David E. Morrison, a principal in the firm's Labor & Employment and Litigation groups, was quoted in "4 Takeaways After the 7th Circ. Limits ADEA's Scope," published in the Jan. 25, 2019, edition of Law360.
The article concerns the Seventh Circuit's recent ruling adopting a narrow view of the Age Discrimination in Employment Act. The ruling is a win for employers, but could result in plaintiffs relying more on state law claims.
In an 8-4 ruling, the en banc Seventh Circuit held that the text of section 4(a)(2) of the ADEA covers only discrimination against current employees and that outside job seekers can't sue businesses for so-called disparate impact claims alleging that they use practices that adversely affect older individuals. The Seventh Circuit became the second appellate court in the country to adopt such a precedent after the Eleventh Circuit issued a similar ruling in 2016 that the U.S. Supreme Court later refused to take up.
But even though those rulings may seem like a win for employers in those circuits, businesses still must be wary of state laws that provide more rigid protections for job seekers.
Mr. Morrison explained that state laws can include tougher requirements than federal laws, and that some states could look to pass more restrictive laws in the future.
"If a state had a law that you can't have a disparate impact applied to applicants, employers would be forced to follow that even if the federal law didn't apply because there's no real upside to being sued in state court for a class action even if they can't sue in federal court," he said. "The interesting thing to look out for is in blue states like California and Illinois where an opinion like this catches the attention of lawmakers and encourages lawmakers to pass more restrictive state laws."
From employers' perspective, Morrison said that allowing courts to look only at disparate impact of recruiting practices could jeopardize employers' ability to engage in standard programs like college campus recruiting or internships.