Ruling on the issue for the first time, a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit has concluded that the Age Discrimination in Employment Act (ADEA) permits applicants, not just current and former employees, to bring a valid action for disparate impact age discrimination under the ADEA.

The 2 – 1 ruling by the appeals court in Villarreal v. RJ Reynolds Tobacco Co., No. 15-10602 (November 30, 2015), creates an immediate conflict with decisions issued by three other federal appeals courts that have addressed the issue, and tees it up for possible Supreme Court review.

In reversing a federal trial court, the panel majority deferred to the long held position of the Equal Employment Opportunity Commission (EEOC), despite key differences in terminology used in the disparate treatment and disparate impact sections of the ADEA. In so ruling, the Eleventh Circuit allowed the plaintiff’s lawsuit to go forward even though he did not file a discrimination charge until the statutory time for filing a charge had expired.

A copy of the Eleventh Circuit’s decision in Villarreal is available here.