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7th Circuit Limits Age-Based Protections

By William Vogeler, Esq. | Last updated on

The Age Discrimination in Employment Act applies to employees, not job applicants.

That's the ruling in Kleber v. CareFusion Corportion, a case from the U.S. Seventh Circuit Court of Appeals. A majority said the plain language of the law protects only current employees.

It was an 8-4 decision by a 12-member panel, setting the stage for a possible appeal. But for attorney Dale Kleber, it's been too long already.

Age Discrimination

In 2011, Kleber applied for a senior staff position with CareFusion. He was 58 at the time.

He had more than 25 years of legal experience, including work as general counsel for a large corporation. But he didn't get the job.

In his lawsuit, he said CareFusion discriminated against him under the Age Discrimination in Employment Act. A 29-year-old lawyer with far less experience got the job, he said.

A federal judge dismissed his case, but a three-judge panel reversed. On en banc review, the Seventh Circuit stepped in and affirmed the dismissal.

"The Clear Takeaway"

In a 15-page opinion, the majority said it was a clear case.

"Reading § 4(a)(2) in its entirety shows that Congress employed the term 'any individual' as a shorthand reference to someone with 'status as an employee,'" Judge Michael Scudder said. "The clear takeaway is that a covered individual must be an employee."

Judge David Hamilton called the majority opinion "glib," "naive," and "wooden." Writing for the minority, he said the other judges had ignored "fifty years of history, context, and application" in their interpretation of the the statutory text.

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