Disparate impact discrimination claims involve allegations of bias based not on intentional conduct, but rather otherwise neutral policies that have a statistically significant negative result with respect to persons in a protected classification. Several years ago in its Smith v. City of Jackson decision, the U.S. Supreme Court approved the use of the disparate impact theory in age discrimination claims. Last month, a federal appellate court took the next step, applying this reasoning to a disparate impact age claim brought by a rejected applicant for employment.
 
In Kleber v. CareFusion Corp., the plaintiff applied for an in-house legal position advertised as open to applicants with between three and seven years’ work experience. After he was rejected, the plaintiff filed an age discrimination claim, alleging that the maximum experience criteria resulted in a disparate impact against older applicants. The employer countered, claiming that City of Jackson only applies to disparate impact claims filed by current employees, not applicants for employment.
 
The Seventh Circuit rejected this defense, remanding the matter for further proceedings. The court noted that the relevant portions of Title VII and ADEA are similar, meaning that Title VII’s long-recognized coverage of applicants for employment should carry over to age claims. In addition, the Seventh Circuit could find no logical reason why ADEA should be read to allow disparate impact discrimination against older persons seeking work. To do so would defeat a major purpose of the law.
 
Employers should review their hiring criteria to make certain that employment qualifications are age neutral, and that they are based on legitimate business reasons necessary for performance of those jobs. Maximum experience criteria should be avoided except in very specific and unusual job situations.

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