Age Bias Protections Restricted for Job Applicants, 7th Circuit Rules
Author: David B. Weisenfeld, XpertHR Legal Editor
January 25, 2019
The Age Discrimination in Employment Act (ADEA) does not extend to outside job applicants who claim they have been victimized by disparate impact discrimination, the 7th Circuit Court of Appeals has held.
The Chicago-based appellate court ruled 8-4 that a jilted job applicant for an in-house legal position could not sue CareFusion Corporation for passing him over in favor of a much younger, less experienced candidate.
The job description required applicants to have "3 to 7 years (no more than 7 years) of relevant legal experience." The plaintiff was 58 at the time he applied and had more than seven years of pertinent experience. He was passed over in favor of a 29-year-old applicant who met but did not exceed the experience requirement.
But the 7th Circuit held that the ADEA's disparate impact provision applies only to employees and does not extend to outside applicants for employment. The appellate court reasoned that Congress specifically extended Title VII of the Civil Rights Act to add "applicants" but had never done so in the same way with the ADEA.
The plaintiff argued that Congress intended to broadly prohibit age discrimination and that the ADEA should be read that way. The court disagreed, but at the same time made clear that the ADEA's disparate treatment provision, by its terms, covers both employees and applicants.
Chicago employment attorney Stacey Smiricky, a partner with Faegre Baker Daniels, expressed surprise that the 7th Circuit did not side with the applicant. But she downplayed the ruling's impact in saying, "Older workers still have potential disparate treatment claims."
Smiricky cautioned that all employers must still be mindful of hiring decisions that treat older workers differently. She noted, "At the end of the day, employers should ask themselves, 'Am I excluding workers simply because of their age?'"
A dissenting judge called the appellate court's ruling "naïve," and said there was no reason why Congress might have chosen to allow disparate impact claims by current employees, including internal job applicants, while excluding outside job applicants.