Textualism in statutory interpretation is a good thing because, as the late Justice Antonin Scalia repeatedly and wisely cautioned, legislators vote on text, not diffuse emanations of policy discernible only to (certain) judges and academics; in statutory cases the court’s ruling must be based on a reasonable interpretation of the text. But a judge can take a good thing too far if he ends up being shackled to a reading of the text that is divorced from any consideration of the purpose legislators had in mind in enacting the statutory language into law. Consideration of purpose cannot do the work of statutory text, but to ignore purpose is to engage in a highly abstract interpretive venture bearing little resemblance to what the legislators were trying to do.
I call textualism without proper consideration of purpose “untethered textualism” and there is considerable evidence of it in the Seventh Circuit’s recent decision in Kleber v. CareFusion Corporation, No. 17-1206 (en banc; decided January 23, 2019). In that case, the court of appeals, sitting en banc, held that the disparate-impact provision of the 1967 Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621, 623(a)(2), applicable to non-federal employers covers only employees, and presumably former employees, but not outside job applicants. Kleber does considerable damage to the regulatory reach of the law. Older job seekers face considerable prejudice in the job market—by employers who assume that the older worker will be less flexible, more likely to expect pay comparable to what his previous employer provided, less willing to be supervised by younger people, less mobile and less nimble than younger applicants, and further not easily dischargeable because he can bring suit under ADEA. These stereotypes have more force at the hiring stage than when the employer has experience with the worker. Although the older job seeker can still sue for intentional discrimination, such “failure to hire” suits are very difficult to win. The effect of the Seventh Circuit’s ruling is to prevent job seekers from challenging on impact grounds rules and policies that present no evidence of intentional age discrimination but create “headwinds” against the older job seeker—such as “maximum salary,” “no more than five years of experience,” and “no lateral hiring” rules that discourage even applying. Employees barred from consideration for promotion by these rules can mount a disparate-impact challenge, but not the job seeker who never previously had a position with the particular employer.
The appeals court’s decision is thus difficult to square with the “evil” Congress had in mind in enacting ADEA, as set forth in the statute’s statement of findings (§ 2)—prohibiting “the setting of arbitrary age limits” making it difficult for older workers “to regain employment when displaced from jobs” and contributing to a high “incidence of unemployment, especially long-term unemployment” among older workers. 29 U.S.C. § 621(a)(1)–(3). It is also difficult to square with other provisions in ADEA itself that allow job seekers to sue under disparate impact unions, employment agencies, and federal-sector employers; only outside applicants seeking positions with non-federal employers are barred. Kleber also cannot be easily reconciled with aspects of the Supreme Court’s landmark ruling in Griggs v. Duke Power Co., 401 U.S. 424 (1971), which strongly suggest that § 703(a)(2), the provision in Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. directly analogous to § 4(a)(2) of ADEA, authorized disparate-impact challenges even by job seekers. The class action certified in Griggs included job seekers; the Court’s decision in Griggs specifically referred to job seekers; and other Supreme Court decisions that issued prior to 1972 amendments to Title VII referred to outside job applicants as being within the group of individuals affected by the particular employer practice challenged in the case. A 1972 Title VII amendment, avowedly as a clarificatory matter, expressly added reference to “applicants” to § 703(a)(2).
How did the en banc majority in Kleber arrive at its interpretation? It first looked at § 4(a)(2) of ADEA, which makes it unlawful for an employer
to limit, segregate, or classify his employee in any way which would deprive or tend to deprive any individual of employment opportunities or adversely affect his status as an employee, because of such individual’s age.
29 U.S.C. § 623(a)(2) (emphasis supplied). In the court’s view, “[t]his language plainly demonstrates that the requisite impact [“depriv[ing] or tend[ing] to deprive any individual of employment opportunities or adversely affect[ing] his status as an employee”] must befall an individual with ‘status as an employee’.” The court drew additional support from § 4(a)(1) of ADEA, which deals with intentional age discrimination and makes it unlawful for an employer “to fail to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). The absence of similar “fail to hire” language in §4(a)(2), the majority reasoned, was conclusive proof that an employer’s failure to hire an older worker could not be challenged under the provision authorizing the disparate-impact approach.
But why would Congress draw the line between coverage and non-coverage in the manner suggested by the court—protecting older job seekers from intentional discrimination but not from disparate-impact discrimination; protecting job seekers from rules and policies adversely affecting older workers when unions, placement agencies, and federal sector employers employ such rules and policies but not when non-federal employers implement the very same rules and policies? Neither the majority nor the employer offered evidence that Congress intended the line to be drawn in this way. Presumably, no evidence was needed because the statute was not ambiguous; evidence of purpose was not required.
The textual argument, however, was not as clear as the majority suggested because if one assumed, as the majority acknowledged, that § 4(a)(1) authorized job seekers to challenge practices with unjustified disparate impact, that would suggest that the protected party in that provision (“any individual’) must include job seekers as well as employees. If that is the case, then it is hard to understand how “any individual” in § 4(a)(2) excludes job seekers. As Judge Easterbrook noted in his dissent, “[t]he majority does not explain why the statute would use ‘individual’ in dramatically different ways within the space of a few words.” In sum, individuals—whether current or previous employees or outside job applicants—would be able to invoke the disparate-impact approach but only insofar as the employer’s rule or policy affected their status as a present, previous, or prospective employee “because of such individual’s age.”
At the very least, the court should have said that the meaning of § 4(a)(2) was ambiguous on whether it applied to outside job applicants thus allowing even the strict textualist to consider evidence of legislative purpose.
Congress certainly did not write a crystal-clear provision in § 4(a)(2), and when it chose in 1972 to expressly provide that § 703(a)(2) of Title VII did indeed cover job applicants, it would have been wise to do the same for§ 4(a)(2) of ADEA even though changes to ADEA were not on the agenda of the 1972 amendments. The Seventh Circuit’s majority cannot necessarily for criticized for being a bit confused, but it can be for parsing § 4(a)(2) without asking whether there was any evidence of Congress’s purpose to draw the lines where the court was drawing them.