>> this court -- two major opinions on this are, of course, griggs and smith. the same issue was wrestled with with the other courts who have found the same thing in the court of appeals. wrestling with this because of, and it at least admits it is a -- it can't -- it's a permissible reading either way. >> in smith, however the court -- the plurality opinion cited two additional things. it didn't just say because of can mean disparate impact. it cited the effects language garage, which was the subject of some questions during general keller's argument, but it also cited the rfoa provision. neither of those -- i think the lad latter is more significant and there's nothing like that in title 8, is there? >> the exemptions are similar. he came in said and even if you have disparate impact, if it's a reasonable factor other than age, we're going to excuse the disparate impact. now, the exemptions speak to the disparate impact, and there's nothing in there that says to use it -- there's another reason you can excuse it, that those don't count. >> is that critical to