In Debt and Overqualified

By Lehr Middlebrooks Vreeland & Thompson, P.C.

February 27, 2019

According to the February 2, 2019, issue of the Wall Street Journal, “$86 billion in student debt was owed by Americans aged 60 and over in 2017” and there was a “161% rise in student loan debt for those aged 60 and over from 2010 to 2017.” So, what does this have to do with being overqualified? We have commented in prior posts about individuals aged 60 and above who will need to work longer because of limited retirement funds. The comments about debt for those over 60 – their children’s school debt and their own – is further evidence of the pressure that employers will feel when faced with hiring decisions involving applicants who are age 60 and older.

The recent case of Kleber v. CareFusion Corporation (7th Cir. Jan. 23, 2019) involved a 58-year-old applicant who claimed an employer’s requirement for “3 to 7 years, no more than 7 years of relevant legal experience” had a disparate discriminatory impact on the plaintiff, a 58-year-old attorney with of course, vastly more experience. A 29-year-old was hired for the job, and the 29-year-old’s years of experience was in the range the employer sought.

Kleber claimed that an employer’s requirement for a fixed amount of experience had a discriminatory impact based upon age. The Court rejected the availability of the disparate impact theory to prove a case of age discrimination. The disparate impact theory relieves the plaintiff of proving intent but forces the plaintiff to prove a statistically significant adverse impact on his/her protected class. (Most employment discrimination cases are disparate treatment cases, where the plaintiff bears the burden of proving discriminatory intent). The Court stated that the ADEA provides that “it shall be unlawful for an employer ... to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age...” The Court in an 8-4 decision stated that “any individual” applies only to those who are employees. That is, a disparate impact claim for age discrimination could only be made by one who is employed, and not an applicant. This would mean that a disparate impact claim could be pursued over a promotion decision, but not a hiring decision.

Cases are pending in other circuits where the disparate impact theory of age discrimination in hiring may be more favorably received by the courts. Kleber could have pursued the disparate treatment theory by asserting that the limitation on experience was a subterfuge to avoid hiring an older applicant. We expect continued pressure on employers when dealing with individuals who are well into the protected age group who seek employment for positions where the employer seeks candidates with far less experience, and therefore, younger.