Date: 04-27-2018

Case Style:

Case Number: 17-1206

Judge: Hamilton

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Daniel B Kohrman, Laurie Ann Mccann, Dara Swartz Smith and Paul Strauss

Defendant's Attorney: Colleen Grace DeRosa and Tobias Edward Schlueter

Description: The key provision of the Age
Discrimination in Employment Act of 1967 prohibits
employment practices that discriminate intentionally against
older workers, and prohibits employment practices that have
2 No. 17‐1206
a disparate impact on older workers. 29 U.S.C. § 623(a)(1),
(a)(2); Smith v. City of Jackson, 544 U.S. 228 (2005). The central
issue in this appeal is whether the disparate impact provision,
§ 623(a)(2), protects only current employees or whether it
protects current employees and outside job applicants. We
hold that § 623(a)(2) protects both outside job applicants and
current employees. That is the better reading of the statutory
text. It is also more consistent with the purpose of the Act and
nearly fifty years of case law interpreting the ADEA and
similar language in other employment discrimination
statutes.
In fact, our reading tracks the Supreme Court’s reading of
virtually identical statutory language in Title VII of the Civil
Rights Act of 1964 in Griggs v. Duke Power Co., 401 U.S. 424,
426 n.1, 431 (1971), which found that this text protects “the
job‐seeker.” In holding that the ADEA covers disparate
impact claims, the Supreme Court identified Griggs as “a
precedent of compelling importance” in interpreting
§ 623(a)(2), Smith, 544 U.S. at 234, so we apply it here.
Moreover, we have not been presented with, and could not
imagine on our own, a plausible policy reason why Congress
might have chosen to allow disparate impact claims by
current employees, including internal job applicants, while
excluding outside job applicants.
We therefore reverse the district court’s Rule 12(b)(6)
dismissal of plaintiff Dale Kleber’s disparate impact claim and
remand for further proceedings. Given the stage of the case,
we do not address possible affirmative defenses under
§ 623(f)(1), including the defense that the challenged practice
was “based on reasonable factors other than age.”
No. 17‐1206 3
Part I provides the factual and procedural background for
the issue. Part II examines the text, purpose, and origins of
§ 623(a)(2), as well as the practical consequences of the
interpretations advanced by the parties. Part III addresses the
unusually wide array of arguments, rebuttals, and surrebuttals
marshaled by the parties to support their competing
interpretations § 623(a)(2). Part IV explains why the plaintiff
did not fail to exhaust his administrative remedies.
I. Factual Background and Procedural History
In reviewing a dismissal for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), we treat as true the
factual allegations in the complaint without vouching
ourselves for their truth. Bonnstetter v. City of Chicago, 811 F.3d
969, 973 (7th Cir. 2016). Plaintiff Dale Kleber is an attorney
with extensive legal and business experience, including
private law practice in Chicago, work as a general counsel for
a major national company, and leadership of a national trade
association, a real estate development company, and a
medical device company. After his employment ended in July
2011, Kleber began applying for other legal jobs, primarily
those in corporate legal departments. Kleber sent out more
than 150 applications in total, without success, including
applications for less senior positions. In 2014, Kleber was 58
years old and searching actively for a full‐time position.
On March 5, 2014, Kleber applied for a position as “Senior
Counsel, Procedural Solutions” with defendant CareFusion
Corporation, a healthcare products company. The job posting
called for “a business person’s lawyer” with the ability “to
assume complex projects,” which we must assume would be
well‐suited to Kleber’s skills and experience. The job posting
also said, however, that applicants must have “3 to 7 years (no
4 No. 17‐1206
more than 7 years) of relevant legal experience.” CareFusion
received Kleber’s application but did not select him for an
interview. The company eventually filled the position with a
29‐year‐old applicant.
The seven‐year experience cap is at the heart of this
lawsuit. In this appeal from a Rule 12(b)(6) dismissal, we must
assume that the company did not select Kleber because he had
more than seven years of relevant legal experience. Because of
the experience cap, Kleber filed a charge of age discrimination
with the Equal Employment Opportunity Commission.
CareFusion responded in a letter to the EEOC saying its
maximum experience cap in the job posting was an “objective
criterion based on the reasonable concern that an individual
with many more years of experience would not be satisfied
with less complex duties … which could lead to issues with
retention.”
After the EEOC issued Kleber a right‐to‐sue letter in
December 2014, he filed this suit alleging claims for both
disparate treatment and disparate impact under the relevant
clauses of section 4 of the ADEA, 29 U.S.C. § 623(a)(1) & (a)(2).
Kleber alleged that the maximum experience cap was “based
on unfounded stereotypes and assumptions about older
workers, deters older workers from applying for positions …
and has a disparate impact on qualified applicants over the
age of 40.”
CareFusion moved to dismiss both claims. The district
court dismissed the disparate impact claim under Rule
12(b)(6), relying on our decision in E.E.O.C. v. Francis W.
Parker School, 41 F.3d 1073 (7th Cir. 1994), to hold that the
ADEA’s disparate impact provision does not cover job
applicants who are not already employed by the defendant.
No. 17‐1206 5
The court denied dismissal on the disparate treatment claim.
Kleber later dismissed the disparate treatment claim
voluntarily. The district court entered final judgment for
CareFusion. Kleber then appealed, challenging only the
district court’s dismissal of his § 623(a)(2) disparate impact
claim.
II. The Scope of Disparate Impact Protection
A. The Text of the ADEA
1. Dissecting § 623(a)(2)
This appeal from a Rule 12(b)(6) dismissal presents a legal
issue that we review de novo: whether § 623(a)(2) protects
outside job applicants from employment practices that have a
disparate impact on older applicants. See Bell v. City of
Chicago, 835 F.3d 736, 738 (7th Cir. 2016). We begin with the
statutory language, of course. We analyze the specific words
and phrases Congress used, though we cannot lose sight of
their “place in the overall statutory scheme,” since we
“construe statutes, not isolated provisions.” King v. Burwell,
135 S. Ct. 2480, 2489 (2015), quoting FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000), and Graham
County Soil and Water Conservation Dist. v. United States ex rel.
Wilson, 559 U.S. 280, 290 (2010).
The key provision of the ADEA, 29 U.S.C. § 623(a), reads:
It shall be unlawful for an employer—
(1) to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individualʹs age;
6 No. 17‐1206
(2) 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 individualʹs age; or
(3) to reduce the wage rate of any employee in order
to comply with this chapter.
The disparate treatment provision, paragraph (a)(1), does not
refer to job applicants, but it clearly applies to them by
making it unlawful for the employer “to fail or refuse to hire
… any individual … because of such individual’s age.” The
disparate impact provision, paragraph (a)(2), also does not
refer specifically to applicants or hiring decisions, but its
broad language easily reaches employment practices that hurt
older job applicants as well as current employees.
Despite the length of this opinion, resulting from the
unusually deep layers of arguments about this language, we
can explain our basic textual reading in this and the following
three paragraphs. We start with the critical statutory
language, “to limit, segregate, or classify” employees. If an
employer classifies a position as one that must be filled by
someone with certain minimum or maximum experience
requirements, it is classifying its employees. If the
classification “would deprive or tend to deprive any
individual of employment opportunities,” paragraph (a)(2)
can reach that classification. The broad phrase “any
individual” reaches job applicants, so the focus turns to the
employer’s action and its effects on the individuals impacted
by it—i.e., whether the employer has classified jobs in a way
that tends to limit any individual’s employment
opportunities. See Smith v. City of Jackson, 544 U.S. 228, 234,
No. 17‐1206 7
235–38 (2005) (plurality) (explaining that this “text focuses on
the effects of the action” and not the employer’s motive); id. at
243 (Scalia, J., concurring).1
To oppose this conclusion, the defendant emphasizes the
phrase “or otherwise adversely affect his status as an
employee.” § 623(a)(2). The antecedent of “his” is “any
individual,” and “otherwise adversely affect” is broader than
“deprive or tend to deprive any individual of employment
opportunities.” If “any individual” is not already employed
by the employer in question, reasons the defendant, the
individual does not yet have “status as an employee” and so
is not protected from policies or practices that have disparate
impacts because of age. The defendant thus concludes that a
person’s status as an employee cannot be affected unless the
person is already an employee, so paragraph (a)(2) implicitly
limits its protections from disparate impacts to people who
already possess “status as an employee” with the defendantemployer.
Looking only at the language of paragraph (a)(2) in
isolation, the defense argument has some plausibility, but we
reject it for several reasons we explain in detail below. At the
most basic textual level, there are two fundamental problems.
First, the defense argument assumes that “status as an
employee” limits the already broad phrase, “deprive or tend
to deprive any individual of employment opportunities.” It is
not self‐evident—as a matter of plain meaning—that the last
1 Justice Scalia joined Parts I, II, and IV of the Smith opinion by Justice
Stevens, saying that he also agreed with the plurality’s reasoning in Part
III. 544 U.S. at 243. We therefore treat all parts of the Smith opinion by
Justice Stevens as authoritative without repeatedly citing Justice Scalia’s
concurrence.
8 No. 17‐1206
“status” phrase must be read as a limitation. A list culminating
in an “or otherwise” term could instead direct the reader to
consider the last phrase alternatively, “in addition to” what
came before. For example, an employer could violate the
ADEA by adversely affecting the status of its employees (e.g.,
by unreasonably giving bigger raises to junior employees, as
alleged in Smith, 544 U.S. at 231) without depriving an
individual of employment opportunities, i.e., better jobs and
promotions. In this sense, paragraph (a)(2) “enumerates
various factual means of committing a single element”—
imposing employment policies that have disparate impacts
on older workers. See Mathis v. United States, 136 S. Ct. 2243,
2249 (2016) (discussing various ways to write an
“alternatively phrased law”).
Second, even if “status as an employee” must be affected
to state a claim under (a)(2), the defense argument depends
entirely on the notion that “status as an employee” is not
affected when a person is denied the opportunity to become
an employee in the first place. That limiting assumption is
clever, but we believe it is incorrect. Deciding whether a
person becomes an employee or not has the most dramatic
possible effect on “status as an employee.” Courts often speak
of “denying status” of one sort or another.2 And the word
2 Judge Martin’s dissent in Villarreal v. R.J. Reynolds Tobacco Co., 839
F.3d 958 (11th Cir. 2016) (en banc), collected several examples. 839 F.3d at
983 & n.2, citing Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 547 U.S.
651, 656 (2006) (bankruptcy claimant could be “denied priority status”);
Chandris, Inc. v. Latsis, 515 U.S. 347, 372 (1995) (maritime worker could “be
denied seaman status”); McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479,
496 (1991) (person trying to do seasonal work could be “denied [special
agricultural worker] status”); Clark v. Gabriel, 393 U.S. 256, 264 (1968) (draft
registrant could be “denied [conscientious objector] status”).
No. 17‐1206 9
“status” is not necessarily limited to status as of any particular
moment. See Pub. L. No. 82‐248, § 1, 65 Stat. 710 (1951),
codified at 1 U.S.C. § 1 (Dictionary Act providing that unless
the context indicates otherwise, “words used in the present
tense include the future as well as the present”). Thus, if
Congress really meant to outlaw employment practices that
tend to deprive older workers of employment opportunities,
which it did, but at the same time deliberately chose to leave a wide
array of discriminatory hiring practices untouched, its use of the
phrase “status as an employee” would have been a
remarkably indirect and even backhanded way to express
that meaning.
Looking beyond the text of paragraph (a)(2) at the larger
context of the ADEA as a whole, as well as the Supreme
Court’s interpretation of identical language in Title VII of the
Civil Rights Act of 1964 in Griggs v. Duke Power Co., 401 U.S.
424, 430–31 (1971) (disparate impact provision applies to both
job‐seekers and employees seeking promotions), we reject the
We have also used this phrasing in a variety of contexts. Bell v. Kay,
847 F.3d 866, 868 (7th Cir. 2017) (plaintiff objected to “the order denying
him pauper status”); McMahon v. LVNV Funding, LLC, 807 F.3d 872, 875
(7th Cir. 2015) (observing that “the denial of class status is likely to be fatal
to this litigation”); Moranski v. General Motors Corp., 433 F.3d 537, 538 (7th
Cir. 2005) (analyzing “denial of Affinity Group status” affecting a
proposed group of employees); Hileman v. Maze, 367 F.3d 694, 697 (7th Cir.
2004) (plaintiff alleged injury resulting “from the denial of her status” as
candidate in local election); Resser v. Comm’r of Internal Revenue, 74 F.3d
1528, 1532 (7th Cir. 1996) (appealing “denial of ‘innocent spouse’ status”
in Tax Court); Williams v. Katz, 23 F.3d 190, 191 (7th Cir. 1994) (spurned
intervenor permanently “denied the status of a party” in litigation); Lister
v. Hoover, 655 F.2d 123, 124–25 (7th Cir. 1981) (plaintiffs “who were denied
resident status and the accompanying reduced tuition” at a state
university).
10 No. 17‐1206
defendant’s unduly narrow reading of paragraph (a)(2). See
Smith, 544 U.S. at 233–38 (applying Griggs to § 623(a)(2) in
ADEA); Texas Dep’t of Housing and Community Affairs v.
Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2518 (2015)
(“antidiscrimination laws must be construed to encompass
disparate‐impact claims when their text refers to the
consequences of actions and not just to the mindset of actors,
and where that interpretation is consistent with statutory
purpose”).
The parties here and other courts addressing this problem
under § 623(a)(2) have laid out an unusually large variety of
textual arguments. Most are spelled out well on both sides of
the debate in the several opinions in the Eleventh Circuit’s en
banc decision, Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958
(11th Cir. 2016), where the majority concluded that outside job
applicants could not bring disparate impact claims under the
ADEA. See also Rabin v. PricewaterhouseCoopers LLP, 236 F.
Supp. 3d 1126 (N.D. Calif. 2017) (agreeing with Villarreal
dissent and denying judgment on pleadings on disparate
impact claim by putative class of outside job applicants).
2. Considering Consequences of the Interpretations
In the following pages, we dive more deeply into the
layers of the textual arguments offered in this appeal. Before
we do, it is useful to pause to consider the practical
consequences of the parties’ readings of paragraph (a)(2). See,
e.g., Graham County, 559 U.S. at 299–301 (considering practical
consequences of parties’ interpretations when determining
better reading of statute); Dewsnup v. Timm, 502 U.S. 410, 416–
20 (1992) (same).
No. 17‐1206 11
Suppose the defendant is correct that paragraph (a)(2)
applies only to current employees. Imagine two applicants for
the defendant’s senior counsel position: both are in their
fifties, and both have significantly more than seven years of
relevant legal experience. One is Kleber, who does not
currently have a job with the defendant. The other already has
a job with the defendant but wants a transfer or promotion to
the senior counsel position. Both are turned down because
they have more than the maximum seven years of experience.
According to the defendant’s interpretation of paragraph
(a)(2), the internal applicant can sue for a disparate impact
violation, but the external one cannot.
That result would be arbitrary and even baffling,
especially under a statute with the stated purpose “to prohibit
arbitrary age discrimination in employment.” 29 U.S.C.
§ 621(b). And this view depends entirely on the assumption
that the statutory phrase “otherwise adversely affect his
status as an employee” cannot possibly be applied to someone
who is, because of the challenged employment practice,
completely denied any status as an employee. We doubt that
when the ADEA was enacted, “a reasonable person
conversant with applicable social conventions would have
understood” the ADEA as drawing the line the defendant
proposes here. See John F. Manning, What Divides Textualists
from Purposivists?, 106 Colum. L. Rev. 70, 77 (2006); accord In
re Sinclair, 870 F.2d 1340, 1342 (7th Cir. 1989).
The problems with the defendant’s interpretation do not
end there. If the statute actually drew this arbitrary line
between inside and outside applicants, still further arbitrary
line‐drawing would be needed. Suppose the applicant is
currently employed by a sister subsidiary of the employer.
12 No. 17‐1206
Does she have “status as an employee” so that she could
assert a disparate impact claim? Or suppose the applicant was
recently laid off by the employer and challenges its failure to
recall her. Or suppose the applicant currently has a temporary
position as an independent contractor through a temporary
employment agency. We see no arguable policy reason to
exclude any of these applicants from the disparate impact
protection of paragraph (a)(2).
The defendant and other proponents of the no‐outsideapplicants
interpretation of paragraph (a)(2) have not offered
a reason why Congress might have chosen to allow the inside
applicant but not the outside applicant to assert a disparate
impact claim.3 We have tried, too, but cannot imagine a
3 The amicus supporting the defendant does not address this inside‐v.‐
outside‐applicant problem. Instead it offers policy arguments on two
different points—why Congress may have intended the ADEA’s coverage
to be narrower than that of Title VII, and what might happen in the
business world if this court agrees with plaintiff Kleber. See App. Dkt. 19.
Both points have already been addressed by the Supreme Court in Smith.
Because the kinds of discrimination they seek to prohibit are different, the
ADEA has both broader affirmative defenses and more specific disparate
impact claim requirements for the plaintiff than Title VII. Together these
elements mean that disparate impact claims under the ADEA must both
identify a specific “test, requirement, or practice … that has an adverse
impact on older workers” and, where applicable, overcome the rebuttal
that the practice is “based on reasonable factors other than age.” Smith,
544 U.S. at 241. Hiring programs that usually cater to young people (e.g.,
those for recent college graduates) would be problematic under Smith only
if they used specific and unreasonable practices that in the aggregate
tended to have adverse impacts on applicants over 40. See also Hodgson v.
Approved Personnel Service, Inc., 529 F.2d 760, 766 (5th Cir. 1975) (observing
that ADEA is not violated by an “advertisement directed to ‘recent
graduates’ as part of a broad, general invitation” to apply, provided there
No. 17‐1206 13
plausible policy reason for drawing that arbitrary line. We
recognize, of course, that Congress can and often does draw
arbitrary lines when it wants to do so. When it does, we
enforce those lines, absent constitutional problems. See, e.g.,
Stephens v. Heckler, 766 F.2d 284, 286 (7th Cir. 1985) (Congress
can dictate outcomes even though “there is no shortage of
arbitrariness in disability cases”); First Chicago NBD Corp. v.
Comm’r of Internal Revenue, 135 F.3d 457, 460 (7th Cir. 1998)
(“arbitrariness is everywhere in the tax code, so that an
approach to interpretation that sought to purge the arbitrary
from the code would be quixotic”).
But when courts interpret statutory language that is less
than crystalline, it is worth keeping in mind the practical
consequences of the argued interpretations. See, e.g., Graham
County, 559 U.S. at 283, 299–301 (False Claims Act); Gustafson
v. Alloyd Co., Inc., 513 U.S. 561, 564, 578 (1995) (Securities Act
of 1933); see also, e.g., Kennedy v. Chemical Waste Mgmt., Inc.,
79 F.3d 49, 51 (7th Cir. 1996) (Americans with Disabilities Act);
Martin v. Luther, 689 F.2d 109, 114 (7th Cir. 1982) (reaching
conclusion about parole revocation “supported by common
sense and an assessment of the practical consequences, which
naturally guide our interpretation of legislative enactments”).
B. Assumptions of the ADEA’s Drafters
Another important guide for understanding why the
better reading of 29 U.S.C. § 623(a)(2) allows disparate impact
claims by outside job applicants comes from consulting the
purpose of the statute in more detail. As we explained in In re
Sinclair with respect to the bankruptcy code, this requires
is no “implication that persons older than the normal ‘recent graduate’”
are disfavored).
14 No. 17‐1206
looking at the circumstances surrounding the enactment at
issue:
An unadorned “plain meaning” approach to
interpretation supposes that words have meanings
divorced from their contexts—linguistic, structural,
functional, social, historical. Language is a process of
communication that works only when authors and
readers share a set of rules and meanings. In re Erickson,
815 F.2d 1090 (7th Cir. 1987). What “clearly” means one
thing to a reader unacquainted with the circumstances
of the utterance—including social conventions
prevailing at the time of drafting—may mean
something else to a reader with a different
background. Legislation speaks across the decades,
during which legal institutions and linguistic
conventions change. To decode words one must
frequently reconstruct the legal and political culture of
the drafters. Legislative history may be invaluable in
revealing the setting of the enactment and the
assumptions its authors entertained about how their
words would be understood. It may show, too, that
words with a denotation “clear” to an outsider are
terms of art, with an equally “clear” but different
meaning to an insider. It may show too that the words
leave gaps, for short phrases cannot address all human
experience; understood in context, the words may
leave to the executive and judicial branches the task of
adding flesh to bones.
870 F.2d at 1342.
There can be no doubt that Congress enacted the ADEA to
address unfair employment practices that make it harder for
No. 17‐1206 15
older people to find jobs. The ADEA is now more than 50 years
old. It has been amended numerous times, but the disparate
impact language we address here has not changed since the
initial enactment in 1967. See Pub. L. 90‐202, § 4(a)(2), 81 Stat.
603 (1967).
We know from the text of the ADEA itself that Congress
set out to address “the incidence of unemployment, especially
long‐term unemployment” among older workers. 29 U.S.C.
§ 621(a)(3). Congress was “especially” concerned about the
difficulty older workers faced in trying to “regain
employment when displaced from jobs”—in other words,
when older workers were applying for jobs. See § 621(a)(1).
Unemployment ends when a person who is not currently
employed applies successfully for a job. As the ADEA
provides, “it is … the purpose of this chapter to promote
employment of older persons based on their ability rather
than age.” § 621(b). These findings do not specifically use the
term “job applicants,” but we know from the reference to
“regain employment” and from the 1965 Department of Labor
report that was the catalyst for the ADEA—known as the
Wirtz Report—that Congress had job applicants very much in
mind.
In 1964, Congress ordered the Department of Labor to
recommend “legislation to prevent arbitrary discrimination
in employment because of age.” The result was the Wirtz
Report. U.S. Department of Labor, The Older American
Worker: Age Discrimination in Employment 1 (1965),
reprinted in Employment Problems of Older Workers: Hearings on
H.R. 10634 and Similar Bills Before the Select Subcomm. on Labor
of the H. Comm. on Educ. and Labor, 89th Cong. 201–387 (1966).
The Supreme Court has repeatedly treated the Wirtz Report
16 No. 17‐1206
as an authoritative guide in interpreting the ADEA. See Smith
v. City of Jackson, 544 U.S. 228, 238 (2005) (“we think the history
of the enactment of the ADEA, with particular reference to the
Wirtz Report, supports the pre‐Hazen Paper consensus
concerning disparate‐impact liability”); General Dynamics
Land Systems, Inc. v. Cline, 540 U.S. 581, 587, 590 (2004); EEOC
v. Wyoming, 460 U.S. 226, 230–32 (1983), abrogated in part on
other grounds, Garcia v. San Antonio Metro. Transit Auth., 469
U.S. 528 (1985).
The Wirtz Report sought to explain the role of age and age
discrimination “as a factor in the unemployment of older
workers.” Wirtz Report at 3. This discrimination, the report
found, was not necessarily the result of “any employer malice,
or unthinking majority, but from the ruthless play of wholly
impersonal forces,” i.e., the interaction between technological
progress and stereotypes and assumptions about older
workers. Id.
Those stereotypes and assumptions, the department
found, led to “hiring practices that take the form of specific
age limits applied to older workers as a group.” Id. at 5. Age
limits for job applicants were so prevalent in the 1960s that
“[a]lmost three out of every five employers” surveyed had an
age limit for “new hires which they apply without
consideration of an applicant’s other qualifications.” Id. at 6.
The Wirtz Report found that a “significant proportion of the
age limitations presently in effect ... have been established
without any determination of their actual relevance to job
requirements, and are defended on grounds apparently
different from their actual explanation.” Id. at 7. These limits
caused a significant number of older workers to find
themselves among the long‐term unemployed, unable but
No. 17‐1206 17
still wanting to provide for a life and standard of living above
the subsistence floor of public assistance programs:
There is, in this connection, no harsher verdict in most
men’s lives than someone else’s judgment that they are
no longer worth their keep. It is then, when the answer
at the hiring gate is “You’re too old,” that a man turns
away, in [a] poet’s phrase, finding “nothing to look
backward to with pride, nothing to look forward to
with hope.”
Id. at 1. This discrimination added, in the report’s estimation,
hundreds of millions of dollars in public expense due to
unemployment insurance payments that may not have been
necessary. See id. at 18.
The Wirtz Report also addressed earlier voluntary efforts
like “studies, information and general education” campaigns
directed at ending the “persistent and widespread use of age
limits in hiring.” Id. at 21. The “possibility of new nonstatutory
means of dealing with such arbitrary discrimination has been
explored,” the report declared, and as of the time of the
report, “[t]hat area is barren.” Id. Some states had moved
ahead and enacted “statutes prohibiting discrimination in
employment on the basis of age,” and their success suggested
the primary solution—for the federal government to adopt “a
national policy with respect to hiring on the basis of ability
rather than age” that would not be subsumed into other antidiscrimination
efforts. Id. at 21–22; see also General Dynamics,
540 U.S. at 587 (explaining that arbitrary employment
distinctions “including … age ceilings on hiring” helped
inspire the “call for a federal legislative remedy”). That
national policy was, of course, adopted in the ADEA. The
Wirtz Report and the ADEA are as much about the unfairness
18 No. 17‐1206
of the hiring market for unemployed older workers as about
anything else.
To adopt the defendant’s reading of paragraph (a)(2), we
would have to find that the ADEA’s protection of the
“employment opportunities” of “any individual” prohibits
employment practices with disparate impacts in firing,
promoting, paying, or managing older workers, but not in
hiring them. Congress, as shown by both the Wirtz Report
itself and later interpretations of it, was indisputably
concerned about all of these forms of discrimination. Wirtz
Report at 21–22; see also Employment of Older Workers, 111
Cong. Rec. 15518, 15518–19 (1965) (describing Wirtz Report as
urging “a clear, unequivocal national policy against hiring
that discriminates against older workers” and referring to
“job openings,” and “applicants over 45”); EEOC v. Wyoming,
460 U.S. at 231 (observing that Wirtz Report concluded
“arbitrary age discrimination was profoundly harmful …
[because] it deprived the national economy of the productive
labor of millions … [and] substantially increased costs in
unemployment insurance and federal Social Security
benefits” for older workers who could not land a job).
These signals from the Wirtz Report help reveal the
assumptions that the ADEA’s “authors entertained about how
their words would be understood.” Sinclair, 870 F.2d at 1342.
A central goal—arguably the most central goal—of the statute
was to prevent age discrimination in hiring. And Congress
and the Wirtz Report made clear that the problem stemmed
not just from explicit bias against older workers (i.e., disparate
treatment), but also from “[a]ny formal employment
standard” neutral on its face yet with adverse effects on
otherwise qualified older applicants. Wirtz Report at 3; see
No. 17‐1206 19
also Smith, 544 U.S. at 235 n.5. Those neutral standards and
other thoughtless (or even well‐intentioned) employment
policies and practices can be addressed only with a disparate
impact theory under § 623(a)(2). In fact, the Wirtz Report
singled out seniority systems and employer policies of
promoting‐from‐within as well‐intentioned but harmful to
older workers. Wirtz Report at 2, 15. And the report made
clear that the older people who suffer the disparate impact
from such practices are those trying to get hired in the first place.
The report explained that despite the beneficial effects of such
policies, “ironically, they sometimes have tended to push still
further down the age at which employers begin asking
whether or not a prospective employee is too old to be taken on.” Id.
at 2 (emphasis added).
Against this evidence of contemporary understandings,
the defendant offers essentially nothing to support the
improbable view that the Act outlawed employment practices
with disparate impacts on older workers, but limited that
protection to those already employed by the employer in
question. To the extent § 623(a)(2) could be considered
ambiguous on the issue, the evidence of purpose weighs
heavily in favor of allowing disparate impact claims by job
applicants regardless of whether they come from inside or
outside the company. Outside job applicants are a very large
group of the ADEA’s intended beneficiaries, and they are
protected by the text of both its disparate treatment and
disparate impact provisions.
III. Comparisons and Precedent Regarding the Language of
§ 623(a)(2)
With that understanding of the text, the practical
consequences of the parties’ alternative readings of paragraph
20 No. 17‐1206
(a)(2), and the report that was the catalyst for the Act, we
return to paragraph (a)(2)’s language and examine it in light
of related statutory provisions and past judicial
interpretations. The parties draw our attention to the
following circumstances. First, Title VII’s parallel provision is
now slightly different because it was amended in 1972 to add
“or applicants for employment” after Griggs v. Duke Power Co.,
401 U.S. 424 (1971). Second, nearby provisions of the ADEA
refer more directly to job applicants. Third, a 1994 decision of
our court, since abrogated by Smith v. City of Jackson, 544 U.S.
228 (2005), categorically rejected disparate impact theories
under the ADEA. None of these points changes our
conclusion, drawn from statutory text, practical
consequences, purpose, and history, that the ADEA’s
disparate impact provision protects both inside and outside
job applicants.
A. The Title VII Parallel
1. Differences Between Today’s Title VII and the ADEA
Section 623(a)(2) tracks very closely a parallel provision
for race, sex, religious, and national origin discrimination in
Title VII of the Civil Rights Act of 1964, with one notable
difference—an explicit reference to job applicants. Title VII
now provides in relevant part:
It shall be an unlawful employment practice for an
employer—
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
No. 17‐1206 21
such individualʹs race, color, religion, sex, or national
origin; or
(2) to limit, segregate, or classify his employees or
applicants for employment 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
individualʹs race, color, religion, sex, or national origin.
42 U.S.C. § 2000e–2(a) (emphasis added).
On the surface, it would seem easy to argue that the
language difference between the disparate impact provisions
in Title VII and the ADEA shows different meaning with
respect to job applicants. The problem with that argument is
that the “or applicants for employment” language was added
to Title VII in 1972, after the Supreme Court decided Griggs v.
Duke Power, 401 U.S. at 431, which recognized disparate
impact claims for practices affecting both outside job
applicants and employees seeking promotions and transfers.
When Griggs was decided, the statutory language in Title VII
was the same as the language we examine here—it did not
include the phrase “applicants for employment.” See 401 U.S.
at 426 n.1, quoting original version of § 2000e–2(a). That’s why
Smith described Griggs as “a precedent of compelling
importance” in interpreting § 623(a)(2). 544 U.S. at 234. In
Griggs, the Supreme Court held unanimously that the
disparate impact provision in Title VII applied to job
applicants.
In Griggs, the employer required either a high school
diploma or a minimum score on a general intelligence test to
screen all job applicants, whether they were outside
22 No. 17‐1206
applicants or current employees seeking better jobs. The
Court framed the issue as whether an employer could require
a high school education or passing a general intelligence test
as “a condition of employment in or transfer to jobs,” 401 U.S.
at 426, signaling that the disparate impact provision applied
to both current employees and outside job applicants. The
opinion also referred to the “hiring and assigning of
employees” and to “tests or criteria for employment or
promotion.” Id. at 427, 431 (emphasis added). Even more
clearly, the Court wrote:
Congress has now provided that tests or criteria for
employment or promotion may not provide equality of
opportunity merely in the sense of the fabled offer of
milk to the stork and the fox. On the contrary, Congress
has now required that the posture and condition of the
job‐seeker be taken into account. It has—to resort again
to the fable—provided that the vessel in which the milk
is proffered be one all seekers can use. The Act
proscribes not only overt discrimination but also
practices that are fair in form, but discriminatory in
operation.
Id. at 431 (emphasis added). There is no sign in the Griggs
opinion that the Court saw a relevant difference between
current employees seeking a promotion or transfer and job
applicants from outside the company.
2. Griggs and the 1972 Amendment to Title VII
The conclusion in Griggs was not altered by the 1972
amendment to Title VII. The year after Griggs, Congress
enacted the Equal Employment Opportunity Act of 1972. It
was a major bill that strengthened the powers of the EEOC
No. 17‐1206 23
and extended coverage of Title VII to state and local
government employees, teachers, and federal employees. See
Conf. Rep. on H.R. 1746, reprinted in 92nd Cong., 118 Cong.
Rec. 7166, 7166–69 (March 6, 1972). One minor provision of
the 1972 Act amended Title VII’s § 2000e‐2(a)(2) to add the
express reference to “applicants for employment.” Pub. L.
No. 92‐261, § 8(a), 86 Stat. 109 (1972). There was no indication,
though, that the particular amendment was intended to
change the law as spelled out in Griggs. In fact, the conference
committee’s report to the Senate explained that the addition
in § 8(a) was “merely declaratory of present laws.” See 118
Cong. Rec. at 7169. Congress included this subsection just to
“make it clear that discrimination against applicants for
employment … is an unlawful employment practice” under
both clauses of Title VII’s § 2000e‐2(a). 118 Cong. Rec. at 7169.4
Confirming that point, the key committee reports do not
discuss § 8(a) as a significant provision. If Congress had
thought it was creating new law by extending disparate
impact protection from current private‐sector employees to
reach all private‐sector job applicants as well, that surely
would have been significant enough to mention in the
4 This conference committee report to the Senate was the final report
on § 8(a) of H.R. 1746, which added “or applicants for employment” to 42
U.S.C. § 2000e‐2(a)(2). See 86 Stat. 103, 109 (approved March 24, 1972). The
conference report essentially repeated an earlier Senate report from the
previous October that said the § 8(a) and (b) amendments would “make it
clear that discrimination against applicants for employment … is an
unlawful employment practice” and also that these particular
amendments “would merely be declaratory of present law.” S. Rep. 92–
415 at 43 (Oct. 28, 1971). That earlier Senate report mentioned Griggs,
though only in passing in a different section about federal government
employment. See id. at 14.
24 No. 17‐1206
committee reports. The Senate reports contained the brief
“merely declaratory” description of § 8(a) explained above.
The House version of the conference committee report from a
few days before contained the text of § 8(a) but provided no
explanation of it. See H.R. Rep. 92–899 at 8, 19–20, reprinted
in 92nd Cong., 118 Cong. Rec. 6643, 6645, 6648 (March 2,
1972). An earlier House report summarized the bill’s major
provisions, which were directed at different issues. H.R. Rep.
92–238 at 1, 4 (June 2, 1971), reprinted in 1972 U.S.C.C.A.N.
2137, 2137, 2140 (explaining the “basic purpose of H.R. 1746
is to grant the Equal Employment Opportunity Commission
authority to issue … judicially enforceable cease and desist
orders” as well as to extend protections to State and local
government employees, Federal employees, and privatesector
employees and labor union members at smaller
organizations); id. at 8–26, reprinted at 2143–60 (summarizing
these provisions). With the focus on these other issues, the
language in § 8(a) was not mentioned at all in the explanation.
It appears only in passing in the section‐by‐section analysis.
See id. at 20–22, 30, reprinted at 2155–57, 2165. The
explanation quotes Griggs at length to emphasize the
importance of disparate impact protections for “the job
seeker” before noting that the “provisions of the bill are fully
in accord with the decision of the Court.” Id. at 21–22,
reprinted at 2156–57, quoting Griggs, 401 U.S. at 431.5
5 In a different section, the earlier House report reached the same
conclusion about Griggs that we reach here: it was a case “where the Court
held that the use of employment tests as determinants of an applicant’s job
qualification … was in violation of Title VII if such tests work a
discriminatory effect in hiring patterns” without a “showing of an
No. 17‐1206 25
As the Supreme Court has taught, Congress “does not
alter the fundamental details of a regulatory scheme in vague
terms or ancillary provisions—it does not, one might say, hide
elephants in mouseholes.” Whitman v. American Trucking
Ass’ns, 531 U.S. 457, 468 (2001). In addition, there is no
indication from the text of the 1972 Act amending Title VII
that Congress intended that Act to serve in any way as a
statement about the ADEA. See Pub. L. No. 92‐261, 86 Stat.
103–13 (1972).
Nevertheless, the defendant argues that we should infer
from this 1972 amendment to Title VII that in clarifying
existing Title VII law after Griggs, and consistent with it,
Congress was silently endorsing a narrower interpretation of
the ADEA. This negative inference is not justified. The ADEA
was never mentioned in the 1972 Act itself or in the conference
report describing it. The 1972 Act was the Equal Employment
Opportunity Act of 1972, and it amended only provisions of
Title VII of the 1964 Act. See University of Texas Southwestern
Medical Center v. Nassar, 570 U.S. 338, 356 (2013) (“In light of
Congress’ special care in drawing so precise a statutory
scheme [like Title VII], it would be improper to indulge
respondent’s suggestion that Congress meant to incorporate
the default rules that apply only when Congress writes a
broad and undifferentiated statute.”); Brown v. Gardner, 513
U.S. 115, 121 (1994) (finding that “congressional silence” after
regulatory interpretation lacked “persuasive significance”
about statutory meaning), quoting Central Bank of Denver, N.A.
v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 187 (1994).
overriding business necessity.” H.R. Rep. 92–238 at 8, reprinted at 1972
U.S.C.C.A.N. at 2144 (emphasis added).
26 No. 17‐1206
3. Applying Griggs in This Context
In fact, Griggs has special and continuing relevance to the
ADEA in this context. When the Supreme Court held in Smith
v. City of Jackson that § 623(a)(2) authorizes disparate impact
claims, the Court relied heavily on the Griggs interpretation of
the essentially identical language from Title VII before the
1972 amendments. 544 U.S. at 234–37. Smith also cited with
approval circuit decisions allowing disparate impact age
claims by job applicants. See 544 U.S. at 237 n.8, citing with
approval Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1423–
24 (10th Cir. 1993) (group of laid‐off grocery warehouse
workers applying for jobs with new employer); Wooden v.
Board of Education of Jefferson County, 931 F.2d 376, 377 (6th Cir.
1991) (applicant for full‐time teaching positions).
Other earlier cases not cited in Smith had also allowed
disparate impact age claims by job applicants. E.g., Lowe v.
Commack Union Free School Dist., 886 F.2d 1364, 1365–70 (2d
Cir. 1989) (laid‐off teachers later re‐applied but not hired);
Geller v. Markham, 635 F.2d 1027, 1030 (2d Cir. 1980)
(upholding jury award for teacher applicant temporarily
hired, then passed over in favor of 25‐year‐old due to “costcutting
policy”); Leftwich v. Harris‐Stowe State College, 702 F.2d
686, 689–90 (8th Cir. 1983) (faculty member forced to re‐apply
for job not rehired).
In addition, around the time of these earlier cases, the
Supreme Court cited with approval another circuit’s approach
to an ADEA claim involving job applicants. Western Air Lines,
Inc. v. Criswell, 472 U.S. 400, 412–17 (1985), discussing Usery v.
Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976). The
employer in Tamiami Trail considered applications only from
people between 25 and 40 years of age, the idea being “that
No. 17‐1206 27
dealing with each applicant over 40 years of age on an
individual basis by considering his particular functional
ability… would be impractical.” Tamiami Trail, 531 F.2d at 227–
28. The Tamiami Trail court did not specify whether this noapplicants‐
over‐40 policy violated § 623(a)(1), § 623(a)(2), or
both, but the Secretary of Labor, representing those aggrieved
by the policy, challenged both the policy itself and its
application to particular job‐seekers. See id. at 226–27, 226–27
n.1 & n.2. In approving of the “Tamiami standard” for the bona
fide occupational qualification defense, the Supreme Court
accepted without comment the notion that Tamiami Trail’s
hiring policy ran afoul of § 623(a) absent other statutory
justifications. See Western Air Lines, 472 U.S. at 416–17; see also
Hodgson v. Greyhound Lines, Inc., 499 F.2d 859, 860, 863, 865 (7th
Cir. 1974) (undertaking similar analysis of Secretary’s claim
brought under both (a)(1) and (a)(2), and eventually
concluding that employer had “established that its hiring
policy is not the result of an arbitrary belief lacking in
objective reason or rationale”). Given all the variations on the
employee‐v.‐applicant question presented by these circuit
cases in the decades between Griggs and Smith, we believe that
if the distinction the defendant urges here actually existed, the
Supreme Court would have mentioned it.
The defendant responds to the Griggs argument in two
principal ways. First, it returns to Griggs itself to argue all of
its plaintiffs were in fact already employed by Duke Power
and were only seeking better jobs. So, according to the
defendant, Griggs is limited to fact patterns involving
incumbent employees. We are not persuaded. Even if the
Griggs plaintiffs themselves were already employees, the
Supreme Court did not limit its holding in Griggs to that
particular fact pattern, as we explained above. The Court saw
28 No. 17‐1206
no reason to read the paragraph (a)(2) language in Title VII as
allowing discriminatory tests for hiring while outlawing them
for promotion decisions.6
B. Our Precedent Abrogated by Smith
Second, the defendant argues that a 1994 decision of this
court, which categorically rejected all disparate impact claims
under the ADEA, still survives today, at least in part. See
E.E.O.C. v. Francis W. Parker School, 41 F.3d 1073, 1078 (7th Cir.
1994). The parties agree that the approach in Francis Parker
School was abrogated in Smith, which resolved a circuit split
and held that § 623(a)(2) allows disparate impact claims. 544
U.S. at 237, 237 nn.8 & 9. Smith concluded in a case brought
by employees that “the ADEA does authorize recovery in
‘disparate‐impact’ cases comparable to Griggs.” Id. at 232. But
because the plaintiff in Francis Parker School was a job
applicant and not an employee, the defendant argues here
that enough of Francis Parker School survives to defeat Kleber’s
disparate impact claim. See 41 F.3d at 1075, 1077–78.
We first describe these three cases before explaining why
Smith and not Francis Parker School controls this case. In Francis
Parker School, a sixty‐three year old’s application for a teaching
job was not considered because, based on his experience, he
would have qualified for a salary higher than the school could
6 The defendant makes a similar argument about Smith v. City of
Jackson, whose plaintiffs were also incumbent employees. See 544 U.S. at
230 (describing petitioners as “police and public safety officers employed
by the city of Jackson, Mississippi” who complained of allegedly
discriminatory “salary increases received in 1999”). This argument fails
for largely the same reason. Though Smith did not expressly address the
employee‐v.‐applicant question, nothing in the controlling opinions in
Smith indicates that its reasoning does not extend to job applicants.
No. 17‐1206 29
afford. 41 F.3d at 1075. Without actually confirming with the
applicant that his salary requirements would indeed be too
high, the school moved ahead with other candidates. On
behalf of the applicant, the EEOC appealed summary
judgment in favor of the school. We affirmed, adopting a
categorical rule rejecting disparate impact claims under the
ADEA. Id. at 1075–77, 1078.7
As we describe above at pages 21–23, Griggs involved the
“hiring and assigning of employees” at a power plant
operated by Duke Power. 401 U.S. at 427. The company had
imposed educational and testing “requirement[s] for new
employees” and transferring employees seeking employment
in more preferable divisions. Id. at 427–28. Although the
Griggs plaintiffs themselves already worked at the plant, the
Supreme Court did not limit its analysis in light of that fact.
The Court explained more generally that “tests or criteria for
employment or promotion” could be challenged if they were
“fair in form, but discriminatory in operation.” Id. at 431
(emphasis added).
Faced with a case brought by municipal employees, the
Smith Court applied Griggs to the identical language of the
ADEA and held “that the ADEA does authorize recovery in
‘disparate‐impact’ cases comparable to Griggs.” 544 U.S. at
232. Thus the key question is whether a case involving an
7 We found support for this position in a then‐recent Supreme Court
opinion. See Francis Parker School, 41 F.3d at 1076–78, discussing Hazen
Paper Co. v. Biggins, 507 U.S. 604 (1993). Eleven years later Smith rejected
the argument, concluding that “there is nothing in our opinion in Hazen
Paper that precludes an interpretation of the ADEA that parallels our
holding in Griggs.” 544 U.S. at 238.
30 No. 17‐1206
outside job applicant is “comparable to Griggs,” and thus
eligible for disparate impact recovery. See id. at 232.
The defendant and courts taking the defendant’s view
respond by arguing that Griggs should be narrowed to
“transferees” inside of companies, i.e., internal applicants,
primarily by citing brief mentions of Griggs in later opinions.
See Appellee Br. at 26–28; see also Villarreal v. R.J. Reynolds
Tobacco Co., 839 F.3d 958, 969 (11th Cir. 2016) (en banc) (finding
that Griggs addressed only “promotion and transfer
policies”). In passing in some later opinions, the Supreme
Court used the terms “employees” or ”transferees” while
succinctly outlining the mechanics of Duke Power’s
complicated testing policy. E.g., Albemarle Paper Co. v. Moody,
422 U.S. 405, 426 (1975) (in Griggs, “all transferees … were
required to attain national median scores on two tests”).
These later opinions, however, did not try to limit the
holding of Griggs to cases involving current employees, nor
did they lose sight of the broader implications that Griggs had
for future plaintiffs. See, e.g., id. at 427 (“Like the employer in
Griggs,” the paper company defendant required “[a]pplicants
for hire” to achieve certain test scores); id. at 425 (after Griggs,
the “complaining party or class” must show “that the tests in
question select applicants for hire or promotion in a racial
pattern”) (emphasis added). Nor do these later references
undermine the signals Griggs sent about the sweeping
implications of its reasoning for the hiring process
nationwide. See 401 U.S. at 434 (“the very purpose of title VII
is to promote hiring on the basis of job qualifications, rather
than on the basis of race or color”), quoting 110 Cong. Rec.
7247 (1964); id. at 434–35 n.11 (to that end, “nothing in the Act
prevents employers from requiring that applicants be fit for the
No. 17‐1206 31
job”) (emphasis added). The holding and reasoning in Griggs
were not narrow and focused on those particular plaintiffs;
the opinion is broad and effects‐oriented. See, e.g., id. at 429–
31 (“Congress has now required that the posture and
condition of the job‐seeker be taken into account … [i]f an
employment practice which operates to exclude Negroes
cannot be shown to be related to job performance, the practice
is prohibited.”). Limiting Griggs to its facts is not justified.
The Supreme Court itself has repeatedly rejected that
narrow approach. Smith recognized the import of Griggs for
the ADEA when it explained paragraph (a)(2)’s text as
focusing on “the effects of the action” and not the employer’s
motivations. 544 U.S. at 234, 236. Perhaps most important, in
recognizing that the “scope of disparate‐impact liability
under ADEA is narrower than under Title VII,” the Supreme
Court did not mention Griggs at all. See id. at 240–43. Nor did
it later find an inside‐v.‐outside applicant limiting principle in
Griggs when that case’s limits were examined in a Fair
Housing Act case. See Texas Dep’t of Housing and Community
Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507,
2517 (2015) (discussing business necessity defense and
“hiring criteria”); see also Connecticut v. Teal, 457 U.S. 440, 446
(1982) (although requirements in Griggs “applied equally to
white and black employees and applicants, they barred
employment opportunities to a disproportionate number of
blacks” and were therefore invalid); Dothard v Rawlinson, 433
U.S. 321, 329 (1977) (explaining that Griggs and Albemarle
Paper “make clear that to establish a prima facie case of
discrimination, a plaintiff need only show that the facially
neutral standards in question select applicants for hire in a
significantly discriminatory pattern”).
32 No. 17‐1206
Thus, since Smith resolved the disparate impact question
on the basis of Griggs, and since Griggs was about both
promotion and hiring criteria, this hiring case is “comparable
to Griggs” and controlled by it, without reference to Francis
Parker School. See Smith, 544 U.S. at 232.8
C. Comparing § 623(a)(2) to Other ADEA Provisions
1. Summary
The parties also offer textual arguments that compare
§ 623(a)(2) to several neighboring provisions in the ADEA.
The unlawful employment practices section of the ADEA
begins with three subsections prohibiting age discrimination
in employment by three different kinds of actors—private and
public employers, employment agencies, and labor
organizations. 29 U.S.C. § 623(a)–(c); see also § 630(b)
8 There is another reason why Francis Parker School does not control
this case—it had a subtle factual error in its discussion of Griggs. In
rejecting the reasoning in Griggs, the Francis Parker School opinion
characterized Griggs as interpreting 42 U.S.C. § 2000e‐2 as it existed in
1994. See 41 F.3d at 1077–78. This observation overlooked the timing of
Griggs, decided in 1971, before the Title VII language was changed in 1972
to expressly include applicants for employment. Compare 42 U.S.C.
§ 2000e‐2(a)(2) (1994), with Griggs, 401 U.S. at 426 n.1 (1971). Francis Parker
School found this textual difference between the ADEA and Title VII
meaningful because it assumed that Griggs had applied 1994’s Title VII.
But in fact, Griggs interpreted the same language at issue in Francis Parker
School and here—which does not refer expressly to job applicants—so
Griggs has special persuasive force in this analysis. Compare Griggs, 401
U.S. at 424 n.1, with 29 U.S.C. § 623(a)(2) (2016). In any event, Griggs is
now settled law in the ADEA context given its treatment in Smith and the
later treatment of Smith in Meacham v. Knolls Atomic Power Lab., 554 U.S.
84, 95 (2008) (confirming that § 623(a)(2) covers employment practices
with disparate impacts on older workers). We must apply that reasoning
here. See Inclusive Communities Project, 135 S. Ct. at 2518.
No. 17‐1206 33
(defining “employer”). Subsections (a), (b), and (c) are all
worded slightly differently. In the following subsection (d),
the ADEA prohibits retaliation by any of these private‐sector
actors. In another section, the ADEA provides for a different
and even broader policy prohibiting age discrimination in the
federal government employment context. § 633a(a).
Remember that the text of § 623(a)(2)—the provision we
interpret here—does not specifically include or obviously
exclude applicants for employment in such terms. Some other
ADEA provisions do use the term “applicant(s) for
employment.” See §§ 623(c)(2), 633a(a). The question is
whether the absence of this phrase in the private employerfacing
provisions of (a)(2) is meaningful. See Brown, 513 U.S.
at 118–19 (engaging in “[t]extual cross‐reference” to ascertain
meaning).
The three comparisons from within the ADEA are the
labor union provision in § 623(c)(2), the retaliation provision
in § 623(d), and the federal government employee provision
in § 633a(a). Here again is the text of § 623(a)(2):
It shall be unlawful for an employer—…
(2) 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 individualʹs age… .
The labor union provision prohibits labor unions from
refusing “to refer for employment any individual” and from
adversely affecting the status of any “applicant for
employment, because of such individual’s age.” § 623(c)(2).
The retaliation provision makes it unlawful for “an employer
34 No. 17‐1206
to discriminate against any of his employees or applicants for
employment” in retaliation for opposing unlawful practices
or participating in the investigation or litigation of an age
discrimination complaint. § 623(d). Finally, the federal
government employee provision declares that “[a]ll
personnel actions affecting employees or applicants for
employment … shall be made free from any discrimination
based on age.” § 633a(a).
Courts often presume that a difference in statutory words
signals a difference in Congressional intent, but we must
consider here “whether Congress intended its different words
to make a legal difference.” Burlington Northern & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 62–63 (2006) (comparing the limiting
words in Title VII’s anti‐discrimination provision with the
lack of limiting words in its broader anti‐retaliation
provision). The conclusion does not follow automatically
from any difference in words. We need some basis beyond
simple word‐matching to believe that these particular
differences in language were intended to distinguish the
ADEA’s disparate impact provision from these other
provisions.
In construing workplace discrimination laws, “Congress’
special care in drawing so precise a statutory scheme” must
be respected, and courts should exercise caution in drawing
inferences between provisions that have different scopes.
Nassar, 570 U.S. at 356. The Supreme Court has rejected
similar arguments for such sweeping negative inferences
about the ADEA itself, noting that “when construing the
broadly worded federal‐sector provision of the ADEA, [the]
Court refused to draw inferences from Congress’
amendments to the detailed private‐sector provisions.” Id.,
No. 17‐1206 35
describing Gomez‐Perez v. Potter, 553 U.S. 474, 486–88 (2008).
We should not draw these inferences too readily.
2. The Labor Union Provision
Interpreting the ADEA, the Court has also said that
“[n]egative implications raised by disparate provisions are
strongest” when those provisions were “considered
simultaneously” or enacted at the same time. Gomez‐Perez, 553
U.S. at 486, quoting Lindh v. Murphy, 521 U.S. 320, 330 (1997).
Meeting that description is the comparison of § 623(a)(2) with
the labor union provision, § 623(c). See Pub. L. 90‐202, § 4, 81
Stat. 603 (1967). They were enacted together and are close to
each other. But on closer examination, the labor union
provision’s phrase “refuse to refer for employment any
individual” stands out. This change in language reflects an
important substantive difference. Unlike most private
employers, labor organizations often serve as referral
agencies of sorts for job applicants, especially in markets
where union membership may be a condition of employment.
Under the original ADEA definition, one way a labor
organization would fall under its coverage would be to
“operate[] a hiring hall or hiring office which procures
employees for an employer.” Id. at § 11(e), 81 Stat. 606,
codified at 29 U.S.C. § 630(e). The fact that Congress included
special, detailed language in (c)(2)—prohibiting a labor
organization from adversely affecting an individual’s status
“as an applicant for employment”—to reflect a special
function of labor organizations tells us little about what the
36 No. 17‐1206
broader private sector (a)(2) language means in light of Nassar
and Gomez‐Perez.9
3. Retaliation Provision
The defendant also urges us to compare the disparate
impact provision in (a)(2) with the ADEA’s retaliation
provision, § 623(d). The retaliation provision was enacted at
the same time as (a)(2) and makes it “unlawful for an
employer to discriminate against any of his employees or
applicants for employment” as a consequence of their
opposition to unlawful practices or their involvement in the
9 Also, using this language to infer that private employers are
permitted to use practices with disparate impacts on older job applicants
would create a strange incongruity in the statute. All actors who regularly
recruit job applicants are specifically prohibited from engaging in age
discrimination. In 1967, Congress made it unlawful “for an employment
agency to fail or refuse to refer for employment, or otherwise to
discriminate against, any individual because of such individual’s age, or
to classify or refer for employment any individual on the basis of such
individual’s age.” See 29 U.S.C. §§ 623(b) and 630(c) (defining
“employment agency” as “any person regularly undertaking with or
without compensation to procure employees for an employer”); see also
Pub. L. 90‐202, §§ 4(b), 11(c), 81 Stat. 603, 606 (1967) (enacting these
provisions). To rule for the defendant on this ground, we would have to
conclude that the ADEA prohibits labor unions from imposing disparate
impacts on applicants, and prohibits anyone else who recruits employees
from “classify[ing]” applicants based on age, yet allows private employers
to use screening criteria to the detriment of older applicants as long as they
handle the applications themselves. This would be an odd reading,
especially in light of the Wirtz Report and the rest of the original section
4, where Congress showed an intent to group employers, employment
agencies, and labor organizations together with respect to retaliation, job
advertisements, and the use of bona fide occupational qualifications and
reasonable factors other than age. See Pub. L. 90‐202, § 4(d)–(f), 81 Stat. 603
(1967).
No. 17‐1206 37
age discrimination complaint and resolution process. Pub. L.
90‐202, § 4(d), 81 Stat. 603 (1967), codified at 29 U.S.C.
§ 623(d).
This provision refers to applicants for employment as
distinct from employees, but the comparison fails to shed
light on the meaning of paragraph (a)(2) specifically. First, it
is not clear that the enumeration in subsection (d) does
anything more than recognize that subsection (a) as a whole
unquestionably covers both employees and applicants—
paragraph (a)(1), of course, makes it unlawful for an employer
“to refuse to hire or to discharge any individual,” and we have
explained why (a)(2) applies to job applicants. Subsection (d)
extends retaliation protection to the same groups without any
obvious reference to the disparate impact provision of
paragraph (a)(2).
If it suggests anything useful here, the language in
subsection (d) suggests that the key phrase in paragraph (a)(2)
is the broad “any individual.” Later in the retaliation
provision, perhaps as a shorthand, subsection (d) repeats the
phrase “individual, member or applicant for membership”
twice, signaling in the provision that “individual” is the key
unit of analysis for retaliation by private sector employers and
employment agencies. See § 623(d); see also Sauzek v. Exxon
Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000) (noting that
§ 623(d) is directed at “any individual” in retaliation and
failure‐to‐rehire case).
Second, the retaliation provision is notable for what it does
not say. The defendant’s no‐outside‐applicants view would
find strength from this provision if it called out paragraph
(a)(2) specifically and if it prevented retaliation against “any
of his employees or internal applicants for employment,” or if
38 No. 17‐1206
it read “any of his employees or applicants for promotion or
transfer.” It does not say anything to that effect, however. The
plain text of the ADEA’s retaliation provision covers
employees and applicants, which as we describe above, is the
best way to understand the scope of paragraph (a)(2) as well.
4. The Federal Employee Provision
With respect to the federal employee provision, as in
Gomez‐Perez, the “relevant provisions were not considered or
enacted together.” 553 U.S. at 486. The federal employee
provision was added to the ADEA in 1974. Pub. L. 93‐259,
§ 15(a), 88 Stat. 74–75 (1974), codified at 29 U.S.C. § 633a(a).
The federal employee reference to applicants, added at a
different time, tells us little about what the original ADEA
(a)(2) language means. Gomez‐Perez indicates that the natural
comparator for ADEA’s federal government employee
provision is not § 623(a) but the federal government employee
provision of Title VII, upon which the 1974 ADEA
amendments were based. See Gomez‐Perez, 553 U.S. at 487,
discussing 29 U.S.C. § 633a and 42 U.S.C. § 2000e‐16(a).
“Congress decided not to pattern [ADEA’s federal
government employee provision] after § 623(a) but instead to
enact a broad, general ban on ‘discrimination based on age’”
like the Title VII federal‐sector provision. Id. at 488. The
Supreme Court thus told us that Congress was not thinking
of the private sector language in § 623(a)(2) when § 633a was
adopted, which undermines the negative inference that the
defendant seeks to draw from the comparison.
D. Conclusion
Given the statutory language in § 623(a)(2), the
interpretation of that language in Smith and virtually identical
No. 17‐1206 39
language in Griggs, and the absence of an apparent policy
rationale for barring outside job applicants from raising
disparate impact claims, we are not persuaded by the
defendant’s more subtle comparative arguments using
various other statutory provisions. Those differences do not
support the improbable and arbitrary distinction argued by
the defendant.
IV. Exhaustion of Administrative Remedies
Finally, defendant CareFusion offers an alternative
argument for affirmance. In the district court, the defendant
moved to dismiss the disparate impact claim on the
additional ground that Kleber failed to exhaust his
administrative remedies. It argued that Kleber’s EEOC charge
could not have notified the company that he alleged a practice
of discrimination against older workers since he charged that
“I was not hired” and therefore “I have been discriminated
against because of my age, 58.” Dkt. 22–1 at 8 (emphasis
added). The defendant renews this exhaustion argument on
appeal, but it is misplaced.
To be cognizable, ADEA claims must be “like or
reasonably related to the allegations of the charge and
growing out of such allegations.” Noreuil v. Peabody Coal Co.,
96 F.3d 254, 258 (7th Cir. 1996), quoting Jenkins v. Blue Cross
Mutual Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en
banc). Kleber’s charge could reasonably have prompted
CareFusion to consider the possible systemic effects of its
hard cap on experience, and in fact it did so. In its response to
the EEOC, appearing on the same page as a verbatim reprint
of Kleber’s allegation, CareFusion asserted that “the years of
experience required has nothing to do with an individual’s
age.” Dkt. 22–1 at 20. It highlighted the possibility that a
40 No. 17‐1206
middle‐aged individual could have “attended law school as a
second career” and then applied with between three and
seven years of experience. Id. Such an applicant “would have
been considered for the role.” Id. The argument shows that
CareFusion’s investigation of Kleber’s charge explicitly
considered the age‐related effects of screening applicants
based on maximum experience. Kleber’s EEOC charge gave
sufficient notice of his disparate impact claim.
Conclusion
Plaintiff Kleber is over the age of 40. Kleber alleges that his
job application was not considered because of a specific hiring
practice that discriminated in effect against older applicants
like him. Neither the language of § 623(a)(2) nor our
abrogated precedent in Francis Parker School bars his disparate
impact claim. The judgment of the district court is REVERSED
and the case is REMANDED to the district court for further
proceedings consistent with this opinion.10

10 Because this opinion could be seen as creating a conflict among the
circuits, despite Smith, 544 U.S. at 237 n.8 (citing with approval earlier
circuit cases allowing disparate impact claims by job applicants), it was
circulated before release to all judges in active service under Circuit Rule
40(e). A majority of judges in active service did not favor rehearing en
banc. Judges Flaum, Kanne, Sykes, and Barrett voted in favor of rehearing
en banc.
No. 17‐1206 41
BAUER, Circuit Judge, dissenting. I believe an ordinary
reading of the language found in ' 4(a)(2) of the Age
Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.
' 623(a), affirms the district court=s findings. This Court=s
reversal is an erroneous form of statutory interpretation that
requires writing in words that Congress chose not to include.
See Puerto Rico v. Franklin Cali. Tax‐Free Trust, 136 S. Ct. 1938,
1949 (2016) (A[O]ur constitutional structure does not permit
this Court to rewrite the statute that Congress has enacted.@)
(internal quotation marks omitted). While the judicial branch
is afforded the duty of determining the constitutionality of
statutes enacted by Congress, we are not afforded the right
to pencil in words Congress does not itself include. See Henson
v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017)
(A[W]hile it is of course our job to apply faithfully the law
Congress has written, it is never our job to rewrite a
constitutionally valid statutory text under the banner of
speculation about what Congress might have done had it
faced a question that, on everyone=s account, it never faced.@);
see also Magwood v. Patterson, 561 U.S. 320, 334 (2010).
AStatutory construction must begin with the language
employed by Congress and the assumption that the ordinary
meaning of that language accurately expresses the legislative
purpose.@ Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009)
(internal quotation marks omitted). It is important to keep in
mind that ACongress generally acts intentionally when it uses
particular language in one section of a statute but omits it in
another.@ Dep=t of Homeland Sec. v. MacLean, 135 S. Ct. 913, 919
(2015). Throughout the ADEA, Congress specifically used
Aemployees@ in some instances and Aapplicants for
employment@ in others. For example, ' 4(c)(2), which
prohibits labor organizations from acting, tracks the language
42 No. 17‐1206
from ' 4(a)(2), but adds Aapplicants for employment.@
Similarly, ' 4(d), which provides retaliation protections, also
extends this protection to Aapplicants for employment.@ As the
majority opinion admits, ' 4(a)(2) does not reference, in any
way, Aapplicants for employment,@ Aprospective employees,@
Ajob seekers,@ or any other terms that would allow us to
conclude that Congress intended to cover prospective
employees under the disparate impact provision. Conversely,
' 4(a)(1) specifically states, Ato fail or refuse to hire@ due to
one=s age, thus explicitly implicating job applicants. Given
Congress= omission of Aapplicants for employment@ in
' 4(a)(2), yet unquestionable inclusion of job applicants in
several other places throughout the ADEA, including the
section directly preceding ' 4(a)(2), I must conclude that
Congress intentionally excluded Aapplicants for employment@
in ' 4(a)(2) of the ADEA. Accordingly, I respectfully dissent.

Outcome: The judgment of the district court is REVERSED
and the case is REMANDED to the district court for further
proceedings consistent with this opinion.10

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Defendant's Experts:

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