Michael Y. Scudder during his confirmation hearing before the Senate Judiciary Committee to be U.S. circuit judge for the Seventh Circuit, on March 21, 2018. Photo by Diego Radzinschi. 

Updated Jan. 24

A divided federal appeals court Wednesday issued a broad decision rejecting claims from a lawyer that he should be allowed as a job applicant to bring age-discrimination claims for an in-house position he was not offered.

The U.S. Court of Appeals for the Seventh Circuit, sitting en banc, upheld a trial judge’s ruling that said Illinois lawyer Dale Kleber could not bring “disparate impact liability” claims against a company that declined to hire him.

Kleber, who was 58 years old when he applied for a senior counsel position at the medical supply company CareFusion Corp., claimed a seven-year experience cap was discriminatory against older applicants. The appeals court concluded the Age Discrimination in Employment Act protects workers—not applicants—against alleged age bias.

Seventh Circuit Judge Michael Scudder, a former Skadden, Arps, Slate, Meagher & Flom partner appointed to the bench by President Donald Trump, wrote the majority decision. The full court heard the case in September.

The Age Discrimination in Employment Act “makes clear that Congress, while protecting employees from disparate impact age discrimination, did not extend that same protection to outside job applicants,” Scudder wrote. He said the decision was grounded in the “plain language” of the law and “reinforced by the ADEA’s broader structure and history.”

Lawyers for CareFusion, represented by a team from Ogletree, Deakins, Nash, Smoak & Stewart, were not immediately reached for comment. Dara Smith of the AARP Foundation Litigation advocated for Kleber. Smith said in a statement Thursday:

“We strongly disagree with the decision and find it very disheartening that the Court interpreted a civil rights law so narrowly, despite the statutory language and the great weight of Supreme Court precedent. Mr. Kleber and all older jobseekers deserve all of the protections Congress intended to give them. As of now, we are considering our options for next steps.”

Kleber’s attorneys had argued older employees and applicants should enjoy similar protections accorded to workers under Title VII of the Civil Rights Act, which forbids discrimination on the basis of race, color, religion, sex and national origin. Title VII extends protections to job applicants.

“Today’s decision, while unfavorable to Kleber, leaves teeth” in the section of the Age Discrimination in Employment Act that was challenged, Scudder wrote. That section makes it unlawful for any 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.”

“The provision protects older employees who encounter age-based disparate impact discrimination in the workplace. And Congress, of course, remains free to do what the judiciary cannot—extend [the law] to outside job applicants, as it did in amending Title VII,” Scudder wrote.

Seventh Circuit Judge David Hamilton wrote in a dissent that protections should extend to both applicants and employees. He was joined by three other judges, including Chief Judge Diane Wood.

Hamilton argued that permitting job applicants to be protected under the ADEA “avoids drawing an utterly arbitrary line.”

“Neither the defendant nor its amici have offered a plausible policy reason why Congress might have chosen to allow disparate-impact claims by current employees, including internal job applicants, while excluding outside job applicants,” Hamilton wrote. “The en banc majority does not even try to do so, following instead a deliberately naïve approach to an ambiguous statutory text, closing its eyes to fifty years of history, context, and application.”

Kleber, who has more than 25 years experience in law and business, sued CareFusion in 2015. He claimed was not contacted for an interview and cited the “seven-year” experience cap listed in the job posting. A 29-year-old was hired for the job, according to court filings.

Lawyers for CareFusion said 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 support of CareFusion.

Kleber’s lawyers at the AARP Foundation had urged the Seventh Circuit en banc court to keep in place the decision of a three-judge panel that favored broad protections for applicants and employees alike.

His attorneys 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. In 2016, an Eleventh Circuit rulingVillarreal v. R.J. Reynolds Tobacco—barred would-be employees from suing, as well. The U.S. Supreme Court declined to take up that case on appeal.

The U.S. Equal Employment Opportunity Commission and worker-friendly advocates have put a new focus in recent years on employment practices that can eliminate older workers on the front end. These include online applications that include required graduate dates, campus recruiting and maximum years of experience.


The Seventh Circuit’s decision is posted in full below:




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