Full Seventh Circuit Hears Age-Bias Arguments

CHICAGO (CN) – The en banc Seventh Circuit heard arguments Thursday to decide whether the protections of the Age Discrimination in Employment Act also apply to job applicants, not just current employees.

U.S. Circuit Judge David Hamilton posed the question before the court: “Why on earth should the statute be interpreted so that it should apply to some applicants but not others?”

In 2011, Dale Kleber, then age 58, applied for a senior staff attorney position with CareFusion Corporation. The position sought someone with three to seven years of legal experience.

With more than 25 years of legal experience, including serving as general counsel for a large corporation, he was more than qualified for the job.

But Kleber was not invited for an interview, despite having far more experience than the 29-year-old attorney CareFusion hired instead.

Represented by AARP, Kleber filed suit under the ADEA, arguing that the seven-year experience cap on the position discriminates against older workers by automatically disqualifying them for the job simply because they have been in the workforce longer than younger applicants.

A federal judge dismissed his case, finding that the ADEA protects only current employees, not prospective employees, but a divided three-judge panel of the Seventh Circuit ruled for Kleber in April.

That opinion, written by Judge Hamilton and joined by U.S. District Judge Sara Darrow, sitting by designation, said, “We have not been presented with, and could not imagine on our own, a plausible policy reason why Congress might have chosen to allow disparate impact claims by current employees, including internal job applicants, while excluding outside job applicants.”

U.S. Circuit Judge William Bauer dissented from the panel opinion, and again indicated Thursday that he does not read the ADEA to cover applicants – despite declaring in a joking manner, “I will yield to no one my concern about older people.” At age 91, Judge Bauer is the oldest member of the court.

But Chief U.S. Circuit Judge Diane Wood said, “If it doesn’t cover applicants, you might as well throw the ADEA out the window.”

She repeatedly emphasized that preventing discrimination in hiring is one of the biggest aims of the law, as explicitly stated in the text of the ADEA.

U.S. Circuit Judge Frank Easterbrook said the court was bound to follow the 1971 U.S. Supreme Court decision in Griggs v. Duke Power Co., where the justices ruled that Title VII of the Civil Rights Act, which protects minorities from employment discrimination, applies to job applicants.

To read the Griggs opinion otherwise would make it incoherent, Easterbrook said.

“Far be it from me to accuse the justices of being incoherent,” he said, laughing. “I could accuse them of being wrong, but not incoherent.”

CareFusion’s attorney David Schenberg of Ogletree Deakins responded saying, “I think they used loose language [in Griggs],” and argued that the case is not comparable because the plaintiffs already held a job with the employer.

Judge Wood asked Kleber’s lawyer Dara Smith, a staff attorney with the AARP Foundation, to address the “parade of horribles” raised by amicus U.S. Chamber of Commerce, which argued that a favorable ruling would, for example, expose employers to ADEA lawsuits for recruiting on college campuses.

“So to say we’re going to go to campuses, but we’re not going to go to old folks’ homes, would be reasonable in your view?” Judge Wood asked Smith to general laughter.

“It’s just not a problem,” Smith said, pointing out that many states, including California, already have laws protecting job applicants from age discrimination, and employers have found ways to alter their hiring practices accordingly.

If the Seventh Circuit rules in favor of Kleber and allows his suit to proceed, it will create a circuit split with the 11th Circuit and likely prompt the nation’s highest court to review the issue.

A ruling for Kleber would only allow him to get his foot in the door and survive immediate dismissal. He would still bear the burden on remand of showing CareFusion did not hire him because it thought he was too old for the job.

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