By: Carol G. Schley, Clark Hill PLC

A recent decision from the Seventh Circuit Court of Appeals held that disparate impact claims under the Age Discrimination in Employment Act (“ADEA”) are not only available to employees, but to job applicants as well.  Based upon this holding, the court allowed an older applicant’s claim against an employer to proceed, which alleged that a job description requiring a maximum level of experience adversely impacted older job applicants.

The case, Kleber v. CareFusion Corp., involved an experienced 58-year-old attorney who applied for an in-house counsel job at CareFusion.  While the job posting sought someone who could “assume complex projects,” it also stated that applicants should have “3 to 7 years (no more than 7 years) of relevant legal experience.”  Although Kleber had many more years of experience, he applied for the position.  He was not selected for an interview and CareFusion hired a 29-year-old for the position.

Kleber subsequently filed a lawsuit against CareFusion, asserting that the job description’s requirement of a maximum number of years of work experience was “based on unfounded stereotypes and assumptions about older workers, deters older workers from applying for positions … and has a disparate impact on qualified applicants over the age of 40.”  CareFusion argued that the maximum experience requirement was lawful because CareFusion was concerned that more experienced workers would “not be satisfied” with the job’s “less complex duties,” leading to retention issues.  CareFusion also argued that, based upon the language of the ADEA, only employees, not job applicants, could assert claims of disparate impact under the statute.  In the trial court, CareFusion prevailed, and Kleber’s lawsuit was dismissed.  However, on appeal, the 7th Circuit Court of Appeals reversed.

The language of the ADEA analyzed by the Court of Appeals was 29 U.S.C. §623(a)(2), which  provides that it is unlawful for an employer “to 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….”  CareFusion argued that because this section of the ADEA did not specifically reference job applicants, its protections did not extend to them.  CareFusion also cited a 2016 case from the 11th Circuit which supported its argument that disparate impact claims could not be brought by job applicants.  However, the court rejected CareFusion’s arguments, finding that the statute’s “broad language easily reaches employment practices that hurt older job applicants as well as current employees.”  The court held that where an employer requires a minimum or maximum number of years of experience for a position, it is “classifying its employees” as that phrase is used in the statute. The court further held that the phrase “any individual” in the statute is broad and includes job applicants.  Thus, the court held that the ADEA covered the situation at issue before it, i.e., where the employer “classified” its employees in manner that required a maximum number of years of experience for a position, resulting in an alleged disparate impact on older applicants, like Kleber.

The court further held that its conclusion was consistent with the purpose of the ADEA, which is “to prohibit arbitrary age discrimination in employment.”  According to the court, “[t]here can be no doubt that Congress enacted the ADEA to address unfair employment practices that make it harder for older people to find jobs.”   The Kleber court thus reversed the lower court’s dismissal of Kleber’s disparate impact claim, and allowed the claim to proceed to trial in the lower court.

While Michigan is not within the jurisdiction of the 7th Circuit Court of Appeals, the Kleber case is a reminder to employers that job requirements that appear neutral on their face may run afoul of the ADEA (and Michigan’s equivalent statute, the Elliott-Larsen Civil Rights Act) if, when applied, they tend to negatively impact employees and applicants on the basis of their age.  Therefore, employers should carefully review their employment practices and documents (job postings, job descriptions, employee handbooks, etc.) to ensure that they do not include requirements that may adversely impact individuals on the basis of their age or other protected classifications.  As it is not always easy to spot problematic areas that may run afoul of anti-discrimination laws, especially when the practice or language used is neutral on its face, it is advisable to undertake these tasks with the assistance of legal counsel.

Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC.  She can be reached at or (248)530-6338.                              

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article.  May 2018