Age Discrimination: Applicants Cannot Assert Disparate Impact Claims


Age Discrimination ADEA Disparate Impact

The Eleventh Circuit Court of Appeals has ruled that job applicants cannot assert claims for disparate impact discrimination under the Age Discrimination in Employment Act (“ADEA”).  Villareal v. R.J. Reynolds Tobacco Co., No. 15-10602, 2016 WL 5800001 (11th Cir. Oct. 5, 2016).

Most employment discrimination claims are “disparate treatment” claims.  Under a “disparate treatment” theory, an employee or job applicant claims that an employer intentionally discriminated on the basis of a protected characteristic — like race, gender or age.  In contrast, a “disparate impact” theory does not require proof of intentional discrimination.  Instead, the employee or applicant must demonstrate that a neutral policy disproportionately impacts people with a protect characteristic.

In Villareal, a job applicant claimed that hiring guidelines of R.J. Reynolds disproportionately impacted older applicants for positions.  Those guidelines suggested that a “targeted candidate” should be someone “2-3 years out of college,” who “adjusts easily to changes.” The guidelines also told a contractor reviewing applicants to “stay away from” applicants “in sales for 8-10 years.”

Villareal was a 49-year-old whose job application was rejected by R.J. Reynolds.  He sued under the ADEA and claimed that the hiring guidelines had a disparate impact on older applicants.  Nevertheless, the Eleventh Circuit found that the ADEA categorically does not permit disparate impact claims for job applicants.

In particular, the Court found that the ADEA only permits disparate impact claims under Section 4(a)(2) of the Act.  But, Section 4(a)(2) only applies to “employees” by making 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).  Because job applicants, by definition, are not yet “employees,” they cannot sue for disparate impact.

Villareal provides a victory to employers, because it eliminates an entire class of potential discrimination claims.  Nevertheless, Villareal does not provide complete protection for policies like the guidelines used by R.J. Reynolds.  Potentially, the job applicant in Villareal could have sued for age discrimination under a disparate treatment theory.  But, those claims were barred because Villareal failed to file a charge of discrimination with the EEOC within 180-days of denial of his application.