Federal Appeals Court Decision Could Have Huge Impact on Employment Discrimination Law

Companies large and small have always used college campus recruiting as an effective way to meet and recruit motivated new talent. Now legal experts are arguing that the practice could invite charges of age discrimination if the U.S. Court of Appeals for the Seventh Circuit sides with Dale Kleber, an attorney who is suing CareFusion Corp.

The case is based on the company having denied Kleber, an attorney with 25 years of law firm and in-house experience, a senior counsel procedural solutions position. Kleber sued under the federal Age Discrimination in Employment Act based on the company’s requirement that applicants have “no more than seven years of experience.” His case argues that the requirement violates the rights of older applicants by screening them out. Organizations and companies including the U.S. Chamber of Commerce have filed friend-of-the-court briefs arguing that the law’s protections are directed at employees rather than job applicants: they warn that allowing job applicants to sue for age discrimination would have a chilling effect on campus recruiting and similar long-standing hiring practices, and might even make them illegal.

Questions have long been asked about the scope of the federal employment discrimination laws, and particularly about how whether they extend beyond current employees. While many states — including New Jersey and California — have been explicit in their legal protection of those who are discriminated against during the hiring process, the federal law is less clear, in large part because of the specific concerns being expressed in this case.

In recognition of what is potentially at stake, Chief Judge Diane Wood of the Seventh Circuit specifically questioned Kleber’s attorney Dara Smith of the AARP Foundation about whether campus recruiting could end up being outlawed if plaintiffs were able to sue for age discrimination in hiring practices. Smith responded that there are already states that protect older job applicants, and that there have been no such actions, saying, “If an employer has hard caps, they will have to explain why that makes sense. She added, “We brought this case because we believe it is not reasonable. The problem is that he can’t even bring his claim. He won’t have the chance to argue why it’s reasonable.”

The judge then turned to an attorney arguing against interpreting the law as extending to job applicants, asking why California and New Jersey haven’t witnessed the “parade of horribles” that they fear. The best answer they seemed able to provide was concerns over “expensive litigation and extensive discovery and that will likely happen before the employer can extricate from anything.”

Whatever decision is made in federal court does not in any way impact the protections already in place for older job applicants in the state of New Jersey. If you believe that you have been the victim of any kind of discrimination, contact our office today to learn about your rights and how we can protect them.

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