Common employment practices such as campus recruiting and experience caps would be exposed to extensive litigation if job applicants are allowed to hold employers liable for age discrimination, a management-side lawyer argued Thursday in a federal appeals court.
The U.S. Court of Appeals for the Seventh Circuit, sitting en banc, is weighing the scope of the federal Age Discrimination in Employment Act. A three-judge panel in April said the challenger, Dale Kleber, could sue CareFusion Corp. for denying him an in-house lawyer position.
David Schenberg, an Ogletree, Deakins, Nash, Smoak & Stewart shareholder, warned a ruling for Kleber would bring wide ramifications. The U.S. Chamber of Commerce made a similar argument in a friend-of-the-court brief in the case.
The oral argument Thursday centered around the interpretation of the Age Discrimination in Employment Act, the federal law that provides civil rights protections for older workers. Courts are divided over whether the law protects both prospective workers and actual employees.
Chief Judge Diane Wood of the Seventh Circuit asked AARP Foundation attorney Dara Smith, representing Kleber, whether campus recruiting would come under attack after any ruling for Kleber. “What if the employer says we’re going to go to campuses and not an old folks home?” Wood said.
Smith said campus recruiting would not be outlawed. The subtleties will be clear, Smith argued, as they are in states that protect older job applications.
Kleber was 58 when he applied to CareFusion, which set a seven-year experience cap on a post for “senior counsel, procedural solutions.” Kleber had more than 25 years of law firm and in-house experience. He alleged the “no more than seven years of experience” requirement disproportionately screens out older applicants.
“If an employer has hard caps, they will have to explain why that makes sense,” Smith said. She added, “We brought this case because we believe it is not reasonable. The problem is that he can’t even bring his claim. He won’t have the chance to argue why it’s reasonable.”
Wood asked Schenberg about why states such as California—which have laws that cover older job applicants—have not seen the “parade of horribles” that the U.S. Chamber and CareFusion fear.
“Has California shut down? Do companies there not have the ability to go to colleges?” Wood asked. She added, “As a practical matter, I want to understand how big it is.”
Schenberg said the plaintiffs bar will see campus recruiting as a clear indicator of disparate impact in favor of younger workers, since few people over 40 years old are still in college.
“It will mean expensive litigation and extensive discovery and that will likely happen before the employer can extricate from anything,” he said.
The majority of the argument centered around the language of the federal statute protecting older workers and whether Congress intended to include applicants or just employees in the protections. Title VII, unlike the ADEA, expressly protects applicants as well as employees for claims regarding race, national origin, sex and religion.
The AARP Foundation has focused on the question presented in Kleber’s case in recent years, and noted in a recent report that there is a divide in appeals courts over the question. The Eleventh Circuit ruled against protections for job applicants in Villarreal v. R.J. Reynolds Tobacco. The Supreme Court declined to take up that case.
The AARP Foundation has also argued in Rabin v. PriceWaterhouseCoopers, in California federal district court, that the company’s practice of exclusive campus recruiting and requiring applicants to be affiliated with a university discriminates against older applicants. PriceWaterhouseCoopers, represented by Kirkland & Ellis, in July defeated a class certification motion.
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