What happens though when employers specifically want less-qualified applicants to fill some jobs?

It might seem silly, but companies have a wide range of reasons for doing so, including fear that more experienced applicants would be dissatisfied with more remedial work and the lower pay.

But policies that call for “less experience” don’t necessarily discriminate against applicants based on age, at least not explicitly, so can job older applicants pursue a claim for age discrimination in such circumstances, even though they are not yet employees of the company?

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 Key Provision of the ADEA

The Age Discrimination in Employment Act is somewhat unclear in answering that question. Section 4(a)(2) of ADEA states that it is 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[.]” (emphasis added)

The law is meant to protect against age discrimination in employment, but does use of the term “individual” imply that those who are not, or never were, employees can invoke the protections of the law?

The Eleventh Circuit, which includes Alabama, Florida and Georgia, says no!

The Eleventh Circuit, in an 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 lower court’s dismissal of a disparate-impact hiring claim. Judge Jordan concurred in that holding and three judges dissented.

What This Means for You

If your company is based in Alabama, Georgia, or Florida, it is safe to assume that the Eleventh Circuit’s decision is binding and that employers can advertise job openings in a way similar to how R.J. Reynolds did and not fear federal age discrimination suits brought by applicants.

For everyone else, it is anyone’s guess as to the current state of the law, but the developments in the Texas and California federal district courts and the Seventh Circuit might be telling us that at least some federal judges have an inkling to expand the class of prospective plaintiffs in such cases to outside applicants. 

Contact Us if You Have any Questions

At Thompson, Crawford & Smiley, we have represented employers and businesses for over twenty years in the field of employment rights, discrimination claims, Family Medical Leave Act (FMLA) Title VII, the Florida Civil Rights Act, and Americans with Disabilities Act (ADA).

Please call us with your business’ employment law related questions at (850) 386-5777.

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