Statutory Interpretation – ADEA

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7^th Circuit Court of Appeals

Case Name: Dale E. Kleber v. CareFusion Corporation

Case No.: 17-1206

Officials: BAUER and HAMILTON, Circuit Judges, and DARROW, District Judge.

Focus: Statutory Interpretation – ADEA

The key provision of the Age Discrimination in Employment Act of 1967 prohibits employment practices that discriminate intentionally against older workers, and prohibits employment practices that have a disparate impact on older workers. 29 U.S.C. § 623(a)(1), (a)(2); Smith v. City of Jackson, 544 U.S. 228 (2005). The central issue in this appeal is whether the disparate impact provision, § 623(a)(2), protects only current employees or whether it protects current employees and outside job applicants. We hold that § 623(a)(2) protects both outside job applicants and current employees. That is the better reading of the statutory text. It is also more consistent with the purpose of the Act and nearly fifty years of case law interpreting the ADEA and similar language in other employment discrimination statutes.

In fact, our reading tracks the Supreme Court’s reading of virtually identical statutory language in Title VII of the Civil Rights Act of 1964 in Griggs v. Duke Power Co., 401 U.S. 424, 426 n.1, 431 (1971), which found that this text protects “the job‐seeker.” In holding that the ADEA covers disparate impact claims, the Supreme Court identified Griggs as “a precedent of compelling importance” in interpreting § 623(a)(2), Smith, 544 U.S. at 234, so we apply it here. Moreover, we have not been presented with, and could not imagine on our own, a plausible policy reason why Congress might have chosen to allow disparate impact claims by current employees, including internal job applicants, while excluding outside job applicants.

We therefore reverse the district court’s Rule 12(b)(6) dismissal of plaintiff Dale Kleber’s disparate impact claim and remand for further proceedings. Given the stage of the case, we do not address possible affirmative defenses under § 623(f)(1), including the defense that the challenged practice was “based on reasonable factors other than age.”

Reversed and Remanded

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.