OPINION OF THE COURT SMITH V. CITY OF JACKSON 544 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1160 AZEL P. SMITH, et al., PETITIONERS v. CITY OF JACKSON, MISSISSIPPI, et al.

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[March 30, 2005]

															   Justice Stevens announced the
judgment of the Court and delivered the opinion of the Court with
respect to Parts I, II, and IV, and an opinion with respect to Part
III, in which Justice Souter, Justice Ginsburg, and Justice Breyer
join.

															   Petitioners, police and public
safety officers employed by the city of Jackson, Mississippi
(hereinafter City), contend that salary increases received in 1999
violated the Age Discrimination in Employment Act of 1967 (ADEA)
because they were less generous to officers over the age of 40 than
to younger officers. Their suit raises the question whether the
“disparate-impact” theory of recovery announced in Griggs v. Duke Power Co., 401 U. S. 424 (1971),
for cases brought under Title VII of the Civil Rights Act of 1964,
is cognizable under the ADEA. Despite the age of the ADEA, it is a
question that we have not yet addressed. See Hazen Paper
Co. v. Biggins, 507 U. S. 604 , 610 (1993); Markham v. Geller , 451 U. S. 945 (1981)
(Rehnquist, J., dissenting from denial of certiorari).

															I

															   On October 1, 1998, the City
adopted a pay plan granting raises to all City employees. The
stated purpose of the plan was to “attract and retain qualified
people, provide incentive for performance, maintain competitiveness
with other public sector agencies and ensure equitable compensation
to all employees regardless of age, sex, race and/or
disability.”[ Footnote 1 ] On May
1, 1999, a revision of the plan, which was motivated, at least in
part, by the City’s desire to bring the starting salaries of police
officers up to the regional average, granted raises to all police
officers and police dispatchers. Those who had less than five years
of tenure received proportionately greater raises when compared to
their former pay than those with more seniority. Although some
officers over the age of 40 had less than five years of service,
most of the older officers had more.

															   Petitioners are a group of older
officers who filed suit under the ADEA claiming both that the City
deliberately discriminated against them because of their age (the
“disparate-treatment” claim) and that they were “adversely
affected” by the plan because of their age (the “disparate-impact”
claim). The District Court granted summary judgment to the City on
both claims. The Court of Appeals held that the ruling on the
former claim was premature because petitioners were entitled to
further discovery on the issue of intent, but it affirmed the
dismissal of the disparate-impact claim. 351 F. 3d 183 (CA5
2003). Over one judge’s dissent, the majority concluded that
disparate-impact claims are categorically unavailable under the
ADEA. Both the majority and the dissent assumed that the facts
alleged by petitioners would entitle them to relief under the
reasoning of Griggs. We granted the officers’ petition for
certiorari, 541 U. S. ___ (2004), and now hold that the ADEA does
authorize recovery in “disparate-impact” cases comparable to Griggs . Because, however, we conclude that petitioners
have not set forth a valid disparate-impact claim, we affirm.

															II

															   During the deliberations that
preceded the enactment of the Civil Rights Act of 1964, Congress
considered and rejected proposed amendments that would have
included older workers among the classes protected from employment
discrimination.[ Footnote 2 ] General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581 ,
587 (2004). Congress did, however, request the Secretary of Labor
to “make a full and complete study of the factors which might tend
to result in discrimination in employment because of age and of the
consequences of such discrimination on the economy and individuals
affected.” §715, 78 Stat. 265. The Secretary’s report, submitted in
response to Congress’ request, noted that there was little
discrimination arising from dislike or intolerance of older people,
but that “arbitrary” discrimination did result from certain age
limits. Report of the Secretary of Labor, The Older American
Worker: Age Discrimination in Employment 22 (June 1965), reprinted
in U. S. Equal Employment Opportunity Commission, Legislative
History of the Age Discrimination in Employment Act (1981)
(hereinafter Wirtz Report). Moreover, the report observed that
discriminatory effects resulted from “[i]nstitutional arrangements
that indirectly restrict the employment of older workers.” Id ., at 15.

															   In response to that report
Congress directed the Secretary to propose remedial legislation,
see Fair Labor Standards Amendments of 1966, Pub. L. 89–601, §606,
80 Stat. 845, and then acted favorably on his proposal. As enacted
in 1967, §4(a)(2) of the ADEA, now codified as 29 U. S. C.
§623(a)(2), provided that it shall be unlawful for an employer “to
limit, segregate, or classify his employees in any

															way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely
affect his status as an employee, because of such individual’s
age … .” 81 Stat. 603. Except for substitution of the
word “age” for the words “race, color, religion, sex, or national
origin,” the language of that provision in the ADEA is identical to
that found in §703(a)(2) of the Civil Rights Act of 1964 (Title
VII). Other provisions of the ADEA also parallel the earlier
statute.[ Footnote 3 ] Unlike
Title VII, however, §4(f)(1) of the ADEA, 81 Stat. 603, contains
language that significantly narrows its coverage by permitting any
“otherwise prohibited” action “where the differentiation is based
on reasonable factors other than age” (hereinafter RFOA
provision).

															III

															   In determining whether the ADEA
authorizes disparate-impact claims, we begin with the premise that
when Congress uses the same language in two statutes having similar
purposes, particularly when one is enacted shortly after the other,
it is appropriate to presume that Congress intended that text to
have the same meaning in both statutes. Northcross v. Board of Ed. of Memphis City Schools, 412 U. S. 427 , 428
(1973) (per curiam) . We have consistently applied that
presumption to language in the ADEA that was “derived in haec
verba from Title VII.” Lorillard v. Pons, 434 U. S. 575 , 584
(1978). [ Footnote
4 ] Our unanimous interpretation of §703(a)(2) of the Title VII
in Griggs is therefore a precedent of compelling
importance. In Griggs , a case decided four years after the enactment of
the ADEA, we considered whether §703 of Title VII prohibited an
employer “from requiring a high school education or passing of a
standardized general intelligence test as a condition of employment
in or transfer to jobs when (a) neither standard is shown to be
significantly related to successful job performance, (b) both
requirements operate to disqualify Negroes at a substantially
higher rate than white applicants, and (c) the jobs in question
formerly had been filled only by white employees as part of a
longstanding practice of giving preference to whites.” 401 U. S.,
at 425–426. Accepting the Court of Appeals’ conclusion that the
employer had adopted the diploma and test requirements without any
intent to discriminate, we held that good faith “does not redeem
employment procedures or testing mechanisms that operate as
‘built-in headwinds’ for minority groups and are unrelated to
measuring job capability.” Id., at 432. We explained that Congress had
“directed the thrust of the Act to the consequences of
employment practices, not simply the motivation.” Ibid . We
relied on the fact that history is “filled with examples of men and
women who rendered highly effective performance without the
conventional badges of accomplishment in terms of certificates,
diplomas, or degrees. Diplomas and tests are useful servants, but
Congress has mandated the commonsense proposition that they are not
to become masters of reality.” Id., at 433. And we noted
that the Equal Employment Opportunity Commission (EEOC), which had
enforcement responsibility, had issued guidelines that accorded
with our view. Id. , at 433–434. We thus squarely held that
§703(a)(2) of Title VII did not require a showing of discriminatory
intent.[ Footnote 5 ] While our opinion in Griggs relied primarily on the purposes of the Act,
buttressed by the fact that the EEOC had endorsed the same view, we
have subsequently noted that our holding represented the better
reading of the statutory text as well. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977 , 991
(1988). Neither §703(a)(2) nor the comparable language in the ADEA
simply prohibits actions that “limit, segregate, or classify”
persons; rather the language prohibits such actions that “deprive
any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such
individual’s” race or age. Ibid . (explaining that in
disparate-impact cases, “the employer’s practices may be said to
‘adversely affect [an individual’s status] as an employee’ ”
(alteration in original) (quoting 42 U. S. C.
§2000e–2(a)(2))). Thus the text focuses on the effects of
the action on the employee rather than the motivation for the
action of the employer.[ Footnote
6 ] Griggs , which
interpreted the identical text at issue here, thus strongly
suggests that a disparate-impact theory should be cognizable under
the ADEA.[ Footnote 7 ] Indeed,
for over two decades after our decision in Griggs , the
Courts of Appeal uniformly interpreted the ADEA as authorizing
recovery on a “disparate-impact” theory in appropriate
cases.[ Footnote 8 ] It was only
after our decision in Hazen Paper Co. v. Biggins, 507 U. S. 604 (1993), that some of
those courts concluded that the ADEA did not authorize a
disparate-impact theory of liability.[ Footnote 9 ] Our opinion in Hazen Paper , however,
did not address or comment on the issue we decide today. In that
case, we held that an employee’s allegation that he was discharged
shortly before his pension would have vested did not state a cause
of action under a disparate-treatment theory. The
motivating factor was not, we held, the employee’s age, but rather
his years of service, a factor that the ADEA did not prohibit an
employer from considering when terminating an employee. Id ., at 612.[ Footnote
10 ] While we noted that disparate-treatment “captures the
essence of what Congress sought to prohibit in the ADEA,” id., at 610, we were careful to explain that we were not
deciding “whether a disparate impact theory of liability is
available under the ADEA … .” Ibid . In sum,
there is nothing in our opinion in Hazen Paper that
precludes an interpretation of the ADEA that parallels our holding
in Griggs. The Court of Appeals’
categorical rejection of disparate-impact liability, like Justice
O’Connor’s, rested primarily on the RFOA provision and the
majority’s analysis of legislative history. As we have already
explained, we think the history of the enactment of the ADEA, with
particular reference to the Wirtz Report, supports the
pre- Hazen Paper consensus concerning disparate-impact
liability. And Hazen Paper itself contains the response to
the concern over the RFOA provision. The RFOA provision provides
that it shall not be unlawful for an employer “to take any action
otherwise prohibited under subsectio[n] (a) … where the
differentiation is based on reasonable factors other than age
discrimination … .” 81 Stat. 603. In most
disparate-treatment cases, if an employer in fact acted on a factor
other than age, the action would not be prohibited under subsection
(a) in the first place. See Hazen Paper , 507 U. S., at 609
(“[T]here is no disparate treatment under the ADEA when the factor
motivating the employer is some feature other than the employee’s
age.”). In those disparate-treatment cases, such as in Hazen
Paper itself, the RFOA provision is simply unnecessary to
avoid liability under the ADEA, since there was no prohibited
action in the first place. The RFOA provision is not, as Justice
O’Connor suggests, a “safe harbor from liability,” post ,
at 5 (emphasis deleted), since there would be no liability under
§4(a). See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 254
(1981) (noting, in a Title VII case, that an employer can defeat
liability by showing that the employee was rejected for “a
legitimate, nondiscriminatory reason” without reference to an RFOA
provision). In disparate-impact cases,
however, the allegedly “otherwise prohibited” activity is not based
on age. Ibid . (“ ‘[C]laims that stress “disparate
impact” [by contrast] involve employment practices that are
facially neutral in their treatment of different groups but that in
fact fall more harshly on one group than another …’ ”
(quoting Teamsters v. United States, 431 U. S. 324 , 335–336,
n. 15 (1977))). It is, accordingly, in cases involving
disparate-impact claims that the RFOA provision plays its principal
role by precluding liability if the adverse impact was attributable
to a nonage factor that was “reasonable.” Rather than support an
argument that disparate impact is unavailable under the ADEA, the
RFOA provision actually supports the contrary conclusion.[ Footnote 11 ] Finally, we note that both the
Department of Labor, which initially drafted the legislation, and
the EEOC, which is the agency charged by Congress with
responsibility for implementing the statute, 29 U. S. C. §628,
have consistently interpreted the ADEA to authorize relief on a
disparate-impact theory. The initial regulations, while
not mentioning disparate impact by
name, nevertheless permitted such claims if the employer relied on
a factor that was not related to age. 29 CFR §860.103(f)(1)(i)
(1970) (barring physical fitness requirements that were not
“reasonably necessary for the specific work to be performed”). See
also §1625.7 (2004) (setting forth the standards for a
disparate-impact claim). The text of the statute, as
interpreted in Griggs , the RFOA provision, and the EEOC
regulations all support petitioners’ view. We therefore conclude
that it was error for the Court of Appeals to hold that the
disparate-impact theory of liability is categorically unavailable
under the ADEA. IV Two textual
differences between the ADEA and Title VII make it clear that even
though both statutes authorize recovery on a disparate-impact
theory, the scope of disparate-impact liability under ADEA is
narrower than under Title VII. The first is the RFOA provision,
which we have already identified. The second is the amendment to
Title VII contained in the Civil Rights Act of 1991, 105 Stat.
1071. One of the purposes of that amendment was to modify the
Court’s holding in Wards Cove Packing Co. v. Atonio, 490
U. S. 642 (1989), a case in which we narrowly construed the
employer’s exposure to liability on a disparate-impact theory. See
Civil Rights Act of 1991, §2, 105 Stat. 1071. While the relevant
1991 amendments expanded the coverage of Title VII, they did not
amend the ADEA or speak to the subject of age discrimination.
Hence, Wards Cove’ s pre-1991 interpretation of Title VII’s
identical language remains applicable to the ADEA. Congress’
decision to limit the coverage of the ADEA by including the RFOA
provision is consistent with the fact that age, unlike race or
other classifications protected by Title VII, not uncommonly has
relevance to an individual’s capacity to engage in certain types of
employment. To be sure, Congress recognized that this is not always
the case, and that society may perceive those differences to be
larger or more consequential than they are in fact. However, as
Secretary Wirtz noted in his report, “certain circumstances …
unquestionably affect older workers more strongly, as a group, than
they do younger workers.” Wirtz Report 28. Thus, it is not
surprising that certain employment criteria that are routinely used
may be reasonable despite their adverse impact on older workers as
a group. Moreover, intentional discrimination on the basis of age
has not occurred at the same levels as discrimination against those
protected by Title VII. While the ADEA reflects Congress’ intent to
give older workers employment opportunities whenever possible, the
RFOA provision reflects this historical difference. Turning to the case before us,
we initially note that petitioners have done little more than point
out that the pay plan at issue is relatively less generous to older
workers than to younger workers. They have not identified any
specific test, requirement, or practice within the pay plan that
has an adverse impact on older workers. As we held in Wards
Cove , it is not enough to simply allege that there is a
disparate impact on workers, or point to a generalized policy that
leads to such an impact. Rather, the employee is
“ ‘responsible for isolating and identifying the specific employment practices that are allegedly
responsible for any observed statistical disparities.’ ” 490
U. S., at 656 (emphasis added) (quoting Watson, 487 U. S.,
at 994). Petitioners have failed to do so. Their failure to
identify the specific practice being challenged is the sort of
omission that could “result in employers being potentially liable
for ‘the myriad of innocent causes that may lead to statistical
imbalances … .’ ” 490 U. S., at 657. In this case
not only did petitioners thus err by failing to identify the
relevant practice, but it is also clear from the record that the
City’s plan was based on reasonable factors other than
age. The plan divided each of five
basic positions—police officer, master police officer, police
sergeant, police lieutenant, and deputy police chief—into a series
of steps and half-steps. The wage for each range was based on a
survey of comparable communities in the Southeast. Employees were
then assigned a step (or half-step) within their position that
corresponded to the lowest step that would still give the
individual a 2% raise. Most of the officers were in the three
lowest ranks; in each of those ranks there were officers under age
40 and officers over 40. In none did their age affect their
compensation. The few officers in the two highest ranks are all
over 40. Their raises, though higher in dollar amount than the
raises given to junior officers, represented a smaller percentage
of their salaries, which of course are higher than the salaries
paid to their juniors. They are members of the class complaining of
the “disparate impact” of the award. Petitioners’ evidence
established two principal facts: First, almost two-thirds (66.2%)
of the officers under 40 received raises of more than 10% while
less than half (45.3%) of those over 40 did.[ Footnote 12 ] Second, the average percentage
increase for the entire class of officers with less than five years
of tenure was somewhat higher than the percentage for those with
more seniority.[ Footnote 13 ]
Because older officers tended to occupy more senior positions, on
average they received smaller increases when measured as a
percentage of their salary. The basic explanation for the
differential was the City’s perceived need to raise the salaries of
junior officers to make them competitive with comparable positions
in the market. Thus, the disparate impact is
attributable to the City’s decision to give raises based on
seniority and position. Reliance on seniority and rank is
unquestionably reasonable given the City’s goal of raising
employees’ salaries to match those in surrounding communities. In
sum, we hold that the City’s decision to grant a larger raise to
lower echelon employees for the purpose of bringing salaries in
line with that of surrounding police forces was a decision based on
a “reasonable factor other than age” that responded to the City’s
legitimate goal of retaining police officers. Cf. MacPherson v. University of Montevallo , 922
F. 2d 766, 772 (CA11 1991). While there may have been
other reasonable ways for the City to achieve its goals, the one
selected was not unreasonable. Unlike the business necessity test,
which asks whether there are other ways for the employer to achieve
its goals that do not result in a disparate impact on a protected
class, the reasonableness inquiry includes no such
requirement. Accordingly, while we do not
agree with the Court of Appeals’ holding that that the
disparate-impact theory of recovery is never available under the
ADEA, we affirm its judgment. It is so ordered. The Chief Justice
took no part in the decision of this case. Footnote
1 App. 15. Footnote
2 See 110 Cong. Rec. 2596–2599
(1964) (amendment offered by Rep. Dowdy, voted down 123 to 94); id. , at 9911–9913, 13490–13492 (amendment offered by Sen.
Smathers, voted down 63 to 28). Footnote
3 Like Title VII with respect
to all protected classes except race, the ADEA provides an
affirmative defense to liability where age is “a bona fide
occupational qualification reasonably necessary to the normal
operation of the particular business … ,” §4(f)(1), 81
Stat. 603; Cf. Civil Rights Act of 1964, §703(e), 78 Stat. 256
(“Notwithstanding any other provision of this title, … it shall not
be [unlawful to perform any of the prohibited activities in
§§703(a)–(d)] on the basis of his religion, sex, or national origin
in those certain instances where religion, sex, or national origin
is a bona fide occupational qualification reasonably necessary to
the normal operation of that particular business
enterprise …”). Footnote
4 Oscar Mayer &
Co . v. Evans , 441 U. S. 750 , 756
(1979) (interpreting §14(b) of the ADEA in light of §706(c) of
Title VII); Western Air Lines, Inc . v. Criswell , 472 U. S. 400 ,
416 (1985) (interpreting ADEA’s bona fide occupational
qualification exception in light of Title VII’s BFOQ exception); Trans World Airlines, Inc . v. Thurston , 469 U. S. 111 , 121
(1985) (interpreting the ADEA to apply to denial of privileges
cases in a similar manner as under Title VII). Footnote
5 The congressional purposes on
which we relied in Griggs have a striking parallel to two
important points made in the Wirtz Report. Just as the Griggs opinion ruled out discrimination based on racial
animus as a problem in that case, the Wirtz Report concluded that
there was no significant discrimination of that kind so far as
older workers are concerned. Wirtz Report 23. And just as Griggs recognized that the high school diploma
requirement, which was unrelated to job performance, had an unfair
impact on African-Americans who had received inferior educational
opportunities in segregated schools, 401 U. S., at 430, the Wirtz
Report identified the identical obstacle to the employment of older
workers. “Any formal employment standard which requires, for
example, a high school diploma will obviously work against the
employment of many older workers—unfairly if, despite his limited
schooling, an older worker’s years of experience have given him the
relevant equivalent of a high school education.” Wirtz Report 21.
Thus, just as the statutory text is identical, there is a
remarkable similarity between the congressional goals we cited in Griggs and those present in the Wirtz Report. Footnote
6 In reaching a contrary
conclusion, Justice O’Connor ignores key textual differences
between §4(a)(1), which does not encompass-disparate-impact
liability, and §4(a)(2). Section (a)(1) makes it unlawful for an
employer “to fail or refuse to hire … any individual …
because of such individual’s age.” (Emphasis added.) The
focus of the section is on the employer’s actions with respect to
the targeted individual. Paragraph (a)(2), however, makes it
unlawful for an employer “to limit … his employees in any
way that 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.” (Emphasis added.) Unlike in paragraph
(a)(2), there is thus an incongruity between the employer’s
actions—which are focused on his employees generally—and the
individual employee who adversely suffers because of those actions.
Thus, an employer who classifies his employees without respect to
age may still be liable under the terms of this paragraph if such
classification adversely affects the employee because of that
employee’s age—the very definition of disparate impact. Justice
O’Connor is therefore quite wrong to suggest that the textual
differences between the two paragraphs are unimportant. Footnote
7 Justice O’Connor reaches a
contrary conclusion based on the text of the statute, the
legislative history, and the structure of the statute. As we
explain above, n. 6, supra , her textual reasoning is
not persuasive. Further, while Congress may have intended to remedy
disparate-impact type situations through “noncoercive measures” in
part, there is nothing to suggest that it intended such measures to
be the sole method of achieving the desired result of remedying
practices that had an adverse effect on older workers. Finally, we
agree that the differences between age and the classes protected in
Title VII are relevant, and that Congress might well have intended
to treat the two differently. See infra , at 7 (O’Connor,
J., concurring in judgment). However, Congress obviously considered
those classes of individuals to be sufficiently similar to warrant
enacting identical legislation, at least with respect to employment
practices it sought to prohibit. While those differences, coupled with a difference in the text of the statue such
as the RFOA provision, may warrant addressing disparate-impact
claims in the two statutes differently, see infra , at
11–12, it does not justify departing from the plain text and our
settled interpretation of that text. Footnote
8 B. Lindemann & D. Kadue,
Age Discrimination in Employment Law 416, and n. 16 (2003)
(citing Holt v. Gamewell Corp. , 797 F. 2d
36, 37 (CA1 1986); Maresco v. Evans Chemetics ,
964 F. 2d 106, 115 (CA2 1992); Blum v. Witco
Chemical Corp. , 829 F. 2d 367, 372 (CA3 1987); Wooden v. Board of Ed. of Jefferson Cty., Ky. ,
931 F. 2d 376, 379 (CA6 1991); Monroe v. United
Airlines , 736 F. 2d 394, 404, n. 3 (CA7 1984); Dace v. ACF Industries , 722 F. 2d 374, 378
(CA8 1983), modified, 728 F. 2d 976 (1984) (per
curiam); Palmer v. United States , 794
F. 2d 534, 536 (CA9 1986); Faulkner v. Super Valu
Stores, Inc. , 3 F. 3d 1419 (CA10 1993) (assuming
disparate-impact theory); MacPherson v. University of
Montevallo , 922 F. 2d 766, 771 (CA11 1991); Arnold v. United States Postal Service , 863
F. 2d 994, 998 (CADC 1988) (assuming disparate-impact
theory)). Footnote
9 See, e.g., Mullin v. Raytheon Co ., 164 F. 3d 696, 700 (CA1 1999)
(“[T]ectonic plates shifted when the Court decided [Hazen
Paper] ”); Gantt v. Wilson Sporting Goods
Co ., 143 F. 3d 1042, 1048 (CA6 1998) (“[T]here is now
considerable doubt as to whether a claim of age discrimination may
exist under a disparate-impact theory” (internal quotation marks
and citation omitted)). See also Lindemann & Kadue, at 417–418,
n. 23 (collecting cases). In contrast to the First, Seventh, Tenth,
and Eleventh Circuits, which have held that there is no
disparate-impact theory, the Second, Eighth, and Ninth Circuits
continue to recognize such a theory. Id ., at 417, and n.
22. Footnote
10 We did note, however, that
the challenged conduct was actionable under §510 of the Employee
Retirement Income Security Act of 1974. 507 U. S., at
612. Footnote
11 We note that if Congress
intended to prohibit all disparate-impact claims, it certainly
could have done so. For instance, in the Equal Pay Act of 1963, 29
U. S. C. §206(d)(1), Congress barred recovery if a pay
differential was based “on any other factor”—reasonable or
unreasonable—“other than sex.” The fact that Congress provided that
employees could use only reasonable factors in defending a
suit under the ADEA is therefore instructive. Footnote
12 Exhibit C, Record
1192. Footnote
13 App. to Pet. for Cert.
41a. OPINION OF SCALIA, J. SMITH V. CITY OF JACKSON 544 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1160 AZEL P. SMITH, et al., PETITIONERS v. CITY OF JACKSON, MISSISSIPPI, et al.

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[March 30, 2005]

															   Justice Scalia, concurring in
part and concurring in the judgment.

															   I concur in the judgment of the
Court, and join all except Part III of its opinion. As to that
Part, I agree with all of the Court’s reasoning, but would find it
a basis, not for independent determination of the disparate-impact
question, but for deferral to the reasonable views of the Equal
Employment Opportunity Commission (EEOC or Commission) pursuant to Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837 (1984) . See General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581 , 601–602
(2004) (Scalia, J., dissenting).

															   This is an absolutely classic case for
deference to agency interpretation. The Age Discrimination in
Employment Act of 1967 (ADEA), 29 U. S. C. §621 et
seq. , confers upon the EEOC authority to issue “such rules and
regulations as it may consider necessary or appropriate for
carrying out the” ADEA. §628. Pursuant to this authority, the EEOC
promulgated, after notice-and-comment rulemaking, see 46 Fed. Reg.
47724, 47727 (1981), a regulation that reads as follows:

															“When an employment practice, including a test, is
claimed as a basis for different treatment of employees or
applicants for employment on the grounds that it is a ‘factor other
than’ age, and such a practice has an adverse impact on individuals
within the protected age group, it can only be justified as a
business necessity.” 29 CFR §1625.7(d) (2004).

															The statement of the EEOC which accompanied
publication of the agency’s final interpretation of the ADEA said
the following regarding this regulation: “Paragraph (d) of §1625.7
has been rewritten 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. See Laugesen v. Anaconda Corp. , 510 F. 2d 307 (6th Cir. 1975); Griggs v. Duke Power Co. , 401 U. S. 424 (1971).”
46 Fed. Reg., at 47725. The regulation affirmed, moreover, what had
been the longstanding position of the Department of Labor, the
agency that previously administered the ADEA, see ante , at
10; 29 CFR §860.103(f)(1)(i) (1970). And finally, the Commission
has appeared in numerous cases in the lower courts, both as a party
and as amicus curiae , to defend the position that the ADEA
authorizes disparate-impact claims.[ Footnote 1 ] Even under the unduly constrained standards of
agency deference recited in United States v. Mead
Corp. , 533 U.
S. 218 (2001), the EEOC’s reasonable view that the ADEA
authorizes disparate-impact claims is deserving of deference. Id. , at 229–231, and n. 12. A fortiori , it
is entitled to deference under the pre- Mead formulation of Chevron , to which I con- tinue to adhere. See 533 U. S.,
at 256–257 (Scalia, J., dissenting).

															   Justice O’Connor both denies that the EEOC has
taken a position on the existence of disparate-impact claims and
asserts that, even if it has, its position does not deserve
deference. See post , at 18–21 (opinion concurring in
judgment). The first claim cannot be squared with the text of the
EEOC’s regulation, quoted above. This cannot possibly be read as
agnostic on the question whether the ADEA prohibits employer
practices that have a disparate impact on the aged. It provides
that such practices “can only be justified as a business
necessity,” compelling the conclusion that, absent a “business
necessity,” such practices are prohibited.[ Footnote 2 ]

															    Justice O’Connor would not defer to the EEOC
regulation, even if it read as it does, because, she says, the
regulation “does not purport to interpret the language of §4(a) at
all,” but is rather limited to an interpretation of the “reasonable
factors other than age” (RFOA) clause of §4(f)(1) of the ADEA,
which she says is not at issue. Post , at 19. This argument
assumes, however, that the RFOA clause operates independently of
the remainder of the ADEA. It does not. Section 4(f)(1) provides,
in relevant part:

															“It shall not be unlawful for an employer,
employment agency, or labor organization … to take any action otherwise prohibited under subsections (a), (b), (c), or
(e) of this section … where the differentiation is based on
reasonable factors other than age … .” 29 U. S. C.
§623(f)(1) (emphasis added).

															As this text makes clear, the RFOA defense is
relevant only as a response to employer actions “otherwise
prohibited” by the ADEA. Hence, the unavoidable meaning of the
regulation at issue is that the ADEA prohibits employer actions
that have an “adverse impact on individuals within the protected
age group.” 29 CFR §1625.7(d) (2004). And, of course, the only
provision of the ADEA that could conceivably be interpreted to
effect such a prohibition is §4(a)(2)—the provision that Justice
O'Connor maintains the EEOC “does not purport to interpret … at
all.” Post , at 19.[ Footnote 3 ]

															   Lastly, Justice O’Connor argues that the
EEOC’s interpretation of what is “otherwise prohibited” by the ADEA
is not entitled to deference because the Court concludes that the
same regulation’s interpretation of another term— the term
“reasonable factors other than age,” which the regulation takes to
include only “business necessity”—is unreasonable. Post ,
at 21. Her logic seems to be that, because the two interpretations
appear in the same paragraph, they should stand or fall together.
She cites no case for this proposition, and it makes little sense.
If the two simultaneously adopted interpretations were contained in distinct paragraphs, the invalidation of one would not, of
course, render the other infirm. (Justice O’Connor does not mean to
imply, I assume, that our rejection of the EEOC’s application of
the phrase “reasonable factors other than age” to disparate impact
claims in paragraph (d) of §1625.7 relieves the lower courts of the
obligation to defer to the EEOC’s other applications of the same
phrase in paragraph (c) or (e)). I can conceive no basis for a
different rule simply because the two simul- taneously adopted
interpretations appear in the same paragraph.

															   The EEOC has express authority to promulgate
rules and regulations interpreting the ADEA. It has exercised that
authority to recognize disparate-impact claims. And, for the
reasons given by the plurality opinion, its position is eminently
reasonable. In my view, that is sufficient to resolve this
case. Footnote 1 See, e.g. , Brief for EEOC as Amicus Curiae Supporting Plaintiffs-Appellees in Meacham v. Knolls Atomic Power Laboratory , No.
02–4083(L) etc. (CA2), p. 12, available at
http://www.eeoc.gov/briefs/ meacha.txt (all internet materials as
visited Mar. 24, 2005, and available in the Clerk of Court’s case
file) (“The Commission has consistently defended [the
interpretation announced in 29 CFR §1625.7(d) (2004)], arguing that
a claim of discrimination under a disparate impact theory is
cognizable.”); Brief for EEOC as Amicus Curiae Supporting
Plaintiffs-Appellants Seeking Reversal in Sitko v. Goodyear Tire & Rubber Co. , No. 02–4083 (CA6),
p. 8, available at http://www.eeoc.gov/sitkov.txt (pending); EEOC v. McDonnell Douglas Corp. , 191 F. 3d
948, 950–951 (CA8 1999). Footnote 2 Perhaps Justice O’Connor adopts the narrower
position that, while the EEOC has taken the view that the ADEA
prohibits actions that have a disparate impact, it has stopped
short of recognizing “disparate impact claims .” Post , at 18 (opinion concurring in judgment) (emphasis
added). If so, this position is equally misguided. The EEOC need
not take the extra step of recognizing that individuals harmed by
prohibited actions have a right to sue; the ADEA itself makes that
automatic. 29 U. S. C. §626(c) (“Any person aggrieved may
bring a civil action in any court of competent jurisdiction for
such legal or equitable relief as will effectuate the purposes of
this chapter …”). Footnote 3 Justice O’Connor argues that the regulation
does not necessarily construe subsection (4)(a)(2) to prohibit
disparate impact, because disparate treatment also can
have the effect which the regulation addresses—viz., “an adverse
impact on individuals within the protected age group,” 29 CFR
§1625.7(d). See post , at 20. That is true enough. But the
question here is not whether disparate treatment claims (when they
have a disparate impact) are also covered by the
regulation; it is whether disparate impact claims of all sorts are covered; and there is no way to avoid the
conclusion (consistently reaffirmed by the agency’s actions over
the years) that they are. That is also a complete response to
Justice O’Connor’s point that the regulation could not refer to
§4(a)(2) because it includes "applicants for employment," who are
protected only under §4(a)(1). Perhaps applicants for employment
are covered only when (as Justice O’Connor posits) disparate
treatment results in disparate impact; or perhaps the agency’s
attempt to sweep employment applications into the disparate impact
prohibition is mistaken. But whatever in addition it may
cover, or may erroneously seek to cover, it is impossible to
contend that the regulation does not cover actions that
“limit, segregate or classify” employees in a way that produces a
disparate impact on those within the protected age group; and the
only basis for its interpretation that those actions are prohibited
is §(4)(a)(2). O'CONNOR, J., CONCURRING IN JUDGMENT SMITH V. CITY OF JACKSON 544 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1160 AZEL P. SMITH, et al., PETITIONERS v. CITY OF JACKSON, MISSISSIPPI, et al.

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[March 30, 2005]

															   Justice O’Connor, with whom
Justice Kennedy and Justice Thomas join, concurring in the
judgment.

															   “Disparate treatment … captures
the essence of what Congress sought to prohibit in the [Age
Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C.
§621 et seq. ] It is the very essence of age discrimination
for an older employee to be fired because the employer believes
that productivity and competence decline with old age.” Hazen
Paper Co. v. Biggins , 507 U. S. 604 , 610
(1993). In the nearly four decades since the ADEA’s enactment,
however, we have never read the statute to impose liability upon an
employer without proof of discriminatory intent. See ibid.;
Markham v. Geller , 451 U. S. 945 (1981)
(Rehnquist, J., dissenting from denial of certiorari). I decline to
join the Court in doing so today.

															   I would instead affirm the judgment below on
the ground that disparate impact claims are not cognizable under
the ADEA. The ADEA’s text, legislative history, and purposes
together make clear that Congress did not intend the statute to
authorize such claims. Moreover, the significant differences
between the ADEA and Title VII of the Civil Rights Act of 1964
counsel against transposing to the former our construction of the
latter in Griggs v. Duke Power Co. , 401 U. S. 424 (1971).
Finally, the agencies charged with administering the ADEA have
never authoritatively construed the statute’s prohibitory language
to impose disparate impact liability. Thus, on the precise question
of statutory interpretation now before us, there is no reasoned
agency reading of the text to which we might defer.

															I

															A

															   Our starting point is the
statute’s text. Section 4(a) of the ADEA makes it unlawful for an
employer:

															“(1) to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age; [or]

															“(2) 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).

															   Neither petitioners nor the
plurality contend that the first paragraph, §4(a)(1), authorizes
disparate impact claims, and I think it obvious that it does not.
That provision 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. See Webster’s Third New International Dictionary 194 (1961);
see also Teamsters v. United States , 431 U. S. 324 , 335–336,
n. 15 (1977) (“ ‘Disparate treatment’ … is the most
easily understood type of discrimination. The employer simply
treats some people less favorably than others because of their [protected characteristic]. Proof of discriminatory motive is
critical” (emphasis added)).

															   Petitioners look instead to the second
paragraph, §4(a)(2), as the basis for their disparate impact claim.
But petitioners’ argument founders on the plain language of the
statute, the natural reading of which requires proof of
discriminatory intent. Section 4(a)(2) uses the phrase “because of
… age” in precisely the same manner as does the preceding
paragraph—to make plain that an employer is liable only if its
adverse action against an individual is motivated by the individual’s age.

															   Paragraphs (a)(1) and (a)(2) do differ in one
informative respect. The employer actions targeted by paragraph
(a)(1)— i.e. , refusing to hire, discharging, or
discriminating against—are inherently harmful to
the targeted individual. The actions referred to in paragraph
(a)(2), on the other hand— i.e. , limiting, segregating, or
classifying—are facially neutral . Accordingly, paragraph
(a)(2) includes additional language which clarifies that, to give
rise to liability, the employer’s action must actually injure
someone: The decision to limit, segregate, or classify employees
must “deprive or tend to deprive [an] individual of employment
opportunities or otherwise adversely affect his status as an
employee.” That distinction aside, the structures of paragraphs
(a)(1) and (a)(2) are otherwise identical. Each paragraph prohibits
an employer from taking specified adverse actions against an
individual “because of such individual’s age.”

															   The plurality instead reads paragraph (a)(2)
to prohibit employer actions that “adversely affect [an
individual’s] status as an employe[e] because of such individual’s
age.” Under this reading, “because of … age” refers to the cause of the adverse effect rather than the motive for the employer’s action . See ante , at 6. This reading is unpersuasive for two reasons.
First, it ignores the obvious parallel between paragraphs (a)(1)
and (a)(2) by giving the phrase “because of such individual’s age”
a different meaning in each of the two paragraphs. And second, it
ignores the drafters’ use of a comma separating the “because of …
age” clause from the preceding language. That comma makes plain
that the “because of … age” clause should not be read, as the
plurality would have it, to modify only the “adversely affect”
phrase. See, e.g. , United States v. Ron Pair
Enterprises , Inc., 489 U. S. 235 , 241
(1989) (interpreting statute in light of the drafters’ use of a
comma to set aside a particular phrase from the following
language); see also B. Garner, A Dictionary of Modern Legal Usage
101 (2d ed. 1995) (“Generally, the word because should not
follow a comma”). Rather, the “because of … age” clause is set
aside to make clear that it modifies the entirety of the
preceding paragraph: An employer may not, because of an
individual’s age, limit, segregate, or classify his employees in a
way that harms that individual.

															   The plurality also argues that its reading is
supported by the supposed “incongruity” between paragraph (a)(2)’s
use of the plural in referring to the employer’s actions (“limit,
segregate, or classify his employees ”) and its use of the
singular in the “because of such individual’s age” clause.
(Emphases added.) Ante , at 7, n. 6. Not so. For the
reasons just stated, the “because of . . . age” clause modifies all of the preceding language of paragraph (a)(2). That
preceding language is phrased in both the plural (insofar
as it refers to the employer’s actions relating to employees ) and the singular (insofar as it
requires that such action actually harm an individual ).
The use of the singular in the “because of . . . age” clause simply
makes clear that paragraph (a)(2) forbids an employer to limit,
segregate, or classify his employees if that decision is taken
because of even one employee’s age and that
individual (alone or together with others) is harmed.

															B

															   While §4(a)(2) of the ADEA makes
it unlawful to intentionally discriminate because of age, §4(f)(1)
clarifies that “[i]t shall not be unlawful for an employer … to
take any action otherwise prohibited under subsections (a), (b),
(c), or (e) of this section … where the differentiation is based on
reasonable factors other than age … .” 29 U. S. C.
§623(f)(1). This “reasonable factors other than age” (RFOA)
provision “insure[s] that employers [are] permitted to use neutral
criteria” other than age, EEOC v. Wyoming , 460 U. S. 226 ,
232–233 (1983), even if this results in a disparate adverse impact
on older workers. The provision therefore expresses Congress’ clear
intention that employers not be subject to liability
absent proof of intentional age-based discrimination. That policy,
in my view, cannot easily be reconciled with the plurality’s
expansive reading of §4(a)(2).

															   The plurality however, reasons
that the RFOA provision’s language instead confirms that §4(a)
authorizes disparate impact claims. If §4(a) prohibited only
intentional discrimination, the argument goes, then the RFOA
provision would have no effect because any action based on a factor
other than age would not be “ ‘otherwise prohibited’ ”
under §4(a). See ante , at 9–10. Moreover, the plurality
says, the RFOA provision applies only to employer actions based on reasonable factors other than age—so employers may still
be held liable for actions based on un reasonable nonage
factors. See ante , at 10.

															   This argument misconstrues the purpose and
effect of the RFOA provision. Discriminatory intent is required under §4(a), for the reasons discussed above. The role of
the RFOA provision is to afford employers an independent safe
harbor from liability. It provides that, where a plaintiff has
made out a prima facie case of intentional age discrimination under
§4(a)—thus “creat[ing] a presumption that the employer unlawfully
discriminated against the employee,” Texas Dept. of Community
Affairs v. Burdine, 450 U. S. 248 , 254
(1981)—the employer can rebut this case by producing evidence that
its action was based on a reasonable nonage factor. Thus, the RFOA
provision codifies a safe harbor analogous to the “legitimate,
nondiscriminatory reason” (LNR) justification later recognized in
Title VII suits. Ibid.; McDonnell Douglas Corp. v. Green , 411
U. S. 792 , 802 (1973).

															   Assuming the McDonnell Douglas framework applies to ADEA suits, see O’Connor v. Consolidated Coin Caterers Corp. , 517 U. S. 308 , 311
(1996), this “rebuttal” function of the RFOA provision is arguably
redundant with the judicially established LNR justification. See ante , at 9–10. But, at most, that merely demonstrates
Congress’ abundance of caution in codifying an express
statutory exemption from liability in the absence of
discriminatory intent. See Fort Stewart Schools v. FLRA , 495
U. S. 641 , 646 (1990) (provisions that, although “technically
unnecessary,” are sometimes “inserted out of an abundance of
caution—a drafting imprecision venerable enough to have left its
mark on legal Latin (ex abundanti cautela) ”). It is
noteworthy that even after McDonnell Douglas was decided,
lower courts continued to rely on the RFOA exemption, in lieu of
the LNR justification, as the basis for rebutting a prima facie
case of age discrimination. See, e.g. , Krieg v. Paul Revere Life Ins. Co. , 718 F. 2d 998, 999 (CA11
1983) (per curiam); Schwager v. Sun Oil Co.
of Pa. , 591 F. 2d 58, 61 (CA10 1979); Bittar v. Air Canada , 512 F. 2d 582, 582–583 (CA5 1975) (per curiam) .

															   In any event, the RFOA provision also plays a
distinct (and clearly nonredundant) role in “mixed-motive” cases.
In such cases, an adverse action taken in substantial part because
of an employee’s age may be “otherwise prohibited” by §4(a). See Desert Palace, Inc. v. Costa , 539 U. S. 90 , 93 (2003); Price Waterhouse v. Hopkins , 490 U. S. 228 , 262–266
(1989) (O’Connor, J., concurring in judgment). The RFOA exemption
makes clear that such conduct is nevertheless lawful so long as it
is “based on” a reasonable factor other than age.

															   Finally, the RFOA provision’s reference to
“reasonable” factors serves only to prevent the employer from
gaining the benefit of the statutory safe harbor by offering an
irrational justification. Reliance on an unreasonable nonage factor
would indicate that the employer’s explanation is, in fact, no more
than a pretext for intentional discrimination. See Reeves v. Sanderson Plumbing Products, Inc. , 530 U. S. 133 ,
147 (2000); see also Hazen Paper , 507 U. S., at
613–614.

															II

															   The legislative history of the
ADEA confirms what its text plainly indicates—that Congress never
intended the statute to authorize disparate impact claims. The
drafters of the ADEA and the Congress that enacted it understood
that age discrimination was qualitatively different from the kinds
of discrimination addressed by Title VII, and that many legitimate
employment practices would have a disparate impact on older
workers. Accordingly, Congress determined that the disparate impact
problem would best be addressed through noncoercive measures, and
that the ADEA’s prohibitory provisions should be reserved for
combating intentional age-based discrimination.

															A

															   Although Congress rejected
proposals to address age discrimination in the Civil Rights Act of
1964, §715 of that Act directed the Secretary of Labor to undertake
a study of age discrimination in employment and to submit to
Congress a report containing “such recommendations for legislation
to prevent arbitrary discrimination in employment because of age as
he determines advisable,” 78 Stat. 265. See General Dynamics
Land Systems, Inc. v. Cline , 540 U. S. 581 , 586–587 (2004); EEOC v. Wyoming , supra , at 229. In
response, Secretary Willard Wirtz submitted the report that
provided the blueprint for the ADEA. See Report of the Secretary of
Labor, The Older American Worker: Age Discrimination in Employment
(June 1965), reprinted in U. S. Equal Employment Opportunity
Commission, Legislative History of the Age Discrimination in
Employment Act 83 (1981) (hereinafter Wirtz Report or Report).
Because the ADEA was modeled on the Wirtz Report’s findings and
recommendations, the Report provides critical insights into the
statute’s meaning. See generally Blumrosen, Interpreting the ADEA:
Intent or Impact 14–20, in Age Discrimination in Employment Act: A
Compliance Manual for Lawyers and Personnel Practitioners 83–89 (M.
Lake ed. 1982); see also General Dynamics , supra ,
at 587–590 (relying on the Wirtz Report to interpret the ADEA); EEOC v. Wyoming , 460 U. S., at 230–231
(discussing the Report’s role in the drafting of the ADEA).

															   The Wirtz Report reached two
conclusions of central relevance to the question presented by this
case. First, the Report emphasized that age discrimination is
qualitatively different from the types of discrimination prohibited
by Title VII of the Civil Rights Act of 1964 ( i.e. , race,
color, religion, sex, and national origin discrimination). Most
importantly—in stark contrast to the types of discrimination
addressed by Title VII—the Report found no evidence that age
discrimination resulted from intolerance or animus towards older
workers. Rather, age discrimination was based primarily upon
unfounded assumptions about the relationship between an
individual’s age and her ability to perform a job. Wirtz Report 2.
In addition, whereas ability is nearly always completely unrelated
to the characteristics protected by Title VII, the Report found
that, in some cases, “there is in fact a relationship between [an
individual’s] age and his ability to perform the job.” Ibid. (emphasis deleted).

															   Second, the Wirtz Report drew a sharp
distinction between “ ‘arbitrary discrimination’ ” (which
the Report clearly equates with disparate treatment) and
circumstances or practices having a disparate impact on older
workers. See id. , at 2, 21–22. The Report defined
“arbitrary” discrimination as adverse treatment of older workers
“because of assumptions about the effect of age on their ability to
do a job when there is in fact no basis for these
assumptions .” Id ., at 2 (emphasis in original). While
the “most obvious kind” of arbitrary discrimination is the setting
of unjustified maximum age limits for employment, id. , at
6, naturally the Report’s definition encompasses a broad range of
disparate treatment.

															   The Report distinguished such “arbitrary”
( i.e. , intentional and unfounded) discrimination from two
other phenomena. One involves differentiation of employees based on
a genuine relationship between age and ability to perform a job.
See id. , at 2. In this connection, the Report examined
“circumstances which unquestionably affect older workers more
strongly, as a group, than they do younger workers,” including
questions of health, educational attainment, and technological
change. Id. , at 11–14.[ Footnote 1 ] In addition, the Report assessed
“institutional arrangements”—such as seniority rules, workers’
compensation laws, and pension plans—which, though intended to
benefit older workers, might actually make employers less likely to
hire or retain them. Id. , at 2, 15–17.

															   The Report specifically recommended
legislative action to prohibit “arbitrary discrimination,” i.e. , disparate treatment. Id. , at 21–22. In
sharp contrast, it recommended that the other two types of
“discrimination”—both involving factors or practices having a
disparate impact on older workers—be addressed through noncoercive
measures: programs to increase the availability of employment;
continuing education; and adjustment of pension systems, workers’
compensation, and other institutional arrangements. Id. ,
at 22–25. These recommendations found direct expression in the
ADEA, which was drafted at Congress’ command that the Secretary of
Labor make “specific legislative recommendations for implementing
the [Wirtz Report’s] conclusions,” Fair Labor Standards Amendments
of 1966, §606, 80 Stat. 845. See also General Dynamics ,
540 U. S., at 589 (“[T]he ADEA … begins with statements of purpose
and findings that mirror the Wirtz Report”).

															B

															   The ADEA’s structure confirms
Congress’ determination to prohibit only “arbitrary” discrimination
( i.e. , disparate treatment based on unfounded
assumptions), while addressing practices with a disparate adverse
impact on older workers through noncoercive measures. Section
2—which sets forth the findings and purposes of the statute—draws a
clear distinction between “the setting of arbitrary age limits
regardless of potential for job performance” and “certain otherwise
desirable practices [that] may work to the disadvantage of older
persons.” 29 U. S. C. §621(a)(2). In response to these
problems, §2 identifies three purposes of the ADEA: “[1] to promote
employment of older persons based on their ability rather than age;
[2] to prohibit arbitrary age discrimination in employment; [and 3]
to help employers and workers find ways of meeting problems arising
from the impact of age on employment.” §621(b).

															   Each of these three purposes
corresponds to one of the three substantive statutory sections that
follow. Section 3 seeks to “promote employment of older persons” by
directing the Secretary of Labor to undertake a program of research
and education related to “the needs and abilities of older workers,
and their potentials for continued employment and contribution to
the economy.” §622(a). Section 4, which contains the ADEA’s core
prohibitions, corresponds to the second purpose: to “prohibit
arbitrary age discrimination in employment.” Finally, §5 addresses
the third statutory purpose by requiring the Secretary of Labor to
undertake a study of “institutional and other arrangements giving
rise to involuntary retirement” and to submit any resulting
findings and legislative recommendations to Congress.
§624(a)(1).

															   Section 4—including §4(a)(2)—must be read in
light of the express statutory purpose the provision was intended
to effect: the prohibition of “arbitrary age discrimination in
employment.” §621(b). As the legislative history makes plain,
“arbitrary” age discrimination had a very specific meaning for the
ADEA’s drafters. It meant disparate treatment of older
workers, predominantly because of unfounded assumptions about the
relationship between age and ability. See supra , at 8–10.
Again, such intentional discrimination was clearly distinguished
from circumstances and practices merely having a disparate impact
on older workers, which—as ADEA §§2, 3, and 5 make clear—Congress
intended to address through research, education, and possible
future legislative action.

															C

															   In addition to this affirmative
evidence of congressional intent, I find it telling that the
legislative history is devoid of any discussion of disparate impact
claims or of the complicated issues such claims raise in the ADEA
context. See Gold, Disparate Impact Under the Age Discrimination in
Employment Act of 1967, 25 Berkeley J. Emp. & Lab. L. 1, 40
(2004). At the time the ADEA was enacted, the predominant focus of
antidiscrimination law was on intentional discrimination; the
concept of disparate impact liability, by contrast, was quite
novel. See, e.g. , Gold, Griggs ’ Folly: An Essay
on the Theory, Problems, and Origin of the Adverse Impact
Definition of Employment Discrimination and a Recommendation for
Reform, 7 Indus. Rel. L. J. 429, 518–520 (1985); Blumrosen,
Strangers in Paradise: Griggs v. Duke Power Co. and the
Concept of Employment Discrimination, 71 Mich. L. Rev. 59,
69–71 (1972). Had Congress intended to inaugurate disparate impact
liability in the ADEA, one would expect to find some indication of
that intent in the text and the legislative history. There is
none.

															D

															   Congress’ decision not to
authorize disparate impact claims is understandable in light of the
questionable utility of such claims in the age-discrimination
context. No one would argue that older workers have suffered
disadvantages as a result of entrenched historical patterns of
discrimination, like racial minorities have. See Massachusetts
Bd. of Retirement v. Murgia , 427 U. S. 307 , 313–314
(1976) (per curiam); see also Wirtz Report 5–6.
Accordingly, disparate impact liability under the ADEA cannot be
justified, and is not necessary, as a means of redressing the
cumulative results of past discrimination. Cf. Griggs, 401
U. S., at 430 (reasoning that disparate impact liability is
necessary under Title VII to prevent perpetuation of the results of
past racial discrimination).

															   Moreover, the Wirtz Report
correctly concluded that—unlike the classifications protected by
Title VII—there often is a correlation between an
individual’s age and her ability to perform a job. Wirtz Report 2,
11–15. That is to be expected, for “physical ability generally
declines with age,” Murgia , supra , at 315, and in
some cases, so does mental capacity, see Gregory v. Ashcroft , 501 U. S. 452 , 472
(1991). Perhaps more importantly, advances in technology and
increasing access to formal education often leave older workers at
a competitive disadvantage vis-ŕ-vis younger workers.
Wirtz Report 11–15. Beyond these performance-affecting factors,
there is also the fact that many employment benefits, such as
salary, vacation time, and so forth, increase as an employee gains
experience and seniority. See, e.g. , Finnegan v. Trans World Airlines, Inc. , 967 F. 2d 1161, 1164 (CA7
1992) (“[V]irtually all elements of a standard compensation package
are positively correlated with age”). Accordingly, many employer
decisions that are intended to cut costs or respond to market
forces will likely have a disproportionate effect on older workers.
Given the myriad ways in which legitimate business practices can
have a disparate impact on older workers, it is hardly surprising
that Congress declined to subject employers to civil liability
based solely on such effects.

															III

															   The plurality and Justice Scalia
offer two principal arguments in favor of their reading of the
statute: that the relevant provision of the ADEA should be read in pari materia with the parallel provision of Title VII,
and that we should give interpretive weight or deference to agency
statements relating to disparate impact liability. I find neither
argument persuasive.

															A

															   The language of the ADEA’s
prohibitory provisions was modeled on, and is nearly identical to,
parallel provisions in Title VII. See McKennon v. Nashville Banner Publishing Co. , 513 U. S. 352 , 357
(1995); Lorillard v. Pons , 434 U. S. 575 , 584
(1978). Because Griggs , supra, held that Title
VII’s §703(a)(2) permits disparate impact claims, the plurality
concludes that we should read §4(a)(2) of the ADEA similarly. Ante , at 4–9.

															   Obviously, this argument would be
a great deal more convincing had Griggs been decided before the ADEA was enacted. In that case, we could safely
assume that Congress had notice (and therefore intended) that the
language at issue here would be read to authorize disparate impact
claims. See, e.g. , Department of Energy v. Ohio , 503
U. S. 607 , 626 (1992); Holmes v. Securities
Investor Protection Corporation , 503 U. S. 258 , 268
(1992). But Griggs was decided four years after the ADEA’s enactment, and there is no reason to suppose that
Congress in 1967 could have foreseen the interpretation of Title
VII that was to come. See Fogerty v. Fantasy,
Inc. , 510 U. S.
517 , 523, n. 9 (1994); see also supra , at 10–11 (discussing novelty of disparate impact theory at the
time of the ADEA’s enactment). To be sure, where two statutes use
similar language we generally take this as “a strong indication
that [they] should be interpreted pari passu .” Northcross v. Board of Ed. of Memphis City
Schools, 412 U.
S. 427 , 428 (1973) (per curiam) . But this is not a
rigid or absolute rule, and it “ ‘readily yields’ ” to
other indicia of congressional intent. General Dynamics ,
540 U. S., at 595 (quoting Atlantic Cleaners & Dyers,
Inc. v. United States , 286 U. S. 427 , 433
(1932)). Indeed, “ ‘the meaning [of the same words] well may
vary to meet the purposes of the law.’ ” United
States v. Cleveland Indians Baseball Co. , 532 U. S. 200 , 213
(2001) (alteration in original) (quoting Atlantic Cleaners
& Dyers , supra , at 433). Accordingly, we have not
hesitated to give a different reading to the same language—whether
appearing in separate statutes or in separate provisions of the
same statute—if there is strong evidence that Congress did not
intend the language to be used uniformly. See, e.g. , General Dynamics , supra , at 595–597 (“age” has
different meaning where used in different parts of the ADEA); Cleveland Indians , supra , at 213 (“wages paid”
has different meanings in different provisions of Title 26 U.
S. C.); Robinson v. Shell Oil Co. , 519 U. S. 337 , 343–344
(1997) (“employee” has different meanings in different parts of
Title VII); Fogerty , supra , at 522–525 (Copyright
Act’s attorney’s fees provision has different meaning than the
analogous provision in Title VII, despite their “virtually
identical language”). Such is the case here. First, there are significant
textual differences between Title VII and the ADEA that indicate
differences in congressional intent. Most importantly, whereas the
ADEA’s RFOA provision protects employers from liability for any
actions not motivated by age, see supra , at 4–7, Title VII
lacks any similar provision. In addition, the ADEA’s structure
demonstrates Congress’ intent to combat intentional discrimination
through §4’s prohibitions while addressing employment practices
having a disparate impact on older workers through independent
noncoercive mechanisms. See supra , at 8–11. There is no
analogy in the structure of Title VII. Furthermore, as the
Congresses that adopted both Title VII and the
ADEA clearly recognized, the two statutes were intended to address
qualitatively different kinds of discrimination. See supra , at 7–8. Disparate impact liability may have a
legitimate role in combating the types of discrimination addressed
by Title VII, but the nature of aging and of age discrimination
makes such liability inappropriate for the ADEA. See supra , at 12–13. Finally, nothing in the Court’s
decision in Griggs itself provides any reason to extend
its holding to the ADEA. As the plurality tacitly acknowledges, ante , at 6, the decision in Griggs was not based
on any analysis of Title VII’s actual language. Rather, the ratio decidendi was the statute’s perceived purpose , i.e. , “to achieve equality of employment
opportunities and remove barriers that have operated in the past to
favor an identifiable group of white employees over other
employees. Under the Act, practices, procedures, or tests neutral
on their face, and even neutral in terms of intent, cannot be
maintained if they operate to ‘freeze’ the status quo of prior
discriminatory employment practices.” 401 U. S., at
429–430. In other words, the Court in Griggs reasoned that disparate impact liability was
necessary to achieve Title VII’s ostensible goal of eliminating the
cumulative effects of historical racial discrimination. However,
that rationale finds no parallel in the ADEA context, see Murgia , 427 U. S., at 313–314, and it therefore should not
control our decision here. Even venerable canons of
construction must bow, in an appropriate case, to compelling
evidence of congressional intent. In my judgment, the significant
differences between Title VII and the ADEA are more than sufficient
to overcome the default presumption that similar language is to be
read similarly. See Fogerty , supra , at 523–524
(concluding that the “normal indication” that similar language
should be read similarly is “overborne” by differences between the
legislative history and purposes of two statutes). B The plurality asserts
that the agencies charged with the ADEA’s administration “have
consistently interpreted the [statute] to authorize relief on a
disparate-impact theory.” Ante , at 10. In support of this
claim, the plurality describes a 1968 interpretive bulletin issued
by the Department of Labor as “permitt[ing]” disparate impact
claims. Ibid. (citing 29 CFR §860.103(f)(1)(i) (1970)).
And the plurality cites, without comment, an Equal Employment
Opportunities Commission (EEOC) policy statement construing the
RFOA provision. Ante , at 11 (citing 29 CFR §1625.7
(2004)) . It is unclear what interpretive value the
plurality means to assign to these agency statements. But Justice
Scalia, at least, thinks that the EEOC statement is entitled to
deference under Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc. , 467 U. S. 837 (1984),
and that “that is sufficient to resolve this case.” Ante ,
at 5 (opinion concurring in part and concurring in judgment). I
disagree and, for the reasons that follow, would give no weight to
the statements in question. The 1968 Labor
Department bulletin to which the plurality alludes was intended to
“provide ‘a practical guide to employers and employees as to how
the office representing the public interest in its enforcement will
seek to apply it.’ ” 29 CFR §860.1 (1970) (quoting Skidmore v. Swift & Co. , 323 U. S. 134 , 138
(1944)). In discussing the RFOA provision, the bulletin states that
“physical fitness requirements” and “[e]valuation factors such as
quantity or quality of production, or educational level” can
qualify as reasonable nonage factors, so long as they have a valid
relationship to job qualifications and are uniformly applied.
§§860.103(f)(1), (2). But the bulletin does not construe the ADEA’s prohibitory provisions, nor does it state or imply that
§4(a) authorizes disparate impact claims. Rather, it establishes “a
nonexclusive objective test for employers to use in determining
whether they could be certain of qualifying for the” RFOA
exemption. Public Employees Retirement System of Ohio v. Betts , 492
U. S. 158 , 172 (1989) (discussing 1968 bulletin’s
interpretation of the §4(f)(2) exemption). Moreover, the very same
bulletin states unequivocally that “[t]he clear purpose [of the
ADEA] is to insure that age, within the limits prescribed by the
Act, is not a determining factor in making any decision regarding the hiring, dismissal, promotion or any other term
condition or privilege of employment of an individual.” §860.103(c)
(emphasis added). That language is all about discriminatory
intent. The EEOC statement cited by the
plurality and relied upon by Justice Scalia is equally unhelpful.
This “interpretative rule or policy statement,” promulgated in
1981, superseded the 1968 Labor Department bulletin after
responsibility for enforcing the ADEA was transferred from Labor to
the EEOC. See 46 Fed. Reg. 47724 (1981). It states, in relevant
part: “[W]hen an employment practice,
including a test, is claimed as a basis for different treatment of
employees or applicants for employment on the grounds that it is a
‘factor other than’ age, and such a practice has an adverse impact
on individuals within the protected age group, it can only be
justified as a business necessity.” 29 CFR §1625.7(d)
(2004). Like the 1968 bulletin it replaces,
this statement merely spells out the agency’s view, for purposes of
its enforcement policy, of what an employer must do to be certain
of gaining the safety of the RFOA haven. It says nothing about
whether disparate impact claims are authorized by the
ADEA. For Justice
Scalia, “[t]his is an absolutely classic case for deference to
agency interpretation.” Ante , at 1 (opinion concurring in
part and concurring in judgment). I disagree. Under Chevron , we will defer to a reasonable agency
interpretation of ambiguous statutory language, see 467 U. S., at
843–844, provided that the interpretation has the requisite “force
of law,” Christensen v. Harris County , 529 U.
S.576, 587 (2000). The rationale for such deference is that
Congress has explicitly or implicitly delegated to the agency
responsible for administering a statute the authority to choose
among permissible constructions of ambiguous statutory text. See Chevron , supra , at 844. The question now before
us is not what it takes to qualify for the RFOA exemption, but
rather whether §4(a)(2) of the ADEA authorizes disparate impact
claims. But the EEOC statement does not purport to interpret the
language of §4(a) at all. Quite simply, the agency has not actually
exercised its delegated authority to resolve any ambiguity in the
relevant provision’s text, much less done so in a reasonable or
persuasive manner. As to the specific question presented,
therefore, the regulation is not entitled to any deference. See John Hancock Mut. Life Ins. Co. v. Harris Trust and
Sav. Bank , 510
U. S. 86 , 106–109, and n. 17 (1993); see also SEC v. Sloan , 436 U. S. 103 , 117–118
(1978); Adamo Wrecking Co. v. United States , 434 U. S. 275 ,
287–289, and n. 5 (1978).[ Footnote 2 ] Justice Scalia’s attempt to link
the EEOC’s RFOA regulation to §4(a)(2) is premised on a dubious
chain of inferences that, in my view, highlights the hazards of his
approach. Because the RFOA provision is “relevant only as
a response to employer actions ‘otherwise prohibited’ by the ADEA,”
he reasons, the “unavoidable meaning” of the EEOC statement is that
the agency “interprets the ADEA to prohibit employer actions that
have an ‘adverse impact on individuals within the protected age
group.’ ” Ante , at 4 (opinion concurring in part and
concurring in judgment) (quoting 29 CFR §1625.7(d) (2004)). But, of
course, disparate treatment clearly has an
“adverse impact on individuals within the protected age group,” ibid. , and Justice Scalia’s reading of the EEOC’s rule is
hardly “unavoidable.” The regulation says only that if an employer
wants to rely on a practice—say, a physical fitness test—as the
basis for an exemption from liability, and that test adversely
affects older workers, the employer can be sure of qualifying for
the exemption only if the test is sufficiently job related. Such a
limitation makes sense in disparate treatment cases. A test that
harms older workers and is unrelated to the job may be a pretext
for—or even a means of effectuating—intentional discrimination. See supra , at 6–7. Justice Scalia completes his analytical
chain by inferring that the EEOC regulation must be read
to interpret §4(a)(2) to allow disparate impact claims
because that is the only provision of the ADEA that could
“conceivably” be so interpreted. Ante , at 4 (opinion
concurring in part and concurring judgment). But the support for
that inference is doubtful, to say the least. The regulation
specifically refers to employment practices claimed as a basis for
“different treatment of employees or applicants for
employment ,” 29 CFR §1625.7(d) (2004) (emphasis added).
Section 4(a)(2), of course, does not apply to “applicants for
employment” at all—it is only §4(a)(1) that protects this group.
See 29 U. S. C. §623(a). That suggests that the EEOC must have
read the RFOA to provide a defense against claims under
§4(a)(1)—which unquestionably permits only disparate treatment
claims, see supra , at 2. This discussion serves to
illustrate why it makes little sense to attribute to the agency a
construction of the relevant statutory text that the agency itself
has not actually articulated so that we can then “defer” to that
reading. Such an approach is particularly troubling where applied
to a question as weighty as whether a statute does or does not
subject employers to liability absent discriminatory intent. This
is not, in my view, what Chevron contemplated. As an interpretation of the RFOA provision , moreover, the EEOC regulation is both
unreasonable on its face and directly at odds with the Court’s
holding in today’s case. It says that the RFOA exemption is
available only if the employer’s practice is justified by a
“business necessity.” But the Court has rejected that reading of
the RFOA provision, and rightly so: There may be many “reasonable”
means by which an employer can advance its goals, and a given
nonage factor can certainly be “reasonable” without being
necessary. Ante , at 14; see also Western Air Lines,
Inc. v. Criswell , 472 U. S. 400 , 419
(1985) (distinguishing “ ‘reasonable necessity’ ”
standard from “ ‘reasonableness’ ”). Of course, it is
elementary that “no deference is due to agency interpretations at
odds with the plain language of the statute itself.” Betts , 492 U. S., at 171. The agency clearly misread the
RFOA provision it was attempting to construe. That error is not
necessarily dispositive of the disparate impact question. But I
think it highlights the improvidence of giving weight (let alone
deferring) to the regulation’s purported assumption that
an entirely different provision of the statute, which is
not even the subject of the regulation, authorizes disparate impact
claims. In my view, we should simply acknowledge that this
regulation is of no help in answering the question
presented. IV Although I would not
read the ADEA to authorize disparate impact claims, I agree with
the Court that, if such claims are allowed, they are strictly
circumscribed by the RFOA exemption. See ante , at 13–14.
That exemption requires only that the challenged employment
practice be based on a “reasonable” nonage factor—that is, one that
is rationally related to some legitimate business objective. I also
agree with the Court, ante , at 11, that, if disparate
impact claims are to be permitted under the ADEA, they are governed
by the standards set forth in our decision in Wards Cove
Packing Co. v. Atonio , 490 U. S. 642 (1989).
That means, as the Court holds, ante , at 12, that “a
plaintiff must demonstrate that it is the application of a specific or particular employment practice that
has created the disparate impact under attack,” Wards
Cove , supra , at 657 (emphasis added); see also Watson v. Fort Worth Bank & Trust , 487 U. S. 977 , 994
(1988) (opinion of O’Connor, J.). It also means that once the
employer has produced evidence that its action was based on a
reasonable nonage factor, the plaintiff bears the burden of
disproving this assertion. See Wards Cove , supra ,
at 659–660; see also Watson , supra , at 997
(opinion of O’Connor, J.). Even if petitioners’ disparate impact
claim were cognizable under the ADEA, that claim clearly would fail
in light of these requirements. Footnote 1 It is in this connection that the
Report refers to formal employment standards requiring a high
school diploma. See Wirtz Report 3. The Wirtz Report did say that
such a requirement would be “unfair” if an older worker’s years of
experience had given him an equivalent education. Ibid. But the plurality is mistaken to find in this statement a
congressional “goal” of eliminating job requirements with a
disparate impact on older workers. See ante , at 6,
n. 5. Rather, the Wirtz Report discussed the diploma
requirement in the context of a broader discussion of the effects
of “wholly impersonal forces—most of them part of what is properly,
if sometimes too casually, called ‘progress.’ ” Wirtz Report
3. These forces included “the pace of changing technology, changing
jobs, changing educational requirements, and changing
personnel practices,” which “increase[d] the need for special
efforts if older workers’ employment prospects are to improve
significantly.” Ibid. (emphasis added); see also id. , at 11–15 (discussing the educational attainments of
older workers, together with health and technological change, in a
section entitled “The Necessary Recognition of Forces of
Circumstance”). The Report recommended that such forces be
addressed through noncoercive instead of prohibitory measures, and
it specifically focused on the need for educational opportunities
for older workers. See id. , at 23–25. Footnote 2 Because the EEOC regulation does
not actually interpret the text at issue, we need not address the
degree of deference to which the regulation would otherwise be
entitled. Cf. General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581 , 600 (2004) (declining
to address whether EEOC’s regulations interpreting the ADEA are
entitled to Chevron deference).