled deeply, speaking through propaganda machines such as Rush Limbaugh gaining traction .making it over the finish line with KGB and Russian oligarch backing. The net effect on us? The loss of all built on the foundation of the enlightenment and an exceptional nation …no king, a nation of, for and by the people, and the rule of law. There is nothing Judeo-Christian about social darwinism but is eerily similar to National Socialism (Nazis). The ruling againt the plaintiff by the 7th circuit in the U.S. and their success in creating chaos in Great Britain vis a vis “Brexit” by fascist Lafarge Inc. are indicators how easy their ascent.
    ows how powerful they have become.

  8. anon y'mouse

    They had better get ready to lower the SSI retirement age to 55, then. Or I predict blood in the streets.

  9. How is it legal

    Where are the Bipartisan Presidential Candidates and Legislators on oral and verbal condemnation of Age Discrimination, along with putting teeth into Age Discrimination Laws, and Tax Policy. – nowhere to be seen, or heard, that I’ve noticed; particularly in Blue™ California, which is famed for Age Discrimination of those as young as 36 years of age, since Mark Zuckerberg proclaimed anyone over 35, over the hill in the early 2000’s, and never got crushed for it by the media, or the Politicians, as he should have (particularly in Silicon Valley).

    I know those Republicans are venal, but I dare anyone to show me a meaningful Age Discrimination Policy Proposal, pushed by Blue Obama, Hillary, even Sanders and Jill Stein. Certainly none of California’s Nationally known (many well over retirement age) Gubernatorial and Legislative Democratic Politicians: Jerry Brown, Gavin Newsom, Dianne Feinstein, Barbara Boxer, Nancy Pelosi, Kamala Harris, and Ro Khanna (or the lesser known California Federal State and Local Democratic Politicians) have ever addressed it; despite the fact that homelessness deaths of those near ‘retirement age’ have been frighteningly increasing in California’s obscenely wealthy homelessness ‘hotspots,’ such as Silicon Valley.

    Such a tragic issue, which has occurred while the last over a decade of Mainstream News and Online Pundits, have Proclaimed 50 to be the new 30. Sadistic. I have no doubt this is linked to the ever increasing Deaths of Despair and attempted and successful suicides of those under, and just over retirement age– while the US has an average Senate age of 65, and a President and 2020 Presidential contenders, over 70 (I am not at all saying older persons shouldn’t be elected, nor that younger persons shouldn’t be elected, I’m pointing out the imbalance, insanity, and cruelty of it).

    Further, age discrimination has been particularly brutal to single, divorced, and widowed females, whom have most assuredly made far, far less on the dollar than males (if they could even get hired for the position, or leave the kids alone, and housekeeping undone, to get a job):

    Patrick Button, an assistant economics professor at Tulane University, was part of a research project last year that looked at callback rates from resumes in various entry-level jobs. He said women seeking the positions appeared to be most affected.

    “Based on over 40,000 job applications, we find robust evidence of age discrimination in hiring against older women, especially those near retirement age, but considerably less evidence of age discrimination against men,” according to an abstract of the study.

    Jacquelyn James, co-director of the Center on Aging and Work at Boston College, said age discrimination in employment is a crucial issue in part because of societal changes that are forcing people to delay retirement. Moves away from defined-¬benefit pension plans to less assured forms of retirement savings are part of the reason.

    1. Lambert Strether

      > “Based on over 40,000 job applications, we find robust evidence of age discrimination in hiring against older women, especially those near retirement age, but considerably less evidence of age discrimination against men,” according to an abstract of the study.

      Well, these aren’t real women, obviously. If they were, the Democrats would already be taking care of them.

    2. jrs

      From the article: The greying of the workforce is “thanks to better health in older age and insufficient savings that require people to keeping working longer,” according to the Chicago Tribune.

      Get on the clue train Chicago Tribune, because your like W and Trump not knowing how a supermarket works, that’s how dense you are. Even if one saved, and even if one won the luck lottery in terms of job stability and adequate income to save from, healthcare alone is a reason to work, either to get employer provided if lucky, or to work without it and put most of one’s money toward an ACA plan or the like if not lucky. Yes the cost of almost all other necessities has also increased greatly, but even parts of the country without a high cost of living have unaffordable healthcare.

  10. Enquiring Mind

    Benefits may be 23-30% or so of payroll and represent another expense management opportunity for the diligent executive. One piece of low-hanging fruit is the age-related healthcare cost. If you hire young people, who under-consume healthcare relative to older cohorts, you save money, ceteris paribus. They have lower premiums, lower loss experience and they rebound more quickly, so you hit a triple at your first at-bat swinging at that fruit. Yes, metaphors are fungible along with every line on the income statement.

    If your company still has the vestiges of a pension or similar blandishment, you may even back-load contributions more aggressively, of course to the extent allowable. That added expense diligence will pay off when those annuated employees leave before hitting the more expensive funding years.

    NB, the above reflects what I saw and heard at a Fortune 500 company.

    1. rd

      Another good reason for a Canadian style single payer system. That turns a deciding factor into a non-factor.

  11. Jack Hayes

    A reason why the court system is overburdened is lack of clarity in laws and regulations. Fix the disparity between the two sections of the law so that courts don’t have to decide which section rules.

  12. Jeff N

    Yep. Many police departments *legally* refuse to hire anyone over 35 years old (exceptions for prior police experience or certain military service)

    1. Joe Well

      It amazes me how often the government will give itself exemptions to its own laws and principles, and also how often “progressive” nonprofits and political groups will also give themselves such exemptions, for instance, regarding health insurance, paid overtime, paid training, etc. that they are legally required to provide.

    2. Ford Prefect

      There are specific physical demands in things like policing. So it doesn’t make much sense to hire 55 year old rookie policemen when many policemen are retiring at that age.

  13. Arthur Dent

    Its an interesting quandary. We have older staff that went back to school and changed careers. They do a good job and get paid at a rate similar to the younger staff with similar job-related experience. However, they will be retiring at about the same time as the much more experienced staff, so they will not be future succession replacements for the senior staff.

    So we also have to hire people in their 20s and 30s because that will be the future when people like me retire in a few years. That could very well be the reason for the specific wording of the job opening (I haven’t read the opinion). I know of current hiring for a position where the firm is primarily looking for somebody in their 20s or early 30s for precisely that reason. The staff currently doing the work are in their 40s and 50s and need to start bringing up the next generation. If somebody went back to school late and was in their 40s or 50s (so would be at a lower billing rate due to lack of job related experience), they would be seriously considered. But the firm would still be left with the challenge of having to hire another person at the younger age within a couple of years to build the succession. Once people make it past 5 years at the firm, they tend to stay for a long time with senior staff generally having been at the firm for 20 years or more, so hiring somebody really is a long-term investment.

  14. InformaticsMD

    It seems the problem is the “or”, implying the whole sentence applies to an employee.

    Probably should have said “or otherwise affecting the status of someone already employed.”

    However my belief is that the intention was to apply to both.

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