On October 30, 2012, Judge Jeffrey T. Miller of the U.S. District Court for the Southern District of California held that an employer’s requirement that a job applicant provide his date of birth on a form creates “at least some suspicion of age discrimination,” and was a sufficiently specific practice to state claims for disparate impact in Ernst v. Bank of America, No. 12-CV-1255 (S.D. Cal. Oct. 30, 2012). Moreover, the Court held that plaintiff’s disparate impact claims were a natural extension of his disparate treatment claim in the EEOC charge, despite a total absence of any reference to disparate impact, because both claims arose from a form’s request for the applicant’s date of birth. The ruling arises from an ADEA collective action/state law class action, and is therefore of significant importance for employers.
This dispute arose out of plaintiff Gary Ernst’s allegations that Bank of America (“BofA”) did not hire him as a financial advisor because of his age, in violation of the ADEA and the California Fair Employment and Housing Act (“FEHA”). Ernst alleges that a BofA representative contacted him to interview for a financial advisor position, and shortly thereafter, he received an email instructing him to fully complete an employment application. The application asked for his date of birth. Ernst was 57 years old at the time he completed the form. The application did not include a disclaimer concerning the requirements of the ADEA.
After an interview in which Ernst “sensed” a negative reaction from the regional manager, he alleged he was informed that the regional manager had chosen candidates who were “a better fit.” The complaint alleged that BofA subsequently hired “significantly younger workers with inferior qualifications.”
Ernst filed a charge with the EEOC and the California Department of Fair Employment and Housing (“DFEH”), stating that he was subjected to an impermissible non-job related inquiry and denied a position because of his age.
Ernst’s complaint included class allegations for four different classes, a purported class of applicants who were not hired in violation of the ADEA, a purported class of applicants who were not hired as a financial advisor in violation of the ADEA, a purported class of applications who were not hired in violation of FEHA, and a purported class of applicants who were not hired as a financial advisor in violation of FEHA.
Ernst alleged violations based on disparate treatment and disparate impact.
BofA sought dismissal of the disparate impact age discrimination claims and the class action allegations.
The Court’s Ruling
The Court first ruled that Ernst’s failure to raise a disparate impact claim in his EEOC charge was not fatal to his claim because it concluded that investigation into the claims of intentional discrimination resulting from Ernst providing his date of birth would “naturally extend” to investigation of disparate impact. In so holding, the Court distinguished a 2010 case from the Northern District of California and the Ninth Circuit case it relied upon, both of which concluded that a discrimination claim based on disparate treatment is insufficient to exhaust a claim for disparate impact — and vice-versa.
The Court next concluded that Ernst’s allegation that “the facially neutral requirement of providing the birth date leads to discrimination against older applicants” was sufficient to state a claim of disparate impact. The Court noted that, viewing the allegations in the light most favorable to plaintiff, the application’s request for date of birth was enough to survive a motion to dismiss.
Finally, while the Court observed that Ernst “may indeed be challenged to comply with Federal Rule of Civil Procedure 23” in light of the Supreme Court’s ruling in Wal-Mart Stores, Inc. v Dukes, 131 S. Ct. 2541 (2011), the Court declined to reach any of BofA’s arguments in support of its motion to strike the class allegation. Rather, the Court held that such arguments are better addressed after class discovery on a motion for class certification.
Implications For Employers
The Court’s decision in Ernst is a surprising indictment of a standard date of birth inquiry on employment applications. Employers should ensure that applications including such an inquiry also include a disclaimer of the ADEA’s requirements and should note that a response is optional.
Furthermore, the Court’s interpretation of the impact of the scope of the EEOC charge is a marked departure from precedent acknowledging the difference between disparate impact and disparate treatment claims. If this trend continues, employers should keep in mind that allegations of disparate treatment could lead to exposure for disparate impact claims, and vice-versa.