RULE 35(b) STATEMENT

The panel decision squarely conflicts with Supreme Court precedent holding that statutory interpretation is controlled by a statute’s plain text, and that where differences in statutory provisions exist, such provisions must not be read in pari materia. See U.S. v. Gonzales, 520 U.S. 1 (1997); Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006). The panel’s errors are of far-reaching import, as this appeal concerns the meaning of 42 U.S.C. § 2000e-2(a)(2), the Title VII provision that prohibits the racial segregation of employees. The panel decision also conflicts with Kyles v. J.K. Guardian Security Services, Inc., 222 F.3d 289 (7th Cir. 2000), where this Court interpreted the Title VII provision at issue here. Consideration by the full Court is thus necessary to secure uniformity of its decisions.

This proceeding is also one of exceptional importance that warrants en banc review, as the panel’s decision renders intentional race-based segregation lawful if it does not manifest in economic harm. That holding conflicts with authoritative decisions from other circuits addressing virtually identical statutory language in Title VII (Evans v. Sheraton Park Hotel, 506 F.2d 177 (D.C. Cir. 1974); United States v. Longshoremen’s Ass’n, 460 F.2d 497 (4thCir. 1972)), and with Supreme Court and other precedent holding segregation to be unlawful, without regard for material equality.

INTRODUCTION

At issue in this case is whether AutoZone violated 4 2 U.S.C. § 2000e-2(a)(2) when it intentionally segregated employee Kevin Stuckey based on race by transferring him out of a store because it wanted all the employees at that store to be Hispanic. While the panel acknowledged the evidence that AutoZone intentionally segregated Stuckey based on race, it held there was no violation because the transfer was “purely lateral,” without a reduction in pay, benefits, or job responsibilities. Order at 7, 10 (citing Herrnreiter v. Chi. Hous. Auth., 315 F.3d 742, 744 (7th Cir. 2002)). Though the Commission pursued its segregation claim under a different statutory section than was at issue in Herrnreiter, the panel nonetheless held that “[t]he result is the same.” Order at 11. The statute’s plain language dictates that the result should not be the same. Indeed, the panel referenced the “wider net” that the anti-segregation provision, by its terms, casts, order at 10, but then gave no content to those terms.

The panel decision thus conflicts with Supreme Court precedent instructing that the statute’s plain language controls its interpretation and that different provisions of Title VII should not be read in pari materia when their words differ. The decision also cannot be reconciled with other circuit decisions recognizing that race-based segregation is legally impermissible, regardless of economic harm. This Court should grant rehearing to address both errors.

I. Factual Background

In July 2012, Kevin Stuckey, who is African-American, was working as a sales manager at AutoZone’s Kedzie store (Store No. 4416) in Chicago. Apx-042-3 . The Kedzie store is in a predominantly Hispanic neighborhood. Apx-036. Robert Harris, the AutoZone district manager (Apx-028), knew that customers there were also majority Hispanic. Apx-030. The Kedzie store staff was also majority Hispanic: out of 32 employees, at least 26 were Hispanic. Apx-057 ¶ 4. Vernon Harrington, the store manager (Apx-017), testified there were “absolutely” issues with customers having a racial preference for assistance from Hispanic employees. Apx-019. That was the case, even though Hispanic customers spoke English, Apx-006, and certain Hispanic employees did not speak Spanish. Apx-019-20.

In July 2012, Harris transferred Stuckey from the Kedzie store, telling him the reason for the transfer was to “keep [the store] predominantly Hispanic.” Apx-046. Harris testified that Stuckey’s Spanish-speaking ability or inability was “not at all” a factor in his decision. Apx-033. Corroborating Stuckey’s testimony, Harrington testified that Harris also told him he wanted the Kedzie store to be predominantly Hispanic. Apx-021.

Harris transferred Stuckey to a store near 103rd Street and South Michigan Avenue. Apx-047. Out of approximately 25 employees at this location, 23 were African-American. Apx-057 ¶ 6. AutoZone’s Human Resources manager Tina Cleveland testified that Stuckey objected to this transfer. Apx-015-6. He did not report to the new store, in part because of what Harris told him—that he was transferred to keep the Kedzie store “predominantly Hispanic.” Apx-049. AutoZone replaced Stuckey at the Kedzie store with a Hispanic manager. Apx-022; Apx-051 ¶ 10.

After Stuckey’s involuntary transfer, Harrington, also African-American (Apx-050 ¶ 7), sought a transfer from the Kedzie store, in part because of the customer preference for Hispanic employees. Apx-020. AutoZone transferred Harrington to an “inner city store,” Apx-013-4, with a “100 percent African-American” staff. Apx-021. As with Stuckey, AutoZone replaced Harrington with a Hispanic store manager. Apx-051. In addition, Harris told Harrington he would talk to the regional vice-president about “mak[ing] sure” Harrington was replaced with “a Hispanic store manager.” Apx-021.

Kemechia Wilkins—who worked at the Kedzie store until September 2014 (Apx-050 ¶ 1)—stated that after Stuckey and Harrington left, “no new African American managers were hired, promoted, or transferred into [the Kedzie store] while I worked there.” Apx-051 ¶ 15. By September 2014, manager Benitra Brown was the only remaining black employee at the Kedzie location. Id. at ¶ 16. Harris asked Brown to transfer to a store on Chicago’s south side. Apx-003-4. Brown told Cleveland she did not want to transfer, Apx-004, and remained at the Kedzie location. Apx-001.

II. Panel Decision

While the panel acknowledged the evidence that AutoZone intentionally segregated Stuckey because of his race, it emphasized that the transfer was lateral, with no reduction in pay, benefits, or responsibilities. Order at 7. The panel therefore held that a jury could not conclude that the transfer adversely affected Stuckey’s employment or “alter[ed] his conditions of employment in a detrimental way.” Id. Characterizing the Commission’s legal position as asserting no evidence was necessary to show that the transfer “deprived or tended to deprive him of employment opportunities,” the panel stated that the Commission’s argument rendered the statutory phrase “deprives or tends to deprive any individual of employment opportunities” in § 2000e-2(a)(2) “with no meaningful work to do.” Id. at 8.

Comparing 42 U.S.C. § 2000e-2(a)(1) to § 2000e-2(a)(2), the panel noted that “(a)(2) does cast a wider net than subsection (a)(1)” in that the challenged action need only have a “tendency to deprive a person of employment opportunities.” Id. at 10. Despite noting this difference, the panel stated that it is “well-established that a purely lateral job transfer does not normally give rise to Title VII liability under subsection (a)(1) because it does not constitute a materially adverse action,” and concluded, without further analysis, that the “result is the same in this suit under subsection (a)(2).” Id. at 11. The evidence “does not permit a reasonable jury to find that Stuckey’s lateral transfer deprived or even tended to deprive him of any employment opportunity or otherwise adversely affected his employment status.” Id. The panel did not address the Commission’s argument that AutoZone’s racially segregating transfer of Stuckey to keep the Kedzie store “predominantly Hispanic” showed a tendency to deprive other black individuals of employment opportunities at that store. The panel thus affirmed summary judgment. Id. at 11.

ARGUMENT

I. The panel decision conflicts with the plain language of 42 U.S.C. § 2000e-2(a)(2) and with binding precedent addressing the interpretation of Title VII.

In interpreting any statutory text, “‘our starting point must be the language

employed by Congress.’” Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (citations omitted); see also United States v. Wilson, 159 F.3d 280, 291 (7th Cir. 1998) (“It is axiomatic that when construing a statute, we must first look to the language used by Congress, giving the words their ordinary meaning.”). The “‘strong presumption’” that the plain language expresses legislative purpose is rebutted only in “‘rare and exceptional circumstances,’ when a contrary legislative intent is clearly expressed.” Ardestani v. I.N.S., 502 U.S. 129, 135-36 (1991). The panel, however, without evaluating the meaning of the statutory text, applied the statute in a manner that departs from its plain language.

Title VII contains two different subsections prohibiting discrimination by an employer, stating:

It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a).

Thus, § 2000e-2(a)(2) prohibits the racial segregation of employees “in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.” Id. (emphasis added). By its plain text, and in contrast to subsection (a)(1), (a)(2) uses expansive language to describe the prohibited conduct. Id.

The term “any,” used twice in (a)(2) without other terms limiting its scope, signifies “all.” United States v. Gonzales, 520 U.S. 1, 5 (1997) (“Read naturally, the word ‘any’ has an expansive meaning”; in the absence of “language limiting the breadth of that word,” the word “any” must be read as “all”) (citation omitted). Here, “any” describes “way which would deprive or tend to deprive any individual of employment opportunities.” 42 U.S.C. § 2000e-2(a)(2). Thus, the statute prohibits racial segregation that in any or all ways “would deprive or tend to deprive any individual of employment opportunities.” Notably, the terms “would” and “tend,” which precede the word “deprive,” are prospective in nature and signal foreseeable, not simply actual, deprivation.[1] The word “deprive” is defined as, inter alia, to “take something away from.” See Merriam-Webster Dictionary Online, https://www.merriam-webster.com/ dictionary/deprive (last visited 7/24/17).

As for the word “opportunity,” this Court, drawing from the dictionary definition of the term, has observed that it “‘often implies little more than a possibility or chance of giving rise to some result.’” Wilson, 159 F.3d at 292 (citations omitted). The only limitation on the word “opportunities” in (a)(2) is the preceding term “employment,” thereby clarifying that “opportunities” must relate to any individual’s employment.

The act of racial segregation in this case—AutoZone’s involuntary transfer of Stuckey from the Kedzie store to keep it “predominantly Hispanic”—deprived him, that is, removed or took away from Stuckey, the employment opportunity, or chance, for him to work at the Kedzie store.[2] The statute’s text dictates that this evidence, if credited, is sufficient to show a Title VII violation. Moreover, reading the statute in this way does not render the phrase “deprive or tend to deprive any individual of employment opportunities” with “no meaningful work to do,” as the panel opined. Order at 8. The reading outlined above accords each word independent meaning. See also TRW Inc. v. Andrews, 534 U.S. 19, 31 (2011) (stating that another “‘cardinal principle of statutory construction’” is that statutes ought to be construed so that no word is “‘superfluous, void, or insignificant’”).

Furthermore, there is no basis in the text of § 2000e-2(a)(2) for the panel to hold that the transfer was not unlawful because Stuckey was racially segregated to a “lateral,” or otherwise materially equivalent, position. Order at 11. Unlike (a)(1), no language in (a)(2) requires that the “tend[ency] to deprive … of employment opportunities” manifest in a demotion or other economic disadvantage. Unless there is clearly expressed legislative intent to the contrary—and here, there is none—the plain “‘language must ordinarily be regarded as conclusive.’” Lewis v. Epic Sys., 823 F.3d 1147, 1152 (7th Cir. 2016).

The Commission’s reading of the statute also comports with the substantive textual differences between § 2000e-2(a)(1) and § 2000e-2(a)(2). Section 2000e-2(a)(1), for example, expressly prohibits discrimination “with respect to [] compensation, terms, conditions, or privileges of employment.” Accordingly, it is when analyzing subsection (a)(1)—not (a)(2)—that this Court determines whether an employment action was “materially adverse.” See, e.g., Herrnreiter, 315 F.3d at 743-44 (quoting § 2000e–2(a)(1) to explain that actionable discrimination must be with respect to an employee’s compensation, terms, conditions, or privileges of employment). Section 2000e-2(a)(2), however, excludes those very terms—“compensation, terms, conditions, or privileges of employment”—and consequently, cannot be said to require those discriminatory effects to constitute actionable segregation.

The panel’s analysis, which treated (a)(1) and (a)(2) as the same despite their textual differences, cannot be reconciled with the Supreme Court’s holding in Burlington Northern & Santa Fe Railway v. White that where different provisions of Title VII contain different language, they should not be “read in pari materia.” 548 U.S. 53, 62 (2006) (contrasting antiretaliation and antidiscrimination provisions); see also Russello v. United States, 464 U.S. 16, 23 (1983) (“‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’”). Though the panel acknowledged the textual difference between (a)(1) and (a)(2), order at 10, it nonetheless emphasized that a “purely lateral job transfer” typically does not violate (a)(1), and then concluded that the “result is the same in this suit under subsection (a)(2).” Order at 11. The panel offered no explanation as to what compelled that same result and cited only inapposite authority concerning (a)(1) to support its conclusion. Id. (citing Herrnreiter, 315 F.3d at 744; Lucero v. Nettle Creek Sch., 566 F.3d 720, 730-31 (7th Cir. 2009)). By analyzing Title VII in a manner that renders two textually distinct subsections indistinguishable and interchangeable, the panel departed from the plain language analysis mandated by the Supreme Court and this Court.

II. The panel’s ruling conflicts with this Court’s Kyles decision.

The panel’s conclusion that the “result is the same” under (a)(1) and (a)(2) cannot be squared with Kyles v. J.K. Guardian Security Services, Inc., 222 F.3d 289 (7th Cir. 2000). The Kyles Court discussed § 2000e-2(a)(2) in the context of a Title VII action brought by two plaintiffs who had applied for jobs as employment testers (to detect unlawful discrimination) and alleged they were denied positions because of their race. Id. at 292-93, 298-99. Drawing upon the statutory text “would deprive or tend to deprive,” this Court held that the testers suffered an injury for the purpose of Article III standing. Id. at 298-300.

In so holding, this Court emphasized the significant textual differences between (a)(1) and (a)(2). This Court explained that Congress, in enacting (a)(2), “created a broad substantive right that extends far beyond the simple refusal or failure to hire” prohibited under (a)(1). Id. at 298. This Court also described how the discriminatory practices prohibited by (a)(2)—limitation, segregation, and classification—have far-reaching consequences that similarly extend “far beyond” the harm at issue in a typical (a)(1) claim. “When a job applicant is not considered for a job simply because she is African–American,” this Court explained, “she has been limited, segregated or classified in a way that would tend to deprive not only her, but any other individual who happens to be a person of color, of employment opportunities.” Id. at 298. Further illustrating the ripple effect of harm from racial segregation or categorization, this Court observed that the racial segregation or categorization of any job applicant (even one with no intent of accepting a job) would result in actionable harm under Title VII as to other applicants in the same protected group. Id. at 298 n.5. “If the improper segregation or categorization does not deprive the applicants themselves of ‘employment opportunities’ (and arguably it does), see § 2000e–2(a)(2), it surely ‘tends to deprive’ other individuals (including those who genuinely want the job) of such opportunities.” Id.

The panel decision, which treated (a)(2) and (a)(1) as though equivalent, thus conflicts with Kyles, which recognized that (a)(2) created “a broad substantive right that extends far beyond” (a)(1), and highlighted the far-reaching harm that results from a single act of limitation, segregation, or classification based on race. The panel dismissed the relevance of Kyles because its holding concerned Article III standing. Order at 10 (“We held only that the job testers alleged an injury sufficient to support Article III standing.”). The Commission, however, relied on Kyles for this Court’s close examination of (a)(2) in its analysis, during which this Court repeatedly quoted its statutory language to emphasize its distinctive breadth. The Commission did not, as the panel suggested, rely on Kyles to assert that Kyles “relieves a claimant in a § 2000e-2(a)(2) suit of the obligation” to show evidence of a deprivation. Order at 10.

This Court’s analysis in Kyles also supports the Commission’s argument that the record evidence—AutoZone’s intent to create a racially homogenous Hispanic staff at the Kedzie store and its removal of Stuckey to that end—would allow a reasonable factfinder to conclude that other black individuals would also tend to be deprived of working at the Kedzie store. As this Court explained, an employer’s racial classification or segregation of an individual with respect to a particular job would also tend to deprive others in the same protected group of that same opportunity. Kyles, 222 F.3d at 298. That rationale supports the straightforward contention that AutoZone’s intentional segregation of Stuckey based on his race creates a triable issue that other black individuals would also tend to be deprived of working at the Kedzie store, particularly in light of corroborated evidence that Harris wanted to keep the Kedzie store “predominantly Hispanic.” The panel never addressed this argument, warranting en banc rehearing to reconcile the panel decision with Kyles.

III. Decisions from other circuits counsel that actionable harm under § 2000e-2(a)(2) does not require material or economic harm.

Absent from the panel decision is any discussion of other circuit decisions, cited by the Commission, that strongly support the proposition that economic harm is not required to show a violation under § 2000e-2(a)(2). See EEOC Op-Br. pp.24-25, 28; Reply-Br. pp.27-28. These decisions—from the Fourth, Fifth, and D.C. Circuits—analyze 42 U.S.C. § 2000e-2(c)(2), Title VII’s parallel subsection prohibiting segregation by labor organizations. Section 2000e-2(c)(2), which contains language essentially identical to (a)(2), makes it unlawful to “limit, segregate, or classify its membership or applicants for membership . . . in any way which would deprive or tend to deprive any individual of employment opportunities” because of race.

In U.S. v. Longshoremen’s Association, 460 F.2d 497 (4th Cir. 1972), for example, the Fourth Circuit held that racially segregated locals violated § 2000e-2(c) and approvingly quoted the district court’s holding that segregated locals was a “per se violation” that tended to deprive individual members in the following way: “‘As firmly established in Brown v. Board of Education, 347 U.S. 483, 494 [] (1954), the sanctioning of racially separate groupings in schools is inherently discriminatory, and this principle applies with equal force to cases such as the pending one where equal employment opportunities are involved.’” 460 F.2d at 500. The Fourth Circuit further explained that segregating locals “inevitably breeds discrimination that violates the Act,” as “racial segregation limits both black and white employees to advancement only within the confines of their races.” Id. See also EEOC v. Int’l Longshoremen’s Ass’n, 511 F.2d 273, 278 (5th Cir. 1975) (stressing that § 2000e-2(c)(2) should be analyzed in light of Brown and subsequent Supreme Court precedent holding that racially separate facilities were unconstitutional “without regard to any evidence of material equality”).

Similarly, in Evans v. Sheraton Park Hotel, 506 F.2d 177 (D.C. Cir. 1974), though there was evidence that the sex-segregated unions (one for waiters, the other for waitresses) had resulted in material or economic disadvantages to women, the court of appeals made clear that the sex segregation itself, and not those effects, was the basis for the statutory violation, as “Congress, in enacting Title VII found classifications based on sex inherently invidious.” Id. at 184-86. The panel’s decision fails to explain how its ruling can be reconciled with these decisions interpreting identical language in (c)(2). Because it cannot be, en banc review is warranted.

IV. Courts have long recognized that racial segregation is an invidious practice.

As the circuit decisions in union cases reflect, adverse economic effects may constitute supporting evidence that racial segregation is unlawful, but such evidence is not necessary to show a Title VII violation. At least two additional circuits—the Second and Eleventh Circuits—have also held that race-based segregation and assignments of employees are unlawful, though the terms and conditions of employment were identical. See Ferrill v. Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir. 1999) (applying Title VII to § 1981 case, holding that employer’s intentional segregation of employees to make political marketing calls, where black employees were assigned to call black voters, and white employees to white voters, violated statute); Knight v. Nassau Cty. Civil Serv. Comm’n, 649 F.2d 157, 162 (2d Cir. 1981) (transfer of black employee violated Title VII, though there was no change in salary or benefits, because it “was based on a racial stereotype that blacks work better with blacks and on the premise that Knight’s race was directly related to his ability to do the job”).

The rationale underlying the panel’s analysis, which conflicts with the precedent from these other circuits, is that racial segregation resulting in separate but materially equal work environments is permissible. That rationale has long been repudiated as a legitimate basis for legally sanctioning racial segregation, and this Court should also grant rehearing to address the panel’s reliance on that unsupportable rationale. See, e.g., United States v. Med. Soc’y of S. C., 298 F. Supp. 145, 149, 156 (D.S.C. 1969) (ordering employer “to desegregate facilities” where, “[u]ntil the summer of 1968, racial signs were posted on two doors in [the employer hospital] designating white and Negro employee lounges and toilets”).

Indeed, it is well-settled that intentional racial segregation is an invidious practice and unconstitutional except in very narrow circumstances. See Johnson v. California, 543 U.S. 499, 505-06 (2005) (strict scrutiny applies to all racial classifications; observing that “reasons for strict scrutiny are familiar. Racial classifications raise special fears that they are motivated by an invidious purpose”); Am. Nurses’ Ass’n v. State of Ill., 783 F.2d 716 (7th Cir. 1986) (“[W]hen intentional discrimination is charged under Title VII the inquiry is the same as in an equal protection case.”).

As the Supreme Court explained in Johnson, where it rejected a defendant prison’s argument that strict scrutiny should not apply to its racial segregation of prisoners because they were all “‘equally segregated,’” such an “argument ignores our repeated command that ‘racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally.’ Indeed, we rejected the notion that separate can ever be equal-or ‘neutral’-50 years ago in Brown v. Board of Education . . . and we refuse to resurrect it today.” 543 U.S. at 506 (citations omitted).

CONCLUSION

The Commission urges this Court to rehear this case en banc.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Senior Appellate Attorney

s/Christine J. Back___________________

CHRISTINE J. BACK

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, NE, Room 5SW24L

Washington, DC 20507

(202) 663-4734

christine.back@eeoc.gov

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s/Christine J. Back___________________

CHRISTINE J. BACK

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, NE, Room 5NW14G

Washington, DC 20507

(202) 663-4734

christine.back@eeoc.gov

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I, Christine J. Back, hereby certify that I filed the foregoing brief electronically in PDF format with the Court via the ECF system on this 4th day of August, 2017. I further certify that I served the foregoing brief electronically in PDF format through the ECF system this 4th day of August, 2017, to all counsel of record.

S/Christine J. Back____________________

CHRISTINE J. BACK

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, NE, Room 5NW14G

Washington, DC 20507

(202) 663-4734

christine.back@eeoc.gov

[1] See Oxford English Online Dictionary, https://en.oxforddictionaries.com/ definition/would (last visited 7/24/17); Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/tend (last visited 7/24/17).

[2] The panel misconstrued the Commission’s argument as asserting no such evidence was required, though the Commission expressly argued that the evidence here showed the requisite deprivation. Order at 8. But see EEOC Op-Brf. pp.18, 28; Reply-Brf. pp.13-14, 16-17.