Circuit Court Split: Job Applicant’s Age Discrimination Claim May Be Based on Disparate Impact

The 11th Circuit Court of Appeals issued a decision on November 30, 2015 that will allow a job applicant claiming age discrimination to proceed with a lawsuit against R.J. Reynolds Tobacco Company. Villarreal v. R.J. Reynolds Tobacco Company (11th Cir. 2015). In this case, a 49-year-old man applied for a territory manager position with R.J. Reynolds and was not selected. The plaintiff claims that the R.J. Reynolds hiring policy for this position included an emphasis on hiring new college graduates and discouraged hiring individuals with more than eight to 10 years of sales experience, which had the effect of discriminating against individuals aged 40 and over. The Court agreed with the position taken by the EEOC in stating that the Age Discrimination in Employment Act (ADEA) does not require proof that the company acted with the motive to discriminate against a job applicant (disparate treatment). Instead, the court found that ADEA permits claims by job applicants for hiring policies which may be facially neutral but which have the effect of discriminating against individuals aged 40 and over (disparate impact).

This holding creates a “circuit split” between the EEOC-sanctioned 11th Circuit holding and several other circuits that have previously held that ADEA does not permit disparate impact claims for job applicants. Such a disagreement on the interpretation of a federal law often prompts the United States Supreme Court to resolve the disputed issue. Until that happens, however, the law as applied by the courts will remain unsettled. Even so, employers should do their best to ensure that their hiring policies do not have any age discriminatory effect since the EEOC policy nationwide is that job applicants can bring disparate impact claims.