How would your company react if legal counsel advised you that the mere act of recruiting on college campuses exposes the business to class action employment discrimination claims? Fortunately, this scenario will not happen if federal courts follow a decision earlier this month from the Eleventh Circuit Court of Appeals. The full circuit reversed an earlier opinion from a divided panel that allowed a disparate impact discrimination claim by applicants for employment under the Age Discrimination in Employment Act.

Disparate impact claims are recognized under Title VII for other types of employment discrimination such as race or sex. Unlike the usual disparate treatment claim, plaintiffs in a disparate impact action do not have to prove intentional discrimination. Instead, they claim that an otherwise neutral employment policy has a statistically significant adverse impact on members of the protected classification. Unless the employer can demonstrate that there is no reasonable alternative for achieving the legitimate business goals behind the practice, it can be held liable for the resulting discriminatory impacts.

ADEA has different language and a different legislative history than Title VII. In recent years, the U.S. Supreme Court recognized that plaintiffs can bring disparate impact age discrimination claims in situations like reductions in force. However, the Court never stated whether this theory is available to applicants as well as existing employees. In Villarreal v. R.J. Reynolds Tobacco Co., the plaintiffs alleged that hiring policies that sought persons with fewer than a certain number of years of sales experience had a disparate impact on older applicants.

The full Eleventh Circuit reversed its panel decision based on a straightforward reading of ADEA. The portion of the statute in question protects employees but never mentions applicants for employment. Based on this language, the court concluded that only existing employees can bring disparate impact discrimination claims under ADEA.

If the Eleventh Circuit had upheld the panel decision, this could have resulted in employers having to completely rethink common recruiting policies. Practices such as recruiting college or professional students could clearly have a negative impact on older applicants. As in this case, excluding potentially overqualified applicants could also lead to age discrimination claims.

The Eleventh Circuit covers Alabama, Florida and Georgia. Federal appellate courts in other states have not addressed this issue, but the Villarreal decision provides a clear basis for rejecting attempts to seek relief for age discrimination sought by job applicants even when there is no evidence of intentional behavior.