October 10, 2016

WELL, JUDGES HAVE LIFE TENURE: Subtle Age Discrimination Gets a Court’s Blessing.

Overturning a half-century of practice, the U.S. Court of Appeals for the 11th Circuit held that job applicants can’t benefit from the disparate-impact provision of the Age Discrimination in Employment Act — only employees can. The decision, based on a literal reading of the text, flies in the face of logic and common sense. Other circuits won’t agree — and the U.S. Supreme Court should take the case and reverse the holding.

The employment act expressly prohibits intentional age discrimination both in hiring job applicants and in firing employees. The case decided by the appeals court arises from a separate provision of the law that says employers can’t adopt policies that have the effect of treating people disparately based on age.

That provision, Section 4(a)2, says it’s 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.”

You’ll notice the provision doesn’t specifically mention job applicants. But Congress pretty clearly meant to prohibit hiring policies that have discriminatory effects. And the Equal Employment Opportunity Commission long ago adopted a rule interpreting the law to extend to age-discriminatory hiring practices.

Richard Villarreal, then 49, encountered exactly that kind of discriminatory hiring policy when he applied for a job as a territorial manager with tobacco giant R.J. Reynolds. RJR outsourced its hiring, but provided discriminatory guidelines. It told the human resources company that its “targeted candidate” would be a person “2–3 years out of college” who “adjusts easily to changes.” The guidelines said to “stay away from” applicants who had been “in sales for 8–10 years.”

That’s classic disparate-impact discrimination. The guidelines don’t say “no older people.” Instead they create conditions that seem neutral — you can graduate from college at any age — but as applied will lead to hiring almost all young people. The EEOC told Villarreal he could go ahead and sue RJR.

But the 11th Circuit, sitting en banc, threw out Villarreal’s claim. It held that the language of the disparate-impact provision in the age-discrimination act excludes job hiring.

There’s a huge amount of age discrimination in hiring. You see it even in higher education. Law schools, for example, notoriously tend to regard people with more than 2 or 3 years practice experience as “tainted” and thus insufficiently intellectual, and it’s much harder to get hired in general if you’re over 35 or so. At Tennessee we’ve made some excellent hires by ignoring that practice, getting people that other schools overlooked, or deliberately wrote off.

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