Washington Law Review

Comment

Quick, Stop Hiring Old People! How the Eleventh Circuit Opened the Door for Discriminatory Hiring Practices Under the ADEA

October 03, 2017 | 92 Wash. L. Rev. 1605

Abstract: Do not discriminate against older persons. It seems like a simple mandate. However, the statute creating that mandate, the Age Discrimination in Employment Act (“ADEA”), has been anything but simple to implement. The details of the ADEA—who can bring a claim, and what kind of claim they can bring—have been extensively litigated since its inception. In 2016, the Eleventh Circuit, sitting en banc, decided that an employer could discriminate against older applicants by having a policy of not hiring people who have been out of college for a certain number of years, or who have a certain number of years of work experience. This has created a rift within that circuit and is a departure from the governing agency’s interpretation. This Comment explores the case law and legislative history leading up to the critical Eleventh Circuit case, Villarreal v. R.J. Reynolds Tobacco Co., which addresses the following question: can applicants for employment bring disparate impact claims under the ADEA? This Comment argues that the Supreme Court should hold that the ADEA does cover applicants for employment making disparate impact claims and that arbitrary agebased hiring policies are discriminatory. Regardless of any Supreme Court decision on the question, this Comment also suggests that Congress should amend the ADEA to include language that would allow applicants for employment to bring disparate impact claims, bringing the ADEA in line with Title VII.

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