September 5, 2018 / 4:05 PM / 9 months ago

REFILE-COLUMN-U.S. court cases aim to rein in age-discrimination hiring practices

 (Corrects paragraph 9 spelling to McCann instead of McGann)
    By Mark Miller
    CHICAGO, Sept 5 (Reuters) - Dale Kleber is an experienced
attorney, but when he spotted an ad back in 2014 for a corporate
law position at a medical device and services company that
specified “no more than seven years of experience,” he applied
    At age 58, Kleber had extensive experience working for law
firms, as an in-house general counsel and in general management
jobs. But he had been out of work since the summer of 2011, when
he lost his job as the CEO of a dairy industry trade
    Kleber’s search for senior-level general counsel positions
had proved fruitless, so he widened his scope to include more
junior positions. But his application for the position at
CareFusion, a medical device/services company, had gone nowhere.
CareFusion had not called him in for an interview for its senior
counsel job, and it ultimately hired a 29-year-old candidate,
according to the company's response to the original U.S. Equal
Employment Opportunity Commission complaint that preceded the
    Kleber, who lives in suburban Chicago, thought the
seven-year cap on experience described in the job ad violated
the federal Age Discrimination in Employment Act of 1967 (ADEA),
which protects the rights of workers aged 40 and older. “Very
few attorneys are practicing law who have more than seven years
and are not 40 years old, or older,” he said.
    Kleber and his lawyers say his story underscores the
difficulties older workers can face getting hired. In 2015 he
brought a lawsuit against CareFusion. They hope the case, if
successful, will expand legal protections against age
discrimination in hiring.
    The company that now owns CareFusion - Becton Dickinson and
Co         - denies that CareFusion discriminated against
Kleber. “Fostering an inclusive and diverse culture is at the
very heart of our core values,” said Troy Kirkpatrick, the
company’s senior director of public relations. “BD is deeply
committed to providing equal employment opportunities and a
workplace free from discrimination.”
    The Kleber case revolves around a legal concept known as
“disparate impact,” which occurs when a policy appears to be
nondiscriminatory, but still has a disproportionate impact on a
class of people who enjoy protection under the law. Kleber’s
claim is that the seven-year experience cap effectively weeded
out all older applicants, making it a “disparate impact” claim.
    The Kleber case is one of several lawsuits now working their
way through the courts dealing with alleged age discrimination
in hiring practices. One charges that companies discriminate
against older workers through use of advertising that
micro-targets only younger candidates. (
    Disparate impact is the biggest legal challenge facing
people trying to prove age discrimination in hiring, said Laurie
McCann, senior attorney with the AARP Foundation, which is
representing Kleber.
    “Unlike cases of dismissal, the burden is that you’re on the
outside looking in," she said. 
    In the Kleber case, she added, “The ad doesn’t specifically
say 'young people only,' but it has the effect of screening for
    The ADEA clearly covers employees claiming disparate impact,
but the current legal battle focuses on whether it protects
applicants as well. The question is important. A recent AARP
survey found that more than 90 percent of U.S. workers see age
discrimination as “somewhat or very common” in the workplace,
and 44 percent of older job applicants say they have been asked
(illegally) for age-related information from potential
    Kleber's resume includes a stint as general counsel for a
Fortune 500 company, Dean Foods Co       , consulting in the
dairy industry, and serving as CEO of the American Dairy
Products Institute. 
    When Kleber lost his job at the trade association, he and
his wife were still working to finish putting four children
through college, and while the family was not facing a financial
crisis, he did need an income. “I wanted to be able to meet our
expenses and not invade our retirement accounts - we still had
bills to pay.”

 (Reporting and writing by Mark Miller in Chicago
Editing by Lauren Young and Matthew Lewis)
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