Last week, in an 8-4 en banc decision, the
Seventh Circuit held that the Age Discrimination in Employment Act
does not provide a cause of action for outside job applicants on a
"disparate impact" theory. Kelber v. CareFusion Corp., No. 17-1206
(Jan. 23, 2019). Beyond the result, the court sharply divided
over how to interpret the statute. Writing for the court,
Judge Michael Scudder held that "plain language" dictated
the outcome of the case, while Judge David Hamilton's principal
dissent aggressively defended a purposivist approach to statutory
interpretation.
Section 4(a)(2) of the ADEA makes it unlawful for an employer
"to limit, segregate, or classify his employees
in any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his status
as an employee, because of such individual's age." 29
U.S.C. § 623(a)(2) (emphasis added). Judge Scudder focused on
the fact that the text limits itself to
