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Date: 01-23-2019

Case Style:

Dale E. Kleber v. CareFusion Corporation

Case Number: 17-1206

Judge: Scudder

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

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

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

Description:




After Dale Kleber unsuccessfully
applied for a job at CareFusion Corporation, he sued for age
discrimination on a theory of disparate impact liability. The
district court dismissed his claim, concluding that § 4(a)(2) of
the Age Discrimination in Employment Act did not authorize
job applicants like Kleber to bring a disparate impact claim
2 No. 17-1206
against a prospective employer. A divided panel of this court
reversed. We granted en banc review and, affirming the district
court, now hold that the plain language of § 4(a)(2) makes
clear that Congress, while protecting employees from disparate
impact age discrimination, did not extend that same protection
to outside job applicants. While our conclusion is
grounded in § 4(a)(2)’s plain language, it is reinforced by the
ADEA’s broader structure and history.
I
In March 2014, Kleber, an attorney, applied for a senior inhouse
position in CareFusion’s law department. The job description
required applicants to have “3 to 7 years (no more
than 7 years) of relevant legal experience.” Kleber was 58 at
the time he applied and had more than seven years of pertinent
experience. CareFusion passed over Kleber and instead
hired a 29-year-old applicant who met but did not exceed the
prescribed experience requirement.
Kleber responded by bringing this action and pursuing
claims for both disparate treatment and disparate impact under
§ 4(a)(1) and § 4(a)(2) of the ADEA. Relying on our prior
decision in EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th
Cir. 1994), the district court granted CareFusion’s motion to
dismiss Kleber’s disparate impact claim, reasoning that the
text of § 4(a)(2) did not extend to outside job applicants.
Kleber then voluntarily dismissed his separate claim for disparate
treatment liability under § 4(a)(1). This appeal followed.
No. 17-1206 3
II
A
We begin with the plain language of § 4(a)(2). “If the statutory
language is plain, we must enforce it according to its
terms.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015). This precept
reinforces the constitutional principle of separation of
powers, for our role is to interpret the words Congress enacts
into law without altering a statute’s clear limits. See Puerto
Rico v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1949 (2016).
Section 4(a)(2) makes it unlawful for an employer
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.
29 U.S.C. § 623(a)(2).
By its terms, § 4(a)(2) proscribes certain conduct by employers
and limits its protection to employees. The prohibited
conduct entails an employer acting in any way to limit, segregate,
or classify its employees based on age. The language of
§ 4(a)(2) then goes on to make clear that its proscriptions apply
only if an employer’s actions have a particular impact—
“depriv[ing] or tend[ing] to deprive any individual of employment
opportunities or otherwise adversely affect[ing] his
status as an employee.” This language plainly demonstrates
that the requisite impact must befall an individual with “status
as an employee.” Put most simply, the reach of § 4(a)(2)
does not extend to applicants for employment, as common
dictionary definitions confirm that an applicant has no “status
as an employee.” See Merriam-Webster’s Collegiate
4 No. 17-1206
Dictionary 60, 408 (11th ed. 2003) (defining “applicant” as
“one who applies,” including, for example, “a job [applicant],”
while defining “employee” as “one employed by another
usu[ally] for wages or salary and in a position below the
executive level”).
Subjecting the language of § 4(a)(2) to even closer scrutiny
reinforces our conclusion. Congress did not prohibit just conduct
that “would deprive or tend to deprive any individual of
employment opportunities.” It went further. Section 4(a)(2)
employs a catchall formulation—“or otherwise adversely affect
his status as an employee”—to extend the proscribed conduct.
Congress’s word choice is significant and has a unifying
effect: the use of “or otherwise” serves to stitch the prohibitions
and scope of § 4(a)(2) into a whole, first by making clear
that the proscribed acts cover all conduct “otherwise affect[
ing] his status as an employee,” and, second, by limiting
the reach of the statutory protection to an individual with
“status as an employee.” See Villarreal v. R.J. Reynolds Tobacco
Co., 839 F.3d 958, 964 (11th Cir. 2016) (en banc) (interpreting
§ 4(a)(2) the same way and explaining that the “or otherwise”
language “operates as a catchall: the specific items that precede
it are meant to be subsumed by what comes after the ‘or
otherwise’”).
Kleber begs to differ, arguing that § 4(a)(2)’s coverage
extends beyond employees to applicants for employment. He
gets there by focusing on the language in the middle of
§ 4(a)(2)—“deprive or tend to deprive any individual of
employment opportunities”—and contends that the use of
the expansive term “any individual” shows that Congress
wished to cover outside job applicants. If the only question
were whether a job applicant counts as “any individual,”
No. 17-1206 5
Kleber would be right. But time and again the Supreme Court
has instructed that statutory interpretation requires reading a
text as a whole, and here that requires that we refrain from
isolating two words when the language surrounding those
two words supplies essential meaning and resolves the
question before us. See, e.g., United Sav. Ass’n of Tex. v. Timbers
of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)
(describing statutory construction as a “holistic endeavor”);
see also K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)
(directing courts to consider “the language and design of the
statute as a whole”); Trustees of Chicago Truck Drivers v.
Leaseway Transp. Corp., 76 F.3d 824, 828 (7th Cir. 1996)
(emphasizing the same points and explaining that the
meaning of statutory text comes from reading language in
context and not words in insolation).
Reading § 4(a)(2) in its entirety shows that Congress employed
the term “any individual” as a shorthand reference to
someone with “status as an employee.” This construction is
clear from Congress’s use of language telling us that the provision
covers “any individual” deprived of an employment
opportunity because such conduct “adversely affects his status
as an employee.” Put differently, ordinary principles of
grammatical construction require connecting “any individual”
(the antecedent) with the subsequent personal possessive
pronoun “his,” and upon doing so we naturally read “any individual”
as referring and limited to someone with “status as
an employee.” See Flora v. United States, 362 U.S. 145, 150
(1960) (“This Court naturally does not review congressional
enactments as a panel of grammarians; but neither do we regard
ordinary principles of English prose as irrelevant to a
construction of those enactments.”). The clear takeaway is
that a covered individual must be an employee.
6 No. 17-1206
Our conclusion becomes ironclad the moment we look beyond
§ 4(a)(2) and ask whether other provisions of the ADEA
distinguish between employees and applicants. See Mount
Lemmon Fire Dist. v. Guido, 139 S. Ct. 22, 24 (2018) (endorsing
this same approach when interpreting the ADEA’s various
definitions of “employer”). We do not have to look far to see
that the answer is yes.
Right next door to § 4(a)(2) is § 4(a)(1), the ADEA’s disparate
treatment provision. In § 4(a)(1), Congress made it unlawful
for an employer “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 individual’s age.” 29
U.S.C. § 623(a)(1) (emphasis added). All agree that § 4(a)(1),
by its terms, covers both employees and applicants. See, e.g.,
Kralman v. Ill. Dep’t of Veterans’ Affairs, 23 F.3d 150, 152–53 (7th
Cir. 1994) (treating an applicant’s right to bring a claim under
§ 4(a)(1) as unquestioned). Compelling this consensus is
§ 4(a)(1)’s use of the words “to fail or refuse to hire or to discharge,”
which make clear that “any individual” includes
someone seeking to be hired. 29 U.S.C. § 623(a)(1).
Yet a side-by-side comparison of § 4(a)(1) with § 4(a)(2)
shows that the language in the former plainly covering applicants
is conspicuously absent from the latter. Section 4(a)(2)
says nothing about an employer’s decision “to fail or refuse to
hire … any individual” and instead speaks only in terms of
an employer’s actions that “adversely affect his status as an
employee.” We cannot conclude this difference means nothing:
“when ‘Congress includes particular language in one section
of a statute but omits it in another’—let alone in the very
next provision—the Court presumes that Congress intended
No. 17-1206 7
a difference in meaning.” Loughrin v. United States, 573 U.S.
351, 358 (2014) (quoting Russello v. United States, 464 U.S. 16,
23 (1983)).
There is even more. A short distance away from § 4(a)(2)
is § 4(c)(2), which disallows labor organizations from engaging
in particular conduct. Section 4(c)(2), in pertinent part,
makes it unlawful for a labor organization
to limit, segregate, or classify its membership …
in any way which would deprive or tend to deprive
any individual of employment opportunities
… or otherwise adversely affect his status as
an employee or as an applicant for employment, because
of such individualʹs age.
29 U.S.C. § 623(c)(2) (emphasis added).
The parallel with § 4(a)(2) is striking: both provisions define
the prohibited conduct in terms of action that “would deprive
or tend to deprive any individual of employment opportunities,”
only then to include the “or otherwise adversely
affect” catchall language. But there is a big difference between
the two provisions: § 4(c)(2)’s protection extends to any individual
with “status as an employee or as an applicant for employment,”
whereas Congress limited § 4(a)(2)’s reach only to
someone with “status as an employee.”
Consider yet another example. In § 4(d), Congress addressed
employer retaliation by making it “unlawful for an
employer to discriminate against any of his employees or applicants
for employment” because such an individual has opposed
certain unlawful practices of age discrimination. 29 U.S.C.
§ 623(d) (emphasis added). Here, too, the distinction between
“employees” and “applicants” jumps off the page.
8 No. 17-1206
Each of these provisions distinguishes between employees
and applicants. It is implausible that Congress intended no
such distinction in § 4(a)(2), however, and instead used the
term employees to cover both employees and applicants. To
conclude otherwise runs afoul of the Supreme Court’s admonition
to take statutes as we find them by giving effect to
differences in meaning evidenced by differences in language.
See Mount Lemmon Fire Dist., 139 S. Ct. at 26 (declining the
defendant’s invitation to take language from one part of a sentence
and then “reimpose it for the portion” of the sentence in
which Congress omitted the same language); see also Dep’t of
Homeland Sec. v. MacLean, 135 S. Ct. 913, 919 (2015) (explaining
that “Congress generally acts intentionally when it uses particular
language in one section of a statute but omits it in another”).
In the end, the plain language of § 4(a)(2) leaves room for
only one interpretation: Congress authorized only employees
to bring disparate impact claims.
B
Kleber urges a different conclusion in no small part on the
basis of the Supreme Court’s 1971 decision in Griggs v. Duke
Power Co., 401 U.S. 424, where the Court interpreted
§ 703(a)(2) of Title VII and held that disparate impact was a
viable theory of liability. Indeed, Kleber goes so far as to say
Griggs—a case where the Court considered language in Title
VII that at the time paralleled the language we consider
here—controls and mandates a decision in his favor. We disagree.
A commonsense observation is warranted at the outset. If
Kleber is right that Griggs, a Title VII case, compels the
No. 17-1206 9
conclusion that § 4(a)(2) of the ADEA authorizes outside job
applicants to bring a disparate impact claim, we find it very
difficult to explain why it took the Supreme Court 34 years to
resolve whether anyone—employee or applicant—could sue
on a disparate impact theory under the ADEA, as it did in
Smith v. City of Jackson, 544 U.S. 228 (2005). There was no need
for the Court to decide Smith if (all or part of) the answer came
in Griggs. And when the Court did decide Smith the Justices’
separate opinions recognized the imperative of showing
impact to an individual’s “status as an employee” when
discerning the reach of § 4(a)(2). See id. at 235–36, 236 n.6
(plurality opinion); see id. at 266 (O’Connor, J., concurring,
joined by Kennedy & Thomas, JJ.).
Kleber’s position fares no better within the four corners of
Griggs itself. Several African-American employees of Duke
Power challenged the company’s practice of conditioning certain
job transfers and promotions on graduating from high
school and passing a standardized aptitude test. See 401 U.S.
at 426. The employees sued under § 703(a) of Title VII, a provision
that in 1971 mirrored the present language of § 4(a)(2)
of the ADEA. See id. at 426 n.1. The Court held that § 703(a)(2)
prohibits disparate impact discrimination by proscribing
“practices that are fair in form, but discriminatory in operation”
unless an employer can show that the challenged practice
is “related to job performance” and thus a “business necessity.”
Id. at 431.
Kleber would have us read Griggs beyond its facts by focusing
on language in a couple of places in the Court’s opinion
that he sees as covering employees and applicants alike.
We decline the invitation. Nowhere in Griggs did the Court
state that its holding extended to job applicants. And that
10 No. 17-1206
makes perfect sense because nothing about the case, brought
as it was by employees of Duke Power and not outside applicants,
required the Court to answer that question. The language
that Kleber insists on reading in isolation must be read
in context, and the totality of the Griggs opinion makes clear
that the Court answered whether Duke Power’s African-
American employees could bring a claim for disparate impact
liability based on practices that kept them from pursuing different,
higher-paying jobs within the company.
What happened a year after Griggs cements our conclusion.
In 1972, Congress amended § 703(a)(2) of Title VII—the
provision at issue in Griggs—by adding language to expressly
include “applicants for employment.” Pub. L. No. 92-261,
§ 8(a), 86 Stat. 109 (1972). This amendment occurred in the immediate
wake of Griggs and, in this way, reflected Congress’s
swift and clear desire to extend Title VII’s disparate impact
protection to job applicants. There was no need for Congress
to amend § 703(a)(2) if the provision had always covered job
applicants and especially if the Supreme Court had just said
so in Griggs. To conclude otherwise renders the 1972 amendment
a meaningless act of the 92nd Congress, and we are reluctant
to conclude that substantive changes to statutes reflect
idle acts.
The Supreme Court endorsed this precise course of analysis—
giving effect to “Congress’s decision to amend Title VII’s
relevant provisions but not make similar changes to the
ADEA”—in Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 174
(2009). The Court there considered whether a plaintiff suing
under § 4(a)(1) of the ADEA must establish that age was the
but-for cause of an employer’s adverse action. See id. at 173.
The plaintiff urged the Court to adopt Title VII’s lesser
No. 17-1206 11
standard of race being only a motivating factor in the challenged
decision. See id. Paramount to the Court’s conclusion
that an ADEA plaintiff must prove but-for causation were textual
differences between the ADEA and Title VII brought
about by Congress’s amendments to Title VII. See id. at 174
(explaining that “Congress neglected to add such a [motivating-
factor] provision to the ADEA when it amended Title VII
[in 1991]” and emphasizing that “[w]hen Congress amends
one statutory provision but not another, it is presumed to
have acted intentionally”). The Court’s instruction was clear:
prior decisions interpreting Title VII “do not control our construction
of the ADEA” where the text of the two statutes are
“materially different.” Id. at 173.
And so it is here. Congress’s choice to add “applicants” to
§ 703(a)(2) of Title VII but not to amend § 4(a)(2) of the ADEA
in the same way is meaningful. Gross teaches that we cannot
ignore such differences in language between the two enactments.
And, at the risk of understatement, Gross is far from an
aberration in statutory construction. A mountain of precedent
supports giving effect to statutory amendments. See, e.g.,
United States v. Quality Stores, Inc., 572 U.S. 141, 148 (2014)
(quoting Stone v. INS, 514 U.S. 386, 397 (1995)) (“When Congress
acts to amend a statute, we presume it intends its
amendment to have real and substantial effect.”); Fidelity Fin.
Servs., Inc. v. Fink, 522 U.S. 211, 220–21 (1998) (explaining that
after Congress modified the federal statute controlling when
a transfer of a security interest was perfected, “we see no basis
to say that subsequent amendments removing references to
state-law options had the counterintuitive effect of deferring
to such [state law] options” without unwinding the statutory
amendments); United States v. Wells, 519 U.S. 482, 492–93
(1997) (explaining that after Congress amended the federal
12 No. 17-1206
criminal statute pertinent to false representations to remove
any express reference to materiality, “the most likely inference
in these circumstances is that Congress deliberately
dropped the term ‘materiality’ without intending materiality
to be an element of [18 U.S.C.] § 1014”); Stone, 514 U.S. at 397–
98 (explaining that after Congress amended the Immigration
and Naturalization Act, “[t]he reasonable construction [was]
that the amendment was enacted as an exception, not just to
state an already existing rule”).
In no way does this analysis downplay Griggs, as our dissenting
colleagues contend. We have approached Griggs as
binding precedent and construed its holding not only by
reading what the Supreme Court’s opinion says (and does not
say), but also in light of Congress’s immediately amending
Title VII (but not § 4(a)(2) of the ADEA) to cover “applicants”
as well as the broader development in the law ever since, including
with precedents like Smith in 2005 and Gross in 2009.
The upshot is clear: while Congress amended § 703(a)(2)
of Title VII in 1972 to cover “applicants for employment,” it
has never followed suit and modified § 4(a)(2) of the ADEA in
the same way. And this is so despite Congress’s
demonstrating, just a few years after Griggs, that it knew how
to amend the ADEA to expressly include outside job
applicants. See Villarreal, 839 F.3d at 979–80 (Rosenbaum, J.,
concurring) (observing that Congress amended the ADEA in
1974 to extend the statute’s reach to federal-government
employment, and in doing so, explicitly referenced both
“employees and applicants for employment” in the new
provision, 29 U.S.C. § 633a).
Today, then, § 703(a)(2) of Title VII differs from § 4(a)(2) in
at least one material respect: the protections of the former
No. 17-1206 13
extend expressly to “applicants for employment,” while the
latter covers only individuals with “status as an employee.”
We underscored this exact difference 14 years ago in our opinion
in Francis W. Parker, and we do so again today. See 41 F.3d
at 1077 (“The ‘mirror’ provision in the ADEA omits from its
coverage, ‘applicants for employment.’”). The plain language
of § 4(a)(2) controls and compels judgment in CareFusion’s
favor.
C
Beyond his reliance on Griggs, Kleber invites us to read the
ADEA against the backdrop of Congress’s clear purpose of
broadly prohibiting age discrimination. On this score, he
points us to the Supreme Court’s decision in Robinson v. Shell
Oil Company, 519 U.S. 337 (1997) and to the report of the
former Secretary of the Department of Labor, Willard Wirtz.
In Robinson, the Court held that § 704(a) of Title VII extended
not just to “employees” (a term used in § 704(a)), but
also to former employees. See id. at 346. The Court emphasized
that, while the meaning of “employees” was ambiguous,
Title VII’s broader structure made plain that Congress
intended the term to cover former employees, a construction
that furthered Title VII’s broader purposes. None of this helps
Kleber. (Indeed, if anything, Robinson’s clear observation of
the distinct and separate meaning of “employees” and “applicants
for employment” in § 704(a) severely undermines
Kleber’s textual argument. See id. at 344.) Robinson, in short,
provides direction on how courts— if confronted with statutory
ambiguity—should resolve such ambiguity. There being
no ambiguity in the meaning of § 4(a)(2) of the ADEA, our
role ends—an outcome on all fours with Robinson.
14 No. 17-1206
The Wirtz Report reflected the Labor Department’s
response to Congress’s request for recommended age
discrimination legislation, and a plurality of the Supreme
Court in Smith treated the Report as an authoritative signal of
Congress’s intent when enacting the ADEA. See Smith, 544
U.S. at 238. We do too.
Nobody disputes that the Wirtz Report reinforces
Congress’s clear aim of enacting the ADEA to prevent age
discrimination in the workplace by encouraging the
employment of older persons, including older job applicants.
But we decline to resolve the question presented here on the
basis of broad statutory purposes or, more specifically, to
force an interpretation of but one provision of the ADEA
(here, § 4(a)(2)) to advance the enactment’s full objectives.
Our responsibility is to interpret § 4(a)(2) as it stands in the
U.S. Code and to ask whether the provision covers outside job
applicants. We cannot say it does and remain faithful to the
provision’s plain meaning. It remains the province of
Congress to choose where to draw legislative lines and to
mark those lines with language. Our holding gives effect to
the plain limits embodied in the text of § 4(a)(2).
The ADEA, moreover, is a wide-ranging statutory scheme,
made up of many provisions beyond § 4(a)(2). And a broader
look at the statute shows that outside job applicants have
other provisions at their disposal to respond to age discrimination.
Section 4(a)(1), for example, prevents an employer
from disparately treating both job applicants and employees
on the basis of age. See 29 U.S.C. § 623(a)(1). Section 4(c)(2),
prevents a labor organization’s potential age discrimination
against both job applicants and employees. See 29 U.S.C.
§ 623(c)(2).
No. 17-1206 15
Today’s decision, while unfavorable to Kleber, leaves
teeth in § 4(a)(2). The provision protects older employees who
encounter age-based disparate impact discrimination in the
workplace. And Congress, of course, remains free to do what
the judiciary cannot—extend § 4(a)(2) to outside job applicants,
as it did in amending Title VII.
For these reasons, we AFFIRM.
16 No. 17-1206
EASTERBROOK, Circuit Judge, dissenting. I do not join the
majority’s opinion, because the statute lacks a plain meaning.
Robinson v. Shell Oil Corp., 519 U.S. 337 (1997), held that
the word “employees” in one part of Title VII includes exemployees.
Robinson interpreted text in context. Here, too,
the judiciary must look outside one subsection to tell whether
“individual” in 29 U.S.C. §623(a)(2) includes applicants
for employment.
But neither do I join all of Judge Hamilton’s dissent,
which relies on legislative purpose. The purpose of a law is
imputed by judges; it is not a thing to be mined out of a statute.
Even when we know what direction the legislature
wanted to move, we must know how far to go—and making
that choice is a legislative task. See, e.g., Rodriguez v. United
States, 480 U.S. 522, 525–26 (1987). Our job is to apply the enacted
text, the only thing to which the House, the Senate,
and the President all subscribed, not to plumb legislators’
hopes and goals.
Section 623(a) provides:
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 individual’s age;
(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 individual’s age; or
(3) to reduce the wage rate of any employee in order to comply
with this chapter.
No. 17-1206 17
The word “individual” in paragraph (1) includes applicants
for employment; everyone agrees on this much. “Individual”
reappears in paragraph (2), and normally one word used in
adjacent paragraphs means a single thing. See Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts (2011) (Canon 25: Presumption of Consistent Usage).
Maybe the trailing phrase in paragraph (2)—”otherwise adversely
affect his status as an employee”—implies that the
word “individual” in paragraph (2) means only employees.
That’s what the majority believes. But maybe, as Part I.C of
Judge Hamilton’s dissent suggests, this phrase establishes an
independent set of rights for employees, without implying
that applicants for employment are not “individuals.”
The statutory context does not point ineluctably to one
understanding. The majority does not explain why the statute
would use “individual” in dramatically different ways
within the space of a few words. But the principal dissent
does not explain how we can read “individual” in paragraph
(2) to include “applicant” without causing paragraphs (1)
and (2) to converge. If that happens, then paragraph (2) applies
disparate-impact analysis to all employment actions.
That leaves little or nothing for paragraph (1) to do, for paragraph
(2), no less than paragraph (1), prohibits disparate
treatment.
Smith v. Jackson, 544 U.S. 228, 236 n.6 (2005) (plurality
opinion), tells us that paragraphs (1) and (2) have different
scopes and that only paragraph (2) provides disparateimpact
liability. That conclusion is enough by itself to expose
problems in Part III of Judge Hamilton’s dissent, which in
the name of legislative purpose would extend disparateimpact
analysis across the board. Yet this does not help us to
18 No. 17-1206
know what “individual” in paragraph (2) does mean. Perhaps
Justice O’Connor was right in Smith, 544 U.S. at 247–68
(concurring opinion), and we should not impute disparateimpact
liability to paragraph (2). The question we are addressing
today may have no answer; it may be an artifact of
the way the plurality in Smith distinguished paragraph (1)
from paragraph (2), and if Justice O’Connor is right there’s
no need to search for that nonexistent answer. But that mode
of resolving this suit is not open to a court of appeals.
Because neither text nor purpose offers a satisfactory solution,
we should stop with precedent. Griggs v. Duke Power
Co., 401 U.S. 424 (1971), treats the word “individual” in 42
U.S.C. §2000e–2(a)(2), as it stood before an amendment in
1972, as including applicants for employment. The pre-1972
version of that statute is identical to the existing text in
§623(a); Congress copied this part of the ADEA from that
part of Title VII. It may be that the Court in Griggs was careless
to treat outside applicants for employment as “individuals”
in paragraph (2), but that is what the Justices did. Part
II of Judge Hamilton’s opinion shows how this came to happen
and also shows that many of the Supreme Court’s later
decisions read Griggs to hold that paragraph (2) in the pre-
1972 version of Title VII applies disparate-impact theory to
outside applicants for employment. If the Justices think that
this topic (or Smith itself) needs a new look, the matter is for
them to decide. I therefore join Part II of Judge Hamilton’s
dissenting opinion.
No. 17-1206 19
HAMILTON, Circuit Judge, dissenting, joined by WOOD,
Chief Judge, and ROVNER, Circuit Judge, and joined as to Part II
by EASTERBROOK, Circuit Judge.
We should reverse the district court’s Rule 12(b)(6) dismissal
of plaintiff Dale Kleber’s disparate impact claim and remand
for further proceedings. The key provision of the Age
Discrimination in Employment Act prohibits both employment
practices that discriminate intentionally against older
workers and those that have disparate impacts on older workers.
29 U.S.C. § 623(a); 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 should hold that the disparate-impact language in
§ 623(a)(2) protects both outside job applicants and current
employees. Part I of this opinion explains why that’s the better
reading of the statutory text that is at worst ambiguous on
coverage of job applicants. While other ADEA provisions protect
job applicants more clearly, the Supreme Court guides us
away from the majority’s word-matching and toward a more
sensible and less arbitrary reading. See Robinson v. Shell Oil
Co., 519 U.S. 337, 341–46 (1997).
Part II explains that protecting outside job applicants
tracks the Supreme Court’s reading of 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), the Court
found that this same disparate-treatment language protects
not only current employees but also “the job-seeker”—people
like plaintiff Kleber. We should read the same language the
20 No. 17-1206
same way. The majority tries to avoid this reasoning by narrowing
Griggs and attributing significance to the 1972 amendment
of the Title VII disparate-impact provision. As detailed
in Part II, the actual facts of both the Griggs litigation and the
1972 amendment flatly contradict the majority’s glib and unsupported
theories.
Part III explains that protecting both outside applicants
and current employees is also more consistent with the purpose
of the Act (as set forth in the statute itself) and avoids
drawing an utterly arbitrary line. Neither the defendant nor
its amici have offered 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. The en banc majority does not
even try to do so, following instead a deliberately naïve approach
to an ambiguous statutory text, closing its eyes to fifty
years of history, context, and application.
I. The Text of the ADEA’s Disparate-Impact Provision
A. Statutory Text of Disputed Provision
We begin with the statutory language, of course. We analyze
the specific words and phrases Congress used, but 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). As the Supreme
Court explained in dealing with a similar issue in Title
VII: “The plainness or ambiguity of statutory language is deNo.
17-1206 21
termined by reference to the language itself, the specific context
in which that language is used, and the broader context
of the statute as a whole.” Robinson, 519 U.S. at 341, 346 (protection
of “employees” from retaliation included former employees).
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 individual’s age;
(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 individual’s
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 older employees.
22 No. 17-1206
Start with the critical statutory language, which includes
two parallel provisions that prohibit employers from engaging
in certain behavior. Under paragraph (a)(1), an employer
may not intentionally discriminate against an older individual
by firing or failing to hire or promote her because she is
older—i.e., engage in disparate treatment of older individuals.
Paragraph (a)(2) prohibits an employer from creating an
internal employee classification or limitation that has the effect
of depriving “any individual of employment opportunities”
or adversely affecting his or her status as an employee
because of age—i.e., creating an internal classification system
with a disparate impact against older individuals.
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 within the
meaning of paragraph (a)(2). If that classification “would deprive
or tend to deprive any individual of employment opportunities”
because of the person’s age, 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—i.e., whether the employer has classified
jobs in a way that tends to limit any individual’s employment
opportunities based on age. See Smith, 544 U.S. at 234,
235–38 (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 The defendant’s maximum-experience
requirement in this case certainly limited plaintiff
Kleber’s employment opportunities.
1 Justice Scalia joined Parts I, II, and IV of the Smith opinion by Justice
Stevens and wrote that he also agreed with Justice Stevens’s reasoning in
Part III. 544 U.S. at 243. I therefore treat all parts of the Smith opinion by
No. 17-1206 23
B. The Majority’s Cramped Reading
To avoid this conclusion, the majority emphasizes the
phrase “or otherwise adversely affect his status as an employee,”
reading it to limit the statute’s disparate-impact protection
“to an individual with ‘status as an employee.’” Ante
at 4. Note that the key “with” in that phrase—repeated several
times in the majority opinion—comes only from the majority,
not from the statute itself. It’s not correct. The antecedent of
“his” is “any individual,” and “otherwise adversely affect” is
even broader than “deprive or tend to deprive any individual
of employment opportunities.”
The crux of the majority’s argument is that if “any individual”
is not already employed by the employer in question, 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 majority thus concludes that a
“person’s status as an employee” cannot be affected unless
the person is already an employee. If that’s true, then paragraph
(a)(2) subtly limits its protections from disparate impacts
to people who already possess “status as an employee”
with the defendant-employer.
The majority’s analysis nullifies the two uses of the broad
word “individual,” which certainly reaches job applicants.
What Congress meant to say, the majority argues, is that it’s
unlawful for an employer “to limit, segregate, or classify his
employees in any way which would deprive or tend to deprive
any current employee [not “any individual”] of employment
opportunities or otherwise adversely affect his status as
Justice Stevens as authoritative without repeatedly citing Justice Scalia’s
concurrence as well.
24 No. 17-1206
an employee, because of such employee’s [not “individual’s”]
age.”
How does one read a bar against depriving “any individual”
of “employment opportunities” to exclude all cases
where a person is looking for a job? And if Congress meant to
limit the provision’s coverage only to current employees, why
didn’t it just use the word “employee”? It had used that word
twice in this provision already. Courts are generally loath to
read statutory terms out of a textual provision and to insert
limitations that are not evident in the text. See Mount Lemmon
Fire District v. Guido, 139 S. Ct. 22, 26 (2018) (refusing to read
limitation into ADEA’s coverage that is not apparent from
text, noting that “[t]his Court is not at liberty to insert the absent
qualifier”).
C. The Better Reading
If we look at the language of paragraph (a)(2) in isolation,
the majority’s mechanical reading has some superficial plausibility,
but it should be rejected. At the textual level, there are
three distinct and fundamental problems.
First, as Judge Easterbrook points out, the majority’s theory
gives the phrase “any individual” very different meanings
in adjoining paragraphs (a)(1) and (a)(2) of § 623. Ante at
17. See also, e.g., Mohasco Corp. v. Silver, 447 U.S. 807, 826
(1980) (declining to interpret § 706 of Title VII so that the word
“filed” would have different meanings in different subsections).
Second, the majority merely assumes that “affect his status
as an employee” necessarily limits the already broad phrase,
“deprive or tend to deprive any individual of employment
opportunities.” It is not self-evident—at least as a matter of
No. 17-1206 25
plain meaning—that the latter “status” phrase must be read as
limiting the former. A list culminating in an “or otherwise”
term can instead direct the reader to consider the last phrase
as a catch-all alternative, “in addition to” what came before,
to capture prohibited actions that might otherwise escape the
statute’s reach. For example, an employer can violate the
ADEA by adversely affecting the status of its employees (e.g.,
by giving bigger raises to junior employees, as alleged in
Smith, 544 U.S. at 231) without depriving an individual of employment
opportunities such as 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”).
In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc.,
139 S. Ct. —, — (2019), the Supreme Court rejected a remarkably
similar argument that attempted to use an “otherwise”
phrase to limit what came before. Much like the majority here,
the patentee argued that “otherwise available to the public”
in the Patent Act’s “on sale” bar meant that the preceding language
also required public availability after a sale. The patentee
“places too much weight on [the] catchall phrase. Like
other such phrases, ‘otherwise available to the public’ captures
material that does not fit neatly into the statute’s enumerated
categories but is nevertheless meant to be covered.”
See also Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009) (explaining
that “the whole value of a generally phrased residual
clause, like the one used in the second proviso, is that it serves
as a catchall for matters not specifically contemplated—
known unknowns”). If “otherwise adversely affect his status
26 No. 17-1206
as an employee” does not necessarily limit the entire disparateimpact
phrase—if it is instead a catch-all phrase for known
unknowns, as the Supreme Court explained in Texas Dep’t of
Housing & Community Affairs v. Inclusive Communities Project,
Inc., 135 S. Ct. 2507, 2519 (2015) (linking “otherwise” phrases
in ADEA, Title VII, and Fair Housing Act as establishing textual
foundations for disparate-impact protection)—the majority’s
textual analysis collapses.
Third, even if “status as an employee” must be affected to
state a disparate-impact claim under (a)(2), the majority’s conclusion
also depends entirely on the unlikely notion that “status
as an employee” is not “adversely affected” when an employer
denies an individual the opportunity to become an employee
in the first place. Refusing to hire an individual has the
most dramatic possible adverse effect on that individual’s
“status as an employee.” Reading “status as an employee”
broadly, to include whether the individual is an employee or
not, is consistent with the actual words Congress used in repeatedly
referring to “individuals,” and with ordinary usage.
Courts often speak of “denying status” of one sort or another.2
2 Judge Martin’s dissent in Villarreal v. R.J. Reynolds Tobacco Company
collected several examples. 839 F.3d 958, 983 & n.2 (11th Cir. 2016) (en
banc), 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 SAW
[special agricultural worker] status”); Clark v. Gabriel, 393 U.S. 256, 264
(1968) (draft registrant could be “denied CO [conscientious objector]
status”).
We have also used this “denial of status” phrasing in a variety of
contexts. Bell v. Kay, 847 F.3d 866, 868 (7th Cir. 2017) (plaintiff objected to
No. 17-1206 27
And the word “status” is not necessarily limited to status as
of any particular moment. 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”).
In short, the effect of the phrase “otherwise adversely affects
his status as an employee” on job applicants is at worst
ambiguous for applicants like Kleber. The majority loads onto
that phrase more weight than it can bear. If Congress really
meant to exclude job applicants from disparate-impact protection,
the phrase “status as an employee” was a remarkably
obscure and even obtuse way to express that meaning.
D. Comparing § 623(a)(2) to Other ADEA Provisions
Congress no doubt could have written § 623(a)(2) to make
clearer its protection of outside job applicants, as it did in
other ADEA provisions and other statutes. As explained by
Justice Thomas for a unanimous Supreme Court in Robinson
v. Shell Oil, however, that observation does not prove that
Congress chose not to provide that protection. 519 U.S. at 341–
“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 Tax Court’s “denial
of ‘innocent spouse’ status”); 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). In all of these cases, “status” was surely “adversely
affected,” to use the phrasing of § 623(a)(2).
28 No. 17-1206
42 (language in other statutes “proves only that Congress can
use the unqualified term ‘employees’ to refer only to current
employees, not that it did so in this particular statute”).
The first statutory text that provides guidance on how to
read § 623(a)(2) is the statute’s stated purpose, which the majority
largely disregards. Congress told us it set out to address
“the incidence of unemployment, especially long-term unemployment”
among older workers. 29 U.S.C. § 621(a)(3). In the
statute, Congress said it 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 itself provides, “it is …
the purpose of this chapter to promote employment of older
persons based on their ability rather than age.” § 621(b).
The majority, however, focuses on comparing § 623(a)(2)
to several neighboring provisions in the ADEA that distinguish
clearly between current employees and job applicants.
The majority, to support its improbable result, reads too much
into the differences in wording.
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) (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
No. 17-1206 29
policy prohibiting age discrimination in federal hiring and
employment. § 633a(a).
The majority compares three of those ADEA provisions:
the labor union provision in § 623(c)(2), the retaliation provision
in § 623(d), and the federal government provision in
§ 633a(a). All three of these provisions use the phrase “applicant
for employment.” The majority invokes the common presumption
that a difference in statutory wording signals a difference
in Congressional intent and meaning. That presumption,
however, is only a tool, not an inflexible rule. 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 to produce such an improbable result as excluding
older job applicants from disparate-impact protection.
Instructive here is the Supreme Court’s approach to interpreting
the term “employee” in Title VII’s anti-retaliation provision.
Robinson v. Shell Oil, 519 U.S. at 339–41. Title VII makes
it unlawful “for an employer to discriminate against any of
his employees or applicants for employment” who have either
availed themselves of Title VII’s protections or assisted
others in doing so. 42 U.S.C. § 2000e-3(a). The issue in Robinson
was whether this language prohibits retaliation against
former employees. As in this case, the Court had to interpret
a provision that was not as clear as other related provisions.
The fact that “Congress also could have used the phrase ‘current
employees,’” or “expressly included the phrase ‘former
employees’ does not aid our inquiry.” 519 U.S. at 341. That
“the term ‘employees’ may have a plain meaning in the context
of a particular section,” or that “other statutes have been
30 No. 17-1206
more specific in their coverage of ‘employees’ and ‘former
employees,’ … proves only that Congress can use the unqualified
term ‘employees’ to refer only to current employees”—
“not that the term has the same meaning in all other sections
and in all other contexts.” Id. at 341–43.
Adopting an approach that fits here, the Court wrote: “Because
the term ‘applicants’ in § 704(a) is not synonymous with
the phrase ‘future employees,’ there is no basis for engaging
in the further (and questionable) negative inference that inclusion
of the term ‘applicants’ demonstrations intentional exclusion
of former employees.” Id. at 344–45. In fact, the Court
reasoned, to hold that the term “employee” does not include
former employees “would effectively vitiate much of the protection
afforded by § 704(a),” and “undermine the effectiveness
of Title VII by allowing the threat of postemployment retaliation
to deter victims of discrimination from complaining
to the EEOC, and would provide a perverse incentive for employers
to fire employees who might bring Title VII claims.”
Id. at 345–46.
In short, the Court concluded, an “inclusive interpretation
of ‘employees’ in § 704(a) that is already suggested by the
broader context of Title VII”—and that is not “destructive of
[the] purpose” of the statute by allowing an employer to escape
liability for “an entire class of acts”—“carry persuasive
force given their coherence and their consistency with a primary
purpose” of the statutory provision. Id. at 346. We
should use the same approach here.
Instead, the majority’s reading of § 623(a)(2) creates a
strange incongruity. All actors who regularly recruit job applicants—
employment agencies, labor unions, and federal
No. 17-1206 31
agencies—are prohibited from engaging in age discrimination,
including disparate-impact discrimination. See 29 U.S.C.
§§ 623(b), 623(c)(2), & 633a(a). Yet the majority concludes that
Congress chose to allow private employers to use practices
with disparate impacts on older job applicants. This is a truly
odd reading, especially in light of the statute’s stated purpose
and the rest of § 623, where Congress grouped 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).
Half a century after the ADEA was enacted, we can see
that Congress could have been more precise in phrasing the
disputed provision. The majority errs, though, in concluding
boldly that the text “leaves room for only one interpretation.”
Ante at 8. The majority naively puts on blinders, considers
only the language of the ADEA in isolation, and, as we’ll see,
ignores precedent, legislative history, and practical consequences
to offer one cramped reading for the scope of
§ 623(a). The text alone does not provide sufficient grounds
for choosing between two readings of one of the statute’s most
important protections, one that protects outside job applicants,
and one that excludes them.
II. Griggs, Title VII, and the ADEA
A. Griggs and “Job-Seekers”
The most reliable basis for choosing between these two
readings of the statutory text is to follow the Supreme Court’s
interpretation of identical language in Title VII of the Civil
Rights Act of 1964 in Griggs v. Duke Power, 401 U.S. at 430–31.
32 No. 17-1206
In Griggs, the Court held that the language of Title VII as enacted
in 1964 included disparate-impact protection for both
job-seekers and current employees seeking promotions. That
authoritative construction of identical language should control
here. See Smith, 544 U.S. at 233–38 (applying Griggs to
§ 623(a)(2) in ADEA); Texas Dep’t of Housing and Community
Affairs, 135 S. Ct. at 2518 (applying analysis of identical statutory
language in Griggs (Title VII) and Smith (ADEA) to interpret
parallel disparate-impact provision in Fair Housing Act);
see also, e.g., Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65
(1987) (field preemption applies to ERISA because Congress
copied ERISA’s jurisdictional language from Labor Management
Relations Act, to which field preemption applied).
1. Parallel Statutory Texts
The ADEA’s § 623(a)(2) tracks word-for-word the parallel
provision for race, sex, religious, and national origin discrimination
in Title VII of the Civil Rights Act of 1964, as it was
enacted in 1964, as it stood when the ADEA was enacted, and
as it stood when Griggs was decided. Here’s the original language
of Title VII’s parallel disparate-treatment and disparate-
impact provisions:
(a) 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 such individual’s race, color,
religion, sex, or national origin; or
No. 17-1206 33
(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 individual’s
race, color, religion, sex, or national origin.
78 Stat. 255, quoted in Griggs, 401 U.S. at 426 n.1. The only difference
between Title VII’s § 703(a)(2) and the ADEA’s
§ 623(a)(2) is the substitution of “age” for “race, color, religion,
sex, or national origin.” That’s why Smith v. City of Jackson
described Griggs as “a precedent of compelling importance”
in interpreting the ADEA’s disparate-impact language.
544 U.S. at 234.
In Griggs, the Supreme Court unanimously held that Title
VII “proscribes not only overt discrimination but also practices
that are fair in form, but discriminatory in operation”—
e.g., practices with disparate impacts against protected
groups. Griggs, 401 U.S. at 431. “The touchstone is business
necessity,” the Court explained, as “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.” Id. at 431, 434, quoting
110 Cong. Rec. 7247 (1964).
The majority contends Griggs offers no guidance here because
“nothing about the case, brought as it was by employees
of Duke Power and not outside applicants, required the Court
to answer th[e] question” whether Title VII’s disparate impact
provision extended to job applicants. Ante at 10. The majority
treats the Supreme Court’s references in Griggs to hiring as
careless slips of the pen. As a general rule, that is not how
lower federal courts should read Supreme Court opinions.
34 No. 17-1206
More specifically, a closer look at Griggs shows that the majority’s
approach is 180 degrees off course.
2. The Facts of Griggs
Beyond reasonable dispute, the Griggs holding included
job applicants. The majority ignores the fact that Griggs was a
class action. The district court had certified a class “defined as
those Negroes presently employed, and who subsequently
may be employed, at [Duke Power’s plant] and all Negroes
who may hereafter seek employment”—i.e., job applicants. Griggs
v. Duke Power Co., 292 F. Supp. 243, 244 (M.D.N.C. 1968) (emphasis
added). After remand from the Supreme Court, the
district court enjoined Duke Power from, among other practices,
“administering any personnel or aptitude tests or requiring
any formal educational background … as a condition
of consideration for employment or promotion or transfer.”
Griggs v. Duke Power Co., 1972 WL 215 at *1 (Sept. 25, 1972)
(emphasis added). Of course the Supreme Court’s holding applied
to job applicants.
And that was for good reason. The Griggs class challenged
employment practices that had the effect of segregating the
workforce. Duke Power classified its employees into two
main groups: (1) the “inside departments,” historically staffed
by white employees, with higher pay and responsible for
tasks such as operating the boilers and maintaining the plant
equipment; and (2) the Labor Department, the lowest-wage
unit, “responsible generally for the janitorial services” and
historically staffed by black employees. Griggs v. Duke Power
Co., 420 F.2d 1225, 1245–46 (4th Cir. 1970) (Sobeloff, J., dissenting);
id. at 1228–29 (majority). Before the civil rights movement,
white and black employees (within their respective segregated
departments) had been hired and promoted with
No. 17-1206 35
middle school levels of education or less, and certainly without
high school diplomas; there was no indication that any
particular level of formal education was needed to work at the
power plant. Id. at 1245–46 (dissent).
As the civil rights movement picked up steam, Duke
Power “initiated a new policy as to hiring and advancement,”
requiring “a high school education or its equivalent … for all
new employees, except as to those in the Labor Department.”
Id. at 1228–29 (majority) (emphasis added). On the day Title
VII took effect, Duke Power “added a further requirement for
new employees”—the passage of “two professionally prepared
aptitude tests, as well as to have a high school diploma.”
Griggs, 401 U.S. at 428 (emphasis added). All existing employees
(white and black) were grandfathered in. Only new Labor
Department employees could still be hired without having to
meet the requirements. Griggs, 420 F.2d at 1245–46 (dissent).3
Notwithstanding the new rule, if an “inside” position
opened, the grandfathered white employees from “inside departments”
without high school diplomas faced “no restriction
on transfer from any of the inside departments to the
other two inside departments.” Id. at 1246 (Sobeloff, J., dissenting).
It was “only the outsiders” (e.g., entirely new applicants
or black Labor Department employees) who “must meet
the questioned criteria.” Id. This internal employee classifica-
3 To be precise, the coal handling department was the one unit staffed
by white employees that had been subject to the high school diploma requirement
for transfer. The aptitude tests were offered at the coal employees’
request as “a means of escaping from that department” and were then
made available to employees in the Labor Department. Griggs, 420 F.2d at
1229; Griggs, 401 U.S. at 427–28.
36 No. 17-1206
tion policy therefore put the black Labor Department employees
in the same position as outside applicants. Consequently,
“four years after the passage of Title VII, [the Duke power
plant] look[ed] substantially like it did before 1965. The Labor
Department [wa]s all black; the rest [wa]s virtually lilywhite.”
Id. at 1247.
Thus, it made no legal difference that the named class representatives
were existing Labor Department employees challenging
their restricted ability to transfer (read: apply) to the
higher-paying units staffed with white employees. The
Court’s legal analysis was not limited to intra-company transfers:
all new applicants and the Labor Department plaintiffs
had to meet Duke’s educational and testing standards to apply
for non-janitorial open positions. Griggs, 401 U.S. at 425–
28.
3. The Supreme Court’s Analysis
Thus it was neither accidental nor surprising that the Supreme
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,” id. 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,
writing for the unanimous Court, Chief Justice Burger explained:
Congress has now provided that tests or criteria
for employment or promotion may not
provide equality of opportunity merely in the
No. 17-1206 37
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 jobseeker
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). The Court framed the issue and
its holding as applying to the use of aptitude and personality
tests for both hiring and promotion decisions because those
were the facts at issue. A decision that applied only to intra-
Duke transfers, as the majority reads it now, would have
missed the whole point of plaintiffs’ case.
Everyone understood that Griggs was the case testing disparate-
impact coverage nationally. Given the class definition
that included future job applicants, all judicial officers, parties,
and amici understood that the stakes included protection
for job applicants.4 The amicus brief for the United States argued
that the Court should hold that Title VII did not permit
4 Judge Sobeloff’s dissent in the Fourth Circuit was prescient: “The
decision we make today is likely to be as pervasive in its effect as any we
have been called upon to make in recent years.” Griggs, 420 F.2d at 1237.
He continued: “The statute is unambiguous” in prohibiting “‘objective’ or
‘neutral’ standards that favor whites but do not serve business needs.” Id.
at 1238. After all, “[n]o one can doubt that [a] requirement would be invalid”
if an employer issued the “neutral” criteria that “all applicants for employment
shall have attended a particular type of school,” but “the specified
schools were only open to whites” and “taught nothing of particular
significance to the employer’s needs.” Id. (emphasis added).
38 No. 17-1206
“an employer to require completion of high school or passage
of certain general intelligence tests as a condition of eligibility
for employment in, or transfer to, jobs formerly reserved only
for whites” when these new requirements “disqualif[ied] Negroes
at a substantially higher rate than whites” and were not
“shown to be necessary for successful performance of the
jobs.” Griggs v. Duke Power Co., Brief for the United States as
Amicus Curiae at *2, 1970 WL 122637 (Sept. 4, 1970) (emphasis
added). On the other side, the Chamber of Commerce cautioned
that the “subject matter of the instant case—the utilization
of educational or test requirements to select employees
for hiring or promotion—is a matter of significant national
concern.” Brief Amicus Curiae on Behalf of the Chamber of
Commerce of the United States of America at *1–2, 1970 WL
122547 (Oct. 14, 1970) (emphasis added).5
Against this background, there can be no serious doubt
that Griggs recognized disparate-impact protection for both
current employees and job applicants. Even the Court’s takeaway
instructions for employers also addressed hiring: “Congress
has now required that the posture and condition of the
job-seeker be taken into account. … If an employment practice
which operates to exclude Negroes cannot be shown to be related
to job performance, the practice is prohibited.” 401 U.S.
at 431. And this was so despite the fact that the Court was
confronted with the same textual differences in Title VII that
5The Chamber of Commerce attorney also talked about hiring in oral
argument: “We’re talking about objective means of choosing which employee
should fit in to a particular job or which employee should be hired in
the first place….” Transcript of Oral Argument, Griggs, 401 U.S. 424 (No.
70-124), available at http://www.oyez.org/cases/1970-1979/1970/1970_124
(emphasis added).
No. 17-1206 39
we face in the ADEA today: the explicit reference to “hiring”
in paragraph (a)(1), its omission in (a)(2), and the phrase “or
otherwise adversely affect his status as an employee” in (a)(2).
The majority in this case therefore has its facts exactly
backwards in asserting that “[n]owhere in Griggs did the
Court state that its holding extended to job applicants.” Ante
at 9. One cannot reasonably read hiring and job applicants out
of the opinion. After Griggs, no competent lawyer would have
counseled employers that they were prohibited from basing
only intra-company transfers and promotions on “neutral”
but non-job-related tests, but remained free to use the same
tests when hiring new employees.
B. Griggs’ Aftermath and Title VII’s 1972 Amendment
1. Later Judicial Treatment of Griggs
Unlike the majority here, courts, employers, and scholars
took Griggs at its word that its holding was broad and not limited
to intra-company transfers and promotions. Within two
years, a “plethora of prominent and forceful federal court rulings—
from district court judges to the Supreme Court but
perhaps most pointedly from the courts of appeal—
had already won … sweepingly wide proactive employer
compliance with Title VII’s strictures.” David J. Garrow, Toward
a Definitive History of Griggs v. Duke Power Co., 67 Vand.
L. Rev. 197, 230 (2014).
Later Supreme Court decisions continued to read Griggs
as governing hiring practices. E.g., Albemarle Paper Co. v.
Moody, 422 U.S. 405, 427 (1975) (“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
40 No. 17-1206
select applicants for hire or promotion in a racial pattern”) (emphasis
added); 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”);
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); Texas Dep’t of Housing, 135 S. Ct. at 2517 (explaining
that Griggs “held that ‘business necessity’ constitutes
a defense to disparate-impact claims” and did “not prohibit
hiring criteria with a ‘manifest relationship’ to job performance”)
(emphasis added), quoting Griggs, 401 U.S. at 432. In
short, lower federal courts have no business dismissing as
careless dicta the Griggs references to job applicants.
2. Title VII’s 1972 Revision
None of the Court’s later references to Griggs’ application
to hiring even mention, let alone rely on, the fact that, as part
of a major 1972 revision to Title VII, Congress also engaged in
some statutory housekeeping and added an express reference
to “applicants for employment” to the disparate-impact provision,
§ 2000e-2(a)(2). Pub. L. No. 92-261, § 8(a), 86 Stat. 109
(1972). But the majority, apparently without engaging with
the facts of the Griggs litigation or the legislation, opines that
the 1972 Amendment actually “reflected Congress’s swift and
clear desire to extend Title VII’s disparate impact protection to
job applicants.” Ante at 10 (emphasis added). The facts show
again that the majority has it exactly wrong.
No. 17-1206 41
The year after Griggs, Congress enacted the Equal Employment
Opportunity Act of 1972. It was a major bill designed to
expand the powers of the EEOC and the scope of Title VII. But
not every provision was important or controversial. The Act
included this minor amendment not to change the law but to
codify existing law as decided in Griggs.
The 1964 Act had confined the EEOC’s role to “investigation,
persuasion, and conciliation,” and unlike other major
agencies, it “lacked the authority to issue cease-and-desist orders
or to initiate legal action in the federal courts.” Herbert
Hill, The Equal Employment Opportunity Acts of 1964 and 1972,
2 Berkeley J. Emp. & Labor L. 1, 7–8 (1977). The Department
of Justice, which did have authority to sue to enjoin employment
discrimination, filed “few suits” and “obtain[ed] only
minimal benefits for the complainants.” Id. at 29. By the end
of 1971, the year Griggs was decided, the EEOC was already
“handicapped by a backlog of more than 23,000 unresolved
complaints of discrimination” and was subject to withering
criticism. Id. at 31–33. There was concern that Title VII’s results
had been “disappointing” and “in most respects, proved
to be a cruel joke to those complainants who have in good
faith turned toward the Federal Government [which] cannot
compel compliance”; thus there was general resolve that
“promises of equal job opportunity made in 1964 must be
made realities in 1971.” Id. at 47–48, quoting S. Rep. No. 415,
92nd Cong., 1st Sess. 8 (1971).
The EEOC’s limited powers were noted early. Efforts to
strengthen it began almost immediately after the 1964 enactment.
Id. at 32–33. It was clear, however, “that employers were
vigorously opposed to any measure designed to increase the
effectiveness of the law,” and “[b]usiness interests conducted
42 No. 17-1206
an intensive lobbying campaign against the various proposals
to extend Title VII coverage, provide enforcement power to
the EEOC, or strengthen the antidiscrimination statute in any
way.” Id. at 33.
This years-long battle culminated in the 1972 Act. The
Act’s major provisions: authorized the EEOC “to initiate civil
suits in federal district courts”; retained the then-controversial
private right of action; created a new Office of General
Counsel; expanded coverage to a larger number of private
employers, most state and local government employees, and
federal employees; and deleted the exemption for educational
institutions. Id. at 50–58; Conf. Rep. on H.R. 1746, reprinted in
118 Cong. Rec. 7166, 7166–69 (March 6, 1972).
3. Clarifying the Title VII Disparate-Impact Provision
Along with these major changes, § 8(a) of the 1972 Act
amended Title VII’s disparate-impact language in § 2000e-
2(a)(2) to add the reference to “applicants for employment.”
Pub. L. No. 92-261, § 8(a), 86 Stat. 109 (1972). The majority argues
that, in light of this addition, concluding that Griggs had
already covered job applicants “renders the 1972 amendment
a meaningless act of the 92nd Congress.” Ante at 10. Without
considering the facts of the 1972 legislation as a whole, the
majority has leaped to the wrong conclusion. It has overlooked
the long-recognized difference between substantive
and clarifying statutory amendments.
First, Congress was well aware of Griggs. The Court’s
opinion was mentioned several times in the lengthy legislative
history—always favorably and typically described in
terms tracking the discussion of Griggs above. One House report
quoted Griggs to emphasize the importance of disparate
No. 17-1206 43
impact protections for “the job seeker” before noting that the
“provisions of the bill are fully in accord with the decision of
the Court.” H.R. Rep. 92-899 at 21–22, reprinted in 118 Cong.
Rec. 2156–57 (March 2, 1972), quoting Griggs, 401 U.S. at 431.
Another House report described Griggs as 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 overriding business necessity.”
H.R. Rep. 92-238 at 8, reprinted at 1972 U.S.C.C.A.N. at
2144 (emphasis added).
Amid the major policy changes in the 1972 Act, the addition
of “applicants for employment” to the disparate-impact
provision was a minor change, mentioned only briefly as incorporating
existing law. The conference committee report to
the Senate said that this addition was “merely declaratory of
present laws.” 118 Cong. Rec. at 7169. Congress noted its intention
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. 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 the provision, see 86 Stat. 103,
109 (approved March 24, 1972), essentially repeating an earlier
Senate report that said this clarifying amendment “would
merely be declaratory of present law.” S. Rep. 92-415 at 43
(Oct. 28, 1971). Beyond these brief mentions, the addition of
“applicants for employment” appeared not worthy of explanation
at all.6
6 The House version of the conference committee report contained the
text of § 8(a) but provided no explanation. See H.R. Rep. 92-899 at 8, 19–
44 No. 17-1206
Consider these sparse comments in context. The recognition
of disparate-impact liability in Griggs had been controversial
and hard-fought between civil rights advocates and
employers. If Congress thought in 1972 that it was changing
the law to extend disparate-impact protection to reach job applicants,
that change surely would have been significant
enough to mention in the detailed committee reports.
And beyond Congress’s silence about such a supposedly
major change in the legislation, it beggars belief to think that
employer groups would have let such an amendment pass
without mention.7 If, as the majority claims here, Griggs had
actually left open whether job applicants were covered by Title
VII’s disparate impact provision, the Chamber and other
employer groups would not have been silent. But they had
already fought that battle, and they knew they had lost.
The majority is right that courts often assume that statutory
amendments are intended to change the law. Ante at 11,
citing, e.g., United States v. Quality Stores, Inc., 572 U.S. 141, 148
20, reprinted in 92nd Cong., 118 Cong. Rec. 6643, 6645, 6648 (March 2,
1972). An earlier House report mentioned § 8(a) only in passing in the section-
by-section analysis. See id. at 20–22, 30, reprinted in 1972
U.S.C.C.A.N. at 2155–57, 2165.
7 Just months earlier, the Chamber of Commerce’s attorney had
argued to the Griggs Court:
This case is one which is a vital concern to employers, both small and
large throughout the United States. In today’s labor market, there are
often many applicants for the job, just as there are many employees
who desire to be promoted [and] the employer must make a choice …
often a difficult one.
Transcript of Oral Argument, Griggs, 401 U.S. 424 (No. 70-124), available
at http://www.oyez.org/cases/1970-1979/1970/1970_124.
No. 17-1206 45
(2014). But the majority overlooks the long-recognized reality
that many statutory amendments are intended only to clarify
existing law, not to change it. E.g., Singer, 1A Sutherland Statutes
and Statutory Construction § 22:34 (7th ed. 2010).
The distinction is relevant most often in disputes over
whether to give an amendment retroactive effect. Substantive
amendments that change the law are rarely given retroactive
effect, while “clarifying” amendments are routinely given
such effect. See, e.g., United States ex rel. Garbe v. Kmart Corp.,
824 F.3d 632, 642 (7th Cir. 2016) (collecting cases). In this case,
the distinction has a dramatic effect on what the 1972 amendment
tells us about the scope of Griggs and the proper interpretation
of the original Title VII language, which is identical
to the ADEA language we interpret here.
How to tell when an amendment is substantive and when
only clarifying? We explained in Garbe:
In deciding whether an amendment is clarifying
rather than substantive, we consider
“[1] whether the enacting body declared that it
was clarifying a prior enactment; [2] whether a
conflict or ambiguity existed prior to the
amendment; and [3] whether the amendment is
consistent with a reasonable interpretation of
the prior enactment and its legislative history.”
824 F.3d at 642, quoting Middleton v. City of Chicago, 578 F.3d
655, 663–64 (7th Cir. 2009).
The evidence on all three of these factors shows that the
1972 amendment to the Title VII disparate-impact language
was clarifying, not substantive. As shown above: (1) The enacting
body announced that the new language only declared
46 No. 17-1206
current law and was consistent with Griggs. (2) Before the
1972 amendment, disparate-impact coverage for outside job
applicants had been established in Griggs; that coverage was
certainly no worse than ambiguous. (3) The 1972 amendment
was “consistent with a reasonable interpretation of the prior
enactment and its legislative history.” That’s exactly how the
Supreme Court had read the language a year earlier in Griggs
and how the decision was described in the 1972 amendment’s
legislative history.
In short, the facts refute the majority’s unsupported claim
that the 1972 amendment showed Congress’s “swift and clear
desire to extend Title VII’s disparate impact protection to job
applicants.” Ante at 10. Without evidence that Congress was
“extending” Title VII, there is no foundation here for the majority’s
further inference that Congress in 1972 was silently
endorsing a narrower interpretation of identical language in
the ADEA. The ADEA was never mentioned in the larger 1972
Act itself or in the conference report describing it. The 1972
Act amended only provisions of the 1964 Act and provides no
support for the majority’s narrower interpretation of the
ADEA.
C. Griggs and Smith v. City of Jackson
In a further effort to diminish Griggs, the majority offers
what it calls a “commonsense observation.” If it was so clear
that Griggs’ Title VII analysis should apply to the ADEA’s
identical disparate-impact language, then it is “very difficult
to explain why it took the Supreme Court 34 years to resolve
whether anyone—employee or applicant—could sue on a disparate
impact theory under the ADEA, as it did in Smith v.
City of Jackson, 544 U.S. 228 (2005).” Ante at 8–9. Yet again, the
No. 17-1206 47
majority ignores the facts. It’s easy to explain. The Court’s
opinion in Smith did so.
After emphasizing Title VII and the ADEA’s “identical
text” and “striking” contextual parallels, Smith noted somewhat
bemusedly: “Indeed, for over two decades after our decision
in Griggs, the Courts of Appeals uniformly interpreted
the ADEA as authorizing recovery on a ‘disparate-impact’
theory in appropriate cases.” 544 U.S. at 233–37 & n.5. Without
a circuit split over identical statutory language, there had
been no need for the Supreme Court to step in.
In Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993), however,
the Court observed that “we have never decided
whether a disparate impact theory of liability is available under
the ADEA” and “we need not do so here.” Id. at 610. A
concurring opinion in Hazen Paper emphasized that “nothing
in the Court’s opinion should be read as incorporating in the
ADEA context the so-called ‘disparate impact’ theory of Title
VII of the Civil Rights Act of 1964” as “there are substantial
arguments that it is improper to carry over disparate impact
analysis from Title VII to the ADEA.” Id. at 618. Those comments
finally led to a circuit split on the question.8
8 A year after Hazen Paper, we held that the ADEA did not permit any
disparate-impact liability. EEOC v. Francis W. Parker School, 41 F.3d 1073,
1075 (7th Cir. 1994). In rejecting the reasoning in Griggs, we mistakenly
emphasized the textual difference between Title VII and the ADEA, see 41
F.3d at 1077–78, overlooking the fact that Griggs, decided in 1971, considered
exactly the same disparate-impact language that is in the ADEA. Inexplicably,
the majority now repeats the same error: “We underscored this
exact difference 14 years ago in our opinion in Francis W. Parker, and we
do so again today”—“The ‘mirror’ provision in the ADEA omits from its
48 No. 17-1206
The Supreme Court then granted review in Smith to resolve
the circuit split.9 Smith endorsed the view that had been
uniform before Hazen Paper: the ADEA recognizes disparateimpact
claims. See 544 U.S. at 237 n.8, 240.
In fact, Smith cited with approval cases allowing disparateimpact
ADEA claims by job applicants and others who did
not have, according to the majority here, “status as an employee.”
Id. at 237 n.8, citing Faulkner v. Super Valu Stores, Inc.,
3 F.3d 1419, 1423–24 (10th Cir. 1993) (laid-off warehouse
workers applying for jobs with new buyer of warehouse);
Wooden v. Board of Educ. of Jefferson Cty., 931 F.2d 376, 377 (6th
Cir. 1991) (applicant for full-time teaching positions).10 Smith
coverage, ‘applicants for employment.’” Ante at 13. This was simply not
so in Griggs.
9 The Chamber of Commerce again weighed in, arguing against extending
Griggs’ disparate-impact analysis to the ADEA. The Chamber had
still not, however, hit upon the textual reading argued here, that job applicants
should be excluded from the ADEA’s disparate-impact provision.
Brief of Amicus Curiae Chamber of Commerce of the United States of
America in Support of Respondents, 2004 WL 1905736 at *15 (Aug. 23,
2004) (conceding that the reasoning of Griggs, which prohibited “segregation
of departments by race,” “applies equally to the ADEA, which sought
to eliminate these kinds of express age ‘limits’ and ‘classifications,’ which
frequently were used against older workers. E.g. Labor Report at 21 (discussing
‘persistent and widespread use of age limits in hiring’).”).
10 Other earlier cases not cited in Smith had also allowed disparateimpact
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 reapplied
but were 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 younger applicant due to “cost-cutting policy”);
Leftwich v. Harris-Stowe State College, 702 F.2d 686, 689–90 (8th Cir. 1983)
(faculty member forced to re-apply for job and not hired).
No. 17-1206 49
thus seemed to end the questioning of Griggs’ relevance to the
ADEA’s disparate-impact provision. See, e.g., 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); Texas Dep’t of Housing, 135 S. Ct. at
2518.
Smith did not end the long tug-of-war between employers
and workers over competing interpretations of civil rights
legislation. The authors of Hazen Paper concurred in Smith but
planted the seed of today’s dispute. Justice O’Connor, joined
by Justices Kennedy and Thomas, concurred in the judgment
“on the ground that disparate impact claims are not cognizable.”
Smith, 544 U.S. at 248. A primary reason, they argued,
not to defer to the EEOC’s regulation that treated § 623(a)(2)
as covering disparate-impact claims, was because the regulation
also read the provision to cover employers’ hiring practices—
and thus protected applicants for employment. Id. at
266. The concurrence pointed to the difference in language between
§ 623(a)(1) and (a)(2) and asserted that “only”
§ 623(a)(1) protects applicants and therefore the EEOC regulation
“must” have read a disputed ADEA provision to “provide
a defense against claims under [§ 623(a)(1)]—which unquestionably
permits only disparate treatment claims.” Id.
Obviously that view did not carry the day in Smith.11
Still, here we are. The resources that employers deployed
in Smith to try to avoid all ADEA disparate-impact claims
11 Justice Scalia’s concurrence specifically rejected that reasoning as to
the EEOC regulation and, since the line drawing between applicants and
current employees was beyond the scope of Smith itself, expressed his agnosticism
on that issue. Smith, 544 U.S. at 246 n.3.
50 No. 17-1206
have been repurposed. Now they are deployed in a new campaign
to show that the “plain text” of § 623(a)(2) permits employers
to maintain irrational policies that disadvantage older
individuals so long as those individuals have not yet been
hired by the employer. Today’s majority is not the first circuit
to bite on this argument. The Eleventh Circuit has beaten us
to it, ironically producing four opinions on the “plain” meaning
of the text. Villareal v. R.J. Reynolds Tobacco Co., 839 F.3d
958 (11th Cir. 2016) (en banc). We should not adopt this deliberately
naïve and ahistorical approach.
III. Practical Consequences and Statutory Purpose
The text and precedent favor the view that job applicants
may bring disparate-impact claims under the AEDA. In construing
ambiguous statutory language, it also makes sense to
consider the practical consequences of the different readings
of § 623(a)(2) and how they fit with the overall statute’s design
and purpose. E.g., Graham County, 559 U.S. at 299–301 (considering
practical consequences when determining better
reading of statute); Dewsnup v. Timm, 502 U.S. 410, 416–20
(1992) (same); Burwell, 135 S. Ct. at 2489 (same). Those considerations
weigh heavily against the majority here.
A simple hypothetical shows how improbable and arbitrary
the majority’s reading is. Suppose the majority is correct
that § 623(a)(2) applies only to current employees. Imagine
two applicants for the defendant’s senior counsel position
here. 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 works for 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
No. 17-1206 51
of experience. According to the majority, the inside applicant
can sue for a disparate-impact violation, but the outside one
cannot.
That result is baffling, especially under a statute with the
stated purpose “to prohibit arbitrary age discrimination in
employment.” 29 U.S.C. § 621(b). And the majority’s view depends
entirely on the assumption that the statutory phrase
“otherwise adversely affect his status as an employee” cannot
possibly be applied to an individual who is, because of the
challenged employment practice, completely denied any status
as an employee. I cannot imagine that when the ADEA was
enacted, “a reasonable person conversant with applicable social
conventions would have understood” the ADEA as drawing
the line the majority adopts 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) (legislative history may provide context for statutory
language and “may be invaluable in revealing the setting of
the enactment and the assumptions its authors entertained
about how their words would be understood”).
Under the majority’s interpretation, still further arbitrary
line-drawing will now be needed. Suppose the applicant is
currently employed by a sister subsidiary of the employer.
Does she have the right “status as an employee” so that she
can assert a disparate impact claim? Should the answer depend
on some sort of corporate veil-piercing theory? 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 position through a temporary employment
52 No. 17-1206
agency, working side-by-side with employees. I see no arguable
reason to exclude any of these applicants from the disparate-
impact protection of paragraph (a)(2).
Neither the majority nor the defendant or its amici have
offered a reason why Congress might have chosen to allow
the inside applicant but not the outside applicant to assert a
disparate-impact claim. I can’t either. Faced with the arbitrary
consequences of drawing this line half a century after Congress
drafted the legislation, the majority shrugs and says tautologically
that it’s “the province of Congress to choose where
to draw legislative lines and to mark those lines with language.”
Ante at 14.12
Of course, Congress can and often does draw arbitrary
lines when it wants to do so. When it does, courts enforce
12 Far from offering a reason, defendant defiantly claims that just because
Congress has drawn the line between “employees” and “applicants”
“for no good reason, and that the line might create hypothesized
anomalies, [that] is no reason to disregard Congress’ words.” Petition for
Rehearing En Banc, Dkt. 43 at 10 (May 10, 2018). The Chamber of Commerce
amicus brief feints toward ascribing intent to Congress, arguing
that foreclosing applicants from recourse was “[o]ne of the careful lines
drawn by Congress” because the ADEA “strikes a careful balance between
prohibiting irrational barriers to employment of older workers and preserving
employers’ ability to adopt sound hiring policies.” Dkt. 19 at 3, 1
(Sept. 6, 2018). There is no evidence of such a deliberate choice in
§ 623(a)(2). Under the Chamber’s theory, that “balance” is shifted entirely
in employers’ favor. An employer can set wildly irrational hiring criteria—
such as requiring Twitter, Instagram, and Snapchat proficiency for
an entry-level position at a fast-food joint, which would likely have a large
disparate impact on older workers. As long as that position is not open to
internal applicants, that would be a highly effective yet immune “barrier
to employment of older workers.” That’s not a “careful line.” It’s nonsense.
No. 17-1206 53
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 the statutory language is at
worst ambiguous, see above at 21–27, courts should not embrace
such arbitrary results so at odds with the stated statutory
purpose. 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”).
The majority’s arbitrary line undermines the stated purpose
of the statute. Statutory purpose here is not a matter of
judicial inference but of statutory declaration in the text enacted
by both Houses of Congress and signed by the President.
Congress enacted the ADEA to address unfair employment
practices that make it harder for older people to find
jobs. 29 U.S.C. § 621(a). That purpose was reflected in a variety
of statutory provisions, as noted above. In addition to the statute’s
specific reliance on its stated purpose, we know 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. Report of the Secretary of La54
No. 17-1206
bor, The Older American Worker: Age Discrimination in Employment
(June 1965), reprinted in U.S. Equal Employment Discrimination
in Employment Act (1981), Doc. No. 5 (the Wirtz
Report).
Under the majority’s reading of § 623(a)(2), the ADEA’s
protection of the “employment opportunities” of “any individual”
prohibits employment practices with disparate impacts
in firing older workers and in promoting, paying, and
managing them, but not in hiring them! Congress was 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. 226, 231 (1983) (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).
A central goal—arguably the most central goal—of the
statute was to prevent age discrimination in hiring. Congress
and the Wirtz Report explained 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 also
Smith, 544 U.S. at 235 n.5. Those neutral standards and other
thoughtless or even well-intentioned employment practices
can be addressed only with a disparate-impact theory under
No. 17-1206 55
§ 623(a)(2). The report made clear that the older people who
suffered the disparate impact from such practices were 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.” Wirtz Report at 2 (emphasis
added).
Against this evidence of contemporary understandings,
the majority offers no plausible policy reasons, but only its
wooden and narrow textual interpretation, which is anything
but inevitable. Wearing blinders that prevent sensible interpretation
of ambiguous statutory language, the majority
adopts the improbable view that the Act outlawed employment
practices with disparate impacts on older workers, but
excluded from that protection everyone not already working
for the employer in question.
* * *
Given the statutory language in § 623(a)(2), the interpretation
of that language in Smith and identical language in
Griggs, the practical consequences of the interpretive choice,
and the absence of any policy rationale for barring outside job
applicants from raising disparate-impact claims, we should
reject the improbable and arbitrary distinction adopted by the
majority. We should hold that outside job applicants like
Kleber may bring disparate-impact claims of age discrimination.
I respectfully dissent.

Outcome: Affirmed

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