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.
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.