The facts in Kleber are straightforward. Kleber, an attorney, applied for a senior in house position with CareFusion in response to a job posting that required applicants to have "3 to 7 years" of relevant legal experience (but no more). He was 58 when he applied and the job was ultimately given to a 29 year old applicant. Kleber filed a lawsuit under the ADEA asserting both disparate treatment claims and disparate impact claims under Sections 4(a)(1) and 4(a)(2) of the ADEA. The disparate impact claim was based upon the premise that the impact of the job limitation on experience was to exclude applications who were older, even if that decision was not the result of discriminatory bias or intent.
Section 4(a)(2) of the ADEA makes it unlawful "for an employer to limit, segregate, or classify his employees . . . or otherwise adversely affect his stats as an employee, because of such individual's age." 29 U.S.C. § 623(a)(2). The Court reasoned that the plain language of this section limited its application to employees and actions that arise out of employment, not applicants of employment who are currently not employed and not an employee of an employee. Further, the ADEA's disparate treatment provisions, unlike Section 4(a)(2), specifically includes the failure or refusal to hire an individual as a basis for statutory coverage, the Court reasoned, as do other similar provisions in the ADEA's statutory text.
While the decision impacts the scope of the ADEA, its impact is marginal at best. Potential ADEA plaintiff have often faced an insurmountable burden in bringing ADEA disparate impact claims for job applicants based upon affirmative defenses available to employers, including occupational qualification or business need.
For more information about the ADEA or related federal or state discrimination and wrongful termination laws, you can speak to one of our Utah employment lawyers by calling us at (801) 758-7604 or contacting us online at utahtriallawyers.net.
