Amicus Curiae Brief — Public Employees Retirement System of Ohio v. Betts

No. 88-389 JAN 31

—

SO JR.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

PUBLIC EMPLOYEES RETIREMENT SYSTEM OF OHIO,

Appellant,

V.

JUNE M. BETTs,

Appellee.

On Appeal from the United States Court of Appeals

for the Sixth Circuit

BRIEF AMICUS CURIAE OF

AMERICAN ASSOCIATION OF RETIRED PERSONS

IN SUPPORT OF APPELLEE

CHRISTOPHER G. MACKARONIS

(Counsel of Record)

STEVEN 8S. ZALEZNICK

CATHY VENTRELL-MONSEES

AMERICAN ASSOCIATION OF

RETIRED PERSONS

1909 K Street, N.W.

Washington, D.C. 20049

(202) 662-4957

Attorneys for Amicus Curiae

American Association of

Retired Persons

WILSON - Eres Printing Co., Inc. - 789-0096 - WasHINGTON. D.C. 20001

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST .................... 3 1

SUMMARY OF ARGUMENT... 2

DD , ‚ ,,, ]‚Z˙ÜòÜ ...... 4

I. AN EMPLOYER CANNOT DISPROVE “SUB-

TERFUGE” UNDER SECTION 4(f)(2) OF

THE ADEA MERELY BY DEMONSTRATING

THAT THE DISCRIMINATORY PROVISION

PRE-DATED THE LAW ..................................... 4

A. The Employer Bears The Burden Of Proof

Under Section 4(f) (fa) 4

B. Congress Has Overturned United Air Lines,

Ine. o. MeMana ......................... * 6

II. IN DEFENDING A CLAIM OF BENEFITS

DISCRIMINATION, ONLY AGE-RELATED

COST CONSIDERATIONS CAN DISPROVE

“SUBTERFUGE” UNDER SECTION 4(f) (2). 13

* A. The Legislative History Confirms The Lim-

ited Purpose Of Section 4(f) (2) —... — 14

B. The Contemporaneous Administrative Inter-

pretations of Section 4(f)(2) Requiring

Proof Of Equal Benefits Or Equal Cost Have

Been Specifically Endorsed By Congress 16

C. Following The 1978 Amendments, The Cost

Requirement For Disproving “Subterfuge”

Was Continued In Effect — — 19

OO — — — 21

ii

TABLE OF AUTHORITIES

CASES

AH. Phillips, Inc. v. Walling, 324 U.S. 490 (1945) ..

Air Line Pilots Association, International v. Trans

World Airlines, Inc., 713 F.2d 940 (2d Cir. 1983),

aff'd in part, rev'd on other grounds sub nom.

Trans Worla Airlines, Inc. v. Thurston, 469 US.

111 (1985) *

Alford v. City of Lubbock, 661 F.2d 1263 “(5th

Cir.), cert. denied, 456 U.S. 975 (198257

Betts v. Hamilton County Board of Mental Re-

tardation and Development Disabilities, 848 F.2d

OL! 85 !üñũ%öẽłé¹1!üũüçcͤͤ

Brennan v. Taft Broadcasting Co., 500 F.2d 212

(Sth Cir. 1974) —....-.. —

Celotex Corp. v. Catrett, 177 US. 317 (1986) —

Cipriano v. Board of Education of North Tona-

wanda, 785 F.2d 51 (2d Cir. 19885

Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir.

1976), aff'd per curiam by an equally divided

Court, 434 U.S. 99 (1977)

EEOC v. Associated Dry Goods Corp., 449 US. 590

SSS

EEOC v. Borden’s, Inc., 724 F.2d 1390 (9th Cir.

1984) 8. 9,

EEOC ». “Cargill, 7. “852 F.2d 682 “(10th Cir.

1988)

EEOC v. City of Mt. Lebanon, 842 F.2d 1480 (34

Cir. 1988)

EEOC v. County of Orange, 837 2d 420 “(9th

9, I ——ů—

EEOC v. Home Insurance Co., 672 F.2d 252 (2d

Cir. 1982)

EEOC v. State of ‘Maine, 823 F. 2d 3¹² (ist ‘Cir.

1987) ..

EEOC v. “Westinghouse ‘Electric ‘Corp. “48 Fair.

Empl. Prac. Cas. [BNA] 734 (3d Cir. 1988)

EEOC v. Westinghouse Electric Corp., 725 F. 2d

211 (3d Cir.), cert. denied, 469 U.S. 820 (1984)

14,17

11

5, 6, 13

11

7

11

13

5, 13.

14

iii

TABLE OF AUTHORITIES—Continued

Page

General Electric Co. v. Gilbert, 429 U.S. 125

r . 11

Griggs v. Duke Power Co., 401 U.S. 424 (1971) 17

Karlen v. City Colleges of Chicago, 837 F.2d 314

(7th Cir.), cert. denied, —— U.S. ——, 108

e 23. 5, 13

Lorillard v. Pons, 434 U.S. 575 (197 6

McMann v. United Air Lines, Inc., 542 F.? 217

r .... 7, 8, 12, 16

Newport News Shipbuilding & Dry Dock v. EEOC,

e 11

Piedmont & Northern Railway Co. v. Interstate

Commerce Commission, 286 U.S. 299 (1932) .... 4

Sikora v. American Can Co., 622 F.2d 1116 (3rd

r .... 7

Smart v. Porter Paint, 630 F.2d 490 (7th Cir.

EN è˙4“! T.. 7

Trafficante v. Metropolitan Life Insurance Co., 409

r 17

Trans World Airlines, Inc. v. Thurston, 469 U.S.

a eetnenonmnnone 4,6

United Air Lines, Inc. v. McMann, 434 U.S. 192

EE ... passim

United States v. Jackson, 280 U.S. 183 (1930) ......... 17

Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224

EGE 12

Western Air Lines, Inc. v. Criswell, 472 U.S. 400

e .. 4, 10, 12, 17

Zinger v. Blanchette, 549 F.2d 901 (3d Cir. 1977),

cert. denied, 434 U.S. 1008 (1977 8

STATUTES

Age Discrimination in Employment Act of 1967,

as amended, (ADEA), 29 U.S.C. § 621 et seq..... 1

r ̃ 22... 2,7

r eesgnmemennnnens 2,7

r . ——-—ẽ 12

e passim

Employee Retirement Income Security Act of 1974,

~ (ERISA), 29 U.S.C. § 1052 (a) (1) (B) ~.............. 16

iv

TABLE OF AUTHORITIES—Continued

Ohio Revised Code § 145.32

Ohio Revised Code § 145.33

Ohio Revised Code § 145.35 (o))

Pub. L. No. 93-259, 88 Stat. 74 (1974)...

Pub. L. No. 95-256, 92 Stat. 189 (197872

Pub. L. No. 99-509, § 9203 (a), 100 Stat. 1979

Pub. L. No. 99-592, § 2 (e), 100 Stat. 33422

Reorganization Plan No. 1 of 1978, 92 Stat. 3781....

LEGISLATIVE HISTORY

113 Cong. Rec. 7076 (March 16, 1967), reprinted in

Legislative History at 71 1

113 Cong. Rec. 7076-77 (March 16, 1967), reprinted

in Legislative History at 717c22̃/

113 Cong. Rec. 31255 (November 6, 1967), re-

printed in Legislative History at 14

113 Cong. Rec. 34746 (December 4, 1967), re-

printed in Legislative History at 15777

123 Cong. Rec. 34295 (October 19, 1977), reprinted

in Legislative History at 482 0.00... eee

124 Cong. Rec. 7881 (March 21, 1978), reprinted in

Legislative History at 5288888 10,

124 Cong. Rec. 7886 (March 21, 1978), reprinted in

Legislative History at 5388

124 Cong. Rec. 7887 (March 21, 1978), reprinted in

Legislative History at 5322.

124 Cong. Rec. 7888 (March 21, 1978), reprinted in

Legislative History at 53555

124 Cong. Rec. 8218 (March 23, 1978), reprinted in

Legislative History at 538-39 00-2.

124 Cong. Rec. 8219 (March 23, 1978), reprinted in

Legislative History at 539 20000000

H.R. Conf. Rep. No. 950, 95th Cong., 2d Sess. 8,

reprinted in Legislative History at 519 10, 12,

H.R. Conf. Rep. No. 1012, 99th Cong., Ist Sess.

r A AE i,

Hearings on S. 830 before the Subcommittee on

Labor of The Senate Committee on Labor and

Public Welfare, 90th Cong., Ist Sess. 27 (1967)..

15, 16

15

19

19, 20

17, 18

16

14

*

TABLE OF AUTHORITIES—Continued

Page

S. Rep. No. 493, 95th Cong., Ist Sess. 10, reprinted

in Legislative History at 443 (19817 8, 9, 12, 17, 18

S. Rep. No. 723, 90th Cong., 1st Sess. 14, reprinted

in Legislative History at 118 (1967) 14, 15

REGULATIONS $

29 C. F. R. § 860.120 (197999 20

29 C. F. R. § 860. 120 (a) (1969999 17

29 C. F. R. § 860.120 (a) (1) (1979999 5, 20

29 C. F. R. § 860.120 (f) (1) (iii) (19799999 21

29 C. F. R. § 860. 120 (f) (1) (iv) (A) (19799 16

29 C. F. R. § 1625.10 (a) (1) (1987) 5, 20

29 C. F. R. § 1625. 10 (d) (1987) 20

29 C. F. R. § 1625.10 (f) (1) (iii) (1987) 21

34 Fed. Reg. 9709 (June 21, 19690)99 17

44 Fed. Reg. 30,648 (May 25, 19799 20, 21

52 Fed. Reg. 23,811 (June 25, 1987) 5, 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-389

PUBLIC EMPLOYEES RETIREMENT SYSTEM OF OHIO,

Appellant,

V.

JUNE M. BETTs,

Appellee.

On Appeal from the United States Court of Appeals

for the Sixth Circuit

BRIEF AMICUS CURIAE OF

AMERICAN ASSOCIATION OF RETIRED PERSONS

IN SUPPORT OF APPELLEE

STATEMENT OF INTEREST

The American Association of Retired Persons (AARP)

is a not-for-profit corporation of more than thirty mil-

lion persons age fifty and older. AARP is the largest

organization of its kind in America. In representing

the interests of its members, AARP seeks to promote

the independence, dignity, and well-being of older Amer-

icans. More than eight million AARP members are

actively employed, many of whom are participating in

employee benefit plans and are covered by the provisions

of the Age Discrimination in Employment Act of 1967,

as amended, “ADEA,” 29 U.S.C. § 621 ef seq.

2

The issues in this case concern the circumstances in

which an employer may use age as the sole criterion for

eliminating valuable employee benefits. The legal issues

presented could materially affect the terms and condi-

tions of employment of millions of working Americans

and could have a profound effect on the willingness of

older persons to remain actively employed. Moreover,

such limitations could be detrimental to thousands of older

workers whom Congress sought to benefit by the recent

elimination of mandatory retirement. See Pub. L. No.

99-592, § 2(c), 100 Stat. 3342. AARP has a substantial

interest in the resolution of these issues, and for that

reason submits this brief amicus curiae.’

SUMMARY OF ARGUMENT

The purposes of the ADEA are “to promote employ-

ment of older persons based on their ability rather than

age” and “to prohibit arbitrary age discrimination in

employment.” 29 U.S.C. § 621(b). Consistent with these

purposes, the ADEA broadly prohibits discrimination

based on age in virtually all terms and conditions of em-

ployment. 29 U.S.C. $623(a). Through the enactment

of $4/(f)(2) of the ADEA, 29 U.S. C. § 623(f) (2),

Congress fashioned an exception designed to permit lim-

ited discrimination in employee benefit plans. The pur-

pose of $ 4/f)(2) was to ensure that employee benefits

were not more costly for older workers, a result which

specifically would have frustrated one of the ADEA’s

principal objectives—the hiring of older workers.

Shortly after the passage of the ADEA, regulations

issued by the enforcing agency * limited the scope of the

1 AARP files this brief with the written consents of the parties,

which have been filed with the Clerk of the Court.

2 Administrative and enforcement authority over the ADEA re-

sided with the Department of Labor from the date of the Act until

July 1, 1979, at which time it was transferred to the Equal Em-

§ 4(f) (2) exception to benefit reductions that were justi-

fied by age-related costs. This limitation effectively har-

monized the dual purposes of the ADEA by ensuring

that older workers would neither be more expensive to

hire nor would they be subject to arbitrary age-based

discrimination in employee benefits.

Relying on United Air Lines, Inc. v. McMann, 434

U.S. 192 (1977), the Appellant Public Employees Retire-

ment System of Ohio (hereafter “the State”) argues that

it need not provide any cost justification for the exclusion

of workers age sixty and older from its disability plan

simply because the discriminatory provision pre-dated

the ADEA. Congress has, however, explicitly rejected the

State’s argument.

In amending § 4(f) (2) in 1978, Congress meticulously

ensured that both the “reasoning and holding” of McMann

had been overturned. In so doing, Congress specifically

embraced the existing cost principles embodied in regula-

tions interpreting $4/f)(2), and made clear its intent

that a employee benefit plans, including those that pre-

dated the ADEA, must demonstrate a cost justification

for benefit reductions in order to satisfy the exception.

Subsequent to the 1978 amendments, more comprehen-

sive regulations were issued at the behest of Congress.

These regulations reiterated the longstanding cost inter-

pretation of § 4(f)(2) and specifically prohibited the type

of age-based denial challenged here.

Since the State did no more than point to the pre-

Act origins of the challenged disability provision, it

failed to meet its burden of proof under § 4(f) (2). In

consequence, the decision below should be affirmed.

ployment Opportunity Commission (EEOC). Reorganization Plan

No. 1 of 1978, 92 Stat. 3781, 42 Fed. Reg. 19807.

+

ARGUMENT

I. AN EMPLOYER CANNOT DISPROVE “SUTER-

FUGE” UNDER SECTION 4(f)(2) OF THE ADEA

MERELY BY DEMONSTRATINC THAT THE Dis-

CRIMINATORY PROVISION PRE-DATED THE

LAW.

A. The Employer Bears The Burden Of Proof Under

Section 4(f)(2).

Appellee June M. Betts (hereafter Betts“ was denied

both disability retirement benefits and the accompanying

right to resume service solely because of her age.“ In

order to escape liability from this per se violation of the

ADEA, the State was required to justify its conduct

under one of the ADEA’s narrow affirmative defenses.

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,

121-22 (1985). Acknowledging the age-based exclusion,

the State seeks refuge in the exception for bona fide

employee benefit plans set forth in §4(f)(2) of the

ADEA, 29 U.S.C. § 623(f) (2).*

In response to Betts’ motion for summary judgment,

it was the State’s responsibility to come forward with

evidence sufficient to demonstrate a triable issue of fact

See Ohio Revised Code § 145.35 (exclusion of persons age 60

and older) ; Ohio Revised Code § 145.35(b) (right to resume service

at same or “similar position and salary” ).

The burden of proof under § 4(f)(2) rests with the party in-

voking the defense. See Western Air Lines, Inc. v. Criswell, 472 U.S.

400, 416 n.24 (1985). That burden is substantial since § 4(f)(2), as

an exception to remedial social legislation, is to be narrowly con-

strued. Piedmont & Northern Railway Co. v. Interstate Commerce

Commission, 286 U.S. 299, 311-12 (1932) ; 4 H. Phillips, Inc. v. Wall-

ing, 324 U.S. 490, 493 (1945); 29 C. F. R. § 860.120(a)(1) (1979). Ac-

cordingly, the employer must show that the challenged practice

“plainly and unmistakably” meets the “terms and spirit” of the

remedial legislation that the ADEA represents. Air Line Pilots

Association, International v. Trans Nord Aivlines, uc, 713 F.2d

940, 954 (2d Cir. 1983), aff'd in part, rev'd on other grounds, sub.

nom. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985).

5

regarding the § 4(f) (2) defense, Celotex Corp v. Catrett,

477 US. 317 (1986), an issue upon which the State

would have the burden of proof at trial. There is unan-

imity among the Courts of Appeals that in order to

establish the § 4(f) (2) defense, an employer must prove

that the challenged action was taken (1) in observance

of the terms of (2) a bona fide employee benefit plan

which (3) is not a subterfuge to evade the purposes of

the ADEA.

Consistent with the language of § 4(f)(2),° both the

courts and administrative regulations have limited the

defense to employee benefit plans in which the cost of

the challenged benefit bears some discernible relationship

to the employee’s age. 29 C.F.R. § 860.120(a) (1), re-

codified at 29 C. F. R. § 1625.10(a) (1) ; 52 Fed. Reg. 23,811

(June 25, 1987. While disability plans, generically,

Karen v. City Colleges of Chicago, 837 F.2d 314, 318 (7th Cir.),

cert. denied, —— U.S. —, 108 S. Ct. 2038 (1988): EEOC v.

City of Mt. Lebanon, 842 F.2d 1480, 1488 (3d Cir. 1988 Cipriano

v. Board of Education of Education of North Tonawanda, 785 F.2d

51, 57 (2d Cir. 1986); EEOC v. Borden's, Inc., 724 F.2d 1390, 1395

(9th Cir. 1984) ; Crosland v. Charlotte Eye, Ear & Throat Hospital,

686 F. 2d 208, 212 (4th Cir. 1982).

The language of § 4(f)(2) qualifies the term “bona fide em-

ployee benefit plan” with the phrase “such as a retirement, pension,

or insurance plan.” In interpreting this language, three Courts of

Appeals have ruled “that Congress meant to exempt only certain

benefit schemes from the antidiscriminatory provisions of the Act.”

EEOC v. Borden's, Inc., 724 F.2d 1390, 1395 (9th Cir. 1984): see

also EEOC v. Westinghouse Electric Corp., 725 F.2d 211, 224

(3d Cir.), cert. denied, 469 U.S. 820 (1984); Alford v. City of

Lubbock, 664, F.2d 1263, 1272 (5th Cir.), cert. denied, 456 U.S.

975 (1982).

Thus, for example, neither uninsured sick leave plans, Alford

v. City of Lubbock, 664 F.2d 1263, 1272 (5th Cir.), cert. denied,

456 U.S. 975 (1982), nor severance payments based on years of serv-

ice, EEOC v. Borden's, Inc, 724 F. 2d 1390, 1395 (9th Cir. 1984), are

“bona fide employee benefit plans” within the meaning of § 4(f)(2).

See also 29 C. F. R. § 1625.10(a).

appear to be the type of plans intended to fall within the

defense because they involve age-related cost considera-

tions, see EEOC v. City of Mt. Lebanon, 842 F.2d 1480,

1488 (3d Cir. 1988), the State’s failure to show the in-

corporation of any age-related cost factors in its plan

constitutes a failure of proof that the plan is a “bona

fide plan” within the meaning of § 4(f) (2).

B. Congress Has Overturned United Air Lines, Inc. v.

McMann.

Beyond the “bona fide plan” hurdle, the employer must

prove that reducing or denying a benefit based on age is

not a “subterfuge.” The State argues that it met this

burden by demonstrating that the provision excluding all

employees age 60 and older pre-dated the ADEA. The

State argues, in effect, that in passing the ADEA in

1967, Congress intended to perpetuate, ad infinitum, all

age-based benefits discrimination then in effeet.“

This implausible result is wholly unsupported either

in the statute or its legislative history. With the passage

of the ADEA, Congress “broadly prohibited] arbitrary

discrimination in the workplace based on age.” Trans

World Airlines, Inc. v. Thurston, 469 U.S. 111, 120

(1985), quoting Lorillard v. Pons, 434 U.S. 575, 577

(1978). See also Dartt v. Shell Oil Co., 539 F.2d 1256,

1260 (10th Cir. 1976), affd per curiam by an equally

divided Court, 434 U.S. 99 (1977) (“the ADEA is re-

medial and humanitarian legislation and should be lib-

erally interpreted to effectuate the congressional purpose

of ending age discrimination in employment”). The

State's argument contravenes the broad remedial pur-

»The State's rationale, if correct, would apply to both public and

private employee benefit plans, exempting private plans enacted

prior to 1967, the date of passage of the ADEA, and exempting all

state and local plans enacted prior to 1974, when Congress extended

the ADEA to cover those entities. See Pub. L. No. 93-259, 8 Stat.

74 (1974).

7

poses of the ADEA to prohibit “arbitrary age discrim-

ination” (§2(b), 29 U.S.C. §621(b)) in “terms, con-

ditions, or privileges of employment. 29 U.S.C. § 623

(a) (1). Moreover, it has been specifically rejected by

Congress.

Relying exclusively on this Court’s decision in United

Air Lines, Inc. v. McMann, 434 U.S. 192 (1977), the

State argues that a pre-Act plan, by virtue of its date of

origin, cannot be a subterfuge within the meaning of

§ 4(f) (2). State’s Br. at 16-21.“

The amendment of § 4(f) (2), Pub. L. No. 95-256, 92

Stat. 189 (1978), overruling McMann and the amend-

ment’s legislative history demonstrate, however, that the

State errs by relying upon McMann as authoritative sup-

port for that proposition. The history of the 1978 amend-

* By arguing that pre-Act plans are per se “not a subterfuge,”

the State argues in essence that Congress intended to sanction all

age-based distinctions in pre-Act plans, no matter how arbitrary or

invidious. However, the maintenance as well as the institution of

4 plan can evidence the intent necessary to demonstrate that the

plan is a subterfuge to evade the purposes of the Act. See United

Air Lines, Inc. v. McMann, 434 U.S. at 219 n.13 (Marshall, J.

dissenting) ; McMann v. United Air Lines, Inc., 542 F.2d 217, 221

(4th Cir. 1976) (“the legislative history [of the original ADEA}

makes it clear that ... [t]o avail himself of the exemption, an

employer must demonstrate that a plan is not being maintained

as a subterfuge to evade the Act.” (emphasis added).

Focusing upon the institution of a plan, as appellant urges, is

particularly inappropriate in this case. As Betts explains in her

brief, there have been significant amendments to the disability plan

at issue here since 1974, when the ADEA was extended to state

and local governments. Indeed, the addition of a thirty percent

minimum disability benefit in 1976 has exacerbated the adverse

effect of the disability exclusion upon oder workers, and must be

independently justified. See EEOC v. Home Insurance Co., 672

F.2d 252 (2d Cir. 1982); Smart v. Porter Paint, 630 F.2d 490

(7th Cir. 1980). Cf. Sikora v. American Can Co., 622 F.2d 1116,

1124 (3d Cir. 1980) (alterations made after ADEA passage may be

examined to see if changes were designed to evade the purposes

of the Act).

ment to §4(f)(2) clearly indicates that Congress in-

tended to overrule McMann’s specific holding that in-

voluntary retirement pursuant to a pre-Act plan was

permissible, and its more general conclusion that an em-

ployer could demonstrate compliance with the “not a sub-

terfuge” language of § 4(f)(2) by pointing to the pre-

Act origins of a benefit plan.

In 1977, when Congress was considering amendments

to the ADEA, the courts of appeal were in disagree-

ment as to whether the “bona fide” and “subterfuge” lan-

guage contained in § 4(f)(2) permitted mandatory re-

tirement before age 65 pursuant to the terms of a retire

ment plan. In Zinger v. Blanchette, 549 F.2d 901 (3d

Cir. 1977), cert. denied, 434 U.S. 1008 (1978), and Bren-

nan v. Taft Broadcasting Co., 500 F.2d 212 (5th Cir.

1974), the Third and Fifth Circuits ruled that the lan-

guage of the excep ion permitted involuntary retirement.

Specifically, the Fifth Cireuit in Taft Broadcasting held

that a retirement plan “effectuated far in advance of the

enactment of the law” could not be a subterfuge for

evasion of the Act or its purposes. 500 F.2d at 215. In

contrast, the Fourth Circuit, in McMann v. United Air

Lines, Inc., 542 F.2d 217 (4th Cir. 1976), ruled that a

forced retirement pursuant to a pre-Act plan would be

considered a “subterfuge” to evade the purposes of the

Act absent an employer’s showing of a legitimate busi-

ness purpose for the age-based action. Id. at 220.

The Senate Report issued in 1977 accompanying the

bill to amend § 4(f) (2) (H.R. 5383) noted this conflict

among the courts of appeals in interpreting the section

and stated its “approval of the result reached by the

Fourth Circuit in McMann.” 8. Rep. No. 493, 95th

Cor g., Ist Sess. 10, reprinted in EEOC Legislative His-

tory of the Age Discrimination in Employment Act of

1967 at 443 (1981) ‘hereafter “Legislative History”).

Specifically rejecting the legal proposition upon which

the State relies here, the Report stated:

The Tart (sic) court found the language of the sec-

tion [4(f)(2)] unambiguous and refused to con-

sider the legislative history. It concluded, erron-

eously in the committee’s view, that a plan could not

be a subterfuge within the meaning of section 4(f) (2)

if it was operative before the effective date of the

act.

S. Rep. No. 493, 95th Cong., Ist Sess. 10, reprinted in

Legislative P ‘story at 443 (emphasis added).

Prior to the passage of the amendment, this Court

reversed the decision of the Fourth Circuit in McMann.

This Court held that under §4(f)(2), a bona fide”

retirement plan could lawfully impose mandatory re-

tirement. That holding was premised on this Court’s

reasoning that a plan could not constitute a subterfuge—

that is, “a scheme, plan, strategem or artifice’”—to evade

the Act or its purposes if the plan pre-dated the Act.

Within a matter of months, Congress “overruled” ”

the McMann decision by passing an amendment to

$ 4(f)(2) which states “no such seniority system or em-

ployee benefit pian shall require or permit the involun-

tary retirement of any individual covered by the Act].

The House and Senate Conference Committee Report ex-

plaining the amendment makes clear that the “subter-

fuge” clause was never intended to provide a blanket

exception for all pre-existing employee benefit plans. The

Report explains:

% The Court noted that the plan at issue there was conceded by

the parties to be “bona fide ‘in the sense that it exists and pays

benefits McMarn, 434 U.S. at 194 and n.2, and the Court there-

fore undertook no independent inquiry as to the meaning of “bona

fide.”

"In his dissent in McMann, Justice Marshall cautioned that

the effect of McMann would “be short lived,” 434 U.S. at 218,

recognizing that the Senate and House ad passed amendments to

overturn the majority's decision.

1 EEOC v. Borden's, Inc., 724 F 2d at 1395 n.4.

10

In McMann v. United Airlines,

(1977), the Supreme Court held

versing a decision reached by

holding and reasoning in that case. Plan provision

in effect prior to the date of enactment are not

empt under section 4(f)(2) by virtue of the

they antedate the act or these amendments.

H.R. Conf. Rep. No. 950, 95th Cong., 2d Sess. 8, r-

printed in Legislative History at 519 (emphasis added ;

see remarks of Senator Javits (“As stated in the cor

and reasoning

case. (emphasis added) 124 Cong. Rec. 8218 (Mara

fit plan which discriminates on the basis of age is pr-

tected by section 4(f)(2) because it pre-dates the enac-

ment of the ADEA.”) (emphasis added) 124 Cong. Re.

7881 March 21, 1978), reprinted in Legislative Histoy

at 528.“

13 During consideration of the 1978 amendments, Senator Javs,

“an active proponent of [ADEA) legislation” in both 1967 ad

1978, see Western Air Lines, Inc. v. Criswell, 472 US. 400, 46

n22 (1985), stated that the dissent in McMann correctly inte-

preted § 4(f)(2). 124 Cong. Rec. 8218 (March 23, 1978), reprimid

in Legislative History at 539. Justice Marshall, in the dissent o

which Senator Javits referred, stated his “emphatic disagreemat

with the majority and Justice Stewart's) suggestion that a bo.

Act plan cannot be a subterfuge to avoid the purposes of the Ac

434 U.S. at 218 n.13. Senator Javits’s comments regarding § f

are particularly instructive, since in 1967 he introduced the amed-

ment to the administration bill which became the final version of

54 t 113 Cong. Ree. 7076-77 (March 16, 1967), reprintedn

Legislative History at 71-72.

11

In eireumstances similar to these, this Court has held

that both the premise and holding of a decision over-

ruled” by Congress are invalid. In Newport News Ship-

building & Dry Dock v. EEOC, 462 U.S. 669 (1983), this

Court construed the Pregnancy Discrimination Act of

1978. That Act was passed for the express purpose of

overturning the decision in General Electric Co. v. Gil-

bert, 429 U.S. 125 (1975), which interpreted the anti-

discrimination provisions in Title VII of the Civil Rights

Act of 1964. In Newport News, this Court rejected the

argument that Congress intended only to overrule Gil-

bert’s result, an interpretation which would have limited

Congress’s action to prohibiting discrimination against

female employees. Instead, since Congress . . unam-

biguously expressed its disapproval of both the holding

and the reasoning of the court in the Gilbert decision,”

462 U.S. at 678 (emphasis added), this Court concluded

that the “premises” of Gilbert were overturned, 462

U.S. at 685, and that the amendment was intended to

also proscribe discrimination against male employees.

Compare Newport News, 462 U.S. at 678, with 462 U.S.

at 693-95 (Rehnquist, J., dissenting).

Nevertheless, that State argues that the explicit legis-

lative history regarding § 4(f) (2) should be ignored. On

the contrary, it is clear that the 1978 legislative history of

§ 4(f) (2) is germane in resolving the meaning of sub-

terfuge.” The cornerstone of this Court’s reasoning in

McMann and of its disagreement with the Fourth Cir-

cuit was the premise that § 4(f) (2) requires no showing

of business purpose for age-based policies contained in

pre-Act plans. See McMann, 434 U.S. at 198, 203. The

The reasoning of Newport News similarly repudiates the circuit

court decisions that rely on the reasoning of McMann as valid while

recognizing that McMann’s holding has been legislatively overruled.

See EEOC v. Cargill, Inc., 852 F.2d 682 (10th Cir. 1988); EEOC v.

County of Orange, 837 F.2d 420 (9th Cir. 1988); EEOC v. State of

Maine, 823 F.2d 542 (Ist Cir. 1987).

12

conferees’ unambiguous statement that McMann’s “rea-

soning” was erroneous establishes that Congress dis-

agreed not only with McMann’s holding regarding forced

retirement, but also with the Court’s subterfuge analysis

on which the holding was predicated.

Indeed, the State’s argument that the 1978 legislative

history can be discarded because the term “subterfuge”

was not actually amended (State’s Br. at 17-18) conflicts

with the analysis of this Court in Western Air Lines, Inc.

v. Criswell, 472 U.S. 400 (1985). In Criswell, this Court

considered another ADEA exception, the “bona fide oc-

cupational qualification“ (“BFOQ”) defense contained in

$4(f)(1) of the Act, 29 U.S.C. § 623 (f) (1). Even

though s 4(f) (1) was not amended in 1978, a unanimous

Court relied heavily upon the legislative history of the

1978 amendments in arriving at the appropriate stand-

ard governing $4(f)(1). The Court concluded that

“Congress, in considering the 1978 Amendments, implic-

itly endorsed the two-part inquiry for a BFOQ) iden-

tified by the Fifth Circuit“ in its decision in Usery v.

Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir.

i976). 472 U.S. at 415.

In Criswell, evidence of congressional endorsement“

of the Tamiami standard was found in the Senate Re-

port, S. Rep. No. 493, 95th Cong., Ist Sess. 10-11, re-

printed in Legislative History at 443-44, and in the Con-

ference Report, H.R. Conf. Rep. No. 950, 95th Cong., 2d

Sess. 7, reprinted in Legislative History at 518. Cris-

well, 472 U.S. at 415. These same sources of legislative

history relied upon by this Court in Criswell establish

Betts’ position here: that Congress refuted the “reason-

ing of the Fifth Cireuit in Taft Broadcasting Co. and

of the Supreme Court in McMann, and that it endorsed

the decision of the Fourth Circuit in McMann, which

held that all employee benefit plans, regardless of their

date of origin, must demonstrate a legitimate business

purpose to satisfy the “subterfuge” standard of

84 f (2).

13

II. IN DEFENDING A CLAIM OF BENEFITS DIS-

CRIMINATION, ONLY AGE-RELATED COST CON-

SIDERATIONS CAN DISPROVE “SUBTERFUGE”

UNDER SECTION 4(f)(2).

In its decision below, the Sixth Circuit held that the

denial of disability benefits to Betts violated the ADEA

in light of the State’s “failure to introduce any cost

figures or other economic justification for the different

treatment of employees over sixty.” Betts v. Hamilton

County Board of Mental Retardation and Development

Disabilities, 848 F.2d 692 (6th Cir. 1988).

Like the court below, other courts of appeals have re-

quired proof of a cost justification when employee bene-

fits have been reduced or eliminated based on age.“ In

defending an age-based benefit denial, as here, an em-

ployer can disprove “subterfuge” oniy by demonstrating

that equal benefits are provided or that equa) cost for

benefits is incurred.“

15 FEOC v. Westinghouse Electric Corp., 48 Fair Empl. Prac.

Cas. [BNA] 734 (3d Cir. 1988), (“Westinghouse II”) (severance

payments denied to employees electing pension benefits): Karlen

v. City Colleges of Chicago, 837 F.2d 314 (reduction in payment

of accumulated sick leave, denial of health insurance); EEOC v.

City of Mt. Lebanon, 842 F.2d 1480 (3d Cir. 1988) (denial of

disability benefits at age 60); EEOC v. Westinghouse Electric

Corp., 725 F.2d 211 (denial of severance pay for pension-eligible

employees age 55 and over).

16 Contrary to the State’s suggestion, it is not a “difficult task”

to reconcile the cost standard utilized by the enforcement agency

and the courts with the definition of “subterfuge” set forth in

McMann. (State’s Br. at 24 n.12). This Court’s general definition

of “subterfuge” as a “scheme, plan, stratagem or artifice” was

developed in the context of involuntary retirement, a practice

which Congress has since made clear was never permissible under

§ 4(f)(2). In the context of a benefit reduction (or cessation),

the only type of practice to which the § 4(f)(2) exception applies,

Congress, the enforcement agencies and the courts have uniformly

declared that a benefit reduction which is not cost justified is, in

effect, a “subterfuge,” i.e., a “scheme, plan, stratagem or artifice of

evasion.”

14

The legislative history of § 4(f)(2), as well as the

contemporaneous and longstanding administrative inter-

pretations of that section, confirm the quantifiable stand-

ards by which the court below addressed the “subterfuge”

issue. The legislative history demonstrates that Congress

wished to provide employers with the flexibility to make

only those differentiations in benefit levels necessitated

by age-related costs. See EEOC v. Borden’s, Inc., 724

F.2d at 1396; EEOC v. Westinghouse Electric Corp.,

725 F.2d at 224-25.

A. The Legislative History Confirms The Limited Pur-

pose Of Section 4(f)(2).

During consideration of the ADEA in 1967, Congress

acknowledged that the cost of providing certain benefits

to newly-hired older workers can be higher than provid-

ing the same benefits to younger workers. Senator Javits

proposed the amendment which became § 4(f) (2) " in

order to provide employers with the “flexibility” to make

necessary distinctions based on age and thereby to ensure

that employers would not be “discouraged from hiring

older workers because of the increased costs associated

with providing benefits to them.” S. Rep. No. 723, 90th

Cong., Ist Sess. 14, reprinted in Legislative History at

118; Hearings on S. 830 before the Subcommittee on

Labor of the Senate Committee on Labor and Public

Welfare, 90th Cong., Ist Sess. 27 (1967); see also EEOC

* Borden's, Inc., 724 F.2d at 1396.“ Senator Javits ex-

plained:

113 Cong. Rec. 7076 (March 16, 1967), reprinted in Legislative

History at 71.

The State argues, in effect, that in order to encourage the

hiring of older workers, Congress enacted a compromise in the

form of § 4(f)(2) which “exempt[ed] from the Act's coverage the

full panoply of employee benefit plans that otherwise might have

discouraged employers from becoming full partners in the effort

to eliminate arbitrary age discrimination.” State’s Br. at 39. The

State's reading of the purposes of § 4(f)(2) goes too far. In order

15

The meaning of this [§ 4(f) (2)] provision is as fol-

lows: An employer will not be compelled under this

section to afford to older workers exactly the same

pension, retirement, or insurance benefits as he af-

fords to younger workers.

113 Cong. Rec. 31255 (November 6, 1967), reprinted in

Legislative History at 146 (emphasis supplied). Thus,

the intent of Congress in enacting §4(f)(2) was to

ensure that employers need not provide “exactly the same

benefits” when to do so would result in the type of undue

expense that could discourage the hiring of older work-

ers.“

to eliminate any disincentives to hire older workers, Congress

needed only to ensure that they were of comparable expense to

younger workers. Congress did not, as the State suggests, create a

two-tiered system of protection in which older workers were “cheap”

labor entitled to few, if any, of the Act’s protections.

19 See also 8. Rep. No. 723, 90tn Cong., Ist Sess. 4 (1967) (“This

exception serves to emphasize the primary purpose of the bill—

hiring of older workers—without necessarily including such workers

in employee benefit plans.”); remarks of Senator Yarborough

(amendment will not deny older workers employment but will “limit

[their] rights to obtain full consideration” in benefit plans) 113

Cong. Rec. 31255 (November 6, 1967), reprinted in Legislative

History at 146 (emphasis supplied); remarks of Representative

Daniels ( 4(f)(2) “is designed to maximize employment possi-

bilities without working an undue hardship on employers in provid-

ing special and costly benefits.”) 113 Cong. Rec. 34746 (December 4,

1967), reprinted in Legislative History at 157 (emphasis added).

20 Contrary to the State’s argument (State’s Br. at 36-37), state-

ments in the 1967 legislative history indicating that some exclusions

of older workers could be permissible under the Act are not applica-

ble here for two simple reasons. First, the discussions concerning

exclusions uniformly pertained to plans which excluded employees

from participation at the date of hire, not to plans like the one

challenged here, which exclude all employees based on age, regard-

less of service. There is not a shred of legislative history showing

that Congress intended to permit employers to deprive long-service

employees of benefits upon the attainment of an arbitrary age.

Second, mention in 1967 of exclusions from an employee benefit

plan clearly pertained to pension plans. Indeed, those references

16

B. The Contemporaneous Administrative Interpreta-

tions of Section 4(f)(2) Requiring Proof Of Equal

Benefits Or Equal Cost Have Been Specifically En-

dorsed By Congress.

Shortly after passage of the Act, the Department of

Labor, which then had responsibility for enforcement of

the ADEA, interpreted the “subterfuge” provision of

§ 4(f)(2) as implementing a congressional intent that

age-based differences in employee benefits be permitted

where justified by valid cost considerations. This 1969

interpretation articulated an “equal benefit or equal

cost” principle as follows:

A retirement, pension, or insurance plan will be con-

sidered in compliance with the statute where the ac-

tual amount of payment made, or cost incurred, in

manifest congressional intent not to force employers to include in a

pension plan newly hired older workers who could not possibly meet

the vesting requirements of those plans and whose inclusion would

unduly disrupt the actuarial and cost expectations under which the

plans operated. Comments of Senator Yarborough, 113 Cong. Rec.

31255 (1967), reprinted in Legislative History at 146: see also

Alford v. City of Lubbock, 604 F.2d 1263, 1270 (5th Cir.), cert.

denied, 456 U.S. 975 (1982); cf. McMann v. United Air Lines, Inc.,

542 F.2d at 221.

Furthermore, the exclusions referred to in the 1967 legislative

history were later narrowly drawn by the employee Retirement In-

come Security Act of -974 (“ERISA”), 29 U.S.C. § 1052(a)(1)(B)

(employees can only be excluded from defined benefit pension

plans, and then only if hired within five years of the normal retire-

ment age in the plan). The limited exclusions in ERISA were

adopted by regulation to apply to all employers covered by the

ADEA, 29 C. F. R. § 860.120(f)(1)(iv)(A) (1979), and are included

in the Ohio statutes at Ohio Revised Code § 145.32 (all employees,

regardless of age at hire, must have five years of service to be

eligible for retirement benefits). In 1986. Congress amended the

ADEA and ERISA to prohibit, inter alia, the exclusion of any em-

ployee from any pension plan based on age at date of hire. See

Pub. L. No. 99-509. § 9203(a), 100 Stat. 1979 and H.R. Conf. Rep.

No. 1012, 99th Cong. Ist Sess. 379 (1986) (overall objectives of

these amendments is to assure that employee benefit plans do not

discriminate on the basis of age).

17

behalf of an older worker is equal to that made or

incurred in behalf of a younger worker, even though

the older worker may thereby receive a lesser

amount of pension or retirement benefits, or insur-

ance coverage.

29 C.F.R. § 860.120(a), 34 Fed. Reg. 9709 (June 21,

1969). See EEOC v. Borden’s, Inc., 724 F.2d at 1396.

As a contemporaneous construction of the statute by the

enforcement agency, the “equal benefit or equal cost”

principle is entitled to great deference by the courts.

EEOC v. Associated Dry Goods Corp., 449 U.S. 590,

600 n.17 (1981); Trafficante v. Metropolitan Life In-

surance Co., 409 U.S. 205, 210 (1972); Griggs v. Duke

Power Co., 401 U.S. 424, 433-34 (1971); United States

v. Jackson, 280 U.S. 183, 196-97 -( 1930).

In passing the 1978 amendments to the ADEA, Con-

gress dispelled any doubt about whether the “equal bene-

fit or equal cost” requirement for disproving “subter-

fuge was consistent with Congress’ original intent in

enacting § 4(f)(2). The Senate Report accompanying

the 1978 amendments (the first amendments to § 4(f) (2)

since passage of the Act) implicitly embraced the exist-

ing interpretations of § 4(f) (2) by declaring:

This bill would not alter existing law with respect to

these practices. Existing principles of law, includ-

ing the 4(f) (2) bona fide employee benefit plan ex-

ception, as modified by these amendments, would be

the standard by which these practices will be

evaluated.

S. Rep. No. 493, 95th Cong., Ist Sess. 5, reprinted in

Legislative History at 438 (emphasis added). Since this

Court in Criswell relied on a virtually identical state-

ment as congressional “endorsement” of the Tomiami

standards under the BFOQ exception, 472 U.S. at 415,

it is likewise clear that Congress “endorsed” the long-

standing method of disproving “subterfuge.” Compare

H.R. Conf. Rep. No. 950, 95th Cong., 2d Sess. 7, re-

18

printed in Legislative History at 518 (“the amendment

neither added to nor worked any change upon present

law”) with S. Rep. No. 493, 95th Cong., Ist Sess. 5,

reprinted in Legislative History at 438 (“Existing prin-

ciples of law . . . would be the standard by which these

practices will be evaluated“

Moreover, the existing principles under § 4(f) (2) were

repeatedly, and specifically, recited by managers of the

amendments and other members of Congress as the ap-

propriate view of the law. Senate Javits, while address-

ing the proposed amendment of § 4(f) (2), repeated the

existing interpretation almost verbatim:

The purpose of Section 4(f) (2) is to take account

of the increased cost of providing certain benefits to

older workers as compared to younger workers.

Welfare benefit levels for older workers may be

reduced only to the extent necessary to achieve ap-

proximate equivalency in contributions for older and

younger workers. Thus a retirement, pension, or

insurance plan will be considered in compliance with

the statute where the actual amount of payment

made, or cost incurred in behalf of an older worker

is equal to that made or incurred in behalf of a

younger worker, even though the older worker may

thereby receive a lesser amount of pension or retire-

ment benefits, or insurance coverage.

124 Cong. Rec. 8218 March 23, 1978), reprinted in

Legislative History at 539 emphasis supplied) ; see re

marks of Senator Williams, Majority Manager of ADEA

amendments, ‘“(Javits] statements are consistent with

the position taken by the Department of Labor regard-

ing these matters Jd. See also remarks of Senator

“The States implausible suggestion regarding the meaning of

this portion of the legislative history is that it constituted an

adopt on of the legal standards set forth in Taft Broadcasting,

the wery decision Congress intended to overturn by passing the

1978 amendments. See State's Br. at 45.

19

Williams (“Section 4(f) (2) was intended to permit

varying coverage of workers in different age groups to

reflect those [cost] differences so long as they are based

on valid assumptions. . . .”) 123 Cong. Rec. 34295 (Oc-

tober 19, 1977), reprinted in Legislative History at 482.

The statements of managers and other legislators from

the House confirmed that §4(f)(2) authorizes only re-

ductions in benefits necessitated by costs. Remarks of

Rep. Hawkins (“the purpose of section 4/f)(2) is to

encourage the employment of older workers by permitting

age-based variations in benefits where the cost of pro-

viding benefits to older workers is substantially higher.“

124 Cong. Rec. 7881 (March 21, 1978), reprinted in

Legislative History at 528. Furthermore, they noted that

the exception does not authorize precisely the type of total

cut off of benefits challenged here. Remarks of Rep.

Wiess (it is not the intention of this amendment to have

older workers cut off from their health and benefit plans

the day they reach age 65 .. . {employers} should not

interpret the 1977 (sic) amendments to the ADEA as a

license to cease to provide reasonable benefits to their

older employees. 124 Cong. Rec. 7887 (March 21,

1978), reprinted in Legislative History at 534.

C. Following The 1978 Amendments, The Cost Require-

ment For Disproving “Subterfuge” Was Continued

In Effect.

After the passage of the 1978 amendments, the De-

partment of Labor, in response to congressional requests

22 See also Remarks of Rep. Waxman (“In the absence of actuarial

1978), reprinted in Legislative History at 535;

remarks of Rep. Pepper, 124 Cong. Rec. 7886 (March 21, 1978),

533

for more comprehensive guidance regarding § 4(f) (2),

issued an amendment to its Interpretative Bulletin on

Employee Benefit Plans, 29 C.F.R. § 860.120, 44 Fed.

Reg. 30,648 (May 25, 1979.“ It provided:

The legislative history of this provision indicates

that its purpose is to permit age-based reductions in

employee benefit plans where such reductions are

justified by significant cost considerations .

Where employee benefit plans do meet the criteria

in section 4(f) (2), benefit levels for older workers

may be reduced to the extent necessary to achieve

approximate equivalency in cost for older and

younger workers. A benefit plan will be considered

in compliance with the statute where the actual

amount of payment made, or cost incurred, in behalf

of an older worker is equal to that made ov incurred

in behalf of a younger worker even though the older

worker may thereby receive a lesser amount of bene-

fits or insurance coverage.

29 C. F. R. 5 860.120(a)(1) (1979), recodified at 29

C. F. R. 1625.10 0a (1). In accord with this interpreta-

tion, the regulations provide that an employer can dem-

onstrate that a plan provision is “not a subterfuge” and

is consistent with the Act’s purpose, by showing that

“the lower level of benefits is justified by age-related

cost considerations.” 29 C. F. R. f 1625.10(d). Thus, the

1979 interpretations of the meaning of subterfuge con-

tinued in effect the cost principle consistently enunciated

by the enforcing agency and previously endorsed by

28 See remarks of Rep. Hawkins, 124 Cong. Rec. 7881 (March 21,

1978) : remarks of Senators Williams and Javits, (“The Department

of Labor intends to promulgate comprehensive regulations in order

to provide guidance in this regard for sponsors of employee benefit

plans, and the Secretary is urged to act as soon as possible. 124

Cong. Rec. 8219 (March 23, 1978), reprinted in Legislative History

at 539.

2% These regulations have since been recodified by the EEOC at

29 C.F.R. § 1625.10. See 52 Fed. Reg 23,811 (June 25, 1987).

21

Congress. As a longstanding, consistent interpretation

of §4(f)(2), the interpretation is entitled to special

deference. EEOC v. Associated Dry Goods Corp., 449

U.S. 590, 600 (1981)..

In addition to reiterating the standard for disproving

subterfuge in a benefits case, the interpretation explicitly

applied the cost standard to disability benefits. 29 C. F. R.

860.120 (f (1) (iii) (1979). The interpretations em-

phasized that an employer may only reduce disability

benefits based on age to the extent required by the in-

creased cost of providing the benefit to older workers.

Id. Moreover, the interpretations specifically state that

a total cut off of disability benefits based on age is not

permissible under the Act. Jd. This interpretation re-

mains in effect today. 29 C. F. R. § 1625.10(f) (1) (iii).

CONCLUSION

In 1978, Congress specifically rejected the sole argu-

ment upon which the State attempts to justify its arbi-

trary exclusion of employees age 60 and older from

receiving disability benefits. For twenty years, the con-

sistent interpretation of §4/(f)(2) by the enforcing

agency has required proof of age-related cost consider-

ations in order to prove that a benefit reduction or elim-

ination is not a “scheme, plan, stratagem or artifice” to

evade the ADEA. Contrary to the State’s argument, the

regulations help to eliminate arbitrary discrimination

while at the same time facilitating the hiring of older

25 The purpose of the 1979 interpretations was to provide guid-

ance to employers who were required to extend the privileges and

benefits of employment to workers age 65 to 70 who became pro-

tected as a result of the 1978 amendments to the ADEA. See Pub.

L. No. 95-256, § 12(a), 92 Stat. 189; 44 Fed. Reg. 30,648 (May 25,

1979). The State argues, illogically, that Congress endorsed dis-

crimination against employees age 60 and older who were already

protected by the ADEA—while extending the Act’s protections

employees age 65 to 70.

8

J LC

persons. The continued harmonization of these two ob-

jectives, as embodied in the regulations and adopted by

the courts, is especially important in light of the elimi-

nation of mandatory retirement for virtually all workers

in both the private and federal sector. See Pub. L. No.

99-592, §2(c), 100 Stat. 3342. For all these reasons,

AARP respectfully requests that the decision of the Court

of Appeals below be affirmed.

Respectfully submitted,

CHRISTOPHER G. MACKARONIS

(Counsel of Record)

STEVEN S. ZALEZNICK

CATHY VENTRELL-MONSEES

AMERICAN ASSOCIATION OF

RETIRED PERSONS

1909 K Street, N.W.

Washington, D.C. 20049

(202) 662-4957

Attorneys for Amicus Curiae

American Association of

Dated: January 31, 1989 Retired Persons