Employers accused of discriminating on the basis of age in hiring just got some good news from the Eleventh Circuit. Earlier this month, the circuit ruled that only employees, and not job applicants, may bring disparate impact age discrimination claims.
The split en banc decision is a significant blow to applicants (and the plaintiff's bar), limiting the reach of the federal Age Discrimination in Employment Act protections to current employees only.
Preference for Recent Grads
At issue in the case, Villareal v. R.J. Reynolds Tobacco Company, was a hiring practice that preferred recent graduates over more experienced candidates. R.J. Reynolds's hiring policy allegedly gave preference to applicants that were recently out of college and dinged those with years of experience. The best candidate, RJR told its hiring contractor, would be someone "2-3 years out of college" who "adjusts easily to changes." The guidelines specifically discouraged anyone who had been in sales "for 8-10 years."
(Think of it as a yes to the youth-centric Joe Camel and a no to the Marlboro Man.)
One candidate, Richard Villarreal, complained, and the EECO allowed him to pursue a disparate impact class action against RJR, on the basis that the education and experience requirements disproportionately discriminated against older applicants. The Eleventh Circuit disagreed, however. Writing for the six-judge majority, Judge William Pryor explained that job applicants cannot bring disparate impact claims since they have "no status as an employee."
Cutting Down the ADEA
In so ruling, the majority hued to the explicit language of the ADEA's disparate impact provision, which 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.
That "otherwise," the majority found, limited the protections to employees alone, not "any individual." Applicants simply weren't covered.
The ruling is obviously a significant development for employers in the Eleventh. Villarreal's attorneys are still considering whether to pursue an appeal in the Supreme Court, Inside Counsel reports. The decision has been criticized by some. Speaking to Inside Counsel, one veteran employment lawyer, Lee Parks, summarized the decision as "Those over 40 need not apply," and said he doesn't expect it to stand.
Harvard Law professor Noah Feldman, writing in Bloomberg, says the decision "flies in the face of logic and common sense," one that is "bad textualism, and an embarrassment to Justice Antonin Scalia's legacy."