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Appellate Court Rules that Age Bias Disparate Impact Theory Pertains to Employees, Not Applicants

The 7th Circuit Court of Appeals ruled on January 23, 2019, that assertions of age discrimination arising from facially neutral hiring policies can be brought only by a company’s employees, not by job applicants. In Kleber v. CareFusion Corporation, the court agreed with recent rulings by other courts – most recently the 11th Circuit Court of Appeals in Villareal v. R.J. Tobacco Co. – holding that under the federal Age Discrimination in Employment Act (ADEA), only employees can state a claim that a company’s actions or policies resulted in an unlawful “disparate impact” due to age. “The ruling is a notable win for employers,” observes Nilan Johnson Lewis’ Mark Girouard. “It further affirms that disparate impact hiring claims are not permitted under the ADEA, blunting legal challenges that could otherwise up-end commonplace, and common sense, recruiting practices like college-campus recruiting.” To speak with Mark Girouard about this decision and takeaways employers should have for hiring liability, contact him at or 612.305.7579.

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