Judges say Congress never intended to protect job candidates, only employees.
Dale Kleber was 58 when he applied for a legal position at CareFusion
Corp, a unit of medical device maker Becton Dickinson and Co. The
company opted not to even interview him, and hired a person with fewer
qualifications--who happened to be 29.
Kleber sued under the Age Discrimination in Employment Act of 1967
(ADEA), which protects employees over the age of 40. The 7th Circuit
rejected his claim saying that the "plain language" of ADEA showed that
Congress meant for it to cover only current employees, not candidates.
When we talk about age discrimination, it often gets lumped together
with race and gender discrimination, but they come from two different
laws. Race and gender are protected under Title VII of the Civil Rights
Act and age discrimination is not. As such, Employment Attorney Kate
Bischoff says, you don't end up with same results with age
discrimination that you would with race claims.
The ruling runs counter to conventional wisdom and current practice, and
it certainly doesn't make sense for your business to engage in such
discrimination when hiring. Employment Attorney Jon Hyman said,
We should be encouraging hiring policies that reult in diverse
workplaces. Not carving out protected classes from claims. For example,
this decision would permit an employer to advertise for "digital
natives," which could have the impact of disparately effecting our older
As Hyman says, this could lead toward advertising that blatantly
discriminates against older workers. (In the above lawsuit, the job
posting asked for candidates with "no more than" seven years of
experience.) Even if Congress meant to limit ADEA to current employers,
it seems like an organization that actively sought to hire only young
people would create a hostile work environment for any existing over 40s
in the company.
As this is a Circuit court ruling and not a Supreme Court ruling it
doesn't apply across all 50 states, and you would be foolish to think
that you could win hiring age discrimination case in the other circuits.
ADEA does clearly cover your current employees, though, so regardless
of this ruling, you must not discriminate against your current
employees, even in the 7th circuit.
Regardless, instead of waiting for another court to disagree and the
Supreme Court to pick up the cases, Congress needs to act. They can
clarify what they meant and amend ADEA to clearly cover job applicants.
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