The U.S. Court of Appeals for the Eleventh Circuit recently rejected a claim that applicants can sue for disparate impact under the federal Age Discrimination in Employment Act (ADEA).  Villarreal v. R.J. Reynolds Tobacco Company, et al., 2016 U.S. App. LEXIS 18074 (Oct. 5, 2016).

The plaintiff alleged that R.J. Reynolds Tobacco Company’s recruiting practices (including the Company’s purported practice of targeting recent college graduates) had an adverse effect on applicants over the age of 40.  The District Court granted R.J. Reynolds’ motion to dismiss, holding, among other things, that the ADEA only authorizes employees – not applicants – to bring disparate impact claims. 

The Eleventh Circuit, sitting en banc, agreed.  By a vote of 8-3, the Court ruled that the “plain text of section 4(a)(2) [the provision of the ADEA pertaining to disparate impact claims] covers discrimination against employees.  It does not cover applicants for employment.”  Thus, plaintiff could not state a claim for age discrimination. 

The Court expressly rejected the Equal Employment Opportunity Commission’s (EEOC) position that the ADEA allows disparate impact claims by both employees and applicants, and vacated a previous panel decision deferring to the EEOC’s interpretation.  Deference to the EEOC’s interpretation was improper, the Court held, as such interpretation was in direct contrast to the statute’s clear and unambiguous language.  The Court also rejected the argument that limiting disparate impact claims to employees would impermissibly limit the ADEA’s broad remedial purpose, stating that “our job is to follow the text even if doing so will supposedly undercut a basic objective of the statute.”  Moreover, the Court noted that job applicants are not without recourse, as applicants still can bring claims for disparate treatment.

The issue remains unsettled in other Circuits.  This case serves as a reminder that although disparate impact claims may not be brought by applicants, individual claims of age discrimination under the ADEA can be maintained by applicants. Employers are advised to review their applications and hiring practices to ensure that the process does not implicate an applicant’s age.