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No. 15-10602 _____________________________________
IN THE
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
______________________________________
RICHARD M. VILLARREAL, on behalf of himself and all others similarly situated,
Plaintiff-Appellant, v.
R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants-Appellees. _____________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA, GAINESVILLE DIVISION
_____________________________________
EN BANC BRIEF AMICUS CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL IN SUPPORT OF DEFENDANTS-APPELLEES
AND IN SUPPORT OF AFFIRMANCE` ____________________________________________
Rae T. Vann NT LAKIS, LLP 1501 M Street, N.W., Suite 400 Washington, DC 20005 (202) 629-5600 [email protected] Attorneys for Amicus Curiae Equal Employment Advisory Council April 22, 2016
C-1 of 7
No. 15-10602 Villarreal v. R.J. Reynolds Tobacco Company, et al.
CERTIFICATE OF INTERESTED PERSONS and
CORPORATE DISCLOSURE STATEMENT AARP, Amicus Curiae for Plaintiff-Appellant
Akin Gump Strauss Hauer & Feld LLP, Counsel for Chamber of Commerce
of the United States of America
Almond, John J., Counsel for Plaintiff-Appellant
Altshuler Berzon, LLP, Counsel for Plaintiff-Appellant
Beightol, Scott, Former Counsel for Defendant-Appellee Pinstripe, Inc.
Benson, Paul, Former Counsel for Defendant-Appellee Pinstripe, Inc.
Berger & Montague, P.C., Counsel for Plaintiff-Appellant
British American Tobacco p.l.c. (BTI), a publicly traded company with
ownership interest in Brown & Williamson Holdings, Inc., the indirect
holder of more than 10% of the stock of Reynolds American, Inc., parent
company of Defendant-Appellee R.J. Reynolds Tobacco Company
Brown & Williamson Holdings, Inc., private company and holder of more
than 10% of the stock of Reynolds American, Inc., parent company of
Defendant-Appellee R.J. Reynolds Tobacco Company
Brusoski, Donna J., Counsel for Amicus Curiae U.S. Equal Employment
Opportunity Commission (EEOC)
C-2 of 7
No. 15-10602 Villarreal v. R.J. Reynolds Tobacco Company, et al.
CERTIFICATE OF INTERESTED PERSONS, cont.
Campbell, R. Scott, Former Counsel for Defendant-Appellee Pinstripe, Inc.
CareerBuilder, LLC, private company and former Defendant
Carson, Shannon J., Counsel for Plaintiff-Appellant
Chamber of Commerce of the United States of America, Amicus Curiae for
Defendants-Appellees
Chen, Ze-wen Julius, Counsel for Amicus Curiae Chamber of Commerce of
the United States of America
Cielo, Inc., name under which Defendant-Appellee Pinstripe, Inc. now
operates
Dick, Anthony J., Counsel for Defendants-Appellees
Dreiband, Eric S., Counsel for Defendants-Appellees
Eber, Michael L., Counsel for Plaintiff-Appellant
Equal Employment Advisory Council (EEAC), Amicus Curiae for
Defendants-Appellees
Finberg, James M., Counsel for Plaintiff-Appellant
Girouard, Mark J., Counsel for Amicus Curiae Retail Litigation Center, Inc.
Goldstein, Jennifer S., Counsel for Amicus Curiae U.S. Equal Employment
Opportunity Commission
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No. 15-10602 Villarreal v. R.J. Reynolds Tobacco Company, et al.
CERTIFICATE OF INTERESTED PERSONS, cont.
Greenberg, Traurig, LLP, Former Counsel for Defendant-Appellee Pinstripe,
Inc.
Hunt, Hyland, Counsel for Amicus Curiae Chamber of Commerce of the
United States of America
Johnson, Mark T., Counsel for Plaintiff-Appellant
Jones Day, Counsel for Defendants-Appellees
Jones, Kristina M., Counsel for Plaintiff-Appellant
Kohrman, Daniel B., Counsel for Amicus Curiae AARP
Konecky, Joshua G., Counsel for Plaintiff-Appellant
Leasure, Amy Beth, former Counsel for Amicus Curiae Equal Employment
Advisory Council
Livingston, Donald R., Counsel for Amicus Curiae Chamber of Commerce
of the United States of America
Lopez, P. David, Counsel for Amicus Curiae U.S. Equal Employment
Opportunity Commission
Marshall, Alison B., Counsel for Defendants-Appellees
McArthur, Nikki Lynn, Counsel for Defendants-Appellees
McCann, Laurie, Counsel for Amicus Curiae AARP
C-4 of 7
No. 15-10602 Villarreal v. R.J. Reynolds Tobacco Company, et al.
CERTIFICATE OF INTERESTED PERSONS, cont.
McClain, Sherron T., Former Counsel for Defendants-Appellees
Michael Best & Friedrich LLP, Former Counsel for Defendant-Appellee
Pinstripe, Inc.
NAACP Legal Defense & Educational Fund, Inc., Amicus Curiae for
Plaintiff- Appellant
Nilan Johnson Lewis PA, Counsel for Amicus Curiae Retail Litigation
Center, Inc.
NT Lakis, LLP, Counsel for Amicus Curiae Equal Employment Advisory
Council
Pinstripe Holdings, LLC, private company and parent corporation of
Pinstripe, Inc. now operating as Cielo, Inc.
Pitts, Patrick Casey, Counsel for Plaintiff-Appellant
Postman, Warren, Counsel for Amicus Curiae Chamber of Commerce of the
United States of America
Retail Litigation Center, Inc., Amicus Curiae for Defendants-Appellees
Reynolds American, Inc. (RAI), publicly held company and parent company
of Defendant-Appellee R.J. Reynolds Tobacco Company
R.J. Reynolds Tobacco Company, private company and Defendant-Appellee
C-5 of 7
No. 15-10602 Villarreal v. R.J. Reynolds Tobacco Company, et al.
CERTIFICATE OF INTERESTED PERSONS, cont.
R.J. Reynolds Tobacco Holdings, Inc., private company and parent company
of R.J. Reynolds Tobacco Company
Rogers & Hardin LLP, Counsel for Plaintiff-Appellant
Schalman-Bergen, Sarah R., Counsel for Plaintiff-Appellant
Schmitt, Joseph G., Counsel for Amicus Curiae Retail Litigation Center, Inc.
Schneider, Todd M., Counsel for Plaintiff-Appellant
Schneider Wallace Cottrell Brayton Konecky, LLP, Counsel for Plaintiff-
Appellant
Seyfarth Shaw LLP, Counsel for Former Defendant CareerBuilder, Inc.
Smith, Dara, Counsel for Amicus Curiae AARP
Smith, Frederick T., Counsel for Former Defendant CareerBuilder, Inc.
Smith Horvath, LLC, Counsel for Plaintiff-Appellant
Story, Hon. Richard W., Trial Judge, U.S. District Court for the Northern
District of Georgia
Sudbury, Deborah A., Counsel for Defendants-Appellees
Swarns, Christina, Counsel for Amicus Curiae NAACP Legal Defense &
Educational Fund, Inc.
C-6 of 7
No. 15-10602 Villarreal v. R.J. Reynolds Tobacco Company, et al.
CERTIFICATE OF INTERESTED PERSONS, cont.
Todd, Kate Comerford, Counsel for Amicus Curiae Chamber of Commerce
of the United States of America
U.S. Equal Employment Opportunity Commission, Amicus Curiae for
Plaintiff-Appellant
Vann, Rae T., Counsel for Amicus Curiae Equal Employment Advisory
Council
Villarreal, Richard M., Plaintiff-Appellant
Wheeler, Carolyn L., Former Counsel for Amicus Curiae U.S. Equal
Employment Opportunity Commission
White, Deborah R., Counsel for Amicus Curiae Retail Litigation Center, Inc.
Wojdowski, Haley A., Counsel for Defendants-Appellees
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No. 15-10602 Villarreal v. R.J. Reynolds Tobacco Company, et al.
CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. Rules 26.1 and 29(c), Amicus Curiae Equal
Employment Advisory Council discloses the following:
1. The Equal Employment Advisory Council has no parent corporations and no subsidiary corporations.
2. No publicly held company owns 10% or more stock in the
Equal Employment Advisory Council.
Respectfully submitted,
/s/ Rae T. Vann Rae T. Vann Counsel of Record NT LAKIS, LLP 1501 M Street, N.W., Suite 400 Washington, DC 20005 [email protected] (202) 629-5600 Attorneys for Amicus Curiae Equal Employment Advisory Council
April 22, 2016
FEDERAL RULE 29(c)(5) STATEMENT
No counsel for a party authored this brief in whole or in part; No party or counsel for a party contributed money that was intended to fund the preparation or submission of this brief; and No person other than amicus curiae, its members or counsel, contributed money that was intended to fund the preparation or submission of this brief. Respectfully submitted, s/ Rae T. Vann
Rae T. Vann Counsel of Record NT LAKIS, LLP 1501 M Street, N.W., Suite 400 Washington, DC 20005 (202) 629-5600 [email protected]
Attorneys for Amicus Curiae
Equal Employment Advisory Council
TABLE OF CONTENTS TABLE OF CITATIONS ........................................................................................ iii INTEREST OF THE AMICUS CURIAE ................................................................... 1 STATEMENT OF THE ISSUES .............................................................................. 3 STATEMENT OF FACTS ........................................................................................ 3 SUMMARY OF ARGUMENT ................................................................................. 4 ARGUMENT ............................................................................................................. 6
I. THE DISTRICT COURT BELOW RULED CORRECTLY THAT THE ADEA’S PLAIN TEXT, AS INTERPRETED BY THE U.S. SUPREME COURT IN SMITH v. CITY OF JACKSON, LIMITS THE AVAILABILITY OF THE DISPARATE IMPACT THEORY TO CLAIMS BROUGHT BY CURRENT OR FORMER EMPLOYEES ................................................. 6
A. Smith Recognized A Narrow Cause Of Action For Disparate Impact Discrimination Under § 4(a)(2) Of The ADEA .................................... 6 1. Smith confirms that there are fundamental differences between
disparate impact under the ADEA and under Title VII ................. 10
2. Griggs is inapposite ....................................................................... 11
B. The EEOC’s ADEA Regulations Are Not To The Contrary, And Deference To Its Sub-Regulatory Policy Views Is Unwarranted ....... 15
II. A DISPARATE IMPACT ANALYSIS FUNDAMENTALLY IS
UNSUITABLE FOR USE IN ADEA HIRING DISCRIMINATION CLAIMS ................................................................................................... 21
A. As A General Rule, Employers Do Not Collect Age Information
From Applicants .................................................................................. 22
ii
B. Without Reliable And Complete Data On Applicant Age, Employers Cannot Meaningfully Monitor For Potential Adverse Impact ............ 24
III. THE DISTRICT COURT PROPERLY DECLINED TO
EXCUSE VILLARREAL’S FAILURE TO TIMELY FILE HIS CLAIM ON EQUITABLE GROUNDS .................................................. 25
A. Filing Deadlines Are Intentionally Short In Discrimination
Claims To Protect Both Employers And Employees .......................... 26
B. Villarreal’s Tolling Theory Would Eliminate The Statutory Claims Filing Deadline In Most Discrimination Cases ...................... 29
CONCLUSION ........................................................................................................ 31 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
iii
TABLE OF CITATIONS
FEDERAL CASES Auer v. Robbins, 519 U.S. 452 (1997) ..................................................................... 21
Burlison v. McDonald’s Corp., 455 F.3d 1242 (11th Cir. 2006) .............................. 2
Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2014) ....................... 21
Delaware State College v. Ricks, 449 U.S. 250, 256-57 (1980) .............................. 27
Downs v. McNeil, 520 F.3d 1311 (11th Cir. 2008) ................................................... 29
EEOC v. Allstate Insurance Co., 458 F. Supp. 2d 980 (E.D. Mo. 2006), aff’d, 528 F.3d 1042 (8th Cir.), appeal dismissed on other grounds, No. 07-1559 (8th Cir. Sept. 8, 2008) ........................................................ 2, 17, 18 EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th Cir. 1994) ........................ 17
EEOC v. Shell Oil Co., 466 U.S. 54 (1984) ............................................................. 28
EEOC v. Wyoming, 460 U.S. 226 (1983) ................................................................ 14
General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004) ...................... 2
*Griggs v. Duke Power Co., 401 U.S. 424 (1971) ........................................... passim
Gross v. FBL Financial Services Corp., 557 U.S. 167 (2009) .................................. 2
Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015) ............................................. 28
McClinton v. Alabama By-Products Corp., 743 F.2d 1483 (11th Cir. 1984) ......... 27
Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84 (2008) ........................ 2
Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct. 750 (2016) ..... 29
Mohasco Corp. v. Silver, 447 U.S. 807 (1980) ........................................................ 26
iv
Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975) ..... 29, 30
Sitko v. Goodyear Tire Co., No. 02-4083 (6th Cir. Jan. 21, 2003) ............................ 3
*Smith v. City of Jackson, 544 U.S. 228 (2005) ............................................... passim Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015) .................................... 21
STATE CASES Marks v. Loral Corp., 68 Cal Rptr.2d 1 (Cal. Ct. App. 1997), superseded by
statute in Cal. Gov’t Code § 12941, as recognized in McCaskey v. Cal. St. Auto Ass’n, 118 Cal. Rptr.3d 34 (Cal. Ct. App. 2010) ................................... 9, 10
FEDERAL STATUTES Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. .............................................................................. passim *29 U.S.C. § 623(a) .............................................................................................. 6
*29 U.S.C. § 623(a)(2) ................................................................................ passim *29 U.S.C. § 623(c) .............................................................................................. 9 *29 U.S.C. § 623(c)(2) ..................................................................................... 8, 9 29 U.S.C. § 626(d)(1)(A) .................................................................................... 26 Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009) ................................................................ 30 Pub. L. No. 92-261, 86 Stat. 109 (1972) .................................................................. 10 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ........................................................................ 4, 10, 11 REGULATIONS 29 C.F.R. pt. 1607 .................................................................................................... 19
v
29 C.F.R. § 1607.2(D) ............................................................................................. 23
29 C.F.R. § 1607.4 ................................................................................................... 25
29 C.F.R. § 1625.4 ................................................................................................... 23
29 C.F.R. § 1625.5 ................................................................................................... 23
29 C.F.R. § 1625.7(c) ............................................................................................... 17
29 C.F.R. § 1627.3 ................................................................................................... 27
46 Fed. Reg. 47,726 (Sept. 29, 1981) ...................................................................... 16
EEOC, Guidelines on Employee Selection Procedures, 35 Fed. Reg. 12,333 (Aug. 1, 1970) ............................................................................................... 18, 19 EEOC, Guidelines on Employment Testing Procedures (Aug. 24, 1966) .............. 18 Uniform Guidelines on Employee Selection Procedures, 43 Fed. Reg. 38,290
(Aug. 25, 1978) ............................................................................................. 19, 20 OTHER AUTHORITIES Paul Grossman, et al., “Lies, Damned Lies, and Statistics”: How The Peter
Principle Warps Statistical Analysis of Age Discrimination Claims, 22 The Labor Lawyer 251 (2007) ................................................................................... 24
Tom Tinkham, The Uses and Misuses of Statistical Proof in Age Discrimination
Claims, 27 Hofstra Lab. & Emp. L.J. 357 (2010) .............................................. 23 U.S. Department of Labor, The Older American Worker — Age Discrimination in
Employment, Report to Congress on Age Discrimination in Employment under Section 715 of the Civil Rights Act of 1964 (1965), reprinted in Hearings on H.R. 10634 and Similar Bills Before the Select Subcomm. on Labor of the House Comm. on Education and Labor, 89th Cong., 1st Sess. (1965) ........ 14, 15
*Citations principally relied upon
The Equal Employment Advisory Council (EEAC) respectfully submits
this brief as amicus curiae contingent upon granting of the accompanying motion
for leave to file. Both parties have consented to the filing of a brief by EEAC in
this case. The brief urges this Court to affirm the district court’s decision below,
and thus supports the position of Defendant-Appellee, R.J. Reynolds Tobacco Co.
INTEREST OF THE AMICUS CURIAE
The Equal Employment Advisory Council (EEAC) is a nationwide
association of employers organized in 1976 to promote sound approaches to the
elimination of employment discrimination. Its membership includes over 250
major U.S. corporations, collectively providing employment to millions of
workers. EEAC’s directors and officers include many of industry’s leading
experts in the field of equal employment opportunity. EEAC’s members are
firmly committed to principles of nondiscrimination and equal employment
opportunity.
All of EEAC’s members are subject to the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., as amended, as well as other
equal employment statutes and regulations. As employers, and as potential
targets of employment discrimination charges and lawsuits, EEAC’s members
have a substantial interest in the proper application of the “disparate impact”
theory of discrimination under § 4(a)(2) of the ADEA, 29 U.S.C. § 623(a)(2), as
2
established by the Supreme Court in Smith v. City of Jackson, 544 U.S. 228
(2005). In particular, the issues presented in this matter – namely, whether a
disparate impact cause of action may be brought under the ADEA on behalf of
applicants for employment, and whether the statute of limitations for bringing
such claims may be equitably tolled absent evidence of reasonable diligence and
extraordinary circumstances – are extremely important to the nationwide
employer constituency that EEAC represents. The district court below ruled
correctly that the ADEA does not provide a cause of action for disparate impact
in hiring, and that Plaintiff-Appellant could not avail himself of equitable tolling
principles to excuse his lack of diligence in exhausting administrative remedies
and filing his civil complaint within the statutory limitations period.
Because of its interest in the application of the nation’s fair employment
laws, EEAC has participated as amicus curiae in numerous cases before the U.S.
Supreme Court, this Court and other federal courts of appeals in a number of
important cases involving the scope and breadth of the ADEA, including Gross v.
FBL Fin. Svcs. Corp., 557 U.S. 167 (2009); Meacham v. Knolls Atomic Power
Lab., 554 U.S. 84 (2008); Smith v. City of Jackson, 544 U.S. 228 (2005); General
Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004); EEOC v. Allstate Ins.
Co., 528 F.3d 1042 (8th Cir. 2008), appeal dismissed on other grounds, No. 07-
1559 (8th Cir. Sept. 8, 2008); Burlison v. McDonald’s Corp., 455 F.3d 1242 (11th
3
Cir. 2006); and Sitko v. Goodyear Tire Co., No. 02-4083 (6th Cir. Jan. 21, 2003).
Thus, EEAC has an interest in, and a familiarity with, the issues and policy
concerns involved in this case.
EEAC seeks to assist the Court by highlighting the impact its decision will
have beyond the immediate concerns of the parties to the case. Accordingly, this
brief brings to the Court’s attention relevant matters that may not have been
addressed by the parties. Because of its experience in these matters, EEAC is
well situated to brief the Court on the significance of this case to employers
generally.
STATEMENT OF THE ISSUES
1. Whether § 4(a)(2) of the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 623(a)(2), authorizes unsuccessful applicants for
employment to assert disparate impact discrimination claims.
2. Whether equitable tolling of the ADEA’s statute of limitations is
permissible in the absence of allegations of either extraordinary circumstances or
reasonable diligence on the plaintiff’s part.
STATEMENT OF FACTS
Amicus curiae EEAC incorporates by reference the “Relevant Facts and
Course of Proceedings” contained in Defendants-Appellees’ Petition for
Rehearing En Banc. Pet. at 3.
4
SUMMARY OF ARGUMENT
The district court correctly concluded that § 4(a)(2) of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., as
amended, which establishes a cause of action for disparate impact discrimination,
applies only to claims brought by current or former employees, not applicants for
employment. In doing so, the court adhered to the ADEA’s plain text and
policies underlying it, but also acknowledged important textual differences
recognized by the U.S. Supreme Court in Smith v. City of Jackson, 544 U.S. 228
(2005), between disparate impact in the age context and under Title VII of the
Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. Accordingly,
this Court should affirm the decision below.
Enacted in 1967, the ADEA prohibits discrimination in the terms,
conditions or privileges of employment on the basis of age. It also makes it
unlawful for an employer to “limit, segregate, or classify his employees in any
way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee because of
such individual’s age.” 29 U.S.C. § 623(a)(2) (emphasis added).
Unlike the provision in Title VII that gave birth to disparate impact in
Griggs v. Duke Power Co., 401 U.S. 424 (1971), Congress has never amended
§ 4(a)(2) of the ADEA to include job applicants, as well as employees. In
5
addition, the Smith plurality strongly suggested, and three concurring Justices
concluded outright, that § 4(a)(2) does not extend to applicants for employment.
Because amicus EEOC has never expressed in its implementing regulations (or
even seriously entertained) the notion that § 4(a)(2) encompasses claims brought
by applicants, the agency’s contrary interpretation as amicus before this Court is
unpersuasive and thus not entitled to any deference.
The district court below also correctly held that Plaintiff-Appellant’s
untimely claims were not subject to equitable tolling, because he presented no
evidence of extraordinary circumstances or reasonable diligence on his part
justifying the delay. Excusing an untimely filing on equitable grounds where the
plaintiff made no effort to determine the reason for the challenged employment
action at the time it occurred and faced no extraordinary circumstances justifying
the delay would be contrary to this Court’s and the Supreme Court’s precedents,
and would frustrate efforts to both resolve workplace disputes promptly and
prevent the litigation of stale claims.
6
ARGUMENT
I. THE DISTRICT COURT BELOW RULED CORRECTLY THAT THE ADEA’S PLAIN TEXT, AS INTERPRETED BY THE U.S. SUPREME COURT IN SMITH v. CITY OF JACKSON, LIMITS THE AVAILABILITY OF THE DISPARATE IMPACT THEORY TO CLAIMS BROUGHT BY CURRENT OR FORMER EMPLOYEES The district court soundly rejected Plaintiff-Appellant Richard Villarreal’s
contention that the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
§§ 621 et seq., permits applicants for employment to bring disparate impact
discrimination claims under § 4(a)(2), concluding that such an interpretation is
inconsistent with the statute’s plain text and irreconcilable with the U.S. Supreme
Court’s holding in Smith v. City of Jackson, 544 U.S. 228 (2005). Accordingly,
the district court’s decision below should be affirmed.
A. Smith Recognized A Narrow Cause Of Action For Disparate Impact Discrimination Under § 4(a)(2) Of The ADEA
The ADEA makes it unlawful for an employer:
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual’s age;
(2) to limit, segregate, or classify his employees in any way which
would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual’s age; or
(3) to reduce the wage rate of any employee in order to comply with this
chapter.
7
29 U.S.C. § 623(a).
In Smith v. City of Jackson, a plurality of the Supreme Court held that
§ 4(a)(2) of the ADEA authorizes claims of disparate impact discrimination. It
observed that while § 4(a)(1) makes it unlawful to “fail or refuse to hire … any
individual because of such individual’s age,” 544 U.S. at 248 – in other words, to
engage in intentional, disparate treatment discrimination – § 4(a)(2) is different,
providing that an employer may not “‘limit … his employees in any way which
would deprive or tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of such individual’s
age.’” Smith, 544 U.S. at 236 n.6 (emphasis in original). As to § 4(a)(2), the
Court explained:
Unlike in paragraph (a)(1), there is thus an incongruity between the employer’s actions – which are focused on his employees generally – and the individual employee who adversely suffers because of those actions. Thus, an employer who classifies his employees without respect to age may still be liable under the terms of this paragraph if such classification adversely affects the employee because of that employee’s age – the very definition of disparate impact.
Id. (emphasis added).
The plurality took pains to emphasize (literally and figuratively) the word
“employee,” characterizing practices that adversely affect those individuals as the
“very definition” of ADEA disparate impact. As Justice O’Connor, joined by
Justices Kennedy and Thomas, pointed out, “Section 4(a)(2), of course, does not
8
apply to ‘applicants for employment’ at all – it is only § 4(a)(1) that protects this
group.” Id. at 266 (O’Connor, J., concurring). Neither the plurality nor the other
concurring and dissenting Justices disagreed with Justice O’Connor’s
characterization of § 4(a)(2).
Yet Villarreal and his amici argue that on its face, § 4(a)(2) “can and
should be read to prohibit hiring practices that have a disparate impact on older
jobseekers.” See En Banc Brief for AARP as Amicus Curiae, 8. Such an
interpretation has no basis in § 4(a)(2)’s actual text, which unlike § 4(a)(1) makes
no mention of “hiring” or “applicants” at all.
In fact, amicus AARP’s suggestion that the term “any individual” as used
in § 4(a)(2) is “naturally broad enough to cover job applicants,” id., only makes
sense if that term is divorced entirely from the text around it. AARP notes that
adjacent § 4(b) uses the term “any individual,” which necessarily refers only to
job applicants, since § 4(b) “deals with employment agencies that work only with
applicants.” Id. It suggests that “any individual” in § 4(a)(2) should be
interpreted in the same manner, that is, as a proxy for the word “applicant.” Id.
Such an interpretation might have some superficial appeal were it not for
the fact that § 4(c)(2) – which applies to labor organizations – uses the terms
“employee,” “applicant,” and “any individual” in a manner very different than
that urged by AARP. 29 U.S.C. § 623(c)(2). Section 4(c) provides:
9
It shall be unlawful for a labor organization – (1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his age; (2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s age; (3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.
29 U.S.C. § 623(c) (emphasis added). Section 4(c)(2) utilizes the “any
individual” language in barring actions that “limit, segregate, or classify … any
individual” in a manner that would deprive “any individual of employment
opportunities” or otherwise affect his, i.e., the individual’s, “status as an
employee or as an applicant ….” 29 U.S.C. § 623(c)(2) (emphasis added). Thus,
§ 4(c)(2) explicitly includes applicants, even though it also references “any
individual.” Id.
If Villarreal and AARP’s interpretation of the term “any individual” were
correct, then § 4(c)(2)’s “an applicant” would have no functional meaning or
purpose at all. Thus, far from reflecting a “natural” construction, Villarreal’s
interpretation represents instead “a grammatically nonsensical reading of the
federal text.” Marks v. Loral Corp., 68 Cal Rptr.2d 1, 11 (Cal. Ct. App. 1997),
10
superseded by statute in Cal. Gov’t Code § 12941, as recognized in McCaskey v.
Cal. St. Auto Ass’n, 118 Cal. Rptr.3d 34 (Cal. Ct. App. 2010). “Admittedly, the
statute was not written by Hemingway. Nevertheless, it is not so convoluted that
it cannot be understood. … The words ‘adversely affect’ refer to actions which
‘affect’ an employee’s ‘status as an employee’ because of ‘such individual’s
age.’” Id.
1. Smith confirms that there are fundamental differences between disparate impact under the ADEA and under Title VII
In Smith, the Supreme Court relied heavily on its reasoning in Griggs v.
Duke Power Co., 401 U.S. 424 (1971), to conclude that § 4(a)(2) establishes a
disparate impact cause of action under the ADEA. Importantly, however, the
Court in Smith made clear that disparate impact under the ADEA is not the same
as disparate impact under Title VII.
While acknowledging that § 4(a)(2) “is identical to that found in
§ 703(a)(2) of … Title VII,” 544 U.S. at 233, the Smith Court pointed out that
unlike Title VII, the ADEA “contains language that significantly narrows its
coverage by permitting any ‘otherwise prohibited’ action ‘where the
differentiation is based on reasonable factors other than age.’”1 Id. Thus,
“[u]nlike the business necessity test, which asks whether there are other ways for
1 Also, Section 703(a)(2) was amended in 1972 to expressly include applicants for employment. Pub. L. No. 92-261, 86 Stat. 109 (1972).
11
the employer to achieve its goals that do not result in a disparate impact on a
protected class, the reasonableness inquiry includes no such requirement.” Id. at
243.
Accordingly, Villarreal is mistaken to suggest that the reasoning of Griggs
is dispositive (and that of Smith only marginally relevant) on the question whether
the ADEA allows applicants to challenge their non-selection under a disparate
impact theory of discrimination. To the contrary, Griggs was a Title VII case
decided in a context and under circumstances that simply did not extend then, and
do not apply now, to the ADEA context. Rather, this Court should be guided by
Smith, which outlines the relatively narrow circumstances under which a disparate
impact claim may be brought under the ADEA, as compared to Title VII, and also
confirms that § 4(a)(2) does not apply to applicants.
2. Griggs is inapposite Amicus EEOC urges this Court to cast Smith aside principally because the
question whether applicants can assert disparate impact age discrimination claims
was not squarely before the Court in that case. Instead, it argues that “[t]he
language of section 4(a)(2) …, the Griggs Court’s interpretation of identical
statutory language in Title VII …, and the ADEA’s underlying purposes all
support the conclusion that the ADEA authorizes disparate impact claims by
applicants ….” En Banc Brief of the EEOC as Amicus Curiae at 5. In addition:
12
By adopting in the ADEA the same language it used in Title VII, Congress manifested its intent to extend to older workers the same protection against discrimination it had extended to the groups protected by Title VII three years earlier. Thus, the availability of disparate impact analysis under the ADEA follows inextricably from a line of cases beginning with Griggs.
Id. at 11 (citations omitted). Griggs, however, did not address or analyze whether
applicants, as well as employees, may invoke Title VII’s disparate impact
provision. In addition, Griggs established that tests or other practices having an
adverse impact on a protected group violate Title VII unless justified by business
necessity. The fact that the ADEA does not incorporate the business necessity test
further confirms that Griggs does not control resolution of the issues presented
here.
The suggestion by Villarreal and his amici that Griggs compels the
conclusion that § 4(a)(2) provides a cause of action for disparate impact in hiring
also is belied by the actual facts, circumstances and holding of the case. The
Court’s opinion begins by explaining:
We granted the writ in this case to resolve the question whether an employer is prohibited by … Title VII … from requiring a high school education or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a longstanding practice of giving preference to whites.
13
Griggs, 401 U.S. at 425-26. The Court then famously declared that Title VII
“proscribes not only overt discrimination but also practices that are fair in
form, but discriminatory in operation. The touchstone is business necessity.
If an employment practice which operates to exclude Negroes cannot be
shown to be related to job performance, the practice is prohibited.” Id. at
431 (emphasis added). As Smith confirmed, however, Title VII’s business
necessity test is inapplicable to the ADEA context. Accordingly, Griggs is
instructive, but by no means controlling.
Furthermore, the notion that Title VII and the ADEA confer identical rights
and obligations on their respective protected groups ignores the well-documented
history and policy considerations leading to enactment of both statutes, as well as
the Supreme Court’s contrary interpretations, both before and since Smith. In
fact, “nothing in the Court’s decision in Griggs itself provides any reason to
extend its holding to the ADEA.” Smith, 544 U.S. at 261 (O’Connor, J.,
concurring).
As Justice O’Connor observed:
[T]he decision in Griggs was not based on any analysis of Title VII’s actual language. Rather the ratio decidendi was the statute’s perceived purpose, i.e., to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. … In other words, the Court in Griggs reasoned that disparate impact liability was necessary to achieve Title VII’s ostensible goal of
14
eliminating the cumulative effects of historical racial discrimination. However, that rationale finds no parallel in the ADEA context.
Id. at 261-62.
The passage of the ADEA was strongly influenced by the contents of a
1965 report on the problems of age discrimination submitted to Congress by then-
Secretary of Labor Willard Wirtz in accordance with a directive incorporated in
Title VII.2 Significantly, Congress commissioned the Secretary’s Report, rather
than simply include age among the categories of employment discrimination
prohibited by Title VII, at least in part because members raised doubts that age
discrimination presented the same types of problems as discrimination on the
basis of race, color, sex, religion and national origin. EEOC v. Wyoming, 460
U.S. 226, 229 (1983).
After conducting a study of the factors that tended to result in age
discrimination in employment, Secretary Wirtz concluded:
The gist of the matter is that “discrimination” means something very different, so far as employment practices involving age are concerned, from what it means in connection with discrimination involving — for example — race. It means in connection with the age question, furthermore, several different things.
2 U.S. Department of Labor, The Older American Worker — Age Discrimination in Employment, Report to Congress on Age Discrimination in Employment under Section 715 of the Civil Rights Act of 1964 (1965), reprinted in Hearings on H.R. 10634 and Similar Bills Before the Select Subcomm. on Labor of the House Comm. on Education and Labor, 89th Cong., 1st Sess. 201-29 (1965) (hereinafter cited as “Secretary’s Report”).
15
Secretary’s Report at 5. Accordingly, amicus AARP’s contention that in enacting
the ADEA, the “most pressing problem [Congress] sought to remedy was
rampant age discrimination in hiring,” En Banc Brief for AARP as Amicus
Curiae at 3, is a gross overstatement.
The differences between Title VII and the ADEA’s statutory schemes and
policy concerns render Griggs of little assistance in addressing whether applicants
for employment may bring disparate impact claims under § 4(a)(2). Smith, in
contrast, confirms that ADEA disparate impact claims arising under § 4(a)(2) are
not available to applicants for employment.
B. The EEOC’s ADEA Regulations Are Not To The Contrary, And Deference To Its Sub-Regulatory Policy Views Is Unwarranted
Long before Smith was decided, the EEOC interpreted the ADEA generally
to prohibit intentional discrimination because of age, as well as disparate impact
discrimination stemming from the application of an employment policy, practice
or procedure that has a disproportionately adverse impact on ADEA-protected
employees. Neither the agency’s early ADEA regulations nor those promulgated
post-Smith explicitly provided that such claims may be brought by applicants, as
well as employees, however.
For example, while the EEOC in its 1981 ADEA regulations mentioned the
word “applicants” in the disparate impact context, it did so almost entirely as an
16
afterthought, and without any explanation or analysis of the statutory text.
Section 1625.7(d) of the 1981 regulations provided, for instance:
When an employment practice, including a test, is claimed as a basis for different treatment of employees or applicants for employment on the grounds that it is a ‘factor other than age,’ and such a practice has an adverse impact on individuals within the protected age group, it can only be justified as a business necessity.
46 Fed. Reg. 47,726 (Sept. 29, 1981).
Thus, prior to the Supreme Court’s ruling in Smith, the EEOC seemed only
to suggest, without any substantive analysis, that the disparate impact cause of
action was available to applicants and employees alike, and that adverse impact
against such individuals would be unlawful unless justified by “business
necessity.” In Smith, however, the Supreme Court limited the scope of such
claims by holding that disparate impact based on “reasonable factors other than
age” does not violate the ADEA, and suggesting further that § 4(a)(2) only
applies to employees.
Following Smith, the EEOC revised its ADEA regulations to remove
reference to the business necessity test. 544 U.S. at 232. The relevant section of
the existing regulations now provides:
Any employment practice that adversely affects individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a “reasonable factor other than age.” An individual challenging the allegedly unlawful practice is responsible for isolating and identifying the specific employment practice that allegedly causes any observed statistical disparities.
17
29 C.F.R. § 1625.7(c). Notably, the EEOC added the RFOA defense and deleted
from the revised regulations the previous reference to “applicants.” That the
EEOC had an opportunity, but declined, to interpret the scope of 4(a)(2) as relates
to applicants in its revised regulations is especially curious given the plurality’s
strong suggestion (and Justice O’Connor’s explicit declaration) in Smith that the
disparate impact provision only applies to employees, strongly implying that the
agency understood Smith to preclude disparate impact hiring claims.
To be fair, the EEOC did litigate a handful of ADEA disparate impact
claims pre-Smith involving applicants for employment, most notably in EEOC v.
Francis W. Parker Sch., 41 F.3d 1073 (7th Cir. 1994), but the main issue in those
cases was whether disparate impact claims were cognizable at all. After Smith
was decided, the EEOC appeared to all but concede that ADEA disparate impact
claims may be brought only by current or former employees.
In EEOC v. Allstate Insurance Co., for instance, the EEOC brought an
ADEA disparate impact action on behalf of a group of recently terminated
employees that the agency alleged was denied reemployment under a policy
having disparate impact on older workers. 458 F. Supp. 2d 980 (E.D. Mo. 2006),
aff’d, 528 F.3d 1042 (8th Cir.), appeal dismissed on other grounds, No. 07-1559
(8th Cir. Sept. 8, 2008). At issue was whether the alleged victims were
“applicants” or “former employees” for ADEA disparate impact purposes, and
18
whether the challenged policy amounted to an “employment” rather than a
“rehire” policy. Id.
Tacitly acknowledging that § 4(a)(2) does not apply to applicants, the
EEOC “disagree[d] with the Defendant’s classification of this case as a ‘hiring
case’ and rather [saw it] as a ‘rehire case’ which is appropriately addressed as a
policy that affects the status, of a member of the protected class, as an employee.
[The EEOC] would address this case under § 623(a)(2), challenging an
employment practice.” Allstate, 458 F. Supp. 2d. at 989. The Eighth Circuit
agreed with the EEOC’s contention that the employment policy in question
governed the “rehire” of the “former employees,” but affirmed the judgment
below on the merits. EEOC v. Allstate Ins. Co., 528 F.3d 1042 (8th Cir.), appeal
dismissed on other grounds, No. 07-1559 (8th Cir. Sept. 8, 2008).
The EEOC’s regulatory actions in other contexts further suggest that it
never seriously entertained the notion that § 4(a)(2) could reasonably be
interpreted to encompass a cause of action for disparate impact in hiring. In
particular, longstanding EEOC regulations aimed to assist employers in
monitoring their hiring procedures for adverse impact have never applied to the
ADEA context. See EEOC, Guidelines on Employment Testing Procedures (Aug.
24, 1966)3; EEOC, Guidelines on Employee Selection Procedures, 35 Fed. Reg.
3 Available at http://njlegallib.rutgers.edu/misc/GETP.pdf.
19
12,333 (Aug. 1, 1970) (to be codified at 29 C.F.R. Part 1607); Uniform
Guidelines on Employee Selection Procedures, 43 Fed. Reg. 38,290 (Aug. 25,
1978), as amended.
As early as 1966, for instance, the EEOC’s regulations contained a set of
guidelines designed “to advise employers and other users what the law and good
industrial psychology practice required” for the use of employment selection
tests. 43 Fed. Reg. 38,290 (Aug. 25, 1978) (footnote omitted). Those regulations
preceded a multiple-agency effort following Griggs to provide a uniform set of
rules that eventually became the 1978 Uniform Guidelines on Employee
Selection Procedures.
The Uniform Guidelines, which has been codified by the EEOC in its
administrative regulations, specifies that the use of any selection procedure that
has adverse impact is considered discriminatory, unless the employer has a
legitimate business justification for its use. See 29 C.F.R. pt. 1607. As the EEOC
explained in the background section of the 1978 Uniform Guidelines:
One problem that confronted the Congress which adopted the Civil Rights Act of 1964 involved the effect of written preemployment tests on equal employment opportunity. The use of these test scores frequently denied employment to minorities in many cases without evidence that the tests were related to success on the job. Yet employers wished to continue to use such tests as practical tools to assist in the selection of qualified employees. … In 1971 in Griggs v. Duke Power Co., the Supreme Court announced the principle that employer practices which had an adverse impact on minorities and were not justified by business necessity constituted illegal
20
discrimination under title VII. Congress confirmed this interpretation in the 1972 amendments to title VII.
43 Fed. Reg. 38,290 (Aug. 25, 1978) (footnote omitted). While Congress’s
concern over the use of tests to discriminate against applicants for employment on
the basis of race was well understood by the drafters of the Uniform Guidelines,
they could not have understood Congress to have expressed a similar concern as
to age, as they explicitly declined to extend the Guidelines to the ADEA context:
These guidelines apply only to persons subject to Title VII, Executive Order 11246, or other equal employment opportunity requirements of Federal law. These guidelines do not apply to responsibilities under the Age Discrimination in Employment Act of 1967, as amended, not to discriminate on the basis of age, or under sections 501, 503, and 504 of the Rehabilitation Act of 1973, not to discriminate on the basis of handicap.
43 Fed. Reg. at 38,297. The fact that the EEOC declined to extend the Uniform
Guidelines, which routinely are used to monitor for adverse impact in hiring
decisions, to the ADEA context strongly suggests that even if disparate impact
against older workers was a significant concern at the time, the agency did not
interpret the law so expansively as to encompass claims brought on behalf of
applicants.
While courts may defer to an agency’s reasonable interpretation of its own
regulation (as expressed in an amicus brief, for instance), “the weight of such a
judgment in a particular case will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and later
21
pronouncements, and all those factors that give it power to persuade, if lacking
power to control.” Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015)
(quoting Skidmore v. Swift, 323 U.S. 134, 140 (1944)) (internal quotations
omitted); see also Auer v. Robbins, 519 U.S. 452 (1997). As the Supreme Court
has explained:
Although Auer ordinarily calls for deference to an agency’s interpretation of its own ambiguous regulation, even when that interpretation is advanced in a legal brief, … this general rule does not apply in all cases. Deference is undoubtedly inappropriate, for example … when there is reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question. This might occur when the agency’s interpretation conflicts with a prior interpretation, or when it appears that the interpretation is nothing more than a convenient litigating position, or a post hoc rationalization advanced by an agency seeking to defend past agency action against attack.
Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166-67 (2014)
(internal quotations and citations omitted). Because nothing in the EEOC’s
ADEA regulations confirms that the agency ever consciously and deliberately
interpreted § 4(a)(2) to extend to applicants for employment, its amicus argument
to the contrary is unpersuasive and therefore not entitled to deference.
II. A DISPARATE IMPACT ANALYSIS FUNDAMENTALLY IS UNSUITABLE FOR USE IN ADEA HIRING DISCRIMINATION CLAIMS
Even if Villarreal were permitted to maintain a disparate impact hiring
claim, he would encounter problems that likely would make it very difficult, if
22
not impossible, to establish a prima facie case. As the Supreme Court in Smith
explained, “[I]t is not enough to simply allege that there is a disparate impact on
workers, or point to a generalized policy that leads to such an impact. Rather, the
employee is responsible for isolating and identifying the specific employment
practices that are allegedly responsible for any observed statistical disparities.”
544 U.S. at 241 (citation and internal quotation omitted).
One of the challenged selection criteria in this case is RJR’s purported
admonition to recruiters to avoid applicants who have been in sales “for 8–10
years.” En Banc Brief of Plaintiff-Appellant, 3. As a threshold matter, many
qualified individuals with eight to ten years of sales experience will not, in fact,
fall within the ADEA-protected age group. And some ADEA-protected group
members would not be adversely affected by such a “maximum” experience
requirement. For example, an applicant who has worked in sales since college
graduation at age 21 could be disqualified under an eight-to-ten year rule by age
29 – well before age 40. On the other hand, 50-year-old who entered sales as a
second career three years prior to applying for the job, i.e., at age 47, would not
be disqualified by application of the maximum-years-of-experience factor.
A. As A General Rule, Employers Do Not Collect Age Information From Applicants
Employers are not required to, and generally do not, collect ages or dates of
birth from employment applicants. Although many employers are required to
23
collect demographic race, ethnicity and gender data from job applicants, that
obligation does not extend to age. See 29 C.F.R. § 1607.2(D). Not only are
employers under no legal obligation to do so, most employers do not voluntarily
solicit applicants’ age or date of birth, and for good reason. The EEOC itself
strongly cautions employers against asking applicants their age or date-of-birth,
warning that doing so could give rise to an inference of intentional discrimination
because of age. See 29 C.F.R. §§ 1625.4, 1625.5. Therefore, deconstructing, for
data analysis purposes, the population of ADEA-protected and non-ADEA-
protected individuals who applied for the sales job at issue in this case would be a
near-impossible task.
As one commentator observed, “existing discrimination law makes clear
that the groups to be compared for the analysis must in fact be comparable
(similarly situated). For many purposes, older and younger workers are not easily
compared. Moreover, many factors that can be appropriately considered by an
employer in employment decisions correlate with age but are not age.” Tom
Tinkham, The Uses and Misuses of Statistical Proof in Age Discrimination
Claims, 27 Hofstra Lab. & Emp. L.J. 357, 358 (2010).
24
B. Without Reliable And Complete Data On Applicant Age, Employers Cannot Meaningfully Monitor For Potential Adverse Impact
Since RJR will not have collected applicant ages or dates-of-birth, and
because many applicants with eight to ten years of experience will be under age
40 and thus not ADEA-protected, neither RJR nor Villarreal will possess the
appropriate data to assess whether the selection criterion had a statistically
significant adverse impact on ADEA-protected persons as a group. Furthermore,
Villarreal wrongly assumes, based on the purportedly small percentage of older
workers hired for the sales job, that a significantly greater proportion of the
applicant pool was made up of older workers. That is because any number of
factors can affect the “age” of an applicant pool.
Research suggests, for example, that “one’s mobility – and therefore one’s
ability to make voluntary job changes – tends to decrease with age. … This has
important statistical implications.” Paul Grossman, et al., “Lies, Damned Lies,
and Statistics”: How The Peter Principle Warps Statistical Analysis of Age
Discrimination Claims, 22 The Labor Lawyer 251, 256 (2007) (footnote omitted).
Without actual data on the ages of all those who applied for a particular position,
there is no reliable way to meaningfully assess whether older individuals in fact
are underrepresented in the position or otherwise were adversely affected by the
employer’s selection process.
25
In contrast, employers subject to the Uniform Guideline are obligated to
(1) keep and make available records regarding the race/ethnicity and gender of
applicants and employees for adverse impact analyses, and (2) perform statistical
analyses to determine whether their selection procedures have an adverse impact
on women and minorities. 29 C.F.R. § 1607.4. In other words, employers must
collect race, sex, and ethnicity data from applicants and employees specifically so
that those data may be evaluated for potential adverse impact.
No similar mechanism exists that would enable employers to reliably
analyze their hiring procedures for possible adverse impact on ADEA-protected
applicants, casting further doubt on the notion that § 4(a)(2) reasonably can be
interpreted to establish a disparate impact cause of action for applicants for
employment.
II. THE DISTRICT COURT PROPERLY DECLINED TO EXCUSE VILLARREAL’S FAILURE TO TIMELY FILE HIS CLAIM ON EQUITABLE GROUNDS
Relying on well-established Circuit precedent, the district court below
correctly held that Villarreal was not entitled to invoke equitable tolling principles
to excuse his untimely age discrimination claims, because he did not allege that
he exercised reasonable diligence or that extraordinary circumstances justified the
delay. Villarreal v. R.J. Reynolds Tobacco Co., 2013 WL 6191177, at *2 (N.D.
Ga. Nov. 26, 2013), rev’d, 806 F.3d 1288 (11th Cir. 2015), vacated and reh’g en
26
banc granted, 2016 WL 635800 (11th Cir. Feb. 10, 2016). This Court should
thus reject Villarreal’s contention that ADEA discrimination claims may be tolled
indefinitely, even when a plaintiff exercises absolutely no diligence and even in
the absence of extraordinary circumstances.
A. Filing Deadlines Are Intentionally Short In Discrimination Claims To Protect Both Employers And Employees
Statutory limitations periods are especially important in the employment
discrimination context, in which Congress intentionally established short filing
periods to facilitate prompt, non-judicial resolutions. See Mohasco Corp. v.
Silver, 447 U.S. 807, 825-26 (1980) (“By choosing what are obviously quite short
deadlines, Congress clearly intended to encourage the prompt processing of all
charges of discrimination …”). Allowing discrimination suits to be brought years
after employment actions are taken would impose substantial burdens on
employers attempting to defend those stale claims and would interfere with
prompt resolution of such claims.
The ADEA specifies that an aggrieved person alleging a violation of the
Act must file a charge of discrimination with the EEOC “within 180 days after
the alleged unlawful practice occurred.” 29 U.S.C. § 626(d)(1)(A). Compliance
with the 180-day limitations period is a prerequisite to bringing suit under the
ADEA.
27
Congress intentionally structured a “short deadline” for filing EEOC
discrimination charges, including those alleging ADEA violations, in order to
protect employers from shouldering the burden of defending employment
decisions that are “long past.” Delaware State Coll. v. Ricks, 449 U.S. 250, 256-
57 (1980). By choosing short deadlines, Congress intended charges of
employment discrimination to be processed and resolved quickly, preferably
through voluntary conciliation. Mohasco Corp., 447 U.S. at 825; McClinton v.
Alabama By-Products Corp., 743 F.2d 1483, 1485 (11th Cir. 1984) (the 180-day
notification requirement is “intended to promote the speedy, informal, non-
judicial resolution of discrimination claims, and to preserve evidence and records
relating to the alleged discriminatory action”).
With those aims in mind, the EEOC promulgated a regulation requiring
employers to keep for a period of one year all personnel and employment records.
29 C.F.R. § 1627.3. This one-year recordkeeping requirement means employers
will not destroy relevant documents as part of routine file maintenance before an
individual has had the opportunity to file a charge of discrimination with the
EEOC within the 180 day deadline.4 If, as Villarreal contends, age discrimination
plaintiffs may invoke equitable tolling principles to revive claims that arose years
ago, documentation relating to those claims may no longer be available where an
4 The statute of limitations may be extended where the claims also are subject to investigation by a state Fair Employment Practices Agency (FEPA).
28
employer has elected to discard employment records after the EEOC mandated
one-year retention period. Such a rule would severely prejudice an employer’s
ability to defend against stale claims.
In addition to triggering the EEOC’s investigation process, a timely charge
of discrimination also provides employers with prompt “notice that accusations of
discrimination have been leveled against them and that they can soon expect an
investigation by the EEOC.” EEOC v. Shell Oil Co., 466 U.S. 54, 74 (1984).
This notice often operates as the employer’s first warning of a potential
workplace problem, and typically serves as the impetus for conducting an internal
investigation into the matter. Where at the conclusion of such an investigation
potential violations are uncovered, prudent employers make every effort to
correct the problem and take steps to ensure that all employees are treated fairly
going forward. The benefits of such efforts inure to employers and employees
alike, and also serve to advance Congress’s desire that cooperation and voluntary
compliance be the “preferred means” of eradicating employment discrimination.
See, e.g., Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015).
Prompt detection and correction of workplace disputes also allows
employers to address discrete problems that if left unresolved could result in
widespread issues affecting many employees, promote and preserve good will
with employees, and avoid acrimonious and costly litigation. An employer’s
29
earnest attempt to voluntarily comply with the ADEA and provide relief to its
employees is severely hampered when an employee is permitted to wait years
before bringing potential violations to the employer’s attention.
B. Villarreal’s Tolling Theory Would Eliminate The Statutory Claims Filing Deadline In Most Discrimination Cases
The intentionally short filing deadline applicable to ADEA claims can be
equitably tolled, but only on the rare occasion that a party establishes that he or
she was prevented from filing sooner despite reasonable diligence and because of
extraordinary circumstances that were beyond his or her control, most typically
active concealment of the discrimination by the employer. See Menominee
Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 755 (2016) (“a litigant is
entitled to equitable tolling of a statute of limitations only if the litigant
establishes two elements: ‘(1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way and prevented timely
filing’”) (citation omitted); Downs v. McNeil, 520 F.3d 1311, 1319 (11th Cir.
2008) (“equitable tolling of the limitations period is warranted when a movant
untimely files because of extraordinary circumstances that are both beyond his
control and unavoidable even with diligence”) (quoting Steed v. Head, 219 F.3d
1298, 1300 (11th Cir. 2000).5 Under Villarreal’s theory, however, the short filing
5 Even in Reeb v. Economic Opportunity Atlanta, Inc., a case relied on heavily by Appellant in support of his tolling argument, there were extraordinary
30
deadlines for ADEA discrimination claims can be tolled without the slightest
showing of either diligence or extraordinary circumstances.
If Congress wishes to expand ADEA limitations periods, it is fully capable
of doing so. See, e.g., Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2,
123 Stat. 5 (2009) (expanding statute of limitations for age based compensation
discrimination claims). Absent Congressional action, the short deadlines
applicable to discrimination claims must be strictly enforced in furtherance of the
numerous important policy goals underlying federal law.
circumstances in the form of active concealment by the employer that justified equitable tolling. 516 F.2d 924, 930-31 (5th Cir. 1975).
31
CONCLUSION
For the foregoing reasons, amicus curiae Equal Employment Advisory
Council respectfully submits that the judgment of the court below should be
reversed.
Respectfully submitted,
/s/ Rae T. Vann Rae T. Vann NT LAKIS, LLP 1501 M Street, N.W., Suite 400 Washington, DC 20005 (202) 629-5600 Attorneys for Amicus Curiae Equal Employment Advisory Council April 22, 2016
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 6,825 words. I further certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6). This brief has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in Times New Roman 14 pt.
/s/ Rae T. Vann Rae T. Vann Counsel of Record NT LAKIS, LLP 1501 M Street, N.W. Suite 400 Washington, DC 20005 (202) 629-5600 Attorneys for Amicus Curiae Equal Employment Advisory Council April 22, 2016
CERTIFICATE OF SERVICE
I hereby certify that on this 22nd day of April 2016, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF system, which will send
notification of such filing to the counsel of record in this matter. On that same
date, I sent paper copies of the foregoing En Banc Brief Amicus Curiae of the
Equal Employment Advisory Council in Support of Defendants-Appellees via
Federal Express Priority Overnight to the following:
John J. Almond Eric S. Dreiband Michael L. Eber Alison B. Marshall ROGERS & HARDIN LLP Nikki Lynn McArthur 2700 International Tower JONES DAY 229 Peachtree Street, N.E. 51 Louisiana Avenue, N.W. Atlanta, GA 30303 Washington, DC 20001 Kristina M. Jones Deborah A. Sudbury SMITH HORVATH, LLC JONES DAY 1320 Ellsworth Ind Blvd., Ste. A1000 1420 Peachtree St. NE, Ste. 800 Atlanta, GA 30318 Atlanta, GA 30309-3053 James M. Finberg Shanon Jude Carson Patrick Casey Pitts Sarah R. Schalman-Bergen ALTSHULER BERZON LLP BERGER & MONTAGUE, PC 177 Post Street, Suite 300 1622 Locust St. San Francisco, CA 94108 Philadelphia, PA 19103 Todd M. Schneider Joshua G. Konecky Mark T. Johnson SCHNEIDER, WALLACE, COTTRELL, BRAYTON, KONECKY, LLP 180 Montgomery St., Suite 2000 San Francisco, CA 94104 /s/ Rae T. Vann April 22, 2016 Rae T. Vann
