*2 MANION, Before CUMMINGS FAIRCHILD, Judges, Senior Circuit Judge. Circuit CUMMINGS, Judge. Circuit Opportunity Equal Employment The (“EEOC”) brought action Commission bar- challenge legality of a collective that denies agreement provision gaining right to a contractual their proceeding whenever claim, including a claim initiates a ee discrimination, in administra- age-based ques- judicial forum. tive or to file a he wishes Board if anee with to a collective pursuant adopted tion was EEOC, assertedly vio- charge agreement between (“Section the ADEA Colleges and Univer- lates Section of State of Governors 4(d)”), provides: agency or instrumental- (“Board”), an sities *3 University Illinois, and the State ity of to for an unlawful It shall be (“Union”).1 Under of Illinois Professionals any of his against discriminate * * * agreement, bargaining the collective individual, mem- such because ees a initiates charge or files a employee membership has applicant for or ber halt ex- to authorized Board is the lawsuit assisted, testified, par- or charge, made a proceedings. grievance isting or future investiga- in an any manner ticipated policy vio- this maintains The EEOC litigation under tion, or proceeding, 4(d) Age the Discrimination lates Section chapter. 29 U.S.C. (“ADEA”), Employment Act 623(d). 29 U.S.C. § discrimination 628(d), which forbids § in three district resulted This lawsuit charge, a have filed employees who against at 665 reported opinions are court ADEA. Ac- the under or lawsuit complaint (1989), F.Supp. 1377 (1987), 706 F.Supp. enjoin to sought has cordingly, the EEOC The EEOC F.Supp. 888 enforcing from the Board III, II, I, and BOG BOG BOG dubbed them charges or com- filed employees who have Board of Gover- defendant referring the to hesi- much With the ADEA. plaints under adopt this nomenclature. We nors. summary granted tation, court the district of this on the basis the for judgment April on I revealed that BOG Maga- Rose v. Hearst decision in grievance Court’s filed a Raymond Lewis Professor Div., Corp., Hearst zines the Northeastern because the with Union assumes Cir.1987). this Court appeal, On had decided University president Illinois 1291. For under 28 U.S.C. jurisdiction tenure, alleg- for Lewis not to recommend reasons, reverse. following we the procedure. University in violation edly a more than took grievance claim Lewis’s I. hearing and an arbitration year process, to bargaining 20,. Although he collective May 17.2 of was set the Un- so, encour- the Board the EEOC do agreement between to reluctant 17.2”) provides: (“Article age discrimination file an ion to aged Lewis hereunder, He such filed the Commission. grievance with a claim filing If to prior feared, he May proceeding claim on grievance a a while or his to terminate resolution the Board employee seeks this caused progress, forum, above-quoted wheth- any other under pending matter of bargaining or judicial, collective provision er administrative obligation completion of blocking have no University shall thus agreement, dis- further of Lewis’s tenure proceed pending to arbitration entertain proce- con- bargaining to this pursuant the collective pute matter under the arbitrator dure. Board instructed tract. The to render grievance procedure in the that the Board’s contends EEOC even regarding Lewis’s decision term or of a ADEA claimants deprives hearing had conclud- though arbitration em- and deters condition his learned of had ed before rights under exercising their from ployees actions, prompt- The Board’s EEOC claim. pre- provision Because the ADEA. case.2 bring the ed the EEOC griev- pursuing from vents litigation, brief, EEOC threatened 2. After the the Union is appellate in its 1. As revealed proceeding. Lewis’s Board reinstated However, the case but respect the merits of neutral to reinstate Board's decision required any change "agree of contract will judi- (Br. 3). proceeding does save Our case" in this by Court order employed scrutiny. has been Article 17.2 binding cial as to case disposition of this filed who other Board three Board. as well Union for the summary judgment granted held that Judge Getzendanner Former F.Supp. at 890-891. Because collective Board.3 provision above-quoted prima requires the Rose case disagree constituted agreement under result, of forbidden such a we reverse. case facie so she denied Section complaint. to dismiss motion Board’s II. employer’s con- concluded She certain cases right not arbitrate tractual makes it unlawful rights is subservient against an em employer to discriminate (“Title Rights of 1964 of the Civil VII Title participated in an inves ployee he VII”) and the ADEA. *4 under tigation, proceeding litigation explicit language though the ADEA. Even from resigned Judge Getzendanner After “discrimination,” 4(d) prohibits in Section to assigned case was judiciary, 4(d) has referred to Section this Court that processing Aspen for further Judge Despite the claims. opinion the claims as “retaliation” In that in II. BOG resulted contrary, do suggestion to the we partial motion for Board’s EEOC’s denied the court liability. re distinguish issue of the two terms because on the not summary judgment Elev- greater that the of a require proof held judge first taliation claims district required not bar claims in dis did than that Amendment level of enth animus Board’s Instead, refused the and claims. we use against crimination five litigation because stay the request distinguish to toway a shorthand terms as magistrate awith conferences age settlement claims discrimination substantive rulings of these had failed. Neither judge on the exer of discrimination based claims appeal. The dis- challenged on by the ADEA.4 legal rights granted cise of grant to also refused judge trict court of discrimi characterization This shorthand summary judg- partial motion for EEOC’s does retaliation claims claims and nation conclusion, Judge reaching ment. 4(d) into a narrower transform Section not reasoning and questioned both Aspen by its stat suggested that prohibition than Div., Magazines holding in Rose v. Hearst 4(d) Nothing in Section language. utory Cir.1987), 814 F.2d Corp., Hearst retaliatory in showing of intent requires a follow dicta in felt constrained but policy cases. mo- the EEOC’s denied He therefore case. ground on the is con summary judgment contrary, for Section tion To genuine issue had raised effect of discrimination cerned with adopting Arti- faith in concerning good its their feder pursue employees who against employ cle 17.2. of the the motivation rights, al not 4(d) explicit Section er who discriminates. presented cross- parties III the In BOG against employ discrimination ly prohibits There summary judgment. for motions activity. protected in engage ees who that Article Judge Aspen concluded in retaliation unlawful charged with When of evidence absence not invalid was may 4(d), employer of Section violation intent adopted with provision non-discriminatory rea- legitimate evidence, offer a being no such There retaliate. necessity term retal- discrimination, employ the 4. There is complaints charges address- discrimination proceedings were than terminated iation rather whose Moreover, Douglas challenged policy. according Cf. to the claims. McDonnell Section to ex- Green, has not modified Corp. ADEA claimants. (discussing future (1973) clude "discrimination” L.Ed.2d 704(a), parallel provi- Title VII's under Section by curiae filed amici briefs have been 3. Two 4(d), though courts routine- even sion Section first was for the Illinois urging affirmance. The 704(a) as retalia- claims ly Section characterize Society Hu- of Commerce Chamber claims). terms Consequently, use these tion Management. The second Resource man interchangeably. Employer Rela- Labor National Public for the Public Labor the Illinois tions Association Relations Association. against discriminatory em- taking adverse action an federal son for engaged ployment practices can best be accommo- employee who has i.e., employer pursue took activity, permitting dated remedy reason unrelated fully grievance- adverse action for some both his employee’s participation clause of a collective arbitration activity. cause of action under agreement and his taking good re- proffer a faith reason If lobby VII.” the Board wants to Title taliatory example, For the Board’s action. benign exception to for a discrimination 17.2, for Article justification asserted 4(d), appropri- appeal would be avoiding duplicative litigation, does re- ately Congress rather than this directed the Board discriminated the claim that but Court. protect- engaged in who employee’s participation When justifica- activity. ed Rather statutorily protected activity is the deter alleges that non-malicious discrimina- tion mining employer’s factor decision to legally against employees ought not tion action, take adverse that ac It not for this Court to de- prohibited. regardless employer’s tion is invalid permissible. termine when *5 employer’s If the differential treat intent. Congress already resolved issue impermissible, is employees ment its unlawful determined that shall be “[i]t policy provides which for its differential against any employer an to discriminate * * * regardless treatment is invalid of the em his such indi- because * * * adopting invok ployer’s motivation for or testified, charge, made vidual policy. ing the Hence Board’s asserted assisted, any in participated in manner good against discriminating faith in em litigation investigation, proceeding, or file in ployees who claims administrative chapter.” 623(d). 29 U.S.C. under this entirely judicial forums is irrelevant.6 Notably, Congress chose not enact charge defenses to a of retalia- affirmative This Court’s decision in Rose v. Hearst 623(f), tion, provide 29 and did not U.S.C. § Div., Corp., 814 F.2d Magazines Hearst exception to when such dis- (1987), require contrary con- 491 does not financially crimination would be rational jury clusion. Rose concerned a verdict prudent. liability ADEA’s scheme. within two-tier employer employee might jury is There the found that the had It immaterial legal against its but found overlapping contractual and retaliated have was that such retaliation not willful. This remedies. Alexander v. Gardner-Denver 47, 1011, 1019, Co., 36, findings 415 94 39 Court considered those two incon- U.S. in noted 147 In Alexander Su- sistent and dicta L.Ed.2d [the “[i]f faith, Congress good logically in- acted in it cannot preme observed that Court er] overlapping against Rose.” provide parallel and be held to retaliated tended to jury specifi- required at 493. In remedies discrimination and Id. Rose policy find or nei- cally that “the federal favor- both retaliation willfulness stated disputes and the ADEA’s two-tier of labor ther—not because arbitration where, here, employer particularly is 'willful' if the either knew or This is true as 5. legal proceedings differ- disregard contractual and involve for the matter of showed reckless 49, Lewis's ent claims. Id. at 94 S.Ct. prohibited was whether its conduct grievance dispute the Board’s failure concerns 128, ADEA.” Id. at 105 S.Ct. at 625. That stan- procedure. to its established tenure to adhere However, applies this Circuit. Coston v. Plitt dard in alleges age discrimi- EEOC Theatres, Inc., (over- (7th Cir.1988) 860 F.2d 834 nation. ruling the “knew or should have known” stan- Syvock dard set forth v. Milwaukee Boiler showing Although willfulness relevant Co., (7th Cir.1981)). Mfg. F.2d Accord- damages tier of under the second may allege ing to this standard the defendant good in that faith not even relevant lawful, policy Airlines, it believed its was not that World Inc. v. Thur context. Trans 613, purposes policy sought ston, 111, its to serve were 105 S.Ct. 83 L.Ed.2d 523 (1985), benign. Supreme "a Court said that violation charge, company pro- filed a would be only a one-tier damages proceeding Cosmair, guilty retaliation, of retaliation.” EEOC v. but in cases cedure Inc., Div., L’Oreal Hair Care case. facts the Rose particular 1085, (5th Cir.1987).8 “angrily chastised” There filing age discrimination retaliatory policy employer’s case In a him at that same suspended claim and irrelevant, alleged good just faith is these circum- meeting. 492. Under Id. at good faith has held to be evidence stances, retaliated employer Rose if the involving irrelevant a case a discrimina employer’s fla- employee, its tory policy. noted in International also have amounted grant conduct must Union, Controls, UAW v. Johnson its conduct disregard for whether reckless erroneously had “assumed that be Court claims ADEA. Retaliation violated the asserted reason for the sex-based cause * * * same cases disparate treatment benign, ostensibly exclusion lia- determining two-tier dilemma of policy was not sex-based discrimination. See disparate treatment claims. bility as however, assumption, That was incor — 1063, Corp., 869 F.2d Eaton Burlew v. 1196, U.S.-, 1203, rect.” 111 S.Ct. (7th Cir.1989)(discussing difficulty of (1991). Similarly, 113 L.Ed.2d 158 in Trans structure dis- applying ADEA’s two-tier Airlines, Thurston, Inc. v. 469 U.S. World alleging disparate treat- cases 130, crimination 111, 121, 129, 105 S.Ct.

ment). (1985), 83 L.Ed.2d 523 the defendant’s held to transfer violate Rose, concerned an indi Moreover though ADEA even the defendant was at case, has been vidual-disparate-treatment bring compliance into tempting to *6 and we decline in that context7 questioned though ADEA and even it “acted with the this case which its rationale to to extend good also reasonably and in faith.” See In dis discriminatory policy. concerns a Sys Freight Arkansas-Best Barrentine v. employer’s cases the criminatory policy 728, 737-739, tem, Inc., 101 S.Ct. 450 U.S. policy challenged adopting reasons (1981). 1437, 1443-1444, 67 L.Ed.2d 641 policy’s legality. Bur irrelevant to the are 1063, retaliatory Having 1065- that a Corp., 869 F.2d concluded v. Eaton lew Cir.1989) (“In per of Sec (7th Thurston-type policy constitutes a se violation a 1066 4(d), whether Article tion we now examine case, can determine whether the factfinder bargaining agreement the collective discriminatory 17.2 of plan policy at issue is respect retaliatory policy with is a inquiry into the defendant’s any without bar Under the collective mind.”). ADEA claimants. explained another state of Board and agreement between the case, stopped pro gaining employer] “if ADEA [the Union, employee has a contractual an to which he viding employee] benefits [the grievance procedure. right to an in-house simply because he otherwise entitled 1322, rehear Corporation, 927 F.2d rejected by J.M. Huber two other courts of Rose has been 7. However, denied, (Grant Corp., Strip-Casting appeals v. F.2d 930 942 Hazelett 1564, (2d Cir.1989) Moreover, (holding that 1571 880 F.2d involve the ADEA. case does not may finding result in a a finding of any inconsistency opinions deny with Huber willfulness, do so in but need not 1326-1327, F.2d at 942 Cosmair. 927 F.2d Co., case); Phillips every v. Petroleum Anderson event, any Huber is inconsistent In 931-932. 631, Cir.1988) (rejecting the F.2d holding Supreme in Interna Court’s with finding against cannot willfulness view that "a — Controls, Inc., Union, UAW v.Johnson tional jury finding consistently of inten- stand with a U.S.-, the Court held 111 S.Ct. 1196. There discrimination”), has been and indeed tional questioned motive does of a malevolent that "the absence Inc., Theatres, (Coston v. Plitt here discriminatory policy facially into not convert a 1321, (7th Cir.1987) (Manion, 1338 n. 1 discriminatory ef policy a a neutral J., grounds, concurring), vacated on other — at---, 111 S.Ct. at 1203- U.S. fect." L.Ed.2d 223 any there is inconsist the extent that 1204. To single-tier (1988), (finding impose reason to Huber, prefer the ency Cosmair and between cases)). liability in retaliation Judge by Clark in Cos- approach Chief taken a to have reached The Fifth Circuit seems mair. holding in EEOC v. with Cosmair inconsistent complaints. ADEA who file employees right if he However, loses employee an discussed, Therefore, previously Article discrimination. charge a files benign motivation supposedly an ad- to take Board Board’s authorizes 17.2 (termination of is irrelevant. adopting action verse for the proceeding) grievance in-house character- challenges the The Board engaged reason that sole discriminatory since policy as ization of (filing ADEA activity protected apply solely to em- does not Article 17.2 17.2 an claim). Under bring protected discrimination ployees who right his contractual forfeit must employ- Instead, applies it claims.9 his a condition proceeding, grievance ac- employment-related brings an who ee legal right his surrender employment, forum. or administrative judicial tion ADEA. under the litigation participate in argument, of its support pur- elects employee who Conversely, an activity unprotected types notes several may lose Board grievance his sue to adverse also lead that would age discrimi- bring his right to federal his employee’s example, For ment action. particularly evident This is claim. nation judicial in a file a contract claim decision to griev- case, where subject him to termination forum would year to than a took more procedure ance proceeding. his Lewis stage. Had the arbitration reach remedies his pursue contractual decided employ the fact that unsat- that resolution found ultimately but on the proceedings deny grievance er can might isfactory, he nevertheless unprotected activi participation basis initiating ADEA barred The entirely irrelevant. ty is 29 U.S.C. limitations. statute of the ba proceedings on deny itself admits that The Board have filed sis “either employee to elect permits discriminatory A claims. 9). (Br. not both” of relief but avenue against members of when discriminates of his employee’s that an loss claims impermis the basis of class on procedure right to a contractual Airlines Trans World factor. sible non-problematic *7 613, 124, 111, Thurston, 105 S.Ct. 469 its provide to obligation had policy “TWA’s transfer (holding that 623 at all. procedures right individuals against protected discriminates King Spalding, & in Hishon thereby violates age, and of on the basis 2229, 59 69, 81 L.Ed.2d 104 S.Ct. 467 U.S. the fol offered EEOC [ADEA]”). The the held (1984), Supreme Court “[a] the principle that a dis example lowing of the em parcel of part that is benefit respect less with policy is no so criminatory out doled relationship may be ployment non-protect because protected class fashion, if the even discriminatory in a * * * by affected adversely are also persons ed pro not to be free employer would policy adopts a company policy: 75, 104 at S.Ct. all.” Id. the benefit vide hiring anyone over of which bans be Board Although the would at 2234. policy consti Clearly, that age. years of grievance proceedings, provide not to free under discrimination tutes facial of Section “participation clause” employer enacts if an But ADEA. Id. providing from prohibits hiring anyone over prohibits policy that employee only if an proceedings consti age, policy would years activity that participating from refrains regard to policy with discriminatory tute a insert By ADEA. protected all class since protected of the members in the collective 17.2 are excluded members class protected policy adopted a agreement, age. It would because discriminates impermissibly which filing discrimination exclusively statu- concerns Although case 2000e- discrimination, U.S.C. § VII. See 42 Title claims under 3(a). age torily protected claims statutory protection enjoys employee also accept us to III. incongruous for policy second did not approach that sum, 4(d) prohibits poli age-based discrimina- policy to a amount penalize employees cies that who exercisé solely against individuals over be- tion statutory rights their under the ADEA. A adversely affected policy cause also. bargaining agreement may collective ages between the of 35 and individuals provide grievances proceed ar will protected of the class are The members only if bitration refrains from by policy excluded the first equally participating protected activity under the second, policy and under either ADEA. Nor successfully protected class suffers discrimination argue permitted that unions be to waive an Likewise, if age. on based employee’s rights under the for it griev- the Board to terminate authorized is well established that unions cannot if proceedings only if and ance employees’ rights ADEA waive or Title VII EEOC, ADEA claim with the filed an through bargaining. collective Barrentine clearly discriminatory un- Inc., would be v. Arkansas-Best Freight System, 4(d). 728, 737-739, 101 1437, that the der Section The contention 450 U.S. 1443-1444; discriminatory Co., when its policy is less Alexander v. Gardner-Denver 1011, 1021; Em- 415 U.S. 94 S.Ct. unpersuasive. Bart scope is broadened Corporation, man v. Allis-Chalmers rights under Section would be ployees’ 311, (7th Cir.1986), certiorari de policy. effectively stifled under either nied, 1304, 479 U.S. 107 S.Ct. Moreover, in case of the either members (1987); L.Ed.2d 160 County EEOC v. right protected class would lose their Calumet, 686 F.2d 1256-1257 proceedings they had because Cir.1982).11 filed ADEA claims. To hold for the Board it to would allow hypothetical the EEOC and the In both employees’ deter exercise of their bar, impermissible the use of an case at rights by imposing employ adverse (age participation criterion consequences. Statutory provisions ment determining legal rights) as a factor invali- against retaliation such as those in the respect protect- dates the protect employees’ ADEA and Title VII Furthermore, inap- ed class. it would be right participate protected activity suggest that each propriate to member depends aid work EEOC individual-dispar- class file an upon employee cooperation. Pettway Cf. pursuant ate-treatment Pipe Company, v. American Iron Cast Douglas Corp. v. bur- McDonnell Green10 (5th Cir.1969). Consequently, 411 F.2d 998 den-shifting method the adverse *8 agree in fully with the conclusion BOG a dis- employment action stemmed from I that Article violates Section criminatory policy, not an individual deci- (665 F.Supp. respect to ADEA claimants adopt argu- sion. Were we to 637) discriminatory it is on its face imposing ment that a adverse treat- 9). (BOG II, F.Supp. n. at 1384 ment on all members of a class entry ap- and remanded for of Reversed in- non-discriminatory by the was rendered injunctive relief in of the propriate favor pro- the clusion of some members outside EEOC. class, consistently employers could tected long employ discriminatory criteria as MANION, Judge, concurring. Circuit they careful to draw their discrimina- were enough bargaining agreement mem- be- tory broadly lines to include The collective of of State non-protected class. tween the Board Governors of a bers distinguished occurring cases "in the context of S.Ct. 1817. 10. 411 U.S. bargaining agreements.” Gilmer v. collective Supreme recently Court held that 11. While Corp.,-U.S.-, Lane Interstate/Johnson circumstances, may, in some be ADEA claims 114 L.Ed.2d arbitration, subject compulsory expressly it a procedure as grievance the contractual (“Board”) and Universities Colleges and to use as member for a Union option viable of Illinois University Professionals dispute. a to resolve means procedure an alternative grievance a (“Union”) offered 17.2, little could grievance Article A members. Without Union for in age, procedure grievance the claimant’s to offer related to incentive issues involve sex, other origin, in color, seeking a resolution some race, national lieu of religion, is, federal collective of claims As it in a class forum. all have involved the claims could offer an incentive Or would agreement law. speech) (e.g. protected be- quickly, issues the issue constitutional resolve sides to both disputes). Of (e.g. contract time state issues or other limitations statutes of fore pro- grievance advantage course, of procedure expire. If the limits arbi- binding in cedure, could result which could member working, the Union wasn't be result could tration, just (or form of other some to the courts turn making every literally without achieved overriding arbitration), thus This case. federal dispute a be member will the Union Now procedure. expensive less be a much would procedure forums, and in two operate permitted to re- method more efficient probably deal. But the best take presumably out, points majority As the disputes. solve doubling its may see benefit the CBA’s however, problem is with of adding to the costs exposure or terminates 17.2, precludes Thus, it legal defense. administrative “an event procedure must be if court action conclude could the matter seeks resolution only alterna- alternative, bewill makes choice This forum.” any other rigid result this me that It seems to tive. Board because Union and sense to the laws goal of our federal really the re- expensive alternative less it adds a Nevertheless, any discrimination. dispute would otherwise solving statutory, not will be adjustment court. Never- up a state or federal end the courts. theless, choice EEOC considers 4(d) of the discriminatory under § of a in the loss it results ADEA because (the grieve) as right to benefit

contractual file employee’s decision to

a result of or lawsuit because

charge, complaint, turn, This, “discrimina- is deemed age. ASH, &J W Myron as Trustee pursuing on act tion” based Trust, Plain Corporation Liquidating matter, any (or remedy Cross-Appellee, tiff-Appellant, on discriminatory act based allegedly other sex). religion, or race, color, origin, national be- discriminate 17.2 does not CORPORATION, GEORGIA-PACIFIC single out ADEA age; it does not cause Defendant-Appellee, Cross- filing types other from those claimants Appellant. makes the act claims. 90-3081, 90-3177. Nos. remedies, age, for- *9 pursuing Article 17.2 Appeals, factor. Since bidden Court States United favorably because is treated less Circuit. Seventh than would have he he filed a 14, 1992. Argued Jan. otherwise, agree that Article I treated 3, 1992. Decided March violates technically reluctantly, concur, albeit I 27, 1992. March Rehearing Denied majority’s opinion. the result advanced a techni- the EEOC has But while 4(d), my reading concern

cally correct approach will eliminate EEOC’s

is that the