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Kleber v. CareFusion Corp.

United States Court of Appeals for the Seventh Circuit

September 6, 2018, Argued; January 23, 2019, Decided

No. 17-1206


 [*481]  Scudder, Circuit Judge. After Dale Kleber unsuccessfully applied for a job at CareFusion Corporation, [**2]  he sued for age discrimination on a theory of disparate impact liability. The district court dismissed his claim, concluding that § 4(a)(2) of the Age Discrimination in Employment Act did not authorize job applicants like Kleber to bring a disparate impact claim against a prospective employer. A divided panel of this court reversed. We granted en banc review and, affirming the district court, now hold that ] the plain language of § 4(a)(2) makes clear that Congress, while protecting employees from disparate impact age discrimination, did not extend that same protection to outside job applicants. While our conclusion is grounded in § 4(a)(2)'s plain language, it is reinforced by the ADEA's broader structure and history.

In March 2014, Kleber, an attorney, applied for a senior in-house position in CareFusion's law department. The job description required applicants to have "3 to 7 years (no more than 7 years) of relevant  [*482]  legal experience." Kleber was 58 at the time he applied and had more than seven years of pertinent experience. CareFusion passed over Kleber and instead hired a 29-year-old applicant who met but did not exceed the prescribed experience requirement.

Kleber responded by bringing this action and pursuing [**3]  claims for both disparate treatment and disparate impact under § 4(a)(1) and § 4(a)(2) of the ADEA. Relying on our prior decision in EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th Cir. 1994), the district court granted CareFusion's motion to dismiss Kleber's disparate impact claim, reasoning that the text of § 4(a)(2) did not extend to outside job applicants. Kleber then voluntarily dismissed his separate claim for disparate treatment liability under § 4(a)(1). This appeal followed.

We begin with the plain language of § 4(a)(2). "If the statutory language is plain, we must enforce it according to its terms." King v. Burwell, 135 S. Ct. 2480, 2489, 192 L. Ed. 2d 483 (2015). This precept reinforces the constitutional principle of separation of powers, for our role is to interpret the words Congress enacts into law without altering a statute's clear limits. See Puerto Rico v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1949, 195 L. Ed. 2d 298 (2016).

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914 F.3d 480 *; 2019 U.S. App. LEXIS 2192 **; 103 Empl. Prac. Dec. (CCH) P46,201; 2019 WL 290241

DALE E. KLEBER, Plaintiff-Appellant, v. CAREFUSION CORPORATION, Defendant-Appellee.

Subsequent History: US Supreme Court certiorari denied by Kleber v. CareFusion Corp., 2019 U.S. LEXIS 4770 (U.S., Oct. 7, 2019)

Prior History:  [**1] Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:15-cv-1994. Sharon Johnson Coleman, Judge.

Kleber v. CareFusion Corp., 2015 U.S. Dist. LEXIS 157645 (N.D. Ill., Nov. 23, 2015)


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Labor & Employment Law, Age Discrimination, Scope & Definitions, Covered Employees, Discriminatory Employment Practices, Discharges & Failures to Hire, Constitutional Law, Separation of Powers, Governments, Legislation, Interpretation, Business & Corporate Compliance, Discrimination, Scope & Definitions, Disparate Impact