Dale Kleber, a veteran lawyer, had been unemployed and job hunting for three years when he came across a position that seemed promising, but for this part of the ad: “3 to 7 years (no more than 7 years) of relevant legal experience,” it said.
Kleber, 58 at the time, had decades of experience, including as general counsel at Dean Foods and, most recently, as CEO of a dairy products trade group. But his efforts to land a new job at that level had been unsuccessful, and he didn’t want to draw down his retirement accounts to make ends meet.
So the Hinsdale man applied for the advertised senior counsel position in the Vernon Hills office of medical technology company CareFusion, hoping to use his expertise in corporate transactions. He was never called in for an interview.
Eventually Kleber sued, claiming the seven-year experience cap discriminated against older applicants.
“You look at a job, a job you can do and do well, and you’re precluded from that strictly because you’ve been around the block a few times,” Kleber, now 62, said. “The impact was clearly that just about anyone over 40 wasn’t going to be considered, and I thought that was discriminatory.”
Many graying job seekers feel they are overlooked for positions because of their age, even as people stay in the workforce longer to shore up their savings or because better health allows for it. The share of people 55 and older who are working has doubled over the past 25 years, and the trend shows signs of accelerating. The population of working adults who are 65 or older is expected to rise by 75 percent between now and 2050, compared with just 2 percent growth for workers ages 25 to 54.
Sometimes discrimination is overt, such as job ads that explicitly request an age range. But recent litigation has taken on hiring practices that can negatively impact older applicants in subtler ways, such as through experience caps or targeted job ads that only show up only in certain people’s social media feeds.
“While blatantly age-based job ads have disappeared, many employers continue to engage in practices that are almost as obviously age-based,” Laurie McCann, senior attorney with the AARP, testified last year to the Equal Employment Opportunity Commission. Specifying a minimum number of years of experience for a position is legitimate. “Specifying a maximum number of years of experience has a clear disparate impact on older applicants,” McCann said.
Kleber’s case, now before the U.S. 7th Circuit Court of Appeals in Chicago after a federal trial court judge dismissed the claim, raises a critical question about whether job applicants can pursue such lawsuits at all. The federal Age Discrimination in Employment Act prohibits discrimination against people over 40, but there is dispute about whether Congress intended for the law to protect external job applicants, not just current or former employees, against policies that appear to be neutral but have a disproportionate adverse effect on older people.
Federal appeals courts have been split on the issue of whether or not applicants can pursue such age discrimination claims, which makes it likely the case could end up before the Supreme Court.
“If the court decides that applicants can’t bring this type of action, employers don’t have to worry about whether their job ads screen out older workers or not,” said Dara Smith, an attorney with the AARP who is representing Kleber.
San Diego-based CareFusion, now owned by New Jersey-based Becton, Dickinson and Co., denies that it discriminated against Kleber.
“Fostering an inclusive and diverse culture is at the very heart of our core values,” spokesman Troy Kirkpatrick said in a statement. “BD is deeply committed to providing equal employment opportunities and a workplace free from discrimination.”
CareFusion said in court filings that Kleber wasn’t considered for the role because he didn’t fit the qualifications, including the seven-year maximum experience cap, but that had nothing to do with this age.
The company, which hired a 29-year-old to fill the position, defended the experience cap “based on the reasonable concern that an individual with many more years of experience would not be satisfied with less complex duties or comfortable taking direction from an attorney with less experience which could lead to issues with retention,” it wrote in response to the initial charge Kleber filed with the EEOC.
But Kleber, a father of four who had two children in college during the time he was unemployed, said that that’s an unfair assumption.
“I don’t think they’re in a position to tell me which job I’m interested in,” he said. “If I didn’t want the job I wouldn’t have applied for it.”
Any contention that applicants are “overqualified,” he said, “I believe is a code word for ‘too old.’ ”
A federal trial court judge dismissed Kleber’s claim, saying the statute doesn’t cover external job applicants. But that decision was reversed on appeal by a three-judge panel on the 7th Circuit, which in a 2-1 opinion said it “could not imagine” why Congress would want to protect employees and internal applicants from age discrimination but not external applicants.
CareFusion was granted a rehearing by the full 7th Circuit, and all 12 judges sat for oral arguments earlier this month. They could issue an opinion at any time on whether Kleber’s lawsuit can proceed.
Resolving the question of whether or not job applicants can challenge hiring policies that disproportionately impact older people is important because age-related hiring discrimination is difficult to prove and often goes unreported, said Ray Peeler, associate legal counsel at the EEOC. Allowing applicants to bring those claims would offer up another tool for fighting age discrimination, he said.
The agency, which receives about 20,000 age discrimination charges every year, issued a report in June citing surveys that found 3 in 4 older workers believe their age is an obstacle in getting a job — and it’s not just perception. The report also drew on 2015 research that reviewed 40,000 applications and found that applicants ages 64 to 66 were significantly less likely to get called for interviews than applicants in their 20s.
However, while most older people say they have seen or experienced age discrimination, only 3 percent have made a formal complaint, the EEOC said. The futility has broader consequences as people may give up trying to get a job altogether, it said.
At the root of the problem are assumptions that older people aren’t as able or agile as young people fresh out of college, even through research has shown the effects of aging are highly individualized.
“While speedy thinking may decline over time, middle-aged brains adapt to reach solutions faster, make sounder judgments, and better navigate the complex world of today,” the EEOC said in its June report. “Innovation and creativity span the age spectrum as well.”
The EEOC, in an amicus brief filed in another hiring discrimination case, has taken the position that older applicants can pursue claims over policies that disproportionately impact them. But the U.S. 11th Circuit Court of Appeals in Atlanta came to the opposite conclusion in its 2016 decision in that case, opining that federal discrimination law did not protect a middle-aged man who tried and failed six times to get hired as a territory manager with tobacco company R.J. Reynolds, whose hiring policies targeted candidates who were two to three years out of college.
Meanwhile, a federal judge in Northern California has ruled job applicants can bring claims against PwC in a case that alleges the accounting giant engaged in systematic discrimination against older applicants by primarily hiring entry-level accountants through campus recruiting and providing no mechanism for people no longer affiliated with a college to apply for those jobs. If that case, which seeks class-action status, gets appealed to U.S. 9th Circuit Court of Appeals, it could lead to yet another differing appellate court ruling.
The legal challenges come as the aging population changes the face of the workforce.
“We are in a pretty unique position right now where there are four generations that are in the office at the same time, so I think that certainly brings it around more,” the EEOC’s Peeler said.
The conflicting opinions on whether older job applicants can challenge policies that indirectly disadvantage them center on the language of the 1967 federal age discrimination statute, which refers to protecting “employees” or “individuals” from adverse impacts of employment practices but does not specifically address “applicants.” Smith, Kleber’s attorney, said during oral arguments before the 7th Circuit that they’re ambiguous terms and the intent of the law is to protect older people who want to be employed as well as those who already are.
But CareFusion attorney David Schenberg argued that “we assume that Congress meant what it wrote and it wrote what it meant,” and interpreting it differently could hurt the ability of businesses to hire efficiently. The U.S. Chamber of Commerce filed an amicus brief on behalf of CareFusion warning that on-campus recruiting could be at risk if employers faced accusations that the tradition had the effect of screening out older people.
Smith said there is no threat to recruiting on college campuses if it is just one of several ways employers fill jobs. Hiring practices that have a disproportionate impact on older people are still legal if employers can show they are reasonable and not based solely on age.
But Schenberg worries a win for Kleber would mean those traditions would be challenged.
“When I’m not practicing appellate law, I’m a class-action lawyer,” Schenberg told the court. “It’s all well and good to say that some plaintiffs lawyers wouldn’t bother to sue, but some will, and it will mean expensive litigation and that will happen.”
While experience caps and on-campus recruiting have been around a long time, new hiring practices enabled by social media and algorithms are also coming under fire for effectively shutting out older workers.
The Communications Workers of America union filed an age discrimination lawsuit in December against multiple employers that used targeted job ads that appeared only on the Facebook pages of people within a certain age range. The lawsuit, which seeks class-action status, says people not in the desired demographic didn’t see the ads at all.
Illinois Attorney General Lisa Madigan last year also took aim at age bias in the digital age, warning five national job search companies that some of their online search functions required applicants to input dates for graduation or work history but cut off the dates at 1980. All of the companies changed their practices after receiving the letters, and the office has not received any additional complaints regarding the career websites, the attorney general’s office said this week.
The stakes are high in the fight against age-based hiring discrimination as people who are not economically capable of retiring seek to work later into their years, so “you’ve got an increasing potential applicant pool that can be affected one way or another,” said Joe Yastrow, a partner with Chicago-based Laner Muchin who represents management and is not involved in the aforementioned litigation.
Employers should rethink recruiting practices like experience caps that might exclude older people, Yastrow said — not only because they could run afoul of discrimination laws but also because they could miss valuable talent.
“There are so many factors to look at (in an applicant): maybe he has business connections, maybe there are other attributes he brings to the organization,” said Yastrow, who noted that many people nearing retirement age are happy to take a role with less autonomy or authority. “In my experience, including my own firm, we don’t put a hard cap because there are all sorts of other factors that are important.”