O'CONNOR, J., CONCURRING IN JUDGMENT
SMITH V. CITY OF JACKSON
544 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 03-1160
AZEL P. SMITH, et al., PETITIONERS
v.
CITY OF JACKSON, MISSISSIPPI, et al.
on writ of certiorari to the united states court of
appeals for the fifth circuit
[March 30, 2005]
Justice O’Connor, with whom
Justice Kennedy and Justice Thomas join, concurring in the
judgment.
“Disparate treatment … captures
the essence of what Congress sought to prohibit in the [Age
Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C.
§621
et seq.] It is the very essence of age discrimination
for an older employee to be fired because the employer believes
that productivity and competence decline with old age.”
Hazen
Paper Co. v.
Biggins,
507 U. S. 604, 610
(1993). In the nearly four decades since the ADEA’s enactment,
however, we have never read the statute to impose liability upon an
employer without proof of discriminatory intent. See
ibid.;
Markham v.
Geller,
451 U. S. 945 (1981)
(Rehnquist, J., dissenting from denial of certiorari). I decline to
join the Court in doing so today.
I would instead affirm the judgment below on
the ground that disparate impact claims are not cognizable under
the ADEA. The ADEA’s text, legislative history, and purposes
together make clear that Congress did not intend the statute to
authorize such claims. Moreover, the significant differences
between the ADEA and Title VII of the Civil Rights Act of 1964
counsel against transposing to the former our construction of the
latter in
Griggs v.
Duke Power Co.,
401 U. S. 424 (1971).
Finally, the agencies charged with administering the ADEA have
never authoritatively construed the statute’s prohibitory language
to impose disparate impact liability. Thus, on the precise question
of statutory interpretation now before us, there is no reasoned
agency reading of the text to which we might defer.
I
A
Our starting point is the
statute’s text. Section 4(a) of the ADEA makes it unlawful for an
employer:
“(1) to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age; [or]
“(2) 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 age … .” 29 U.
S. C. §623(a).
Neither petitioners nor the
plurality contend that the first paragraph, §4(a)(1), authorizes
disparate impact claims, and I think it obvious that it does not.
That provision plainly requires discriminatory intent, for to take
an action against an individual “
because of such
individual’s age” is to do so “by reason of” or “on account of” her
age. See Webster’s Third New International Dictionary 194 (1961);
see also
Teamsters v.
United States,
431 U. S. 324, 335–336,
n. 15 (1977) (“ ‘Disparate treatment’ … is the most
easily understood type of discrimination. The employer simply
treats some people less favorably than others
because of
their [protected characteristic]. Proof of discriminatory motive is
critical” (emphasis added)).
Petitioners look instead to the second
paragraph, §4(a)(2), as the basis for their disparate impact claim.
But petitioners’ argument founders on the plain language of the
statute, the natural reading of which requires proof of
discriminatory intent. Section 4(a)(2) uses the phrase “because of
… age” in precisely the same manner as does the preceding
paragraph—to make plain that an employer is liable only if its
adverse action against an individual is
motivated
by the individual’s age.
Paragraphs (a)(1) and (a)(2) do differ in one
informative respect. The employer actions targeted by paragraph
(a)(1)—
i.e., refusing to hire, discharging, or
discriminating against—are
inherently harmful to
the targeted individual. The actions referred to in paragraph
(a)(2), on the other hand—
i.e., limiting, segregating, or
classifying—are
facially neutral. Accordingly, paragraph
(a)(2) includes additional language which clarifies that, to give
rise to liability, the employer’s action must actually injure
someone: The decision to limit, segregate, or classify employees
must “deprive or tend to deprive [an] individual of employment
opportunities or otherwise adversely affect his status as an
employee.” That distinction aside, the structures of paragraphs
(a)(1) and (a)(2) are otherwise identical. Each paragraph prohibits
an employer from taking specified adverse actions against an
individual “because of such individual’s age.”
The plurality instead reads paragraph (a)(2)
to prohibit employer actions that “adversely affect [an
individual’s] status as an employe[e] because of such individual’s
age.” Under this reading, “because of … age” refers to the
cause of the adverse effect rather than the
motive for the employer’s action. See
ante, at 6. This reading is unpersuasive for two reasons.
First, it ignores the obvious parallel between paragraphs (a)(1)
and (a)(2) by giving the phrase “because of such individual’s age”
a different meaning in each of the two paragraphs. And second, it
ignores the drafters’ use of a comma separating the “because of …
age” clause from the preceding language. That comma makes plain
that the “because of … age” clause should not be read, as the
plurality would have it, to modify only the “adversely affect”
phrase. See,
e.g.,
United States v.
Ron Pair
Enterprises,
Inc., 489 U. S. 235, 241
(1989) (interpreting statute in light of the drafters’ use of a
comma to set aside a particular phrase from the following
language); see also B. Garner, A Dictionary of Modern Legal Usage
101 (2d ed. 1995) (“Generally, the word
because should not
follow a comma”). Rather, the “because of … age” clause is set
aside to make clear that it modifies the
entirety of the
preceding paragraph: An employer may not, because of an
individual’s age, limit, segregate, or classify his employees in a
way that harms that individual.
The plurality also argues that its reading is
supported by the supposed “incongruity” between paragraph (a)(2)’s
use of the plural in referring to the employer’s actions (“limit,
segregate, or classify his
employees”) and its use of the
singular in the “because of such
individual’s age” clause.
(Emphases added.)
Ante, at 7, n. 6. Not so. For the
reasons just stated, the “because of . . . age” clause modifies
all of the preceding language of paragraph (a)(2). That
preceding language is phrased in
both the plural (insofar
as it refers to the employer’s actions relating to
employees)
and the singular (insofar as it
requires that such action actually harm
an individual).
The use of the singular in the “because of . . . age” clause simply
makes clear that paragraph (a)(2) forbids an employer to limit,
segregate, or classify his employees if that decision is taken
because of
even one employee’s age and
that
individual (alone or together with others) is harmed.
B
While §4(a)(2) of the ADEA makes
it unlawful to intentionally discriminate because of age, §4(f)(1)
clarifies that “[i]t shall not be unlawful for an employer … to
take any action otherwise prohibited under subsections (a), (b),
(c), or (e) of this section … where the differentiation is based on
reasonable factors other than age … .” 29 U. S. C.
§623(f)(1). This “reasonable factors other than age” (RFOA)
provision “insure[s] that employers [are] permitted to use neutral
criteria” other than age,
EEOC v.
Wyoming,
460 U. S. 226,
232–233 (1983), even if this results in a disparate adverse impact
on older workers. The provision therefore expresses Congress’ clear
intention that employers
not be subject to liability
absent proof of intentional age-based discrimination. That policy,
in my view, cannot easily be reconciled with the plurality’s
expansive reading of §4(a)(2).
The plurality however, reasons
that the RFOA provision’s language instead confirms that §4(a)
authorizes disparate impact claims. If §4(a) prohibited only
intentional discrimination, the argument goes, then the RFOA
provision would have no effect because any action based on a factor
other than age would not be “ ‘otherwise prohibited’ ”
under §4(a). See
ante, at 9–10. Moreover, the plurality
says, the RFOA provision applies only to employer actions based on
reasonable factors other than age—so employers may still
be held liable for actions based on
unreasonable nonage
factors. See
ante, at 10.
This argument misconstrues the purpose and
effect of the RFOA provision. Discriminatory intent
is
required under §4(a), for the reasons discussed above. The role of
the RFOA provision is to afford employers an independent
safe
harbor from liability. It provides that, where a plaintiff has
made out a prima facie case of intentional age discrimination under
§4(a)—thus “creat[ing] a presumption that the employer unlawfully
discriminated against the employee,”
Texas Dept. of Community
Affairs v.
Burdine, 450 U. S. 248, 254
(1981)—the employer can rebut this case by producing evidence that
its action was based on a reasonable nonage factor. Thus, the RFOA
provision codifies a safe harbor analogous to the “legitimate,
nondiscriminatory reason” (LNR) justification later recognized in
Title VII suits.
Ibid.; McDonnell Douglas Corp. v.
Green,
411
U. S. 792, 802 (1973).
Assuming the
McDonnell Douglas
framework applies to ADEA suits, see
O’Connor v.
Consolidated Coin Caterers Corp.,
517 U. S. 308, 311
(1996), this “rebuttal” function of the RFOA provision is arguably
redundant with the judicially established LNR justification. See
ante, at 9–10. But, at most, that merely demonstrates
Congress’ abundance of caution in codifying an
express
statutory exemption from liability in the absence of
discriminatory intent. See
Fort Stewart Schools v.
FLRA,
495
U. S. 641, 646 (1990) (provisions that, although “technically
unnecessary,” are sometimes “inserted out of an abundance of
caution—a drafting imprecision venerable enough to have left its
mark on legal Latin
(ex abundanti cautela)”). It is
noteworthy that even after
McDonnell Douglas was decided,
lower courts continued to rely on the RFOA exemption, in lieu of
the LNR justification, as the basis for rebutting a prima facie
case of age discrimination. See,
e.g.,
Krieg v.
Paul Revere Life Ins. Co., 718 F. 2d 998, 999 (CA11
1983)
(per curiam); Schwager v.
Sun Oil Co.
of Pa., 591 F. 2d 58, 61 (CA10 1979);
Bittar v.
Air Canada, 512 F. 2d 582, 582–583 (CA5 1975)
(per curiam).
In any event, the RFOA provision also plays a
distinct (and clearly nonredundant) role in “mixed-motive” cases.
In such cases, an adverse action taken in substantial part because
of an employee’s age may be “otherwise prohibited” by §4(a). See
Desert Palace, Inc. v.
Costa,
539 U. S. 90, 93 (2003);
Price Waterhouse v.
Hopkins,
490 U. S. 228, 262–266
(1989) (O’Connor, J., concurring in judgment). The RFOA exemption
makes clear that such conduct is nevertheless lawful so long as it
is “based on” a reasonable factor other than age.
Finally, the RFOA provision’s reference to
“reasonable” factors serves only to prevent the employer from
gaining the benefit of the statutory safe harbor by offering an
irrational justification. Reliance on an unreasonable nonage factor
would indicate that the employer’s explanation is, in fact, no more
than a pretext for
intentional discrimination. See
Reeves v.
Sanderson Plumbing Products, Inc.,
530 U. S. 133,
147 (2000); see also
Hazen Paper, 507 U. S., at
613–614.
II
The legislative history of the
ADEA confirms what its text plainly indicates—that Congress never
intended the statute to authorize disparate impact claims. The
drafters of the ADEA and the Congress that enacted it understood
that age discrimination was qualitatively different from the kinds
of discrimination addressed by Title VII, and that many legitimate
employment practices would have a disparate impact on older
workers. Accordingly, Congress determined that the disparate impact
problem would best be addressed through noncoercive measures, and
that the ADEA’s prohibitory provisions should be reserved for
combating intentional age-based discrimination.
A
Although Congress rejected
proposals to address age discrimination in the Civil Rights Act of
1964, §715 of that Act directed the Secretary of Labor to undertake
a study of age discrimination in employment and to submit to
Congress a report containing “such recommendations for legislation
to prevent arbitrary discrimination in employment because of age as
he determines advisable,” 78 Stat. 265. See
General Dynamics
Land Systems, Inc. v.
Cline,
540 U. S. 581, 586–587 (2004);
EEOC v.
Wyoming,
supra, at 229. In
response, Secretary Willard Wirtz submitted the report that
provided the blueprint for the ADEA. See Report of the Secretary of
Labor, The Older American Worker: Age Discrimination in Employment
(June 1965), reprinted in U. S. Equal Employment Opportunity
Commission, Legislative History of the Age Discrimination in
Employment Act 83 (1981) (hereinafter Wirtz Report or Report).
Because the ADEA was modeled on the Wirtz Report’s findings and
recommendations, the Report provides critical insights into the
statute’s meaning. See generally Blumrosen, Interpreting the ADEA:
Intent or Impact 14–20, in Age Discrimination in Employment Act: A
Compliance Manual for Lawyers and Personnel Practitioners 83–89 (M.
Lake ed. 1982); see also
General Dynamics,
supra,
at 587–590 (relying on the Wirtz Report to interpret the ADEA);
EEOC v.
Wyoming, 460 U. S., at 230–231
(discussing the Report’s role in the drafting of the ADEA).
The Wirtz Report reached two
conclusions of central relevance to the question presented by this
case. First, the Report emphasized that age discrimination is
qualitatively different from the types of discrimination prohibited
by Title VII of the Civil Rights Act of 1964 (
i.e., race,
color, religion, sex, and national origin discrimination). Most
importantly—in stark contrast to the types of discrimination
addressed by Title VII—the Report found no evidence that age
discrimination resulted from intolerance or animus towards older
workers. Rather, age discrimination was based primarily upon
unfounded assumptions about the relationship between an
individual’s age and her ability to perform a job. Wirtz Report 2.
In addition, whereas ability is nearly always completely unrelated
to the characteristics protected by Title VII, the Report found
that, in some cases, “there is in fact a relationship between [an
individual’s] age and his ability to perform the job.”
Ibid. (emphasis deleted).
Second, the Wirtz Report drew a sharp
distinction between “ ‘arbitrary discrimination’ ” (which
the Report clearly equates with disparate treatment) and
circumstances or practices having a disparate impact on older
workers. See
id., at 2, 21–22. The Report defined
“arbitrary” discrimination as adverse treatment of older workers
“because of assumptions about the effect of age on their ability to
do a job
when there is in fact no basis for these
assumptions.”
Id., at 2 (emphasis in original). While
the “most obvious kind” of arbitrary discrimination is the setting
of unjustified maximum age limits for employment,
id., at
6, naturally the Report’s definition encompasses a broad range of
disparate treatment.
The Report distinguished such “arbitrary”
(
i.e., intentional and unfounded) discrimination from two
other phenomena. One involves differentiation of employees based on
a genuine relationship between age and ability to perform a job.
See
id., at 2. In this connection, the Report examined
“circumstances which unquestionably affect older workers more
strongly, as a group, than they do younger workers,” including
questions of health, educational attainment, and technological
change.
Id., at 11–14.[
Footnote 1] In addition, the Report assessed
“institutional arrangements”—such as seniority rules, workers’
compensation laws, and pension plans—which, though intended to
benefit older workers, might actually make employers less likely to
hire or retain them.
Id., at 2, 15–17.
The Report specifically recommended
legislative action to prohibit “arbitrary discrimination,”
i.e., disparate treatment.
Id., at 21–22. In
sharp contrast, it recommended that the other two types of
“discrimination”—both involving factors or practices having a
disparate impact on older workers—be addressed through noncoercive
measures: programs to increase the availability of employment;
continuing education; and adjustment of pension systems, workers’
compensation, and other institutional arrangements.
Id.,
at 22–25. These recommendations found direct expression in the
ADEA, which was drafted at Congress’ command that the Secretary of
Labor make “specific legislative recommendations for implementing
the [Wirtz Report’s] conclusions,” Fair Labor Standards Amendments
of 1966, §606, 80 Stat. 845. See also
General Dynamics,
540 U. S., at 589 (“[T]he ADEA … begins with statements of purpose
and findings that mirror the Wirtz Report”).
B
The ADEA’s structure confirms
Congress’ determination to prohibit only “arbitrary” discrimination
(
i.e., disparate treatment based on unfounded
assumptions), while addressing practices with a disparate adverse
impact on older workers through noncoercive measures. Section
2—which sets forth the findings and purposes of the statute—draws a
clear distinction between “the setting of arbitrary age limits
regardless of potential for job performance” and “certain otherwise
desirable practices [that] may work to the disadvantage of older
persons.” 29 U. S. C. §621(a)(2). In response to these
problems, §2 identifies three purposes of the ADEA: “[1] to promote
employment of older persons based on their ability rather than age;
[2] to prohibit arbitrary age discrimination in employment; [and 3]
to help employers and workers find ways of meeting problems arising
from the impact of age on employment.” §621(b).
Each of these three purposes
corresponds to one of the three substantive statutory sections that
follow. Section 3 seeks to “promote employment of older persons” by
directing the Secretary of Labor to undertake a program of research
and education related to “the needs and abilities of older workers,
and their potentials for continued employment and contribution to
the economy.” §622(a). Section 4, which contains the ADEA’s core
prohibitions, corresponds to the second purpose: to “prohibit
arbitrary age discrimination in employment.” Finally, §5 addresses
the third statutory purpose by requiring the Secretary of Labor to
undertake a study of “institutional and other arrangements giving
rise to involuntary retirement” and to submit any resulting
findings and legislative recommendations to Congress.
§624(a)(1).
Section 4—including §4(a)(2)—must be read in
light of the express statutory purpose the provision was intended
to effect: the prohibition of “arbitrary age discrimination in
employment.” §621(b). As the legislative history makes plain,
“arbitrary” age discrimination had a very specific meaning for the
ADEA’s drafters. It meant disparate
treatment of older
workers, predominantly because of unfounded assumptions about the
relationship between age and ability. See
supra, at 8–10.
Again, such intentional discrimination was clearly distinguished
from circumstances and practices merely having a disparate impact
on older workers, which—as ADEA §§2, 3, and 5 make clear—Congress
intended to address through research, education, and possible
future legislative action.
C
In addition to this affirmative
evidence of congressional intent, I find it telling that the
legislative history is devoid of any discussion of disparate impact
claims or of the complicated issues such claims raise in the ADEA
context. See Gold, Disparate Impact Under the Age Discrimination in
Employment Act of 1967, 25 Berkeley J. Emp. & Lab. L. 1, 40
(2004). At the time the ADEA was enacted, the predominant focus of
antidiscrimination law was on intentional discrimination; the
concept of disparate impact liability, by contrast, was quite
novel. See,
e.g., Gold,
Griggs’ Folly: An Essay
on the Theory, Problems, and Origin of the Adverse Impact
Definition of Employment Discrimination and a Recommendation for
Reform, 7 Indus. Rel. L. J. 429, 518–520 (1985); Blumrosen,
Strangers in Paradise:
Griggs v. Duke Power Co. and the
Concept of Employment Discrimination, 71 Mich. L. Rev. 59,
69–71 (1972). Had Congress intended to inaugurate disparate impact
liability in the ADEA, one would expect to find some indication of
that intent in the text and the legislative history. There is
none.
D
Congress’ decision not to
authorize disparate impact claims is understandable in light of the
questionable utility of such claims in the age-discrimination
context. No one would argue that older workers have suffered
disadvantages as a result of entrenched historical patterns of
discrimination, like racial minorities have. See
Massachusetts
Bd. of Retirement v.
Murgia,
427 U. S. 307, 313–314
(1976)
(per curiam); see also Wirtz Report 5–6.
Accordingly, disparate impact liability under the ADEA cannot be
justified, and is not necessary, as a means of redressing the
cumulative results of past discrimination. Cf.
Griggs, 401
U. S., at 430 (reasoning that disparate impact liability is
necessary under Title VII to prevent perpetuation of the results of
past racial discrimination).
Moreover, the Wirtz Report
correctly concluded that—unlike the classifications protected by
Title VII—there often
is a correlation between an
individual’s age and her ability to perform a job. Wirtz Report 2,
11–15. That is to be expected, for “physical ability generally
declines with age,”
Murgia,
supra, at 315, and in
some cases, so does mental capacity, see
Gregory v.
Ashcroft,
501 U. S. 452, 472
(1991). Perhaps more importantly, advances in technology and
increasing access to formal education often leave older workers at
a competitive disadvantage vis-ŕ-vis younger workers.
Wirtz Report 11–15. Beyond these performance-affecting factors,
there is also the fact that many employment benefits, such as
salary, vacation time, and so forth, increase as an employee gains
experience and seniority. See,
e.g.,
Finnegan v.
Trans World Airlines, Inc., 967 F. 2d 1161, 1164 (CA7
1992) (“[V]irtually all elements of a standard compensation package
are positively correlated with age”). Accordingly, many employer
decisions that are intended to cut costs or respond to market
forces will likely have a disproportionate effect on older workers.
Given the myriad ways in which legitimate business practices can
have a disparate impact on older workers, it is hardly surprising
that Congress declined to subject employers to civil liability
based solely on such effects.
III
The plurality and Justice Scalia
offer two principal arguments in favor of their reading of the
statute: that the relevant provision of the ADEA should be read
in pari materia with the parallel provision of Title VII,
and that we should give interpretive weight or deference to agency
statements relating to disparate impact liability. I find neither
argument persuasive.
A
The language of the ADEA’s
prohibitory provisions was modeled on, and is nearly identical to,
parallel provisions in Title VII. See
McKennon v.
Nashville Banner Publishing Co.,
513 U. S. 352, 357
(1995);
Lorillard v.
Pons,
434 U. S. 575, 584
(1978). Because
Griggs,
supra, held that Title
VII’s §703(a)(2) permits disparate impact claims, the plurality
concludes that we should read §4(a)(2) of the ADEA similarly.
Ante, at 4–9.
Obviously, this argument would be
a great deal more convincing had
Griggs been decided
before the ADEA was enacted. In that case, we could safely
assume that Congress had notice (and therefore intended) that the
language at issue here would be read to authorize disparate impact
claims. See,
e.g.,
Department of Energy v.
Ohio,
503
U. S. 607, 626 (1992);
Holmes v.
Securities
Investor Protection Corporation,
503 U. S. 258, 268
(1992). But
Griggs was decided four years
after
the ADEA’s enactment, and there is no reason to suppose that
Congress in 1967 could have foreseen the interpretation of Title
VII that was to come. See
Fogerty v.
Fantasy,
Inc.,
510 U. S.
517, 523, n. 9 (1994); see also
supra, at 10–11
(discussing novelty of disparate impact theory at the
time of the ADEA’s enactment).
To be sure, where two statutes use
similar language we generally take this as “a strong indication
that [they] should be interpreted pari passu.”
Northcross v. Board of Ed. of Memphis City
Schools, 412 U.
S. 427, 428 (1973) (per curiam). But this is not a
rigid or absolute rule, and it “ ‘readily yields’ ” to
other indicia of congressional intent. General Dynamics,
540 U. S., at 595 (quoting Atlantic Cleaners & Dyers,
Inc. v. United States, 286 U. S. 427, 433
(1932)). Indeed, “ ‘the meaning [of the same words] well may
vary to meet the purposes of the law.’ ” United
States v. Cleveland Indians Baseball Co., 532 U. S. 200, 213
(2001) (alteration in original) (quoting Atlantic Cleaners
& Dyers, supra, at 433). Accordingly, we have not
hesitated to give a different reading to the same language—whether
appearing in separate statutes or in separate provisions of the
same statute—if there is strong evidence that Congress did not
intend the language to be used uniformly. See, e.g.,
General Dynamics, supra, at 595–597 (“age” has
different meaning where used in different parts of the ADEA);
Cleveland Indians, supra, at 213 (“wages paid”
has different meanings in different provisions of Title 26 U.
S. C.); Robinson v. Shell Oil Co., 519 U. S. 337, 343–344
(1997) (“employee” has different meanings in different parts of
Title VII); Fogerty, supra, at 522–525 (Copyright
Act’s attorney’s fees provision has different meaning than the
analogous provision in Title VII, despite their “virtually
identical language”). Such is the case here.
First, there are significant
textual differences between Title VII and the ADEA that indicate
differences in congressional intent. Most importantly, whereas the
ADEA’s RFOA provision protects employers from liability for any
actions not motivated by age, see supra, at 4–7, Title VII
lacks any similar provision. In addition, the ADEA’s structure
demonstrates Congress’ intent to combat intentional discrimination
through §4’s prohibitions while addressing employment practices
having a disparate impact on older workers through independent
noncoercive mechanisms. See supra, at 8–11. There is no
analogy in the structure of Title VII. Furthermore, as the
Congresses that adopted both Title VII and the
ADEA clearly recognized, the two statutes were intended to address
qualitatively different kinds of discrimination. See
supra, at 7–8. Disparate impact liability may have a
legitimate role in combating the types of discrimination addressed
by Title VII, but the nature of aging and of age discrimination
makes such liability inappropriate for the ADEA. See
supra, at 12–13.
Finally, nothing in the Court’s
decision in Griggs itself provides any reason to extend
its holding to the ADEA. As the plurality tacitly acknowledges,
ante, at 6, the decision in Griggs was not based
on any analysis of Title VII’s actual language. Rather, the
ratio decidendi was the statute’s perceived
purpose, i.e.,
“to achieve equality of employment
opportunities and remove barriers that have operated in the past to
favor an identifiable group of white employees over other
employees. Under the Act, practices, procedures, or tests neutral
on their face, and even neutral in terms of intent, cannot be
maintained if they operate to ‘freeze’ the status quo of prior
discriminatory employment practices.” 401 U. S., at
429–430.
In other words, the Court in
Griggs reasoned that disparate impact liability was
necessary to achieve Title VII’s ostensible goal of eliminating the
cumulative effects of historical racial discrimination. However,
that rationale finds no parallel in the ADEA context, see
Murgia, 427 U. S., at 313–314, and it therefore should not
control our decision here.
Even venerable canons of
construction must bow, in an appropriate case, to compelling
evidence of congressional intent. In my judgment, the significant
differences between Title VII and the ADEA are more than sufficient
to overcome the default presumption that similar language is to be
read similarly. See Fogerty, supra, at 523–524
(concluding that the “normal indication” that similar language
should be read similarly is “overborne” by differences between the
legislative history and purposes of two statutes).
B
The plurality asserts
that the agencies charged with the ADEA’s administration “have
consistently interpreted the [statute] to authorize relief on a
disparate-impact theory.” Ante, at 10. In support of this
claim, the plurality describes a 1968 interpretive bulletin issued
by the Department of Labor as “permitt[ing]” disparate impact
claims. Ibid. (citing 29 CFR §860.103(f)(1)(i) (1970)).
And the plurality cites, without comment, an Equal Employment
Opportunities Commission (EEOC) policy statement construing the
RFOA provision. Ante, at 11 (citing 29 CFR §1625.7
(2004)). It is unclear what interpretive value the
plurality means to assign to these agency statements. But Justice
Scalia, at least, thinks that the EEOC statement is entitled to
deference under Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837 (1984),
and that “that is sufficient to resolve this case.” Ante,
at 5 (opinion concurring in part and concurring in judgment). I
disagree and, for the reasons that follow, would give no weight to
the statements in question.
The 1968 Labor
Department bulletin to which the plurality alludes was intended to
“provide ‘a practical guide to employers and employees as to how
the office representing the public interest in its enforcement will
seek to apply it.’ ” 29 CFR §860.1 (1970) (quoting
Skidmore v. Swift & Co., 323 U. S. 134, 138
(1944)). In discussing the RFOA provision, the bulletin states that
“physical fitness requirements” and “[e]valuation factors such as
quantity or quality of production, or educational level” can
qualify as reasonable nonage factors, so long as they have a valid
relationship to job qualifications and are uniformly applied.
§§860.103(f)(1), (2). But the bulletin does not construe the ADEA’s
prohibitory provisions, nor does it state or imply that
§4(a) authorizes disparate impact claims. Rather, it establishes “a
nonexclusive objective test for employers to use in determining
whether they could be certain of qualifying for the” RFOA
exemption. Public Employees Retirement System of Ohio v.
Betts, 492
U. S. 158, 172 (1989) (discussing 1968 bulletin’s
interpretation of the §4(f)(2) exemption). Moreover, the very same
bulletin states unequivocally that “[t]he clear purpose [of the
ADEA] is to insure that age, within the limits prescribed by the
Act, is not a determining factor in making any decision
regarding the hiring, dismissal, promotion or any other term
condition or privilege of employment of an individual.” §860.103(c)
(emphasis added). That language is all about discriminatory
intent.
The EEOC statement cited by the
plurality and relied upon by Justice Scalia is equally unhelpful.
This “interpretative rule or policy statement,” promulgated in
1981, superseded the 1968 Labor Department bulletin after
responsibility for enforcing the ADEA was transferred from Labor to
the EEOC. See 46 Fed. Reg. 47724 (1981). It states, in relevant
part:
“[W]hen an employment practice,
including a test, is claimed as a basis for different treatment of
employees or applicants for employment on the grounds that it is a
‘factor other than’ age, and such a practice has an adverse impact
on individuals within the protected age group, it can only be
justified as a business necessity.” 29 CFR §1625.7(d)
(2004).
Like the 1968 bulletin it replaces,
this statement merely spells out the agency’s view, for purposes of
its enforcement policy, of what an employer must do to be certain
of gaining the safety of the RFOA haven. It says nothing about
whether disparate impact claims are authorized by the
ADEA.
For Justice
Scalia, “[t]his is an absolutely classic case for deference to
agency interpretation.” Ante, at 1 (opinion concurring in
part and concurring in judgment). I disagree. Under
Chevron, we will defer to a reasonable agency
interpretation of ambiguous statutory language, see 467 U. S., at
843–844, provided that the interpretation has the requisite “force
of law,” Christensen v. Harris County, 529 U.
S.576, 587 (2000). The rationale for such deference is that
Congress has explicitly or implicitly delegated to the agency
responsible for administering a statute the authority to choose
among permissible constructions of ambiguous statutory text. See
Chevron, supra, at 844. The question now before
us is not what it takes to qualify for the RFOA exemption, but
rather whether §4(a)(2) of the ADEA authorizes disparate impact
claims. But the EEOC statement does not purport to interpret the
language of §4(a) at all. Quite simply, the agency has not actually
exercised its delegated authority to resolve any ambiguity in the
relevant provision’s text, much less done so in a reasonable or
persuasive manner. As to the specific question presented,
therefore, the regulation is not entitled to any deference. See
John Hancock Mut. Life Ins. Co. v. Harris Trust and
Sav. Bank, 510
U. S. 86, 106–109, and n. 17 (1993); see also SEC
v. Sloan, 436 U. S. 103, 117–118
(1978); Adamo Wrecking Co. v. United States,
434 U. S. 275,
287–289, and n. 5 (1978).[Footnote 2]
Justice Scalia’s attempt to link
the EEOC’s RFOA regulation to §4(a)(2) is premised on a dubious
chain of inferences that, in my view, highlights the hazards of his
approach. Because the RFOA provision is “relevant only as
a response to employer actions ‘otherwise prohibited’ by the ADEA,”
he reasons, the “unavoidable meaning” of the EEOC statement is that
the agency “interprets the ADEA to prohibit employer actions that
have an ‘adverse impact on individuals within the protected age
group.’ ” Ante, at 4 (opinion concurring in part and
concurring in judgment) (quoting 29 CFR §1625.7(d) (2004)). But, of
course, disparate treatment clearly has an
“adverse impact on individuals within the protected age group,”
ibid., and Justice Scalia’s reading of the EEOC’s rule is
hardly “unavoidable.” The regulation says only that if an employer
wants to rely on a practice—say, a physical fitness test—as the
basis for an exemption from liability, and that test adversely
affects older workers, the employer can be sure of qualifying for
the exemption only if the test is sufficiently job related. Such a
limitation makes sense in disparate treatment cases. A test that
harms older workers and is unrelated to the job may be a pretext
for—or even a means of effectuating—intentional discrimination. See
supra, at 6–7. Justice Scalia completes his analytical
chain by inferring that the EEOC regulation must be read
to interpret §4(a)(2) to allow disparate impact claims
because that is the only provision of the ADEA that could
“conceivably” be so interpreted. Ante, at 4 (opinion
concurring in part and concurring judgment). But the support for
that inference is doubtful, to say the least. The regulation
specifically refers to employment practices claimed as a basis for
“different treatment of employees or applicants for
employment,” 29 CFR §1625.7(d) (2004) (emphasis added).
Section 4(a)(2), of course, does not apply to “applicants for
employment” at all—it is only §4(a)(1) that protects this group.
See 29 U. S. C. §623(a). That suggests that the EEOC must have
read the RFOA to provide a defense against claims under
§4(a)(1)—which unquestionably permits only disparate treatment
claims, see supra, at 2.
This discussion serves to
illustrate why it makes little sense to attribute to the agency a
construction of the relevant statutory text that the agency itself
has not actually articulated so that we can then “defer” to that
reading. Such an approach is particularly troubling where applied
to a question as weighty as whether a statute does or does not
subject employers to liability absent discriminatory intent. This
is not, in my view, what Chevron contemplated.
As an interpretation of the
RFOA provision, moreover, the EEOC regulation is both
unreasonable on its face and directly at odds with the Court’s
holding in today’s case. It says that the RFOA exemption is
available only if the employer’s practice is justified by a
“business necessity.” But the Court has rejected that reading of
the RFOA provision, and rightly so: There may be many “reasonable”
means by which an employer can advance its goals, and a given
nonage factor can certainly be “reasonable” without being
necessary. Ante, at 14; see also Western Air Lines,
Inc. v. Criswell, 472 U. S. 400, 419
(1985) (distinguishing “ ‘reasonable necessity’ ”
standard from “ ‘reasonableness’ ”). Of course, it is
elementary that “no deference is due to agency interpretations at
odds with the plain language of the statute itself.”
Betts, 492 U. S., at 171. The agency clearly misread the
RFOA provision it was attempting to construe. That error is not
necessarily dispositive of the disparate impact question. But I
think it highlights the improvidence of giving weight (let alone
deferring) to the regulation’s purported assumption that
an entirely different provision of the statute, which is
not even the subject of the regulation, authorizes disparate impact
claims. In my view, we should simply acknowledge that this
regulation is of no help in answering the question
presented.
IV
Although I would not
read the ADEA to authorize disparate impact claims, I agree with
the Court that, if such claims are allowed, they are strictly
circumscribed by the RFOA exemption. See ante, at 13–14.
That exemption requires only that the challenged employment
practice be based on a “reasonable” nonage factor—that is, one that
is rationally related to some legitimate business objective. I also
agree with the Court, ante, at 11, that, if disparate
impact claims are to be permitted under the ADEA, they are governed
by the standards set forth in our decision in Wards Cove
Packing Co. v. Atonio, 490 U. S. 642 (1989).
That means, as the Court holds, ante, at 12, that “a
plaintiff must demonstrate that it is the application of a
specific or particular employment practice that
has created the disparate impact under attack,” Wards
Cove, supra, at 657 (emphasis added); see also
Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 994
(1988) (opinion of O’Connor, J.). It also means that once the
employer has produced evidence that its action was based on a
reasonable nonage factor, the plaintiff bears the burden of
disproving this assertion. See Wards Cove, supra,
at 659–660; see also Watson, supra, at 997
(opinion of O’Connor, J.). Even if petitioners’ disparate impact
claim were cognizable under the ADEA, that claim clearly would fail
in light of these requirements.
Footnote 1
It is in this connection that the
Report refers to formal employment standards requiring a high
school diploma. See Wirtz Report 3. The Wirtz Report did say that
such a requirement would be “unfair” if an older worker’s years of
experience had given him an equivalent education. Ibid.
But the plurality is mistaken to find in this statement a
congressional “goal” of eliminating job requirements with a
disparate impact on older workers. See ante, at 6,
n. 5. Rather, the Wirtz Report discussed the diploma
requirement in the context of a broader discussion of the effects
of “wholly impersonal forces—most of them part of what is properly,
if sometimes too casually, called ‘progress.’ ” Wirtz Report
3. These forces included “the pace of changing technology, changing
jobs, changing educational requirements, and changing
personnel practices,” which “increase[d] the need for special
efforts if older workers’ employment prospects are to improve
significantly.” Ibid. (emphasis added); see also
id., at 11–15 (discussing the educational attainments of
older workers, together with health and technological change, in a
section entitled “The Necessary Recognition of Forces of
Circumstance”). The Report recommended that such forces be
addressed through noncoercive instead of prohibitory measures, and
it specifically focused on the need for educational opportunities
for older workers. See id., at 23–25.
Footnote 2
Because the EEOC regulation does
not actually interpret the text at issue, we need not address the
degree of deference to which the regulation would otherwise be
entitled. Cf. General Dynamics Land Systems, Inc. v.
Cline, 540 U. S. 581, 600 (2004) (declining
to address whether EEOC’s regulations interpreting the ADEA are
entitled to Chevron deference).
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