Do employers violate the Age Discrimination In Employment Act (ADEA) in only recruiting at college campuses or turning away applicants for having too much experience? The Seventh Circuit has a simple answer to that question, in a ruling on January 23, 2019, that the federal age discrimination law does not protect older applicants from the unintended discriminatory effects of seemingly neutral employment policies. Kleber v. Care Fusion Corp., 2019 B.L. 21526 (C.A. 7, en banc 1/23/19). In this particular case, there was no question of disparate treatment of the applicant (i.e., intentional discrimination), but instead the claim was whether the ADEA applied to "disparate impact" or inadvertent discrimination cases, which nevertheless have an adverse effect on older applicants. The 8-4 decision by the full U.S. Court of Appeals for the Seventh Circuit reverses an April 27, 2018 ruling by a three-judge panel of the court. The disparate impact ruling was consistent with the Atlanta-based Eleventh Circuit ruling in Villarreal v. R.J. Reynolds Tobacco Co. case, thus avoiding a split in circuit court rulings that might have made it more likely for the Supreme Court to review the issue.
The Eleventh Circuit had ruled that an employer's instruction to recruiters that they should target candidates two to three years out of college and to avoid applicants with more than eight years' experience, did not violate the ADEA.
Editor's Note: Litigation of the issues may continue at least in other circuits. Further, employers should be aware that the ruling only deals with "disparate impact" situations, and not to cases involving intentional discrimination on the basis of age against job applicants. Further, the adverse impact type of case still protects existing employees (as opposed to applicants) from the "disparate impact" theory of employment discrimination.
In a related development, the U.S. Supreme Court ruled at the end of last year that the ADEA protects state and local government workers against age discrimination regardless of the size of their employer. Mt. Lemmon Fire Dist. v. Guido No. 17-587 (11/6/18). The ADEA was interpreted to cover all public sector workers, even though it only applies to private-sector employers with 20 or more employees.