                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 15-3201
UNITED STATES EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
                                                 Plaintiff-Appellant,

                                v.

AUTOZONE, INC., and
AUTOZONERS, LLC,
                                              Defendants-Appellees.
                    ____________________

        Appeal from the United States District Court for the
          Northern District of Illinois, Eastern Division.
             No. 14 C 5579 — Amy J. St. Eve, Judge.
                    ____________________

              On Petition for Rehearing En Banc.
                   ____________________

                 DECIDED NOVEMBER 21, 2017
                    ____________________

   Before WOOD, Chief Judge, and FLAUM, EASTERBROOK,
KANNE, ROVNER, SYKES, HAMILTON, and BARRETT, Circuit
Judges.
2                                                 No. 15-3201

    PER CURIAM. On consideration of the EEOC’s petition for
rehearing, the panel has voted unanimously to deny rehear-
ing. A judge in active service called for a vote on the request
for rehearing en banc. A majority of judges in active service
voted to deny rehearing en banc. Chief Judge Wood and
Judges Rovner and Hamilton voted to grant rehearing en
banc.
    It is therefore ordered that the petition for rehearing and
for rehearing en banc is DENIED.
No. 15-3201                                                     3

   WOOD, Chief Judge, and ROVNER and HAMILTON,
Circuit Judges, dissenting from denial of rehearing en banc.
     This case presents a straightforward question under
Title VII of the Civil Rights Act of 1964: Does a business’s
policy of segregating employees and intentionally assigning
members of different races to different stores “tend to deprive
any individual of employment opportunities” on the basis of
race? The panel answered this question “not necessarily.” I
cannot agree with that conclusion. The importance of the
question and the seriousness with which we must approach
all racial classifications convince me that this case is worth the
attention of the full court.
                                 I
    Title VII makes it unlawful for any employer to “limit,
segregate, or classify his employees … in any way which
would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).
The Equal Employment Opportunity Commission argues
that AutoZone violated this provision when it used race as the
defining characteristic for sorting employees into separate
facilities—in this case, a “Hispanic” store located at South
Kedzie Avenue and West 49th Street, and an “African-
American” store in Chicago’s Roseland neighborhood. The
Commission, whose factual allegations we must credit at this
stage, claims that AutoZone went so far as to transfer one
African-American employee, Kevin Stuckey, from the Kedzie
store to the Roseland store in order to ensure the racial
homogeneity of both locations.
4                                                    No. 15-3201

    Under the panel’s reasoning, this separate-but-equal
arrangement is permissible under Title VII so long as the
“separate” facilities really are “equal.” In other words, if a
Title VII plaintiff cannot prove that her employer’s intentional
maintenance of racially segregated facilities diminished her
“pay, benefits, or job responsibilities,” then her employer has
not violated section 2000e-2(a). See EEOC v. AutoZone, Inc.,
860 F.3d 564, 565, 566, 567, 568 (7th Cir. 2017). That conclusion,
in my view, is contrary to the position that the Supreme Court
has taken in analogous equal protection cases as far back as
Brown v. Board of Education, 347 U.S. 483 (1954), and it is
contrary to the position that this court took in Kyles v. J.K.
Guardian Security Services, Inc., 222 F.3d 289 (7th Cir. 2000).
    We can start with Brown to find support for the proposi-
tion that separate is inherently unequal, because deliberate ra-
cial segregation by its very nature has an adverse effect on the
people subjected to it. The Court in Brown observed that “the
Negro and white schools involved have been equalized, or are
being equalized, with respect to buildings, curricula, qualifi-
cations and salaries of teachers, and other ‘tangible’ factors.”
Brown, 347 U.S. at 492. Nevertheless, the Court held that
“[s]eparate educational facilities are inherently unequal” be-
cause separation itself has a detrimental effect on minority
children. Id. at 495. The Supreme Court has adhered scrupu-
lously to that holding. For example, in Parents Involved in Com-
munity Schools v. Seattle School District No. 1, 551 U.S. 701
(2007), in a part of the opinion for which he wrote for the
Court, Chief Justice Roberts reiterated that even well-moti-
vated racial classifications are inherently suspect, and that it
is never permissible to classify individuals in a way that
makes their race “determinative standing alone.” Id. at 723;
No. 15-3201                                                    5

see also id. at 748 (“The way to stop discrimination on the ba-
sis of race is to stop discriminating on the basis of race.”).
    Of course, private parties such as AutoZone are not
subject to the Fourteenth Amendment, but through
legislation that rests in part on section 5 of the Fourteenth
Amendment—namely, the Civil Rights Act of 1964, of which
Title VII is a key provision—the same principles carry over.
Our decision in Kyles makes that clear. As we explained in
Kyles, section 2000e-2(a)(2) broadens the protection offered by
other parts of the Civil Rights Act, by proscribing
“employment practices which in any way … would deprive
or tend to deprive any individual of employment
opportunities.” Kyles, 222 F.3d at 298 (internal quotation
marks omitted). If this had been a private suit brought by
Stuckey, it might have been appropriate for the panel to
disregard the effect of AutoZone’s racial segregation on
persons other than the plaintiff. But it was not. This was a suit
brought by the EEOC, under its authority to enforce Title VII.
The Commission made the point that, in addition to the
dignitary harm Stuckey suffered by being the victim of overt
racial segregation, AutoZone’s practice of designating the
Kedzie store as the “Hispanic” store and the Roseland store
as the “African-American” store deprived people who did not
belong to the designated racial group of employment
opportunities at their preferred geographic location. This
easily describes an adverse effect, based on impermissible
characteristics, on employment opportunities.
                               II
   The panel was worried that the Commission’s position—
according to which deliberate racial segregation necessarily
harms employees—would leave no work for the language in
6                                                  No. 15-3201

section 2000e-2(a)(2) calling for an employment action that
“deprive[s] or tend[s] to deprive any individual of employ-
ment opportunities or otherwise adversely affect[s] his status
as an employee.” I see no such risk. As I already have noted,
to the extent that the statute requires proof of an adverse ef-
fect apart from the inherent harms of racial segregation, the
Commission has made that showing. The ability to work at a
particular store or in a particular geographic area is itself a
“job opportunit[y]” within the plain meaning of the statute. If
the EEOC’s factual allegations are true, then AutoZone has
denied these job opportunities to certain employees based on
their race, thereby violating the clear text of section 2000e-2.
Nothing in the text of Title VII requires the Commission to
prove additional deprivations related to “pay, benefits, or job
responsibilities,” as the panel seems to assume.
    Unlike the panel, I do not believe that the Commission’s
interpretation of section 2000e-2 strips the “adverse effect”
requirement from the statute. There are some (though rare)
instances of segregation that are neither invidious nor
degrading; these types of segregation are permissible under
section 2000e-2 because they do not adversely affect
employees. For example, a business that segregates restrooms
or exercise facilities on the basis of sex does not necessarily
deprive its employees of employment opportunities or
otherwise harm them. Granted, it is harder to think of a
legitimate example involving racial segregation, but that is
because, as Parents Involved emphasized, it is very difficult to
think of any legitimate example of racial classifications. The
fact that racial segregation carries with it a unique stigma,
which makes it inherently harmful, does not provide grounds
to think that the statutory language requiring segregation to
have an adverse effect is superfluous. The same statute also
No. 15-3201                                                    7

covers color, religion, sex, and national origin; the validity of
an action “limit[ing], segregat[ing], or classify[ing]”
employees on any of those other bases would require its own
analysis.
                               III
    The facts of this case are (I hope) unusual: we have a plau-
sible allegation, backed up with evidence appropriately pre-
sented at the summary judgment stage, that an employer is
deliberately maintaining racially segregated workplaces.
Such a practice is one that, at a minimum, tends to deprive a
person of employment opportunities (i.e., all jobs at the loca-
tions for which his race is not a match) and adversely affects
his status as an employee by telling him that his job opportu-
nities with this employer are limited by his race. Perhaps the
EEOC could have put together more evidence to this effect
but, in my view, the statute’s broad language—which extends
to actions that “tend to deprive any individual”—does not re-
quire a factual showing any more extensive than the one that
the Commission already has provided.
    Because the panel’s opinion, as I read it, endorses the er-
roneous view that “separate-but-equal” workplaces are con-
sistent with Title VII, I respectfully dissent from denial of re-
hearing en banc.
