In the widely anticipated decision in Villarreal v. R.J. Reynolds Tobacco Co., the United States Court of Appeals for the Eleventh Circuit held that 29 U.S.C. §623(a)(2), the disparate impact provision of the Age Discrimination in Employment Act (“ADEA”), does not apply to job applicants.[1] Spanning seventy-six pages, the 8-3 en banc decision produced two concurring opinions and a dissenting opinion.

Section 623(a)(2) of the ADEA makes it unlawful for an employer “to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individualof employment opportunities or otherwiseadverselyaffect his status as an employee, because of such individual’s age[.]” As interpreted by the United States Supreme Court, this section permits an affected employee to sue the employer for a facially neutral employment practice that is unjustified by business necessity but which operates more harshly on one group than another. Since 1968, the Equal Employment Opportunity Commission (“EEOC”) has interpreted the disparate impact rule as applying to current employees and to job applications as well.

The majority of the Court determined it need look no further than the “clear and unambiguous” language of §623(a)(2) to conclude that the disparate impact rule provides no protection to job applicants. The majority explained that a disparate impact claim requires the plaintiff have the “status as an employee” who is affected by the employment policy. The majority then spent considerable intellectual resources answering the dissent’s, one partial dissent’s, Villarreal’s and the EEOC’s arguments. In doing so, the majority waxed between canons of statutory construction and the rules of grammar and sentence structure. The majority even rejected the dissent’s reading of at least two United States Supreme Court decisions on disparate impact jurisprudence.

One judge who joined the majority’s opinion wrote separately to help others who might face this question in the future. In this judge’s view, the majority’s interpretation and the dissent’s interpretation “fail to give effect to some language in the text” and therefore “rewrite language in the relevant statutory text.” Applying one of the many canons of statutory construction, this judge said that he reads the statute to say that “a job applicant (‘any individual’) can bring an ADEA claim under a disparate impact theory, but only if something the employer has done vis-à-vis ‘his employees’ violates the ADEA by ‘limit[ing], segregate[ing] or classify[ing]’ those employees. So, if an employer’s practice with respect to his employees violates the ADEA, and that same practice has a disparate impact on job applicants, those applicants can sue under §623(a)(2).”

Another judge who joined the majority wrote separately to say that although the case was easy because the statute was clear, the Court’s challenge was caused by the EEOC nearly 50-year position that job applicants were protected by the disparate impact rule.

In dissent, the writing judge said that she too believes the language of §623(a)(2) is clear and that “[t]o get to [its] result, the majority ignores the plain text of the ADEA.” The dissent decried the majority’s rejection of the EEOC’s interpretation of §623(a)(2) that had been applied since 1968. In the dissent’s view, the clear language of §623(a)(2), United States Supreme Court precedent and the rule of deference to agency statutory interpretations mandated the conclusion that a job applicant can bring a §623(a)(2) disparate impact claim.

For now, in Alabama, Florida and Georgia, a job applicant cannot bring a disparate impact claim under the ADEA against a prospective employer. But, there may be more yet to come. As observed by the dissent, “[e]leven judges interpret [§623(a)(2)] in today’s ruling. Among the eleven of us, we read the statute to mean at least three different things. While each of us feels certain about the correctness of our own reading, we can’t all be absolutely right.”