Avoiding Candidates with ‘Too Much Experience’ Could Land Employers in Hot Water

A 58-year-old attorney had too much experience to seek an in-house legal position with a healthcare products company. In a U.S. Court of Appeals for the 7th Circuit—which covers Illinois, Indiana, and Wisconsin—decision, the court considered whether the “disparate impact” provision of the Age Discrimination in Employment Act (ADEA) covers job applicants or only current employees.

Harrowing Experience

At the age of 58, with a résumé that included a stint serving as general counsel for a Fortune 500 company as well as CEO experience, “Bob” was looking for work. He responded to a job posting for the position of “senior counsel, procedural solutions” in the in-house legal department of CareFusion. The online job description listed one of the qualifications for the position as “3 to 7 years (no more than 7 years) of relevant legal experience.”
CareFusion confirmed that it received Bob’s application. But it didn’t select him for an interview. The company eventually hired a 29-year-old applicant to fill the position.
Bob filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), followed by a lawsuit in federal court in Chicago alleging claims under both the disparate treatment and disparate impact clauses of the ADEA.
Discrimination claims of the “disparate treatment” variety require a showing that the employer intended to discriminate. By contrast, “disparate impact” claims don’t require a showing of intentional discrimination but rather proof that an employer’s practice has the effect of depriving someone of employment opportunities on the basis of a protected category (in this case, age).

Coming-of-Age

In the district court, CareFusion sought dismissal of both claims. Holding that the ADEA’s disparate impact provision doesn’t cover job applicants who aren’t already employed, the trial court judge dismissed that claim. Although the lower court denied CareFusion’s request for dismissal of the disparate treatment claim, Bob later dismissed the claim voluntarily and appealed the dismissal of his disparate impact claim.
The sole issue before the 7th Circuit was whether the section of the ADEA that provides for disparate impact claims applies to outside job applicants or only to individuals currently working for the employer.
Bob argued that the 7-year experience cap set forth in the job posting was “based on unfounded stereotypes and assumptions about older workers, deters older workers from applying for positions, . . . and has a disparate impact on qualified applicants over the age of 40.” For its part, CareFusion argued that the statutory text precluded his disparate impact claim.
The relevant provisions of the ADEA state that it is unlawful for an employer:

1. to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;
2. to limit, segregate, or classify [its] employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.

Settling an Old Score

The first enumerated paragraph is the ADEA’s disparate treatment provision, while the second is the disparate impact clause. As the court observed, neither section refers expressly to job applicants. Yet the first paragraph, prohibiting disparate treatment, clearly applies to applicants because the text makes it unlawful “to fail or refuse to hire.” The question for the 7th Circuit in this case was whether the disparate impact provision in the second paragraph likewise applies to job applicants, even though the statutory text isn’t clear.
The court first noted that the disparate impact section includes the broad phrase “any individual,” which would cover both employees and job applicants. But CareFusion argued that the phrase “or otherwise adversely affect his status as an employee” shows that the disparate impact provision applies only if the person is already an employee. The 7th Circuit rejected that reading, however.
According to the court, “Deciding whether a person becomes an employee or not has the most dramatic possible effect on ‘status as an employee.’” Moreover, the U.S. Supreme Court long ago interpreted identical language in Title VII of the Civil Rights Act of 1964 to apply to both jobseekers and employees.
Finally, the court observed that CareFusion’s “unduly narrow reading” of the disparate impact section would result in some arbitrary and illogical line drawing. For example, the company’s interpretation would allow an age claim by an internal candidate for the senior counsel position who was turned down because he has more than 7 years of experience, but not by Bob, the outside candidate. Such an “arbitrary and even baffling” result isn’t what the ADEA intends, said the court. Kleber v. CareFusion Corp., No. 17-1206 (7th Cir., Apr. 26, 2018).

Experience Is the Best Teacher

The 7th Circuit’s decision means job applicants who are older than 40 are protected by the ADEA’s ban on practices that have a disparate impact on older individuals. If you are covered by this ruling, you may need to evaluate your recruiting and hiring methods and practices to ensure they don’t disfavor older individuals— even unintentionally.
Notably, the 7th Circuit’s decision creates a split with a sister circuit (the Atlanta-based 11th Circuit), which may necessitate an eventual decision by the Supreme Court to resolve the issue.

This article was written by Steven L. Brenneman of Fox, Swibel, Levin & Carroll, LLP, and an editor of the Illinois Employment Law Letter. He can be reached at sbrenneman@fslc.com.