Villarreal v. R.J. Reynolds Tobacco Co.: Do Title VII and the Age Discrimination in Employment Act protect applicants against unintentional discrimination?

In Villarreal v. R.J. Reynolds Tobacco Co., No. 15-10602 (11th Cir. Oct. 5, 2016), the Eleventh Circuit held that the disparate impact provision of the Age Discrimination in Employment Act, which covers facially neutral practices that have a disproportionately adverse effect on older workers, only applies to employees. Therefore, older job applicants are only protected against intentional age discrimination. Although Villarreal is an ADEA case, its reasoning strongly suggests that applicants are also excluded from protection under the disparate impact provision of Title VII of the Civil Rights Act of 1964.


The ADEA's disparate impact provision, section 4(a)(2), states that it is "unlawful for an employer to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age."

In the majority's view, the key phrase is "or otherwise adversely affect his status as an employee," which the majority interpreted as meaning an applicant is not covered since he does not have any status as an employee.

Title VII's disparate impact provision, section 703(a)(2), is identical to the ADEA's, with the exception that it makes it unlawful for an employer to "limit, segregate, or classify his employees or applicants." Given this reference to applicants, it would seem that section 702(a)(2) must apply to applicants.  However, because section 703(a)(2) of Title VII, like section 4(a)(2) of the ADEA, is limited to classifications that adversely affect an individual's "status as an employee," it follows under the majority's reasoning in Villarreal that neither the ADEA nor Title VII protects applicants from unintentional discrimination. That interpretation renders the reference to "applicants" in 703(a)(2) a nullity that has no effect on the meaning of the provision.

The EEOC, on the other hand, takes the position that section 703(a)(2) of Title VII and section 4(a)(2) of the ADEA both protect applicants, as well as employees. The EEOC interprets the term "employee" to encompass applicants. Thus, like the majority in Villarreal, the EEOC takes an approach that renders superfluous the reference to applicants in section 703(a)(2) of Title VII.

Given that the reference to applicants in Title VII is the sole difference between the two statute's disparate impact provisions, it seems odd that both Villarreal and the EEOC adopt interpretations that entirely negate this difference. In my view, the most sensible approach is clearly the middle ground that interprets section 703(a)(2) of Title VII to protect applicants and interprets section 4(a)(2) of the ADEA to exclude applicants, thus giving effect to the difference in statutory language between the two provisions.


Photo information: Candy cigarettes sold at a novelty candy shop in Gettysburg, Pennsylvania.




This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.