It is not uncommon for a job posting state that the ideal candidate is a person with a certain number of years of relevant experience. Setting a target range of years of experience signals to applicants the level of complexity of the work or the skill level required, and can assist applicants in determining whether they would be a good fit for the job. One unintended consequence of such a prerequisite, however, is that individuals over the age of 40 may be disqualified or self-select out of the pool of eligible candidates.
Even though a cap on years in a certain field does not on its face express a preference for a younger candidate, it can raise issues under the Age Discrimination in Employment Act (ADEA), which protects individuals over age 40 from employment discrimination because of their age. The Seventh Circuit addressed this question as it pertains to outside applicants over the age of 40 on January 23, 2019. In Kleber v. CareFusion Corporation, the Seventh Circuit determined that the ADEA does not provide recourse through a disparate impact claim for external applicants applying for a job with a years-of-experience limitation.
The plaintiff (Kleber), an attorney, was 58-year-old when he applied for a position in CareFusion’s legal department. The job description for the position required the applicant to have “3 to 7 years (no more than 7 years) of relevant legal experience.” The plaintiff, who had well over seven years of experience in the legal field, sued CareFusion for age discrimination when he was passed over for a 29-year-old, whose years of experience fell within the required range.
The plaintiff argued that the experience requirement was a barrier to applicants over the age of 40 and had a disparate impact on older persons. The district court dismissed the plaintiff’s claim on the ground that the ADEA disparate impact provision, §4(a)(2), did not apply to applicants who were not already “employees.” Section 4(a)(2) states: “It shall be 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 . . . .” In an 8-4 decision, the Seventh Circuit affirmed the dismissal of the plaintiff’s disparate impact claim based on the “plain language” of the section. The court interpreted the statute to mean that “any individual” means those people with “status as an employee,” excluding outside applicants from coverage.
While this case limits an external applicant’s ability to bring a disparate impact claim, employers should still be wary of ADEA litigation involving experience limits. Current employees over 40 applying for open positions, when years-of-experience limits exist, could potentially use §4(a)(2) as the basis for a claim. To reduce the risk of a lawsuit when posting open positions, employers should consider substituting a years-of-experience limit with more detailed description of the specific types of experience and skills required to perform the job. We will continue to monitor developments in this area and encourage readers to seek legal advice to address specific questions.