Friday, October 7, 2016
The Eleventh Circuit now reads the Age Discrimination in Employment Act (ADEA) not to let job applicants bring disparate impact claims. Villarreal v. R.J. Reynolds Tobacco Co., No. 15-10602 (11 Cir., Oct. 5, 2016) (en banc). The main reason concerns the text of section 4(a)(2) of the ADEA, which makes it unlawful for any 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.
29 U.S.C. § 623(a)(2). The court, in a majority opinion by Judge William Pryor, reasoned:
By using “or otherwise” to join the verbs in this section, Congress made “depriv[ing] or tend[ing] to deprive any individual of employment opportunities” a subset of “adversely affect[ing] [the individual’s] status as an employee.” In other words, section 4(a)(2) protects an individual only if he has a “status as an employee.” . . . The phrase “or otherwise” operates as a catchall: the specific items that precede it are meant to be subsumed by what comes after the “or otherwise.”
Op. at 7-9 (citations omitted). The court rejected the dissent’s several textual arguments to the contrary, and then refused to consider legislative history or defer to the EEOC’s interpretation to the contrary, because the statutory text is “clear”. But cf. id. at 43-46 (Rosenbaum, J., concurring in part and dissenting in part) (pointing to legislative history to support the majority opinion’s reading).