Eleventh Circuit Rules Against EEOC Finding Age Discrimination in Hiring Claims Cannot Be Based on Disparate Impact Theory

May a job applicant sue a prospective employer based on a policy that had an adverse and disproportionate effect on him because of his age? The Eleventh Circuit, in an en banc opinion published October 5, 2016, Villarreal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc., 2016 WL 5800001, ruled that only employees may bring a disparate impact claim under the Age Discrimination in Employment Act (ADEA). Eight judges agreed to affirm the district court’s dismissal of a disparate-impact hiring claim. Judge Jordan concurred in that holding and three judges dissented. A six-judge majority also affirmed the district court’s grant of a motion to dismiss the plaintiff’s disparate treatment claim, finding the plaintiff was not entitled to equitable tolling on the statute of limitation because he admitted facts in his complaint that established he had not diligently pursued his rights. Five judges dissented from this holding. The court remanded the case to the Eleventh Circuit panel to determine whether the plaintiff’s disparate treatment claim could nonetheless be considered timely under the continuing-violation doctrine. In addition to majority and dissenting opinions, Judges Jordan and Rosenbaum wrote opinions concurring in part and dissenting in part.

In 2007, when Richard Villarreal was 49 years old, he applied online for a position as a territory manager at R.J. Reynolds Tobacco. R.J. Reynolds had provided guidelines to a contractor to screen applicants, describing the “target candidate” as being “2–3 years out of college” who “adjusts easily to changes” and to “stay away from” applicants who had been “in sales for 8–10 years.” Villarreal was screened out by the contractor. No one told Villarreal he had been rejected, and he did not follow up. Then, in 2010, lawyers contacted Villarreal and informed him that R.J. Reynolds had discriminated against him based on his age. Villarreal subsequently filed a charge with the Equal Employment Opportunity Commission (EEOC). He also applied five more times to R.J. Reynolds; each time he was rejected.

The EEOC issued notices of right to sue in 2012, and Villarreal brought a collective action under the ADEA against R.J. Reynolds and Pinstripe, the contractor that had screened the later applications. Villarreal alleged two counts: disparate treatment under 29 U.S.C. § 623(a)(1) and disparate impact under § 623(a)(2). The defendants moved to dismiss Villarreal’s complaint in part. They moved to dismiss the disparate impact claim on the ground that the ADEA does not create a cause of action for applicants on that basis, and they moved to dismiss the parts of each claim relating to the 2007 application as untimely. The district court granted defendants motion with respect to each argument. The district court later dismissed the remaining parts of Villarreal’s complaint with prejudice, finding that the continuing-violation doctrine did not apply.

A divided Eleventh Circuit panel reversed the district court, concluding that the statute was ambiguous as to disparate-impact hiring claims and deferring to the EEOC interpretation and also finding that equitable tolling was appropriate. Judges Martin and Wilson were in the majority and Judge Vinson of the Northern District of Florida, sitting by designation, filed a dissenting opinion. The en banc court affirmed the district court’s rulings and remanded on the issue of the continuing-violation doctrine.

Judge William Pryor, writing for the majority, determined that § 623(a)(2), the disparate impact provision of the ADEA, only creates a cause of action for employees and therefore cannot be the basis of a claim by a job applicant. The majority found that the statutory text was clear, and the EEOC interpretation was not due any deference.

The statute, in relevant part, makes it “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.” According to the majority, the use of the construction “or otherwise” to join two verbs makes clear that the first verb phrase is a subset of the second. On this logic, any individual in the statute is a subset of people with status as an employee. The majority furthermore found that the word status, “connotes a present fact,” citing dictionary definitions. So, the majority reasoned, the only group with a disparate impact cause of action under the statute are an employer’s present employees. The majority also relied on the inclusion of “or as an applicant for employment” in the analogous disparate impact provision governing labor organization practices in § 623(c)(2), finding that the express inclusion of applicants there made clear that the employer section was meant to only cover employees.

Judge Rosenbaum, although concurring in the majority’s analysis on this holding, wrote separately to two additional points in support.

Judge Jordan concurred in the judgment, but interpreted § 623(a)(2) slightly differently than either the majority or dissent. Judge Jordan found that both the majority’s and dissent’s interpretations read words in the statute to mean something other than what the plain language indicated. Specifically, he explained that the majority’s interpretation requires reading any individual as though Congress had written any employee, and the dissent’s interpretation requires reading the statute’s prohibition on conduct toward his employees as though it regulated conduct toward any individual, i.e., including applicants. Since Judge Jordan found both interpretations to rewrite the relevant text, he settles on an interpretation that although the statute only regulates an employer’s conduct toward “his employees,” where an employer’s policy toward its employees has a discriminatory impact on applicants, then such applicants may bring a claim. However, because Villarreal claim is not based on any action of R.J. Reynolds toward existing employees, his action is not cognizable in Judge Jordan’s view.

In dissent, Judges Martin, Wilson, and Jill Pryor also found that the statute’s plain text was clear; they merely found it clearly opposed to the majority view. According to the dissent, the majority reads Congress’s use of any individual to mean those individuals, i.e., that “individuals” is a subset of those with “status as an employee.” The dissent argued that the majority’s reading disregards Congress variation in terms and that, where Congress wrote any individual, it must have meant any individual, not merely employees. The dissent did not cite any dictionaries, but did cite the Dictionary Act, 1 U.S.C. § 1, which governs the interpretation of every Congressional statute and requires “words used in the present tense include the future as well as the present,” in arguing that the present connotation of “status,” cited by the majority, must be understood as including the future too. The dissent also distinguished the ADEA’s analogous labor organization provision, arguing that it “targets the unique way in which labor organizations can discriminate when they ‘refer’ ‘applicants’ to employers,” and the specific identification of applicants is, therefore, required by the different context that shapes the referral structure of labor organizations. The dissent also argued that given the disparate readings found in the plain text of the statute that the court should defer to the EEOC, which they noted has consistently interpreted the ADEA as applying to job applicants since 1981 when, through notice-and-comment rulemaking, it “affirmed . . . the longstanding position of the Department of Labor, the agency that previously administered the ADEA.” According to the dissent, the Eleventh Circuit is now the first circuit to hold that the ADEA does not create a cause of action for disparate-impact hiring claims.

The court’s second holding was simpler. The court applied what it termed the general test for equitable tolling, requiring (1) that the plaintiff diligently pursued his rights and (2) that some extraordinary circumstance prevented him from timely filing. Because Villarreal alleged in his complaint that he had not followed up after applying for a job with R.J. Reynolds and that he had not done anything until lawyers contacted him over two years later, he plead himself out of an equitable tolling claim because the facts foreclosed a finding of diligence on the part of Villarreal.

According to the five dissenting judges (Judges Jordan and Rosenbaum joined Judge Martin’s dissent on this point), the majority applied an equitable tolling standard that goes beyond the “reasonable diligence” that has always been required and is at odds with Reeb v. Econ. Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975). The dissent emphasized that the court affirmed the grant of a motion to dismiss, i.e., without discovery, and indicates that a claimant must now assume that an employer has discriminated against him in order to preserve his claim. This, the dissent claimed, will have a broad effect beyond even the ADEA and into other antidiscrimination regimes. Because the victims of discriminatory employment practices are unlikely to become aware of “secret hiring preferences” of employers, many discrimination claims, whether grounded in the ADEA, Title VII, or another statute, will not qualify for equitable tolling unless claimants assume that they are being discriminated against and seek to determine the basis on which they were denied employment, which the dissent deemed an unreasonable assumption.

Because the panel had reversed the district court’s finding on these two bases, it did not address the continuing-violation doctrine, so the en banc court remanded to the panel to determine whether that doctrine applied to preserve Villarreal’s disparate treatment claims from 2010 on.

Posted by Danny Wells

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