Kleber v. CareFusion Corp., No. 17-1206 (7th Cir. Apr. 27, 2018), is an important new decision on the scope of protections afforded older workers under the federal Age Discrimination in Employment Act. Dale Kleber was rejected for a position as senior counsel that required applicants to have three to seven years of experience. In his suit, he has alleged that the seven-year cap has an unlawful disparate impact on older workers. In allowing Kleber to proceed with his claim, the Seventh Circuit has set up a circuit split with the Eleventh Circuit, which could lead to Supreme Court review if not reversed by the full Seventh Circuit. The key issue here is whether the ADEA allows disparate impact claims by applicants.
Notably, the disparate impact provision of the ADEA refers to a practice that limits, segregates, or classifies an employer's "employees," whereas Title VII of the Civil Rights Act of 1964 refers to a practice that limits, segregates, or classifies an employer's "employees or applicants for employment."
One response is to say that the difference is essentially meaningless. The reference to "applicants" in Title VII was only added in 1972, and that was after the Supreme Court had already interpreted the disparate impact provision to apply to employees in Griggs v. Duke Power Co. Thus, based on this view, the addition of "applicants" by Congress did not have any effect of Title VII's coverage of disparate impact claims. In rejecting this argument, the Eleventh Circuit concluded that Griggs was not about applicants, so they were only protected after the 1972 amendment.
But even if you accept that Griggs was about applicants, it still can be distinguished. In Gross v. FBL Financial Services, the Supreme Court concluded that the ADEA requires but-for causation because, unlike Title VII, Congress did not amend it in 1991 to specify that "motivating factor" causation is all that is needed. But wait, in 1989 in Price Waterhouse v. Hopkins, the Supreme Court had already determined that Title VII requires only motivating-factor causation. If the Supreme Court concluded in Gross that a congressional amendment to Title VII, but not the ADEA, to explicitly adopt the Price Waterhouse motivating factor standard was meaningful, then it may feel the same about the 1972 amendment to adopt coverage of applicants under Griggs. If so, older applicants would be out of luck when it comes to disparate impact claims under federal law.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.