The decision of Judge Michael Scudder (approved by a majority) ruled that the "disparate impact" provisions of the ADEA apply only to workers already in employment.

The ruling said that if Congress wanted to cover job applicants, it would have said so in the legislation.

Job seekers are protected against deliberate and intentional acts of discrimination. An employer will be held guilty regardless of whether the claimant is employed there.


Judge Scudder’s decision upholds an earlier decision by federal District Judge Sharon Johnson Coleman. In this, she ruled in favour of CareFusion Corp and against Dale Kleber. Kleber was a 58 year old lawyer who sought a job with CareFusion, but was ultimately unsuccessful. A 29 year old was hired and, since CareFusion’s experience standards amounted to “disparate impact” (as opposed to overt discrimination) Mr Kleber did not benefit from protection against discrimination.

Judicial trends

Some have noted the approach taken by Judge Scudder in his ruling. Rather than interpret the legislation broadly (as courts tended to at the time the legislation was drafted), a strict “letter of the law” reading was made. This “textualist” approach is one followed by other Judges who are ideologically more right wing.

Instead, far-right judges are increasingly becoming ‘textualists,’ focusing on grammatical nuances rather than legislative history to interpret disputed statutory provisions.
— Andrew Strom, writing in Harvard Law School's "On Labor" blog