Amicus Curiae Brief — Kentucky Retirement Systems v. EEOC

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N 3 2p<p No. 06-1087

Lae aes,

IN THE Latics

Supreme Court of the Anifed States

KENTUCKY RETIREMENT SYSTEMS, et al.,

Petitioners,

v. |

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

COUNTIES, CGUNCIL OF STATE

GOVERNMENTS, NATIONAL LEAGUE OF

CITIES, AND INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION AS AMICI CURIAE

SUPPORTING PETITIONERS

RICHARD RUDA*

Chief Counsel

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 309

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

i, sal

WALSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

QUESTION PRESENTED

Whether the use of an age classification in a

disability-retirement plan automatically evidences

discriminatory intent sufficient to establish a prima

facie case of arbitrary age discrimination.

(1)

TABLE OF CONTENTS

QUESTION PRESENTED..............:cccsesceeeseeeenees

TABLE OF AUTHORITIES ..............:ccsscseeseeeees

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

SUMMARY OF ARGUMENT .............cssccsseeeeeees

I. THE USE OF AN AGE DISTINCTION

IN A DISABILITY RETIREMENT

PLAN DOES NOT AUTOMATIC-

ALLY ESTABLISH A PRIMA FACIE

CASE OF INTENTIONAL AGE

II. BECAUSE KENTUCKY'S USE OF AN

AGE DISTINCTION IS NONDISCRIM-

INATORY, IT CANNOT SUSTAIN A

PRIMA FACIE CASE OF AGE

DISCRIMINATION ...........ccscsssssssrsseseseeees

A. A Retirement Plan May Explicitly

Use Age as a Factor Without Doing

So “Because of” Age ................cccsceeeeeees

B. The Age Distinctions in Kentucky’s

Plan Do Not Discriminate “Because

GE ORAIION cctvcensrvencrrenesessnvmnsaveniaenemananesenees

(iii)

TABLE OF AUTHORITIES

Cases Page

Furnco Constr. Corp. v. Waters, 438 U.S.

i iiinintetinisniiienesiseniesensinsenines 2, 2-3, 9, 24

General Dynamics Land Sys. v. Cline, 540

Se MII saccsnicesieiuidesdutecnisuntinssieianious 12

General Electric Co. v. Gilbert, 429 U.S.

IT ios, cicdectscnisvuctiiipliensaiaaliinnney 21, 22, 23-24

Hazen Paper Co. v. Biggins, 507 U.S. 604

ee iitinieukinrdiisigiaphaiisiiigabicianded 4, 14-15, 15, 23, 24

Hishon v. King & Spalding, 467 U.S. 69

REE UES RRSP RECEP SENBEOT Ses An Serer 18

Int'l Bhd. of Teamsters v. United States,

Ee Rs SE IIIT iittnentenectntinnensanscsiiinimsanes 9

Johnson v. Robison, 415 U.S. 361 (1974) .... 22

Kimel v. Florida Bd. of Regents, 528 U.S.

i iiiichiccnestncdckciinedencntnstininddiiansbeumenints 17

Laugesen v. Anaconda Co., 510 F.2d 307

EN SN icitinidiiiactadienmnetiiaiibatsnceeabbiauiaianed 3, 8, 10

Lyon v. Ohio Ed. Assoc. & Profl Staff

Union, 53 F.3d 135 (6th Cir. 1995) .......... 13

Massachusetts Bd. of Retirement v.

Murgia, 427 U.S. 307 (1976) ............... passim

McDonnell Douglas Corp. v. Green, 411

ne: HUE CTT isicbnitindctenansiiccnebysseidntvesenassce 16

O’Connor v. Consolidated Coin Caterers

Corp., 517 U.S. 308 (1996).........cccccsseseeees 3,11

Rowan v. Lockheed Martin Energy Sys.,

360 F.3d 544 (6th Cir. 2004).................. 3, 10, 12

Sahadi v. Reynolds Chemical, 636 F.2d

RE ee BOR beticinscccesensoncnrccnessisosces 12

Smith v. City of Jackson, 544 U.S. 228

I ies tiki ili hihi niiticiiaenaahesisliasbtlahidinibdindnan 15

United Air Lines, Inc. v. McMann, 434

Se PT crthicasnsinbscdnnsabsdeiditenbiadianiies 10, 14

TABLE OF AUTHORITIES—Continued

Statutes Page

I all cell 1, 4, 8, 13

TERT OF 8,14

IS ID cnicincsncnenissncoseciassuesnenssconeel 5, 17, 23

Other Authorities

Albert H. Mowbray, Insurance: Its Theory

and Practice in the United States (3d ed.

SIE chi sciidisisinintiensbiitansiaibebtahediiasinabiastitnniipee 19

Black’s Law Dictionary (6th ed. 1991)......... 9

H.R. Rep. No. 90-805 (1967), as reprinted

in 1967 U.S.C.C.A.N. 2213.00. 3, 12,13

U.S. Sec’y of Labor, The Older American

Worker: Age Discrimination in Employ-

I iiiinicicssccntertetccidveeiniidaninbninniddeas 1,11

Webster’s Third New International Dic-

I TD vs tccccesinvisnicneceisenisitiasantiatedininns 9-10

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.

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. Sec’y of Labor,

The Older American Worker: Age Discrimination in

Employment 9 (1965). Amici thus fully recognize

the need for remedies to address intentional age

discrimination.

In contrast, the issue in this case—whether the use

of an age distinction to determine eligibility for

disability retirement benefits is by itself sufficient to

establish a prima facie case of arbitrary discrimi-

nation—raises the troubling prospect that public

employers will be subject to prolonged discovery and

trial even when they use benign employment policies

that further the ADEA’s core purpose of “promot[ing]

employment of older persons.” 29 U.S.C. § 621(b).

The court of appeals’ decision thus punishes peti-

tioners for engaging in precisely the employment

practices that the ADEA promotes.

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

and their consent letters 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 and their members,

has made a monetary contribution to the preparation or

submission of this brief.

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

There is no evidence of discriminatory intent in

Kentucky’s use of age as a factor in its retirement

plan. The en banc court of appeals erroneously

fixated on the presence of an explicit age distinction

for retirement eligibility and held that distinction

sufficient to establish the “intent” element of a prima

facie case of disparate treatment. Such mechanical

and superficial analysis falls short of the standards

set by this Court and the court of appeals itself

for determining whether a prima facie case is estab-

lished. The judgment below should be reversed and

the case dismissed.

1. Use of an age distinction cannot establish a

prima facie case of disparate treatment age dis-

crimination unless it creates a genuine inference of

discriminatory intent. Inferring that an employer

has acted with an invidious motive is a process of

reasoning by which a court reaches a tentative

conclusion after carefully examining the relevant

evidence. As this Court explained in Furnco Constr.

Corp. v. Waters, 438 U.S. 567, 577 (1978), “[a] prima

facie case . . . raises an inference of discrimination

only because we presume these acts, if otherwise

unexplained, are more likely than not based on the

consideration of impermissible factors.” Moreover,

“we are willing to presume this largely because we

know from our experience that more often than not

people do not act in a totally arbitrary manner,

without any underlying reasons, especially in a busi-

ness setting.” Id.

This Court has expressly cautioned against draw-

ing inferences of invidious discrimination based on

insufficient evidence. Although a prima facie case

can “theoretically” be constituted on the basis of “very

thin evidence,” such low-grade evidence does not

support the requisite inference as a matter of fact.

O’Connor v. Consolidated Coin Caterers Corp., 517

U.S. 308, 312 (1996).

Furnco and O’Connor thus militate against any

mechanical conclusion that a plaintiff has met the

burden of producing evidence of intent to discrimi-

nate based on age. Yet this is precisely what the

en banc court did in this case. By concluding that the

use of an age distinction in a retirement plan

automatically evidences discriminatory intent, the

court disregarded not only this Court’s teachings but

three decades of its own ADEA precedents. See, e.g.,

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

1975); Rowan v. Lockheed Martin Energy Sys., 360

F.3d 544 (6th Cir. 2004).

The legislative history of the ADEA likewise con-

firms that mechanical inferences of intentional age

discrimination are inappropriate. The House Report

counsels that “[t]he case by case basis should serve as

the underlying rule in the administration of the

legislation. Too many different types of situations in

employment occur for the strict application of general

prohibitions and provisions.” H.R. Rep. No. 90-805

(1967), as reprinted in 1967 U.S.C.C.A.N. 2213, 2220.

The House Report further specifies that the ADEA

was not intended to disrupt arrangements that

already comported with the Act’s purpose. It is

therefore troubling that the EEOC has elected to

challenge a policy that facilitates the hiring of older

workers, the core purpose of the ADEA, as set forth

in 29 U.S.C. § 621(b).

2. Kentucky’s use of an age distinction to deter-

mine retirement eligibility is clearly not the product

of discriminatory intent, nor does it result in

discriminatory treatment of “similarly situated” older

law enforcement officers. The plan therefore evi-

dences no unlawful age discrimination and the EEOC

failed to establish a prima facie case of disparate

treatment.

Age distinctions do not violate the ADEA unless

they are drawn “because of” age. This Court has

stressed that the ADEA requires a causal connection

between discriminatory intent and any alleged ad-

verse treatment. This Court has held that employers

do not violate the ADEA where an age-related factor,

but not age itself, is the motivation for the employer’s

decision. See Hazen Paper Co. v. Biggins, 507 US.

604 (1993).

A line based on age, unlike one based on race, can

be drawn for valid reasons related to age rather than

because of age itself. For example, the Court has

ruled that the Equal Protection Clause is not violated

by a state law that requires law enforcement officers

to retire at age 50. Massachusetts Bd. of Retirement

v. Murgia, 427 U.S. 307 (1976) (per curiam). Such a

law, the Court held, was rationally related to the

State’s interest in “protect[ing] the public by assuring

physical preparedness of its uniformed police.” Id.

at 314.

Moreover, in 1996 Congress sanctioned the use of

an age distinction pertaining to public safety service

by amending the ADEA to permit state and local

governmeuats to make age 55 a mandatory retirement

age for firefighters and law enforcement officers. 29

U.S.C. § 6234). Far from having such a mandatory

retirement age, petitioner Jefferson County gives

officers the option of retiring at age 55 (or after 20

years of service), or continuing to work, as com-

plainant Lickteig elected to do. It is at the least

ironic that the County’s policy of allowing officers to

continue to work beyond retirement has resulted in

the EEOC’s claim of invidious age discrimination.

Were Kentucky to set a mandatory retirement age

of 55 there could be no dispute that the same age

classification Kentucky now uses to determine dis-

ability retirement would be nondiscriminatory under

the ADEA. This is because an officer who is retired

at 55 would not have the “opportunity” to become

permanently disabled at an age when the plan offers

normal retirement benefits rather than disability

retirement benefits, and thus could not allege dis-

parate treatment in comparison to a younger per-

manently-disabled officer.

The Kentucky retirement plan is designed to provide

hazardous-duty personnel who become permanently

disabled before they qualify for normal retirement

with a retirement benefit that is similar to what they

would have earned had they worked up to the earliest

milestone of retirement eligibility. Without the use

of the normal retirement age as a factor in the

calculation of benefits, it would be impossible to

project what an officer would have earned had she

not become disabled.

Not only is the plan based on benign motives, the

plan does not adversely affect older workers. The

plan is a form of insurance that provides officers with

two related but distinct benefits: (1) the peace-of-

mind benefit that comes from the assurance of

income support in the event that the officer becomes

permanently disabled prior to reaching retirement

age; and (2) the compensation benefit of the income

support itself if and when a contingency, whether it

is permanent disability or retirement, occurs. An

officer who reaches normal retirement age without

becoming disabled is no less insured against the

contingency of permanent disability during her pre-

retirement service than a homeowner with fire

insurance whose house does not burn down. No one

could rationally argue that either the pre-retirement

officer or the homeowner would be “better off” if the

contingency occurred.

Yet the EEOC’s claim of intentional age dis-

crimination says for all intents and purposes just

that. It is based on the difference in compensation

for post-retirement-age officers and those who be-

come permanently disabled prior to retirement age.

This simplistic notion disregards the reality that the

EEOC represents a class of officers who have already

enjoyed the full peace-of-mind benefits conferred by

disability coverage, and are now seeking to capture

a surplus of compensation benefits under the theory

that the same plan that once afforded them peace-of-

mind benefits is now “unequal.”

The Kentucky plan is also nondiscriminatory be-

cause an officer who elects to work past age 55 is not

facially excluded from any risk coverage. There is no

risk for which younger officers are protected and

older officers are not. The plan does not exclude

older officers from the receipt of retirement benefits

in the event of a disability that prevents them from

continuing to work. While post-retirement-age offi-

cers such as Lickteig are especially susceptible to

age-related disabilities, the plan’s normal retirement

benefit assures them of coverage if and when their

disability results in retirement.

The en banc court of appeals’ ruling that the EEOC

has made out a prima facie case of intentional age

discrimination is thus irreconcilable with both this

Court’s cases and common sense. Because the non-

discriminatory nature of Kentucky’s plan is clear, no

inference of discriminatory intent can be drawn and

the judgment below should be reversed.

ARGUMENT

Both the district court and a panel of the court of

appeals correctly ruled that the EEOC failed to

establish a prima facie case of disparate treatment

age discrimination because there is no evidence of

discriminatory intent in Kentucky’s use of age as a

factor in its retirement plan. The en banc court of

appeals erred in reversing.

In its analysis, that court fixated on the presence

of an age distinction for retirement eligibility and

disregarded the obvious: that the purpose of the plan

is to “provide{] that a worker who is disabled before

reaching eligibility for normal retirement benefits

has a way of receiving a retirement benefit equal to

(or closer to) what he would have received had he not

become disabled before reaching the normal retire-

ment age or 20 years of service.” Pet. App. 33a (Boggs,

J., dissenting). The functional effect of the court’s

decision is to render all explicit age distinctions

in retirement plans presumptively unlawful, even

where, as here, the plan clearly does not discriminate

“because of... age.” 29 U.S.C. § 623(a).

The analysis and holding of the en banc court are

erroneous. That court itself has repeatedly acknowl-

edged that “Congress did not desire that the [ADEA]

be applied formalistically.” Laugesen v. Anaconda

Co., 510 F.2d 307, 312 n.4 (6th Cir. 1975). In

particular, because “the nature of age discrimination

lis] quite different from discrimination based upon

the classes protected by Title VII,” Pet. App. 12a, “it

lis] inappropriate simply to borrow and apply the

[McDonnell Douglas] guidelines automatically” in

ADEA cases. Laugesen, 510 F.2d at 312.

Although this fundamental error alone suffices for

reversal, there is more. By forcing petitioners to go

through years of discovery and possibly a trial on

a patently baseless claim of intentional age dis-

crimination, the en banc court and the EEOC are

punishing Jefferson County for doing precisely what

Congress intended when it enacted the ADEA—

providing meaningful employment to older workers.

See 29 U.S.C. § 621(b).

Because its analysis of the EEOQC’s claim of inten-

tional age discrimination falls well short of the

standard for establishing a prima facie case and de-

feats the primary affirmative purpose of the ADEA,

the judgment of the court of appeals should be

' reversed.

I. THE USE OF AN AGE DISTINCTION IN A

DISABILITY RETIREMENT PLAN DOES

NOT AUTOMATICALLY ESTABLISH A

PRIMA FACIE CASE OF INTENTIONAL

AGE DISCRIMINATION.

The use of an age distinction cannot establish a

prima facie case of disparate-treatment discrimi-

nation unless it creates a genuine inference of dis-

criminatory intent. See Intl Bhd. of Teamsters v.

United States, 431 U.S. 324, 335 n.15 (*977). As this

Court explained in Furnco Constr. Corp. v. Waters,

A prima facie case . . . raises an inference of

discrimination only because we presume these

acts, if otherwise unexplained, are more likely

than not based on the consideration of imper-

missible factors. And we are willing to presume

this largely because we know from our experience

that more often than not people do not act in a

totally arbitrary manner, without any underlying

reasons, especially in a business setting.

438 U.S. 567, 577 (1978) (emphasis added) (citation

omitted).

Accordingly, inferring discriminatory intent is not

simply a mechanical exercise. Rather, it is a process

of reasoning by which a tentative conclusion is

reached only after an examination of the relevant

evidence—informed by what Furnco judiciously de-

scribed as “experience.” See Black’s Law Dictionary

778 (6th ed. 1991) (inference is a “process of rea-

soning by which a fact or proposition sought to be

established is deduced as a logical consequence from

other facts, or a state of facts, already proved or

admitted”); Webster’s Third New International Dic-

tionary 1158 (1976) (inference is “the act of passing

from one or more propositions, statements, cr judg-

ments considered as true to another the truth of

which is believed to follow from that of the former”).

Furnco thus militates against the use of per se

rules to establish a prima facie case of intentional age

discrimination. By concluding that the use of an

age distinction in a retirement plan automatically

evidences discriminatory intent, the en banc court

disregarded this Court’s teachings as well as that

court’s own long line of precedents beginning with

Laugesen, 510 F.2d at 307 (6th Cir. 1975).’

As a consequence, the court also disregarded a

critical distinction between race and age. While

“experience” may well support an inference of dis-

criminatory intent from the use of any racial distinc-

tion in employment, it likewise counsels that the

same inference by no means automatically arises

from the use of an age distinction. This is particu-

larly true in retirement plans, where consideration

of age must account for two realities: First, “all

retirement plans necessarily make distinctions based

on age.” United Air Lines, Inc. v. McMann, 434 US.

192, 207 (1977) (White, J., concurring in the judg-

ment). Second, advancing age does not describe an

immutable quality or a discrete class, but rather

“marks a stage that each of us will reach if we live

out our normal span.” Massachusetts Bd. of Retire-

* A Shepard’s check of Laugesen conducted on Nov. 1, 2007,

determined that this Sixth Circuit decision has been cited 318

times since it was handed down in 1975. Laugesen was followed

most recently for its interpretation of the ADEA’s legislative

history by the Sixth Circuit in Rowan v. Lockheed Martin

Energy Sys., 360 F.3d 544, 548 (6th Cir. 2004).

ment v. Murgia, 427 U.S. 307, 313-14 (1976) (per

curiam).

Moreover, this Court has expressly cautioned

against drawing inferences of invidious age dis-

crimination based on insufficient evidence. In

O’Connor v. Consolidated Coin Caterers Corp., 517

U.S. 308, 312 (1996), the Court noted that a prima

facie case could “theoretically” be constituted “on the

basis of very thin evidence—for example, the replace-

ment of a 68-year-old by a 65-year-old.” The Court

emphasized, however, that this inference would be

unfounded because “the prima facie case requires

evidence adequate to create an inference that an

employment decision was based on a[n] [illegal]

discriminatory criterion ... .” Id. (internal quotations

marks omitted). Thus, “[iJn the age discrimination

context, such an inference cannot be drawn from the

replacement of one worker with another worker

insignificantly younger.” Id. at 313.

Likewise, using age as one factor in a retirement

plan is, by itself, very thin evidence that is in-

adequate to create an inference that the plan was

based on discriminatory intent. When, as here, an

age distinction is used in a benign plan that provides

both disability and normal retirement benefits to all

participants, it is patently insufficient to create a

prima facie case of invidious age discrimination.

The legislative history confirms that mechanical

inferences of intentional discrimination are incom-

patible with the ADEA. With the understanding that

“not all age discrimination [in employment] is

‘arbitrary,” U.S. Sec’y of Labor, The Older American

Worker: Age Discrimination in Employment 1 (1965),

the House Report counsels that “[t]he case by case

basis should serve as the underlying rule in the

administration of the legislation. Too many different

types of situations in employment occur for the strict

application of general prohibitions and provisions.”

H.R. Rep. No. 90-805 (1967), as reprinted in 1967

U.S.C.C.A.N. 2213, 2220, quoted in Laugesen, 510

F.2d at 312 n.4. Accord, e.g., Rowan, 360 F.3d at 548-

49 (6th Cir. 2004) (“[T]he legislative history of the

[ADEA] counsels against reading the statute as for-

bidding any consideration of age under any circum-

stances.”) (citing and quoting Laugesen); Sahadi v.

Reynolds Chemical, 636 F.2d 1116, 1118 n. 3 (6th Cir.

1980). See also General Dynamics Land Sys. v. Cline,

540 U.S. 581, 586-87 (2004) (“Congress chose not to

include age within discrimination forbidden by Title

VII . . . being aware that there were legitimate

reasons as well as invidious ones for making employ-

ment decisions on age.”).

The House Report further specifies that the ADEA

was not intended to disrupt arrangements that

comported with the ADEA’s purpose. Recognizing

that certain industries already employed a dis-

proportionately high number of older workers, the

Report explained that the ADEA was not intended to

“worsen a situation such as this, or to prevent an

employer from achieving a reasonable age balance

.... It is expected that the Secretary will recognize

these particular situations and treat them according

to their individual merits on a case by case basis.”

H.R. Rep. No. 90-805, as reprinted in 1967

U.S.C.C.A.N. at 2219-20, quoted in Laugesen, 510

F.2d at 312 n.4.

It is therefore disturbing that the EEOC has

elected to challenge a policy that facilitates the hiring

of older workers—the very raison d’etre of the Act.

See 29 U.S.C. § 621(b). Under Kentucky’s plan, a

hazardous-duty officer hired at age 49 who becomes

disabled at age 54 may receive a lower payout from

disability retirement than an officer hired at 35 who

becomes disabled at 40,° but the important point, lost

on the court below, is that the older worker was both

hired and covered under the disability-retirement

plan.

Condemning this result as impermissible discrimi-

nation, particularly in a field like law enforcement

that depends upon steady recruitment of new officers,

would invite the problem of arbitrary age discrimi-

nation that Congress sought to remedy in the first

place. As explained in the dissent below,

[Kentucky’s] very willingness to ignore ageist

stereotypes and hire workers of any age actually

appears to have exacerbated plaintiffs “prob-

lem.” Those most “disadvantaged” are those who

were oldest at the time of hiring. It would be

contrary to the letter, as well as the spirit, of the

ADEA to penalize the employer for the incidental

ramifications of objectivity.

Pet. App. 37a (quoting Lyon v. Ohio Ed. Assoc. &

Profl Staff Union, 53 F.3d 135, 140 n.6 (6th Cir.

1995)).

* In this example, the 54-year-old receives one year of service

credit imputed to his calculation of benefits, while the 40-year-

old receives five years of service credit. See Pet. Br. 7a.

Il. BECAUSE KENTUCKY’S USE OF AN

AGE DISTINCTION IS NONDISCRIMINA-

TORY, IT CANNOT SUSTAIN A PRIMA

FACIE CASE OF AGE DISCRIMINATION.

Because “all retirement plans necessarily make

distinctions based on age,” McMann, 434 U.S. at 207

(White, J., concurring), and not all these distinctions

are “because of... age,” 29 U.S.C. § 623(a)(1), the

mere use of an age distinction in a retirement plan

does not evidence discriminatory intent.

In this case, Kentucky’s use of an age distinction to

determine retirement eligibility is clearly not the

product of discriminatory intent. Furthermore, Ken-

tucky’s use of an age distinction does not result in

adverse treatment for similarly situated older law

enforcement officers. The plan therefore evinces no

unlawful discrimination. Because the EEOC failed

to proffer evidence of discriminatory intent in support

of its claim of invidious age discrimination by

petitioners, it failed to establish a prima facie case

and this case ought to have been dismissed in its

early stages.

A. A Retirement Plan May Explicitly Use

Age as a Factor Without Doing So

“Because of” Age.

Age distinctions do not violate the ADEA unless

they are drawn “because of” age. This Court has

stressed that the ADEA requires a causal connection

between discriminatory intent and any alleged ad-

verse treatment. See Hazen Paper Co. v. Biggins, 507

U.S. 604, 610 (1993) (“In a disparate treatment case,

liability depends on whether [age] actually motivated

the employer’s decision.”); see also Smith v. City of

Jackson, 544 U.S. 228, 249 (2005) (O’Connor, J.,

concurring) (§ 4(a)(1) “plainly requires discriminatory

intent, for to take an action against an individual

‘because of such individual’s age’ is to do so ‘by reason

of or ‘on account of her age”). Consequently, the

Court has unequivocally held that employers do not

violate the ADEA where an age-related factor, but

not age itself, is the motivation for the employer’s

decision.

In Hazen Paper, for example, the Court held that

the employer did not engage in disparate treatment

under the ADEA when it terminated a 62-year-

old employee before his pension vested. The Court

reasoned that “even if the motivating factor is

correlated with age, as pension status typically is,”

there is no disparate treatment under the ADEA if

the motivating factor is not age itself. Jd. at 611.

To be sure, the explicit use of age in a retirement

plan signifies that the motivation for drawing the

distinction is related to age. But as Hazen Paper

instructs, this is not enough to demonstrate that the

distinction itself has been drawn because of age.

Despite this Court’s guidance, the en banc court

concluded that Kentucky’s retirement plan “cate-

gorically excludes still-working employees over age

fifty-five from a particular employment benefit be-

cause of their age.” Pet. App. 16a. Yet, even assum-

ing that the court was correct in finding that

employees over age 55 are excluded from a material

retirement benefit,‘ the court never explained how or

why the asserted differential treatment was “because

of” age. Such conclusory analysis would suffice only

if the existence of an age distinction is in and of itself

equivalent to the reason for its existence—a classic

tautology.

In fact, a line based on age, unlike one based on

race, can be drawn for valid reasons related to age

rather than because of age itself." For example, in

Massachusetts Bd. of Retirement v. Murgia, this

Court held that a mandatory retirement policy for

state police officers over age 50 was constitutional

because it was rationally related to Massachusetts’

legitimate interest in “protectling] the public by

assuring physical preparedness of its uniformed

police.” 427 U.S. at 314. In so holding, the Court

noted that “the primary function of the [police] is to

protect persons and property and maintain law and

order,” and that “even [appellee’s] experts concede[d]

that there is a general relationship between advanc-

ing age and decreasing physical ability to respond to

the demands of the job.” /d. at 310-11 (internal

quotation marks omitted).

Although Murgia involved an equal protection

challenge rather than an ADEA challenge, the

Court’s refusal to treat age as a suspect class

suggests that, unlike race or gender, the category of

* This assumption is wrong because older workers are not

adversely treated by Kentucky’s plan, as explained at pp. 19-24,

infra.

* See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801

(1973) (“[I]t is abundantly clear that Title VII tolerates no racial

discrimiaation, subtle or otherwise.”).

age does not invite the same presumption of invidious

discrimination. Equally important, Murgia illus-

trates a way in which an age distinction can be

drawn not “because of” age but to advance a gov-

ernmental interest related to age.

Moreover, in 1996 Congress sanctioned a virtually

identical age distinction for hazardous-duty employ-

ees by amending the ADEA to permit: state and local

governments to set mandatory retirement at age 55

for firefighters and law enforcement officers. See 29

U.S.C. § 623(j). Jefferson County does not have such

a mandatory retirement age; instead, officers may

either retire at age 55 or after 20 years of service, or

continue working, as Lickteig chose to do. Ironically,

it is precisely this generosity that has resulted in

the EEOC’s lawsuit alleging invidious age dis-

crimination.

The permissibility of an age distinction, apart from

29 U.S.C. § 623(j) itself, can easily be demonstrated

by imagining that Kentucky sets mandatory retire-

ment for its officers at age 55. In that case, there

could be no quarrel that the same age distinction that

Kentucky uses now to calculate “disability retire-

ment” would be nondiscriminatory under the ADEA.

This is because an able-bodied officer who is retired

at age 55 would not have the “opportunity” to become

disabled at all, and thus could not allege disparate

treatment in comparison to a younger disabled

* Although the Court has indicated that the ADEA prohibits a

broader range of conduct than does the Equal Protection Clause,

see Kimel v. Florida Bd. of Regents, 528 U.S. 62, 81-86 (2000),

this does not mean that age distinctions, which are “pre-

sumptively rational” under the Equal Protection Clause, id. at

84, are presumptively unlawful under the ADEA.

officer. Of course, “[a] benefit that is part and parcel

of the employment relationship may not be doled out

in a discriminatory fashion, even if the employer

would be free . . . not to provide the benefit at all.”

Hishon v. King & Spalding, 467 U.S. 69, 75 (1984).

The point here is that Kentucky’s age distinction

could unquestionably exist without incurring allega-

tions of disparate treatment by the class of officers

over age 55. There is nothing about an explicit age

distinction, by itself, which evidences unlawful dis-

crimination.

B. The Age Distinctions in Kentucky’s

Plan Do Not Discriminate “Because of”

Age.

Kentucky’s retirement plan is designed to provide

an officer who becomes permanently disabled before

she qualifies for normal retirement with “a retire-

ment benefit that is roughly equivalent to what she

would have earned had she worked up to the closest

milestone of retirement eligibility.” Pet. Br. 7; see

also Pet. App. 33a (Boggs, J., dissenting) (“The plan

simply provides that a worker who is disabled before

reaching eligibility for normal retirement benefits

has a way of receiving a retirement benefit equal to

(or closer to) what he would have received had he not

become disabled before reaching the normal retire-

ment age or 20 years of service.”). Without the use of

the normal retirement age as a factor in the calcula-

tion of benefits, it would be impossible to project what

an officer would have earned had she not become

disabled.

Not only is Kentucky’s plan based on benign mo-

tives, but older workers are not “adversely treated”

by the plan. The plan is a form of insurance that

confers two related but distinct benefits for officers

such as Lickteig engaged in hazardous employment:

(1) the peace-of-mind benefit for officers (and their

families) that comes from the assurance of income

support in the event the officer becomes permanently

disabled prior to reaching retirement age; and (2) the

compensation benefit of the income support itself

if and when a contingency (disability or retirement)

is reached.

It is an axiom of insurance theory that not “only

those who suffer loss and receive indemnity obtain

any real benefit from insurance. . . . the promise to

pay if a loss occurs may be fully as valuable as

reimbursement after the loss.” Albert H. Mowbray,

Insurance: Its Theory and Practice in the United

States 1 (3d ed. 1946). The value of insurance,

therefore, cannot be measured only by the amount

of compensation a policy promises, for if the insured-

against contingency never occurs—for example, a

house protected by fire insurance never burns

down—then compensation is never paid; but it could

scarcely be argued that the homeowner was not

benefited by the insurance policy.

Nevertheless, the EEOC urges this Court to con-

sider only the ostensible difference in compensation

payouts.’ This simplistic notion disregards the real-

ity that the EEOC represents a class of officers who

"It would be absurd to argue that a law enforcement officer

does not benefit from disability coverage merely because she

does not become disabled during the period of coverage, and

amici do not understand the EEOC to be making that

argument.

have already enjoyed the full peace-of-mind benefits

conferred by disability coverage, and are now seeking

to capture a surplus of compensation benefits under

the theory that the same plan that once afforded

them peace-of-mind benefits is now “unequal.”

For example, a police officer who is hired at age 40

and works past normal retirement age enjoys 15

years of insurance protection against losing her

livelihood due to disability. Following normal

retirement age, retirement benefits are substituted

for disability benefits, but this does not constitute

“adverse treatment” of the class of older officers.

Prior to disability, these officers continuously enjoyed

the peace-of-mind benefit afforded by the very plan

the EEOC now challenges. When the benefits of the

plan are viewed across the time-span of employment,

it is clear that “parity” cannot simply mean paying

an officer like Lickteig the same amount of com-

pensation benefits paid to pre-retirement officers.

This sort of “parity” is impossible to achieve without

reducing the level of insurance coverage—and thus

peace-of-mind benefits—across the board.”

* In this case, Kentucky has twice modified its retirement

statute in response to this litigation, resulting in successively

less robust disability coverage for its employees. See Pet. App.

8a-9a n.2. The 2000 version of the scheme provides that “an

employee is not eligible for disability retirement benefits if the

employee is ‘eligible for an unreduced retirement allowance.”

Id. at 9a. This excludes the class of employees who qualify for

normal retirement after 20 years of service. Id. The 2004

version of the statute calculates disability retirement benefits to

be “the higher of twenty-five percent . . . of the member’s

monthly final rate of pay or the retirement allowance deter-

mined in the same manner as for retirement at his normal

retirement date with years of service and final compensation

Put another way, the essence of the EEOC’s claim

of invidious age discrimination is the alleged discrep-

ancy in monetary value of the insurance protection

between older and younger officers. This contention

is both reductionist and nonsensical. Because the

plan calculates the disability payout for younger

officers by projecting what the officer would have

earned had she continued working until normal

retirement age, it is meaningless for an officer over

normal retirement age to claim entitlement to a bene-

fit that is defined by the amount that the officer

would have earned had she worked until normal

retirement.

Kentucky’s plan is nondiscriminatory in a second

way, because an officer who chooses to work past age

55 is not facially excluded from any category of risk.

In General Electric Co. v. Gilbert, 429 U.S. 125

(1976), the Court considered a disability insurance

plan that excluded pregnancy. While pregnancy is

unique to women, the Court noted that there was no

evidence “that the financial benefits of the Plan

worked to discriminate against any definable group

or class in terms of the aggregate risk protection

derived by that group or class from the program.” Id.

at 138 (internal quotation marks omitted).

In holding that the plan thus did not constitute

gender-based discrimination, the Court further noted

that the plan, provided to male and female workers,

“covers exactly the same categories of risk, and is

facially nondiscriminatory in the sense that ‘[t]here is

being determined as of the date of his disability.” Jd. at 8a n.2.

Because no service credits are imputed under this calculation,

the benefit payout is invariably less.

no risk from which men are protected and women are

not.” Jd. at 138. Likewise, under Kentucky’s plan,

there is no risk from which younger officers are

protected and older officers are not.’ The plan does

not exclude older officers from being insured against

disability; both young and old officers are eligible to

collect a retirement pension in the event they become

disabled.

Kentucky’s retirement plan, like the plan in Gilbert,

“in effect (and for ali that appears), is nothing more

than an insurance package, which covers some risks,

but excludes others.” Jd. at 138. And in fact, far

from discriminating because of age, the plan seeks to

compensate officers in proportion to their risk of loss.

Younger officers simply have more to lose. The plan

aims to compensate its officers accordingly.” This is

not “because of” age, but because of the tragedy of

becoming permanently disabled before accumulating

a proportionate “life’s worth” of benefits. Indeed, it

would be highly irrational for an officer who becomes

* In fact, “disability retirement” covers only the risk of dis-

ability, while “normal retirement” provides catch-all coverage

for any risks short of, or beyond, disability as defined by statute.

See Pet. Br. 7a. An officer over age 55 need only stop working

voluntarily to receive benefits.

" Not only is the loss objectively greater for younger workers,

but as the dissent below noted, the “very reasonable benefit”

created by the plan is “one that a younger worker . . . would

be more likely to value more highly than a newly-hired older

worker, who would be more likely to have acquired other bene-

fits from more extensive earlier employment.” Pet. App. 33a

(Boggs, J., dissenting). This Court has noted that the value of

the benefit to the recipient is a relevant factor in determining

whether two classes are similarly situated. See Johnson v.

Robison, 415 U.S. 361, 382-83 (1974).

disabled at age 61 due to the aging process to envy

the plight of a “similarly situated” 35-year-old officer

permanently disabled in the line of duty simply

because the 35-year-old receives a marginally greater

dollar amount of retirement benefits.

It is therefore a fundamentally false comparison to

say that an officer is “similarly situated” to a younger

officer with the same years of service, because this

comparison disregards the reality that the plan was

designed to address—that “[aJll else being equal, the

non-disabled [younger employee] of course has more

years to work and live than does [the older employee].”

Pet. App. 3la (Boggs, J., dissenting). See Hazen Paper,

507 U.S. at 611 (“On average, an older employee has

had more years in the work force than a younger

employee, and thus may well have accumulated more

years of service with a particular employer.”).

Finally, any possibility that Kentucky’s use of an

age distinction is arbitrary is foreclosed by the

recognition by Congress that age 55 is a rational line

to differentiate the risks related to law enforcement

service. See 29 U.S.C. § 623(j); see also Murgia, 427

U.S. at 310-11 (recognizing the “general relationship

between advancing age and decreasing physical

ability to respond to the demands of the job”). While

an officer over age 55 may be unusually susceptible

to age-related risks, Kentucky need not pay for the

extra cost of insuring those risks. Just as “preg-

nancy-related disabilities constitute an additional

risk, unique to women .. . the failure to compensate

them for this risk”—in this case, by not paying an

identical dollar amount of retirement benefits to

every disabled officer—“does not destroy the pre-

sumed parity of the benefits . . . which results from

the facially evenhanded inclusion of risks.” Gilbert,

429 U.S. at 139.

Thus, age does not “actually motivate!] the em-

ployer’s decision” in this case. Hazen Paper, 507 U.S.

at 610. Rather, as is clear from the nature of the

plan, petitioners’ motivation is to provide adequate

and appropriate coverage to the entire hazardous-

duty work force, including law enforcement officers

starting their careers.

The iegal conclusion urged by the EEOC—that

petitioners’ retirement plan invidiously discriminates

because of age—is irreconcilable with this Court’s

guidance that “a prima facie case ... raises an

inference of discrimination only because we presume

these acts, if otherwise unexplained, are more likely

than not based on the consideration of impermissible

factors.” Furnco, 438 U.S. at 577 (emphasis added).

Here, the nondiscriminatory nature of the plan

explains itself. Because the plan is neither based on

discriminatory motives nor results in differential

treatment for older workers, no inference of inten-

tional discrimination can reasonably be drawn.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,