Older applicants denied consideration for open positions allege they were screened out through use of subtle but discriminatory guidelines.
Richard Villarreal claims that R.J. Reynolds discriminated against him and others over age 40 by using “resume review guidelines” that instructed recruiters what to look for (candidates only 2-3 years out of college) and what to stay away from (candidates with more than 8 years of sales experience). Villarreal noted that applicants who successfully navigated through the recruitment process were significantly younger than those who were rejected.
Under the “disparate impact” theory, policies or practices that though neutral on their face impose a greater adverse impact on older individuals without a reasonable justification are unlawful. “Disparate impact” is a widely accepted method of proof in most anti-discrimination laws (those that prohibit discrimination based on race, gender, religion, ethnicity, etc.) but has had mixed success in the courts when it comes to age discrimination. There is hope that recently approved EEOC regulations will inject new life into the theory in the age context.
The issue before the court is whether the disparate impact theory can be used to prove age discrimination by job applicants as opposed to job holders. In ruling against Villarreal, the lower court ruled that the theory may only be used by current employees. The lower court also ruled that Villarreal was time barred from challenging some of his rejections by R.J. Reynolds despite the fact that the facts and information that caused him to believe he was discriminated against were not available to him earlier. Villarreal appealed both issues.
AARP Foundation attorneys filed AARP’s friend-of-the-court brief on behalf of Villarreal. Noting that the ADEA was enacted in 1967 to combat rampant age discrimination in hiring, the brief presents studies, evaluations, and reports that document the continued prevalence of age discrimination in hiring. “It would be nonsensical to deny older jobseekers the protections [of the ADEA] given the principal reason for the ADEA’s enactment was the plight of unemployed older workers,” argues the brief. With regard to the timeliness issue, AFL argued that older job applicants are entitled to the benefits of “equitable tolling.” The equitable tolling doctrine allows a plaintiff to pursue their claim despite the running of a statute of limitation, in cases where fairness (“the equities”) so dictates. In this case and other hiring cases, in which employees have virtually no access to facts relevant to whether they might have a discrimination claim, the limitations period should not begin until a plaintiff has enough information to establish a claim of unlawful discrimination.
What’s at Stake
If facially neutral hiring policies and procedures that adversely impact older job applicants’ chances of being considered for open positions are immune from challenge under the ADEA, hard-fought age discrimination protections become merely words on paper.
Villarreal v. R.J. Reynolds is before the U.S. Court of Appeals for the Eleventh Circuit.