Seventh Circuit Reverses Course in Finding ADEA’s Disparate Impact Provision Does Not Cover Applicants

On rehearing, the full U.S. Court of Appeals for the Seventh Circuit reversed a prior ruling by a three-judge panel of that court in Kelber v. CareFusion Corp. (which we discussed in our April 2018 E-Update) and has now held that the disparate impact protections of the Age Discrimination in Employment Act do not extend to applicants.

The Seventh Circuit now agrees with the Ninth Circuit that the plain language of ADEA’s disparate impact provision establishes that Congress intentionally excluded applicants from coverage. Under this provision, employers may not “limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” The Seventh Circuit further noted that Congress had chosen to amend Title VII to add “applicants” to that law, but had not done so with regard to ADEA.