U.S. Chamber Urges Eleventh Circuit to Rehear Case Addressing ADEA Disparate Impact Claims
In its May 2015 amicus brief, the U.S. Chamber argued that, while the Age Discrimination in Employment Act ("ADEA") bars policies with a disparate impact on “employees” over 40, that prohibition does not create liability for hiring policies with a disparate impact on applicants. The brief explains that extending the ADEA’s disparate impact provision to cover applicants, as urged by both the plaintiff and the EEOC appearing as an amicus, would subject employers to potential liability for a host of commonplace and legitimate hiring practices. For example, employers might face liability for on-campus recruiting or for “honors programs” for recent graduates like those used by the Department of Justice and EEOC itself. The brief also urged the court to reject the argument of the plaintiff and the EEOC that the ADEA’s charge-filing deadline should be equitably tolled until an applicant learns of a potential claim from his lawyer.
In January 2016, after a divided panel held that Section 4(a)(2) of ADEA authorizes disparate impact claims by job applicants and that the plaintiff was entitled to equitable tolling of the ADEA limitations period even though he missed the filing deadline by over two years, the U.S. Chamber filed an amicus brief in support of rehearing en banc. The Chamber argued that the panel’s decision will unreasonably burden—and possibly cause employers to abandon—longstanding, lawful hiring practices widely used in both the private and public sectors. Further, the brief argued that the panel’s determination that the plaintiff was entitled to equitable tolling without a finding that he exercised diligence or that extraordinary circumstances existed effectively eliminates the statute of limitations for ADEA disparate impact claims and invites forum shopping.
Following the Eleventh Circuit’s granting of rehearing en banc, the Chamber filed an additional amicus brief. The brief argues that sound policy underlies Congress’s decision not to permit claims by applicants that hiring practices have a disparate impact based on age. Additionally, the brief argues that permitting revival of years-old claims under a no-diligence equitable tolling rule is not necessary to protect access to antidiscrimination remedies and would apply in virtually every case.
In a split decision, the Eleventh Circuit held that Section 4(a)(2) of the ADEA authorizes disparate impact claims by applicants for employment. The court also held that the plaintiff was entitled to equitable tolling of the ADEA limitations period, even though he filed his complaint well beyond the applicable 180-day charge filing period, because he likely would not have discovered the challenged policy had he asked why he wasn’t hired.