Discrimination against older employees and job seekers is and remains pervasive. For example, a 2017 study by the Federal Reserve Bank of San Francisco found that older applicants have call-back rates that are thirty to forty-seven percent lower than those of their younger counterparts. The study further found that the difference is most pronounced for older female job seekers, meaning that age discrimination compounds pre-existing gender disparities.
In 1967, Congress passed the Age Discrimination in Employment Act (“ADEA”) to combat this type of discrimination. Under the ADEA, it is unlawful for employers with more than twenty employees to disadvantage workers or applicants over forty because of their age. The ADEA prohibits intentional discrimination on the basis of age, and, under Smith v. City of Jackson, 544 U.S. 228 (2006), practices and policies that disproportionally disadvantage older individuals even in the absence of an intent to harm them because of their age, unless the employer can prove that the practice or policy is justified by a “Reasonable Factor Other than Age” (“RFOA”).
The Seventh Circuit recently joined the Eleventh Circuit in holding that the ADEA only offers limited protections for older job seekers. In Kleber v. CareFusion Corporation, the Seventh Circuit (sitting en banc) held that section 4(a)(2) of the ADEA, which provides the statutory underpinning for age-based disparate impact claims, only covers discrimination against current employees, not job applicants not already employed by a business. Under Kleber, job seekers who bring suit under the ADEA must establish that a hiring policy or practice which unfairly disadvantages them was adopted with the intention of excluding or hindering older applicants.
Proceeding under a disparate impact theory, plaintiffs have, for example, challenged the practice of limiting recruiting for entry-level positions to college campuses, which effectively bars older applicants from ever getting a foot in the door. See Rabin v. PricewaterhouseCoopers LLP, No. 3:16-cv-02276 (N.D. Cal.). Under the Kleber decision, companies can maintain these kinds of policies despite the fact that they systemically disadvantage older applicants even when these policies have not been adopted on the basis of an RFOA, and potentially serve no legitimate business need whatsoever. This robs plaintiffs in the states within the Seventh Circuit—Illinois, Wisconsin, and Indiana—of one important tool to combat age discrimination.
However, older job applicants in Illinois and Wisconsin are not entirely without recourse when challenging employer policies or practices that unreasonably disadvantage them without absence of intent. Both the Illinois Human Rights Act and the Wisconsin Fair Employment Act prohibit age discrimination, and both have been held to permit disparate impact claims. The Kleber decision is focused on the federal ADEA and does not reach the interpretation of these state statutes. Thus, while the Seventh Circuit has deprived older applicants of one important tool with which they can challenge age discrimination, Kleber leaves room for other avenues to challenge unfair policies and practices.
 See 775 Ill. Comp. Stat. Ann. 5/2-102 (Illinois Human Rights Act); Peyton v. Dep’t of Human Rights, 700 N.E.2d 451, 456 (1998) (noting that employment discrimination claims under the Illinois Human Rights Act can assert either disparate treatment or disparate impact); Wis. Stat. Ann. § 111.31 (Wisconsin Fair Employment Act); Racine Unified Sch. Dist. v. Labor & Indus. Review Comm’n, 476 N.W.2d 707, 718 (Ct. App. 1991) (“Wisconsin law recognizes two theories of employment discrimination—the disparate impact theory and the disparate treatment theory.”). By contrast, proof of intent is required for actions under the Indiana Civil Rights Act. See Ind. Code Ann. § 22-9-1-1 et seq., Indiana Bell Tel. Co. Inc. v. Boyd, 421 N.E.2d 660, 663–67 (Ind. Ct. App. 1981).