Eleventh Circuit

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On March 21, 2019, the full en banc U.S. Court of Appeals for the Eleventh Circuit clarified that in order to establish a prima facie case of workplace discrimination through alleged preferential treatment of a comparator outside the plaintiff’s protected class, a plaintiff must show that the alleged comparator is “similarly situated in all material respects.” The opinion clarifies the “similarly situated” standard in discrimination cases and may assist employers in obtaining summary judgment, particularly in cases in courts located in the Eleventh Circuit, which includes Florida, Georgia, and Alabama.

In Lewis v. Union City, Georgia (Case No. 15-11362), an African-American woman sued her former employer for race and gender discrimination. In support of her claim, she identified two white men who she alleged were treated more favorably. The district court granted summary judgment to the employer, concluding that the two white men were not proper comparators, but a panel of the Eleventh Circuit reversed.Continue Reading Eleventh Circuit holds that comparators in discrimination cases must be “similarly situated in all material respects”

The U.S. Court of Appeals for the Seventh Circuit recently reversed its prior decision and upheld an Illinois district court ruling that the federal Age Discrimination in Employment Act (ADEA) does not protect job applicants from disparate impact claims. But beware, as this seemingly apparent win for employers in Illinois, Indiana, and Wisconsin may drive employees to bring their claims under more forgiving state anti-discrimination laws, which often provide for greater damages.

Case background and decision

The plaintiff in Kleber v. CareFusion Corporation, No. 17-1206, 2019 WL 290241 (7th Cir. Jan. 25, 2019) was a 58-year-old attorney who applied for and was denied a general counsel position. The job posting sought an attorney with three to seven years of experience. CareFusion hired a 29-year-old attorney for the role. In his lawsuit, Kleber argued that CareFusion’s “cap” on experience effectively weeded out older applicants.

Initially, a three-judge Seventh Circuit panel found that the ADEA did apply to disparate impact claims by job seekers. But when the full Seventh Circuit reheard the case, it ruled 8–4 that Section 4(a)(2) of the ADEA covers only discrimination against current employees, meaning that non-employee job seekers cannot sue companies for so-called disparate impact claims alleging neutral practices that adversely affect older applicants, thus affirming the district court’s original finding. Comparing the text of various ADEA provisions, the full Seventh Circuit’s majority opinion concluded that Congress did not intend for the Act to cover applicants asserting disparate impact claims.

Importantly, the ruling does not limit an applicant’s ability to sue for intentional age discrimination, such as a potentially ageist comment by a recruiter or a job posting stating “applicants over 40 need not apply.”

The Seventh Circuit joins the Eleventh Circuit (covering Alabama, Florida, and Georgia), which issued a similar ruling in 2016.Continue Reading Seventh Circuit limits ADEA’s scope, but beware state law