dissenting:
I respectfully dissent.
A.
The contractual arrangement challenged here by the EEOC is one that bestows on the directors of J & H — the supposed victims of invidious discrimination — privileges and powers held by few persons in the corporate world. Specifically, they acquire a substantial ownership stake in the firm, a share in its considerable profits, a seat on the board of directors, and a long-term payout of profits enjoyed upon retirement. Integral to this arrangement, J & H’s directors agree to retire at age 60 or 62, depending on their length of service. In this way, the ownership of the firm lies solely in the hands of the people who run it; succession of ownership and control is orderly and based on entrepreneurial talent; and a back-loaded post-retirement compensation scheme (the Ten-Year Contract) gives a tangible incentive for current directors to focus on long-term growth and stability rather than on quarterly or current-year profitability.
These supposed victims are the architects of this arrangement. As a class, they created it, they acceded to it when they accepted their directorships, and they hold the power to change it if they wish. They actively oppose the EEOC’s initiative, and have registered their opposition by affidavits filed in the district court. In short,, in this ease there is no grievance, no victim, no loss and no claim. I have thought about this, and I do not know why the EEOC should wish to dismantle this wise and provident scheme of corporate governance, or what public interest is served by regulating the age of the stockholder-directors of J & H, or why the EEOC has been inspired to allocate its resources to this struggle — leaving its 100,000 case backlog to grow and age. See EEOC Chairman Gilbert F. Casellas, Statement Before House Committee on Appropriations, 1996 WL 5511770 (Apr. 25, 1996); EEOC v. G-K-G, Inc., 39 F.3d 740, 744 (7th Cir.1994) (EEOC “has long complained of being understaffed and has long been criticized for delay”). As J & H observes, this case is “a nonsensical waste of public and private resources.”
Nevertheless, it seems to me that (as the majority holds) the EEOC has the power to press a claim on behalf of unwilling claimants. See 29 C.F.R. § 1626.13 (1996). Otherwise, an intimidated employee might derail an enforcement action that serves the interests of that employee and others who are or may become similarly situated. I therefore agree with the majority that the EEOC has the naked power to press a claim sua sponte -and against the express wishes of the supposed victims. Indeed, I would concur in the result if I thought that the statute did in fact proscribe J & H’s program of corporate ownership and governance.
I dissent on the ground that the directors are employers — as opposed to employees— for purposes of their contractual arrangements inter se, and therefore are not protected in respect of those arrangements by the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (the “ADEA”).1 In ascertaining whether the J & H directors are employers or employees, the majority focuses on only three factors that are not necessarily dispositive of the issue. In my view, such a limited inquiry necessarily fails to account for the economic realities of this case. A broad examination of all the circumstances reveals, at the very least, that material issues of fact preclude entry of summary judgment against J & H.
B.
As the majority points out, the ADEA’s definitions of the term “employee” and “em*1544ployer” are circular. See 29 U.S.C. § 630(b), (f). It is nevertheless settled that the ADEA’s “protection extends only to those individuals who are in a direct employment relationship with an employer, and that a claim under its provisions lies solely in favor of a person who is an employee at the time of termination.” Hyland v. New Haven Radiology Assocs., 794 F.2d 793, 796 (2d Cir. 1986). The EEOC may thus prevail on summary judgment only if there is no question that the directors, in implementing their governance and retirement scheme, acted pursuant to a “direct employment relationship with an employer.” If, on the other hand, a material issue is raised as to whether the directors were functioning as employers in implementing the policy, J & H must prevail on this appeal.
The majority’s inquiry on this issue is limited to the following three factors: (1) whether the directors perform duties traditionally performed by employees; (2) whether the directors were employed by separate entities; and (3) whether the directors report to others. Op. at 1539 (citing Lattanzio v. Security Nat'l Bank, 825 F.Supp. 86, 90 (E.D.Pa.1993)). The J & H directors hold positions as senior managers in the firm, are employed by no other entity, and report to one another in the course of their duties. For these reasons, the majority holds as a matter of law that the J & H directors are employees within the meaning of the ADEA. Op. at 1539-40.
I agree that the above three factors may be relevant to ascertaining employment status. But they cannot be dispositive. Employment status is to be determined based on the “economic reality” of the relationship between the individual and the firm as respects the challenged practice or decision. See Goldberg v. Whitaker House Cooperative, 366 U.S. 28, 33, 81 S.Ct. 933, 936-37, 6 L.Ed.2d 100 (1961). By definition, any inquiry based on economic reality cannot be limited to three yes or no questions. Goldberg requires us to undertake a searching inquiry into the circumstances of the case, as other circuits and the EEOC have done in ascertaining whether partners in partnerships are covered by the anti-discrimination laws. See, e.g., Fountain v. Metcalf, Zima & Co., 925 F.2d 1398, 1400-01 (11th Cir.1991) (focusing on “actual role played by the claimant in the operations of the involved entity and the extent to which the role dealt with traditional concepts of management, control, and ownership”); Wheeler v. Hurdman, 825 F.2d 257, 276 (10th Cir.) (examining “participation in profits and losses, exposure to liability, investment in the firm, partial ownership of the firm assets, and ... voting rights”), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987); EEOC v. Dowd & Dowd, 736 F.2d 1177, 1178 (7th Cir.1984) (examining “management, control and ownership” of professional corporation to determine whether shareholders were employees); EEOC Decision No. 85-4, 1985 WL 32777 (E.E.O.C.) at *2 n.4, 37 Fair Empl. Prac. Cas. (BNA) 1885, 1886 n. 4 (March 18, 1985) (“[T]he Commission will consider relevant factors including, but not limited to, the individual’s ability to control and operate the business and to determine compensation and the administration of profits and losses.”).
Moreover, the three factors considered by the majority are not particularly useful in ascertaining whether a director should be considered an employer or employee. The majority concedes that J & H directors “do take on additional oversight and policy-making responsibilities by virtue of their positions as directors,” but concludes that they perform duties traditionally performed by employees because they “continue their daily duties as senior officers or managers.” 2 Op. at 1539. The majority buttresses its conclusion with J & H’s admission that the directors “are also full-time employees of the *1545firm.”3 This hands-on role for all directors may be unusual in a company as large as J & H. But day-to-day work is not inconsistent with status as a director who is an employer-owner. Some directorships may be sinecures, but there are innumerable corporations in which the sole workers are the owner-directors. A J & H director does not surrender powers and duties as a director, or legal rights as a shareholder in the firm, because she runs a division or pitches a client. There is no support for the idea that persons who do the heavy lifting in a business are employees as opposed to directors and owners.4
The other two factors set forth in Lattan-zio and considered by the majority also seem to be beside the point. The sole shareholder of a corporation who holds the titles of director, chairman and CEO is unlikely to be “regularly employed by a separate entity.” Op. at 1539. But we would certainly consider her an “employer” within the meaning of the ADEA. Likewise, even the most senior directors and officers may be subject to “authoritative evaluation” of performance by their fellows. Op. at 1540. Such an arrangement may be indicative of a traditional employment relationship. But it may also be a convenient and effective way of ensuring that senior directors and officers remain accountable to each other for their performance. Partners, for example, often agree to evaluation by a committee of their peers. But that does not make them employees, because partners hold “unique status as business owners and managers ” that is incompatible with status as employees. Hyland, 794 F.2d at 797 (emphasis added). See also Fountain, 925 F.2d at 1400-01 (partners held not to be employees); Burke v. Friedman, 556 F.2d 867, 869 (7th Cir.1977) (same); EEOC Decision No. 85-4, 1985 WL 32777 (E.E.O.C.) at *1, 37 Fair Empl. Prac. Cas. (BNA) 1885, 1886 (March 18, 1985) (same).
C.
I would therefore go beyond the three Lattanzio factors in order to ascertain whether there is no material question that the J & H directors are in a direct relationship with an employer. J & H contends that its directors as directors share control, legal authority, voting rights and an entrepreneurial stake in J & H, and for that reason should be treated as employers when they adopt and implement policies binding only among themselves. The majority opinion, however, gives no weight to J & H’s argument:
We attach no particular significance to the fact that a director’s employment by J & H is “but an aspect of the fundamentally entrepreneurial relationship that the Directors have among themselves and to the firm as a whole.”
Op. at 1540.
In my view, the failure to attach outcome-determinative significance to that fact is the main analytical error in the majority opinion. Where directors own and control the firm, and where the board of directors “reports to no one other than itself[,] .... the individual board members are not employees” for purposes of the anti-discrimination laws. Chavero v. Local 241, 787 F.2d 1154, 1157 (7th Cir.1986) (per curiam). See also Zimmerman v. North American Signal Co., 704 F.2d 347, 351-52 (7th Cir.1983) (directors and un*1546paid, inactive officers were not employees); EEOC Decision No. 80-23, 1980 WL 8891 (E.E.O.C.) at *1-*2, 26 Fair Empl. Prac. Cas. (BNA) 1807, 1808 (Aug. 27, 1980) (trustees who held exclusive authority to control and manage a trust and its assets were employers, not employees of trust).
The J & H directors hold nearly all of the firm’s equity. All directors forgo regular salary, and instead are compensated solely on basis of the firm’s performance.5 Board members have final authority over specific areas of business, and often manage regional offices or entire lines of business. Each director is statutorily entitled by New Jersey law to one vote at meetings of the board. N.J.Stat.Ann. § 14A:6-7.1(1) & (4) (West 1969 & Supp.1996). The board has the power to dissolve the corporation, id. §§ 14A:12-l(l)(b), :12-4 & :12-2, amend the bylaws, id § 14A:2-9, amend the certificate of incorporation, id § 14A:9-2, approve mergers or consolidations, id § 14A:10-3, remove and appoint officers, id. § 14A:6-16, and determine the duties that officers shall perform, id § 14A:6-15. Because they own and control the company, J & H’s directors should be considered employers — not employees— for the same reasons that a general partner is considered a “business owner[ ] and manager[ ],” not an employee.6 Hyland 794 F.2d at 797. See also Fountain, 925 F.2d at 1400.
Furthermore, the status of J & H’s directors should be ascertained in relation to the challenged employment practice. That is because an individual may be both an employer and employee for purposes of the anti-discrimination laws. For example, a manager may be considered an “employer” in hiring or firing of subordinates, yet qualify as an “employee” if he were terminated for an impermissible reason. In my view, the J & H directors are acting as “employers” when they decide among themselves the issues of tenure and retirement that bind them all. At the very least, a material issue remains as to whether the J & H directors are employees or employers under the ADEA. See Sempier v. Johnson & Higgins, 45 F.3d 724, 728 n. 4. (3d Cir.) (“To the extent that [the plaintiff-director] on remand pursues relief [under the ADEA] related to his status as a director, this issue should be resolved by trial on the basis of the parties’ proof of his functions at J & H in that capacity.” (emphasis added)), cert. denied — U.S.-, 115 S.Ct. 2611, 132 L.Ed.2d 854 (1995); see also Caruso v. Peat, Marwick, Mitchell & Co., 717 F.Supp. 218, 222-223 (S.D.N.Y.1989) (denying defendant’s motion for summary judgment because material issues remained as to whether plaintiff-partner was an “employee”) (Walker, J.); Caruso v. Peat, Marwick, Mitchell & Co., 779 F.Supp. 382, 333 & 334 n. 2 (S.D.N.Y.1991) (question of plaintiffs employee status was decided by jury).
D.
In sum, it is true that J & H’s directors do some things that employees do. But what is relevant here is that they alone hold all the legal and financial power to direct the corporation’s acts. The challenged retirement policy is one that only the directors have the power to adopt. It affects only themselves; it impacts equally and without discrimination on each; and it is part of a comprehensive contractual arrangement governing the stock ownership, management succession, and economic destiny of J & H. J & H has estab: lished a material question of fact as to whether this policy impacts the directors as employees or as employers. But I think the *1547issue is so clear on this record that I would reverse.
. Necessarily, I also conclude that the injunction represents an abuse of discretion, since without a violation of the statute, there is no relief that can make sense. I think this will become even clearer as the injunction is refined, and the delicate contractual balances created by sophisticated financial professionals become distorted by windfalls, asymmetries, and . unsettled expectations. Indeed, the result in this appeal does not compel the conclusion that, equity justifies any ultimate relief at all.
. The majority relies in part on EEOC v. First Catholic Slovak Ladies Ass'n, in which the Sixth Circuit held that the elected directors of a nonprofit charitable institution performed duties typical of employees, and thus were "employees” under the ADEA. 694 F.2d 1068, 1070 (6th Cir.1982), cert. denied, 464 U.S. 819, 104 S.Ct. 80, 78 L.Ed.2d 90 (1983). But that opinion is silent as to the degree of control that the directors had *1545over the organization, or whether the directors held an entrepreneurial stake in the enterprise.
. The majority makes much of J & H’s admission that a J & H officer continues "in J & H’s active service as an officer and employee" upon nomination to the board of directors. Op. at 1540. But in determining whether a director occupies the role of employee or employer, the court’s inquiry "should not center on the label which the organization has chosen to give to the position.” First Catholic Slovak Ladies, 694 F.2d at 1070. Because I believe that the directors function purely as employers in setting their own terms of employment — which is the particularized inquiry we are required to undertake here — I attach no significance to the label used by J & H.
. Ascertaining employee status by reference to the most workaday tasks that a director performs in a business muddles the analysis. As the Tenth Circuit noted (in a case involving partners), such a rule would create “[a] potentially chaotic situation ... with partners drifting in to and out of covered 'employee' status, remaining partners all the while, with no one ever quite knowing who is an employee/partner and who is a 'pure' partner.” Wheeler v. Hurdman, 825 F.2d 257, 274 (10th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987).
. Directors receive (i) draws from the directors’ salary pool, which depends on the performance of the firm, and (ii) dividends on any dividend-paying stock they hold, the amount of which, again, depends entirely on the performance of the firm. From time to time, directors may be awarded by their fellow directors with additional shares for outstanding contributions to the enterprise.
. As the majority notes, J & H is precluded by Hyland from arguing that its corporate directors are de facto partners in a general partnership as a defense to liability trader the ADEA. Hyland, 794 F.2d at 797-98. But J & H is not making that argument. Instead, J & H argues that the directors hold ownership interests, legal authority and decision-making power commensurate with traditional employers, and for that reason cannot be considered employers in electing to bind themselves to J & H’s retirement policy.