On January 23, 2019, the Seventh Circuit held that the ADEA’s prohibition of disparate impact discrimination does not extend to job applicants. Kleber v. CareFusion Corp., No. 17-cv-1206.

In Kleber, a 58-year-old attorney unsuccessfully applied for a General Counsel position within the Company’s law department. The job posting required applicants to have fewer than seven years of experience. Kleber had more than seven years of relevant experience. The position was received by a 29-year-old applicant. The company defended its experience maximum with its concern that an applicant with more experience would be unsatisfied working on the less complex duties associated with the position, which could lead to retention issues. Kleber filed suit under the ADEA, alleging disparate impact and disparate treatment theories. The district court dismissed the disparate impact claim on the grounds that the ADEA’s disparate impact protections do not extend to job applicants. A divided Seventh Circuit panel reversed that decision.

Sitting en banc, the Seventh Circuit concluded that ADEA’s disparate impact protections only apply to employees and not job applicants. The court pointed to the language in the ADEA’s disparate impact provision stating an employer may not take action which would “deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.” 29 U.S.C. § 632(a)(2) (emphasis added).

While consistent with other federal circuit court decisions, this ruling is at odds with EEOC guidance. The lack of a circuit split following this most recent decision makes it unlikely that the United States Supreme Court will weigh in on this question any time soon.

While this decision may prove useful for employers defending against federal disparate impact claims under the ADEA, employers should carefully review their hiring procedures to ensure compliance with state and local laws prohibiting age discrimination, as they may impose more stringent standards with respect to hiring practices. In addition, disparate impact theories remain available for job applicants asserting claims of discrimination under Title VII.