Eleventh Circuit Opens the Door to Discrimination Against Older Workers, But Not So in California

Applicants for employment who are over forty years old often face numerous hurdles to finding new employment. In addition to facing stereotypes about their longevity and energy levels, applicants may find themselves searching for a job in a market that has completely changed since the last time they looked for a new job. Recently, the U.S. Court of Appeal for the Eleventh Circuit created yet another obstacle for older job applicants, holding that older job applicants cannot bring a discrimination suit for failure to hire based on a theory of disparate impact under the federal age discrimination law. Villareal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc. No. 15-10602 (11th Cir. Oct. 5, 2016)  Disparate impact cases challenge practices, rules or policies that result in a disproportionate negative impact on a protect group- here, employees over 40.

The court ruled that only employees, not applicants could bring a disparate impact claim under the Age Discrimination in Employment Act (ADEA). The court rejected a class action lawsuit against the company that had a hiring policy targeting applicants who were “2-3 years out of college”, “adjusts easily to changes.” In screening applicants, the policy was to “stay away from” applicants who had been “in sales for 8-10 years.” While this decision was a hard blow to applicants in the Eleventh Circuit, it does not apply once and employee is hired and becomes an employee.

Fortunately, this bad decision does not affect California employees. The Ninth Circuit, which covers California, and California state courts have a much more employee (and applicant)-friendly approach. In California, applicants may still bring an ADEA claim by alleging that a hiring practice disparately affects a protected class. In fact, there is a similar class action case for age discrimination in hiring currently pending in the Northern District Court of California. So far, two attempts by Google to defeat class certification for those claims have not been successful. Robert Heath, et al. v. Google Inc., Case No. 5:15-cv-01824.

In addition to the protections offered by the federal law for older workers, California also provides protection from discrimination for workers over 40 years old under the Fair Employment and Housing Act (FEHA). The good news for California employees is that despite a bad decision in the Eleventh Circuit, employees and applicants are protected against age discrimination in California!

 

Jean Krasilnikoff
October 28, 2016