Applicants of a proposed class of 40 and over job seekers rejected by PricewaterhouseCoopers LLP allege age discrimination on the part of the accounting giant, specifically citing the company’s employment practices. The applicants say that the hiring (in addition to other employment practices) inadvertently favor younger potential employees while discouraging older applicants.

Recently a federal judge in California ruled that the company would need to defend against the claims; in opposition to the previous conclusion reached in October 2016 by the U.S. Court of Appeals for the Eleventh Circuit. The federal judge’s conclusion embraces the view of the Equal Employment Opportunity Commission. The case could lead to a possible showdown between federal courts regarding who can bring this type of discrimination claims under the Age Discrimination in Employment Act. Although the U.S. Supreme Court has been asked to look at the Eleventh Circuit’s ruling so they may address the issue before it comes to that.

If the justices decide to review this particular case, they would necessarily need to consider the question of how much deference lower courts owe to the EEOC’s views on this particular issue.

PricewaterhouseCoopers LLP’s Reaction to the Ruling:

PwC’s argument that the job applicants didn’t have the right to sue for disparate-impact bias because they were not actually hired failed according to the U.S. District Court for the Northern District of California’s decision February 17th. The theory behind disparate-impact claims allege unintended biased effects resulting from policies or practices that may not be explicitly discriminatory. The allegation PwC is facing cites the company’s tool that purposefully recruits college students as limiting potential for hiring to recent college graduates and applicants with impending college graduations.

In October, a similar claim was brought before the Eleventh Circuit regarding the R.J. Reynolds Tobacco Co. Allegations in this case included that the company used guidelines to review resumes submitted for open positions that targeted job applicants that were only 2-3 years out from college graduation. In the R.J. Reynolds Tobacco Co. case, the court held that only the workers already hired could bring disparate-impact claims and that potential employees still in the hiring process or being considered for a position may sue only for intentional age discrimination.

In response to the situation, PricewaterhouseCoopers LLP stated that they respect all anti-discrimination laws, but do not agree with the interpretation of the court regarding the situation. The company spokesperson, advised that the firm believes that the provision of the ADEA does not apply to applicants for open positions.

Lead class counsel Outten & Golden LLP had a different take on the same issue. They found the Court’s decision to follow decades of Supreme Court precedent pleasing in its confirmation that job applicants can challenge age discrimination through the conventional disparate impact theory. They noted that Congress carefully ensured that all individuals could depend on coverage, not just employees. They also pointed out that it has been pointed out by the Supreme Court numerous times that the ADEA should be read similar to other civil rights statues (like the Fair Housing Act or Title VII) in order to include the types of claims being questioned.

U.S. District Judge Jon S. Tigar’s rejection of PwC’s attempted reliance on the Eleventh Circuit’s decision in the Villarreal v. R.J. Reynolds Tobacco Co., was based on a different interpretation of the ADEA in comparison to the majority. Tigar points to the phrase “any individual” used in the law providing a claim for disparate-impact bias and indicates that it does not use the narrower term “employee” even though the narrower term, “employee,” is used in other sections.

Because of the specific word use, Tigar concluded that it can be assumed that Congress’ variation in the terms used was deliberate and indicated that they intended to include all individuals rather than limiting the protections offered to employees. Tigar’s reading is supported by Supreme Court cases that signal disparate-impact claims may be brought by 40+ applicants for jobs.

While the plain language of the law in this case may continue to see varying interpretations, Tigar argued that the law should be viewed as providing protections for 40+ applicants alleging discrimination in employment and hiring policies like PwC’s college student recruitment tool. When a statute’s meaning is not clear the court should grant deference to the stance of the federal agency that is actually tasked with enforcing the law. In the case in question, the agency tasked with enforcement is the EEOC, which has interpreted the ADEA in the past as permitting disparate impact claims by applicants. PwC did not provide a substantial or compelling argument for not adhering to long-established views of the EEOC. Additionally, the law’s legislative history also supports rejection of the position the company is taking that the law only provides protection for employees. The Court added that Congress intended for the ADEA to overcome barriers to employment for older workers, not just age discrimination that may be faced once they’re hired.

If you have questions regarding age discrimination in the workplace or in the hiring process, please get in touch with the experienced northern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.