Disparate Impact Under the Adea: Applicants Need Not Apply

• Publication year: 2020

Disparate Impact Under the ADEA: Applicants Need not Apply

L. Whitney Woodward

Georgia State University College of Law, lwoodward2@student.gsu.edu

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DISPARATE IMPACT UNDER THE ADEA: APPLICANTS NEED NOT APPLY

L. Whitney Woodward^*

Introduction

Generally, American employment's default rule is employment at will, meaning that unless agreed upon otherwise, employers are free to hire and fire who they wish for any reason or no reason, so long as the employer's reason is not illegal.¹ Though this approach provides benefits to both employers and employees,² employer practices before the mid-1960s often used this default position of employment at will to unfairly discriminate against their employees for innate characteristics, like race, gender, and age.³ To combat certain discriminatory practices, Congress, in 1964, passed Title VII of the Civil Rights Act (Title VII), which prohibits workplace discrimination on the bases of race, color, sex, religion, and national

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origin.⁴ Although its drafters contemplated prohibiting discrimination against older workers, Title VII is silent regarding age.⁵ This missing protection, however, was remedied in 1967 with the passage of the Age Discrimination in Employment Act (ADEA), which stands outside Title VII protections and prohibits age-based employment discrimination.⁶

Under Title VII, both non-employee applicants and employees alleging employment-based discrimination may bring suit under a disparate treatment theory, a disparate impact theory, or both.⁷ Disparate treatment claims involve the employer's intentional discrimination based on a prohibited factor under the law.⁸ In contrast, disparate impact claims involve employer practices that are facially neutral but permit an individual to prove employment discrimination based on the effect of an employment policy or practice on a protected class, rather than the employer's intent behind it.⁹ Though many of Title VII's interpretations were applied analogously to discrimination claims under the ADEA, the disparate impact theory was not explicitly recognized as applicable to employees in the ADEA context until Smith v. City of Jackson.¹⁰

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However, Smith involved an employee's ability to bring a claim of disparate impact age discrimination and did not address whether the theory of recovery was available to non-employee job applicants, leaving the question open as to whether applicants for employment have a cognizable claim under the ADEA's disparate impact theory.¹¹ Part I¹² of this Note addresses the current debate on this topic, illustrated through case law in the Eleventh Circuit,¹³ the Seventh Circuit,¹⁴ and a recent federal district court ruling in the Ninth Circuit.¹⁵ Part II analyzes the unambiguous, textual differences between the various subsections of the ADEA as well as the textual differences between Title VII and the ADEA.¹⁶ This Note explores these textual arguments through an analysis of the statutes and interpretative case law and concludes that, as drafted, the disparate impact theory of age discrimination should not be available to non-employee job applicants.¹⁷ Part III illustrates why utilizing a disparate impact theory of recovery in age discrimination cases is futile for non-employee job applicants, demonstrates why the current position held¹⁸ by the Equal Employment Opportunity Commission (EEOC), the administrative agency responsible for the ADEA's enforcement,¹⁹ should not be determinative on this matter,²⁰ and

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proposes a new pathway to support older job applicants in their quests for employment.²¹ This Note advocates for Congress, through legislative action, and the EEOC, through its rulemaking responsibilities, to develop incentives and education initiatives for employers to eliminate the unconscious biases and stereotypes often encumbering older workers.²²

I. Background

Although the ADEA recognizes disparate treatment claims for both employees and applicants,²³ the ADEA's recently recognized disparate impact language, appearing in Title 29, § 623(a)(2) of the United States Code, contains slightly different language.²⁴ In Smith, the Court first recognized the disparate impact theory for employees under the ADEA but also noted that this theory is narrower under the ADEA than it is under Title VII.²⁵ Although Title VII explicitly

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recognizes that both employees and job applicants may raise disparate impact claims,²⁶ the question of whether non-employee job applicants may raise disparate impact claims under the ADEA remains unsettled.²⁷ The following cases illustrate this timely debate.²⁸

A. The Eleventh Circuit: Villarreal v. R.J. Reynolds Tobacco Co.

In Villarreal, the Eleventh Circuit Court of Appeals considered whether a non-employee job applicant could sue a potential employer for age discrimination under the ADEA pursuant to a disparate impact theory.²⁹ In 2007, forty-nine-year-old Richard Villarreal applied for a territory manager position with R.J. Reynolds Tobacco Company (R.J. Reynolds).³⁰ The position guidelines targeted candidates "[two to three] years out of college," and more specifically, sought applicants who "adjust[] easily to changes."³¹ The job position's recruiter was also advised to "'stay away from' applicants 'in sales for [eight to ten] years.'"³² Villarreal applied to work at R.J. Reynolds six times but was screened out based on the aforementioned guidelines or rejected each time.³³

In May 2010, Villarreal filed a charge of discrimination with the EEOC, alleging that R.J. Reynolds discriminated against him because

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of his age.³⁴ After receiving an EEOC right-to-sue letter³⁵ in April 2012, Villarreal filed an age discrimination suit against R.J. Reynolds.³⁶ One count³⁷ of the plaintiffs complaint alleged disparate impact under ADEA § 4(a)(2).³⁸

The district court dismissed the plaintiff's disparate impact claim, holding that only employees, not job applicants, could pursue a disparate impact theory of recovery under the ADEA.³⁹ In 2015, a divided panel of the Eleventh Circuit Court of Appeals reversed the lower court's decision, ruling as a matter of first impression that § 4(a)(2) of the ADEA authorized applicants for employment—not just employees—to bring disparate impact claims.⁴⁰ The court's decision hinged not on the plain language of the statute, but instead stemmed from the court's view that the statute was unclear, and thus the EEOC's interpretation was entitled to deference.⁴¹ This decision,

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however, was vacated pending a rehearing en banc in early 2016.⁴² On October 5, 2016, the Eleventh Circuit Court of Appeals, sitting en banc, held that job applicants are not entitled to bring disparate impact claims under § 4(a)(2) of the ADEA because the applicant has no "status as an employee."⁴³ Thus, although the Eleventh Circuit permits job applicants to bring ADEA disparate treatment claims (i.e., claims of intentional age discrimination),⁴⁴ those same non-employee job applicants may not bring ADEA disparate impact claims.⁴⁵

B. The Seventh Circuit: Kleber v. CareFusion Corporation

In 2018, the Seventh Circuit Court of Appeals in Kleber also heard a case on this issue: whether the ADEA's disparate impact provision protects job applicants in addition to current employees.⁴⁶ Here, Dale Kleber, a fifty-eight-year-old attorney with extensive experience across multiple industries, applied for a senior counsel position with CareFusion Corporation (CareFusion), a healthcare products employer.⁴⁷ Although the employer's job posting noted a desire for "a business person's lawyer" with experience handling "complex projects," the employer also included a provision stating that applicants "must have '[three] to [seven] years (no more than [seven] years) of relevant legal experience.'"⁴⁸ The fifty-eight-year-old

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attorney submitted his application but was not selected to interview because, according to the employer, the role's years of experience maximum precluded this applicant's consideration.⁴⁹

Kleber filed an age discrimination charge with the EEOC alleging age discrimination stemming from CareFusion's decision to exclude him from consideration because of his years of experience.⁵⁰ After CareFusion provided its business rationale for the years of experience maximum, the EEOC issued Kleber a right-to-sue letter.⁵¹ Kleber then filed a lawsuit against CareFusion which included a claim of disparate impact age discrimination under § 4(a)(2) of the ADEA.⁵² Therein, Kleber specifically alleged that "the maximum experience cap was 'based on unfounded stereotypes and assumptions about older workers, deters older workers from applying for positions . . . and has a disparate impact on qualified applicants over the age of [forty ].'"⁵³ Relying on precedent, the district court dismissed the plaintiffs claim, professing that the ADEA's disparate impact provision applies only to employees, not non-employee job applicants;⁵⁴ however, on appeal, the Seventh Circuit reversed, holding, unlike the Eleventh Circuit,⁵⁵ that non-employee job applicants are protected under the ADEA's disparate impact provision.⁵⁶ Then, less than two months post-ruling, the Seventh

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Circuit vacated the decision, required a rehearing en banc, and subsequently affirmed the district court's holding that pursuant to the plain language of § 4(a)(2), job applicants are not entitled to bring disparate claims under the ADEA.⁵⁷

C. A Ninth Circuit District Court: Rabin v. PricewaterhouseCoopers LLP

In Rabin, the Northern District of California recently broached the topic of whether, in addition to employees, job applicants also had the right to raise disparate impact claims under the ADEA.⁵⁸ Rabin filed suit against PricewaterhouseCoopers (PwC), "alleging that PwC 'engages in systemic and pervasive discrimination against older job applicants . . . maintain[ing] hiring policies and practices for giving preference to younger employees that...