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Job Applicants Can Sue Under ADEA

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By Jonathan R. Tung, Esq. on December 08, 2015 11:59 AM

In what is potentially a landmark ruling in employment law, the Eleventh Circuit just ruled that a 49-year-old job applicant may use a disparate impact theory to sue R.J. Reynolds Tobacco for age discrimination.

The ruling is a headache-inducing case within the circuit because it potentially expands ADEA's purview to include individuals not clearly spelled out in the Act's language.

Company Targets Young Grads

At 49, Mr. Villarreal applied to R.J. Reynolds Tobacco for a Territory Manager position in November 2007. He received no response. He later found out that Reynolds had operated under an employment policy to target candidates who were "2-3 years out of college" and to avoid candidates with "8-10 years" of prior sales experience. After some complicated motion and standing issues had been resolved, he alleged that Reynolds had discriminated against him under a "disparate impact" paradigm.

At Trial

R.J. Reynolds moved to dismiss the suit on the theory that ADEA did not apply to applicants for employment. Previously, ADEA had squarely only been settled to apply to persons already employed. The district court agreed with Reynold's interpretation and dismissed the case.

But the appellate court disagreed and turned the case on the regrettably ambiguous phrase "deprive any individual of employment opportunities." The Eleventh Circuit found that a reasonable person could interpret this language to mean a cause of action could exist when an employer's disparate impact actions might "limit, segregate, or classify [its] employees." With that, the Eleventh Circuit ruled that Mr. Villarreal had standing to bring his claim against R.J. Reynolds.

Disparate Impact and ADEA

Disparate Impact claims focus not on the employer's intent but the statistical disproportionate impact upon a particular group. In order to have a cause of action, the plaintiff bears the burden of "isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." Wards Cove Packing v. Antonio.

At the heart of disparate impact claims is the notion that an employer needn't necessarily have discriminatory intent in his mind when applying certain hiring practices, but that "some employment practices ... may in operation be functionally equivalent to intentional discrimination." Pippin v. Burlington Res. Oil & Gas Co.; see also Reeves v. Safeway Stores, Inc.

But correct application of disparate impact does not simply end with Pippin. The 2005 case of Smith v. City of Jackson articulated the disparate impact test as applied under ADEA. Even after a prima facie case of disparate-impact showing, the employer may show that such practices are based on reasonable factors other than age -- generally known as RFOA.

Here, however, this appears to be a seminal case in expanding the ambit of ADEA. Will Congress be forced to modify the existing language of the statute in order to better clarify its original intent? Because in the meantime, there will only be further employment chaos. Soon employers will have no option but to instruct their hiring managers with the hedged words "choose whomever you like, and leave the rest to me."

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