Discrimination lawsuits pose a particularly complex legal and reputational liability risk for organizations in all industries. U.S. legislation prohibits employment discrimination, including discriminatory hiring practices, on the basis of race, color, religion, sex, national origin, age, or disability (Arthur, 2012). This prohibition extends beyond explicit and intentional violations to theoretically neutral practices that result in disparate (or adverse) impacts against protected classes (Cavico & Mujtaba, 2017). Unless justified by business necessity, such methods can leave employers liable for civil rights violations. For example, height requirements have a disproportionate impact on female job applicants and may be deemed discriminatory unless the employer can convincingly assert the importance of height for their business. Cases like Villarreal v. R.J. Reynolds Tobacco Co. show that disparate impact claims remain subject to considerable controversy, creating further complications for compliance.
The plaintiff in Villarreal v. R.J. Reynolds Tobacco Co. sued R. J. Reynolds after they repeatedly refused to consider his job application for a sales position despite him having relevant experience. He accused the company of directly and indirectly discriminating against applicants over the age of 40 in contravention of the Age Discrimination in Employment Act (ADEA) (Piacente, 2017). Specifically, he drew attention to resume review instructions that listed favored qualities like “2-3 years out of college” and disfavored attributes like “8-10 years” sales experience (as cited in Piacente, 2017, p. 1009). The District Court granted the defendant’s motion to dismiss the case on the grounds that ADEA’s provisions only protected current employees from age-based disparate impact. Initially, the Eleventh Circuit Court of Appeals reversed this judgment, but a subsequent en banc rehearing saw the Eleventh Circuit concur with the District Court’s initial holding 8-to-3.
The original dispute of the case was whether or not R. J. Reynolds’ hiring practices constituted illegal age-based discrimination. The plaintiff accused the company of disparate treatment based on age and procedures resulting in a disparate impact (Piacente, 2017). Proving disparate treatment, or intentional, direct discrimination against a protected class, requires evidence of discriminatory intent (Cavico & Mujtaba, 2017). By contrast, disparate impact may be unintentional and indirect, stemming from seemingly non-discriminatory procedures. The plaintiff identified a disparate impact in the company’s tendency to pass over older applicants (Piacente, 2017). The resume review guidelines that favored recent graduates and depreciated experienced salespeople were obviously skewed against this group. In theory, R. J. Reynolds could attempt to prove that its requirements stemmed from business necessity. However, it may be difficult to argue that a lack of experience is an objectively desirable trait in employees. In any event, both courts acknowledged the centrality of the disparate impact claim to the case.
The decisions of the District Court and the Eleventh Circuit stemmed from their interpretations of the extent of ADEA’s protection concerning disparate impact. The District Court’s ruling and the Eleventh Circuit’s final decision both asserted that it only applied to current employees, rather than applicants (Piacente, 2017). Unlike Title VII of the Civil Rights Act, which extends protection on grounds of “race, color, religion, sex, or national origin” (as cited in Piacente, 2017, p. 1005), ADEA does not explicitly mention job applicants. However, its language is otherwise similar and supports a broader interpretation of its effects, especially given the similar intent of safeguarding employment rights. The courts have overlooked earlier judicial commentary that advocated the extension of ADAE protections to job applicants (Piacente, 2017). Their decisions threaten to undermine those protections and subvert legislative intent by enabling organizations to discriminate against the elderly. Nevertheless, given the strength of the arguments against the narrow interpretation and a subsequent contrary ruling in another case, it seems likely that the broader understanding of ADEA will remain prevalent.
Such uncertainty underlines the urgency of adopting hiring practices that minimize disparate impacts on all protected classes. The Uniform Guidelines on Employee Selection Procedures promulgated by multiple government agencies help organizations ensure anti-discriminatory compliance through correct hiring practices. To that end, the guidelines promote validity studies that prove the business necessity of various criteria used in employee selection (Arthur, 2012). That can include confirming a relationship between test results and job performance or proving that a selection procedure tests required work skills or personality traits. By relying on validated hiring procedures, organizations can prove that they avoid all unnecessary indirect discrimination against protected classes. While those guidelines do not deal with discrimination based on disability or age, the same principles should apply in such cases as those classes enjoy similar protections.
Although preventing employment discrimination against protected classes is a long-standing policy priority in the U.S., the legal practice around this objective remains unclear. Claims of disparate impact, which concern forms of unintentional or indirect discrimination, are especially challenging from both legal and hiring perspectives. While much legal research has focused on protected classes identified in Title VII, disability and age merit similar protection from disparate impact in employment. Despite the finding in Villarreal v. R.J. Reynolds Tobacco Co., the broader legal context makes it likely that age-based disparate impact in hiring will continue to be a subject for lawsuits. To avoid liability for violations of anti-discriminatory legislation, employers need to comply with government guidelines when designing hiring procedures. By ensuring that their employee selection procedures do not needlessly discriminate against any protected classes, organizations can avoid substantial legal and reputational costs.
References
Arthur, D. (2012). Recruiting, interviewing, selecting, and orienting new employees (5th ed.). AMACOM.
Cavico, F. J. & Mujtaba, B. (2017). Diversity, disparate impact, and discrimination pursuant to Title VII of U.S. civil rights law. Equality, Diversity, and Inclusion: An International Journal 36(7), 670-691. Web.
Piacente, N. (2017). No prior experience desired: Villarreal v. RJ Reynolds Tobacco Co. and the scope of the disparate impact claims under the ADEA. St. John’s Law Review, 4(91), 1005-1039.