TABLE OF
CONTENTS
Page(s)
STATEMENT OF INTERESTED PERSONS.………….…………………..…..C-1
TABLE OF CONTENTS ...………………………………………………………. ii
TABLE OF AUTHORITIES............................................................................ iii
STATEMENT OF INTEREST......................................................................... 1
STATEMENT OF ISSUES FOR
EN BANC REHEARING............................. 2
STATEMENT OF THE CASE......................................................................... 2
1.
Statement
of Facts.............................................................................. 2
2.
District
Court Decisions..................................................................... 3
3.
Panel
Opinion..................................................................................... 3
ARGUMENT.................................................................................................... 5
I. The ADEA authorizes
applicants to bring claims of age-based disparate impact in hiring.……………………………………….………………...…………..5
A...... Section 4(a)(2) of the ADEA authorizes
applicants to pursue disparate impact claims............................................................................................. 6
B...... Supreme Court rulings and the statute’s
purposes show that ADEA hiring challenges are viable under disparate impact
theory.................... 10
C...... If necessary, this Court should defer to the
longstanding interpretation of enforcement agencies that section 4(a)(2) of the
ADEA authorizes disparate impact claims by applicants.................................................................... 19
II. Villarreal
alleged facts sufficient to support equitable tolling.................... 24
CONCLUSION............................................................................................... 29
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
Table
of Authorities
Page(s)
Cases
ABKCO Music, Inc. v. LaVere,
217 F.3d 684 (9th Cir. 2000)..................................................................... 18
Arce v. Garcia,
434 F.3d 1340 (11th Cir. 2005)................................................................. 27
Auer v. Robbins,
519 U.S. 452, 117 S.Ct. 905 (1997)................................................. 4, 23, 24
Bonner v. City of Prichard,
661 F.2d 1206 (11th Cir. 1981) (en banc).................................................. 27
Cabello v. Fernandez-Larios,
402 F.3d 1148 (11th Cir. 2005)................................................................. 27
Calhoun v. Alabama Alcoholic Beverage Control Bd.,
705 F.2d 422 (11th Cir. 1983)................................................................... 27
Chevron USA, Inc. v. Natural Resources Defense Council,
Inc.,
467 U.S. 837, 104 S.Ct. 2778 (1984)............................................... 4, 21, 22
Connecticut v. Teal,
457 U.S. 440, 102 S.Ct. 2525 (1982)................................................... 12, 13
Dothard v. Rawlinson,
433 U.S. 321, 97 S.Ct. 2720 (1977)........................................................... 12
EEOC v. Allstate Ins. Co.,
No. 07-1559, 2007 WL 6604487 (8th Cir. 2007)....................................... 24
EEOC v. Commercial Office Prods. Co.,
486 U.S. 107, 108 S.Ct. 1666 (1986)................................................... 20, 25
EEOC v. Francis Parker Sch.,
No. 94-1558, 1995 WL 17047545 (S.Ct. 1995)......................................... 24
EEOC v. Francis W. Parker School,
41 F.3d 1073 (7th Cir. 1994)....................................................................... 9
EEOC v. Joe’s Stone Crab, Inc.,
220 F.3d 1263 (11th Cir. 2000)................................................................. 13
Ellis v. United Airlines, Inc.,
73 F.3d 999 (10th Cir. 1996)................................................................. 9, 10
Federal Express Corp. v. Holowecki,
552 U.S. 389, 128 S.Ct. 1147 (2008)........................................................... 4
Gonzales v. Oregon,
546 U.S. 243, 126 S.Ct. 904 (2006)..................................................... 23, 24
Griggs v. Duke Power Co.,
401 U.S. 424, 91 S.Ct. 849 (1971)...................................................... passim
Gross v. FBL Financial Services, Inc.,
557 U.S. 167, 129 S.Ct. 2343 (2009)......................................................... 18
Gutierrez de Martinez v. Lamagno,
515 U.S. 417, 115 S.Ct. 2227 (1995)........................................................... 9
Hazen Paper Co. v. Biggins,
507 U.S. 604, 113 S.Ct. 1701 (1993)......................................................... 13
Johnson v. Ry. Express Agency,
421 U.S. 454, 95 S.Ct. 1716 (1975)........................................................... 28
Jones v. Dillard’s, Inc.,
331 F.3d 1259 (11th Cir. 2003)............................................................. 4, 27
Lorillard v. Pons,
434 U.S. 575, 98 S.Ct. 866 (1978)............................................................. 11
McKennon v. Nashville Banner Pub. Co.,
513 U.S. 352, 115 S.Ct. 879 (1995)........................................................... 14
Meacham v. Knolls Atomic Power Laboratory,
554 U.S. 84, 128 S.Ct. 2395 (2008)..................................................... 21, 22
Menominee Indian Tribe of Wisconsin v. United States,
___ U.S. __, 136 S.Ct. 750 (2016)....................................................... 26, 27
National Railroad Passenger Corp. v. Morgan,
536 U.S. 101, 122 S.Ct. 2061 (2002)............................................. 24, 25, 26
Oscar Mayer & Co. v. Evans,
441 U.S. 750, 99 S.Ct. 2066 (1979)............................................... 11, 14, 25
Piamba Cortes v. American Airlines, Inc.,
177 F.3d 1272 (11th Cir. 1999)................................................................. 18
Ratzlaf v. United States,
510 U.S. 135, 114 S.Ct. 655 (1994)............................................................. 9
Reeb v. Economic Opportunity Atlanta, Inc.,
516 F.2d 924 (5th Cir. 1975)..................................................................... 27
Robinson v. Shell Oil,
519 U.S. 337, 117 S.Ct. 843 (1997)......................................................... 6, 7
Smith v. City of Des Moines,
99 F.3d 1446 (8th Cir. 1996)..................................................................... 10
Smith v. City of Jackson,
544 U.S. 228, 125 S.Ct. 1536............................................................. passim
Sturniolo v. Shaeffer, Eaton, Inc.,
15 F.3d 1023 (11th Cir. 1995)............................................................... 4, 25
Texas Dep’t of Housing & Cmty. Affairs v. Inclusive
Cmtys. Project,
___ U.S. ___, 135 S.Ct. 2507 (2015)................................................... 13, 15
United States v. Fleet,
498 F.3d 1225 (11th Cir. 2007)................................................................... 7
United States v. Mead Corp.,
533 U.S. 218, 128 S.Ct. 2164 (2001)................................................... 22, 24
United States v. Veal,
322 F.3d 1275 (11th Cir. 2003)................................................................. 10
Williams v. N. Fla. Reg. Med. Ctr., Inc.,
164 F. App’x 896 (11th Cir. 2006)............................................................ 29
Statutes
Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et
seq.................... 1
29 U.S.C. § 623(a)(1)........................................................................................ 9
29 U.S.C. § 623(a)(2)............................................................................... passim
29 U.S.C. § 623(f)(1)...................................................................................... 22
29 U.S.C. § 628.................................................................................... 5, 21, 24
42 U.S.C. § 1981 note § 2.............................................................................. 19
42 U.S.C. § 2000e-2(a)(2)........................................................................ passim
Pub. L. No. 90-202, 81 Stat. 602 (1967)........................................................... 8
Equal Employment Opportunity Act of 1972, Pub. L. No.
92-261, § 8(a), 86 Stat. 103 (1972).................................................................................................. 17
Pub. L. No. 95-256, 92 Stat. 189 (1978)........................................................... 8
Regulations & Rules
29 C.F.R. § 860.103(f)(1)(i)............................................................................ 20
29 C.F.R. § 1607 (1970)................................................................................. 12
29 C.F.R. § 1625.7(c) (2012).................................................................... 21, 22
29 C.F.R. § 1625.7(d) (1981).................................................................... 21, 23
Eleventh Circuit Rule 35-8.............................................................................. 31
Fed. R. App. P. 29(a)........................................................................................ 1
Fed. R. App. P. 32(a)(5)................................................................................. 31
Fed. R. App. P. 32(a)(6)................................................................................. 31
Fed. R. App. P. 32(a)(7)(B)............................................................................ 31
Fed. R. App. P. 32(a)(7)(B)(iii)....................................................................... 31
Fed. R. Civ. P. 15(a)....................................................................................... 25
Other Authorities
113 Cong. Rec. 31,250 (1967).......................................................................... 7
118 Cong. Rec. 4943 (1972)........................................................................... 17
33 Fed. Reg. 9173 (1968)................................................................................ 20
43 Fed. Reg. 19807 (1978).............................................................................. 20
46 Fed. Reg. 47724, at *47725, *47727 (1981).............................................. 21
77 Fed. Reg. 19080 (2012).............................................................................. 21
77 Fed. Reg. 19080, at *19084....................................................................... 23
H.R. 1746, reprinted in 118 Cong. Rec. 7166, §
8(a)-(b) (1972)..................... 17
H.R. Rep. No. 92-238 at 30............................................................................ 17
Report of the Sec’y of Labor, The Older American Worker:
Age Discrimination in Employment 3 (1965), reprinted in U.S. EEOC, Leg. History
of the ADEA (1981)......................................................................................................... 14
STATEMENT
OF INTEREST
The Equal
Employment Opportunity Commission (“Commission” or “EEOC”) is the agency
charged by Congress with interpreting and enforcing the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. §§ 621 et seq. This appeal raises
the important question of whether the ADEA
authorizes applicants to bring claims of disparate impact in hiring. Pursuant
to its statutory authority, the Commission has issued regulations and other
interpretive material, and taken litigation positions in court, all
consistently recognizing that the ADEA
authorizes disparate-impact-based challenges to practices adversely affecting
older applicants. This appeal also raises an important question
regarding whether the charge-filing limitation period
should be equitably tolled when the plaintiff had no reason to know or suspect
that his non-selection was due to his age, and he filed an age discrimination
charge shortly after learning facts supporting such claim. Resolution
of these issues is vital to the effective enforcement of the ADEA and other federal anti-discrimination
statutes for which the Commission is responsible. The Commission participated
as amicus curiae before the panel and now respectfully offers its views to this
Court. Fed. R. App. P. 29(a).
STATEMENT
OF ISSUES ON REHEARING EN BANC
1. Whether § 4(a)(2) of the ADEA, 29 U.S.C. § 623(a)(2),
permits an applicant for employment to bring a disparate-impact claim challenging
the employer’s failure to hire the applicant.
2. Whether Villarreal
sufficiently pleaded equitable tolling to survive a motion to dismiss.
STATEMENT
OF THE CASE
1. Statement of Facts.
The EEOC
provided a full statement of the facts in its original amicus brief at pages 2-6. The following summary
identifies key points:
Richard
Villarreal applied electronically for sales positions with R.J. Reynolds (“RJR”)
six times between November 2007 and March 2012. Despite extensive sales
experience, he was never hired or interviewed. After learning from counsel in
2010 that he may have been a victim of age discrimination in hiring, Villarreal
promptly filed charges with the Commission.
Villarreal
then filed this ADEA collective action
alleging unlawful age discrimination under two theories—intentional age
discrimination, and disparate impact arising from RJR’s and its recruiters’ use
of screening criteria (“Resume Review Guidelines” and “Blue Chip TM”) that
strongly discouraged interviewing or hiring individuals who had been out of
college for more than two or three years or who had extensive sales
experience. Villarreal alleged that these selection criteria adversely affect individuals
age 40 and over who are seeking employment with RJR.
2. District Court Decisions.
The EEOC
provided a full statement of the district court’s decisions in its original amicus
brief at pages 6-8. In summary, the
district court ruled that disparate impact theory under the ADEA does not apply to claims by applicants
for employment (as distinguished from existing employees). The court also
refused to equitably toll the charge-filing limitation period until Villarreal
first had reason to suspect possible age discrimination, and thus ruled that
any claim arising more than 180/300 days before the charge was filed was time-barred.
The court entered judgment for defendants and Villarreal appealed.
3. The Panel Opinion.
A majority of the
panel reversed. The majority concluded that “the text of § 4(a)(2) does not clearly resolve the issue
in this case,” op. at 20, and both parties
offered reasonable interpretations of that text. The panel majority then
determined that because the text of section
4(a)(2) is ambiguous with respect to coverage of applicants (id.), it must look to the reasonable
interpretations of the agency charged by Congress with enforcing the
statute—the EEOC. Id. at 20-30.
The majority concluded that the Commission has “reasonably and consistently
interpreted the statute to cover claims [of applicants] like Mr. Villarreal’s”
(id. at 21-22), and the EEOC’s ADEA disparate impact regulations are entitled
to deference under Chevron USA, Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778,
2782 (1984). Op. at 21-22. Moreover, the majority held, the EEOC’s
interpretation in the preamble to its regulations, which gives examples of
cases involving applicants (id. at
25), is “‘a reasonable extrapolation of its regulations’ and we defer to it ‘in
light of [EEOC’s] experience and expertise in protecting those covered by the
Act.’” Id. at 26, quoting Fed. Express Corp. v. Holowecki, 552 U.S.
389, 398, 128 S.Ct. 1147, 1158 (2008), and citing Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct.
905, 911 (1997).
The majority also
held that the district court used the wrong legal standard in concluding
Villarreal did not adequately allege grounds for equitable tolling to save his
otherwise untimely claim. Op. at 31. The
proper standard for determining whether equitable tolling applies in an ADEA case is “reasonable prudence,” and courts
inquire into whether “‘the facts supporting a cause of action became apparent
or should have become apparent to a reasonably prudent person with concern for
his or her rights.’” Id. at 33
(quoting Jones v. Dillard’s, Inc.,
331 F.3d 1259, 1267 (11th Cir. 2003)). “[T]he clock does not
begin to run until [plaintiff] has enough information to support her cause of
action.” Op. at 33 (quoting Sturniolo v. Shaeffer, Eaton, Inc., 15
F.3d 1023, 1025-26 (11th Cir. 1995)). See also op. at 31-33 & n.13 (panel
majority stated it was “unaware of any ADEA
case that imposes … [an extraordinary circumstances] requirement” to warrant
equitable tolling, and explained reasons why it distinguished employment
discrimination cases from Social Security cases in this respect).
A district judge sitting
by designation dissented.
ARGUMENT
I. The ADEA authorizes
applicants to bring claims of age-based disparate impact in hiring.
The
language of section 4(a)(2) of the ADEA,
the Griggs Court’s interpretation
of identical statutory language in Title
VII of the Civil Rights Act of 1964 as encompassing disparate impact claims by
applicants (Griggs v. Duke Power Co.,
401 U.S. 424, 91 S.Ct. 849 (1971)), and the ADEA’s underlying purposes all
support the conclusion that the ADEA
authorizes disparate impact claims by applicants who are harmed by hiring
criteria that are facially neutral but, in practice, deny employment
opportunities to individuals on the basis of their age. Moreover, as the panel
majority agreed (op. at 20-30), Congress
conferred first on the Department of Labor and then on the EEOC the authority
to issue rules and regulations to carry out the ADEA. 29 U.S.C. § 628. The longstanding
agency interpretation of the ADEA, under that
authority, recognizes that applicants may pursue ADEA disparate impact claims, making this “an
absolutely classic case for deference to agency interpretation.” Smith v. City of Jackson, 544 U.S. 228,
243, 125 S.Ct. 1536, 1546-47 (Scalia, J., concurring). In asking this Court to
rule that the ADEA bars
disparate impact hiring claims by applicants, RJR essentially
urges the Court to ignore the most natural reading of the text
of section 4(a)(2), the clear significance
of the Supreme Court’s 1971 decision in Griggs,
the ADEA’s underlying purposes, and the enforcement agencies’ longstanding
interpretation of the ADEA.
A. Section
4(a)(2) of the ADEA authorizes applicants to pursue disparate impact claims.
Section 4(a)(2) of the
ADEA provides that it is unlawful for any 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). By its express
terms, section 4(a)(2) is not limited to
protecting only incumbent employees, contrary to the district court’s and panel
dissent’s conclusion. Nor is that section ambiguous, as the panel majority
believed. Congress used the broad phrase “individual” in section 4(a)(2) not just once, but twice
(“deprive any individual of employment opportunities,” “such individual’s
age”), which shows an intent to apply the provision more broadly than just to
“employees” (a word Congress could have used but did not). Cf. Robinson v. Shell Oil, 519 U.S. 337, 342, 117
S.Ct. 843, 847 (1997) (the term “individual,” as used in Title VII, is broader term than “employee”); see
also United States v. Fleet, 498 F.3d
1225, 1229 (11th Cir. 2007) (“‘[A]ny’ is a powerful and
broad word. It does not mean some or all but a few, but instead means
all.”).
Thus, the use of the term “any individual” rather
than only “employee” indicates that section
4(a)(2)’s protection extends beyond just incumbent employees and, by its plain
language, includes applicants for employment as well.
The facts of this case illustrate this point. Here, RJR surveyed
its existing employees to identify “ideal new hires” from which it created a
profile of attributes it desired in its new recruits. It then used this
“profile,” based on its classification of existing employees, to determine
which applicants to consider for hire. By “limit[ing]” or “classif[ying]” its
employees in this way, RJR created the Blue Chip TM profile, and its use of
that profile (along with its resume guidelines) had the effect of “depriv[ing
an] individual” (here, an older applicant) of employment opportunities. Cf.
Robinson, 519 U.S. at 345, 117 S.Ct.
at 848 (word “employed” is not temporally restricted to those presently
employed).
The district court
held and RJR contends that limits on employment like RJR’s guidelines and
profile are not subject to challenge under section
4(a)(2) because they do not “adversely affect” an individual’s “status as an
employee.” But section 4(a)(2) is not
limited to employment actions that “adversely affect” one’s “status as an employee.”
Rather, section 4(a)(2) prohibits actions
that “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). Thus, in context, the “status as an employee”
language is merely one of two ways of measuring actionable conduct under section 4(a)(2): that section also prohibits
actions that deprive “any individual of employment opportunities.” The
statutory prohibition on actions that deprive “any individual of employment
opportunities” includes individuals who apply for employment and, yet, are
denied such opportunity as a result of an employer practice that screens out
older workers.
RJR makes much of
the fact that other sections of the ADEA
use the term “applicant,” both in the original enactment of the ADEA (Pub.
L. No. 90-202, 81 Stat. 602 (1967)), and in the 1978 amendment, which raised
the upper age limit to 69 (Pub. L. No.
95-256, 92 Stat. 189 (1978)). RJR pet. at
8. RJR argues that Congress “acted deliberately” when it omitted the term
applicant from section 4(a)(2). RJR orig. br. at 18. That may well be, but it
does not follow that Congress meant to exclude applicants from coverage. It
may simply indicate that Congress thought adding the word “applicant” was
unnecessary in the context of the statutory subsection that used the broader
“any individual” language. Cf. Gutierrez
de Martinez v. Lamagno, 515 U.S. 417, 444, 115 S.Ct. 2227, 2241 (1995)
(noting “sound general rule that Congress is deemed to avoid redundant
drafting”).
Moreover, section 4(a)(1) similarly does not contain the
term applicant yet it is not contested, indeed RJR emphasizes, that that
section applies to applicants.
Sections 4(a)(1) and 4(a)(2) are
consecutive subsections of section 4(a). The
best reading of the provision, then, is that Congress intended the phrase “any
individual” in section 4(a)(2) to carry
the same meaning as in section 4(a)(1). See,
e.g., Ratzlaf v. United States,
510 U.S. 135, 143, 114 S.Ct. 655, 660 (1994) (“A term appearing in several
places in a statutory text is generally read the same way each time it
appears.”).
The circuit
decisions identified by RJR and the dissent (pet.
at 5-6; RJR orig. brief at 17; dissent op. at 44) as adopting a “contrary”
interpretation of the ADEA have been
overruled or are distinguishable. Both Ellis
v. United Airlines, Inc., 73 F.3d 999 (10th Cir. 1996), and EEOC v. Francis W. Parker School, 41 F.3d
1073 (7th Cir. 1994), were overruled by Smith
v. City of Jackson, 544 U.S. at 232, 125 S.Ct. at 1540. The decision in Smith v. City of Des Moines, 99 F.3d 1446,
1470 n.2 (8th Cir. 1996), simply relied upon Ellis and Frances Parker School.
In addition, these decisions are not on point because they either relied on section 4(a)(1) and/or addressed section 4(a)(2) only in dicta. Because
the decisions are not persuasive, this Court should not follow them in
interpreting the ADEA. See generally United States v. Veal, 322 F.3d 1275, 1278
(11th Cir. 2003) (“we are in no way bound by a decision from [another
circuit]”).
B. Supreme Court rulings and the statute’s purposes
show that ADEA hiring challenges are
viable under disparate impact theory.
At the time of the Supreme Court’s decision in Griggs, section
703(a)(2) of Title VII made 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 race, color, religion,
sex, or national origin.
Griggs,
401 U.S. at 426 n.1, 91 S.Ct. at 851 n.1, quoting 42 U.S.C. § 2000e-2(a)(2). When the ADEA was enacted in 1967, Congress adopted in section 4(a)(2) language identical to section 703(a)(2) of Title VII – the same language the Supreme
Court construed as supporting a disparate impact challenge in Griggs –
except the ADEA substitutes “age” for the
categories of discrimination prohibited by section
703(a)(2). 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. See Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066,
2071 (1979); Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866,
872 (1978).
Thus, the availability of disparate impact analysis under
the ADEA follows inextricably from a line
of cases beginning with Griggs. In
Griggs the Court noted that “Congress
directed the thrust of the Act to the consequences of employment practices, not
simply the motivation.” 401 U.S. at 432, 91
S.Ct. at 854; see also 401 U.S. at
431, 91 S.Ct. at 853 (section 703
“proscribes not only overt discrimination but also employment practices that
are fair in form but discriminatory in operation”).
Contrary to the view of RJR (RJR orig. br. at 30), Griggs
involved claims of both current employees and applicants. 401 U.S. at 427-28, 91 S.Ct. at 851-53. Griggs was a
class action where the named petitioners were incumbent African-American employees.
The Griggs Court noted, however, that
petitioners challenged the employer’s policy requiring high school
education “for initial assignment to any department except Labor,” and “for
new employees on … the date on which Title VII became effective[,] … to
register satisfactory scores on two professionally prepared aptitude tests, as
well as to have a high school education.” 401
U.S. at 427-28, 91 S.Ct. at 851 (emphasis added). In other words, petitioners
challenged the employer’s hiring criteria in addition to its transfer
criteria. Moreover, both the petitioners and the government argued that the
issue before the Supreme Court in Griggs
encompassed all barriers to employment – namely, hiring new, as well as
transferring incumbent, employees. See Petitioners’
Br. at *16-*19, *27, Griggs, No.
70-124, 1970 WL 122448; and Br. of U.S. and EEOC as Amicus Curiae at *2, *4, Griggs, No. 70-124, 1980 WL 122637. Nothing
in the Griggs opinion indicates
that the Court meant to narrow its holding only to promotions. To the
contrary, the Court relied extensively on EEOC’s Guidelines on Employee
Selection procedures, which focus on the impact of tests on “‘job …
candidates.’” Griggs, 401 U.S. at
433 n.9, 91 S.Ct. 854 n.9 (quoting 29
C.F.R. § 1607 (1970)); id. (test
must “‘measure the applicant’s ability to perform a particular job…’”) (quoting
earlier version of Guidelines). Griggs
thus is best understood as encompassing hiring.
The
Supreme Court repeatedly has reaffirmed the validity of the holding in Griggs “as protecting ‘applicants for hire.’”
Dothard v. Rawlinson, 433 U.S. 321, 328-329, 97 S.Ct. 2720,
2726-27 (1977) (relying on Griggs
for holding that female correctional counselors must show “that the facially
neutral standards in question select applicants for hire in a discriminatory
pattern”); Connecticut v. Teal, 457 U.S. 440, 445-450, 102 S.Ct.
2525, 2531 (1982) (discussing Griggs
as a hiring case);
Texas Dep’t of Housing & Cmty. Affairs
v. Inclusive Cmtys. Project, ___ U.S. ___, 135 S.Ct. 2507, 2517 (2015) (stating
that Griggs applied disparate
impact liability to “hiring criteria”). This Court likewise has understood Griggs as making “clear that Title VII prohibited an employer from using
neutral hiring … practices.” EEOC v.
Joe’s Stone Crab, Inc., 220 F.3d 1263, 1283 n.18 (11th Cir. 2000); see
also id. at 1279 n.16.
In Smith v. City of Jackson,
544 U.S. at 230, 125 S.Ct. at 1539, the Supreme Court considered the question “whether
the disparate impact theory of recovery announced in Griggs … is cognizable under the ADEA,” and a majority concluded that it is.
The plurality noted that for over two decades after the decision in Griggs, the courts of appeals “uniformly
interpreted the ADEA as authorizing
recovery on a disparate impact theory,” until the decision in Hazen Paper Co. v. Biggins, 507 U.S. 604, 113
S.Ct. 1701 (1993). In Smith, the
Supreme Court held that plaintiffs may challenge facially neutral employment
practices having a disparate impact under the ADEA
(544 U.S. at 232, 125 S.Ct. at 1540),
although it rejected plaintiffs’ claim in that case. 544 U.S. at 241-43, 125 S.Ct. at 1545.
In concluding that such claims are viable, the Smith plurality relied heavily on the
Court’s decision in Griggs as well
as on the parallel prohibitory language and common purposes of Title VII and the ADEA. See Smith, 544 U.S. at 233-40, 125 S.Ct. at 1540-45
(plurality opinion). Accord McKennon
v. Nashville Banner Pub. Co., 513 U.S. 352, 358, 115 S.Ct. 879, 884 (1995)
(statutes share “common substantive features” and “common purpose: ‘the
elimination of discrimination in the workplace’”) (quoting Oscar Meyer,
441 U.S. at 756, 99 S.Ct. at 2072). The plurality
noted that in enacting the ADEA, Congress
was concerned that the application of facially neutral employment standards,
such as a high school diploma requirement, may “unfairly” limit the employment
opportunities of experienced older workers. Smith, 544 U.S. at 235 n.5, 125 S.Ct. at 1541
n.5 (plurality opinion) (quoting Report of
the Sec’y of Labor, The Older American Worker: Age Discrimination in Employment
3 (1965), reprinted in U.S. EEOC, Leg. History of the ADEA (1981)) (“Wirtz
Report”)); cf. Wirtz Report 3
(“older workers today have less formal education, on the whole, than younger
workers.”).
In Smith, the plurality
opinion also emphasized that Griggs
interpreted the identical statutory text at issue, and observed that there is a
“remarkable similarity between the congressional goals” the Court cited in Griggs and “and those present in the Wirtz
Report” regarding the ADEA. Smith, 544 U.S. at 233, 235 n.5, 237, 430,
125 S.Ct. at 1541 n.5, 1543, 1544 (plurality opinion). The plurality also
pointed to the Department of Labor’s and the EEOC’s consistent interpretation
that the ADEA authorizes relief based on
disparate-impact theory. 544 U.S. at
239-40, 125 S.Ct. at 1544-45 (plurality opinion); see also 544 U.S. at 243-44, 125 S.Ct. at 1546-47
(Scalia, J., concurring) (relying on agency interpretations of the ADEA, instead of plurality’s independent
determination of the impact question). Cf. Inclusive
Cmtys., ___ U.S. ___, 135 S.Ct. at 2517 (stating that: “Together, Griggs holds and the plurality in Smith instructs that antidiscrimination
laws must be construed to encompass disparate-impact claims when their text
refers to the consequences of actions and not just to the mindset of actors,
and where that interpretation is consistent with statutory purpose.”).
The district court in this case acknowledged Smith’s
ruling that section 4(a)(2) of the ADEA
prohibits disparate impact age discrimination, but concluded that section is
inapplicable here. R.58 at 12-15. Smith was not a hiring case, and the
Supreme Court answered affirmatively only the broad question of whether the ADEA authorizes disparate impact claims
generally. But the district court erroneously relied on Smith to hold that section 4(a)(2) does not apply to applicants
for employment. By its express terms, section 4(a)(2) is not limited to protecting
only incumbent employees, and Smith
did not say that it is, contrary to the district court’s and panel dissent’s
conclusion. RJR argues (pet. at 1), and
the panel dissent agreed (op. at 39), that
eight Justices in Smith were of the
opinion that section 4(a)(2) does not
apply to applicants. The panel majority correctly refuted this argument;
it properly concluded (op. at 15) that
“the issue of whether applicants can bring disparate impact claims was neither
argued by the parties nor relevant to the case” in Smith.
The court also
erroneously relied on Justice O’Connor’s statement that section 4(a)(2) “‘does not apply to
‘applicants for employment’ at all.’” R.58
at 13 (quoting Smith, 544 U.S. at
266, 125 S.Ct. at 1559) (O’Connor, J., concurring)). Justice O’Connor’s
statement—that section 4(a)(2) does not
apply to applicants—does not represent the view of the Court in Smith. That statement was made in a
concurring opinion, joined only by two other Justices, which concluded that
disparate impact claims are not cognizable under the ADEA at all. Smith, 544 U.S. at 247-48, 125 S.Ct. at 1549
(O’Connor, J., concurring).
The district court
also stated that Griggs pre-dated
“significant amendments to Title VII” (but
not to the ADEA). R.58 at 14. The court
noted that the present version of section
703(a)(2) makes it unlawful for an employer “‘to limit, segregate, or classify
his employees or applicants for employment in any way …’” (id. at 13 (quoting 42 U.S.C. § 2000e-2(a)(2)), while section 4(a)(2) of the ADEA does not contain
the italicized phrase. The court reasoned that this difference in language
indicates that section 4(a)(2) protects
only incumbent employees and renders Griggs
inapplicable. R.58 at 13-14. This
reasoning, adopted by RJR, the district court, and the panel dissent, is
flawed.
Congress did not add the phrase “or applicants for
employment” to Title VII until 1972, as
part of a series of amendments to that Act. See Equal Employment Opportunity Act of 1972, Pub.
L. No. 92-261, § 8(a), 86 Stat. 103 (1972). While Congress made several
substantive changes to Title VII in 1972,
the amendment to section 703(a)(2) was
merely declaratory in nature. As explained in the bill’s Section-by-Section
analysis, the sole purpose of the amendment to section
703(a)(2) was “to make it clear that discrimination against applicants for
employment * * * is an unlawful employment practice.” 118 Cong. Rec. 4943 (1972). Thus, the amendment was intended simply to express
Congress’s agreement with court decisions applying section 703(a)(2) to applicants.
RJR argues that congressional
amendments to a statute are presumed to have “real and substantial effect.” RJR orig. br. at 29 (citation omitted). While
there is no doubt that Congress made “real and substantial” changes to Title VII as a whole in 1972, Congress
explained that the change to section
703(a)(2) was declaratory of existing law holding that discrimination against
applicants is an unlawful employment practice. Courts have long recognized
“clarifying legislation.” See ABKCO
Music, Inc. v. LaVere, 217 F.3d 684, 689-90 (9th Cir. 2000) (“a decision by
the current Congress to intervene by expressly clarifying the meaning of [the
statute] is worthy of real deference.... We therefore honor Congress’
‘clarification’ label and accept [the new] provisions as a statement of what
[the statute] has meant all along.”) (citation omitted); Piamba Cortes v. American Airlines, Inc.,
177 F.3d 1272, 1283 (11th Cir. 1999) (setting out factors that “are relevant
when determining if an amendment clarifies, rather than effects a substantive
change to, prior law”).
RJR’s (RJR orig. br.
at 21-24) and the district court’s reliance (R.58 at 14-15) on Gross v. FBL Financial Services, Inc., 557
U.S. 167, 174, 129 S.Ct. 2343, 2349 (2009), is similarly misplaced. Gross concluded that Congress’s 1991
failure to amend the “because of” language in the ADEA, while revising the language of Title VII to add a mixed-motive theory of relief,
reflected a congressional judgment that, going forward, the two statutes should
not be interpreted in the same manner on causation or burden shifting. 557 U.S. at 174, 179 n.5, 129 S.Ct. at 2349, 2352
n.5. The 1991 amendments to Title VII at
issue in Gross are entirely
different from the 1972 amendment to section
703(a)(2). First, unlike in 1991, Congress made no amendment to the ADEA in 1972 hence there is no reason to
presume anything about the ADEA from changes
made to Title VII. See Gross, 557 U.S. at 174, 129 S.Ct. 2343 (“‘negative
implications raised by disparate provisions are strongest’ when the provisions
were ‘considered simultaneously’”) (citation omitted). Further, as the 1972 legislative history
makes clear, Congress did not make a substantive change when it adopted the
amendment to section 703(a)(2). And the
panel majority (op. at 13-14) correctly
noted that “the 1972 amendment was not enacted to reject the Supreme Court’s
interpretation of the language” in section
703(a)(2). Unlike the 1991 amendments, which were substantive in nature and
intended, in part, to modify the Supreme Court’s construction of Title VII in several prior decisions, see
42 U.S.C. § 1981 note § 2, in 1972
Congress simply inserted four words, “or applicants
for employment,” to express Congress’s agreement with existing case law
applying section 703(a)(2) to
applicants—case law that was consistent with the Supreme Court’s decision in Griggs.
C. If necessary, this Court should defer to the
longstanding interpretation of enforcement agencies that section 4(a)(2) of the ADEA authorizes
disparate impact claims by applicants.
The Commission has long
interpreted the ADEA to authorize
disparate-impact-based challenges to practices adversely affecting applicants.
This interpretation is grounded in the plain and unambiguous natural reading of
the statute’s language. Should this Court disagree, however, and deem the
statute ambiguous, the Commission believes its interpretation is entitled to
deference. See EEOC v.
Commercial Office Prods. Co., 486 U.S. 107, 115-16, 108 S.Ct. 1666, 1671
(1986) (holding that EEOC’s interpretation of ambiguous language in Title VII warrants deference). The Commission
first addressed the relevant statutory language in Title VII in its 1966 Guidelines requiring
that ability tests “fairly measure[] the knowledge or skills required by the
particular job or class of jobs which the applicant seeks, or which fairly
afford[] the employer a chance to measure the applicant’s ability to perform a
particular job or class of jobs.” See Griggs, 401 U.S. at 433 n.9, 91 S.Ct. at 854
n.9 (quoting Guidelines). As discussed above, the Supreme Court relied on
EEOC’s interpretation of the statute in Griggs.
401 U.S. at 433, 91 S.Ct. at 854 (according EEOC interpretation “great
deference”). In 1968, the Secretary of Labor, who
then had rulemaking authority under the ADEA, published the Department of Labor’s interpretation of the
statute, which clarified that neutral “pre[-]employment” screens, such as
physical fitness requirements, must be necessary and “equally applied to all
applicants.” 29 C.F.R. §
860.103(f)(1)(i); see 33 Fed. Reg.
9173 (1968).
Upon assuming enforcement authority for the ADEA, the Commission promulgated the following
regulation in 1981, after notice-and-comment rulemaking: “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.” 29 C.F.R. § 1625.7(d) (1981) (emphasis added);
see 46 Fed. Reg. 47724, at *47725,
*47727 (1981). See also Smith,
544 U.S. at 243-44, 125 S.Ct. at 1546-47 (Scalia, J., concurring) (quoting 29 C.F.R. § 1625.7(d) and recognizing that EEOC’s
regulation affirmed longstanding position of
Secretary of Labor).
In 2012, in response to Supreme Court’s decisions in
Smith and Meacham v. Knolls
Atomic Power Laboratory, 554 U.S. 84, 128 S.Ct.
2395 (2008), the Commission again engaged in notice-and-comment rulemaking and issued
a new regulation to clarify that the defense to an ADEA disparate impact claim is a “reasonable
factor other than age.” The Commission’s current ADEA disparate impact regulations, which use
even broader language than the 1981 regulations, provide that “[a]ny 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.’” 29
C.F.R. § 1625.7(c) (2012); see 77 Fed. Reg. 19080
(2012). The Commission issued these regulations under its statutory
rulemaking authority, 29 U.S.C. § 628, and, therefore, as the agency’s consistent,
longstanding interpretation of the ADEA, they
are entitled to Chevron deference.
See Chevron, 467 U.S. at
843-44, 104 S.Ct. at 2781-82 (agency regulations given deference “unless they
are arbitrary, capricious, or manifestly contrary to the statute”); see also
United States v. Mead Corp., 533
U.S. 218, 226-27, 128 S.Ct. 2164, 2170-71 (2001) (“administrative
implementation of a particular statutory provision qualifies for Chevron deference when it appears that
Congress delegated authority to the agency generally to make rules carrying the
force of law”); 533 U.S. at 229, 128 S.Ct.
at 2172 (recognizing “a very good indicator of delegation meriting Chevron treatment in express congressional
authorizations to engage in the process of rulemaking or adjudication that
produces regulations or rulings for which deference is claimed”).
RJR argues that the Commission’s regulation is
not entitled to deference because it interprets the RFOA provision (section 4(f)(1)), not section 4(a)(2)). This argument overlooks the
Supreme Court’s statement in Meacham
that Smith “confirmed that the
prohibition in § 623(a)(2) extends to
practices with a disparate impact, inferring this result in part from the
presence of the RFOA provision.” Meacham,
554 U.S. at 95, 128 S.Ct. at 2403 (citations omitted) (emphasis added). Thus,
the viability of disparate impact theory under section
4(a)(2) is intertwined with section
4(f)(1). And the 2012 regulation clarifies that RFOA is the defense to an
age-based disparate impact claim under section
4(a)(2). Therefore, the Commission’s RFOA regulation is relevant to the
meaning of section 4(a)(2).
The current regulation, 29 C.F.R. § 1625.7(c), now refers to
“individuals,” which encompasses the “employees or applicants” language of
former section 1625.7(d). As the panel
majority recognized, if there were any doubt about whether “individuals”
includes applicants, the preamble to the final regulations resolves that doubt,
for the preamble poses numerous examples of cases involving applicants. See
77 Fed. Reg. 19080, at *19084 (“candidates
for jobs” in meatpacking industry); id.
at *19086 (“applicants for security guard positions”); id. at *19087 (“an employer seeking to
hire”). See also id.
at *19092 (“Data show that older individuals who become unemployed have more difficulty
finding a new position and tend to stay unemployed longer than younger
individuals. To the extent that the difficulty in finding new work is
attributable to neutral practices that act as barriers to the employment of
older workers, the [EEOC’s] regulation [concerning disparate impact claims
under section 4(a)(2)] should help to
reduce the rate of their unemployment and, thus help to reduce these unique
burdens on society.”). The Commission’s interpretation of its own regulation—in
the preamble to the final regulation—is “controlling” under Auer v. Robbins, 519 U.S. at 462, 117 S.Ct.
at 911, “unless plainly erroneous or inconsistent with the regulations,” which
it is not.
As discussed above, contrary to RJR’s position (orig.
br. at 39-40), this is not an
interpretation articulated only in Commission litigating positions. But the
Commission also has consistently taken the same position in litigation, adding
further support for deference. See EEOC
v. Francis Parker Sch., No. 94-1558, 1995 WL 17047545, at *6-*14 (S.Ct.
1995) (EEOC petition for certiorari); EEOC
v. Allstate Ins. Co., No. 07-1559, 2007 WL 6604487, at n.2 (8th Cir. 2007)
(EEOC brief as appellee). See also Auer,
519 U.S. at 462, 117 S.Ct. at 911 (fact that “the Secretary’s interpretation
comes to us in the form of a legal brief … does not … make it unworthy of
deference … [where interpretation reflects] the agency’s fair and considered
judgment on the matter in question.”). This
further supports the panel majority’s holding that the Commission’s position is
worthy of deference. See Mead Corp.,
533 U.S. at 230, 121 S.Ct. at 2172.
II. Villarreal alleged facts sufficient to support
equitable tolling.
In National
Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 105, 122 S.Ct. 2061, 2068
(2002), the Supreme Court reaffirmed
that the “time period for filing a charge is subject to equitable doctrines
such as tolling or estoppel.” Morgan, 536 U.S. at 113, 122 S.Ct. at 2072.
In this case, Villarreal argued that he is entitled to equitable tolling
of the charge-filing period because he had no knowledge that RJR refused to
hire him in November 2007 due to his age until less than a month before he
filed his charge in May 2010. In ruling on defendants’ motion to dismiss, the
district court properly recognized that, under equitable tolling principles, “‘a limitations period does not start to run until the facts
which would support a charge of discrimination are apparent or should be
apparent to a person with a reasonably prudent regard for his rights.’” R.58 at 18 (quoting Sturniolo, 15 F.3d at 1025).
However, the court concluded that the allegations in Villarreal’s complaint
were insufficient to support equitable tolling. R.58 at 17-19.
Villarreal then
moved under Fed. R. Civ. P. 15(a) to amend
his complaint to allege facts in support of tolling with greater specificity.
Although the district court recognized that leave to amend should be freely
granted under Rule 15(a), the court denied
Villarreal’s motion on the ground that amendment would be futile because he did
not allege any misrepresentations or concealment nor did he attempt to contact
RJR and ascertain the basis for his rejection. R.67 at 3-5. This ruling was incorrect
because controlling law does not require employer misconduct or some
extraordinary circumstance other than reasonable ignorance of facts that would
support a charge of discrimination. Instead, a charge should be deemed timely
where, as here, it is filed promptly upon discovery of the discrimination. In
this case Villarreal should be permitted to amend his complaint because the
district court erred in concluding that it would be futile to do so.
As the Supreme Court expressly noted, “there may be
circumstances where it will be difficult to determine when the [charge-filing]
time period should begin to run.” Morgan,
536 U.S. at 114 n.7, 122 S.Ct. at 2073 n.7. An issue raised by such
circumstances, the Court stated, is “whether the time begins to run when the
injury occurs as opposed to when the injury reasonably should have been
discovered.” Id. This “discovery
rule,” Justice O’Connor added, translates into a standard that bars “recovery
based on discrete actions that occurred more than 180 or 300 days after the
employee had, or should have had, notice of the discriminatory act.” Id. at 124 (O’Connor, J., concurring in
part, dissenting in part). This Circuit’s longstanding equitable tolling case
law applies this discovery rule.
This
Court has long held that for equitable tolling purposes, “‘the statute does not
begin to run until the facts which would support a cause of action are apparent
or should be apparent to a person with a reasonably prudent regard for his
rights.’” Calhoun v. Alabama Alcoholic
Beverage Control Bd., 705 F.2d 422, 425 (11th Cir. 1983) (quoting Reeb v. Econ. Opportunity Atlanta, Inc.,
516 F.2d 924, 1026 (5th Cir. 1975)).
This Court has consistently reaffirmed this standard in employment
discrimination cases. See, e.g., Arce
v. Garcia, 434 F.3d 1340, 1262-63 (11th Cir. 2005) (listing instances when
equitable tolling may be appropriate, including where a “‘claimant has received
inadequate notice’”); Cabello v.
Fernandez-Larios, 402 F.3d 1148, 1155 (11th Cir. 2005) (equitable tolling
is appropriate “where the defendant misleads the plaintiff . . . or when the
plaintiff has no reasonable way of discovering the wrong perpetrated against
[him], as is the case here”); Jones,
331 F.3d at 1265 (plaintiff not only must know of the alleged discriminatory
act itself but must know or be charged with knowing sufficient facts to support
conclusion that employer’s facially neutral decision was actually motivated by
unlawful discrimination). Nothing in the rule articulated by this Circuit or
the Supreme Court requires employer misconduct.
The dissent (op. at 54, 58) and RJR complain that tolling
the statute of limitations to “accommodate lawyers putting together a cause of
action” “effectively eviscerates the statute of limitations.” This view,
however, misstates and overstates the operation of the “discovery rule”
consistently applied by this Court and fails to appreciate the difficulties
individuals face in detecting that they have been the target of hiring
discrimination. Given the difficulty of acquiring evidence
of discrimination in the hiring context, allowing charges to be filed upon
discovery of evidence of discrimination strikes an appropriate balance between
the policy consideration underlying the limitations provisions, i.e., to
discourage the filing of stale claims, and general enforcement of the goals
underlying fair employment statutes. Limitations provisions are “designed to
assure fairness to defendants by preventing the revival of stale claims in
which the defense is hampered by lost evidence, faded memories, and
disappearing witnesses, and to avoid unfair surprise.” Johnson v. Ry. Express Agency, 421 U.S.
454, 473, 95 S.Ct. 1716, 1726 (1975) (Marshall, J., concurring). These
concerns certainly are not implicated in a case like this where the employer
utilizes a hiring method it likely knows disproportionately excludes older
workers.
The dissent’s and RJR’s concern that applying a discovery
rule would somehow nullify the statute of limitations is similarly unfounded. The
timeliness principle applicable to this case is a longstanding one and there is
no reason to believe, and certainly no evidence has been adduced to show, that
the application of this principle has rendered the statutes of limitations
nugatory. Accordingly, permitting plaintiffs to pursue claims such as this
where the evidence was unknown or unavailable until the limitations period had
passed would not “open the flood gates to reversals and remands allowing the
‘grand reservoir’ of litigation to overflow.” Williams v. N. Fla. Reg. Med. Ctr., Inc.,
164 F. App’x 896, 899 (11th Cir. 2006). To the contrary, it is the rule
advocated by the dissent and RJR that is more likely to open a floodgate
of charges and lawsuits if job applicants are required to file federal charges whenever
they were not hired out of fear that they will otherwise forgo their rights. This
result would burden employers to defend, the Commission to process, and federal
courts to decide a multitude of potentially meritless claims.
CONCLUSION
For the
foregoing reasons, the Commission urges this Court to reverse the judgment of
the district court and remand this case for further proceedings.
Respectfully
submitted,
P. DAVID LOPEZ s/
Donna J. Brusoski____________
General Counsel Donna
J. Brusoski
JENNIFER S. GOLDSTEIN EQUAL EMPLOYMENT
OPPORTUNITY
Associate General Counsel COMMISSION
Office
of General Counsel
LORRAINE C. DAVIS 131 M
Street, N.E., 5th Floor
Assistant General Counsel Washington,
DC 20507
(202)
663-7049
fax:
(202) 663-7090
donna.brusoski@eeoc.gov
