A recent appeals court ruling affirmed that job applicants cannot pursue age discrimination claims when they claim caps on years of experience in job descriptions disqualify them because of their age.
On its face, this seems like a victory for employers, but what are the practical implications of the ruling? And what considerations should employers hiring individuals in the states that comprise the Seventh Circuit—Indiana, Illinois and Wisconsin—take into account?
The Seventh U.S. Circuit Court of Appeal’s recent en banc ruling in Kleber v. CareFusion Corp. vacated a 2018 Seventh Circuit panel decision and affirmed the district court’s ruling that job applicants cannot pursue age discrimination claims against a prospective employer under the Age Discrimination in Employment Act (ADEA) based on a disparate impact theory.
Under a disparate impact theory, the plaintiff claims that some facially neutral employment practice has the effect of depriving him or her of an employment opportunity because of age. Under Kleber, only employees—and not applicants—can pursue such claims.
In Kleber, the employer, CareFusion, sought to fill an open senior in-house position in its law department. The posted job description utilized an experience cap that effectively limited which candidates would be considered for the position.
Specifically, CareFusion only sought candidates with “3 to 7 years (no more than 7 years) of relevant legal experience.” Kleber, age 58 at the time he applied, had significantly more than 7 years of relevant experience and was not selected for the position. Instead, CareFusion hired a 29-year-old applicant who met, but did not exceed, the experience cap.
In his lawsuit, Kleber challenged CareFusion’s experience cap as unlawful under the ADEA’s disparate impact provision. While, in theory, facially neutral, experience caps can have the effect of screening out older applicants from progressing to even the initial interview stage.
Consider Business Reasons
Does the Kleber decision now make experience caps legal? The Seventh Circuit did not reach a decision on that issue. It only concluded that job applicants cannot challenge such practices.
However, an older and more experienced CareFusion employee who wanted a job transfer or promotion to the position sought by Kleber would be permitted to bring a disparate impact claim under the ADEA.
Therefore, with experience caps under heightened scrutiny, employers should analyze whether there is a legitimate business reason for using such caps. If not, consideration should be made to forgo them altogether and instead consider whether there are other types of experience or skill sets that can be required of applicants in order to ensure that the ideal pool of candidates is obtained.
For example, if experience with a certain type of software is necessary to perform the job, employers should ensure that requirement is set forth in the job posting. While such a requirement could have the unintended effect of reducing the amount of older applicants who are considered for the position because they do not have the requisite software experience, an employer would likely be able to establish that there is a legitimate business reason for such a facially neutral policy.
Illinois, Wisconsin, Indiana
In addition to continued exposure to potential disparate impact claims from employees, Illinois and Wisconsin employers should recognize that, despite the Kleber ruling, applicants can still bring disparate impact claims in state court under state anti-discrimination laws.
Both the Illinois and Wisconsin Supreme Courts have recognized a theory of disparate impact for alleged violations of their respective state anti-discrimination laws. See Bd. of Trustees of S. Illinois Univ. v. Knight, 163 Ill. App. 3d 289, 294 (1987); Wisconsin Tel. Co. v. Dep’t of Indus., Labor & Human Relations, 68 Wis. 2d 345, 368 (1975).
Therefore, employers in these and other states with similar anti-discrimination laws, should also consider whether certain recruiting practices, like exclusively hiring for certain positions through college recruiting programs, are susceptible to legal challenge for having a negative impact on older job applicants.
Such employers can consider expanding their hiring efforts to include advertising through additional venues that garner applicants across a wider age group. By placing more attention on drafting job postings that set forth the specific type of experience and skill set required—based on legitimate business reasons—regardless of how broadly the net is cast, employers will still be able to obtain an ideal pool of candidates without engaging in practices that arguably negatively impact older applicants.
In contrast, employers in the state of Indiana have cause to consider the Kleber decision a victory. The Indiana Age Discrimination Act ("IADA") covers all employers except those that are subject to the ADEA.
Accordingly, an applicant applying for a job with a company in Indiana that has 20 or more employees is not entitled to relief under the IADA, but rather his or her exclusive remedy lies with the ADEA. For those smaller employers under 20 employees, the IADA only provides for administrative methods of resolution and does not recognize any civil private action. Consequently, an Indiana job applicant has no means of bringing a lawsuit under a disparate impact theory against a prospective employer.
Kristen Jones is a principal in Goldberg Kohn’s Litigation and Labor & Employment Groups. She represents employers in a broad range of matters before state and federal courts throughout the country, in addition to the U.S. Equal Employment Opportunity Commission (EEOC) and state fair employment practices agencies.
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