and it smith all but useless the court started off by holding that if a policy from another policy or practice it ceases to be a policy there is no with arc zero authority for that whole thing and it has absurd implications suppose katz said we won't let anybody get promoted who is eligible to retire under our retirement pumps that would obviously be a policy about promotions but according to the district court it wouldn't be because it was it's eligibility criterion for the different policy the court held that because the subject would ation policy resulted from a single decision and because it wasn't repeated once a fund was distributed it wasn't the policy i think everyone agrees with discord held to the contrary in council thirty one caterpillar says council thirty one is no longer a good law but neither the supreme court nor this court is over ruled it or hinted that it should be or will if an employment program has to earmark policy it doesn't matter that it resulted from the single decision because most policies do and it doesn't matter that the whole program isn't repeated once its objectives are accomplished the district court nation program was part of the policy it was part of a company wide policy to get rid of sub programs wherever they exist and it wasn't a one off event over a four month period it took applications from a large that applied a written rule to grant or deny unique money benefit and as and we know exactly what it was within that policy that caused the disparate impact against older employees caterpillar has  suggested what purpose of the a t m would be served by holding that this wasn't a policy simply because it wasn't repeated once the fund was distributed and none would be to say anything depend on the existence of a fund suppose caterpillar just made an offer out of its own corporate treasury that anybody who takes a really retirement anybody who's eligible for retirement takes early retirement gets thirty five thousand dollars c right it's not a violation of the eighty absolutely not that's and there's nothing wrong with an early it's not but why is that different why does it matter what the source of the funds is it doesn't matter at all they that what matters is that when the fund is the in the normal situation that you posit one of the funds being distributed to people who want to retire there is no discrimination in the program you have an option you can retire and get money or you cannot retire and not get money but nobody is discriminated against on the basis of age of that program what brought the discrimination in was that after the original decision was made to have  retirement program used from the fund another group was brought in which was unconditionally eligible for that and that's the decision that created the disconnect yes that's where i'm i have some trouble there is no dis create disparate impacts and violate federal law no i don't think that is our theory of disparate impact the disparate impact is that there are two groups one predominantly younger one predominantly or one group has to incur a cost no matter what choice it makes either it has to give up the distribution by saying no to retirement or it has to give up their job the other group the younger group and what all early retirement incentives create exactly that's just no because eight early retire early retirement and in an early retirement incentive whether you retire has nothing to you you're all eligible to retire you're all of the same age group there's no age distinction there people have a choice but if the cash benefit is got money unconditionally the only group had to make a choice and either choices they made they incurred a cost a big cost either the cost of forgoing about thirty eight thousand dollars or the cost of giving up their jobs when you impose a cost on the older group no matter what they do but you don't impose that cost on the younger group no matter what they do that's the disparate impact and it's a real adverse impact if you just have a simple retirement program you don't have that feature judge who are the plaintiffs in this case plan to serve some forty eight people of the group who were retirement eligible and chose to keep working and chose to keep working correctly so a lot of the arguments and and the particular strike argument you were just making makes it sound like the plaintiffs are all of those who are retirement eligible whether they took the deal or not but i don't see how you can make an argument on behalf of those who took the deal or played it absolutely i mean it's that that would be like arguing in a testing case that the people in the minority group and there would be a disparate impact shown on past rates it's true some people in the minority group will have passed the test and so in that sense they may not have been adversely affected but nobody would say that the statistical analysis you do to show the adverse impact should exclude anybody in the minority group who passed the test it's that you have to it's to pass rates of the minorities versus the past rates of not minorities and so long are looking for adverse impact your judge what we do is we take the people who were adversely affected by the choices they had to make and we see what the age composition of that group was and we compare it with the age composition of the people who weren't adversely affected no matter what choice they made or didn't have to make a choice about when you do that comparison you find that everybody in the older group suffered relevant relative to everybody in the younger group no matter what choice they made people who decided to retire gave up their jobs they might add that there is no reason to assume that they would have done that had we not structured the program the way they did because we don't we normally assume that we structure instead of retirement programs to induce people to retire who otherwise wouldn't so when you make that comparison everybody in overview in the in the retirement eligible group is worse off than everybody in the non retirement eligible group no matter what choice they made and that's essentially what this court held  analyze the reasonableness of the decision that was essential to creating the adverse impact that we complained all the court did was to say look it's reasonable to abolish the sub fund and it was reasonable to use this money for it ins of retirement program but abolishing the sub fund didn't discriminate against anybody on the basis of age sure of the union didn't like it but they have the right to do it moreover the simply having the having and it's incentive retirement program which was their original decision that would not of this criminate against plaintiffs on the basis of their age everything that that that's the statute and that's that's this court's and every other that's a decision that had to be justified to carry the burden that mitchum imposed on caterpillar now why did they take that so that later decision the modification decision as we participants had to share the distribution in other places they didn't and in the original proposal they didn't and it wasn't because caterpillar wanted to treat non retirement eligible people equally with retirement eligible people because it didn't  hoc labor negotiation reason caterpillar was demanding tough concessions in these bargaining negotiations and the strike was looming and it realized that four of the six people on the negotiating committee were not in retirement  imposed on the younger group was we think it would achieve labor peace now can this reason justify affirming a summary judgment that the district court we think entered the wrong  can't because a jury could find and we think that would have to find that the modified proposal hurt not helped catskill of labor peace and that cat knew it was hurting and stuck to it anyway pleasing the union for starters pleasing the unions strikes us as a shaky justification for programs that disadvantage an older group relative to a younger one the law is clear that agreement by a million to a discriminatory program is not a defense and if that's so why should pleasing a union be a defense to a disparate impact but in any case there wasn't any evidence that the modified proposal please the union and a lot of the evidence that helped produce a strike not prevented so here kat basically has two arguments to you first it implies that the union invited this modified proposal and it relies on one offhand comment by one bargaining committee member early in the game when the proposal was first announced to use the whole indicated that bringing non retirement eligible people into the liquid nation plan would make it acceptable the union objected to any distinctions and distributing the stunt and even after the strike began the union tried to get caterpillar to back off of that  give back to mans but that doesn't show that any of those demands was helpful and achieving labor peace it just means that caterpillar got what it needed by beating a strike and if the modified proposal have been to help to achieve peace there would be evidence to show it would be easy for caterpillar to carry its burden if that evidence existed we have statements by everybody who said anything and labor negotiations for months look out argues well look once we made this proposal a union on older than younger employees and you stick to it and you succeed in getting the union to accept that with everything else you take the risk that when the smoke clears people who are prejudiced five are going to sue you and when they do if you argument is that you should get a pass because a proposal helps to achieve labor peace you need to be able to prove that because meacham makes it your burden to prove they are a throwaway so this court should reverse and it should either with instructions to grant summary judgment for playing just because catholic lied to do any kind of justification of its real reason for this or to hold a trial where cattle have to prove that it really was to assure a satisfaction that it really in the particular case so in city of joel the act we have a particular decision to tear down a particular one building in il her we had a decision to lay off and one part time attorney invented it it was one screen panel that it was all white the common feature in all of those cases is that there was no evidence that that conduct was repeated and any other point in time the care the instated the situation here involving caterpillar decision to liquidate the job sold it liquidate the jolie it's up on falls within the same factual purview in fact the union admits as much in its statement of facts or indicates or admits that this was the only instance where facts or the council thirty one set of facts the council thirty one set of facts are markedly different because in that case the evidence was that the state routinely conducted require reductions in force pursuant to formulas and guidelines that exist and so in that case there was evidence that the particular end incident that the court was being faced with was being repeated over and over again there is no such evidence in this case in fact we have a situation where once the sub one was liquidated the agreement by which that liquidation occurred have no more force than the fact there was no more funds to distribute and there's no evidence of caterpillar ever engaging in similar conduct with respect to any other group of individuals so the i take the classic disparate impact case the very beginning back to greeks against our supposed to power it had a high school graduation requirement and it used to per only four months would that mean that it was not in fact the kind of thing for which disparate impact analysis was appropriate if it was used for four months over a period of time i could see an argument that it was affecting people it was a policy that they intended to policy that was intended to screen out applicants would give rise to a claim that i think i'm asking about disparate impact if it was intended to screen out blacks you've got a completely different case i'm asking about disparate impact about a requirement which they thought was suitable for business reasons but it turned out to have this big effect it had it would you say well it was in force for only four months therefore no  i don't think the duration necessarily determines whether it's a disparate impact case or not that the one off decision in city of joliet to tear down or decide to tear down an apartment building presumably could have occurred over a period of time and yet this court said it was a one off event it wasn't pursuant to some college yes alas the litigation about that case was dragged on for more than a decade but it was still one of you know what it is may be very hard to figure out what a want to off decision amounts to i have a different kind of question where in the kentucky retirement case the supreme court essentially said that the principle that's what the supreme court said we should turn to and think about well it when trying to figure out how pension decisions interact with the eighty justices say think about those three cla and your you're not there at least understand that well that the principal from kentucky retirement that we thought was particularly useful here was this idea that the correlation between age and years of service  doesn't necessarily mean that you can't take into account one consideration without but really considering the individual's etudes that the problem with this argument is that plaintiff's case as i understand it depends on the fact that all of the older workers but none of the younger workers was required to give up something yet they had to give up current income in order to get the thirty seven thousand that i don't think that's the kind of thing that sheltered by any of the three pension clauses in the i think that the distinction here though is not that there was a decidedly younger population in decidedly older population almost ninety percent of the people who were eligible to participate in that in the pension plan became eligible simply by years of service alone so the distinction that the plaintiffs are trying to make that somehow this is a older vs younger group is not bore out by the actual demographics so then why aren't you relying on section six twenty three l one a i but you're not i mean that's the main i'm sorry in in eighty years there are too many employment statutes that at now guess the reason we haven't focused as much on the pension piece of this is that it was simply borrowing the eligibility formula in order to identify the population that was going to have to retire pursuant to this retirement so that distinction that was being drawn here years of service is what defines who had to elect to retire and who was not required to retire because they were an eligible to do so so the idea that there was a choice to be made here however distasteful it the plaintiffs may have viewed it was a distinction that was being drawn based upon their years of service not age so when the but let's take it that way let's suppose that caterpillar said if you are too young to retire we will add forty thousand dollars to your account if you are old enough to retire we will add twenty thousand to your account stop that's facts were if your you want to young to retire if you're old enough to retire in your view is that then protected from challenge under the no you're right it's not but that's not the distinction that  going back to that even if it's a want to off decision that's x and y and said it the question of whether or not the distinction that's being drawn like the sole one case was a situation where they had an ongoing practice of drawing distinctions so in that situation at least there was a finding that what you're really relying upon is something that's age based and they specifically distinguish in their case the treatment of individuals based upon things like years of service so if you couple that with the idea that there was only sneak case in the brink case they found that there was no evidence that they had actually ever applied these criteria to anyone else this was a unique set of employees that was a tissue and green so again you can take a long time to tear down a apartment building it may take four months to distribute money but the duration itself is not the it's not there the the key to whether or not it's a one time event or a discrete events it may be difficult to determine which one falls on which side but we here we the facts show that the caterpillar specifically did this eliminated the fung the agreement had no more force in effect and the plaintiffs admit that there was no other situation where caterpillar ever allowed to do this we would suggest follower squarely within honor with respect to the reasonable factor other than age argument the evidence in fact shows contrary to mr gallons argument that the proposal by caterpillar to include the nine retirement eligible individuals certainly was reasonable to the extent that caterpillar the evidence shows caterpillar was reacting to a statement by the other side that the proposal to only give the money to the retirement eligible individual  shortchanged and non retirement eligible individuals the question here was more that would be reasonable in response to that statement however obscure or brief it might have been for the company to say in order to get a deal i am going to caterpillar offers forty thousand to the people who aren't eligible to retire and twenty thousand each to them and it just says we're going to put them in new york and caterpillar says the reason we did this is not that we just wait for workers but the union insisted on it is that a reasonable factor other than age under your hypothetical not just so sure it is you're on about don't know that those are the facts that what that that this record shows you the  question of why there was reasonable for the company to want to try and accomplish it but the the question i'm asking is whether if you're thinking about whether something is a factor other than age does it matter that the company was trying to achieve a labor peace or to get the the union to do something you didn't really want to do so caterpillar had to structure this the way the union was happy if in the end what its structure was disparate treatment by age it sounds like there's a problem if there if it turns out that there is disparate treatment by age there may be a problem but here there's no evidence that anything that caterpillar such to achieve during all of the bargaining that ensued was known as of age older workers because the older workers get the thirty seven thousand only if they give up something in exchange and the younger workers get the thirty seven thousand without giving up any why isn't that disparate treatment and we right there well if you if you're asking whether this could be analyzed under a just pick just for treatment framework then i yes your honor but that doesn't answer the question as to whether or not they've stated a claim for disparate impact which is what is it it talk about intent to gerrymandering tend to favor one group versus the other treatment does not turn on into it right if you take my hypothetical forty thousand to one group twenty thousand of the other and the only reason they did it was to make the union heavy not because they wanted to make the older workers were soft but just to make the union still the disparate treatment question is did you intend to do what you're doing and is it disparate treatment issue in my hypothetical you have a caterpillar intended to do what it was doing the question is yes whether or not though in that hypothetical whether the reason that it wanted to placate the union was somehow an and you know i don't want to have a long discussion of this but if you think about some of the famous cases like the johnson controls case where women but not men are subject to some employment requirement and the employer says we're we're not doing this because we dislike women we're doing it because they could be pregnant and lead is in the air and it's up to ratigan and the supreme court said that's still disparate treatment it's a reason you you may be doing it may be noble but it's disparate treatment and it's not within any defense in the statute that's the kind of question i met is this maybe disparate treatment and then we need to figure out whether it's within the defense in the stat gallon to prove a disparate treatment claim would turn on a whole myriad of facts as to what was prompting the company to act whether or not the articulated nondiscriminatory reason for why it acted was and so is it possible to construct a theory under which the payment of money to one group versus the other somehow becomes evidence of disparate treatment i'm sure that there is a a fact pattern out there that it could but it doesn't answer the question as to whether is if you have to repeat a program in order for it to be a practice and my question remains title seven doesn't say it is unlawful to discriminate if you repeat the discrimination there is no repetition requirement anywhere in type itself and it would serve no purpose of the statute to hold that a four month program where the statistics are clear and undisputed and where the disparate impact is clear and by one of the our going to committee members and that's why it modified the program that's not what the evidence showed we called mr stevens as the company's thirty b six witness and we asked him point blank it's quoted word for word in the brief why did you do this when it when it dilutes the whole purpose to add non retirement eligible people whine on the less did you add them to do this and he didn't say we did it because the union said it really wanted it he didn't say that at all he said no  we saw that four of these guys on the by going to committee were non retirement eligibles and we thought that that might entice them to go along they had their chance to say that but they didn't because it wasn't true and the last thing is can't be that factor but that's contrary to what meacham says is the obvious thing in every disparate impact case the factor that produces a disparate impact is not age itself or race itself with exercise it's something carly and why should there