Jill Lashay, shareholder in the firm's Labor & Employment section, and Curtis Schaffner, associate, authored "ADEA Protections for Outside Applicants Still Up in the Air," published in Law360.
On Jan. 23, 2019, the U.S. Court of Appeals for the Seventh Circuit held, in Kleber v. CareFusion Corp., that the federal Age Discrimination in Employment Act does not permit job applicants to bring disparate impact claims against prospective employers. The Seventh Circuit joined the U.S. Court of Appeals for the Eleventh Circuit, which came to the same conclusion in Villarreal v. R.J. Reynolds Tobacco Company.
While a victory for employers, other circuits have yet to weigh in. Therefore, this issue is far from settled.
The ADEA generally protects individuals who are 40 years of age and older from two types of discrimination: “disparate treatment” discrimination and “disparate impact” discrimination. Disparate treatment occurs where an employer intentionally discriminates against an individual based upon his/her age.