Earlier this month, the U.S. Supreme Court chose to pass on reviewing a 7th Circuit Court of Appeals decision (Kleber v. CareFusion Corp.) which held that the adverse impact provisions of the Age Discrimination in Employment Act (ADEA) do NOT apply to job applicants as they do to employees. Back in 2014 the US Supreme Court in Smith v. City of Jackson decided that adverse impact applies to employees under the ADEA, but did not reach a decision regarding applicants.
In Kleber, a 58-year old applicant for an in-house senior legal position was disqualified from consideration as overqualified (essentially) under the employer’s requirement that candidates have no more than seven years’ relevant experience. A 29-year-old was hired. Kleber was not even interviewed. He argued that the employer had disproportionately affected older candidates with its restriction on total relevant experience. The 7th Circuit Court of Appeals held that Congress, while protecting employees from disparate impact age discrimination, did not extend that same protection to outside job applicants, which is reinforced by the ADEA’s “broader structure and history”.
Adverse impact (also referred to as disparate impact) is the adverse effect of a practice or policy that, on its face, is neutral, but disproportionately affects individuals in a protected class to their detriment. Intent to discriminate is not required for adverse impact to be found.
The Equal Employment Opportunity Commission (EEOC) which administers the federal EEO laws, of which the ADEA is one, has for some time now maintained that applicants are protected from adverse impact as well as employees. This is true for other types of discrimination, such as discrimination based on gender, race, national origin, etc. under Title VII.
It will probably fall to Congress to rectify this inconsistency, or not. Until then, applicants 40 years and older will have to prove that discrimination in the hiring process based on age was intentional, which is more difficult to prove.