The Eleventh Circuit Court of Appeals (which handles federal court appeals from Georgia, Florida and Alabama) recently issued a surprising and first of its kind decision holding that applicants may not bring a disparate impact claim under the Age Discrimination in Employment Act (“ADEA”). The ADEA prohibits employers from intentionally discriminating against employees 40 or older due to their age. Any such “disparate treatment” (another way of saying intentional discrimination) violates the ADEA. But the ADEA is also usually understood to also prohibit unintentional discrimination on the basis of employees’ age (over 40), such as a rule or policy or practice that while non-discriminatory on its face has the real, if unintended, effect of discriminating against older workers. This concept is known as “disparate impact” discrimination. As the ADEA (and most employment discrimination laws) applies to both employees and applicants for employment, most assume that the disparate impact theory of discrimination also applies to applicants as it does to employees. The Eleventh Circuit, however, said it does not.
In Villareal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc., the plaintiff applied for a territory manager position with RJ Reynolds by submitting an online application. Through a third-party recruiting service, the company used a set of “resume review guidelines” which listed numerous characteristics it wanted in new hires, such as targeting candidates who are “2-3 years out of college” but to “stay away from” candidates with “8-10 years” of prior sales experience. The plaintiff never received a response from his application and filed suit alleging these recruiting guidelines disparately impacted older applicants.
The ADEA states that it is “unlawful for an employer…to limit, segregate, or classify his employees in any way which would 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). The Eleventh Circuit held this provision protects an individual only if he has “status as an employee.” Thus, the key words in that provision of the ADEA are “employees” and “employee”, and it is notable that no mention is made in that provision of applicants for employment. The Court held that since applicants do not have “status as an employee,” they may not bring a disparate impact claim under the ADEA. So specifically, the applicant here was not permitted to challenge the resume review guidelines as having a disparate impact on those over 40 years of age, including himself.
While this was a perhaps unexpected decision, the practical effects for employers are not quite as momentous. As an initial matter, because this decision creates a circuit split on the issue — other federal appeals courts have ruled that applicants can bring disparate impact claims — the U.S. Supreme Court may eventually have to weigh in on the issue. So, the lasting authority of this decision is questionable. Further, an applicant screening process that disparately impacts older workers may still be persuasive evidence for actual employees to demonstrate a discriminatory culture or attitude — which could support an ADEA disparate treatment claim, which both employees (and applicants) can (and do) certainly bring to court. Consequently, while this ruling may reduce ADEA litigation on this narrow issue in the Eleventh Circuit for the time being, employers should not rely on this decision to alter their recruiting and screening policies. Smart employers still want to make sure they are finding and hiring the best candidates for job openings, and not using any screening techniques (or letting or asking third parties helping them to use any methods) that screen out applicants due to their age, or any other protected factor under federal law.