Davis v. Dist. of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 20, 2018 Decided June 7, 2019

No. 17-7071

RONDA L. DAVIS, ET AL.,
APPELLANTS

v.

DISTRICT OF COLUMBIA,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01564)

Rachel Smith, Student Counsel, argued the cause for
appellants. On the briefs were Andrew Mendrala and Aderson
B. Francois. Charly Gilfoil, Student Counsel, entered an
appearance.

Holly M. Johnson, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellee District of Columbia. With her on the briefs
were Karl A. Racine, Attorney General, Loren L. AliKhan,
Solicitor General, and Stacy L. Anderson, Acting Deputy
Solicitor General at the time the brief was filed. Todd S. Kim,
Solicitor General at the time the brief was filed, entered an
appearance.
 2
Before: MILLETT, PILLARD and KATSAS, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

Opinion concurring in part and dissenting in part filed by
Circuit Judge KATSAS.

PILLARD, Circuit Judge: Plaintiffs are 47 former
longtime employees, mostly African American, of the District
of Columbia (District) Child and Family Services Agency
(Agency), many of whom successfully served the Agency for
decades. They numbered among the employees terminated as
part of a large-scale reduction in force at the Agency following
budget cuts. Plaintiffs alleged that their firings were
unlawfully discriminatory on the basis of age and race. They
have abandoned their age-based claims, but appeal the
summary judgment in the Agency’s favor on the race
discrimination claims.

We generally affirm the decision of the district court, but
reverse and remand on one narrow question: whether the
plaintiffs identified a “particular employment practice”
susceptible to challenge for its adverse racial impact under
Title VII. 42 U.S.C. § 2000e-2(k)(1)(A)(i). On this issue, the
District prevailed below on the theory that a reduction in force,
or “RIF,” is not a particular employment practice. What is at
issue here is not a RIF in the abstract, however, but the means
by which the Agency implemented it. Plaintiffs challenge the
practices of the Agency in selecting for elimination jobs and
job categories disproportionately held by African American
employees. Nothing in Title VII suggests that the practices an
employer uses to effectuate the adverse employment action of
layoffs, whether or not dubbed a RIF, are exempt from
disparate-impact scrutiny. We accordingly reverse the
 3
“particular practice” holding and the accompanying denial of
class certification, and remand for further proceedings.

Having decided the case on that threshold question, the
district court had yet to address whether plaintiffs’ statistical
evidence sufficed to make out a prima facie case of disparate
impact, or whether the Agency had business justifications for
the layoff criteria it used. We accordingly express no opinion
on those issues. We affirm the district court’s decisions with
respect to plaintiffs’ challenge to the college degree
requirement the Agency added to one job category, and the
applicability of estoppel to certain individual plaintiffs’ claims.

I. Background

A. Factual Record

The District of Columbia Child and Family Services
Agency provides critical support services to abused and
neglected children and struggling families. The Agency’s
functions include investigating reports of child abuse and
neglect, temporarily removing children from unsafe settings,
and securing medical care for affected children and families.
As of Fiscal Year (FY) 2009, the Agency employed nearly one
thousand people in its six major components: Agency
Programs, Community Services, Policy and Planning, Clinical
Practice, Agency Management, and Financial Operations.

In the face of significant municipal revenue shortfalls, the
District of Columbia City Council decreased the Agency’s
operating budget for fiscal years 2010 and 2011. Following the
budget cuts, the Agency reduced the number of its full-time
employees. Relevant here are the job cuts effected for the
Agency’s FY 2011 budget. The District represented, and
plaintiffs did not dispute, that the District could make the
 4
needed spending cuts by reducing full-time positions by 52—
from 892 to 840—although the Agency fired more than twice
that many people and then hired several dozen new employees.

All told, the Agency let go 115 employees. Plaintiffs here
challenge as racially discriminatory the procedures used to
implement that reduction in force. At an agency that was 73.4
percent African American, 93 percent (107 out of 115) of the
terminated employees were African American. The Agency
has never claimed to have laid off the most expensive
employees, nor did it set out to make proportional cuts to each
department. And, according to the Agency’s Director, the cuts
were not performance based: the Director assured the fired
employees that the layoffs “in no way reflect[] adversely on
your performance of your official duties.” Joint App’x (J.A.)
660.

Plaintiffs claim that the Agency instead chose to cut and
cull the very job categories most densely occupied by African
American employees. The Agency focused its cuts on the
Agency Programs Office, the Office of Clinical Practice, and
the Office of Community Services, with the Agency Programs
Office bearing the brunt. There, the Agency eliminated
wholesale two social-worker support positions: Social Worker
Associate (SWA), which required a bachelor’s degree, and
Social Service Assistant (SSA), which did not. The Agency’s
decision to fire everyone in the SSA and SWA job categories
resulted in the termination of approximately 70 employees, 67
of whom were African American. And the culling of positions
elsewhere at the Agency resulted in layoffs of 45 employees,
40 of whom were African American.

The District claims that the Agency “did not utilize a
single uniform criteria, test or requirement” in determining
which positions would be eliminated. Def.’s Statement of
 5
Undisputed Material Facts (SOF) ¶ 15, J.A. 235. Rather, the
District represents that the choices of which jobs to eliminate
came about through “realigning functions and implementing
new service models,” as well as “multiple individual decisions
made by the Director working in close consultation with the
Chief of Staff, the Deputy Directors in charge of CFSA’s
various divisions, and other senior level managers in the
Agency’s executive team.” Id. ¶¶ 15, 17, J.A. 235.

Immediately following the layoffs, the Agency created a
new posting to replace the SSW and SWA roles, Family
Support Worker (FSW), which did similar work but required a
bachelor’s degree. The Agency sought to hire approximately
three dozen people to fill the new FSW spots, and it considered
applicants whom it had just discharged as well as outside
candidates. According to the District, 44 of the 115 people who
lost their jobs applied for a position as an FSW, but only 30 of
those held the required bachelor’s degree. The Agency
ultimately hired back into the FSW role 18 of the employees
whom it had fired.

B. Procedural History

Forty-seven former Agency employees who lost their jobs
filed this case as a class action against the District of Columbia;
they alleged race and age discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the
District of Columbia Human Rights Act, D.C. Code § 2-
1402.11. Plaintiffs brought both disparate treatment and
disparate impact challenges to (1) the Agency’s choice to
respond to budgetary constraints by eliminating two job
categories in which African American employees were most
concentrated, and by using a putatively individualized and at
least partially subjective process to cull the remaining job
categories; and (2) the Agency’s imposition of a bachelor’s
 6
degree requirement on the new FSW position, the duties of
which were a close match with the work the SSAs had long
performed successfully without a college degree. The district
court granted defendant’s motion to dismiss the disparate
treatment claim against the firings, allowing the named
plaintiffs to proceed with the companion claim of disparate
racial impact, and both the impact and treatment claims against
the degree requirement. See Davis v. Dist. of Columbia, 949 F.
Supp. 2d 1, 14 (D.D.C. 2013).

The court bifurcated discovery and pretrial motions,
limiting the first stage to the “existence and statistical validity
of group-based disparities caused by” the practices challenged
on disparate-impact grounds, as well as to several procedural
matters including administrative exhaustion and class
certification. See Scheduling Order, Davis v. District of
Columbia, No. 10-1564 (D.D.C. Apr. 4, 2013) (Scheduling
Order). The court held that plaintiffs met the administrative
exhaustion requirement because two plaintiffs’ timely-filed
Equal Employment Opportunity Commission (EEOC) charges
put the Agency on notice of the claims and vicariously satisfied
the exhaustion requirement for the remaining plaintiffs. Davis
v. District of Columbia, 246 F. Supp. 3d 367, 388-89 (D.D.C.
2017). Plaintiffs asserted an absence of evidence of business
necessity to support the District’s claims of “agency-wide
realignment” and the decision to hire outsiders to the FSW
positions, and requested an admission to that effect. J.A. 679.
The Agency postponed responding on the ground that plaintiffs
sought “information that is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence
relevant to an issue within the scope of the first phase of
discovery” under the judge’s scheduling order. Id. Discovery
into and motions testing the Agency’s justifications for its
layoff choices were for a later stage.
 7
Within the constraints of the bifurcated discovery order,
each side retained an expert as to the alleged disparate impact
of the challenged practices. The experts framed the issues
differently and reached contrary conclusions. Plaintiffs’
expert, Dr. Paige Munro, found that the Agency’s
implementation of the layoffs resulted in a termination rate of
15.5% for African Americans, in contrast to a 5.6% rate for
non-African Americans. The racial disparities were even more
dramatic, according to Dr. Munro, once she analyzed a new
dataset provided by the District, which included more focused
and detailed demographic information about the Agency’s
workforce: The effective termination rate jumped from 277%
greater for African Americans than non-African Americans to
444% greater for African Americans as compared to
Caucasians.

The District’s expert, Dr. Stephen Bronars, found no
disproportionate adverse racial impact. He faulted Dr. Munro
for calculating the racial disparities in termination rates across
the entire agency; according to Dr. Bronars, Dr. Munro’s data
unreasonably assumed that all positions at the Agency were at
risk of cuts. The Agency described itself as conducting an
“agency-wide” reduction in force, Defendant’s Answer to
Third Amended Complaint ¶ 3, J.A. 159, but as Dr. Bronars
saw it not all employees were at equal risk of losing their jobs
because the District had informed him that it took into account
“financial concerns, the reorganization concerns, the
realignment of goals, different kind of service models. . . .”
Bronars Dep. 183-84, J.A. 820. Instead of assessing the impact
of the entire package of layoffs, Dr. Bronars characterized the
District’s action as “7 different sets of layoff decisions,” one
for each job category that experienced cuts. J.A. 363. He then
separately examined the racial impact of the terminations
within each affected position.
 8
Dr. Bronars concluded that the Agency’s wholesale
elimination of the SSA and SWA positions did “not contribute
to the statistical significance calculation for adverse impact”
because the District terminated every employee in those job
categories. J.A. 412. As a consequence, he reasoned, those
cuts involved no “excess” termination of African American
employees. J.A. 367, 412. Dr. Bronars’ statistical significance
calculation also excluded any layoffs from job categories
occupied exclusively by African American employees, again
reasoning that there could be no “excess” termination of
African Americans from those categories. J.A. 367. Setting
aside all of those layoffs of African American employees, Dr.
Bronars applied his job-category-specific methodology to find
no statistically significant racial impact resulting from cuts
within the remaining categories.

Following the close of phase I discovery, plaintiffs moved
for class certification and the District moved for summary
judgment. The district court granted summary judgment for
the Agency on all issues.

Regarding plaintiffs’ disparate impact challenge, the
Agency contended that plaintiffs’ expert evidence of statistical
disparity was inadequate. See Def.’s Memo in Supp. of Motion
for Summ. J. 2, 20-23, J.A. 207, 225-28. Alternatively, the
Agency argued that the Agency’s termination decisions were
not subject to Title VII scrutiny for disparate racial impact: The
Agency contended that its decisions were not actionable
because they involved no objective “test or requirement,” but
only a series of subjective, contextual judgments made in
“multiple individual decisions by the agency leadership” that it
claimed cannot be challenged on a disparate-impact theory. Id.
at 19-20, J.A. 224-25 (contending that “subjective decisions”
are not practices subject to challenge for their disparate impact
(quoting Leichihman v. Pickwick Int’l, 814 F.2d 1263, 1269 n.5
 9
(8th Cir. 1987), abrogated by Watson v. Fort Worth Bank &
Tr., 487 U.S. 977, 989-91 (1988) (plurality opinion), and citing
Combs v. Grand Victoria Casino & Resort, No. 1:08–CV–
00414–RLY–JMS, 2008 WL 4452460, at *3 (S.D. Ind. Sept.
30, 2008))).

In addition to dwelling on the (erroneous) proposition that
only objective employment criteria are subject to disparate
impact scrutiny, see Watson, 487 U.S. at 989-91, both parties
got inexplicably sidetracked into arguing over whether a
“facially neutral” employment policy had been identified, see
J.A. 224-25 (Agency: “The RIF Was Not A Facially Neutral
Employment Policy”); id. at 592-93 (Plaintiffs: “The RIF was
a facially neutral policy”); see also Davis, 246 F. Supp. 3d at
395. The point of doctrinal references to “facially neutral
employment practices” is not to make facial neutrality an
element of proof in disparate-impact cases, but merely to make
clear that—even though they may lack the overtly or
intentionally discriminatory character of practices constituting
disparate treatment—facially neutral practices, too, may be
challenged under Title VII. Watson, 487 U.S. at 988; Int’l
Broth. of Teamsters v. United States, 431 U.S. 324, 349 (1977)
(“[T]he Court has repeatedly held that a prima facie Title VII
violation may be established by policies or practices that are
neutral on their face and in intent but that nonetheless
discriminate in effect against a particular group.”). Indeed,
nothing prevents a plaintiff from challenging a practice as a
Title VII violation because it is facially discriminatory and,
alternatively, has a disparate impact.

Without reaching the statistical evidence in the competing
expert reports, the district court granted summary judgment to
the Agency on the threshold ground that “plaintiffs have failed
to identify a specific employment practice” actionable under a
disparate-impact theory. Davis, 246 F. Supp. 3d at 394. As to
 10
plaintiffs’ challenges to the FSW’s bachelor’s degree
requirement, the district court granted judgment to the Agency
because plaintiffs had failed to present evidence regarding the
qualified labor pool. Id. at 399-401. Because plaintiffs chose
to rest their disparate treatment claim exclusively on an
inference of discriminatory purpose arising from statistical
disparity, and no such disparity could be shown in the absence
of evidence regarding the qualified labor pool, the court
granted summary judgment on that claim as well. Id.

The court also ruled in favor of the District on issues
pertaining only to certain plaintiffs. It held that two plaintiffs
lacked standing to challenge the FSW’s bachelor’s degree
requirement because they hold such degrees, id. at 387-88, and
that two plaintiffs—one of those with a bachelor’s degree, plus
a third—were judicially estopped from participating in this
lawsuit by their failures to disclose their discrimination claims
among their assets in their personal bankruptcy cases, id. at
384-87. In the absence of any surviving claim, the district court
denied as moot plaintiffs’ motion for class certification. Id. at
401.

Plaintiffs appealed. They limit their appeal to the district
court’s grant of summary judgment on the race discrimination
class claims, plus the individual standing and estoppel issues.
 11
II. Analysis

Our review of the district court’s grant of summary
judgment is de novo. Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,
1288 (D.C. Cir. 1998) (en banc). Summary judgment is
warranted where there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). That is, a movant is entitled to summary
judgment when, drawing all inferences in favor of the non-
movant, a reasonable jury could not return a verdict in the non-
movant’s favor. Celotex Corp. v. Catrett, 477 U.S. 317, 326-
27 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
251-52 (1986).

Title VII of the Civil Rights Act makes it unlawful for an
employer “to fail or refuse to hire or to discharge any individual
. . . because of such individual’s race.” 42 U.S.C. § 2000e-
2(a)(1). The statute bars “intentional discrimination and
artificial, arbitrary, or unnecessary barriers” that stand in the
way of “equal opportunity” without regard to race. Segar v.
Smith, 738 F.2d 1249, 1258 (D.C. Cir. 1984). Thus, a plaintiff
may establish racial discrimination in violation of Title VII by
proving either that the employer acted with a discriminatory
motive (a “disparate treatment” claim), or that its action was
the result of a process that, while apparently “fair in form,” was
“discriminatory in operation” (a “disparate impact” claim).
Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971); see
Anderson v. Zubieta, 180 F.3d 329, 338 (D.C. Cir. 1999). As
the parties recognized below, the District of Columbia Human
Rights Act tracks Title VII in all respects relevant to this case.
See Davis, 246 F. Supp. 3d at 393-94. We therefore treat
plaintiffs’ claims under District of Columbia law as
coextensive with their federal claims.
 12
We first address plaintiffs’ claim that the particular
practices by which the District carried out its reduction in force
had a racially disparate impact in violation of Title VII. We
then turn to their challenge to the degree requirement attached
to the new FSW position. Finally, we address the district
court’s dismissal of three individual plaintiffs’ claims.

A. Identification of Particular Practices Subject to
Disparate Impact Analysis

The district court held that plaintiffs failed at the summary
judgment stage to make out a prima facie case of disparate
impact under Title VII on the ground that a RIF is not a
“particular employment practice” under Title VII. 42 U.S.C.
§ 2000e-2(k)(1)(A)(i); see Davis, 246 F. Supp. 3d at 394-97.
The court thought the plaintiffs identified only “an overall
decisionmaking process,” which did not meet the statutory
requirement to identify the particular practices that caused
them to lose their jobs. Davis, 246 F. Supp. 3d at 394-95. The
court thus concluded that the practices by which the Agency
fired plaintiffs could not be reviewed for adverse racial impact
under Title VII. That decision was in error.

A disparate impact claim contends that an observed
disparity caused by a particular employment practice cannot be
justified as necessary to the employer’s business. The purpose
of disparate impact analysis under Title VII is to permit
plaintiffs to challenge “practices, procedures, or tests” that may
be “neutral on their face, and even neutral in terms of intent,”
but that disproportionately harm members of a protected class.
Griggs, 401 U.S. at 430. Whereas disparate treatment requires
a showing of discriminatory motive, disparate impact supports
liability in the absence of proof of invidious intent, based on
evidence that the challenged practices have a
 13
disproportionately adverse effect on the plaintiffs that cannot
be justified as necessary to an employer’s business.

In calling on disparate-impact plaintiffs to identify the
particular employment practices they challenge, the law “goes
beyond the need to show that there are statistical disparities in
the employer’s work force.” Watson, 487 U.S. at 994; see Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 357 (2011) (pointing
to “overall sex-based disparity” in workforce is not enough).
The requirement to identify the employment practice or
practices responsible for the shortfall guards against holding
employers “liable for ‘the myriad of innocent causes that may
lead to statistical imbalances’” in a given workforce. Smith v.
City of Jackson, 544 U.S. at 241 (quoting Wards Cove Packing
Co. v. Atonio, 490 U.S. 642, 657 (1989)). As the Supreme
Court explained:

Our disparate-impact cases have always focused on
the impact of particular hiring practices on
employment opportunities for minorities. Just as an
employer cannot escape liability under Title VII by
demonstrating that, “at the bottom line,” his work
force is racially balanced (where particular hiring
practices may operate to deprive minorities of
employment opportunities), see Connecticut v. Teal,
457 U.S. [440,] 450 [(1982)], a Title VII plaintiff
does not make out a case of disparate impact simply
by showing that, “at the bottom line,” there is racial
imbalance in the work force.

Wards Cove, 490 U.S. at 656–57. Thus, when unidentified
events or a “myriad of innocent causes” cumulate over time to
result in racial, ethnic, religious, or gendered statistical
imbalances in a workforce, those imbalances are not rendered
susceptible to a Title VII challenge by the mere measurement
 14
of statistical shortfall. But where the object of the suit is an
identifiable practice, criterion, or bundle of criteria behind a
specified employment event like the rash of contemporaneous
layoffs challenged here, disparate impact analysis applies.

To state a disparate impact claim, plaintiffs are
“responsible for isolating and identifying the specific
employment practices that are allegedly responsible for any
observed statistical disparities.” Wards Cove, 490 U.S. at 656
(quoting Watson, 487 U.S. at 994) (emphasis added). An
actionable “specific employment practice” might be a set of
“subjective criteria” such as hiring based on personal networks
or firing based on a manager’s subjective sense of who best to
retain; or it might be comprised of “more rigid standardized
rules or tests” like height, weight, length-of-service, or
performance-based standards. Id. (quoting Watson, 487 U.S.
at 994). Disparate impact analysis is “no less applicable to
subjective employment criteria than to objective or
standardized tests.” Watson, 487 U.S. at 990; accord Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 355 (2011) (“[A]n
employer’s undisciplined system of subjective decisionmaking
[can have] precisely the same effects as a system pervaded by
impermissible intentional discrimination.” (quoting Watson,
487 U.S. at 990-91)). A combination of subjective and
objective determinants, too, can count as a sufficiently specific
employment practice. Watson, 487 U.S. at 990, 994.

There is no mystery in this case as to the layoff practices
plaintiffs challenge: the Agency’s choices to (a) target the
SWA and SSA job categories for elimination; and (b) allow
managers to make putatively individualized, discretionary and
subjective choices of which positions to winnow from other
units. See Third Am. Compl. ¶¶ 56, 58, 60 (alleging
elimination of SWA and SSA jobs); Appellants’ Br. 25-27
(contending that the Agency “left the livelihood of African
 15
American employees in the hands of multiple supervisors
without requiring those supervisors use any uniform criteria or
standardized guidance when making termination decisions”);
Oral Arg. 15:14-20 (the layoffs were “carried out in an
undisciplined and subjective way”). Indeed, although its stated
reasons have yet to be tested through discovery, the District has
acknowledged that the Agency employees to be fired were “not
identified through the use of uniform criteria . . . but rather
through multiple individual decisions by the agency
leadership.” Def.’s Memo in Supp. of Summ. J., J.A. 225; see
id. 224-25 (urging district court—erroneously—to reject
plaintiffs’ impact claim because “subjective decisions” are not
practices subject to challenge for their disparate impact (citing
Leichihman v. Pickwick Int’l, 814 F.2d 1263, 1270 n.4 (8th Cir.
1987) abrogated by Watson, 487 U.S. at 989-90)). As the
Agency itself describes it, the procedures for culling jobs fit
Watson’s description of “an employer’s undisciplined system
of subjective decisionmaking” as to which “it is difficult to see
why Title VII’s proscription against discriminatory actions
should not apply.” 487 U.S. at 990-91.

This is the first time this court has been asked whether a
RIF or, more precisely, the practices through which an
employer implements a RIF are subject to disparate-impact
review under Title VII, but we see no basis to exempt such
practices from otherwise-applicable law. Our analysis in
Aliotta v. Bair, 614 F.3d 556 (D.C. Cir. 2010), assumed without
deciding that a targeted group of layoffs pursuant to a RIF
could be reviewed for potential disparate impact. Although the
district court in that case had held that the plaintiff failed to
identify “a specific adverse employment practice within the
2005 downsizing” to support his claim of age-based disparate
impact, Aliotta v. Bair, 576 F. Supp. 2d 113, 127 (D.D.C.
2008), we did not endorse that reasoning on appeal. We never
questioned whether the employer’s method of carrying out the
 16
RIF was a tenable subject of analysis. Rather, once we isolated
layoffs representing “the independent effect of the 2005 RIF
itself” from contemporaneous voluntary buyouts, plaintiff’s
claim failed because the statistics showed a disadvantage to
younger employees rather than to the older group to which the
plaintiff belonged. Aliotta, 614 F.3d at 569-70.

Courts that have applied Title VII in the context of RIFs
have shown how to analyze the layoffs involved as a “particular
employment practice.” They go beyond the general concept of
a “RIF” to identify actionable practices of “selecting only
certain (predominantly female) departments,” Shollenbarger v.
Planes Moving & Storage, 297 Fed. App’x 483, 486 (6th Cir.
2008), or of focusing cuts on offices where “black employees
are concentrated,” Council 31, Am. Fed’n of State, Cty. & Mun.
Emps. v. Ward, 978 F.2d 373, 375, 377-78 (7th Cir. 1992); see
also Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1073-
74, 1076-77 (9th Cir. 1986) (analyzing a reduction in force for
disparate impact). When an employer cuts back on its
workforce by “targeting” demographically disproportionate
departments for layoffs, that practice means that “the
likelihood of selecting a[n individual in a protected class]
increase[s].” Shollenbarger, 297 Fed. App’x at 486. Such a
practice is what plaintiffs here identify, and is the kind of
practice the disparate impact theory of discrimination exists to
scrutinize. It is consistent with precedent, and neither unwieldy
nor unfair, to treat the processes by which the Agency
identified plaintiffs’ jobs for elimination as “particular
employment practice[s]” under section 2000e-2(k)(1)(A)(i).

We are mindful that, as important as it is, the requirement
that plaintiffs identify a particular employment practice does
not alone do all the work of shielding employers from liability
for mere racial (or other protected-class) imbalance in a
workforce: Plaintiffs also have the burden to show
 17
“caus[ation],” 42 U.S.C. § 2000e-2(k)(1)(B)(ii), and, pursuant
to Title VII’s familiar burden-shifting framework, the
defendant has the opportunity to demonstrate “business
necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i); see Wards Cove,
490 U.S. at 656; Watson, 487 U.S. at 994-98. The Supreme
Court in Texas Department of Housing & Community Affairs
v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015),
emphasized the important constraint the causation requirement
imposes on disparate impact claims. In holding that the Fair
Housing Act provides for disparate impact liability, the Court
affirmed the impact theory against charges that it is
unreasonably expansive, largely by stressing that a “robust
causality requirement . . . protects defendants from being held
liable for racial disparities they did not create.” Id. at 2523.
And, ultimately, “the ‘touchstone’ for disparate-impact
liability is the lack of ‘business necessity’” supporting the
challenged practice. Ricci v. DeStefano, 557 U.S. 557, 578
(2009). Thus, “[h]ow far this prima facie showing will carry
the plaintiff toward its ultimate burden of persuasion depends
on both the strength of the plaintiffs’ evidence and the nature
of the defendant’s response.” Segar, 738 F.2d at 1267.

The district court appeared to grasp the clear racial effect
of the Agency’s method of implementing its reduction in force.
Plaintiffs’ expert, Dr. Munro, presented statistics showing
dramatic over-representation of African American employees
in the positions chosen for elimination. The “targeted
positions/divisions” were disproportionately occupied by
African Americans. J.A. 380. And the termination rate was
444% higher for the African American employees than
Caucasians. See J.A. 377. The court accurately observed that
record evidence showed that the Agency’s job “cuts were not
equally distributed”; the layoff “left some positions or divisions
relatively unscathed, while it completely eliminated other
positions.” Davis, 246 F. Supp. 3d at 395. “In fact,” the district
 18
court expounded, “cuts to just two positions,” held almost
entirely by African American employees, “constituted the
majority of terminations in the RIF.” Id. (citing Def.’s SOF ¶
20). The district court declined to address the statistics,
however, because it thought plaintiffs had failed to identify a
“specific” employment practice. The court cautioned that
“simply pointing to a RIF generally is not sufficient,” id. at 395,
and drew on out-of-circuit, primarily district-court decisions to
support its rule that a RIF is not a particular practice subject to
disparate-impact challenge under Title VII. See Davis, 246 F.
Supp. 3d at 395 (citing Powell v. Dallas Morning News, 776 F.
Supp. 2d 240, 258 (N.D. Tex. 2011); Zawacki v. Realogy
Corp., 628 F. Supp. 2d 274 (D. Conn. 2009); Mustelier v.
Equifax, Inc., No. Civ. 08-1008, 2009 WL 890468, at *6
(D.P.R. Mar. 25, 2009); Kourofsky v. Genencor Int’l, Inc., 459
F. Supp. 2d 206, 215 (W.D.N.Y. 2006)); see also id. (citing
Leichihman, 814 F.2d at 1269 n.5).

We need not generally decide whether a RIF as such might
ever be a “particular employment practice” under section
2000e-2(k)(1)(A)(i). Cf. Dissenting Op. at 5. Terminating a
large group of employees in a compressed timeframe is clearly
an adverse employment action within the meaning of Title VII,
and an employer’s assertion that the firings were a “RIF”
required by budget cuts does not somehow immunize them
from Title VII scrutiny. To the extent that a completed RIF is
an identified event comprising selection and termination of a
rash of employees, it is a far cry from the challenges to bottom-
line “racial imbalance in the work force” that precedent and our
colleague eschew. Dissenting Op. at 6 (quoting Wards Cove,
490 U.S. at 657). In our view, however, it is more confusing
than clarifying to ask whether RIFs in general are “particular
employment practices” under Title VII. For one thing, “RIF”
is not a legally defined term. It is often used as a shorthand for
downsizing a workforce, and can refer to the general
 19
anticipation (“We’ll need to RIF ten percent of our
employees”) or completion thereof (“I was RIF’d last month”).
And, because the term is often used in the context of economic
exigency, it unhelpfully invites prejudgment of the question
whether the procedures used to determine which employees to
let go were supported by business necessity.

This case does not present that question because plaintiffs’
claim is not that the RIF in the abstract was unlawful. Nor, for
that matter, do they take issue with the decision that laying off
52 employees would enable the Agency to comply with the FY
2011 budget cut. What calls for identification and scrutiny,
and what plaintiffs challenge here, is not the Agency’s decision
to reduce its workforce, but the process the Agency used to
select positions for the chopping block. See Third Am. Compl.
¶¶ 56, 58, 60 (alleging elimination of SWA and SSA jobs);
Appellants’ Br. 25-27 (contending that the Agency
disproportionately fired African American employees without
requiring supervisors to “use any uniform criteria or
standardized guidance when making termination decisions”);
Oral Arg. 15:14-20 (the layoffs were “carried out in an
undisciplined and subjective way”). And those processes are
susceptible of challenge under disparate impact precedents.
See Wards Cove, 490 U.S. at 656; Watson, 487 U.S. at 990-91.

The dissent posits that plaintiffs only challenge the RIF
“writ large,” and not the Agency’s particular means of
implementing it. Dissenting Op. at 8; see id. at 8-13. We
disagree: the record makes clear that plaintiffs’ challenge to
“the RIF” is shorthand for its attack on the specific processes
the Agency used in order to cut positions to meet its budget
shortfall. 1 To be sure, neither party’s briefing has been entirely

1
Some of the plaintiffs’ references to the RIF “as a whole”
appear to respond to the Agency’s efforts to reframe the analysis.
 20
clear, and in the district court each party on occasion advanced
legally erroneous propositions and focused on points of no
apparent relevance. Perhaps not surprisingly, plaintiffs
brought this claim into better focus on appeal. See, e.g.,
Appellants’ Br. 12, 21 (discussing the Agency’s
“implementation of the RIF”). In any event, we take the
Agency at its word that, to carry out its workforce reduction, it
chose to target the SWA and SSA job categories for
elimination, and cut jobs from other categories according to
“multiple individual decisions” by management. J.A. 235.
Because those processes—which plaintiffs identify on appeal
and which the Agency itself says it used—are “properly before
the court,” we are “not limited to the particular legal theories
advanced by the parties, but rather retain[] the independent
power to identify and apply the proper construction of
governing law.” Kamen v. Kemper Fin. Servs. Inc., 500 U.S.
90, 99 (1991); see also Lebron v. Nat’l R.R. Passenger Corp.,
513 U.S. 374, 379 (1995) (“Our traditional rule is that once a
federal claim is properly presented . . . parties are not limited
to the precise arguments they made below.”) (internal
quotations omitted).

The dissent is right that the framing of the specific
employment practice matters, see Dissenting Op. at 11-12, but
not exactly as to how. The distinction between challenging the
RIF simpliciter and challenging the processes by which it was
implemented could have litigation consequences down the
road. But on the disparate-impact question, the latter framing
does not “render[] irrelevant the agency-wide statistics.” Id. at

Plaintiffs resisted the narrow focus of the Agency’s statistical expert
on the effects within departments and job categories chosen for
elimination; they claim the RIF was “agency-wide,” and that the
correct comparison is between the jobs selected for elimination and
the agency as a whole. Pls.’ Mem. at 18, ECF Doc. 148, Davis v.
District of Columbia, No. 10-1564 (D.D.C. Dec. 21, 2015).
 21
12. Either way, the agency-wide statistics speak to the
threshold issue the district court raised and the parties
addressed: Whether, in shrinking an agency of 892 people by
at least 52 employees, the identified mechanisms by which
defendants did so had a statistically significant racial impact.

We take no stance here on other potential hurdles the
dissent identifies with challenges to subjective employment
decisions. Id. Because the district court bifurcated discovery
to first tee up whether there was a statistical disparity, see
Scheduling Order, and postponed inquiry into other questions
such as business justification and commonality that the dissent
highlights, Dissenting Op. at 12, neither that court nor this one
is yet in a position to pass on those points. The Agency’s
reasons for its actions evince a fact-intensive inquiry into
business justification. The dissent’s doubts that the
defendants’ practices tie the class together more closely than
the claimed diffuse, nationwide practice at issue in Wal-Mart
could be relevant to a motion for class certification. Those
matters will be explored only if, on remand, the district court
finds that the practices by which the Agency implemented the
layoffs had a statistically significant racial impact. On the
matter now before us, the dissent does not dispute that an
identified practice used to implement a RIF may be challenged
for its disparate impact, but would hold that plaintiffs forfeited
that claim. See Dissenting Op. at 8-10.

As the district court chose to manage it, this case remains
at the first step: plaintiffs’ prima facie case. But the Agency’s
expert, Dr. Bronars, presumed operational justification for (and
therefore excluded from analysis) the Agency’s selection of
certain offices for downsizing and its wholesale elimination of
the SSA and SWA jobs. The premise of Dr. Bronars’s
statistics, the Agency conceded at oral argument, put the “cart
before the horse” by assuming the very facts that a successful
 22
statistical showing by plaintiffs would next require the Agency
to show: that the reason the Agency targeted certain positions
for elimination was justified by business necessity. Oral Arg.
36:54-37:29; see id. at 22:23-39 (plaintiffs’ counsel explaining
same). If on remand plaintiffs clear the statistical hurdle, the
parties will have an opportunity after appropriate discovery to
address whether the Agency’s execution of the reduction in
force was justified by business necessity. Justification
supporting elimination or downsizing of certain offices might
at that point be seen to respond to the relevant statistical
showing.

Because plaintiffs have leveled their disparate impact
challenge against the particular target of the Agency’s process
for cutting and culling job categories, we reverse the district
court’s decision to the contrary, and the accompanying denial
on mootness grounds of the motion for class certification, and
remand for further proceedings consistent with this opinion.

B. Challenges to the Bachelor’s Degree Requirement

The district court also granted summary judgment in the
Agency’s favor on plaintiffs’ disparate impact and disparate
treatment challenges to the bachelor’s degree requirement
associated with the Family Support Worker position. The court
correctly concluded that plaintiffs failed to raise a triable issue.

1. Disparate Impact

The district court held that plaintiffs failed to meet their
burden to identify a race-based statistical disparity potentially
caused by the challenged degree requirement. Davis, 246 F.
Supp. 3d at 398-99. This is a defect that plaintiffs as much as
admitted on appeal by asking this court to take judicial notice
of extra-record census data showing general racial disparities
 23
among degree holders in the District of Columbia. See
Appellants’ Reply 18-20 & n.5. The burden rests with
plaintiffs to show the racial disparity, see Wards Cove, 490
U.S. at 651, and we are not prepared on appeal to take judicial
notice of census data not brought to the district court’s
attention. More fundamentally, that data could not by its own
terms fill the gap in this record. To show an adverse racial
impact attributable to imposition of the challenged degree
requirement, plaintiffs would have to identify the qualified
applicant pool. But there is no evidence that these jobs are
positions for which all District of Columbia resident applicants
would necessarily be qualified. Because plaintiffs failed to
make the relevant showing, we affirm the district court’s grant
of summary judgment in the Agency’s favor on this ground.

The district court also doubted the plaintiffs’ race-based
challenges to the degree requirement for the FSW position on
the ground that all of the Agency’s FSW hires were African
American. Davis, 246 F. Supp. 3d at 399. The Agency has
since correctly conceded that these plaintiffs’ disparate impact
claim cannot be defeated by evidence that the Agency
ultimately hired other African Americans to fill the FSW jobs.
See Appellee’s Br. 43-44; Oral Arg. 49:39-50:06. The
Supreme Court in Connecticut v. Teal held that, even where
plaintiffs are replaced by persons in their protected class, such
a “‘bottom line’ does not preclude [plaintiff] employees from
establishing a prima facie case, nor does it provide [a
defendant] employer with a defense to such a case.” 457 U.S.
at 442. Despite the surface appeal of “measur[ing] [disparate
impact] . . . at the bottom line,” the Court recognized that doing
so “ignores the fact that Title VII guarantees these individual
black respondents the opportunity to compete equally with
white workers on the basis of job-related criteria.” Id. at 451
(emphasis in original). To the extent that the “bottom line” was
alluded to here, however, it did not detract from the correctness
 24
of the district court’s holding that plaintiffs lacked evidentiary
support for this claim.

2. Disparate Treatment

The district court also granted summary judgment in the
Agency’s favor on the disparate treatment challenge to the
FSW’s degree requirement. That disparate treatment claim
relied solely on statistical disparities. See Davis, 246 F. Supp.
3d at 400-01; see also Oral Arg. 23:10-20; id. at 24:15-30,
25:54-26:26 (confirming that plaintiffs “are relying entirely on
statistical evidence” of disparate impact to establish disparate
treatment). Although it is possible to make a prima facie case
of disparate treatment based solely on statistics, see Teamsters,
431 U.S. at 339, in order to do so plaintiffs must present a
“significant” pattern of discrimination unexplainable on
grounds other than race, see Aliotta, 614 F.3d at 562. And in
the absence of information about the composition of the
qualified applicant pool, the district court correctly found no
cognizable disparate impact, let alone a significant one. Davis,
246 F. Supp. 3d at 400-01.

Plaintiffs could have sought to prove their disparate
treatment claim with other circumstantial or direct evidence
that the Agency implemented the degree requirement for racial
reasons. And because the district court bifurcated discovery,
limiting the first phase to statistical evidence of disparate
impact, plaintiffs had not yet had a chance to develop record
support regarding the relevant decision makers’ motivation for
creating the FSW post and its attendant degree requirement.
See Scheduling Order. But, by conceding that their claim was
based solely on statistical evidence and failing to oppose
summary judgment on this claim with a Rule 56(d) declaration
asserting their entitlement to discovery to support it, Plaintiffs
forfeited any claim to investigate the motive behind the FSW’s
 25
degree requirement. As a result, we affirm the district court’s
grant of summary judgment in the Agency’s favor as to the
disparate treatment claim against the degree requirement.

C. Estoppel by Bankruptcy Filings

Finally, we consider the district court’s dismissal of the
claims of some individual plaintiffs. Because no claims
regarding the FSW’s degree requirement remain, we need not
address the district court’s holding that two plaintiffs who have
bachelor’s degrees, Darius Morris and Zaccheus Ajakaiye,
lacked standing to challenge that requirement. We therefore
turn to the court’s decision that two plaintiffs’ Title VII claims
are barred by estoppel.

The court held that Ajakaiye and another plaintiff,
Stephanie Alston, were judicially estopped from proceeding
because they had failed to disclose their Title VII claims in their
personal bankruptcy proceedings. See Davis, 246 F. Supp. 3d
at 385-87. We review only for abuse of discretion the district
court’s decision to invoke judicial estoppel. Marshall v.
Honeywell v. Tech. Sys. Inc., 828 F.3d 923, 928 (D.C. Cir.
2016).

Judicial estoppel “prevents a party from asserting a claim
in a legal proceeding that is inconsistent with a claim taken by
that party in a previous proceeding.” Moses v. Howard Univ.
Hosp., 606 F.3d 789, 798 (D.C. Cir. 2010) (quoting New
Hampshire v. Maine, 532 U.S. 742, 749 (2001)). In a
bankruptcy petition, a debtor must disclose “all potential
claims.” Id. at 793. “This means that a debtor is under a duty
both to disclose the existence of pending lawsuits when he files
a petition in bankruptcy and to amend his petition if
circumstances change during the course of the bankruptcy.” Id.
That duty comports with the bankruptcy estate’s authority to
 26
control the debtor’s assets for the benefit of creditors. The
disclosure obligation extends to administrative complaints,
including those before the EEOC. Marshall, 828 F.3d at 924-
25. A debtor’s failure to comply with that duty can trigger
judicial estoppel to prevent him from pocketing proceeds of a
previously pending but undisclosed suit, which proceeds
should have been distributed to creditors in the bankruptcy.

There is no dispute that plaintiffs failed to disclose their
potential Title VII claims in their bankruptcy petitions.
Ajakaiye filed his bankruptcy petition on July 2, 2010. Two
weeks later, on July 16, 2010, he filed the EEOC charge that,
on September 16, 2010, germinated into the complaint in this
case. The bankruptcy court discharged Ajakaiye’s debts on
October 14, 2010, without Ajakaiye’s ever having disclosed the
EEOC proceeding or the ensuing suit. Alston, for her part, filed
her bankruptcy petition on May 21, 2013, three years after
plaintiffs filed suit in this case; she also failed to disclose the
circumstances of her potential claim before her debts were
discharged in bankruptcy.

Plaintiffs challenge the application of judicial estoppel to
their claims on two grounds. First, they argue that judicial
estoppel is an affirmative defense that the District did not raise
in its Answer so forfeited. But the doctrine is not only a
defense; because it also protects the integrity of the judicial
process, a court may invoke judicial estoppel “at its discretion.”
See New Hampshire, 532 U.S. at 750 (quoting Russell v. Rolfs,
893 F.2d 1033, 1037 (9th Cir. 1990)); see also Allen v. C & H
Distribs., LLC, 813 F.3d 566, 571 n.4 (5th Cir. 2015)
(explaining that the doctrine may be invoked “‘sua sponte’ and
therefore ‘the court is not bound to accept a party’s apparent
waiver of the doctrine’” (quoting 18 Moore’s Federal Practice
§ 134.34 (3d ed. 2015))).
 27
Plaintiffs also contend that the application of judicial
estoppel is inappropriate in cases of an inadvertent or mistaken
failure to disclose claims or potential claims. See Marshall,
828 F.3d at 930 (citing New Hampshire, 532 U.S. at 753). It is
easy enough to imagine that many people—perhaps these
plaintiffs included—do not see potential, or even filed and
pending, legal or administrative claims as assets that must be
disclosed in bankruptcy; they therefore might innocently fail to
list such claims. After all, plaintiffs seeking justice may not be
thinking of their yet-to-be-vindicated claims as “assets,”
especially at the outset of a long and winding litigation road
with an uncertain end. But once the estoppel question was
raised, plaintiffs (who are here represented by counsel) failed
to introduce even their own sworn declarations to support the
assertions in the legal briefs that their failures to disclose were
inadvertent. See id. at 930-31 (describing a plaintiff’s affidavit
“stating that when she filed her bankruptcy petition and
schedules . . . ‘I had no knowledge that I was required to list
my discrimination administrative proceedings on my
bankruptcy petition schedules or on any financial
statements’”).

To be sure, the district court could have exercised its
discretion differently, given that estoppel “looks toward cold
manipulation and not unthinking or confused blunder.”
Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C. Cir. 1980)
(quoting Johnson Serv. Co. v. Transamerica Ins. Co., 485 F.2d
164, 175 (5th Cir. 1973)). Ajakaiye had not yet filed even his
administrative claim when he sought bankruptcy, and we see
no signs of manipulation by either plaintiff. However, given
the absence of any evidentiary submissions to support the
assertion of mistaken nondisclosure, the district court did not
abuse its broad discretion in holding that, on this record,
plaintiffs failed to create a genuine dispute of material fact
defeating estoppel. See Marshall, 828 F.3d at 932; see also id.
 28
at 933-34 (Griffith, J., dissenting). We therefore affirm the
district court’s dismissal of these plaintiffs’ claims on estoppel
grounds.

* * *

We reverse the district court’s entry of summary judgment
for the District as to plaintiffs’ disparate impact challenge to
the firings under both Title VII and the District of Columbia
Human Rights Act, and the associated denial of the motion for
class certification, and remand for further proceedings
consistent with this opinion. We affirm the district court’s
grant of summary judgment on the remaining Title VII and
District of Columbia Human Rights Act claims. We also
affirm the district court’s dismissal of all claims by plaintiffs
Alston and Ajakaiye on judicial estoppel grounds.

So ordered.
 KATSAS, Circuit Judge, concurring in part and dissenting
in part: This case arises out of a reduction in force (RIF)
conducted by the District of Columbia Child and Family
Services Agency. The plaintiffs challenged the RIF as the
source of an alleged disparate impact on black employees. On
summary judgment, the district court held that the RIF itself—
a series of layoffs—was not a particular employment practice
subject to disparate-impact challenge under Title VII.

My colleagues remand for the district court to consider
other challenges to more specific practices through which the
RIF might have been implemented—decisions to eliminate
certain job categories and to permit individual supervisors to
use subjective criteria in making layoff decisions. Because the
plaintiffs disavowed those challenges, and because the
challenge that they made lacks merit, I would affirm the
summary judgment in its entirety.

I

Title VII of the Civil Rights Act of 1964 makes it unlawful
for an employer “to limit, segregate, or classify” employees in
any way that would “adversely affect” an individual’s “status
as an employee, because of … race.” 42 U.S.C. § 2000e-
2(a)(2). In Griggs v. Duke Power Co., 401 U.S. 424 (1971),
the Supreme Court construed this provision to prohibit
employment practices that, without business justification,
produce adverse impacts correlated to race. The Court
elaborated on the scope of disparate-impact liability under Title
VII in Watson v. Fort Worth Bank & Trust, 487 U.S. 977
(1988), and Wards Cove Packing Co. v. Atonio, 490 U.S. 642
(1989).

Congress responded to these decisions with the Civil
Rights Act of 1991, which codified disparate-impact liability
and specified its parameters. Pub. L. No. 102-166, § 105, 105
 2
Stat. 1071, 1074–75. As a result, Title VII now provides that
“[a]n unlawful employment practice based on disparate impact
is established … only if,” as relevant here, the plaintiff
“demonstrates” that the employer “uses a particular
employment practice that causes a disparate impact on the basis
of race.” 42 U.S.C. § 2000e-2(k)(1)(A) & (A)(i). Moreover,
when challenging multiple practices, the plaintiff “shall
demonstrate that each particular challenged employment
practice causes a disparate impact,” unless the plaintiff “can
demonstrate … that the elements of [an employer’s]
decisionmaking process are not capable of separation for
analysis.” Id. § 2000e-2(k)(1)(B)(i).

The D.C. Child and Family Services Agency provides
services to abused and neglected children. In 2009 and 2010,
the City Council reduced the Agency’s budget by $37.4 million
and lowered its cap on employees from 940 to 840. As a result,
the Agency undertook a RIF in which 115 employees lost their
jobs. About 70 of these employees were Social Worker
Associates (SWAs) or Social Service Assistants (SSAs). The
others worked in various divisions throughout the Agency.

The plaintiffs are former employees terminated during the
RIF. They contend that the RIF writ large produced an
unlawful disparate impact on black employees, and they seek
to represent a putative class of all employees terminated during
the RIF, including a subclass of all terminated black
employees. Between 2010 and 2015, the plaintiffs filed four
different complaints, conducted discovery on the alleged
disparate impact, and produced two expert reports addressing
it. The plaintiffs’ expert sought to measure the effect of the
RIF as a whole, by comparing the racial composition of the
terminated employees to that of the overall Agency workforce.
See Expert Report of Dr. Paige Munro, Davis v. District of
Columbia, No. 10-cv-1564 (D.D.C.), ECF Doc. 146-3, Ex. I at
 3
1–4; Rebuttal Report of Dr. Paige Munro, ECF Doc. 146-4, Ex.
K at 2–3.

After all of this, the District moved for summary judgment.
As relevant here, it argued that the plaintiffs had neither
identified a “particular employment practice” subject to
disparate-impact scrutiny nor produced evidence of any
statistical disparity caused by such a practice. See Def.’s Mem.
Supp. Mot. Summ. J., ECF Doc. 146 at 18–23. In response, the
plaintiffs argued that “the RIF” was the challenged “particular
employment practice,” which produced a disparate impact
because the Agency terminated 15.5% of its black employees
but only 5.6% of its other employees. See Pls.’ Mem. Opp’n
Def.’s Mot. Summ. J., ECF Doc. 148 at 37–41.

The district court granted summary judgment for the
District. It ruled that the plaintiffs had failed to establish a
prima facie case because “the RIF” was not a “particular
employment practice” subject to challenge under Title VII’s
disparate-impact provisions. Davis v. District of Columbia,
246 F. Supp. 3d 367, 393–97 (D.D.C. 2017).

II

The Supreme Court has made clear that, for disparate-
impact claims, “the plaintiff’s burden in establishing a prima
facie case goes beyond the need to show that there are statistical
disparities in the employer’s work force.” Wards Cove, 490
U.S. at 656 (quoting Watson, 487 U.S. at 994 (plurality
opinion)). If the prima facie case required nothing more,
employers would face potential liability for “the myriad of
innocent causes that may lead to statistical imbalances in the
composition of their work forces.” Id. at 657 (quoting Watson,
487 U.S. at 992 (plurality opinion)). As a result, “disparate-
impact liability might cause race to be used and considered in
a pervasive way and ‘would almost inexorably lead’
 4
governmental or private entities to use ‘numerical quotas.’”
Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys.
Project, Inc., 135 S. Ct. 2507, 2523 (2015) (quoting Wards
Cove, 490 U.S. at 653). But racial balancing is “far from the
intent of Title VII,” Albemarle Paper Co. v. Moody, 422 U.S.
405, 449 (1975) (Blackmun, J., concurring in judgment), as the
statute itself makes clear: “Nothing contained in this
subchapter shall be interpreted to require any employer … to
grant preferential treatment … on account of an imbalance …
with respect to the total number or percentage of persons of any
race” employed. 42 U.S.C. § 2000e-2(j). Moreover, if
disparate-impact liability effectively compelled racial
balancing regardless of the qualification of individual
employees, it would be at war with the more fundamental
prohibition against disparate treatment “because of … race,”
id.§ 2000e-2(a)(1); see Ricci v. DeStefano, 557 U.S. 557, 577–
85 (2009), and would raise “serious constitutional questions,”
Inclusive Cmtys., 135 S. Ct. at 2523; see Ricci, 557 U.S. at 594–
96 (Scalia, J., concurring).

For these reasons, Wards Cove required disparate-impact
plaintiffs to “begin by identifying the specific employment
practice that is challenged,” 490 U.S. at 656 (quoting Watson,
487 U.S. at 994 (plurality opinion)), and then to prove that it
caused the disparate impact, id. at 657 (“As a general matter, a
plaintiff must demonstrate that it is the application of a specific
or particular employment practice that has created the disparate
impact under attack.”); see also Meacham v. Knolls Atomic
Power Lab., Inc., 554 U.S. 84, 100 (2008) (the plaintiff must
“do more” than “point to a generalized policy that leads to” a
disparate impact (cleaned up)). Congress later codified the
requirement that the plaintiff identify “a particular employment
practice that causes a disparate impact.” 42 U.S.C. § 2000e-
2(k)(1)(A)(i). My colleagues recognize this basic governing
legal framework. Ante at 12–14, 16–17.
 5
Under this framework, the decision to hire or fire workers
cannot by itself form the basis for disparate-impact claims. In
Smith v. City of Jackson, 544 U.S. 228 (2005), the Supreme
Court affirmed summary judgment for an employer charged
with using a pay plan that adversely affected older workers.
The Court explained that, under Wards Cove, “it is not enough
to simply allege that there is a disparate impact on workers, or
point to a generalized policy that leads to such an impact.” Id.
at 241. Rather, the plaintiffs had to identify a “specific test,
requirement, or practice within the pay plan that has an adverse
impact on older workers.” Id. (emphasis added). Likewise, in
Davis v. Cintas Corp., 717 F.3d 476 (6th Cir. 2013), the Sixth
Circuit held that, for hiring claims, the “particular employment
practice” supporting the claim “cannot be the hiring system
itself.” Id. at 496. And, as my colleagues acknowledge,
various district courts have applied these principles to conclude
that “a RIF is not a particular practice subject to disparate-
impact challenge under Title VII.” Ante at 18. These decisions
advance the basic purpose of requiring a “particular
employment practice” in the first place—to prevent employers
from facing large exposure for “the myriad of innocent causes
that may lead to statistical imbalances.” Wards Cove, 490 U.S.
at 657 (quoting Watson, 487 U.S. at 992 (plurality opinion)).

Throughout this litigation, the plaintiffs have predicated
their disparate-impact claim on “the RIF, as a whole.”
Appellants’ Br. at 20. But as my colleagues explain, “RIF” is
simply a “shorthand for downsizing a workforce.” Ante at 18.
Thus, the gravamen of the plaintiffs’ claim is that a set of
layoffs caused the racial composition of the Agency’s
workforce to change. The plaintiffs do not link that change to
anything besides the layoffs. So, they have not identified any
“particular employment practice” that caused the adverse
impact, and their claim runs afoul of a key Title VII teaching:
“a Title VII plaintiff does not make out a case of disparate
 6
impact simply by showing that, at the bottom line, there is
racial imbalance in the work force.” Wards Cove, 490 U.S. at
657 (quotation marks omitted).

In response, the plaintiffs argue that neither pre-1991 Title
VII cases (such as Wards Cove) nor age-discrimination cases
(such as Smith) apply here. Before 1991, Wards Cove
governed disparate-impact claims under both Title VII and the
Age Discrimination in Employment Act (ADEA). See Smith,
544 U.S. at 240. The operative ADEA provision, 29 U.S.C.
§ 623(a)(2), tracks 42 U.S.C. § 2000e-2(a)(2), the original Title
VII provision that Griggs construed to give rise to disparate-
impact liability. But in the Civil Rights Act of 1991, Congress
disapproved certain aspects of Wards Cove, see Pub. L. No.
102-166, § 2(2), 105 Stat. at 1071; expanded disparate-impact
liability under Title VII, see id. § 105, 105 Stat. at 1074–75;
and left the ADEA unchanged. As a result, the plaintiffs argue,
neither Wards Cove nor ADEA cases now govern disparate-
impact analysis under Title VII.

The plaintiffs’ argument confuses different aspects of the
disparate-impact framework. What Congress disapproved was
Wards Cove’s formulation of the business-necessity defense,
see Pub. L. No. 102-166, § 3(2), 105 Stat. at 1071, which it
narrowed. Compare Wards Cove, 490 U.S. at 659 (“there is no
requirement that the challenged practice be ‘essential’ or
‘indispensable’ to the employer’s business”), and id. (burden
of persuasion “remains with the disparate-impact plaintiff”),
with 42 U.S.C. § 2000e-2(k)(1)(A)(i) (employer must
“demonstrate that the challenged practice is job related for the
position in question and consistent with business necessity”).
But far from disapproving Wards Cove’s requirement that the
plaintiff identify the “specific or particular employment
practice that has created the disparate impact under attack,” 490
U.S. at 657, Congress codified that holding, in requiring the
 7
plaintiff to “demonstrate[]” that the employer “uses a particular
employment practice that causes a disparate impact,” 42 U.S.C.
§ 2000e-2(k)(1)(A)(i). The plaintiffs further try to distinguish
a “specific” practice under Wards Cove from a “particular”
practice under the statute. But that distinction is insubstantial;
“specific” and “particular” are synonyms, and Wards Cove
used them as such. See 490 U.S. at 657. Moreover, since 1991,
the Supreme Court repeatedly has cited Wards Cove’s holding
on the need for a “specific” or “particular” employment
practice as good law, see, e.g., Inclusive Cmtys., 135 S. Ct. at
2522–23; Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 357
(2011), and other courts have recognized it as such, see, e.g.,
Reyes v. Waples Mobile Home Park Ltd. P’ship, 903 F.3d 415,
425 (4th Cir. 2018); Tabor v. Hilti, Inc., 703 F.3d 1206, 1223
(10th Cir. 2013). Finally, courts addressing the statutory
requirement of a “particular employment practice” have cited
Title VII and ADEA precedents interchangeably. See, e.g.,
Davis, 717 F. 3d at 496–97.

The plaintiffs claim support from three cases, but none
helps their position. In Aliotta v. Bair, 614 F.3d 556 (D.C. Cir.
2010), we did not decide whether a RIF qualified as a specific
employment practice that could support disparate-impact
liability. Instead, we affirmed summary judgment for the
employer because the plaintiffs had shown no adverse impact
in any event. See id. at 569–70 (“the RIF disproportionately
affected younger employees”). Moreover, Council 31 v. Ward,
978 F.2d 373 (7th Cir. 1992), and Shollenbarger v. Planes
Moving & Storage, 297 F. App’x 483 (6th Cir. 2008),
considered disparate-impact claims predicated not on RIFs as
such, but on specific decisions through which the RIFs had
been implemented. See id. at 486 (“We conclude that the
challenged employment practice of subjecting only certain
[predominantly female] departments to the RIF had a
legitimate business justification.”); Council 31, 978 F.2d at 379
 8
(permitting challenge to “the initial decision to concentrate the
layoffs in Chicago,” where “black employees are
concentrated”). Neither case supports the plaintiffs’ disparate-
impact challenge to “the RIF, as a whole.”

Finally, the plaintiffs seek to challenge the RIF under 42
U.S.C. § 2000e-2(k)(1)(B)(i), which provides that if the
plaintiff “can demonstrate to the court that the elements of a
respondent’s decisionmaking process are not capable of
separation for analysis,” then “the decisionmaking process may
be analyzed as one employment practice.” In opposing
summary judgment, the plaintiffs never invoked that provision,
much less sought to create a triable issue on whether the
Agency’s decisionmaking was “capable of separation for
analysis.” The plaintiffs thus have forfeited this possible basis
for attacking the RIF as a whole. See, e.g., Chichakli v.
Tillerson, 882 F.3d 229, 234 (D.C. Cir. 2018).

III

My colleagues do not seek to defend the plaintiffs’
arguments on their own terms, but rather to recast them. They
repackage the plaintiffs’ broad challenge to the RIF as a much
narrower attack on “the Agency’s choices to (a) target the SWA
and SSA job categories for elimination; and (b) allow managers
to make putatively individualized, discretionary and subjective
choices of which positions to winnow from other units.” Ante
at 14. They thus describe this case as one involving “the
practices through which an employer implements a RIF,” ante
at 15, along the lines contemplated by Council 31 and
Shollenbarger.

What my colleagues describe is not the case that the
plaintiffs presented, either below or on appeal. Instead, the
plaintiffs have consistently framed their lawsuit as a challenge
to the RIF writ large. In the district court, they opposed
 9
summary judgment by arguing that “a RIF conducted due to
budget cuts is a facially neutral employment practice that can
be considered under disparate impact theory.” Pls.’ Mem.,
ECF Doc. 148 at 38. Then, they stated unequivocally that “the
specific employment practice in this case is the RIF.” Id. at 40.
On appeal, the plaintiffs continued to direct their challenge to
“the RIF, as a whole.” Appellants’ Br. at 20; accord
Appellants’ Reply Br. at 6 (“the RIF is the ‘particular
employment practice’ that resulted in a disparate impact based
on race”); id. at 8 (“the discriminatory ‘particular employment
practice’ that disparately impacted Plaintiffs-Appellants was
the RIF itself”). And at oral argument, the plaintiffs repeated
this point no fewer than six times. See Oral Arg. 2:38 (“a RIF
is a particular employment practice”); 4:24 (“the RIF was a
particular employment practice”); 5:56 (challenging “the
decision to lay off employees”); 9:57 (“The target is the layoff
decision”); 10:23 (“plaintiffs have met their prima facie duty to
identify the RIF as a particular employment practice”); 13:12
(“the RIF does meet Title VII”). As the plaintiffs pursued it,
this case was about the RIF itself.

Moreover, in the district court, the plaintiffs expressly
disclaimed both of the challenges now suggested by my
colleagues. Far from alleging that the SWA and SSA positions
were targeted for elimination, the plaintiffs posited that these
positions were replaced by a new, functionally identical
position of Family Support Worker (FSW). Pls.’ Mem., ECF
Doc. 148 at 8–11. Furthermore, the plaintiffs described the RIF
as an “agency-wide” layoff driven by budget cuts, id. at 37–38,
and they argued that “[n]othing” in the record “indicated that
the RIF targeted particular positions,” id. at 6. As for
subjective judgments, the plaintiffs said in no uncertain terms,
in a bolded argument heading: “The RIF was not the result of
subjective decision-making.” Id. at 39. The plaintiffs made
these disclaimers not once, but several times. See, e.g., id. at 3
 10
(“there is not a single piece of evidence on the record that
supports” the premise that the RIF was concentrated in
“specific offices and divisions within the agency” (quotation
marks omitted)); id. (“the agency undertook a neutral cost-
cutting move rather than a targeted realignment”); id. at 40
(“Defendant simply cannot show that the RIF was a targeted
subjective process”); Pls.’ Stmt. Disputed Material Facts, ECF
Doc. 148-1 at 3 (“Nothing … indicated that the RIF targeted
particular positions or was conducted as a result of individual
decisions.”); id. at 4 (“The personnel cuts were not driven by a
targeted realignment of the Agency.”). Even on appeal, the
plaintiffs never sought to predicate their claim on the putative
targeting of SWA and SSA positions. They do now briefly
argue that the RIF was implemented through an ad hoc system
of “subjective” decisionmaking, Appellants’ Br. at 25–27, but
parties cannot change positions on appeal, see Keepseagle v.
Perdue, 856 F.3d 1039, 1053–54 (D.C. Cir. 2017).

The district court clearly identified what the plaintiffs were
and were not challenging. As it explained, the plaintiffs
“framed the RIF itself” as the challenged employment practice,
246 F. Supp. 2d at 396, and they affirmatively argued “that the
RIF was not the result of targeted, subjective decision-
making,” id. at 395. The court further observed: “Plaintiffs
might have framed the purported neutral employment practice
as the elimination of the SSA and SSW positions,” but they
“did not elect to do so.” Id. at 397. The court thus did not
embrace the sweeping conclusion that worries my
colleagues—that any “method of implementing” a RIF is
immune from disparate-impact scrutiny. Ante at 17–18.
Rather, the court simply rejected the challenge presented to it,
while not addressing other challenges that the plaintiffs could
have made but did not.
 11
My colleagues respond that because the Agency’s specific
“processes” for implementing the RIF are “properly before the
court,” we are not “limited to the particular legal theories
advanced by the parties.” Ante at 20 (quoting Kamen v.
Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)). But Kamen
simply holds that, if the parties properly present an “issue or
claim,” forfeiture cannot force a court to decide it under an
incorrect “construction of governing law.” 500 U.S. at 99.
Here, the claims challenging the Agency’s specific processes
are not properly before the court, for the plaintiffs repeatedly
disavowed them. The plaintiffs claim only that “the RIF, as a
whole” violated Title VII, and we may readily evaluate that
claim based on our own assessment of the governing law.
Moreover, the plaintiffs’ challenge to “the RIF, as a whole”
cannot be deemed an “umbrella claim,” Lebron v. Nat’l R.R.
Passenger Corp., 513 U.S. 374, 381 (1995) (quotation marks
omitted), encompassing challenges to the RIF’s constituent
parts. That theory runs headlong into Title VII, which prohibits
disparate-impact challenges to an employer’s overall
“decisionmaking process” unless the plaintiff shows that its
elements are “not capable of separation for analysis,” 42 U.S.C.
§ 2000e-2(k)(1)(B)(i)—a showing that the plaintiffs did not
even attempt below. Despite my colleagues’ creative efforts,
the governing forfeiture rule here is a pedestrian one: Where
distinct employment practices are at issue, plaintiffs must
separately preserve challenges to each one. See, e.g., Brooks v.
Grundmann, 748 F.3d 1273, 1278–79 (D.C. Cir. 2014); Sellers
v. Deere & Co., 791 F.3d 938, 943 n.4 (8th Cir. 2015).

The requirement of precisely identifying the challenged
employment practice is no mere pleading quibble. To the
contrary, it has substantial consequences in any Title VII case.
Here, for example, a challenge to the alleged targeting of SWA
and SSA positions would have benefitted substantially fewer
prospective class members, thus also substantially reducing the
 12
expected aggregate recovery for the class. It also would have
rendered irrelevant the agency-wide statistics developed by the
plaintiffs’ own expert, given the “essential requirement” that
“the data concern those persons subject to the challenged
employment practice.” Carpenter v. Boeing Co., 456 F.3d
1183, 1196 (10th Cir. 2006); see also Sengupta v. Morrison-
Knudsen Co., 804 F.2d 1072, 1076 (9th Cir. 1986) (“The
impact of a practice on the protected class should generally be
measured against the actual pool of employees affected by that
practice.”).1 Likewise, a challenge to the practice of permitting
individual supervisors to evaluate subordinates subjectively
would have raised a host of difficulties—including objections
that “merely proving that the discretionary system has
produced a racial or sexual disparity is not enough” to establish
a prima facie case, Wal-Mart, 564 U.S. at 357; that there are
obvious business justifications for permitting subjective
assessments of employees, id. at 355; and that localized
decisionmaking forecloses the possibility of class certification,
id. at 348–60. In this context as elsewhere, our adversarial
system holds litigants to their tactical choices, because it
presumes that “the parties know what is best for them, and are
responsible for advancing the facts and arguments entitling
them to relief.” Greenlaw v. United States, 554 U.S. 237, 244
(2008) (quotation marks omitted).

1
My colleagues suggest that agency-wide statistics might
suffice to make the case that they sketch out. Ante at 20–21. But a
Title VII plaintiff must “demonstrate that each particular challenged
employment practice causes a disparate impact.” 42 U.S.C. § 2000e-
2(k)(1)(B)(i). So, a case resting on (1) elimination of the SSA and
SWA positions and (2) use of individual supervisors’ subjective
decisions to make further cuts would need separate statistical
analyses of each practice.
 13
In short, the plaintiffs challenged nothing more specific
than the RIF. Because the RIF is not a “particular employment
practice” within the meaning of Title VII, the plaintiffs failed
to establish a prima facie case of disparate-impact
discrimination. Accordingly, I respectfully dissent from Part
II.A of the Court’s opinion, but join the balance of Part II.