This week, the U.S. Court of Appeals for the 11th Circuit ruled the disparate-impact provision need not apply to job applicants, overturning a half-century of
The disparate-impact provision, also known as Section 4(a)2, deems it unlawful for employers 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.”
However, while the provision does not explicitly say “job applicants,” many assert that Congress clearly intended for it to include job applicants in scope. Further, the U.S. Equal Employment Opportunity Commission has long maintained a rule stipulating that the measure includes job applicants, making the court’s decision seem to some even more nonsensical.
Writing for Bloomberg News, Noah Feldman asserts that the ruling will likely make its way up to the U.S. Supreme Court, where he predicts it will be overturned. He explains that the court’s ruling for allowing age discrimination to be dependent on the “otherwise” clause, which the court claimed applied only to employees.