7th Circuit: ADEA’s “Disparate Impact” Section Does Not Apply to Job Applicants

In Kleber v. CareFusion Corp., No. 17-1206 (7th Cir. Jan. 23, 2019), the court held that the section of the Age Discrimination in Employment Act (ADEA) prohibiting “disparate impact” discrimination does not apply to job applicants.

That section, 4(a)(2), makes it unlawful for an employer

to limit, segregate, or classify his employees in
any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.

29 U.S.C. § 623(a)(2).

Citing the “plain language” doctrine of statutory construction, the court held (inter alia):

By its terms, § 4(a)(2) proscribes certain conduct by employers and limits its protection to employees. The prohibited conduct entails an employer acting in any way to limit, segregate, or classify its employees based on age. The language of § 4(a)(2) then goes on to make clear that its proscriptions apply only if an employer’s actions have a particular impact—“depriv[ing] or tend[ing] to deprive any individual of employment opportunities or otherwise adversely affect[ing] his status as an employee.” This language plainly demonstrates that the requisite impact must befall an individual with “status as an employee.” Put most simply, the reach of § 4(a)(2)
does not extend to applicants for employment, as common dictionary definitions confirm that an applicant has no “status as an employee.”

The court therefore affirmed the decision of the district court below, which dismissed the plaintiff’-appellant’s ADEA claim.