Older Job Seekers Gain Major Victory In Age Discrimination Case

AARP has led the fight for the rights of older workers in their relations with employers for decades, and in recent years has been building on its efforts to support older job applicants in their pursuit of career opportunities.

Last month, a federal court in Chicago delivered a major victory to older applicants. The case involved veteran attorney Dale Kleber, who faced a cutoff of seven years as a maximum experience for eligibility for a job he applied for.

Kleber, age 58, found himself searching for a new job after a long, successful career as an attorney. He applied to a "senior counsel, procedural solutions" position at CareFusion Corp. that solicited applicants with "no more than 7 years of experience," despite the position's description as a complex, interesting job with a great deal of autonomy.

Through his counsel, attorneys at AARP Foundation and a local Chicago attorney, Kleber brought an age discrimination suit, arguing that the seven year hard experience cap effectively weeded out all older applicants – a "disparate impact," claim. “Disparate impact” refers to seemingly neutral actions that have a disproportionate negative effect on a particular group, and in this case older applicants. But the trial court ruled against Kleber, and in the meantime, another federal court of appeals (the Eleventh Circuit) ruled that job applicants can never bring disparate impact claims under the Age Discrimination in Employment Act (ADEA).

Last month, the Seventh Circuit Court of Appeals said otherwise, holding in an exceptionally thorough opinion that the statute's text and purpose do allow older applicants like Kleber to challenge job requirements that unfairly weed out older workers even if those requirements don't state that they are age-based.

This major victory for older jobseekers is the first decision of its kind at the federal appellate level. It is also likely to end up in the Supreme Court eventually, as the courts of appeals have split. CareFusion has also filed a petition asking the full court—not just the three-judge panel that initially issued the decision—to rehear the case.

In the meantime, AARP Foundation Senior Attorney Dara Smith said the recent decision “upholds the letter and spirit of the ADEA by preserving the full range of protections Congress intended for older job applicants facing numerous barriers to finding work.”

• Reuters: Job applicants can bring ADEA disparate impact claims - 7th Circuit
• National Law Journal: Age Discrimination Law Protects Applicants, Not Just Employees: US Appeals Court