Full Seventh Circuit Limits Age-Bias Protections

CHICAGO (CN) – The en banc Seventh Circuit ruled Wednesday that the protections of the Age Discrimination in Employment Act apply only to current employees, not to job applicants.

“The plain language of § 4(a)(2) leaves room for only one interpretation: Congress authorized only employees to bring disparate impact claims,” U.S. Circuit Judge Michael Scudder, an appointee of President Donald Trump, wrote for the court’s 8-4 majority.

In 2011, Dale Kleber, then 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 last April.

The Chicago-based appeals court granted review en banc, and the full court affirmed the dismissal of Kleber’s case on Wednesday.

“Reading § 4(a)(2) in its entirety shows that Congress employed the term ‘any individual’ as a shorthand reference to someone with ‘status as an employee,’” Judge Scudder said. “The clear takeaway is that a covered individual must be an employee.”

The 15-page majority opinion was joined by eight Republican-appointed judges, including four new Trump appointees.

U.S. Circuit Judge David Hamilton – former President Barack Obama’s first judicial nominee who once served as legal counsel to then-Indiana Governor Evan Bayh – dissented, calling the majority’s opinion “glib,” “naïve” and “wooden.”

“Neither the defendant nor its amici have offered 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,” Hamilton said. “The en banc majority does not even try to do so, following instead a deliberately naïve approach to an ambiguous statutory text, closing its eyes to fifty years of history, context, and application.”

The dissent was joined by U.S. Circuit Judges Diane Wood and Ilana Rovner and partially by U.S. Circuit Judge Frank Easterbrook. The latter two judges are Ronald Reagan appointees while Wood was appointed by Bill Clinton.

At oral arguments in September, Judge 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.

Hamilton harshly criticized the majority for failing, in his opinion, to follow this precedent.

“The majority treats the Supreme Court’s references in Griggs to hiring as careless slips of the pen,” he said. “As a general rule, that is not how lower federal courts should read Supreme Court opinions. More specifically, a closer look at Griggs shows that the majority’s approach is 180 degrees off course.”

Judge Scudder, however, denied that the majority’s ruling either downplayed Griggs or eviscerated protections Congress intended for older workers.

“Today’s decision, while unfavorable to Kleber, leaves teeth in § 4(a)(2),” Scudder said. “The provision protects older employees who encounter age-based disparate impact discrimination in the workplace. And Congress, of course, remains free to do what the judiciary cannot—extend § 4(a)(2) to outside job applicants, as it did in amending Title VII.”

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