Plaintiffs can bring employment discrimination claims under federal civil rights laws using one of two theories. Disparate treatment claims require the plaintiff to produce evidence of intent to discriminate due to a protected classification. Disparate impact claims, on the other hand, rely on an otherwise neutral policy or practice that results in a statistically significant discriminatory effect on members of a protected category. Last week, the Seventh Circuit Court of Appeals issued a split en banc decision concluding that the Age Discrimination in Employment Act only allows disparate impact claims by employees and not applicants for employment.

In Kleber v. CareFusion Corp., the plaintiff was a 58-year-old attorney who applied for an in-house counsel job. He alleged that he was disqualified for the position in favor of a 29-year-old on the basis of a maximum experience limit placed on the job. He sued under the ADEA, claiming disparate impact.

A Seventh Circuit panel rejected the employer’s contention that the section of the ADEA that governs disparate impact claims only applies to employees and not applicants for employment. The full Seventh Circuit disagreed, reversing the panel’s decision and dismissing the claim. The court based its decision on a technical reading of the two ADEA enforcement provisions, finding differences between the meaning of “individual” under each.

This interpretation is currently limited to states within the Seventh Circuit (Wisconsin, Illinois, and Indiana). It has no effect on disparate treatment cases, and the EEOC disagrees with the court’s interpretation of the ADEA’s disparate impact provision. If another federal appellate court takes the opposite position with regard to this language, there is a good chance that the U.S. Supreme Court will eventually resolve the conflict.