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 anyway.
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 association.
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 lawsuit.
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.
Other Cases Before the Courts
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 age.”
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 employers.
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.”