On January 23, 2019, the Seventh Circuit Court of Appeals held that the protections against disparate impact age discrimination under the Age Discrimination in Employment Act (“ADEA”) do not extend to outside job applicants. Kleber v. Carefusion Corp., No. 17-1206 (7th Cir. Jan. 23, 2019). This age discrimination case was filed by a 58-year-old attorney who applied for and was denied a position as an in-house attorney, which was given to a 29-year-old applicant. The job description required 3-7 years, but no more than 7 years, of legal experience. Section 4(a)(2) of the ADEA makes it unlawful for an employer to “limit, segregate or classify employees based on age” in such a way that results in an adverse effect on their “status as an employee.” The plain statutory language of the ADEA warrants the conclusion that its protections against disparate impact age discrimination are limited to employees.

Section 4(a)(1) of the ADEA, on the other hand, which sets forth the ADEA’s protections against disparate treatment age discrimination, extends to outside job applicants by virtue of its language “fail or refuse to hire” (based on age). The inclusion of a failure-to-hire provision in the disparate treatment section, and omission of such a provision in the disparate impact section of the ADEA left no doubt for the Seventh Circuit that the statutory intent of Congress was to not extend the disparate impact protections of the ADEA to job applicants. It should be noted that Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits employment discrimination on the basis of sex, race, color, national origin, religion and genetic information, includes a failure-to-hire provision in its disparate impact section and therefore does protect outside job applicants from disparate impact discrimination.

Unlike disparate treatment employment discrimination claims, disparate impact claims do not require discriminatory intent on the part of the employer. Disparate impact claims involve facially neutral employment policies that have a disproportionate adverse impact on employees in a protected classification.