In an en banc decision issued October 5, 2016, the Eleventh Circuit Court of Appeals ruled that job applicants cannot bring disparate impact claims under the Age Discrimination in Employment Act (“ADEA”). (Villarreal v. R.J. Reynolds Tobacco Co., October 5, 2016) This decision departs from previous Eleventh Circuit decisions and decision of other courts nationwide, which have held without much analysis that job applicants can pursue disparate impact claims under the ADEA. Although this ruling favors employers, it only applies to employers within the States of Georgia, Florida, and Alabama, and it seems likely to be reviewed by the United States Supreme Court.

In Villarreal, a divided en banc Eleventh Circuit strictly construed the text in Section 4(a)(2) of the ADEA when deciding that job applicants lack status as an “employee” to bring disparate impact claims. The text in Section 4(a)(2) of the ADEA states in relevant part that “[i]It shall be unlawful for an employer…to limit, segregate, or classify his employees in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.”  

The Eleventh Circuit is the only Circuit to interpret the ADEA in this manner. No other Circuit currently prohibits prospective employees and/or job applicants from pursuing disparate impact claims under the ADEA. Indeed, the EEOC’s interpretative guidance allows prospective employees and job applicants to pursue disparate impact claims under the ADEA.  

The United States Supreme Court will no doubt have to clear up this newly created split between Circuits. Until this happens and at least for now, employers in the Eleventh Circuit cannot be sued for disparate impact by prospective employees and/or job applicants under the ADEA for any hiring practice, policy, or criteria that disparately impacts a class of prospective employees and/or job applicants over 40 years old.