and we'll move on to the third case of the day kleber versus care fusion corp seekers care fusion is asking the court to write in an extra textual exception to or medial statute in order to cut out protections for people like mr clubber who want and need to work but can't get in the door because of arbitrary protection despite finding that hiring discrimination against older job applicants was a grave concern however care fusions view would also require the court under grades to presume that congress deliberately left in protections for internal candidates seeking promotion or transfer but executed applicants that simply nowhere in the text and requires a lot of assumptions that are reading doesn't require to discuss some of the specific of course they're all laid out in the briefing but particularly important is that reference to any individual and then at the end of the section two such individual individual is of course a broader term that employee congress could have chosen and to to limit coverage to employees that chose to use any individual instead any is also key here this is not saying individuals in general it's not referencing back to employees from the beginning of the provision it says any individual that's extremely broad and that was exactly what congressman to do equally importantly at the end of the section it says because of such individuals age this is referring to actions that adversely affect someone because of such individuals age now that's not a reference back to employees it's not limited referring back to the any individual earlier in the profession so congress used that twice and for a very good reason which is to ensure broad coverage  including for job applicants i want to specifically address the otherwise affect his status otherwise adversely affect his status as employee language that the eleventh circuit found significant that is exactly backwards as an interpretation of the statute otherwise it is a broadening language that is supposed to mean that the statute includes more people and more practices that and then appear prior in the statute that's inclusive communities case where the supreme court said that otherwise expands the x coverage so to the extent that or otherwise adversely affects the status as an employee appears in this case it's not limiting the prior provisions to things that are about status as an employer especially not current status as an employee there's really no reason to believe that that's the case instead congress was trying to make sure that all adverse employment actions were covered here and so that otherwise clause and sure's broadening of a statute rather than narrowing and the eleventh circuit in the majority opinion on by decision just was completely wrong and that's that's our position there and  particular because for a two ends with because of such individuals age that's far more indicative of the breadth of the provision that congress meant to imply than the otherwise  title seven and yes that would absolutely still apply and that's why a reading of the statute that excludes applicants is so unduly narrow because as it is only an reasonable policies are unlawful so reading in an exception here would mean that employers were protected even if their practices were on reasonable so that that's exactly right that would be the primary subject and read and the defense is telling us that griggs didn't actually decide this question as recent with respect  applicants could you good with the identical language under the the title title seven of the civil rights act of sixty four what's your best argument or the clearest indication in your view that groups to decide the applicants are covered there's two primary reasons that that's clear on here the first is free voting which i fell for which speaks of a condition of employment in or transfer to jobs it couldn't be clearer that the supreme court was referring to both and refers to people seeking employment but equally important in our view is the fact that the seventh circuit this court has repeatedly referred to greg's as a hiring case and the lewis case i think where this court has referred to gregg's as discussing qualifications that disqualified minority applicants filtered out minority applicants for for example black applicants and even specifically whether to employ or promote so it really couldn't be clearer that this court has always viewed griggs as a hiring case regardless of the fact that by the time the court issued the decision in the procedural posture there were new initial applicants that the order applied to it has always been treated as a hiring case additionally the supreme court in the joe third case and referred to grades as having been a hiring case that's just consistently been that way and actually the northern district of california and ruling on this exact issue said that  greg's applied was mining in exactly this issue about forty tooth coverage because of its interpretation and with respect to applicants so there's really no reason to believe that it doesn't apply to applicants even under the sports and precedent because of the language of the way that the court read the language of the article a defense of the time that there was no disparate impact cause of action under the a d h at all smith made clear that that's not the case and overruled all contrary cases so f anymore all presses parker did however address this pacific question and which smith may or may not have decided and i guess one of the concerns that i difference and that's the difference that was focused on in francis park your argument depends a great deal on us and so on going back to greg's arguing that that was the same language were those points developed in the briefing and francis parker to explain the context you know i'm not sure how specifically the parties focused on that your honor because it was really a broader question going percolating in the circuits at the time and that's just not the case the eleventh circuit actually pointed this out in its final decision before it went on back but that that's an error that the francis parker court made saying that gregg's had only interpreted title seven to cover applicants in it equivalent provision was it had the outlook and language in it that's not true of course because greg's interpret it in the pre nine hundred seventy two amendment version and that's one reason that it's particularly clear that the court was not focused on this issue of st interpretation that we have today because it wasn't even fully considering that issue enough to recognize the correct version of the statutory provision issue in gregg's and then of course smith went on to cite two applicant cases o those applicants for a teaching position and applicants for grosser positions with the supreme court referred to as appropriate disparate impact cases and so the supreme court made pretty clear that it didn't draw a distinction between applicants for employment and current employees and in the francis parker decision that was just not the focus of it as we mentioned in our briefing the difference between the two statutes was mentioned not as a separate alternate basis for why that plaintiff didn't have a eight consistently and the majority said well in this case that's not true there are differences one of them is this provision that was and that was addressed in great for title seven includes applicants and that's just not true  because at the time it didn't say or applicant says it does today but that's that's exactly right the majority of his responding to the dissent sort of more generalized statement that the two actually be construed consistently and said that this is one way in which they view that to be different not because it was a separate basis for saying that there was no cause of action it's just sort of the it's the way that it develop because of the argumentation in the case and that and in fact in smith and the supreme court referred to as a president of compelling importance in this case so it's really important to get grades right and that's what we've done here in pointing out exactly that that it really does cover congress would have cut out protections for applicants says that hiring was one of its most predominant concerns in the legislative history in the worth report in particular and again smith pointed out how important the words report was  and this is just one of the key pieces of legislative history but the supreme court found it compelling that that report which was about age discrimination and market and really anticipated a lot of the exact types of employment barriers that issue in crick's which were facially neutral but that tended to bar people in the protected class from entering the workforce educational requirements physical fitness testing is referred to and that so smith's focus on how please the court because the text of the statute is the primary determinant of its meaning i'd like to start with the text and then address counsel's arguments one by one congress demonstrated four separate times that it intends applicants for employment not to be covered for a two and it has not been cryptic about it first sections for c and for d explicitly cover both employees and uplands for did not make that change to for a to itself and that difference is presumed to be in tension third congress demanded be eighty eight itself in one thousand nine hundred seventy four by adding twenty nine u s c six thirty three in not provision congress protected both federal employees and applicants for federal employment but it did not go back and add applicants to four a two that difference is presumed to be intentional and of course for a two itself although it must be read broadly in the context of all these other statutory provisions the first part of for a suit answers who can't the employer classify in a  prescribe way right there in the text it says the employer can't classify his employees the second part of for a to answer is what is the a fact that the employer's classification cannot hack the tax prescribes any effect that would adversely affect anyone's status as an employee we already know from four c and four d that status as an employee does not include applicants and even without that context  person has no status as an employee that could be affected until he's an employee until he is hired his status is as an applicant yes or no that would be if it said denied status sure but that's not what it says in congress when i ask you sure about this case yes of course with the slight variation let's suppose we've got two applicants for this this job were your clients minimum three years maximum seven years experience both of them are fifty years old both of practiced law for more than ten years one is an outside applicant like the point if in this case the other is already an employee of the company who doesn't get along with his current boss and if i understand your position correctly the second plaintiff would be able to assert a disparate impact claim but the statute first and foremost must be determined from what congress said and what it didn't say also i want to point out to the court that as it probably already knows drawing a line between folks are already employees and folks who are simply applying to be employees that's a common line to draw unemployment line very common line to draw unemployment line so it's not terribly surprising that congress might offer more protection to people who are already  situation with grigs in the amendment to title seven without amending the a but i find it very difficult to grasp why those two applicants should be treated differently cases because there are there's not much obviously on this particular point but for support for my text based argument there's a series of cases that construe section five to five of the bankruptcy code the bankruptcy that section prohibits discrimination in employment because somebody has filed bankruptcy there are two provisions the first one deals with i believe public employers and it covers applicants and employees the second one applies only deprive employers and it only says that you can't discriminate in employment now there are going to do credit checks on applicants there are there are a bunch of cases where applicants have tried to squeeze themselves into the definition of employment and the courts have uniformly rejected at least three different circuits have rejected him and and none have ruled in favor so that is a common line you might ask the same question about those people who file bankruptcy why won't you get more protection than the other but it just is the way congress has drawn the line i would also say that counted on under your under your theory how would we apply this distinction to an applicant  who is employed by a sister subsidiary of the employer if if there are different employers i think there are they are they are split simply new new applicants would be my thought without frankly having considered that question before this very moment but i think what i would like the courts have to focus on is that congress knew how to protect applicants when it wanted to protect applicants it knew how to say applicants when it wanted to protect applicants miss smith wants to say well i didn't specifically say hey this doesn't protect applicants but that's not the way we read statutes we don't there's a presumption against reading words into it and i think that's what miss miss argument would have to do would read applicants in when it's not there and frankly if  miss misinterpretation would make the reference to status as applicants surplusage in four c and four d it's not the way statute should be read and i think that the clarity of the text  reflected in this court statement in frances parker that for a two omits applicants but aren't you offering an alternative interpretation of this text then title seven has been interpreted and and even in individual just adding job applicant was just maybe further clarifying something that doesn't mean that it wasn't included in the original text of the error in the taxes they pay because or otherwise at their adversely affects the status as an all the cases post amendment whether they refer to grids or not and considering a statute that is clearly out applicants grigs itself doesn't talk about out weekends and the notion that it uses general language does exactly what this court has cautioned against iran choose general language  opinion i don't recall exact with the first census but i do recall this from grace which is a didn't hardly look at the text at all it was really looking at this purpose of it of fixing the effects of racism and not freezing them in place i want to do i do want to ad thing in for a one in forty two it means a single person but that doesn't mean that for a one in four a to themselves cover the universe of individuals who they cover depends on the other words in the section the provision individual only appears in a phrase immediately prior to the word otherwise otherwise it is a catch all that makes clear the problems with right before it is a subset an example of why ways that a person could have this adversely affect his status as an employee reading the preceding phrase about individuals as a separate item would render the otherwise superfluous this is a common statutory construction or an example followed by the word otherwise we also have though an authoritative interpretation of the essential identical the civil rights act of one thousand nine hundred sixty four title seven from requiring a high school education or pass through a standardized general intelligence test as a condition of employment in or transfer to jobs when you know since the standards are not shown to be necessary that doesn't say applicant for employment in his employment a person is already employed or transferring to a different job griggs didn't involve applicants it simply didn't involve applicants in the court never considered  would it would be take really reading beyond the text of the statute and be on the facts of grigs it's one thing for the supreme court to engage in consider dicta but this is an consider dicta if it's anything at all it's not addressing the situation who has addressed the situation is congress and it's made clear that when it wants to cover applicants it knows exactly how to do that the the the individuals covered in for a two are those who can have their status as employee affected and we to amend a statute it does so to enact substantial change raw sources like in the supremes balls that's often true but congress also will sometimes act to clarify your riser as the legislative history about the seventy two amendment tell us i want to do and passed by congress doesn't say anything about grades it doesn't say anything about being declaratory prior law it doesn't say anything about it that's one eight hundred congressional record six six four three it doesn't say anything  references to grids are not with regards to this particular stat mirror provision of for a two moreover point if ignores that the changes to seven eight seven zero three eight two are first proposed in h r seven thousand five five five which is the year before griggs was decided so it clearly didn't have anything to do with bricks the nine hundred seventy one seventy eight senate conference senate committee report ninety two dash four one five also doesn't mention grades with regards to job applicants now it does say that the changes to seven zero three eight two are merely declarative of the existing law this is just a committee it doesn't say what existing law though doesn't say anything about there are three cases that are referred to but they're only referred to in a personal statement submitted by two senators now the supreme court has been clear that the value of what any individual legislator might have to say about something is a very little value but here there of even less value because the three cases that the two senators reference are about intentional facially discriminatory policies that don't have anything to do with disparate impact moreover even if and this is not what happened by any stretch of the imagination but even if the entire nine hundred seventy two congress that said hey we're making this change we're adding applicants and by the way we think that's what the nine hundred sixty four congress meant all along that would be entitle to little if any weight consumer product safety commission versus g t g t e sylvania the reason for that is it's not congress's job to interpret what a prior congress did so the court's job to do that the most important indicator of congressional purpose is what congress actually wrote in the statute just because something is consistent with some somebody whose idea of the purpose doesn't mean it's included in statute even if the text appears to under the goal of the statute the court follows the text baker botts moreover the words report was hardly a blueprint for the statute it recommended legislation only with regards to discriminatory hiring policies you're out of time if you'd like to wrap up go to your honor's congress knew how to protect job applicants when that's what it wanted to do miss smith would have this court read in a protection for job applicants that simply isn't justified by the text somebody has purpose of the eighty eight aside we can't read into to this text words that aren't there there is a reason why my argument is straightforward and says look at the text congress knew how to say this when it wanted to there's a reason why miss miss is much more convoluted and strange and that's because smith is trying to create something that simply isn't there we urge at like to just briefly address a couple of points the first is section four c two which is very similar to for eighty to the employer disparate impact provision but with applicants there are a few different reasons to believe that that's not nearly as compelling as my colleague would like it to be and in fact they haven't responded to this at all in the briefing despite the fact that it was raised in the opening brief it's one of the many textural arguments that they have never addressed one of the key points about this is that the two applies to labor organizations who operate hiring calls and you can see this in the definition section six thirty eat which refers to  the definition of a labor organization as one which procures employees for an employer or procures for employees opportunities to work for an employer as the defendant villareal makes clear that unions operate under the statute no where they may refer people in an independent capacity as as applicants so there's a very good reason that applicants appears there another reason that it doesn't particularly matter is that that adverse in friends that my opponent would like to draw was of no consequence the court and gregg's and the court is aware the idea that greg simply had nothing to do with firing is contrary to this court's precedents contrary to what greg's itself said that's it an offhand reference to an employment in or transfer to a job as this court has recognized repeatedly it was about job applicants and so to ignore griggs is really to ignore the most compelling precedent on this issue so that suppose that adverse inference with foresee to would have been the same adverse inference with seven o three c two and that just didn't concern the court at all we're not trying to read in applicants for trying to make sure that they're not read out despite the fact that there's no indication whatsoever that that's what congress intended to do and one other point i wanted to make is about the addition of six thirty three a the federal sector provision that provision is written very differently and was was supposed to encapsulate a whole other group of employees in a totally different context of suit again to read an adverse inferences with four eight two because that provision also includes applicants really doesn't make any sense it's a very differently written provision and people disparate impact is covered under that provision at all and that's obviously not at issue here but the point is that it's framed so differently that drawing a comparison between those two doesn't really make any sense and i think to