If your company’s job postings seek applicants with a cap on the years of experience then you may also be advertising for an age discrimination lawsuit. At least that is a take away from a Seventh Circuit Court of Appeals decision involving a suit under the Age Discrimination in Employment Act (ADEA).

The case, Kleber v. CareFusion Corp. involved a 58-year-old attorney who alleged he was denied a chance to interview for a job because he had too much experience. The job posting specifically provided “3 to 7 years (no more than 7 years).”

Generally, the ADEA prohibits employment practices that discriminate intentionally against older workers and prohibits employment practices with a disparate impact on older workers. 29 U.S.C. § 623(a)(1).

The Court framed the central issue in this case as to whether the disparate impact provision of the ADEA protects only current employees or whether it protects current employees and outside job applicants. The Court concluded that because the ADEA was enacted to prohibit job practices that make it more difficult for older workers to find jobs the district court was wrong to grant the employer’s motion (a 12(b)(6) motion for the procedural nerds out there) dismissing the plaintiff’s disparate impact claim.

Age Discrimination and Your Job Postings.

There are legitimate reasons for a company to seek applicants with less experience. For example, CareFusion explained it was worried an attorney with over seven years’ experience wouldn’t stay in the job for long.

But such concerns should not adversely affect applicants over 40. Here the employer’s use of an express cap on an applicant’s experience (i.e., “no more than 7 years”) provided enough evidence that CareFusion’s job requirements had a disparate impact on qualified job seekers over the age of 40.

This decision means employers must critically evaluate whether the job in hiring requirements consider workers 40 or over. Otherwise, failing to do so may expose the company to age discrimination claims under federal or state laws.

Does this Issue Get Taken up by the U.S. Supreme Court?

This decision also creates a divide among other federal circuits over whether the ADEA protects job applicants and not only existing employees from facially neutral employment policies that may have unanticipated but unequal consequences.

Whether this circuit split makes its way up to the U.S. Supreme Court is uncertain. But if I was a betting man, I would say yes. The Supremes has twice addressed issues about disparate impact age discrimination. And it presents a classic statutory interpretation issue.

As to the interpretation issue, the plain language of the ADEA does not expressly extend unintentional hiring bias protections to job applicants. But the majority opinion noted there was no “plausible” policy reason for why Congress would have provided less protection against hiring bias to external applicants than it does to internal job seekers.  While that may be true, using that sort of judicial reasoning to reach a result not found in the express language of the statute is a favorite target for certain Supreme Court Justices.

For more information about complying with federal and Michigan employment laws, contact employment attorney Jason Shinn. Since 2001, Mr. Shinn has worked with clients with their employment law and litigation matters.