Kleber v. CareFusion Corp., No. 17-1206 (7th Cir. 2018)Annotate this Case
Kleber is an attorney with extensive experience, including private law practice in Chicago, work as a general counsel for a major national company, and leadership of a national trade association, a real estate development company, and a medical device company. In 2011, Kleber began applying for jobs, sending more than 150 applications without success, including applications for less senior positions. In 2014, Kleber (58 years old) applied for a position as “Senior Counsel, Procedural Solutions.” The posting stated that applicants must have “3 to 7 years (no more than 7 years) of relevant legal experience.” The company did not interview Kleber and filled the position with a 29‐year‐old applicant. Kleber filed a charge of age discrimination with the Equal Employment Opportunity Commission, then filed suit, alleging disparate treatment and disparate impact. The Seventh Circuit reversed the dismissal of the case. The Age Discrimination in Employment Act prohibits employment practices that discriminate intentionally against older workers and prohibits employment practices that have a disparate impact on older workers, 29 U.S.C. 623(a)(1), (a)(2), and protects both outside job applicants and current employees. The court noted the virtually identical language in Title VII and stated that it could not imagine why Congress might have chosen to allow disparate impact claims by current employees, including internal job applicants while excluding outside job applicants.
The court issued a subsequent related opinion or order on January 23, 2019.