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A federal appeals court held Thursday that the Age Discrimination in Employment Act of 1967 applies to outside job applicants as well as current employees, in a ruling that disagrees with another circuit court on the issue.
“We hold that (the ADEA) protects both outside job applicants and current employees,” said the 7th U.S. Circuit Court of Appeals in Chicago in a 2-1 ruling in Dale E. Kleber v. CareFusion Corp.
“That is the better reading of the statutory text. It is also more consistent with the purpose of the Act and nearly fifty years of case law interpreting the ADEA and similar language in other employment discrimination statutes,” said the ruling.
However, the 11th U.S. Circuit Court of Appeals in Atlanta held in an en banc 2016 ruling in Richard M. Villarreal v. R.J. Reynolds Tobacco Co., Pinstripe Inc. that the ADEA does not allow an unsuccessful job applicant to sue an employer for using a practice that has a disparate impact on other workers. The U.S. Supreme Court subsequently refused to consider an appeal of that ruling.
The more recent case was filed by Mr. Kleber, an attorney with extensive legal and business experience, whose previous employment had ended in 2011 and who had applied for a position in 2014 as “senior counsel, procedural solutions” with San Diego-based CareFusion, a medical technology firm.
“The job posting called for ‘a business person’s lawyer’ with the ability ‘to assume complex projects,’ which we must assume would be well-suited to Kleber’s skills and experiences,” said the ruling. “The job posting, also said, however, that applicants must have ‘3 to 7 years (no more than 7 years) of relevant legal experience.’” CareFusion did not select Mr. Kleber for an interview, and eventually hired a 29-year old for the job, said the ruling.
Mr. Kleber, 58, filed suit, charging violation of the ADEA in U.S. District Court in Chicago, which ruled in the company’s favor. In overturning that ruling, the majority opinion extensively analyzed the statute’s wording.
The ruling said, “our reading tracks the Supreme Court’s reading of virtually identical statutory language in Title VII of the Civil Rights Act of 1964” in a 1971 ruling.
“Moreover, we have not been presented with, and could not imagine on our own, a plausible policy reason Congress might have chosen to allow disparate impact claims by current employees, including internal job applicants, while excluding outside job applicants,” said the ruling, which remanded the case to the District Court for further proceedings.
The dissenting opinion states, “I believe an ordinary reading of the language found in (the ADEA) affirms the district court’s finding. This Court’s reversal is an erroneous form of statutory interpretation that requires writing in words that Congress chose not to include.”
A plaintiff in an age discrimination lawsuit against Google Inc. is seeking the court's permission to reach out to other potential plaintiffs in a class action lawsuit.