7th Circuit Holds That Experience Limits May Violate ADEA

by McGuireWoods LLP

On April 26, 2018, in Kleber v. CareFusion Corporation, the 7th U.S. Circuit Court of Appeals held that job applicants can pursue age discrimination claims under a disparate impact theory and that a practice of excluding job applicants who exceed a maximum level of experience could be unlawful. In reaching this conclusion, the 7th Circuit becomes the first federal appellate court to extend the disparate impact provisions of the Age Discrimination in Employment Act (ADEA) to job applicants and the second court in the past 15 months to find that common hiring practices may violate the ADEA.

In Kleber, the 58-year-old plaintiff applied for a senior counsel position with CareFusion. The job posting for the position stated that applicants must have “3 to 7 years (no more than 7 years) of relevant legal experience.” Despite his strong credentials and significant work experience spanning over three decades, the plaintiff was not selected for an interview. He subsequently filed a lawsuit challenging CareFusion’s seven-year experience cap as unlawful under the ADEA’s disparate impact provision.

The district court granted CareFusion’s motion to dismiss, interpreting the ADEA’s disparate impact provision to apply only to current and former employees, not to mere job applicants. The 7th Circuit, however, disagreed with the district court’s interpretation of the ADEA and reversed the dismissal of the plaintiff’s claims. In a lengthy analysis of the ADEA’s disparate impact provision, the court first pointed out that the plain language of the statute affords protection to “any individual,” not just “employees.” The 7th Circuit also looked to court interpretations of the disparate impact provisions of Title VII, which allow both employees and job applicants to bring claims. The court then turned to the consequences of the competing interpretations, finding that permitting employees but not job applicants to bring disparate impact claims would be an “arbitrary and even baffling” result. Finally, the 7th Circuit examined the underlying purposes of the ADEA, which included eliminating barriers to older employees finding jobs. All of these approaches, the court held, supported allowing the plaintiff’s disparate impact claim to proceed.

The 7th Circuit remanded the case to the district court, noting that its decision “do[es] not address possible affirmative defenses [under the ADEA], including the defense that the challenged practice was ‘based on reasonable factors other than age.’”  In other words, the decision allows CareFusion to defend its experience requirement in the trial court but potentially places the burden on CareFusion to justify the experience-level cap.

The Kleber holding directly conflicts with the 11th Circuit’s holding in Villarreal v. R.J. Reynolds Tobacco Co., which held that only current or former employees could bring disparate impact claims under the ADEA. However, it is consistent with a 2017 ruling from a federal district court in California, which held that job applicants could challenge, under a disparate impact theory, an accounting firm’s practice of recruiting exclusively from colleges and universities for entry-level positions. (See McGuireWoods’ March 2017 legal alert “Are College Recruiting Programs Age Discrimination?”) Thus, the Kleber ruling could give the green light to additional disparate impact claims challenging recruiting and hiring practices.

The Kleber ruling also creates a split between the 7th and 11th Circuits. While other circuits have yet to weigh in on whether job applicants may assert disparate impact claims under the ADEA, a deepening schism between the courts of appeal on this issue could set the stage for Supreme Court review.

The Kleber decision signals to employers both within and outside of the 7th Circuit that they should be concerned not only about whether they are intentionally discriminating against older job applicants, but about whether their hiring and recruiting practices have a negative impact on this class of applicants, regardless of the purpose or intent. The experience cap at issue in Kleber is only one example of such a practice that likely does not have a discriminatory purpose but may have a disparate impact. Because Kleber opens the door for disappointed job applicants to sue under the ADEA’s disparate impact provisions, employers should re-evaluate their hiring practices to avoid potential lawsuits.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McGuireWoods LLP | Attorney Advertising

Written by:

McGuireWoods LLP

McGuireWoods LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.