Wednesday, December 21, 2016

11TH CIRCUIT AFFIRMS: THE AGE DISCRIMINATION IN EMPLOYMENT ACT EXCLUDES JOB APPLICANTS WHO DO NOT HOLD EMPLOYEE STATUS

On appeal from the District Court of the Northern District of Georgia, the Eleventh Circuit has affirmed that an unsuccessful applicant cannot apply a disparate impact cause of action under the Age Discrimination in Employment Act (ADEA) for employment if they do not hold a status as an employee.  In the recent decision made in Villarreal v. R.J. Reynolds Tobacco Co., the applicant, Richard Villarreal, was passed up for the position as territory manager at R.J. Reynolds Tobacco Company based on a set of hiring guidelines that the company implemented.  The guidelines described the targeted candidate for the specific position as someone who is 2-3 years out of college, someone who adjusts easily to changes, and to stay away from applicants who have been in sales for 8-10 years.  Two years after Villarreal was denied employment based on these factors, he filed a charge with the EEOC.  Two years after that, he was granted his right to sue and brought a collective action against R.J. Reynolds on behalf of all applicants who were 40 years of age or older at the time of applying, and were denied the position.  The court looked at whether the ADEA allows an unsuccessful job applicant to sue an employer for using a practice that has a disparate impact on older workers, specifically looking at Section 4(a)(2) of the statute.

Section 4(a)(2) of the ADEA makes it unlawful for an employer to limit, segregate, or classify its employees in any way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.  The 11th Circuit looked at the plain text of this statute, maintaining that Congress’ clear limitation is to cover discrimination against employees, and not applicants for employment.  The court concludes that applicants who are not employees at the time of the alleged discrimination do not hold a status as an employee, and therefore those applicants are not protected by Section 4(a)(2) of the ADEA.

This ruling has sparked responses from parties outside of those named in the lawsuit, including both AARP and the EEOC.  AARP views this ruling as one that dangerously restricts the rights of those who are 40 years of age or older and seeking employment.  An amicus brief has been filed in support of Richard Villarreal by both AARP and the EEOC, and Villarreal’s representation is considering petitioning the U.S. Supreme Court for review.