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.