Dale Kleber v. CareFusion Corporation

Hamilton, Circuit Judge.

The key provision of the Age Discrimination in Employment Act of 1967 prohibits employment practices that discriminate intentionally against older workers, and prohibits employment practices that have a disparate impact on older workers. 29 U.S.C. § 623 (a)(1), (a)(2) ; Smith v. City of Jackson , 544 U.S. 228 , 125 S.Ct. 1536 , 161 L.Ed.2d 410 (2005). The central issue in this appeal is whether the disparate impact provision, § 623(a)(2), protects only current employees or whether it protects current employees and outside job applicants. We hold that § 623(a)(2)…