U.S. Supreme Court Declined to Hear Appeal Challenging Whether External Job Applicants Can Claim “Disparate Impact” Under ADEA

Q.  I heard that job postings which impose a maximum experience requirement for external applicants may not violate certain provisions of the ADEA, at least in certain Circuits. Is that true?

A.  The United States Supreme Court recently declined to review an en banc Seventh Circuit decision in Kleber v. CareFusion Corporation, which ruled that the Age Discrimination in Employment Act (“ADEA”) does not apply to external job applicants who allege that a neutral hiring policy adversely impacted older workers.

Dale Kleber, then 58 years old, applied for an in-house Senior Counsel position in CareFusion’s legal department. The job description provided that applicants must have “3 to 7 years (no more than 7 years) of relevant legal experience.” At the time, Kleber had accrued more than seven years of relevant experience. The company ultimately did not offer Kleber the job and instead hired a 29-year-old applicant who met but did not exceed the job description’s experience requirement. Kleber filed a lawsuit against CareFusion under the ADEA, which prohibits discrimination against those age 40 or older. One of his main arguments was that, although the company’s maximum experience requirement may have appeared neutral on its face, such requirement had a disparate impact on him as an older attorney.

The Seventh Circuit held that the disparate impact provision of the ADEA only applies to “employees,” and not outside job applicants seeking employment such as Kleber. Section 4(a)(2) of the ADEA, which applies to disparate impact claims, makes it unlawful for an employer “to limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” The court found that the plain language of this provision only protects those who have a “status as an employee,” and that Kleber did not have such status, since he was an outside applicant. The court also contrasted the disparate impact section with other portions of the ADEA which expressly cover both employees and job applicants, such as the provision which guides disparate treatment claims (i.e. a company intentionally refusing to hire an applicant because of his or her age). A final issue that the Seventh Circuit addressed was whether the ADEA’s text was similar enough to the text of Title VII that it should follow the same interpretation, as Title VII permits applicants to bring disparate impact claims. The court found that the two statutes are distinguishable.

Given the Supreme Court’s decision declining review, the Seventh Circuit’s ruling continues to remain enforceable and provides employers, at least in Indiana, Illinois and Wisconsin, with a sufficient defense to external applicants’ disparate impact claims under the ADEA. The Eleventh Circuit, which covers Alabama, Florida and Georgia, also has ruled in a manner consistent with the Seventh Circuit, refusing to extend the ADEA’s language on disparate impact to outside applicants. No other Circuit has addressed this issue yet.

One note: While employers may be able to successfully escape ADEA disparate impact claims from outside applicants, state and local anti-discrimination laws may extend to protections for outside applicants. In addition, the decisions of the Seventh and Eleventh Circuits have no effect on ADEA disparate impact claims brought by internal applicants already employed within the company. Furthermore, both internal and external job applicants remain protected under the disparate treatment sections of the ADEA. The Seventh and Eleventh Circuit decisions are therefore limited in nature, and employers across the country should continue to regularly monitor their job postings and hiring practices to comply with federal and state anti-discrimination laws.

Jonathan Gilman

 

Accommodations May Be Needed for Hearing-Impaired Job Applicants and Employees

Q: I understand that employers may be required to offer reasonable accommodations to hearing-impaired applicants and employees. When are accommodations required?  What kind of accommodations must employers offer?

A: The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment. In the context of a job application, an accommodation is considered to be reasonable if it enables an applicant with a disability to have an equal opportunity to apply for and be considered for a job.  In the context of employment, an accommodation is considered to be reasonable if it enables an employee to perform the essential functions of the position.

Employers should be aware of the importance of being alert to the need for potential accommodations, and following through on such accommodations in the case of hearing-impaired applicants and employees. In the application stage, employers may become aware that an applicant has a disability through voluntary disclosure, or because it is obvious, such as when the applicant uses a service to respond to telephone inquiries, or requests a sign language interpreter for an interview.  Upon obtaining such knowledge, employers should engage in the interactive process to inquire whether the applicant needs a reasonable accommodation for the application process.

It is important to separate the accommodations needed for the application process from those that may be needed to perform the job. Employers should not assume that the accommodation needed for the application process will be the same as the accommodation needed for the job.  Conversely, an individual may not need an accommodation for the application process, but may need one for the job itself.

Possible accommodations for hearing-impaired applicants during the application process may include a sign language interpreter and providing information in written rather than oral form. The same alteration of the way information is provided during the application process can constitute an accommodation for the job itself.  Other potential accommodations could include captioned or text telephones and voice recognition software.  Some accommodations may be needed only occasionally – for example, a deaf employee who can lip-read may be able to rely on lip-reading in his day-to-day communications, but may require a sign language interpreter for group meetings.

Employers are not required to provide a reasonable accommodation if the employee is not a qualified individual with a disability, if the employer and employee are not able to identify a reasonable accommodation that would enable the employee to perform the essential functions of the job, or if the accommodation would impose an undue hardship on the company.

The Equal Employment Opportunity Commission (EEOC) has recently focused its attention on alleged failures to accommodate hearing-impaired individuals, particularly during the employment application process. Whether the ability to hear is an essential function of a job (and thus, whether applicant or employee could perform the job with a reasonable accommodation) is a fact-specific inquiry.  For example, courts have held that the ability to hear audible alarms is an essential function under certain circumstances.  Courts have also held that strong verbal communication is an essential function of some jobs, and that an employee’s use of non-verbal modes of communication is not a reasonable accommodation of that function.

Employers should ensure that managers and human resources personnel are properly trained to identify situations where potential accommodations for deaf applicants or employees may be needed, and that such personnel understand how the accommodation process works.

Jessica Rothenberg