Though employees may bring a claim for age-based discrimination against their employer under the Age Discrimination Employment Act (ADEA) without an expressly discriminatory policy in place, the question remains whether job applicants are allowed to do so under the same disparate impact theory of liability. This issue will be examined in late June 2016 by the 11th Circuit Court when they convene for a rehearing of Villarreal v. R.J. Reynolds Tobacco Company. The answer was clear and decidedly in favor of employers until November 30, 2015, when a divided panel of the 11th Circuit ruled otherwise. The plaintiff in this case alleged that the world’s second-largest cigarette manufacturer had implemented a facially neutral hiring policy that had nevertheless caused the defendant to hire just 19 territory managers over the age of 40 out of 1,024 people with the same title. Reversing the trial court’s dismissal of the plaintiff’s claim, the panel first noted that the language of the ADEA is ambiguous as to whether it authorizes disparate impact claims by job applicants. Accordingly, the court next applied the well-established principle of deferring to the government agency in charge of interpreting the pertinent statute, in this case, the EEOC. In doing so, the court adopted the EEOC’s conclusion that Section 4(a)(2) admits disparate impact suits by job applicants. “Villarreal is notable because it goes against the grain of previous decisions from the 7th, 8th, and 10th Circuits, all of which held that the statute applied strictly to employees and not applicants, and the 11th Circuit’s ruling may now draw interest from the U.S. Supreme Court,” says Pablo Orozco, labor and employment attorney at Nilan Johnson Lewis. “The High Court likes to take up consequential cases based on new or novel aspects of well-developed laws, so employers throughout the U.S. will want to keep a watchful eye on the case, beginning with the June rehearing, if they haven’t already done so.” Orozco advises prudence for employers, ensuring recruiting practices are carefully vetted by legal counselors to mitigate the potential of greater ADEA risk and says, “a broader interpretation would extend the realm in which employers must be careful about ADEA not only in their employment, but also their recruitment practices.” To learn more about age discrimination, contact Pablo Oroczo at porozco@nilanjohnson.com or 612.305.7729. For media inquiries, contact Aaron Berstler at aaron@kohnstamm.com or 651.789.1264.