Amicus Curiae Brief — Smith v. City of Jackson

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No. 03-1160 | QErICE OF THE CLERK

In the

Supreme Court of the Gnited States

AZEL P. SMITH, et ai.,

Petitioners,

CITY OF JACKSON, MISSISSIPPI, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF AMICI CURIAE OF THE NATIONAL

EMPLOYMENT LAWYERS ASSOCIATION AND

THE TRIAL LAWYERS FOR PUBLIC JUSTICE

IN SUPPORT OF PETITIONERS

ANGELA DALFEN CATHY VENTRELL-MONSEES

NATIONAL EMPLOYMENT Counsel of Record

LAWYERS ASSOCIATION LAW OFFICES

44 Montgomery Street 3208 Flushing Meadow Terr.

Suite 2080 Chevy Chase, MD 20815

San Francisco, CA 94104 (301) 654-5316

(415) 296-7629

ADELE P. KIMMEL

TRIAL LAWYERS FOR

PUBLIC JUSTICE, P.C.

1717 Massachusetts Avenue, N.W.

Suite 800

Washington, D.C. 20036

(202) 797-8600

—_-__ — — —

Midwest Law Printing Company/Photex — Chicago — (312) 321-0220

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Foe 3 . 3 oe _ | Hs ‘ ar ’ : SUMMARY ne fee eee © © © * © © © *

et a2 ; ARGUMENT ere fee eeweeeeeeneee ee @

da | | I. |THE LONGSTANDING REGULATORY IN-

Ae TERPRETATIONS OF THE ADEA RECOG-

NIZE THE RFOA PROVISION AS AN AP-

pte 6% PROPRIATE DEFENSE TO DISCRIMINA-

ef | TION CAUSED BY FACIALLY NEUTRAL

ip mee ey SS bs the ADEA to Prohibit Age-Neu-

SP ae cepa wn Rg, SIAL | tral Practices That Adversely

a eRe es eS : Affected Older Workers, Unless

hiss ep ! Justified as Job-Related Under

the Section 4(f)(1) Defense. ......

Bis ere: Nice tae tent with the Statute and its

EEOC’s Longstanding Regula-

tions of the RFOA Defense Track

the DOL’s Interpretations. ......

The Regulations of Both the DOL

and EEOC are Entitled to

II. THE CONTEXT AND LANGUAGE OF THE RFOA

PROVISION ESTABLISH IT AS AN AFFIRMATIVE

DEFENSE TO A VIOLATION OF § 4(a) CAUSED

BY A NON-AGE FACTOR. ..........--+000: 15

A. The OWBPA Exemplifies Congress’ Intent

that the Provisions in ADEA § 4(f) Do Not

Define the Act’s Prohibitions. ............. 15

B. Congress Uses the Prefatory Language “Any

Action Otherwise Prohibited” to Signify an

Affirmative Defense. ................-505. 19

C. The Placement of the RFOA Provision Con-

tiguous to the ADEA’s Affirmative Defenses

Strongly Supports Construction of the Provi-

sion as an Affirmative Defense. ............ 20

D. The RFOA Defense Does Not Operate as a

Denial of An Intent to Discriminate ........ 22

III. THE RFOA PROVIDES A FEASIBLE DEFENSE

TO PROVING AGE DISCRIMINATION UNDER

A DISPARATE IMPACT THEORY. .......... 24

A. The Term “Reasonable” in ADEA § 4(f(1)

Requires The Employer to Show That the

Age-Neutral Factor is Job-Related........ 24

B. The Disparate Impact Method of

Proof Insures that Employment Cri-

teria are Job-Related ..............2505: 28

CONCLUSION... ccccccccccccsccccscvccsesces 30

ore,

iii

TABLE OF AUTHORITIES

Cases PAGE(S)

Adams v. Florida Power Corp.,

255 F.3d 1322 (11" Cir. 2001), writ dismissed as

improvidently granted, 535 U.S. 228 (2002) ...4, 25

Adreani v. First Colonial Bankshares Corp.,

154 F.3d 389 (7 Cir. 1998) ...............005. 25

Allen v. Entergy Corp., Inc.,

193 F.3d 1010 (8" Cir. 1999) .................. 28

Barnhart v. Walton,

Ne cn ccee 2,14

Bingler v. Johnson

394 U.S. 741 (1969)... . 2... cece ccc cceee 13

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) ......... 2, 5, 12

DiBiase v. SmithKline Beecham Corp.,

48 F.3d 719 (3d Cir. 1995) .................005, 4

Dothard v. Rawlinson,

EE ee 6

EEOC v. Associated Dry Goods, Corp.,

TE peenccceSecececececcceces 13

EEOC v. Frances W. Parker School,

41 F.3d 1073 (7 Cir. 1994) ..... 2.2.0... 008. 4, 25

Ellis v. United Airlines, Inc.,

73 F.3d 999 (10 Cir. 1996) .............. 4, 10, 25

Evers v. Alliant Techsystems, Inc.,

241 F.3d 948 (8th Cir. 2001) .................. 28

General Dynamics Land Systems, Inc. v. Cline,

Ses ek SED 66 ov 0 \Neeceesenecens 16, 23

Griggs v. Duke Power Co.,

Ge Wee GEESE Geen ccccesuscscnes 6, 8, 12, 27

Hazen Paper Co. v. Biggins,

Se GS GED cccceccencescceseesessees 25

King v. St. Vincent’s Hospital,

Fe 20

Mahoney v. Radio Free Europe / Radio Liberty, Inc.,

818 F. Supp. 1 (D.D.C. 1992), rev'd on other grounds,

47 F.3d 447 (D.C. Cir. 1995) .................. 21

McDonnell Douglas Corp. v. Green,

GEE Ga CEE cecccescccessconensesuese 22

Mullin v. Raytheon Co.,

164 F.3d 606 (1° Cir. 1908) ..........220eeee 4, 25

Public Employees Retirement System v. Betts,

GB Ge BE GREEED ccccocccccccésces 3, 15, 16, 18

Russello v. United States,

' \ § oo Freee. ee 24

Smith v. City of Des Moines,

998 F.3d 1466 (8 Cir. 1996) .................. 28

Smith v. City of Jackson, .

351 F.3d 183 (5" Cir. 2003) ............... 4, 5,13

Smith v. Xerox Corp.,

196 F.3d 358 (2d Cir. 1999) ............eeeee: 28

Texas Department of Community Affairs v. Burdine,

Gee ED cocdedeuessoenbdsdsccediis 22

Trans World Airlines, Inc. v. Thurston,

GPs CGD cecenccdsoskevesénesée 20, 21

UAW v. Johnson Controls, Inc.,

GPs ET ED Cccdccvccoesudedensesdeet 26

United Air Lines, Inc. v. McMann,

Ga es ESE. eacdeudécocceustestesinns 23

United States v. First City Nat'l Bank,

SP GED So edddcscoccoccndecédsees 19

United States v. Mead Corp.,

533 U.S. 218 (2001) ..... 2... eee eee eee eens 14

United States v. Menasche,

SE ED ccccccccestocéccesesésoss 24

Western Air Lines, Inc. v. Criswell,

GIB GB. GO GD oc ccccccccccccccccessces passim

Yellow Transportation, Inc. v. Michigan,

Sy Ce ED ccccecccedccccosonnceadées 13

Zubar v. Allen,

CO CC 13

Statutes

Age Discrimination in Employment Act of 1967,

29 U.S.C. §§ 621 et seq

§ 4(a), 29 U.S.C. § G23(a) ................. passim

§ 4(f(1), 29 U.S.C. § 623(f1) ............. passim

§ 4(f2), 29 U.S.C. § 623(f2) ......... 9, 18, 19, 23

§ 4(fX 2M A), 29 U.S.C. §623(T(2M A)... 2... 62... 23

§ 4(fX 2B), 29 U.S.C. §623(f(2B)............. 17

§ 4(f(2 BXi), 29 U.S.C. § 623(f(2KBMi) ........ 23

§ 4(fX3), 29 U.S.C. § G23(fK3) .... 2... 00... eee 18

Fe 12

rer rere rae 17

Civil Rights Act of 1991, Pub. L. No. 102-166,

§ 105, 105 Stat. 1071 (1991) .................. 27

Older Americans Act Amendments of 1984,

Pub. L. No. 98-459, §802(c\(1),

ED o's n ocd ncaconcesnesesebes 21

Older Workers Benefit Protection Act of 1990,

Pub. L. No. 101-433, §§ 101-03 (1990) .. 3, 15, 17,18

Pub. L. No. 89-602,

§ 606, 78 Stat. 265 (1966) ...............2240-- 6

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq.

§ 703(h), 42 U.S.C. §2000e-2(h)................ 18

§ 703(k 1X AXi), 42 U.S.C. § 2000e-2(k1MAXi) .. 27

eer Pt pee .

vii

Regulations

Department of Labor:

29 C.F.R. § 860.102(b) (1970) ..............44.. 10

29 C.F.R. §§ 860.103-04 (1970) ..............4.4.. 5

29 C.F.R. § 860.103(a) (1970) ..............45. 11

29 C.F.R. § 860.103(b) (1970) ............0405- 11

29 C.F.R. § 860.103(c) (1970) ............2005- 11

29 C.F.R. § 860.103(d) (1970) .............465- 11

29 C.F.R. § 860.103(e) (1970) .............. 10, 11

29 C.F.R. § 860.103(f) (1970) ............045- 6, 10

29 C.F.R. § 860.103(f)(1) (1970) .............6.. 7

29 C.F.R. § 860.103(f)(1i) (1970) ............ 8,12

29 C.F.R. § 860.103(f(1 iii) (1970) ....0........ 8

29 C.F.R. § 860.103(f)(2) (1970) ............60- 6

29 C.F.R. § 860.103(h) (1970) ............0005- 11

29 C.F.R. § 860.104 (1970)... .. 2.2... eee eee eee 11

29 C.F.R. § 860.104(b) (1970) ............. 6,7, 10

Equal Employment Opportunity Commission:

29 C.F.R. § 1625.7 (1981)... 2... eee eee eee 11

29 C.F.R. § 1625.7(a) (1981) ............2 00 eee 11

29 C.F.R. § 1625.7(b) (1981) .............6045- 11

29 C.F.R. § 1625.7(c) (1981) .............0005- 11

29 C.F.R. § 1625.7(d) (1981) ............200e- 12

29 C.F.R. § 1625.7(e) (1981) ............6 cee 11

29 C.F.R. § 1625.7(f) (1981) .... 2.6.2... 0c eee 11

33 Fed. Reg. 9172 (1968) ......... 6. cece eeceeeeees 5

34 Fed. Reg. 322 (1969) .... 2... . ccc cece cee eeeeees 7

44 Fed. Reg. 37,974 (1979) .... 2... cc cece eee eeees 14

44 Fed. Reg. 68,858 (1979) ..........00cccceeeeess 14

viii

46 Fed. Reg. 47,724 (1981)... 2.0.0... ccc eeeeeees 14

Legislative History

113 Cong. Rec. 1377 (1967) reprinted in LEGISLATIVE

HISTORY OF THE AGE DISCRIMINATION IN EMPLOY-

PUGET o6 066 c6sddeeecesaeenecenscéosess 5

113 Cong. Rec. 2467 (1967) reprinted in LEGISLATIVE

HISTORY OF THE AGE DISCRIMINATION IN

BRGPLOVMENT ACT G6 2... cc ccccccccccccccccces 6

113 Cong. Rec. 31,253 (1967) reprinted in LEGISLATIVE

HISTORY OF THE AGE DISCRIMINATION IN EMPLOY-

EEE ED =snnsedddsecdddosbsdedocnceeeas 7

1 LEGISLATIVE HISTORY OF THE OLDER WORKERS

BENEFIT PROTECTION ACT (1990) ......... 14, 16-20

H.R. Rep. No. 90-13054 (1967), reprinted in LEGISLATIVE

HISTORY OF THE AGE DISCRIMINATION IN EMPLOY-

H.R. Rep. No. 101-664 (1990), reprinted in 1

LEGISLATIVE HISTORY OF THE OLDER WORKERS BENE-

FIT PROTECTION ACT OF 1990 (1990) ... 17, 18, 20, 23

Improving the Age Discrimination Law, SENATE SPECIAL

Comm. ON AGING, 93” Cong. 1" Sess. (1973) reprinted

in LEGISLATIVE HISTORY OF THE AGE DISCRIMINATION

Wt EMPLOYMENT ACT 2.2... ccc cccccccccccccce 14

REPORT OF THE SECRETARY OF LABOR TO THE CONGRESS

UNDER SECTION 715 OF THE CIVIL RIGHTS ACT OF

1964, THE OLDER AMERICAN WORKER: AGE DISCRIMI-

NATION IN EMPLOYMENT (JUNE 1965), reprinted in

LEGISLATIVE HISTORY OF THE AGE DISCRIMINATION IN

EMPLOYMENT ACT 16 ..........00c0cceceeeees 6-9

S.1511 Final Substitute: Statement of Managers, 1

LEGISLATIVE HISTORY OF THE OLDER WORKERS BENE-

FIT PROTECTION ACT OF 1990 25 (1990) ...... 16, 18

S. Rep. No. 90-830 (1967), reprinted in LEGISLATIVE

HISTORY OF THE AGE DISCRIMINATION IN EMPLOY-

REE «cocccocndecetecsocecenceuceestses 21

S. Rep. No. 101-263 (1990), reprinted in 1 LEGISLATIVE

HISTORY OF THE OLDER WORKERS BENEFIT PROTEC-

TION ACT OF 1990 320 (1990) ......... 17, 18, 20, 23

Law Reviews and Treatises

BLACK’S LAW DICTIONARY (5th ed. 1979) ........ 25, 28

HOWARD C. EGLIT, AGE DISCRIMINATION

(BG OB. BBG) oc cccccccccccccccceccccecces 21, 24

Keith R. Fentonmiller, The Continuing Validity of

Disparate Impact Analysis for Federal -Sector Age

Discrimination Claims, 47 AMER. UNIV. L. REV.

SIGE GED on ccccccedeceveoncsocceseccsessede 9

Steven J. Kaminshine, The Cost of Older Workers,

Disparate Impact, and the Age Discrimination

in Employment Act, 42 FLORIDA L. REV. 229

SEED oc cbccccocecéedcesseteteeéeeoéosses 9, 26

L. STEVEN PLATT & CATHY VENTRELL-MONSEES, AGE

DISCRIMINATION LITIGATION (2000) ............ 26

Mack A. Player, Wards Cove Packing or Not Wards

Cove Packing? That is Not the Question: Some

Thoughts on Impact Analysis Under the Age

Discrimination in Employment Act, 31 U. RICH. L.

et SE oc we ceusdensednsdtenedéGwndes 22, 26

INTEREST OF AMICI CURIAE'

The National Employment Lawyers Association (NELA),

founded in 1985, is a voluntary organization of over 2,000

attorneys who specialize in representing individuals in

workplace controversies. It is the country’s only profes-

sional membership organization comprised of lawyers who

primarily represent employees in cases involving employ-

ment discrimination, employee benefits, wrongful dis-

charge, and other employment-related matters. NELA has

filed numerous amicus curiae briefs before the U.S.

Supreme Court and the federal courts regarding the

proper interpretation and application of employment dis-

crimination laws to ensure that the laws are fully enforced

and that the rights of workers are fully protected.

Trial Lawyers for Public Justice (TLPJ) is a national

public interest law firm dedicated to using trial lawyers’

skills and resources to advance the public good. TLPJ

specializes in precedent-setting and socially significant

individual and class action litigation. Litigating through-

out the federal and state courts, TLPJ prosecutes cases

designed to advance civil rights and civil liberties, workers’

rights, consumer and victims’ rights, environmental

protection and safety, toxic torts, the preservation of the

civil justice system, and the protection of the poor and

powerless. TLPJ is dedicated to fighting discrimination in

the workplace, schools, and places of public accommoda-

tion. It has litigated numerous discrimination cases under

federal civil rights statutes.

' The consents of the parties have been filed with the Clerk of the

Court. In compliance with Rule 37.6 of this Court, amici curiae

National Employment Lawyers Association (NELA) and Trial

Lawyers for Public Justice, P.C. (TLPJ) state that no counsel for

either party authored any portion of this brief. No persons other

than the amici curiae, its members, or its counsel made a

monetary contribution to the preparation and submission of this

brief.

Based on NELA’s and TLPJ’s experience and expertise in

litigating discrimination cases, NELA and TLPJ believe

that to combat discrimination in the workplace effectively,

employers must be subject to liability for facially neutral

practices that have an unjustified disparate impact based

on protected characteristics. This holds true for discrimi-

nation in violation of the Age Discrimination in Employ-

ment Act (ADEA), just as it does for discrimination in

violation of Title VII of the Civil Rights Act. Disparate

impact theory provides an important mechanism for

policing arbitrary practices and stereotypes, which is

critical to achieving the goals of the ADEA.

SUMMARY OF ARGUMENT

The ADEA’s “reasonable factors other than age” (RFOA)

provision, 29 U.S.C. § 623(f)(1), has long been recognized

by the Department of Labor (DOL) and Equal Employment

Opportunity Commission (EEOC) as a defense to a claim

that a facially neutral practice discriminates based on age.

The DOL’s interpretations applying the RFOA provision to

discriminatory tests and physical fitness standards are

entitled to considerable deference not only because they

were issued contemporaneously with the ADEA’s effective

date, but because they were written by the same adminis-

tration that drafted the ADEA and the Wirtz Report

documenting the problems of age discrimination in both

facially discriminatory and neutral practices. See Zubar v.

Allen, 396 U.S. 168, 192 (1969). EEOC’s subsequent

regulations are also entitled to deference under Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467

U.S. 837 (1984), because they continued the substance of

the DOL’s interpretations, and are a reasonable and

longstanding construction of the ADEA. See Barnhart v.

Walton, 535 U.S. 212, 220 (2002).

Construing the RFOA provision to limit the ADEA’s

prohibitions to intentional discrimination, as the court

below did, runs afoul of the clear directive by Congress

that the ADEA’s defenses do not define the discrimination

deemed to be “arbitrary” under the statute. In overruling

Public Employees Retirement System v. Betts, 492 U.S. 158

(1989), and enacting the Older Workers Benefit Protection

Act of 1990 (OWBPA), Pub. L. No. 101-433, §§ 101-03

(1990), Congress made clear that the ADEA’s prohibitions

reach all forms of discrimination and that its defenses

establish the standards for determining when discrimina-

tion may be excused.

Adherence to Congress’ directives as to the proper

statutory construction of the ADEA leads to the conclusion

that the ADEA prohibits discrimination in facially neutral

practices, with the RFOA defense determining whether

such discrimination may be excused. The specific language

of the RFOA provision “to take any action otherwise

prohibited” together with “factors other than age” pre-

sumes that a violation of ADEA Section 4(a) has been

established due to the adverse effects on older employees

of a non-age related practice. The placement of the RFOA

provision with the affirmative defenses in ADE. . Section

4(f)(1), 29 U.S.C. § 623(f)(1), strongly supports the conclu-

sion that the RFOA is an appropriate defense to a claim

that a facially neutral practices violates ADEA Section

4(a), 29 U.S.C. § 623(a).

The reasonableness qualifier of the RFOA defense

requires employers to prove that the neutral employment

standard is job-related and consistent with business

necessity. Establishing that a practice is an RFOA would

demonstrate that the criteria are fair and reasonable

measures of one’s ability to perform the job. Allowing older

employees to prove age discrimination using the disparate

impact method insures that practices that adversely affect

older workers are subjected to an objective scrutiny to

eliminate arbitrary discrimination in the workplace.

ARGUMENT

I. THE LONGSTANDING REGULATORY INTER-

PRETATIONS OF THE ADEA RECOGNIZE THE

RFOA PROVISION AS AN APPROPRIATE DE-

FENSE TO DISCRIMINATION CAUSED BY

FACIALLY NEUTRAL PRACTICES.

According to the circuit court decisions rejecting dispa-

rate impact theory in ADEA cases, one of the primary

obstacles is the reasonable factors other than age provision

in ADEA § 4(f)(1).? Based on a cursory analysis, the circuit

courts reason that the RFOA provision precludes chal-

lenges to facially neutral practices by limiting the scope of

the ADEA’s prohibitions in § 4(a) to intentional discrimi-

nation.

All of the courts that reject disparate impact theory in

ADEA cases, however, fail completely to mention the

Department of Labor interpretations issued contemporane-

ously with the ADEA that applied the RFOA as an affir-

mative defense to a showing that a facially neutral prac-

tice violated the statute.’ The court below curtly dismissed

2 See Smith v. City of Jackson, 351 F.3d 183, 190 (5" Cir. 2003);

Adams v. Florida Power Corp., 255 F.3d 1322, 1325-26 (11" Cir.

2001), writ dismissed as improvidently granted, 535 U.S. 228

(2002) ; Mullin v. Raytheon Co., 164 F.3d 696, 700-01 (1" Cir.

1999); Ellis v. United Airlines, Inc., 73 F.3d 999, 1006-07 (10 Cir.

1996); DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 732 (3d

Cir. 1995); EEOC v. Frances W. Parker School, 41 F.3d 1073,

1076-77 (7 Cir. 1994).

- =f

the longstanding regulations of the Equal Employment

Opportunity Commission that expressly recognized that

the ADEA applies to disparate impact claims with the

RFOA as the appropriate defense. Smith v. City of Jack-

son, 351 F.3d 183, 189 n. 5 (5" Cir. 2003).

The regulations of both the Department of Labor and the

EEOC are clearly relevant and should be given consider-

able deference, rather than wholly ignored as the lower

courts have done. The longstanding regulations of both

agencies construe the ADEA to prohibit discrimination in

facially neutral practices subject to a sufficient business

justification under the RFOA defense. In other words, the

regulations state the elements of a defense in a disparate

impact method of proof for ADEA cases. Unless the

regulations are shown to be unreasonable, they are

entitled to great deference under Chevron U.S.A. v.

Natural Resources Defense Council, Inc., 467 U.S. 837

(1984).

A. The DOL Regulations Interpreted the ADEA to

Prohibit Age-Neutral Practices That Adversely

Affected Older Workers, Unless Justified as

Job-Related Under the § 4(f)(1) Defense.

Just days after the ADEA took effect, the Department of

Labor issued interpretive regulations of the new statute.

33 Fed. Reg. 9172 (1968), 29 C.F.R. §§ 860.103-04 (1970).

The contemporaneous DOL interpretations provide

significant insight into the meaning and application of the

RFOA provision in ADEA § 4(f)(1), 29 U.S.C. § 623(f(1),

particularly since they were written by DOL Secretary

Wirtz, whose admiristration also drafted the bill that

became the ADEA to implement the recommendations

contained in his 1965 report to Congress. See 113 Cong.

Rec. 1377 (1967) reprinted in LEGISLATIVE HISTORY OF THE

AGE DISCRIMINATION IN EMPLOYMENT ACT 62-63, 68-69

(hereinafter “LEG. HIST.”).*

The DOL interpreted the RFOA provision as an affirma-

tive defense to discrimination caused by non-age related

factors. As examples of “differentiations based on reason-

able factors other than age,” DOL identified physical

fitness standards, 29 C.F.R. § 860.103(f), employee tests,

29 C.F.R. § 860.104(b), quantity or quality of production

and educational requirements. 29 C.F.R. § 860.103(f)(2).

These practices are the very types of facially neutral

practices that have since been commonly challenged under

the disparate impact method of proof in Title VII cases.

See, e.g., Griggs v. Duke Power Co., 401 U.S. 424 (1971)

(tests); Dothard v. Rawlinson, 433 U.S. 321 (1977) (physi-

cal fitness standards).

Years before this Court recognized that Title VII prohib-

ited discrimination caused by facially neutral practices

such as employee tests, the DOL interpreted the ADEA to

prohibit employee testing unless the test “specifically

* REPORT OF THE SECRETARY OF LABOR TO THE CONGRESS UNDER

SECTION 715 OF THE CIVIL RIGHTS ACT OF 1964, THE OLDER

AMERICAN WORKER: AGE DISCRIMINATION IN EMPLOYMENT (JUNE

1965), reprinted in LEG. HIST., at 16-41 (1965) (Hereinafter cited

as the “WIRTZ REPORT”). Following the Wirtz Report, Congress

directed the Secretary of Labor to submit legislative recommenda-

tions to include:

Provisions specifying appropriate enforcement procedures, a

particular administering agency, and the standards, coverage,

and exemptions, if any, to be included in the proposed

enactment.

Pub. L. No. 89-602, § 606, 78 Stat. 265 (1966). In response to

Congress’ request, Senator Yarborough introduced the “Presi-

dent’s recommendation” as S. 830 on February 3, 1967. 113 Cong.

Rec. 2467-2476 (1967), reprinted in LEG. HIST., at 66, 68-70.

related to the requirements of the job, is fair and reason-

able, is administered in good faith and without discrimina-

tion on the basis of age, and is properly evaluated.” 34 Fed.

Reg. 322 (January 9, 1969); 29 C.F.R. § 860.104(b) (1970).

Citing the advantage that younger test takers would have

over older test takers, the regulations imposed the burden

on the employer to justify such tests as job-related “to

ensure that the test is for a permissible purpose.” Jd.

The Wirtz Report specifically found that educational and

testing requirements disadvantaged older workers. (“Any

formal employment standard which requires, for example,

a high school diploma will obviously work against the

employment of many older workers—unfairly. . . .” WIRTZ

REPORT at 3). Senator Yarborough, the floor manager of

the ADEA, also believed that the RFOA provision would

apply to arbitrary discrimination in employment testing:

For example, if a test shows that a man cannot do

certain things. . . . If the job requires a certain speed

and the differentiation is based upon factors other than

age, the law would not apply.

113 Cong. Rec. 31,253 reprinted in LEG. HIST. at 144.

A similar parallelism exists between the regulations’

application to physical fitness standards and the Wirtz

Report’s documentation of the arbitrariness of many

physical requirements. Section 860.103(f)(1) of the DOL’s

regulations recognized that physical fitness standards may

be a “reasonable factor other than age.” The regulation

tracked the findings of the Wirtz Report, which docu-

mented how employers had commonly used fitness require-

ments to restrict the hiring of older workers, yet had no

basis for such requirements. WIRTZ REPORT at 4. The

regulation interpreted the RFOA defense to permit fitness

requirements if “such standards are reasonably necessary

for the specific work to be performed and are uniformly

and equally applied to all applicants for the particular job

category, regardless of age.” 29 C.F.R. § 860.103(f)(1)i)

(1970). The defense would not justify “an employer's

assumption that every employee over a certain age in a

particular type of job usually becomes physically unable to

perform... .” 29 C.F.R. § 860.103(f)(1)iii) (1970).

If the regulations had only required uniform and equal

application of fitness standards to all ages to satisfy the

RFOA defense, the defense could be viewed as limited to

intentional discrimination. But by requiring employers to

demonstrate that fitness standards were also “reasonably

necessary” and job-related, the regulations applied the

RFOA defense to unintentional discrimination caused by

neutral practices.

Most importantly, the DOL regulations clearly set forth

a job-related standard in determining the reasonableness

of the factors other than age upon which the employer

acted. The interpretation of the RFOA provision in the

DOL regulations is remarkably similar and prescient to

the elements of an employer’s defense to a disparate

impact claim set forth by this Court in Griggs v. Duke

Power, 401 U.S. 424 (1971). As the Court emphasized in

Griggs, “any tests used must measure the person for the

job and not the person in the abstract.” 401 U.S. at 436.

That is precisely how the DOL interpreted the require-

ments of the RFOA provision of the ADEA.

B. The DOL Regulations Are Consistent with the

Statute and its Legislative History.

A thorough study of the 1968 DOL regulations, the Wirtz

Report, and the ADEA’s prohibitions and defenses reveals

a remarkable parallelism that can be traced to Secretary

Wirtz’s extensive involvement in the development of each

document.* The Wirtz Report found that explicit age limits

precluding the hiring of workers above a certain age were

the most common and obvious form of age discrimination.

WIRTZ REPORT at 6. The Report also identified the existence

of several “institutional arrangements that indirectly

restrict(ed] the employment of older workers.” WIRTZ

REPORT at 15. The Report in effect recognized the different

forms in which age discrimination appeared: facially

discriminatory practices and facially neutral practices.

The Wirtz Report examined “institutional arrangements”

that operated to restrict the employment of older persons,

such as: (1) “arbitrary rules which ignore individual differ-

ences,” (2) “[p]romotion-from-within-policies,” (3) seniority

systems, (4) workers’ compensation laws, and (5) private

pension, health, and insurance plans. WIRTZ REPORT at 15-

17.

By providing specific defenses® that corresponded to

discrimination in the institutional arrangements set forth

in the Wirtz Report,’ Congress must have intended the

ADEA’s prohibitions to reach such discrimination. The

® See See Keith R. Fentonmiller, The Continuing Validity of

Disparate Impact Analysis for Federai-Sector Age Discrimination

Claims, 47 AMER. UNIV. L. REV. 1071, 1099-1107 (1998) (in depth

examination of Wirtz Report, development of ADEA’s prohibitions

and defenses, and DOL Regulations).

®* The ADEA does not explicitly deal with the issue of workers’

compensation laws, which the Wirtz Report mentions as one

problematic area. See Fentonmiller, supra, note 5 at 1102. The

two defenses in ADEA § 4(f(2), 29 U.S.C. § 623(f(2), aligned with

the last two institutional arrangements discussed in the Wirtz

Report, to deal with seniority systems and employee benefit plans.

7 See also Steven J. Kaminshine, The Cost of Older Workers,

Disparate Impact, and the Age Discrimination in Employment Act,

42 FLORIDA L. REV. 229, 295-96 (1990).

inclusion of these defenses in the statute negates the

argument that Congress chose to deal with facially neutral

practices that disadvantaged older workers through

“programmatic measures.” See Ellis v. United Airlines,

Inc., 73 F.3d 999, 1009 (10 Cir. 1996).

The first defense in ADEA § 4(f(1) corresponds to

explicit age limits, which would be unlawful except in

narrow circumstances defined by the bona fide occupa-

tional defense (BFOQ). 29 U.S.C. § 623(f)(1). See Western

Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985). The DOL

interpretive regulations provided examples of possible

BFOQs consistent with the statute and the Wirtz Report.

The second defense, the RFOA provision, responds to

“{ajrbitrary rules which ignore[d] individual differences”

and “[p]romotion-from-within-policies.” WIRTZ REPORT at

15. The DOL regulations continued this parallelism with

the statute and the Wirtz Report, providing detailed

examples of “arbitrary rules” that would be subject to the

RFOA provision, specifically identifying employee tests

and physical fitness requirements. 29 C.F.R. §§ 860.103(f),

860.104(b) (1970).

The DOL interpretations further stated that both the

BFOQ and RFOA defenses in ADEA § 4(f)(1) “must be

construed narrowly, and the burden of proof in establish-

ing the applicability of the exception will rest upon the

employer... .” 29 C.F.R. §§ 860.102(b), 860.103(e) (1970).

The DOL interpreted the ADEA to prohibit discrimina-

tion in age-neutral, as well as explicitly age-based, policies

and practices. The regulations recognized the parallelisms

of the Wirtz Report between the problems of facially

discriminatory and facially neutral arrangements, and the

statutory defense: designed to address these problems.

C. EEOC’s Longstanding Regulations of the RFOA

Defense Track the DOL’s Interpretations.

Since EEOC assumed jurisdiction over the ADEA in

1979, it too has interpreted the ADEA to prohibit discrimi-

nation in facially neutral practices subject to sufficient

business justification by the RFOA defense. 29 C.F.R.

§ 1625.7 (1981). A close reading of EEOC’s regulations

reveals that they essentially track DOL’s interpretations

and condense them by eliminating the examples DOL had

provided.®

EEOC addressed the general application of the RFOA

defense to neutral standards, such as tests, in section (d)

of its regulations:

When an employment practice, including a test, is

claimed as a basis for different treatment of employees

or applicants for employment on the grounds that it is

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

® Section (a) of both agencies’ regulations recites the statutory

provision. See 29 C.F.R. § 1625.7(a) (1981); 29 C.F.R. § 860.103(a)

(1970). Section (b) of EEOC’s regulations condenses sections (b)

and (d) of DOL’s interpretations. Compare 29 C.F.R. § 1625.7(b)

(1981) with 29 C.F.R. §§ 860.103(b), (d) (1970). Section (c) of

EEOC’s regulation tracks DOL’s section (c) to emphasize that the

RFOA provision does not apply when age is a limiting criterion.

Compare 29 C.F.R. § 1625.7(c) (1981) with 29 C.F.R. § 860.103(c)

(1970). Section (e) of both agencies’ interpretations imposes the

burden of proof on the employer to establish the RFOA defense.

Compare 29 C.F.R. § 1625.7(e) (1981) with 29 C.F.R. § 860.103(e)

(1970). Finally, section (f) of the EEOC’s regulations corresponds

to section (h) of DOL’s regulations. Compare 29 C.F.R. § 1625.7(f)

(1981) with 29 C.F.R. § 860.103(h)'{1970). EEOC eliminated the

additional examples of RFOAs that DOL had included in 29 C.F.R.

§ 860.104, but referenced the example of discriminatory tests in

29 C.F.R. § 1625.7(d).

adverse impact on individuals within the protected age

group, it can only be justified as a business necessity.

Tests which are asserted as “reasonable factors other

than age” will be scrutinized in accordance with the

standards set forth in Part 1607 of this Title.

29 C.F.R. § 1625.7(d) (1981).

For the first time, EEOC used the term “adverse impact”

to describe the discrimination caused by a facially neutral

practice, and “business necessity” to describe the job-

related requirement of the RFOA defense. Of course such

terms were unknown at the time the DOL issued its

regulations in 1968. By the time EEOC assumed jurisdic-

tion over the ADEA, these terms had come into the legal

lexicon as the elements of proving discrimination under

the disparate impact theory. See Griggs v. Duke Power Co.,

401 U.S. 424, 431, 436 (1971).

To suggest that EEOC’s use of these terms constitutes a

significant departure from DOL’s regulations is to place

form over substance at the highest degree. Despite the

labels EEOC used in its regulations, the essence of its

interpretation of the RFOA provision tracked the DOL’s

interpretation that the RFOA defense applied to facially

neutral practices unless justified “as reasonably necessary

for the specific work to be performed.” See 29 C.F.R.

§ 860.103(f1Xi) (1970).

D. The Regulations of Both the DOL and EEOC

are Entitled to Chevron Deference.

Since Congress gave the DOL and EEOC the authority

to issue rules and regulations to implement the ADEA, see

29 U.S.C. § 628, their interpretations are entitled to great

deference under Chevron U.S.A. v. Natural Resources

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

because nothing in the text of the ADEA clearly precludes

its application to facially neutral policies, the agencies’

interpretations must receive deference unless they are

unreasonable. See Yellow Transportation, Inc. v. Michigan,

537 U.S. 36, 46 (2002). Yet, the court below did not even

consider the DOL’s regulations and disregarded EEOC’s

interpretations as not entitled to Chevron deference,

finding a lack of “significant analysis.” Smith v. City of

Jackson, 351 F.3d 183, 189-n. 5 (5" Cir. 2003).

Although both agencies designated their ADEA regula-

tions as “interpretive rules,” Chevron deference is still

appropriate. This Court previously found the consistent

interpretive rules of ADEA § 4(f(1) by DOL and EEOC as

persuasive authority. See Western Airlines Inc. v. Criswell,

472 U.S. 400, 412 (1985). NELA-and TLPJ submit that

both the DOL and EEOC regulations should be recognized

as reasonable and authoritative constructions of the ADEA

for several reasons.

First, the DOL interpretations were issued contempora-

neously with the effective date of the statute, entitling

them to substantial deference. See Bingler v. Johnson, 394

U.S. 741, 749-50 (1969). Second, the DOL regulations were

drafted and issued by Secretary Wirtz, who also authored

the administration’s bill that became the ADEA and the

report to Congress prompting enactment of the ADEA. See,

e.g., Zubar v. Allen, 396 U.S. 168, 192 (1969) (departmen-

tal interpretation of a statute carries the most weight

when specifically interpreted by administrators who

participated in its drafting). Third, the interpretations are

consistent with the statute and its legislative history as

demonstrated by the parallel treatment of discrimination

caused by facially neutral practices such as employment

and fitness tests. Fourth, the DOL regulations remained

consistent and unchanged throughout the DOL’s jurisdic-

tion of the ADEA. See EEOC v. Associated Dry Goods,

Corp., 449 U.S. 590, 600 (1981) (contemporaneous con-

struction deserves special deference when it has remained

consistent over a long period of time). Finally, Congress

was clearly aware of the DOL’s interpretations of the

RFOA and did not act to alter the agency’s construction of

the statute when considering other amendments to the

ADEA. See, e.g., Improving the Age Discrimination Law,

SENATE SPECIAL COMM. ON AGING, 93™ Cong. 1" Sess. at

12, 33-44 (1973) reprinted in LEG. HIST., at 229, 238-244

(stated that RFOA applied to tests and included DOL’s

regulations in report).

For similar reasons, EEOC’s regulations are also entitled

to Chevron deference. Contrary to the Fifth Circuit’s view,

EEOC engaged in a thorough study of the ADEA’s inter-

pretations and undertook a formal rulemaking process.

Two days before EEOC assumed jurisdiction of the ADEA,

the agency issued notice in the Federal Register that it

had undertaken a complete review of all of the DOL’s

interpretations of the ADEA. 44 Fed Reg. 37,974 (1979).

Five months later, EEOC issued proposed interpretations

of the ADEA for notice and comment. 44 Fed Reg. 68,858

(1979). After careful review of the comments, EEOC made

changes to the proposed regu'ations. 46 Fed. Reg. 47,724

(1981).

EEOC’s regulations reflect careful deliberation and a

“relatively formal administrative procedure,” which

support full Chevron deference. United States v. Mead

Corp., 533 U.S. 218, 230 (2001). Furthermore, Congress

endorsed EEOC’s regulations and court decisions conclud-

ing that the RFOA is an affirmative defense. See 1 LEGIS-

LATIVE HISTORY OF THE OLDER WORKERS BENEFIT PROTEC-

TION ACT, at 253-54, 348-49 (1990) (hereinafter cited as

“OWBPA LEG. HIST.”). Finally, Chevron deference is

warranted because EEOC’s interpretations have been

consistent and longstanding. See Barnhart v. Walton, 535

U.S. 212, 220 (2002).

Il. THE CONTEXT AND LANGUAGE OF THE RFOA

PROVISION ESTABLISH IT AS AN AFFIRMA-

TIVE DEFENSE TO A VIOLATION OF § 4(a)

CAUSED BY A NON-AGE FACTOR.

Section 4(f)(1) of the ADEA states:

It shall not be unlawful for an employer, employ-

ment agency, or labor organization ——

(1) to take any action otherwise prohibited under

subsection (a), (b), (c), or (e) of this section where age

is a bona fide occupational qualification reasonably

necessary to the normal operation of the particular

business, or where the differentiation is based on

reasonable factors other than age... .

29 U.S.C. § 623(f)(1) (2000) (emphasis added).

A. The OWBPA Exemplifies Congress’ Intent that

the Provisions in ADEA § 4(f) Do Not Define the

Act’s Prohibitions.

The proper analysis to apply in construing the ADEA’s

defenses related to the Act’s prohibitions and purposes is

obviously central to the Court’s resolution of this case.

Courts unwilling to accept a disparate impact theory in

ADEA cases make a fundamental error in construing the

RFOA provision to narrow the Act’s prohibitions.

NELA and TLPJ submit that Congress clearly precluded

the statutory construction of the ADEA used by the court

below, when it resoundingly rejected the same approach in

overruling Public Employees Retirement System v. Betts,

492 U.S. 158, 181 (1989), and enacting the Older Workers

Benefit Protection Act of 1990, Pub. L. No. 101-433,

$§ 101-03 (1990) (“OWBPA”). In Congress’ view, the proper

analysis to apply is to broadly define discrimination in the

ADEA’s prohibitions and to use the Act’s defenses to set

the standards for determining when that discrimination

may be excused. Applying Congress’ view of the proper

construction of the ADEA, the ADEA’s prohibitions reach

facially neutral practices and the RFOA provision sets

forth an affirmative defense which can exempt certain

justifiable practices.

This Court acknowledged in General Dynamics Land

Systems, Inc. v. Cline, 124 S. Ct. 1236, 1245 n. 7 (2004),

that Congress revised the judicial construction of the

ADEA used in Public Employees Retirement System v.

Betts, 492 U.S. 158, 181 (1989) (. . . “with the 1990 amend-

ments it meant to overrule Betts.”). Congress could not

have been clearer that the Betts approach to construing

the ADEA was wrong. The OWBPA “explicitly and com-

pletely rejects both the reasoning and the holding in

Betts.” 1 OWBPALEG. HIST., at 20 (Statement of Managers

Explaining the Bill).

In enacting the OWBPA, Congress expressly disagreed

with and overruled both the reasoning and conclusion in

Betts that ADEA § 4(f)(2) merely redefined the conduct

prohibited by ADEA § 4(a). In Betts, the Court interpreted

the employee benefit plan prov’sion in ADEA § 4(f)(2) to

“redefine[ ] the elements of a plaintiff's prima facie case

instead of establishing a defense to what otherwise would

be a violation of the Act.” 492 U.S. at 181. Relying as well

on the ADEA’s purpose to prohibit arbitrary discrimina-

tion, the Court reasoned that discrimination in employee

benefits was not the type of arbitrary discrimination that

was intended to be covered in the genera! prohibitions of

ADEA § 4(a).

In overruling Betts, the OWBPA rejected a narrow

reading of the ADEA’s purpose to prohibit “arbitrary

discrimination” as a basis for restricting the reach of the

ADEA’s prohibitions. Congress confirmed that the

a Na

“ADEA’s purpose of eliminating arbitrary age discrimina-

tion in employment includes the elimination of age dis-

crimination in all forms of employee benefits.” 1 OWBPA

LEG. HIST., at 20.

The OWBPA also provides clear congressional confirma-

tion that the ADEA’s prohibitions are to be interpreted

“like the comparable provisions of Title VII” because th~

ADEA’s prohibitions were taken in haec verba from Title

VII. H.R. Rep. No. 101-664, at 33 (1990), reprinted in 1

OWBPA LEG. HIST., at 240 (1990). To reinforce the contin-

ued parallelism between the ADEA’s prohibitions and Title

VII’s prohibitions, Congress deliberately did not amend

ADEA § 4(a) in 1990. Id. Instead, to correct the Court’s

holding that § 4(a) did not cover discrimination in em-

ployee benefits, Congress added a provision to the defini-

tions section of the statute to include employee benefits

within the meaning of the § 4(a) phrase “compensation,

terms, conditions, or privileges of employment.” Pub. L.

No. 101-433, §§ 102 (1990), codified at 29 U.S.C. § 630(1).

To correct the Court’s reasoning and holding that

discrimination in employee benefits was not arbitrary,

Congress amended the ADEA’s defense for employee

benefit plans, 29 U.S.C. § 623(f(2B) (2000), not the

ADEA’s prohibitions. The defense defines the circum-

stances under which an employer could justify age discrim-

ination. See S. Rep. No. 101-263, at 17-18 (1990), reprinted

in 1 OWBPA LEG. HIST., at 336-37 (1990); H.R. Rep. No.

101-664, at 33-34 (1990), reprinted in 1 OWBPA LEG.

HIST., at 240-41 (1990). In amending ADEA § 4(f2),

Congress empi asized that the defense “provides a sound

mechanism for harmonizing two purposes of the ADEA .. .:

eradicating arbitrary discrimination based on age and

promoting the hiring of older persons.” éd.

Finally, the OWBPA overturns the Court’s conclusion

that ADEA § 4(f)(2) was a definitional provision and not a

defense, by explicitly imposing the burden of proof on the

employer to establish the elements of § 4(f)(2). Pub. L. No.

101-433, § 103 (1990), codified as 29 U.S.C. § 623(f)(2). In

Betts, the Court reasoned that the seniority system

provision in ADEA § 4(f(2), like the seniority system

provision in Title VII § 703(h), 42 U.S.C. § 2000e-2(h), was

a definitional provision and not an affirmative defense.

Betts, 492 U.S. at 181-82. The OWBPA specifically over-

turns this reasoning by reiterating that all of the defenses

in ADEA § 4(f)(2) are true affirmative defenses on which

the employer bears the burden of persuasion to establish

the elements of the defense. See S.1511 Final Substitute:

Statement of Managers, 1 OWBPA LEG. HIST., at 25

(1990).°

The OWBPA exemplifies the proper analysis to use in

determining whether the RFOA provides a defense in the

disparate impact methodology of proof. In contrast,

construing the RFOA to redefine the ADEA’s prohibitions

against arbitrary discrimination repeats the erroneous

judicial construction in Betts that was rejected by the

OWBPA. The statutory analysis directed by Congress in

the OWBPA leads to the conclusion that the RFOA

provision operates as an affirmative defense to a claim of

discrimination caused by a facially neutral practice.

* The versions of the OWBPA prior to final passage included

ADEA §§ 4(f(1) and (3), and specifically imposed the burden of

proof for ADEA § 4(f1) on the employer. See S. Rep. No. 101-263,

at 2 (1990), reprinted in 1 OWBPA LEG. HIST., at 321 (1990); H.R.

Rep. No. 101-664, at 3 (1990), reprinted in 1 OWBPA LEG. HIST.,

at 210 (1990). The final Statement of Managers deleted reference

to ADEA §§ 4(f1) and (3) from the bills because the Betts decision

did not interpret those provisions. See 8.1511 Final Substitute:

Statement of Managers, id. at 25.

B. Congress Uses the Prefatory Language “Any

Action Otherwise Prohibited” to Signify an

Affirmative Defense.

The RFOA defense begins with a specific proviso: “to take

any action otherwise prohibited.” 29 U.S.C. § 623(f)(1).

This prefatory phrase means that the RFOA provision does

not come into play until a violation of an ADEA prohibition

has been established. When a party seeks to have a

violation excused by asserting an exception to liability, °

that party typically bears the burden of proving that its

conduct falls within the exception. See United States v.

First City Nat'l Bank, 386 U.S. 361, 366 (1967).

Congress views the prefatory language “to take any

action otherwise prohibited” as creating an affirmative

defense. Based on its understanding of this proviso,

Congress added this very language to ADEA § 4(f)(2) in the

OWBPA, to clearly make it an affirmative defense. 1

OWBPA LEG. HIST., at 253-54, 348-49.

Prior to 1990, ADEA § 4(f)(2) did not include the prefa-

tory language from ADEA § 4(f)(1). ADEA § 4(f)(2) stated:

It shall not be unlawful for an employer, employment

agency, or labor organization . . . to observe the terms

of a bona fide seniority system or any bona fide em-

ployee benefit plan. . . which is not a subterfuge to

evade the purposes of this Act. ...

29 U.S.C. § 623(f)(2) (1989).

The OWBPA’s amendment to ADEA § 4(f)(2) adding the

prefatory language from § 4(f)(1) is important because it

reflects Congress’ understanding of the meaning and effect

of a key phrase in § 4(f)(1). Congress stated:

the language of section 4(f) that is commonly under-

stood to signify an affirmative defense (“It shall not be

unlawful ... to take any action otherwise prohibited” by

the ADEA (emphasis added) has been incorporated as

part of section 4(f)(2). ...

1 OWBPA LEG. HIST., at 348. Congress used the prefatory

language from § 4(f)(1) to make unmistakably clear that

the addition of this language to § 4(f(2) imposed two

conditions: (1) the condition precedent of a violation of

§ 4(a), and (2) the employer bore the burden of establishing

the elements of the defense. See S. Rep. No. 101-263, at 29-

30 (1990), reprinted in 1 OWBPA LEG. HIST. at 348-49;

H.R. Rep. No. 101-664 (1990), at 46-47, reprinted in 1

OWBPA LEG. HIST., at 253-54.

In so doing, Congress confirmed its understanding that

the prefatory language in § 4(f)(1) had the same effect.

Congress also expressed its approval of the circuit court

decisions and EEOC’s regulations concluding that the

reasonable factors other than age exception included in

§ 4(f)(1) was an affirmative defense for which the employer

bears the burden of proof. Id.

C. The Placement of the RFOA Provision Contigu-

ous to the ADEA’s Affirmative Defenses

Strongly Supports Construction of the Provi-

sion as an Affirmative Defense.

The placement of a provision within the context of the

statute provides particular insight into its meaning. King

v. St. Vincent’s Hospital, 502 U.S. 215, 221 (1991) (“[TJhe

meaning of statutory language, plain or not, depends on

context.”). The RFOA provision of the ADEA is sandwiched

between the BFOQ provision and the foreign workplace

provision. This Court has repeatedly held that the BFOQ

provision is an affirmative defense. Western Air Lines, Inc.

v. Criswell, 472 U.S. 400, 416 n. 24 (1985); Trans World

Airlines, Inc. v. Thurston, 469 U.S. 111, 122 (1985). The

foreign workplace provision has also been recognized as an

affirmative defense.” The contiguous placement of the

RFOA provision with these other affirmative defenses

certainly suggests that it too is an affirmative defense.

The BFOQ and RFOA provisions have been juxtaposed

to each other from the earliest drafts of the ADEA pro-

posed by the Johnson Administration. See H.R. Rep. No.

90-13054 & S. Rep. No. 90-830 (1967), reprinted in LEG.

HIST., at 94 & 127. Their contiguous relationship is no

accident, and implies that the defenses were joined

together to be interpreted similarly. See EGLIT, AGE

DISCRIMINATION, § 5.16 at 5-64-67 (2d ed. 1995).

The first part of ADEA § 4(f)(1) provides an affirmative

defense to classifications that are facially discriminatory.

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

122. The action “otherwise prohibited” by § 4(a) is the

explicit use of age in the terms of the policy or practice. Id.

The BFOQ defense in § 4(f)(1) provides the appropriate

response to intentional discrimination because the em-

ployer admits it used age as a qualification, but seeks to

justify its action by showing that the use of age as a

criterion is bona fide and reasonably necessary to the

operation of the business. Western Air Lines, Inc. v.

Criswell, 472 U.S. at 411.

The “reasonable factors other than age” defense provides

the second part of ADEA § 4(f)(1). Again, the prefatory

language requires that an action violating § 4(a) has been

established. The language in the RFOA provision “factor

by § 802(c1) of the Older Americans Act Amendments of 1984,

Pub. L. No. 98-459, 98 Stat. 1767, 1792. See Mahoney v. Radio

Free Europe / Radio Liberty, Inc., 818 F. Supp. 1, 4 (D.D.C. 1992),

rev'd on other grounds, 47 F.3d 447 (D.C. Cir. 1995) (construing

foreign employee provision as an affirmative defense). See also

Eglit, AGE DISCRIMINATION, § 5.61 at 5-276 (2d ed. 1995).

other than age” connotes that the second defense in ADEA

§ 4(f(1) responds to classifications that are not age-

related, or in other words are facially neutral, since the

BFOQ defense responds to facially discriminatory policies.

The contiguous design of the two defenses to address

facially discriminatory and facially neutral practices

reflects Congress’ concern with both intentional and

unintentional discrimination. The placement and context

of the RFOA provision clearly supports reading the

provision as a defense to facially neutral actions that

violate ADEA § 4(a)

D. The RFOA Defense Does Not Operate asa

Denial of An Intent to Discriminate.

A denial that an action was motivated by age responds to

a claim that the employment action was motivated by age.

A simple denial of discrimination is the appropriate

response to a prima facie claim of intentional discrimina-

tion under the McDonnell Douglas model of proof. See

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

Response by denial means that the plaintiff's evidence

does not establish an action “otherwise prohibited” by

§ 4(a), since a prima facie case based on circumstantial

evidence merely raises an inference of discrimination that

does not shift the burden of proof to the employer. Texas

Department of Community Affairs v. Burdine, 450 U.S.

248, 254 (1981).

In contrast, the RFOA defense does not logically or

structurally operate as a denial! of intentional discrimina-

tion.’ None of the language in ADEA § 4(f)(1) suggests

' See Mack A. Player, Wards Cove Packing or Not Wards Cove

Packing? That is Not the Question: Some Thoughts on Impact

(continued...)

that the provision includes or responds to an element of

intent to discriminate.

When proof of intent to discriminate is part of a claim or

its corresponding defense, Congress clearly includes

language imposing an intent requirement. Again, the

OWBPA amendments to ADEA § 4(f)(2) are instructive.

Prior to the OWBPA, the bona fide seniority system and

employee benefit plan provisions in § 4(f)(2) contained the

phrase “subterfuge to evade the purposes of this Act.” 29

U.S.C. § 623(f(2) (1989). In United Air Lines, Inc. v.

McMann, 434 U.S. 192, 203 (1977), the Court interpreted

this phrase as requiring evidence of an intent to discrimi-

nate.”

The OWBPA removed the phrase “subterfuge to evade

the purposes” from ADEA § 4(f)(2). See S. Rep. No. 101-

263, at 18 (1990), reprinted in 1 OWBPA LEG. HIST., at 337

(1990); H.R. Rep. No. 101-664, at 34 (1990), reprinted in 1

OWBPA LEG. HIST., at 241 (1990). The ADEA’s defense for

employee benefit plans is now a clear, objective showing of

increased cost, without any inquiry into the intent of the

employer. 29 U.S.C. § 623(f(2 Bi) (2000). Id.

In contrast, the ADEA’s seniority system provision

continues to require proof of intent by virtue of the

OWBPA. By adding the phrase “not intended to evade the

purposes of this Act” to the seniority system provision,

Congress continued to require the element of intent in this

defense. See § 4(f)(2)(A), 29 U.S.C. § 623(f(2A) (2000).

" (continued)

Analysis Under the Age Discrimination in Employment Act, 31 U.

RICH. L. REV. 819, 832-33 (1997).

12 See General Dynamics Land Systems, Inc. v. Cline, 124 S. Ct.

1236, 1245 n. 7 (2004) (noting that Congress overturned the

McMann decision in the 1978 amendments to the ADEA).

This deliberate exclusion of language requiring evidence

of intent in subpart B of § 4(f2), and inclusion in subpart

A, demonstrates that Congress acted purposefully to impose

the elements of intent or compliance with the purposes of

the Act in the ADEA’s defenses. See Russello v. United

States, 464 U.S. 16, 23 (1983) (quoting United States v.

Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)) (“(WJhere

Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.”)

The absence of language in ADEA § 4(f)(1) of an intent

requirement or an element related to the purposes of the

ADEA strongly suggests that Congress drafted the provision

to preclude any inquiry into these elements in establishing

the underlying violation in § 4(a) or the RFOA defense. To

construe the RFOA provision as a response to intentional

discrimination ignores the deliberate omission of key

language in § 4(f\(1).

Ill. THE RFOA PROVIDES A FEASIBLE DEFENSE

TO PROVING AGE DISCRIMINATION UNDER

A DISPARATE IMPACT THEORY.

A. The Term “Reasonable” in ADEA § 4(f)(1) Re-

quires The Employer to Show That the Factor

is Job-Related.

The language of ADEA § 4(f)(1) requires that the “factors

other than age” must be “reasonable.” Neither the statute

nor its legislative history provides a definition of the term

“reasonable.” See EGLIT, AGE DISCRIMINATION, § 5.16 at 5-

64-67 (2d ed. 1995). The term “reasonable” must be given

effect, however. See United States v. Menasche, 348 U.S.

528, 539-40 (1955) (court’s duty to give effect to every

clause and word of a statute “rather than to emasculate an

entire section.”) It cannot be ignored as the courts rejecting

disparate impact theory under the ADEA have done.”

The question whether a neutral factor is “reasonable”

under a disparate impact theory applying the RFOA

provision differs in type and degree from whether an

employer’s response to a claim of disparate treatment is

legitimate. Applying the Court’s reasoning in Hazen Paper

Co. v. Biggins, 507 U.S. 604, 611 (1993), legitimate in this

context simply means not prohibited by the ADEA.

In contrast, Black’s defines “reasonable” as “fair, proper,

just, moderate, or suitable under the circumstances.”

BLACK’S LAW DICTIONARY 1138 (5" ed. 1979). A legitimate

reason is not the same as a reasonable factor, given the

Court’s analysis in Hazen Paper. For example, an em-

ployer’s response to an ADEA disparate treatment claim

could be a reason such as race or pension vesting that

violates another statute, but is not unlawful under the

ADEA. Hazen Paper, 507 U.S. at 611. Such a response

would not be reasonable because it would subject the

employer to liability for other claims.

The reasonableness requirement of the RFOA provision

also makes the defense inappropriate as a response to a

disparate treatment claim because the disparate treatment

theory does not permit inquiry into the “reasonableness,”

fairness, justness, or propriety of the employer’s actions.

See Adreani v. First Colonial Bankshares Corp., 154 F.3d

389, 398 (7 Cir. 1998). Under the disparate treatment

method of proof, the employer’s actions may be unreason-

able or unfair or arbitrary, yet not intentionally discrimi-

13 See Adams v. Florida Power Corp., 255 F.3d 1322 (11" Cir.

2001), writ dismissed as improvidently granted, 535 U.S. 228

(2002); Mullin v. Raytheon Co., 164 F.3d 696 (1" Cir. 1999); Ellis

v. United Airlines, Inc., 73 F.3d 999 (10 Cir. 1996); EEOC v.

Frances W. Parker School, 41 F.3d 1073 (7 Cir. 1994).

natory. See also L. STEVEN PLATT & CATHY VENTRELL-

MONSEES, AGE DISCRIMINATION LITIGATION, § 14.180

(2000).

A “reasonable factor” clearly connotes something more

and different than a legitimate factor. The context of the

RFOA suggests that the term “reasonable” imposes an

objective requirement that the factor be related to an

individual’s ability to do the job."*

The meaning of “reasonable factor” as job-related is

reflected by its juxtaposition to the BFOQ defense. Imme-

diately preceding the language “reasonable factors other

than age,” Congress used the term “reasonably necessary”

to describe the relationship between a “bona fide occupa-

tional qualification” and the “normal operation of the

particular business.” 29 U.S.C. § 623(f(1). The BFOQ

defense focuses on the employee’s ability to do the job.

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

By following the BFOQ defense, a plausible reading of the

term “reasonable factors” would be factors related to the

job requirements or job performance, given the context of

the term within the statute.

The degree of reasonableness would depend on the

circumstances of the case. In the BFOQ context, reason-

ably necessary means the employer is compelled to use age

as a proxy for the job-related qualifications. See Western

Air Lines, Inc. v. Criswell, 472 U.S. 400, 414 (1985). The

term “reasonably necessary” must mean more than a

“rational basis in fact,” since this Court rejected such a

rationality standard for a BFOQ as inconsistent with the

ADEA in Western Air Lines, Inc. v. Criswell, 472 U.S. at

420, n. 30.

“ See Player, supra, note 11, at 840-41; Kaminshine, supra, note

7, at 302.

The Court has described the employer’s response to a

disparate impact claim under Title VII as a “reasonable

measure of job performance” with the “touchstone [a]s

business necessity.” Griggs v. Duke Power, 401 U.S. 424,

431, 436 (1971). Similarly, Title VII requires that the

particular employment practice causing a disparate impact

must be job related and “consistent with business neces-

sity.” 42 U.S.C. §2000¢e-2(k)(1(AXi).*

The absence of the term “necessary” in the RFOA defense

implies that the employer is not compelled to use the

factors it chose. However, because the employer bears the

burden of proving the RFOA defense, allowing any ratio-

nale would not justify excusing the violation of § 4(a).

Rather, the language and context of the defense suggest an

intermediate burden on the employer to demonstrate the

reasonableness of its action. The employer’s justification

should be more than a mere rationality, but less than

absolute necessity.

The business necessity standard of Griggs would be

consistent with the intermediate burden posed by the

RFOA defense. Neutral practices can unfairly target ageist

traits in the abstract, rather than measuring the individ-

ual’s ability to do the job. Requiring employers to justify a

practice as job-related insures the criteria relate to one’s

ability to do the job. A showing that a practice is an RFOA

would demonstrate that the criteria are not arbitrary, but

fair and reasonable. Proof by the employer of a substantial

business purpose for using the factor should establish that

Stat. 1071 (1991), amended Title VII to generally codify the job

related and business necessity concepts of Griggs v. Duke Power,

401 U.S. 424, 436 (1971). See § 703(kX 1X AXi), 42 U.S.C. § 2000e-

2(k 1K Ai).

the decision was “fair, proper, just, moderate, [or] suitable

under the circumstances.” BLACK’S, at 1138 (5 ed. 1979).

B. The Disparate Impact Method of Proof Insures

that Employment Criteria are Job-Related.

The handful of disparate impact claims that have been

fully litigated demonstrate that the theory provides a

viable and feasible means for challenging age discrimina-

tion in neutral practices or justifying those practices as

job-related and consistent with business necessity."* A

close of examination of one case, Smith v. City of Des

Moines, 998 F.3d 1466 (8 Cir. 1996), exemplifies how

disparate impact theory actually operates in ADEA cases

with the RFOA provision as a defense.

Smith challenged a new fitness requirement that all

firefighters at the rank of captain or below had to pass a

test determining whether they could safely fight fires

while wearing a self-contained breathing apparatus

(“SCBA”). A spirometry test measured the capacity of the

lungs to exhale. If a firefighter failed the spirometry test,

he or she had to pass a maximum stress test to measure

the body’s effective use of oxygen. 998 F.3d at 1468.

Having served 33 years as a firefighter with the Des

Moines Fire Department, Smith had risen to the level of

captain when the new fitness standard was implemented.

After failing the tests the first year and then passing them

the next three years, Smith failed the tests and was placed

on sick leave. The city ultimately discharged Smith at age

Cir. 2001); Allen v. Entergy Corp., Inc., 193 F.3d 1010 (8 Cir.

1999); Smith v. Xerox Corp., 196 F.3d 358 (2d Cir. 1999); Smith v.

City of Des Moines, 998 F.3d 1466 (8 Cir. 1996).

a lin

= ——

55 for failing to meet the department’s physical fitness

standards. Id.

Smith filed suit under the ADEA, pursing both disparate

treatment and disparate impact theories. The district

court granted summary judgment to the city on both

‘claims, finding the city had established a “business neces-

sity” defense in response to the disparate impact claim.

Smith’s treatment claim failed because he was not quali-

fied to perform the job. /d.

The Eighth Circuit assumed that Smith had demon-

strated that the testing requirement had a disproportion-

ate impact on older persons. Jd. at 1470. The court then

applied a defense “derived in part” from Title VII's dispa-

rate impact doctrine, relying on Dothard v. Rawlinson, 433

U.S. 321, 332 n. 14 (1977), and “in part from a provision of

the ADEA which states that an employment practice is not

unlawful ‘where the differentiation is based on reasonable

factors other than age.’ 29 U.S.C. § 623(f1) (1994).” The

court held that the city had the burden of persuasion to

establish two elements: (1) “that the requirement has a

manifest relationship to the employment in question,” and

(2) “is necessary to safe and efficient job performance.” Jd.

at 1471.

The city demonstrated that the requirement was job-

related by producing undisputed evidence that captains

were frequently involved in fighting fires and wore SCBAs

in such circumstances. As for the second element of the

defense, the city produced evidence that it had relied on

national standards on fitness testing for firefighters and

had their own expert review relevant medical literature in

setting the appropriate test measures. The court empha-

sized that “The city has not proceeded arbitrarily, but

rather has carefully developed a standard based upon the

available medical literature and using the best test

available for measurthg fitness, the stress test.” Jd. at

1473. In response to the city’s showing, the court found

that Smith had failed to show that a proposed alternative

would have a less discriminatory impact on older

firefighters. Id.

Allowing Smith to challenge the physical fitness tests

under a disparate impact theory insured that the city was

not engaging in arbitrary age discrimination, without

regard to the motive it had in mandating the requirement.

Requiring Smith to proceed on a disparate treatment claim

only would not subject job requirements to the scrutiny

needed to insure that they test the individual for the job

and not the person in the abstract. Rather, if older workers

can show that a neutral practice disproportionately

disadvantages them, that practice should be scrutinized

under the objective standards of job-relatedness and

business necessity.

CONCLUSION

For the foregoing reasons, amici curiae NELA and TLPJ

urge the Court to reverse the judgment below and to hold

that the ADEA permits disparate impact claims, with

ADEA Section 4(f)(1) providing an affirmative defense to

such claims.

Respectfully Submitted,

CATHY VENTRELL-MONSEES

Counsel of Record

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