Daily Labor Report®

Becton Unit Court Win Sets Job Seeker Age Bias Precedent (2)

Jan. 24, 2019, 1:53 PMUpdated: Jan. 24, 2019, 9:23 PM

A Becton Dickinson subsidiary doesn’t have to face a lawsuit alleging it inadvertently violated federal law by rejecting an older applicant for an in-house lawyer job because he had too much experience, a federal appeals court said in a ruling that pares back anti-bias protections.

The 8-4 decision by the full U.S. Court of Appeals for the Seventh Circuit in Chicago changes course from an April opinion by a three-judge panel of the court and avoids creating a circuit split with the Eleventh Circuit over the scope of federal age discrimination law.

The Age Discrimination in Employment Act doesn’t protect older applicants from the unintended discriminatory effects of seemingly neutral employment policies, known as disparate impact, the Seventh Circuit majority said Jan. 23. It only protects existing employees from that type of discrimination, it said.

The ruling should bolster employers’ on-campus recruiting and other long-standing hiring practices that target younger job seekers.

The Seventh Circuit panel’s disagreement with the Atlanta-based Eleventh Circuit on the question had created the possibility that the U.S. Supreme Court would be called on to settle whether the ADEA’s ban on inadvertent bias requires employers to keep an eye out for how their hiring policies may unfairly affect external job applicants. But the full court’s decision may decrease the odds of the justices taking up the issue any time soon.

Ruling May Be Far-Reaching

The Seventh Circuit’s ruling benefits all businesses in Illinois, Indiana, and Wisconsin with 20 or more employees that seek to hire recent graduates or other younger, less experienced workers.

And together with the Eleventh Circuit’s ruling, which directly applies to businesses in Alabama, Florida, and Georgia, it may lend support to U.S. employers in other states as well.

“Discrimination against applicants is the age discrimination problem,” Samuel Estreicher, a law professor and director of the Center for Labor and Employment Law at New York University, told Bloomberg Law.

An employer’s potential to face litigation for firing older workers creates barriers at the hiring phase, making it the locus of age discrimination in the workplace, Estreicher said. “Proving discriminatory intent in hiring is very difficult,” he said. “Disparate impact analysis is essential to reach policies, like ‘no lateral hiring’ and experience limits, that heighten those barriers.”

Corporate titans Hewlett Packard and PricewaterhouseCoopers are among the employers that currently are defending allegations that their on-campus or similar recruiting methods inadvertently violate the rights of older workers. Alphabet’s Google Inc. was similarly accused of using hiring practices that tended to illegally screen out older, more seasoned workers, but a federal court dismissed those claims.

The ruling doesn’t affect a lawsuit alleging Facebook enables employers to target job ads in discriminatory ways, since the plaintiffs dropped their disparate impact claims, said Peter Romer-Friedman, an attorney representing the plaintiffs in that case. The lawsuit, which doesn’t name Facebook as a defendant, focuses on ADEA claims of intentional bias and publishing discriminatory advertisements, Romer-Friedman told Bloomberg Law.

Employees Only

In the Seventh Circuit case, Dale Kleber failed to convince a majority of judges that Becton unit CareFusion Corp.’s job posting seeking workers with only limited experience for an in-house attorney opening may have been age biased. Kleber had extensive in-house and law firm experience when he was turned away by CareFusion in 2014.

The company’s job advertisement said only lawyers with three years to a maximum of seven years of relevant experience would be considered for the position. A federal trial court properly rejected Kleber’s allegations of disparate impact bias, the Seventh Circuit majority said. The ADEA provision prohibiting disparate impact bias can only be read as applying to existing employees only, Judge Michael Y. Scudder Jr. said for the majority.

“We strongly disagree with the decision and find it very disheartening that the court interpreted a civil rights law so narrowly,” said Dara Smith, the AARP Foundation attorney who represented Kleber.

Smith told Bloomberg Law in an email that older job seekers should get the full protection of the ADEA. The AARP and Kleber are weighing their next steps, she said.

Becton spokeswoman Kristen Cardillo said the company is pleased with the Seventh Circuit’s ruling. Becton “is deeply committed to providing equal employment opportunities and a workplace free from discrimination,” Cardillo told Bloomberg Law in an emailed statement.

Double Dissents

Judge David F. Hamilton dissented. He said U.S. Supreme Court case law finding Title VII of the 1964 Civil Rights Act prohibits disparate impact bias applies to both employees and applicants. The ADEA should be read consistently with Title VII, which bans race, sex, and other types of discrimination, he said.

Judge Frank H. Easterbrook joined Hamilton’s dissent in part and wrote a separate dissenting opinion. The statutory language “lacks a plain meaning,” he said.

The Supreme Court precedent cited by Hamilton should guide resolution of the issue and the Supreme Court should take a “new look” at its disparate impact case law if it believes clarification of its prior decisions is necessary, Easterbrook said.

AARP Foundation Litigation represented Kleber. Ogletree, Deakins, Nash, Smoak & Stewart P.C. represented CareFusion.

The case is Kleber v. CareFusion Corp., 2019 BL 21526, 2019 BL 21526, 7th Cir., No. 17-1206, en banc 1/23/19.

(Adds company comment.)

To contact the reporters on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com; Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Carmen Castro-Pagan at ccastro-pagan@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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