7th Cir: ADEA disparate impact only applies to employees, not applicants

Not official use. 

In Kleber v. CareFusion Corp., the Seventh Circuit (en banc) held that "that Congress, while protecting employees from disparate impact age discrimination [under the ADEA], did not extend that same protection to outside job applicants." Woah, that's big, right? How did they get there?

The Court focused on the statutory text. The disparate impact provision of the ADEA makes specific reference to protecting one's "status as an employee." Welp, an applicant is not an "employee," right? The Court also contrasted the disparate impact provision with the disparate treatment provision, which makes it unlawful for an employer "to fail or refuse to hire . . . any individual . . . because of such individual's age."

This is a controversial ruling, and the Court split with four judges dissenting. I would not be surprised to see a circuit split on this issue and/or Supreme Court review.