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Justices won’t decide whether ADEA protects disparate impact claims of outside job applicants

By Pamela Wolf, J.D. An older attorney rejected for a job as inside counsel argued that the Court should interpret the ADEA to apply to disparate impact claims by outside job applicants, just as it has done in Title VII claims.

On October 7, the Supreme Court declined to take up the question of whether section 4(a)(2) of the ADEA protects outside job applicants who claim disparate impact, or whether it “unambiguously” applies only to incumbent employees applying for transfers and promotions. Interpreting identical language in Title VII, the Supreme Court held the former in its 1971 decision in Griggs v. Duke Power Company, while the majority of a divided en banc Seventh Circuit held the latter, according to the older attorney who sought High Court review of the appeals court’s ruling in Kleber v. CareFusion Corporation (18-1346).

Outside applicants not protected. Below, the en banc Seventh Circuit affirmed dismissal of the ADEA disparate impact claim by brought by the then 58-year-old attorney after he was rejected for a senior in-house counsel position under CareFusion’s seven-year experience cap. The majority found that the plain language of ADEA Section 4(a)(2), which refers to “status as an employee,” made clear that Congress protected employees from disparate impact age discrimination but did not extend the same protection to external job applicants. The court also noted that its conclusion was reinforced by the ADEA’s broader structure and history.

Judges Easterbrook and Hamilton each wrote dissenting opinions, with the latter joined by Judges Wood and Rovner.

Griggs says it all. The rejected attorney relied on Griggs and the “lengthy and unbroken line of precedent reading language identical to that in section 4(a)(2) as supporting disparate impact claims for job applicants under Title VII” to argue that the High Court should review the Seventh Circuit’s split en banc ruling, which conflicts with the Court’s earlier precedent.

“In drafting the ADEA, Congress replicated Title VII’s prohibitions of discriminatory employment policies and practices word-for-word and incorporated them into the ADEA,” according to the attorney. The Griggs decision, he argued, “laid a crucial cornerstone for construing the language shared by these kindred civil rights statutes.” There the Supreme Court “interpreted language identical to section 4(a)(2) of the ADEA to affirm a disparate impact claim for incumbent employees and outside applicants under Title VII.”