By now most of you know that under the Age Discrimination in Employment Act (ADEA) employers cannot discriminate against workers aged 40 or older. You may also know that your company practice, even a seemingly neutral one, is age discrimination if it has a disproportionately negative impact on workers age 40 and over. I’m guessing you also know that employees have sued — and won– cases on this very basis. But did you also know that the ADEA protects job applicants? ( I have posted on that before. Click here for review.) Beyond that, did you know that your seemingly neutral job posting (or other practices) may put you at risk? The 7th Circuit Court of Appeals just said so, and it’s a safe bet that at least a few other courts will follow suit, so let’s have a look at this issue, shall we?
The case is Kleber v CareFusion. The specific issue: experience caps. Chances are you already have an idea where this discussion is going. Here are the key facts:
Dale Kleber, an experienced attorney, applied to CareFusion for a position as Senior Counsel for Procedural Solutions in 2014. The job posting cited a need for a ‘business person’s lawyer’, who could ‘assume complex projects’. It also said that applicants must have “3 to 7 years of relevant legal experience”. Mr. Kleber’s experience included serving as the CEO of a national dairy trade association, General Counsel of a Fortune 500 company, and Chairman and Interim CEO of a medical device manufacturer. No one disputes that Mr. Kleber in fact had relevant legal experience. CareFusion did not select Mr. Kleber for an interview. Mr. Kleber was 58 years old when he applied to CareFusion. Out of 108 applicants, CareFusion interviewed 10, all of whom had no more than 7 years’ experience and ultimately hired a 29-year old candidate.
Kleber filed an EEOC charge. The EEOC issued a “right to sue” letter, and Kleber filed his ADEA lawsuit in December 2014. Kleber alleged that the “3-7 years’ experience” requirement had a disparate impact on older workers. Now, you probably can guess what CareFusion argued. As an employer, you might be thinking the very same thing. CareFusion said that the cap ensures that they don’t get overqualified employees, who would not stay. Kleber contended that CareFusion’s rationale was based on “unfounded stereotypes”, and that its true intention was to deter applicants over 40 years old from applying.
I do want to digress for just a moment here. Many have taken exception to the rationale advanced by CareFusion–and many other employers as well. Many have correctly pointed out that younger workers often job hop more than older, even seemingly overqualified workers. In other words, Mr. Kleber has a point– one that employers need to seriously consider.
OK, back to the case. CareFusion, taking a literal and narrow reading of the ADEA moved to dismiss the case, saying that the ADEA only protects employees, not applicants. The US District Court agreed and dismissed the claim and on appeal, the 7th Circuit Court of Appeals reversed, holding that Congress “clearly” intended the ADEA to apply to applicants, because it makes it unlawful for employers to “fail or refuse to hire..any individual…because of such individual’s age”. This is where I point out the overly obvious: you can’t fail or refuse to hire an employee. They’re already hired, so yes, that language probably refers to applicants. Who else could it mean?
So now the case goes back to the US District Court and continues along, in accordance with the 7th Circuit ruling. In other words, if the parties don’t settle, then the case can go to trial.
So, what should the rest of us common folk take from this ruling? In a nutshell: stay away from experience caps in your job postings. Minimums are OK. You can say “at least 3 years’ relevant legal experience”. You can describe the types of key functions. If you do receive an application from someone who you suspect is overqualified, don’t reject the candidate on that basis. Interview the candidate and treat him or her the way you would treat other qualified candidates. In other words, see if s/he is otherwise a good fit for your organization. Don’t assume that s/he is less likely than a younger candidate to stay at the job. If the position is one with limited opportunities for advancement, a younger candidate may be even more likely to leave after getting enough experience to move on to another opportunity.
OK, that’s all I got for now. See you next week!
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