Ask The Lawyer By: Daniel A. Gwinn, Esq.


QUESTION: I read last fall that there was a conflict in the Courts of Appeals over whether older workers who applied for jobs could sue if there was evidence that an employer’s job posting, while neutral on the face, tended to disqualify older people. What’s the latest on the law? 

ANSWER: There is no longer a split in the circuits. On January 23, 2019, the Seventh Circuit in Kleber v CareFusion, Inc joined the Eleventh Circuit in finding that the Age Discrimination in Employment Act (ADEA) does not protect job applicants from “disparate impact” discrimination. To be protected under the ADEA in those circuits, an older worker must already be an employee. The question is still open in other circuits. The Sixth Circuit, which includes Michigan, Ohio, Kentucky and Tennessee, has not decided the issue.

            In the Kleber, case, a highly experienced lawyer in his 50s applied for a position that was advertised as being open only for those with no more than seven years’ experience. Although the attorney, Dale Kleber, was more than qualified for the job, he was not even invited to interview. Instead, the job went to a 29-year-old.

            Kleber argued that limiting the application pool to only those candidates with less than seven years of experience was a form of disparate impact discrimination. The seemingly neutral limit had a disproportionate impact on older workers, very many of whom –like Kleber – have significantly more than seven years’ experience. A three-judge panel of the Seventh Circuit, based in Chicago, decided in April 2018 that the ADEA protected job applicants like Kleber. In June, however, it voted to rehear the case before the entire court. The earlier decision was reversed this past January by a vote of 8-4.

            The issue was whether Section 4(a)(2) of the ADEA (29 USC 623) applied to outside applicants. That section made it unlawful for an employer to “limit segregate or classify his employees in any way which would deprive … any individual of employment or otherwise adversely affect his status as an employee because of such individual’s age.” In contrast to Section 4(a)(1), which extends protection in hiring to “any individual” Section(4(a)(2) refers only to employees.

            Writing for the majority, Judge Michael Scudder, who was appointed by President Donald Trump, said the plain language of the ADEA mandated the result – even as he recognized that the defendant CareFusion’s job posting was discriminatory. Under his reading of the statute, an older worker who applied for a job posted internally would be protected under the law; whereas an outside non-employee applicant would not. If Kleber, for example, had been a CareFusion employee at the time he applied, the company’s refusal to consider internal applicants with more than seven years’ experience would have violated the ADEA as a discriminatory practice.

            Judge Scudder stated the law, as written, still “has teeth,” protecting “older employees who encounter discrimination in the workplace” but not applicants who encounter such discrimination. In closing, he noted that “Congress, of course, remains free to do what the judiciary cannot—extend Section 4(a)(2 ) to outside job applicants …”

            Those wishing to see a change in the law should write to their Congressional representatives. In the Seventh and Eleventh Circuits, at least, disparate impact discrimination against older outside job applicants, is not against the law.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile

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