The U.S. Court of Appeals for the Seventh Circuit ruled on January 23, 2019 that older job applicants cannot sue to challenge job qualifications that have a “disparate impact” against them under the Age Discrimination in Employment Act (ADEA).
The employer, CareFusion, had a job opening for a senior in-house lawyer position in its legal department. The position description stated that applicants must have at least 3 years, but not more than 7 years, of relevant experience. One outside applicant, who was 58 years old, applied for the job even though he had more than 7 years of relevant experience. He was not selected for the position.
The applicant sued and claimed that the hiring practice had a discriminatory impact upon himself and other older workers, in violation of the ADEA. His disparate impact claim was dismissed by the district court. The applicant appealed the decision to the Seventh Circuit.
On appeal, the Seventh Circuit found that the section of the ADEA that bars disparate impact discrimination only allows claims based on one’s “status as an employee” without reference to outside job applicants. The Civil Rights Act of 1964, which prohibits discrimination for many reasons besides age, had similar language that Congress specifically changed to add that job applicants could also bring disparate impact claims. The fact that Congress has not amended the ADEA showed that it did not intend to protect applicants from disparate impact age bias, the Seventh Circuit ruled.
While this decision highlights one of the limitations that may restrict age discrimination claims, it only applies within the Seventh Circuit. Other circuits and the U.S. Supreme Court have yet to decide the issue.