Age Discrimination Disparate Impact Claim for Failure-to-Hire

On April 26, 2018, the 7th Circuit held that the disparate impact provision of the Age Discrimination in Employment Act ("ADEA") protects both outside job applicants and current employees from employment practices that have a disparate impact on older workers.  Kleber v. CareFusion Corporation, No. 17-1206 (7th Cir. 4/26/2018).  The ADEA prohibits employment practices that discriminate intentionally against older workers as well as employment policies that are facially neutral but have a disparate impact on older workers.  In this case, the 7th Circuit recognized a cause of action under the ADEA for disparate impact failure-to-hire, in the context of a hiring policy which limited the applicant pool for an attorney position to applicants with three to seven years (but no more than seven years) of legal experience.

The plaintiff, a 58-year-old attorney with more than seven years of legal experience, applied for but was denied the position, which the defendant filled with a 29-year-old attorney.  Challenging the seven-year experience cap as an unlawful employment practice, the plaintiff filed a charge of age discrimination with the EEOC, and subsequently filed an age discrimination lawsuit in federal court.  The district court dismissed the plaintiff's disparate impact claim for failure to state a claim upon which relief may be granted.  In reversing the district court's dismissal, the 7th Circuit considered the larger context and congressional intent of the ADEA as well as the U.S. Supreme Court's interpretation of identical disparate impact language in Title VII of the Civil Rights Act of 1964.  In rejecting the defendant's "narrow" reading of the ADEA's disparate impact provision, the 7th Circuit stated that, "[t]o adopt the defendant's reading of paragraph (a) (2), we would have to find that the ADEA's protection of the employment opportunities of any individual prohibits employment practices with disparate impacts in firing, promoting, paying, or managing older workers, but not in hiring them," which would be contrary to the goal of the ADEA to prevent age discrimination in hiring.