An important age discrimination lawsuit may come to the Supreme Court

Can an employer have secret age hiring preferences for its online applicants?

That’s the question the Supreme Court may decide to answer if it chooses to hear Villarreal v. R.J. Reynolds. If the nation’s top court chooses this case, it could have a dramatic impact on the scope of how online hiring works.

This is a landmark case for job-seekers: the Villareal case will determine the future of online job applications for years to come.

Submitting 6 online applications to the same job

Here are the details: 49-year-old Georgia resident Richard Villarreal applied online for a sales manager job with R.J. Reynolds, the nation’s second-largest tobacco company, in 2007. He thought he was very qualified for the role. Villarreal had eight years in sales experience and the job description of “territory manager” made it seem like it would need those years of experience since it required lots of travel and “one-to-one” customer interaction.

But after applying online, Villareal never heard back.

It wasn’t until a whistleblower tipped off an employment law firm in 2010 that Villarreal found out that he wasn’t being rejected because of his experience, but more likely due to his age.

He applied five more times to the role in five years, but he still only heard crickets.

An alleged ban on highly experienced job candidates

Reynolds had hired contractors — Kelly Services Inc. and Pinstripe Inc. — to review and sort resumes based on the company’s guidelines.

According to an Equal Employment Opportunity Commission complaint, Reynolds said its “Targeted Candidate” was “2-3 years out of college” and it wanted reviewers to “Stay Away From” applicants who had been “in sales for 8-10 years.”

ProPublica reported that a second version of guidelines filed with the EEOC was even more upfront: reviewers were told to “Stay Away From” candidates who were “35 and over.”

And it worked. Out of the the 19,000 applications Kelly Services received, it only referred 1,400 of applicants like Villarreal, who had eight or more years of experience, for further consideration.

Since 2007, Reynolds has hired over 1,000 sales managers, according to the EEOC filing.

Only 19 of those managers were over 40 years old.

Whom does the law protect against age discrimination?

The cases hinges on the U.S. 1967 Age Discrimination in Employment Act. The key question: does the law apply only to age discrimination against current employees, or also to job-seekers?

In an earlier version of the case, in the Eleventh Circuit, Reynolds successfully argued that the ADEA only protected people who already work at the company, since the law only prohibits employment bias that “adversely affect[ed] his status as an employee.”

That wouldn’t cover Villarreal’s status as a job seeker, Reynolds’ lawyers argued.

It’s true that there is no specific language about job seekers in the law. Villarreal is trying to make the case that the law does cover him and other older job-hunters because the ADEA also says employers cannot “deprive any individual.”

The top court’s answer on what role age bias plays in hiring would impact many older Americans seeking jobs. Studies of how employers choose resumes have shown that job discrimination against older workers is rife, despite the advantages that workers over 50 bring to the office.

Secret hiring preferences of employers

Villareal’s case against Reynolds is facing some challenges, however.

The most significant one: Because Villarreal did not immediately follow up on his first application to the company in 2007, the Eleventh Circuit said he also failed to demonstrate “diligence” in pursing his goal: “A plaintiff who does nothing for two years is not diligent.”

Under the diligence test, an individual who feels they’re being discriminated against at work has 180 days to file their charge. The time limit is supposed to stop frivolous lawsuits.  In other cases, the court has been flexible about the definition of diligence based on the understanding that discrimination is frequently subtle and takes time to root out.

Villarreal’s lawyers said he didn’t pursue legal action until he heard about the whistleblower because of changes in the job market. The circuit court was unmoved by this answer.

Five judges did, however, accept Villareal’s argument. Judge Beverly Martin wrote the dissent to the Eleventh Circuit decision, explaining why the justices in the minority found Villareal’s case compelling.

Martin wrote that it was unreasonable to expect Villarreal to diligently figure out that he was being discriminated against because he had no idea to suspect it was happening until the whistleblower leaked the information: “Secret preferences in hiring and even more subtle means of illegal discrimination, because of their very nature, are unlikely to be readily apparent to the individual discriminated against.”

As more employers switch to online methods to find applicants, figuring out why you didn’t get hired will become an increasingly opaque process. Are you not getting a call back because of your age or from some other combination? A broad study found that employers also tended to discard the resumes of workers with “foreign”-sounding names.