A federal appeals court said Friday it will rehear the case of an Illinois lawyer who claimed he didn’t get a job because he had too many years of experience, a dispute that tests the power of job applicants, not just current employees, to sue employers for alleged age discrimination.
The U.S. Court of Appeals for the Seventh Circuit, sitting en banc, will take up Dale Kleber’s case against CareFusion Corp. The longtime attorney sued the company after he wasn’t hired for a senior counsel position that included a seven-year experience cap.
A three-judge panel, ruling for Kleber in April, said the Age Discrimination in Employment Act of 1967 protects both outside job applicants and current employees. CareFusion’s lawyers at Ogletree, Deakins, Nash, Smoak & Stewart had asked the full appeals court to toss the panel decision and rehear the dispute. New Jersey-based Becton, Dickinson and Co. is the parent corporation of CareFusion.
CareFusion’s attorneys argued the panel decision “conflicts with multiple prior judicial decisions, creates a circuit split, threatens serious adverse consequences for employers, and is wrong on the merits.” The attorneys pointed to, among other things, an Eleventh Circuit ruling in 2016—Villarreal v. R.J. Reynolds Tobacco—that barred would-be employees from suing.
Kleber, who has more than 25 years experience in the law and business, sued CareFusion in 2015. Kleber, who was 59 then, said he was not contacted for an interview and cited the “seven-year” experience cap listed in the job posting.
The company’s attorneys contend that the in-house counsel post was an “entry-level position that would have less complex job duties” and would be under the supervision of a higher-level attorney. The U.S. Chamber of Commerce, represented by Akin Gump Strauss Hauer & Feld, earlier filed a friend-of-the-court brief in favor of CareFusion.
Kleber’s lawyers at the AARP Foundation had urged the appeals court to keep in place the panel’s decision. They argued that disparate-impact claims under the ADEA “are just now beginning to emerge throughout the country” and that district courts in the Fifth and Ninth circuits have said job applicants could pursue age-discrimination claims.
The U.S. Equal Employment Opportunity Commission and worker-friendly advocates have trained a new focus in recent years on employment practices that can weed out older workers on the front-end. These include online applications that include required graduate dates, campus recruiting and maximum years of experience.
The number of age discrimination claims is expected to rise, with 10,000 baby boomers turning 65 every day, according to a 2010 Pew Research Center report. As of 2015, about 33 million Americans over age 55 were in the workforce, and that demographic is expected to make up a quarter of the entire U.S. labor force by 2019.
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