IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _______________________________________________________ Nos. 03-2057 & 03-2058 _______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. PAUL HALL CENTER FOR MARITIME TRAINING AND EDUCATION, and SEAFARERS INTERNATIONAL UNION, Defendants-Appellants. ________________________________________________________________ On Interlocutory Appeal from the United States District Court for the District of Maryland ________________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ________________________________________________________________ ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7018 Washington, DC 20507 (202) 663-4737 TABLE OF CONTENTS STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . .3 District Court Decision . . . . . . . . . . . . . . . . . .5 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . .6 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . .7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 THE DISTRICT COURT PROPERLY DENIED DEFENDANTS' MOTIONS TO DISMISS BECAUSE THE COMPLAINT STATES CLAIMS UNDER § 4 OF THE ADEA AGAINST THE UNION AND THE CENTER.. . . . . . . . . . . . . . . . . . . . . . . . 10 A. A Union Violates Section 4(c) of the ADEA if it Prevents Older Persons from Entering an Apprenticeship Program that Provides Access to Union Membership and Employment Opportunities, and if it Conditions Membership on Completion of an Apprenticeship Program that Bars Older Individuals Because of Their Age. 13 B. An Apprenticeship Program Violates § 4(a) of the ADEA if, as an Employer, it Interferes with the Access of Older Persons to Employment with Other Employers, and it Violates § 4(c) if it Discriminates against Older Persons as an Agent of the Union.18 C. Congress's Failure to Expressly Prohibit Age Discrimination in Apprenticeship Programs Does Not Constitute an Unambiguous Expression of Congressional Intent to Sanction Such Discrimination. . . . . . . . . . . . . . . . . . . . . . 24 D. Because the Commission's Regulation Providing that Age Discrimination in Apprenticeship Programs Is Grounded in a Reasonable Interpretation of the ADEA, the Court Must Defer to the Agency's View. . . . . . . . . . . . . . . . . . . 38 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 52 CERTIFICATE OF COMPLIANCE ADDENDUM CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Association of Mexican-American Educators v. California, 231 F.3d 572 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . .19 Bender v. Suburban Hospital, Inc., 159 F.3d 186 (4th Cir. 1998) . . . 20 Blue Tree Hotels Investment, Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., No. 02-9312, 2004 WL 1119588 (2d Cir. May 20, 2004) . . . . . . . . . . . . . . . . . . . . . .13 California Labor Standards v. Dillingham Construction Co., 519 U.S. 316 (1997) . . . . . . . . . . . . . . . . . . . . . . . .41 Carparts Distributing Center, Inc. v. Automotive Wholesaler's Association, Inc., 37 F.3d 12 (1st Cir. 1994) . . . . . . . . . . . . . . . . .19 Castro v. Chicago Housing Authority, 360 F.3d 721 (7th Cir. 2004) . 25-28 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . .39, 48 Christopher v. Stouder Memorial Hospital, 936 F.2d 870 (6th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . 18-19 Coates v. National Cash Register Co., 433 F. Supp. 655 (W.D. Va. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . .16 Columbia Broadcasting System, Inc. v. FCC, 454 F.2d 1018 (D.C. Cir. 1971) . . . . . . . . . . . . . . . . . . . . . . . . .48 EEOC v. Local 350, Plumbers & Pipefitters, 998 F.2d 641 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . .14 EEOC v. Local 638, Local 28 of the Sheet Metal Workers' International Association, 532 F.2d 821 (2d Cir. 1976) . . . . . . . . . . .14, 16 Franks v. Ross, 313 F.3d 184 (4th Cir. 2002) . . . . . . . . . . . . . . 6 FTC v. Bunte Bros., Inc., 312 U.S. 349 (1941). . . . . . . . . . . . . .34 General Building Contractors Association, Inc. v. Pennsylvania, 458 U.S. 375 (1982) . . . . . . . . . . . . . . . . . . . . . . 22-23 Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . . . . . . . . . . . . . .34 Gulino v. Board of Educ., 236 F. Supp. 2d 314, 332 (S.D.N.Y. 2002) . . 19 Johnson v. EEOC, 1995 WL 374058 (N.D. Ill. June 21, 1995) . . . . .45, 51 Johnson v. New York, 49 F.3d 75 (2d Cir. 1995) . . . . . . . . . . . 16-17 Kelly v. Robinson, 479 U.S. 36 (1986). . . . . . . . . . . . . . . . 33-34 Kimel v. Florida Board of Regents, 528 U.S. 62 (2000) . . . . . . . . .11 Kober v. Westinghouse Electric Corp., 480 F.2d 240 (3d Cir. 1973) . . 35 Lawrence v. Chater, 516 U.S. 163 (1996) . . . . . . . . . . . . . . . .49 Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001) . . . . . . . . . . .48 Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130 (4th Cir. 1993) . . 7, 11 Nicholson v. CPC International Inc., 877 F.2d 221 (3d Cir. 1989) . . . 39 Pardazi v. Cullman Medical Center, 838 F.2d 1155 (11th Cir. 1988) . . 19 Peoples Federal Savings & Loan Association v. CIR, 948 F.2d 289 (6th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . .49, 52 Quinn v. New York State Electric & Gas Corp., 569 F. Supp. 655 (N.D.N.Y. 1983) . . . . . . . . . . . . . . . . . . . . . . . .33, 44 Republican National Committee v. FEC, 76 F.3d 400 (D.C. Cir. 1996) . . 48 Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971) . . . 35 Rust v. Sullivan, 500 U.S. 173 (1991) . . . . . . . . . . . . . . . 49-51 Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973) . 20-21 South Carolina Pub. Serv. Auth. v. FERC, 850 F.2d 788 (D.C. Cir. 1988) .34 Strickland v. Commissioner, Maine Department of Human Servs., 48 F.3d 12 (1st Cir. 1995) . . . . . . . . . . . . . . . . . . . 49 Statutes and Regulations Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. § 2(a), 29 U.S.C. § 621(a). . . . . . . . . . . . . . . . . . . . .30 § 4, 29 U.S.C. § 623 . . . . . . . . . . . . . . . . . . . . .passim § 4(a), 29 U.S.C. § 623(a). . . . . . . . . . . . . . . . . . .passim § 4(b), 29 U.S.C. § 623(b). . . . . . . . . . . . . . . . . . . . .21 § 4(c), 29 U.S.C. § 623(c). . . . . . . . . . . . . . . . . . .passim § 4(f), 29 U.S.C. § 623(f). . . . . . . . . . . . . . . . . . .passim § 7(b), 29 U.S.C. § 626(b). . . . . . . . . . . . . . . . . . . . . 1 § 9, 29 U.S.C. § 628. . . . . . . . . . . . . . . . . . . . . .12, 50 § 12(a), 29 U.S.C. § 631(a) . . . . . . . . . . . . . . . . . . . .13 Pub. L. No. 90-202, 81 Stat. 602 (1967). . . . . . . . . . . 25-26, 30 Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. § 102(a), 42 U.S.C. § 12112(a) . . . . . . . . . . . . . . . . 18-19 National Apprenticeship Act, 29 U.S.C. § 50 et seq.. . . . . . . . . 36-37 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. § 703(a), 42 U.S.C. § 2000e-2(a). . . . . . . . . . . . . . 18-20, 29 § 703(c), 42 U.S.C. § 2000e-2(c). . . . . . . . . . . . . . . . 14-16 § 703(d), 42 U.S.C. § 2000e-2(d). . . . . . . . . . . . 21, 24-25, 37 § 703(e), 42 U.S.C. § 2000e-2(e). . . . . . . . . . . . . . . . . .26 § 703(h), 42 U.S.C. § 2000e-2(h). . . . . . . . . . . . . . . . . .26 Pub. L. No. 88-352, 78 Stat. 241, 253 (1964) . . . . . . . . . . . .26 Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq . . . . . . . . . . . . . . . . . . . . 27-28 28 U.S.C. § 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 § 1343(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 C.F.R. § 1625.21. . . . . . . . . . . . . . . . . . . . . . . . .passim Miscellaneous Age Discrimination in Employment: Hearings on S. 830 and S. 788 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong. (1967) . . . . . . . . . . . .31 113 Cong. Rec. 34,740, 34,751 (1967) . . . . . . . . . . . . . . . . . .31 34 Fed. Reg. 322 (Jan. 9, 1969) . . . . . . . . . . . . . . . . . . . .40 44 Fed. Reg. 68,858 (Nov. 30, 1979) . . . . . . . . . . . . . . . . . .43 45 Fed. Reg. 64,212 (Sept. 29, 1980) . . . . . . . . . . . . . . . . . .43 46 Fed. Reg. 47,724 (Sept. 29, 1981) . . . . . . . . . . . . . . . .40, 43 60 Fed. Reg. 51,762 (Oct. 3, 1995) . . . . . . . . . . . . . . . 45-46, 51 61 Fed. Reg. 15,374 (Apr. 8, 1996) . . . . . . . . . . . . . . . . .passim H. Rep. No. 87-1370 (1962), reprinted in EEOC, Legislative History of Titles VII and XI of Civil Rights Act of 1964, at 2155 (1968). .29 STATEMENT OF JURISDICTION The Equal Employment Opportunity Commission filed this enforcement action under § 7(b) of the Age Discrimination in Employment Act, 29 U.S.C. § 626(b), and the district court therefore had subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 (federal question), 1343(a)(4) (action seeking relief under civil rights statute) and 1345 (U.S. agency as plaintiff). The district court denied the defendants' motions to dismiss on May 1, 2003. Joint Appendix ("JA") 5. On August 4, the court amended that order to certify it under 28 U.S.C. § 1292(b). JA-6. The defendants filed timely petitions for review on August 15, and this Court granted those petitions on September 8. JA-236-37. This Court accordingly has jurisdiction over this interlocutory appeal under § 1292(b). STATEMENT OF THE ISSUES 1. Whether the complaint in this action states a claim under the ADEA by alleging that the defendants prevented older persons from gaining access to the Center's apprenticeship program, thereby depriving them of employment opportunities. 2. Whether the EEOC's regulation providing that apprenticeship programs are subject to the prohibitions of the ADEA is based on a reasonable interpretation of the language of the statute and is therefore entitled to judicial deference. STATEMENT OF THE CASE This is an interlocutory appeal from an order of the district court denying defendants' motions to dismiss the complaint in this action for failure to state a claim. The EEOC brought this action in September 2002. The complaint alleges that the Seafarers International Union (the "Union") is a labor organization subject to the prohibitions of § 4(c) of the ADEA, 29 U.S.C. § 623(c), and that the Paul Hall Center for Maritime Training and Education (the "Center") is an employer subject to the prohibitions of § 4(a) of the act. JA-11. The complaint alleges that the Union and the Center violated the ADEA by preventing older persons from gaining access to the defendants' apprenticeship program on the basis of their age, and that these actions had the effect of depriving those persons of equal employment opportunities on the basis of their age. JA-12-13. The defendants filed separate motions under Fed. R. Civ. P. 12(b)(6) asking the district court to dismiss the complaint for failing to state a claim upon which relief may be granted. JA-3-4, 18-21. The district court denied the motions on May 1, 2003. JA- 5, 173-85. Subsequently, the court granted the defendants' motion to amend the order to include a statement that the order is appropriate for interlocutory review under 28 U.S.C. § 1292(b). JA-6, 231-35. STATEMENT OF THE FACTS In the mid 1960s, the Union and certain shippers having bargaining agreements with the Union established an apprenticeship program for entry-level seamen. JA-26, 44, 96. Seamen in these positions do not need to be licensed by the Coast Guard, and so are referred to as "unlicensed seamen," and the program is called the "unlicensed apprenticeship program." JA-24-25, 113. The program takes eight months. JA-102. Persons who complete the program successfully become members of the Union and are guaranteed jobs as unlicensed seamen. JA-97, 113-14. The Union has characterized the apprenticeship program at the Center as "our" program. See JA-98 ("our program"), 113 ("our entry-level training program (known as the unlicensed apprenticeship program)"). Furthermore, the Union's website has stated that "[t]he school . . . is jointly operated by the union and its contracted companies." JA-115. It is undisputed that, at least until October 2000, there was an official, written policy barring older persons from the apprenticeship program on the basis of their age. JA-106 (Center catalog stating that applicants for the program "must . . . be between the ages of 18 and 25; or up to 30 with military service"), 99 (letter on school letterhead rejecting inquirer's request for information about the program because "to enroll in our program you must be between the ages of 18 and 25"). The Union has been actively involved in recruiting people for the program. JA-113-18 (page on Union's Web site praising the Center and encouraging people to apply for the program), 103 (Web page posted by the State of Alaska instructing people wishing to apply to the Center's program to contact the Union). The Union has published and enforced the program's age restrictions. JA-113-14 (Union Web site stating that the program is "open to men and women ages 18-25 (or up to 30 with military or appropriate vocational experience)"), 98 (letter on Union letterhead rejecting request for information about the program because "to enroll in our program you must be between the ages of 18 & 25"). There is evidence that the Union's and the Center's efforts to enforce the age restriction have intertwined at times. JA-113-14 (Union Web site publishing age restriction in Center's program); compare JA-98 (letter to inquirer on Union letter-head, signed by Bart Rogers, identified as the Union's Manpower Coordinator) with JA-99 (almost identical letter, this time on school letterhead, and signed by Bart Rogers again, this time identified as the school's admissions coordinator, and giving the inquirer the same toll-free number to call as the Union's letter did). District Court Decision The district court denied the defendants' motion to dismiss this action. As the court noted, in arguing that the complaint states a claim under the ADEA, the Commission relied on a regulation promulgated in 1996 providing that "[a]ll apprenticeship programs . . . are subject to the prohibitions of sec. 4 of the [ADEA]," and that age limitations in apprenticeship programs are lawful only if age is a bona fide occupational qualification for the occupation in question. 29 C.F.R. § 1625.21 (2004). According to the court, the "core rationale" underlying the defendants' motions to dismiss was that "29 C.F.R. § 1625.21 is an invalid regulation." JA-181. The defendants argued, the court noted, that the regulation is invalid because: (a) it is contrary to Congress's intent with respect to apprenticeship programs when it enacted the ADEA, and therefore an impermissible attempt to expand the agency's jurisdiction; and (b) it contradicts the regulation that the Department of Labor and the EEOC had adopted earlier. JA-181-82. According to the court, the Commission responded by arguing that: (a) Congress's silence in the ADEA with respect to apprenticeship programs extended to § 4(f)'s list of safe harbors and defenses, and can accordingly be reasonably interpreted as an intent to leave the question of the lawfulness of age discrimination by apprenticeship programs to the EEOC and the courts; and (b) the agency's adoption of the current regulation is based on a reasonable interpretation of the statute and is therefore entitled to deference. JA-182-83. The district court noted that this Court has not yet addressed this issue, that defendants' motions to dismiss raise "an important and difficult question of first impression in this circuit," and that the issues the parties debated "may not be appropriate for resolution at the pleading stage." JA-184 (internal quotations marks deleted). The court accordingly denied the defendants' motions to dismiss and invited the defendants to submit a motion for certification under 28 U.S.C. § 1292(b). JA-184. STANDARD OF REVIEW An appellate court reviews de novo a district court's decision on a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002). The reviewing court applies the same standards that the district court applies in the first instance. Accordingly, this Court, in reviewing the district court's decision in this case, "should accept as true all well- pleaded allegations and should view the complaint in a light most favorable to the plaintiff," and the court's decision to deny the motion should not be reversed "unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). SUMMARY OF ARGUMENT The district court correctly denied the defendants' motions to dismiss because the Commission's complaint states ADEA claims against the Union and the Center. The Commission alleges that the Union and the Center prevent older persons, on the basis of their age, from gaining admission to an apprenticeship program they operate, and that these actions have had the effect of depriving those persons of equal employment opportunities. These allegations clearly state an ADEA claim in light of both the statutory language and the Commission's regulation providing that "apprenticeship programs . . . are subject to the prohibitions of [§ 4 of the ADEA.]" 29 C.F.R. § 1625.21. Notwithstanding defendants' arguments to the contrary, the Commission's regulation is valid and entitled to judicial deference. Defendants challenge the regulation primarily on the ground that, in their view, it is contrary to Congress's intent to insulate age limitations in apprenticeship programs from challenge under the ADEA. This argument fails because the terms of the statute enacted by Congress encompass age discrimination in apprenticeship programs, including the discrimination alleged in this case. Indeed, the district court could have denied the motions to dismiss in this case based on the language of the ADEA, without considering the Commission's regulation. Section 4(c) of the ADEA makes it unlawful for a union to exclude persons from membership because of their age, or to fail or refuse to refer persons for employment because of their age. The Commission alleges that the Union prevents older persons from gaining access to the unlicensed apprenticeship program because of their age. This conduct would be unlawful under the terms of § 4(c) if the evidence shows that older persons are denied membership in the union or referral to employers as a result of the alleged age discrimination in the apprenticeship program. Because it is clear that the Commission could prove a set of facts that would support a claim under this theory, the district court correctly denied the Union's motion to dismiss. Section 4(a) of the ADEA makes it unlawful for an employer to deny persons equal employment opportunities because of their age. Courts have consistently held that this provision makes it unlawful for a covered employer to deny persons employment opportunities with other employers. The complaint in this action alleges that the Center is an employer under the ADEA, and that it has prevented older persons from gaining admission to the apprenticeship program it conducts based on their age. The district court correctly denied the Center's motion to dismiss because the Commission can establish that the Center's alleged conduct violated § 4(a) of the ADEA if it can prove that the Center's actions denied older persons access to employment opportunities with other employers because of their age. Alternatively, the Commission could prove that the Union exercised sufficient control over the Center that the Center was operating as an agent of the Union when it discriminated against older persons on the basis of their age. That would establish a violation by the Center of § 4(c), which prohibits age discrimination by agents of unions as well as by unions themselves. Contrary to defendants' argument, the fact that Congress did not include in the ADEA a provision expressly prohibiting discrimination by apprenticeship programs, as it did in Title VII, does not establish that Congress affirmatively intended to insulate age discrimination in apprenticeship programs from challenge under the ADEA even where, as here, it falls within the prohibitions of discrimination by unions and employers. In view of the fact that the legislative history of the ADEA contains no indication that Congress intended to sanction age discrimination in apprenticeship programs, and that Congress failed to include apprenticeship programs in the list of affirmative defenses and safe harbors in § 4(f), the most plausible inference is that Congress decided to leave the particular questions of when age discrimination in apprenticeship programs is unlawful up to the act's enforcing agency and the courts. Since the ADEA is silent on the lawfulness of age discrimination in apprenticeship programs, and since the Commission's regulation is grounded in a reasonable interpretation of the act, the regulation is entitled to judicial deference. Defendants' contention that the regulation is entitled to no deference because it represents a precipitate about-face by the agency is both legally and factually flawed. Courts have frequently granted deference to regulations adopted by an agency after reconsideration of a prior regulation. The administrative record demonstrates that the Commission's current apprenticeship regulation was adopted after thoughtful and prolonged consideration of the relevant considerations. Because the regulation is based on a reasonable interpretation of the statute, it is entitled to judicial deference. ARGUMENT THE DISTRICT COURT PROPERLY DENIED DEFENDANTS' MOTIONS TO DISMISS BECAUSE THE COMPLAINT STATES CLAIMS UNDER § 4 OF THE ADEA AGAINST THE UNION AND THE CENTER. The Commission alleges in its complaint that the Union and the Center violated the ADEA by preventing persons 40 and older from entering the apprenticeship program they jointly operate. The district court denied defendants' motions to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for failing to state a claim. The only issue on this interlocutory appeal is whether this ruling was correct. This Court should affirm the district court's order "unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief." Mylan Labs., 7 F.3d at 1134. Accordingly, the issue on this appeal is whether the Commission can prove some set of facts which would establish the defendants' liability under the ADEA for the challenged conduct. As the district court noted, the Commission promulgated a regulation in 1996 providing that "[a]ll apprenticeship programs . . . are subject to the prohibitions of sec. 4 of the [ADEA]," and that "[a]ge limitations in apprenticeship programs are valid only if excepted under sec. 4(f)(1) of the [ADEA]." 29 C.F.R. § 1625.21 (1997).<1> It is clear that, if this regulation is valid, the complaint in this action states a claim under the ADEA. The defendants argue, however, that the Commission's regulation is invalid primarily because, according to the defendants, "it contradicts Congress's clear intent to exclude ADEA coverage of apprenticeship . . . ." Defendants' Br. ("Defs.' Br.") at 31-32. As we explain in detail below, neither the terms of the ADEA nor the legislative history manifest a Congressional intent to sanction practices that deprive older individuals of access to union membership and employment opportunities based on their age merely because they occur in the context of an apprenticeship program. On the contrary, the plain terms of § 4 of the ADEA, as enacted by Congress, can be construed to prohibit age discrimination in apprenticeship programs, including the discriminatory conduct alleged in this case. Furthermore, there is nothing in the legislative history of the statute to contradict this reading of the statutory language. And since the conduct alleged here constitutes a violation of the statute, it is unlawful even if the Commission's regulation is not considered. A. A Union Violates Section 4(c) of the ADEA if it Prevents Older Persons from Entering an Apprenticeship Program that Provides Access to Union Membership and Employment Opportunities, and if it Conditions Membership on Completion of an Apprenticeship Program that Bars Older Individuals Because of Their Age. Section 4(c) of the ADEA makes it unlawful for a union to "exclude . . . from its membership . . . any individual because of his age," or to "fail or refuse to refer for employment any individual . . . because of such individual's age." 29 U.S.C. § 623(c)(1)-(2). The ADEA's prohibitions protect "individuals who are at least 40 years of age." 29 U.S.C. § 631(a). The Commission's complaint alleges that the Union has prevented older persons from entering the apprenticeship program because of their age. JA-12. This conduct would be unlawful under the terms of § 4(c) if the evidence shows that older persons are denied membership in the union or referral to employers as a result of the alleged age discrimination in the apprenticeship program. Because it is clear that the Commission could prove a set of facts that would support a claim under this theory, the district court correctly denied the Union's motion to dismiss. Indeed, although it is unnecessary for a plaintiff to provide evidence to withstand a motion to dismiss, Blue Tree Hotels Inv., Ltd. v. Starwood Hotels & Resorts Worldwide, Inc. No. 02-9312, 2004 WL 1119588, at *3 (2d Cir. May 20, 2004) (rule 12(b)(6) motion should generally be decided on the basis of the allegations in plaintiff's complaint), the evidence the Commission submitted is relevant to the question whether a set of facts exists that could support the agency's claims and entitle it to relief. The record in this case already contains substantial evidence indicating that the Union in fact denied older persons access to membership and employment opportunities by means of the age discrimination in the apprenticeship program. First, there is evidence that the apprenticeship program represents an important means of becoming a member of the Union and obtaining referrals to the jobs controlled by the Union. Accordingly, if the Commission proves that the Union prevented persons 40 and over from entering the apprenticeship program because of their age, the agency will establish a violation of § 4(c) since the Union would thereby have denied those persons, because of their age, access to Union membership and job referrals on the same basis as younger persons. See EEOC v. Local 350, Plumbers & Pipefitters, 998 F.2d 641, 646 (9th Cir. 1992) (union violated § 4(c) of the ADEA if it discriminated in referring members for work on the basis of a factor "very closely related to age"); cf. EEOC v. Local 638, Local 28 of the Sheet Metal Workers' Int'l Ass'n, 532 F.2d 821, 825 (2d Cir. 1976) (union violated § 703(c) of Title VII by excluding minority persons from membership in various ways, including by discriminating against minority persons seeking to enter the relevant apprenticeship program).<2> The complaint alleges that the Union barred and discouraged older persons from entering the apprenticeship program. In addition, there is evidence in the record that, irrespective of the fact that the Union and the Center may have been separate legal entities on paper, the Union exercised considerable control over the operation of the Center and used this authority at times to prevent or discourage older persons from gaining access to the apprenticeship program. The Union has stated on its Web site that the school "is jointly operated by the union and its contracted companies." JA-115. The Union has referred to the program as "our" program and stated that "we" – the Union – guarantee work to persons who complete the program. JA 113. At least one Web site advertising the program instructed persons wishing to apply to the program to contact the Union. JA-103. The Union's website praises the apprenticeship program and encourages people to apply, but it has at times also included an explicit age restriction for applicants to the program. JA-114. At least one letter refusing to send application materials for the program because of the applicant's age was sent out on Union-letterhead stationery and signed by a person who was apparently a Union official. JA-98. Barring and dissuading older persons from entering the apprenticeship program is no different from barring and dissuading them from joining the union. The practices are equivalent because the apprenticeship program is an important entryway into the Union, and the Union violated § 4(c) if, as alleged, it recruited and encouraged younger people to go through the door, but prevented older people from doing so. See Local 638, 532 F.2d at 825 (since the primary way new members entered the union was by completing the apprenticeship program, the union violated § 703(c) when it discriminated on the basis of race and national origin in admitting people into the apprenticeship program); cf. Coates v. National Cash Register Co., 433 F. Supp. 655, 661 (W.D. Va. 1977) (defendant employer violated § 4(a) by denying plaintiffs, on the basis of their age, the training they needed to avoid being laid off). Furthermore, without regard to the question of the Union's control of the Center's practices, the Union could be held liable under the terms of § 4(c) insofar as it conditioned membership and access to referrals on a requirement – completion of the apprenticeship program – that was itself conditioned on age. In Johnson v. New York, 49 F.3d 75 (2d Cir. 1995), a state employee was terminated because of his inability to meet the requirement that he maintain active membership in the air national guard. The guard had discharged him when he reached age 60, based upon its policy mandating retirement at that age. The court held that, by firing the plaintiff for that reason, the state "implement[ed] an age-based criterion." 49 F.3d at 80. The court concluded that "there can be no doubt that Johnson's age ‘actually played a role . . . and had a determinative influence' on the decision to terminate his employment," that "the employee's ability to maintain the required status is conditioned upon age," and that therefore his termination based upon his failure to maintain guard membership "was in violation of the ADEA as a matter of law." Id. (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)) (alterations in original). Similarly here, if the Commission proves that the Union denies membership and referrals to older persons because they have not completed the apprenticeship program that they were excluded from because of their age, it will establish that the Union acted because of their age and, therefore, violated § 4(c). B. An Apprenticeship Program Violates § 4(a) of the ADEA if, as an Employer, it Interferes with the Access of Older Persons to Employment with Other Employers, and it Violates § 4(c) if it Discriminates against Older Persons as an Agent of the Union. Section 4(a)(1) of the ADEA makes it unlawful for an employer to "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 complaint in this action alleges that the Center is an employer under the ADEA, and that it has prevented older persons from gaining admission to the apprenticeship program it conducts based on their age. The district court correctly denied the Center's motion to dismiss because the Commission can establish that the Center's alleged conduct violated § 4(a) of the ADEA if it can prove that the Center's actions denied older persons access to employment opportunities with other employers because of their age. It is undisputed, for purposes of this appeal, that the Center is an employer subject to the prohibitions of § 4(a) of the ADEA. JA 10-11. Courts construing the similar provisions of § 703(a) of Title VII and § 102(a) of the Americans with Disabilities Act, 42 U.S.C. § 12112(a), have consistently held that an employer subject to the act violates those provisions if it "significantly affects access of any individual to employment opportunities" on a prohibited basis, even if those employment opportunities are with other employers. Christopher v. Stouder Mem'l Hosp., 936 F.2d 870, 874-75 (6th Cir. 1991) ("Title VII does not require a formal employment relationship between the plaintiff and the defendant. Rather, a plaintiff is protected if the defendant is one who significantly affects access of any individual to employment opportunities.") (internal quotation marks deleted); see also Association of Mexican-American Educators v. California, 231 F.3d 572, 579-82 (9th Cir. 2000) (en banc) (state licensing board was subject to liability under § 703(a) if it adversely affected teachers' employment opportunities with local school boards because of their national origin); Pardazi v. Cullman Med. Ctr., 838 F.2d 1155, 1156 (11th Cir. 1988) (§ 703(a)(1) prohibits defendant hospital from interfering with plaintiff physician's employment contract with another employer); Gulino v. Board of Educ., 236 F. Supp. 2d 314, 332 (S.D.N.Y. 2002) ("It is well-settled that an entity that is not a direct employer of a Title VII plaintiff nevertheless may be liable if it interferes with or ‘significantly affects access of . . . [plaintiffs] to employment opportunities.'") (ellipsis and brackets in original; citation deleted); cf. Carparts Distrib. Ctr., Inc. v. Automotive Wholesaler's Ass'n, Inc., 37 F.3d 12, 16-18 (1st Cir. 1994) (the defendants – an employers association and its health plan – could be liable under § 102(a) of the ADA for denying plaintiff health benefits on the basis of his disability, even though neither entity was his employer). The leading case on this issue is Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973). The plaintiff in Sibley was a male private-duty nurse. Patients in Sibley Hospital who wanted to hire a private-duty nurse notified the hospital, and the hospital in turn notified a nursing registry, which sent a nurse to the hospital for the patient. Wilson alleged that the hospital interfered with his employment opportunities by preventing him from being referred to female patients. The Sibley court held that the plaintiff had stated a claim under § 703(a)(1). The court noted that § 703(a) is not directed solely at employers and how they treat their own employees or applicants. Rather, § 703 regulates the activity also of unions and employment agencies, because they, like employers, also control people's "access to the job market." Id. at 1341. Pointing to the fact that § 703(a)(1) bars employers from discriminating against "any individual," and that any "person aggrieved" may file a charge, the Sibley court stated: To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual's employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited. Id.<3> In light of this precedent, it is reasonable to construe § 4(a)(1) of the ADEA to prohibit an employer like the Center from interfering with an individual's access to employment with others because of his age. As in Title VII, Congress in enacting § 4 of the ADEA did not limit itself to direct employer-employee relationships, but reached out to cover several of the other main types of entities that control job-seekers' access to employment. Since unions control access to many jobs, § 4(c) prohibits unions from excluding or expelling persons from membership on the basis of their age, from failing or refusing to refer them for work on the basis of their age, and from taking any of a number of other actions that would tend to deprive them of employment opportunities or limit those opportunities. 29 U.S.C. § 623(c). Similarly, since many people find employment by using employment agencies, § 4(b) prohibits employment agencies from discriminating against "any individual" because of his or her age. 29 U.S.C. § 623(b).<4> Finally, as noted supra, § 4(a) prohibits an employer not only from discriminating against its own employees or applicants, but also from discriminating against "any individual." § 4(a)(1) (emphasis added). Accordingly, if the Commission proves that, by denying older individuals entry into its apprenticeship program, the Center denies them employment opportunities with other employers, it will establish a violation of § 4(a) of the ADEA. Besides being liable as an employer under § 4(a) of the act, the Center may well also be liable under § 4(c) as an agent of the Union. Section 4(c) prohibits age discrimination not only by unions, but also by agents of unions. 29 U.S.C. § 623(c). The Supreme Court held in General Building Contractors Association, Inc. v. Pennsylvania, 458 U.S. 375 (1982), that an apprenticeship program is not the agent of an employers association if the only connections between the two entities are that the employers association appoints half of the apprenticeship program's trustees and funds the program's operations, especially where there is no evidence that the employers association even knew about the program's discriminatory practices. Id. at 391-95. But Building Contractors did not hold that an apprenticeship program could never be the agent of an employer or a union; it held only that the facts that the plaintiffs established in that case, "standing alone, are inadequate." Id. at 305.<5> The issue here is whether any set of facts exists that would support a finding that the Center functioned as the Union's agent. In spite of the fact that the Center and the Union may well have been independent entities on paper, the Commission has submitted evidence showing that the Union repeatedly referred to the apprenticeship program as "our" program, and stated that the school "is jointly operated by the union and its contracted companies." JA-98, 113, 115. In addition, the Union actively recruited applicants for the program and published and enforced the program's age restriction. JA-98, 113-14. Additional discovery may reveal more evidence showing that this particular union had a right to control, or did control, this particular apprenticeship program. Since one can conceive of a set of facts supporting a finding that the Center was the Union's agent, the district court's ruling was proper on this ground as well. C. Congress's Failure to Expressly Prohibit Age Discrimination in Apprenticeship Programs Does Not Constitute an Unambiguous Expression of Congressional Intent to Sanction Such Discrimination. Defendants argue that the EEOC regulation providing that the ADEA prohibits age discrimination in apprenticeship programs is invalid primarily because, according to the defendants, it is inconsistent with the "‘unambiguously expressed intent of Congress.'" Defs.' Br. at 31 (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)). In making this argument, however, the defendants make no effort to analyze the terms of the provisions Congress actually included in the ADEA to see whether they can reasonably be construed to cover discrimination in apprenticeship programs. Instead, the defendants base their statutory argument principally on Congress's failure to include a provision expressly prohibiting discrimination in apprenticeship programs – as it had done in Title VII. Defendants argue that the absence in the ADEA of a counterpart to § 703(d) of Title VII, 42 U.S.C. § 2000e-2(d), conclusively demonstrates Congress's intent to permit apprenticeship programs to discriminate on the basis of age if they desire to do so. Defs.' Br. at 8-11. This is much too thin a reed to support defendants' argument. Arguments from silence are inherently less reliable than arguments grounded on the statutory text. Castro v. Chicago Hous. Auth., 360 F.3d 721, 729 (7th Cir. 2004) ("inferences from congressional silence are treacherous") (case rejected such an argument from silence, and is discussed infra). That is particularly true where, as here, Congress left us with three relevant silences, and defendants base their argument on only one of the three. First, as defendants stress, the ADEA contains no counterpart to § 703(d). Second, however, the legislative history of the ADEA is totally silent about why the statute contains no such subsection. If, as defendants argue, Congress omitted a provision prohibiting discrimination in apprenticeship programs because it believed that age limits in such programs should not be altered, one would expect some indication of that in the legislative history. Defendants, however, point to nothing in the legislative history indicating such an intent. Nor has the Commission located such a passage. More importantly, there is a third significant silence, and this one is in the statutory text. Section 4(f) of the 1967 act listed five defenses or safe harbors in three subsections, situations where age discrimination "shall not be unlawful." § 4(f), Pub. L. No. 90-202, 81 Stat. 602, 603-04 (1967). Section 4(f)(1) authorized employers, employment agencies and unions to discriminate on the basis of age where age is a bona fide occupational qualification or where "the differentiation is based on reasonable factors other than age." Section 4(f)(2) authorized those entities to observe the terms of a bona fide seniority system or a bona fide employee benefit plan. Section 4(f)(3) authorized them to discharge or discipline an individual "for good cause." Three of these five defenses or safe harbors were new in the ADEA: reasonable factors other than age, bona fide employee benefit plans, and discharge or discipline for good cause.<6> But even though Congress added new defenses and safe harbors in the ADEA, it did not add a defense or safe harbor for age discrimination in apprenticeship programs. If Congress was determined, as defendants argue, to authorize age discrimination in apprenticeship programs, Congress could easily have included a provision authorizing it, but it did not. The logical conclusion to draw from these three significant silences is that Congress either had no specific intent with respect to apprenticeship programs, or intended to leave to the enforcing agency and to the courts the particular questions of when age discrimination is unlawful in apprenticeship programs. The Seventh Circuit reached a similar conclusion in interpreting the Congressional silence at issue in Castro. The Chicago Housing Authority ("CHA") had operated its own police force for ten years, but then decided, for financial reasons, to disband it. It laid off all its employees in that department, and the employees sued, alleging a violation of the Worker Adjustment and Retraining Notification (WARN) Act, 29 U.S.C. § 2101 et seq. The WARN Act applies to "employers" and defines an "employer" as "any business enterprise" employing a certain number of employees. 29 U.S.C. § 2101(a)(1). Neither the statute nor the legislative history said anything about whether the term "business enterprise" included quasi-public entities that functioned in some respects as business enterprises. The Department of Labor had adopted a regulation saying that certain quasi-public entities were covered. Castro, 360 F.3d at 724, 726-27. Appealing from a judgment for the plaintiffs, the CHA challenged the validity of the DOL regulation. Applying Chevron's "two-step inquiry," see infra at p. 39, the Castro court focused first on whether Congress had spoken on the issue of whether quasi-public entities were subject to the act. Castro, 360 F.3d at 727 (citing Chevron, 467 U.S. at 842-43). As in this case, the WARN statute and its legislative history were totally silent on the issue of whether quasi-public entities like the CHA were covered employers under the act. The CHA pointed to the fact that Congress had passed other statutes that explicitly regulated quasi-public entities. Since Congress knew how to include quasi- public entities expressly when it wished to do so, the CHA contended, Congress's failure to include quasi-public entities explicitly in the WARN Act demonstrated Congress's intent that those entities should not be subject to the act. Castro, 360 F.3d at 728 (the CHA argued that the court "should infer from Congress's silence that it did not intend to cover quasi-public entities"). The court of appeals observed that Congress had also passed statutes that specifically exempted quasi-public entities. The WARN Act, however, did not mention quasi-public entities at all, either to say they were subject to the act or to say they were exempt. The court accordingly rejected the CHA's argument from silence and upheld the DOL regulation: Thus, all we can deem from congressional silence on the issue is just that – that Congress was silent on the issue. As we recently noted, "inferences from congressional silence are treacherous; . . . even deliberate omissions are often subject to alternative interpretations . . . ." Id. at 728-29 (citation omitted). As with the "congressional silence" in the WARN Act about quasi-public entities, Congress was silent with respect to apprenticeship programs in the ADEA and in its legislative history. This Court should not infer from that silence that Congress intended to exempt apprenticeship programs from the ADEA. Rather, this Court should conclude that Congress either had no specific intent with respect to apprenticeship programs or intended to leave the issue to the enforcing agency and the courts. Defendants argue that the fact that Congress felt it was necessary to include an explicit prohibition of discrimination by apprenticeship programs in Title VII conclusively demonstrates that Congress believed the prohibitions of discrimination by employers and unions were inadequate to reach discrimination in apprenticeship programs. Defs.' Br. at 11. This does not follow. Congress could just as easily have believed that, while the prohibitions in § 703(a) and (c) could be interpreted to prohibit all or most discrimination in apprenticeship programs, the courts or the EEOC might interpret those provisions more narrowly, and Congress in 1964 was unwilling to take a chance that any discrimination in apprenticeship programs would be permitted. The exclusion of women and minorities from apprenticeship and other training programs was viewed as central to the problem addressed in Title VII. Title VII's proponents focused on the fact that minorities were being largely or entirely excluded from certain trades in certain areas because unions were excluding them from membership and apprenticeship programs were rejecting them as applicants because of their race or national origin. See, e.g., H. Rep. No. 87-1370 at 4 (1962), reprinted in EEOC, Legislative History of Titles VII and XI of Civil Rights Act of 1964, at 2155, 2158 (1968) ("Leg. Hist.") (report of task force appointed by Secretary of Labor to study discrimination in apprenticeship programs "shows that we need two things – and need them soon: First, a vast expansion of apprenticeship and training programs, and, second, removal of all arbitrary barriers to entry into such programs"). Discrimination in apprenticeship and other training programs was not a central focus of the ADEA. The proponents of the ADEA focused more on the tendency of employers to discharge older persons on the basis of their age, or to refuse to hire older job applicants, even if qualified. See, e.g., Pub. L. No. 90-202, § 2(a), 81 Stat. 602, 602 (1967) ("The Congress hereby finds and declares that – (1) . . . older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs . . . ."); see also Defs.' Br. at 14, n.7, ¶ 1. This does not mean, however, as defendants suggest, that Congress was unconcerned with age discrimination in training programs. While defendants point to several passages from the floor debates emphasizing the problem faced by older workers who are already qualified for the positions they seek (Defs.' Br. at 14 & n.7), they fail to mention the references in the legislative history of the ADEA to the problems faced by older workers who need training. Senator Dwyer protested that older persons were "victims of the myth that holds they are . . . too hard to retrain," and Rep. Parks complained that older persons were being denied employment opportunities despite the fact that they are "educable [and] retrainable." 113 Cong. Rec. 34,751, 34,740 (1967). Secretary of Labor Wirtz emphasized that older persons often performed better than younger ones in training programs, particularly in longer-term programs. Age Discrimination in Employment: Hearings on S. 830 and S. 788 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong. 38 (1967). Accordingly, Congress's failure to include a specific prohibition on age discrimination by apprenticeship programs, does not conclusively establish, as defendants argue, that Congress affirmatively intended to insulate age discrimination in such programs from challenge under the ADEA. Rather, it may mean only that Congress was content to permit the courts and the Department of Labor to determine to what extent discrimination in apprenticeship programs was prohibited by the provisions included in the statute. Defendants also point out that, when Congress was considering the ADEA in 1967, it had before it two documents created by the Department of Labor summarizing state laws prohibiting age discrimination in employment. According to the DOL documents, of the 19 states that had laws broadly prohibiting age discrimination by employers and unions, four had provisions explicitly exempting apprenticeship programs, and three had provisions exempting some apprenticeship programs but not others. JA-81, 95.<7> There is nothing in the legislative history of the ADEA indicating what, if anything, Congress drew from this information concerning state laws. However, insofar as Congress considered the states' approach to age discrimination legislation as reflected in the DOL documents, it supports the view that Congress did not believe that it was sanctioning age discrimination in apprenticeship programs by enacting a statute which is silent on the point. The summary prepared by DOL indicates that states that wished to sanction age discrimination in apprenticeship programs did so by enacting a broad prohibition of discrimination by employers and unions and then adding an exemption for some or all discrimination in apprenticeship programs. The most logical conclusion for Congress to have drawn from the states' example was that if Congress wanted to make clear that apprenticeship programs would be permitted to discriminate on the basis of age, it should include a specific provision to that effect in the text of the statute. Congress could have exempted age discrimination in apprenticeship programs in the same way it exempted age discrimination in certain other areas. See, e.g., 29 U.S.C. § 623(f)(1) (bona fide occupational qualifications and bona fide employee benefit plans). Congress's failure to do that suggests that Congress meant to leave this issue to the enforcing agency and the courts. See Quinn v. New York State Elec. & Gas Corp., 569 F. Supp. 655, 662 (N.D.N.Y. 1983) ("The absence of an exemption for apprenticeship programs in the federal legislation, despite congressional awareness of such provision in state laws, is indicative of an intent to not except such programs from the broad proscriptions of the statute."). Defendants argue that "considerations of federalism" support their interpretation of the statute. Defs.' Br. at 15. Defendants invoke "federalism" in an argument heading and in the first sentence of the ensuing section of their argument, but never explain how the doctrine of federalism is implicated by the EEOC's regulation on age discrimination in apprenticeship programs. In fact, the regulation raises no federalism concerns. Defendants cite only three cases that turn on questions of federalism, and none of them involves a factual scenario remotely like the one at issue here. Defs.' Br. at 26 (citing Kelly v. Robinson, 479 U.S. 36 (1986) (in bankruptcy proceedings, federal court may not discharge state criminal restitution orders imposed as condition of probation); FTC v. Bunte Bros., Inc., 312 U.S. 349 (1941) (FTC lacks power under § 5 of FTC Act to regulate intrastate commerce); South Carolina Pub. Serv. Auth. v. FERC, 850 F.2d 788 (D.C. Cir. 1988) (FERC lacks power to condition power-plant license renewal on rule displacing state tort law)). Interpreting the ADEA to bar age discrimination in at least some apprenticeship programs does not raise federalism concerns. This is not a case where Congress was trying to dictate to the states how they should, for example, "prescribe the qualifications of their own officers." Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). When Congress is not treading on the states' core powers as sovereign entities, the normal rule is that Congress is free, by virtue of the Supremacy Clause, to "legislate in areas traditionally regulated by the States." Id. Before 1964, for example, the arena of employment discrimination had been left principally to the states. Congress changed that by passing Title VII, which did not pre-empt the field, but applied to private employers in each of the states. Similarly, when Congress enacted the ADEA in 1967, it was concededly forbidding something it had not forbidden before. Defendants fail, however, to demonstrate that the act's prohibition of age discrimination in apprenticeship programs "upset[s] the usual constitutional balance of federal and state powers" – especially where defendants do not challenge the act's more wide-sweeping prohibitions against age discrimination by employers, employment agencies and unions. Id. Defendants argue that the ADEA should not be construed to apply to apprenticeship programs because Congress would not have trespassed on the states' traditional right to regulate apprenticeship programs without doing so explicitly. Defs.' Br. at 16-22, 26-29. However, when Congress forbade employment discrimination on the basis of sex in Title VII, that prohibition conflicted directly with many state "protective laws" that prohibited employers from treating women the same as men by, among other things, limiting the hours that women could work. Accordingly, in enacting Title VII, Congress prohibited some employment practices that state laws required. Yet, even though Title VII did not specifically address state protective laws, courts consistently held that, under the Supremacy Clause, Title VII's ban on sex discrimination displaced the state protective laws. See, e.g., Rosenfeld v. Southern Pac. Co., 444 F.2d 1219, 1225-27 (9th Cir. 1971) (Title VII invalidated state laws imposing restrictions on hours worked and weight lifted); Kober v. Westinghouse Elec. Corp., 480 F.2d 240, 245-46 (3d Cir. 1973) (employer violated Title VII by denying plaintiff promotion in reliance on state law limiting hours worked). In enacting a statute which prohibits age discrimination by apprenticeship programs, Congress did not prohibit employers from doing something that states had required. It only prohibited something that (some) states had permitted. If Congress intended in enacting Title VII to prohibit practices required by state laws, without expressly addressing those laws, surely it could have intended in enacting the ADEA to prohibit practices that were merely permitted by some state laws. Defendants devote several pages of their brief to a history of apprenticeship programs in the United States leading up to Congress's enactment in 1937 of the National Apprenticeship Act ("NAA"), 29 U.S.C. § 50 et seq. See Defs.' Br. at 16-19. Defendants make two points: first, that in enacting the NAA, Congress "preserved the states' traditional role in regulating and overseeing apprenticeship," id. at 18; and, secondly, that Congress in 1937 "continued to envision apprenticeship as an educational benefit for youth." Id. at 19. However, defendants fail to make any connection between this history and Congress's intent in enacting the ADEA in 1967. Most notably, defendants' premise that Congress was influenced by these historical considerations is based on sheer speculation. As noted supra at pp. 24-25, the legislative history of the ADEA is bereft of any discussion of the Act's impact on apprenticeship programs. Furthermore, even if Congress did consider the historical role of apprenticeship programs, defendants fail to explain convincingly why that would have led Congress to sanction arbitrary age discrimination in such programs. Although the materials summarized in the defendants' brief reflect that apprenticeship was historically limited to the young, defendants cite to nothing suggesting that age limits are an essential element of apprenticeship programs. Indeed, it would be difficult for the defendants to make such an argument, since they informed the district court in this case that they had voluntarily eliminated the age limitation in their apprenticeship program even before this lawsuit was filed. Center's Motion to Dismiss, Docket Entry 3, at 3; cf. JA-175- 76.<8> Finally, defendants' argue that, because the Department of Labor had published a regulation under the NAA allowing "age requirements" in apprenticeship programs, the Department's intent in drafting the ADEA as it did – with no counterpart to § 703(d) – was clearly to allow age discrimination in apprenticeship programs. Defs.' Br. at 23-25 & n.23 (citing 29 C.F.R. § 30.4(a)(1)(i)). In response, we would note first that it is the intent of Congress that is at issue, not the intent of the executive agency that drafted the bill that became the ADEA. In the absence of any indication that Congress was influenced by the regulation in question – and there is none – the fact that the original, DOL drafters may have had a particular intent is beside the point. Furthermore, the NAA regulation in question allowed apprenticeship programs to use age requirements only to determine the "comparative qualifications" of the applicants, and therefore arguably authorized only those age restrictions that enforced bona fide occupational qualifications, as the ADEA itself does. See 29 U.S.C. § 623(f)(1). Finally, defendants' speculation about DOL's intent in omitting an explicit prohibition of age discrimination in apprenticeship programs from the draft bill it submitted to Congress has the same flaw as the argument addressed supra at pp. 25-26 with respect to Congress's intent: had DOL wanted to authorize apprenticeship programs to discriminate on the basis of age, it could easily have added such programs to the safe harbors listed in § 4(f), but it did not. D. Because the Commission's Regulation Providing that Age Discrimination in Apprenticeship Programs Is Grounded in a Reasonable Interpretation of the ADEA, the Court Must Defer to the Agency's View. In 1996, after notice and comment, the Commission promulgated a regulation stating that the ADEA's prohibitions against age discrimination apply to apprenticeship programs. 61 Fed. Reg. 15,374, 15,378 (Apr. 8, 1996), codified at 29 C.F.R. § 1625.21 (1967).<9> The defendants contend that this regulation is invalid because it contradicts Congress's clear intent in enacting the ADEA and that it is entitled to no deference because it represents a recent and radical reversal of a long-held contrary position. When an agency regulation is challenged, Chevron dictates a two-step inquiry. The first question is "whether Congress has directly spoken to the precise question at issue." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). If Congress has not spoken to the issue, however, a court is not free "to impose its own construction on the statute." Id. at 843. "[I]f the statute is silent or ambiguous with respect to the specific issue," the second step requires the court to ask "whether the agency's answer is based on a permissible construction of the statute." Id. The statute is silent with respect to the ADEA's coverage of apprenticeship programs. And, as we have demonstrated, the EEOC's regulation, which states that the prohibitions against age discrimination apply to apprenticeship programs, is based on a permissible construction of the act. Defendants also argue that this Court should accord no deference to the EEOC's regulation because it represents a recent reversal of an earlier regulation. Defs.' Br. at 33-34. In advancing that argument, defendants stress the following aspects of the history of the relevant regulations: (a) the Department of Labor adopted a regulation in 1969 stating that "[a]ge limitations for entry into bona fide apprenticeship programs were not intended to be affected by the Act," and that "the prohibitions contained in the Act will not be applied to bona fide apprenticeship programs," 34 Fed. Reg. 322, 323 (Jan. 9, 1969), codified at 29 C.F.R. § 860.106 (1970); (b) in 1981, two years after responsibility for enforcing the ADEA passed to the EEOC, the Commission issued a regulation that reproduced the earlier DOL regulation verbatim, 46 Fed. Reg. 47,724, 47,726 (Sept. 29, 1981), codified at 29 C.F.R. § 1625.13 (1982); and (c) it was not until 1996 that the Commission rescinded its initial regulation and adopted the current regulation, which states that "[a]ll apprenticeship programs . . . are subject to the prohibitions of sec. 4 of the [ADEA]," 61 Fed. Reg. at 15,378, codified at 29 C.F.R. § 1625.21 (1997). This argument is based on faulty factual and legal foundations. First, although defendants argue that DOL's original regulation, which was initially adopted by the EEOC, "is entitled to more respect" than the EEOC's current regulation, that regulation was not consistent with defendants' interpretation of the statute. It was never DOL's – or the EEOC's – position that all apprenticeship programs are exempted from the prohibitions of the ADEA, as the defendants argue. The regulation in force from 1969 through 1996 exempted only bona fide apprenticeship programs, i.e., those that had satisfied DOL's requirements and registered with the Department. Since only about half of all apprentices are in registered apprenticeship programs, California Labor Standards v. Dillingham Constr. Co., 519 U.S. 316, 333 n.11 (1997), the DOL and the EEOC viewed many apprenticeship programs as subject to the act. See JA-132 (testimony of EEOC Chair Thomas) ("We emphasize that the Commission has determined that only certain apprenticeship programs are outside the scope of the ADEA . . . . Apprenticeship programs that do not meet all of the standards in 29 C.F.R. [§§ 521.2-521.3] are fully subject to the ADEA."). This interpretation cannot be reconciled with the defendants' argument that Congress unambiguously indicated its intent to protect age limits in apprenticeship programs from challenge under the ADEA. Indeed, defendants devote several pages of their brief to arguing that the prior regulations of the DOL and the EEOC are also invalid insofar as they subjected some apprenticeship programs to ADEA liability. Defs.' Br. at 41-45. Accordingly, defendants are not arguing that the Court should reject the Commission's current regulation in favor of an earlier administrative interpretation, but rather that the Court should reject both the current and the former regulation in favor of the defendants' view that all age discrimination in apprenticeship programs should be lawful.<10> Furthermore, contrary to the implication in the defendants' brief, the 1996 regulation was not a sudden and precipitate action on the Commission's part. Defendants acknowledge in their brief that there was some "internal debate" at the EEOC before the agency issued its initial regulation in 1981. Defs.' Br. at 12. The "internal debate" was not just at the staff level. Rather, the Commission itself has gone back and forth on this issue several times since it became (in 1979) the agency responsible for enforcing the ADEA. The Commission first proposed a set of ADEA regulations in November 1979. Those proposed regulations contained no provision addressing apprenticeship programs, because the agency had not yet completed its review of that issue. 44 Fed. Reg. 68,858, 68,860-62 (Nov. 30, 1979); see also 45 Fed. Reg. 64,212, 64,213 (Sept. 29, 1980). In September 1980 the Commission announced its intent to rescind the DOL's regulation and adopt in its place a regulation identical to the EEOC's current regulation. 45 Fed. Reg. 64,212. The Commission justified its proposed action by stating its belief that: (a) nothing in the statute or the legislative history supported the DOL regulation; and (b) the DOL regulation "runs counter to" and "defeats the purposes of the Act." Id. at 64,213. The EEOC issued its "final interpretation" of the ADEA in September 1981. 46 Fed. Reg. 47,724 (Sept. 29, 1981). The motion to adopt the proposed regulation covering apprenticeship programs failed on a 2-2 vote. 61 Fed. Reg. at 15,375. Without addressing any of the arguments pro and con, the Commission stated that after reviewing the public comments it had received on its proposed regulation, the agency "has been persuaded to republish the existing interpretation without modification." 46 Fed. Reg. at 47,726. About two years later, in August 1983, a district court in the Second Circuit, in a case alleging age discrimination by an apprenticeship program, declared that the Commission regulation exempting apprenticeship programs "finds no support in, and is contrary to, the language of the ADEA," and that "[a] review of the legislative history of the ADEA also indicates that the apprenticeship exemption is contrary to Congressional intent." Quinn, 569 F. Supp. at 661. The following year the EEOC again took steps to replace the regulation exempting apprenticeship programs with a regulation stating that the ADEA covers apprenticeship programs. In June 1984, the Commission voted 4-0 to send this proposal to the Office of Management and Budget for review. 61 Fed. Reg. at 15,375. There were only four seats filled on the EEOC when this vote was taken, and this was accordingly a unanimous vote of the Commission, including then EEOC Chair, and now Associate Justice, Clarence Thomas. This proposal was never published in the Federal Register, however. Instead, the Commission announced in July 1987 that it had decided by a 3-1 vote to terminate the proposed regulatory action and to reaffirm the 1981 regulation. Id. In October 1994, three women over 40 years old filed a class action against the Commission challenging the agency's regulation sanctioning age discrimination by apprenticeship programs. Each plaintiff had been interested in entering an apprenticeship program for a skilled trade, but been told she was too old. The plaintiffs argued that the Commission's regulation injured them by allowing apprenticeship programs to discriminate on the basis of age. The Commission moved to dismiss and for summary judgment, and in June 1995 the district court denied both motions. Johnson v. EEOC, No. 94-6117, 1995 WL 374058 (N.D. Ill. June 21, 1995). The court noted that the regulation provided discriminatory apprenticeship programs with a Portal- to-Portal defense, allowing the programs to avoid liability by showing they acted in reliance on the agency's regulation. Id. at *5-6. For this and other reasons the court ruled: The EEOC's exemption provides important protections for programs that discriminate on the basis of age. . . . In the absence of the EEOC exemption, apprenticeship programs would fall within the explicit language of the ADEA and be exposed to possible liability. Id. at *6-7. Four months later, in October 1995, the Commission again proposed rescinding the old regulation and replacing it with the current one. 60 Fed. Reg. 51,762 (Oct. 3, 1995). The EEOC stated that both the ADEA and its legislative history were silent on the question of apprenticeship programs, and noted its belief that the agency was therefore free to take either position on the question. Id. at 51,763; see also 61 Fed. Reg. at 15,375 ("The statute and its history are silent regarding apprenticeship programs and neither compel nor preclude their coverage."). The Commission explained its interest in changing the regulation by pointing out that substantial changes in technology had left many older persons unqualified for the available jobs and in need of apprentice-type training, and that racial and ethnic minorities and women were still significantly underrepresented in the crafts. 60 Fed. Reg. at 51,763. The Commission received and reviewed many public comments, a "clear majority" of which "favor[ed] rescinding the current interpretation and promulgating the proposed rule." 61 Fed. Reg. at 15,375. In April 1996, the Commission accordingly decided that a rule covering apprenticeship programs will better advance the ADEA's objectives of promoting the employment of older persons based on their ability rather than age and prohibiting arbitrary age discrimination in employment. Id. at 15,374. One commenter had argued that Congress "never intended to cover apprenticeship programs under the ADEA, and that the Commission is without authority to change its existing interpretation on coverage of apprenticeship programs." Id. at 15,375. The EEOC rejected this argument, stating that [t]he omission by Congress of specific language covering apprenticeship programs is not dispositive because the Act plainly covers employers and unions. Either separately or in combination these entities sponsor virtually all apprenticeship programs. Thus, Congress had no need to address apprenticeship programs explicitly. Id. Turning to the merits, the Commission noted the argument advanced by a number of commenters that "downsizing, changing technologies, and new growth industries all have created a demand for workers with more advanced technical skills who can adapt quickly to changing employer needs." Id. at 15,376. The agency concluded that "eliminating age barriers in apprenticeship programs will clearly benefit older workers," and that employers would also benefit due to an increase in the number of qualified workers. Id. The EEOC also agreed with commenters maintaining that African-Americans and Hispanics have been particularly hard hit by job displacements over the past two decades and that permitting age limitations in apprenticeship programs locks in the effects of past discrimination and occupational segregation. Id. at 15,377. In sum, the 1996 regulation was not, as defendants imply, an impetuous change of heart after 17 years of unwavering EEOC support for the original DOL regulation. Rather, it was the culmination of several efforts during that period to rescind the earlier regulation and replace it with the current one. Finally, the mere fact that the EEOC changed course should not preclude according the challenged regulation Chevron deference. Defendants contend that the Commission's "about-face" with respect to apprenticeship programs, and the fact that the regulation exempting such programs was the original and longer-standing regulation, prevent this Court from deferring to the current regulation. Defs.' Br. at 33- 34. It is true that courts have held that "‘an agency's interpretation of a statute or a regulation that conflicts with a prior interpretation is entitled to considerably less deference than a consistently held agency view.'" See, e.g., Miller v. AT&T Corp., 250 F.3d 820, 832 (4th Cir. 2001) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994)). But the Chevron Court itself stated that [a]n initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. 467 U.S. at 863-64. See also Republican Nat'l Comm. v. FEC, 76 F.3d 400, 406 (D.C. Cir. 1996) ("The mere fact that the Commission changed the prior regulation does not make the new regulation an unreasonable construction of the statute."); Columbia Broad. Sys., Inc. v. FCC, 454 F.2d 1018, 1026 (D.C. Cir. 1971) (the FCC has a "well established right to modify or even overrule an established precedent or approach, for an administrative agency concerned with furtherance of the public interest is not bound to rigid adherence to its prior rulings"). If, as defendants suggest, an agency's decision to replace a contemporaneous statutory interpretation is entitled to little or no deference, an agency would be hampered in its ability to correct an earlier error, or to decide, in applying its expertise and wisdom, that developing economic realities justify striking a new balance between conflicting policy concerns.<11> But agencies are allowed to change positions, correct errors and strike new balances. See, e.g., Rust v. Sullivan, 500 U.S. 173, 186-87 (1991) (upholding new HHS regulations, which changed the requirements for family-planning services eligible to receive federal funds); Strickland v. Comm'r, Maine Dep't of Human Servs., 48 F.3d 12, 16-22 (1st Cir. 1995) (deferring under Chevron to regulation with respect to which the Secretary of Agriculture had reversed course two times); Peoples Fed. Sav. & Loan Ass'n v. CIR, 948 F.2d 289, 291, 299-305 (6th Cir. 1991) (upholding new IRS regulations "which, in effect, reversed the old regulation" because the agency's new interpretation of the statute was reasonable and the agency justified the reversal); see also Lawrence v. Chater, 516 U.S. 163, 174 (1996) (per curiam) (remanding case to court of appeals because Social Security Administration had changed its interpretation of the statute during the pending litigation, and noting that the new interpretation may be entitled to deference). The Supreme Court has rejected the argument that an agency's interpretation is not entitled to deference because it represents a sharp break with prior interpretations of the statute in question. . . . An agency is not required to establish rules of conduct to last forever, but rather must be given ample latitude to adapt [its] rules and policies to the demands of changing circumstances. Rust, 500 U.S. at 187 (brackets in original; internal quotation marks and citations deleted). These cases hold that a new regulation reversing the effect of a rescinded regulation is still entitled to Chevron deference as long as it is grounded in a reasonable interpretation of the statute and the agency satisfactorily explains its rationale for reversing course. Here, the EEOC gave a number of reasons for adopting the new regulation. The agency stated its belief that "[t]he statute and its history are silent regarding apprenticeship programs and neither compel nor preclude their coverage," and that "nothing in the statute or its legislative history prevents [the EEOC] from exercising its broad legislative rulemaking authority under sec. 9 of the Act, 29 U.S.C. 628, and promulgating a rule covering apprenticeship programs." 61 Fed. Reg. at 15,375. The EEOC noted its understanding that "[m]any of the states currently prohibit age discrimination in apprenticeship programs," and that "many, if not most, craft/skilled trade apprenticeship programs now operate without age limitations." 60 Fed. Reg. at 51,763; cf. Johnson, 1995 WL 374058, at *11 (noting EEOC's contention that "22 states or territories have laws that prohibit apprenticeship programs from discriminating against persons over age 40"). The Commission stated that the new regulation, which was supported by a "clear majority of commenters," would benefit both older workers (by preparing them for new types of jobs) and employers (by providing them "an enhanced pool of qualified workers"). 61 Fed. Reg. at 15,375-76. The agency noted that the "dislocations in the American economy" over the previous 20 years – "downsizing, changing technologies, and new growth industries" – made age discrimination in apprenticeship programs a more significant obstacle to employment opportunities for older workers than it had been in the past. Id. at 15,376. The Commission concluded that, "because of changing circumstances in the workforce and structural changes in the workplace," "employers and employees alike will be better served by an interpretation of the ADEA which covers apprenticeship programs." Id. at 15,375, 15,378. This rationale for the Commission's new regulation easily passes the test that courts have applied to such rationales, and this Court should accordingly defer to the EEOC's regulation under Chevron. See, e.g., Rust, 500 U.S. at 187 (where HHS explained that the new regulation better implemented the statute and took into account the agency's experience under the former regulations, justification was sufficient); Peoples Fed., 948 F.2d at 303 (where agency explained that the old regulation was wrong and the new regulation was more consistent with the statute's policy, justification was sufficient). CONCLUSION For the foregoing reasons, this Court should affirm the judgment of the district court and remand this case for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7018 Washington, DC 20507 (202) 663-4737 *********************************************************************** <> <1> Section 4(f)(1) of the ADEA, 29 U.S.C. § 623(f)(1), provides, in relevant part, that it is not unlawful for an employer or labor organization to discriminate on the basis of age where age is a “bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” Section 4(f)(1) also authorizes employers and unions to treat people differently “based on reasonable factors other than age,” but that provision is irrelevant in cases where, as here, the defendants explicitly relied on age. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 88 (2000) (“reasonable factors” exemption makes clear that an employer cannot rely on age as proxy for other characteristics). The Commission’s regulation also provides that age limitations in apprenticeship programs may be valid if they are “exempted by the Commission under sec. 9 of the Act, 29 U.S.C. 628, in accordance with the procedures set forth in 29 C.F.R. 1627.15.” 29 C.F.R. § 1625.21. The Commission has never granted an exemption under this provision for age discrimination in apprenticeship programs. <2> Section 703(c) of Title VII is identical to § 4(c) of the ADEA, except that it prohibits unions from discriminating on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(c). <3> This Court has never had occasion to decide whether to endorse the Sibley theory. In Bender v. Suburban Hospital, Inc., 159 F.3d 186 (4th Cir. 1998), the Court recognized that other courts have endorsed this theory, but declined to reach the question in that case because the relationship with others which defendant allegedly interfered with was not “an employer-employee relationship, as defined by the law of agency.” Id. at 189. In this case, applicants to the Center’s program are seeking employment as seamen with the shipping companies who bargain with the Union, and the relationship between the seamen and the shipping companies is a traditional employer-employee relationship. <4> As defendants stress, Congress did not include in § 4 a counterpart of § 703(d). We address this difference between the two laws infra. <5> Indeed, defendants appear to concede that the “veil of separation” between unions and apprenticeship programs can be pierced if the evidence justifies doing so. Defs.’ Br. at 38 n.36. <6> Compare § 4(f) of the ADEA, Pub. L. No. 90-202, 81 Stat. 602, 603-04 (1967), with § 703(e) & (h) of Title VII, Pub. L. No. 88-352, 78 Stat. 241, 256-57 (1964). <7> The DOL documents state that 23 states had laws prohibiting age discrimination in employment. Four of those states had laws prohibiting age discrimination only by employers, but did not cover unions. Appellants’ Supplemental Submission of Legislative History (“Leg. Hist. Sub.”) 1, 2 (California and Colorado), 4 (Louisiana), and 7 (North Dakota). The documents identify California, Connecticut, New Jersey and Washington as the states exempting apprenticeship programs entirely, and Michigan, Oregon and Wisconsin as the states exempting them in part. JA-81, 95. <8> The Commission alleges that the defendants have continued to discourage older individuals from gaining admission to the program. JA-12 (alleging that in addition to refusing to admit older persons to the program, defendants discouraged them from applying). <9> Congress in the ADEA authorized the EEOC to “issue such rules and regulations as [it] may consider necessary or appropriate for carrying out this Act.” 29 U.S.C. § 628; see Nicholson v. CPC Int’l Inc., 877 F.2d 221, 239 (3d Cir. 1989) (acknowledging EEOC’s “broad ranging power with respect to implementation of rules and regulations administering the ADEA”), abrogated on other grounds by Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). <10> We do not respond to defendants’ specific arguments concerning the validity of the prior regulations. The former regulations do not apply to this appeal because they were rescinded prior to the discrimination challenged in this action. See Defs.’ Br. at 45. <11> It appears that this misplaced concern contributed to the EEOC’s failure to correct the DOL regulation earlier. In June 1980, EEOC Chair Norton testified that the Commission had “unanimously passed an interpretation that would have in fact made apprenticeship no different from other matters under the ADEA,” but that the agency was re-considering that action because “under the rules of statutory construction, courts will give no deference to a change in interpretation of a regulation where that change [sic] was made contemporaneous with the passage of a statute and has been of long standing.” JA-139. (The relevant portion of Norton’s testimony is partially obscured in the Joint Appendix by the binding. For the Court’s convenience, the Commission has attached a better copy of the relevant page as an addendum at the end of this brief.)