Hurley Burish and Stanton, SC Attorneys at law

Age Bias Protections Restricted

Authors: Attorney John C. Mitby & Law Clerk Elizabeth L. Spencer
Phone: 608-575- 4077

The recent decision favoring employers by the Eleventh Circuit Court of Appeals in in Villarreal v. R.J. Reynolds Tobacco Co., , — F.3d —, No. 15-10602, 2016 WL 5800001 (11th Cir. Oct. 5,
2016), may make it tougher to file age discrimination claims. The court concluded that plaintiff Richard Villarreal was not protected by section 4(a)(2) of the Age Discrimination in
Employment Act (the “Act”) as he was not an employee but just an applicant for employment. Thus, he could not sue under a disparate impact claim.

In 2007, at the age of 49, Villarreal applied for a territory manager position with R.J. Reynolds Tobacco Co. Villarreal’s application was screened out by a contractor based on guidelines given
by R. J. Reynolds that the ideal candidate be 2-3 years out of college and to avoid applicants with 8-10 years of sales experience. Villarreal was never informed that his application had been
rejected. Three years later, lawyers approached Villarreal informing him that R.J. Reynolds had rejected his application on the basis of his age. This began a series of complaints to the Equal
Employment Opportunity Commission (EEOC) and ultimately a collective action against R.J. Reynolds, and the contractor Pinstripe, alleging disparate treatment under 4(a)(1) and disparate impact under 4(a)(2) of the Act. The district court dismissed the disparate impact claim. A divided panel of the Eleventh Circuit later reversed. The Eleventh Circuit en banc then reexamined the issue and in an 8-3 decision vacated the panel decision.

The court addressed 2 issues. First, whether the Act allows an unsuccessful job applicant to sue an employer for using a practice that has a disparate impact on older workers and second, whether Villarreal’s disparate treatment claim is entitled to equitable tolling. On the second issue, the court concluded that Villarreal was not entitled to equitable tolling and remanded the issue of continuing-violation doctrine to the panel.

For the first issue, the Court engaged in an evaluation of the text and statutory construction of the Act. Section 4(a)(2) stated that the Act prohibits an employer from “limit[ing], segregat[ing], or classify[ing] his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” (emphasis added). The Court determined that by using “or otherwise” to join the verbs in this section, Congress made “depriv[ing]” or “tend[ing] to deprive” a subset of “adversely affect[ing] [the individual’s] status as an employee.” Villarreal at 7. By making these actions a subset, the section provides protection only if an individual is an employee.

Further, the Court examined the statutory context of the section comparing it with other sections that mention either just potential hires or both potential hires and employees. For example,
Section 4(a)(1) of the Act explicitly mentions refusal or failure to hire while 4(a)(2), the disputed section, only mentions employees. The Court determined that the section used clear and
unambiguous language and based on the plain meaning of the statute Villarreal was not an employee and accordingly not entitled to file suit under 4(a)(2) for disparate impact claim.

For now, based on this ruling, in Alabama, Florida and Georgia, a job applicant cannot bring a disparate impact claim under the Act against a prospective employer. However, just because this
ruling only applies to a small subset of states it does not mean it should be ignored as many legal news outlets see it as a potential case to be reviewed by the United States Supreme Court. If you are an employer concerned about your hiring policies or an applicant concerned about your treatment in the hiring process contact an attorney.