The Eleventh Circuit holds (2-1) that hiring guidelines that target employees a few years out of college, or that discourage hiring of employees with too much experience, may violate the ADEA if they have a disparate impact on hiring employees age 40 and over. The majority also holds that equitable tolling of the limitations period for filing an EEOC charge does not necessarily depend on concealment or fraud by the employer.
Villarreal v. R.J. Reynolds, No. 15-10602 (11th Cir. Nov. 30, 2015): In Smith v. City of Jackson, Miss., 544 U.S. 228 (2005), the U.S. Supreme Court held that employees 40 and over could bring claims for disparate impact under the ADEA. Disparate-impact theory covers employment practices that, while neutral in appearance, have a tendency to screen out the protected group.
The plaintiff alleged that R.J. Reynolds, “[with the assistance of recruiting services … used a set of ‘resume review guidelines’ in screening applicants for” Territory Managers. “These guidelines list a number of characteristics RJ Reynolds wanted in its new hires, some of which relate to age. For example, the guidelines tell hiring managers to target candidates who are ‘2-3 years out of college’ but to ‘stay away from’ candidates with ‘8-10 years’ of prior sales experience.”
Applying these guidelines, “[o]f the 1,024 people hired as Territory Managers from September 2007 to July 2010, only 19 were over the age of 40.” A decision not to hire was not necessarily communicated to applicants; Villarreal reportedly never received a response to his original 2007 application.
Although Villarreal filed his EEOC charge two years after applying for the first vacancy, well beyond the 180 days permitted in Georgia by federal law, he asserted that he only first became aware of the reason that he was never hired “until he spoke with lawyers” in 2010, and then promptly filed Thereafter. He also amended his charge to add intervening denials of employment.
The district court dismissed the plaintiff’s disparate impact claim, contending that the ory of ADEA disparate impact does not cover refusal to hire. It also held that his 2007 claim was time-barred, rejecting any theory of equitable tolling of the limitations period based on the plaintiff not knowing the full facts in 2007.
The Eleventh Circuit, 2-1, reverses both decisions. The panel majority recognizes that the ADEA’s statutory liability language (29 U.S.C. § 623(a)) was unclear on the issue: “the plain language of the statute does not make clear whether job applicants like Mr. Villarreal may bring disparate impact claims.” It instead defers to the EEOC’s regulation that explicitly included hiring under the disparate-impact theory:
“The EEOC’s current ADEA disparate impact regulation, issued under its statutory rulemaking authority, 29 U.S.C. § 628, does not distinguish between prospective and existing employees. Instead, it states that, ‘[a]ny employment practice that adversely affects individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a ‘reasonable factor other than age.” 29 C.F.R. § 1625.7(c). The regulation extends disparate impact liability to all ‘individuals within the protected age group.'”
Though R.J. Reynolds caviled that the regulation addressed a different provision of the ADEA and did not clearly address this situation, the panel majority holds that “we still owe deference to the EEOC’s view because the agency has reasonably and consistently insisted on this view for decades.” The preamble to the regulation, moreover, “makes clear that the term ‘individuals'” as used in the rule “covers both employees and applicants.” The panel majority also cites the history that, from the very beginning of the statute’s history (when the Department of Labor first enforced it), the agencies have consistently treated the ADEA as covering pre-employment tests.
On the timing issue, the panel majority holds that R.J. Reynolds failure to act on Villerreal’s application alone did not give him notice of a claim. Tolling is allowed when “the facts supporting a cause of action became apparent or should have bec[o]me apparent to a reasonably prudent person with concern for his or her rights.” An older employee who has been fired might not suspect discrimination until they are replaced with a much younger worker.
Notably, the panel majority holds that equitable tolling does not depend on fault by the employer: “There are circumstances other than concealment and misrepresentation which place relevant facts beyond the reach of a reasonably prudent victim of discrimination. In these cases the ultimate question is not whether an employer deliberately hid facts. Rather, we ask whether reasonable prudence would have resulted in the plaintiff uncovering hidden facts earlier.”
Here, “although Mr. Villarreal applied for a Territory Manager position in November 2007, he alleges that nneither the application itself nor any other information available to him described RJ Reynolds’s hiring process, the resume review guidelines, or the statistical disparities in the ages of successful applicants.” As noted, R.J. Reynolds did not even give Villarreal a definitive “no” to his first application. So the panel majority holds that, at the very least, he should be permitted to refile his complaint to allege equitable tolling and develop the facts in discovery.
In dissent, Judge Vinson would have held both that the plain language of the ADEA barred a disparate impact hiring claim, and that – absent proof of concealment or fraud by the employer – equitable tolling would not rescue a charge filed 18 months after the formal limitations period expired.