UPDATE: Oct. 7, 2019: The U.S. Supreme Court has declined to review Kleber, leaving intact the 7th Circuit's ruling that the ADEA's disparate impact protections do not apply to external applicants.

Dive Brief:

• A 58-year-old plaintiff and the AARP have asked the U.S. Supreme Court to decide whether the Age Discrimination in Employment Act (ADEA) protects outside job applicants (Kleber v. CareFusion Corp., No. 18-1346 (S. Ct. April 23, 2019)).
• Dale Kleber unsuccessfully applied for an in-house attorney position at a medical technology firm that, in a job advertisement, requested a maximum of seven years' experience. After losing out on the position to a 29 year old, he sued. His case made its way to the 7th U.S. Circuit Court of Appeals, which held in a 8-4 en banc decision that the ADEA's disparate impact protections do not apply to external applicants.
• Kleber and AARP told the nation's top court that it should take up the case because the appellate court's holding that applicants can't allege disparate impact — a legal theory that allows the effect of an action on a group of people, as opposed to the motivation for that action, to be considered — conflicted with several Supreme Court decisions. Specifically, they said, the 7th Circuit's ruling "thwarts Congress's principal reason for enacting the ADEA — eliminating age discrimination against older job applicants." Without the disparate impact theory, Kleber argued, "outside applicants are defenseless against covert and indirect discriminatory policies and practices that deny older job applicants fair treatment." A spokesperson for the Supreme Court said via email that it takes about six weeks for the court to act once a petition has been filed.

Dive Insight:

Age discrimination remains in the spotlight this year, not only as the High Court considers Kleber, but also as the U.S. Equal Employment Opportunity Commission (EEOC) continues its ramped-up enforcement on the issue. While such actions have been illegal for more than 50 years, age discrimination remains employment's "open secret," an agency official told HR Dive last year. Kleber's petition echos that sentiment, noting that "age discrimination in hiring remains a pervasive presence in the U.S. workforce."

On the other hand, employers seeking a diverse workforce are beginning to consider older workers in their inclusion efforts. Likewise, those looking to prevent claims can train managers on detecting and reducing age bias; stakeholders can, among other things, consider where they look for applicants. Notably, a federal court granted collective action certification to plaintiffs alleging PwC discriminated against older applicants by recruiting on college campuses and school-affiliated job sites just weeks ago.

Job advertisement language may require a second look, too, as the facts alleged in Kleber illustrate. Experts — including those at EEOC — recommend removing phrases such as "digital native" or "energetic" from ads in an effort to avoid dog whistles for ageism.