Dale Kleber v. CareFusion Corporation

Scudder, Circuit Judge.

After Dale Kleber unsuccessfully applied for a job at CareFusion Corporation, he sued for age discrimination on a theory of disparate impact liability. The district court dismissed his claim, concluding that § 4(a)(2) of the Age Discrimination in Employment Act did not authorize job applicants like Kleber to bring a disparate impact claim against a prospective employer. A divided panel of this court reversed. We granted en banc review and, affirming the district court, now hold that the plain language of § 4(a)(2) makes clear that Congress, while protecting employees…