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 district court, now hold that the plain language of § 4(a)(2) makes 

clear that Congress, while protecting employees from disparate impact age discrimination, did not extend that same protection to outside job applicants. While our conclusion is 

grounded in § 4(a)(2)’s plain language, it is reinforced by the 

ADEA’s broader structure and history. 

I 

In March 2014, Kleber, an attorney, applied for a senior inhouse position in CareFusion’s law department. The job description required applicants to have “3 to 7 years (no more 

than 7 years) of relevant legal experience.” Kleber was 58 at 

the time he applied and had more than seven years of pertinent experience. CareFusion passed over Kleber and instead 

hired a 29-year-old applicant who met but did not exceed the 

prescribed experience requirement. 

Kleber responded by bringing this action and pursuing 

claims for both disparate treatment and disparate impact under § 4(a)(1) and § 4(a)(2) of the ADEA. Relying on our prior 

decision in EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th 

Cir. 1994), the district court granted CareFusion’s motion to 

dismiss Kleber’s disparate impact claim, reasoning that the 

text of § 4(a)(2) did not extend to outside job applicants. 

Kleber then voluntarily dismissed his separate claim for disparate treatment liability under § 4(a)(1). This appeal followed. 

 
No. 17-1206 3

II 

A 

We begin with the plain language of § 4(a)(2). “If the statutory language is plain, we must enforce it according to its 

terms.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015). This precept reinforces the constitutional principle of separation of 

powers, for our role is to interpret the words Congress enacts 

into law without altering a statute’s clear limits. See Puerto 

Rico v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1949 (2016). 

Section 4(a)(2) makes it unlawful for an employer 

to limit, segregate, or classify his employees in 

any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an 

employee, because of such individual’s age. 

29 U.S.C. § 623(a)(2). 

By its terms, § 4(a)(2) proscribes certain conduct by employers and limits its protection to employees. The prohibited 

conduct entails an employer acting in any way to limit, segregate, or classify its employees based on age. The language of 

§ 4(a)(2) then goes on to make clear that its proscriptions apply only if an employer’s actions have a particular impact—

“depriv[ing] or tend[ing] to deprive any individual of employment opportunities or otherwise adversely affect[ing] his 

status as an employee.” This language plainly demonstrates 

that the requisite impact must befall an individual with “status as an employee.” Put most simply, the reach of § 4(a)(2) 

does not extend to applicants for employment, as common 

dictionary definitions confirm that an applicant has no “status 

as an employee.” See Merriam-Webster’s Collegiate 
4 No. 17-1206 

Dictionary 60, 408 (11th ed. 2003) (defining “applicant” as 

“one who applies,” including, for example, “a job [applicant],” while defining “employee” as “one employed by another usu[ally] for wages or salary and in a position below the 

executive level”). 

Subjecting the language of § 4(a)(2) to even closer scrutiny 

reinforces our conclusion. Congress did not prohibit just conduct that “would deprive or tend to deprive any individual of 

employment opportunities.” It went further. Section 4(a)(2) 

employs a catchall formulation—“or otherwise adversely affect his status as an employee”—to extend the proscribed conduct. Congress’s word choice is significant and has a unifying 

effect: the use of “or otherwise” serves to stitch the prohibitions and scope of § 4(a)(2) into a whole, first by making clear 

that the proscribed acts cover all conduct “otherwise affect[ing] his status as an employee,” and, second, by limiting 

the reach of the statutory protection to an individual with 

“status as an employee.” See Villarreal v. R.J. Reynolds Tobacco 

Co., 839 F.3d 958, 964 (11th Cir. 2016) (en banc) (interpreting 

§ 4(a)(2) the same way and explaining that the “or otherwise” 

language “operates as a catchall: the specific items that precede it are meant to be subsumed by what comes after the ‘or 

otherwise’”). 

Kleber begs to differ, arguing that § 4(a)(2)’s coverage 

extends beyond employees to applicants for employment. He 

gets there by focusing on the language in the middle of 

§ 4(a)(2)—“deprive or tend to deprive any individual of 

employment opportunities”—and contends that the use of 

the expansive term “any individual” shows that Congress 

wished to cover outside job applicants. If the only question 

were whether a job applicant counts as “any individual,” 
No. 17-1206 5

Kleber would be right. But time and again the Supreme Court 

has instructed that statutory interpretation requires reading a 

text as a whole, and here that requires that we refrain from 

isolating two words when the language surrounding those 

two words supplies essential meaning and resolves the 

question before us. See, e.g., United Sav. Ass’n of Tex. v. Timbers 

of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988) 

(describing statutory construction as a “holistic endeavor”); 

see also K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) 

(directing courts to consider “the language and design of the 

statute as a whole”); Trustees of Chicago Truck Drivers v. 

Leaseway Transp. Corp., 76 F.3d 824, 828 (7th Cir. 1996)

(emphasizing the same points and explaining that the 

meaning of statutory text comes from reading language in 

context and not words in insolation). 

Reading § 4(a)(2) in its entirety shows that Congress employed the term “any individual” as a shorthand reference to 

someone with “status as an employee.” This construction is 

clear from Congress’s use of language telling us that the provision covers “any individual” deprived of an employment 

opportunity because such conduct “adversely affects his status as an employee.” Put differently, ordinary principles of 

grammatical construction require connecting “any individual” (the antecedent) with the subsequent personal possessive 

pronoun “his,” and upon doing so we naturally read “any individual” as referring and limited to someone with “status as 

an employee.” See Flora v. United States, 362 U.S. 145, 150 

(1960) (“This Court naturally does not review congressional 

enactments as a panel of grammarians; but neither do we regard ordinary principles of English prose as irrelevant to a 

construction of those enactments.”). The clear takeaway is 

that a covered individual must be an employee. 
6 No. 17-1206 

Our conclusion becomes ironclad the moment we look beyond § 4(a)(2) and ask whether other provisions of the ADEA 

distinguish between employees and applicants. See Mount 

Lemmon Fire Dist. v. Guido, 139 S. Ct. 22, 24 (2018) (endorsing 

this same approach when interpreting the ADEA’s various 

definitions of “employer”). We do not have to look far to see 

that the answer is yes. 

Right next door to § 4(a)(2) is § 4(a)(1), the ADEA’s disparate treatment provision. In § 4(a)(1), Congress made it unlawful for an employer “to fail or refuse to hire or to discharge any 

individual or otherwise discriminate against any individual 

with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 

U.S.C. § 623(a)(1) (emphasis added). All agree that § 4(a)(1), 

by its terms, covers both employees and applicants. See, e.g., 

Kralman v. Ill. Dep’t of Veterans’ Affairs, 23 F.3d 150, 152–53 (7th 

Cir. 1994) (treating an applicant’s right to bring a claim under 

§ 4(a)(1) as unquestioned). Compelling this consensus is 

§ 4(a)(1)’s use of the words “to fail or refuse to hire or to discharge,” which make clear that “any individual” includes 

someone seeking to be hired. 29 U.S.C. § 623(a)(1). 

Yet a side-by-side comparison of § 4(a)(1) with § 4(a)(2) 

shows that the language in the former plainly covering applicants is conspicuously absent from the latter. Section 4(a)(2) 

says nothing about an employer’s decision “to fail or refuse to 

hire ... any individual” and instead speaks only in terms of 

an employer’s actions that “adversely affect his status as an 

employee.” We cannot conclude this difference means nothing: “when ‘Congress includes particular language in one section of a statute but omits it in another’—let alone in the very 

next provision—the Court presumes that Congress intended 
No. 17-1206 7

a difference in meaning.” Loughrin v. United States, 573 U.S. 

351, 358 (2014) (quoting Russello v. United States, 464 U.S. 16, 

23 (1983)). 

There is even more. A short distance away from § 4(a)(2) 

is § 4(c)(2), which disallows labor organizations from engaging in particular conduct. Section 4(c)(2), in pertinent part, 

makes it unlawful for a labor organization 

to limit, segregate, or classify its membership ... 

in any way which would deprive or tend to deprive any individual of employment opportunities ... or otherwise adversely affect his status as 

an employee or as an applicant for employment, because of such individualʹs age. 

29 U.S.C. § 623(c)(2) (emphasis added). 

The parallel with § 4(a)(2) is striking: both provisions define the prohibited conduct in terms of action that “would deprive or tend to deprive any individual of employment opportunities,” only then to include the “or otherwise adversely 

affect” catchall language. But there is a big difference between 

the two provisions: § 4(c)(2)’s protection extends to any individual with “status as an employee or as an applicant for employment,” whereas Congress limited § 4(a)(2)’s reach only to 

someone with “status as an employee.” 

Consider yet another example. In § 4(d), Congress addressed employer retaliation by making it “unlawful for an 

employer to discriminate against any of his employees or applicants for employment” because such an individual has opposed 

certain unlawful practices of age discrimination. 29 U.S.C. 

§ 623(d) (emphasis added). Here, too, the distinction between 

“employees” and “applicants” jumps off the page. 
8 No. 17-1206 

Each of these provisions distinguishes between employees 

and applicants. It is implausible that Congress intended no 

such distinction in § 4(a)(2), however, and instead used the 

term employees to cover both employees and applicants. To 

conclude otherwise runs afoul of the Supreme Court’s admonition to take statutes as we find them by giving effect to 

differences in meaning evidenced by differences in language. 

See Mount Lemmon Fire Dist., 139 S. Ct. at 26 (declining the 

defendant’s invitation to take language from one part of a sentence and then “reimpose it for the portion” of the sentence in 

which Congress omitted the same language); see also Dep’t of 

Homeland Sec. v. MacLean, 135 S. Ct. 913, 919 (2015) (explaining 

that “Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another”). 

In the end, the plain language of § 4(a)(2) leaves room for 

only one interpretation: Congress authorized only employees 

to bring disparate impact claims. 

B 

Kleber urges a different conclusion in no small part on the 

basis of the Supreme Court’s 1971 decision in Griggs v. Duke 

Power Co., 401 U.S. 424, where the Court interpreted 

§ 703(a)(2) of Title VII and held that disparate impact was a 

viable theory of liability. Indeed, Kleber goes so far as to say 

Griggs—a case where the Court considered language in Title 

VII that at the time paralleled the language we consider 

here—controls and mandates a decision in his favor. We disagree. 

A commonsense observation is warranted at the outset. If 

Kleber is right that Griggs, a Title VII case, compels the 
No. 17-1206 9

conclusion that § 4(a)(2) of the ADEA authorizes outside job 

applicants to bring a disparate impact claim, we find it very 

difficult to explain why it took the Supreme Court 34 years to 

resolve whether anyone—employee or applicant—could sue 

on a disparate impact theory under the ADEA, as it did in 

Smith v. City of Jackson, 544 U.S. 228 (2005). There was no need 

for the Court to decide Smith if (all or part of) the answer came 

in Griggs. And when the Court did decide Smith the Justices’ 

separate opinions recognized the imperative of showing 

impact to an individual’s “status as an employee” when 

discerning the reach of § 4(a)(2). See id. at 235–36, 236 n.6 

(plurality opinion); see id. at 266 (O’Connor, J., concurring, 

joined by Kennedy & Thomas, JJ.). 

Kleber’s position fares no better within the four corners of 

Griggs itself. Several African-American employees of Duke 

Power challenged the company’s practice of conditioning certain job transfers and promotions on graduating from high 

school and passing a standardized aptitude test. See 401 U.S. 

at 426. The employees sued under § 703(a) of Title VII, a provision that in 1971 mirrored the present language of § 4(a)(2) 

of the ADEA. See id. at 426 n.1. The Court held that § 703(a)(2) 

prohibits disparate impact discrimination by proscribing 

“practices that are fair in form, but discriminatory in operation” unless an employer can show that the challenged practice is “related to job performance” and thus a “business necessity.” Id. at 431. 

Kleber would have us read Griggs beyond its facts by focusing on language in a couple of places in the Court’s opinion that he sees as covering employees and applicants alike. 

We decline the invitation. Nowhere in Griggs did the Court 

state that its holding extended to job applicants. And that 
10 No. 17-1206 

makes perfect sense because nothing about the case, brought 

as it was by employees of Duke Power and not outside applicants, required the Court to answer that question. The language that Kleber insists on reading in isolation must be read 

in context, and the totality of the Griggs opinion makes clear 

that the Court answered whether Duke Power’s AfricanAmerican employees could bring a claim for disparate impact 

liability based on practices that kept them from pursuing different, higher-paying jobs within the company. 

What happened a year after Griggs cements our conclusion. In 1972, Congress amended § 703(a)(2) of Title VII—the 

provision at issue in Griggs—by adding language to expressly 

include “applicants for employment.” Pub. L. No. 92-261, 

§ 8(a), 86 Stat. 109 (1972). This amendment occurred in the immediate wake of Griggs and, in this way, reflected Congress’s 

swift and clear desire to extend Title VII’s disparate impact 

protection to job applicants. There was no need for Congress 

to amend § 703(a)(2) if the provision had always covered job 

applicants and especially if the Supreme Court had just said 

so in Griggs. To conclude otherwise renders the 1972 amendment a meaningless act of the 92nd Congress, and we are reluctant to conclude that substantive changes to statutes reflect 

idle acts. 

The Supreme Court endorsed this precise course of analysis—giving effect to “Congress’s decision to amend Title VII’s 

relevant provisions but not make similar changes to the 

ADEA”—in Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 174 

(2009). The Court there considered whether a plaintiff suing 

under § 4(a)(1) of the ADEA must establish that age was the 

but-for cause of an employer’s adverse action. See id. at 173. 

The plaintiff urged the Court to adopt Title VII’s lesser 
No. 17-1206 11

standard of race being only a motivating factor in the challenged decision. See id. Paramount to the Court’s conclusion 

that an ADEA plaintiff must prove but-for causation were textual differences between the ADEA and Title VII brought 

about by Congress’s amendments to Title VII. See id. at 174 

(explaining that “Congress neglected to add such a [motivating-factor] provision to the ADEA when it amended Title VII 

[in 1991]” and emphasizing that “[w]hen Congress amends 

one statutory provision but not another, it is presumed to 

have acted intentionally”). The Court’s instruction was clear: 

prior decisions interpreting Title VII “do not control our construction of the ADEA” where the text of the two statutes are 

“materially different.” Id. at 173. 

And so it is here. Congress’s choice to add “applicants” to 

§ 703(a)(2) of Title VII but not to amend § 4(a)(2) of the ADEA 

in the same way is meaningful. Gross teaches that we cannot 

ignore such differences in language between the two enactments. And, at the risk of understatement, Gross is far from an 

aberration in statutory construction. A mountain of precedent 

supports giving effect to statutory amendments. See, e.g., 

United States v. Quality Stores, Inc., 572 U.S. 141, 148 (2014) 

(quoting Stone v. INS, 514 U.S. 386, 397 (1995)) (“When Congress acts to amend a statute, we presume it intends its 

amendment to have real and substantial effect.”); Fidelity Fin. 

Servs., Inc. v. Fink, 522 U.S. 211, 220–21 (1998) (explaining that 

after Congress modified the federal statute controlling when 

a transfer of a security interest was perfected, “we see no basis 

to say that subsequent amendments removing references to 

state-law options had the counterintuitive effect of deferring 

to such [state law] options” without unwinding the statutory 

amendments); United States v. Wells, 519 U.S. 482, 492–93 

(1997) (explaining that after Congress amended the federal 
12 No. 17-1206 

criminal statute pertinent to false representations to remove 

any express reference to materiality, “the most likely inference in these circumstances is that Congress deliberately 

dropped the term ‘materiality’ without intending materiality 

to be an element of [18 U.S.C.] § 1014”); Stone, 514 U.S. at 397–

98 (explaining that after Congress amended the Immigration 

and Naturalization Act, “[t]he reasonable construction [was] 

that the amendment was enacted as an exception, not just to 

state an already existing rule”). 

In no way does this analysis downplay Griggs, as our dissenting colleagues contend. We have approached Griggs as 

binding precedent and construed its holding not only by 

reading what the Supreme Court’s opinion says (and does not 

say), but also in light of Congress’s immediately amending 

Title VII (but not § 4(a)(2) of the ADEA) to cover “applicants” 

as well as the broader development in the law ever since, including with precedents like Smith in 2005 and Gross in 2009. 

The upshot is clear: while Congress amended § 703(a)(2) 

of Title VII in 1972 to cover “applicants for employment,” it 

has never followed suit and modified § 4(a)(2) of the ADEA in 

the same way. And this is so despite Congress’s 

demonstrating, just a few years after Griggs, that it knew how 

to amend the ADEA to expressly include outside job 

applicants. See Villarreal, 839 F.3d at 979–80 (Rosenbaum, J., 

concurring) (observing that Congress amended the ADEA in 

1974 to extend the statute’s reach to federal-government 

employment, and in doing so, explicitly referenced both 

“employees and applicants for employment” in the new 

provision, 29 U.S.C. § 633a). 

Today, then, § 703(a)(2) of Title VII differs from § 4(a)(2) in 

at least one material respect: the protections of the former 
No. 17-1206 13

extend expressly to “applicants for employment,” while the 

latter covers only individuals with “status as an employee.” 

We underscored this exact difference 14 years ago in our opinion in Francis W. Parker, and we do so again today. See 41 F.3d 

at 1077 (“The ‘mirror’ provision in the ADEA omits from its 

coverage, ‘applicants for employment.’”). The plain language 

of § 4(a)(2) controls and compels judgment in CareFusion’s 

favor. 

C 

Beyond his reliance on Griggs, Kleber invites us to read the 

ADEA against the backdrop of Congress’s clear purpose of 

broadly prohibiting age discrimination. On this score, he 

points us to the Supreme Court’s decision in Robinson v. Shell 

Oil Company, 519 U.S. 337 (1997) and to the report of the 

former Secretary of the Department of Labor, Willard Wirtz. 

In Robinson, the Court held that § 704(a) of Title VII extended not just to “employees” (a term used in § 704(a)), but 

also to former employees. See id. at 346. The Court emphasized that, while the meaning of “employees” was ambiguous, Title VII’s broader structure made plain that Congress 

intended the term to cover former employees, a construction 

that furthered Title VII’s broader purposes. None of this helps 

Kleber. (Indeed, if anything, Robinson’s clear observation of 

the distinct and separate meaning of “employees” and “applicants for employment” in § 704(a) severely undermines 

Kleber’s textual argument. See id. at 344.) Robinson, in short, 

provides direction on how courts— if confronted with statutory ambiguity—should resolve such ambiguity. There being 

no ambiguity in the meaning of § 4(a)(2) of the ADEA, our 

role ends—an outcome on all fours with Robinson. 
14 No. 17-1206 

The Wirtz Report reflected the Labor Department’s 

response to Congress’s request for recommended age 

discrimination legislation, and a plurality of the Supreme 

Court in Smith treated the Report as an authoritative signal of 

Congress’s intent when enacting the ADEA. See Smith, 544 

U.S. at 238. We do too. 

Nobody disputes that the Wirtz Report reinforces 

Congress’s clear aim of enacting the ADEA to prevent age 

discrimination in the workplace by encouraging the 

employment of older persons, including older job applicants. 

But we decline to resolve the question presented here on the 

basis of broad statutory purposes or, more specifically, to 

force an interpretation of but one provision of the ADEA 

(here, § 4(a)(2)) to advance the enactment’s full objectives. 

Our responsibility is to interpret § 4(a)(2) as it stands in the 

U.S. Code and to ask whether the provision covers outside job 

applicants. We cannot say it does and remain faithful to the 

provision’s plain meaning. It remains the province of 

Congress to choose where to draw legislative lines and to 

mark those lines with language. Our holding gives effect to 

the plain limits embodied in the text of § 4(a)(2). 

The ADEA, moreover, is a wide-ranging statutory scheme, 

made up of many provisions beyond § 4(a)(2). And a broader 

look at the statute shows that outside job applicants have 

other provisions at their disposal to respond to age discrimination. Section 4(a)(1), for example, prevents an employer 

from disparately treating both job applicants and employees 

on the basis of age. See 29 U.S.C. § 623(a)(1). Section 4(c)(2), 

prevents a labor organization’s potential age discrimination 

against both job applicants and employees. See 29 U.S.C. 

§ 623(c)(2). 
No. 17-1206 15

Today’s decision, while unfavorable to Kleber, leaves 

teeth in § 4(a)(2). The provision protects older employees who 

encounter age-based disparate impact discrimination in the 

workplace. And Congress, of course, remains free to do what 

the judiciary cannot—extend § 4(a)(2) to outside job applicants, as it did in amending Title VII. 

For these reasons, we AFFIRM. 
16 No. 17-1206 

EASTERBROOK, Circuit Judge, dissenting. I do not join the 

majority’s opinion, because the statute lacks a plain meaning. Robinson v. Shell Oil Corp., 519 U.S. 337 (1997), held that 

the word “employees” in one part of Title VII includes exemployees. Robinson interpreted text in context. Here, too, 

the judiciary must look outside one subsection to tell whether “individual” in 29 U.S.C. §623(a)(2) includes applicants 

for employment. 

But neither do I join all of Judge Hamilton’s dissent, 

which relies on legislative purpose. The purpose of a law is 

imputed by judges; it is not a thing to be mined out of a statute. Even when we know what direction the legislature 

wanted to move, we must know how far to go—and making 

that choice is a legislative task. See, e.g., Rodriguez v. United 

States, 480 U.S. 522, 525–26 (1987). Our job is to apply the enacted text, the only thing to which the House, the Senate, 

and the President all subscribed, not to plumb legislators’ 

hopes and goals. 

Section 623(a) provides: 

It shall be unlawful for an employer— 

(1) to fail or refuse to hire or to discharge any individual or 

otherwise discriminate against any individual with respect 

to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; 

(2) to limit, segregate, or classify his employees in any way 

which would deprive or tend to deprive any individual of 

employment opportunities or otherwise adversely affect his 

status as an employee, because of such individual’s age; or 

(3) to reduce the wage rate of any employee in order to comply with this chapter. 
No. 17-1206 17 

The word “individual” in paragraph (1) includes applicants 

for employment; everyone agrees on this much. “Individual” 

reappears in paragraph (2), and normally one word used in 

adjacent paragraphs means a single thing. See Antonin Scalia 

& Bryan A. Garner, Reading Law: The Interpretation of Legal 

Texts (2011) (Canon 25: Presumption of Consistent Usage). 

Maybe the trailing phrase in paragraph (2)—”otherwise adversely affect his status as an employee”—implies that the 

word “individual” in paragraph (2) means only employees. 

That’s what the majority believes. But maybe, as Part I.C of 

Judge Hamilton’s dissent suggests, this phrase establishes an 

independent set of rights for employees, without implying 

that applicants for employment are not “individuals.” 

The statutory context does not point ineluctably to one 

understanding. The majority does not explain why the statute would use “individual” in dramatically different ways 

within the space of a few words. But the principal dissent 

does not explain how we can read “individual” in paragraph 

(2) to include “applicant” without causing paragraphs (1) 

and (2) to converge. If that happens, then paragraph (2) applies disparate-impact analysis to all employment actions. 

That leaves little or nothing for paragraph (1) to do, for paragraph (2), no less than paragraph (1), prohibits disparate 

treatment.

Smith v. Jackson, 544 U.S. 228, 236 n.6 (2005) (plurality 

opinion), tells us that paragraphs (1) and (2) have different 

scopes and that only paragraph (2) provides disparateimpact liability. That conclusion is enough by itself to expose 

problems in Part III of Judge Hamilton’s dissent, which in 

the name of legislative purpose would extend disparateimpact analysis across the board. Yet this does not help us to 
18 No. 17-1206 

know what “individual” in paragraph (2) does mean. Perhaps Justice O’Connor was right in Smith, 544 U.S. at 247–68 

(concurring opinion), and we should not impute disparateimpact liability to paragraph (2). The question we are addressing today may have no answer; it may be an artifact of 

the way the plurality in Smith distinguished paragraph (1) 

from paragraph (2), and if Justice O’Connor is right there’s 

no need to search for that nonexistent answer. But that mode 

of resolving this suit is not open to a court of appeals. 

Because neither text nor purpose offers a satisfactory solution, we should stop with precedent. Griggs v. Duke Power 

Co., 401 U.S. 424 (1971), treats the word “individual” in 42 

U.S.C. §2000e–2(a)(2), as it stood before an amendment in 

1972, as including applicants for employment. The pre-1972 

version of that statute is identical to the existing text in 

§623(a); Congress copied this part of the ADEA from that 

part of Title VII. It may be that the Court in Griggs was careless to treat outside applicants for employment as “individuals” in paragraph (2), but that is what the Justices did. Part 

II of Judge Hamilton’s opinion shows how this came to happen and also shows that many of the Supreme Court’s later 

decisions read Griggs to hold that paragraph (2) in the pre1972 version of Title VII applies disparate-impact theory to 

outside applicants for employment. If the Justices think that 

this topic (or Smith itself) needs a new look, the matter is for 

them to decide. I therefore join Part II of Judge Hamilton’s 

dissenting opinion. 

 
No. 17-1206 19

HAMILTON, Circuit Judge, dissenting, joined by WOOD, 

Chief Judge, and ROVNER, Circuit Judge, and joined as to Part II 

by EASTERBROOK, Circuit Judge. 

We should reverse the district court’s Rule 12(b)(6) dismissal of plaintiff Dale Kleber’s disparate impact claim and remand for further proceedings. The key provision of the Age 

Discrimination in Employment Act prohibits both employment practices that discriminate intentionally against older 

workers and those that have disparate impacts on older workers. 29 U.S.C. § 623(a); Smith v. City of Jackson, 544 U.S. 228 

(2005). The central issue in this appeal is whether the disparate-impact provision, § 623(a)(2), protects only current employees or whether it protects current employees and outside 

job applicants. 

We should hold that the disparate-impact language in 

§ 623(a)(2) protects both outside job applicants and current 

employees. Part I of this opinion explains why that’s the better 

reading of the statutory text that is at worst ambiguous on 

coverage of job applicants. While other ADEA provisions protect job applicants more clearly, the Supreme Court guides us 

away from the majority’s word-matching and toward a more 

sensible and less arbitrary reading. See Robinson v. Shell Oil 

Co., 519 U.S. 337, 341–46 (1997). 

Part II explains that protecting outside job applicants 

tracks the Supreme Court’s reading of identical statutory language in Title VII of the Civil Rights Act of 1964. In Griggs v. 

Duke Power Co., 401 U.S. 424, 426 n.1, 431 (1971), the Court 

found that this same disparate-treatment language protects 

not only current employees but also “the job-seeker”—people 

like plaintiff Kleber. We should read the same language the 
20 No. 17-1206 

same way. The majority tries to avoid this reasoning by narrowing Griggs and attributing significance to the 1972 amendment of the Title VII disparate-impact provision. As detailed 

in Part II, the actual facts of both the Griggs litigation and the 

1972 amendment flatly contradict the majority’s glib and unsupported theories. 

Part III explains that protecting both outside applicants 

and current employees is also more consistent with the purpose of the Act (as set forth in the statute itself) and avoids 

drawing an utterly arbitrary line. Neither the defendant nor 

its amici have offered a plausible policy reason why Congress 

might have chosen to allow disparate-impact claims by current employees, including internal job applicants, while excluding outside job applicants. The en banc majority does not 

even try to do so, following instead a deliberately naïve approach to an ambiguous statutory text, closing its eyes to fifty 

years of history, context, and application. 

I. The Text of the ADEA’s Disparate-Impact Provision 

A. Statutory Text of Disputed Provision

We begin with the statutory language, of course. We analyze the specific words and phrases Congress used, but we 

cannot lose sight of their “place in the overall statutory 

scheme,” since we “construe statutes, not isolated provisions.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015), quoting 

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 

(2000), and Graham County Soil and Water Conservation Dist. v. 

United States ex rel. Wilson, 559 U.S. 280, 290 (2010). As the Supreme Court explained in dealing with a similar issue in Title 

VII: “The plainness or ambiguity of statutory language is de-
No. 17-1206 21

termined by reference to the language itself, the specific context in which that language is used, and the broader context 

of the statute as a whole.” Robinson, 519 U.S. at 341, 346 (protection of “employees” from retaliation included former employees). 

The key provision of the ADEA, 29 U.S.C. § 623(a), reads: 

It shall be unlawful for an employer— 

(1) to fail or refuse to hire or to discharge any 

individual or otherwise discriminate against 

any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; 

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to 

deprive any individual of employment opportunities or otherwise adversely affect his status 

as an employee, because of such individual’s 

age; or 

(3) to reduce the wage rate of any employee 

in order to comply with this chapter. 

The disparate-treatment provision, paragraph (a)(1), does not 

refer to job applicants, but it clearly applies to them by making it unlawful for the employer “to fail or refuse to hire ... 

any individual ... because of such individual’s age.” The disparate-impact provision, paragraph (a)(2), also does not refer 

specifically to applicants or hiring decisions, but its broad language easily reaches employment practices that hurt older job 

applicants as well as current older employees. 
22 No. 17-1206 

Start with the critical statutory language, which includes 

two parallel provisions that prohibit employers from engaging in certain behavior. Under paragraph (a)(1), an employer 

may not intentionally discriminate against an older individual by firing or failing to hire or promote her because she is 

older—i.e., engage in disparate treatment of older individuals. Paragraph (a)(2) prohibits an employer from creating an 

internal employee classification or limitation that has the effect of depriving “any individual of employment opportunities” or adversely affecting his or her status as an employee 

because of age—i.e., creating an internal classification system 

with a disparate impact against older individuals. 

If an employer classifies a position as one that must be 

filled by someone with certain minimum or maximum experience requirements, it is classifying its employees within the 

meaning of paragraph (a)(2). If that classification “would deprive or tend to deprive any individual of employment opportunities” because of the person’s age, paragraph (a)(2) can 

reach that classification. The broad phrase “any individual” 

reaches job applicants, so the focus turns to the employer’s 

action and its effects—i.e., whether the employer has classified jobs in a way that tends to limit any individual’s employment opportunities based on age. See Smith, 544 U.S. at 234, 

235–38 (plurality) (explaining that this “text focuses on the effects of the action” and not the employer’s motive); id. at 243 

(Scalia, J., concurring).1 The defendant’s maximum-experience requirement in this case certainly limited plaintiff 

Kleber’s employment opportunities. 

 

1 Justice Scalia joined Parts I, II, and IV of the Smith opinion by Justice 

Stevens and wrote that he also agreed with Justice Stevens’s reasoning in 

Part III. 544 U.S. at 243. I therefore treat all parts of the Smith opinion by 
No. 17-1206 23

B. The Majority’s Cramped Reading

To avoid this conclusion, the majority emphasizes the 

phrase “or otherwise adversely affect his status as an employee,” reading it to limit the statute’s disparate-impact protection “to an individual with ‘status as an employee.’” Ante 

at 4. Note that the key “with” in that phrase—repeated several 

times in the majority opinion—comes only from the majority, 

not from the statute itself. It’s not correct. The antecedent of 

“his” is “any individual,” and “otherwise adversely affect” is 

even broader than “deprive or tend to deprive any individual 

of employment opportunities.” 

The crux of the majority’s argument is that if “any individual” is not already employed by the employer in question, the 

individual does not yet have “status as an employee” and so 

is not protected from policies or practices that have disparate 

impacts because of age. The majority thus concludes that a 

“person’s status as an employee” cannot be affected unless 

the person is already an employee. If that’s true, then paragraph (a)(2) subtly limits its protections from disparate impacts to people who already possess “status as an employee” 

with the defendant-employer. 

The majority’s analysis nullifies the two uses of the broad 

word “individual,” which certainly reaches job applicants. 

What Congress meant to say, the majority argues, is that it’s 

unlawful for an employer “to limit, segregate, or classify his 

employees in any way which would deprive or tend to deprive any current employee [not “any individual”] of employment opportunities or otherwise adversely affect his status as 

 

Justice Stevens as authoritative without repeatedly citing Justice Scalia’s 

concurrence as well. 
24 No. 17-1206 

an employee, because of such employee’s [not “individual’s”] 

age.” 

How does one read a bar against depriving “any individual” of “employment opportunities” to exclude all cases 

where a person is looking for a job? And if Congress meant to 

limit the provision’s coverage only to current employees, why 

didn’t it just use the word “employee”? It had used that word 

twice in this provision already. Courts are generally loath to 

read statutory terms out of a textual provision and to insert 

limitations that are not evident in the text. See Mount Lemmon 

Fire District v. Guido, 139 S. Ct. 22, 26 (2018) (refusing to read 

limitation into ADEA’s coverage that is not apparent from 

text, noting that “[t]his Court is not at liberty to insert the absent qualifier”). 

C. The Better Reading

If we look at the language of paragraph (a)(2) in isolation, 

the majority’s mechanical reading has some superficial plausibility, but it should be rejected. At the textual level, there are 

three distinct and fundamental problems. 

First, as Judge Easterbrook points out, the majority’s theory gives the phrase “any individual” very different meanings in adjoining paragraphs (a)(1) and (a)(2) of § 623. Ante at 

17. See also, e.g., Mohasco Corp. v. Silver, 447 U.S. 807, 826 

(1980) (declining to interpret § 706 of Title VII so that the word 

“filed” would have different meanings in different subsections). 

Second, the majority merely assumes that “affect his status 

as an employee” necessarily limits the already broad phrase, 

“deprive or tend to deprive any individual of employment 

opportunities.” It is not self-evident—at least as a matter of 
No. 17-1206 25

plain meaning—that the latter “status” phrase must be read as 

limiting the former. A list culminating in an “or otherwise” 

term can instead direct the reader to consider the last phrase 

as a catch-all alternative, “in addition to” what came before, 

to capture prohibited actions that might otherwise escape the 

statute’s reach. For example, an employer can violate the 

ADEA by adversely affecting the status of its employees (e.g., 

by giving bigger raises to junior employees, as alleged in 

Smith, 544 U.S. at 231) without depriving an individual of employment opportunities such as better jobs and promotions. 

In this sense, paragraph (a)(2) “enumerates various factual 

means of committing a single element”—imposing employment policies that have disparate impacts on older workers. 

See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (discussing various ways to write an “alternatively phrased 

law”). 

In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., 

139 S. Ct. —, — (2019), the Supreme Court rejected a remarkably similar argument that attempted to use an “otherwise” 

phrase to limit what came before. Much like the majority here, 

the patentee argued that “otherwise available to the public” 

in the Patent Act’s “on sale” bar meant that the preceding language also required public availability after a sale. The patentee “places too much weight on [the] catchall phrase. Like 

other such phrases, ‘otherwise available to the public’ captures material that does not fit neatly into the statute’s enumerated categories but is nevertheless meant to be covered.” 

See also Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009) (explaining that “the whole value of a generally phrased residual 

clause, like the one used in the second proviso, is that it serves 

as a catchall for matters not specifically contemplated—

known unknowns”). If “otherwise adversely affect his status 
26 No. 17-1206 

as an employee” does not necessarily limit the entire disparateimpact phrase—if it is instead a catch-all phrase for known 

unknowns, as the Supreme Court explained in Texas Dep’t of 

Housing & Community Affairs v. Inclusive Communities Project, 

Inc., 135 S. Ct. 2507, 2519 (2015) (linking “otherwise” phrases 

in ADEA, Title VII, and Fair Housing Act as establishing textual foundations for disparate-impact protection)—the majority’s textual analysis collapses. 

Third, even if “status as an employee” must be affected to 

state a disparate-impact claim under (a)(2), the majority’s conclusion also depends entirely on the unlikely notion that “status as an employee” is not “adversely affected” when an employer denies an individual the opportunity to become an employee in the first place. Refusing to hire an individual has the 

most dramatic possible adverse effect on that individual’s 

“status as an employee.” Reading “status as an employee” 

broadly, to include whether the individual is an employee or 

not, is consistent with the actual words Congress used in repeatedly referring to “individuals,” and with ordinary usage. 

Courts often speak of “denying status” of one sort or another.2

 

2 Judge Martin’s dissent in Villarreal v. R.J. Reynolds Tobacco Company

collected several examples. 839 F.3d 958, 983 & n.2 (11th Cir. 2016) (en 

banc), citing Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 547 U.S. 651, 

656 (2006) (bankruptcy claimant could be “denied priority status”); 

Chandris, Inc. v. Latsis, 515 U.S. 347, 372 (1995) (maritime worker could “be 

denied seaman status”); McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 

496 (1991) (person trying to do seasonal work could be “denied SAW 

[special agricultural worker] status”); Clark v. Gabriel, 393 U.S. 256, 264 

(1968) (draft registrant could be “denied CO [conscientious objector] 

status”). 

We have also used this “denial of status” phrasing in a variety of 

contexts. Bell v. Kay, 847 F.3d 866, 868 (7th Cir. 2017) (plaintiff objected to 
No. 17-1206 27

And the word “status” is not necessarily limited to status as 

of any particular moment. 1 U.S.C. § 1 (Dictionary Act providing that “unless the context indicates otherwise ... words used 

in the present tense include the future as well as the present”). 

In short, the effect of the phrase “otherwise adversely affects his status as an employee” on job applicants is at worst 

ambiguous for applicants like Kleber. The majority loads onto 

that phrase more weight than it can bear. If Congress really 

meant to exclude job applicants from disparate-impact protection, the phrase “status as an employee” was a remarkably 

obscure and even obtuse way to express that meaning. 

D. Comparing § 623(a)(2) to Other ADEA Provisions

Congress no doubt could have written § 623(a)(2) to make 

clearer its protection of outside job applicants, as it did in 

other ADEA provisions and other statutes. As explained by 

Justice Thomas for a unanimous Supreme Court in Robinson 

v. Shell Oil, however, that observation does not prove that 

Congress chose not to provide that protection. 519 U.S. at 341–

 

“the order denying him pauper status”); McMahon v. LVNV Funding, LLC, 

807 F.3d 872, 875 (7th Cir. 2015) (observing that “the denial of class status 

is likely to be fatal to this litigation”); Moranski v. General Motors Corp., 433 

F.3d 537, 538 (7th Cir. 2005) (analyzing “denial of Affinity Group status” 

affecting a proposed group of employees); Hileman v. Maze, 367 F.3d 694, 

697 (7th Cir. 2004) (plaintiff alleged injury resulting “from the denial of 

her status” as candidate in local election); Resser v. Comm’r of Internal 

Revenue, 74 F.3d 1528, 1532 (7th Cir. 1996) (appealing Tax Court’s “denial 

of ‘innocent spouse’ status”); Williams v. Katz, 23 F.3d 190, 191 (7th Cir. 

1994) (spurned intervenor permanently “denied the status of a party” in 

litigation); Lister v. Hoover, 655 F.2d 123, 124–25 (7th Cir. 1981) (plaintiffs 

“who were denied resident status and the accompanying reduced tuition” 

at a state university). In all of these cases, “status” was surely “adversely 

affected,” to use the phrasing of § 623(a)(2). 
28 No. 17-1206 

42 (language in other statutes “proves only that Congress can

use the unqualified term ‘employees’ to refer only to current 

employees, not that it did so in this particular statute”). 

The first statutory text that provides guidance on how to 

read § 623(a)(2) is the statute’s stated purpose, which the majority largely disregards. Congress told us it set out to address 

“the incidence of unemployment, especially long-term unemployment” among older workers. 29 U.S.C. § 621(a)(3). In the 

statute, Congress said it was “especially” concerned about the 

difficulty older workers faced in trying to “regain employment when displaced from jobs”—in other words, when older 

workers were applying for jobs. See § 621(a)(1). Unemployment 

ends when a person who is not currently employed applies 

successfully for a job. As the ADEA itself provides, “it is ... 

the purpose of this chapter to promote employment of older 

persons based on their ability rather than age.” § 621(b).

The majority, however, focuses on comparing § 623(a)(2) 

to several neighboring provisions in the ADEA that distinguish clearly between current employees and job applicants. 

The majority, to support its improbable result, reads too much 

into the differences in wording. 

The unlawful employment practices section of the ADEA 

begins with three subsections prohibiting age discrimination 

in employment by three different kinds of actors—private and 

public employers, employment agencies, and labor organizations. 29 U.S.C. § 623(a)–(c); see also § 630(b) (defining “employer”). Subsections (a), (b), and (c) are all worded slightly 

differently. In the following subsection (d), the ADEA prohibits retaliation by any of these private-sector actors. In another 

section, the ADEA provides for a different and even broader 
No. 17-1206 29

policy prohibiting age discrimination in federal hiring and 

employment. § 633a(a). 

The majority compares three of those ADEA provisions: 

the labor union provision in § 623(c)(2), the retaliation provision in § 623(d), and the federal government provision in 

§ 633a(a). All three of these provisions use the phrase “applicant for employment.” The majority invokes the common presumption that a difference in statutory wording signals a difference in Congressional intent and meaning. That presumption, however, is only a tool, not an inflexible rule. We need 

some basis beyond simple word-matching to believe that 

these particular differences in language were intended to distinguish the ADEA’s disparate-impact provision from these 

other provisions to produce such an improbable result as excluding older job applicants from disparate-impact protection. 

Instructive here is the Supreme Court’s approach to interpreting the term “employee” in Title VII’s anti-retaliation provision. Robinson v. Shell Oil, 519 U.S. at 339–41. Title VII makes 

it unlawful “for an employer to discriminate against any of 

his employees or applicants for employment” who have either availed themselves of Title VII’s protections or assisted 

others in doing so. 42 U.S.C. § 2000e-3(a). The issue in Robinson was whether this language prohibits retaliation against 

former employees. As in this case, the Court had to interpret 

a provision that was not as clear as other related provisions. 

The fact that “Congress also could have used the phrase ‘current employees,’” or “expressly included the phrase ‘former 

employees’ does not aid our inquiry.” 519 U.S. at 341. That 

“the term ‘employees’ may have a plain meaning in the context of a particular section,” or that “other statutes have been 
30 No. 17-1206 

more specific in their coverage of ‘employees’ and ‘former 

employees,’ ... proves only that Congress can use the unqualified term ‘employees’ to refer only to current employees”—

“not that the term has the same meaning in all other sections 

and in all other contexts.” Id. at 341–43. 

Adopting an approach that fits here, the Court wrote: “Because the term ‘applicants’ in § 704(a) is not synonymous with 

the phrase ‘future employees,’ there is no basis for engaging 

in the further (and questionable) negative inference that inclusion of the term ‘applicants’ demonstrations intentional exclusion of former employees.” Id. at 344–45. In fact, the Court 

reasoned, to hold that the term “employee” does not include 

former employees “would effectively vitiate much of the protection afforded by § 704(a),” and “undermine the effectiveness of Title VII by allowing the threat of postemployment retaliation to deter victims of discrimination from complaining 

to the EEOC, and would provide a perverse incentive for employers to fire employees who might bring Title VII claims.” 

Id. at 345–46. 

In short, the Court concluded, an “inclusive interpretation 

of ‘employees’ in § 704(a) that is already suggested by the 

broader context of Title VII”—and that is not “destructive of 

[the] purpose” of the statute by allowing an employer to escape liability for “an entire class of acts”—“carry persuasive 

force given their coherence and their consistency with a primary purpose” of the statutory provision. Id. at 346. We 

should use the same approach here. 

Instead, the majority’s reading of § 623(a)(2) creates a 

strange incongruity. All actors who regularly recruit job applicants—employment agencies, labor unions, and federal 
No. 17-1206 31

agencies—are prohibited from engaging in age discrimination, including disparate-impact discrimination. See 29 U.S.C. 

§§ 623(b), 623(c)(2), & 633a(a). Yet the majority concludes that 

Congress chose to allow private employers to use practices 

with disparate impacts on older job applicants. This is a truly 

odd reading, especially in light of the statute’s stated purpose 

and the rest of § 623, where Congress grouped employers, 

employment agencies, and labor organizations together with 

respect to retaliation, job advertisements, and the use of bona 

fide occupational qualifications and reasonable factors other 

than age. See Pub. L. 90-202, § 4(d)–(f), 81 Stat. 603 (1967). 

Half a century after the ADEA was enacted, we can see 

that Congress could have been more precise in phrasing the 

disputed provision. The majority errs, though, in concluding 

boldly that the text “leaves room for only one interpretation.” 

Ante at 8. The majority naively puts on blinders, considers 

only the language of the ADEA in isolation, and, as we’ll see, 

ignores precedent, legislative history, and practical consequences to offer one cramped reading for the scope of 

§ 623(a). The text alone does not provide sufficient grounds 

for choosing between two readings of one of the statute’s most 

important protections, one that protects outside job applicants, and one that excludes them. 

II. Griggs, Title VII, and the ADEA 

A. Griggs and “Job-Seekers”

The most reliable basis for choosing between these two 

readings of the statutory text is to follow the Supreme Court’s 

interpretation of identical language in Title VII of the Civil 

Rights Act of 1964 in Griggs v. Duke Power, 401 U.S. at 430–31. 
32 No. 17-1206 

In Griggs, the Court held that the language of Title VII as enacted in 1964 included disparate-impact protection for both 

job-seekers and current employees seeking promotions. That 

authoritative construction of identical language should control here. See Smith, 544 U.S. at 233–38 (applying Griggs to 

§ 623(a)(2) in ADEA); Texas Dep’t of Housing and Community 

Affairs, 135 S. Ct. at 2518 (applying analysis of identical statutory language in Griggs (Title VII) and Smith (ADEA) to interpret parallel disparate-impact provision in Fair Housing Act); 

see also, e.g., Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65 

(1987) (field preemption applies to ERISA because Congress 

copied ERISA’s jurisdictional language from Labor Management Relations Act, to which field preemption applied). 

1. Parallel Statutory Texts

The ADEA’s § 623(a)(2) tracks word-for-word the parallel 

provision for race, sex, religious, and national origin discrimination in Title VII of the Civil Rights Act of 1964, as it was 

enacted in 1964, as it stood when the ADEA was enacted, and 

as it stood when Griggs was decided. Here’s the original language of Title VII’s parallel disparate-treatment and disparate-impact provisions: 

(a) It shall be an unlawful employment practice 

for an employer— 

(1) to fail or refuse to hire or to discharge any 

individual, or otherwise to discriminate against 

any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, 

religion, sex, or national origin; or 
No. 17-1206 33

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to 

deprive any individual of employment opportunities or otherwise adversely affect his status 

as an employee, because of such individual’s 

race, color, religion, sex, or national origin. 

78 Stat. 255, quoted in Griggs, 401 U.S. at 426 n.1. The only difference between Title VII’s § 703(a)(2) and the ADEA’s 

§ 623(a)(2) is the substitution of “age” for “race, color, religion, sex, or national origin.” That’s why Smith v. City of Jackson described Griggs as “a precedent of compelling importance” in interpreting the ADEA’s disparate-impact language. 544 U.S. at 234. 

In Griggs, the Supreme Court unanimously held that Title 

VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation”—

e.g., practices with disparate impacts against protected 

groups. Griggs, 401 U.S. at 431. “The touchstone is business 

necessity,” the Court explained, as “the very purpose of title 

VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.” Id. at 431, 434, quoting 

110 Cong. Rec. 7247 (1964). 

The majority contends Griggs offers no guidance here because “nothing about the case, brought as it was by employees 

of Duke Power and not outside applicants, required the Court 

to answer th[e] question” whether Title VII’s disparate impact 

provision extended to job applicants. Ante at 10. The majority 

treats the Supreme Court’s references in Griggs to hiring as 

careless slips of the pen. As a general rule, that is not how 

lower federal courts should read Supreme Court opinions. 
34 No. 17-1206 

More specifically, a closer look at Griggs shows that the majority’s approach is 180 degrees off course. 

2. The Facts of Griggs 

Beyond reasonable dispute, the Griggs holding included 

job applicants. The majority ignores the fact that Griggs was a 

class action. The district court had certified a class “defined as 

those Negroes presently employed, and who subsequently 

may be employed, at [Duke Power’s plant] and all Negroes 

who may hereafter seek employment”—i.e., job applicants. Griggs 

v. Duke Power Co., 292 F. Supp. 243, 244 (M.D.N.C. 1968) (emphasis added). After remand from the Supreme Court, the 

district court enjoined Duke Power from, among other practices, “administering any personnel or aptitude tests or requiring any formal educational background ... as a condition 

of consideration for employment or promotion or transfer.” 

Griggs v. Duke Power Co., 1972 WL 215 at *1 (Sept. 25, 1972) 

(emphasis added). Of course the Supreme Court’s holding applied to job applicants. 

And that was for good reason. The Griggs class challenged 

employment practices that had the effect of segregating the 

workforce. Duke Power classified its employees into two 

main groups: (1) the “inside departments,” historically staffed 

by white employees, with higher pay and responsible for 

tasks such as operating the boilers and maintaining the plant 

equipment; and (2) the Labor Department, the lowest-wage 

unit, “responsible generally for the janitorial services” and 

historically staffed by black employees. Griggs v. Duke Power 

Co., 420 F.2d 1225, 1245–46 (4th Cir. 1970) (Sobeloff, J., dissenting); id. at 1228–29 (majority). Before the civil rights movement, white and black employees (within their respective segregated departments) had been hired and promoted with 
No. 17-1206 35

middle school levels of education or less, and certainly without high school diplomas; there was no indication that any 

particular level of formal education was needed to work at the 

power plant. Id. at 1245–46 (dissent). 

As the civil rights movement picked up steam, Duke 

Power “initiated a new policy as to hiring and advancement,” 

requiring “a high school education or its equivalent ... for all 

new employees, except as to those in the Labor Department.”

Id. at 1228–29 (majority) (emphasis added). On the day Title 

VII took effect, Duke Power “added a further requirement for 

new employees”—the passage of “two professionally prepared 

aptitude tests, as well as to have a high school diploma.” 

Griggs, 401 U.S. at 428 (emphasis added). All existing employees (white and black) were grandfathered in. Only new Labor 

Department employees could still be hired without having to 

meet the requirements. Griggs, 420 F.2d at 1245–46 (dissent).3

Notwithstanding the new rule, if an “inside” position 

opened, the grandfathered white employees from “inside departments” without high school diplomas faced “no restriction on transfer from any of the inside departments to the 

other two inside departments.” Id. at 1246 (Sobeloff, J., dissenting). It was “only the outsiders” (e.g., entirely new applicants or black Labor Department employees) who “must meet 

the questioned criteria.” Id. This internal employee classifica-

 3 To be precise, the coal handling department was the one unit staffed 

by white employees that had been subject to the high school diploma requirement for transfer. The aptitude tests were offered at the coal employees’ request as “a means of escaping from that department” and were then 

made available to employees in the Labor Department. Griggs, 420 F.2d at 

1229; Griggs, 401 U.S. at 427–28. 
36 No. 17-1206 

tion policy therefore put the black Labor Department employees in the same position as outside applicants. Consequently, 

“four years after the passage of Title VII, [the Duke power 

plant] look[ed] substantially like it did before 1965. The Labor 

Department [wa]s all black; the rest [wa]s virtually lilywhite.” Id. at 1247. 

Thus, it made no legal difference that the named class representatives were existing Labor Department employees challenging their restricted ability to transfer (read: apply) to the 

higher-paying units staffed with white employees. The 

Court’s legal analysis was not limited to intra-company transfers: all new applicants and the Labor Department plaintiffs

had to meet Duke’s educational and testing standards to apply for non-janitorial open positions. Griggs, 401 U.S. at 425–

28. 

3. The Supreme Court’s Analysis 

Thus it was neither accidental nor surprising that the Supreme Court framed the issue as whether an employer could 

require a high school education or passing a general intelligence test as “a condition of employment in or transfer to 

jobs,” id. at 426, signaling that the disparate-impact provision 

applied to both current employees and outside job applicants. 

The opinion also referred to the “hiring and assigning of employees” and to “tests or criteria for employment or promotion.” Id. at 427, 431 (emphasis added). Even more clearly, 

writing for the unanimous Court, Chief Justice Burger explained: 

Congress has now provided that tests or criteria for employment or promotion may not 

provide equality of opportunity merely in the 
No. 17-1206 37

sense of the fabled offer of milk to the stork and 

the fox. On the contrary, Congress has now required that the posture and condition of the jobseeker be taken into account. It has—to resort 

again to the fable—provided that the vessel in 

which the milk is proffered be one all seekers can 

use. The Act proscribes not only overt discrimination but also practices that are fair in form, 

but discriminatory in operation. 

Id. at 431 (emphasis added). The Court framed the issue and 

its holding as applying to the use of aptitude and personality 

tests for both hiring and promotion decisions because those 

were the facts at issue. A decision that applied only to intraDuke transfers, as the majority reads it now, would have 

missed the whole point of plaintiffs’ case. 

Everyone understood that Griggs was the case testing disparate-impact coverage nationally. Given the class definition 

that included future job applicants, all judicial officers, parties, and amici understood that the stakes included protection 

for job applicants.4 The amicus brief for the United States argued that the Court should hold that Title VII did not permit 

 

4 Judge Sobeloff’s dissent in the Fourth Circuit was prescient: “The 

decision we make today is likely to be as pervasive in its effect as any we 

have been called upon to make in recent years.” Griggs, 420 F.2d at 1237. 

He continued: “The statute is unambiguous” in prohibiting “‘objective’ or 

‘neutral’ standards that favor whites but do not serve business needs.” Id.

at 1238. After all, “[n]o one can doubt that [a] requirement would be invalid” if an employer issued the “neutral” criteria that “all applicants for employment shall have attended a particular type of school,” but “the specified schools were only open to whites” and “taught nothing of particular 

significance to the employer’s needs.” Id. (emphasis added). 
38 No. 17-1206 

“an employer to require completion of high school or passage 

of certain general intelligence tests as a condition of eligibility 

for employment in, or transfer to, jobs formerly reserved only 

for whites” when these new requirements “disqualif[ied] Negroes at a substantially higher rate than whites” and were not 

“shown to be necessary for successful performance of the 

jobs.” Griggs v. Duke Power Co., Brief for the United States as 

Amicus Curiae at *2, 1970 WL 122637 (Sept. 4, 1970) (emphasis 

added). On the other side, the Chamber of Commerce cautioned that the “subject matter of the instant case—the utilization of educational or test requirements to select employees 

for hiring or promotion—is a matter of significant national 

concern.” Brief Amicus Curiae on Behalf of the Chamber of 

Commerce of the United States of America at *1–2, 1970 WL 

122547 (Oct. 14, 1970) (emphasis added).5 

Against this background, there can be no serious doubt 

that Griggs recognized disparate-impact protection for both 

current employees and job applicants. Even the Court’s takeaway instructions for employers also addressed hiring: “Congress has now required that the posture and condition of the 

job-seeker be taken into account. ... If an employment practice 

which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.” 401 U.S.

at 431. And this was so despite the fact that the Court was 

confronted with the same textual differences in Title VII that 

 5The Chamber of Commerce attorney also talked about hiring in oral 

argument: “We’re talking about objective means of choosing which employee should fit in to a particular job or which employee should be hired in 

the first place....” Transcript of Oral Argument, Griggs, 401 U.S. 424 (No. 

70-124), available at http://www.oyez.org/cases/1970-1979/1970/1970_124 

(emphasis added). 
No. 17-1206 39

we face in the ADEA today: the explicit reference to “hiring” 

in paragraph (a)(1), its omission in (a)(2), and the phrase “or 

otherwise adversely affect his status as an employee” in (a)(2). 

The majority in this case therefore has its facts exactly 

backwards in asserting that “[n]owhere in Griggs did the 

Court state that its holding extended to job applicants.” Ante 

at 9. One cannot reasonably read hiring and job applicants out 

of the opinion. After Griggs, no competent lawyer would have 

counseled employers that they were prohibited from basing 

only intra-company transfers and promotions on “neutral” 

but non-job-related tests, but remained free to use the same 

tests when hiring new employees. 

B. Griggs’ Aftermath and Title VII’s 1972 Amendment 

1. Later Judicial Treatment of Griggs 

Unlike the majority here, courts, employers, and scholars 

took Griggs at its word that its holding was broad and not limited to intra-company transfers and promotions. Within two 

years, a “plethora of prominent and forceful federal court rulings—from district court judges to the Supreme Court but 

perhaps most pointedly from the courts of appeal— 

had already won ... sweepingly wide proactive employer 

compliance with Title VII’s strictures.” David J. Garrow, Toward a Definitive History of Griggs v. Duke Power Co., 67 Vand. 

L. Rev. 197, 230 (2014).

Later Supreme Court decisions continued to read Griggs

as governing hiring practices. E.g., Albemarle Paper Co. v. 

Moody, 422 U.S. 405, 427 (1975) (“Like the employer in Griggs,” 

the paper company defendant required “[a]pplicants for hire” 

to achieve certain test scores); id. at 425 (after Griggs, the “complaining party or class” must show “that the tests in question 
40 No. 17-1206 

select applicants for hire or promotion in a racial pattern”) (emphasis added); Dothard v. Rawlinson, 433 U.S. 321, 329 (1977) 

(explaining that Griggs and Albemarle Paper “make clear that 

to establish a prima facie case of discrimination, a plaintiff 

need only show that the facially neutral standards in question 

select applicants for hire in a significantly discriminatory pattern”); Connecticut v. Teal, 457 U.S. 440, 446 (1982) (although 

requirements in Griggs “applied equally to white and black 

employees and applicants, they barred employment opportunities to a disproportionate number of blacks” and were 

therefore invalid); Texas Dep’t of Housing, 135 S. Ct. at 2517 (explaining that Griggs “held that ‘business necessity’ constitutes 

a defense to disparate-impact claims” and did “not prohibit 

hiring criteria with a ‘manifest relationship’ to job performance”) (emphasis added), quoting Griggs, 401 U.S. at 432. In 

short, lower federal courts have no business dismissing as 

careless dicta the Griggs references to job applicants. 

2. Title VII’s 1972 Revision 

None of the Court’s later references to Griggs’ application 

to hiring even mention, let alone rely on, the fact that, as part 

of a major 1972 revision to Title VII, Congress also engaged in 

some statutory housekeeping and added an express reference 

to “applicants for employment” to the disparate-impact provision, § 2000e-2(a)(2). Pub. L. No. 92-261, § 8(a), 86 Stat. 109 

(1972). But the majority, apparently without engaging with 

the facts of the Griggs litigation or the legislation, opines that 

the 1972 Amendment actually “reflected Congress’s swift and 

clear desire to extend Title VII’s disparate impact protection to 

job applicants.” Ante at 10 (emphasis added). The facts show 

again that the majority has it exactly wrong. 
No. 17-1206 41

The year after Griggs, Congress enacted the Equal Employment Opportunity Act of 1972. It was a major bill designed to 

expand the powers of the EEOC and the scope of Title VII. But 

not every provision was important or controversial. The Act 

included this minor amendment not to change the law but to 

codify existing law as decided in Griggs.

The 1964 Act had confined the EEOC’s role to “investigation, persuasion, and conciliation,” and unlike other major 

agencies, it “lacked the authority to issue cease-and-desist orders or to initiate legal action in the federal courts.” Herbert 

Hill, The Equal Employment Opportunity Acts of 1964 and 1972, 

2 Berkeley J. Emp. & Labor L. 1, 7–8 (1977). The Department 

of Justice, which did have authority to sue to enjoin employment discrimination, filed “few suits” and “obtain[ed] only 

minimal benefits for the complainants.” Id. at 29. By the end 

of 1971, the year Griggs was decided, the EEOC was already 

“handicapped by a backlog of more than 23,000 unresolved 

complaints of discrimination” and was subject to withering 

criticism. Id. at 31–33. There was concern that Title VII’s results had been “disappointing” and “in most respects, proved 

to be a cruel joke to those complainants who have in good 

faith turned toward the Federal Government [which] cannot 

compel compliance”; thus there was general resolve that 

“promises of equal job opportunity made in 1964 must be 

made realities in 1971.” Id. at 47–48, quoting S. Rep. No. 415, 

92nd Cong., 1st Sess. 8 (1971). 

The EEOC’s limited powers were noted early. Efforts to 

strengthen it began almost immediately after the 1964 enactment. Id. at 32–33. It was clear, however, “that employers were 

vigorously opposed to any measure designed to increase the 

effectiveness of the law,” and “[b]usiness interests conducted 
42 No. 17-1206 

an intensive lobbying campaign against the various proposals 

to extend Title VII coverage, provide enforcement power to 

the EEOC, or strengthen the antidiscrimination statute in any 

way.” Id. at 33. 

This years-long battle culminated in the 1972 Act. The 

Act’s major provisions: authorized the EEOC “to initiate civil 

suits in federal district courts”; retained the then-controversial private right of action; created a new Office of General 

Counsel; expanded coverage to a larger number of private 

employers, most state and local government employees, and 

federal employees; and deleted the exemption for educational 

institutions. Id. at 50–58; Conf. Rep. on H.R. 1746, reprinted in 

118 Cong. Rec. 7166, 7166–69 (March 6, 1972). 

3. Clarifying the Title VII Disparate-Impact Provision

Along with these major changes, § 8(a) of the 1972 Act 

amended Title VII’s disparate-impact language in § 2000e2(a)(2) to add the reference to “applicants for employment.” 

Pub. L. No. 92-261, § 8(a), 86 Stat. 109 (1972). The majority argues that, in light of this addition, concluding that Griggs had 

already covered job applicants “renders the 1972 amendment 

a meaningless act of the 92nd Congress.” Ante at 10. Without 

considering the facts of the 1972 legislation as a whole, the 

majority has leaped to the wrong conclusion. It has overlooked the long-recognized difference between substantive 

and clarifying statutory amendments. 

First, Congress was well aware of Griggs. The Court’s 

opinion was mentioned several times in the lengthy legislative history—always favorably and typically described in 

terms tracking the discussion of Griggs above. One House report quoted Griggs to emphasize the importance of disparate 
No. 17-1206 43

impact protections for “the job seeker” before noting that the 

“provisions of the bill are fully in accord with the decision of 

the Court.” H.R. Rep. 92-899 at 21–22, reprinted in 118 Cong. 

Rec. 2156–57 (March 2, 1972), quoting Griggs, 401 U.S. at 431. 

Another House report described Griggs as a case “where the 

Court held that the use of employment tests as determinants 

of an applicant’s job qualification ... was in violation of Title 

VII if such tests work a discriminatory effect in hiring patterns” without a “showing of an overriding business necessity.” H.R. Rep. 92-238 at 8, reprinted at 1972 U.S.C.C.A.N. at

2144 (emphasis added). 

Amid the major policy changes in the 1972 Act, the addition of “applicants for employment” to the disparate-impact 

provision was a minor change, mentioned only briefly as incorporating existing law. The conference committee report to 

the Senate said that this addition was “merely declaratory of 

present laws.” 118 Cong. Rec. at 7169. Congress noted its intention to “make it clear that discrimination against applicants for employment ... is an unlawful employment practice” under both clauses of Title VII’s § 2000e-2(a). 118 Cong. 

Rec. at 7169. This conference committee report to the Senate 

was the final report on § 8(a) of H.R. 1746, which added “or 

applicants for employment” to the provision, see 86 Stat. 103, 

109 (approved March 24, 1972), essentially repeating an earlier Senate report that said this clarifying amendment “would 

merely be declaratory of present law.” S. Rep. 92-415 at 43 

(Oct. 28, 1971). Beyond these brief mentions, the addition of 

“applicants for employment” appeared not worthy of explanation at all.6

 6 The House version of the conference committee report contained the 

text of § 8(a) but provided no explanation. See H.R. Rep. 92-899 at 8, 19–
44 No. 17-1206 

Consider these sparse comments in context. The recognition of disparate-impact liability in Griggs had been controversial and hard-fought between civil rights advocates and 

employers. If Congress thought in 1972 that it was changing 

the law to extend disparate-impact protection to reach job applicants, that change surely would have been significant 

enough to mention in the detailed committee reports. 

And beyond Congress’s silence about such a supposedly 

major change in the legislation, it beggars belief to think that 

employer groups would have let such an amendment pass 

without mention.7 If, as the majority claims here, Griggs had 

actually left open whether job applicants were covered by Title VII’s disparate impact provision, the Chamber and other 

employer groups would not have been silent. But they had 

already fought that battle, and they knew they had lost. 

The majority is right that courts often assume that statutory amendments are intended to change the law. Ante at 11, 

citing, e.g., United States v. Quality Stores, Inc., 572 U.S. 141, 148 

 

20, reprinted in 92nd Cong., 118 Cong. Rec. 6643, 6645, 6648 (March 2, 

1972). An earlier House report mentioned § 8(a) only in passing in the section-by-section analysis. See id. at 20–22, 30, reprinted in 1972 

U.S.C.C.A.N. at 2155–57, 2165. 

7 Just months earlier, the Chamber of Commerce’s attorney had 

argued to the Griggs Court: 

This case is one which is a vital concern to employers, both small and 

large throughout the United States. In today’s labor market, there are 

often many applicants for the job, just as there are many employees 

who desire to be promoted [and] the employer must make a choice ... 

often a difficult one. 

Transcript of Oral Argument, Griggs, 401 U.S. 424 (No. 70-124), available 

at http://www.oyez.org/cases/1970-1979/1970/1970_124. 
No. 17-1206 45

(2014). But the majority overlooks the long-recognized reality 

that many statutory amendments are intended only to clarify 

existing law, not to change it. E.g., Singer, 1A Sutherland Statutes and Statutory Construction § 22:34 (7th ed. 2010). 

The distinction is relevant most often in disputes over 

whether to give an amendment retroactive effect. Substantive 

amendments that change the law are rarely given retroactive 

effect, while “clarifying” amendments are routinely given 

such effect. See, e.g., United States ex rel. Garbe v. Kmart Corp., 

824 F.3d 632, 642 (7th Cir. 2016) (collecting cases). In this case, 

the distinction has a dramatic effect on what the 1972 amendment tells us about the scope of Griggs and the proper interpretation of the original Title VII language, which is identical 

to the ADEA language we interpret here. 

How to tell when an amendment is substantive and when 

only clarifying? We explained in Garbe: 

In deciding whether an amendment is clarifying 

rather than substantive, we consider 

“[1] whether the enacting body declared that it 

was clarifying a prior enactment; [2] whether a 

conflict or ambiguity existed prior to the 

amendment; and [3] whether the amendment is 

consistent with a reasonable interpretation of 

the prior enactment and its legislative history.” 

824 F.3d at 642, quoting Middleton v. City of Chicago, 578 F.3d 

655, 663–64 (7th Cir. 2009). 

The evidence on all three of these factors shows that the 

1972 amendment to the Title VII disparate-impact language 

was clarifying, not substantive. As shown above: (1) The enacting body announced that the new language only declared 
46 No. 17-1206 

current law and was consistent with Griggs. (2) Before the 

1972 amendment, disparate-impact coverage for outside job 

applicants had been established in Griggs; that coverage was 

certainly no worse than ambiguous. (3) The 1972 amendment 

was “consistent with a reasonable interpretation of the prior 

enactment and its legislative history.” That’s exactly how the 

Supreme Court had read the language a year earlier in Griggs

and how the decision was described in the 1972 amendment’s 

legislative history. 

In short, the facts refute the majority’s unsupported claim 

that the 1972 amendment showed Congress’s “swift and clear 

desire to extend Title VII’s disparate impact protection to job 

applicants.” Ante at 10. Without evidence that Congress was 

“extending” Title VII, there is no foundation here for the majority’s further inference that Congress in 1972 was silently 

endorsing a narrower interpretation of identical language in 

the ADEA. The ADEA was never mentioned in the larger 1972 

Act itself or in the conference report describing it. The 1972 

Act amended only provisions of the 1964 Act and provides no 

support for the majority’s narrower interpretation of the 

ADEA. 

C. Griggs and Smith v. City of Jackson

In a further effort to diminish Griggs, the majority offers 

what it calls a “commonsense observation.” If it was so clear 

that Griggs’ Title VII analysis should apply to the ADEA’s 

identical disparate-impact language, then it is “very difficult 

to explain why it took the Supreme Court 34 years to resolve 

whether anyone—employee or applicant—could sue on a disparate impact theory under the ADEA, as it did in Smith v. 

City of Jackson, 544 U.S. 228 (2005).” Ante at 8–9. Yet again, the 
No. 17-1206 47

majority ignores the facts. It’s easy to explain. The Court’s 

opinion in Smith did so. 

After emphasizing Title VII and the ADEA’s “identical 

text” and “striking” contextual parallels, Smith noted somewhat bemusedly: “Indeed, for over two decades after our decision in Griggs, the Courts of Appeals uniformly interpreted 

the ADEA as authorizing recovery on a ‘disparate-impact’ 

theory in appropriate cases.” 544 U.S. at 233–37 & n.5. Without a circuit split over identical statutory language, there had 

been no need for the Supreme Court to step in. 

In Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993), however, the Court observed that “we have never decided 

whether a disparate impact theory of liability is available under the ADEA” and “we need not do so here.” Id. at 610. A 

concurring opinion in Hazen Paper emphasized that “nothing 

in the Court’s opinion should be read as incorporating in the 

ADEA context the so-called ‘disparate impact’ theory of Title 

VII of the Civil Rights Act of 1964” as “there are substantial 

arguments that it is improper to carry over disparate impact 

analysis from Title VII to the ADEA.” Id. at 618. Those comments finally led to a circuit split on the question.8

 

8 A year after Hazen Paper, we held that the ADEA did not permit any 

disparate-impact liability. EEOC v. Francis W. Parker School, 41 F.3d 1073, 

1075 (7th Cir. 1994). In rejecting the reasoning in Griggs, we mistakenly 

emphasized the textual difference between Title VII and the ADEA, see 41 

F.3d at 1077–78, overlooking the fact that Griggs, decided in 1971, considered exactly the same disparate-impact language that is in the ADEA. Inexplicably, the majority now repeats the same error: “We underscored this 

exact difference 14 years ago in our opinion in Francis W. Parker, and we 

do so again today”—“The ‘mirror’ provision in the ADEA omits from its 
48 No. 17-1206 

The Supreme Court then granted review in Smith to resolve the circuit split.9 Smith endorsed the view that had been 

uniform before Hazen Paper: the ADEA recognizes disparateimpact claims. See 544 U.S. at 237 n.8, 240. 

In fact, Smith cited with approval cases allowing disparateimpact ADEA claims by job applicants and others who did 

not have, according to the majority here, “status as an employee.” Id. at 237 n.8, citing Faulkner v. Super Valu Stores, Inc., 

3 F.3d 1419, 1423–24 (10th Cir. 1993) (laid-off warehouse 

workers applying for jobs with new buyer of warehouse); 

Wooden v. Board of Educ. of Jefferson Cty., 931 F.2d 376, 377 (6th 

Cir. 1991) (applicant for full-time teaching positions).10 Smith

 

coverage, ‘applicants for employment.’” Ante at 13. This was simply not 

so in Griggs. 

9 The Chamber of Commerce again weighed in, arguing against extending Griggs’ disparate-impact analysis to the ADEA. The Chamber had 

still not, however, hit upon the textual reading argued here, that job applicants should be excluded from the ADEA’s disparate-impact provision. 

Brief of Amicus Curiae Chamber of Commerce of the United States of 

America in Support of Respondents, 2004 WL 1905736 at *15 (Aug. 23, 

2004) (conceding that the reasoning of Griggs, which prohibited “segregation of departments by race,” “applies equally to the ADEA, which sought 

to eliminate these kinds of express age ‘limits’ and ‘classifications,’ which 

frequently were used against older workers. E.g. Labor Report at 21 (discussing ‘persistent and widespread use of age limits in hiring’).”). 

10 Other earlier cases not cited in Smith had also allowed disparateimpact age claims by job applicants. E.g., Lowe v. Commack Union Free 

School Dist., 886 F.2d 1364, 1365–70 (2d Cir. 1989) (laid-off teachers later reapplied but were not hired); Geller v. Markham, 635 F.2d 1027, 1030 (2d Cir. 

1980) (upholding jury award for teacher applicant temporarily hired, then 

passed over in favor of younger applicant due to “cost-cutting policy”); 

Leftwich v. Harris-Stowe State College, 702 F.2d 686, 689–90 (8th Cir. 1983) 

(faculty member forced to re-apply for job and not hired). 
No. 17-1206 49

thus seemed to end the questioning of Griggs’ relevance to the 

ADEA’s disparate-impact provision. See, e.g., Meacham v. 

Knolls Atomic Power Lab., 554 U.S. 84, 95 (2008) (confirming 

that § 623(a)(2) covers employment practices with disparate 

impacts on older workers); Texas Dep’t of Housing, 135 S. Ct. at 

2518. 

Smith did not end the long tug-of-war between employers 

and workers over competing interpretations of civil rights 

legislation. The authors of Hazen Paper concurred in Smith but 

planted the seed of today’s dispute. Justice O’Connor, joined 

by Justices Kennedy and Thomas, concurred in the judgment 

“on the ground that disparate impact claims are not cognizable.” Smith, 544 U.S. at 248. A primary reason, they argued, 

not to defer to the EEOC’s regulation that treated § 623(a)(2) 

as covering disparate-impact claims, was because the regulation also read the provision to cover employers’ hiring practices—and thus protected applicants for employment. Id. at 

266. The concurrence pointed to the difference in language between § 623(a)(1) and (a)(2) and asserted that “only” 

§ 623(a)(1) protects applicants and therefore the EEOC regulation “must” have read a disputed ADEA provision to “provide a defense against claims under [§ 623(a)(1)]—which unquestionably permits only disparate treatment claims.” Id.

Obviously that view did not carry the day in Smith.

11

Still, here we are. The resources that employers deployed 

in Smith to try to avoid all ADEA disparate-impact claims 

 11 Justice Scalia’s concurrence specifically rejected that reasoning as to 

the EEOC regulation and, since the line drawing between applicants and 

current employees was beyond the scope of Smith itself, expressed his agnosticism on that issue. Smith, 544 U.S. at 246 n.3. 
50 No. 17-1206 

have been repurposed. Now they are deployed in a new campaign to show that the “plain text” of § 623(a)(2) permits employers to maintain irrational policies that disadvantage older 

individuals so long as those individuals have not yet been 

hired by the employer. Today’s majority is not the first circuit

to bite on this argument. The Eleventh Circuit has beaten us 

to it, ironically producing four opinions on the “plain” meaning of the text. Villareal v. R.J. Reynolds Tobacco Co., 839 F.3d 

958 (11th Cir. 2016) (en banc). We should not adopt this deliberately naïve and ahistorical approach. 

III. Practical Consequences and Statutory Purpose

The text and precedent favor the view that job applicants 

may bring disparate-impact claims under the AEDA. In construing ambiguous statutory language, it also makes sense to 

consider the practical consequences of the different readings 

of § 623(a)(2) and how they fit with the overall statute’s design 

and purpose. E.g., Graham County, 559 U.S. at 299–301 (considering practical consequences when determining better 

reading of statute); Dewsnup v. Timm, 502 U.S. 410, 416–20 

(1992) (same); Burwell, 135 S. Ct. at 2489 (same). Those considerations weigh heavily against the majority here. 

A simple hypothetical shows how improbable and arbitrary the majority’s reading is. Suppose the majority is correct 

that § 623(a)(2) applies only to current employees. Imagine 

two applicants for the defendant’s senior counsel position 

here. Both are in their fifties, and both have significantly more 

than seven years of relevant legal experience. One is Kleber, 

who does not currently have a job with the defendant. The 

other already works for the defendant but wants a transfer or 

promotion to the senior counsel position. Both are turned 

down because they have more than the maximum seven years 
No. 17-1206 51

of experience. According to the majority, the inside applicant 

can sue for a disparate-impact violation, but the outside one 

cannot. 

That result is baffling, especially under a statute with the 

stated purpose “to prohibit arbitrary age discrimination in 

employment.” 29 U.S.C. § 621(b). And the majority’s view depends entirely on the assumption that the statutory phrase 

“otherwise adversely affect his status as an employee” cannot 

possibly be applied to an individual who is, because of the 

challenged employment practice, completely denied any status

as an employee. I cannot imagine that when the ADEA was 

enacted, “a reasonable person conversant with applicable social conventions would have understood” the ADEA as drawing the line the majority adopts here. See John F. Manning, 

What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 

70, 77 (2006); accord, In re Sinclair, 870 F.2d 1340, 1342 (7th Cir. 

1989) (legislative history may provide context for statutory 

language and “may be invaluable in revealing the setting of 

the enactment and the assumptions its authors entertained 

about how their words would be understood”). 

Under the majority’s interpretation, still further arbitrary 

line-drawing will now be needed. Suppose the applicant is 

currently employed by a sister subsidiary of the employer. 

Does she have the right “status as an employee” so that she 

can assert a disparate impact claim? Should the answer depend on some sort of corporate veil-piercing theory? Or suppose the applicant was recently laid off by the employer and 

challenges its failure to recall her. Or suppose the applicant 

currently has a position through a temporary employment 
52 No. 17-1206 

agency, working side-by-side with employees. I see no arguable reason to exclude any of these applicants from the disparate-impact protection of paragraph (a)(2). 

Neither the majority nor the defendant or its amici have 

offered a reason why Congress might have chosen to allow 

the inside applicant but not the outside applicant to assert a 

disparate-impact claim. I can’t either. Faced with the arbitrary 

consequences of drawing this line half a century after Congress drafted the legislation, the majority shrugs and says tautologically that it’s “the province of Congress to choose where 

to draw legislative lines and to mark those lines with language.” Ante at 14.12

Of course, Congress can and often does draw arbitrary 

lines when it wants to do so. When it does, courts enforce 

 

12 Far from offering a reason, defendant defiantly claims that just because Congress has drawn the line between “employees” and “applicants” “for no good reason, and that the line might create hypothesized 

anomalies, [that] is no reason to disregard Congress’ words.” Petition for 

Rehearing En Banc, Dkt. 43 at 10 (May 10, 2018). The Chamber of Commerce amicus brief feints toward ascribing intent to Congress, arguing 

that foreclosing applicants from recourse was “[o]ne of the careful lines 

drawn by Congress” because the ADEA “strikes a careful balance between 

prohibiting irrational barriers to employment of older workers and preserving employers’ ability to adopt sound hiring policies.” Dkt. 19 at 3, 1 

(Sept. 6, 2018). There is no evidence of such a deliberate choice in 

§ 623(a)(2). Under the Chamber’s theory, that “balance” is shifted entirely 

in employers’ favor. An employer can set wildly irrational hiring criteria—such as requiring Twitter, Instagram, and Snapchat proficiency for 

an entry-level position at a fast-food joint, which would likely have a large 

disparate impact on older workers. As long as that position is not open to 

internal applicants, that would be a highly effective yet immune “barrier 

to employment of older workers.” That’s not a “careful line.” It’s nonsense. 
No. 17-1206 53

those lines, absent constitutional problems. See, e.g., Stephens 

v. Heckler, 766 F.2d 284, 286 (7th Cir. 1985) (Congress can dictate outcomes even though “there is no shortage of arbitrariness in disability cases”); First Chicago NBD Corp. v. Comm’r of 

Internal Revenue, 135 F.3d 457, 460 (7th Cir. 1998) (“arbitrariness is everywhere in the tax code, so that an approach to interpretation that sought to purge the arbitrary from the code 

would be quixotic”). But when the statutory language is at 

worst ambiguous, see above at 21–27, courts should not embrace such arbitrary results so at odds with the stated statutory purpose. See, e.g., Graham County, 559 U.S. at 283, 299–

301 (False Claims Act); Gustafson v. Alloyd Co., Inc., 513 U.S. 

561, 564, 578 (1995) (Securities Act of 1933); see also, e.g., Kennedy v. Chemical Waste Mgmt., Inc., 79 F.3d 49, 51 (7th Cir. 1996) 

(Americans with Disabilities Act); Martin v. Luther, 689 F.2d 

109, 114 (7th Cir. 1982) (reaching conclusion about parole revocation “supported by common sense and an assessment of 

the practical consequences, which naturally guide our interpretation of legislative enactments”). 

The majority’s arbitrary line undermines the stated purpose of the statute. Statutory purpose here is not a matter of 

judicial inference but of statutory declaration in the text enacted by both Houses of Congress and signed by the President. Congress enacted the ADEA to address unfair employment practices that make it harder for older people to find

jobs. 29 U.S.C. § 621(a). That purpose was reflected in a variety 

of statutory provisions, as noted above. In addition to the statute’s specific reliance on its stated purpose, we know from the 

1965 Department of Labor report that was the catalyst for the 

ADEA—known as the Wirtz Report—that Congress had job 

applicants very much in mind. Report of the Secretary of La-
54 No. 17-1206 

bor, The Older American Worker: Age Discrimination in Employment (June 1965), reprinted in U.S. Equal Employment Discrimination in Employment Act (1981), Doc. No. 5 (the Wirtz 

Report). 

Under the majority’s reading of § 623(a)(2), the ADEA’s 

protection of the “employment opportunities” of “any individual” prohibits employment practices with disparate impacts in firing older workers and in promoting, paying, and 

managing them, but not in hiring them! Congress was concerned about all of these forms of discrimination. Wirtz Report at 21–22; see also Employment of Older Workers, 111 Cong. 

Rec. 15518, 15518–19 (1965) (describing Wirtz Report as urging “a clear, unequivocal national policy against hiring that 

discriminates against older workers” and referring to “job 

openings,” and “applicants over 45”); EEOC v. Wyoming, 460 

U.S. 226, 231 (1983) (observing that Wirtz Report concluded 

“arbitrary age discrimination was profoundly harmful ... [because] it deprived the national economy of the productive labor of millions ... [and] substantially increased costs in unemployment insurance and federal Social Security benefits” for 

older workers who could not land a job). 

A central goal—arguably the most central goal—of the 

statute was to prevent age discrimination in hiring. Congress 

and the Wirtz Report explained that the problem stemmed 

not just from explicit bias against older workers (i.e., disparate treatment), but also from “[a]ny formal employment 

standard” neutral on its face yet with adverse effects on otherwise qualified older applicants. Wirtz Report at 3; see also 

Smith, 544 U.S. at 235 n.5. Those neutral standards and other 

thoughtless or even well-intentioned employment practices 

can be addressed only with a disparate-impact theory under 
No. 17-1206 55

§ 623(a)(2). The report made clear that the older people who 

suffered the disparate impact from such practices were those 

trying to get hired in the first place. The report explained that 

despite the beneficial effects of such policies, “ironically, they 

sometimes have tended to push still further down the age at 

which employers begin asking whether or not a prospective employee is too old to be taken on.” Wirtz Report at 2 (emphasis 

added). 

Against this evidence of contemporary understandings, 

the majority offers no plausible policy reasons, but only its 

wooden and narrow textual interpretation, which is anything 

but inevitable. Wearing blinders that prevent sensible interpretation of ambiguous statutory language, the majority 

adopts the improbable view that the Act outlawed employment practices with disparate impacts on older workers, but 

excluded from that protection everyone not already working 

for the employer in question. 

* * * 

Given the statutory language in § 623(a)(2), the interpretation of that language in Smith and identical language in 

Griggs, the practical consequences of the interpretive choice, 

and the absence of any policy rationale for barring outside job 

applicants from raising disparate-impact claims, we should 

reject the improbable and arbitrary distinction adopted by the 

majority. We should hold that outside job applicants like 

Kleber may bring disparate-impact claims of age discrimination. I respectfully dissent.