Job seekers are well acquainted with the black hole into which their resumes seem to fall. They may submit dozens of applications to get one interview. And employers do not need a reason to toss a resume – they can lawfully do so for no reason at all. It is, however, unlawful to reject an applicant because of her age or other protected characteristic. But when the resume black hole is the norm, how does an applicant discover that she was the victim of age discrimination? And more critically, how does she prove it?
Rooting out age discrimination in the application process—before any employment relationship is established—is challenging and may be getting harder. The Age Discrimination in Employment Act (ADEA) is a federal law enacted over 50 years ago to protect people over 40 years old in the workplace. One way a worker can prove a hiring violation under the ADEA is by showing that the employer intended to not hire her because of her age. But it can be difficult to prove intent—while blatant discrimination still exists, discrimination is more often subtle than not. That is why disparate impact claims, i.e. claims that an employer’s neutral policy has a disparate impact on workers over 40, are important tools in eradicating workplace discrimination. Additionally, because disparate impact claims target a specific practice, successful claims can result in changes to those practices, reducing or preventing future discrimination.
Unfortunately, in a setback for job seekers over 40, the Eleventh Circuit held in Villarreal v. R.J. Reynolds Tobacco Co. that disparate impact claims under the ADEA can only be brought by current or former employees, not by rejected job applicants. 839 F.3d 958 (11th Cir. 2016), cert. denied, 137 S. Ct. 2292 (2017). The Circuit Court reached its decision after a textual analysis of the portion of the ADEA that 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.”
29 U.S.C. § 623(a)(2). The U.S. Supreme Court declined to review the case last year, which means that Villarreal is controlling law in the Eleventh Circuit. Still, it is possible that the Supreme Court will grant review of the issue in the coming years if a different Circuit Court decides that the ADEA does allow job applicants to bring disparate impact claims. One federal trial court in California has already disagreed with Villarreal, laying a path for future courts to follow.
If you have concerns about age discrimination, please contact an employment attorney in the D.C., New York, San Francisco, San Diego, Nashville, or Baltimore offices of Sanford Heisler Sharp.