The Rocky Mountain Employer


Labor and Employment Law Updates

Employers Protected From Age-Based Bias Claims Brought by Job Applicants

  A federal appeals court has ruled that outside job applicants may not sue companies under the Age Discrimination in Employment Act (“ADEA”) for neutral hiring practices that have a negative impact on older applicants.FN1 Federal anti-discrimination laws, including the ADEA, prohibit both purposeful discrimination and neutral job practices that have an adverse effect on a group of protected employees. In Kleber v. Carefusion Corp., a majority of the Seventh Circuit Court of Appeals held that the language in the ADEA does not allow outside job applicants, as opposed to existing employees, to bring so-called “disparate impact” claims that challenge facially-neutral job practices that have an adverse impact on older individuals. As a result, the court affirmed the dismissal of a job applicant’s challenge of a job posting that capped the years of relevant experience needed for a job, and thus had a negative impact on older workers.

 Practical Takeaway

The Kleber decision may give employers more flexibility to lawfully focus recruiting efforts on individuals with less experience (for example, on-campus recruiting), despite the fact such efforts may inadvertently screen out more experienced (and older) workers.FN2 The decision, however, does not change the fundamental rule that employers should always base their employment decisions—including hiring—on legitimate, non-discriminatory business needs. The decision also applies only to employers in select states, and employers should consult with an attorney with questions on their hiring practices.



FN1:   Kleber v. CareFusion Corp., 914 F.3d 480 (7th Cir. 2019). The Seventh Circuit Court of Appeals hears appeals of federal cases in Illinois, Indiana, and Wisconsin. Previously, the Eleventh Circuit Court of Appeals, which , issued a similar decision. Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 963-64 (11th Cir. 2016).

FN2:   Patrick Dorrian and Robert Iafolla, Becton Unit Court Win Sets Job Seeker Age Bias Precedent (2), Bloomberg Law (Jan. 24, 2019),