step initiation employer it ignored how the second sentence relates back to the first it jumped right to the second half of the second sentence without considering the first half and he bore how all of this relates to the foundational definition on which the definition of employer is built now predictably that wreaks havoc with the statutory scheme most notably by stripping public employees of crucial protections like respond superior and also by treating public employers worse than private ones in a statute whose purpose was to bring parity to the two there was a brief explains the best way to read the statute is from beginning to end but let me just start right in the middle as my colleagues do with the with the phrase that is causing all this mischief all soon means respondents do not dispute that that term can have to alternative meanings it could mean in addition there is an additional universe beyond that which is defined in the first sentence or it could mean further elaboration of the preceding definition along the lines of moreover or incorporates so how do we know which one is intended the rest of the context makes clear and in particular there are five separate statutory signals any one of which pushes the reading in the direction that we've proposed aided by two canons of construction and the interest in making sense out of anti discrimination law so let me start used the definition from the i p l i say i urge the court to look at the definition in the f l s say it is on the first page of the government's statutory appendix it is entirely different from this definition why did congress use a different approach from title seven when everyone understood at least everyone who was talking about it understood that the purpose was to mimic what title seven did i am a true beating rationality to someone who is obviously not doing his job very well but title seven began with different language priyam and men from the language in the a d h title seven began with language that was not as expansive about the definition of person so here we have an extremely expansive definition in a d n a or any organized group of persons it is the most expansive definition this court has ever seen a person expensive in only one way that entire list up to the disputed any organized group it person is all apply to private entities no not when you are no the just a tsunami or corporations this court is held in at least five cases the corporations includes municipal political subdivisions are persons that did it in the rickets it did it in city of chattanooga it did it even without a definition in cases like mon now and in the federal  in the it's not just persons it's organized groups of persons and it's in the list of things that are partnerships associations labor organised corporations and organized groups of persons i just don't think it's a natural reading to say what i belong to the city of bethesda list organizations you belong to well there's this this partnership this and the first well so two answers to that your honor first even without that language this court has found that the law that striking that out this court has found that the definition before that language covers political subdivisions city of lafayette chattanooga foundry and rickets all found that but now lemon fire district is most certainly an organized group of persons the land owners under statute to get to gather to find a common cause counselor even if it's true in cases which is different from those cases and this one is that the original statute make clear that that definition was not going to include people twenty more employees and then it goes on and sub tracks the federal government and states and local governments it makes no sense to subtract t unless they were included in you know it makes no sense to subtract them unless you never intended to include your honor that that is certainly not the way this court has read it it's certainly not the way title south and does  correct your honor but let me put it a slightly different way i'm not just assuming the other side has not just viewed it that there are two possible ways to read it our position is that when you take these five statutory clues which i only just begun to get to the only reasonable reading is our reading so we've already talked about the persons one but there is more i would have started with the very first signal we know that also means does addition to do you honor but let me just make sure first this court has routinely adopted statutory construction that defy the best diction question my question is if we take the best dictionary definition in addition to the normal meaning do you lose or do you have some other available argument i'd be delighted to hear it if you do so i think we have another argument your honor so also means means in addition and so it adds agents which i'll get to in a moment is completely implausible and then what does it do when the next cla tell you what the absurd result is so let's start with the agent clause the government's position is that also means necessarily adds a category not otherwise covered if that is true who are the classic agents employees are the classic agents that means employees are now directly liable under the statute for any cause of action on discrimination  seems to me most unlikely it really could be your honor i disagree with you it has happened in every circuit under title seven employees have been sued sometimes along with the employer and that would be disastrous i mean first of all supervisor liability could stretch into the millions of dollars that kind of thing no sorry your honor i'm saying it has happened under title seven and every circuit has said no no no you can't do it why because is this court found in burlington that is not with the agent clause it does with the agent clause does incorporate responding at superior liability which is as going to is made by the majority of circuits who ruled in your favor those circuits still have to deal with the aged meaning and they've dealt with it by address respondent superior liability however they've dealt with it your meaning doesn't do way with that change your honor our meaning most certainly does we have a complete disagreement with the government and respondents on what the h in clause does we believe it incorporates responding out superior a liability which makes the employer liable for the agent's activities the government in responding say no no no it adds another category of people who've not been previously identified as employers anyone who is now a new employer is subject to liability and you can tell that the the respondents have conceded in their brief at page thirty two that the phrase also means has to carry the same meaning with respect to both clauses so you can't just jump over one and not ask what would also means produce if you applied that to the first prize mr right i think you get your argument comes back and bites you i think because you just said they have to be treated the same one into your theory with respect to a state or political subdivision is that it's already included in the first part of the statute so that would seem to be an argument you have to make with respect to one the agent that the agent of such a person is already included in the first part so i don't see how your argument answers the also avoids a doubt by making it clear that when you are talking about employers those persons defined in the first sentence you are including political subdivisions and states and i have to emphasize that you know that the agent clause is problematic because of the extremes to which respondents go to redefine agent they define agents to mean third party independent sub contractor because they cannot accept the possibility that as is clear under the common law for hundreds of years agents the classic agent are employees so without the agent clause she's be added when you define the agent clause the way respondents do you do end up with a disaster mr rosenkranz if in the term also means in that sentence you agree don't you that the term is the same term as in the first sentence in other words the term is employer is that in the second sentence is it an employer yes the term employer ok also means so if it's just because you say that what this clause is meant to do is to make clear that person is defined in such a way as to include subdivisions so what you're essentially doing is converting and that the free which says the term employer also means and converting that into the term person just to make clear includes no your honor no what we're doing is referring back to employer you're the first sentence says who is an employer who is an employer an entity that has at least twenty employees and that affects commerce now that is a universe the term in our view also means clarifies that within that universe we're doing two things we're applying agency liability to that universe of aforementioned persons who are now labeled employers that the clarifying with respect to the subdivisions would not be necessary except for the fact that there is doubt in the person definition that's where your doubt comes from it comes from the fact that the person definition is not unambiguous that is one of the sources of the doubt and i don't i don't are what is the other source of the doubt it's all the source of the doubt isn't it well no because there are other there are other statutory problems that get created completely apart from that so no i understand that you say that there are anomalies of done in a different way but the doubt arises from the ambiguity of the term person so that's why i'm suggesting that it would be a strange way to resolve that doubt instead of to just say by the way a person includes a son division and set of saying that to say the term employer also me and understood your honor this is a strange statute that was written in a strange way there is a reason for that this this gets to one of my other statutory clues and that is when you think about the the evolution of the statute it was different from title seven this statute has two sentences within that definition not one and it than this statute always had also means within that definition so if you think about what was going on we map it out on page eight of our brief what the editor was trying to do or if you look at page and there's a red line the basic point is this this statute always had the same structure the second sentence always had also means in it but that second sentence had two parts one was clearly a clarification and the second was an exclusion the clarification was as to agency and then there was an exclusion what did the dropped or do they just talk part of the exclusion and moved it to the other side of the also means of an idea what we'll do is who set up five subsidiaries and they will hire the employees each will hire ten and they will be our agent and do everything that we tell them ok there's not an employer yada so you guys are the x y z corporation set up five subsidiaries each of which has ten employees and it's an agent so i mean were they the yes it's an agent of the x y z corporation tells them what to do well you want to go see corporation has no employees it just has five subsidiaries ok so there are two scenarios one is that each of the subsidiaries is liable liability by turning yourself into subsidiaries who are all your age and were does it say the words mean heart say it i mean we're to say say that i mean what where where does the statute say that because it did occur to me that one purpose they could serve is doing just what you said you cannot turn yourself into five subsidiaries and that's why the subsidiary part namely the agent part doesn't have a number attached because they don't want to number private and it says term employer is a person maybe i just got mixed up i don't think so means a person engaged in an industry who has twenty or more employees so what i'm trying to imagine is through the use of subsidiaries there is no company that has more than ten employees and to avoid that one thing they might have wanted to do is to use the word agency without a qualification that the agency has to have twenty employees so you are well all i can say is there's no reason to believe congress was ever focused on that or that scenario that was never before congress what was before congress and what this court held as to title seven in burlington is that that language is about responding out superior but let me get i've already mentioned two clear signals let me get to the third one which is a variation on the agent point while we disagree on what the agent clause does everyone agrees that it does something important at a minimum according to respondents it protects employees from the independent from c s p from the discriminatory acts of independent contractors so the question arises why did congress supply bad important protection only to private employees and not to public ones because  that is the consequence of respondents reading fourth signal affecting commerce and what congress did with that phrase now for now i am not making a constitutional argument am making a drafting argument in every one of these discrimination statutes congress felt the need to provide an explicit commerce clause hauke it did so for private club employers under the a it did so for all employers public and private under title seven in the no one can have an interesting interesting constitutional debate about whether that book was constitutionally required but my point here is simpler congress thought it was necessary in every other context so why would congress have left it out here and then the fifth the statutory clue is the statutory history and i've already described how the drafters got to where they got but let's look at two things the first is how they got how they change to the language in in six thirty b so they took the words that had a particular that were on the exclusion side and they moved it to the inclusion side we've been accused of reading the statute in a way that makes that suit perkowitz it is not it was absolutely essential to identify who is now in the ambit of the statute it was essential because that was the major change now look at six thirty you see we don't have a red  it's to find there it means anyone originally it said but shall not include any agency of the united states or any state or political subdivision of a city except such shall apply and so and so forth congress crossed out everything after the united states the only reason to have done this would have been to now include states and political subdivisions within the definition of employment agency the only way that could possibly happen is if they were persons to begin with and therefore if they were persons to begin with you flow them through a subdivision or subsection b and they are subject to the same employ limit now with the purpose of that second sentence was to take entities that were already persons and therefore subject to that first sentence and compassed by that first sentence and make it clear that the proviso about the size no longer applies this was a very strange way to do it if there were no further questions i'd like to reserve the remainder of my time for rebuttal thank you counsel much less absurd about that result than let me start with the text and clarify one thing for the court my friend says that we do not dispute that also means the key statutory phrase here can mean different things but the truth is we actually do dispute that the meaning of also means is additive it adds something that wasn't there before and the conflict the confirmation of that is found throughout the u s code and our brief we cite the thirty two other instances in the us code where the phrase also means appears in a definitional statute all thirty two of those phrases statues use it in an additive manner and i think perhaps the most telling dunston one doesn't and how do you do  with it if you're if you're speaking just a sort of my or of the consumer statute that my friend points to i think it does use it in an additive manner because that's a statute where it says consumer means an individual who does certain things or the person's legal representative and so that itself and started also means the person's legal representative that itself is additive this is not a statute talking about for example a court of law where someone's legal representative is the alter ego of the person that you don't really think that what the statute meant is that the legal representative was giving his or her private information it's not additive to in that sense it's sort of that representative is giving the consumers information too soon and so the legal that's the violation isn't it i think that's right to sort of my orbit still talking about a different source than the previous part of the statute and i think if there's one potentially ambiguous provision out of thirty three will still take that and i would turn the court to the president with the most telling example which is the one it pages twelve and thirteen of our brief about elderly families and i think the reason why that's so telling  because it gives a particular definition and then has an qualification at the end or is also handicapped and then it says this bet the word also means such and such and then it repeats that phrase or is also handicapped and so congress when it uses the word also means it did exactly the opposite of what my friend says you should read the statute here to do which is to carry forth those carry down to after also means the original could you to this last example the federal the employment agency the the federal agency yes and i think well it's not superfluous in the sense that just as the key provision here subsection being the federal government is backed out at the end in a situation where i think the better reading might have been to leave them out in the first place and i think the reason why you see explicit references to the federal government in both places is because for two things one is the court itself has asked congress in various ways to speak directly when it talks about federal government or states being on the hook for one form or  another and secondly the federal government is itself treated wholly separately in section six thirty three a under a different regime of the a t f so the federal government just put aside and all these other provisions and i think that's what congress was doing there submit to the court that also means is simply unambiguous that's the end of the case just as the ninth circuit said it was if the court has any doubt about that i would urge the court to look at as my friend i think also urges to the comparison between title seven on the one hand and the f l s a on the other hand if and i think of congress had in acted the the a da provision entitled something at the same time do you think it's plausible that congress would have said you know when it comes to racial discrimination we're not going to allow a suit against a government entity with fewer than twenty five and police but when it comes to age discrimination  is a hybrid it's a hybrid between a subset and discrimination law on the one hand and the labor statute on the other and that's borne out in the provisions of the way which borrow the substance of anti discrimination part from the title seven language but the rest of the statute is largely drawn from the f l s so that's quite an ins quite abstract really think as a policy matter congress would say that age discrimination is more pernicious and more widespread so therefore we have to have a tougher remedy there than we do with respect to racial discrimination i think that's not exactly the way congress would have thought of it in the legislative history you find elements and i'm going to answer your question directly i think you find in title seven that congress was concerned personal so cacs so one of the things behind the numerosity requirement title seven is a concern about forcing very very small groups of people to associate with individuals they might not like now that might seem antiquated now days when we're talking about race relations  discrimination but it isn't directly in the legislative history of title seven on the other hand this goes back to the eighty eight being partly a labor statute as well the part that the purpose of the d n a is to bring people into the workforce and keep them there in to achieve full employment of older individuals and as the secretary of labor noted in the report this court discussed in the e e o c versus wyoming that was not to stamp out animal space discrimination like under title seven were to achieve full employment and so the reason why congress may have decided to have reply brief the f l s say has no numerosity requirements at all on the private side and if l s a that's that's strictly speaking true but enterprise liability under the f l s say depends on that which is the predominant form of liability depends on employer having at least five hundred thousand dollars of gross receipts per year so you have a kind of rough analogy in that in that statute to do a numerosity requirement in other words you have a firm that has to be of a certain size and  kagan you ask me just about federal but as we cite in our brief in a lengthy footnote there are many many states the majority of states in fact that cover political subdivisions regardless of size of that group about half of them cover political is by and large the state statutes actually use different language so it's not a case where the states are merely parroting what the eighty eight already says i think of our count there are only three states that have the exact same language the way the vast majority ha other language that makes it clear in other ways that they're distinguishing numerosity terms between one and the other and the thing i would add to that justice ginsburg is that a handful of those states had that distinction even before the eighty eight was passed so the thing that my friend says is ludicrous for congress to have to achieve actually was in state statutes already many state legislatures across the country had already drafted statutes like this before the eighty eight was passed and so i think just as alito to bring me back to the conversation that i was having with you about the reason why congress might have done this to distinguish between race and age i will grant that congress could have reasonably made the other choice as well i think the congress could have decided one of the other but the proof is in what congress actually did and as i said it had the f l s say on the one hand and title seven on the other hand in the two statutes were identical in the sense that when you look to the definitional provisions of the act you found first a definition of the word person and then you found a definition of the word employer and so what did congress do in title seven it amended the word that amended the definition of person to achieve as just as ginsburg pointed out a very see easy solution where the new roster requirement applied to definition of employer and not the definition of person and i would point this court to its own decisions in cases like gross and nasser which say that we look to not just the language choices congress made and assume it's intentional we also look to structural choices that congress makes and we assume those are intentional and so even if i had nothing but the comparison between the a da and title seven under those cases i think that would be enough to remove any doubt that the court might have about what congress is trying to achieve here but actually i have something more here i have the f l s say of which the eighty e a a is closely related and the court in the congress made exactly the same decision in the f l us would you say something about what your argument means for the agent clause if congress wrote also means it didn't put includes had it written the term employer includes any agent of such a person i take it that  one could not be an agent without having twenty five employees but what we're does your understanding of this sounds take us with respect to agents just as lida let me answer that question if i may  two steps i want to first start with my point of agreement with the other side which is we agree that the key question is whether also means add something even with spec to the agent clause we think that's important question for the court to ask but this brings me back to justice briar's question which is i don't think there can be any reasonable dispute that the agent clause does add additional entities into the category of employer and it's not just the the below twenty saying more fundamentally it's agents that would not otherwise be covered by responding at superior or that's what the court noted and manhart and we explained in our brief in cases like spurt and there's also footnote one in the solicitor general's brief that explained that some independent contractors for example and that's just to use one example are agents of an employer but are not covered by responding as some here but have a look on that because i was bothered exactly by the same thing that justice alito said that if we're not going to have numbers to have numbers with a and i think your colleague says well they didn't want they wanted numbers all the day does is just make sure it's principles of agency and he sides burlington so where would i look to see know they had another idea they wanted some agents covered who had fewer than twenty or twenty five employees what will justice brier i don't think you'll find a sentence to that effect in the sledges of history but let me  on one thing which is the twenty the twenty employee thing is just the very beginning of their problems the much bigger problem is an agent of any size would not be covered but for that clause that would not be under twenty at superior principles now my friend in the reply brief says that we distort the meaning of independent contractors but i urge you to read the rest of the sentence that my friend quotes in the commentary to section fourteen n and also to look at section two of the restatement of agency called independent contractor and in both those places the review statement makes clear that some independent contractors for example a company hired to do layoffs choose who's going to be laid off administer our benefits plan and decide what the criteria are for that those kinds of people are agents but they're not necessarily covered by responding at superior or so my friend and his reading of the agent clause to do nothing but clarify what has come before leaves a gaping hole in the aviation also in title so i guess i wonder mr fisher how you are reading of the agent allows us to make this distinction that you suggest and the solicitor general suggests between entities and individuals when it says any agent of such a person and it doesn't on  face make any such distinction so how would we go about doing that so i think there's two questions you would ask if you had a case dealing with the agent clause just as kagan i think this is responsive to justice alito as well the first question you'd ask is whether any age nt includes employees now obviously the word any might suggest that it does but on the other hand employees are already covered under spawn the superior principles once you've already given the word employers so if you were kind of a mystery an odd why congress would have wanted agents to be speaking about employees especially when another provision of the statute defines the word employee and it's used other ways in the statute so the first question would be whether any agent means any agent whatsoever or just not an employee agents that aren't already covered if you answer that question against you know but i guess would be my position is i stand here you hate you still have a second question which is if individual supervisors for example works on the hawk the question would still be how are they on the hook and as we note in the solicitor general notes as well the fourth and fifth circuits of held yes they're technically liable but they're liable under something like official capacity principles so they flow right back to the employer as one would expect in any employment arrangement so you have two questions that would get you off the train to  to where my friend would like you to leave you with that clause but i think the fundamental thing that i would urge to the court is that you have before you in this case a simply unambiguous statute in terms of every word you need to decide this question presented it says the term employer also means a state or political subdivision that's all you need to decide this case and it is absolutely clear out urge the court to resist the temptation to go looking elsewhere in the statute for ambiguity as a reason why not to answer this case as to what the statute itself plainly says and that's really i think the beginning in the end of it and you can leave all that other stuff if it ever comes back to the court for another day if there are no other questions all bond mr chief justice and may it please the court the age act expressly covers state and political subdivision employers regardless of their size that is true for three reasons first that is by far the most natural reading of the text given its ordinary meaning and consistent usage across that all law second congress rejected already template in title seven adopted just two years earlier that did exclude small state and local government employers loophole that would allow any employer to evade the age act by outsourcing discrimination to small agents and in order to avoid that problem petitioner is forced ultimately to abandon the core theory they offer of the text that treats the two clauses the same way now in terms of the ordinary meaning we agree with respondent that that language also means and it's usage throughout federal statutes is clear and it's clear that congress used it in the ordinary way because it didn't follow the title seven approach no my friend on the other side suggests that the differences in the definitions of person in title seven vs the age act precluded congress from doing the same thing and those differences are actually quite slight you can see them in pages six and fifteen of the blue brief appendix but none of those differences prevented congress in one nine hundred seventy four from doing the exact same thing in the age act that it a different congress had done two years earlier in title seven if it had wished to do so there are slight differences of course with the f l essay but what's common to them is that they address the problem in the same way they put the definition or they put governments in the definition of employer not subject to any numerosity requirement and that's the common thread so just to touch on the questions that a reach the that's where i think a real vulnerability for petitioners argument is now it's true the court doesn't need to address any of the broader issues or resolve the outer limits of that clause because it's not implicated here and nothing in this case turns on it but i think it's important to bear in mind that whatever the agent cla means it can't mean what petitioner is offering here because that interpretation if you hold his interpret nation to its logical conclusion means that any employer could have made the age act by outsourcing to small agents the one thing we know the agent clause is supposed to do for man hard in other cases in the title seven context is to prevent what manhart called delegating discrimination to corporate shells but if you take titian as reading seriously it means that the second clause merely clarifies the first so the twenty employee threshold reaches all the way to the government clause in the second sentence if that's true it has to follow logically that the twenty employee threshold reaches the age in clause in the middle and i realize the petitioner in the reply brief in this morning disclaims that result but there's no way to square that disclaimer with the text it would mean that the twenty employee threshold starts in the first sentence skips over the agent clause and lands on the government clause and that's simply not a plausible way to read this statute and it also is inconsistent with petitioners core theory that also means has to operate the same way across both clauses here so i think from the ordinary reading of the text and the way congress has consistently used it in this statute there's only one conclusion the court can draw if we follow the same plaintext theory of interpretation as you advocate with respect to the provision concerning political subdivisions wouldn't that lead us to the conclusion that an agent of an employer includes the employer's employees aren't they agents of the employer so your other again you don't have to address that here but no i know we don't have to address it but we have to have a theory of an understanding of the statute that makes sense and you just made an argument based on the agent clause sure and not yes you are and the answer to your question is we don't think that it would reach individual liability for that because of the two additional questions that response counsel just identified and just to to highlight those a little bit more in the meaning of agent not only did congress have no reason to use agent in its broadest sense because employees would already trigger respondeat superior liability in this statute congress didn't use language that it has used in other statutes like the f l s say the lower courts in the department of labor have read to include individual liability so i can point to one example the f l s a section two zero three d at page one a of the appendix to our brief so that an employer includes any person who acts directly or indirectly in the interest of an employer with respect to an employee of the f m l a the family medical leave act uses the same language lower courts in the department of labor have construed those statutes to impose individual liability in some circumstances you don't see that language in the age act and i think it's a fair inference that congress didn't intend to impose individual liability in that circumstance again you don't need to resolve that but that that would be a strong contextual reason to reject that understanding and in addition even if you concluded that some subset of employees or supervisors were agents in some circumstances i think you still would have to answer the question that the lower courts have consistently answered against individual liability by determining is this individual employee personally liable or is instead he liable only in his official representative capacity and the idea behind that is simple if you are an employee and are counted as the employer only because you're acting as an agent that is only because you are exercising the authority of the employer in varying the terms and conditions of a particular employee's employment liability naturally runs against the employer whose authority you are exercising and to resolve that question you would need to consider a number of principles that govern remedies law and you need to take cognizance of potential spillover effects for other federal statutes which we think is yet another reason not to delve into those issues here because the only question you need to answer is does the agent clause add some category of additional agents by its terms it does and it must do so to solve the problem that this court identified in man harden and i will is is that true mr bond because and on petitioners theory which is to say that this is just a reference to respond at superior liability and basically says that the employer shall have such liability for any agent wouldn't that include these corporate shells that you're talking about so a few points on that your honor first if it's responding to your position is correct but the codified existing principles of respawn the out superior and agency liability no the employer would not face liability for acts of independent agents at least in the ordinary course the general rule is that unlike responding at superior or liability a principal is not responsible for acts of independent agents unless you specifically intend the result independent contractors but you meant well into an agency so agents that are not employees not employee agents which can include and even in the face of statutory language that says the agent of such a person so and i mean these corporate shows are acting as the agent of such a person so let's distinguish two things as i understand it petitioner is urging that the clause would incorporate responding at superior or and ordinary agency principles which under restatement section two fifty of agency and four or nine of torts would not pick up acts of agents who are not employees in the ordinary course now if what you're suggesting is that the language or the reference to agents here incorporates a broader theory of agency liability that still leaves petitioner with a difficulty of squaring how the two clauses work because he says the agent clause and the government clause must operate in the same way but you can't read the two clauses as doing those fundamentally different things one creating a novel principle of agency law and the other incorporating an employee numerosity requirement that doesn't apply to agents in the middle so i don't i'm not sure what's so bad about direct region and liability i mean let's say you have the manager who  runs the shop in the factory and he decides well i'm going to fire everybody over forty five or whatever it is and maybe the person fired wants to sue the company maybe the company is bankrupt i mean what the big deal about it would seem to me that that would allow you to sue the person responsible for the decision so we agree that it's not so anomalous as petitioner suggests there are federal statutes that lower courts and agencies have construed as imposing that kind of liability and that's again another reason why you don't need to delve into that here the answer is not clear we think that there are strong contextual indicators that in this statute congress didn't intend to achieve that result but you're right if that's the conclusion at the end of the day in a case where it's properly presented that there is some individual liability that's much nothing less anomalous than reading the text in a way that no dictionary or other statute uses it and creating a huge loophole for outsourcing to agents of any size under twenty employees burlington this court said that the reason that there is response responding out superior in title seven is because of the age and clause nothing else created that the difference between title seven and title nine here is crucial gaps are said title nine has no respondeat superior liability why because it did not have an agent clause now i'm not saying that there is no liability for that third party agent of course there is liability the agent clause here doesn't just implement respond superior it in the employment agency principals as to both employees and the the independent agent that doesn't mean that agents themselves have to have twenty employees that's clear  from the word of the wording of the statute so you start with b it says the employer is anyone who has twenty is a person who was twenty or more employees and also affects commerce then it says that also means any agent of such person the such person is the employer who needs twenty employees the agent does not need twenty employees so let me just go  observation about the relationship between the f l i say and title seven mr fischer and mr bond both point out that there's a distinction between the f l s say and title seven in th it's a procedure or substance distinction anything that is substantive this court has typically referred to title seven as the analog respondents are attributing to legislative drafters a level of korra magical sophistication that is unrealistic meanwhile the list of problems that respondents are creating with their reading is untenable first it is unfathomable that congress would have singled out public entities for harsh treatment and a statute whose whole purpose was to bring public employees into the ambit that private employees occupy second respondent's rewrite the statute so that agent means independent third party contractor and they say employees are not agents you cannot just wave have a way the problems that are created by that reading it is not peripheral twelve regional circuits all agreed with our reading and that is all moved away under respondents reading third respondents of not explained why congress would have stripped public employees of valuable rights such as respond to superior liability that private employees have the protection is not in the word employer it's in the agency clause but out on minimum public employees under respondents reading lose all recourse for the acts of third party contractors that is at least clear so there since there is a reasonable reading of the statute that it sheaves congress's stated goal without creating any of this mischief that is the reading that this court should adopt if there are no further questions we respectfully request that the court reverse thank you counsel the case is submitted