Richard M. Villarreal v. R.J. Reynolds Tobacco Company

and supervisory powers remand judge cise our empha- district is true It a differ- resentencing before case for of Plate’s offense sized seriousness judge. ent court (e.g., noting that took district sentencing by she advantage “helpless” of “demented” AND FOR REMANDED VACATED victims); judge true that the is also RESENTENCING. depart from saw said that he no reason Nevertheless, record guidelines. (and, once again, unambiguously shows admitted) that

government expressly imposed would have judge

the district of no incarceration further

sentence pay the been able to restitution

Plate had sentencing hearing. How- at or before VILLARREAL, on M. behalf Richard sentence characterized— ever similarly of himself all others to “re- it is failure whether viewed situated, Plaintiff-Appellant, (as gov- paying ward” restitution says) “punishment” for not ernment (as says)—is irrelevant be- paying Plate R.J. REYNOLDS TOBACCO case, cause, judge in either the district COMPANY, Inc., Pinstripe, significant weight clearly gave to Plate’s Defendants-Appellees. inability pay factor the sentence as a No. 15-10602 imposed, up impos- he and he ended solely on that prison term based ing Appeals, States Court United factor, permissible not a consider- Eleventh Circuit. 3553(a). ation under Section 2016) (October

III. above,

As we must vacate indicated remand the

Plate’s sentence and case

resentencing. judge the district Because

confirmed and reiterated consideration inability pay Plate’s restitution as a remand—coupled

factor in his order argu-

with his stated belief Plate’s “frivolous,” appeal

ments on even were having reviewing

after those benefit

arguments—it appears the district court disregard its

may improper unable or, least, factor

consideration may appear

that it United so. See States

Torkington, 874 1446-47 F.2d curiam). Thus, 1989) (per

Cir. exer- will offense, ability repay of Defendant's 18 U.S.C. fender’s work order her victims victims.”) 3553(a)(7), is better served (citing Rangel, States v. non-incar- United defendant.”) 2012) (”[T]he employed (quotation 803-04 dis- F.3d cerated omitted)). goal obtaining trict court’s restitution Eber, Almond, Rog- L. John J. Michael LLP, GA, Hardin, Atlanta, ers & Shanon Schalman-Bergen, Carson, R. Jude Sarah PC, PA, Philadelphia, Berger Montague, & Finberg, Casey Patrick James Michael Berzon, Pitts, LLP, Mark T. Altshuler Johnson, Konecky, Joshua G. Todd M. Schneider, Wallace Cottrell Schneider LLP-CA, Francis- Brayton Konecky, San CA, co, Plaintiff-Appellant. for Dick, Dreiband, Ali- Anthony J. Eric S. Marshall, McArthur, Lynn Nikki son B. DC, Day, Washington, Deborah A. Jones GA, Atlanta, De- Sudbury, Day, for Jones fendants-Appellees. Vann, Ttysse

Rae Norris Thiesfíeld LLP, Lakis, DC, Lampley Washington, & Council, Equal Employment Advisory Amicus Curiae. Back, Brusoski,

Christine Donna J. Pat- Op- Equal Employment rick David Lopez, Commission, Washington, DC, portunity Equal Employment Opportunity Com- mission, Amicus Curiae. Kohrman, AARP Benjamin A4-

Daniel DC, AARP, Washington, Amicus Curiae. Schmitt,

Joseph George Johnson Nilan Lewis, PA, Girouard, J. Nilan John- Mark MN, Lewis, PA, Minneapolis, for Re- son Inc., Litigation Center Amicus Curiae. tail Livingston, Akin Gump Donald R. Feld, LLP, & Ze-wen Jul- Strauss Hauer Chen, Gump ius Akin Strauss Hauer & Feld, LLP, Hunt, Hyland Hunt Deutsch PLLC, DC, Washington, for Chamber United States Amer- Commerce ica, Amicus Curiae. Swams, I, Legal that he diligently pursue

Christina NAACP De- did his rights. Fund, Inc., part & We affirm fense Educational New and remand for the York, NY, Defense, Legal panel for NAACP remaining address issue about continuing-violation Amicus Curiae. whether the doctrine makes disparate Villarreal’s claim treat- CARNES, Judge, ED Before Chief ment timely. HULL, TJOFLAT, MARCUS, WILSON, PRYOR, MARTIN, JORDAN, WILLIAM I. BACKGROUND ROSENBAUM, CARNES, JULIE On applied November PRYOR, Judges. JILL Circuit position for a a territory manager Reynolds. years R.J. He was 49 Using old.

ON PETITION FOR REHEARING guidelines provided, by Reynolds, R.J. out contractor appli- screened Villarreal’s PRYOR, Judge: WILLIAM Circuit guidelines cation. The described “tar- presented appeal main issue geted years as someone “2-3 candidate” Age is whether Discrimination Em- “adjusts out of college” to easily who ployment job Act allows an unsuccessful changes” the contractor to and instructed applicant using to an for employer sue “stay “in applicants away from” for sales practice impact that has a disparate on years.” 8-10 the contractor Neither nor older sued R.J. workers. Richard Villarreal Reynolds R.J. Villarreal that he told had Reynolds Company Pinstripe, Tobacco and rejected, been Villarreal did and not follow job Inc. for his rejecting applications. All up. Villarreal, parties agree appli- as an later, April years Over two law- disparate employment, cant for for can sue yers told Villarreal and contacted him that prohibits treatment the Act because an Reynolds against discriminated R.J. had employer “fail[ing] refus[ing] or from May 2010, his age. him on In basis of .., hire of any ... such because individual charge Equal Villarreal filed 623(a)(1). age.” 29 individual’s Employment Opportunity Commission. Equal Employment But and the Villarreal Reynolds applied R.J. Villarreal also Commission, curiae, Opportunity amicus years two five more next and times argue applicant also an sue rejected was time. He every amended his employer disparate impact for because charge rejections and these include prohibits “limit[ing], Act an employer from the first Pinstripe, replaced con- add or his segregating], classifying] employ- tractor, rеspondent. as a in any deprive way ees which would or any In deprive employ- April tend Commission individual issued ment adversely respect to right otherwise to sue with opportunities notices R.J. Pinstripe. brought affect his as an employee, Reynolds because and Villarreal such age.” against Reynolds Id. R.J. individual’s collective action on Pinstripe We that the text the Act behalf of conclude whole under Act Territory Manager makes for applicant employ- that an “all for the applicants clear disparate employer position position since applied sue who ment cannot impact applicant Reynolds pattern has no “sta- its began because date RJ against employee.” practice discriminating appli- tus as an Id. And we conclude ...; of 40 who equitable age that Villarreal is cants over the were entitled tolling age time of disparate years treatment or older their his claim application; rejected for the facts that he admitted establish and who were attempt he no to contact [R.J. “made complaint alleged two

position.” Reynolds] ascertain the basis his treatment section disparate under counts: disparate 4(a)(1) impact rejection,” Act and that he “has not application of the alleged part.” of the Act. on his diligence under section due later moved to dismiss the re- Villarreal objection of an of un- anticipation In maining parts complaint, and the timeliness, facts to alleged also Villarreal preju- them with district court dismissed tolling of limitations equitable support dice. his He al- governed complaint. period until that “he did become aware leged A of this' Court panel divided reversed. filing charge that there shortly before Co., Tobacco Reynolds R.J. appli- to believe that his 2007 was reason 2015), reh’g Territory Manager position cation for the vacated, granted, opinion No. 15- en banc age.” account of his rejected been had Cir. Feb. WL 685800 necessary facts alleged “[t]he He 2016). It that section concluded was charge of discrimination support [his] ambiguous interpreta- to the and deferred him, could not appаrent were announced in a tion Commission him, until less than apparent have been equitable rule. Id. It also concluded May month before he filed panel tolling Id. The appropriate. did charge.” EEOC continuing-violation not address doc- to Reynolds Pinstripe trine, moved in sup- R.J. also which Villarreal raised complaint They in part. dismiss Villarreal’s of his claims. at port timeliness Id. disparate-impact Vinson, to dismiss the sitting by desig- moved n.16. Judge 4(a)(2) ground nation, that count on the section at dissented. Id. a cause of to give appli-

does not action cants, they to un- moved dismiss as II. STANDARDS OF REVIEW both timely parts of counts'based on novo the review de dismissal “We The district court dis- application. the 2007 claim, complaint of a state a failure to disparate-impact count and missed in accepting allegations complaint all untimely parts of both counts. construing in light as true facts later to Villarreal moved for leave When most plaintiff.” Harry to the favorable complaint, alleged he in his amend the Marchant, 291 F.3d Cir. complaint proposed amended that he “was 2002) (en banc). review the denial of a “We employee Reynolds of ... R.J. ... not an to motion for an abuse discre amend was,” anyone or who that he related tion, but motion is futile is whether any from “did not receive communication question of law that we review de novo.” anyone informing or else him Reynolds RJ Warden, Brooks v. hired,” why was not that he he “did 2015). his had application even know whether all,” and that he was been reviewed III. DISCUSSION screening guidelines. unaware of the parts. the We our two district court denied leave to amend divide discussion First, that ground explain on the we Villarreal failed to complaint that amendment 4(a)(2) explained It state a claim futile. that under section because would be Villarreal job misrepresentations applicant, employee or he was a not an alleged any “has Second, Reynolds. explain from R.J. concealment hindered [him] discrimination,” equitable any alleged is not entitled toll- learning of Villarreal disprove against he It mg employees. appli- because admits does not cover facts employment. cants for diligence. 4(a)(2) key рhrase section is “dr

A. Failed to a Claim State adversely otherwise affect his an 4(a)(2). Under Section 623(a)(2). employee.” By 29 U.S.C. using 4(a)(2) of the Act join Section “or makes otherwise” verbs limit, ... section, for an employer “unlawful Congress made “depriving] or classify employees any or segregate, deprive tending] individual of em- way which would or tend to deprive ployment de opportunities” a subset of “ad- prive any oppor of employment affect[ing] individual versely [the individual’s] status adversely or words, tunities otherwise affect his as an Id. In other employee.” sec- employee, status as an tion only such if protects individual he age.” individual’s U.S.C. We has a an employee.” “status as Id. consider not the text of section “or This use otherwise” connect itself, statutory but context For verbs is a familiar construction. exam- 4(c)(2) 4(a)(1). See Antonin sections ple, Congress allows the funds use Garner, Bryan Reading Scalia & A. Law extradite a States citizen “to a United (2012) (“The text must be construed as foreign obligation that is country under whole.”); (“A phrase id. word International persons surrender presumed to bear same meaning Criminal there “satisfactory Court” text; throughout a a material variation in assurances to United States suggests meaning.”); terms variation country will extradite or otherwise Co., Robinson v. Shell Oil transfer citizen to the International (1997) L.Ed.2d 808 7402(a). Criminal Court.” As (“The plainness statutory ambiguity wé is a understand subset “extradite” language is determined reference statute, of in this also “transfer” under- itself, language specific context deprive or “deprive any stand that tend to used, is and the employment opportunities” of is individual context of as broader the statute a “adversely a his status subset ‍​​‌‌‌‌​​‌​​​​​‌‌​​‌‌​‌​‌‌‌‌‌‌‌‌‌​​​​​​​​‌‌​‌‌​​​‍of affect as whole.”); Morrison-Knudsen Constr. Co. 4(a)(2). an employee” in section Other ex- Dir., Comp. v. Workers’ Pro Office of See, amples e.g., 18 abound. U.S.C. grams, Dep’t Labor, 624, 461 U.S. of 2345(b) (“inhibit affect”); or otherwise 25 633, 2045, (1983) 103 76 L.Ed.2d 194 1728(c) (“considered as income or (“[W]e have often that a is stated word utilized”); resources or otherwise 33 U.S.C. presumed meaning to have the same in all 1518(a)(3) (“call at or utilize otherwise a statute.”). the same If subsections of procedur- deepwater port”). Even our own clear, is text of the statute is “thаt end example, al For rules use this construction. matter; court, of well as the single “may a of our not dis- judge Court agency, give unambigu must effect to the appeal miss or or determine an otherwise ously Congress.” expressed intent of Chev 27(c); P. proceeding.” App. other Fed. R. ron, U.S.A., Council, v. Inc. Nat. Res. Def. 27-l(d) (same); R. see also 11th Cir. 11th Inc., 837, 842-43, 2778, (“shows 41-l(a) substantial Cir. R. that a (1984). 81 L.Ed.2d 694 question presented to the good Court or forth cause We conclude Villarreal failed to otherwise sets 42-l(b) (“fails of Cir. disparate plain stay”); state a claim a 11th R. impact. The required papers file a or other within text of section discrimination brief covers substantially less permitted, against surplusage or fails time otherwise interpreting it a comes to and “file force when applicable rules” comply with clause....”). construc This broad residual or reme- out time otherwise documents specificity allows the tion drafter “add default”). exam- dy In each these dangers” ensuring that while about known ples, the first subset action [dangers], readily imagined, “other “deprive or tend to action. So too is second encompassed.” United States v. [are] “adversely affect” in deprive” subset 2010). (1st Persichilli, Cir. section event, applies the surplusage In canon any contrary interpretation cites “only competing interpretation where a “or v. in Bine phrase of the otherwise” every ‘to of a clause and word gives effect Inc., Cir. Imagitas, F.3d 1215 ” Ltd. Corp. v. statute.’ i4i Microsoft 2009), reasoning in reject but we P’ship, 564 U.S. 131 S.Ct. Bine, opinion. The statute at issue made (2011) (quoting L.Ed.2d Duncan oth or “knowingly unlawful disclose Walker, 533 U.S. personal make available” certain erwise L,Ed.2d (2001)). Judge Martin’s 2721(a). pan information. 18 U.S.C. “or interpretation, which treats otherwise disjunctive el wrote use his adversely employee” affect status as an requires “or” “indicates alternatives and or “deprive deprive any tend indi sepa treated those alternatives be. employment opportunities” vidual Bine, 590 rately.” (quoting at 1224 F.3d categories, separate give does not effect Inc., Budget Sys., Brown Rent-A-Car because it reads “otherwise” every word 1997)). F.3d of the statute. out panel “Congress’s use also wrote that making “deprive deprive By tend ‘otherwise’ that ‘make available’ confirms opportuni- individual than, unlike, something different means “adversely affect[ing] ties” subset panel—and disclosure.” Id. But employee,” Congress as an limited authorities it “or” and cited—discussed 4(a)(2) to against section discrimination “otherwise” isolation. can ac Words employees. are not em- Applicants who quire meanings different combined when alleged ployees discrimination occurs when phrase, phrase in a “or otherwise” and the employee.” not have a as an do “status from parts. is different the sum its confirm phrase Dictionaries that the “sta- dissent, Judge In her contends Martin employee” a present tus as an connotes reading our “or other- phrase of the English Dictionary pri- fact. Oxford The adversely as em- affect an wise marily legal defines “status” in the context ployee” superfluous phrase renders position belonging or to mean “[t]hefact of “deprive or tend deprive individual legal group subject to a to certain opportunities,” Dissenting limitations,” provides or it us- rights Martin, J., 983, surplus- Op. of at but the age ranging not any based “tense.” (1818) (Marshall, C.J.) 4 L.Ed. 471 (“The Judge judicial Martin’s ‘any person persons,’ words or dissent also cites are opinions use enough every broad that the word “status” after comprehend to human status,” being. adjectival But an general noun—“priority must ... “sea- words be status,” status,” ... to “objector limited to man those which etc.—to objects them.”)^ legislature prove always to apply status does not connote intended “any 4(a)(2) present words Dissenting Op. fact. See of Mar- section individual” any for J., if tin, even to refuse to refer at 983 n.2. But we were individual, judicial any way opinions from snippets assume light meaning on the to meaningful deprive deprive can or tend individ- shed statute, States v. of a United Muckle or employment opportunities, ual of. Tribe, 235 F.3d employment opportu- shoot Indian would limit such 2000) statutes, unlike (“Opinions, Cir. adversely or otherwise affect nities usually knowledge or not written employee appli- as an or as an status every may that each and word expectation employment, because of such cant for searching analysis.”), subject be the age. individual’s examples provided by Judge Martin’s dis added). 623(c) (emphasis Be- sent do track section every every possible, cause and “[i]f word 4(a)(2). might point have The dissent given provision is to effect” “[n]one be anyone applied section who given an needlessly interpreta- should status”; employee but “denied the statute it to duplicate tion that causes another applies anyone who “his instead had no provision consequence,” or to have Sca- adversely as an employee” status affected. Garner, supra, lia & at know that only Judge Martin’s examples dis encompass “employee” the term does actual language close to the sent come “applicant employment” for in section in the statute not state someone do 4(c)(2). phrase or “[a] And because word applies who for a status that status presumed meaning bear same' application process. during the For exam varia- throughout a text” “a material dissent., Immigra ple, the cites Santos suggests tion in in mean- terms variation Service, tion & Naturalization 375 F.2d ing,” “employee” id. at term 1967), because that decision “ phrase “deprive deprive any tend states that an alien can be status ‘denied ” adversely ... or af- otherwise individual permanent Dissenting Op. as a resident.’ an employee” fect his as section Martin, J., Santos, (quoting at 983 at encompass applicant do an n.l). But states an alien Santos employment. permanent can attain status resident undergoing application pro after dissent, In Judge responds her Martin cess, during not that had that status he 4(c)(2) applicants that section be- mentions Santos, application process. See it, 4(a)(2), cause fail- unlike section covers (noting can apply at 263 an alien for “ad employment, ures to “refer” someone for justment of non-immigrant status from Martin, 984-86, J., Dissenting Op. of but resident”). permanent argument up Judge not line with does Statutory reading confirms context our 4(a)(2). Martin’s If interpretation section 4(c)(2) of section applies Section “any always appli- individual” includes applicants employees only as well as be- cants, applicants see id. “or as an applicant cause adds the words emplоyee” have their “status as an ad- employment” provision to a affected, 982-84, versely see id. at then parallel largely otherwise section Congress appli- no need mention had 4(a)(2): 4(c)(2). cants in section The statute would It shall for a labor organiza- be unlawful thing, Judge mean exact same under tion ... “or interpretation, if the words Martin’s limit, applicant employment” segregate, classify its were delet- , classify interpretation or to

membership, or fail or ed. But that violates Garner, 7(c)(1) surplusage canon. See .& creates a “[a]ny Scalia cause action for supra, person aggrieved” at 174. provides and right of action “shall upon terminate

We also contrast text of section by commencement an action Equal 4(a)(2) 4(a)(1), the text of section Employment Opportunity Commission to applicants. which does cover Section right enforce the of such employee under 4(a)(1) makes for employers unlawful 626(c)(1) § this chapter.” Id. (emphasis “to to hire or to discharge fail refuse added). Villarreal asserts that equating any individual or otherwise discriminate “person” “employee” 7(c)(1), in and section against any respect individual with to his Congress expanded “employee” to mean terms, conditions, compensation, privi- “any 4(a)(2). in section But individual” leges employment, in- such “employee” statute defines as “an individu- 623(a)(1) age.” § dividual’s 29 U.S.C. employed al by any employer,” id. added). (emphasis 4(a)(1), Unlike section 630(f), which is also the common mean- 4(a)(2) section does not mention an em- ing of “It “employee.” very rare .that a refusing to ployer hire And someone. un- meaning defined can be an- replaced with 4(a)(2), 4(a)(1)' like section says section permissible other meaning of on the word nothing employee.” about a “status as an indications; the basis of other textual According Judge dissent, Martin’s is virtually definition conclusive.” Scalia & plurality of Supreme Court de Garner, 7(c)(1) supra, at 228. Section does ‘key scribed “the textual differences’ be ambiguity create about meaning 4(a)(1) 4(a)(2) and, tween” sections “employee” in section doing, nothing so said about claims of dis parate impact hiring, Dissenting Op. of arguments Villarreal’s other that “em- Martin, J., at (quoting 987-88 Smith ployee” does mean employee are even Jackson, City n.6, reject. easier to Villarreal Robinson cites 1536, 161 (2005) (plurali L.Ed.2d 410 Co., v. Shell Oil that a prohibi- held ty op.)), but the plurality say did tion on against employees retaliation “key these textual were the differences” Title employees VII extended former these differences between two sec statutory because of context. See 519 U.S. Smith, n.6, tions. See U.S. at 345-46, S.Ct. 843. But the (plurality op.) (“Justice O’Con- not interpret employee Court did to mean ignores key textual differences be nor Robinson, job applicant in the statuto- 4(a)(1) 4(a)(2).”). tween ... In ry appeal—specifically, context sec- deed, in very paragraph, same 4(c)(2) 4(a)(1)—suggests tions 4(a)(2) plurality as pro described section Judge are different. they Martin’s dissent- (“[A]n employees. vision covers See id. ing opinion adds the definition employer who employees classifies his “employment agency” in Title VII uses age may respect without still be liable “employees” “prospective employ- to mean under the terms such [section ] ees,” J., Dissenting Martin, Op. of at 983- adversely classification affects the employT Robinson, n.3, (quoting at 343 employee’s age....” ee because of that 843), language of that but added)). (emphases provision nothing like 4(a)(2), 2000e(c) argues, based a different section see 42 U.S.C. Act, section of the “employee” (defining “employment agency” “any sec- something person regularly tion undertaking means other with or with- than employee, argument compensation procure employees but his fails. out Section

968 in employ- support their'argument. plaintiffs The employer procure or to for for an Griggs employees, Griggs, see 401 employer to work were opportunities ees (“All 426, petition U.S. at 91 849 the S.Ct. agent person”). a and includes an such ”),— employed Company[ ers are at the ] 201 of the section Ge- cites Villarreal that a non- and the nowhere states opinion, Act Information Nondiscrimination netic job employee applying for be cov 2000ff(2)(A)(i), 2008, §id. which defines language in by ered the VII. Title “applicant.” But the “employee” include employment” “condition Age in applicable Discrimi- definition Griggs Supreme in Court considered Act in- Employment not in does nation “a condition in 630(f). transfer 29 “applicant.” clude See is, jobs”—that employ -condition plain tries to circumvent the Villarreal graduate high pass school or a test ees citing of the meaning by decisions promoted be they trans could before interpret simi Supreme Court that 401 position. Griggs, to a U.S. ferred new statutes, in language other those lar but added). at be (emphasis 425-26 Lest there argument. decisions do support doubt, on remand court the district argues that, in Depart Texas Villarreal in injunction present favor entered Community Housing & v. ment of Affairs employees, applicants “who and future —Inc., Project, Inclusive Communities may employment.” See hereafter seek U.S. -, 2507, 514 135 192 S.Ct. L.Ed.2d C-210-G-66, Co., Griggs Duke Power No. (2015), Supreme interpreted Court (M.D.N.C. 215, 25, Sept. *1at WL 1972 in Fair make “otherwise unavailable” 1972) persons (defining class of enti “[t]he Housing compared phrase Act as “[a]ll tled relief under Order” Age adversely “otherwise affect” may persons employed” or “who sub black at Id. Employment Discrimination Act. sequently employed”). Supreme both Court described Judge Villarreal and Martin’s dissent phrases as Id. The “catchall.” use has since Supreme contend that Court Supreme “catchall” Court word Griggs appli- as a about described case agnostic present about the matter because cants, they are but incorrect. Villarreal explain why Court used the word quotes applicants about language Housing cause of action Act creates a Rawlinson, 433 from Dothard Griggs disparate impact. The Supreme Id. S.Ct. L.Ed.2d already that section Court has held (1977), Supreme Court but because Age Employment Discrimination decided Dothard after added employees allege disparate Act allows VII, language applicants to see about Title Smith, impact, see 2000e-2(a)(2) '(“employees or 42 U.S.C. 161 L.Ed.2d Court shed applicants employment”), do not Project light no Inclusive Communities significant. Judge consider Mar- this dicta job applicant may whether sue under quotes language “hiring tin’s about dissent section Griggs from Inclusive Com- criteria” and Judge dissent ar- Martin’s Project. Dissenting Op. munities Mar- that, Co., gue Griggs tin, Power J., v. Duke (quoting at Inclusive U.S, 424, 2517). Cmtys. But the Project, L.Ed.2d (1971), Supreme interpreted Court discussing Court was how the “employ- in Griggs—that then-identical Title VII en- “rule” announced compass applicants, they Dissenting Op, permissible see ment practices” are “ Martin, J., 986-87, Griggs job relationship’ per- but does ‘manifest have “for apply, example,” formance”—would Villarreal and the Commission “in disparate-impact brought a next argue meaning case” paral about provision lel applicant it legisla under Title as is in Title VII based VII written on tive today. Cmtys. Project, history, legisla but we do not consider Inclusive 135 S.Ct. history 432, tive the text is (quoting at 2517 401 clear. Griggs, U.S. at when “[I]n S.Ct, 849). interpreting a court 91 a al Court statute should did not one, ways turn first cardinal canon be say Griggs—a clearly case that fore again others. We have stated time and promotion policies— about transfer presume must legisla courts that a “hiring involved criteria” first-time ap- says ture in a it what means statute Teal, plicants. See Connecticut v. 457 what, means a it says statute there.” 2525, U.S. 102 S.Ct. 73 L.Ed.2d Germain, Conn. Nat’l v. Bank 503 U.S. (1982) 130 (describing Griggs as case 249, 253-54, 1146, 112 S.Ct. 117 L.Ed.2d about “employees”); Paper Albemarle Co. (1992). 391 “When the words aof statute 426, 2362, Moody, 405, v. 95 U.S. S.Ct. 422 then, unambiguous, first this canon is (1975) 45 (describing Griggs L.Ed.2d 280 ‘judicial -inquiry also the last: is com “transferees”); aas case about Gove Wards ” plete.’ 254, Id: at 112 S.Ct. 1146 (quoting Atonio, 642, Packing 664, v.Co. 490 U.S. States, 430, v. 449 424, Rubin United U.S. 2115, (1989) 109 104 L.Ed.2d 733 S.Ct. 698, (1981)); 101 S.Ct. 66 L.Ed.2d 633 ac (Stevens, J., Brennan, Marshall, joined by Garner, 970, cord Harris v. 216 976 F.3d Blackmun, JJ., dissenting) (describing (11th 2000) (en banc). Cir. “Even if a stat Griggs “in of utility case which a class legislative history ute’s evinces an intent company employees challenged the condi contrary straightforward to its statutory tioning entry into higher paying jobs command, ‘we to legislative do resort upon high passage school or education history to statutory doud a text is added)). (emphasis two written tests” In Harry, clear.’” 291 at (quoting 772 F.3d deed, nine current or former Justices have States, 135, 510 U.S. United Ratzlaf joined opinions describing written or sec 147-48, 655, S.Ct. L.Ed.2d 615 tion as protecting employees, (1994)). To previously the extent we have applicants. See Knolls Meacham v. Atomic suggested differently, ruled we now di Lab., n.13, 128 84, Power U.S. text, clear, savow it. Because the is “[w]e 2395, (2008) (explaining L.Ed.2d 283 will, must, ‘presume we prohibits acts that “de what it meant and meant what said prive deprive tend ... or otherwise Capital said.’” One Davidson Bank adversely [employees] affect ... because (USA), N.A., 797 F.3d (alterations age” of ... original) (quot 2015) (quoting Steele, Cir. United States v. Smith, ing 623(a)(2)); 29 U.S.C. 1998) (en (plurality S.Ct. 1536 opinion) banc)). (“[T]he thp text on focuses effects employee action rather than the the Commission also motivation for action of employ purpose contend that of the- Act re er.”); (O’Connor, id. at 125 S.Ct. 1536 text, quires ignore us plain but J., joined Thomas, JJ., by Kennedy and job “[o]ur the text even if follow doing (“Section concurring in judgment) supposedly so objec will ‘undercut basic ” 4(a)(2), course, apply statute,’ to ‘appli does tive Botts L.L.P. v. Baker —LLC, employment’ -, cants all—it ASARCO 135 S.Ct. protects (2015) group.”). (quot- 192 L.Ed.2d 208 . construction,” “employ[] must first (Breyer, Batts, at 2170 ing Baker statutory con- tools of traditional notions Elevating general [the] J., dissenting)). the mean- whether determine meaning of the struction” plain purpose over Chevron, 467 is clear. duty ing of the statute judicial our text is inconsistent n.9, Although at 843 Pavelic U.S. See the law as written. interpret statutory tools of the traditional employing Grp., 493 U.S. Entm’t v. Marvel & LeFlore effort, that require some 456, may construction 107 L.Ed.2d 438 120, 126, 110 S.Ct. ambiguous. See text, not make a text not does (1989) (“Our effort apply task is to 918, Bush, F.2d Wagner Seed Co. it.”); v. Fed. Bureau Ali improve upon 1991). (D.C. employed 214, 228, We have Cir. Prisons, 128 S.Ct. 552 U.S. of statutory interpre- (‘We tools of (2008) not the traditional are 831, 169 L.Ed.2d here, that the conclude a tation and we to reflect the statute liberty to rewrite Instead, of statute is that meaning reasonable more desirable. meaning we deem sue under section Congress job applicant cannot to the text give effect we must 4(a)(2). enacted_”); Bank v. Has Noble State 575, 580, 299, 55 kell, 219 31 S.Ct. U.S. applicants not did leave (“We (1911) fully understand L.Ed. 341 4(a)(1) provides recourse. Section without question, and importance practical for disparate of action them with a cause that can be very powerful argument To 29 U.S.C. treatment. See legislation, of against the wisdom the

made using of action the bur this cause prove nothing say, point on that we have but den-shifting of McDonnell framework concern.”). It also disre as it is not our Green, 792, 93 Corp. 411 U.S. Douglas [legislative] of com gards processes “the 1817, (1973),statistics 36 L.Ed.2d 668 S.Ct. end, and, prevents the ef- promise “may be rele employer’s practice about an congressional intent.” Bd. of fectuation showing pretext.” Id. vant Sys. Reserve v. Dimen Fed. Governors of 804-05, If an fore- applicant 361, 374, 106 Corp., sion Fin. 474 U.S. burden-shifting framework goes the (1986). “Con 88 L.Ed.2d circumstantial evidence “presents instead in its intent to may unanimous gress be concerning the triable issue ] a [to] create[ stamp vague out social economic some intent,” discriminatory Smith employer’s evil,” may its Members differ but “because Corp., v. Lockheed-Martin effectuating that sharply on the means for 2011), (11th of a general evidence Cir. intent, legislation final may rele discriminatory practice also may hard-fought compromises.” Id. reflect his But proving vant case. Villarreal timely his claims voluntarily dismissed Finally, the Com Villarreal and claim of As disparate treatment. urge us to defer to the Commis mission he disparate impact, conclude statute, but we interpretation sion’s a claim under section failed to state interpretation agency’s to an defer do employees, not protects text because the of a statute when the text clear. “Statu applicants. suscep ambiguous if it is tory language is interpre to more than one reasonable tible That Admits Facts B. Villarreal tation,” Mgmt. Corp. v. Transp. Med. Equitable Tolling. Foreclose IRS, 506 Comm’r F.3d argues that he al 2007), meaning Villarreal forced does Cir. eq him to that would entitle judiciary leged facts ambiguity. Because “[t]he create remaining tolling of his claim statutory uitable authority on issues of is the final Act). disparate party Reynolds argues treatment. The R.J. seeking this gener- equitable tolling proof, has the burden of al applies, test but argues for a special Menominee Indian Tribe Wis. v. Unit- test. — -, States, ed 186 S.Ct. general We that the applies. test hold 755-56, (2016), although 198 L.Ed.2d reject We special “[p]ro- test because the any allegations he need make about requirements cedural established Con- equitable tolling complaint, in his see La gress for gaining access to the federal Sec., Inc., Grasta v. First Union 358 courts disregarded by are not to be courts 2004). F.3d A plaintiff out of vague sympathy for particular nonetheless can plead himself out of litigants.” Cty. Baldwin Welcome Ctr. v. by alleging court facts forеclose a Brown, finding diligence extraordinary cir- (1984). run, 80 L.Ed.2d 196 long “[I]n the cumstances, both of ‘which required experience strict teaches that adherence to for equitable see tolling, Menominee In- procedural requirements specified by Tribe, dian 136 at 755-56. S.Ct. Villarreal legislature guarantee is the best of by alleging did só here facts that prevent evenhanded administration the law.” Id. him proving from diligence. Corp. Silver, (quoting Mohasco v. 447 U.S. 807, 826, 2486, 100 65 S.Ct. L.Ed.2d 532 general for equitable The test toll (1980)). context, In the antidiscrimination ing requires seeking party tolling “[b]y choosing are obviously quite what “(1) prove pursuing that he been his deadlines, short Congress clearly intended (2) rights diligently, and some ex to encourage prompt processing of all traordinary way circumstance stood his charges of employment discrimination.” prevented timely filing.” and Id. 755 Passenger Corp. Morgan, Nat’l R.R. v. 536 Florida, 631, (quoting Holland v. 101, 2061, 109, U.S. 122 S.Ct. 153 L.Ed.2d 649, 2549, 130 S.Ct. 177 L.Ed.2d 130 (2002) (alteration original) 106 (quoting (2010)). Although the Court has 825, Corp., Mohasco U.S. 447 stopped short holding this test 2486). process- costs “[T]he associated contexts, applies ‍​​‌‌‌‌​​‌​​​​​‌‌​​‌‌​‌​‌‌‌‌‌‌‌‌‌​​​​​​​​‌‌​‌‌​​​‍n.2, in all see id. at 756 ing defending and stale dormant claims applied variety contexts, we have it in a outweigh guarantee- interest in the federal see, e.g., Bhd. Eng’rs Locomotive & ing every victim of remedy discrimina- Adjustment Trainmen Gen. Comm. 820, tion.” 447 U.S. at Corp., Mohasco 100 Transp. CSX v. Transp., N. Lines CSX reasons, For “[f]ederal these 1197, (11th Inc., 1190, 522 1200 F.3d Cir. typically equitable courts extended have 2008) Act); (Railway Labor Cabello v. Fer Irwin Dep’t relief v. sparingly,” nandez-Larios, 1148, 402 F.3d 1154-55 111 Affairs, Veterans 498 (11th 2005) (Torture Cir. Victim Protection (1990), 453, 112 requiring and L.Ed.2d 435 Act); States, Sandvik v. United 177 F.3d proof extraordinary diligence and cir- 1999) (11th (Antiterrorism 1269, 1271 Cir. goals. cumstances these serves Act); Penalty see Effective Death Astrue, 1349, Jackson v. other 506 F.3d 1353 We also observe that circuits have (11th 2007) test or a (requiring extraordinary applied general materially Cir. circumstances in under similar cases. an action the Social one discrimination See Columbia, Act); States, 415, Security Dyson v. 710 Justice United v. Dist. F.3d 1993) (D.C. (11th 2013); Zerilli-Edelglass (requiring F.3d Cir. Cir. v. Auth., diligence due an action under the Public N.Y.C. Transit F.3d 80-81 (2d 2003); Cty., Act Cook Admiralty Vessels and the Suits Cir. Lee v. F.3d lawyer. from the communication 2011). (7th Circuit The Sixth Cir. any inquiry argues would diligence, the reasonableness considers futile, assuming that but even notice, of construc have been lack lack of ignorance, excеption diligence to the futility is an to the prejudice defen knowledge, and tive apply not when Coll, requirement, F.3d v. Oberlin Amini dant. See 2001). nothing investigate the (6th Eighth plaintiff does Cir Cir. application, opposed to.the status of tolling when equitable cuit denies no rejection. have diffi- for his We inexcusable. See reasons neglect plaintiffs law, a matter of that a concluding, as culty F.3d Unisys Corp., 47 v. Anderson nothing years two 1995). plaintiff Circuit who does (8th Ninth Cir. 306-07 Amini, at 501 259 F.3d diligent. equitable limits diligence considers Cf. diligent (concluding plaintiff that a See Scholar cases.” tolling “extreme “ (9th ‘regular’ computer visits F.2d 264, despite [the Bell, Cir. 267-68 Pac. website, physical as a as well 1992). requires employer’s] “ac Circuit And the Tenth campus ... which [he] to the dili visit by the defendant deception” tive [employer’s] announcement searched Montoya v. plaintiff. See gence 2002) on the new hire” for information Chao, Cir. boards 296 F.3d 957-58 omitted)). (citation Newspaper Agency Cottrell (quoting 836, 838-39 Corp., dissent, ar- Judge partial In his Jordan 1979)). that we should decide whether gues tolling to equitable is entitled Oppor- v. Economic Villarreal cites Reeb Villarreal complaint pro- Atlanta, Inc., 516 F.2d 924 Cir. because Villarreal’s tunity are silent as to complaint posed amended 1975), involved active de- but that decision Reynolds that learned R.J. explained in how Villarreal by employer. the We ception whether application and Vil- “actively sought rejected to his employer Reeb silence, This ac- diligently. acted informing her that larreal mislead Mrs. Reeb Jordan, is “not an affir- cording Judge to no program for her would adequate funds an “omission” that allegation” but mative Id. 930. We held longer be available.” at of com- Villarreal’s prohibits dismissal apply circumstances we these “[i]n Jordan, J., of at 974-75. We Op. plaint. to statutes equitable familiar modification begin disagree. to does not of limitation: the statute support facts until the which would run counter Judge assertion runs to Jordan’s apparent or of action are should be cause ignores argu- Villarreal’s record reasonably apparent person to a awith complaint, proposed In his amended ment. Here, rights.” for his Id. prudent regard explained that he about learned Villarreal allege attempt al- not to

Villarreal did from an rejection his application Reynolds actively misled R.J. lege that diligence. his attorney in not own result, general applies: test As him. ¶ (Until Am. Proposed Compl. PL’s See tolling seeking equitable must plaintiff not even did “[Villarreal] know extraordinary circum- prove diligence and had been reviewed application his whether stances. all, it been whether had re- much less out.”). result, As a screened jected to toll- equitable not entitled Villarreal to motion court denied Villarreal’s facts that fore- district he ing admitted because part complaint file an amended diligence. Specifically, he finding of close a allege “any due had failed nothing for more than Villarreal he alleged that did the sta- part to determine diligence on his application initial his years between two though his Villarreal Mr. application.” tus of would not Villarreal benefit has nothing did 623(a)(2), from my contested that he it reading of I never offer application until for the ascertain consideration others who bemay 2010. He his lack dili- neither contested upon interpret called in the court, nor gence before the has he district future. it on Villarreal appeal. contested instead At glance, might first appear that the argued required that he was disparate impact provision of ADEA is inquire application of his about the status fairly susceptible to possible two interpre- But diligence. and exercise due when tations—i.e., permits job one that appli- the affirma- anticipate

Villarreal chose to bring cants to disparate impact claims un- equitable tolling tive defense in his com- der the ADEA one that If does not. plaint, alleging he bore the burden facts case, that were agree with support And this defense. burden Judge Martin should to the defer him required allege diligent, he was EEOC, particularly views its when Tribe, see Menominee Indian position has been three consistent over 755-56, which he did do. my view, decades. problem, is that tolling conclude that equitable We does both of possible interpretations these fail apply disparate the claim of treat- give effect to some the text. ment, and we affirm in the dismissal part of that claim and the leave to denial effect, “It give is our duty possible, also, ar- complaint. aménd to every clause and word a 'Statute.” panel before gued continuing- Menasche, United States v. claim timely,

violation doctrine makes 538-39, (1955). L.Ed. panel argu- but the this did not address If, in keeping duty, this we can ascer We exercise our discretion to ment. re- meaning, tain the plain statute’s then there argument panel, mand to the and we ambiguity no no to defer to the need express no on view the issue. Chevron, agency’s interpretation. See U.S.A., Council, Inc., Res. Inc. v. Nat. Def.

IV. CONCLUSION n.9, U.S. (“If (1984) court, of a employing AFFIRM the the claim L.Ed.2d 694 We dismissal construction, disparate impact, statutory of IN traditional and we AFFIRM of tools PART the claim dispa- dismissal ascertains that had an his inten treatment to tion question issue, rate and the denial leave precise complaint. REMAND to amend intention given and must be We law effect.”). to panel continuing-viola- Significantly, address the is not am in biguous tion doctrine the first instance. merely parties pres because the ent “dueling characterizations of what JORDAN, concurring in Judge, Circuit Congress ‘really meant.’” Inc. v. CBS part dissenting part: Venture, PrimeTime Joint 1217, 1225 2001). Accord Bank I majority’s concur ultimate con- Am. N. Nat. Trust Sav. Ass’n v. cannot & clusion Mr. assert a P’ship, LaSalle St. disparate impact Reyn- against claim R.J. (1999) (Thom But I I 143 L.Ed.2d 607 separately

olds. write because' Scalia, as, J., J., (“A way joined by dissenting) there is to read 29 think another 623(a)(2), disagreement among litigants give that would mere over one provision. meaning to each Al- not prove effect word in this a statute does disparate impact ADEA claim under an usually means that one of ambiguity; something employer if theory, but wrong.”). simply litigants violates employees” “his has done vis-á-vis provision of the impact disparate The or by “limiting], segregating] ADEA ADEA, 623(a)(2), employer says that an So, if an employees. classifying]” those “limit, classify or his segregate, may not em- respect his practice with employer’s way deprive which would any employees ADEA, that same ployees violates any of em- individual deprive or tend job impact on disparate practice has or ad- otherwise ployment oрportunities can applicants sue under applicants, those employee, as an versely his status affect 623(a)(2). age[.]” Under of such individual’s because statute, reading an majority’s illustrate, imagine a scenario where To disparate impact bring a “individual” using question- begin decides company currently only if he ADEA claim under the social media to test its workers’ naires In other employee[J” has a “status as knowledge has no though such savvy, even statutory words, reads the majority ability per- employees’ bearing on the if the “individual” were language as word company each jobs. takes their form “employee”: replaced with the word question- on the employee’s performance classify his em- limit, or segregate, pro- it makes into account naire when deprive any way ployees It also distributes the motion decisions. any deprive [an individual tend job applicants, uses questionnaire employment opportunities employee] making performance applicant’s each affect his status adversely or otherwise Imagine also that hiring decisions. age[.] employee, [his] as an disadvantages questionnaire requirement added). and brackets (strikethrough Id. dispro- of 40 in a age over the individuals dissent, the lan- part, for its reads scenario, the em- way. In that portionate targeted impact guage as the statute employees ployer’s conduct towards “any toward indi- employer’s conduct employ- impact on current has a disparate vidual,” just employees”: “his and not in that applicants. And job as well as ees limit, classify his em- segregate, scenario, job applicant I can sue think a any way ployees [any individual] reading recognize under deprive deprive or which would tend dispa- of viable only a narrow set provides employment opportuni- individual by job applicants, but it impact claims rate adversely affect his ties or otherwise §way is writ- gives effect to the of such employee, because an ten. age[,] individual’s Villarreal, however, challenges only Mr. added). In bracket (strikethrough Id. and Reynolds’ hiring practices, and R.J. view, readings my rewrite both company’s current that affеcts the conduct statutory in the relevant text. has not made out He therefore employees. (“any twice The statute uses “individual” my reading claim under disparate impact a individual”), and it “such individual” and judg- statute, I concur and (“his employ- twice also uses “employee” disparate impact to the respect ment with trying If “employee”). ees” and we claim. em- give effect to both critical terms—“his issue, I equitable tolling reading As for' the ployees” “any and individual”—the In Judge Martin’s dissent. agree with to me is that a that makes the most sense suits, pe- individual”) applicable ADEA limitations bring job (“any applicant

975 685, do, 640, 1920, once 446 U.S. begins prospective riod to run (1980). employee They or should know than only allege knows L.Ed.2d need practice been unlawful enough facts to show a claim for that relief Hargett Valley committed. See Fed. Sav. See plausible. is Bell Atlantic Corp. v. 1995). Bank, (11th In F.3d Twombly, Cir. com complaint proposed his and amended (2007). 167 L.Ed.2d Although alleged he plaint, Mr. Villarreal did plaintiff may plead himself out of court necessary sup not know the information making allegations affirmative that show April his ADEA claim until of 2010. port bulletproof defense, there is a an omission he alleged He that was unaware silence) (i.e., is not an allega affirmative Reynolds screening practices resume R.J. tion, particularly 12(b)(6) not at the Rule used, Reynolds not tell and R.J. did stage. Because must view complaint we why rejected. him com he had been light in the most favorable Mr. Villarre plaints are silent to how Mr. Villarreal all al and draw reasonable inferences in his rejected, he learned had been whether he favor, see McNutt Haleyville ex rel. U.S. v. Reynolds learned that R.J. hired an indi Inc., Supplies, Med. of 40 to fill terri age vidual under the 2005), I majority Cir. think the errs tory manager position, R.J. and when holding was appropriate dismissal Reynolds position younger filled the with on grounds. statute limitations a more developed candidate. Without rec ord, it is not to me when clear Mr. Villar ROSENBAUM, Judge, Circuit real should have known an unlawful concurring part dissenting part: employment practice had been committed case, This is a difficult but not because out. what Mr. did to find Villarreal statutory language must is we construe Those toll questions. are fact And because my opinion, No, unclear—in isn’t. ing inquiry, is a fact-intensive have challenging despite case is “[s]ummary is of explained judgment clarity language, of the statutory agen- inappropriate tolling ten when issue cy charged administering the statute ADEA action.” Merrill Cocke has, nearly past years—through Co., Lynch & F.2d Republican both administra- Democrat 1987). true, course, The same tions—consistently way construed it in a stage. the motion to dismiss appears conflicts with what me to majority says that Mr. Villarreal objectively indisputable meaning be the facts, the- admitted face com- his statutory language. That gives fact me plaints, finding of dili- foreclose pause. And I have serious so examined and Vil- gence. According majority, to the Mr. statutory language for am- reexamined alleged larreal specifically that he did efforts, biguity. Despite my I am best un- nothing years two more than between is, any. my to find able Since application initial the communica- view, susceptible of only single interpre- Maj. tion from See lawyer. Op. at 972. out, tation, Majority points as the we must allega- But Mr. made no such plain meaning, by its without abide resort- nothing tion. Mr. said in his agency’s the ing administering to construc- complaint complaint or proposed amended tion. took, any, steps pursue about what he to I rights. Though agree Majority on the his And didn’t have to. Com- with he ADEA, of I anticipate interpretation disagree plaints need not and defenses Majority equitable-tolling attempt to defeat them. See Tole- with the Gomez v. “adversely affect[ing] byor expressed both issue, by opportunities” reasons for the his as employee.” I dissent status an So Judges Martin Jordan. opinion join Majority

from the 4(a)(2) says. It But that not what is on that issue. dissents to modify the uses the word “otherwise” “adversely his an phrase affect status as I. meaning. has employee.” “otherwise” And measure, view, in my the statu- By any phrases signals “Otherwise” the two of Age of Dis- tory language independent entirely in cannot be (“ADEA”) Employment in Act crimination instead, other; relationship of be- each I do not see how unambiguous. In that phrases exists. rela- tween two itself, of the structure statutory tionship, mutually describes phrase eаch ADEA, of sequence and the historical of of the universe actions exclusive subset proposed amendments amendments ,.. “adversely affect status an as VII, ADEA and Title on which both the two Together, these subsets employee.” based, any other ADEA was leave entirety of compose the universe separately explain I possibility. write affect ... “adversely actions that status as why is so. this employee.” an way; another “Otherwise” means “[i]n A. Otherwise, differently,” The American already why Majority explained English Heritage Dictionary Lan- statutory language agree is clear. 2000). Because guage “otherwise” ed. analysis and following. add the “adversely af- an adverb that modifies 4(a)(2) makes it “unlawful for an Section case, adversely “otherwise af- fect” limit, segregate, or classi- employer ... employee” his refers to fect status an way fy any employees his which would “adversely actions affect ... would deprive deprive any or tend individual any employee” way that is status as an or employment opportunities otherwise in which different from the manner “de- employee, his status as adversely affect an priving] tending] deprive any or indi- age.” of such individual’s opportunities” employment vidual The term “otherwise” “adversely ... status would affect as an If something. must mean this statute any employee.” phrase—“in first So the not, out, left it Congress could have and way or deprive which tend de- would have “in simply, could stated employment any oppor- prive individual deprive any way or tend or to actions that limit tunities”—refers deprive employment any op- individual promotion opportu- preclude, example, portunities adversely affect his status as nities, second—“otherwise ad- while the an And if employee....” that were the ,.. an versely employ- affect case, phrases any way “in which would would, ee”'—contemplates actions deprive deprive any or tend to individual instance, demotions, layoffs, or result opportunities” “ad- employment terminations. employee” his status as versely affect “otherwise,” no oth- Because of the word disjunctive, entirely read could be to me. er construction sense makes other, allowing of each independent actions “otherwise” plaintiff employer’s to show And since the word neces- “depriving] or rights sarily tending] “depriving] violated either means that deprive employment tending] deprive individual [him] opportunities” of “adversely is a subset concur in that discussion but wish to fur- affect[ing] employee,” ... status as an ther elaborate. 4(a)(2) § disparate-income cannot cover particular, In Majority compares hiring or “[D]epriv[ing] tend[ing] claims. 4(a)(2) 4(c)(2), § §to noting provi- that the deprive any employment op- individual sions parallel” “largely are except hiring person not a iswho portunities” 4(c)(2) § phrase “or includes as an not employee an cannot “adversely affect employment” for applicant after its use of his as an employee” status because he has To “employee.” term demonstrate why Instead, no “status as an employee.” point is persuasive, it helpful so is status that of is remains non-em- a at both together. look statutes ployee. 4(a)(2) Section makes it for an unlawful Plus, “affect” have an influ- “[t]o means employer ence or a change Affect, in.” The effect limit, classify segregate, or his em- Heritage American Dictionary the Em any way ployees in which would de- 2000). glish Language ed. But prive any or deprive tend to individual change something, it must exist the first employment opportunities or other- place. If person has no as an “status wise adversely affect his status as an employee,” “depriv[ing] tending] or to de- employee, of such because individual’s prive” person employment oppor- “of age. tunities” not change person’s does 623(a)(2) § added). (emphasis non-employee; status as a he started aas 4(c)(2) Section makes for unlawful non-employee, he remains non-em- organization labor ployee. limit, segregate, classify or mem- its finally, “adversely” And in a means man- bership, or classify or or fail refuse to ner “[cjontrary to one’s interests or wel- individual, refer for employment fare; Adverse, harmful or unfavorable.” any way deprive or tend Heritage Dictionary of American deprive any individual of employ- 2000). English Language ed. So unfa- opportunities, ment wоuld limit such

vorably changing person’s status an employment opportunities otherwise employee necessarily to harming refers adversely his status as an em- affect person’s employee. as an If a applicant employ- ployee or as . for person not employee, there is no ment, age. such individual’s “status employer as an employee” that an 623(c)(2) added). 29 U.S.C. (emphasis can harm. each portions bolded language of suscepti- So the exactly As for the regular-style the same. a single interpretation ble statutes, though they portions !are interpreta- makes sense me—and different, they differ in a do manner provide tion does coverage of dis- analysis of that affects the whether each parate-impact hiring claims. coverage appli statute contemplates employment.

cants for B. True, points out, Martin Judge The Majority 4(c)(2) organizations also describes how labor deals with and, ADEA requires structure of role in part, op- the inter- their pretation portunities, explain cov- fact does not providing as' but that erage hiring disparate-impact applicant “or as an why phrase claims. already in ployment” were covered to be added

employment” needed 4(a)(2)? §in 4(c)(2) employ- language for applicants § cover to in if not to be included it did need ment “applicant applicants] for phrase [or The 4(a)(2) employ- for applicants § to cover places in other employment” appears out figure I have been able ment. Nor See, e.g., 623(d); § in ADEA. 29 U.S.C. 4(c)(2) § with labor fact that deals why the 631(b); 633a(a), § §§ 29 U.S.C. 4(a)(2) § while deals organizations (b). Clearly, Congress knew how and did why analysis of employers matters to the employ- for expressly “applicants include employ- for phrase applicant “or as an so. But con- ment” when wished do 4(c)(2) § appears but not ment” 4(a)(2) any § spicuously absent from 4(a)(2). § “applicants employment.” for reference must account for this fact a mean- We language in It to me that if the seems ingful way. way that makes sense employ- § for applicants covered Congress coverage provided me is 4(c)(2) § ment, exact same disparate-impact hiring-related fоr claims thing—re- suffice to do the same would 4(c)(2) but not under under of the fact ad- gardless that one statute other, employers and the labor dresses C. organizations. Congress Yet felt the need re- phrase applicant chronology “or as an The historical events add adversely lating after to the amendments employment” “or otherwise enactment and employee” affect his as an of the ADEA and Title further VII demon- 4(c)(2) Why dispa- to cover applicants. strates does cover hiring for em- Congress “applieant[s] rate-impact do claims.1 so, rejected argu- Judge suggests Martin that we should not the Court Massachusetts's legislative sequence Congress's consider the events. preempt ment that failure to support See Martin Dissent In of this at n.5. "implicit permission.” state act demonstrated position, Crosby 387-88, she relies on For v. National reaching In Id. S.Ct. 2288. this Council, eign Trade conclusion, explained unique the Court (2000), example L.Ed.2d 352 as an preemption: nature of Supreme "refused of a case where Court provide preemption A failure to ex- Congress ‘repeatedly de conclude that may nothing pressly reflect more than the clining] express preemption provi to enact implied preemption settled character of implied anything 'simply sions' apply, dependably doctrine courts will Congress ambiguous.’" silence of Id. at event, and the existence conflict 386-88, at 2301-02. The circum cognizable under Supremacy Clause however, Crosby, stances at issue in readi depend congressional express does not on case, ly distinguishable from those this recognition may that federal and state law disagree respectfully Crosby provides conflict.... The State’s inference of con- any support legislative notion that the here, gressional intent is unwarranted sequence of amendments in case is irrele therefore, simply because the silence of Crosby, a stat vant. In Massachusetts enacted ambiguous. Congress is barring buying goods ute state from entities (citation added). omitted) (emphasis In Id. companies doing or services from business words, Congress later, other the mere fact that did Congress Three with Burma. months orig- exprеssly preempt in the state action passed imposing mandatory condi law amend the statute later to inal tional sanctions Burma. preempt state action did not mean Con- law Court found Massachusetts's gress action be- preempted by intended authorize state federal it stood as law because impliedly preempt cause state accomplishment an obstacle to execu course, purposes objectives Con Of Villarreal’s case does tion of action. 372-73, alone, gress. doing preemption, In reason Id. at 120 S.Ct. 2288. involve so for that 1964, Congress In enacted the Civil ployment Opportunity Act of Pub. L. ADEA, 92-261, 103,109. Act of 1964. 86 Stat. Rights which Congress enacted on December contrast, In Congress stark has never Rights was modeled after the Civil Act of similarly parallel amended the ADEA’s 703(a)(2) § Rights of the Act So Civil 4(a)(2). Instead, § to this day, unlike 4(a)(2) ADEA, § of 1964 and of the at the 703(a)(2), 4(a)(2) § § to continues lack the enacted, exactly it was time were phrase “or applicants employment.” for same, except for groups pro- that each That- Congress had considered amending 703(a)(2) stated, protected. vision Section very language same in Title VII that 4(a)(2) ADEA, §. in appears of the to add It be an shall unlawful phrase applicants “or for employ- limit, practice for an employer—(2) to Congress ment”—even before enacted the classify segregate, employees in ADEA—and that it ultimately did amend any way deprive which tend to language same in Title VII but did deprive an individual of employment op- 4(a)(2), § again so amend strongly, sug- portunities or otherwise adversely affect gests that Congress did not to intend cover employee, his status as an because of 4(a)(2) § disparate-impact hiring claims in race, color, such religion, individual’s of the ADEA. sex, origin. or national This fact on historical takes even more 88-352, Rights Civil Act of Pub. L. significance, in light of to amendments 241, 255. 78 Stat. Congress the ADEA that enacted two significantly, February But in 1967—ten years it after amended Title VII to in- months, Congress before enacted the “applicants employment.” clude for In ADEA—it considered Senate Bill 1974, Congress amended the ADEA to 703(a)(2) sought § to amend of the it to applicable federal-government make Rights Civil Act of 1964 to “[a]dd Seе employment. Fair Labor Standards phrase applicants ‘or for employment’ af- 93-259, of L. Amendments Pub. phrase ter the ‘his in employees section Notably, Congress expressly Stat. 74.. Cong. 703(a)(2).” (1967). Reo. (codified provisions made the new at 29 pass While the amendment did not 633a) § applicable employ- U.S.C. to both Congress considered similar bills propos- See, employment.” for “applicants ees and ing ultimately the same it amendment until e.g., 633a(a). § Yet while Con- Employment the Equal enacted Act of ADEA, gress part amended add 24,1972. 1972 on March That Act amended coverage employment” for “applicants for 703(a)(2) § of phrase Title VII add the employment, it federal-government applicants employment” 4(a)(2) “or for § after the no to add made amendment phrase See employees.” Equal “his Em- for “applicants employment,” despite hav- case, But, Crosby Congress is not instructive. otherwise amended the ADEA to . suggest considering Congress's phrase do not failure add the it same added 4(a)(2) 703(a)(2) by adding § § amend of the yil—"applicants ADEA of Title for em- "applicants employment,” ployment”—is meaningful. sequence words for in a vac- This uum, Instead, Crosby. like my the state did in events indicates understood

point comparison including language is that of the amendment difference between 703(a)(2) employment” § "applicants doing made to VII—the statute Title so, deliberately choosing on which the ADEAwas based—to the failure and it acted language counterpart to make the same or similar amendment to add that to Title VII’s 4(a)(2) 4(a)(2) language § § the exact same the ADEA’s and to other sections ADEA, general § all within the same frame the ADEAbut not to time 4(a)(2) compare parallel language of when we the texts ing amended the 703(a)(2) add the ADEA and Title VII. “applicants Title VII years Indeed, though plurality two con- employment” just earlier. did not cov- the ADEA sider whether recap, “applicants employ- So claims, hiring plu- ers disparate-impact Congress’s radar ment” issue was recognized rality that “the nonetheless the time enacted the screen liability under scope disparate-impact 4(a)(2); §in ADEA without that than ADEA narrower Title VII.” under parallel ‍​​‌‌‌‌​​‌​​​​​‌‌​​‌‌​‌​‌‌‌‌‌‌‌‌‌​​​​​​​​‌‌​‌‌​​​‍time that it thе the amended at (plurality opin- 125 S.Ct. 1536 Id. at VII, of the provision Title ADEA had after ion). enacted; and at the time that already been itself, in Congress the amended ADEA reasons, For the these cannot find coverage “applicants for part provide 4(a)(2) § ambiguity my dissenting in federal-government in employment” em- describe, colleagues so I concur in the times, At of these ployment. any one Con- 4(a)(2) holding § Majority’s decision easily chosen gress have to add the could coverage disparate- provide does not language “applicants employment” impact hiring claims. 4(a)(2) § df ADEA. It did not. can’t the We Nevertheless, notes, ignore that fact. Majority as the see Maj. Op. fact does render at Jackson, City 544 Nor does Smith v. of or in- disparate-impact evidence irrelevant 125 161 410 U.S. L.Ed.2d S.Ct. disparate-treatment in cases admissible (2005), Significantly, suggest that we can. contrary, To the dispa- under the ADEA. “agree[d] plurality the that the Smith dif- rate-impact play impor- evidence the age pro- ferences between and classes disparate-treatment tant in proving role relevant, in Title are tected VII and claim, nothing today we have said here might well have intended to suggests otherwise. differently.” n.7, Id. at treat the two 236 opinion). plu- 1536 (plurality S.Ct. rality then be- cautioned differences II. the tween texts of Title VII the ADEA 4(a)(2), § noting that differences be- of important, Because ADEA, age protected in of the statutory tween the classes structure and the VII, history “coupled Title with a in the of thé ADEA and amendments difference ..., may only text the statute warrant ad- Title VII all lead one inter- viable of 4(a)(2), I dressing meaning § in disparate-impact pretation claims Majority’s (emphasis two Id. in concur in the to the differently.”2 statutes decision original). what it precisely That is extent that holds no have cause action While, Instead, points Supreme Judge broadly phrased as Martin in foot- Court out dissent, 4(f)(1) note 8 of her ADEA rule to its as a statement followed provision was Smith, under consideration analysis disparate-impact of all claims under Supreme Court did not limit its just happened ADEA VII. It so and Title n pronouncement age that differences between Smith, though, Supreme that the Court VII, proteсted and the classes in Title "cou- considering only whether pled awith the text difference disparate-impact for a provides ADEA claim may addressing disparate-impact .. warrant any type anyone. looking It was not differently,” per- claims in the two statutes whether provides issue of taining solely between Title VII differences U.S, Smith, 4(f)(1) disparate-impact claim the context of the ADEA. hir- n.7, ing (plurality opinion). decisions. for disparate impact hiring of many exists under one why reasons this court should the ADEA. have reached same result the Su- Griggs, preme Court did and allowed Majority’s But I dissent from the deci- Richard disparate impact Villarreal’s claim sion on equitable-tolling join issue and against Reynolds R.J. Tobacco Company my colleagues. the dissents (RJ Reynolds) proceed. MARTIN, dissenting, in Judge, Circuit Griggs isn’t rights seminal civil PRYOR, JILL WILSON and case the majority majority misreads. The Judges, join, Circuit and JORDAN and Opportu- says that Reeb Economic ROSENBAUM, Judges, join Circuit toas nity Atlanta, Inc., F.2d Part II: 1975), everyone did not what do has always said did. says Mr. Villarreal he couldn’t Court told us in Smith v. Reynolds know that 'RJ "broke the law City Jackson, because the company did so in For secret. (2005), 161 L.Ed.2d 410 that people forty years, over equitably this court has against who have been discriminated be- tolled the period filing limitations suit age rely cause their on the Age on discrimination claims “until the facts Employment Discrimination in Act of 1967 support would a cause of action are (ADEA) bring disparate to impact claims. apparent or apparent should be to per- disparate A impact claim that an asserts son reasonably prudent pegard with a employer engages may in practices that rights.” his Id. at 930. The for this reason face, look neutral on in fact their but treat simple: rule is preferences “Secret in hir- group harshly one Int’l than another. more ing and even more illegal subtle means of States, Bhd. Teamsters v. 431 United discrimination, very because their na- n.15, U.S. S.Ct. n.15 ture, are to be unlikely readily apparent to (1977). Today’s majority decision against.” the individual discriminated Id. of appeals makes ours first to court majority us that now tells dispa- hold that Smith not allow for does punished secret discrimination won’t be impact by people alleging rate claims dis- expоse unless the victim tried dis- result, in hiring. get crimination To to this himself, crimination even if he no rea- had majority ignores plain text anyone son to suspect discriminating ADEA; rejects interpretation that the against contrary prece- him. This to our 1968; governing agencies used since have traditionally required dent. Our court has Court’s land- Supreme misreads victims act with rea- discrimination Griggs mark decision v. Duke Power Now, diligence. re- majority sonable Co., 28 L.Ed.2d diligence victims to quires beyond act with (1971). majority says Specifically, the suggest. reason what would Griggs nothing had do discrimina- Griggs hiring. tion in contrary, But to the Both of in this majority’s holdings disparate liability did create impact precedent case do harm to this court’s discriminatory “hiring criteria.” Texas to the nation’s anti-discrimination laws. Dep’t Cmty. of Hous. Affairs Inclusive & respectfully dissent. Cmtys. Project, Inc., -, (2015). L.Ed.2d I. interpret The text of the ADEA that we here is says identical the text the ADEA an Section Griggs. interpreted just may Court This is employer (which an who describes employees” “his limit, classify employ- segregate, “limit, or classi- segregate, can’t deprive employer way which any ees narrow impliedly of em- any individual assumed fy”) must be deprive tend “any or otherwise ad- indi- reference ployment opportunities plainly broader employee, an versely (which affect his status as can’t be de- who vidual” describes age. individual's of such based employment opportunities prived of actions). employer’s plainly This de- on the 29 U.S.C. Reynolds did to Mr. Vil- RJ scribes what says. Con not what the That’s an Mr. Specifically, larreal. must age discrimination gress said “of em- “deprive[d]” “individual” who was employment op any “deprive individual and denied ployment opportunities” pro Congress intended If portunities.” of some- employee” because as an “status it would have said group, a narrower tect “limit ... his thing employer did same sentence example, For so. example, sup- simple To employees.” use uses the term “such individ later says pay owner he will pose a restaurant people to a who to refer set uals” back other pays more than he college students aAnd different were introduced earlier. wage this kind employees. Smith said uses the word “em part of the sentеnce ADEA. could violate differentiation referring people to the ployees,” when says he employer same suppose Now “limit, segregate, or classi employer can’t not a who is

won’t even hire someone the statute described fy.” But when plainly This is decision college student. by this protected be group who would college employees” ... to “limit his Con imposed employers, prohibition to be college students tend And students. “any the term individual.” may deprive gress chose so this limit “tend young, terminology employment opportuni- variation individual “This deliberate an[] adversely his sta- sug affect of a or otherwise sentence statute ties within the same employee, because such indi- tus as an interpret the gests Congress did point, to the an older age.” vidual’s More being equivalent.” United as two terms “deprive[d] himself Williams, “individual” could find 1231, 1236 States opportunities” or employment de- ... 2003). 4(a)(2) § rest of The any employee, as an because nied “status knew how to use Congress shows plain The text of age.” of such individual’s terms, say “any it chose narrower but a claim like this. And covers referring to who can be when individual” reading is the one perfectly this natural discrimination. injured by employer’s an always used. the EEOC has To con ignore that choice. can’t We no, says: Congress majority when that Con trary, interpretive canon “[t]he limit, segregate, classify or his “to wrote it intentionally omits lan gress acts when way deprive employees any which would applies with guage included elsewhere any individual of em- deprive or tend here, particular force” really what it ployment opportunities” proximi “in close the same used (and ambiguity) meant without said Dep’t same ty—indeed, sentence.” limit, classify employ- his segregate, “to — MacLean, of Homeland Sec. deprive would any way ees in which -, 135 -, 190 L.Ed.2d of em- deprive [those] individuals] tend (2015). majority ployment opportunities.” The individual”-really only “any Saying the term reading of says the reasonable only way that isn’t the “employees” to means § the earlier reference is major- They what a word means. majority rewrites are far less says “deprive figuring indi- useful for ity phrase any out what tense a word “connotes,” opportunitiеs” can’t since the vidual same word can con- major- refusing to hire someone. The note different tenses different mean contexts. position using ity’s is that words And before dictionaries to here these clear “confirm” statute, “deprive employ- individual of a (again, any go the tense word Act, opportunities”) impliedly Dictionary ment are limited to says “or phrase the later the context otherwise adverse- “unless indicates otherwise ... ly employee” present affect his as in such words used status tense include way present.” that a person never be “de- the future well as the 1 U.S.C. of an prived employment opportunity” un- l.1 he also loses a current as an less “status Also, majority’s statement that the employee.” at 964. Maj. Op. There phrase employee” as an always “status First, problems two least with this. a present just fact” is plain “connotes majority “deprive any reads individual wrong. Title VII also uses the words “de employment opportunities” stat- out prive deprive or tend to any individual principle “every ute. This violates employment opportunities or otherwise ad given [in

word is to be statute] effect.” versely employee.” affect his status as an Garner, Bryan Antonin Scalia A. & Read- 2000e-2(a)(2) (emphasis add ing (2012). Law 174 ed). VII, And in Title those same exact Second, do hiring even take those words prohibit discrimination. Even words statute, so, majority impossible out still applies says it’s for the through Mr. case job Villarreal’s the statute’s same in the identical words do the Also, “adversely employ- affect Title place ADEA. VII isn’t Certainly language. ee” true Mr. where word “status” is used de as an Villarreal was “status scribe a status someone but didn’t denied wanted employee.” majority says get. way Yet the “affect “Status” used all the time. employee” example, his status as an can’t a For claimant can disability refer Joseph job get wanted her someone but didn’t “denied status as disabled.” v. Chater, because, 1996) 433, according 84 majority, “[dic- F.3d 433 Cir. curiam). phrase (per tionaries confirm that the as Or can ‘status alien be “denied employee’ present permanent a fact.” a connotes status as resident.” Santos v. Immigration Serv., Maj. Op. at 964. This resort & abstract Naturalization 375 262, 1967).2 puzzling. say is 264 definitions Dictionaries F.2d n.1 The Chandris, Dictionary 1. The Act was "be enacted in and can denied seaman status.” 1871 sea Latsis, incorporated 347, 372, must "be in treated v. c. 515 115 U.S. In part subsequent 2172, a Ry. Great N. 2191, (1995). enactments.” 132 L.Ed.2d 314 States, 452, 465, Co. v. 208 United U.S. trying Someone do seasonal work could be 313, 316, (1908). 28 S.Ct. 52 567 L.Ed. [special agricultural worker] "denied SAW McNary Refugee Ctr., Inc., status.” Haitian go trying bring I2. could Someone on. 479, 496, 888, 898, 498 U.S. 111 S.Ct. 112 class action "denied class can be his status as (1991). 1005 Someone into L.Ed.2d drafted Tennessee, representative.” Duncan 84 war "be denied ob [conscientious could CO 21, (M.D. 1979). F.R.D. 32 Tenn. Someone Gabriel, 256, jector] status.” 393 U.S. Clark v. trying bankruptcy to file in court a claim 424, 429, 89 S.Ct. L.Ed.2d could be Delivery Serv., priority “denied status.” Howard Ins, Inc, (1968). like show the word Co., Cases Santos how v. Zurich Am. Congress was used when wrote the “status” 126 S.Ct. (2006). trying Someone ADEA 1967. L.Ed.2d 110 to'work throughout clear usage meaning is once we same text.” Scalia & word “status” supra fact, Garner, at 170. In whenever the abstraction dictionaries leave “any Congress other anything meant than how word is used in actual look at 4(a), 4(a) § it so. Section individual” said writing. subsections, one does three fact, In Court has even “any That use term is individual.” “employee” us that when the word told 4(a)(3), § prohibits “reducing] temporal in- any qualifier” can “lacks employee.” wage rate of other employees. than current people clude added). 623(a)(3) (emphasis § em- Since Co., v. Shell Oil Robinson U.S. wages ployees non-employees earn do 846-847, L.Ed.2d not, 4(a)(3) disputes § no applies one (1997). Justice Thomas’s unanimous Thus, solely employees. Congress’s opinion explained parts Title VII “any employee” “any than choice of rather ‘employees’ to mean some- “use the term 4(a)(3) §in individual” makes sense. in- thing employees,” other than current fact, 4(a)(3) cluding place § at least one where the term In tool great naturally ‘prospec- “most is read showing why imposition mean majority’s ” n.3, 4(a)(2) employees.’ meaning § at 343 tive extra-textual onto is so wrong. majority Congress at 847 n.3. Robinson says underscores The ex- majority’s reading of parts how radical from pected courts divine other 4(a)(2) § If “employees” is. can mean pro- “any individual” “any 4(a)(2) spective employees, surely § “any employee.” individual” actually means says time, But the majority “any can too. indi- Congress If that’s have said should unambiguously 4(a)(3) § em- “any vidual” means too. That “current individual” ployees” only. right. can’t be “wage That from everyone because could divine “any implicitly rate” that meant individual” plain The text the ADEA makes Indeed, 4(a)(3) “any § employee.” “any “deprive[d] ... individual” who is assumption than safer opportunities” 4(a)(2), definition, nobody since other impact age disparate file a claim. wage than employees can have their rates majority Congress explains why never Congress “any Yet still reduced. said em- term “any chose individual” ployee” leaving meaning than this rather 4(a)(2) if it really meant “employee.” Every time meant inference. say “any “any individual” méans individu- “any employee” “any employee.” it said plain text of this al.” resolves every “any And time it meant individual” it Mr. favor. And case Villarreal’s “any said In individual.” it said (1) reading confirmed by: is further “any individual.”' Griggs ADEA; (2) other the parts case; (3) case; (4) the Smith 4(a)(2) deference compares The § to oth- majority to EEOC. each turn. will discuss too, parts er of the ADEA but both those arguments confirming why up “any end

A. 4(a)(2) really “any § individual” in means First, § con- 4(a) phrasing majority The the rest individual.” asserts that 4(a)(2) “[ujnlike “any 4(a)(2) 4(a)(1), § firms that individual” section section refusing For no “any employer means does not mention an to example, individual.” disputes “any Maj. Op. According one hire someone.” at 967. individual” 4(a)(1) 4(a)(2) § § job majority, “a this applicants. refers to And means can’t hiring major- apply phrase presumed possibly word or bear claims. ity 4(a)(1) accurately reports in- 4(c)(2) § § reliance on that this subsection phrase cludes “refuse hire” and organizations, labor governs employ- 4(a)(2) 4(a)(1) § § says But not. does Specifically, governs it organi- labor ers. 4(a)(2) § “to discharge” then does not. ability zation’s “refuse refer for em- Applying majority’s logic same there- ployment.” 628(c)(2) § (emphasis fore, 4(a)(2) § say we would have added). part This targets statute protect employee doesn’t an from getting unique way in organizations which labor age. fired of his because When asked about can they discriminate when “appli- “refer” at argument, Reynolds this oral RJ re- employers, cants” to as through union such sponded impose liability does hiring parts halls.3 None of the other someone, on an employer who fires for govern the ADEA that employers say any- being old, liability but that comes from the thing “referring” anyone employ- about for “adversely later affect his status as an ment, (cid:127) all, Employers, after don’t “refer 4(a)(2). employee” language in But applicants.” organizations, But labor by firing claims come from later lan- unique of their role, virtue referral limit, guage despite segre- the earlier “to sometimes the sole conduit which an (which gate, or classify” says language employer get potential job applicants.4 nothing firing), surely about then failure- 4(c)(2) §And prohibits organizations labor to-hire claims can from come the later from “refusing] a person refer” “deprive any of employment op- individual all age at of her because portunities” know, language. As we .., thereby denying her “status as an same in Title VII allows failure- applicant employment.” certainly to-hire It In other claims. .must do ADEA, words, protects same the statute someone who sought work but was denied an Second, majority 4(c)(2), §to points is, applicant—that being allowed to apply which uses the words “status em- organizations’ all—due to labor control ployee an applicant employment” or as hiring process. It’s sometimes dan- rather than “status as employee” like gerous to infer what meant Maj. Op. at majority 966-67. The based, part one says on protect peo- what means can’t ple say in job parts, who weren’t for a hired didn’t without other least age. problem their majority’s analysis.5 with the close background 3. For historical Employers discriminato- halls. construction and mar- halls, ry hiring Irving Kovarsky, union see itime industries often choose to hire exclu- Discriminatory Current Remedies for through Ef- sively hiring from union referrals Seniority Agreements, halls.”); Jr., fects of Bailey, Vand. L. Leslie W. Collective Un- Halls; (1971); Hiring Peck, Rev. 694 n.47 J. Cornelius ion Service Under Collective Bargaining Agreement Prerequisite Remedies for Racial Discrimination in Em- aas Wash, ployment, (1971); High Priority Referral, Mary L. Rev. 19 Wm. & L. Improving Winter, Jr., Ralph (1977) ("Frequently, person K. the Econom- Rev. Negroes Through Against ic apply job Status Laws cannot for work at the site other- Discrimination, directly U. Chi. L. Rev. wise deal contractor because (1967). hiring arrangement an exclusive be- exists union.”), tween the and a contractor See, e.g., Hiring Halls, Nat'l Labor Rela- Bd., lines, https://www.nlrb.gov/rights-we- tions 5.Along dangerous these it's to in- protect/whats-law/employees/i-am- Congress fer a based on what meant in (last represented-union/hiring-halls say Judge visited what it didn’t at all. Rosenbaum’s 6, 2016) ("In industries, Sept. ADEA, jobs history some most concurrence details the of the through hiring language filled which tracks Title VII. She referrals the from.union seeking who to other

B. were transfer positions company. 401 U.S. within See way in the I read the ADEA same 427-28, at at 852. the first S.Ct. And Supreme read identical Title VII Court Supreme unani- sentence Court’s Griggs opinion. language seminal mous opinion declared that the Court was Griggs language held that this identical deciding employer prohibit- is “whether disparate impact Title VII authorizes requiring ... school high ed from edu- disparate impact When read claims. Smith general passing cation or standardized ADEA, liability into the the Court employ- intelligence test as condition “beg[a]n premise with the Con- when 425-26, at 851 ment.” 401 at 91 S.Ct. same in two stat- gress uses the added). (emphasis broadly held Court particularly having purposes, utes similar employment that Title VII forbids selec- shortly is after oth- one enacted when practices tion that are “fair in form but er, presume it is appropriate that Con- discriminatory operation,” it not and did that text to have same gress intended distinguish the hiring employees between 233, meaning in statutes.” 544 both U.S. at allowing within the them transfer majority says at 1541. The 431, company. See kh at 853. Griggs is the plaintiffs irrelevant because in- employees, Supreme that case current not Court has never limited were Griggs applicants. Maj. majority job Op. suggests. But the as the To the 968-69. requirements challenged contrary, Supreme Court has charac- Griggs Griggs appli- both for hiring protecting job were used initial terized Teal, already as for but cants.6 employed, well those See Connecticut 457 U.S. Congress particularly on the fact ... in to be hired or ... had focuses order transferred phrase never ADEA to add amended the disproportionate effect on and black white applicants employment” (reading Griggs "or applicants.”); ick at 1282 n.18 by we know But cannot what meant promotion apply hiring to "neutral amending Perhaps Judge ADEA. Paper Co., practices”); Watkins v. Scott Congressional theory on Rosenbaum’s intent Griggs, 1159, (5th 1976) ("In F.2d Cir. correct, possible equally is Con- but it’s high Supreme Court held school that a gress thought did not act because the stat- diploma requirement hiring and transfer already job applicants. encompassed ute That justified by necessity.”); was not business why Court us as a warned Co., v. Ga. Power United States 474 F.2d general give weight legislative rule (5th 1973) ("In Griggs Cir. ... the Su- interpreting inaction when For ex- statutes. preme proviso Court held that of this Crosby Foreign ample, in National Trade hiring section means that no test used for Council, 120 S.Ct. promotion 'operates is valid if it to exclude (2000), L.Ed.2d 352 con- the Court refused to [African [and] cannot be shown Americans] Congress "repeatedly declining] clude that ” (second job performance.' be related to al- express preemption provisions” implied enact original)). teration in anything “simply because the silence of Con- 386-88, gress ambiguous.” Id. at So have other courts. See El v. Se. Pa. Judge Although at 2301-02. Rosenbaum notes Transp, (SEPTA), (3d Auth. F.3d Crosby preemption about (“Griggs 2007) aptitude Cir. ... dealt with ADEA, my point unchanged: remains making employer tests administered legislative simply should not consider inaction Harper decisions.”); hiring World v. Trans interpreting when statutes. Airlines, Inc„ 525 F.2d Cir. 411-12 1975) Griggs, ("In down an Griggs Court struck 6. Our Court has also characterized Crab, Inc., employer’s aptitude use of certain when tests way. Joe's Stone See EEOC v. they 2000) engendered ... were shown to have dis 1279 n.16 Griggs (“In hiring criminatory concerning plaintiffs treatment ... showed that the blacks.”). objective facially requirements neutral and transfer of

987 430-32, 73 L.Ed.2d at at S.Ct. 853-54. But under (1982) (noting challenged Griggs, that em- majority’s reading Duke Griggs ployment requirements in “applied Power, employer, was welcome to “ equally to white and black employees and ‘freeze’ the quo” all and create applicants, employment op- [but] barred “artificial, arbitrary, and unnecessary bar portunities to a disproportionate number employment” riers to it by wanted blacks”); n.2,102 at id. S.Ct. at 2536 hiring all. minorities at know this We is (Powell, J., C.J., n.2 joined by Rehnquist, Griggs, wrong. deciding After the Su O’Connor, J., dissenting) (noting that preme sent Court case back Griggs tests “were an bar absolute Court, District enjoined the use of Indeed, hiring”). transfers or the Su- discriminatory “as a tests condition of con preme disparate Court’s most recent im- employment for promotion sideration or or Griggs pact says case governed “hiring Griggs Co., transfer.” v. Duke Power No. Cmtys. Project, criteria.” Inclusive 135 210-G-66, (M.D.N.C. *1 WL at sense, at 2517. makes This 25, 1972). Sept. Griggs broadly itself was concerned protecting interests of minority C. groups, both in securing improving The next reason would allow Mr. Vil- employment opportunities; See 401 U.S. at City to proceed larreal’s claim Smith 430-31, (“[T]he 91 S.Ct. at 853 Act does Jackson, Court’s most re- any person command that be hired 4(a)(2). opinion interprets § cent As I ... simply because he is a member beginning, mentioned at the Smith minority group.... held required What is § artificial, Congress disparate impact is the removal of allows arbi- claims. trary, unnecessary Four Justices reached this result employ- barriers to operate plain text, ment when the on invidiously though they barriers based discriminate.”); id. at regulation S.Ct. at cited an EEOC as evidence that (“[T]ests or employment criteria for or charged by agency “the with re- promotion may provide equality op- sponsibility implementing statute, portunity merely the sense of the fabled consistently ha[s] inter- of milk offer stork and the fox. On Smith, preted” in the way. same contrary, Congress required now (plurality at 1544 U.S. posture job- and condition of the opinion). recognized plurality that the account.”). seeker be taken into regulation citing it was never “mentioned] disparate impact by pur- name” and never Griggs majority’s reading ignores ported interpret Id.7 But the Griggs reasoning. explained its dispa- plurality regulation said nonetheless impact liability employ- rate ensures disparate- forth for a “set[ ] the standards ers can’t use subtle forms of discrimination “ 240,125 impact claim.” Id. S.Ct. at 1544. ‘freeze’ the status quo,” create “arti- (who vote) ficial, arbitrary, unnecessary Justice Scalia added the fifth barriers further, employment,” “operate declaring went that the EEOC’s as ‘built-in- minority groups.” regulation absolutely headwinds’ “an elas- made Smith regulation simply impact Indeed that practice said: "When and such a has an adverse on test, employment practice, including protected age group, individuals within the claimed as a basis for different treatment of justified necessity.” as a business employees applicants 1625.7(d) (2004). 29 C.F.R. grounds age, that it is a 'factor other than’ 988 1993)). dispa- “appropriate” If those were agency interpreta- to for deference

sic case cases, so Villarreal’s. impact rate Mr. (Scalia, at 1546 at Id.- tion” concurring part), J., D. 4(a)(1) 4(a)(2), § § comparing “When § in to judges interpret Eleven to pointed distinctions plurality the Smith us, of ruling. Among the eleven day’s and discrimina employer motives between three to mean at least the statute read “key differ textual tory effects things. us feels While each different at those subsections. Id. between ences” of our the correctness own certain about doing so, n.6, In 1542 n.6. 125 S.Ct. at absolutely right. can’t all be reading, we nothing about dis said plurality variously in statute can be where And other claims hiring versus between tinction vernacular, (or “ambig in the terpreted entire effort distin- majority’s that uous”), interpre must defer courts plurality on.8 The gúish is staked Smith agency charged given by the tation job brought by ADEA cases cited two even This is one more enforcing the statute. support of its statement

applicants protect must be read to reason our decision decades after “for over two has It is because the EEOC job applicants. Griggs, Appeals uniformly Courts them. always protect read the ADEA authorizing re ADEA as in interpreted the EEOC’s “it is axiomatic And theory in ‘disparate-impact’ ADEA], covery it terpretation [the for which n.8, responsibility, at 236-37 & primary cases.” Id. enforcement appropriate ‍​​‌‌‌‌​​‌​​​​​‌‌​​‌‌​‌​‌‌‌‌‌‌‌‌‌​​​​​​​​‌‌​‌‌​​​‍(citing to be entitled 1542-43 & n.8 Wooden ... be reasonable need Cty., Comm. Office 931 F.2d EEOC v. deference.” v. Jefferson Bd. Educ. Co., Super 107, 115, 108 S.Ct. 1991), 486 U.S. Prods. Cir. and Faulkner (1988).9 1666, 1671, 100 Stores, Inc., L.Ed.2d Valu arguments. Policy indulge points ing these out Judge concurrence Rosenbaum’s recognized agencies, belong and to plurality choices that the Smith of the ADEA and Title & in the text See Nat'l Cable Telecomms. difference not courts. Servs., impact treating disparate VII could warrant X Internet Ass'n Brand statutes, differently. 2688, 2699, This the two claims under L.Ed.2d specifically talk- plurality (2005). Still, is true. But the argu because some these ADEA, 4(f)(1) con- ing about might reappear litigation, I in later ments significantly its tains narrows they quite specious. RJ point seem out prohibit- coverage by permitting “otherwise dispa Reynolds its amici first warn that is based action “where differentiation ed” hiring impact liability for criteria will rate age.” than factors other on reasonable graduates. recent But end efforts recruit 623(f)(1). no Title VII includes such “limit[ing]” employees, prohibits reason, you language. don’t think For that nothing any "limit” does and recruitment too far on Smith's observation that . travel expands apply for a who will one. Instead liability under scope disparate-impact "the Also, among programs job. the recruitment Title VII.” Id. ADEA is narrower than under Reynolds’s claims under amici that RJ 1544. And because I 125 S.Ct. at target minority gradu are initiatives to threat agree Judge and I Rosenbaum understand ADEA, programs violate the If those ates. explicitly whether address Smith .did had to violate Title VII would have they then 4(a)(2) provides disparate-impact for a they But don’t. too. decisions, hiring in the context of this claim age Reynolds’s argue that amici next RJ question be- does not observation resolve disparate require im- doesn’t discrimination fore us. older workers were once pact, all since (let they didn’t face a lifetime alone young, so point, Reynolds RJ and its 9. Related to prejudice race generations) crimination, as with dis- arguments support policy amici list various underlying point race about right by majority choos- view. The did their disparate ADEA impact EEOC’s tion between the facts found and the rule, through omitted)). which was issued notice-and- (quotation choice made.” rulemaking, comment confirms The always EEOC has held this same protects applicants. 29 See view. The through EEOC first said so 1625.7(c). preamble C.F.R. section And rulemaking notice-and-comment in 1981. titled of Rule” the “Benefits the uses 1625.7(d) (1981). 29 See C.F.R. That hiring EEOC’s data on discrimination to “regulation ... the longstanding affirmed explain how the rule “neutral addresses position Labor, of Department the of the practices act as barriers to the em- agency previously administered the ployment of older workers”: Smith, 244, ADEA.” 544 at U.S. 125 S.Ct. Data show that older who individuals (Scalia, J., at 1547 concurring in part). unemployеd difficulty become have more Indeed, early as as months after the finding a position stay new and tend law, ADEA signed into Depart- unemployed longer younger indi- than (“which ment of initially Labor drafted To the difficulty viduals. extent that the legislation,” 239, 125 at 1544 id. at S.Ct. finding is new work attributable to (plurality opinion)) supposed- declared that practices neutral act barriers ly “pre-employment” neutral must tests be workers, employment of older “reasonably necessary specific for regulation should to reduce the rate help performed” ap- work be “equally unemployment. of their applicants.” plied Reg. 33 Fed. all 9173 (2012) (footnote Smith, (1968) Reg. added); Fed. (emphasis 77 19092 544 U.S. omitted). proce This satisfies “the 125 (plurality basic opinion) requirement[ (citing of regulations” dural administrative ] these “initial evi- view). rulemaking agency give agency’s longstanding that an must dence of [] adequate reasons for explained interpreta- its decisions.” Encino And the EEOC — Motorcars, Navarro, LLC for tive basis rule -, -, 2117, 2127, ago.10 195 Court over two decades But (“The (2016); majority adopts L.Ed.2d see also id. govern- view agency ing agency must for responsible protecting examine the relevant data satisfactory explanation and articulate against age discrimination has read for including nearly its a rational for wrong century. action connec- half a good persis discrimination is a one. 10. See 12- “[T]he Petition for a Writ Certiorari at W, inequality” requires Sch.,

tence of racial effort “to EEOC v. Francis Parker 515 U.S. lingering counteract effects. discrimination’s (1995) (No. 941558, WL effects, system Those reflective of racial ("The appeals court of ... reasoned that ... ended, only recently caste evident in our are 4(a)(2) protects only employ [§ incumbent Constructors, workplaces.” Adarand Inc. v. reasoning seriously By ees. flawed. its That Pena, terms, 4(a)(2) express [§ ] not limited X, (1995) (Ginsburg, L.Ed.2d protecting Although employees. incumbent omitted); (citation dissenting) see also Derrick employer for [§ ] makes unlawful Well; Bell, Faces at the Bottom the limit, employees,' segregate, classify 'to (1992). argu Permanence of Racism But this engage may employer such conduct is; recognized ment should what it for any way deprive 'in or tend attеmpt re-litigate says Smith. Smith deprive any employment oppor individual of imposes impact liability disparate ADEA for tunities.’ The of the term use 'individual' rath age Vil question discrimination. The Mr. er ‘employee’ than [§ ] indicates that protection larreal’s from case is whether (citation protects applicants employment.” disparate impact age discrimination ex (cid:127) omitted)).. job applicants. tends to dismiss, a motion to which means

us on every one setting the are baseline why majority opinion explains never precedent Our until now has these cases. “deprive chose the words Congress that, recognized preferences “[s]ecret employment opportunities” individual means of hiring and even more ille- subtle 4(a)(2). Surely those chose discrimination, gal very their because any indi- “deprive it meant words nature, readily unlikely apparent to be employment opportunities” vidual against.” to the individual discriminated op- [employees] “deprive Reeb, Recognizing 516 F.2d at en- agency charged The portunities.” difficulty type this uncovering dis- agrees. ADEA That should be forcing the crimination, protects our precedent that. the end of against, employer for who example, every applicant out black screens II. keeps this secret until the stat- misconduct holding may majority’s The second run. period of limitations Under ute its first. more harmful than Mr. Vil- even rule, if an majority’s new even insider no says knowledge he “had no larreal this exposes to came forward later bad Reyn- or means about RJ reason know” conduct, the victim could not benefit from secret elimination of older workers olds’s extraordinary This change revelation. hiring pool just until before he from the years forty of Fifth and Elev- upsets over majority The holds charge. his EEOC filed precedent. enth Circuit tolling claim equitable that Mr. Villarreal’s cannot survive a motion to dismiss even A. try not

because he did to uncover policy why this hold- secret earlier. Part diligence equitable toll- required The troubling beyond it ing applies is so ing And it isn’t diligence. is reasonable beyond disparate impact the ADEA and job applicant for every single reasonable example, employer For suppose claims. against. assume she was discriminated The intentionally job ap- screens all black out Supreme equitable tolling Court’s cases plicants. applicant suspect No Supreme confirm this. The last time the such odious discrimination was reason confirmed Title Court VII’s limita- get job, if he filled especially he didn’t period subject equitable “is tions doc- (like Mr. application out a standard online tolling,” unani- trines such Court’s did) applied dozens opinion mous listed various “circumstances (like jobs many job hundreds seekers it where will be difficult determine when do). No reasonable would assume applicant to run.” period begin the time Nat’l should unlawfully employers that all those acted Passenger Corp. Morgan, R.R. v. U.S. or accuse all of discrimination. them 101, 108, n.7, 114 n. S.Ct. (2002). job-seeker example, For nagging Even has a 153 L.Ed.2d when Jus- wrote, over Thomas issue that suspicion passed may that he has been tice “[o]ne age, more whether generally takes arise such circumstances is just injury suspicion employer begins than to accuse an time to run when the occurs injury something wrong. opposed reasonably And on the rare when the so job have been Id. But applicant occasion when dares should discovered.” subject, bring up employers all concluded that the victim that Court likely being to illegal confess conduct. Some case “believed that he was discrimi- against that all might. [the But Mr. comes nated the time Villarreal’s case (quota- tolling discriminatory] require employer acts occurred.” Id. ble does mis omitted). reason, Lynch Co., tion For the Court Cocke conduct.” Merrill & period 1987). Also, was not ruled that the limitations tolled. Reeb not turn on employer’s did de To ception. contrary, Judge Wisdom equitable tolling cases the that discriminatory hiring prefer wrote Morgan Court decided before also touched to stay ences tend hidden “because their Dep’t on this idea of notice. See Irwin v. very nature.” 516 Beyond F.2d at 931. Affairs, 89, 96, 111 Veterans that, question about whether Reeb 463, 458, (1990) (denying 112 L.Ed.2d 435 requires deception was resolved Tucker equitable a'plaintiff tolling who waited UPS, (5th Cir.1981). 657 F.2d 724 long too alleging sue after the same plaintiffs charge Tucker filed an EEOC charge); discrimination in аn EEOC Bald- 180 days they more than after were fired Cty, Brown, win Ctr. v. Welcome than days but they less after learned 147, 151, 80 L.Ed.2d firing might have been discrimi (1984) (“This a case in which a natory. plaintiffs misled, The weren’t but notice”). inadequate claimant has received equitable tolling allowed based court equitable tolling It is true that some cases Judge Chief Reeb. Godbold made the analyze way, don’t notice the same at I point make today: same least not But those all expressly. cases person’ ‘prudent requirement The government deprivations, address overt triggered by is not Reeb a .seasonal claim, such security a social a denied employee’s being black of an notified by government, breach of contract or a unexceptional otherwise decision he that ruling on a criminal conviction. In this type going to It is not be be recalled. would case, be exam- notice can assumed. For' persons protected anomalous indeed if ple, petitioner a habeas be assumed by statute from racial discrimination is ruling have known about she chal- required to presume they are that are lenging ruling from the moment the is- being against. discriminated only way sued. she Indeed wouldn’t something extraordinary, know is through The for Mr. Id. at 726. same true Villar- lawyer like or deception misconduct was “required presume” real. He The isn’t true for abandonment. same from discrimination the “otherwise unex- Reeb, preferences hiring.” “[s]ecret ceptional” get job fact that he didn’t cases, F.2d at In 931. these “subtle means offer. Id. discrimination, of illegal because their adopt courts have Other come

very nature, unlikely readily are to be Indeed, too. this court once Reeb test apparent to the discriminated individual requirement pro- Reeb’s notice “a called added). against.” why (emphasis Id. That’s by nouncement that would vari- be echoed always equitably our court has tolled country.” ous circuits across the Jones v. for these claims “until period limitations Dillard’s, Inc., 331 F.3d support the facts which would cause 2003). majority Cir. Now the characterizes appar- action apparent be should Second, Seventh, that and D.C. Cir- ent.” at Id. 930. using “general cuits courts test” and majority says says “spеcial The Reeb is not relevant Mr. Villarreal has asked vague at Maj. Op. here “that decision active 971. These labels because involved test.” deception clarify. than The fact is employer.” Maj. Op. at do more to confuse always “equita majority that three of the 972. But our court has said all courts (citations 649-50, at plain- Id. at 130 S.Ct. hold cited Reeb that a references omitted) (alterations Hol- adopted). of notice tiffs lack about After dis- “extraordinary land, circum- finally recognized “[ejquita- crimination tolling.11 equitable. nature, is, well, stance” warrants equitable tolling ble others.12 court at least three So have No ‘on a regarding decisions must be made criticized test. It is the ever the Reeb light cir- case-by-case ‘specific basis’ apply I test would here. cumstances, predict often in ad- hard Florida, vance.’” Hutchinson

B. 2012) Hol- (quoting land, 2563). rule, majority ig- no majority's new dis- Under get equitable tolling crimination victim can nores that lesson here. unless he assumes he was discriminated Worse, majority’s rigid makes test how against, no matter unreasonable majority Mr. says little sense. The Villar- assumption might be. “this believe stan- real’s case dismissed needed Florida, rigid.” is too Holland dard “investigate he of his didn’t Maj. Op. majority application.” 972. The (2010). When Holland over- L.Ed.2d explains why this mat- never distinction equitable tolling

ruled our court’s stan- ters. Mr. Villarreal learned Even dard, Court instructed rejected, been application had equity of a court’s the “exercise powers nothing about whether reveal a case-by-case must be made on ba- rejection discriminatory.. Neither “flexibility” inherent sis.”— from inquiry an Mr. about would “equitable procedure” enables “to courts the application of his have made new that equita- meet situations demand Reynolds. applicants difference RJ Job intervention,

ble all the accord all up applications follow on their the time. particular to correct necessary relief in- ,.. give no- That routine not occurrence does justices.” judg- courts Such exercise .,. tice to that employer discrimination a ment with awareness the fact that charge is Mr. circumstances, coming. Villarreal’s com- specific often hard advance, plaint charge filed an predict in could he EEOC special warrant said an appropriate Reynolds case. that RJ treatment soon as he used learned Corp., Diebold, Inc., 674, 11. See Miller v. Int’l Tel 755 Allen F.2d See v. 33 F.3d 12. (6th 1994). Though (2d 1985) ("An Eighth 676 Cir. ‘extraordinary1 Cir. circum Reeb, they never Ninth have cited Circuits permitting tolling time bar on stance Dring apply See v. standard. same grounds equitable might employee exist if the Douglas Corp., McDonnell F.3d impossi could that it would have been show (8th 1995) ("[W]hen a reasonable Cir. person reasonably prudent ble for a learn person plaintiffs be would not situation discharge discriminatory.”); that his was expected possi know of the existence of Vaught Donnelley Co., & Sons v. R.R. violation, ignorance ADEA ble this excusable 1984) ("The tolling F.2d Cir. provide may proper for the invoca basis here comes from semi standard at issue equitable tolling.”); tion of Boyd doctrine Marsh, Reeb[].”); nal case Stoller v. Serv., U.S. Postal ("Under 1982) (D.C. F.2d Cir. Title 1985) ("The period filing time for VII, employee if an did not at the know time complaint of to run begins discrimination or have reason know that charge support when facts would nature, discriminatory decision was apparent would have to á discrimination been filing reasonably time com similarly person limits administrative situated tolled.”). prudent rights.”). may regard his plaint illegal hiring to reject applica- rights”? criteria his for his Id. at If discovery tion. And he claims he could have question, limited to that on burden learned that secret conduct about earlier. note, defendants will be minimal. On that enough, my view, This is to survive a it’s worth remembering equitable doc- motion to plead- dismiss case trines out of arise concern the circum- ings. stances of both of a If sides case. RJ Reynolds showed that Mr. Villarreal’s de- dispute tolling don’t equitable re- lay (such prejudicial was in some way quires plaintiffs diligently. to act But the evidence), due to lost a court would have to requirement always been reasonable take that into But account. that never hap- diligence. I no see basis to conclude that Instead, pened here. majority says de- unreasonably Mr. Villarreal acted here. In lay is always unacceptable, even a victim fact, Reynolds RJ expressly its amici had zero reason act earlier. The Su- speculate ask us to about facts preme Court held six years ago that this Reynolds says record. RJ Mr. Vil- equitable tolling court’s “standard too actions larreal’s were unreasonable be- Holland, rigid.” cause he try inquire “did even about at 2554. The majority’s new rule returns us his application. had, Reynolds If he RJ path. down him have told seeking entry-level experience.” salesmen with less

And the Chamber of Commerce adds that up

Mr. Villarreal could have looked wheth-

er people Reynolds RJ hired created

profiles on social networking website

Linkedln ages then researched the people

those ap- somewhere else. But this peal to us on comes a motion dismiss. CHANG, Plaintiff-Appellant, Gracita That means anything we can’t assume about Reynolds what RJ “would have” certainly said. if using And can’t know CORPORATION, CARNIVAL a Pan- Linkedln to build cause of action would Corp. ama Carnival Cruise d.b.a. have reasonably prudent been either or at Lines, Defendant-Appellee. all thing One fruitful. canwe know howev- No. 14-13228 illegal that “subtle means of discrimi- er. Non-argument Calendar

nation, nature, very their Reeb, unlikely to readily apparent.” of Appeals, Court United States F.2d at 931. Eleventh Circuit. Employers illegally who act should not (October 6, 2016) escape liability just because their conduct through hidden the end the limita- period. illegal tions In cases where conduct

is exposed period, after the limitations discovery question allow on the our always

court cases: asked these support

when did the “facts which would

cause action ... apparent [become]

person reasonably prudent regard awith notes from 1767 to 2002. Sta- age (online canon does not in this context. apply tus, English Dictionary Oxford operates added) “or as phrase ed.) (all otherwise” (emphasis Internet materi- specific precede 2016, 30, items catchall: June available as visited ‍​​‌‌‌‌​​‌​​​​​‌‌​​‌‌​‌​‌‌‌‌‌‌‌‌‌​​​​​​​​‌‌​‌‌​​​‍als file). by to be comes are meant what Court’s subsumed in Clerk of Other ease dictio- Status, Begay “or after the See v. similar otherwise.” naries have definitions. See States, 137, 153, Dictionary Legal Usage 553 United U.S. A Modem 828 (2008) (Scalia, J., (“be- 1581, ed., 1995) (Bryan 170 L.Ed.2d 490 A. Garner 2d ed. (“[T]he judgment) longing particular persons to a class of concurring canon 965 particular legal all of assigns whom the law by phrase limited “or otherwise powers, capacities, incapaci- or liabilities affect his employee,” status as an so the the, added) (emphasis (quoting ties” 1-David M. “individuals” statute covers are Walker, Principies Private Scottish those with anemployee.” “status “ (3d 1982))); Status, Law 198 ed. Black’s Judge Martin’s says ‘any dissent individ- Dictionary Law 1264 5th (Special Deluxe ‘any individual,’” ual’ means Dissenting 1979) condition-, (“[sjtanding; or ed. state Martin, J., 984, Op. of but the whole position” added)); Status, (emphasis social text that-“any makes clear individual” Neio Dictionary Webster’s International employee” a. “status as an “any means (2d 1961) 2463 (defining ed. “status” in the employee.” “[tjhe legal context as condition of a per- - Judge Martin’s dissent contends legal per- son which the of his nature that someone can have a “status sonality legal capacities and his are deter- employee” being without an employee, see mined, and therefore the nature of the 983-84, id. at disagree. but we Judge Mar- legal relations to or to the' state other tin’s dissent Dictionary cites the Act for persons into may (empha- which he enter” proposition that “words in the used added)). sis The meaning of “as” also con- present tense include future as well as employee” firms “his status as present,” id. at 1 (quoting 983 to a present refers fact. The En- Oxford 1), noun, but the word “status” is a not a glish Dictionary defines “as” the rele- verb. Nouns do not have “tense.” See sense, “[ijn character, vant to mean Bryan Garner, Tense, A. Chicago capacity,. As, or of.” function En- Oxford Grammar, Usage, Guide and Punctua- (online glish ed,). Dictionary (“A (2016) 480 tion verb quality that ex- Judge Martin’s dissent stresses presses action—past, the time present, individual,” breadth “any words see added)); or future.” (emphasis Bryan A. Martin, J., Dissenting. Op. 982-83, Garner, Tense, Gamer’s Modem Ameri- .984, those dissent reads words but. (3d (“A Usage 2009) ed. verb’s “[Ejven isolation. though the word ‘an/ quality that time in shows the which an demands a interpretation, broad must act, state, occurred; condition occurs beyond look that word itself’ to determine the correspondence between verb form States, its ultimate scope. Small United and the concept (emphases time.” add- 1752, S.Ct. ed)); States, 438, Carr v. United U.S. (2005); L.Ed.2d 651 see also United States 176 L.Ed.2d Alvarez-Sanchez, U.S. (2010) (explaining that section (1994) (“[Re 128 L.Ed.2d 319 Dictionary significance Act “ascribes spondent errs in placing dispositive weight added)). verb (emphasis tense” know We on the broad statutory reference ‘an/ present “status” connotes a fact agency law enforcement officer or without section plain meaning on the based considering statute.”); the rest Unit phrase “his employee,” status as an Palmer, ed States v. 3 Wheat.

Case Details

Case Name: Richard M. Villarreal v. R.J. Reynolds Tobacco Company

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Oct 5, 2016

Citation: 839 F.3d 958

Docket Number: 15-10602

Court Abbreviation: 11th Cir.