### In the 

# United States Court of Appeals
For the Seventh Circuit

____________________ No. 17-1206

D ALE E. K LEBER , Plaintiff-Appellant

,

v.

C ARE F USION C ORPORATION , 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

.

____________________

A RGUED S EPTEMBER 6, 2018

— D ECIDED J ANUARY 23, 2019

____________________

Before W OOD , Chief Judge , and B AUER , F LAUM , E ASTERBROOK , K ANNE , R OVNER, S YKES , H AMILTON , B ARRETT , B RENNAN , S CUDDER , and S T

. E VE , Circuit Judges

.
S CUDDER , 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 claim2 No. 17-1206

against a prospective employer. A divided panel of this court reversed. We granted en banc review and, a ffi rming the district court, now hold that the plain language of § 4(a)(2) makesclear that Congress, while protecting employees from disparate impact age discrimination, did not extend that same protection to outside job applican ts. While our conclusion is grounded in § 4(a)(2)’s plain lang uage, it is reinforced by the ADEA’s broader structure and history.

I

In March 2014, Kleber, an a tt orney, 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 atthe 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 trea tment 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 impactclaim, 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 constitution al 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 inany way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely a ff ect his status as an employee, because of su ch 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 prohibitedconduct 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 a ff ect[ing] his status as an employee.” This language plainly demonstratesthat 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 de fi nitions con fi rm that an applicant has no “status as an employee.” See Merriam-Webster’s Collegiate4 No. 17-1206

Dictionary 60, 408 (11th ed. 2003) (de fi ning “applicant” as“one who applies,” including, for example, “a job [applicant],” while de fi ning “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. Cong ress 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 signi fi cant and has a unifying

e ff ect: the use of “or otherwise” serves to stitch the prohibitions and scope of § 4(a)(2) into a whole, fi rst by making clearthat the proscribed acts cover all conduct “otherwise affect[ing] his status as an empl oyee,” and, second, by limiting the reach of the statutory protec tion 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 explai ning that the “or otherwise” language “operates as a catchall: the speci fi c items that precede it are meant to be subsumed by what comes after the ‘or otherwise’”).
Kleber begs to di ff er, arguing that § 4(a)(2)’s coverage extends beyond employees to a pplicants for employment. He gets there by focusing on th e 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 in terpretation 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 constructi on 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 la nguage telling us that the provision covers “any individual” deprived of an employment opportunity because such conduct “adversely a ff ects his status as an employee.” Put di ff erently, ordinary principles ofgrammatical construction require connecting “any individual” (the antecedent) with the subsequent personal possessivepronoun “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 gramma rians; but neither do we regard ordinary principles of English prose as irrelevant to a
construction of those enactmen ts.”). 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 inte rpreting the ADEA’s various
de fi nitions 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 individualwith respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1) (emphasis adde d). All agree that § 4(a)(1), by its terms, covers both employees and applicants. See, e.g. , Kralman v. Ill. Dep’t of Veterans’ A ff

airs , 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 fa il or refuse to hire or to discharge,” which make clear that “any individual” includes someone seeking to be hire d. 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 la tt er. 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 a ff ect his status as an employee.” We cannot conclude this di ff erence 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 intendedNo. 17-1206 7

a di ff erence 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 a ff ect his status as an employee or as an applicant for employment , because of such individual ʹ s age. 29 U.S.C. § 623(c)(2) (emphasis added).
The parallel with § 4(a)(2) is striking: both provisions defi ne the prohibited conduct in terms of action that “would deprive or tend to deprive any individual of employment opportunities,” only then to incl ude the “or otherwise adversely

a ff ect” catchall language. But there is a big di ff erence between the two provisions: § 4(c)(2)’s pr otection 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 o ff the page.8 No. 17-1206

Each of these provisions distinguishes between employees and applicants. It is implausi ble that Congress intended no such distinction in § 4(a)(2), however, and instead used the term employees to cover both employees and applicants. Toconclude otherwise runs afoul of the Supreme Court’s admonition to take statutes as we fi nd them by giving e ff ect to di ff erences in meaning evidenced by di ff erences in language.
See Mount Lemmon Fire Dist. , 139 S. Ct. at 26 (declining the
defendant’s invitation to take la nguage from one part of a sentence and then “reimpose it for th e portion” of the sentence in which Congress omi tt ed the same language); see also Dep’t of
Homeland Sec. v. MacLean , 135 S. Ct. 913, 919 (2015) (explainingthat “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 di ff erent 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 theNo. 17-1206 9

conclusion that § 4(a)(2) of th e ADEA authorizes outside job applicants to bring a di sparate impact claim, we fi nd it very
di ffi cult to explain why it took the Supreme Court 34 years to resolve whether anyone—employee or applicant—could sue on a disparate impact theory un der 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 be tt er 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 fo rm, but discriminatory in operation” unless an employer can sh ow that the challenged practice is “related to job performa nce” 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 that10 No. 17-1206

makes perfect sense because nothing about the case, broughtas it was by employees of Duke Power and not outside applicants, required the Court to answer that question. The language that Kleber insists on read ing 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 impactliability 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 Grigg s—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, re fl ected 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 th e 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 re fl ect idle acts.
The Supreme Court endorsed this precise course of analysis—giving e ff ect 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 plainti ff suing under § 4(a)(1) of the ADEA mu st establish that age was the but-for cause of an employer’s adverse action. See id . at 173. The plainti ff urged the Court to adopt Title VII’s lesserNo. 17-1206 11

standard of race being only a mo tivating factor in the challenged decision. See id. Paramount to the Court’s conclusion that an ADEA plainti ffmust prove but-for causation were textual di ff erences 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 AD EA 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”). Th e Court’s instruction was clear: prior decisions interpreting Ti tle VII “do not control our construction of the ADEA” where the text of the two statutes are “materially di ff erent.” 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 di ff erences 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 e ff ect 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 e ff ect.”); Fidelity Fin. Servs., Inc. v. Fink , 522 U.S. 211, 220–21 (1998) (explaining that after Congress modi fi ed the federal statut e controlling when a transfer of a security interest was perfected, “we see no basis to say that subsequent amendm ents removing references to state-law options had the counterintuitive e ff ect 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 federal12 No. 17-1206

criminal statute pertinent to false representations to removeany 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 Cong ress 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 Co ngress’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 modi fi ed § 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 di ff ers from § 4(a)(2) in at least one material respect: the protections of the formerNo. 17-1206 13

extend expressly to “applican ts for employment,” while the
la tt er covers only individuals wi th “status as an employee.”
We underscored this exact di ff erence 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 employ ment.’”). 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 Wir tz

. 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 broade r purposes. None of this helps Kleber. (Indeed, if anything, Robinson ’s clear observation ofthe 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 Wir tz Report re fl ected the Labor Department’s response to Congress’s request for recommended age discrimination legislation, an d 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 Wir tz 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 speci fi cally, 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 e ff ect 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 dispos al 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 provisio n protects older employees who encounter age-based disparate im pact discrimination in the workplace. And Congress, of cour se, remains free to do whatthe 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

E ASTERBROOK , Circuit Judge , dissenting. I do not join themajority’s opinion, because the statute lacks a plain meaning. Robinson v. Shell Oil Corp. , 519 U.S. 337 (1997), held thatthe 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 th ing 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 respectto his compensation, terms, conditions, or privileges of employment, because of su ch 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 a ff ect 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 sing le thing. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts (2011) (Canon 25: Presumpt ion of Consistent Usage). Maybe the trailing phrase in pa ragraph (2)—”otherwise adversely a ff ect his status as an employee”—implies that the word “individual” in paragrap h (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 fo r employees, without implying that applicants for employment are not “individuals.”
The statutory context does not point ineluctably to oneunderstanding. The majority does not explain why the statute would use “individual” in dramatically di ff erent ways within the space of a few word s. 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 li tt le 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 di ff erentscopes 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 pu rpose would extend disparateimpact analysis across the board. Yet this does not help us to18 No. 17-1206

know what “individua l” 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 o ff ers 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 st ood 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 applie s disparate-impact theory to outside applicants for employment. If the Justices think that this topic (or Smith itself) needs a new look, the ma tt er is for them to decide. I therefore join Part II of Judge Hamilton’s dissenting opinion.No. 17-1206 19

H AMILTON , Circuit Judge , dissenting, joined by W OOD , Chief Judge , and R OVNER, Circuit Judge , and joined as to Part II by E ASTERBROOK, 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 AgeDiscrimination in Employment Act prohibits both employment practices that discriminate intentionally against older
workers and those that have di sparate 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 outsid e job applicants and current employees. Part I of this opinio n explains why that’s the better reading of the statutory text that is at worst ambiguous oncoverage of job applicants. While other ADEA provisions protect job applicants more clearl y, 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 applicantstracks 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 the20 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 the1972 amendment flatly contradict the majority’s glib and unsupported theories.
Part III explains that protec ting both outside applicantsand 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 plausi ble policy reason why Congressmight have chosen to allow disparate-impact claims by current employees, including intern al job applicants, while excluding outside job applicants. The en banc majority does noteven 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 statutoryscheme,” 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 la nguage 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 re taliation 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 againstany 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 todeprive 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 notrefer 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 hi ring 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 includestwo parallel provisions that prohibit employers from engaging in certain behavior. Under paragraph (a)(1), an employermay not intentionally discriminate against an older individual by firing or failing to hire or promote her because she isolder—i.e., engage in disparate treatment of older individuals. Paragraph (a)(2) prohibits an employer from creating aninternal 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 befilled by someone with certain minimum or maximum experience requirements, it is cla ssifying its employees within themeaning 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. Th e broad phrase “any individual” reaches job applicants, so the focus turns to the employer’s action and its effects—i.e., wh ether 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 th erefore treat all parts of the Smith opinion byNo. 17-1206 23

B. The Majority’s Cramped Reading
To avoid this conclusion, the majority emphasizes thephrase “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 arg ument 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 ma jority 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 nullifie s 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 hisemployees 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 withou t 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 te xtual 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 indivi dual” 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 me anings 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 ofNo. 17-1206 25

plain meaning—that the latter “statu s” phrase must be read as limiting the former. A list culmin ating 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 th at 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 depr iving an individual of employment opportunities such as better jobs and promotions. In this sense, paragraph (a)(2) “enumerates various factualmeans 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 atte mpted to use an “otherwise” phrase to limit what came befo re. Much like the majority here, the patentee argued that “other wise 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. Likeother such phrases, ‘otherwise available to the public’ captures material that does not fi t 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 seco nd proviso, is that it serves as a catchall for matters not specifically contemplated— known unknowns”). If “otherwise adversely affect his status26 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” phrasesin 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 tostate 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 opportun ity 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 ornot, 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 toNo. 17-1206 27

And the word “status” is not necessarily limited to status asof 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 reallymeant 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 outsid e job applicants, as it did in other ADEA provisions and othe r statutes. As explained by Justice Thomas for a unan imous 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) (analyzi ng “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 ‘employ ees’ 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 thedifficulty 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 no t 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 abili ty rather than age.” § 621(b).
The majority, however, focuses on comparing § 623(a)(2) to several neighboring provisio ns in the ADEA that distinguish clearly between current employees and job applicants. The majority, to support its impr obable 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 andpublic employers, employment agencies, and labor organizations. 29 U.S.C. § 623(a)–(c); s ee 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 pr ivate-sector actors. In another section, the ADEA provides fo r a different and even broaderNo. 17-1206 29

policy prohibiting age discrimin ation 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, no t an inflexible rule. We need some basis beyond simple word-matching to believe that these particular differences in la nguage were intended to distinguish the ADEA’s disparate- impact provision from theseother provisions to produce such an improbable result as excluding older job applicants from disparate-impact protection.
Instructive here is the Suprem e 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 ofhis employees or applicants for employment” who have either availed themselves of Titl e 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 ca se, 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 been30 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 engagingin 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 includeformer employees “would effectively vitiate much of the protection afforded by § 704(a),” and “undermine the effectiveness of Title VII by allowing th e threat of postemployment retaliation to deter victims of discrimination from complainingto 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 astrange incongruity. All actors who regularly recruit job applicants—employment agencies, labor unions, and federalNo. 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 r oom 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 mostimportant 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 lang uage 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. Thatauthoritative 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 applie s to ERISA because Congresscopied 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 Civ il 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 againstany individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; orNo. 17-1206 33

(2) to limit, segregate, or classify his employees in any way which would deprive or tend todeprive 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 th e 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 th e 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, br ought as it was by employees of Duke Power and not outside applicants, required the Court to answer th[e] question” whet her 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 majori ty ignores the fact that Griggs was a class action. The district court ha d 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, thedistrict court enjoined Duke Power from, among other practices, “administering an y 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 th e 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 high er pay and responsible for tasks such as operating the bo ilers 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 withNo. 17-1206 35

middle school levels of education or less, and certainly without high school diplomas; ther e 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) (emphasi s 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 g randfathered 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 whit e 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 outsid ers” (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 staffedby 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 LaborDepartment [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. TheCourt’s legal analysis was not limited to intra-company transfers: all new applicants and the Labor Department plaintiffs
had to meet Duke’s educationa l 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 couldrequire 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 employ ees 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 theNo. 17-1206 37

sense of the fabled offer of milk to the stork andthe 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 canuse. The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.

Id. at 431 (emphasis added). Th e 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 decisi on 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 definitionthat 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 Fo urth 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 unambigu ous” 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 whit es” 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 requ irements “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) (emphasisadded). On the other side, the Chamber of Commerce cautioned that the “subject matte r 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 bothcurrent employees and job applicants. Even the Court’s takeaway instructions for employers also addressed hiring: “ Congress has now required that th e posture and condition of the job-seeker be taken into account. ... If an employment practicewhich 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

5 The Chamber of Commerce attorney also talked about hiring in oralargument: “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 th erefore 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 Titl e VII’s 1972 Amendment

1. Later Judicial Treatment of Griggs
Unlike the majority here, cour ts, employers, and scholars
took Griggs at its word that its holding was broad and not limited to intra-company t ransfers and promotions. Within twoyears, 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 question40 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 questionselect 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 blackemployees 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 (emp hasis 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 concilia tion,” and unlike other majoragencies, 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 i mmediately 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 conducted42 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 an tidiscrimination 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 lo cal 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 Actamended 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, themajority has leaped to the wrong conclusion. It has overlooked the long-recognized di fference between substantive and clarifying statutory amendments.
First, Congress was well aware of Griggs . The Court’sopinion 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 disparateNo. 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 empl oyment 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, re printed 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 employ ment” to the disparate-impact provision was a minor change, me ntioned only briefly as incorporating existing law. The conference committee report to the Senate said that this addition was “merely declaratory ofpresent 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 Titl e 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 though t 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 hadactually 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 cour ts 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 overlook s 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] whet her 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 languagewas clarifying, not substantive. As shown above: (1) The enacting body announced that the new language only declared46 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 hi story.” That’s exactly how the Supreme Court had read the la nguage a year earlier in Griggs
and how the decision was descr ibed in the 1972 amendment’s legislative history.

In short, the facts refute th e majority’s unsupported claim
that the 1972 amendment showed Congress’s “swift and clear desire to extend Title VII’s disp arate impact protection to job applicants.” Ante at 10. With out 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 shou ld 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 resolvewhether 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, theNo. 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 decidedwhether 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 ‘dis parate 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 th e 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 its48 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 ap plicants and others who didnot 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 hadstill not, however, hit upon the textual reading argued here, that job applicants should be excluded from th e 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 work ers. 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 di spute. 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. at266. 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 disp uted 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 li ne 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 usto it, ironically producing four opinions on the “plain” meaning of the text. Villareal v. R.J. Reynolds Tobacco Co. , 839 F.3d958 (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 applicantsmay bring disparate-impact claims under the AEDA. In construing ambiguous statutory lang uage, 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 show s 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 defe ndant but wants a transfer or promotion to the senior counse l position. Both are turned down because they have more than the maximum seven yearsNo. 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, especi ally under a statute with the stated purpose “to prohibit arbitrary age discrimination inemployment.” 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 wasenacted, “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 assumpti ons 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 shecan assert a disparate impact claim? Should the answer depend on some sort of corporat e 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 employment52 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 ei ther. Faced with the arbitraryconsequences of drawing this line half a century after Congress drafted the legislation, the majority shrugs and says tautologically that it’s “the prov ince of Congress to choose whereto 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 di sregard Congress’ words.” Petition forRehearing 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 betweenprohibiting 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 eviden ce of such a deliberate choice in § 623(a)(2). Under the Chamber’s theory, that “balance” is shifted entirely in employers’ favor. An employer ca n 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 “barrierto 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 Ci r. 1985) (Congress can dictate outcomes even though “the re 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.2d109, 114 (7th Cir. 1982) (reaching conclusion about parole revocation “supported by common sense and an assessment ofthe 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 statut ory declaration in the text enacted by both Houses of Cong ress 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 pu rpose was reflected in a varietyof statutory provisions, as noted above. In addition to the statute’s specific reliance on its stat ed 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 work ers” 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 explaine d that the problem stemmednot just from explicit bias against older workers (i.e., disparate treatment), but also from “[a]ny formal employment standard” neutral on its face ye t with adverse effects on otherwise qualified older applicants. Wirtz Report at 3; see also
Smith , 544 U.S. at 235 n.5. Those ne utral standards and other thoughtless or even well-intentioned employment practices can be addressed only with a disparate-impact theory underNo. 17-1206 55

§ 623(a)(2). The report made cl ear that the older people who suffered the disparate impact fr om 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 inte rpretation, which is anythingbut inevitable. Wearing blinders that prevent sensible interpretation of ambiguous stat utory language, the majorityadopts 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 disparat e-impact claims, we should reject the improbable and arbit rary distinction adopted by the majority. We should hold that outside job applicants likeKleber may bring disparate-impact claims of age discrimination. I respectfully dissent.