Villarreal v. R.J. Reynolds Tobacco Co.

Case Updates

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.

The U.S. Chamber filed an amicus brief arguing 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.

Donald R. Livingston, Hyland Hunt, and Z.W. Julius Chen of Akin Gump served as co-counsel to the U.S. Chamber of Commerce on behalf of the U.S. Chamber Litigation Center.