Retailers asked the full Eleventh Circuit Court of Appeals to review an earlier panel decision that allows job applicants who are not offered a job to bring a disparate impact claims against the potential employer on the basis of age discrimination. If allowed to stand, this decision would create significant liability and put an end to sensible recruiting practices used by retailers and others, such as participating in college job fairs and federal government programs for disadvantaged youth.
The brief was filed by the Retail Litigation Center in the case Villareal v. R.J. Reynolds Tobacco Co.
A panel of the Eleventh Circuit had interpreted the Age Discrimination in Employment Act (ADEA) to authorize job seekers to file disparate impact claims against a business for failure to hire them because of their age. In their brief, the retailers explain that the panel decision is not only poor policy, it conflicts with the statute and is not supported by the Equal Employment Opportunity Commission’s (EEOC’s) regulations.
“It is not uncommon for retailers to participate in college campus recruiting, veterans recruiting programs, and similar practices to attract the best talent for their stores,” said Deborah White, RILA’s executive vice president and general counsel and president of the RLC. “If unsuccessful job-seekers can file disparate impact claims against employers, businesses will need to curtail bona fide hiring practices to the detriment of future job seekers.”
According to the brief:
“The panel’s endorsement of the theory that recruiting programs that target youth can give rise to disparate impact age discrimination liability creates a dilemma for employers.”
“Were employers to collect information about applicants’ ages in order to assess the potential disparate impact of their hiring practices, they would do so only at the risk of private plaintiffs – or the Commission itself – leveraging that fact as proof of discriminatory animus against older workers.”
The brief concludes:
“Of course, if the assumption running throughout the EEOC’s discussion of the costs and burdens of its RFOA regulation—that employers are not required to collect data on or analyze the potential age-based disparate impact of their hiring practices—is correct, then employers would not be trapped between the rock and hard place created by the contrary assumption that the panel’s decision now elevates to the status of law.”
The Retail Litigation Center is a public policy organization that identifies and engages in legal proceedings which affect the retail industry. The RLC, whose members include some of the country's largest retailers, was formed to provide courts with retail industry perspectives on significant legal issues, and highlight the potential industry-wide consequences of legal principles that may be determined in pending cases.