January 24, 2019
By Jonathan Stempel
(Reuters) – A divided U.S. appeals court on Wednesday dealt a setback to older job applicants, saying they cannot invoke a federal law against age bias in employment to challenge hiring policies they believe have a discriminatory impact.
In a 8-4 decision, the 7th U.S. Circuit Court of Appeals in Chicago said the “plain language” of the Age Discrimination in Employment Act (“ADEA”), which forbids discrimination against people 40 and older, showed that Congress intended that law to cover current employees, not outside job applicants.
The decision reversed a 2-1 ruling last April by a panel of the same court.
It also reinstated a federal district judge’s dismissal of Illinois resident Dale Kleber’s disparate impact claim against CareFusion Corp, a unit of medical device maker Becton Dickinson and Co <BDX.N>.
Kleber claimed in his lawsuit that CareFusion decided not to interview him after he applied for a job as a lawyer in 2014, when he was 58 years old, and instead hired a less qualified candidate who was only 29.
The job description required that applicants have “no more than 7 years” of relevant experience, less than Kleber had.
Lawyers for AARP Foundation Litigation, which represented Kleber, did not immediately respond to requests for comment. CareFusion and its lawyers did not immediately respond to similar requests.
People 55 or older comprised 22.4 percent of U.S. workers in 2016, up from 11.9 percent in 1996, and may account for close to one-fourth of the labor force by 2022, according to the Bureau of Labor Statistics. (https://www.bls.gov/careeroutlook/2017/article/older-workers.htm#a-changing-labor-force)
Wednesday’s majority opinion was written by Circuit Judge Michael Scudder, an appointee of President Donald Trump.
Scudder distinguished the ADEA from Title VII of the Civil Rights Act of 1964, which Congress has amended to cover job applicants. He said that body remained free to similarly extend the ADEA, which “the judiciary cannot” do.
Circuit Judge David Hamilton, an appointee of President Barack Obama, dissented, saying extending ADEA protections to job applicants tracked the U.S. Supreme Court’s view of Title VII.
Hamilton also faulted the majority for offering no plausible policy reasons to ignore the “more sensible and less arbitrary” interpretation of the ADEA.
The case is Kleber v CareFusion Corp, 7th U.S. Circuit Court of Appeals, No. 17-1206.
(Reporting by Jonathan Stempel in New York; Editing by Peter Cooney)