A federal appeals court in Atlanta has issued an important ruling that will allow job applicants to challenge broad-based discriminatory hiring practices using the Age Discrimination in Employment Act of 1967.
In a case of first impression for the circuit, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled 2-1 this week that job applicants can file disparate impact claims alleging that an employer’s facially neutral policy or practice has a disproportionate and negative impact on older workers.
The dissent argues that the majority’s ruling is at odds with the position of three other federal circuits, a conflict that can only be resolved by the U.S. Supreme Court.
The 11th Circuit also said a plaintiff is entitled to equitable tolling of the statute of limitations until “the facts supporting a cause of action become apparent or should have become apparent to a reasonably prudent person with concern for his or her rights.”
Age discrimination in hiring is the most pervasive form of age discrimination. It is difficult for individuals to combat because they lack access to information about the hiring process.
The 11th Circuit ruling permits collective actions – the equivalent of class action lawsuits – charging employers with broad-based discriminatory hiring policies and practices.
The 11th Circuit’s ruling came in a case brought by Richard Villarreal, who alleged that R.J. Reynolds Tobacco Co. discriminated against him on the basis of age when it either ignored or rejected his repeated applications for employment, dating back to 2007 when he was 49 years of age.
According to the opinion, Reynolds, with the assistance of recruiting services, developed a set of “resume review guidelines” to screen applicants. The guidelines targeted candidates who are “2-3 years out of college” and urged recruiters to “stay away from” candidates with “8-10 years” of prior sales experience.
Of the 1,024 people hired by Reynold’s as Territory Managers from September 2007 to July 2010, only 19 were over the age of 40.
The lower court dismissed both Villarreal’s intentional and disparate impact discrimination claims. It noted Congress amended Title VII of the Civil Rights Act in 1972 to protect “applicants for employment” but never similarly amended the ADEA.
The appeals court deferred to the U.S. Equal Employment Opportunity Commission’s interpretation of the ADEA, which does not distinguish between employees and job applicants and permits disparate impact lawsuits by both. “The EEOC enforces the ADEA. We therefore defer to its views on the ADEA’s interpretation and application unless those views are unreasonable,” stated the 11th Circuit in its ruling.
The appeals court also reversed the lower court’s refusal to equitably toll the ADEA’s 180-day statute of limitations in the case because Villarreal failed to ask Reynolds why he was not hired by the company in 2007.
The appeals court said Villarreal was entitled to equitable tolling of the statute of limitations because Villarreal had no way of knowing why he was not selected for a position given Reynold’s lack of response to his application. The appeals court notes that Villarreal had no way of knowing about Reynold’s “hiring practices, the resume review guidelines, or the statistical disparities in the ages of successful applicants.”
The texual language in the ADEA makes it unlawful for employers to “limit, segregate, or classify” employees in any way that would tend to deprive an individual of employment opportunities.