Amicus Curiae Brief — Smith v. City of Jackson

a

Supreme Court, U.S.

——_ FILED

Mf AUG 232004 |

No. 03-1160 OFFICE OF THE CLERK |

jn The

Supreme Court of the Anited States

> —

AZEL P. SMITH, et al.,

Petitioners,

A

CITY OF JACKSON, MISSISSIPPI

and POLICE DEPARTMENT OF THE

CITY OF JACKSON, MISSISSIPPI,

Respondents.

+

On Writ Of Certicrari To The

United States Court Of Appeals

For The Fifth Circuit

+

BRIEF OF AMICUS CURIAE CHAMBER OF

COMMERCE OF THE UNITED STATES OF

AMERICA IN SUPPORT OF RESPONDENTS

+

PETER BUSCEMI STEPHEN A. BOKAT

Counsel of Record ROBIN S. CONRAD

GRACE SPEIGHTS ELLEN DUNHAM BRYANT

ANNE BRAFFORD NATIONAL CHAMBER

MORGAN, LEWIS & LITIGATION CENTER

BOCKIUS LLP 1615 H Street, N.W.

1111 Pennsylvania Ave., N.W. Washington, D.C. 20062

Washington, D.C. 20004 (202) 463-5337

(202) 739-3000

MARK DICHTER

MorRGAN, LEWIS &

BOCKIUS LLP

1701 Market Street

Philadelphia, PA 19103

(215) 963-5291

TABLE OF CONTENTS

ee a Hy cc ccnnentetniciceiaininininiiinicesaannisinein ill

jf.N) et Bs __; Sees l

SUMMARY OF THE ARGUMENT ..................::scccseseseeeees l

SERENE ‘cinsiuesstensincihanemniassiciiecibbininiiiastinianapionidliiibeiaddbataissitaniutaes 3

I. The Griggs Rationale Does Not Extend To

Employment Decisions Affecting Older Workers. . 4

A. Age Discrimination Fundamentally Differs

From Race Discrimination. ..................000000 6

B. The Court’s Contemporary Framework For

Statutory Construction Precludes Creation

Of A Disparate Impact Claim....................4. 8

Il. Congress Intended The ADEA To Proscribe Only

Age-Motivated Discriminatory Conduct................. 9

A. The Language Of Section 623(a)

Proscribes Only Disparate Treatment........ 10

B. Section 623(f)(1) Confirms That The

ADEA Does Not Proscribe Disparate

BR ccacaticsccpseceinninsenmpnnibtienmumenmemnens 16

1. The Meaning Of “Otherwise Prohibited”

In § 623(f)(1) Derives From The Legal

Context Of The ADEA’s Enactment.. 18

2. The RFOA Clause Is Not An

Affirmative Defense............................ 21

3. The Word “Reasonable” In The

RFOA Clause Does Not Imply The

Concept Of “Business Necessity.” ...... 23

C. Legislative History Shows Congress’ Intent

To Tailor The ADEA To Address The

Specific Qualities Of Age

DiSCTiMiMatiOn ...........:seccceeerreeeeeeeeeeereeeteees 26

D. The EEOC’s Interpretive Guidelines Cannot

Create A Disparate Impact Claim. ..........-. 30

CONCLUSION ......:ccsssccesssssssseseseessessnesnessennsensnsassnsanensons 30

ii

TABLE OF AUTHORITIES

FEDERAL CASES

Alexander v. Sandoval,

Dae WE BED GUID ccmnennsiiiiignemmmaimmenael 8

DiBiase v. SmithKline Beecham Corp.,

48 F.3d 719 (3d Cir. 1995) ooocccccccoce

EEOC v. Wyoming,

S60 U.S. SEB (ORR D cccenssnnsicdeninien

Ellis vy. United Airlines, Inc.,

73 F.3d 999 (10th Cir. 1996).....

Gen. Dynamics Land Sys., Inc. v. Cline,

124 S. Ct. 1236 (2004) ......cccccssseeenn

Griggs v. Duke Power Co.,

401 U.S. 424 (1971) cocccccsceccsssesssssees

Hazen Paper Co. v. Biggins,

FOF US. GOS (URGED ccrescerssnamesnnies

Hiatt v. Union Pacific R.R. Co.,

859 F. Supp. 1416 (D. Wyo. 1994)

J.J. Case Co. v. Borak,

377 U.S. 426 (1964) ...ccccccccsceccssesecee

Kirby v. Colonial Furniture Co.,

613 F.2d 696 (8th Cir. 1980)...........

Lewis v. Young Mens Christian Association,

208 F.3d 1303 (11th Cir. 2000)............cccceeeee 20

Marshall v. Westinghouse Electric Corp.,

576 F.2d 588 (Sth Cir. 1988).........cccccceeeeeeees 21

Massachusetts Board of Retirement v. Murgia,

4Z7 UZ. SOL CADIS) .acceecececrercceecveccesecesccssereee 28

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) ..ccs...ccccesesseeeeee 4,11, 19, 26

McKennon v. Nashville Banner Publishing Co.,

SID UD. SEZ CIGDS) .oreccererscorerecceserescsvscesasessees 11

Mullin v. Raytheon Co.,

164 F.3d 696 (ist Cir. 1999)............ 5, 6, 17, 28

Pavlo v. Stiefel Laboratories, Inc.,

Civ. No. 78-5551, 1979 WL 105

(S.D.N.Y. Nov. 27, 1979) .......csscscsssesesseseneneeees 5

Price Waterhouse v. Hopkins,

ye 10, 19

Public Employees Retirement System of Ohio v. Betts,

Rt GL ee 22

Texas Department of Community Affairs v. Burdine,

GBD UB. BEB (BSB8) ncccccccercesecssscvssccssescccsssseses 11

Touche Ross & Co. v. Redington,

te GE 8

United Air Lines v. Evans,

Ry 15

IV

United States v. Mead Corp.,

a STI cirncttiniintertiesintiinesnssisnanaensinins 30

Washington v. Davis,

i 6

Williams v. City and County of San Francisco,

483 F. Supp. 335 (N.D. Cal. 1979).........sessssees 5

FEDERAL STATUTES AND REGULATIONS

ig EL eR 30

SMUD sctsstsntnssscipeiniitnspacnticibtininuiiaiessaiecnie 2, 26

SPs HUTTE siitensiiienendeernenittinepeilimecannin nenetonieieen 27

RS EEE cnsmanitnniapaitnnntiounanioniiniinn 3, 10, 17

i _ 13

SB CAA. © ID sireccerereccnscemeceszsennmnnscens 3, 9, 12, 19

Civil Rights Act of 1964,

Pub. L. No. 88-352, 78 Stat. 265.0... 1,7

Civil Rights Act of 1991,

Pub. L. No. 102-166, 105 Stat. 1071.00.00... 19

Older Workers Benefit Protection Act of 1990,

Pub. L. No. 101- 433, 101 Stat. 978.000.000.000... 22

Vv

MISCELLANEOUS

AMERICAN HERITAGE DICTIONARY OF THE ENGLISH

LANGUAGE (4th ed. 2000) ............ 10, 13, 14, 24

Age Discrimination in Employment: Hearings

on S. 830 and S. 788 Before the Subcomm.

on Labor of the Senate Comm. on Labor

and Public Welfare, 90th Cong.,

ED, Fe Ge cinsnictaisintinaninasictintimmmeniniin 2

D. Don Welch, Removing Discriminatory Barriers:

Basing Disparate Treatment Analysis On Motive

Rather Than Intent,

60 S. Cal. L. Rev. 733 (1987) ............ 10,11, 13

Evan H. Pontz, Comment, What a Difference the

ADEA Makes: Why Disparate Impact Theory

Should Not Apply to the Age Discrimination

in Employment Act,

a) Oe 27

INSTANT ENGLISH HANDBOOK (1993 ed.) ............. 1]

Nathan E. Holmes, Comment, The Age

Discrimination in Employment Act Of 1967: Are

Disparate Impact Claims Available ?,

69 U. Cin. L. Rev. 299, 323 (2000)................. 29

Note, Discrimination and the NLRB: The Scope of

Board Power Under Sections 8(a)(3) and 8(b)(2),

32 U. Chi. L. Rev. 124, 128 (1964)................. 15

Pamela S. Krop, Age Discrimination and

the Disparate Impact Doctrine,

34 Stan. L. Rev. 837 (1982) ..........:cccccseeeeeeeeees 12

Vi

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). .........ccccccccscessceeeeeeees 7

fee RE ee 20, 22

113 CONG. REC. 31,254 (1967) ........:ccccccecceeeeeeees 24

113 CONG. REC. 31,255 (1967).......:.cc.cccssseseseeees 20

136 CONG. REC. 13,596-97 (1990)..0.......ccceeeeeeeeees 23

H.R. REP. 101-664 (1990) o......cccccccceccecescecseeeeeeevens 23

FS ea 23

46 Fed. Reg. 47,724 -27 (1981) oeccccccccccccesseceeseeen: 30

Vii

—— ewan aE

STATEMENT OF INTEREST!

The Chamber of Commerce of the United States of

America is the world’s largest business federation. The

Chamber represents a membership of more than three million

businesses and organizations of every size, in every sector

and region. An important function of the Chamber is to

represent the interests of its members in the federal courts in

cases addressing issues of widespread concern to the

American business community. The Chamber has

participated as amicus curiae in hundreds of cases before the

United States Supreme Court and the Courts of Appeals,

including numerous employment discrimination cases.

The Chamber fully endorses the Age Discrimination

in Employment Act. Reliance on age stereotypes about the

abilities of older workers should not be tolerated. Due to

natural job progression, however, age is often correlated with

job terms such as compensation, pension, and seniority. In

this context, and where Congress did not so intend, imposing

a burden on employers to justify the business necessity of

routine and uniform job standards that statistically impact

older workers is unjustified.

SUMMARY OF THE ARGUMENT

The disparate impact theory, first recognized in

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

discrimination case under Title VII of the Civil Rights Act of

1964, does not apply to age discrimination claims. When

Congress passed Title VII, it expressly recognized that age

discrimination differs from other forms of discrimination.

1 The parties have consented to the filing of this brief. Counsel for a

party did not author this brief in whole or in part, and no one other

than amicus curiae, its members, or counsel made a monetary

contribution to the brief’s preparation or submission. S. Ct. R. 37.6.

Weighing in Congress’ effort to balance employees’ and

employers’ interests in any age legislation was the reality that

“a person’s age catches up to him” and “diminishes his

capacity and competence.” See Age Discrimination in

Employment: H'gs on S. 830 and S. 788 Before the

Subcomm. on Labor of the Senate Comm. on Labor and

Public Welfare, 90th Cong., 1st Sess. 36, 37 (1967)

(hereinafter “Senate Hearings’’]. This had no analogue in

Congress’ consideration of invidious racial prejudice under

Title VII. Therefore, Congress directed the Secretary of

Labor to assess whether legislation was necessary to “prevent

arbitrary discrimination in employment because of age.”

Civil Rights Act of 1967, Section 715.

Based on the Secretary of Labor’s recommendations,

Congress enacted the Age Discrimination In Employment

Act (ADEA) and designed its proscriptions to redress only

“arbitrary discrimination,” see 29 U.S.C. §§ 621, 623, which

resulted from inaccurate and stigmatizing age stereotypes.

Congress decided that other factors adversely affecting older

workers’ employment were more suitably addressed by

education and training programs.

In Griggs, the Court adopted the disparate impact

theory, but the Court grounded that theory in the purpose or

objective of Title VII rather than in any specific statutory

language. The Court subsequently extended the theory to

other Title VII contexts, to redress institutional or societal

bias that has produced “built-in headwinds,” “glass ceilings,”

or “barriers” to the advancement of protected groups. The

Court has not, however; extended the disparate impact theory

to claims under the ADEA. That is not surprising.

Unlike groups ; rotected by Title VII, older workers

have not suffered from lifelong barriers to advancement due

to the perpetuation of effects of historical discrimination.

Rather, as Congress recognized in passing the ADEA, older

2

workers are affected by stereotypes that develop only as age

progresses. The disparate treatment theory, which focuses on

motive, is specifically designed to test for age stereotyping,

and it is the sole cause of action intended by Congress. This

Court’s reasoning in Hazen Paper Co. v. Biggins, 507 U.S.

604 (1993), leads directly to this result.

Under the language of the ADEA, an inquiry into

motive is necessary and the most suitable means to root out

age stereotyping. Reading motive out of the ADEA to allow

disparate impact claims would upset the balance struck by

Congress. If such claims were available, statistical

correlation—having nothing to do with motive—would

become dispositive, subject only to the employer’s proof of

business necessity. Employers, though not motivated by age,

would be forced to justify the business necessity of

considering factors such as seniority or pay which, because

they correlate with age, may have a statistical impact on

older workers.

Because age-motivation is required by the language

of the statute, and is an element only under the disparate

treatment theory, the disparate impact theory is not

cognizable under the ADEA. Although an EEOC guideline

purports to create an ADEA disparate impact claim, it is

contrary to the statute’s language. Neither as originally

enacted nor as amended does the ADEA include a disparate

impact claim.

ARGUMENT

Petitioners’ argument that the ADEA authorizes

disparate impact claims relies on the similarity in language

between the ADEA’s liability provision at 29 U.S.C. §

623(a)(2) and Title VII’s liability provision at 42 U.S.C. §

2000e-2(a)(2), which this Court cited in Griggs when it first

recognized the disparate impact cause of action. Pet. Br. 11-

3

17, 22, 36. As the Court recently emphasized, however, the

presumption that the same words have the same meaning—

even when used in the same statute—is not irrefutable. See

Gen. Dynamics Land Sys., Inc. v. Cline, 124 S. Ct. 1236,

1245-46 (2004). In fact, the presumption “is not rigid” and

will yield when there is reason to believe that Congress

intended the words to have different meanings. See id. at

1245. That is even more so when the words are used in

different statutes addressing different problems. Although §

623(a)(2)’s language admittedly is the same as the Title VII

language cited in Griggs, other textual provisions as well as

the background of both statutes and the rationale underlying

Griggs show that the statutes should be interpreted

differently.

I. The Griggs Rationale Does Not Extend To

Employment Decisions Affecting Older Workers.

In Griggs, a Title VII case alleging race

discrimination, this Court first articulated the disparate

impact cause of action. Duke Power had openly segregated

job titles by race prior to the effective date of Title VII. 401

U.S. at 427. Upon enactment of Title VII, it adopted a policy

requiring a high school diploma or passing scores on two

aptitude tests for placement into higher paying jobs. These

requirements disparately affected African-American

employees. The Court found that the disparate effect was

“directly traceable to race,” because the long history of

societal racism and inferior education in segregated schools

had deprived many black employees of the means to manifest

their true abilities through standardized tests. Jd. at 430-31;

see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

(“Griggs was rightly concerned that childhood deficiencies in

the education and background of minority citizens. ..not be

allowed to work a cumulative and invidious burden on such

citizens for the remainder of their lives.”). Because the

employer’s job requirements operated “‘to ‘freeze’ the status

4

quo of prior discriminatory employment practices,” and

worked as “built-in headwinds” for the advancement of

minority groups, the Court held that the requirements were

unlawful if not proven to be job-related. Jd. at 430-32: id. at

431 (“The touchstone is business necessity. If an

employment practice cannot be shown to be related to job

performance, the practice is prohibited.”). Proof of a

discriminatory motive was not necessary.

Griggs was not decided until after the ADEA was

enacted. Griggs therefore could not have informed

Congress’ judgment in drafting the ADEA. Overlooking this

point, along with Griggs ’ focus on the perpetuation of past

discrimination, several courts of appeals had simply assumed

that the disparate impact theory was available to ADEA

plaintiffs. See Pet. Br. 35 n.20 (citing cases). Contrary to

Petitioners’ assertion (Pet. Br. 35), however, this view did

not go unquestioned. See Pavio v. Stiefel Labs., Inc., Civ. No.

78-5551, 1979 WL 105, at *9 n.22 (S.D.N.Y. Nov. 27, 1979)

(questioning Griggs’ applicability to the ADEA); Williams vy.

City and County of S.F., 483 F. Supp. 335 (N.D. Cal. 1979).

In 1993, this Court’s reasoning in Hazen Paper,

which focused on congressional intent and the difference

between age and other forms of discrimination, strongly

pointed toward the conclusion that the disparate impact

theory is not available under the ADEA. See 507 U.S. at 609-

11; Mullin v. Raytheon Co., 164 F.3d 696, 701 (1st Cir.

1999) (Hazen’s “inescapable implication” is that disparate

impact would not address evils that ADEA was designed to

eliminate); Ellis v. United Airlines, Inc., 73 F.3d 999, 1009

(10th Cir. 1996) (Hazen gives “strong impression” that the

ADEA does not encompass a disparate impact claim). The

Court held that an employment decision that is motivated by

a factor that merely.correlates with age, but is analytically

distinct from age, does not violate the statute. The Court

reasoned that, because the impetus of the ADEA was

5

Congress’ “concern that older workers were being deprived

of employment on the basis of inaccurate and stigmatizing

stereotypes,” disparate treatment—with its focus on

motive—“captures the essence of what Congress intended to

prohibit.” /d. at610. When the employer is motivated by

factors other than age, the problem of inaccurate and

stigmatizing stereotypes disappears. Jd. at 611. \

Hazen Paper made clear that the ADEA is a different

statute with a different history and purpose than Title VII.

The disparate impact theory should not be mechanically

transplanted into the ADEA without first reexamining

Griggs’ rationale in light of those differences. Mullin, 164

F.3d at 701 (divergence in purpose between Title VII and

ADEA counsels against mechanistic adherence to Griggs);

see Washington v. Davis, 426 U.S. 229, 255 (1976) (Stevens,

1., concurring) (inappropriate simply to transplant Title VII

standards into a different statutory scheme having a different

history). Griggs’ rationale is not applicable to the ADEA for

two reasons, discussed below. First, Griggs’ policy

justification for developing the disparate impact theory was

aimed at invidious race discrimination and is not transferable

to the ADEA context. Second, the policy-based interpretation

of Title VII that underpins Griggs was not derived from a

strict focus on the statutory text and structure and, under this

Court’s more recent statutory construction cases, should not

be extended beyond the setting in which it was first adopted.

A. Age Discrimination Fundamentally Differs

From Race Discrimination.

Although the purpose of both the ADEA and Title

VII is to eliminate discrimination in the workplace (Pet. Br.

25), the realities of race and age discrimination differ

substantially. During the debates on Title VII, proposals were

made to include age discrimination within its prohibitions.

EEOC v. Wyoming, 460 U.S. 226, 229-30 (1983). Such

6

legislation was deferred, however, because Congress had too

little information to make a considered judgment about the

nature of age discrimination. /d. Suspecting that age differed

fundamentally from race and other types of discrimination,

Congress directed the Secretary of Labor to study the causes

and effects of age discrimination and to prepare a report and

recommendations on the need for (and scope of) any age

legislation. The Secretary of Labor subsequently issued 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) (the “Labor Report”).

Unlike race discrimination, the Report found “no

evidence of prejudice based on dislike or intolerance of the

older worker.” Labor Report at 6; id. at 2 (“discrimination”

based on age “means something very different” than race

discrimination). According to the Report, age-based

intolerance is unusual because the process of aging “‘is

inescapable, affecting everyone who lives long enough,” and

people of all ages “‘liv[e] in close association rather than in

separate and distinct social or economic environments.” Jd. at

6. Thus, “age” is not a restricted class in which segregation

and lack of association with other groups may breed rigid

biases, such as the racial prejudice confronted in Griggs. The

Report also found that some work-related abilities do

correlate with the inevitable process of aging and that this

further distinguishes age from other characteristics like race

or ethnicity.* Thus, adverse assumptions about older

? See Labor Report at 2 (identifying acts not appropriately called

“discrimination,” such as “decisions not to employ a person for a

particular job because of his age when there is in fact a relationship

between his age and his ability to perform the job”); Senate Hearings

at 39 (statement of Secretary of Labor) (challenge in age legislation

was drawing a distinction between cases in which age is relevant to

J

employees’ abilities, if examined, sometimes will prove true.

Examples noted by the Labor Report include chronic illness,

less education, less mobility, lack of transferability of job

skills and experience to meet new technology, and less

proficiency in testing. Labor Report at 11-15. Therefore, the

virtually irrefutable presumption of equaling that is at the

core of the legislation prohibiting racial discrimination is not

applicable to people in different age groups.

B. The Court’s Contemporary Framework

For Statutory Construction Precludes

Creation Of A Disparate Impact Claim.

The Court has increasingly emphasized that the

interpretation of a statute must begin with its text. See

Alexander v. Sandoval, 532 U.S. 275, 286-88 (2001)

(delineating evolution of statutory construction from J.J.

Case Co. v. Borak, 377 U.S. 426 (1964) to Touche Ross &

Co. v. Redington, 442 U.S. 560 (1979)). The focus of

statutory interpretation has shifted away from a generalized

study of the purpose or spirit of an Act to a progressively

sharper inquiry into congressional intent through an Act’s

language, structure, and legislative history. See Touche Ross,

442 US. at 578 (“[G]eneralized references to the ‘remedial

purposes’ of the [statute] will not justify reading a provision

more broadly than its language and statutory scheme

reasonably permit.”). A contemporary interpretation of the

ADEA should follow the same framework. See Alexander,

employment capacity and those in which it is not); Senate Hearings at

36, 37 (statement of Secretary of Labor) (it is an accepted part of the

employment relationship “that when ‘a person’s age catches up to

him’ and diminishes his capacity and competence, he must accept the

fair-minded economic judgment of those he works for...that his value

has fallen below the break-even point”).

532 U.S. at 287 (rejecting argument that statutes enacted

prior to Cort v. Ash, 422 U.S. 66 (1975), should be

interpreted within their own contemporary legal context).

Before extending the disparate impact theory of Griggs to

another statute, therefore, the Court should take into account

not only the differences in context between race and age

discrimination, discussed above, but also Griggs’ emphasis

on the “objective” and “thrust” of Title VII rather than on its

text as a basis for determining congressional intent. Griggs,

401 U.S. at 429 (“objective” of Congress in enacting Title

VII); id. at 432 (“thrust” of the Act directed to the

consequences of employment actions).

II. Congress Intended The ADEA To Proscribe Oaly

Age-Motivated Discriminatory Conduct.

Petitioners primarily argue that, because Griggs

interpreted Title VII to include the disparate impact theory,

similar language in the ADEA must have the same meaning.

Pet. Br. 11-17. As fundamental as the presumption that

similar language is construed similarly, however, is the

“cardinal rule that ‘[s]tatutory language must be read in

context [since] a phrase ‘gathers meaning from the words

around it.”” Cline, 124 S. Ct. at 1246. A review of the

ADEA as a whole demonstrates that Petitioners are wrong in

assuming that the liability provisions of Title VII and the

* Petitioners exaggerate the extent to which Griggs “expressly rel[ied]

on the text of Title VIL.” Pet. Br. 22. The Court’s citation of 42

U.S.C. § 2000e-2(a)(2) in a footnote constituted its entire reliance on

the text of the statute. Griggs, 401 U.S. at 426 n.1; see Ellis, 73 F.3d

at 1007 n.13 (Griggs was not based on Title VII's text, but looked

primarily to its larger objectives); George Rutherglen, Title-VII Class

Actions, 47 U. Chi. L. Rev. 688, 724 (1979-80) (“The legal and moral

ranean Board of Education has caused the federal courts to

vor claims of racial discrimination, most significantly through

judicial creation of the theory of disproportionate adverse impact.”).

9

ADEA are identical. Liability under the ADEA is

determined by both § 623(a) and § 623(f)(1 )}—the latter of

which has no counterpart in Title VII. This difference

“creates a critical ‘asymmetry’ between the ADEA and Title

VII,” which shows that the statutes should not be interpreted

identically. Smith, 351 F.3d at 190-91. For the reasons below,

§ 623(a)(2) requires a showing of age-motivation.

A. The Language Of § 623(a) Proscribes

Only Disparate Treatment.

The language of § 623(a)(2) confirms what Hazen

Paper implied: Age-motivation is a required element of a

cause of action under the Act. The Section reads as follows:

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 individual of employment opportunities or

otherwise adversely affect his status as an

employee, because of such individual’s age.

29 U.S.C. § 623(a)(2). Section 623(a)(2) prohibits conduct

taken “because of” such individual’s age, which means “on

account of” or “by reason of” age. AMERICAN HERITAGE

‘DICTIONARY OF THE ENGLISH LANGUAGE 159 (4th ed. 2000).

This language requires age-motivation.* Age-motivation is

* D. Don Welch, Removing Discriminatory Barriers: Basing

Disparate Treatment Analysis on Motive Rather than Intent, 60 S.

Cal. L. Rev. 733, 739, 751 (1987) (hereinafter “Welch, Removing

Barriers”) (the phrase “because of” reflects motive); Ellis, 73 F.3d at

1007 (most obvious reading of “because of such individual's age” is

that it prohibits an employer from intentionally discriminating); see

also Price Waterhouse v. Hopkins, 490 U.S. 228, 281-82 (1989)

(Kennedy, J., dissenting) (“By any normal understanding, the phrase

“because of conveys the idea that the motive in question made a

difference to the outcome.”).

10

the linchpin of disparate treatment claims;* disparate impact

cannot be used as a surrogate.° Consequently, the only

reasonable reading of § 623(a)(2) is that it proscribes

disparate treatment.

In an attempt to force disparate impact into the

meaning of § 623(a)(2), Petitioners argue that the key

prepositional phrase “because of such individual’s age”

modifies the verb “affect,” rather than the earlier verbs “to

limit, segregate, or classify.” Pet. Br. 23. Petitioners’

position is inconsistent with normal English usage. The

comma immediately preceding the “because of” phrase

signals that the phrase is out of its natural order. INSTANT

ENGLISH HANDBOOK 276 (1993 ed.) (a Comma typically is

not used after an adverbial dependent clause). Instead, the

* Hazen Paper, 507 U.S. at 610-11 (liability in a disparate treatment

case depends on whether the protected trait motivated the employer's

decision). Although the phrase “intent to discriminate” often has been

used in ADEA and Title VII cases, the Court has made clear that it

means “motivated” by a protected trait. £.g., McDonnell Douglas, 411

U.S. at 802 (emphasizing the employer’s reason and the question of

“racial motivation”); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S.

248 (1981) (using term “intentional discrimination” but focusing on

employer’s “reasons”); McKennon v. Nashville Banner Publ'g Co.,

513 U.S. 352 (1995) (focusing on “motive”); see Welch, Removing

Barriers, 60 S. Cal. L. Rev. at 766-72 (despite courts’ use of the term

“intent,” the ultimate issue in disparate treatment is motivation).

* Raytheon Co. v. Hernandez, 124 S. Ct. 513, 519 (2003) (because the

factual issues and character of the evidence differ between the

disparate impact and disparate treatment theories, “courts must be

careful to distinguish between these theories”). The disparate impact

theory eliminates motive as a material issue. If, as we argue, a

showing of motive is required under the ADEA, disparate impact

alone cannot create liability. Hazen Paper, 507 U.S. at 610 (a

disparate treatment claim fails unless the employee’s protected trait

had a determinative influence on the outcome).

11

comma signals that the phrase “because of” is out if its

natural order. Jd. at 281; see also Pamela S. Krop, Age

Discrimination and the Disparate Impact Doctrine, 34 Stan.

L. Rev. 837, 843 n.27 (1982) [hereinafter “Krop, Age

Discrimination’) (grammatical construction of § 623(a)(2)

should be interpreted to allow only disparate treatment);

DiBiase, 48 F.3d at 733-34 (relying on Krop’s grammatical

analysis). Thus, the phrase “because of such individual’s

age,” should be read to modify “to limit, segregate, or

classify.” This construction requires a showing of age-

motivation and authorizes only claims of disparate treatment.

Krop, Age Discrimination, 34 Stan. L. Rev. at 843.

- To counter this conclusion, Petitioners argue that,

since the singular noun used in the phrase “because of such

individual's age” does not match the plural form used in “to

limit, segregate, or classify his employees,” the former must

- not modify the latter. Pet. Br. 23-24. The better reading is to

interpret use of the singular noun “individual” as reflecting

congressional intent to create a standing requirement by

restricting claims of age discrimination to persons who

actually were adversciy affected by the discriminatory

practice. Making it unlawful to limit, segregate, or classify

employees in a way that would deprive any of them of

employment opportunities because of age could be

interpreted to authorize a person who was not actually

subjected to the unlawful practice to bring a lawsuit. It is

clear that Congress meant to preclude this result.”

? Although, since the 1972 amendments to Title VII, an individual can

file a charge “on behalf” another, the amendments did not change

Title VII's requirement that only the actual victim of discrimination

can receive a right-to-sue notice and file a civil lawsuit. See 42 U.S.C.

§ 2000e-5(f)(1) (notice of right to sue shall be given to “the person

aggrieved,” after which “a civil action may be brought...by the person

12

Petitioners’ further insistence (Pet. Br. 22) that the

phrase “because of” does not typically refer to an actor’s

state of mind but instead means causation is misguided. As

discussed above, the phrase “because of” is routinely

interpreted to refer to motive. Although “[mlotive is a causal

concept,” in legal parlance, motive typically refers to a

subjective state of mind.2

Petitioners contend that, if Congress truly meant to

require a subjective showing of age-motivation, it would

have used a term such as “willful,” “knowing,” “deliberate,”

or “malice.” They argue, for example, that Congress could

have used words more akin to 42 U.S.C. § 1981a(b)(1)’s

requirement of “malice” or “reckless indifference” to prove

liability for punitive damages. But these states of mind differ

from motive. See Kolstad v. Am. Dental Ass'n, 527 U.S. 526,

claiming to be aggrieved”). The same is true for the ADEA. 29 U.S.C.

§ 626(c)(1) (“Any person aggrieved may bring a civil action in any

court of competent jurisdiction ...”). The language in § 623(a)(2)

focusing on the “individual” ensures proof not just of a policy to

segregate because of protected status, but also proof that the practice

adversely affected the individual bringing the lawsuit. See Gen. Tel.

Co. of the S.W. v. Falcon, 457 U.S. 147, 159 n.15 (1982) (“Title VI

prohibits discriminatory practices, not an abstract policy of

' ination.”).

* Welch, Removing Barriers, 60 S. Cal. L. Rev. at 739; AMERICAN

HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1148 (4th ed.

2000) (“motive” is an “emotion” or “desire” “that acts as an

incitemeht to action”; “causing or able to cause motion”)

* E.g., US. v. Cintolo, 818 F.2d 980, 1000 (Ist Cir. 1987) (“Motive is,

by definition, subjective in nature; it is a state of mind that is shown

by proving the emotion that brings it into being.”); U.S. v. LaRouche

Campaign, 695 F. Supp. 1265, 1271 (D. Mass. 1988) (in legal

discourse, “motive” concems reasons for desiring certain

consequences and is a state of mind).

13

536 (1999) (showing of intentional discrimination does not

necessarily give rise to punitive damages liability under the

“reckless indifference” standard). Similarly, liability based

on “knowledge” would penalize a foreseeable outcome

irrespective of the employer’s motivation. Because

Congress intended instead to require a showing of motive, it

used the suitable phrase “because of.”

Furthermore, use of the particular terms “limit,”

“segregate,” or “classify” prior to the phrase “because of

such individual’s age” supports an interpretation of §

623(a)(2) that prohibits only age-motivated practices. These

terms all suggest that the conduct Congress sought to address

were express age-based categorizations that adversely affect

older workers. The verb “limit” means “[{t]o confine or

restrict within a boundary or bounds.” THE AMERICAN

HERITAGE DICTIONARY OF ENGLISH LANGUAG.z 1016 (4th ed.

2000). “Limit refers principally to the establishment of a

maximum beyond which a person or thing cannot or may not

go.” Id. The verb “segregate” means to “separate or isolate

from others,” “to impose the separation of (a race or class)

from the rest of society,” and to “practice a policy of racial

segregation.” /d. at 1577. The verb “classify” means to

“arrange or organize according to class or category.” /d. at

343. All of these terms essentially mean “discrimination,”

and do not connote facially neutral practices that

coincidentally have adverse effects on a protected group.

“Segregate,” for example, makes no sense unless

there is some definition of one class that is separated or

isolated from the others. “Segregate” makes most sense

when linked to the subsequent phrase—‘“because of such

individual’s age”—which defines the relevant classes. The

14

same is true for “limit” and “classify.”“’ As Petitioners

repeatedly note, Congress borrowed the language in §

623(a)(2) from Title VII. Title VII's historical context—in

which school segregation by race, for example, and express

sex and race-based job classifications prevailed—clarifies

what conduct Congress sought to remedy when it prohibited

employers from, for example, segregating employees because

of race in a way that deprives particular individuals of job

opportunities. See Griggs, 401 U.S. at 427 (segregation of

departments by race); United Air Lines v. Evans, 431 U.S.

553 (1977) (no-marriage rule applied only to female

employees). This understanding applies equally to the

ADEA, which sought to eliminate these kinds of express age

“limits” and “classifications,” which frequently were used

against older workers. E.g. Labor Report at 21 (discussing

“persistent and widespread use of age limits in hiring”).

When read as a whole, § 623(a)(2) requires a showing of age-

motivated discrimination and can be interpreted to authorize

only disparate treatment claims.

In any event, under any of the proposed

interpretations of § 623(a)(2), Petitioners do not state a cause

of action. Petitioners challenge a pay plan that resulted in

higher salary increases for police officers and safety

1° That this is the intended meaning of § 623(a)(2) is made clear by

contrasting it to the confusion created by Congress’ use of the

ambiguous term “discriminate” in Sections 8(a)(3) and 8(b)(2) of the

National Labor Relations Act (NLRA) without also adding the term

“because of union membership.” See generally Note, Discrimination

and the NLRB: The Scope of Bd. Power Under Sections 8(a)(3) and

8(b)(2), 32 U. Chi. L. Rev. 124 (1964) [hereinafter “Discrimination

and the NLRB”). Congress’ use of more definite terms in the ADEA

with the same connotation as “discrimination” and the qualifier

“because of age” indicates congressional intent to ensure a

requirement of unlawfully motivated discrimination.

15

dispatchers with five or fewer years of tenure. Smith v. City

of Jackson, Miss., 351 F.3d 183, 185 (Sth Cir. 2003). Even

accepting Petitioners’ definition of “because of” to mean

causation (rather than subjective motive) and their view that

the phrase modifies “affect” rather than “to limit, segregate,

or classify,” their critical mistake is in failing to recognize

that § 623(a)(2) prohibits adverse actions or effects that are

“caused” by age, not simply adverse actions that affect older

employees. Petitioners’ disparate impact claims do not allege

that the pay plan was motivated by age; was caused by

conscious or subconscious stigmatizing stereotypes; or even

that the aging process impaired performance, which caused a

difference in pay for older workers under the pay plan.

Instead, Petitioners simply argue that the pay plan harmed

older workers through lower pay increases. But § 623(a)(2)

prohibits limitations or classifications that adversely affect an

individual “because of such individual’s age,” not simply

acts that “have an adverse effect on older workers.” Pet. Br.

20. The pay plan affected Petitioners “because of” their

tenure. This situation varies drastically from Griggs, where

the Court found that the disparate effect was “directly

traceable to race” because African-Americans had been

deprived of the skills to demonstrate their true abilities

through tests due to poor education in racially segregated

‘schoo!s. In that context, and unlike here, an individual’s race

(and prior race segregation) could be viewed as “causing” the

high failure rate on the test. Accordingly, under any

interpretation of § 623(a)(2), Petitioners do not state a claim

for age discrimination.

B. Section 623(f)(1) Confirms That The ADEA

Does Not Proscribe Disparate Impact.

Petitioners admit that this Court consistently has

construed Title VII and the ADEA differently where the text

and statutory structure differ—at least “outside the scope of

16

the two statutes’ identical liability provisions.” Pet. Br. 15.

Their presumption that the liability provisions in the two

statutes are identical ignores the effect of the “reasonable

factors other than age” (RFOA) clause in § 623(f)(1) of the

ADEA. The combination of the prohibitory language in §

623(a) and the exception language in § 623(f)(1) confirms

that the ADEA proscribes only disparate treatment. Section

623(f), in relevant part, reads as follows:

It shall not be unlawful for an employer,

employment agency, or labor organization...

to take any action otherwise prohibited under

subsections (a), (b), (c), or (e) of this

section...where the differentiation is based on

reasonable factors other than age....

29 U.S.C. § 623(f). By its plain language, an otherwise

prohibited age “differentiation” is lawful if it is based on

factors other than age. Accordingly, decisions based on non-

age factors that have a disparate impact on older workers are

not unlawful under the RFOA clause. See Mullin, 164 F.3d at

700-01 (RFOA clause eliminates disparate impact claims);

DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 734 (3d

Cir. 1995) (RFOA clause indicates that neutral employment

policies not improperly motivated may be permissible).

Petitioners and their amici —faced with the fact that §

623(a)(2), by its own terms, does not authorize a disparate

impact claim—argue that authorization for a disparate impact

claim is somehow implied by § 623(a) when read in

conjunction with the RFOA clause. Apart from

demonstrating that the ADEA is not a model of legislative

drafting—a fact conceded by all—their arguments are

ultimately unpersuasive.

17

1. The Meaning Of “Otherwise Prohibited” In

§ 623(f)(1) Derives From The Legal

Context Of The ADEA’s Enactment.

Petitioners contend that, because the RFOA excuses

liability for “otherwise prohibited” conduct when the

differentiation is based on factors other than age, the RFOA

“necessarily implies that it is possible to violate section

[623(a)] through differentiation based on a factor other than

age.” Pet. Br. 19. This argument is not the best explanation

for the interplay between §623(a)(2) and §623(f). The

meaning of the “otherwise prohibited” language is clarified

by the legal and historical context in which the statute was

enacted. That context does not support the claim that the

RFOA indicates intent to authorize a disparate impact claim.

At the time the ADEA was enacted in 1967, there was

ambiguity surrounding the concept of causation. Title Vil

and the ADEA both were enacted prior to decisions defining

the necessary causal relationship between the improper

motive required to trigger liability and the overt act of

discrimination. Francis J. Vass, Title VII: Legislative History,

7 B.C. Indus. & Com. L. Rev. 431, 456 (1965-66)

[hereinafter “Vass, Title VII: Legislative History’). The issue

is illustrated by the proposed amendment to the original Title

VII seeking to limit liability to instances where the alleged

discrimination was solely because of race, color, religion,

sex, or national origin. Jd. Congress rejected the amendment,

but the fact that the proposal was made at all “points up what

[was] a continuing issue under the Labor Management

Relations Act (LMRA).” Vass, Title VII: Legislative History,

7 B.C. Indus. & Com. L. Rev. at 456. The issue under the

LMRA was whether the improper motive must be the

dominant factor, a substantial contributing factor, or merely a

factor leading to the overt act. Jd. The federal courts had

required a showing that an unlawful factor was “dominant.”

18

E.g., Frosty Morn Meats, Inc. v. NLRB, 296 F.2d 617, 620-21

(Sth Cir. 1961) (determination of whether employer

committed unlawful discrimination under NLRA depends on

whether anti-union animus was the dominant motive). This

was not an affirmative defense; the General Counsel was

required to satisfy the “dominant” factor test to prove

liability in the first instance. The NLRB had required the

lesser showing that the unlawful factor was a motive in part.

See Wright Line, 251 N.L.R.B. 1083 (1980) (tracing history

of difference between NLRB and federal courts concerning

dual motives). The issues of causation and its proof were

clarified after the enactment of the ADEA by a series of

decisions including McDonnell Douglas’ pretext analysis,

Mt. Healthy City of School District Board of Education, 429

U.S. 274, 287 (1977) (if plaintiff shows unlawful

consideration was “a motivating factor,” employer has

opportunity to show it would have reached the same

conclusion even in the absence of the unlawful

consideration), and Price Waterhouse v. Hopkins, 490 U.S.

228, 242 (1989) (same).

The notion of causation was further refined by the

Civil Rights Act of 1991, which amended Title VII to

respond to the “mixed motive” analysis adopted in Price

Waterhouse v. Hopkins. See 42 U.S.C. § 2000e-5(g)(2)(b)

and § 2000e-2(m). Under 42 U.S.C. § 2000e-2(m), if the

plaintiff proves that an identified protected trait was “a

motivating factor,” a violation is established “even though

other factors also motivated the practice.” Once a Title VII

plaintiff proves a violation of § 2000e-2(m), she is entitled to

certain limited relief under § 2000e-5(g)(2)(b), even if the

employer demonstrates that it would have taken the same

action in the absence of the impermissible motivating factor.

42 U.S.C. § 2000e-5(g)(2)(b).

19

Congress did not similarly amend the ADEA. See

Lewis v. Young Men's Christian Ass'n, 208 F.3d 1303, 1305

(11th Cir. 2000) (Section 2000e-5(g)(2)(B) did not amend the

ADEA and therefore is inapplicable to ADEA claim). This

mixed motive framework would be inappropriate under the

ADEA because, unlike Title VII, Congress intended liability

under the ADEA to be triggered only when the unfair

practice was motivated solely by age. E.g., 113 CONG. REC.

31,255 (1967) (remarks of Sen. Javits) (question under

ADEA as to whether the Act was violated is: “Was the

individual discriminated against solely because of age?”’);

113 CONG. REC. 1377 (1967) (statements of Secretary of

Labor) (“The legislation would clearly indicate that the

prohibitions are designed to bar arbitrary age discrimination.

Reasonable differentiations not based solely on age...would

not fall within the proscription.”’). Section 623(f)(1) makes

this absolutely clear. Therefore, unlike under Title VII, a

plaintiff will not prevail under the ADEA merely by showing

that age played a motivating role. Cf; Hazen Paper, 507 U.S.

at 609 (disparate treatment claim cannot succeed unless

protected trait played a role and had a determinative

influence on the outcome). Thus, the “otherwise prohibited”

language in § 623(f)(1) can be understood to allow

employment decisions in which age is “a” motivating factor,

so long as the employer would have made the same decision

based on non-age factors.

This conclusion is reinforced by the further ambiguity

surrounding the concept of “intentional” discrimination.

When Title VII and the ADEA were enacted, courts’

interpretation of Section 8(a) of the NLRA had replaced the

concepts of “intent to discriminate” and “motivation” with a

test for “foreseeable consequences.” See Discrimination and

the NLRB, 32 U. Chi. L. Rev. at 127-28 (courts blurred

distinction between “motive” and “intent,” the latter of which

was easily inferred from the probable consequences of

20

employer action); Miranda Fuel Co., Inc., 140 N.L.R.B. 181,

193, 196 (1962) (Chairman McCulloch, dissenting)

(criticizing majority for inferring “motive” to encourage or

discourage union membership solely from the “foreseeable

result(s]” of the challenged conduct); see also U.S. v. Tex.

Educ. Agency, 564 F.2d 162, 165-170 (5th Cir. 1977)

(rejecting prior rulings that “intent” to discriminate could be

shown, without regard to subjective mctive, based on the

common law principle that an actor is objectively held to

intend the reasonably foreseeable results of his actions).

Such a test would be particularly inappropriate under the

ADEA, where an employer may very well foresee a disparate

statistical impact on older workers simply because it relies on

a legitimate factor, such as seniority, which is empirically

correlated with age. Section 623(f)(1) ensures that age-

motivation (rather than some variation of “intent”) retains a

central role in ADEA cases. With this understanding, the

“otherwise prohibited” language makes sense. The ADEA

allows an employment decision that has a foreseeable impact

on older workers, so long as the employer’s decision would

have been the same irrespective of age.

2. The RFOA Clause Is Not An

Affirmative Defense.

In a related argument, amicus curiae contends that the

“otherwise prohibited” language in § 623(f)(1) means that the

RFOA does not come into play until a violation of the ADEA

has been established and that, therefore, the RFOA is an

“affirmative defense.” Br. of Nat’] Employment Lawyers

Ass’n (NELA) at 19. This argument is incorrect.

The RFOA clause is not an affirmative defense. It is

a definitional provision underscoring what “shall not be

unlawful” discrimination under § 623(a). Marshall v.

Westinghouse Elec. Corp., 576 F.2d 588, 591 (5th Cir. 1988).

The ADEA’s legislative history confirms this interpretation.

21

E.g., 113 CONG. REC. 1377 (1967) (statements of Secretary

of Labor) (“The legislation would clearly indicate that the

prohibitions are designed to bar arbitrary age discrimination.

Reasonable differentiations not based solely on age...would -

not fall within the proscription.”’).

The fact that the bona fide occupational qualification

(BFOQ) clause—the clause preceding the RFOA in §

623(f)(1)—has been interpreted to be an affirmative defense,

see NELA Br. 20-21, does not alter this conclusion. There is

no clear indication that the enacting Congress intended either

clause to be an affirmative defense. The prefatory language

of § 623(f}—indicating that the subsequent clauses define

what is not unlawful activity—suggests otherwise. In any

event, the RFOA differs from the BFOQ. The latter addresses

practices that are based solely and expressly on age—not

practices based entirely or additionally on factors other than

age. This significant difference supports the view that the

RFOA is a definitional provision, notwithstanding the BFOQ

interpretation of the affirmative defense.

NELA’s additional arguments based on the Older

Workers Benefit Protection Act of 1990 (OWBPA) also fail.

NELA Br. 15-24. The OWBPA amended the ADEA by

expressly placing the burden of proof on the employer to

prove the bona fide seniority system and the bona fide

employee benefit plan exceptions in § 623(f)(2). See Pub. L.

No. 101-433, § 103, 101 Stat. 978. The OWBPA’s

amendments were specifically designed to overturn the

Court’s interpretation of the ADEA in Public Employees

Retirement Systems v. Betts, 492 U.S. 158 (1989). There, the

Court held that an employee challenging the validity of a

facially age-based employee benefits plan under the ADEA

bears the burden of proving that the employer had adopted

the plan as a subterfuge for intentional age discrimination. /d.

at 181. Although the OWBPA altered Betts’ outcome, the

22

revision cannot be viewed as correcting the Court’s reading

of the ADEA, as NELA suggests. See NELA Br. 15-18. The

better view is simply that the 1990 Congress in the OWBPA

altered the burden that previously existed under the ADEA

with respect to proving the bona fides of a seniority system

or employee benefit plan.

_ However the OWBPA may have modified the burden

of proof for the BFOQ under § 623(f)(2), it made no changes

to the RFOA clause. In fact, although both the Senate and

House bills proposed to revise § 623(f)(1) to expressly

allocate the burden of proof to the employer," this provision

was deleted from the final bill that ultimately became the

OWBPA.” Thus, NELA’s notion that the RFOA clause

should be treated as an affirmative defense is unfounded.

The OWBPA suggests no such thing.

3. The Word “Reasonable” In The

RFOA Clause Does Not Imply The

Concept Of “Business Necessity.”

Whether or not the RFOA clause is viewed as an

affirmative defense, it is clear that “motive” is the key

inquiry under the ADEA. Thus, the RFOA clause’s use of the

term “reasonable” cannot be read to require a showing of

“business necessity,” which forces an employer to justify its

practice as essential (whatever its motive may have been).

Indeed, since the disparate impact theory had not yet been

4 See H.R. REP. 101-664, at 3, 46-47 (1990) (BFOQ exception in

section 4(f)(1) is an affirmative defense for which the employer bears

the burden of proof); S. REP. No. 101-263, at 2, 29-30 (1990)

(employer bears burden to plead and prove defenses in section 4(f)).

2 See 136 CONG. REC. 13,596-97 (1990) (“not disturbing or in any

way affecting the allocation of the burden of proof for paragraph

4(f)(1) under pre-Betts law”).

23

formulated at the time the ADEA was enacted, Congress was

contemplating no such thing. The term “reasonable” merely

reflects the ADEA’s recognition that stereotypical

assumptions about older workers’ ability to do the job may

have a basis in fact in individual cases. In this context, the

term “reasonable factors” is in contradistinction to the words

“assumed” or “arbitrary.”“= “Reasonable” means rational and

in accordance with reason or sound thinking. AMERICAN

HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1457

(4th ed. 2000).* Contrary to Petitioners’ argument, the

RFOA is not “mere surplusage” under this analysis: The

RFOA’s function is to differentiate between unlawful age

Stereotyping and lawful employment decisions where, even if

age could be said to be “a” factor, the decision was

reasonably based on factors other than age. For decisions in

3 113 CONG. REC. 31,254 (1967) (remarks of Sen. Yarborough) (“a

great deal of the problem stems from pure ignorance: there is simply a

widespread irrational belief” about the capabilities of older workers);

Senate Hearings at 39 (statement of Secretary of Labor) (“[This bill]

does not prohibit or apply in any way to differentiations or

distinctions being made on the basis of age so far as there is a

legitimate relevance between age and employment capacity. The

‘discrimination’ it is directed against is the ‘unjust’ or ‘arbitrary’

distinction (which is what ‘discrimination’ is normally taken to mean)

which may be made in the absence of any legitimate relevance

between age and employment capacity.”); see also Discrimination

and the NLRB, 32 U. Chi. L. Rev. at 127 (discussing dispute about

meaning of “discrimination” in Section 8(a)(3) of the NLRA and

identifying various possible interpretations, including “differentiation

or distinction without sufficient reason, a meaning commonly

conveyed by use of the adjectives ‘arbitrary’ or ‘invidious””).

1 See Miranda Fuel Co., Inc., 140 N.L.R.B. 181, 185-86 (1962)

(using “arbitrary” synonymously with the terms “irrelevant reasons”

and “invidious” and indicating that, when different treatment is

“based on race alone,” it is “obviously irrelevant and invidious”).

24

which age is not at all a factor—as in disparate impact

cases—the determination that the ADEA was not violated

requires no reference to § 623(f)(1).

For example, an employer could discharge an older

worker for poor attendance due to chronic health problems,

which problems were caused by age. If the company

decision maker were asked at the time of the discharge what

was in her mind, she might say, “I am firing the employee

because his age has affected his health, and I can’t rely on

him anymore.” Even though, in this example, the employer

may believe that the employee’s poor health is attributable to

his advancing age, the employer can lawfully discharge the

employee based on the attendance policy, even if that policy

has a disparate impact on a group of older workers. If,

however, the employer had simply assumed that the older

employee was unreliable because of likely health problems

related to age, and did not bother to test the assumption in

that individual case, the discharge would be need because of

age and, therefore, unlawful.

Even if, as in the example, the employer contemplates

the employee’s age or relies on a factor known to be

correlated with age, the problem of inaccurate age

stereotypes dis*ppears if the employer’s consideration of the

individual’s attendance is the dominant basis of the adverse

decision. The employer’s reliance on a factor that correlates

with age would be unlawful only if the employer was not

only aware of the correlation, but acted because of it. Since

age stereotyping cannot be inferred simply from an empirical

'® See Labor Report at 11 (it would not be reasonable to exclude all

older workers from consideration for certain jobs because as a group

they are more subject to health problems associated with growing

older; the Report recognizes, however, that when older workers are

considered on their merits, a proportion of them will fail to qualify).

25

correlation with a non-age factor, the disparate impact theory

does not fit in the ADEA context. Rather, the flexible

burden-shifting framework to examine motive established in

McDonnell Douglas is well-suited for resolving the proper

ADEA inquiry. The overly broad and burdensome “business

necessity” affirmative defense would not serve that purpose.

Cc. Legislative History Shows Congress’ Intent

To Tailor The ADEA To Address The

Specific Qualities Of Age Discrimination.

The ADEA’s legislative history confirms that its

language was intended to create a cause of action only for

disparate treatment. The Labor Report identified factors that

adversely affect older workers in employment, but, because

of the unique qualities of ageism (discussed above), it

recommended legislation to address only one: “arbitrary age

discrimination.” Labor Report at 21. Having no intent to

recommend legislation against all factors that disparately

affect older workers, the Secretary gave “arbitrary

discrimination” a specific meaning: “rejection [of older

workers] because of assumptions about the effect of age on

their ability to do a job when there is in fact no basis for this

assumption.” Labor Report at 2 (emphasis in original); see

Labor Report at 5 (“[T]he findings relate to the entire range

of factors which tend to have adverse effects on the

employment of older workers. Some of these factors involve

what is properly identified as arbitrary discrimination.

Others do not.””). Employment policies erecting age limits

were the primary and repeated examples of such

discrimination. E.g., Labor Report at 6. When Congress

enacted the ADEA, it expressly stated its focus on such

“arbitrary” age discrimination. 29 U.S.C. § 621.

Petitioners’ broad interpretation of the Labor Report

to suggest otherwise relies on a misquotation and is simply

wrong. The L abor Report did not say that “it would be

26

‘futile as public policy’ to focus solely on the elimination of

explicit age limits.” Pet. Br. 26 (citing Labor apa at 21).

The passage, in fact, reads as follows:

[T]he most serious barriers to the employment of

older workers are erected on just enough basis of fact

to make it futile as public policy, and even contrary to

the public interest, to conceive of all age restrictions

as ‘arbitrary’....”

Labor Report at 21. In other words, it would be futile to

outlaw the entire spectrum of age restrictions. Based on the

Labor Report’s findings, Congress decided that other factors

adversely affecting older workers’ employment were more

suitably addressed, not by legislation, but by education and

training programs. See 29 U.S.C. § 622 (directing Secretary

of Labor to develop an education and research program);

Senate Hearings at 38-39 (statement of Secretary of Labor)

(deliberate acts will be prohibited by the legislation; other

acts will be remedied by research, education, and training —

to do more would be premature); Labor Report at 22 (in

instances of alleged arbitrary discrimination where the facts

indicate that older worker needs reeducation, training,

counseling, or health and other services, the individual

should be referred to appropriate programs for assistance).

The ADEA’s express focus on “arbitrary”

discrimination demonstrates that it was intended to be

narrower in scope than Title VII.!* In contrast to the

‘© Krop, Age Discrimination, 34 Stan. L. Rev. at 854 (Title VII's

purpose is broader than the ADEA’s, making disparate impact proper

only for Title VII); Evan H. Pontz, Comment, What a Difference the

ADEA Makes: Why Disparate Impact Theory Should Not Apply to the

Age Discrimination in Employment Act, 74 N.C. L. Rev. 299-300

(1995) (analyzing meaning of “arbit.ary discrimination”).

27

historical facts that Congress confronted when it addressed

racial discrimination in Title VII, historical prejudices and

lingering effects of prior discrimination do not justify a

disparate impact claim under the ADEA. Hiatt v. Union Pac.

R.R. Co., 859 F. Supp. 1416, 1436 (D. Wyo. 1994) (unlike in

Griggs, correlation between age and ability cannot be traced

to a history of past discrimination). All older workers were

once younger and able to make choices about their education,

training, and employment free from age discrimination. Any

current correlation between age and ability cannot be viewed

as “directly traceable to” or “because of” lifelong age

discrimination. See Mullin, 164 F.3d at 701 (age

discrimination correlates with current job conditions, not past

discriminatory practices); Mass. Bd. of Retirement v. Murgia,

427 U.S. 301, 313 (1976) (unlike race, the aged “have not

experienced a history of purposeful unequal treatment or

been subjected to unique disabilities on the basis of

stereotyped characteristics not truly indicative of their

abilities”). Therefore, an employer’s facially neutral practice

that has a disparate impact on older workers cannot raise an

inference that past discrimination is being perpetuated—there

is no past discrimination to perpetuate. Older employees, in

fact, may have benefited from past age discrimination during

their careers. Hiatt, 859 F. Supp. at 1436 (individuals were

previously younger and possibly beneficiaries of any age

discrimination). Thus, Griggs’ concern with avoiding the

perpetuation of past discrimination simply does not apply in

the ADEA context.

Further, although the particular evil of invidious

discrimination and its distorting affects on decision making

may be an additional reason for applying the Jisparate impact

theory, this rationale is out of place in age discrimination

eases. As the Labor Report established, invidious age

prejudices are uncommon. In this context, the burden of

proving “business necessity” is disproportionate to the harm

28

sought to be remedied. Under the circumstances alleged

here, for example, disparate impact theory would require the

City of Jackson to prove that there is a “compelling need” for

its proposed more competitive salary structure and that there

is “no alternative” to implementing that proposal. See, e.g.,

Kirby v. Colonial Furniture Co., 613 F.2d 696, 705 n.6 (8th

Cir. 1980) (must show not merely routine business

considerations, but a “compelling need,” for which there is

“no alternative”). The disparate impact theory, with no

consideration of motive and a defense only of business

necessity, is simply too broad and intrusive to serve as a

well-tailored means of identifying and correcting age

stereotypes. See DiBiase, 48 F.3d at 734 n.21 (disparate

impact with its defense of business necessity could “subject

employers to unreasonable intrusions by juries into their

business practices,” such as work schedules and medical

insurance); Nathan E. Holmes, Comment, The Age

Discrimination in Employment Act Of 1967: Are Disparate

Impact Claims Available?, 69 U. Cin. L. Rev. 299, 323

(2000) (business necessity too intrusive a means to identify

discriminatory motives and over-predicts age discrimination).

In sum, Petitioners’ and amici’s analysis of the

ADEA to require an inference of a disparate impact claim in

§ 623(a) does not withstand scrutiny. The only reasonable

interpretation of the interplay between §§ 623(a) and

623(f)(1) is that Congress proscribed only age-motivated

conduct in the former. The latter clarified that conduct for

which age is “a” motivating factor is not unlawful if the same

decision would have been made irrespective of age. Because

motive plays an indispensable role under the ADEA, the

disparate impact theory is not available.

29

D. The EEOC’s Interpretive Guidelines

Cannot Create A Disparate Jmpact Claim.

Although 29 C.F.R. § 1625.7(d) seeks to transplant

disparate impact into the ADEA context and to interpret the

RFOA clause to mean “business necessity,” it is only an

EEOC policy guideline. See 46 Fed. Reg. 47,724 (1981)

(ADEA guidelines are only statements of EEOC policy and

do not comply with legal requirements for rulemakin«‘. The

force of such guidelines is a function of their persuasi\

value. U.S. v. Mead Corp., 533 U.S. 218, 234 (2001) (no

Chevron-deference to guidelines). The EEOC provided no

substantive analysis for adopting the disparate impact

guideline. Because it simply assumed, on the basis of Griggs, |

that the disparate impact theory is available, the guideline is

unpersuasive. Smith, 351 F.3d at 189 n.5.

More importantly, “[e]ven for an agency able to claim

all the authority possible under Chevron, deference to its

statutory interpretation “is called for only when the devices

of judicial construction have been tried and found to yield no

clear sense of congressional intent.” Cline, 124 S. Ct. at

1248. For the reasons discussed at length above, the ADEA,

properly read in the context in which it was enacted,

proscribes only disparate treatment. Neither the statute’s

language nor its history permit an inference of a disparate

impact claim. The EEOC’s decision to discard age-

motivation in 29 C.F.R. § 1625.7(d) is inconsistent with the

ADEA’s language, both as originally enacted and as

amended. It warrants no deference. Betts, 492 U.S. at 171

(“[N]o deference is due to agency interpretations at odds with

the plain language of the statute itself.”’).

CONCLUSION

The judgment of the court of appeals should be

affirmed.

30

Respectfully submitted,

Peter Buscemi

Counsel of Record

Grace Speights

Anne Brafford

MORGAN, LEWIS &

BOCKIUS LLP

1111 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 739-3000

Mark Dichter

MORGAN, LEWIS &

BOCKIUS LLP

1701 Market Street

Philadelphia, PA 19103

(215) 963-5291

August 23, 2004

31

Stephen A. Bokat

Robin S. Conrad

Ellen Dunham Bryant

National Chamber

Litigation Center

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337