Is there such a thing as a disparate impact age claim? The Eleventh circuit last week says not for people applying for a job. On October 5, 2016, the Eleventh Circuit Court of Appeals issued an opinion shutting down claims under that theory for applicants. Mr. Villarreal, the plaintiff, was an applicant for a manager position with R.J. Reynolds Tobacco. The “targeted candidate” for the position was someone “2-3 years out of college.” Mr. Villarreal was, instead, 49 years old. He applied for the position several times and was rejected each time. Almost two years after the first rejection, Mr. Villerreal brought a collective action claiming that Reynolds engaged in a pattern or practice of discriminating against applicants over the age of 40. That type of claim, one in which it is alleged that a policy or procedure of a company effects a certain group differently than others, is known as a disparate impact claim and is specifically covered in the statutory language of the Age Discrimination in Employment Act (ADEA).

The Court turned to the actual language of the disparate impact section of the statute and held that it only covered individuals who already had the status of “employee.” The opinion spends numerous pages going over the statutory structure and legal definitions. One of the important distinctions it makes is pointing out that the disparate treatment section of the statute (where a plaintiff claims to have actual direct evidence of discrimination against them individually) includes language covering “an applicant for employment,” while the disparate impact section does not.

For employers, this could reduce exposure for age claims supported only by allegations that a particular hiring policy adversely affects individuals over 40 years old. As noted by the opinion, however, plaintiffs who believe they have individualized evidence of actual discrimination against them based on age can still bring those claims.