EEO Roundup: 11th Cir. Ruling Sounds Warning for Workers Not to Sleep on Job Rights


A closely watched case involving whether older job applicants can sue for unintentional age discrimination in the hiring process also should serve notice on workers and their lawyers not to sleep on potential workplace bias claims.

That’s a big takeaway for employees and job applicants from the Eleventh Circuit majority’s secondary holding in Villarreal v. R.J. Reynolds Tobacco Co., management lawyer Donald R. Livingston told Bloomberg BNA in an Oct. 6 e-mail.

The court rejected Richard Villarreal’s argument that his time to pursue a claim under the Age Discrimination in Employment Act was, for fairness’ sake, delayed. Villarreal said the facts showing that R.J. Reynolds Tobacco Co. failed to hire him based on his age—49—weren’t apparent to him at the time and he couldn’t have known about them until more than two years later.

The court's holding, under the “equitable tolling” doctrine, honored a long-standing legal principle, Livingston said, one he learned in law school. “Equity aids the vigilant, not those who slumber on their rights,” said the Washington-based Akin Gump Straus Hauer & Feld attorney and former Equal Employment Opportunity Commission general counsel.

The Eleventh Circuit held that to qualify for equitable tolling, workers suing for discrimination must show that they pursued their job rights diligently, and it concluded that Villarreal’s failure to follow up on his online job application with R.J. Reynolds for more than two years didn’t show reasonable diligence.

Livingston said the holding respects the charge-filing deadlines Congress set for workers looking to sue for employment bias by “rewarding plaintiffs with equitable tolling only in truly exceptional cases.”

He represented the U.S. Chamber of Commerce as an amicus in the case.

Holding Should Apply Broadly.

Rae Vann of NT Lakis LLP in Washington told Bloomberg BNA that the holding on the equitable tolling question likely isn’t limited to just the type of claim—age discrimination—at issue in the Villarreal case. It instead should apply broadly under federal anti-bias laws.

She said she “would have been very concerned” if the Eleventh Circuit had reached the opposite conclusion on the issue.

Congress included short statutes of limitations in the various federal employment discrimination laws “because it wanted to encourage quick and informal resolution” of job bias claims, Vann said Oct. 6.  She serves as general counsel of employer advocacy group the Equal Employment Advisory Council, which also filed an amicus brief in the case.

A different ruling by the Eleventh Circuit “would have effectively excused plaintiffs from complying with those statutes of limitations,” and “we know that’s not what Congress intended,” Vann said.

A holding that allowed Villarreal to pursue his claim more than two years after it arose also would have raised record-keeping and records retention issues for employers, she added.

Many companies don’t hold on to employee hiring and other records for that long and could find themselves lacking the documentary evidence needed to defend against a worker’s claim under a different rule, Vann said. 

The Villarreal majority ruled on the primary issue in the case that the ADEA doesn’t permit a job applicant to sue for the unintended discriminatory consequences of an employer’s facially neutral hiring practice, and that older applicants instead may only sue for intentional age bias. An analysis of that portion of the court’s ruling can be found at

Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law, with a fully integrated, innovative legal research platform. Click here to request a free trial.