Agreeing with arguments made in a “friend-of-the-court” brief filed by NT Lakis lawyers, the U.S. Court of Appeals for the Eleventh Circuit has ruled that the federal Age Discrimination in Employment Act (ADEA) does not permit applicants for employment (as opposed to current and former employees), to sue and recover damages for age discrimination based on the so-called “disparate impact” theory.

In its 8-3 decision in the case of Villarreal v. R.J. Reynolds Tobacco Company, No. 15-10602 (11th Cir. October 5, 2016) (en banc), the court majority concluded that the plain text of the ADEA, read as a whole, “makes clear that an applicant for employment cannot sue an employer for disparate impact because the applicant has ‘no status as an employee

[under the ADEA].’” And by a narrower 6-5 margin, the Eleventh Circuit also agreed with us that the plaintiff in this case neither exercised diligence nor pointed to any extraordinary circumstance that justified his untimely filing.

The court’s en banc ruling reversed an earlier decision by a three-judge panel deferring to the position of the Equal Employment Opportunity Commission (EEOC) that the ADEA permits older applicants to sue for disparate impact discrimination, as well as finding that the plaintiff’s failure to file a timely claim could be excused on “equitable” grounds.

A copy of the Eleventh Circuit’s en banc ruling in Villarreal is available here.

Members of the Equal Employment Advisory Council (EEAC) can read more here.