Forty-eight years after its adoption, the reach of the Age Discrimination in Employment Act (ADEA) is still being determined. In Villarreal v. R. J. Reynolds Tobacco Co., the United States Court of Appeals for the Eleventh Circuit, whose decisions bind federal courts in Alabama, Florida and Georgia, held that the ADEA permits job applicants to bring disparate impact claims against employers by whom they were denied employment. The Court’s determination is based not on the ADEA’s plain language but was reached by deferring to the Equal Employment Opportunity Commission’s (“EEOC”) interpretation of the statue.
At 49 years old, Richard Villarreal applied to R. J. Reynolds for employment as a Territory Manager. R. J. Reynolds screened resumes to target job applicants 2-3 years out of college and to avoid job applicants with 8-10 years sales experience. R. J. Reynolds never responded to Mr. Villarreal’s application. Sometime later he filed an age discrimination charge with the EEOC. While that charge was pending, Mr. Villarreal applied five more times for employment as a Territory Manager but was rejected each time. Those rejections were later added to his pending EEOC charge. In due time, the EEOC issued a right-to-sue letter to Mr. Villarreal. Mr. Villarreal then sued R. J. Reynolds alleging that its denial of employment constituted disparate treatment, i.e., discriminatory intent, and disparate impact, i.e. discriminatory result. A disparate impact occurs when a policy or practice is facially neutral but falls more harshly on a particular group. The trial court dismissed Mr. Villarreal’s disparate impact claim finding that such a claim could not be brought by a job applicant. Mr. Villarreal appealed.
Under the ADEA, 29 U.S.C. §623(a), it is unlawful for an employer:
- to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;
- 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[.]
Section 623(a)(1) clearly includes job applicants. Disparate impact is prohibited by §623(a)(2) because it focuses on the effects of an employment practice or policy but it does not clearly apply to job applicants. Therefore, the question before the Eleventh Circuit was whether a job applicant can bring a disparate impact claim upon denial of employment.
The parties — Mr. Villarreal and R. J. Reynolds – interpreted §623(a)(2) differently. Mr. Villarreal interpreted §623(a)(2) as proscribing any limitations an employer places on its employees that might deprive or tend to deprive any individual, including a job applicant, of employment opportunities because of age. R. J. Reynolds, on the other hand, read §623(a)(2) as proscribing conduct limiting, segregating or classifying existing employees in a way that deprives those employees of employment opportunities. The Court found both of these interpretations of §623(a)(2) reasonable.
Since the language of the ADEA did not dictate a specific result and because there was no controlling decisional law from the Eleventh Circuit or from the United States Supreme Court, the Eleventh Circuit looked to the EEOC’s interpretations of the ADEA’s scope. Deferring to the enforcing agency’s interpretation of a statute, in this case the EEOC, is permitted so long as the agency’s interpretation is not unreasonable. The Court noted that since at least 1981, the EEOC’s disparate impact regulations applied to both existing employees and job applicants. Finding that the EEOC’s interpretation of §623(a)(2) was not unreasonable the Eleventh Circuit deferred to the EEOC’s interpretation.
Therefore, in Alabama, Florida and Georgia, unsuccessful job applicants are permitted to sue employers by whom they are denied employment if the employer’s practices or policies that are facially neutral but which have discriminatory result. At least until the United States Supreme Court decides otherwise, the decision is binding in Alabama, Florida and Georgia.