# Amicus Curiae Brief — General Dynamics Land Systems, Inc. v. Cline

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0633%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 581

## Text

Supreme Court 8
5 FEL E 5
Avs 24

No. 02-1080 —

— ͥ́ꝙ́ Vm ——

In the Supreme Court of the Unite States

—— —

GENERAL DYNAMICS LAND SYSTEMS, INC., PETITIONER
L.

DENNIS CLINE, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION AS
AMICI CURIAE SUPPORTING RESPONDENTS

PAUL D. CLEMENT

Acting Solicitor General
Counsel of Record

IRVING L. GORNSTEIN
Assistant to the Solicitor
General

ERIC S. DREIBAND
General Counsel

CAROLYN L. WHEELER Department of Justice
Acting Associate General Washington, D.C. 20530-0001
Counsel 202) 514-2217

LORRAINE C. DAVIS
Assistant General Counsel
ROBERT J. GREGORY
Senior Attorney
SUSAN R. OXFORD
Attorney
Equal Employment
Opportunity Commission
Washington, D.C. 20507

QUESTION PRESENTED

Whether, in the absence of an affirmative defense, the
Age Discrimination in Employment Act of 1967, 29 U.S.C.
623(a)(1), prohibits an employer from favoring older over
younger workers when both are protected by the Act.

*
f
1
1
*

. —

TABLE OF CONTENTS

Interest of the United States and the Equal Employment

0 tunity C 3
Statement

Summary of argument

Argument
In the absence of an affirmative defense, the ADEA
prohibits an employer from favoring older over
younger workers when both are protected by the
Act

A. The text of the ADEA generally prohibits an
employer from favoring onder over younger

protected workers

B. Other sources of legislative intent confirm that
the ADEA generally prohibits an employer
from favoring older over younger protected
workers

C. Petitioner’s reliance on O’Connor v. Consolidated
Coin Caterers Corp., 517 U.S. 308 (1996), is
misplaced

D. The ADEA’s general prohibition against age
discrimination does not endanger bona fide
benefit plans that favor older over younger
protected workers as long as they satisfy the
requirements of 29 U.S.C. 623(f)(2)(B)(i) ...........0e0000

E. The EEOC has interpreted the ADEA to pro-
hibit an employer from favoring older over
younger protected workers, and its interpreta-
tion warrants deference

Conclusion
Appendix

(IID)

c —

14

8 &

la

IV

TABLE OF AUTHORITIES Cases—Continued: Page

O’Connor v. Consolidated Coin Caterers Corp., 517
„— U.S. 308 (1996) 17, 20, 22, 29

ö Oncale v. Sundowner Offshore Servs., Inc., 523

Barnhart v. Walton, 535 U.S. 212 (2002) U.S. 75 (1998) 15, 16, 26

Burt v. Bentsen, No. 01942163, 1994 WL 735377 Pittsburgh Press Co. v. Human Relations Comm'n,
(E. E. O. C. Apr. 29, 1994) 413 U.S. 376 (1973) 10
Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 Ratzlaf v. United States, 510 U.S. 135 (1994 9
(2002) Skidmore v. Swift & Co., 323 U.S. 134 (1944) 28

Chevron U.S.A. Inc. v. Natural Res. Def. Counsel, Smiley v. Citibank (South Dakota), N. A., 517 US.
467 U.S. 837 (1984) 735 (1996) 29
Dunn v. Commodity Futures Trading Comm'n, TWA v. Thurston, 469 U.S. 111 (1985) 22
519 U.S. 465 (1997) United States v. Mead Corp., 533 U.S. 218 (2001) ........... 29
DuPriest v. Bentsen, No. 01942145, 1994 WL United States v. Turkette, 452 U.S. 576 (1981) 12

1755951 (E.E.0.C. May 2, 1994)
Edelman v. Lynchburg College 535 U.S. 106 (2002) .......

United States v. United Foods, Inc., 533 U.S. 405

(2001) 25

FDA v. Brown & Williamson Tobacco Corp., 529 Western Air Lines, Inc. v. Criswell, 472 U.S. 400

U.S. 120 (2000) (1985) 9 11
Garrett v. Runyon, No. 01960422, 1997 WL 574739 3

(Sept. 5, 1997), aff d in relevant part on reconsidera Constitution, statutes and regulations:

tion, No. 01960422, 1999 WL 909980 (E.E.0.C. Sept. 30, U.S. Const. Amend. I 10

1999) Age Discrimination in Employment Act of 1967,
H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 29 U.S.C. 621 et seq. 2

229 (1989) 29 U.S.C. 621 4,5, 15
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1998) ............ 29 U.S.C. 621(a)(1) 10, 12, 14
Isabella v. Runyon, No. 01944083, 1995 WL 653513 29 U.S.C. 62100) 15

(E.E.0.C. Oct. 19, 1995) 29 U.S.C. 623(a) 10, 11
McDonald v. Sante Fe Trail Transp. Co., 427 US. 29 U.S.C. 623(a)(1) passim

273 (1976) 29 U.S.C. 623(e) . 5, 10
McDonnell Douglas Corp. v. Green, 411 U.S. 792 29 U.S.C. 623(f) 11

(1973) 29 U.S.C. 62305001) 5, 11, 12
Muscarello v. United States, 524 U.S. 125 (1998) ............ 29 U.S.C. 623002) 23, 24
National Org. for Women, Inc. v. Scheidler, 510 U.S. 29 U.S.C. 623(f(2)(B) 23

249 (1994) 29 U.S.C. 623(f(2)(B)«i) (S 4(f(2)(B)G)) 6, 7,
North Haven Bd. of Educ. v. Bell, 456 U.S. 512 12, 13, 22, 23, 24, 25

(1982) 29 U.S.C. 62300 6, 13

29 U.S.C. 6230“ U (TINA) 4. 13, 28

VI

Statutes and regulations—Continued:
29 U.S.C. 625 note

29 U.S.C. 626

29 U.S.C. 628

ee fe en 4, 5, 8, 15

29 U.S.C. 631(a)
29 U.S.C. 633a

29 U.S.C. 633a(a)

29 U.S.C. 633a(b)

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

et seq. 6, 16, 21

42 U.S.C. 2000e-2(a)
42 U.S.C. 2000e-2(a)(1)

Older Workers Benefit Protection Act, Pub. L. No.
101-433, 104 Stat. 978

29 C. F. R.:
Section 860.91 (1968)

Section 1625. (a ——.—.—

Section 1625. 0b)
Section 1625.10 (1988)
Miscellaneous:

Age Discrimination in Employee Benefit Plans: The
Impact of the Betts Decision: Joint Hearing Before
House Select Comm. on Aging and the Subcomms.
on Employment Opportunities and Labor-Manage-
ment Relations of the Comm. on Education and
Labor, 101st Cong., Ist Sess. (1989)

Black’s Law Dictionary (5th ed. 1979)

113 Cong. Rec. 31,255 (1967)

Letter WH-30, 1970 WL 26398 (DOL May 1, 1970) ...........

Letter WH-36, 1970 WL 26404 (DOL May 25, 1970)

Letter WH-389, 1976, WL 41742 (DOL May 1, 1976)

Letter WH-404, 1976 WL 41753 (DOL Aug. 26, 1976)

Letter WH-451, 1978 WL 51448 (DOL Jan. 31, 1978)

VII

Miscellaneous Continued: Page

Older Workers Benefit Protection Act: Hearing Before
the Subcomm. on Labor of the Senate Comm. on
Labor and Human Resources and Special Comm.

on Aging, 101st Cong., Ist Sess. (1989) 24
S. Rep. No. 723, 90th Cong., Ist Sess. (1967) 18
The American Heritage Dictionary (3d ed. 1992) .............. 8,9
The Oxford American Dictionary and Language

Guide (1999) 8,9
The Random House Dictionary of the English Language

(1967) 9
Webster 's Third New International Dictionary

(1993) 8,9

—
7

In the Supreme Court of the United States

No. 02-1080
GENERAL DYNAMICS LAND SYSTEMS, INC., PETITIONER
Vv.
DENNIS CLINE, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION AS
AMICI CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES AND THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

This case presents the question whether, in the absence of
an affirmative defense, the Age Discrimination in Employ-
ment Act of 1967 (ADEA), 29 U.S.C. 623(a)(1), prohibits an
employer from favoring older over younger workers when
both are protected by the Act. The United States has a sub-
stantial interest in the resolution of that question. The
Equal Employment Opportunity Commission (EEOC) has
responsibility for enforcing the ADEA and for issuing regu-
lations to carry out its purposes. 29 U.S.C. 625 note, 626,
628. Following notice and comment, the EEOC in 1981
issued a regulation that provides that it is unlawful for an
employer to prefer one worker in the protected group over
another in the protected group based on either individual’s
age. 29 C.F.R. 1625.2(a). The decision in this case will affect

(1)

the validity of that regulation. The United States is also
required by a separate provision of the ADEA to make
personnel decisions affecting individuals who are at least 40
years of age free from any discrimination based on age.
29 U.S.C. 633a. The decision in this case could affect that
statutory responsibility.

STATEMENT

Before July 1, 1997, the collective bargaining agreement
between General Dynamics Land Systems, Inc. (petitioner)
and the United Auto Workers (UAW) required petitioner to
provide full health benefits to all retired workers who had
accumulated 30 years of seniority. Pet. App. 2a-3a. Peti-
tioner and the UAW negotiated a new agreement that be-
came effective on July 1, 1997. Jd. at 3a. Under the new
agreement, only workers who were 50 years of age or older
on July 1, 1997, remained eligible for full health benefits
when they retired. Ibid.

A group of petitioner’s employees who were between the
ages of 40 and 49 on July 1, 1997 (respondents) filed charges
with the Equal Employment Opportunity Commission
(EEOC), alleging that petitioner’s new retiree health benefit
plan discriminated against them on the basis of age, in
violation of the Age Discrimination in Employment Act of
1967 (ADEA), 29 U.S.C. 621 et seg. The ADEA makes it
unlawful for an employer “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 indi-
vidual’s age.” 29 U.S.C. 623(a)(1). The ADEA’s protections
extend to “individuals who are at least 40 years of age.”
29 U.S.C. 631(a).

The EEOC determined that there was reason to believe
that petitioner’s agreement to provide retiree health bene-
fits only to individuals who were at least 50 years of age on

July 1, 1997, violated the ADEA, and it invited petitioner to
resolve the matter informally. J.A. 16-17. Respondents then
filed suit in federal district court, challenging petitioner’s
age limitation on retiree health benefits as a violation of the
ADEA. Pet. App. 3a. Respondents are 183 current employ-
ees who are no longer eligible for retiree health benefits; 10
employees who retired before July 1, 1997, in order to
receive full health benefits; and three employees who retired
after July 1, 1997, and are ineligible for health benefits. bid.
Respondents sought declaratory and monetary relief. J.A.
13-14.

Petitioner filed a motion to dismiss for failure to state a
claim, arguing that the ADEA does not forbid an employer
from favoring older over younger protected workers. Pet.
App. 22a. The district court granted the motion. Id. at 2la-
25a. The court concluded that petitioner’s collective bargain-
ing agreement “facially discriminates on the basis of age by
creating two classes of employees: employees over the age
of fifty, who are entitled to retiree health care benefits, and
employees under the age of fifty, who are not.” Id. at 23a.
The court nonetheless ruled against respondents on the
ground that “a claim of reverse age discrimination is not
cognizable under ADEA.” Id. at 24a. The court reasoned
that “Congress’ purpose in enacting [the] ADEA was to
address the problems faced by older workers, not workers
who suffer discrimination because they are too young.” Ibid.

The court of appeals reversed. Pet. App. la-20a. It noted
that 29 U.S.C. 623(a)(1) protects “any individual” from em-
ployment discrimination “because of such individual’s age,”
and that 29 U.S.C. 631(a) defines protected individuals as
“individuals who are at least 40 years of age.” Pet. App. 6a.
That statutory language, the court concluded, unambigu-
ously prohibits an employer from discriminating against indi-
viduals who are at least 40 by favoring workers who are
older. Ibid.

The court of appeals discerned no conflict between that
conclusion and the declarations in the ADEA’s statement of
findings and purpose, 29 U.S.C. 621, that the ADEA was
designed to protect “older workers.” Pet. App. 7a-8a. The
court explained that Jin § 621, Congress declared its inten-
tion to protect older workers, and in § 623 and § 631, it
identified the older workers it intends to protect as ‘any
individual’ age 40 or older.” Id. at 9a.

The court also noted that the EEOC has interpreted the
ADEA to forbid an employer from favoring older over
younger protected workers. Pet. App. 10a. The court was
“persuaded that the EEOC’s interpretation of the ADEA is
a true rendering of the language.” Ibid. The court added
that if Congress wanted to limit the ADEA to protect only
those workers who are relatively older, it clearly had the
power and acuity to do so.” Id. at Ila.

In a concurring opinion, Pet. App. 12a-18a, Judge Cole
concluded that while Congress was most concerned with dis-
crimination that favors younger over older employees, “Con-
gress’s choice of language, whether specifically intended or
not, also prohibits age discrimination that favors older over
younger protected employees.” Id. at 12a. In reaching that
conclusion, Judge Cole relied not only on 29 U.S.C. 623(a)(1)
and 631, but also on 29 U.S.C. 623(1)(1)(A), which authorizes
an employer to set a minimum age as a condition for eligibil-
ity in a pension plan. Pet. App. 14a. Judge Cole explained
that “[iJf younger protected employees could not sue their
employers for the preferable pension treatment of older em-
ployees, then the minimum age exception in & 623(/)(1)(a)
would not be necessary.” Ibid.

Judge Williams dissented. Pet. App. 18a-20a. Relying on
Section’s 621’s statement that the ADEA is intended to
protect “older workers,” he concluded that the ADEA per-
mits an employer to favor older over younger protected
workers. bid.

SUMMARY OF ARGUMENT

The ADEA makes it unlawful for an employer to “dis-
criminate against any individual * * * because of such
individual’s age,” 29 U.S.C. 623(a)(1), and extends the Act’s
protections to “individuals who are at least 40 years of age.”
29 U.S.C. 631. Under the most straightforward interpreta-
tion of that statutory text, it is unlawful for an employer to
favor one worker who is at least 40 over another worker who
is at least 40 because of either individual’s age. To justify
such discrimination, an employer must invoke one of the
ADEA’s affirmative defenses.

A. Petitioner contends that the term “age” in the ADEA
actually means “old age,” confining the reach of the ADEA
to discrimination because of an individual’s old age. Peti-
tioner relies on several dictionaries that give “old age” as a
secondary meaning of the term “age.” But the original and
most common meaning of “age” is the length of time a person
has lived, and that is the way that Congress used the term
throughout the ADEA. Indeed, the ADEA cannot function
harmoniously otherwise.

Under petitioner’s interpretation, an employer would be
forbidden from placing an advertisement that indicates a
hiring preference for persons based on old age, see 29 U.S.C.
623(e), but the employer would be free to commit the very
discriminatory act that it could not advertise. Petitioner’s
interpretation would also render the BFOQ defense a nullity.
See 29 U.S.C. 623(f)(1). An employer could invoke the
BFOQ defense only when it wished to justify a preference
for persons over a certain age, but, under petitioner’s inter-
pretation, that preference does not violate the ADEA’s basic
prohibition to begin with.

Moreover, if Congress had intended to limit the ADEA to
discrimination because of an individual’s older age, it could
have easily accomplished that goal by adding the single

word, “older” to the ADEA’s basic prohibition. Congress’s
failure to make that addition is particularly revealing be-
cause Congress used the term “older” in one of the ADEA’s
affirmative defenses to make clear that employers could
favor older over younger protected workers in certain
limited circumstances. See 29 U.S.C. 623(f)(2)(B)(i). Peti-
tioner’s interpretation would also make the provision author-
izing an employer to establish minimum age limits for pen-
sion benefits superfluous. See 29 U.S.C. 62300).

B. The ADEA’s prohibition against discrimination that
favors older over younger protected workers is consistent
with Congress’s statement that it was seeking to protect
“older” workers and promote their employment “based on
their ability rather than age.” 29 U.S.C. 621. Under the
ADEA, the “older” workers Congress sought to protect from
arbitrary age discrimination are “individuals who are at least
40 years of age.” 29 U.S.C. 631.

Indeed, Congress expressly modeled the ADEA on Title
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a). In
Title VII, Congress enacted a prohibition that protects any
individual against discrimination because of race and sex,
even though the principal problem that Congress sought to
redress was discrimination based on a person’s minority race
and female sex. In the same way, Congress in the ADEA
enacted a prohibition that protects any individual in the
protected class against discrimination because of age, even
though the principal problem that Congress sought to
redress was discrimination directed at individuals based on
their older age. The legislative history confirms that conclu-
sion. In a considered statement, one of the ADEA’s spon-
sors made clear that the ADEA prohibits discrimination be-
tween members of the protected class, regardless of whether
the relatively older or relatively younger worker is favored.

C. Giving the ADEA that interpretation need not endan-
ger health plans that are common among employers. The

ADEA, taken as a whole, both prohibits discrimination
against younger workers in the protected class “because of
age,” and, through affirmative defenses, provides special ac-
commodations for certain benefits. One of those affirmative
defenses authorizes an employer to give different levels of
benefits to older workers in the protected class when certain
specific requirements are satisfied. See 29 U.S.C.
623(f)(2)(B)(i). Because petitioner did not raise that defense
in its motion to dismiss in the district court or on appeal, and
neither court addressed it, the question whether petitioner
can satisfy the requirements of Section 623(f)(2)(B)(i) is not
presented here. But the affirmative defense remains avail-
able to petitioner in district court.

D. Finally, after notice and comment, the EEOC issued a
regulation that makes it unlawful to discriminate between
two members of the protected class because of either indi-
vidual’s age. That interpretation accurately reflects Con-
gress’s clearly expressed intent and confirms that the
ADEA generally prohibits all discrimination against pro-
tected workers because of age, not just discrimination be-
cause of an individual’s older age.

ARGUMENT

IN THE ABSENCE OF AN AFFIRMATIVE DEFENSE,
THE ADEA PROHIBITS AN EMPLOYER FROM FA-
VORING OLDER OVER YOUNGER WORKERS WHEN
BOTH ARE PROTECTED BY THE ACT

Petitioner contends that the ADEA does not forbid an em-
ployer from intentionally favoring relatively older workers
over employees who are younger but nonetheless protected
by the Act. That contention is incorrect. In general, the
ADEA forbids such age discrimination in employment. An
employer that wishes to discriminate in that way may do so
only when justified by one of the ADEA’s affirmative
defenses. Although the ADEA’s affirmative defenses permit

benefit plans to favor relatively older workers if certain
conditions are met, the ADEA generally prohibits age-based
discrimination in advertising, hiring, promotion, and firing.

A. The Text Of The ADEA Generally Prohibits An Em-

ployer From Favoring Older Over Younger Protected
Workers

1. The ADEA makes it unlawful for an employer “to fail
or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his com-
pensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. 623(a)(1) (em-
phasis added). The Act’s protections extend to “individuals
who are at least 40 years of age.” 29 U.S.C. 631 (emphasis
added). Under the most natural reading of that statutory
text, it is unlawful for an employer to favor one worker who
is at least 40 over another worker who is at least 40 based on
age, regardless of whether the favored individual is younger
or older. In either case, the preference constitutes discrimi-
nation against a protected individual “because of such indivi-
dual’s age,” 29 U.S.C. 623(a)(1), and violates the employer’s
duty under the ADEA “to ignore an employee’s age.” Hazen
Paper Co. v. Biggins, 507 U.S. 604, 612 (1993).

Relying on several dictionary definitions, petitioner con-
tends (Br. 16-17) that the term “age” in Section 623(a)(1)
actually means “old age.” But the original and primary
meaning of age is not old age, but the length of time that a
person has lived.’ Old age is a secondary meaning of age,

1 Webster’s Third New International Dictionary 40 (1993) (“1a(1). the
length of time during which a being or thing has lived or existed”); id. at
17a (first definition is the one known to have been first used in English);
The American Heritage Dictionary 33 (3d ed. 1992) (“1. The length of time
that one has existed”); id. at xxxix (the first definition conveys the central
meaning); The Oxford American Dictionary and Language Guide 18
(1999) (la. the length of time that a person or thing has existed or is likely
to exist”); id. at How to Use the Dictionary, n.6 (the first definition is the

EE LE ALIOI TOPE,

=

and one that usually can be discerned from immediate con-
text, as in “hair white with age,” “the infirmity of age,” or
“age cannot wither her.“ There is nothing comparable in
the immediate context of Section 623(a)(1) suggesting that
Congress intended for the term “age” to have that special
meaning instead of its original and primary meaning. See
Muscarello v. United States, 524 U.S. 125, 128-132 (1998)
(finding no evidence that Congress intended to depart from
the “ordinary meaning” of the term carry).

2. Moreover, the larger context of the ADEA makes
clear that Congress used the term “age” to mean the length
of time a person has lived, and not old age. Indeed, the
ADEA can function coherently only if age is given its
primary meaning throughout the statute. See FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)
(court must interpret statute as a “coherent” and “harmoni-
ous” whole); see also Ratzlaf v. United States, 510 U.S. 135,
143 (1994) (“A term appearing in several places in a statu-
tory text is generally read the same way each time it

appears.”).

most important); Black's Law Dictionary 57 (5th ed. 1979) (“The length of
time during which a person has lived”). The Random House Dictionary of
the English Language, 27 (1967) (“1. the length of time during which a
being or thing has existed”); id. at A Guide to the Dictionary, xxix, V.
Definitions (the most frequently encountered meaning appears as the first
definition).

2 The American Heritage Dictionary, supra, at 33 (“4. The state of
being old; old age: hair white with age”); The Oxford American Dic-
tionary, supra, at 18 (“3. the latter part of life; old age (the infirmity of
age) ; Webster's Third New International Dictionary, supra, at 40 (“le(1)
an advanced stage of life: the latter part of life: (the feebleness of lage)
le(2) the quality or state of being old; old age: ({age} cannot wither her)“);
Black's Law Dictionary, supra, at 57 (not listing old age as a definition of
age, but defining aged person” as lohe advanced in years”); The Ran-
dom House Dictionary, supra, at 27 (“6. advanced years; old age: His eyes
were dim unth age.”).

10

a. The ADEA’s advertising prohibition makes it unlawful
for an employer to place an advertisement relating to em-
ployment “indicating any preference, limitation, specifica-
tion, or discrimination, based on age.” 29 U.S.C. 623(e). The
purpose of that prohibition is to reinforce the ADEA’s basic
prohibition by barring an employer from advertising employ-
ment preferences that are unlawful under Section 623(a).
See Pittsburgh Press Co. v. Human Relations Comm un, 413
U.S. 376, 388-389 (1973) (upholding analogous state ban on
advertising illegal preferences based on sex against a First
Amendment challenge).

Petitioner’s interpretation of the term “age,” however,
would break the link between the advertising prohibition in
Section 623(e) and the illegal conduct prohibition in Section
623(a)(1). Under petitioner’s view that age means “old age,”
an employer clearly would be forbidden by Section 623(e)
from publishing an advertisement “indicating” a hiring “pref-
erence” based on “old age.” Yet, despite the prohibition on
advertisements favoring relatively older workers, the em-
ployer would be free under Section 621(a)(1) to commit the
very discriminatory act that it could not advertise. For
example, an employer would be barred by Section 623(e)
from placing an advertisement seeking applications from
workers “55 and over” for particular positions, but the
employer would be free under Section 623(a)(1) to have a
policy of hiring only workers who are “55 and over” for those
very positions. Congress could not have intended to enact
such an inexplicable scheme.

When age is given its original and primary meaning, the
basic prohibition and the advertising prohibition work
together harmoniously. An employer may neither place an
advertisement seeking only workers 55 and over for par-
ticular positions, nor adopt a policy of hiring only workers 55
and over for those positions. Conversely, an employer may
neither place an advertisement seeking only workers under

11

55 for particular positions, nor establish a policy of hiring
only workers under 55 for those positions.

b. Petitioner’s interpretation would also disrupt the rela-
tionship between the ADEA’s basic prohibition and its bona
fide occupational qualification (BFOQ) defense. The BFOQ
defense, 29 U.S.C. 623(f)(1), provides that it is not unlawful
for an employer to take any action that is “otherwise prohib-
ited” by Section 623(a)(1) “where age is a bona fide occupa-
tional qualification reasonably necessary to the normal
operation of the particular business.” The purpose of the
BFOQ defense is to permit an employer to engage in age-
based employment practices that would otherwise violate
Section 623(a) when it can satisfy Section 623(f)(1)’s strin-
gent BFO) standard. Western Air — | Inc. v. Criswell,
472 U.S. 400, 412, 414-417 (1985).

Under petitioner’s view that “age” means “old age,” how-
ever, an employer could invoke the BFOQ defense only when
“old age” is a BFOQ. It would be unable to invoke the
BFOQ defense to justify a preference for persons under a
certain age even if it could show that such a preference is
“reasonably necessary to the normal operation” of its busi-
ness. 29 U.S.C. 623(f). For instance, an employer could not
justify as a BFOQ a refusal to consider workers in the
protected class for theatrical roles as teenagers or young
adults. Congress could not have intended that result.
Indeed, this Court has already held in Criswell that an em-
ployer may establish a preference for workers under a cer-
tain age when reasonably necessary for the normal operation
of the business. 472 U.S. at 414.

Petitioner’s interpretation would not only prevent the
BFOQ defense from operating in accordance with Congress's
intent; it would render it a nullity. An employer could
invoke the BFOQ defense only to demonstrate that older
age is a BFOQ, but it would never need to do that since,
under petitioner’s interpretation, a preference for older

12

workers does not violate the ADEA’s basic prohibition in the
first place.

Those anomalies disappear and the statue operates har-
moniously when age is given its ordinary meaning through-
out the statute. Section 623(a)(1) generally protects any
individual who is at least 40 from discrimination based on
age, regardless of whether the person so preferred is older
or younger. At the same time, under Section 623(f)(1)’s
BFOQ standard, an employer may adopt a preference for
persons over a certain age and for persons under a certain
age when it can show that the preference is reasonably nec-
essary to the normal operation of its business.

3. Significantly, if Congress had intended to limit the
scope of the ADEA to discrimination based on a protected
class member’s older age, it could have expressed that intent
directly by adding a single word to the statute. Rather than
prohibiting discrimination against a protected individual
“because of such individual’s age,” Congress could have in-
stead prohibited discrimination against a protected indivi-
dual “because of such individual’s older age.” This Court has
attached importance to Congress’s failure to insert a single
word into a statutory prohibition in similar circumstances.
See United States v. Turkette, 452 U.S. 576, 581 (1981)
(refusing to hold that the enterprises subject to the RICO
statute are limited to legitimate enterprises on the ground
that Congress “could easily have narrowed the sweep of the
definition by inserting a single word, legitimate“).

Congress’s failure to insert the word “older” into Section
623(a)(1) is particularly revealing because Congress has
demonstrated that it is capable of drawing a distinction
between older and younger workers by adding, inter alia,
the word “older” when it wishes to do so. Section
623(f)(2)(B)(i) provides an affirmative defense by allowing an
employer to take action that would otherwise be prohibited
by the ADEA “to observe the terms of a bona fide employee

13

benefit plan (i) where, for each benefit or benefit package,
the actual amount of payment made or cost incurred on
behalf of an older worker is no less than that made or
incurred on behalf of a younger worker, as permissible under
section 1625.10, title 29, Code of Federal Regulations.” 29
U.S.C. 62306f (2 (BM) (emphasis added). Congress’s failure
to draw a similar distinction in the ADEA’s basic prohibition
shows that no such distinction was intended.

4. The pension eligibility defense in the ADEA, 29 U.S.C.
623(1), reinforces that conclusion. Section 623(/) specifies
that it is not unlawful when “an employee pension benefit
plan (as defined in section 1002(2) of this title) provides for
the attainment of a minimum age as a condition of eligibility
for normal or early retirement benefits.” 29 U.S.C.
623(/)(1)(A) (emphasis added).

The most logical explanation for Section 623(/), which was
added to the ADEA in 1990, is that Section 623(a)(1) gener-
ally prohibits discrimination against members of the pro-
tected class because of age, without regard to whether the
distinction favors relatively younger or older protected
workers, making it necessary to carve out an exception from
that general prohibition for pension plans that set a mini-
mum age as a condition of eligibility. Under petitioner’s
alternative view that the basic prohibition permits an em-
ployer to favor older over younger protected workers,
Congress’ effort to add Section 623(/) to the statute would be
superfluous. See Dunn v. Commodity Futures Trading
Comm 'n, 519 U.S. 465, 472 (1997) (Congress ordinarily does
not enact superfluous provisions).

5. In sum, viewing the ADEA’s substantive provisions as
a whole, Congress used the term age to refer to the length of
time a person has lived, not old age. The ADEA therefore
generally prohibits an employer from favoring older over
younger protected workers because of age when it comes to
advertising, hiring, promotion, ahd firing. To justify such a

14

preference, an employer must satisfy one of the ADEA’s
affirmative defenses, at least two of which specifically ad-
dress benefit plans.

B. Other Sources Of Legislative Intent Confirm That The
ADEA Generally Prohibits An Employer From Favor-
ing Older Over Younger Protected Workers

Petitioner contends (Br. 18-28) that the ADEA’s state-
ment of findings and purpose, its extension of protection only
to individuals who are at least 40, and its legislative history
show that the ADEA prohibits only discrimination against
an individual based on his old age. In fact, however, those
sources confirm that the ADEA prohibits all discrimination
against protected workers based on age, not just discrimina-
tion based on old age.

1. a. Congress’s statement of findings and purpose are
fully consistent with the conclusion that the ADEA prohibits
an employer from favoring older over younger protected
workers because of age. For example, one congressional
finding was that “older workers find themselves disadvan-
taged in their efforts to retain employment, and especially to
regain employment when displaced from jobs.” 29 U.S.C.
621(a)(1). For a 42-year-old employee who is fired because of
his age and must seek new employment, it does not matter
whether he was replaced by a 30-year-old or a 50-year-old
employee. In either case, as an older worker, he may
encounter great difficulty in finding a new job. Protection of
that individual from either form of age discrimination is
therefore consistent with one of Congress’s reasons for
enacting the ADEA.

The same is true with respect to Congress’s stated pur-
poses for the ADEA. Those purposes are “to promote em-
ployment of older persons based on their ability rather than
age; to prohibit arbitrary age discrimination in employment;
[and] to help employers and workers find ways of meeting

— be —
n — © ak

15

problems arising from the impact of age on employment.
29 U.S.C. 621(b) (emphasis added). To accomplish those
objectives, it is not enough to protect relatively older
workers from policies favoring relatively younger employ-
ees. Rather, age must generally be taken off the table as a
relevant factor, except when affirmative defenses, such as
the BFOQ provision, allow an employer to justify considera-
tion of age. As Judge Cole explained in his concurring
opinion in this case, when a 42-year-old loses his job and is
replaced by a 50-year-old based on nothing more than age,
that termination is not based on “ability”; it reflects “arbi-
trary age discrimination in employment”; and it is not a
solution to the “problems arising out of the impact of age on
employment.” Pet. App. 14a-15a.

b. Contrary to petitioner’s contention (Br. 18-19), Con-
gress’s references in the statement of findings and purpose
to protecting “older workers” does not indicate that Con-
gress intended to prohibit only discrimination based on older
age. 29 U.S.C. 621. Under the ADEA, the “older workers“
that Congress sought to protect against age discrimination
are “individuals who are at least 40 years of age.” 29 U.S.C.
631.

More fundamentally, while a statement of findings and
purpose may reveal the principal concerns that animate
legislation, they do not alter the scope of a law’s substantive
prohibitions. See National Org. for Women, Inc. v.
Scheidler, 510 U.S. 249, 260 (1994) (RICO finding does not
alter the scope of the RICO statute). As this Court has
explained, “statutory prohibitions often go beyond the prin-
cipal evil to cover reasonably comparable evils, and it is ulti-
mately the provisions of our laws rather than the principal
concerns of our legislators by which we are governed.”
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79
(1998); see H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S.
229, 248 (1989) (The occasion for enactment of the RICO

16

statute “was the perceived need to combat organized crime,”
but Congress “chose to enact a more general statute, one
which, although it had organized crime as its focus, was not
limited in application to organized crime.”).

Oncale itself is a dramatic illustration of that point. In
that case, the Court held that male-on-male sexual harass-
ment violates Title VII of the Civil Rights Act of 1964. In
enacting Title VII, Congress was principally concerned
about employment discrimination directed against racial mi-
norities and women; its principal concern was “assuredly
not” discrimination against men, much less discrimination
that took the form of male-on-male sexual harassment. On-
cale, 523 U.S. at 79. The Oncale Court nonetheless con-
cluded that such discrimination violates Title VII because
the text of Title VII broadly applies to all employment
practices that discriminate against an individual because of
such individual’s sex. Jd. at 79-80. Similarly, in McDonald v.
Sante Fe Trail Transportation Co., 427 U.S. 273 (1976), the
Court held that Title VII protects whites from racial dis-
crimination in employment, even though discrimination
against racial minorities animated Title VII's prohibition
against discrimination based on race. /d. at 278-280.

Oncale and McDonald are particularly instructive in this
case because Congress modeled the ADEA’s substantive
prohibitions on Title VII’s substantive prohibitions. Indeed,
the substantive prohibitions are almost identical. Compare
29 U.S.C. 623(a)(1) (making it unlawful for an employer to
“discriminate against any individual * * * because of such
individual’s age”) with 42 U.S.C. 2000e-2(a)(1) (making it
unlawful for an employer to “discriminate against any indi-
vidual * * * because of such individual’s race, color,
religion, sex, or national origin”). It is therefore hardly
surprising that Congress’s prohibition in the ADEA sweeps
more broadly than the immediate problem that animated
enactment of the law. Just as Congress in Title VII enacted

—— — —

— — — o
k— —

17

a prohibition that protects any individual against dis-
erimination because of race and sex, even though the prinei-
pal problem that Congress sought to redress was diserimina-
tion based on a person's minority race and female sex,
Congress in the ADEA enacted a prohibition that protects
any individual in the protected class against discrimination
because of age, even though the principal problem that
Congress sought to redress was discrimination directed at
individuals based on their older age.

2. Petitioner errs in contending (Br. 16) that Congress’s
decision to limit the ADEA’s protections to persons who are
at least 40 “refutes the notion that the Act forbids dis-
crimination against younger individuals in favor of older
workers.” Rather, it shows only that Congress chose not to
prohibit discrimination because of an indiwdual’s age when
the aggrieved worker is under 40. Because Congress con-
cluded that workers who are under 40, as a class, do not face
the same difficulties in the workplace, or the same difficul-
ties in regaining employment, as workers who are at least
40, Congress extended no protection to them. With respect
to the group to which it did extend protection, however,
Congress enacted a broad prohibition against any discrimi-
nation based on age, not just discrimination based on older
age. Cf. O’Connor v. Consolidated Coins Caterers Corp.,
517 U.S. 308, 312 (1996) (noting that the ADEA “does not
ban discrimination against employees because they are aged
40 or older; it bans discrimination against employees because
of their age, but limits the protected class to those who are
40 or older”).

Nor is there anything “absurd” (Pet. Br. 23) about per-
mitting a 40-year-old, but not a 39-year-old, to challenge a
preference for a 50-year-old that is based on age. That
difference is a function of Congress having chosen to protect
persons who are 40, but not persons who are 39, from arbi-
trary age discrimination. For example, there is no question

18

that an individual who is 40 may sue under the ADEA when
he is replaced by someone who is 30, but that a 39-year-old
who is replaced by the same 30-year-old may not. For the
same reason, an individual who is 40 may sue to challenge a
preference for someone who is 50, but a person who is 39
may not. Although in both situations, the 39-year-old and
40-year-old may be aggrieved by arbitrary consideration of
age, Congress rationally decided that, because persons 40
and over as a class have greater difficulty in finding re-
employment than persons under 40 as a class, protection
should be extended only to those 40 and over.

3. The legislative history also supports the conclusion
that the ADEA generally prohibits an employer from dis-
criminating between protected workers on the basis of age.
In a separate statement attached to the Senate Report,
Senator Dominic raised a question concerning whether an
employer would be open to a charge of discrimination if he
hired a 42-year-old over a 62-year-old or a 62-year-old over a
42-year-old. S. Rep. No. 723, 90th Cong., Ist Sess. 15 (1967).
Senator Dominic noted that one committee counsel had
stated that neither may sue, while another counsel had
stated that both may sue. Id. at 16.

Senators Javits and Yarborough, two of the Act’s princi-
pal sponsors, then engaged in a colloquy on the floor of the
Senate to clarify that the ADEA would prohibit either action
if taken on the basis of age. Senator Javits began the
exchange as follows:

The Senator from Colorado, in his individual views, has
raised the possibility that the bill might not forbid dis-
crimination between two persons each of whom would be
between the ages of 40 and 65. As I understand it, that is
not the intent of the legislation. I do not think any such
reading is justified by the terms of the bill. I think we
should nail this down. Section 4 of the bill specifically

19

prohibits discrimination against any “individual” because
of his age. It does not say that the discrimination must
be in favor of someone younger than age 40. In other
words, if two individuals ages 52 and 42 apply for the
same job, and the employer selected the man age 42
solely * * * because he is younger than the man 52,
then [the employer] will have violated the act. * * *
Would the Senator from Texas be kind enough to advise
the Senate whether he agrees with that interpretation of
the bill?

113 Cong. Rec. 31,255 (1967).
Senator Yarborough, the floor manager of the bill, then
responded as follows:

I am glad that the Senator from New York has bought
this question up for clarification. This matter was dis-
cussed in committee, but it was discussed in executive
session. I think we should clarify this in the Congres-
sional Record. It was not the intent of the sponsors of
this legislation * * * to permit discrimination in em-
ployment on account of age, whether discrimination
might be attempted between a man 38 and one 52 years
of age, or between one 42 and one 52 years of age. If two
men applied for employment under the terms of this law,
and one was 42 and one was 52, * * * [the] employer
* * * could not turn either one down on the basis of the
age factor. * * * The law prohibits age being a factor in
the decision to hire, as to one age over the other, which-
ever way his decision went.

113 Cong. Rec. at 31,255 (emphasis added). While the stray
remarks of a single representative are not controlling, those
considered statements by the bill’s sponsors are entitled to
significant weight. North Haven Bd. of Educ. v. Bell, 456
U.S. 512, 526-527 (1982).

20

C. Petitioner’s Reliance On O’Connor v. Consolidated
Coin Caterers Corp., 517 U.S. 308 (1996), Is Mis-
placed

Petitioner contends (Br. 29-30) that O’Connor v. Con-
solidated Coin Caterers Corp., 517 U.S. 308 (1996), shows
that the ADEA prohibits only discrimination based on older
age. O’Connor, however, does no such thing.

In O’Connor, a plaintiff alleged that he was dismissed
because of age. In support of that claim, he produced
evidence that he was replaced by a younger worker who was
over 40. The Fourth Circuit dismissed the plaintiff’s claim,
holding that an ADEA plaintiff can establish a prima facie
case under the framework established in McDonnell Doug-
las Corp. v. Green, 411 U.S. 792 (1973), only when he can
show that he was replaced by someone outside the protected
class. This Court reversed, holding that, under the text of
the ADEA, “[tJhe fact that one person in the protected class
has lost out to another person in the protected class is *
irrelevant, so long as he has lost out because of his age. 517
U.S. at 312 (emphasis in original). The Court went on to hold
that a prima facie case requires evidence that raises an
inference of discrimination based on age and that “such an
inference cannot be drawn from the replacement of one
worker with another worker insignificantly younger.” Id. at
313. The Court explained that Iblecause the ADEA
prohibits discrimination on the basis of age and not class
membership, the fact that a replacement is substantially
younger than the plaintiff is a far more reliable indicator of
age discrimination than is the fact that the plaintiff was
replaced by someone outside the protected class.” Ibid.

Petitioner argues (Br. 29) that O’Connor is controlling
here because a person claiming that he has been treated less
favorably than an older worker obviously cannot show that
he has been treated less favorably than someone who is sub-
‘stantially younger. O’Connor, however, only addressed

21

what evidence is sufficient to establish a prima facie case
where the plaintiff’s claim is that his employer discrimi-
nated against him in favor of a younger worker. In that cir-
cumstance, a plaintiff proceeding under McDonnell Douglas
must show that someone substantially younger was given
more favorable treatment. O’Connor did not address
whether a person in the protected class can state a claim
under the ADEA by showing that someone older was given
more favorable treatment on the basis of age.

The Court’s decision in McDonald v. Sante Fe provides a
striking parallel. Before McDonald, the Court in McDonnell
Douglas had described the elements of a prima facie case
under Title VII to include proof that the plaintiff “belongs to
a racial minority.” 411 U.S. at 802. In McDonald, the Court
saw no inconsistency between that holding and its conclusion
that Title VII prohibits racial discrimination in employment
against whites as well. 427 U.S. at 279 n.6. The Court
explained that McDonnell Douglas’s requirement that a
plaintiff show that he belongs to a racial minority “was set
out only to demonstrate how the racial character of the
discrimination could be established in the most common sort
of case, and not as an indication of any substantive limitation
of Title VII’s prohibition of racial discrimination.” Ibid.

The situation is the same here. O’Connor devised the
“substantially younger” requirement for the most common
kind of ADEA case and the kind of case at issue there—one
where the plaintiff alleges discrimination based on his older
age. O’Connor does not establish any substantive limitation
on the ADEA’s general prohibition against age discrimina-
tion directed at persons who are at least 40 years of age. In
any event, because O’Connor addressed only the nature of
the evidence necessary to prove a violation through circum-
stantial evidence under the McDonnell Douglas framework,
O’Connor’s proof requirement has no application where, as
here, an employer’s policy facially discriminates on the basis

22

of age. See TWA v. Thurston, 469 U.S. 111, 121 (1985) (“the
McDonnell Douglas test is inapplicable where the plaintiff
presents direct evidence of discrimination”).

Indeed, far from supporting petitioner, O’Connor rein-
forces that the ADEA prohibits all discrimination against
protected workers because of age because O’Connor re-
jected the one argument that led some legislators to question
whether the ADEA protected a 42-year old against age-
based discrimination in favor of a 62-year-old. As described
above (pp. 18-19, supra), Senator Dominic’s concern was that
neither the 42-year-old nor the 62-year-old could sue if they
suffered age-discrimination vis-a-vis the other because they
were both in the protected class. The colloquy between
Senators Javits and Yarborough made clear that both could
sue, and O’Connor verifies that conclusion by emphasizing
that it is “irrelevant” whether the plaintiff “lost out to
another person in the protected class,” if “he has lost out
because of age.” 517 U.S. at 312.

D. The ADEA’s General Prohibition Against Age Dis-
crimination Does Not Endanger Bona Fide Benefit
Plans That Favor Older Over Younger Protected
Workers As Long As They Satisfy The Requirements of
29 U.S.C. 623(1)(2)(B)(i)

1. Petitioner contends (Br. 40-41) that, if Section
623(a)(1) prohibits an employer from favoring older over
younger protected employees, it would endanger minimum
age retiree health benefit plans that are “virtually ubiqui-
tous” among employers. That argument ignores the effect of
29 U.S.C. 623(f)(2)(B)(i).

As amended by the Older Workers Benefit Protection Act
(OWBPA), Pub. L. No. 101-433, 104 Stat. 978, Section
623(f)(2)(B)(i) provides that it shall not be unlawful for an
employer “to observe the terms of a bona fide employee
benefit plan—(i) where, for each benefit or benefit package,

*
5

23

the actual amount of payment made or cost incurred on
behalf of an older worker is no less than that made or
incurred on behalf of a younger worker, as permissible under
section 1625.10, title 29, Code of Federal Regulations.” 29
U.S.C. 623(f2)(BXi). In addition, the plan may not “require
or permit the involuntary retirement of any [protected]
individual.” 29 U.S.C. 623(f)(2)B) (proviso). The employer
has the burden of proving that a plan satisfies those
requirements. 29 U.S.C. 623(f)(2).

The text of Section 623(f)(2)(B)(i) establishes five basic
requirements: (1) the employer’s action must be taken
pursuant to a “benefit plan”; (2) the benefit plan must be
“bona fide”; (3) the employer must “observe” the plan; (4) the
payment made or cost incurred on behalf of an older worker
must be “no less than” that made or incurred on behalf of a
younger worker; and (5) the plan may not “require or per-
mit” involuntary retirement of a protected worker. Section
623(f(2B)i) incorporates the explanation of those re-
quirements from the EEOC’s preexisting regulation on
benefit plans, which interpreted the original Section
623(f)(2). As long as the statutory requirements are
satisfied in the manner set out in the EEOC’s regulation, an
employer may take action that is “otherwise prohibited” by
the ADEA. 29 U.S.C. 623(f)(2). Thus, while Section
623(a)(1) generally prohibits an employer from providing a
different level of benefits to protected individuals because of
their age, Section 623(f)(2)(BXi) permits an employer to
engage in such discrimination when its specific requirements
are satisfied.

By providing that the payment made or cost incurred on
behalf of older workers must be “no less than” that incurred
on behalf of younger workers, Section 623(f)(2)(B)(i) deliber-
ately departs from the EEOC’s preexisting regulation which
had specified that an employer would have a defense “where
the actual amount of payment made, or cost incurred, in

24

behalf of an older worker is equal to that made or incurred in
behalf of a younger worker.” 29 C.F.R. 1625.10 (1988)
(emphasis added). That change makes clear that an em-
ployer that otherwise satisfies the provision’s preconditions
may make greater payments and incur greater costs on
behalf of older workers than younger workers in the pro-
tected class. Furthermore, Section 623(f)(2)(B)i) does not
require as a precondition that the employer provide equal
benefits to older and younger protected employees. Nor is
such a condition contained within the five basic require-
ments. Indeed, the affirmative defense is triggered only
when there is a disparity in benefits that would otherwise
trigger the ADEA’s basic prohibition of age discrimination.
Accordingly, an employer that satisfies the five basic
requirements is free to provide greater benefits to older
workers in the protected class, even though such a practice
would be “otherwise prohibited” by the ADEA. 29 U.S.C.
623(f (2).

The legislative history confirms that understanding. The
EEOC’s then-General Counsel, Charles Shanor, testified in
hearings before the Senate that the proposed amendment
permits “an older employee to receive greater benefits or an
employer to incur greater costs for an older than for a
younger employee.” Older Workers Benefit Protection Act:
Hearing Before the Subcomm. on Labor of the Senate
Comm. on Labor and Human Resources and Special
Comm. on Aging, 101st Cong., Ist Sess. 62 (1989); see id. at
67. Shanor adverted to an EEOC regulation “which permits
the extension of additional benefits to older workers to
counteract problems of age discrimination,” and explained
that the amendment “simplifies” that regulation. Jd. at 456.
See 29 C.F.R. 1625.2(b); note 4, infra. Shanor gave sub-
stantially the same testimony to the House. Age Discrimi-
nation in Employee Benefit Plans: The Impact of the Betts
Decision: Joint Hearing Before House Select Comm. on

25

*

Aging and the Subcomms. on Employment Opportunities
and Labor-Management Relations of the Comm. on Edu-
cation and Labor, 101st Cong., Ist Sess. 59, 64, 77 (1989).
Thus, as long as the requirements in Section 623(f)2)(B\(i)
are satisfied, retiree health benefit plans that provide
greater benefits to older than to younger protected workers
do not violate the ADEA.

2. Ultimately, petitioner recognizes that a holding that
the ADEA generally prohibits an employer from favoring
older over younger protected workers does not endanger
prevalent forms of retiree health benefit plans because it
argues (Br. 36-38) that its own plan is protected by Section
4(f(2)B\Xi). Petitioner, however, did not raise that issue in
its motion to dismiss before the district court. Nor did it
raise that issue on appeal. Accordingly, neither the district
court nor the court of appeals resolved that issue. Because
petitioner did not raise that issue in its motion to dismiss or
on appeal, and because neither court resolved the issue,
that question is not properly presented here. See United
States v. United Foods, Inc., 533 U.S. 405, 417 (2001). Re-
view of that issue is particularly unwarranted here, because
Section 623(f\(2)(B\i) is an affirmative defense on which the
employer has the burden of proof, and evidence has not yet
been directed to the question whether the preconditions of
that defense have been satisfied.

That does not mean that petitioner is foreclosed from
raising that issue in this litigation. After the court of appeals
issued its decision, petitioner filed an answer in the district
court in which it asserted Section 623(f2)(B)(i) as an affir-
mative defense. The district court is the proper forum for
resolving the issue in the first instance.

3 Petitioner asserts (Br. 45) that employers favor older over younger
employees in the protected group infrequently. There is some tension
between that statement and petitioner’s assertion that benefit plans that
favor older workers in the protected group are “virtually ubiquitous.”

E. The EEOC Has Interpreted The ADEA To Prohibit An
Employer From Favoring Older Over Younger Pro-
tected Workers, And Its Interpretation Warrants
Deference

For the reasons discussed above, it is clear that the
ADEA generally bars an employer from favoring older over
younger protected workers. If the Court were to conclude
that Congress did not resolve that question conclusively,
however, it should defer to the EEOC’s authoritative deter-
mination that the ADEA generally bars such discrimination.
See Chevron U.S.A. Inc. v. Natural Res. Def. Counsel, 467
U.S. 837, 842-845 (1984) (where Congress has not spoken di-
rectly to an issue, courts should defer to agency’s construc-
tion, provided that the construction is reasonable).

1. The Department of Labor initially had responsibility
for enforcement of the ADEA. That responsibility was sub-
sequently transferred to the EEOC, and the EEOC is now
the exclusive federal agency responsible for enforcing the
ADEA. 29 U.S.C. 625 note, 626. Congress has also dele-
gated to the EEOC authority to promulgate regulations to
carry out the purposes ofthe ADEA. 29 U.S.C. 628.

In 1981, following notice and comment, the EEOC issued an
interpretive regulation that provides that it is unlawful for
an employer to prefer one worker in the protected group
over another in the protected group because of either indi-
vidual’s age. 29 C.F.R. 1625.2(a). The regulation, which

Moreover, petitioner appears to suggest (Br. 33-34) that some employers
may favor older members of the protected group in layoffs in order to
minimize the chance that older workers will challenge the layoffs under
the ADEA. Ultimately, however, the question is not whether discrimina-
tion that favors older over younger workers in the protected class is
frequent, but whether it is prohibited by the ADEA. Cf. Oncale, 523 U.S.
at 79. For the reasons discussed in this brief, the ADEA prohibits such
discrimination unless one of the Act's affirmative defenses applies.

27

tracks a similar regulation issued by the Department of
Labor in 1968 (29 C. F. R. 860.91), provides that:

It is unlawful in situations where this Act applies, for an
employer to discriminate in hiring or in any other way by
giving preference because of age between individuals 40
and over. Thus, if two people apply for the same posi-
tion, and one is 42 and the other 52, the employer may
not lawfully turn down either one on the basis of age, but
must make such decision on the basis of some other
factor.

The EEOC has also applied its regulation in a legally
binding and precedential federal sector adjudication. Garrett
v. Runyon, No. 01960422, 1997 WL 574739 (Sept. 5, 1997),
aff d in relevant part on reconsideration, No. 01960422, 1999
WL 909980 (E.E.0.C. Sept. 30, 1999). In Garrett, the EEOC
held that the United States Postal Service could not use
“earliest date of birth” as a tie-breaker when determining
seniority for purposes of assigning rural carrier routes. Ibid.
See 29 U.S.C. 633a(a) (prohibiting age discrimination by
federal agencies); 29 U.S.C. 633a(b) (giving EEOC authority
to enforce the federal sector prohibition through appropriate
remedies).

4 The EEOC’s regulation creates an exception to that general pro-
hibition. Under that exception, “(t]he extension of additional benefits,
such as increased severance pay, to older employees within the protected
group may be lawful” when the employer “has a reasonable basis to con-
clude that those benefits will counteract problems related to age dis-
crimination,” provided the extension of additional benefits is not used as a
means to commit other forms of discrimination outside the context of
benefits. 29 CFR 1625.2(b). Because petitioner did not rely on that
exception in its motion to dismiss or on appeal, and because neither court
below addressed it, that exception is not at issue here.

5 Three other federal sector decisions that predated Garrett contain
statements that the ADEA does not prohibit treating younger workers in
the protected class less favorably than older protected workers. Isabella
v. Runyon, No. 01944083, 1995 WL 653513 (E.E.0.C. Oct. 19, 1995);

28

For the reasons discussed in this brief, “the EEOC’s inter-
pretation is a true rendering of the language” (Pet. App. 10a)
and accurately reflects Congress’s clearly expressed intent.
At the very least, however, the EEOC’s construction of the
ADEA is reasonable. Accordingly, if the Court concludes
that the relevant sources of legislative intent do not conclu-
sively resolve the issue, it should defer to the EEOC’s long-
standing construction under Chevron.

2. Petitioner contends (Br. 39) that the EEOC’s inter-
pretation does not qualify for Chevron deference, but should
instead be examined under Skidmore v. Swift & Co., 323
U.S. 134 (1944). That contention is incorrect. The EEOC
has authority to enforce the ADEA and to issue regulations

DuPriest v. Bentsen, No. 01942145, 1994 WL 1755951 (E.E.0.C. May 2,
1994); Burt v. Bentsen, No. 01942163, 1994 WL 735377 (E.E.0.C. Apr. 29,
1994). Because those decisions were not circulated to the Commission,
their reasoning lacks precedential value. The results in those cases are
independently justified because all involved challenges to the use of a

age as a condition of early retirement programs, and the ADEA
does not bar that practice. See 29 U.S.C. 623(1)(1)(A) (minimum age for
eligibility for normal or early retirement benefits is not a violation of the
ADEA). An early Department of Labor (DOL) opinion letter concluded
that the ADEA prohibited an employer from reserving certain positions
for persons over the age of 50. The letter disapproved that practice on the
ground tnat it “could be taken as a precedent for giving older workers
certain jobs at lesser rates of pay simply to keep them employed, or could
be interpreted as a preference for one group of older workers (that is,
those over 50) over another group (those 40 to 50 who are also entitled to
the protection of the law).” Letter WH-30, 1970 WL 26398 (May 1, 1970).
Another early DOL letter took the same position. Letter WH-36, 1970
WL 26404 (May 25, 1970). Three later letters approved extending more
favorable treatment to older workers in the protected group. Letter WH-
389, 1976 WL 41742 (June 25, 1976) (contractual provision extending
preference to persons 55 and older); Letter WH-404, 1976 WL 41753 (Aug.
26, 1976) (contractual provision reserving every fifth journeyman position
to persons 55 and older); Letter WH-451, 1978 WL 51448 (Jan. 31, 1978)
(plan providing greater severance pay to older workers). Those letters
stated that DOL’s interpretive regulation prohibiting such discrimination
would be amended, but such an amendment never occurred.

— — — m —

29

to carry out its purpose; it issued its interpretation after
notice and comment; it framed its regulation as a mandatory
legal duty; it applied the regulation in a legally binding
adjudication that has precedential force; and its interpre-
tation is consistent with the Department of Labor’s initial
interpretation of the ADEA in 1968. In those circumstances,
the EEOC’s interpretation is entitled to Chevron deference.
United States v. Mead Corp., 533 U.S. 218, 229-231 (2001);
see Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 84-87
(2002) (deferring to an EEOC regulation); Barnhart v. Wal-
ton, 535 U.S. 212, 221-222 (2002); Smiley v. Citibank (South
Dakota), N.A., 517 U.S. 735 (1996).

This case, however, does not require the Court to decide
whether the EEOC’s interpretation is entitled to Chevron or
Skidmore deference. The text and structure of the ADEA
make clear that it generally bars an employer from favoring
older over younger protected workers, and that an employer
seeking to engage in such discrimination must rely on one of
the ADEA’s affirmative defenses. The EEOC’s longstand-
ing interpretation both reflects and supports that conclusion.
Cf. Edelman v. Lynchburg College, 535 U.S. 106, 114 (2002)
(declining to fix the precise level of deference because
EEOC’s interpretation was “not only a reasonable one,” but
the correct one).

As the text makes plain, the ADEA prohibits discrimina-
tion because of age. The Act prohibits discrimination even if
“one person in the protected class has lost out to another
person in the protected class,” and without regard to
whether the one who lost out is the older or younger of the
two, “so long as he lost out because of age.” O Connor, 517
U.S. at 312. The basic prohibition generally precludes con-
sideration of age in advertising, hiring, promotion, and firing
and promotes the evaluation of candidates on the basis of

30

abilities, rather than age. When it comes to benefits, how-
ever, affirmative defenses allow employers to provide
additional benefits to members who have reached a certain
age as long as certain conditions are met. Accordingly, there
is no reason to read the ADEA as indifferent to discrimina-
tion because of age when an employer favors older workers.
The ADEA, as a whole, both generally prohibits discrimina-
tion because of age, while specifically addressing the case of
benefits.

CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.

PAUL D. CLEMENT
Acting Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor
ERIC S. DREIBAND G l

General Counsel

CAROLYN L. WHEELER
Acting Associate General
Counsel

LORRAINE C. DAVIS
Assistant General Counsel
ROBERT J. GREGORY
Senior Attorney
SUSAN R. OXFORD
A

ttorney
Equal Employment
Opportunity Commission

AUGUST 2003

* ‘The Solicitor General is recused from this case.

APPENDIX

1. 29 U.S.C. 621 provides:

§621. Congressional statement of findings and
purpose
(a) The Congress hereby finds and declares that—

(1) in the face of rising productivity and affluence,
older workers find themselves disadvantaged in their
efforts to retain employment, and especially to regain
employment when displaced from jobs;

(2) the setting of arbitrary age limits regardless of
potential for job performance has become a common
practice, and certain otherwise desirable practices may
work to the disadvantage of older persons;

(3) the incidence of unemployment, especially long-
term unemployment with resultant deterioration of skill,
morale, and employer acceptability is, relative to the
younger ages, high among older workers; their numbers
are great and growing; and their employment problems

grave,

(4) the existence in industries affecting commerce, of
arbitrary discrimination in employment because of age,
burdens commerce and the free flow of goods in
commerce.

(b) It is therefore the purpose of this chapter to promote
employment of older persons based on their ability rather
than age; to prohibit arbitrary age discrimination in
employment; to help employers and workers find ways of
meeting problems arising from the impact of age on
employment.

(la)

2a

—

2. 29 U.S.C. 623 provides in pertinent part:
§ 623. Prohibition of age discrimination
(a) Employer practices

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any indivi-
dual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s

age,

* * * * *

(e) Printing or publication of notice or advertisement
indicating preference, limitation, etc.

It shall be unlawful for an employer, labor organization, or
employment agency to print or publish, or cause to be
printed or published, any notice or advertisement relating to
employment by such an employer or membership in or any
classification or referral for employment by such a labor
organization, or relating to any classification or referral for
employment by such an employment agency, indicating any
preference, limitaion, specification, or discrimination, based
on age.

(f) Lawful practices; age an occupational qualification;
other reasonable factors; laws of foreign workplace;
seniority system; employee benefit plans; discharge or
discipline for good cause

It shall not be unlawful for an employer, employment
agency, or labor organization—

(1) to take any action otherwise prohibited under
subsections (a), (b), (e), or (e) of this section where age is
a bona fide occupational qualification reasonably neces-

3a

sary to the normal operation of the particular business,
or where the differentiation is based on reasonable
factors other than age, or where such practices involve
an employee in a workplace in a foreign country, and
compliance with such subsections would cause such
employer, or a corporation controlled by such employer,
to violate the laws of the country in which such
workplace is located; .

(2) to take any action otherwise prohibited under
subsection (a), (b), (e), or (e) of this section—

* * * * *

(B) to observe the terms of a bona fide employee
benefit plan

(i) where, for each benefit or benefit pack-
age, the actual amount of payment made or cost
incurred on behalf of an older worker is no less than
that made or incurred on behalf of a younger
worker, as permissible under section 1625.10, title
29, Code of Federal Regulations (as in effect on
June 22, 1989); or

(ii) that is a voluntary early retirement
incentive plan consistent with the relevant purpose
or purposes of this chapter.

Notwithstanding clause (i) or (ii) of subparagraph (B), no
such employee benefit plan or voluntary early retirement
incentive plan shall excuse the failure to hire any individual,
and no such employee benefit plan shall require or permit
the involuntary retirement of any individual specified by
section 63 10a) of this title, because of the age of such
individual. An employer, employment agency, or labor
organization acting under subparagraph (A), or under clause

4a 5a

(i) or (ii) of subparagraph (B), shall have the burden of
proving that such actions are lawful in any civil enforcement
proceeding brought under this chapter;

4. 29 U.S.C. 631 provides:
§631 Age limits

* * * * *

(a) Individuals at least 40 years of age

(1) Lawful practices; minimum age as condition of eligibil-
ity for retirement benefits; deductions from severance
pay; reduction of long-term disability benefits

The prohibitions in this chapter shall be limited to
individuals who are at least 40 years of age.

* * * * *

— —— — r

Notwithstanding clause (i) or (ii) of subsection (f) 2) (B) of
this section

(1) It shall not be a violation of subsection (a), (b), (e),
or (e) of this seetion solely because

(A) an employee pension benefit plan (as defined
in section 10022) of this title) provides for the
attainment of a minimum age as a condition of
eligibility for normal or early retirement benefits;

* * * * *

3. 29 U.S.C. 628 provides:
§628 Rules and regulations, exemptions

In accordance with the provisions of subchapter II of
chapter 5 of title 5, the Equal Employment Opportunity
Commission may issue such rules and regulations as it may
consider necessary or appropriate for carrying out this
chapter, and it may establish such reasonable exemptions to
and from any or all provisions of this chapter as it may find
necessary and proper in the public interest.

* * * * *

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0633%3A17. Public record. Not legal advice.