Petitioners Brief — Smith v. City of Jackson

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(ie) FILED

JUN 15 2004

No. 03-1160

IN THE

Supreme Court of the United States

Azel P. Smith, ef ai.,

Petitioners,

Vv.

City of Jackson, Mississippi, and

Police Department of the City of Jackson, Mississippi,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE PETITIONERS

Pamela S. Karlan Thomas C. Goldstein

559 Nathan Abbott Way (Counsel of Record)

Stanford, CA 94305 Amy Howe

GOLDSTEIN & Howe, P.C.

Dennis L. Horn 4607 Asbury Pl., NW

Horn & Payne, PLLC Washington, DC 20016

P.O. Box 2754 (202) 237-7543

Madison, MS 39130

June 14, 2004

EE ae eae

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

impact claims cognizable under the Age

QUESTION PRESENTED

Discrimination in Employment Act?

Are di

PARTIES TO THE PROCEEDINGS BELOW

In addition to the parties named in the caption, the fol-

lowing parties appeared below and are petitioners here: Willie

Allen; Joe L. Austin; Jerry Brister; Gloria Burns; Jacqueline

Butler; Harvey L. Davis; William H. Gladney, Sr.; Tommie

L. Grant; Ned Garner; William R. Gardner; Samuel Haymer;

James J. Howard; Warren E. Hull; Thomas Hunter; Arlander

Luallen, Jr.; Willie Mack; Eugene McDonald; Carey N. Park-

inson; Ruthie Porter; Cleotha Ratliff; John M. Russell; David

L. Shaw; Wayne Simpson, Jr.; Richard J. Smith; Kenneth W.

Stemmons; James B. Strawbridge; Alphonso Taylor; Miller

Weston: and Shirley Williams.

TABLE OF CONTENTS

EN i

PARTIES TO THE PROCEEDINGS BELOW ......00.00000000.... ii

EEE iii

ee Vv

BOURNE COU BUNS BS EU EMIS oncccccccccsZecccscesccsccsccsccscescesenees l

EE TD l

EL l

RELEVANT STATUTORY AND REGULATORY

A l

LE 2

SRPOMEIIPAI EGU PUITIUIINGIIIN TD oxccccccccccccsccsccsesesccscosscsscsscsscsecs 7

TTT iiieicceerrtreeencentcciecensesnentenscennenenenueceneenecceces 10

1. The EEOC’s Recognition Of Disparate Impact Claims

Represents The Better Construction Of The ADEA....... 1

A. The EEOC’s Interpretation Is Faithful To This

Court’s Decision In Griggs v. Duke Power Co..,

Which Construed The Identical Language Of

Title VII, On Which Congress Modeled The

Sa naaacaaantetieterteteceneresrentctennenennenteenseneenecees 11

B. The Text Of The ADEA Supports The EEOC’s

Determination That Disparate Impact Claims

May Be Brought Under The ADEA........................ 17

1. The ADEA’s “Reasonable Factors Other

Than Age” Provision Reinforces The

Conclusion . jiat Disparate Impact Claims

2. The Phrase “Because Of” In Subsection

(a)(2) Does Not Preclude Disparate Impact

EE LT 22

C. The Purpose Of The ADEA Confirms The

EEOC’s Conclusion That Disparate Impact

Claims Are Cognizable. .................c..:ccsccssceesseeseeees 25

ll. The EEOC’s Regulations Are Entitled To Chevron

Die PRIGTRGR. ...c0000cccccesccessscesceccesesecccsessscerssssssssssssssssnsseseneses 29

CONCLUSION

PTrTTTT Per TITTLE eee eee eee

TABLE OF AUTHORITIES

Cases

Adams v. Fla. Power Corp., 255 F.3d 1322 (CA11),

cert. granted, 534 U.S. 1054 (2001), and cert.

dismissed, 535 U.S. 228 (2002) .............cccce0ee 10, 20, 21, 37

Alaska Dep't of Envtl. Conservation v. EPA, 124 §S. Ct.

Fe Ie reccarenseseninnenentnnciitianneanminapipainitniniateanianitindtipeiasesl 36

Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520

INES Ce cecieesensncctresnsccsnsnenninntiiitineniiinitsimpiiiinicianiiiiapnitaies 21

Aluminum Co. of Am. v. Cent. Lincoln Peoples’ Utility

Rh, GEG Gs Be ee iretneneensicntennsinnminniniiisinn 34

Arnett v. Cal. Pub. Employees Ret. Sys., 179 F.3d 690

(CA9 1999), vacated on other grounds and remanded

Rg re 6

Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S.

re eT 15

Auer Vv. Robbins, 519 U.S. 452 (1997)........ccccccccceeeeeeeeeeeeeeees 33

Barnhart v. Thomas, 124 S. Ct. 376 (2003) .........ccccccccceeeeeeees 3

Barnhart v. Walton, 535 U.S. 212 (2002) .........cccccccceeeveee 3, 33

Boeing Co. v. United States, 537 U.S. 437 (2003)............... 35

Bryant v. City of Chicago, 200 F.3d 1092 (CA7 2000)........ 20

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,

SF he GG Ce cserenttinnensnntttinarpnneniaitinaniaesipass passim

Christensen v. Harris County, 529 U.S. 576 (2000) .. 7, 31, 32

Clackamas Gastroenterology Assocs., P.C. v. Wells,

SD a GE ee cnnssiitnarntintocsiinnensinteienens 30

Clarke v. Sec. Indus. Ass'n, 479 U.S. 388 (1987) ................ 32

Connecticut v. Teal, 457 U.S. 440 (1982) ..........cccccceee 11,12

County of Washington v. Gunther, 452 U.S. 161 (1981)...... 21

Cullen v. Indiana Bd. of Trustees, 338 F.3d 693 (CA7

SB) cccncnscsnscensecevsupsnevenensnesannneecngaeenstnevesvensitseneeenaeeenneneeeh 21

Dothard v. Rawlinson, 433 U.S. 321 (1977) .........c.cc0000+ 14, 29

EEOC v. ARAMCO, 499 U.S. 244 (1991) ....cccccccceeeees 7, 15,31

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

ee 35

EEOC v. Commercial Office Products Co., 486 U.S.

On 14

EEOC vy. Francis W. Parker Sch., 41 F.3d 1073 (CA7

1994), cert. denied, 515 U.S. 1142 (1995). 0.0.0... cccceeeenees 28

EEOC v. LC. Penney Co., 843 F.2d 249 (CA6 1988).......... 21

EEOC v. Wyoming, 460 U.S. 226 (1983) ........ccccccceeeeeees 27, 28

Ellis v. United Airlines, Inc., 73 F.3d 999 (CA10 1996)...... 21

Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d

Oe ee 35

Frank v. United Airlines, Inc., 216 F.3d 845 (CA9

2000), cert. denied, 532 U.S. 914 (2001)... cece eeeeeeeeees 6

Geller v. Markham, 635 F.2d 1027 (CA2 1980) .................+. 6

General Dynamics Land Systems, Inc. v. Cline, 124 S.

a 16, 27

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

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20

| eee 16

Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (1993) ..... 34

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993)........ passim

Hishon v. King & Spaulding, 467 U.S. 69 (1984) ...........0000+ 15

Hohn v. United States, 524 U.S. 236 (1998) ........ccccccccceeeeeee 22

Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258

Ee 13

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990)..... 15

Int'l B’‘hood of Teamsters v. United States, 431 U.S.

pe 27

Int'l Union, United Auto., Aerospace, & Agric.

Implement Workers of Am., UAW v. Johnson

Controls, Inc., 499 U.S. 187 (1991) .......cccccccceeeceeeeeeeeeeeees 15

Johnson v. Combs, 471 F.2d 84 (CAS 1972)..........ccccccceeeeees 14

Keene Corp. v. United States, 508 U.S. 200 (1993)............. 12

vii

Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (1999) ....0.0..0.... 15

Kralman vy. lll. Dep't of Veterans’ Affairs, 23 F.3d 150

ERT Cie ee crvieccncmnesicsireseeiiniatininaaiiaaininiaiatittaaraitaitiaiaieaiamaaiaas 30

Laugesen v. Anaconda Co., 510 F.2d 310 (CA6 1975)........ 35

Lewis v. Aerospace Comty. Credit Union, 114 F.3d 745

(CA8 1997), cert. denied, 523 U.S. 1062 (1998)................ 6

Lorillard v. Pons, 434 U.S. 575 (1978) ....cccccccccccceseeseeee passim

Lowe v. Commack Union Free Sch. Dist., 886 F.2d

SEED SUID cricennecnnaniuninbinnnttbanneniasitiinenantaatitasttiaiiaialins 35

McKennon v. Nashville Banner Publishing Co., 513

a Se eee enrcersrennsesapeteonntintpingiecniaamiinsases 13, 14, 25

Mullin v. Raytheon Co., 164 F.3d 696 (CA1 1999).............. 21

NationsBank of N.C., N.A. v. Variable Annuity Life Ins.

Cg See ee HS Ce crccrerersrenecdnicnscitnitsnensnanatititinnliniaes 32

Northcross v. Board of Education, 412 U.S. 427 (1973)..... 13

Olmstead v. L.C., 527 U.S. 581 (1999) .......ccccccceseceeeseeeeveeees 15

Oncale v. Sundowner Offshore Servs., 523 U.S. 75

GUO cacensensssnescsreeereangrnmmesninemnmamenpenanebiaiinnn 27

Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979). 13, 14, 25

Patterson v. McLean Credit Union, 491 U.S. 164

eee neseiasarsnateresiniendiaiabniinininaainnintasiiaiiiiiiinasesiaaeaaiastsial 22

Sanchez v. Pacific Powder Co., 147 F.3d 1097 (CA9

Faee aap cnevenneuncnnsticinasanitinanaidbediiaiatanaiaaiiatiiadiiesttiilad ceil satiiatamesiaaidiil 30

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ......cccccccceeeee 36

Smith v. City of Des Moines, 99 F.3d 1466 (CA8 1996)........ 6

Smith v. Xerox Corp., 196 F.3d 358 (CA2 1999) .00....ccccccccees 6

Stevens v. Department of the Treasury, 500 U.S. |

Go ep cnsnentasinvenscnsemneiemnnmesetilasitsiiittiiedilitataiaiaeiesteemaia 16

Teamsters v. United States, 431 U.S. 324 (1977) ......ccccccccceees 4

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

ee a ee AE: 3, 13, 15

U.S. Dep't of Energy v. Ohio, 503 U.S. 607 (1992)............. 13

United States v. Cleveland Indians Baseball Co., 532

a See ee nresnscsntieninspanpainictapenttiitiniatiiaiae tbls, 13

viii

United States v. Mead Corp., 533 U.S. 218 (2001)..........04+. 30

US Airways, Inc. v. Barnett, 535 U.S. 391 (2002)......:.c00000 10

Watson v. Fort Worth Bank & Trust, 487 U.S. 977

OR a cecencoseccsnncssesecnsstantenecenstsnennsiasanenesnanmsenasensscenias 27, 29

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

SI cecccscncccociicccntiiniteiianiaumisiimnesiaiitiasaiamemeaiitniieds 14, 30, 34

Whitman v. Am. Trucking Ass ‘ns, Inc., 531 U.S. 457

RITE). -nccosssancsesensnsndtennennantutietamessennntmmmnencansstennsineneannncssat 13

Zuber v. Allen, 396 U.S. 168 (1969)...........cccccceeeeeeeereeeeeeeeees 34

| Statutes

28 U.S.C. 1254(1)............ ssusessesussneenscssessssonesssssnesnnsanesneconecneess l

Equal Pay Act, 29 U.S.C. 206.........:sssscesesrssesenssseesnees passim

y LIE | | a ae 6, 18, 19

Age Discrimination in Employment Act of 1967, Pub.

L. No. 90-202, 81 Stat. 602, codified as amended at

FOU BL. GabDO as coccccecccccscccssccccscccsccecs essscceses passim

y DIR My eee 4,25

yp LET A eee 27

y LLY ll See ]

BPEL DE... GI ccccnsrccttemnssnmnestanssatmemesmatnsncenens passim

J 4 6

PU} | 9,17, 19,24

lf 5, 30, 31

TOBE COD crsccccrrctitnncnncencenniieen saute 10

BOUL BL. GOED ccccsenssncsscccscnccscccsssssssssssssasscsscsssssecsssossocssces 5

pL) i 14

I, Co cceiecinisicaiiiteeniiinasisitaiiiiianiniiaininats 23

Civil Rights Act of 1964, tit. VII, Pub. L. No. 88-352,

78 Stat. 253. codified as amended at 42 U.S.C. 2000e

0 FEOF ccccccccescsssccccscsssccsssccsnccsssssusnsensnsescssessneneeess passim

42 U.S.C. 20000-2( M2) ......ecceecserssersssesersseerserseneees 4,11,17

42 UBC. BBBB BEE) ccccccescccsscescsscsescccsccscsssssssssnssssoossesoeses 12

42 U.S.C. 2000-€2(K (1 MA)....cccccccccsccerereeereseresereseeenseenees 12

i es A eitcieriieititatiipanciataiaiiaetiaiiit a canine 31

Civil Rights Act of 1991, § 3(3), 42 U.S.C. 1981 note......... 12

Other Authorities

Br. of EEOC, EEOC v. McDonnell Douglas Co.,191

Fo TEED Gee cnisneediicsnninsiantnpestiiialanianialiiiaitaiamamiais 33

Br. of EEOC, Ellis v. United Airlines, 73 F.3d 999

eee Cae ionerescnnniniiincveanstiabesiiititinntasenaiienansasaiiietiaiaieamsdii 33

_ Br. of EEOC, Meacham v. Knolls Atomic Power Lab.

a Re acrcceiesieccentsininetiiciasieratistinaaatataticianaas 20, 33

Br. of EEOC, Sitko v. Goodyear Tire & Rubber (CA6

uaa Ta vtaitseisencnsntiialipciandcadiipiesiniednemniahiadéimecsiinamenpsil passim

Keith R. Fentonmiller, The Continuing Validity of

Disparate Impact Analysis for Federal-Sector Age

Discrimination Claims, 47 Am. U. L. Rev. 1071

Michael Evan Gold, Disparate Impact Under the Age

Discrimination in Employment Act of 1967, 25

BERKELEY J. Emp. & LAB. L. 1 (2004)... ccccccceceeceeeeceee 21

RAYMOND F. GREGORY, AGE DISCRIMINATION IN THE

AMERICAN WORKPLACE (2001 )........ccccccccccsseeecesseeeereeeeeees 28

Jan W. Henkel, The Age Discrimination in Employment \

Act: Disparate Impact Analysis and the Availability

of Liquidated Damages Afier Hazen Paper Co. v. y

Biggins, 47 SYRACUSE L. REV. 1183 (1997) .0......cccccccseeee 28

See FO Oey Cee COME, CODED ccccccocasccescsssessesesessescssoteccsssentes 21

Steven J. Kamenshine, The Cost of Older Workers,

Disparate Impact, and the Age Discrimination in

Employment Act, 42 FLA. L. REV. 229 (1990) ........cccccc000e 28

THE NEW OXFORD AMERICAN DICTIONARY (2001).............. 24

Reorganization Plan No. | of 1978, 43 Fed. Reg. 19,807

Sa PU ccsereniteninentcertabnenctientnasittinnigeitiasenieriaatmasiatintiainias 5

S. Rep. No. 263, 101st Cong., 2d Sess. (1990),

reprinted in 1990 U.S.C.C.A.N. 1509 ....cccccccccccecseeesseeseees 35

U.S. Dep't of Labor, The Older American Worker: Age

Discrimination in Employment, Report of the

Secretary of Labor to the Congress Under Section

715 of the Civil Rights Act of 1964 (1965), reprinted

in EEOC, LEGISLATIVE HISTORY OF THE AGE

DISCRIMINATION IN EMPLOYMENT ACT (1981)..........- 26, 27

Regulatory Materials

DO C.F.R. BOG. 1OBII AD) ncccccccccccccccceccesccesvssscscccsccsascoscsseeces 34

OE ee hisasaeiainiil 34

, et |} Seen 2

DOC DD BORG FAD onccccecccsdecccncinnccmsscsinnsinsenvmsacnnecassesnseniste 5,8

33 Fed. Reg. 9172 (June 21, 1968) (codified at 29

OJ 8 1 2 8, 10

34 Fed. Reg. 322 (Jan. 9, 1963) (codified at 29 C.F.R.

WOE BIO... scncesciidsiacdennsideiiiaiannianicnetnmpennenevesioneimmenadninedte 8

35 Fed. Reg. 12.333 (Aug. 1, 1970) .......cccceseeseereeeeseessneees 30

44 Fed. Reg. 37.974 (June 29, 1979) ......cceseeseeeseersereceesennes 30

44 Fed. Reg. 68.858 (Nov. 30, 1979) ......ccccceseeseersereeeseesenees 30

46 Fed. Reg. 47.724 (Sept. 29, 1981) ......cceceseseeseeseeeeeeees 8, 11

46 Fed. Reg. 50,766 (Oct. 14, 1981).......:cseseserereseeseeseneees 32

Final Interpretations: Age Discrimination in

Employment Act, 46 Fed. Reg. 47,724 (Sept. 29,

1981) (codified as amended in 29 C.F.R. pt. 1625)............ 8

BRIEF OF THE PETITIONERS

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Fifth Circuit (Pet. App. 1a-38a) is published at 351 F.3d 183.

The district court’s order granting summary judgment in favor

of respondents (Pet. App. 39a-49a), dated September 6, 2002,

is unpublished.

JURISDICTION

The judgment of the court of appeals was entered on No-

vember 13, 2003. The petition for a writ of certiorari was

filed on February 10, 2004, and was granted March 29, 2004.

This Court has jurisdiction pursuant to 28 U.S.C. 1254(1).

RELEVANT STATUTORY

AND REGULATORY PROVISIONS

The Age Discrimination in Employment Act (“ADEA”)

of 1967, as amended, provides in relevant part:

(a) It shall be unlawful for an employer—

** * *

(2) to limit, segregate, or classify his employ-

ees in any way which would deprive or tend to

deprive any individual of employment opportuni-

ties or otherwise adversely affect his status as an

employee, because of such individual’s age * * *.

** * *

(f) It shall not be unlawful for an employer * * *—

(1) to take any action otherwise prohibited

under subsection{] (a) * * * where the differentia-

tion is based on reasonable factors other than age

***

29 U.S.C. 623.

The regulations adopted by the Equal Employment Op-

portunity Commission (“EEOC”) to implement the ADEA

provide in relevant part:

When an employment practice, including a test, is

claimed as a basis for different treatment of employ-

ees or applicants for employment on the grounds that

it is a “factor other than” age, and such a practice has

an adverse impact on individuals within the protected

age group, it can only be justified as a business ne-

cessity.

29 C.F.R. 1625.7(d).

STATEMENT

The question presented by this case is whether disparate

impact claims are ever cognizable under the Age Discrimina-

tion in Employment Act. In other words, must the plaintiff in

every ADEA case prove that the employer has purposefully

chosen to disadvantage older workers, or can the plaintiff

prevail by showing that a facially neutral policy has the con-

sequence of disproportionately disadvantaging older workers

and lacks a reasonable business justification?

The answer to the question presented is that the ADEA

allows disparate impact claims. That conclusion is compelled

and confirmed by regulations promulgated by the Equal Em-

ployment Opportunity Commission pursuant to notice-and-

comment rulemaking. Those regulations, and their predeces-

sors. have uniformly recognized the availability of disparate

impact liability under the ADEA for more than thirty-five

years. The regulations reflect the agency's expert understand-

ing of the statute, for Congress designated the EEOC as the

agency responsible for implementing the ADEA and gave it

the power to promulgate regulations with the force of law.

The regulations adhere to prior decisions by this Court con-

struing the identical text of Title VII of the Civil Rights Act

of 1964 to recognize disparate impact claims, see Griggs v.

Duke Power Co., 401 U.S. 424 (1971), and the settled under-

3 ‘

standing that “the substantive provisions of the ADEA ‘were

derived in haec verba from Title VII,’” Trans World Airlines,

Inc. v. Thurston, 469 U.S. 111, 121 (1985) (quoting Lorillard

v. Pons, 434 U.S. 575, 584 (1978)). The EEOC’s ADEA

regulations accordingly constitute, at the least, a permissible

reading of the statute and, as such, are entitled to deference.

See Chevron U.S.A. Inc. v. Natural Resources Defense Coun-

cil, Inc., 467 U.S. 837, 843 (1984).'

This case does not call on the Court to decide any issue

beyond whether disparate impact claims are ever cognizable

under the ADEA. See Pet. i. It presents no questions relating

to the elements of a disparate impact claim, the defenses that

might be available to employers, or the allocation of burdens

of proof between the parties. The lower courts can and should

address those issues in the first instance, consistent with Con-

gress’s intent that the statute be given a practical construction.

More than three decades’ experience with the ADEA, includ-

ing the longstanding recognition of disparate impact claims

by federal regulatory agencies and a substantial number of

circuits, shows that a disparate impact standard is eminently

workable.

The Fifth Circuit’s decision, which holds that the ADEA

categorically precludes disparate impact claims in all circur-

stances and regardless of the employer's inability to identify

any business justification for practices that disadvantage the

class of persons Congress determined to protect under the

statute, should accordingly be reversed. The case should be

remanded for the lower courts to consider in the first instance

the application of a disparate impact standard to petitioners’

particular challenge.

' See also, e.g., Barnhart v. Thomas, 124 S. Ct. 376, 380

(2003) (“[W]hen the statute ‘is silent or ambiguous’ [with respect

to the issue at hand] we must defer to a reasonable construction by

the agency charged with its implementation.” (quoting Chevron,

467 U.S. at 843)); Barnhart v. Walton, 535 U.S. 212, 227 (2002)

(Scalia, J., concurring in part and concurring in the judgment).

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

this Court held that disparate impact claims are cognizable

under Title VII. At issue in Griggs was section 703(a)(2) of

the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a)(2), which

makes it unlawful for an employer to “limit, segregate, or

classify his employees * * * in any way which would deprive

or tend to deprive any individual of employment opportunities

or otherwise adversely affect his status as an employee, be-

cause of such individual's race, color, religion, sex, or na-

tional origin.” Griggs held that this language did not require

the plaintiffs to show that their employer used the high school

diploma and standardized test requirements challenged in that

case for the purpose of excluding black workers from more

desirable jobs; rather, it was sufficient to demonstrate that the

power company’s policies had a significant disproportionate

impact on African-American employees and lacked a requi-

site business justification. See, e.g., Hazen Paper Co. v. Big-

gins, 507 U.S. 604, 609 (1993) (citing Teamsters v. United

States. 431 U.S. 324, 335-36 n.15 (1977)); Griggs, 401 U.S.

at 431 (disparate impact claims look beyond “overt discrimi-

nation * * * [to] practices that are fair in form, but discrimina-

tory in operation”).

- In the Age Discrimination in Employment Act, Congress

found both that “the setting of arbitrary age limits regardless

of potential for job performance has become a common prac-

tice.” and that “certain otherwise desirable practices may

work to the disadvantage of older persons.” 29 U.S.C.

621(a)(2) (emphasis added). Congress drew the substantive

prohibitions of the ADEA directly from Title VII, which had

been enacted three years earlier. Section 4(a)(2) of the

ADEA. in relevant part, renders it unlawful for an employer

“to limit, segregate, or classify his employees in any way

which would deprive or tend to deprive any individual of em-

ployment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s age.” 29

U.S.C. 623(a)(2). Thus, the prohibitory language of the

ADEA traces the language of Title VII to the letter, simply

substituting “age” for “race, color, religion, sex, or national

origin.”

Congress delegated to the EEOC (and the Secre of

Labor before it) the authority to “issue such rules and mothe

tions as [it] may consider necessary or appropriate for carry-

ing out [the ADEA].” 29 U.S.C. 628.2 In 1981, the EEOC

promulgated a regulation — carrying forward the regulatory

precedent promulgated by the Secretary of Labor upon the

ADEA’s enactment — recognizing disparate impact claims

under the ADEA. 29 C.F.R. 1625.7(d). The EEOC’s regula-

tion has remained in effect for the past twenty-three years.

2. Petitioners in this ease are police officers and public

safety officers employed by respondents, the City of Jackson,

Mississippi and its police department. Petitioners are all at

least forty years of age and therefore fall within the class pro-

tected by the ADEA. See 29 U.S.C. 631(a).

Petitioners allege that changes to the respondents’ pay

policy for police and police safety officers violate the ADEA.

After announcing a plan to raise the pay of its police officers,

the City of Jackson adopted a Performance Pay Plan on Octo-

ber 1, 1998, and revised it effective March 1, 1999 (“Pay

Plan”). Petitioners allege that the Pay Plan had a disparate

impact on the class of employees protected by the ADEA by

providing them with proportionately smaller wage increases

than were granted to employees under the age of forty. Offi-

cers younger than forty received raises that were four stan-

dard deviations higher than those received by officers ages

forty and over, and the average wage increases under the plan

varied by age, with older officers receiving smaller increases

than did younger ones. (Petitioners’ separate claim that the

Pay Plan constituted unlawful disparate treatment was re-

> The ADEA originally assigned this authority to the Secre-

tary of Labor. In 1978, that responsibility was reassigned to the

EEOC. See Reorganization Plan No. | of 1978, 43 Fed. Reg.

19,807 (May 9, 1978). :

manded by the court of appeals, see Pet. App. 27a, and is not

at issue here.)

3. The district court granted respondents’ motion for

summary judgment on the purely legal ground that the ADEA

categorically “does not allow for claims of disparate impact.”

Pet. App. 47a-48a.

A divided panel of the Fifth Circuit affirmed on the same

ground. It rejected the longstanding holdings of the Second,

Eighth, and Ninth Circuits that disparate impact claims are

cognizable, adopting instead the contrary view of the First,

Seventh, Tenth, and Eleventh Circuits.’ The Fifth Circuit ma-

jority acknowledged the similarities between Title VII and the

ADEA, but it placed heavy emphasis on one difference in the

-statutory text: the ADEA contains language, not found in Ti-

tle VII, that permits employers to differentiate among em-

ployees based upon “reasonable factors other than age.” 29

U.S.C. 623(f)(1).. The majority found this provision analo-

gous to the Equal Pay Act’s exception for differential treat-

ment based on “any other factor other than sex,” id.

§ 206(d)(1), which (according to the Fifth Circuit) precludes

disparate impact claims. Pet. App. 16a-17a. The majority

also read the ADEA’s legislative history as indicating Con-

gress’s intent to prohibit only intentional discrimination based

on age, a fact that the court believed precluded the disparate

impact method of proving discrimination claims. /d. 18a-22a.

In a footnote, the majority acknowledged that the EEOC

had issued what it characterized as “guidelines for the con-

* Compare Pet. App. 7a-8a with, e.g., Frank v. United Airlines,

Inc., 216 F.3d 845, 856 (CA9 2000) (citing Arnett v. Cal. Pub. Em-

ployees Ret. Sys., 179 F.3d 690, 696 (CA9 1999), vacated on other

grounds and remanded by 528 U.S. 1111 (2000)), cert. denied, 532

U.S. 914 (2001); Smith v. Xerox Corp., 196 F.3d 358, 367 (CA2

1999) (citing Geller v. Markham, 635 F.2d 1027, 1032 (CA2

1980)); Lewis v. Aerospace Comty. Credit Union, 114 F.3d 745,

750 (CA8 1997) (citing Smith v. City of Des Moines, 99 F.3d 1466,

1470 (CA8 1996)), cert. denied, 523 U.S. 1062 (1998).

duct of ADEA cases” that recognized disparate impact

claims. Pet. App. 10a n.5. It concluded, however, that

“[sJuch guidelines are not entitled to Chevron deference” in

light of Christensen v. Harris County, 529 U.S. 576, 587

(2000), which concerned in relevant part an opinion letter is-

sued by the Department of Labor’s Wage and Hour Division

interpreting the Fair Labor Standards Act of 1938, and EEOC

v. ARAMCO, 499 U.S. 244, 256-58 (1991), which concerned

the EEOC’s relatively informal guidance relating to the Civil

Rights Act of 1964. Pet. App. 10a n.5. The majority further

found the EEOC’s regulation insufficiently persuasive to war-

rant deference. /d. 10a n.5.

Judge Stewart dissented. He would have held that dispa-

rate impact claims are cognizable under the ADEA. Pet. App.

28a-38a. He read the ADEA’s “reasonable factors other than

age” provision to codify a defense to disparate impact claims,

just as Title VII has a defense for “business necessit[ies].” /d

30a-3la. Judge Stewart criticized the majority’s reliance on

the Equal Pay Act for failing to account for the difference be-

tween the Equal Pay Act’s use of the word “any” and the

ADEA’s more rigorous requirement that the other factors in-

voked by the employer be “reasonable.” /d. 32a. Turning to

the majority’s assertion that the statute was intended to reach

only purposeful discrimination, Judge Stewart reasoned that

the ADEA, like Title VII, was intended to “rid{] from the

workplace an environment of concealed discrimination” and

that “a disparate impact theory may be a plaintiff's only tool

in counteracting sophisticated discrimination.” /d. 34a, 35a.

4. This Court subsequently granted certiorari. See 124

S. Ct. 1724 (2004).

SUMMARY OF ARGUMENT

A straightforward application of this Court’s employment

discrimination and administrative law precedents compels the

conclusion that the ADEA permits disparate impact claims.

This Court is not being asked to interpret the ADEA on a

blank slate. Since the enactment of the ADEA in 1967, the

- s

administrative agencies expressly charged by Congress with

responsibility for promulgating regulations to carry out the

provisions of the ADEA have consistently read the relevant

Act to reach practices that have a disparate impact on older

workers and that are not reasonably related to the job in ques-

tion. The EEOC has so concluded for decades in regulations,

as did the Secretary of Labor before it. See 29 C.F.R.

1625.7(d); Final Interpretations: Age Discrimination in Em-

ployment Act, 46 Fed. Reg. 47.724, 47,725 (Sept. 29, 1981)

(codified as amended at 29 C.F.R. pt. 1625); 33 Fed. Reg.

9172. 9173 (June 21, 1968) (codified at 29 C.F.R. 860.103

(1968)): 34 Fed. Reg. 322, 322-23 (Jan. 9, 1963) (codified at

29 C.F.R. 860.104)). Under Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 843 (1984),

the EEOC’s interpretation is binding. Furthermore, Congress

has repeatedly amended the ADEA without disturbing that

consistent regulatory construction.

The administrative interpretation of the ADEA has the

two principal hallmarks of agency action entitled to Chevron

deference. First. Congress granted the agencies in question

the statutory authority to promulgate regulations with the

force of law. Second, the EEOC regulations that embody the

disparate impact standard were promulgated pursuant to for-

mal notice-and-comment rulemaking.

As for the merits of the consistent agency interpretation

of the ADEA, the EEOC’s regulations reflect an entirely rea-

sonable construction of the statutory text. They adhere to this

Court’s holding in Griggs v. Duke Power Co., 401 U.S. 424

(1971), that the identical language of Title VII authorizes dis-

parate impact claims. Indeed, Griggs, in combination with a

long line of this Court's precedents holding that the ADEA

and Title VII must be interpreted pari passu, makes clear that

the EEOC’s interpretation is not only reasonable, but ines-

capably correct.

An independent examination of the text and purposes of

the ADEA confirms that Griggs, and in turn the EEOC’s

regulations, properly (or, at the very least, reasonably) con-

strue the statute. The ADEA provides that “otherwise prohib-

ited” conduct is lawful when based on “reasonable factors

other than age.” 29 U.S:C. 623(f)(1) (emphasis added). That

language rests on an assumption that some behavior will vio-

late the ADEA even though it is motivated by factors other

than the desire to treat older workers differently. Under the

court of appeals’ reading of the statute, however, the ADEA’s

“reasonable factors other than age” provision is surplusage.

. The phrase “because of” does not limit the ADEA only to

disparate treatment claims, any more than it does the identical

text of Title VII. Rather, that phrase simply signifies causa-

tion and, in the context of this statute, is not limited to pur-

poseful discrimination. For example, a strength test for a sed-

entary job that older workers disproportionately fail would

cause those workers to lose their employment “because of”

their age. If that test does not bear a reasonable relationship

to the job, the test would violate the ADEA.

The EEOC’s regulations are also supported by the con-

gressional findings and legislative history of the ADEA. Both

the findings and the Report that gave rise to the statute ex-

pressly refer to conduct that would give rise only to disparate

impact, not disparate treatment, liability. Moreover, the pur-

pose of the ADEA (like Title VII) is to eliminate workplace

discrimination, and this Court’s precedents establish that dis-

parate impact claims further that goal in multiple respects: by

combating discrimination that rests on subconscious stereo-

types; by overcoming problems of proof raised by purposeful

but veiled discrimination; and by addressing otherwise inno-

cent practices that disadvantage protected employees but lack

any reasonable business justification.

The Fifth Circuit’s holding that the ADEA categorically

prohibits disparate impact claims in all instances should ac-

cordingly be reversed, and the case remanded so that the

lower courts can address the further issues raised by petition-

ers’ claim. consistent with Congress’s intention that the stat-

ute be given a practical construction.

ARGUMENT >

This case presents the question whether the ADEA cate-

gorically precludes disparate impact claims. For the reasons

described infra, the answer to that question is no. The case

does not present any of the distinct questions relating to the

scope or elements of such a cause of action or of defenses,

such as the provision permitting differentiation among em-

ployees based on “reasonable factors other than age,” 29

U.S.C. 629(f(1). These questions were not litigated below

and must be addressed by the lower courts in the first in-

stance. In doing so, the lower courts can be expected to ap-

proach disparate impact liability “in a practical way,” US

Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002), account-

ing for the policy and judicial manageability concerns the re-

spondents have asserted.’ In any event, even though ADEA

disparate impact claims have been recognized by the regula-

tory agencies since 1968, see 33 Fed. Reg. 9173 (June 21,

1968). were uniformly recognized by the courts of appeals

until 1993, and are still recognized in several circuits, none of

these purported problems has yet manifested itself.

* For example, the EEOC has stated that “disparate impact ‘is

probably a more difficult claim to make under the ADEA than in a

race or gender context because the impact of neutral policies which

fall disproportionately on class members protected by the ADEA

can be proven to be related to legitimate business reasons in more

instances than those which might impact other protected groups.’”

Br. of EEOC, Sitko v. Goodyear Tire & Rubber (CA6 No. 02-4083)

21 (quoting Adams v. Florida Power Corp., 255 F.3d 1322, 1327

(CA11) (Barkett, J., concurring specially), cert. granted, 534 U.S.

1054 (2001). and cert. dismissed, 535 U.S. 228 (2002)).

I. The EEOC’s Recognition Of Disparate Impact Claims

Represents The Better Construction Of The ADEA.

A. The EEOC’s Interpretation Is Faithful To This

Court’s Decision In Griggs v. Duke Power Co.,

Which Construed The Identical Language Of Ti-

tle VII, On Which Congress Modeled The ADEA.

1. The EEOC’s regulations providing for disparate im-

pact claims under the ADEA relied expressly on this Court’s

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

See 46 Fed. Reg. 47,724, 47,725 (Sept. 29, 1981). At issue in

Griggs was section 703(a)(2) of the Civil Rights Act of 1964,

the provision of Title VII that renders it unlawful for any em-

ployer “to limit, segregate, or classify his employees * * * in

any way which would deprive or tend to deprive any individ-

ual of employment opportunities or otherwise adversely affect

his status as an employee, because of such individual’s race,

color, religion, sex, or national origin.” 42 U.S.C. 2000e-

2(aX(2). This Court held that Title VII encompasses disparate

impact claims. Particularly when it came to employment

practices that disproportionately excluded members of a pro-

tected class, the Court found that “the conclusion is inescap-

able” that such practices cannot survive unless they are “job

related.” 401 U.S. at 436.

Griggs rests on a construction of the text of section

703(a)(2). “The objective of Congress in the enactment of

Title VII is plain from the language of the statute.” Griggs,

401 U.S. at 429 (emphasis added). The “thrust” of section

703(a)(2) was to address “the consequences of employment

practices, not simply the motivation.” /d at 432. As this

Court subsequently confirmed, Griggs’s recognition of dispa-

rate impact claims “reflects the language of § 703(a)(2) and

Congress’ basic objectives in enacting the statute.” Connecti-

cut Vv. Teal, 457 U.S. 440, 448 (1982) (emphasis added).

Congress itself has twice embraced this Court's holding

in Griggs that the language of section 703(a)(2) encompasses

disparate impact claims. When Congress amended Title VII

in 1972 to extend the Act’s protections to government em-

ployees, it “recognized and endorsed * * * [Griggs’s] dispa-

rate-impact analysis.” Connecticut v. Teal, 457 U.S. 440, 447

n.8 (1982). Subsequently, the Civil Rights Act of 1991 “con-

firm[ed] [the] statutory authority and provide[d] statutory

guidelines for the adjudication of disparate impact suits under

title VII.” Civil Rights Act of 1991, § 3(3), 42 U.S.C. 1981

note.’ Both times, in reaffirming the cognizability of dispa-

rate impact claims, Congress left untouched the prohibitory

language of section 703(a)(2). Clearly, then, Congress con-

siders its original language — that it shall be unlawful for an

employer “to limit, segregate, or classify his employees in

any way which would deprive or tend to deprive any individ-

ual of employment opportunities or otherwise adversely affect

his status as an employee, because of such individual’s race,

color, religion, sex, or national origin” — entirely adequate to

reach disparate impact claims.°

2. The provision of the ADEA at issue in this case, sec-

tion 4(a)(2), exactly parallels the provision of Title VII at is-

sue in Griggs. The only difference is that the ADEA prohib-

its employer conduct with an adverse impact on the basis of

“age.” 29 U.S.C. 623(a)(2). The EEOC was thus surely cor-

* See 42 U.S.C. 2000-e2(k)(1 (A) (“An unlawful employment

practice based on disparate impact is established” if “a complaining

party demonstrates that a respondent uses a particular employment

practice that causes a disparate impact on the basis of a [protected

trait] and the respondent fails to demonstrate that the challenged

practice is job related for the position in question and consistent

with business necessity.”). See generally id. § 2000-e2(k).

° Cf. Keene Corp. v. United States, 508 U.S. 200, 212 (1993)

(congressional statutes are presumed to have adopted the extant

holdings of the Supreme Court); Lorillard v. Pons, 434 U.S. 575,

580 (1978) (“Congress is presumed to be aware of an administra-

tive or judicial interpretation of a statute and to adopt that interpre-

tation when it re-enacts a statute without change.”).

rect in determining that the better reading of the ADEA is the

one that parallels this Court’s construction of the identical

language of Title VII, a construction Congress has expressly

and repeatedly embraced. At the very least, the EEOC’s con-

struction was certainly not unreasonable.

Not only is similarity of language generally “a strong in-

dication that the two statutes should be interpreted pari

passu,” Northcross v. Board of Education, 412 U.S. 427, 428

(1973),’ but this is the paradigmatic case for the application

of that principle of statutory construction. The relevant provi-

sions of Title VII and the ADEA do not merely share a single

word or a discrete phrase, but rather are identical. Nor is this

similarity merely fortuitous. As this Court has observed,

Congress took the prohibitory language of the ADEA “in

haec verba from Title VII.” Trans World Airlines, Inc. v.

Thurston, 469 U.S. 111, 121 (1985) (quoting Lorillard v.

Pons, 434 U.S. 575, 584 (1978)). Further, “the ADEA and

Title VII share a common purpose, the elimination of dis-

crimination in the workplace.” Oscar Mayer & Co..v. Evans,

441 U.S. 750, 756 (1979). See also McKennon v. Nashville

Banner Publishing Co., 513 U.S. 352, 357 (1995); Lorillard,

434 U.S. at 584; cf. Northcross, 412 U.S. at 428 (presumption

in favor of interpreting identical language similarly is en-

” See also, e.g., Holmes v. Sec. Investor Prot. C. orp., 503 U.S.

258, 268 (1992) (“[Congress] used the same words [in section

1964(c) of RICO as it had in section 7 of the Sherman Act and sec-

tion 4 of the Clayton Act], and we can only assume it intended

them to have the same meaning that courts had already given

them.”); U.S. Dep't of Energy v. Ohio, 503 U.S. 607, 626 (1992)

(“Congress’ use of the same language in § 1323(a) [of the Clean

Water Act as in 28 U.S.C. 1331] indicates a likely adoption of our

prior interpretation of that language.”); Whitman v. Am. Trucking

Ass ‘ns, Inc., 531 U.S. 457, 478 (2001) (noting that the phrase “final

action” “bears the same meaning in § 307(b\1) [of the Clean Air

Act] that it does under the Administrative Procedure Act”); United

States v. Cleveland Indians Baseball Co., 532 U.S. 200, 221 (2001)

(Scalia, J., concurring in the judgment).

hanced when “the two provisions share a common raison

d‘étre” (quoting Johnson v. Combs, 471 F.2d 84, 86 (CAS

1972)))."

On those bases, this Court has repeatedly given the same

construction to the substantive provisions of Title VII and the

ADEA. In Oscar Mayer, this Court held that because section

14(b) of the ADEA, 29 U.S.C. 633(b), “is almost in haec

verba with.” and was derived from, section 706(c) of Title

VII, it “may properly conclude that Congress intended that

the construction of [the ADEA provision] should follow that

of [the Title VII provision].” 441 U.S. at 756. This Court

concluded in Western Air Lines, Inc. v. Criswell that the bona

fide occupational qualification (BFOQ) exception to the

ADEA, “like its Title VII counterpart, * * * ‘was in fact

meant to be an extremely narrow exception to the general

prohibition’ of age discrimination contained in the ADEA.”

472 U.S. 400, 412 (1985) (quoting Dothard v. Rawlinson, 433

U.S. 321. 334 (1977)). Subsequently, EEOC v. Commercial

Office Products Co., 486 U.S. 107, 123-24 (1988), held that

rules for timely filing a complaint under the ADEA applied

equally to Title VII, because the former statute was derived

from the latter and the two provisions were “virtually in haec

* In McKennon v. Nashville Banner Publishing Co., 513 U.S.

352 (1995), this Court summarized the relationship between the

statutes in sustaining a claim for relief under the ADEA:

The ADEA, enacted in 1967 as part of an ongoing

congressional effort to eradicate discrimination in the

workplace, reflects a societal condemnation of invidious

bias in employment decisions. The ADEA is but part of a

wider statutory scheme to protect employees in the work-

place nationwide. * * * The substantive, antidiscrimination

provisions of the ADEA are modeled upon the prohibitions

of Title VII. * * * The ADEA and Title VII share common

substantive features and also a common purpose: the

elimination of discrimination in the workplace.

/d. at 357-58 (citations and internal quotation marks omitted).

verba.” And in Trans World Airlines, this Court followed

Title VII precedent in holding that the ADEA bars employers

from doling out a benefit that is “part and parcel of the em-

ployment relationship” in a discriminatory fashion. 469 U.S.

at 121 (quoting Hishon v. King & Spaulding, 467 U.S. 69, 75

(1984)).

The cases in which this Court has treated Title VII and

ADEA claims differently have generally involved differ-

ences in the text and statutory structure outside the scope of

the two statutes’ identical liability provisions. For example,

in EEOC vy. ARAMCO, 499 U.S. 244, 258-59 (1991), the

Court declined to apply Title VII extraterritorially in part be-

* See also, e.g., Olmstead v. L.C., 527 U.S. 581, 616 n.1

(1999) (Thomas, J., dissenting) (noting that the Court has “incorpo-

rated Title VII standards of discrimination when interpreting stat-

utes prohibiting other forms of discrimination,” and that the Court’s

“interpretation of Title VII * * * applies with equal force in the

context of age discrimination” because the ADEA’s substantive

provisions were derived from Title VII (quoting Trans World Air-

lines, Inc., 469 U.S. at 121)); Astoria Fed. Sav. & Loan Ass'n v.

Solimino, 501 U.S. 104, 109-12 (1991) (in considering the preclu-

sive effect of state administrative findings on ADEA actions in fed-

eral court, the Court construed the relevant ADEA provision as it

had the relevant provision in “the closely parallel context” of Title

VII, even though the ADEA text was not identically worded); Jnt’/

Union, United Auto., Aerospace, & Agric. Implement Workers of

Am., UAW vy. Johnson Controls, Inc., 499 U.S. 187, 201 (1991)

(noting that this Court has read narrowly the bona fide occupational

qualification defense in Title VII, and that this Court has “read the

BFOQ language of § 4(f) of the [ADEA], which tracks the BFOQ

provision in Title VII, just as narrowly” (citation omitted)); cf. Kol-

stad vy. Am. Dental Ass'n, 527 U.S. 526, 548 (1999) (Stevens, J.,

concurring in part and dissenting in part) (noting that the Title VII

punitive damages standard enacted in the Civil Rights Act of 1991

is “the same intent-based standard used in the [ADEA]”); /ngersoll-

Rand Co. v. McClendon, 498 U.S. 133, 144-45 (1990) (interpreting

section 502(a) of ERISA commensurately with the provision of the

Labor Management Relations Act on which it was modeled).

cause Congress had legislatively overruled prior judicial de-

cisions declining to apply the ADEA overseas but had not

similarly amended the text of Title VII. Similarly, in Stevens

v. Department of the Treasury, 500 U.S. 1, 7 (1991), this

Court construed a provision of the ADEA regarding the rela-

tive timing of EEOC administrative claims and civil law-

suits; the Court noted that the language of the ADEA provi-

sion stood in “marked contrast” to Title VII's requirements.

And in Lorillard v. Pons, 434 U.S. 575 (1978), this Court

held that litigants in ADEA cases have the right to trial by

jury, even assuming that parties in Title VII suits did not en-

joy that right. The Court’s conclusion rested on the fact that

“rather than adopting the procedures of Title VII for ADEA

actions, Congress rejected that course in favor of incorporat-

ing the FLSA procedures even while adopting Title VII's

substantive prohibitions.” /d. at 584-85 (emphases added).'°

This Court’s recent decision in General Dynamics Land

Systems, Inc. v. Cline, 124 S. Ct. 1236 (2004), similarly fo-

cuses on a concrete difference in the statutory text. In Cline,

this Court held that the ADEA does not prohibit discrimina-

tion against younger workers within the ADEA’s protected

class. In rejecting an analogy to Title VII, which prohibits

race and sex discrimination against white and male employees

as well as against minorities and women, the Court reasoned:

The term “age” employed by the ADEA is not * * *

comparable to the terms “race” or “sex” employed

by Title VII. “Race” and “sex” are general terms

that in every day usage require modifiers to indicate

any relatively narrow application. We do not com-

monly understand “race” to refer only to the black

'° In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20

(1991), in which the Court held that an employee was contractually

bound to arbitrate an ADEA case, the Court distinguished prior

precedent in the Title VII context; the difference, however, turned

not on any difference between the two statutes, but on a difference

in the nature of the contracts requiring arbitration.

race, or “sex” to refer only to the female. But the

prohibition of age discrimination is readily read

more narrowly than analogous provisions dealing

with race and sex.

Id. at 1247. In short, in Cline, the ADEA and Title VII could

not be interpreted pari passu because (in contrast to this case)

the operative language of the ADEA was not derived in haec

verba from Title VII.

B. The Text Of The ADEA Supports The EEOC’s

Determination That Disparate Impact Claims

May Be Brought Under The ADEA.

Despite the identity between section 703(a)(2) of Title

VII, which undeniably encompasses disparate impact claims,

and section 4(a)(2) of the ADEA, two textual arguments have

been advanced to support the conclusion that Congress did

not intend to recognize disparate impact claims under the

ADEA. First, the Fifth Circuit relied heavily on the fact that,

unlike Title VII, the ADEA contains a provision that permits

an employer to engage in “otherwise prohibited” conduct

“where the differentiation is based on reasonable factors other

than age.” 29 U.S.C. 623(f)(1) (hereinafter, the “RFOA pro-

vision”). See Pet. App. 14a-15a. Second, other courts have

argued (although the Fifth Circuit did not) that the ADEA’s

bar on discrimination “because of” age embodies a purpose

requirement (notwithstanding that this Court held in Griggs

that the identical language of Title VII recognizes disparate

impact claims). Neither argument is persuasive.

1. The ADEA’s “Reasonable Factors Other

Than Age” Provision Reinforces The Conclu-

sion I hat Disparate Impact Claims Are Cog-

nizable.

1. The court of appeals discounted the identity of the

prohibitory language in Title VII and the ADEA, relying in-

stead on a rough similarity between the ADEA’s RFOA pro-

vision and a phrase that appears in the EPA."' See Pet. App.

15a-17a. It reasoned that disparate impact claims are pre-

cluded under the Equal Pay Act because the Act permits dif-

ferential treatment based on “any factor other than sex,” and

that exception cannot be distinguished from the RFOA provi-

sion of the ADEA. See id.

The Fifth Circuit trebly erred. First, there is in fact a cru-

cial textual difference between the two provisions that the

court of appeals deemed indistinguishable. The ADEA pro-

tects an employer only when it has acted on the basis of a

'' The ADEA and the Equal Pay Act have very different struc-

tures. The phrase on which the majority below relied is buried in

the middle of the prohibitory language of the Equal Pay Act, which

provides:

No employer having employees subject to any provisions

of this section shall discriminate, within any establish-

ment in which such employees are employed, between

. employees on the basis of sex by paying wages to em-

ployees in such establishment at a rate less than the rate at

which he pays wages to employees of the opposite sex in

such establishment for equal work on jobs the perform-

ance of which requires equal skill, effort, and responsibil-

ity, and which are performed under similar working con-

ditions, except where such payment is made pursuant to

(i) a seniority system; (ii) a merit system; (ili) a system

which measures earnings by quantity or quality of produc-

tion: or (iv) a differential based on any other factor other

than sex: Provided, That an employer who is paying a

wage rate differential in violation of this subsection shall

not, in order to comply with the provisions of this subsec-

tion, reduce the wage rate-of any employee.

29 U.S.C. 206(d)(1) (emphasis added).

The Equal Pay Act also reaches only a subset of the practices

covered by the ADEA and Title VII, because it addresses only

wages and compensation. A broader reading of the Equal Pay Act

would render Title VII's express application to discrimination on

the basis of “sex” surplusage.

“reasonable factor other than age,” 29 U.S.C. 623(f)(1) (em-

phasis added), while the Equal Pay Act permits differential

pay based on “any other factor other than sex,” 29 U.S.C.

206(d)(1) (emphasis added), even if that factor is objectively

unreasonable.

Indeed, the RFOA provision affirmatively supports the

conclusion that the ADEA recognizes disparate impact

claims. The text of section 4(f)(1) addresses actions that

would “otherwise” be prohibited under section 4(a) and en-

compasses two categories of employment practices: (1) those

where “age is a bona fide occupational qualification reasona-

bly necessary to the normal operation of the particular busi-

ness,” and (2) those “where the differentiation is based on

reasonable factors other than age.” 29 U.S.C. 623(f)(1). The

first category insulates from liability certain forms of pur-

poseful discrimination, in which an employee’s age is a genu-

ine measure of whether the employee can do the job — for ex-

ample, younger police officers might be required for under-

cover work at a high school. By contrast, the second cate-

gory, the RFOA provision, cannot be read to shield from li-

ability any category of intentional discrimination on the basis

of age: by its very language, it applies only when employees

are treated differently on the basis of some other factor. This

provision necessarily implies that it is possible to violate sec-

tion 4(a) through differentiation based on a factor other than

age — that is, without having a discriminatory purpose.'”

The RFOA provision thus specifies that no disparate im-

pact claim will lie unless that non-age factor is unreasonable

— a requirement that would be mere surplusage if no disparate

impact claims were cognizable in the first place. As the

EEOC has explained, “If § 623(f)(1) exempted all age-neutral

2 To prove an ADEA disparate treatment claim, a plaintiff

necessarily must prove that the employer differentiated based on

age specifically — not based on any other factor, even if that factor

is closely correlated with age. See Hazen Paper Co. v. Biggins,

507 U.S. 604, 611-12 (1993). -

practices from the ADEA, the term ‘reasonable’ would be

meaningless. The more logical interpretation of the provision

is that Congress intended to set some limits on the use of age-

neutral factors that have an adverse effect on older workers,

in keeping with the type of business-necessity justification

that the Supreme Court first recognized in Griggs.” Br. of

_ EEOC, Sitko v. Goodyear Tire & Rubber (CA6 No. 02-4083)

7 (citation omitted). Accordingly, the EEOC has specified

that under its regulations a disparate impact on protected em-

ployees may give rise to liability, but not in cases in which

the policy causing the disparate impact is a “reasonable

measure of job performance.” Br. of EEOC, Meacham v.

Knolls Atomic Power Lab. (CA2 No. 02-7474) 7 (quoting

Bryant v. City of Chicago, 200 F.3d 1092, 1098-99 (CA7

2000)) (emphasis added)."*

The Fifth Circuit's next error was that there is no basis

for either its guess that the Equal Pay Act likely “spawned”

the RFOA provision, or its conclusion that Congress therefore

intended the scope of the ADEA’s prohibition to track that of

the EPA.'* In fact, the RFOA provision “was derived from an

' The EEOC’s ADEA implementing regulations provide that

the employer may defend its conduct as a “business necessity,” 29

C.F.R. 1625.7(d), a term that the EEOC construes to mean “reason-

able.” The EEOC took the term “business necessity” from this

Court's decision in Griggs, 401 U.S. at 431, which explained that

employers may use “reasonable measure[s] of job performance,”

id. at 436 (emphasis added). This case does not present the ques-

tion whether the business necessity defenses available under the

ADEA and Title VII differ.

'* See Adams v. Fla. Power Corp., 255 F.3d 1322, 1329

(CA11) (Barkett, J., specially concurring) (criticizing the analogy

between the EPA and the ADEA in part on the ground that dispa-

rate impact “concerns the substantive provisions of the ADEA,

which have been recognized to share common substantive provi-

sions as Title VII, and not the remedial provisions of the ADEA

which are similar to the remedial provisions of the EPA”), cert.

equal-pay bill that was never enacted.” Michael Evan Gold,

Disparate Impact Under the Age Discrimination in Employ-

ment Act of 1967, 25 BERKELEY J. Emp. & Las. L. 1, 58-62

(2004). See also H.R. 5110, 88th Cong. (1963) (early version

of the equal pay bill allowing an exception for “reasonable

differentiation based on a factor or factors other than sex”

(emphasis added)).

Third, even if the ADEA’s requirements did track those

of the Equal Pay Act, the Fifth Circuit would in any event

have been mistaken in asserting that disparate impact claims

were therefore barred. This Court has never held that dispa-

rate impact claims are unavailable under the Equal Pay Act.

The decision cited by the court of appeals, County of Wash-

ington v. Gunther, 452 U.S. 161, 170 (1981), held that em-

ployers may prevail if “their pay differentials are based on a

bona fide use of ‘other factors other than sex’” (emphasis

added). As several courts of appeals have held after Gunther,

under this “bona fide” requirement, the employer’s policy

must be “reasonable” and related to valid business concerns:

claims alleging a disparate impact on pay resulting from the

04 of unreasonable criteria other than sex are thus permissi-

granted, 534 U.S. 1054 (2001), and cert. dismissed, 535 U.S. 228

(2002).

'® See, e.g., Cullen v. Indiana Bd. of Trustees, 338 F.3d 693,

699 (CA7 2003) (“the EPA does not require proof of discriminatory

intent”); Aldrich v. Randolph Cent. Sch. Dist., 963. F.2d 520, 525

(CA2 1992) (requiring that the “employer prove(] that the job clas-

sification system resulting in differential pay is rooted in legitimate

business-related differences in work responsibilities and qualifica-

tions for the particular positions at issue”); EEOC v. J.C. Penney

Co., 843 F.2d 249, 253 (CA6 1988) (the provision “cannot consti-

tute a blanket bar to all claims of wage discrimination based on dis-

parate impact because the ‘factor other than sex’ defense does not

include literally any other factor, but a factor that, at a minimum,

was adopted for a legitimate business reason”) (emphasis in origi-

nal). Contra Adams v. Fla. Power Corp., 255 F.3d 1322, 1325

2. The Phrase “Because Of” In Subsection (a)(2)

Does Not Preclude Disparate Impact Claims.

The argument that the phrase “because of” precludes dis-

parate impact claims under the ADEA is almost incompre-

hensible given the presence of precisely the same language in

Title VII. Griggs and its progeny expressly rely on the text of

Title VII in recognizing disparate impact claims. See supra

Part I-A. Thus, to the extent respondents rely on the phrase

“because of” in section 4(a)(2), they are inescapably arguing

that Griggs was wrongly decided. But this case presents no

circumstance that warrants reversing Griggs, particularly

given Congress's subsequent, repeated endorsement of that

decision. Stare decisis is thus decisive.'®

In any event, the phrase “because of” — unlike such terms _

as “willfully.” or “purposefully,” or “knowingly” — does not

refer to an actor’s state of mind in all (or even most) contexts,

including in the ADEA. Rather, it refers to causation. The

nature of the causation depends on context. In some contexts,

that causation may turn on an actor’s motivation, as when an

employer refuses to hire an older worker because he assumes

that the older worker will be less productive than a younger

one. There. age is both a “but for” cause of the failure to hire

and a motivation.

(CAI11), cert. granted, 534 U.S. 1054 (2001), and cert. dismissed,

§35 U.S. 228 (2002); Mullin v. Raytheon Co., 164 F.3d 696, 702

(CA! 1999): Ellis v. United Airlines, Inc., 73 F.3d 999, 1008

(CA10 1996).

172-73 (1989) (“Considerations of stare decisis have special force

in the area of statutory interpretation, for here, unlike in the context

of constitutional interpretation, the legislative power is implicated,

and Congress remains free to alter what we have done.”); see also

Hohn vy. United States, 524 U.S. 236, 261-62 (1998) (Scalia, J., dis-

senting) (arguing that Congress's reliance upon an unrepudiated

decision in creating a procedura! scheme is a “special reason” for

according stare decisis effect).

But a policy can “adversely affect [an employee] because

of such individual’s age” (29 U.S.C. 623(a)(2)) even if that

policy is not motivated by age For example, a physical

strength test that adversely affects older employees does so

because of their age (assuming, as a plaintiff would have to

prove, that physical strength is negatively correlated with

age), and the ADEA would bar such a test unless it were rea-

sonable for the particular job. See EEOC Sitko Br. 21 (“[I}t

might be perfectly legitimate for an employer to adopt a

strength test for an iron worker's job — even if the effect of

doing so is to disqualify a disproportionate ‘number of older

workers. But that would not be true for a sedentary job such

as a librarian. In that case, a strength test would be an unrea-

sonable barrier to employment for older workers while serv-

ing no legitimate interest of the employer.” (citation omit-

ted)).

This understanding of “because of” is reinforced by the

grammatical structure of section 4(a)(2). The phrase “be-

cause of such individual’s age” in the Act plainly describes

the “[e]ffect” on the employee. Had Congress wished to re-

strict the ADEA to purposeful discrimination, it would more

naturally have placed the words “because of” far earlier in the

provision, such that they would have described the em-

ployer’s acts: “It shall be unlawful for an employer, because

of an employee's age, to limit, segregate, or classify * * *.”

Even more clearly, had Congress wished to restrict the ADEA

to purposeful discrimination, it could have included words

such as “willful,” “purposeful,” “knowing,” “deliberate,” or

“malice” in the statutory language. Cf. 42 U.S.C. 1981la(b)(1)

(providing for punitive damages in Title VII cases when the

plaintiff can show “malice” or “reckless indifference”).

The statute’s grammar moreover precludes reading the

text as if the employer’s conduct is directly modified by the

“because of” clause. In section 4(a)(2), the conduct describes

employees in the plural form; the “because of” clause takes

the singular form. Thus, the Fifth Circuit’s decision requires

reading the statute to render it unlawful for an employer “to

limit, segregate, or classify his employees * * * because of

such individual's age.” By contrast, petitioners’ reading is

grammatically correct: with respect to any petitioner, the

statute renders presumptively unlawful conduct that would

“adversely affect his status as an employee, because of such

individual's age.”

The merit of the EEOC’s reading is also apparent from

the contrast between section 4(a)(2) and the RFOA provision

in section 4(f(1). The RFOA provision uses language that

does of necessity connote intentionality. It refers to “differen-

tiation * * * based on reasonable factors other than age.” 29

U.S.C. 623(f(1) (emphasis added). The phrase “based on”

means “founded on™ or “derived from,” and accordingly does

generally refer to purpose or reasoning. See THE NEW Ox-

FORD AMERICAN DICTIONARY 135 (2001) (the first definition

of “base” and “be based” is “have as the foundation for

(something): use as a point from which (something) can de-

velop”). Thus, after the plaintiff has demonstrated a disparate

impact, such that the defendant is liable under section 4(a)(2),

the court ‘hen must consider the factor that motivated the em-

ployer. and determine whether that factor was reasonable.

But even if (contrary to the foregoing) the phrase “be-

cause of” were instead read to refer only to intentional dis-

crimination, disparate ‘pact claims would still be a cogniza-

ble method of proof. As we explain infra Part I-C, by forcing

employers to articulate reasonable, non-discriminatory justifi-

cations for policies that have a disparate impact on older

workers, disparate impact claims ferret out intentional dis-

crimination that is couched in non-discriminatory terms.

Thus, whether “because of” is construed as referring to causa-

tion (as petitioners contend) or instead only to intent (as re-

spondents contend), disparate impact claims are cognizable.

C. The Purpose Of The ADEA Confirms The

EEOC’s Conclusion That Disparate Impact

Claims Are Cognizable.

1. The EEOC’s regulatory determination that the ADEA

reaches disparate impact claims is reinforced by Congress’s

purpose in enacting the statute. The best evidence of Con-

gress’s purpose, of course, is the ADEA’s text, which, like

Title VII, provides for disparate impact liability. See supra

Parts I-A & -B. Moreover, the “ADEA and Title VII share”

not merely “common substantive features,” but also “a com-

-mon purpose: ‘the elimination of discrimination in the work-

place.”” McKennon v. Nashville Banner Publ'g Co., 513 U.S.

352, 358 (1995) (quoting Oscar Mayer & Co. v. Evans, 44}

U.S. 750, 756 (1979)). As this Court recognized in Griggs,

disparate impact liability is essential to achieving this pur-

pose, because facially neutral treatment when applied to peo-

ple who are not equally situated can simply entrench that ine-

quality:

Congress has now provided that tests or criteria for

employment or promotion may not provide equality

of opportunity merely in the sense of the fabled offer

of milk to the stork and the fox. On the contrary,

Congress has now required that the posture and con-

dition of the job-seeker be taken into account. It has

— to resort again to the fable — provided that the ves-

sel in which the milk is proffered be one all seekers

can use. The Act proscribes not only overt discrimi-

nation but also practices that are fair in form, but dis-

criminatory in operation.

401 U.S. at 431.

The congressional findings accompanying the ADEA

similarly recognize the need for disparate impact liability.

Congress went beyond addressing facially discriminatory

practices, such as “the setting of arbitrary age limits regard-

less of potential for job performance,” to recognize as well

that “certain otherwise desirable practices may work to the

disadvantage of older persons.” 29 U.S.C. 621(a)(2) (empha-

sis added). Similarly, the report of the Department of Labor

(the so-called Wirtz Report) that Congress requested and

which provided the underpinnings to the ADEA, advised

Congress that it would be “futile as public policy, and even

contrary to the public interest,” to focus solely on the elimina-

tion of explicit age limits. U.S. Dep't of Labor, The Older

American Worker: Age Discrimination in Employment, Re-

port of the Secretary of Labor to the Congress Under Section

715 of the Civil Rights Act of 1964 (1965) [hereinafter Wirtz

Report] at 21, reprinted in EEOC, LEGISLATIVE HISTORY OF

THE AGE DISCRIMINATION IN EMPLOYMENT ACT 37 (1981)

[hereinafter LEGISLATIVE History]. Instead, the Report

noted that legislation should address other sources of age dis-

crimination, such as “employment security and income main-

tenance programs [that] are having a wholly unintended ad-

verse effect on the position of older workers who are unem-

ployed.” /d. (emphasis added). And the Report identified the

larger problem of “institutional arrangements that indirectly

restrict the employment of older workers.” /d. at 15-17, re-

printed in LEGISLATIVE HISTORY at 32-34. The Report con-

cluded that “[{t]o eliminate discrimination in the employment

of older workers, it will be necessary not only to deal with

overt acts of discrimination, but also to adjust those present

employment practices which quite unintentionally lead to age

limits in hiring.” /d. at 22, reprinted in LEGISLATIVE HISTORY

at 38 (emphasis added).

Of note, the Wirtz Report cites as an improper employ-

ment practice precisely the job criterion that this Court struck

down in Griggs under a disparate impact theory: a require-

ment that new employees have graduated from high school

that reflects no relationship to job performance. The Report

observes that “[aJny employment standard” of this sort “will

obviously work against the employment of many workers —

unfairly, if despite his limited schooling, an older worker's

years of experience have given him the relevant equivalent of

a high school education.” Wirtz Report at 3, reprinted in

LEGISLATIVE HISTORY at 21.

To be sure, this Court indicated in Hazen Paper that dis-

parate treatment “captures the essence of what Congress

sought to prohibit in the ADEA.” 507 U.S. at 610. But “the

essence” is not the same thing as “the entirety,” and Hazen

Paper expressly avoided addressing the availability of dispa-

rate impact claims. /d “Undoubtedly disparate treatment

was the most obvious evil Congress had in mind when it en-

acted Title VII.” J/nt'l B’hood of Teamsters v. United States,

431 U.S. 324, 335 n.15 (1977). Yet Title VII recognizes dis-

parate impact claims. Both Title VII and the ADEA thus il-

lustrate the fact that “statutory prohibitions often go beyond

the principal evil to cover reasonably comparable evils, and it

is ultimately the provisions of our laws rather than the princi-

pal concerns of our legislators by which we are governed.”

Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79

(1998).

2. The EEOC has thus rightly concluded that disparate

impact liability is essential to achieving Congress’s goals in

enacting the ADEA. Categorically prohibiting such claims

would, the EEOC has explained, “greatly weaken[] the pro-

tections of the ADEA because it [would] allow[] employers to

use arbitrary employment practices that disproportionately

screen out older workers. When these practices have no con-

nection to the requirements of the job, they undermine the

purpose of the ADEA — ‘to promote employment of older

persons based on their ability rather than age.’ 29 U.S.C.

§ 621(b).” EEOC Sitko Br. 1.

Disparate impact claims are a vital tool for combating

workplace discrimination, including age discrimination.

Members of the protected group may be the victims of “sub-

conscious stereotypes and prejudices,” Watson v. Fort Worth

Bank & Trust, 487 U.S. 977, 990 (1988), that disadvantage

them, even when an employ.r does not engage in knowing

discrimination. In the age context in particular, there is an

acute problem of subconscious discrimination that by defini-

tion cannot be combated through disparate treatment liability

alone. See Gen. Dynamics Land Sys. v. Cline, 124 S. Ct.

1236, 1242 (2004) (recognizing that older workers are “more

apt to be tagged with demeaning stereotype[s]”); EEOC v.

Wyoming, 460 U.S. at 231 (recognizing that the ADEA seeks

to proscribe age discrimination “based in large part on stereo-

types unsupported by objective fact, and was often defended

on grounds different from its actual causes”). Inappropriate

age-based distinctions are generally rooted not in bigotry but

in ignorance and false assumptions. “Age stereotypes persist

because people tend not to examine the basis for these stereo-

types and also give disproportionate weight to any data they

believe tend to support them.” RAYMOND F. GREGORY, AGE

DISCRIMINATION IN THE AMERICAN WORKPLACE 26-27

(2001). Employers therefore tend not to self-police their

policies for those that will disproportionately disadvantage

the elderly with no legitimate business justification. Steven J.

Kamenshine, The Cost of Older Workers, Disparate Impact,

and the Age Discrimination in Employment Act, 42 FLA. L.

REV. 229, 318 (1990).

Disparate impact liability is furthermore essential be-

cause otherwise even purposeful discrimination may escape

detection and proof. In EEOC v. Wyoming, this Court recog-

nized that intentional discrimination is often cloaked through

the use of pretextual justifications. 460 U.S. 226, 231 (1983).

“{T}he disparate impact theory of liability is designed as a

means to defect employment decisions that reflect ‘inaccurate

and stigmatizing stereotypes.” This is precisely the determi-

nation that Hazen Paper says the ADEA is intended to out-

law.” EEOC vy. Francis W. Parker Sch., 41 F.3d 1073, 1080-

81 (CA7 1994) (Cudahy, J., dissenting), cert. denied, 515

U.S. 1142 (1995). See also Jan W. Henkel, The Age Dis-

crimination in Employment Act: Disparate Impact Analysis

and the Availability of Liquidated Damages Afier Hazen Pa-

per Co. v. Biggins, 47 SYRACUSE L. REV. 1183, 1185 (1997)

(observing that disparate impact analysis was intended to be a

“potent tool * * * for older Americans who fall victim to em-

ployers able to cloak their actions in economics or feigned

ignorance”’).

Finally, policies that disparately harm protected groups

may be harmful even if the employer’s motivation (conscious

or subconscious) is entirely innocent. A “facially neutral

practice, adopted without discriminatory intent, may have ef-

fects that are indistinguishable from intentionally discrimina-

tory practices.” Watson, 487 U.S. at 990. And “good intent

or absence of discriminatory intent does not redeem employ-

ment procedures * * * that Uperate as ‘built-in headwinds’ for

[protected groups] and are unrelated to measuring job capabil-

ity.” Griggs, 401 U.S. at 432. “The disparate-impact theory

serves a vital role in preventing arbitrary employment prac-

tices that disadvantage protected workers without serving

employers’ legitimate business interests. These practices are

just as pernicious when the protected group is older workers

as when it is a racial minority.” EEOC Sitko Br. 4."’

Il. The EEOC’s Regulations Are Entitled To Chevron

Deference.

The EEOC’s regulations providing that disparate impact

claims are cognizable under the ADEA and the guidance pre-

viously provided by the Department of Labor have all the

hallmarks of agency determinations entitled to deference un-

der Chevron U.S.A. Inc. v. Natural Resources Defense Coun-

'’ To be sure, age discrimination does not carry with it all of

this history and profound prejudice underlying race discrimination.

But Title VII notably is not limited to race discrimination, and the

“principle that some facially neutral employment practices may

violate Title VII even in the absence of a demonstrated discrimina-

tory intent” is not limited “to cases in which the challenged practice

served to perpetuate the effects of pre-Act intentional discrimina-

tion.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 988

(1988). See, e.g., Dothard v. Rawlinson, 433 U.S. 321 (1977)

(claim of disparate impact on the basis of gender).

cil, Inc., 467 U.S. 837 (1984). This Court’s precedents estab-

lish the following factors as especially important in identify-

ing agency regulations that merit Chevron deference: (1)

whether Congress has expressly authorized the agency “to

engage in the process of rulemaking * * * that produces regu-

lations * * * for which deference is claimed,” and (2) whether

the regulations are the “fruit[] of notice-and-comment rule-

making.” United States v. Mead Corp., 533 U.S. 218, 229,

230 (2001). Both of these criteria are satisfied here."

First, Congress specifically authorized the EEOC (and

the Secretary of Labor before it) to promulgate “such rules

and regulations as [the Commission] may consider necessary

or appropriate for carrying out” the ADEA and to establish

“such reasonable exemptions to and from any or all provi-

sions of this Act as [it] may find necessary and proper in the

public interest.” 29 U.S.C. 628. See also, e.g., Clackamas

Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 448,

448-51 (2003) (noting that the EEOC “has special enforce-

ment responsibilities” under several federal antidiscrimination

statutes, including the ADEA); Western Air Lines, Inc. v.

Criswell, 472 U.S. 400, 412 (1985) (noting that the EEOC

and the Secretary of Labor are “the administrative agencies

charged with enforcing the [ADEA]”).

Second, the EEOC adopted the disparate impact regula-

tion in question pursuant to notice-and-comment rulemaking,

and indeed “made changes to the regulation in response to

public comment.” EEOC Sitko Br. 12 (citing 46 Fed. Reg.

47,724, 47,725 (Sept. 29, 1981)). See 44 Fed. Reg. 37,974

(June 29, 1979); 44 Fed. Reg. 68,858 (Nov. 30, 1979); 46

Fed. Reg. 47,724 (Sept. 29, 1981). By comparison, the

EEOC regulations embracing a disparate impact standard un-

'* Notably, the courts of appeals have app!ied Chevron defer-

ence to the EEOC’s regulatory interpretations of the ADEA in nu-

merous cases. See, e.g., Sanchez v. Pacific Powder Co., 147 F.3d

1097, 1099-1100 (CA9 1994); Kralman v. Ill. Dép't of Veterans’

Affairs, 23 F.3d 150, 155 (CA7 1994).

der Title VII — regulations to which this Court accorded

“great deference” in Griggs v. Duke Power, 401 U.S. 424,

434 (1971) — were adopted under far less formal circum-

stances, neither pursuant to an express congressional delega-

tion of rulemaking authority nor following notice and the op-

portunity for public comment. See, e.g., 35 Fed. Reg. 12,333

(Aug. 1, 1970).

In both these respects, the EEOC’s ADEA disparate im-

pact regulation differs from the EEOC interpretations of Title

VII to which this Court has previously declined to defer. In

EEOC v. ARAMCO, 499 U.S. 244, 256-58 (1991), on which

the Fifth Circuit relied in this case, and which followed Gen-

eral Electric Co. v. Gilbert, 429 U.S. 125, 140-46 (1976), this

Court pointed to the EEOC’s lack of substantive rulemaking

authority under Title VII. That criterion, whatever its signifi-

cance in the Title VII context, see ARAMCO, 499 U.S. at 259-

60 (Scalia, J., dissenting), is inapplicable to the ADEA, which

unambiguously gives just such authority to the EEOC. Com-

pare 29 U.S.C. 628 (permitting the EEOC to “issue such rules

and regulations as it may consider necessary or appropriate

for carrying out [the ADEA]”) with 42 U.S.C. 2000e-12(a)

(permitting the EEOC “to issue * * * suitable procedural

regulations to carry out [Title VII]”) (emphasis added).

Furthermore, as discussed supra, none of the Title VII in-

terpretations at issue in these cases have been a product of

notice-and-comment rulemaking like the ADEA regulations

at issue here. Compare ARAMCO, 499 U.S. at 256-57 (deny-

ing deference to an intra-litigation policy statement, a letter,

testimony by its Chairman, and a Commission decision).

This factor similarly distinguishes Christensen v. Harris

County, 529 U.S. 576, 587 (2000), on which the Fifth Circuit

also mistakenly relied. In Christensen, this Court refused to

accord Chevron deference to a Department of Labor opinion

letter, which lacked the force of law and which interpreted an

ambiguous Department of Labor regulation, rather than a rule

arrived at after notice-and-comment rulemaking and which

interprets the congressional statute itself. 529 U.S. at 586-87.

To be sure, the EEOC labeled the regulations at issue in

this case as “interpretive.” But the only purpose of that des-

ignation was to allow the EEOC to “invok[e] an exception to

the 30-day delay in effective date required by 5 U.S.C.

§ 553(d).” EEOC Sitko Br. 13. This Court’s precedents re-

ject the suggestion that the application of Chevron deference

should turn on the regulation’s mere labeling or the obser-

vance of a thirty-day delay. No such delay was observed in

the interpretive regulations at issue in Chevron itself, which

went into effect the day they were promulgated. See 467 U.S.

837, 840-41 (1984); 46 Fed. Reg. 50,766 (Oct. 14, 1981).

And such a delay would in no way have enhanced the

EEOC’s expertise or the soundness of its judgment, which has

remained unchanged for the subsequent twenty-three years.

Moreover, this Court has recognized that interpretive

regulations may properly warrant Chevron deference even

when no notice-and-comment procedures are involved.

Mead, 533 U.S. at 230-31; Edelman v. Lynchburg Coll., 535

U.S. 106, 114 (2002) (agreeing with the EEOC’s interpreta-

tion while noting that “deference under [Chevron] does not

necessarily require an agency’s exercise of express notice-

and-comment rulemaking power’); see NationsBank of N.C.,

N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256-57

(1995) (deferring to a letter of the Comptroller of the Cur-

rency because he “is charged with the enforcement of banking

laws to an extent that warrants the invocation of [the rule of

deference] with respect to his deliberative conclusions as to

the meaning of these laws” (quoting Clarke v. Sec. Indus.

Ass'n, 479 U.S. 388, 403-04 (1987))); see also Edelman, 535

U.S. at 123-24 (Thomas, J., concurring) (arguing that Chev-

ron deference is appropriate even to an EEOC Title VII inter-

pretive reguiation adopted without notice-and-comment pro-

cedures because it was “codified in the Code of Federal Regu-

lations, and so is binding on all the parties coming before the

EEOC, as well as on the EEOC itself”); Christensen, 529 U.S.

at 590-91 (Scalia, J., concurring in part and concurring in the

judgment) (reciting cases in which this Court has accorded

Chevron deference to “authoritative agency positions set forth

.in a variety of” formats other than legislative regulations, in-

cluding a longstanding interpretation embodied in a no-action

notice).

Several -additional factors compel the application of

Chevron deference in this case. First, the Commission and,

before it, the Department of Labor have maintained the same

interpretation of the ADEA consistently for decades. See

Barnhart v. Walton, 535 U.S. 212, 221-22 (2002) (holding

that an agency interpretation is entitled to Chevron deference

because, in part, of its long standing). The agency has main-

tained this position not only administratively but also in liti-

gation. See Auer v. Robbins, 519 U.S. 452, 462 (1997) (an

agency’s litigation position is entitled to Chevron deference

when it represents a “fair and considered judgment” and not a

“post hoc rationalization”). “The Commission has consis-

tently defended this interpretation in the courts, arguing that a

claim of discrimination under a disparate impact theory is

cognizable under the ADEA.” EEOC Meacham Br. 18-19."

In the course of evaluating its litigation position, the

EEOC has continued to take account of relevant develop-

ments. For example, the Commission has addressed this

Court’s decision in Hazen Paper, concluding that while

Hazen Paper “recognized the primacy of the disparate-

treatment theory” in the ADEA as in Title VII, it “does not

deny the existence of the disparate impact theory.” EEOC

Sitko Br. 20.

Second, the EEOC’s interpretation is also entitled to def-

erence because it was originally promulgated (by the Secre-

tary of Labor) contemporaneously with the enactrrent of the

ADEA. “[T]he Department's earliest interpretations of the

'° For recent examples, see, e.g., Meacham v. Knolls Atomic

Power Lab. (CA2 No. 02-7474) (pending); Sitko v. Goodyear Tire

& Rubber (CA6 No. 02-4083) (pending); EEOC v. McDonnell

Douglas Co., 191 F.3d 948 (CA8 1999); Ellis v. United Airlines, 73

F.3d 999 (CA10 1996).

ADEA recognize the viability of the disparate-impact theory.”

EEOC Sitko Br. 4. Those interpretations recognized “that the

ADEA prohibited some age-neutral practices that had an ad-

verse effect on older workers” — for example, they demanded

that age-neutral evaluation factors such as quantity or quality

of production have “a valid relationship to job requirements,”

and that age-neutral physical-fitness factors be “reasonably

necessary for the specific work to be performed.” EEOC

Meacham Br. 12 (quoting 29 C.F.R. 806.103(f)(2),

806.103(f)(1)(i)); see also EEOC Sitko Br. 17 (explaining that

EEOC’s current interpretation reflects the “contemporaneous

views of the agency initially entrusted with enforcing the

ADEA). Departmental opinion letters similarly reflected this

interpretation. See Keith R. Fentonmiller, The Continuing

Validity of Disparate Impact Analysis for Federal-Sector Age

Discrimination Claims, 47 AM. U. L. Rev. 1071, 1105 &

n.204 (1998) (reciting advisory opinions that asserted that

“facially-neutral job requirements, such as testing, must be

validated and job-related”).

This contemporaneous understanding of the statute en-

hances the deference owed to the EEOC’s regulation. This

Court has observed that particular respect is due when an

agency “was intimately involved in the drafting and consid-

eration of the statute by Congress” and its “interpretation

represents ‘a contemporaneous construction of a statute by the

men charged with the responsibility of setting its machinery

in motion, of making the parts work efficiently and smoothly

while they are yet untried and new.” Aluminum Co. of Am.

v. Cent. Lincoln Peoples’ Utility Dist., 467 U.S. 380, 390

(1984)). See Good Samaritan Hosp. v. Shalala, 508 U.S.

402. 414 (1993); Western Air Lines, Inc. v. Criswell, 472 U.S.

400, 412 (1985) (deferring to an EEOC interpretation inher-

ited from the Department of Labor’s contemporaneous con-

struction of the ADEA’s BFOQ exception). Such deference

is particularly due here given that a report by the Department

of Labor gave rise to the ADEA’s adoption. Zuber v. Allen,

396 U.S. 168, 192 (1969) (special deference to an agency’s

contemporaneous construction applies “when the administra-

tors participated in drafting and directly made known their

views to Congress”).

Third, Chevron deference is owed to the EEOC’s regula-

tion on the ground that the agency’s consistent position has

not been disturbed by Congress. As noted, the regulations of

first the Department of Labor and later the EEOC have been

consistent since 1968, while the federal courts uniformly

agreed until 1993.7” Moreover, during the twenty-seven-year

period between the ADEA’s adoption in 1967 and 1993,

Congress amended the statute twelve times. Yet it never

questioned the agencies’ construction of the statute. And in

both 1982 and 1991, Congress reaffirmed that the identical

text of Title VII authorizes disparate impact claims.”|

In these circumstances, Congress can fairly be deemed to

have acquiesced in the regulatory construction of the statute.

See Boeing Co. v. United States, 537 U.S. 437, 457 (2003)

(noting that Congress’s failure to legislatively override the

preexisting regulatory interpretation when revising a statutory

scheme “serves as persuasive evidence that Congress re-

garded that regulation as a correct implementation of its in-

tent”); Edelman v. Lynchburg Coll., 535 U.S. 106, 118 (2002)

(“By amending the law without repudiating the regulation,

Congress ‘suggests its consent to the [EEOC’s] practice.’”

(quoting EEOC v. Associated Dry Goods Corp., 449 U.S.

*® See, e.g., Fisher v. Transco Services-Milwaukee, Inc., 979

F.2d 1239, 1244-45 (CA7 1992); Abbott v. Fed. Forge, Inc., 9\2

F.2d 867, 872 (CA6 1990); Lowe v. Commack Union Free Sch.

Dist., 886 F.2d 1364, 1369-70 (CA2 1989).

*! The Senate Report on the Older Workers’ Benefit Protection

Act of 1990 also expressly approves the EEOC’s RFOA guidelines,

as well as citing with approval Laugesen v. Anaconda Co., 510

F.2d 310, 315 (CA6 1975), which recognizes that disparate impact

claims are cognizable under the ADEA. See S. Rep. No. 263, at

29-30, 10Ilst Cong., 2d Sess. (1990), reprinted in 1990

U.S.C.C.A.N. 1509, 1535.

590, 600 n.17 (1981))); Associated Dry Goods Corp., 449

U.S. at 600 n.17 (“In the 15 years during which the [EEOC]

has consistently allowed limited disclosure to the charging

party, Congress has never expressed its disapproval, and its

silence in this regard suggests its consent to the Commis-

sion’s practice.”); Lorillard v. Pons, 434 U.S. 575, 580

(1978) (“Congress is presumed to be aware of an administra-

tive or judicial interpretation of a statute and to adopt that in-

terpretation when it re-enacts a statute without change.”).

Finally, when Chevron deference is applied to the

EEOC’s construction of the statute, the result is obvious: the

regulations are binding. The most that respondents could

hope to establish is that the text of the ADEA is ambiguous,

but the agency’s construction resolves any such ambiguity.

See Chevron, 467 U.S. at 843 (holding that “if the statute is

silent or ambiguous with respect to the specific issue, the

question for the court is whether the agency’s answer is based

on a permissible construction of the statute”); id. at 844 (regu-

lations are entitled to “controlling weight”). Likewise, apply-

ing the second step of the Chevron analysis, the EEOC’s view

can only be considered reasonable, because it directly follows

this Court’s own analysis of the indistinguishable text of Title

VII in Griggs. For this Court to find otherwise would require

this Court to hold that Griggs was not only wrongly but un-

reasonably decided, and furthermore that a regulatory agency

was unreasonable in deciding to follow an interpretation of

identical statutory language in a then-recent, now longstand-

ing decision of the United States Supreme Court. That con-

clusion is plainly untenable.””

*? Even if for some reason this Court were to décline to apply

Chevron deference, the greatest degree of deference under

Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944), would

plainly apply here, and would produce the same result. Applying

Skidmore, this Court has granted special weight to agency interpre-

tations that are “well-reasoned” and “cogent,” that “rest on a body

of experience and informed judgment,” and that are “of longstand-

CONCLUSION

For the foregoing reasons, the judgment should be re-

versed.

Respectfully submitted,

Pamela S. Karlan Thomas C. Goldstein

559 Nathan Abbott Way (Counsel of Record)

Stanford, CA 94305 Amy Howe

GOLDSTEIN & Howe, P.C.

Dennis L. Horn 4607 Asbury PI., NW

Horn & Payne, PLLC Washington, DC 20016

P.O. Box 2754 (202) 237-7543

Madison, MS 39130

June 14, 2004”

ing duration,” all the case here. Alaska Dep't of Envtl. Conserva-

tion v. EPA, 124 §S. Ct. 983, 1001 (2004). In Alaska, this Court,

after applying those factors to an internal agency memorandum (a

much less formal interpretation than the one at issue here), then

deferred to the agency’s view on the grounds that it was a “permis-

sible” and “rational” construction of the statute. /d at 1004; see

also id. at 1001 (refusing to reject agency reading as “impermissi-

ble”). At the very least, the same level of deference is due here,

and the EEOC’s interpretation, which follows Griggs directly, is

neither irrational nor impermissible.

3 Counsel for petitioners were principally assisted by the fol-

lowing students in the Stanford Law School Supreme Court Litiga-

tion Clinic: Michael P. Abate, William B. Adams, and Jennifer J.

Thomas. Clinic members David M. Cooper, Eric J. Feigin, Daniel

S. Goldman, and Nicola J. Mrazek also participated.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.