ADEA Protects Applicants as Well as Employees from Disparate Impact

The U.S. Supreme Court had previously ruled that the Age Discrimination in Employment Act prohibits employment practices that disparately impact older employees, and the U.S. Court of Appeals for the Seventh Circuit has now expanded that ruling to include applicants.

The Seventh Circuit, in Kleber v. CareFusion Corp., found that, although ADEA’s disparate impact provision does not expressly reference applicants, the broad language of the statute could be read to cover such individuals. Limiting the language to current employees would “leave a wide array of discriminatory hiring practices untouched.” Moreover, internal job applicants would have the ability to sue while outside applicants would not – an arbitrary result. The Seventh Circuit found that, in enacting ADEA, Congress was specifically concerned about the difficulty for older workers “to find jobs.” Furthermore, the Seventh Circuit found parallels between the language of Title VII and the ADEA, and the Supreme Court has recognized disparate impact claims for applicants under Title VII.

Notably, this ruling sets up a split among the federal appellate courts, with the Ninth Circuit coming to the opposite conclusion in the 2016 case of Villarreal v. R.J. Reynolds Tobacco Co. Accordingly, this issue may ultimately need to be resolved by the U.S. Supreme Court.