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Seventh Circuit Holds that Age Discrimination Law Does Not Apply to Job Applicants

The Age Discrimination in Employment Act (ADEA) is a federal statute that makes it illegal for an employer to discriminate against its employees on the basis of age. Specifically, the ADEA prohibits employers from providing disparate treatment to employees who are 40 years old and older compared to how the employer treats younger employees.

In the case of Kleber v. CareFusion Corp., a 58-year-old attorney sued a potential employer arguing that the company violated the ADEA during the job application process. The specific job posting was for a senior in-house legal counsel role, and the published description stated that applicants needed to have “3 to 7 years (no more than 7) of relevant legal experience.” The plaintiff had more than seven years of experience, and the company hired a 29-year-old applicant without even interviewing the plaintiff.

The plaintiff filed suit in the U.S. District Court for the Northern District of Illinois claiming that the 7-year cap on experience created disparate treatment on the basis of age that effectively excluded lawyers 40 years old and older from applying. The specific section of the ADEA at issue provides that employers may not “limit, segregate, or classify [its] 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 District Court dismissed the case, and the Seventh Circuit Court of Appeals initially reversed the dismissal in a panel decision issued in April 2018. However, the Seventh Circuit agreed to rehear the case en banc, and, on January 23, 2019, the court issued an 8-4 opinion that affirmed the lower court’s dismissal. The court’s majority opinion held that a plain reading of the relevant portion of the ADEA, along with the legislative intent behind the law, provides protection only for current employees and not job applicants.

The Seventh Circuit’s decision in Kleber follows a 2018 opinion from the Eleventh Circuit Court of Appeals, Villareal v. R.J. Tobacco Co., where the court held that the ADEA applies only to current employees and does not extend to job applicants.