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Court Rules Unintentional Age Discrimination Can Occur During Application Process

On April 26, 2018, the 7th Circuit ruled that job applicants—not just employees—can assert age discrimination claims arising from facially neutral hiring policies. In Kleber v. CareFusion Corporation, the court departed from recent rulings by other courts—most recently the 11th Circuit in Villareal v. R.J. Tobacco Co.—which have held that only employees can claim that a company’s activities or policies had a “disparate impact” due to age. “This clear circuit split makes it more likely that the U.S. Supreme Court will take up the issue on appeal, affecting employers nationwide,” said Pablo Orozco, an employment attorney at Nilan Johnson Lewis. Orozco advises employers with a presence in Illinois, Indiana and Wisconsin to review their hiring practices. “Employers should pay particular attention to hiring practices for junior roles or special programs such as internships, as well as recruitment practices that only target a particular age range or place caps on years of prior experience,” Orozco adds. If you would like to speak with Pablo Orozco about compliant hiring practices or other topics related to age discrimination claims, contact him at or 612.305.7729.

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