Amy Coney Barrett ruled on case that sided with employer in age discrimination case

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CHICAGO — Judge Amy Coney Barrett’s Supreme Court confirmation hearing is shining a light on an age discrimination case she presided over in Chicago.

Late in his law career, Dale Kleber found a listing for a staff attorney job  that stood out from the norm.

The job post aid the applicant should have at least three years of experience but no more than seven years. He said it struck him as discriminatory.

“I’ve counseled HR departments on what their job application criteria should look like and I knew it a heartbeat that I would never have allowed that,” Kleber said.

He applied for the job at San-Diego-based Care Fusion anyway. The company hired a 29-year-old, so he sued for age discrimination.

The case ended up in the 7th Circuit Court of Appeals and in front of Barrett, who along with the majority of judges on the panel — ruled against him, concluding age discrimination protections for employees don’t apply to job applicants.

“Why would applicants not be protected and people who already have jobs are protected? And that question has just been left hanging,” Kleber said.

While Barrett answered questions on Capitol Hill at her confirmation hearing, many senators are studying her past for clues about her possible future on the Supreme Court.

“They’ve got a few cases to go on and they’ll look at where she ruled and especially where she dissented, where she disagreed with the rest of the judges on her panel,” Terry Sullivan, a legal analyst, said.

While Sullivan said it’s a flawed approach, Kleber believes his case could be revealing.

“What would be her impact on for instance age discrimination narrowly but workers’ rights more generally and who’s she likely to side with?” Kleber said. “I think you’ll see a greater sympathy toward corporate interest and corporate positions.”

Kleber said the Supreme Court decline to hear his case. His focus now is to work with Congress to improve protections for older job applicants.

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