Dale Kleber v. CareFusion Corporation

• Court: Court of Appeals for the Seventh Circuit
• Decided: January 23, 2019
• Docket: 17-1206
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 17-1206 DALE E. KLEBER, Plaintiff-Appellant, v.

CAREFUSION CORPORATION, Defendant-Appellee. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:15-cv-1994 — Sharon Johnson Coleman, Judge. ____________________

ARGUED SEPTEMBER 6, 2018 — DECIDED JANUARY 23, 2019 ____________________

Before WOOD, Chief Judge, and BAUER, FLAUM, EASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT, BRENNAN, SCUDDER, and ST. EVE, Circuit Judges. SCUDDER, Circuit Judge. 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 dis- trict court, now hold that the plain language of § 4(a)(2) makes clear that Congress, while protecting employees from dispar- ate impact age discrimination, did not extend that same pro- tection 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 in- house position in CareFusion’s law department. The job de- scription 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 perti- nent 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 un- der § 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 dis- parate treatment liability under § 4(a)(1). This appeal fol- lowed. No. 17-1206 3

II A We begin with the plain language of § 4(a)(2). “If the stat- utory language is plain, we must enforce it according to its terms.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015). This pre- cept 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 de- prive any individual of employment opportuni- ties 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 em- ployers and limits its protection to employees. The prohibited conduct entails an employer acting in any way to limit, segre- gate, or classify its employees based on age. The language of § 4(a)(2) then goes on to make clear that its proscriptions ap- ply only if an employer’s actions have a particular impact— “depriv[ing] or tend[ing] to deprive any individual of em- ployment opportunities or otherwise adversely affect[ing] his status as an employee.” This language plainly demonstrates that the requisite impact must befall an individual with “sta- tus 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 [appli- cant],” while defining “employee” as “one employed by an- other 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 con- duct 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 af- fect his status as an employee”—to extend the proscribed con- duct. Congress’s word choice is significant and has a unifying effect: the use of “or otherwise” serves to stitch the prohibi- tions and scope of § 4(a)(2) into a whole, first by making clear that the proscribed acts cover all conduct “otherwise af- fect[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 pre- cede 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 em- ployed 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 pro- vision covers “any individual” deprived of an employment opportunity because such conduct “adversely affects his sta- tus as an employee.” Put differently, ordinary principles of grammatical construction require connecting “any individ- ual” (the antecedent) with the subsequent personal possessive pronoun “his,” and upon doing so we naturally read “any in- dividual” 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 re- gard 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 be- yond § 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 dispar- ate treatment provision. In § 4(a)(1), Congress made it unlaw- ful 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 privi- leges 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 dis- charge,” 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 appli- cants 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 noth- ing: “when ‘Congress includes particular language in one sec- tion 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 engag- ing 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 de- prive any individual of employment opportuni- ties … or otherwise adversely affect his status as an employee or as an applicant for employment, be- cause of such individualʹs age. 29 U.S.C. § 623(c)(2) (emphasis added). The parallel with § 4(a)(2) is striking: both provisions de- fine the prohibited conduct in terms of action that “would de- prive or tend to deprive any individual of employment op- portunities,” 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 indi- vidual with “status as an employee or as an applicant for em- ployment,” whereas Congress limited § 4(a)(2)’s reach only to someone with “status as an employee.” Consider yet another example. In § 4(d), Congress ad- dressed employer retaliation by making it “unlawful for an employer to discriminate against any of his employees or appli- cants 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 ad- monition 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 sen- tence 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 par- ticular language in one section of a statute but omits it in an- other”). 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 dis- agree. 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 cer- tain 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 pro- vision 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 opera- tion” unless an employer can show that the challenged prac- tice is “related to job performance” and thus a “business ne- cessity.” Id. at 431. Kleber would have us read Griggs beyond its facts by fo- cusing on language in a couple of places in the Court’s opin- ion 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 appli- cants, required the Court to answer that question. The lan- guage 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 dif- ferent, higher-paying jobs within the company. What happened a year after Griggs cements our conclu- sion. 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 im- mediate 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 amend- ment a meaningless act of the 92nd Congress, and we are re- luctant to conclude that substantive changes to statutes reflect idle acts. The Supreme Court endorsed this precise course of analy- sis—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 chal- lenged decision. See id. Paramount to the Court’s conclusion that an ADEA plaintiff must prove but-for causation were tex- tual 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 [motivat- ing-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 con- struction 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 enact- ments. 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 Con- gress 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 infer- ence 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 dis- senting 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, in- cluding 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 opin- ion 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 ex- tended not just to “employees” (a term used in § 704(a)), but also to former employees. See id. at 346. The Court empha- sized that, while the meaning of “employees” was ambigu- ous, 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 “appli- cants 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 statu- tory 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 discrimi- nation. 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 appli- cants, 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 mean- ing. Robinson v. Shell Oil Corp., 519 U.S. 337 (1997), held that the word “employees” in one part of Title VII includes ex- employees. Robinson interpreted text in context. Here, too, the judiciary must look outside one subsection to tell wheth- er “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 stat- ute. 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 en- acted 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 em- ployment, 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 com- ply 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 ad- versely 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 stat- ute 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) ap- plies disparate-impact analysis to all employment actions. That leaves little or nothing for paragraph (1) to do, for par- agraph (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 disparate- impact 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 disparate- impact analysis across the board. Yet this does not help us to 18 No. 17-1206

know what “individual” in paragraph (2) does mean. Per- haps Justice O’Connor was right in Smith, 544 U.S. at 247–68 (concurring opinion), and we should not impute disparate- impact liability to paragraph (2). The question we are ad- dressing 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 so- lution, 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 care- less to treat outside applicants for employment as “individ- uals” in paragraph (2), but that is what the Justices did. Part II of Judge Hamilton’s opinion shows how this came to hap- pen 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) dismis- sal of plaintiff Dale Kleber’s disparate impact claim and re- mand for further proceedings. The key provision of the Age Discrimination in Employment Act prohibits both employ- ment practices that discriminate intentionally against older workers and those that have disparate impacts on older work- ers. 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 dispar- ate-impact provision, § 623(a)(2), protects only current em- ployees 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 pro- tect 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 lan- guage 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 nar- rowing Griggs and attributing significance to the 1972 amend- ment 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 un- supported theories. Part III explains that protecting both outside applicants and current employees is also more consistent with the pur- pose 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 cur- rent employees, including internal job applicants, while ex- cluding outside job applicants. The en banc majority does not even try to do so, following instead a deliberately naïve ap- proach 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 ana- lyze 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 provi- sions.” 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 Su- preme Court explained in dealing with a similar issue in Title VII: “The plainness or ambiguity of statutory language is de- No. 17-1206 21

termined by reference to the language itself, the specific con- text in which that language is used, and the broader context of the statute as a whole.” Robinson, 519 U.S. at 341, 346 (pro- tection of “employees” from retaliation included former em- ployees). 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 compensa- tion, terms, conditions, or privileges of employ- ment, because of such individual’s age; (2) to limit, segregate, or classify his employ- ees in any way which would deprive or tend to deprive any individual of employment oppor- tunities 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 mak- ing it unlawful for the employer “to fail or refuse to hire … any individual … because of such individual’s age.” The dis- parate-impact provision, paragraph (a)(2), also does not refer specifically to applicants or hiring decisions, but its broad lan- guage 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 engag- ing in certain behavior. Under paragraph (a)(1), an employer may not intentionally discriminate against an older individ- ual by firing or failing to hire or promote her because she is older—i.e., engage in disparate treatment of older individu- als. Paragraph (a)(2) prohibits an employer from creating an internal employee classification or limitation that has the ef- fect of depriving “any individual of employment opportuni- ties” 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 expe- rience requirements, it is classifying its employees within the meaning of paragraph (a)(2). If that classification “would de- prive or tend to deprive any individual of employment op- portunities” 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 classi- fied jobs in a way that tends to limit any individual’s employ- ment opportunities based on age. See Smith, 544 U.S. at 234, 235–38 (plurality) (explaining that this “text focuses on the ef- fects of the action” and not the employer’s motive); id. at 243 (Scalia, J., concurring).1 The defendant’s maximum-experi- ence requirement in this case certainly limited plaintiff Kleber’s employment opportunities.

1Justice 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 em- ployee,” reading it to limit the statute’s disparate-impact pro- tection “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 individ- ual” 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 para- graph (a)(2) subtly limits its protections from disparate im- pacts 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 de- prive any current employee [not “any individual”] of employ- ment 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 individ- ual” 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 ab- sent 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 plau- sibility, 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 the- ory gives the phrase “any individual” very different mean- ings 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 subsec- tions). 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 em- ployment opportunities such as better jobs and promotions. In this sense, paragraph (a)(2) “enumerates various factual means of committing a single element”—imposing employ- ment policies that have disparate impacts on older workers. See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (dis- cussing 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 remark- ably 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 lan- guage also required public availability after a sale. The pa- tentee “places too much weight on [the] catchall phrase. Like other such phrases, ‘otherwise available to the public’ cap- tures material that does not fit neatly into the statute’s enu- merated categories but is nevertheless meant to be covered.” See also Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009) (ex- plaining 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 disparate- impact 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 tex- tual foundations for disparate-impact protection)—the major- ity’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 con- clusion also depends entirely on the unlikely notion that “sta- tus as an employee” is not “adversely affected” when an em- ployer denies an individual the opportunity to become an em- ployee 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 re- peatedly referring to “individuals,” and with ordinary usage. Courts often speak of “denying status” of one sort or another.2

2Judge 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 provid- ing 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 af- fects 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 pro- tection, 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 ma- jority largely disregards. Congress told us it set out to address “the incidence of unemployment, especially long-term unem- ployment” 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 employ- ment 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 distin- guish 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 organiza- tions. 29 U.S.C. § 623(a)–(c); see also § 630(b) (defining “em- ployer”). Subsections (a), (b), and (c) are all worded slightly differently. In the following subsection (d), the ADEA prohib- its 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 provi- sion in § 623(d), and the federal government provision in § 633a(a). All three of these provisions use the phrase “appli- cant for employment.” The majority invokes the common pre- sumption that a difference in statutory wording signals a dif- ference in Congressional intent and meaning. That presump- tion, 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 dis- tinguish the ADEA’s disparate-impact provision from these other provisions to produce such an improbable result as ex- cluding older job applicants from disparate-impact protec- tion. Instructive here is the Supreme Court’s approach to inter- preting the term “employee” in Title VII’s anti-retaliation pro- vision. 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 ei- ther availed themselves of Title VII’s protections or assisted others in doing so. 42 U.S.C. § 2000e-3(a). The issue in Robin- son 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 ‘cur- rent 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 con- text 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 unqual- ified 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: “Be- cause 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 in- clusion of the term ‘applicants’ demonstrations intentional ex- clusion 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 pro- tection afforded by § 704(a),” and “undermine the effective- ness of Title VII by allowing the threat of postemployment re- taliation to deter victims of discrimination from complaining to the EEOC, and would provide a perverse incentive for em- ployers 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 es- cape liability for “an entire class of acts”—“carry persuasive force given their coherence and their consistency with a pri- mary 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 ap- plicants—employment agencies, labor unions, and federal No. 17-1206 31

agencies—are prohibited from engaging in age discrimina- tion, 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 conse- quences 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 appli- cants, 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 en- acted in 1964 included disparate-impact protection for both job-seekers and current employees seeking promotions. That authoritative construction of identical language should con- trol 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 statu- tory language in Griggs (Title VII) and Smith (ADEA) to inter- pret 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 Manage- ment 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 discrim- ination 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 lan- guage of Title VII’s parallel disparate-treatment and dispar- ate-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 compensa- tion, terms, conditions, or privileges of employ- ment, because of such individual’s race, color, religion, sex, or national origin; or No. 17-1206 33

(2) to limit, segregate, or classify his employ- ees in any way which would deprive or tend to deprive any individual of employment oppor- tunities 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 dif- ference between Title VII’s § 703(a)(2) and the ADEA’s § 623(a)(2) is the substitution of “age” for “race, color, reli- gion, sex, or national origin.” That’s why Smith v. City of Jack- son described Griggs as “a precedent of compelling im- portance” in interpreting the ADEA’s disparate-impact lan- guage. 544 U.S. at 234. In Griggs, the Supreme Court unanimously held that Title VII “proscribes not only overt discrimination but also prac- tices 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, ra- ther 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 be- cause “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 ma- jority’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) (em- phasis added). After remand from the Supreme Court, the district court enjoined Duke Power from, among other prac- tices, “administering any personnel or aptitude tests or re- quiring 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 ap- plied 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., dissent- ing); id. at 1228–29 (majority). Before the civil rights move- ment, white and black employees (within their respective seg- regated departments) had been hired and promoted with No. 17-1206 35

middle school levels of education or less, and certainly with- out 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 employ- ees (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 de- partments” without high school diplomas faced “no re- striction on transfer from any of the inside departments to the other two inside departments.” Id. at 1246 (Sobeloff, J., dis- senting). It was “only the outsiders” (e.g., entirely new appli- cants 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 re- quirement for transfer. The aptitude tests were offered at the coal employ- ees’ 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 employ- ees 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 lily- white.” Id. at 1247. Thus, it made no legal difference that the named class rep- resentatives were existing Labor Department employees chal- lenging 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 trans- fers: all new applicants and the Labor Department plaintiffs had to meet Duke’s educational and testing standards to ap- ply 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 Su- preme Court framed the issue as whether an employer could require a high school education or passing a general intelli- gence 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 em- ployees” and to “tests or criteria for employment or promo- tion.” Id. at 427, 431 (emphasis added). Even more clearly, writing for the unanimous Court, Chief Justice Burger ex- plained: Congress has now provided that tests or cri- teria 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 re- quired that the posture and condition of the job- seeker be taken into account. It has—to resort again to the fable—provided that the vessel in which the milk is proffered be one all seekers can use. The Act proscribes not only overt discrimi- nation 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 dis- parate-impact coverage nationally. Given the class definition that included future job applicants, all judicial officers, par- ties, and amici understood that the stakes included protection for job applicants.4 The amicus brief for the United States ar- gued 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 inva- lid” if an employer issued the “neutral” criteria that “all applicants for em- ployment shall have attended a particular type of school,” but “the speci- fied 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] Ne- groes 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 cau- tioned that the “subject matter of the instant case—the utili- zation 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 take- away instructions for employers also addressed hiring: “Con- gress 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 re- lated 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 em- ployee 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 lim- ited to intra-company transfers and promotions. Within two years, a “plethora of prominent and forceful federal court rul- ings—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, To- ward 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 “com- plaining party or class” must show “that the tests in question 40 No. 17-1206

select applicants for hire or promotion in a racial pattern”) (em- phasis 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 pat- tern”); 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 opportu- nities to a disproportionate number of blacks” and were therefore invalid); Texas Dep’t of Housing, 135 S. Ct. at 2517 (ex- plaining 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 perfor- mance”) (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 pro- vision, § 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 Employ- ment 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 “investiga- tion, persuasion, and conciliation,” and unlike other major agencies, it “lacked the authority to issue cease-and-desist or- ders 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 employ- ment 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 re- sults 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 enact- ment. 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-controver- sial 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 ar- gues 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 over- looked 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 legisla- tive history—always favorably and typically described in terms tracking the discussion of Griggs above. One House re- port 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 pat- terns” without a “showing of an overriding business neces- sity.” 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 addi- tion of “applicants for employment” to the disparate-impact provision was a minor change, mentioned only briefly as in- corporating 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 in- tention to “make it clear that discrimination against appli- cants for employment … is an unlawful employment prac- tice” 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 ear- lier 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 expla- nation 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 recogni- tion of disparate-impact liability in Griggs had been contro- versial 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 ap- plicants, 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 Ti- tle 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 statu- tory 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 sec- tion-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 Stat- utes 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 amend- ment tells us about the scope of Griggs and the proper inter- pretation 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 en- acting 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 ma- jority’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 dis- parate 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 some- what bemusedly: “Indeed, for over two decades after our de- cision 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. With- out 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), how- ever, the Court observed that “we have never decided whether a disparate impact theory of liability is available un- der 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 com- ments 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, consid- ered exactly the same disparate-impact language that is in the ADEA. In- explicably, 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 re- solve the circuit split.9 Smith endorsed the view that had been uniform before Hazen Paper: the ADEA recognizes disparate- impact claims. See 544 U.S. at 237 n.8, 240. In fact, Smith cited with approval cases allowing disparate- impact ADEA claims by job applicants and others who did not have, according to the majority here, “status as an em- ployee.” 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 ex- tending Griggs’ disparate-impact analysis to the ADEA. The Chamber had still not, however, hit upon the textual reading argued here, that job ap- plicants 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 “segrega- tion 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 (dis- cussing ‘persistent and widespread use of age limits in hiring’).”). 10Other earlier cases not cited in Smith had also allowed disparate- impact age claims by job applicants. E.g., Lowe v. Commack Union Free School Dist., 886 F.2d 1364, 1365–70 (2d Cir. 1989) (laid-off teachers later re- applied but 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 cogniza- ble.” 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 regula- tion also read the provision to cover employers’ hiring prac- tices—and thus protected applicants for employment. Id. at 266. The concurrence pointed to the difference in language be- tween § 623(a)(1) and (a)(2) and asserted that “only” § 623(a)(1) protects applicants and therefore the EEOC regu- lation “must” have read a disputed ADEA provision to “pro- vide a defense against claims under [§ 623(a)(1)]—which un- questionably 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 ag- nosticism 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 cam- paign to show that the “plain text” of § 623(a)(2) permits em- ployers 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” mean- ing of the text. Villareal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11th Cir. 2016) (en banc). We should not adopt this delib- erately 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 con- struing 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 (con- sidering 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 consid- erations weigh heavily against the majority here. A simple hypothetical shows how improbable and arbi- trary 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 de- pends 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 so- cial conventions would have understood” the ADEA as draw- ing 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 de- pend on some sort of corporate veil-piercing theory? Or sup- pose 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 argu- able reason to exclude any of these applicants from the dis- parate-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 Con- gress drafted the legislation, the majority shrugs and says tau- tologically that it’s “the province of Congress to choose where to draw legislative lines and to mark those lines with lan- guage.” 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

12Far from offering a reason, defendant defiantly claims that just be- cause Congress has drawn the line between “employees” and “appli- cants” “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 Com- merce 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 pre- serving 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 crite- ria—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 non- sense. 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 dic- tate outcomes even though “there is no shortage of arbitrari- ness in disability cases”); First Chicago NBD Corp. v. Comm’r of Internal Revenue, 135 F.3d 457, 460 (7th Cir. 1998) (“arbitrari- ness is everywhere in the tax code, so that an approach to in- terpretation 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 em- brace such arbitrary results so at odds with the stated statu- tory 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., Ken- nedy 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 rev- ocation “supported by common sense and an assessment of the practical consequences, which naturally guide our inter- pretation of legislative enactments”). The majority’s arbitrary line undermines the stated pur- pose of the statute. Statutory purpose here is not a matter of judicial inference but of statutory declaration in the text en- acted by both Houses of Congress and signed by the Presi- dent. Congress enacted the ADEA to address unfair employ- ment 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 stat- ute’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 La- 54 No. 17-1206

bor, The Older American Worker: Age Discrimination in Employ- ment (June 1965), reprinted in U.S. Equal Employment Dis- crimination 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 indi- vidual” prohibits employment practices with disparate im- pacts in firing older workers and in promoting, paying, and managing them, but not in hiring them! Congress was con- cerned about all of these forms of discrimination. Wirtz Re- port at 21–22; see also Employment of Older Workers, 111 Cong. Rec. 15518, 15518–19 (1965) (describing Wirtz Report as urg- ing “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 … [be- cause] it deprived the national economy of the productive la- bor of millions … [and] substantially increased costs in unem- ployment 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., dispar- ate treatment), but also from “[a]ny formal employment standard” neutral on its face yet with adverse effects on oth- erwise 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 em- ployee 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 inter- pretation of ambiguous statutory language, the majority adopts the improbable view that the Act outlawed employ- ment 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 interpreta- tion 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 discrimina- tion. I respectfully dissent.