Testing the range of the Age Discrimination in Employment Act (ADEA), federal judges at the Seventh Circuit U.S. Court of Appeals sided with an elderly attorney called Dale Kleber.
According to the circuit court’s ruling, the ADEA provides protection against age-based discrimination, not only for employees, but for job applicants as well. Kleber, who applied to work for CareFusion Corporation, was rejected by the company, who had stipulated a seven-year maximum for work experience. The attorney, who has over 25 years of experience under his belt, would not take no for an answer, so he filed suit against the corporation.
The ADEA, passed in 1967, differs from the more famous Title VII of the Civil Rights Act, which protects workers against discrimination based on sex, race, religion and nationality. In the past, the 1967 law has been construed to provide protection only to employees. The Eleventh Circuit, which covers Alabama, Florida and Georgia, ruled in 2016 that RJ Reynolds (the major tobacco firm) was not liable under the ADEA because the claimant was an applicant – not a hired worker. The Supreme Court refused to hear the case after the Eleventh Circuit’s ruling.
In making its decision, the Seventh Circuit countered the 2016 opinion. Judge David Hamilton, who wrote for the majority, found that both employees and applicants deserve protection under the statute. He summarized the underlying question in the following way: “The central issue in this appeal is whether the disparate impact provision protects only current employees or whether it protects current employees and outside job applicants. We hold that it protects both outside job applicants and current employees.” He went on: “That is the better reading of the statutory text. It is also more consistent with the purpose of the act and nearly 50 years of case law interpreting the ADEA and similar language in other employment discrimination statutes.”
Against the Current
The Circuit Court’s ruling is significant, as it flies in the face of legal opinions going back to the 1990s. In this legal environment, courts around the US were quick to pick up the Eleventh Circuit’s decision as precedent, leading Attorney Casey Pitts, who represented the plaintiff in the 2016 case, to lament the ruling’s impact: “If the decision stands, it will make it significantly more difficult for older workers to find jobs and attack employer practices that prevent them from being hired.”
Judge William Bauer wrote the dissenting opinion for the Seventh Circuit, arguing that “[w]hile the judicial branch is afforded the duty of determining the constitutionality of statutes enacted by Congress, we are not afforded the right to pencil in words Congress does not itself include.” In effect, Bauer asserted that the majority extended beyond the constitutional reach of the judiciary in issuing its decision.
The appeals court decision comes at a significant moment in history, as the demographics in this country are about to shift in dramatic ways. As baby boomers age, so too will the number of elderly people in this country. As of right now, 13 percent of the US is 65 years or older, but in 12 years that number may rise to 18 percent. According to research conducted by Pew, 10,000 people are turning 65 every day.
Brief Rundown of Decisions
For decades, courts have ruled in favor of employers, allowing them to cite “reasonable factors other than age” as justification for their hiring and firing practices. In 2009, the Supreme Court ruled that a 54-year old man would have to show that age was the only motivating factor, and recently in Chicago, a federal judge threw out a case because the plaintiff was an applicant, not an employee. The tide may be turning, as the Seventh Circuit’s decision runs against the current, and a district judge in San Francisco recently ruled in favor of the plaintiff, writing: “The ADEA is remedial and humanitarian legislation and should be interpreted liberally.”