PricewaterhouseCoopers urged a California federal judge at a hearing Thursday to throw out a putative class action alleging the accounting firm doesn’t consider older job applicants, arguing that disparate impact claims under federal age discrimination law can only be brought by existing employees, not prospective ones.
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But Daniel B. Kohrman of AARP Foundation Litigation said the Gross decision worked in his favor, arguing that if you can’t take the language of one statute and apply it to another, then you can’t assume any meaning from the presence of “job applicants” in one statute and absence from another. Kohrman also said the ADEA did include the term “any individual,” which could mean people who weren’t current employees. He also pointed to a definition in the federal labor code which included job applicants under the heading of “employees.”
“If ‘employee’ encompasses applicants, their point is meaningless,” he said. “The point of my suggestion regarding labor regulations is the language is ambiguous, so it is necessary to look beyond the wording of the statute.”
U.S. District Judge Jon Tigar focused on the Eleventh Circuit’s recent split, en banc decision in Villarreal v. R.J. Reynolds Tobacco Co., which found the claims of a Georgia man suing R.J. Reynolds for age discrimination were not covered by the ADEA. The judge said the opinions on both side presented a nice “road map,” but he didn’t indicate which way he would rule.
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Kohrman said the words that followed, “because of such individual’s age,” subsumed the “otherwise” clause. He also said Judge Tigar must interpret the broader context of the law, and walked the judge through its legislative history, pairing it with the Civil Rights Act of 1967, which contained similiar language. He also said that under the Supreme Court’s Chevron decision, the court should consider how the Department of Labor and the Equal Employment Opportunity Commission interpret the law.
After the hearing, Kohrman told Law360 the Villarreal case was the only existing circuit decision on whether applicant disparate impact claims could be brought by older workers, but said AARP is currently involved in litigation on the question in at least two other circuits.
“This is a very important issue for older workers, including the plaintiffs in this case. There’s a prospect of going back to an era where older workers will be barred from positions for which they’re highly qualified and ready, willing and able to fill,” he said. “The outcome of this motion is terribly important, maybe even more important for states where there aren’t as strong worker protections as there are in California. The federal government shouldn’t take a backseat to the states in protecting older workers.”
Caroline Nolan, a spokeswoman for PwC, said the suit asked that the court “become the first in the nation to permit such claims.”
“The statutory provision in question does not apply to job applicants — every court that has considered this has agreed,” she said. “PwC fully respects all anti-discrimination laws, but believes the plaintiffs have misinterpreted this one.”
The suit — filed by 53-year-old certified public accountant Steve Rabin — claims the firm has a “stunningly low” number of older workers in entry-level and lower- to mid-level positions. It accuses PwC of violating federal and state laws, including the Age Discrimination in Employment Act and the California Fair Employment and Housing Act.
According to Rabin, PwC mostly hires entry-level accountants through a campus recruiter, requiring them to be affiliated with a university. The firm allegedly doesn’t post entry-level accountant positions on its website and doesn’t offer a way for prospective applicants not currently affiliated with a college to apply for the jobs.
Rabin is represented by Adam T. Klein and Jahan C. Sagafi of Outten & Golden LLP, Daniel B. Kohrman, Laurie A. McCann and Dara S. Smith of AARP Foundation Litigation, and Jennifer Liu of the Liu Law Firm PC.
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The case is Steve Rabin et al. v. PricewaterhouseCoopers LLP, case number 3:16-cv-02276, in the U.S. District Court for the Northern District of California.