Plaintiffs can sue for employment discrimination under federal civil rights laws using two theories. Disparate treatment claims allege that the plaintiff was treated differently based on his or her protected status. Disparate impact claims allege that the employer applied an otherwise neutral policy in a manner that resulted in a statistically significant negative impact on members of the protected classification.

In its 2005 City of Jackson decision, the U.S. Supreme Court concluded that plaintiffs can use the disparate impact theory to pursue age discrimination claims. That case involved claims by employees of the defendant, and did not address whether applicants for employment could similarly use disparate impact to allege that they were denied employment by the defendant in the first place. Last month in a 2-1 decision, the Eleventh Circuit Court of Appeals agreed that City of Jackson extents to applicants for employment.

In Villarreal v. R.J. Reynolds Tobacco Co., the plaintiff alleged that applicant screening procedures used by the defendant resulted in rejection of older applicants in statistically significant numbers. The defendant moved to dismiss the claim on the grounds that applicants for employment could not use the disparate impact theory under ADEA. The Eleventh Circuit rejected this reasoning, relying on EEOC regulations allowing such claims. Because the underlying statutory language on disparate impact claims by applicants is ambiguous, the court concluded that the EEOC has the authority to reasonably interpret the law to allow such actions.

In practice, employers are unlikely to face disparate impact age discrimination claims from rejected job applicants. These cases are difficult to bring and to prove. Rejected applicants may not have the knowledge or motivation to connect their failure to get the job with some underlying hiring practice that adversely affects older workers. However, employers reviewing hiring policies for signs of unintentional bias based on race or gender, should add age to their review criteria.