Be Careful with Job Postings in the 7th Circuit: Considerations in light of Kleber v. Carefusion Corporation

As a way to screen perceived overqualified applicants from applying for an open position, employers sometimes put experience caps on job postings.  But be careful.  While this is a seemingly neutral practice, it could put your company at risk.

In Kleber v. Carefusion, a 58-year-old attorney, Dale Kleber, with significant legal and business experience applied for a senior counsel position with CareFusion Corporation. In its job posting, Carefusion said it was seeking “a business person’s lawyer” and listed as a qualification, “3 to 7 years (no more than 7 years) of relevant legal experience.” Mr. Kleber did not get an interview, and the company hired a 29-year-old applicant.

Scales of JusticeAfter obtaining a right to sue from the Equal Employment Opportunity Commission, Mr. Kleber filed a lawsuit in the U.S. District Court in Chicago, alleging violations of the Age Discrimination in Employment Act (“ADEA”).  Carefusion’s seven-year experience cap was at the heart of the lawsuit.  Mr. Kleber claimed that the experience cap had a disparate impact on older applicants because their work experience would be more likely to exceed the cap.  In the ADEA context, disparate impact claims are claims alleging a company policy or practice has a disproportionately negative impact on older workers.  CareFusion, taking a literal and narrow interpretation of the ADEA, moved to dismiss the lawsuit by arguing that the ADEA only protects employees, not outside applicants, from disparate impact. The District Court agreed and dismissed the lawsuit.  Mr. Kleber appealed.

At the Seventh Circuit Court of Appeals, Carefusion maintained its argument regarding a literal reading of the ADEA.   The U.S. Chamber of Commerce also submitted an amicus curiae brief in support of CareFusion’s position, arguing that protecting outside job applicants from age discrimination would subject employers to potential liability for such practices as recruiting at colleges.  Ultimately, the Seventh Circuit Court of Appeals reversed the decision of the District Court, holding that Congress “clearly” intended the ADEA to apply to outside applicants.  The Seventh Circuit serves the states of Illinois, Indiana, and Wisconsin.

Significantly, the Seventh Circuit Court of Appeals did not rule that experience caps have a disparate impact on older applicants, just that Mr. Kleber had a right to be heard on the issue.  We will have to wait and see what the District Court says.  Even so, a best practice would be to not use experience caps as a hiring criterion.  Experience minimums are okay.  If there is any question that your employment policies or practices may have a disparate impact on older applicants or workers, you should consult with an experienced employment law attorney.


Image Credit: From Pixabay, Creative Commons license, free for commercial use.