Reynolds Tobacco ‘Walks” in Case of Internet Screening to Exclude Older Job Applicants

smokeA federal appeals court panel in Atlanta this week dismissed the tattered remains of an important lawsuit alleging age discrimination in hiring against R. J. Reynolds Tobacco Co..

In other words, R.J. Reynolds will face no legal consequences for conducting a several year campaign of internet screening to weed out the applications of older workers and target workers who were “2-3 years out of college” who “easily adjusts to change.”

Meanwhile,  the U.S. Supreme Court  has refused to hear an appeal of a landmark decision by the full 11th Circuit of Appeals last October holding that job applicants are not covered under the Age Discrimination in Employment Act of 1967. The appeals court said Richard Villarreal could not sue Reynolds under a “disparate” impact because Villarreal “has no status as an employee.”  The disparate impact theory is used to attack a supposedly neutral policy or practice that has a disproportionate, negative impact on a protected group.

Federal courts have concluded that Villarreal – who appears to be a victim of gross and provable age discrimination in hiring – has no remedy under federal law.

The 11th Circuit, which includes Alabama, Georgia and Florida, is the first in the nation to rule that the ADEA covers only employees. The ADEA has been used to protect job applicants for decades.

After the dismissal of Villarreal’s systemic discrimination claim, his only remaining claim involved intentional discrimination. A three-judge panel of the 11th Circuit on Tuesday upheld the dismissal of this claim because it was not filed within 180 days of the alleged violation.

The 11th Circuit panel said Villarreal’s disparate treatment argument was not eligible to be considered under a so-called continuing violation theory. The panel said this doctrine applies to minor incidents that alone would not be actionable but which become actionable due to their “cumulative” effect … That is not so for Villarreal. He is not challenging the cumulative effect of R.J. Reynolds multiple refusals to hire older applicants; instead he is challenging each individual refusal-to-hire.”

From 2007 to 2010, Reynolds dumped more than 20,000 applications from older workers into a digital trash can. Reynolds hired 1,024 regional territory managers during this period of whom only 1.85 percent (19) were over the age of 40.

Villarreal did not file an age discrimination claim against Reynolds in 2009 when, at the age of 49,  he was not hired the first time for a territory manager position.  He argued that Reynolds did not respond to his application and he had no way of knowing why he wasn’t selected. He finally sued in 2012 – after filing five unsuccessful applications for the position – after a whistleblower disclosed that  Reynolds had a policy of screening out Internet applications by older workers.

Villarreal also argued the statute of limitations should be waived under the doctrine of equitable tolling but the lower court rejected that argument on the grounds that Villarreal failed to inquire about why he was not hired in 2009 and, thus, failed to pursue his rights diligently.

Other defendants in the case were Kelly Staffing and Pinstripe Staffing. CareerBuilder earlier reached a settlement.

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Author: pgb

Attorney at Law, author and blogger.

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