* Note: The U.S. Supreme Court chose not to review the 11th Circuit decision explained below, which holds that protection from systemic bias under the Age Discrimination in Employment Act does not extend to job applicants. 6/26/17.
A federal appeals court has ruled that job applicants cannot sue an employer for adopting policies and practices that result in age discriminating in hiring.
The 11th Circuit Court of Appeals in Atlanta said the Age Discrimination in Employment Act of 1967 (ADEA) protects only employees, not job applicants.
No Justice for Older Applicants
The ruling graphically illustrates the lack of protection afforded to older workers that is set forth in my book, Betrayed: The Legalization of Age Discrimination in the Workplace.
The 11th Circuit effectively quashed the only effective way to eliminate age discrimination in hiring – the disparate impact lawsuit, which allows a plaintiff to sue an employer for a seemingly neutral policy or practice that has a disproportionately negative impact on older workers (i.e. the use of computer software to screen out applications from older workers). The 11th Circuit covers Florida, Georgia and Alabama.
Disparate impact lawsuits are permitted under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin.
In the Oct. 5 ruling, the full 11th Circuit said the ADEA “makes it clear that an applicant for employment cannot sue an employer for disparate impact because the applicant has no “status as an employee.’” The ruling overturns an earlier 2-1 ruling by a three-judge panel holding that the ADEA permits older job applicants to sue for age discrimination in hiring.
Big Victory for Reynolds Tobacco
The ruling came in the case of Richard M. Villarreal who, beginning at age 49, applied seven times over the Internet for a position as a territory manager at R.J. Reynolds Tobacco Co. He was never hired and never told why his applications were rejected.
After being contacted by a whistle blower, a law firm informed Villarreal that Reynolds had contracted with two recruiting firms to develop internet screening tools to target young job applicants for hire and screen out applicant having eight to ten years of experience. Villarreal filed suit in 2010 against Reynolds and a staffing firm, Pinstripe, Inc., alleging disparate treatment and disparate impact discrimination.
The disparate treatment theory requires the plaintiff to prove the employer engaged in intentional age discrimination whereas the disparate impact theory does not require proof of intent to discriminate. The plaintiff need only show that the employer’s seemingly neutral policy or practice had a disproportionate and adverse impact upon older applicants.
The appeal’s court also affirmed dismissal of Villarreal’s disparate treatment claim because it was filed after the statute of limitations expired. The Court agreed with the lower court that Villarreal had failed to exercise “diligence’ because he did not ask Reynolds why he was not hired in 2007. However, the appeals court remanded the case back to the lower court so Villarreal could pursue a theory that Reynolds was engaged in a “continuing-violation” which would render his 2007 claim timely.
The appeals court refused to defer to the Equal Employment Opportunity Commission, which took the position that the ADEA does permit disparate impact lawsuits. The Court explained “we do not defer to an agency’s interpretation of a statute when the text is clear.”
The ruling eliminates any means of redress for thousands of older job applicants who applied for positions at Reynolds only to have their applications diverted into a digital trash can sight unseen.
The case is Villarreal v. R.J. Reynolds Tobacco Co., No. 15-10602,(11th Cir.).