The en banc Seventh Circuit Court, which includes the greater Milwaukee metro area, recently ruled that the protections under the Age Discrimination in Employment Act will now only apply to current employees and not those applying for a new position. This means that older job seekers may find a harder time landing a job in the state of Wisconsin. Under the new interpretation, only those employed with a company can bring suit if they feel that they are being discriminated against for their age in the workplace, such as being passed over for a promotion simply due to the fact that they are older or younger than their co-workers.
What prompted the ruling?
The ruling was the result of the court case of Dale Kleber, a 58-year-old man who was seeking a position as a senior staff attorney with a corporation known as CareFusion. The position listing was looking for someone with legal experience, specifically at least three to seven years to be considered. Dale Kleber had more than 25 years of experience in the legal world and also had served as part of the general counsel for a large corporation similar to the current corporate structure of CareFusion. Meaning he was more than qualified for the required job listing. He was not invited by the company for an interview and the position was filled by a 29-year old.
Klebar decided to file a lawsuit against the company under the ADEA laws. The AARP acted as his representation, and the suit alleged that the company had effectively discriminated against older workers by putting a cap of seven-years experience on the job requirements. He believed that they automatically disqualified those that had more than seven years of experience as a way to promote younger applicants.
The case was first dismissed by a federal judge who stated that the laws and protection under the ADEA were only to extend to those who were current employees of a company instead of prospective employees. As the case moved on a then three-judge panel in the Seventh Circut court was divided but allowed to be reviewed en banc. It was then that the dismissal of the case was confirmed.
The official ruling and dissenting opinion
Judge Scudder of the majority summed up their ruling by stating, “Reading § 4(a)(2) in its entirety shows that Congress employed the term ‘any individual’ as a shorthand reference to someone with ‘status as an employee. The clear takeaway is that a covered individual must be an employee.”
The voice of dissent was strongest by U.S. Circut Judge David Hamilton, who referred to the majority's decision as naive. “Neither the defendant nor its amici have offered 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.”
He was not alone in his dissent. He was joined with U.S. Circuit Court Judges Wood and Rovner. Judge Easterbrook also help the majority decision was hasty, believing that their court should have followed the precedence set by the U.S. Supreme Court on the Griggs v. Duke Power case where the ruling allowed Title VII of the Civil Right Act to apply to job applicants as well, preventing discrimination against minorities.
So what does this mean for older workers re-entering the workforce?
In short, you will not be able to file a suit for alleged age discrimination when it comes to a prospective job. This does not change the fact that older employees are protected from discrimination in their current employment but can possibly prevent older workers from choosing to make a career change due to the fear that it may be more difficult to land the job they want.
Age discrimination is a major concern as workers are waiting longer to retire, or need employment for other reasons, such as healthcare. If you feel that you have been discriminated against because of your age in your current job, it is important to consult with an attorney to see what your options may be.