Donald Livingston Quoted by Bloomberg BNA on Disparate Impact Theory for Age Claims

Akin Gump labor and employment partner Donald Livingston, a former general counsel at the Equal Employment Opportunity Commission (EEOC), has been quoted in the Bloomberg BNA Daily Labor Report article “Applicant Can Use Disparate Impact Theory for Age Claim,” discussing an 11th Circuit decision in an age discrimination suit.

In Villarreal v. R.J. Reynolds Tobacco Co., the court ruled that job seekers may bring disparate impact claims under the Age Discrimination in Employment Act. The court also found that the plaintiff in the case, who didn’t file a charge with the EEOC until roughly two and a half years after he first applied for work with the defendant, could still bring his claims under the doctrine of equitable tolling.

Livingston said the court’s ruling on the equitable tolling issue could be problematic for employers. He also said he believes the ruling about the due diligence a plaintiff is required to engage in to explore whether employment rights have been violated could be a “sea change” in equitable tolling law. The article notes that the plaintiff in the case applied online for work with R.J. Reynolds and argued after a lengthy period that his rejection was based on hiring policies he didn’t know anything about. But, Livingston said, he didn’t ask the employer why he wasn’t hired, or otherwise inquire into his application.

“If an applicant needn’t make any inquiry,” Livingston said, “employers are at risk of having to face stale claims” if they use online job posting systems and don’t make unsuccessful applicants aware that they’ve been rejected and why, he said. Akin Gump represented the U.S. Chamber of Commerce as an amicus supporting the defendant in the case.