Donald Livingston Quoted by Bloomberg BNA on 11th Circ Ruling re: Age Bias, ADEA and Older Job Applicants

Akin Gump labor and employment partner Donald Livingston was quoted by Bloomberg BNA’s Daily Labor Report for its article “Is Recruiting Students and Younger Workers Really Age Bias?,” on an October 5 ruling by the U.S. Court of Appeals for the 11th Circuit in Villareal v. R.J. Reynolds Tobacco Co.

According to the decision, the “main issue presented by this appeal is whether the Age Discrimination in Employment Act allows an unsuccessful job applicant to sue an employer for using a practice that has a disparate impact on older workers.” The plaintiff (and the Equal Employment Opportunity Commission, or EEOC, as amicus curiae) had sued because, per R.J. Reynolds’ guidelines, a contractor had screened out the 49-year-old plaintiff’s application because the employer was looking for someone just out of college and had instructed the contractor to reject those with eight years’ or more of experience in sales.

The article reports that the court ruled that “disparate impact” claims cannot be brought by older applicants

Livingston, a former EEOC general counsel, said of the 11th Circuit decision, “A contrary ruling would equate many common recruitment practices to prima facie age discrimination.” He added that programs targeting “recruitment of recent college or professional school graduates,” such as court clerkships, could have supported findings of age bias had the 11th Circuit ruled for the plaintiff.

Livingston represented the U.S. Chamber of Commerce as amicus supporting Reynolds.