Amicus Curiae Brief — Smith v. City of Jackson

————n

No. 03-1160

wees

IN THI AUG 2 3 bn |

Supreme Court of the United States

AZEL P. SMITH, et al..

Petitioners,

Vv.

City OF JACKSON, MISSISSIPPI, AND POLICE

DEPARTMENT OF THE CITY OF JACKSON, MISSISSIPPI.

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE NATIONAL LEAGUE OF CITIES,

COUNCIL OF STATE GOVERNMENTS,

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL CONFERENCE OF STATE

LEGISLATURES, INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION, U.S. CONFERENCE

OF MAYORS, AND INTERNATIONAL CITY-

COUNTY MANAGEMENT ASSOCIATION AS

AMICI CURIAE SUPPORTING RESPONDENTS

RICHARD RUDA*

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

WiL_SON-EPES PRINTING Co., IN¢ (202) 789-0096 WASHINGTON, D. C. 20001

|

QUESTION PRESENTED

Whether a disparate impact theory of liability is available

under the Age Discrimination in Employment Act.

(i)

TABLE OF CONTENTS

QUESTION PRESEN TED.......c.ccccrccoccrsressecscecscsssecsenses

TABLE OF AUT IRORRIT TES ...cccccccccrcscrcscccsccccscccsscesscess

INTEREST OF THE AMICI CURIAE ..........cc00cc00ee00000s

SUMMARY OF ARGUMENT............cccccccsscesssersesesees

THE ADEA DOES NOT PROVIDE FOR

DISPARATE IMPACT LIABILITY ................

A. The ADEA’s Text, Structure and Purpose

Do Not Support Disparate Impact Claims...

B. The EEOC’s Interpretation Is Not Entitled

acces

Il. JUDICIAL CREATION OF AN ADEA

DISPARATE IMPACT CLAIM WOULD

SERIOUSLY UNDERMINE THE ABILITY

OF STATE AND LOCAL GOVERNMENTS

TO EFFECTIVELY MANAGE THEIR

EEL a

ES

(iii)

13

19

iV

TABLE OF AUTHORITIES

Cases Page

Adams v. Florida Power Corp., 535 U.S. 228

Se cnnnevnnsenntninnistiaiioeianstesncsineiiaaiiinminnemiaindaian 18

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

Council, Inc., 467 U.S. 837 (1984)... 4, 13,17

DiBiase v. Smithkline Beecham Corp., 48 F.3d

eS 6, 8, 12

District Council 37 v. New York City Dep't of

Parks & Rec., 113 F.3d 347 (2d Cir. 1997)....... 25, 26

Duncan v. Walker, 533 U.S. 167 (2001) ............... 6

EEOC v. Francis W. Parker School, 41 F.3d

eT 12

EEOC v. Governor Mifflin School Dist., 623

F.Supp. 734 (E.D. Pa. 1965).................ecseeceeees 24

EEOC v. Wyoming, 460 U.S. 226 (1983).............. 9,12

Ellis v. United Airlines, Inc., 73 F.3d 999 (10th

eR, area cersssbitiesiienineeereasiniaibiniiinaamnasiesiiainianmaaiie 6

Geller v. Markham, 481 F.Supp. 835 (D. Conn.

1979), aff'd, 635 F.2d 1027 (2d Cir. 1980),

cert. denied, 451 U.S. 945 (1981)............ccceeeee 21, 24

General Dynamics Land Systems, Inc. v. Cline,

Se ey Ce esennnseenmnemennnnins 5

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

International Bhd. Of Teamsters v. United States,

OE 15, 23, 26

Laugesen v. Anaconda Corp., 510 F.2d 307 (6th

GR FR esentensnnienensiiehieteenciiinaninintaniaciiieniiniaiinaiiiaiaies 17

Leftwich v. Harris-Stowe State College, 540 F.

Supp. 37 (E.D. Mo. 1982) ...............cccc00 21-22, 22, 23

Leftwich v. Harris-Stowe State College, 702 F.2d

ee 21, 22, 23, 24

Loeb v. Textron, Inc., 600 F.2d 1003 (ist Cir.

FU UUniivrinnssiientcinniiacnecanntianmuaamnetatinteniiaieimasiinmatias 13

v

TABLE OF AUTHORITIES—Continued

Page

MacPherson v. University of Montevallo, 922

ee 24

Markham v. Geller, 635 F.2d 1027 (2d Cir.

1980), cert. denied, 451 U.S. 945 (1981).......... passim

Markham vy. Geller, 451 U.S. 945 (1981).............. 20, 21

Mayor of Philadelphia v. Educational Equality

League, 415 U.S. 605 (1974).........ccccccceeeeeeeeeees 23

McDonald v. Santa Fe Trail Transp. Co., 427

a A UNE cetenerenemsesseninieeninninammabeiueniiiin 5

McDonnell Douglas Corp. v. Green, 411 US.

Fee ee eerie 17, 20

Mete, et al., v. New York State Office of Mental

Retardation & Dev. Disabilities, 984 F.Supp.

Oe 26

Mullin v. Raytheon Co., 164 F.3d 696 (ist Cir.

Fe cemnsnnmnnnsmniecnmnsengstiinnnninniememnicemenpnanits 12

Ohio Pub. Employees Reiirement Sys. v. Betts,

GS GE ED cneeneemnctnietmmnnmein 11

Skidmore v. Swift & Co., 323 U.S. 134 (1944)......... 4, 13,

. 13-14

Smith v. City of Des Moines, 99 F.3d 1466 (8th

GR Be nnsccnctecssensenmamntenensenenesmmnmeennentiion 27

United States v. Mead Corp., 533 US. 218

Ee ee 13, 13-14

United States v. Naftalin, 441 U.S. 768 (1979)..... 8

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

ee hcernnterittennnnsensenscmnnnnmnnetannniignnataaiatis 9

Statutes and Regulations

Age Discrimination In Employment Act

i 9

passim

vi

TABLE OF AUTHORITIES—Continued

Page

29 CPR. GED. BEBE). 1DGB). .ncceccccccccvescccssscscscesesee 14

29 C.F.R. 860.103(d) (1968) .0......cecccceeeeceeeeeeeeees 14

29 C.F. GED. IGS) (IDTP) .nncccccccccccccsecsscccccccssses 20

ee 15

Ge le: SE cxcnertctcemmmenneion 16, 24

Civil Rights Act of 1964, title VII, Pub. L. No.

80-352, 78 Stat. 253, codified as amended at

42 U.S.C. § 2000e-§ 2000e-17

ey in PIE cencnteenenenennnesinienenmmnedaveneneinies 12

TD cncurcenmtncnnenttnnene 5

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

§ 105(a), 105 Stat. 1071, codified at 42 U.S.C.

re 6

Older Workers Benefit Protection Act, Pub. L.

No. 101-433, § 103, 104 Stat. 979, codified at

BP ce Oe i ccntindicnincnintinnnnnesinnin 11

Other Authorities

The American Heritage Dictionary Of The

English Language (1981) ................0cceeeeeeeeeeees 7

33 Fed. Reg. 9172 (Jun. 21, 1968)...............cccceeeee 14

33 Fed. Reg. 9173 (Jun. 21, 1968)..............0...2000- 2,14

FS Fee. Ram, S29 Cae. D, 1B occccccccccccccseseriisccceess 15

44 Fed. Reg. 68858 (Nov. 30, 1979) .0.0.......ccccceee. 3, 16

44 Fed. Reg. 68858-62 (Nov. 30, 1979)................ 16

46 Fed. Reg. 47724 (Sept. 29, 1981) ................2. 15

46 Fed. Reg. 47724-28 (Sept. 29, 1981)................ 16

46 Fed. Reg. 47725 (Sept. 29, 1981)............. 3, 15, 16, 17

46 Fed. Reg. 47727 (Sept. 29, 1981) 0.0.0.0... 16

Pamela S. Krop, Note, Age Discrimination and

the Disparate Impact Doctrine, 34 Stan. L.

a Se Ce cteccncsncsnrersienicitincnsinnitatnenntinentsitis 6, 8,9

vii

TABLE OF AUTHORITIES—Continued

Page

Barbara Lindemann, et al., Employment

Discrimination Law (3d ed. 1996)..........c0000000 11, 28

Barbara Lindemann & David D. Kadue, Age

Discrimination in Employment Law (2003) ...... 15-

Donald R. Stacy, A Case against Extending the

Adverse Impact Doctrine to ADEA, 10 Empl.

ee 16

U.S. Dep’t of Labor, The Older American

Worker: Age Discrimination In Employment

(ee _ passim

Webster’s New International Dictionary (2d ed.

a seocevenensccesesrsesensnesocsasesescerese 7

Webster's Third New International Dictionary

| Sn 7

Letter from W. Willard Wirtz, Secretary of

Labor, to Hon. John H. McCormack, Speaker,

U.S. House of Representatives, and Hon.

Hubert H. Humphrey, Pres., U.S. Senate (Jan.

By CES Picepereneneessienniapationtonennnibitinniaihegum 10

ee

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include state,

county, and municipal governments and officials throughout

the United States. As public employers, amici have an

especially strong interest in legal issues that affect their

ability to manage their workforces in a cost-effective manner.

Amici condemn invidious age-based discrimination against

workers over the age of forty. Indeed, the States were at the

forefront in banning arbitrary age-based discrimination. See

U.S. Dep’t of Labor, The Older American Worker: Agz

Discrimination In Employment 9 (1965). Amici thus fully

recognize the need for remedies to address intentional age-

based employment discrimination.

In contrast, the issue in this case—whether disparate

impact claims are cognizable under the ADEA—taises the

troubling prospect that public employers will be subject to

liability because of necessary work practices which have been

undertaken for reasons totally unrelated to age. As the court

of appeals correctly recognized, the ADEA’s text, structure

and purpose do not support disparate impact liability.

Because of the importance of this issue to amici and their

members, this brief is submitted to assist the Court in its

resolution of the case.

——

SUMMARY OF ARGUMENT

1. The text of ADEA section 4(a)(2) does not support

disparate impact liability. Section 4(a)(2)’s prohibition

against an employer’s taking various employment actions

' The parties have consented to the filing of this brief amicus curiae

and their letters of consent have been filed with the Clerk. This brief was

not authored in whole or in part by counsel for a party, and no person or

entity other than amici or their members made a monetary contribution

toward its preparation or submission.

2

“because of [an] individual’s age,” 29 U.S.C. § 623(a)(2), is

most naturally read as prohibiting only intentional age-based

discrimination. Indeed, the Court has expressly recognized

that “[d]isparate treatment . . . captures the essence of what

Congress sought to prohibit in the ADEA.” Hazen Paper Co.

v. Biggins, 507 U.S. 604, 610 (1993).

The Court has further explained that Congress enacted

the ADEA “prompted by its concern that older workers were

being deprived of employment on the basis of inaccurate

and stigmatizing stereotypes.” /d. As the Court has noted, an

age-neutral employment practice does not present tae

problem of inaccurate and stigmatizing stereotypes even if the

practice correlates with age. See id. at 611.

There is no merit to petitioners’ contentions that it “is

almost incomprehensible” to construe section 4(a)(2) as

barring disparate impact liability “given the presence of

precisely the same language in Title VII,” or that to reject

petitioners’ reading of section 4(a)(2) is to “inescapably

argu[e] that Griggs was wrongly decided.” Pet. Br. 22 On

the contrary, section 4(a)(2) must be construed in light of the

ADEA’s structure and purpose. Most significantly, the

ADEA—unlike Title VIIl—expressly recognizes the authority

of employers to differentiate between employees “based on

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

several courts of appeals have recognized, this provision is

antithetical to the notion that disparate impact claims are

cognizable under the ADEA.

2. Nor is there any merit to petitioners’ contentions that

both the EEOC and DOL have consistently interpreted the

ADEA as authorizing disparate impact liability. Contrary to

petitioners’ assertion, DOL’s or.zinal rulemaking observed

that “[t}he clear purpose” of the ADEA “is to insure that

age .. . is not a determining factor” in making employment

decisions. 33 Fed. Reg. 9173 (Jun. 21, 1968). When an

3

employer applies an age-neutral work rule, age is clearly not

a determining factor even when a rule correlates with age.

Moreover, when the EEOC rewrote the regulation “to

make it clear that” age-neutral practices could be challeng-

ed if they have a disparate impact, 46 Fed. Reg. 47725

(Sept. 29, 1981), the agency made no attempt to reconcile its

rule with the ADEA’s text, purpose, and the nature of age

discrimination. Rather, the EEOC adopted disparate impact

analysis because of its conclusion—on a matter of pure

statutory construction—that the ADEA should “be interpreted

in a manner which is consistent with Title VII.” 44 Fed. Reg.

68858 (Nov. 30, 1979).

This legal conclusion is patently unreasonable. As Secre-

tary Wirtz explained, “the easy thing to do would be simply

to extend the conclusions derived from [the societal problems

Title VII addresses] to the problem of discrimination in

employment based on aging, and be done with the matter.

This would be easy—and wrong.” The Older American

Worker, supra, at | (emphasis added).

3. Many essential workforce practices have some

correlation with age. For example, there are times when the

fiscal constraints faced by public employers require layoffs or

limit the funds available for pay and benefits. Even when

public employers have responded to fiscal hardship by using

age-neutral practices, they have been frequent targets of

lawsuits brought by those within the ADEA’s protected class.

Relying on disparate impact analysis, some courts have

imposed liability on public employers notwithstanding the

lack of any probative evidence that the employer was

motivated by age-bias or stereotypes. And even when public

employers ultimately prevail on the merits, the litigation costs

of defending these actions can erode the cost-savings that an

employment policy or rule was intended to provide.

4

ARGUMENT

I. THE ADEA DOES NOT PROVIDE FOR DIS-

PARATE IMPACT LIABILITY

The court of appeals correctly held that petitioners were

not entitled to proceed with their ADEA disparate impact

claim. As that court and four other courts of appeals have

recognized, it is erroneous “to limit [the] construction cal-

culus solely to the [textually similar] prohibitory sections of

the ADEA and Title VII,” Pet. App. 1@a, and to assume that

because such a claim is cognizable under Title VII, it must

likewise be available under the ADEA.

As explained below, the text, structure and purpose of the

ADEA make clear that Congress did not intend for there to be

disparate impact liability under the ADEA. Petitioners’

attempt to place the statute within the rules of Chevron,

U.S.A., Inc., v. Natural Res. Def. Council, Inc., 467 U.S. 837

(1984), and Skidmore v. Swift & Co., 323 U.S. 134 (1944),

rests on implausible constructions of the ADEA’s text and

ignores the critical differences between the language and

structure of Title VII and the ADEA. Petitioners’ invocation

of broad statements of congressional purpose ignores that

Congress also chose means other than litigation to accomplish

the ADEA’s purposes. Finally, even if the statute could be

plausibly deemed to be ambiguous, the EEOC’s interpretation

is not entitled to deference. The judgment of the court of

appeals should be affirmed.

A. The ADEA’s Text, Structure and Purpose Do

Not Support Disparate Impact Claims

The text of section 4(a)(2) squarely refutes the notion that

disparate impact claims are cognizable under the ADEA.

Petitioners nonetheless contend that it “is almost incompre-

hensible” to construe section 4(a)(2) as barring disparate

impact liability “given the presence of precisely the same

5

language in Title VII.” Pet. Br. 22. The Court, however, in

construing the ADEA has recognized that it is incorrect

simply to adopt interpretations of Title VII without further

analysis of “the text, structure, purpose, and history of the

ADEA.” General Dynamics Land Systems, Inc. v. Cline, 124

S.Ct. 1236, 1248 (2004). Indeed, simply to lift Title VII's

interpretations wholesale and make them a part of the ADEA

would ignore that the statutes have different purposes and

reflect different legislative compromises between the interests

of employers and employees.

For example, in construing Title VII’s provision prohibit-

ing race and other specified discrimination, see 42 U.S.C.

§ 2000e-2(a)(1), the Court has made clear that “[i]ts terms are

not limited to discrimination against members of any particu-

lar race.” McDonald v. Santa Fe Trail Transp. Co., 427 U.S.

273, 280 (1976). Thus, in McDonald, the Court held that

reverse discrimination claims are maintainable under Title

VIL. See id.

By contrast, in General Dynamics v. Cline, the Court de-

clined to recognize reverse age discrimination claims. See

124 S.Ct. at 1239. Notwithstanding the close similarity

between the language of ADEA § 4(a)(2) and 42 U.S.C.

§ 2000e-2(a)(1), the Cline Court expressly declined to adopt

the McDonald rule applicable under Title VII. See 124 S.Ct.

at 1243 n.5. Rather, the Court reached its holding based on a

fresh examination of the text, structure, purpose and history

of the ADEA. See id. at 1240-49.

Petitioners further contend that to reject their reading of

section 4(a)(2) is to “inescapably argufe] that Griggs was

wrongly decided” and that “this case presents no circum-

stance that warrants reversing Griggs.” Pet. Br. 22; see also

id. at 11-13. Contrary to petitioners’ view, taking a fresh look

at the language of ADEA section 4(a)(2)}—as well as the

ADEA’s structure and purpose—and concluding that they do

not support disparate impact claims no more requires revers-

6

ing Griggs than the Court’s recent decision in General

Dynamics required reversing McDonald. Furthermore,

whether Griggs can be said to have “expressly rel[ied]” on

the text of Title VII in creating disparate impact liability, see

Pet. Br. 22,’ is beside the point in light of Congress’

codification of disparate impact liability under Title VII. See

Civil Rights Act of 1991, Pub. L. No. 102-166, § 105(a), 105

Stat. 1071, 1074-75 (1991) (codified at 42 U.S.C. § 2000e-

2(k)). Thus, concluding that the text of ADEA section 4(a)(2)

does not support disparate impact liability will have no

bearing on the continued availability of such claims under

Title VII.’

1. The starting point in every case of statutory construction

is the language of the statute. See, e.g., Duncan v. Walker,

533 U.S. 167, 172 (2001). ADEA section 4(a)(2) states that

* Some courts have expressed a contrary view. See Ellis v. United

Airlines, Inc., 73 F.3d 999, 1008 n.13 (10th Cir. 1996) (“Griggs did ret

base its holding on the text of Title VII, but rather looked primarily to the

larger objectives underlying Congress’ enactment of Title VII.”); DiBiase

v. Smithkline Beecham Corp., 48 F.3d 719, 734 (3d Cir. 1995) (opinion of

Greenberg, J.) (“[W]hen the Supreme Court found disparate impact

liability under Title VII, it relied not on any specific statutory language

but on the policies behind the statute.”). See also Pamela S. Krop, Note,

Age Discrimination and the Disparate Impact Doctrine, 34 Stan. L.Rev.

837, 842 (1982) (“The disparate impact test of Griggs is a judicially

developed doctrine that does not have its origins in the language of Title

VII.”) (footnote omitted).

’ Invoking Griggs, petitioners urge that “[s|fare decisis is .. .

decisive.” Pet. Br. 22. This is a strange contention given that this Court

has “never decided whether a disparate impact theory of liability is

available under the ADEA.” Hazen Paper Co. v. Biggins, 507 U.S. 604,

610 (1993) (citing Markham v. Geller, 451 U.S. 945 (1981)) (Rehnquist,

J., dissenting from the denial of certiorari). See also id. at 618 (Kennedy,

J., concurring) (“[W © have not yet addressed the question whether . . . a

disparate impact claim is cognizable under the ADEA, and there are

substantial arguments that it is improper to carry over disparate impact

analysis from Title VII to the ADEA.”) (citations omitted).

7

“i]t 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).

Petitioners provide no credible construction of the statutory

text. Instead they offer only the conclusory assertion that

“the phrase ‘because of’—unlike such terms as ‘willfully,’ or

‘purposefully,’ or knowingly’—does not refer to an actor’s

state of mind in all (or even most) contexts, including in the

ADEA. Rather, it refers to causation.” Pet. Br. 22.

Petitioners’ contention ignores the ordinary meaning of the

phrase “because of.” In common usage, the phrase means

“(bly reason of; on account of.” Webster’s New International

Dictionary 242 (2d ed. 1955) (hereinafter Webster's Second).

See also Webster’s Third New International Dictionary 194

(1986) (same); The American Heritage Dictionary Of The

English Language 117 (1981) (same). Webster’s further

defines “reason” as “[a] consideration, motive, or judgment

inducing or confirming a belief, . . . or leading to an action or

course of action; a rational ground or motive.” Webster's

Second, at 2074. The American Heritage Dictionary similarly

defines “reason” as “[t]he basis or motive for an action,

decision, or conviction.” Jd. at 1086.

Thus, contrary to petitioners’ contention that “because of”

“does not refer to an actor’s state of mind in all (or even

most) contexts,” Pet. Br. 22, the most natural reading of the

phrase “because of such individual’s age” is, as the Court

held in Hazen Paper, that the employee’s age must be “the

motivating factor” behind the employer’s decision to

discriminate. 507 U.S. at 611. Petitioner’s construction of

section 4(a)(2) as only requiring a showing of “but for”

causation denies the statutory text its ordinary meaning.

8

Petitioners further assert that “a policy can ‘adversely

affect [an employee] because of such individual’s age’ even if

that policy is not motivated by age.” Pet. Br. 23 (citing 29

U.S.C. § 623(a)(2)). The punctuation of section 4(a)(2) makes

clear, however, that the “because of” clause modifies the

entire enumeration of employer practices and not just prac-

tices which “otherwise adversely affect” an employee’s

status. See DiBiase, 48 F.3d at 733 (opinion of Greenberg, J.).

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

& n.27. Petitioners’ proposed construction thus ignores the

punctuation of the text as well as its ordinary meaning. See

United States v. Naftalin, 441 U.S. 768, 774 n.5 (1979)

(“[W]hile matters like punctuation [are] not decisive of the

construction of a statute, where they reaffirm conclusions _

drawn from the words themselves they provide useful

confirmation.”) (internal quotation and citation omitted).*

* Petitioners make several other arguments based on the grammatical

structure of section 4(a)(2). First, they contend that “(hjad Congress

wished to restrict the ADEA to purposeful discrimination, it would more

naturally have placed the words ‘because of” far earlier in the provision,

such that they would have described the employer's acts: ‘It shall be

unlawful for an employer, because of an employee's age, to limit,

segregate, or classify * * *."” Pet. Br. 23. Petitioners’ suggestion,

however, no more clearly expresses an intent that the ADEA be limited to

purposeful discrimination than the wording and punctuation of the statute

Congress enacted.

Petitioners further argue that because section 4(a)(2) describes the

employer’s conduct in the plural form and the “‘because of clause” uses

the singular, it would be grammatically incorrect to read the “because of”

clause as modifying (by imposing a purpose requirement) the types of

prohibited employer conduct. See Pet. Br. 23-24. Petitioners ignore that

while Congress used the plural term “employees” to describe employer

actions that “limit, segregate, or classify employees,” it then used the

singular in proscribing only those employer practices that “deprive . . .

any individual of employment opportunities.” 29 U.S.C. § 623(a)(2)

(emphasis added). Whether or not Congress achieved grammatical per-

fection, petitioners’ contention that “the Fifth Circuit’s decision requires

reading the statute to render it unlawful for an employer ‘to limit,

9

Indeed, their argument ignores that the punctuation and

placement of the “because of” clause in section 4(a){2)

parallels the structure of section 4(a)(1), the ADEA’s first

prohibitory subsection, which does not contain the “adversely

affect” language. Compare 29 U.S.C. § 623(a)(1) with id.

§ ag See also Krop, Age Discrimination, 34 Stan. L. Rev.

at 843.

In short, section 4(a)(2) cannot fairly be construed to

authorize disparate impact claims. As the Court has unani-

mously explained, “[dJisparate treatment . . . captures the

essence of what Congress sought to prohibit in the ADEA.”

Hazen Paper, 507 U.S. at 610. “Congress’ promulgation of

the ADEA was prompted by its concern that older workers

were being deprived of employment on the basis of

inaccurate and stigmatizing stereotypes” about age. /d. (citing

EEOC v. Wyoming, 460 U.S. 226 (1983)). “‘{T}he available

empirical evidence demonstrated that arbitrary age lines were

in fact generally unfounded and that, as an overall matter, the

performance of older workers was at least as good as that of

younger workers.’” Jd. at 611 (quoting EEOC v. Wyoming,

460 U.S. at 231). The ADEA accordingly “commands that

‘employers are to evaluate [older] employees . . . on their

merits and not their age.”” /d. (quoting Western Air Lines,

Inc. v. Criswell, 472 U.S. 400, 422 (1985)).

The Court has further explained that “{wjhen the

employer’s decision is wholly motivated by factors other than

age, the problem of inaccurate and stigmatizing stereotypes

disappears. This is true even if the motivating factor

is correlated with age ....” /d. at 611. Thus, in Hazen Paper -

the Court unanimously held that an adverse employment

decision made to deprive an older worker of pension

rights did not violate the ADEA, even though the employer

segregate, or classify his employees * * * because of such individual's

age,” Pet. Br. 23-24, is simply sleight of hand.

10

was motivated by a factor that was clearly “correlated with

age.” /d.

An age-neutral employment practice does not present “the

problem of inaccurate and stigmatizing stereotypes,” id., even

if there is a demonstrable correlation between the practice and

age. Consequently, to construe section 4(a)(2) to prohibit

employment practices which are not motivated by an intent to

discriminate but which have a disparate impact on persons

over the age « of 40 is irreconcilable with section 4(a)(2)’s text

and purpose.°

2. Petitioners further argue that the ADEA’s provision

exempting employers from liability for a “differentiation . . .

based on reasonable factors other than age,” 29 U.S.C.

§ 623(f)(1), supports disparate impact claims. Pet. Br. 19.

Contrary to petitioners’ contention, the RFOA provision does

* In section 715 of Title VII, Congress directed the Secretary of Labor

to “study ... the factors which might tend to result in discrimination in

employment because of age[,}] . . . the consequences of such dis-

crimination,” and make recommendations for legislation. A portion of the

Secretary’s report discussed various “institutional arrangements that

indirectly restrict the employment of older workers,” some of which were

age-neutral practices. U.S. Dep’t of Labor, The Older American Worker

Age Discrimination In Employment 15-17 (1965). While the Secretary

recommended various measures such as reform of pension plans and

changes to seniority arrangements, the report did not suggest that

the creation of a cause of action to challenge age-neutral practices was

necessary. See id. at 22.

Subsequently, the Secretary, in forwarding a draft bill of the ADEA,

explained that “[t}he legislation also provides for attention to be given to

institutional arrangements which work to the disadvantage of older

workers, including those giving rise to involuntary retirement. Research

would be undertaken and promoted with a view to reducing barriers to the |

employment of older workers.” Letter from W. Willard Wirtz, Secretary

of Labor, to Hon. John W. McCormack, Speaker, U.S. House of

Representatives, and Hon. Hubert H. Humphrey, President, U.S. Senate 2

(Jan. 23, 1967) (hereinafter “Wirtz Letter”). The Secretary did not, how-

ever, recommend the creation of a disparate impact cause of action.

11

not “necessarily impl[y] that it is possible to violate section

4(a) ... without having a discriminatory purpose.” /d. at 19.

Nor are petitioners correct in asserting that the requirement

that the factor be reasonable “would be mere surplusage

if no disparate impact claims were cognizable in the first

place.” /d.

It would be perverse to judicially impose a theory of

liability which is not based on the express language of the

ADEA’s substantive prohibitions but rather is derived by an

implication from a provision which is not even a “true

affirmative defense[].” 1 Barbara Lindemann, ef ai.,

Employment Discrimination Law 613 (3d ed. 1996).° Unlike

the other provisions of section 4(f), the RFOA is more akin to

a general denial by the employer “that age was a basis for the

conduct under scrutiny.” Jd.’ See also Hazen Paper, 507 U.S.

at 611 (“[w]hen the employer’s decision is wholly motivated

* As Secretary Wirtz explained in transmitting the draft legislation to

Congress: “The legislation would clearly indicate that the prohibitions are

designed to bar arbitrary age discrimination. Reasonable differentiations

not based solely on age, including but not limited to bona fide occupation

qualifications .. . would not fall with the proscription.” Wirtz Letter,

supra, at 1-2.

’ The Court has explained that the parallel provision of “§ 4(f)(2) is

not so much a defense to a charge of age discrimination as it is a

description of the type of employer conduct that is prohibited in the

employee benefit plan context. By requiring a showing of actual intent to

discriminate in those aspects of the employment relationship protected by

the provisions of the ADEA, § 4(f)(2) redefines the elements of a

plaintiff's prima facie case instead of establishing a defense to what

otherwise would be a violation of the Act.” Ohio Pub. Employees

Retirement Sys. v. Betts, 492 U.S. 158, 181 (1989) (emphasis added).

While Congress subsequently enacted legislation providing that an

. employer (or labor organization) “shall have the burden of proving

that . . . actions [taken pursuant to section 4(f(2)] are lawful,” see Older

Workers Benefit Protection Act, Pub. L. No. 101-433, § 103, 104 Stat.

978, 979 (codified at 29 U.S.C. § 623(f)(2)), no such language appears in

section 4(f(1). See 29 U.S.C. § 623(f¢1).

12

by factors other than age,” the purposes of ADEA are not

implicated). That Congress chose to make this clear by

enacting the RFOA provision does not support petitioners’

suggestion that disparate impact liability should implied from

the provision. Moreover, in light of petitioners’ repeated

arguments based on the similarities between the ADEA and

Title VII, see Pet. Br. 12-15, it bears emphasis that Title VII

contains no language similar to the RFOA provision.

Compare 42 U.S.C. § 2000e-2 with 29 U.S.C. § 623(f(1).

The Court has explained that the RFOA provision was

enacted “in order to insure that employers were permitted to _

use neutral criteria not directly dependent on age.” EEOC v.

Wyoming, 460 U.S. at 232-33. As several courts of appeals

have recognized, the provision is antithetical to the notion

that disparate impact claims are cognizable. See, e.g., Mullin

v. Raytheon Co., 164 F.3d 696, 702 (ist Cir. 1999) (“[I]f the

exception contained in section 623(f)(1) is not understood to

preclude disparate impact liability, it becomes nothing more

than a bromide to the effect that ‘only age discrimination is

age discrimination.””); DiBiase, 48 F.3d ai 734 (opinion of

Greenberg, J.) (“[B]y the statutory language itself, Congress

recognized that neutral practices not motivated by discrimi-

natory intent may be permissible employment practices.”);

EEOC v. Francis W. Parker School, 41 F.3d 1073, 1077 (7th

Cir. 1994) (RFOA provision “suggests that decisions which

are made for reasons independent of age but which happen to

correlate with age are not actionable under the ADEA”)

(emphasis added).

Rejecting the existence of disparate impact liability does

not render the word “reasonable” (as petitioners contend)

“mere surplusage.” Pet. Br. 19. Quite the opposite, the

provision is naturally understood as defining the parameters

of a prima facie caSe of disparate treatment, when, as is often

the case, there is no direct evidence of an employer’s dis-

criminatory intent. While the ADEA recognizes that employ-

13

ers may differentiate between employees based on a wide

variety of legitimate factors, the requirement that a factor be

“reasonable” guards against an employer’s pretextual use of a

factor other than age to engage in age-based discrimination.

See, e.g., Hazen Paper, 507 U.S. at 613; see also Loeb v.

Textron, Inc., 600 F.2d 1003, 1012 n.6 (ist Cir. 1979) (“The

reasonableness of the employer’s reasons may of course be

probative of whether they are pretexts. The more idio-

syncratic or questionable the emiployer’s reason, the easier it

will be to expose it as a pretext, if indeed it is one.”). Thus,

the word “reasonable” is not surplusage and its presence in

section 623(f)(1) does not support judicial implication of

disparate impact liability.

B. The EEOC’s Interpretation Is Not Entitled To

Deference

As explained above, the ADEA’s text, structure and

purpose make clear that Congress did not authorize disparate

impact claims under the statute. That should be “the end of

the matter” as “the court, as well as the agency must give

effect to the unambiguously expressed intent of Congress.”

Chevron, U.S.A., Inc. v. National Res. Def. Council, Inc., 467

U.S. 837, 842-43 (1984). Nonetheless, even if this Court

were to conclude that the ADEA is ambiguous, the EEOC’s

regulation is not entitled to deference under either Chevron or

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

The Court has stated that “[t]he fair measure of deference

to an agency administering its own statute has been under-

stood to vary with the circumstances, and courts have looked

to the degree of the agency’s care, its consistency, formality,

and relative expertness, and to the persuasiveness of the

agency's position.” United States v. Mead Corp., 533 U.S.

218, 228 (2001) (footnotes and citations omitted). As the

Court explained in Skidmore, “The weight [accorded to an

administrative] judgment in a particular case will depend

14

~upon the thoroughness evident in its consideration, the

validity of its reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it power

to persuade, if lacking power to control.” 323 U.S. at 140

(quoted in Mead, 533 U.S. at 228). As explained below,

the EEOC’s disparate impact regulation does not meet

these standards.

First, petitioners misstate the extent to which the EEOC

and DOL (which was originaily vested with power to enforce

the act) have interpreted the ADEA to authorize disparate

impact liability. Indeed, the original rule—which was not

subjected to the APA’s notice and comment provisions—

suggested that nothing more than pretextual disparate

treatment Claims were cognizable. See 33 Fed. Reg. 9172

(Jun. 21, 1968). DOL explained that “it was not the purpose

or intent of Congress in enacting this Act to require the

employment of anyone, regardless of age, who is disqualified

on grounds other than age from performing a particular job.”

Id. at 9173 (quoting 29 C.F.R. 860.103(c) (1968)). DOL

further observed that “[t]he clear purpose is to insure that age,

within the limits prescribed by the Act, is not a determining

factor in making any decision regarding hiring, dismissal,

promotion or any other term, condition or privilege of

employment of an individual.” /d. As explained above,

see supra at 10, when an employer applies age-neutral work

rules, age is clearly “not a determining factor” even when

a tule correlates with age. /d.; see also Hazen Paper, 507

U.S. at 611.

Most significantly, DOL’s regulation further stated that

“(t]he reasonableness of a differentiation will be determined

on an individual, case by case basis, not on the basis of any

general or class concept, with unusual working conditions

given weight according to their individual merit.” /d. (quoting

29 C.F.R. 860.103(d) (1968)) (emphasis added). This regula-

tion is irreconcilable with disparate impact liability. One of

15

the critical premises underlying disparate impact liability is

that a large statistical imbalance between classes supports an

inference of discrimination. See, e.g., Barbara T. Lindemann

& David D. Kadue, Age Discrimination in Employment Law

414 (2003); International Bhd. Of Teamsters v. United States,

431 U.S. 324, 339 & n.20 (1977). The other is that the classes

being compared are large enough to create statistical

significance. See Age Discrimination in Employment Law,

supra, at 414; Teamsters, 431 U.S. at 339 n. 20. DOL’s

original determination rejecting the use of the “class concept”

refutes petitioners’ assertion that DOL and EEOC have

consistently interpreted the ADEA as recognizing disparate

impact liability.

While DOL’s RFOA rule required that an employer

establish the validity of some age-neutral practices (such as

physical fitness and physical examination requirements), at

most this supports the recognition of pretextual disparate

treatment claims and not class-based disparate impact

liability. This is made clear by DOL’s 1969 amendment to

the RFOA rule, which stated that “situations in which an

employee test is used as the sole tool or the controlling factor

in the employee selection procedure will be carefully

scrutinized to ensure that the test is for a permissible purpose

and not for purposes prohibited by the statute.” 34 Fed. Reg.

323 (Jan. 9, 1969) (codified at 29 C.F.R. 860.104(b) (1969)).

The assertion that DOL and EEOC have consistently

interpreted the ADEA to provide for disparate impact liability

is also refuted by the EEOC’s 1981 rulemaking. There,

the EEOC explained that it had rewritten the RFOA

regulation “to make it clear that employment criteria that are

age-neutral on their face but which nevertheless have a

disparate impact on members of the protected age group must

be justified as a business necessity.” 46 Fed. Reg. 47724,

47725 (Sept. 29, 1981) (citing Griggs) (emphasis added).

Notwithstanding the EEOC’s assertion, the 1981 regulation

16

was in fact the first time a federal rule provided that an

employment practice could be challenged if “such a practice

has an adverse impact on individuals within the protected age

group.” /d. at 47727 (codified at 29 C.F.R. 1625.7(d)).

Beyond the inconsistency between the DOL and EEOC

rules, there are several other reasons for not deferring to the

EEOC’s regulation. Petitioners make much of the fact that

EEOC conducted a notice and comment rulemaking and

“made changes to the regulation in response to public

comment.” Pet. Br. 30 (internal quotations and citation

omitted). The EEOC made no attempt, however, to reconcile

its interpretation with the ADEA’s text, purpose and the

nature of age discrimination. Indeed, not once did the EEOC

even discuss whether the substantive prohibitions of section

4(a)(1) & (2) encompass non-pretextual age-neutral practices.

See generally 44 Fed. Reg. 68858-62 (Nov. 30, 1979); 46

Fed. Reg. 47724-28 (Sept. 29, 1981). Rather, it is apparent

that the EEOC simply adopted disparate impact analysis

because of its conclusion—on a matter of pure statutory

construction—that the ADEA should, in the agency’s words,

“be interpreted in a manner which is consistent with Title

VII.” 44 Fed.-Reg. 68858 (Nov. 30, 1979). See also 46 Fed.

Reg. 47725 (Sept. 29, 1981) (citing Griggs).*

*That the EEOC simply imposed its legal interpretation without any

independent reasoning as to the ADEA’s text and purpose is further

manifested by its re-writing of the RFOA regulation to impose on

employers the requirement that an age-neutral practice which has a

disparate impact “must be justified as a business necessity.” 46 Fed. Reg.

47725 (Sept. 29, 1981); see also id. at 47727 (29 C.F.R. 1625.7(d)). This

standard finds no support in the text of the ADEA’s RFOA provision. See

29 U.S.C. § 623(f(1); Donald R. Stacy, A Case against Extending the

Adverse Impact Doctrine to ADEA, 10 Empl. Rel. L.J. 437, 448 (1984)

(“{T]he regulation is in conflict with the statute it seeks to interpret in its

extension of the business necessity test.”). Because the regulation plainly

17

It is inappropriate to defer to the EEOC’s interpretation of

the ADEA because it is not based on any independent

reasoning or expert analysis of the problem of age discrimi-

nation but rather is based on this Court’s construction of a

statute which addresses the different problems of race,

religion and gender-based discrimination. Indeed, as Secre-

tary Wirtz explained, it is patently unreasonable to do so:

The Nation has faced the fact—rejecting inherited

prejudice or contrary conviction—that people’s ability

and usefulness is unrelated to the facts of their race, or

- color, or religion, or sex, or the geography of their birth.

Having accepted this truth, the easy thing to do would be

simply to extend the conclusions derived from it to the

problem of discrimination in employment based on

aging, and be done with the matter. This would be

easy—and wrong.

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

Discrimination In Employment | (1965) (emphasis added).

conflicts with the language of the statute it is not entitled to deference.

See Chevron, 467 U.S. at 843.

In support of its disparate impact rule, the EEOC also cited Laugesen v.

Anaconda Corp., 510 F.2d 307 (6th Cir. 1975). See 46 Fed. Reg. at

47725. While Laugesen involved an ADEA claim, it was a disparate

treatment case. See 510 F.2d at 311-13 (discussing applicability of

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

markably, the Sixth Circuit expressly stated in Laugesen that “it would be

inappropriate simply to borrow and apply [the McDonnell Douglas

standard] automatically.” /d. at 312. As the Sixth Circuit reasoned,

“[t}hat [Title VII] is embodied in a separate act and has its own unique

history at least counsels the examiner to consider the particular problems

sought to be reached by the statute.” /d. See also id. (“{W)hile the

principal thrust of the Age Act is to protect the older worker from

victimization by arbitrary classification on account of age, we do not

believe that Congress intended automatic presumptions to apply whenever

a worker is replaced by another of a different age.”).

18

As the Secretary’s report made clear, “‘discrimination’

means something very different, so far as employment

practices involving age are concerned, from what it means in

connection with discrimination involving—for example

—race.” Jd. at 2. Indeed, the fundamental premise underlying

Griggs—that widespread and persistent societal discrimi-

nation had resulted in “‘built-in headwinds’” which prevented

members of minority groups from obtaining employment,

401 U.S. at 432—does not exist with respect to age

discrimination.

As the Secretary explained: “Employment discrimination

because of race is identified, in the general understanding of

it, with non-employment resulting from feelings about people

entirely unrelated to their ability to do the job. There is no

significant discrimination of this kind so far as older workers

are concerned.” The Older American Worker, supra, at 2.

Rather, the ADEA was targeted at employer practices which

use age as a criterion for Genying employment opportunity

“because of assumptions about the effect of age on [an

employee’s] ability to do a job when there is in fact no basis

for these assumptions.” Id.; see also Hazen Paper, 507 U.S.

at 610-11.

The ADEA accordingly strikes a different balance between

the interests of employees and employers than does Title VII.

The EEOC’s imposition of ADEA disparate impact liability

because it is available under Title VIl—a position which the

agency has not defended in briefing in this Court in either this

casé or Adams v. Florida Power Corp.’—is manifestly

unreasonable. Its regulation is not entitled to deference under

either Chevron or Skidmore.

° Writ dismissed as improvidently granted, 535 U.S. 228 (2002).

19

(202)JUDICIAL CREATION OF AN ADEA DIS-

PARATE IMPACT CLAIM WOULD SERI-

OUSLY UNDERMINE THE ABILITY OF STATE

AND LOCAL GOVERNMENTS TO

EFFECTIVELY MANAGE THEIR WORK-

FORCES

As explained above, neither the text, structure, purpose nor

legislative history of the ADEA establish that Congress in-

tended to create a cause of action to challenge age-neutral

practices because they may have a disparate impact on em-

ployees within the protected class. Many essential workforce

practices have some correlation with age. As explained

below, judicial sanctioning of disparate impact ADEA claims

has unduly restricted the ability of governmental employers to

manage their workforces and provide cost-effective public

services. Moreover, even when a governmental em-ployer

ultimately prevails in a disparate impact suit, the litigation

costs of defending an age-neutral employment practice may

well exceed the cost-savings that the practice was meant to

provide.

For example, in Geller v. Markham, 635 F.2d 1027 (2d Cir.

1980), cert. denied, 451 U.S. 945 (1981), a school board had

adopted a cost-cutting policy of generally recruiting new

teachers with no more than five years experience. At trial,

the plaintiff introduced statistical evidence showing “that

92.6% of Connecticut teachers between 40 and 65 years

old . . . have more than 5 years experience, while only 62% of

teachers under 40 have taught more than five years.” 635

F.2d at 1030. The district court relied on Griggs to hold that

the “policy was discriminatory as a matter of law,” and

rejected the school board’s contention that the ADEA

required proof of a discriminatory motive. /d.

The Second Circuit affirmed. The court acknowledged that

“the significance of the 92.6% figure is somewhat weakened

by evidence that over 60% of teachers under 40 also have had

20

more than five years experience.” /d. at 1032-33. It none-

theless “agree[d] with [the district court’s] finding that the

high correlation between experience and membership in the

protected age group. . . would render application of the

[school board’s] policy discriminatory as a matter of law,

since, absent countervailing statistics, the likelihood of a

person over 40 being selected under the policy would oe

substantially less than that of a person under 40.” /d. at 1033

(citation omitted). According to the court, “(t]he purpose

of the . . . policy was to economize by employing less

experienced teachers, which would inevitably open more

teaching opportunities to younger less experienced applicants

than to the older, who were more experienced.” /d. at 1033

(emphasis added).

The court then rejected the school board’s contention that

the policy was justified by the need to cut costs due to

budgetary pressures. See id. at 1034. Relying on a Depart-

ment of Labor regulation which prohibited the classification

of employees “‘solely on the basis of age for the purpose of

comparing costs,”” id. (quoting 29 C.F.R. 860.103(h) (1979)),

the court ruled that “[t]his cost justification must fail.” /d.

The court did so notwithstanding that the school board’s

policy made “no reference to age and . . . in practice has had a

significant impact on teachers under the age of 40 as well as

those over that age.” 451 U.S. 945, 948 (Rehnquist., J.,

dissenting from denial of certiorari). According to the court

of appeals, “Ms. Geller established disparate impact by

proving that she was subjected to a facially neutral policy

disproportionately disadvantaging her as a member of a

protected class.” 635 F.2d at 1034 (citing inter alia

'° The court of appeals also held that Ms. Geller had “established a

prima facie case of discriminatory treatment under McDonnell Douglas

Co. v. Green, 411 U.S. 792 (1973).” 635 F.2d at 1034. It is clear,

21

As then-Justice Rehnquist explained, the Second Circuit’s

holding “manages to tie the hands of local school boards in

dealing with ever-increasing costs without the sanction of the

Act which Congress passed to protect older workers.” 451

U.S. at 948. The court’s “rationale would similarly prohibit

the Board from deciding no longer to give full credit for

teaching experience received at other school districts.” Jd.

Leftwich v. Harris-Stowe State College, 702 F.2d 686 (8"

Cir. 1983), is another example of the use of adverse impact

analysis to prevent public employers from taking necessary

action to control costs. In Leftwich, the Missouri legislature

transferred control of a college from the St. Louis Board of

Education to the state college system. /d. at 689. The college,

however, had much higher faculty costs than other

institutions in the state college system. Its board of regents

therefore adopted a plan to reduce the number of full-time

faculty members by a third (from 51 to 34) and “to reserve

certain positions on the . . . faculty for nontenured staff.”

Id. at 690.

Following the transfer, the regents invited the faculty to

apply for positions at the state college. Leftwich, a biology

professor, was not rehired when the number of biology

faculty was reduced from three to two—one tenured and one

non-tenured. /d. at 689. Leftwich then sued under the ADEA

on the ground that “[b]y reserving non-tenured positions, [the

regents] adversely affect older teachers since a larger share of

non-tenured teachers than tenured teachers are under forty

did not instruct the jury on the elements of a disparate treatment claim.

See Geller v. Markham, 481 F.Supp. 835, 839 (D.Conn. 1979) (rejecting

defendants’ motion for new trial) (Geller “does not challenge the motive

of those who made the individualized decision to hire her. . . . Ms. Geller

falls squarely within the Griggs line of authority, and the McDonnell

Douglas notions of motive are inapplicable.”). See also 635 F.2d at 1034

n.3 (“the trial court failed to instruct the jury on the specific elements of a

McDonnell Douglas prima facie case”).

22

years of age.” Leftwich v. Harris-Stowe State College, 540

F.Supp. 37, 41 (E.D.Mo. 1982).

Leftwich’s expert testified “that the mean age of the

tenured faculty at the ‘old’ city college was 45.8 years, while

the mean age of nontenured faculty was 34.3 years” and that

the “mean annual salary at the ‘old’ city college for tenured

faculty was $ 17,900 compared to $ 13,025 for nontenured

faculty.” 702 F.2d at 690. Based on the meager evidence

provided by such a small statistical base, the district court

found for Leftwich, holding that he had “established a prima

facie case of discriminatory impact” and that the regents’

contention that it was “necessary to reserve certain positions

for non-tenured teachers in order to cut expenses” was “not a

valid business excuse to defend a prima facie case of

disparate impact.” 540 F.Supp. at 41-42.

The court of appeals affirmed. According to the court,

Leftwich’s statistical evidence established that the board’s

policy had a disparate impact on older faculty members. See

702 F.2d at 690-91. Moreover, the plan’s purpose of

reducing faculty costs “did not establish a business necessity

defense.” Jd. at 691. While acknowledging that the “plan was

based on tenure status rather than explicitly on age,” the court

reasoned that “because of the close relationship between

tenure status and age, the plain intent and effect of the. . .

practice was to eliminate older workers who had built up,

through years of satisfactory service, higher salaries than their

younger counterparts.” Jd. According to the court, “[i]f the

existence of such higher salaries can be used to justify

discharging older employees, then the purpose of the ADEA

will be defeated.” /d.

While the court of appeals discussed the mean age of the

tenured and non-tenured faculty prior to the re-organization,

neither it nor the district court indicated the mean age of the

new tenured and non-tenured faculty. Moreover, neither the

court of appeals nor the district court examined the tenure

23

status and ages of the faculty who were not rehired, a telling

omission as the purpose of disparate impact analysis is

to determine the effect of the employer’s policy on a

protected group. Furthermore, given that at most 16 faculty

members were terminated, see 702 F.2d at 689, the

population was not large enough to produce a statistically

significant inference of age discrimination. See, e.g.,

International Bhd. Of Teamsters v. United States, 431 U.S.

324, 339-40 n.20 (1977) (“Considerations such as small

sample size may . . . detract from the value of [statistical]

evidence.”); cf. Mayor of Philadelphia v. Educational Equal-

ity League, 415 U.S. 605, 621 (1974) (“[{T]he District Court’s

concern for the smallness of the sample presented by the 13-

member Panel was. . . well founded.”).

Finally, in Leftwich the court of appeals affirmed the

district court’s order reinstating the plaintiff to a tenured

faculty position in the biology department. See 702 F.2d at .

693. The regents, however, had previously determined that

only two biology faculty were necessary, a decision which

presumably was also based in part on course demand. See

540 F.Supp. at 40. The federal courts’ disregard of the

college’s justification for its hiring plan typifies the undue

intrusion on the core management prerogatives of public

employers which results from the filing of ADEA disparate

impact claims. Such judicial scrutiny of essential personnel

practices falls outside the ADEA’s purpose of reducing

arbitrary age-based employment decisions “on the basis of

inaccurate and stigmatizing stereotypes.” Hazen Paper, 507

U.S. at 610.

Many necessary employment rules and policies have some

correlation with age. To be sure, governmental employers

may ultimately prevail on disparate impact claims. But

because the threshold to state a prima facie case of disparate

24

impact is easily met, in many instances even weak cases can

only be resolved after extensive discovery and/or trial.''

This point is demonstrated by a case similar to petitioners’

suit, in which the plaintiffs brought a disparate impact claim

alleging that a state university had a “practice of paying

market rates of salary to new faculty hires, but not paying

the market rate to incumbent professors.” MacPherson v.

University of Montevallo, 922 F.2d 766, 770 (11" Cir. 1991).

The plaintiffs claimed that this practice had “a disparate

impact on older people because they tend to be the faculty

members who have been at the University the longest.” /d. at

770-71. They did so notwithstanding that the university had

provided salary adjustments for market-based reasons to

professors whose fields were in great demand and had

previously provided both plaintiffs with adjustments. See id.

at 772. The case nonetheless went to trial, during which the

court granted the university’s motion for a directed verdict

at the close of the plaintiffs’ case on the ground that the

university had shown “a legitimate business justification for

its practice of paying new hires at market rates” and the

plaintiffs had failed to prove “the existence of an equally

effective, financially feasible, alternative practice.” See id.

at 773.

'' As explained above, both the EEOC and several courts have read the

“reasonable factors other than age” language in a manner which renders

it merely duplicative of the more stringent “business necessity” test. See

discussion supra at 16-17 n.8 (discussing 29 C.F.R. § 1625.7(d)). See

also Leftwich, 702 F.2d at 692 (“defendants have failed to meet their

burden of demonstrating that their discriminatory selection plan was

justified by business necessity”); Geller, 481 F.Supp. at 839 (“a showing

of disparate impact shifts the burden to the defendants to establish the

‘job-relatedness’ of their tests or the ‘business necessity’ behind

their policies”).

"? See also EEOC v. Governor Mifflin School Dist., 623 F.Supp. 734

(E.D. Pa. 1985) (EEOC brought disparate impact suit challenging terms of

collective bargaining agreement which reduced number of salary steps

25

Similarly, in District Council 37 v. New York City Dep't

of Parks & Rec., 113 F.3d-347 (2d Cir. 1997), the City

ultimately won a jury verdict in a disparate impact suit

challenging large layoffs that were necessitated by deep

budget cuts. In response to a severe fiscal crisis, the City had

cut the Park Department’s budget from $ 176 million to $ 108

million. See id. at 348. Because labor costs were such a large

part of the Parks’ budget, the Department ultimately laid off

“1,585 of its 5,180 employees.” /d. at 349. While the Depart-

ment eliminated positions across numerous job [lassify-

cations, it entirely eliminated the position of “laborer,” which

then included 187 employees. See id. at 349 n.1. The average

age of the laborers was 57, and every laborer was over the

age of 40. See id. However, all the laborers did not lose their

jobs. See id.; id. at 354. Some laborers invoked their seniority

to bump workers in other classifications. See id. at 349 n.1.

Before the layoffs, 48 percent of the Department’s work-

force was 40 or older. See id. Moreover, “only 40 percent of

those laid off were age 40 or older.” Jd. (footnote omitted).

Thus, employees over the age of 40 were actually under-

represented in the layoffs, and the workforce in fact became

older. The former laborers nonetheless sued the Department

on the ground that the layoffs had a disparate impact on

employees over the age of 40. See id. at 349. |

At trial, plaintiffs called an expert witness who had con-

ducted computer simulations of random layoffs. Plaintiffs’

expert asserted that if the Department had randomly selected

which job categories to cut and how extensive to cut and then

applied the seniority rules, only 32 percent of the laid-off

workers would have been age 40 or over. See id. at 350. This

and thereby resulted in the most senior employees getting smaller

remained the highest compensated; court granted summary judgment to

school district).

26

was deemed to constitute a prima facie case of disparate

impact age discrimination notwithstanding that “those age 40

and older were underrepresented” in the layoffs. /d. More-

over, the Department’s decision to eliminate the classification

of laborer was not dispositive as to whether an employee was

ultimately laid off because an employee might invoke

seniority rights and retain employment as some did. See id.

Although the jury returned a verdict for the City and the

court of appeals affirmed, the case nonetheless demonstrates

the problematic nature of applying ADEA disparate impact

analysis to the personnel practices of public employers.

While the plaintiffs statistical evidence was not even

remotely probative of arbitrary age-based discrimination, a

trial was nonetheless required to resolve the claim.'* Indeed,

the litigation of these claims will typically be extremely

costly given the complexity of the discovery and statistical

proof involving dueling expert witnesses. '*

"3 See also Mete, et al., v. New York State Office of Mental Retardation

& Dev. Disabilities, 984 F. Supp. 125, 144 (N.D.N.Y. 1997) (rejecting

state employer's summary judgment motion where State “maintain(ed]

that . . . RIF was necessitated by the budgetary crisis and that the

statistical disparity is explained by the fact that the [laid off employees}

are all management level. . . . [T]here are genuine issues of material fact

with respect to the trustworthiness of defendants’ business justification

that precludes [sic] summary judgment{.}”).

'* Also troubling was the district court’s allowing the case to go to trial

on the basis of a comparison of the ages of the laid-off laborers to a

computer simulation predicting the average age of random layoffs rather

than a comparison of the age of the laid-off workers to the age of the work

force. Statistics “come in infinite variety... . [Their usefulness depends

on all of the surrounding facts and circumstances.” Teamsters, 431 U.S. at

340. The comparison to random layoffs is unwarranted as few public

employers would engage in random layoffs when confronted with the

need to significantly restructure an agency for fiscal reasons. Rather,

agency heads would evaluate the structure of their workforces and

for layoffs.

27

Sanctioning ADEA disparate impact liability would also

likely result in other claims that are costly to litigate but

which do not implicate the statute’s purpose of preventing

intentional age-based discrimination. Indeed, because

declining physical condition is part of the aging process, it is

reasonable to expect extensive litigation challenging job-

based physical requirements. See, e.g., Smith v. City of Des

Moines, 99 F.3d 1466, 1468 (8" Cir. 1996). In Smith, a fire

captain failed the physical standards as determined by spi-

rometry (lung capacity) and stress (VO2 max) tests necessary

to wear a self-contained breathing apparatus (SCBA) while

fighting fires. See id. at 1468, 1471. The city offered to place

the fire captain on sick leave for several months until he

became eligible for retirement. See id. at 1468. The captain

did not, however, apply for retirement. See id. The city later

offered the captain a leave of absence with benefits to enable

him to retire with a full pension. See id. The captain again

did not file for retirement. See id. The city then discharged

the captain for failing to meet the physical requirements.

See id.

Thereafter, the captain sued under the ADEA alleging that

the City’s physical standards had “a disparate impact on older

firefighters.” Jd. While the district court granted summary

judgment for the city on the ground that its SCBA standards

met the business necessity test,'* the court of appeals affirmed

Furthermore, public employers are frequently subject to the constraints

imposed by collectively-bargained agreements. While these agreements

may significantly limit a public employer's ability to lay off employees

holdi oa aan cain ; pone amp Gated

not covered by the agreement. Faced with a fiscal crisis, a public

employer may have no choice but to layoff employees who are pre-

dominately within the ADEA’s protected class.

'’ The City’s spirometry rule was based on the standard developed by

the American National Standards Institute (ANSI). See 99 F.3d at 1471.

The City’s VO2 max rule was based on a review of medical literature,

which included a study that determined that only 40% of firefighters with

28

in a split decision, with the dissenting judge contending that

the city had failed to “validate its fitness test for job-

relatedness to the particular skills and exertional requirements

of a fire captain.” /d. at 1475. The dissent also reasoned that

“there is conflicting evidence in the record as to whether the

test used and the specific fitness level set by the city are

reasonable.” /d.

The dispute between the panel members in Smith is

inevitable in disparate impact cases. As a leading authority

explains, “[t}hough the key terms [‘business necessity’ and

‘job related’] have been used since Griggs, their meaning

remains unclear.” Barbara Lindemann et al., | Employment

Discrimination Law 106 (3d ed. 1996). It is plausible to

believe that some courts would find, as the dissenting judge

in Smith did, that the employer’s physical standards were

unreasonable and nct justified by the requirements of the job.

See id. at 1475. Yet there are a variety of factors that may

significantly affect an employee’s performance on a physical

standards test and which are within the control of the

employee, such as whether the employee smokes and whether

the employee maintains his physical condition and weight.

Allowing adverse impact claims under the ADEA would

frequently allow employees to avoid personal responsibility

by challenging the standard as having a disparate impact on

those over the age of forty.

As the foregoing cases demonstrate, authorizing ADEA

adverse impact claims would subject many essential public

employer personnel policies to judicial second-guessing even

when those practices are not remotely indicative of arbitrary

discrimination against workers over the age of 40. While

public employers may ultimately prevail in these cases, _ne

costs of doing so are great and can have a profound effect on

a VO2 max less than the City’s standard were able to complete necessary

firefighting tasks in a simulation. See id. at 1471-72.

Po NS Meee ~

- 29

the ability of a governmental unit to provide essential

services. Because the ADEA’s text, structure and purpose

make clear that a plaintiff must show discriminatory intent on

the part of a public employer to establish a violation of the

act, the Court should reject petitioners’ entreaty to imply a

disparate impact cause of action under the statute.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

RICHARD RUDA*

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

August 23, 2004