Employment & Labor Insider

The U.S. Court of Appeals for the Seventh Circuit ruled last week that an outside job applicant can assert a "disparate impact" claim under the federal Age Discrimination in Employment Act.

"Disparate impact," as you may recall, applies when an employer's neutral policy or practice has a disproportionate negative effect on individuals in a given protected group. 

If an employer, say, had a job listing that said, "No one over 50 need apply," that would be what is called "disparate treatment," which is intentional discrimination against individuals because of their protected category.

On the other hand, if the job listing said, "video game fanatics only!," that is not an age-based requirement, but its effect might to exclude older applicants who grew up before Pong was invented and don't know anything about modern video games other than what they've seen their kids fooling around with. (Wow - this sounds strangely autobiographical!)

Fascinating.

In other words, the "video game fanatic" requirement could have a disparate impact on older applicants. If so, it could violate the ADEA even if the employer had no intention of discriminating against older applicants.

Kleber v. CareFusion

Dale Kleber, an age discrimination plaintiff I've written about here and here, sued CareFusion Corporation over its requirement that candidates for an in-house counsel position have at least three but no more than seven years of experience. Mr. Kleber was 58 years old and had vast, extensive experience as a lawyer and even as the CEO of a trade association, among other things. But he had been out of work for a while, so he applied for the CareFusion position.

The person who got the job was a 29-year-old lawyer with less than seven years of experience. Mr. Kleber didn't even get an interview. 

I assume the company used some algorithm to screen applicants, which didn't let Mr. Kleber get to first base because he had too much experience. (I don't know this for a fact - it's just my guess.) In any event, Mr. Kleber claimed in his lawsuit that the "seven-year cap" had a disparate impact on older applicants because their work experience would be more likely to exceed the cap.

But a federal district court in Chicago dismissed his lawsuit in the early stages. According to the district court, an outside job applicant can't sue for disparate impact under the ADEA.

Kind of weird, but the language of the ADEA seems to say that only current employees (which can include internal candidates for promotion) can sue for disparate impact, and courts are supposed to follow the language of the statute when it is clear.

But, logically, it doesn't make much sense to treat outside applicants differently from internal candidates. Outside applicants can face discrimination too, right? If disparate impact claims are allowed for current employees under the ADEA, then why shouldn't outside job applicants also be able to assert them? 

On appeal, a majority on the Seventh Circuit panel went with "logic" rather than the plain language of the statute. (They also made some other fairly strong arguments related to the way the Supreme Court interpreted nearly identical "plain" language in the context of a racial disparate impact case under Title VII, all of which you are invited to read in the court opinion.)

Level Two

So game is not over for Mr. Kleber, which means he is about to reach the next level (discovery). Will he win his case? It depends on whether he can overcome these hurdles:

First, he will have to prove that there was, indeed, actual disparate impact. We don't know whether there really is disparate impact is because we haven't seen the applicant pool. It could be that all of the other applicants who were rejected for having too much experience were 35 years old (roughly 10 years out of law school). It could also be that everyone who got an interview (except the 29-year-old who we know got the job) was a 50-year-old second-career lawyer with only five years' experience. In either case, there wouldn't be any disparate impact based on age.

Related to that point, the parties may have a battle over exactly how to show statistical disparate impact. What comparison is appropriate? Assuming that everybody who made it to the interview stage had 3-7 years of experience, should the comparison be between them and

*All applicants who did not make it to the interview stage? (Using this model, the "rejected" pool would arguably be too large because it would include people who were rejected for reasons that are unrelated to work experience.)

*All applicants who did not get an interview because they failed to meet the experience requirement? (Including applicants who were rejected for not having enough experience, again making the "rejected" pool too large?) or

*All applicants who did not get an interview because, like Mr. Kleber, they had more than seven years of experience? (Would this make the pool too small to be statistically significant?)

Second, even if there is disparate impact, CareFusion may be able to show that there were legitimate business justifications for the seven-year cap. My 2017 blog post speculated about what some of those justifications might be, from the standpoint of the employer. If CareFusion can do this, then Mr. Kleber would have to show that there was an alternative that could have met the business need but with a less "discriminatory" effect. My "video game fanatic" requirement could be legitimate even with disparate impact if, say, the ad was for a job as a reviewer for Official Xbox Magazine. Or if it turns out that enough older applicants are video game fanatics.

This should be an interesting case to watch, and watch it we shall.