Wyatt Employment Law Report

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Federal Appellate Court Extends ADEA to Job Applicants

By Thomas E. Travis

On April 26, 2018, the U.S. Court of Appeals for the Seventh Circuit ruled that portions of the Age Discrimination in Employment Act (“ADEA”) protect job applicants, in addition to internal employees.

Dale Kleber, a 58-year old attorney applied for a legal position with CareFusion, a healthcare product company.  The job posting called for a “business person’s lawyer” capable of “assum[ing] complex projects.”  The position’s qualifications required “3 to 7 years (no more than 7 years) of relevant legal experience.”  CareFusion reviewed Kleber’s application, but ultimately hired a 29-year old applicant.  Kleber filed a charge of age discrimination regarding the 7-year maximum experience cap with the Equal Employment Opportunity Commission, who issued Kleber a right-to-sue letter in 2014.

In turn, Kleber Continue reading

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EEOC Revises Its Notice to Employees Poster

By Edwin S. Hopson

The U.S. Equal Employment Opportunity Commission (EEOC) has revised its Notice to Employees poster that all employers with 15 or more employees must post. The poster was revised to include information about the Genetic Information Nondiscrimination Act of 2008 which is effective November 21, 2009, as well as the Americans with Disabilities Act Amendments Act of 2008.  The EEOC website link to be used to order the new poster on line is:


According to the EEOC press release, there are several ways for employers to comply with the posting requirements of the law:

1. Print the supplement below and post it alongside EEOC’s September 2002 “EEO is the Law” poster or OFCCP’s August 2008 “EEO is the Law” poster.

2. Print and post the EEOC’s November 2009 version of the “EEO is the Law” poster.

3. Order a new poster through the EEOC Clearinghouse at the address provided below. Please note that the EEOC poster is on backorder and will be shipped when the poster becomes available in the near future.

The new poster will also be available in Spanish, Chinese and Arabic before the GINA statute becomes effective on November 21, 2009.

If you need more than ten copies of the poster, you should contact:

U.S. Equal Employment Opportunity Commission Clearinghouse

P.O. Box 541

Annapolis Junction, MD 20701

Fax: (301) 206-9789 or call: 1-800-669-3362 (voice) 1-800-800-3302 (TTY)

To order the poster, complete and submit the form contained on the EEOC website link referenced above.


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POWADA: More Alphabet Soup?

By Debra H. Dawahare

On October 6, 2009, U.S. House of Representatives Member George Miller of California introduced H.R. 3721, a bill intended to amend the Age Discrimination in Employment Act of 1967 to clarify the appropriate standard of proof in an age discrimination case.  The statute’s proposed title is “Protecting Older Workers Against Discrimination Act” (“POWADA”).  POWADA’s purpose would be to undermine the United States Supreme Court’s decision in Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009).

In the Gross case, the high court concluded that an age discrimination plaintiff had to establish employer liability according to a “but for” standard, rather than the more lenient “substantial or motivating factor” standard. 

If POWADA becomes law, it would be retroactive to June 17, 2009, the day before the Supreme Court’s decision in Gross.

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No “Mixed Motive” Analysis Available For ADEA Cases

By Kristie Alfred Daugherty

On June 18, 2009, the United States Supreme Court handed down its decision in Gross v. FBL Financial Services, Inc., No. 08-441.  The case involved the determination of whether a “mixed motive” analysis is available in a suit brought under the Age Discrimination in Employment Act (ADEA).  In a 5-4 decision, the Court determined that it is not.   Continue reading