As reported in an earlier blog, in Villarreal v. R.J. Reynolds Tobacco Co, a majority of a three-judge panel of the Eleventh Circuit Court of Appeals held that under §623(a)(2) of the Age Discrimination in Employment Act (ADEA), job applicants can sue prospective employers for disparate impact.[1] This was the first time the question had been addressed by the Eleventh Circuit Court of Appeals. Now, the panel’s decision has been vacated for en banc consideration of the case.

Under 29 U.S.C. §623(a)(2), it is unlawful for an employer “to limit, segregate, or classify 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[.]” It is clear that §623(a)(2) permits employees to sue for disparate impact, i.e. for employment practices or policies that are facially neutral but that have discriminatory impact on those 40 years old and older. Acknowledging that it is unclear whether the statute applies also to job applicants, the original panel majority deferred to Equal Employment Opportunity Commission (“EEOC”) interpretations that §623(a)(2) applies to job applicants also.

The majority reached its conclusion over a vigorous dissent that deference to the EEOC’s interpretations was not required because the statute’s language is clear and because the EEOC’s interpretations conflict with the statue’s clear language. Indeed, the dissent observed that the majority’s conclusion was “contrary to every other court that has considered this issue.”

The dissent was R.J. Reynolds’ foundation for its successful petition for rehearing en banc. With a majority of the Eleventh Circuit set to rehear the case, the original panel’s decision has been vacated. Briefing for the en banc rehearing must be completed by May 10, 2016 and argument before the full Eleventh Circuit will be on June 21, 2016 in Atlanta, Georgia.