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Did the New Cause of Action for Job Applicants Under the ADEA Get Axed?

By Matthew R. Simpson

In Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11th Cir. 2016), the U.S. Court of Appeals for the Eleventh Circuit, on rehearing en banc, reversed its prior holding that job applicants may bring “disparate impact” claims for age discrimination against potential employers, and that the EEOC may toll the statute of limitations in such cases.

Rather, the Eleventh Circuit concluded that Section 4(a)(2) of the Age Discrimination in Employment Act (ADEA) does not allow job applicants to assert claims of disparate impact against a potential employer. Further, it held that equitable tolling of the statute of limitations is not automatic, but is based on a general test requiring the party seeking equitable tolling to bear the burden of proof.

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