914 F.3d 480
7th Cir.2019Background
- Dale Kleber (58) applied for a senior in‑house counsel job at CareFusion that limited relevant experience to "3 to 7 years (no more than 7 years)"; he exceeded the cap and was not hired.
- Kleber sued under the ADEA alleging both disparate treatment (§ 4(a)(1)) and disparate impact (§ 4(a)(2)); the district court dismissed the disparate‑impact claim as unavailable to outside applicants.
- A divided Seventh Circuit panel reversed; the court granted en banc review.
- The en banc majority held § 4(a)(2) (29 U.S.C. § 623(a)(2)) by its plain text protects only individuals with "status as an employee," not outside job applicants.
- The majority relied on textual comparison within the ADEA (noting § 4(a)(1), § 4(c)(2), and § 4(d) explicitly reference applicants) and on Congress’s post‑Griggs amendments to Title VII to explain divergence between the statutes.
- Four judges dissented (different emphases): they argued the text is ambiguous, Griggs and ADEA purpose support covering applicants, and practical consequences make the majority’s line arbitrary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 4(a)(2) of the ADEA authorizes disparate‑impact claims by outside job applicants | Kleber: § 4(a)(2)'s phrase "any individual of employment opportunities" is broad and includes applicants; the provision targets effects on employment opportunities, not only current employees | CareFusion: § 4(a)(2) by its plain wording protects only those with "status as an employee"; adjacent provisions show Congress knew how to include "applicants" when intended | Held for defendant: § 4(a)(2) covers only individuals with status as employees; outside applicants may not bring disparate‑impact claims under that subsection |
| Role of Griggs (Title VII) and subsequent legislative change in interpreting ADEA § 4(a)(2) | Kleber: Griggs interpreted identical language to reach job‑seekers; therefore ADEA § 4(a)(2) should be read the same | CareFusion: Griggs involved Title VII and employees; Congress amended Title VII in 1972 to add "applicants," demonstrating it knew how to extend coverage — it did not amend the ADEA similarly | Held for CareFusion: differences in text and Congress’s amendment of Title VII (but not ADEA) are significant; Griggs does not control contrary ADEA textual reading |
| Whether statutory purpose or legislative history should expand § 4(a)(2) to applicants | Kleber: ADEA’s purpose (protecting older workers, especially in hiring) and Wirtz Report support coverage of applicants | CareFusion: Court must follow text; broad purpose cannot override plain statutory limits | Held for CareFusion: Court enforces § 4(a)(2)’s plain language; Congress may amend if it wishes applicants to be covered |
| Whether comparison to neighboring ADEA provisions compels inclusion of applicants in § 4(a)(2) | Kleber: textual context and ADEA’s design favor reading that reaches applicants; excluding applicants produces arbitrary outcomes | CareFusion: neighboring provisions that expressly say "applicants" show Congress omitted that term intentionally in § 4(a)(2) | Held for CareFusion: textual differences matter; omission indicates Congress did not include applicants in § 4(a)(2) |
Key Cases Cited
- Griggs v. Duke Power Co., 401 U.S. 424 (1971) (establishes disparate‑impact theory under Title VII and discusses application to job‑seekers)
- Smith v. City of Jackson, 544 U.S. 228 (2005) (addressed availability of disparate‑impact claims under the ADEA)
- Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (emphasizes differences between Title VII and the ADEA where Congress amended Title VII but not the ADEA)
- Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (instructs interpreting terms in context; held "employees" in one provision covered former employees)
- EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th Cir. 1994) (Seventh Circuit earlier held § 4(a)(2) does not cover outside applicants)
- Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11th Cir. en banc 2016) (interpreted § 4(a)(2) as limited to persons with employee status)