OPINION OF THE COURT MEACHAM V. KNOLLS ATOMIC POWER LABORATORY 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 06-1505 CLIFFORD B. MEACHAM, et al., PETITIONERS v. KNOLLS ATOMIC POWER LABORATORY, aka KAPL, INC.,
et al.

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

															[June 19, 2008]

															   Justice Souter delivered the
opinion of the Court.

															   A provision of the Age
Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as
amended, 29 U. S. C. §621 et seq. , creates an
exemption for employer actions “otherwise prohibited” by the ADEA
but “based on reasonable factors other than age” (RFOA).
§623(f)(1). The question is whether an employer facing a
disparate-impact claim and planning to defend on the basis of RFOA
must not only produce evidence raising the defense, but also
persuade the factfinder of its merit. We hold that the employer
must do both.

															I

															   The National Government pays
private companies to do some of the work maintaining the Nation’s
fleet of nuclear-powered warships. One such contractor is
respondent KAPL, Inc. (Knolls), the operator of the Government’s
Knolls Atomic Power Laboratory, which has a history dating back to
the first nuclear-powered submarines in the 1940s and 1950s. The United States Navy and the Department of Energy
jointly fund Knolls’s operations, decide what projects it should
pursue, and set its annual staffing limits. In recent years, Knolls
has been charged with designing prototype naval nuclear reactors
and with training Navy personnel to run them. The demands for naval
nuclear reactors changed with the end of the Cold War, and for
fiscal year 1996 Knolls was ordered to reduce its work force. Even
after a hundred or so employees chose to take the company’s ensuing
buyout offer, Knolls was left with thirty-some jobs to
cut.[ Footnote 1 ] Petitioners (Meacham, for short) are among those laid off in
the resulting “involuntary reduction in force.” In order to select
those for layoff, Knolls told its managers to score their
subordinates on three scales, “performance,” “flexibility,” and
“critical skills.”[ Footnote 2 ]
The scores were summed, along with points for years of service, and
the totals determined who should be let go. Of the 31 salaried
employees laid off, 30 were at least 40 years old.[ Footnote 3 ] Twenty-eight of them sued,
raising both disparate-treatment (discriminatory intent) and
disparate-impact (discriminatory result) claims under the ADEA and
state law, alleging that Knolls “designed and implemented its
workforce reduction process to eliminate older employees and that,
regardless of intent, the process had a discriminatory impact on
ADEA-protected employees.” Meacham v. Knolls Atomic
Power Laboratory , 381 F. 3d 56, 61 (CA2 2004) (Meacham I) . To show a disparate impact, the workers
relied on a statistical expert’s testimony to the effect that
results so skewed according to age could rarely occur by
chance;[ Footnote 4 ] and that
the scores for “flexibility” and “criticality,” over which managers
had the most discretionary judgment, had the firmest statistical
ties to the outcomes. Id. , at 65. The jury found for
Meacham on the disparate-impact claim (but not on the
disparate-treatment claim). The Court of Appeals affirmed, after
examining the verdict through the lens of the so-called “burden
shifting” scheme of inference spelled out in Wards Cove Packing
Co. v. Atonio , 490 U. S. 642 (1989). See Meacham
I , supra, at 74–76.[ Footnote 5 ] After Knolls sought certiorari, we vacated the
judgment and remanded for further proceedings in light of Smith v. City of Jackson , 544 U. S. 228 (2005) , decided
while Knolls’s petition was pending. See 544 U. S. 957 (2005). On remand, the same
Court of Appeals panel ruled in favor of Knolls, over a dissent.
461 F. 3d 134 (CA2 2006) (case below) (Meacham II) .
The majority found its prior ruling “untenable” because it had
applied the Wards Cove “business necessity” standard
rather than a “reasonableness” test, contrary to City of
Jackson ; and on the latter standard, Meacham, the employee,
had not carried the burden of persuasion. 461 F.3d, at 140–141,
144.[ Footnote 6 ] In dissent,
Judge Pooler took issue with the majority for confusing business
justifications under Wards Cove with the statutory RFOA
exemption, which she read to be an affirmative defense with the
burden of persuasion falling on defendants. 461 F.3d, at 147,
149–152.[ Footnote
7 ] Meacham sought
certiorari, noting conflicting decisions assigning the burden of
persuasion on the reasonableness of the factor other than age; the
Court of Appeals in this case placed it on the employee (to show
the non-age factor unreasonable), but the Ninth Circuit in Criswell v. Western Airlines, Inc. , 709
F. 2d 544, 552 (1983), had assigned it to the employer (to
show the factor was a reasonable one). In fact it was in Criswell that we first took up this question, only to find
it not well posed in that case. Western Air Lines, Inc. v. Criswell , 472 U. S. 400 , 408, n.
10 (1985). We granted certiorari, 552 U. S. ___ (2007), and now
vacate the judgment of the Second Circuit and remand.[ Footnote 8 ] II A The
ADEA’s general prohibitions against age discrimination, 29 U.
S. C. §§623(a)–(c), (e), are subject to a separate provision,
§623(f), creating exemptions for employer practices “otherwise
prohibited under subsections (a), (b), (c), or (e).” The RFOA
exemption is listed in §623(f) alongside one for bona fide
occupational qualifications (BFOQ): “It shall not be unlawful for
an employer … to take any action otherwise prohibited under
subsections (a), (b), (c), or (e) … where age is a bona fide
occupational qualification reasonably necessary to the normal
operation of the particular business, or where the differentiation
is based on reasonable factors other than age … .”
§623(f)(1). Given how
the statute reads, with exemptions laid out apart from the
prohibitions (and expressly referring to the prohibited conduct as
such), it is no surprise that we have already spoken of the BFOQ
and RFOA provisions as being among the ADEA’s “five affirmative
defenses,” Trans World Airlines, Inc. v. Thurston , 469 U. S. 111 , 122
(1985). After looking at the statutory text, most lawyers would
accept that characterization as a matter of course, thanks to the
familiar principle that “[w]hen a proviso … carves an exception out
of the body of a statute or contract those who set up such
exception must prove it.” Javierre v. Central
Altagracia , 217
U. S. 502 , 508 (1910) (opinion for the Court by Holmes, J.);
see also FTC v. Morton Salt Co ., 334 U. S. 37 , 44–45
(1948) (“[T]he burden of proving justification or exemption under a
special exception to the prohibitions of a statute generally rests
on one who claims its benefits …”); United States v. First City Nat. Bank of Houston , 386 U. S. 361 , 366
(1967) (citing Morton Salt , supra , at 44–45).
That longstanding convention is part of the backdrop against which
the Congress writes laws, and we respect it unless we
have compelling reasons to think that Congress meant to put the
burden of persuasion on the other side. See Schaffer v. Weast , 546
U. S. 49 , 57–58 (2005) (“Absent some reason to believe that
Congress intended otherwise, therefore, we will conclude that the
burden of persuasion lies where it usually falls, upon the party
seeking relief”). We have
never been given any reason for a heterodox take on the RFOA
clause’s nearest neighbor, and our prior cases recognize that the BFOQ clause establishes an affirmative defense against
claims of disparate treatment. See, e.g. , City of
Jackson , supra , at 233, n. 3; Western Air Lines,
Inc. , supra , at 414–419, and nn. 24, 29. We have
likewise given the affirmative defense construction to the
exemption in the Equal Pay Act of 1963 for pay differentials based
on “any other factor other than sex,” Corning Glass Works v. Brennan , 417 U. S. 188 , 196
(1974) (internal quotation marks omitted); and there, we took
account of the particular weight given to the interpretive
convention already noted, when enforcing the Fair Labor Standards
Act of 1938 (FLSA), id. , at 196–197 (“[T]he general rule
[is] that the application of an exemption under the Fair Labor
Standards Act is a matter of affirmative defense on which the
employer has the burden of proof”). This focus makes the principle
of construction the more instructive in ADEA cases: “[i]n enacting
the ADEA, Congress exhibited both a detailed knowledge of the FLSA
provisions and their judicial interpretation and a willingness to
depart from those provisions regarded as undesirable or
inappropriate for incorporation,” Lorillard v. Pons , 434
U. S. 575 , 581 (1978). And we have remarked and relied on the
“significant indication of Congress’ intent in its directive that
the ADEA be enforced in accordance with the ‘powers, remedies, and
procedures’ of the FLSA.” Id. , at 580 (quoting 29 U.
S. C. §626(b); emphasis deleted); see also Fogerty v. Fantasy, Inc. , 510 U. S. 517 , 528
(1994) (applying reasoning of Lorillard ); Thurston , supra , at 126 (same). As against this
interpretive background, there is no hint in the text that Congress
meant §623(f)(1) to march out of step with either the general or
specifically FLSA default rules placing the burden of
proving an exemption on the party claiming
it. With these principles and prior cases in
mind, we find it impossible to look at the text and structure of
the ADEA and imagine that the RFOA clause works differently from
the BFOQ clause next to it. Both exempt otherwise
illegal conduct by reference to a further item of proof, thereby
creating a defense for which the burden of persuasion falls on the
“one who claims its benefits,” Morton Salt Co. , supra , at 44–45, the “party seeking relief,” Schaffer , supra , at 57–58, and here, “the
employer,” Corning Glass Works , supra , at
196. If there were any doubt, the
stress of the idiom “otherwise prohibited,” prefacing the BFOQ and
RFOA conditions, would dispel it.[ Footnote 9 ] The implication of affirmative
defense is underscored by contrasting §623(f)(1) with the section
of the ADEA at issue in Public Employees Retirement System of
Ohio v. Betts , 492 U. S. 158 (1989),
and by the way Congress responded to our decision there. In Betts , we said the issue was whether a provision in a
former version of §623(f)(2), one about employee benefit plans,
merely “redefine[d] the elements of a plaintiff’s prima facie
case,” or instead “establish[ed] a defense” to what “otherwise
would be a violation of the Act.” Id. , at 181.[ Footnote 10 ] Although the provision
contained no “otherwise prohibited” kind of language, we said that
it “appears on first reading to describe an affirmative defense.” Ibid . We nonetheless thought that this more natural view
(which we had taken in Thurston ) was overridden by
evidence of legislative history, by the peculiarity of a
pretext-revealing condition in the phrasing of the provision (that
a benefit plan “not [be] a subterfuge to evade the purposes” of the
ADEA), and by the parallel with a prior case construing an
“analogous provision of Title VII” (analogous because it also
contained a pretext-revealing condition). 492 U. S., at 181. A year
later, however, Congress responded to Betts by enacting
the Older Workers Benefit Protection Act, Pub. L. 101–433, 104
Stat. 978, avowedly to “restore the original congressional intent”
that the ADEA’s benefits provision be read as an affirmative
defense, id. , §101. What is instructive on the question at
hand is that, in clarifying that §623(f)(2) specifies affirmative
defenses, Congress not only set the burden in so many words but
also added the phrase “otherwise prohibited” as a part of the
preface (just as in the text of §623(f)(1)).[ Footnote 11 ] Congress thus confirmed the
natural implication that we find in the “otherwise prohibited”
language in §623(f)(1): it refers to an excuse or justification for
behavior that, standing alone, violates the statute’s prohibition.
The amendment in the aftermath of Betts shows that
Congress understands the phrase the same way we naturally read it,
as a clear signal that a defense to what is “otherwise prohibited”
is an affirmative defense, entirely the responsibility of the party
raising it. B Knolls
ventures that, regardless, the RFOA provision should be read as
mere elaboration on an element of liability. Because it bars
liability where action is taken for reasons “other than age,” the
argument goes, the provision must be directed not at justifying age
discrimination by proof of some extenuating fact but at negating
the premise of liability under §623(a)(2), “because of
age.” The answer to this
argument, however, is City of Jackson , where we confirmed
that the prohibition in §623(a)(2) extends to practices with a
disparate impact, inferring this result in part from the presence
of the RFOA provision at issue here.[ Footnote 12 ] We drew on the recognized
distinction between disparate-treatment and disparate-impact forms
of liability, and explained that “the very definition of disparate
impact” was that “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.” 544 U. S., at 236, n. 6
(plurality opinion); id. , at 243 (Scalia, J., concurring
in part and concurring in judgment) (expressing agreement with “all
of the Court’s reasoning” in the plurality opinion, but finding it
a basis for deference to the EEOC rather than for independent
judicial decision). We emphasized that these were the kinds of
employer activities, “otherwise prohibited” by §623(a)(2), that
were mainly what the statute meant to test against the RFOA
condition: because “[i]n disparate-impact cases … the allegedly
‘otherwise prohibited’ activity is not based on age,” it is “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 non- age factor that was
‘reasonable.’ ” Id ., at 239 (plurality
opinion). Thus, in City of Jackson , we made it clear that in the typical
disparate-impact case, the employer’s practice is “without respect
to age” and its adverse impact (though “because of age”) is
“attributable to a nonage factor”; so action based on a “factor
other than age” is the very premise for disparate-impact liability
in the first place, not a negation of it or a defense to it. The
RFOA defense in a disparate-impact case, then, is not focused on
the asserted fact that a non-age factor was at work; we assume it
was. The focus of the defense is that the factor relied upon was a
“reasonable” one for the employer to be using. Reasonableness is a
justification categorically distinct from the factual condition
“because of age” and not necessarily correlated with it in any
particular way: a reasonable factor may lean more heavily on older
workers, as against younger ones, and an unreasonable factor might
do just the opposite.[ Footnote
13 ] III The Court of Appeals majority rejected the
affirmative defense reading and arrived at its position on the
burden of proof question by a different route: because it read our
decision in City of Jackson as ruling out the so-called
“business necessity” enquiry in ADEA cases, the court concluded
that the RFOA defense “replaces” it and therefore must conform to
its burden of persuasion resting on the complaining party. But the
court’s premise (that City of Jackson modified the
“business necessity” enquiry) is mistaken; this alone would be
reason enough to reject its approach. And although we are now
satisfied that the business necessity test should have no place in
ADEA disparate-impact cases, we agree with the Government that this
conclusion does not stand in the way of our holding that the RFOA
exemption is an affirmative defense. See Brief for United States as Amicus Curiae 25–27. To begin with, when the Court of Appeals
further inferred from the City of Jackson reference to Wards Cove that the Wards Cove burden of
persuasion (on the employee, for the business necessity enquiry)
also applied to the RFOA defense, it gave short shrift to the
reasons set out in Part II–A, supra, for reading RFOA as
an affirmative defense (with the burden on the employer). But we
think that even on its own terms, City of Jackson falls
short of supporting the Court of Appeals’s
conclusion. Although City of Jackson contains the statement that “ Wards
Cove ’s pre-1991 interpretation of Title VII’s identical
language remains applicable to the ADEA,” 544 U. S., at 240, City of Jackson made only two specific references to
aspects of the Wards Cove interpretation of Title VII that
might have “remain[ed] applicable” in ADEA cases. One was to the
existence of disparate-impact liability, which City of
Jackson explained was narrower in ADEA cases than under Title
VII. The other was to a plaintiff-employee’s burden of identifying
which particular practices allegedly cause an observed disparate
impact, which is the employee’s burden under both the
ADEA and the pre-1991 Title VII. See 544 U. S., at 241.
Neither of these references, of course, is at odds with the view of
RFOA as an affirmative
defense. If, indeed, City of Jackson ’s
reference to Wards Cove could be read literally to include
other aspects of the latter case, beyond what mattered in City
of Jackson itself, the untoward consequences of the broader
reading would rule it out. One such consequence is embraced by
Meacham, who argues both that the Court of Appeals was wrong to
place the burden of persuasion for the RFOA defense on
the employee, and that the court was right in thinking that City of Jackson adopted the Wards Cove burden of
persuasion on what Meacham views as one element of an ADEA impact
claim. For Meacham takes the position that an impact plaintiff like
himself has to negate business necessity in order to show that the
employer’s actions were “otherwise prohibited”; only then does the
RFOA (with the burden of persuasion on the employer) have a role to
play. To apply both tests, however, would force the parties to
develop (and the court or jury to follow) two overlapping
enquiries: first, whether the employment practice at issue (based
on a factor other than age) is supported by a business
justification; and second, whether that factor is a reasonable one.
Depending on how the first enquiry proceeds, a plaintiff might
directly contest the force of the employer’s rationale, or else try
to show that the employer invoked it as a pretext by pointing (for
example) to alternative practices with less of a disparate impact. See Wards Cove , 490 U. S., at 658 (“first, a
consideration of the justifications an employer offers for his use
of these practices; and second, the availability of alternative
practices to achieve the same business ends, with less racial
impact”); see also id ., at 658–661. But even if the
plaintiff succeeded at one or the other, in Meacham’s scheme the
employer could still avoid liability by proving
reasonableness. Here is what is so
strange: as the Government says, “[i]f disparate-impact plaintiffs
have already established that a challenged practice is a pretext
for intentional age discrimination, it makes little sense then to
ask whether the discriminatory practice is based on reasonable
factors other than age .” Brief for United States as Amicus Curiae 26 (emphasis in original). Conversely,
proving the reasonableness defense would eliminate much of the
point a plaintiff would have had for showing alternatives in the
first place: why make the effort to show alternative practices with
a less discriminatory effect (and besides, how would that prove
pretext?), when everyone knows that the choice of a practice
relying on a “reasonable” non-age factor is good enough to avoid
liability?[ Footnote 14 ] At the very least, developing the reasonableness
defense would be substantially redundant with the direct contest
over the force of the business justification, especially when both enquiries deal with the same, narrowly
specified practice. It is not very fair to take the
remark about Wards Cove in City of Jackson as
requiring such a wasteful and confusing structure of
proof. Nor is there any good way to read the same
line from City of Jackson as implying that the burden of
proving any business-related defense falls on the plaintiff; most
obviously, this would entail no longer taking the BFOQ clause to be
an affirmative defense, which City of Jackson confirmed
that it is, see 544 U. S., at 233, n. 3. What is more, City of Jackson could not have had the RFOA clause in mind
as “identical” to anything in Title VII (for which a Wards
Cove ’s reading might be adopted), for that statute has no
like-worded defense. And as Wards Cove did not purport to
construe any statutory defenses under Title VII, only an
over-reading of City of Jackson would find lurking in it
an assumption that Wards Cove has anything to say about
statutory defenses in the ADEA (never mind one that Title VII does
not
have). IV As mentioned, where City of
Jackson did get help from our prior reading of Title VII was
in relying on Wards Cove to repeat that a plaintiff falls
short by merely alleging a disparate impact, or “point[ing] to a
generalized policy that leads to such an impact.” City of
Jackson , 544 U. S., at 241. The plaintiff is obliged to do
more: to “isolat[e] and identif[y] the specific employment
practices that are allegedly responsible for any observed
statistical disparities.” Ibid. (quoting Wards
Cove , supra , at 656; emphasis in original; internal
quotation marks omitted). The aim of this requirement, as City
of Jackson said, is to avoid the “result [of] employers being
potentially liable for ‘the myriad of innocent causes that may lead
to statistical imbalances.’ ” 544 U. S., at 241 (quoting Wards Cove , supra , at 657; some internal
quotation marks omitted). And as the outcome in that case shows,
the requirement has bite: one sufficient reason for rejecting the
employees’ challenge was that they “ha[d] done little more than
point out that the pay plan at issue [was] relatively less generous
to older workers than to younger workers,” and “ha[d] not
identified any specific test, requirement, or practice within the
pay plan that ha[d] an adverse impact on older workers.” City
of Jackson , supra, at
241. Identifying a specific practice
is not a trivial burden, and it ought to allay some of the concern
raised by Knolls’s amici , who fear that recognizing an
employer’s burden of persuasion on an RFOA defense to impact claims
will encourage strike suits or nudge plaintiffs with marginal cases
into court, in turn inducing employers to alter business practices
in order to avoid being sued. See, e.g. , Brief for General
Electric Co. as Amicus Curiae 18–31. It is also to the
point that the only thing at stake in this case is the gap between
production and persuasion; nobody is saying that even the burden of
production should be placed on the plaintiff. Cf. Schaffer , 546 U. S., at 56 (burden of persuasion answers
“which party loses if the evidence is closely balanced”); id ., at 58 (“In truth, however, very few cases will be in
evidentiary equipoise”). And the more plainly reasonable the
employer’s “factor other than age” is, the shorter the step for
that employer from producing evidence raising the defense, to
persuading the factfinder that the defense is meritorious. It will
be mainly in cases where the reasonableness of the non-age factor
is obscure for some reason, that the employer will have more
evidence to reveal and more convincing to do in going from
production to
persuasion. That said, there is no denying that putting
employers to the work of persuading factfinders that their choices
are reasonable makes it harder and costlier to defend than if
employers merely bore the burden of production; nor do we doubt
that this will sometimes affect the way employers do business with
their employees. But at the end of the day, amici ’s
concerns have to be directed at Congress, which set the balance
where it is, by both creating the RFOA exemption and writing it in
the orthodox format of an affirmative defense. We have to read it
the way Congress wrote
it. *  *  * As we have said before, Congress
took account of the distinctive nature of age discrimination, and
the need to preserve a fair degree of leeway for employment
decisions with effects that correlate with age, when it put the
RFOA clause into the ADEA, “significantly narrow[ing] its
coverage.” City of Jackson , 544 U. S., at 233. And as the
outcome for the employer in City of Jackson shows, “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.” Id ., at 241. In this case, we realize
that the Court of Appeals showed no hesitation in finding that
Knolls prevailed on the RFOA defense, though the court expressed
its conclusion in terms of Meacham’s failure to meet the burden of
persuasion. Whether the outcome should be any different when the
burden is properly placed on the employer is best left to that
court in the first instance. The judgment of the Court of Appeals
is vacated, and the case is remanded for further proceedings
consistent with this
opinion. It is so
ordered. Justice Breyer took no part in
the consideration or decision of this
case. Footnote
1 The Naval Reactors program had lowered
Knolls’s staffing limit by 108 people; as Knolls also had to hire
35 new employees for work existing personnel could not do, a total
of 143 jobs would have to
go. Footnote
2 The “performance” score was based on the
worker’s two most recent appraisals. The “flexibility” instruction
read: “Rate the employee’s flexibility within the Laboratory. Can
his or her documented skills be used in other assignments that will
add value to current or future Lab work? Is the employee
retrainable for other Lab assignments?” The “critical skills”
instruction read: “How critical are the employee’s skills to
continuing work in the Lab? Is the individual’s skill a key technical resource for the [Naval Reactors] program?
Is the skill readily accessible within the Lab or generally
available from the external market?” App. 94–95 (emphasis in
original). Footnote
3 For comparison: after the voluntary buyouts,
1,203 out of 2,063 salaried workers (or 58%) were at least 40 years
old; and of the 245 who were at risk of involuntary layoff, and
therefore included in the rankings scheme, 179 (or 73%) were 40 or
over. Meacham v. Knolls Atomic Power Laboratory ,
185 F. Supp. 2d 193, 203 (NDNY
2002). Footnote
4 The expert cut the data in different ways,
showing the chances to be 1 in 348,000 (based on a population of
all 2,063 salaried workers); 1 in 1,260 (based on a population of
the 245 workers at risk of layoff); or 1 in 6,639 (when the
analysis was broken down by sections of the company). Meacham
I , 381 F. 3d, at
64–65. Footnote
5 Taking the Wards Cove steps in turn,
the Court of Appeals concluded that the “jury could have found that
the degree of subjective decision making allowed in the [layoff
procedure] created the disparity,” 381 F. 3d, at 74; that the
employer had answered with evidence of a “facially legitimate
business justification,” a need “to reduce its workforce while
still retaining employees with skills critical to the performance
of [Knolls’s] functions,” ibid . (internal quotation marks
omitted); and that petitioners would prevail nonetheless because
“[a]t least one suitable alternative is clear from the record,”
that Knolls “could have designed [a procedure] with more safeguards
against subjectivity, in particular, tests for criticality and
flexibility that are less vulnerable to managerial bias,” id. , at
75. Footnote
6 Distinguishing the two tests mattered, the
Court of Appeals explained, because even though “[t]here may have
been other reasonable ways for [Knolls] to achieve its goals (as we
held in [Meacham I] ), … the one selected was not
unreasonable.” Meacham II , 461 F. 3d, at 146
(citation and internal quotation marks omitted). The burden of
persuasion for either test was said to fall on the plaintiff,
however, because “the employer is not to bear the ultimate burden
of persuasion with respect to the legitimacy of its business
justification.” Id. , at 142 (citing Wards Cove ,
490 U. S., at 659–660; internal quotation marks omitted). The
majority took note of the textual signs that the RFOA was an
affirmative defense, but set them aside because “ City of
Jackson … emphasized that there are reasonable and permissible
employment criteria that correlate with age,” thereby leaving it to
plaintiffs to prove that a criterion is not reasonable. 461 F.3d,
at
142–143. Footnote
7 In Judge Pooler’s view, a jury “could
permissibly find that defendants had not established a RFOA based
on the unmonitored subjectivity of [Knolls’s] plan as implemented.” Id. , at 153 (dissenting
opinion). Footnote
8 Petitioners also sought certiorari as to
“[w]hether respondents’ practice of conferring broad discretionary
authority upon individual managers to decide which employees to lay
off during a reduction in force constituted a ‘reasonable factor
other than age’ as a matter of law.” Pet. for Cert. i. We denied
certiorari on this question and express no views on it
here. Footnote
9 We do not need to seek further relief from
doubt by looking to the Equal Employment Opportunity Commission
(EEOC) regulations on burdens of proof in ADEA cases. The parties
focus on two of them, but we think neither clearly answers the
question here. One of them the Government has disavowed as
overtaken by our decision in Smith v. City of
Jackson , 544 U. S. 228 (2005), Brief for United
States as Amicus Curiae 16, n. 1 (noting that 29 CFR
§1625.7(d) (2007) “takes a position that does not survive” City
of Jackson ), for the regulation seems to require a showing of
business necessity as a part of the RFOA defense. Compare 29 CFR
§1625.7(d) (“When an employment practice, including a test, is
claimed as a basis for different treatment … 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”), with City of
Jackson , supra , at 243 (“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”). And the second regulation would take a bit of
stretching to cover disparate-impact cases, for its text speaks in
terms of disparate treatment. See 29 CFR §1625.7(e) (concerning use
of the RFOA defense against an “individual claim of discriminatory
treatment”). The EEOC has lately proposed rulemaking that would
revise both of these regulations, eliminating any reference to
“business necessity” and placing the burden of proof on the
employer “[w]henever the exception of ‘a reasonable factor other
than age’ is raised.” 73 Fed. Reg. 16807–16809 (Mar. 31, 2008)
(proposed 29 CFR
§1625.7(e)). Footnote
10 The provision read: “It shall not be unlawful
for an employer … to observe the terms of … any bona fide employee
benefit plan such as a retirement, pension, or insurance plan,
which is not a subterfuge to evade the purposes of this chapter …
because of the age of such individual.” 29 U. S. C. §623(f)(2)
(1982
ed.). Footnote
11 Congress surely could not have meant this
phrase to contradict its express allocation of the burden, in the
same amendment. But that would be the upshot of Knolls’s suggestion
that the only way to read the word “otherwise” as not redundant in
the phrase “otherwise prohibited under subsection (a), (b), (c), or
(e)” is to say that the word must refer only to §623(f)(1) itself,
implying that §623(f)(1) must be a liability-creating provision for
which the burden falls on the plaintiff. Brief for Respondents 33,
and n. 7. Besides, this argument proves too much, for it
implies that even the BFOQ exemption is not an affirmative
defense. Footnote
12 In doing so, we expressly rejected the
so-called “safe harbor” view of the RFOA provision. See City of
Jackson , 544 U. S., at 238–239 (plurality opinion); id. , at 252–253 (O’Connor, J., concurring in judgment)
(describing “safe harbor”
view). Footnote
13 The factual causation that §623(a)(2)
describes as practices that “deprive or tend to deprive … or
otherwise adversely affect [employees] … because of … age” is
typically shown by looking to data revealing the impact of a given
practice on actual employees. See, e.g. , City of
Jackson , 544 U. S., at 241 (opinion of the Court); cf. Wards Cove Packing Co. v. Atonio , 490 U. S. 642 , 657, 658–659 (1989)
(under Title VII, “specific causation” is shown, and a “prima facie
case” is “establish[ed],” when plaintiff identifies a specific
employment practice linked to a statistical disparity); Watson v. Fort Worth Bank & Trust , 487 U. S. 977 , 995
(1988) (plurality opinion) (in Title VII cases, “statistical
disparities must be sufficiently substantial that they raise … an
inference of
causation”). This enquiry would be muddled if the value,
“reasonableness,” were to become a factor artificially boosting or
discounting the factual strength of the causal link, or the extent
of the measured impact. It would open the door to incoherent
undershooting, for example, if defendants were heard to say that an
impact is “somewhat less correlated with age, seeing as the factor
is a reasonable one”; and it would be overshooting to make them
show that the impact is “not correlated with age, and the factor is
reasonable,
besides.” Footnote
14 See City of Jackson , 544 U. S., at
243 (“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”). 554 U. S. ____ (2008) 554 U. S. ____ (2008) 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 06-1505 CLIFFORD B. MEACHAM, et al., PETITIONERS v. KNOLLS ATOMIC POWER LABORATORY, aka KAPL, INC.,
et al.

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

															[June 19, 2008]

															   Justice Scalia, concurring in the
judgment.

															   I do not join the majority
opinion because the Court answers for itself two questions that
Congress has left to the sound judgment of the Equal Employment
Opportunity Commission. As represented by the Solicitor General of
the United States in a brief signed by the Commission’s General
Counsel, the Commission takes the position that the
reasonable-factor-other-than-age provision is an affirmative
defense on which the employer bears the burden of proof, and that,
in disparate-impact suits brought under the Age Discrimination in
Employment Act of 1967 (ADEA), that provision replaces the
business-necessity test of Wards Cove Packing Co. v. Atonio , 490
U. S. 642 (1989).

															   Neither position was contrived just for this
case. Indeed, the Commission has arguably held its view on the
burden-of-proof point for nearly 30 years. See 44 Fed. Reg. 68858,
68861 (1979). Although its regulation applied only to cases
involving “discriminatory treatment,” 29 CFR §1625.7(e) (2007),
even if that covers only disparate treatment, see ante , at
7–8, n. 9, the logic of its extension to disparate-impact
claims is obvious and unavoidable. See Brief for United States as Amicus Curiae 16, n. 1. At the very least, the
regulation does not contradict the Commission’s current position:
It does not say that the employer bears the burden of proof only in discriminatory-treatment cases.

															   The Commission’s view on the
business-necessity test is newly minted, but that does not
undermine it. The Commission has never expressed the contrary view
that the factfinder must consider both business necessity and reasonableness when an employer applies a factor that
has a disparate impact on older workers. In fact, before Smith v. City of Jackson , 544 U. S. 228 (2005),
the Commission had not even considered the relationship between the
two standards, because it used to treat the two as identical . See 29 CFR §1625.7(d). After City of
Jackson rejected that equation, see 544 U. S., at 243, the
Commission decided that the business-necessity standard plays no
role in ADEA disparate-impact claims, see Brief for United States
as Amicus Curiae 25–27, and has even proposed new rules
setting forth that position, see 73 Fed. Reg. 16807–16809
(2008).

															   Because administration of the ADEA has been
placed in the hands of the Commission, and because the agency’s
positions on the questions before us are unquestionably reasonable
(as the Court’s opinion ably shows), I defer to the agency’s views.
See Raymond B. Yates, M. D., P. C. Profit Sharing
Plan v. Hendon , 541 U. S. 1 , 24–25 (2004)
(Scalia, J., concurring in judgment). I therefore concur in the
Court’s judgment to vacate the judgment of the Court of
Appeals. 554 U. S. ____ (2008) 554 U. S. ____ (2008) 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 06-1505 CLIFFORD B. MEACHAM, et al., PETITIONERS v. KNOLLS ATOMIC POWER LABORATORY, aka KAPL, INC.,
et al.

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

															[June 19, 2008]

															   Justice Thomas, concurring in
part and dissenting in part.

															   I write separately to note that I
continue to believe that disparate-impact claims are not cognizable
under the Age Discrimination in Employment Act of 1967, 29 U.
S. C. §621 et seq . See Smith v. City of
Jackson , 544 U.
S. 228 , 247–268 (2005) (O’Connor, J., joined by Kennedy and
Thomas, JJ., concurring in judgment). Moreover, I disagree with the
Court’s statement that the “reasonable factors other than age”
(RFOA) exception, §623(f)(1), is principally relevant in
disparate-impact cases. Compare City of Jackson , supra , at 251–253 (opinion concurring in judgment), with ante , at 10–11 (citing City of Jackson , supra , at 239 (plurality opinion)). I therefore join only
Parts I and II–A of the Court’s opinion because I agree that the
RFOA exception is an affirmative defense—when it arises in
disparate-treatment cases. Here, although the Court of Appeals
erred in placing the burden of proof on petitioners, I would
nonetheless affirm because the only claims at issue are
disparate-impact claims.

Summary: In Meacham v. Knolls Atomic Power Laboratory, the Supreme Court held that an employer defending against a disparate-impact claim under the Age Discrimination in Employment Act (ADEA) must prove that its actions were based on reasonable factors other than age. The Court placed the burden of proof on the employer, requiring them to persuade the factfinder of the merit of their defense. This case involved a reduction in workforce by Knolls, which resulted in the layoff of primarily older workers. The Court's decision affirmed the role of the Equal Employment Opportunity Commission in administering the ADEA and interpreting its provisions. Justice Thomas concurred in part and dissented in part, disagreeing with the cognizability of disparate-impact claims under the ADEA.


OPINION OF THE COURT ONTARIO V. QUON 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1332 CITY OF ONTARIO, CALIFORNIA, et al.,
PETITIONERS v. JEFF QUON et al.

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

															[June 17, 2010]

															   Justice Kennedy delivered the
opinion of the Court.

															   This case involves the assertion
by a government employer of the right, in circumstances to be
described, to read text messages sent and received on a pager the
employer owned and issued to an employee. The employee contends
that the privacy of the messages is protected by the ban on
“unreasonable searches and seizures” found in the Fourth Amendment
to the United States Constitution, made applicable to the States by
the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio , 367 U. S. 643 (1961).
Though the case touches issues of far- reaching significance, the
Court concludes it can be resolved by settled principles
determining when a search is reasonable.

															I

															A

															   The City of Ontario (City) is a
political subdivision of the State of California. The case arose
out of incidents in 2001 and 2002 when respondent Jeff Quon was
employed by the Ontario Police Department (OPD). He was a police
sergeant and member of OPD’s Special Weapons and Tactics (SWAT)
Team. The City, OPD, and OPD’s Chief, Lloyd Scharf, are petitioners
here. As will be discussed, two respondents share the last name
Quon. In this opinion “Quon” refers to Jeff Quon, for the relevant
events mostly revolve around him.

															   In October 2001, the City
acquired 20 alphanumeric pagers capable of sending and receiving
text messages. Arch Wireless Operating Company provided wireless
service for the pagers. Under the City’s service contract with Arch
Wireless, each pager was allotted a limited number of characters
sent or received each month. Usage in excess of that amount would
result in an additional fee. The City issued pagers to Quon and
other SWAT Team members in order to help the SWAT Team mobilize and
respond to emergency situations.

															   Before acquiring the pagers, the City
announced a “Computer Usage, Internet and E-Mail Policy” (Computer
Policy) that applied to all employees. Among other provisions, it
specified that the City “reserves the right to monitor and log all
network activity including e-mail and Internet use, with or without
notice. Users should have no expectation of privacy or
confidentiality when using these resources.” App. to Pet. for Cert.
152a. In March 2000, Quon signed a statement acknowledging that he
had read and understood the Computer Policy.

															   The Computer Policy did not apply, on its
face, to text messaging. Text messages share similarities with
e-mails, but the two differ in an important way. In this case, for
instance, an e-mail sent on a City computer was transmitted through
the City’s own data servers, but a text message sent on one of the
City’s pagers was transmitted using wireless radio frequencies from
an individual pager to a receiving station owned by Arch Wireless.
It was routed through Arch Wireless’ computer network, where it
remained until the recipient’s pager or cellular telephone was
ready to receive the message, at which point Arch Wireless
transmitted the message from the transmitting station nearest to
the recipient. After delivery, Arch Wireless retained a copy on its
computer servers. The message did not pass through computers owned
by the City.

															   Although the Computer Policy did not cover
text messages by its explicit terms, the City made clear to
employees, including Quon, that the City would treat text messages
the same way as it treated e-mails. At an April 18, 2002, staff
meeting at which Quon was present, Lieutenant Steven Duke, the OPD
officer responsible for the City’s contract with Arch Wireless,
told officers that messages sent on the pagers “are considered
e-mail messages. This means that [text] messages would fall under
the City’s policy as public information and [would be] eligible for
auditing.” App. 30. Duke’s comments were put in writing in a
memorandum sent on April 29, 2002, by Chief Scharf to Quon and
other City personnel.

															   Within the first or second billing cycle after
the pagers were distributed, Quon exceeded his monthly text message
character allotment. Duke told Quon about the overage, and reminded
him that messages sent on the pagers were “considered e-mail and
could be audited.” Id., at 40. Duke said, however, that
“it was not his intent to audit [an] employee’s text messages to
see if the overage [was] due to work related transmissions.” Ibid. Duke suggested that Quon could reimburse the City
for the overage fee rather than have Duke audit the messages. Quon
wrote a check to the City for the overage. Duke offered the same
arrangement to other employees who incurred overage fees.

															   Over the next few months, Quon exceeded his
character limit three or four times. Each time he reimbursed the
City. Quon and another officer again incurred overage fees for
their pager usage in August 2002. At a meeting in October, Duke
told Scharf that he had become “ ‘tired of being a bill
collector.’ ” Id., at 91. Scharf decided to determine
whether the existing character limit was too low—that is, whether
officers such as Quon were having to pay fees for sending
work-related messages—or if the overages were for personal
messages. Scharf told Duke to request transcripts of text messages
sent in August and September by Quon and the other employee who had
exceeded the character allowance.

															   At Duke’s request, an administrative assistant
employed by OPD contacted Arch Wireless. After verifying that the
City was the subscriber on the accounts, Arch Wireless provided the
desired transcripts. Duke reviewed the transcripts and discovered
that many of the messages sent and received on Quon’s pager were
not work related, and some were sexually explicit. Duke reported
his findings to Scharf, who, along with Quon’s immediate
supervisor, reviewed the transcripts himself. After his review,
Scharf referred the matter to OPD’s internal affairs division for
an investigation into whether Quon was violating OPD rules by
pursuing personal matters while on duty.

															   The officer in charge of the internal affairs
review was Sergeant Patrick McMahon. Before conducting a review,
McMahon used Quon’s work schedule to redact the transcripts in
order to eliminate any messages Quon sent while off duty. He then
reviewed the content of the messages Quon sent during work hours.
McMahon’s report noted that Quon sent or received 456 messages
during work hours in the month of August 2002, of which no more
than 57 were work related; he sent as many as 80 messages during a
single day at work; and on an average workday, Quon sent or
received 28 messages, of which only 3 were related to police
business. The report concluded that Quon had violated OPD rules.
Quon was allegedly disciplined.

															B

															   Raising claims under Rev. Stat.
§1979, 42 U. S. C. §1983; 18 U. S. C. §2701 et
seq. , popularly known as the Stored Communications Act (SCA);
and California law, Quon filed suit against petitioners in the
United States District Court for the Central District of
California. Arch Wireless and an individual not relevant here were
also named as defendants. Quon was joined in his suit by another
plaintiff who is not a party before this Court and by the other
respondents, each of whom exchanged text messages with Quon during
August and September 2002: Jerilyn Quon, Jeff Quon’s then-wife,
from whom he was separated; April Florio, an OPD employee with whom
Jeff Quon was romantically involved; and Steve Trujillo, another
member of the OPD SWAT Team. Among the allegations in the complaint
was that petitioners violated respondents’ Fourth Amendment rights
and the SCA by obtaining and reviewing the transcript of Jeff
Quon’s pager messages and that Arch Wireless had violated the SCA
by turning over the transcript to the City.

															   The parties filed cross-motions
for summary judgment. The District Court granted Arch Wireless’
motion for summary judgment on the SCA claim but denied
petitioners’ motion for summary judgment on the Fourth Amendment
claims. Quon v. Arch Wireless Operating Co., 445
F. Supp. 2d 1116 (CD Cal. 2006). Relying on the plurality
opinion in O’Connor v. Ortega , 480 U. S. 709 , 711
(1987), the District Court determined that Quon had a reasonable
expectation of privacy in the content of his text messages. Whether
the audit of the text messages was nonetheless reasonable, the
District Court concluded, turned on Chief Scharf’s intent: “[I]f
the purpose for the audit was to determine if Quon was using his
pager to ‘play games’ and ‘waste time,’ then the audit was not
constitutionally reasonable”; but if the audit’s purpose “was to
determine the efficacy of the existing character limits to ensure
that officers were not paying hidden work-related costs, … no
constitutional violation occurred.” 445 F. Supp. 2d, at
1146.

															   The District Court held a jury trial to
determine the purpose of the audit. The jury concluded that Scharf
ordered the audit to determine the efficacy of the character
limits. The District Court accordingly held that petitioners did
not violate the Fourth Amendment. It entered judgment in their
favor.

															   The United States Court of Appeals for the
Ninth Circuit reversed in part. 529 F. 3d 892 (2008). The
panel agreed with the District Court that Jeff Quon had a
reasonable expectation of privacy in his text messages but
disagreed with the District Court about whether the search was
reasonable. Even though the search was conducted for “a legitimate
work-related rationale,” the Court of Appeals concluded, it “was
not reasonable in scope.” Id., at 908. The panel disagreed
with the District Court’s observation that “there were no
less-intrusive means” that Chief Scharf could have used “to verify
the efficacy of the 25,000 character limit … without intruding on
[respondents’] Fourth Amendment rights.” Id., at 908–909.
The opinion pointed to a “host of simple ways” that the chief could
have used instead of the audit, such as warning Quon at the
beginning of the month that his future messages would be audited,
or asking Quon himself to redact the transcript of his messages. Id., at 909. The Court of Appeals further concluded that
Arch Wireless had violated the SCA by turning over the transcript
to the City.

															   The Ninth Circuit denied a petition for
rehearing en banc. Quon v. Arch Wireless Operating
Co., 554 F. 3d 769 (2009). Judge Ikuta, joined by six
other Circuit Judges, dissented. Id., at 774–779. Judge
Wardlaw concurred in the denial of rehearing, defending the panel’s
opinion against the dissent. Id., at 769–774.

															   This Court granted the petition for certiorari
filed by the City, OPD, and Chief Scharf challenging the Court of
Appeals’ holding that they violated the Fourth Amendment. 558 U. S.
___ (2009). The petition for certiorari filed by Arch Wireless
challenging the Ninth Circuit’s ruling that Arch Wireless violated
the SCA was denied. USA Mobility Wireless, Inc. v. Quon, 558 U. S. ___ (2009).

															II

															   The Fourth Amendment states: “The
right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not
be violated … .” It is well settled that the Fourth
Amendment’s protection extends beyond the sphere of criminal
investigations. Camara v. Municipal Court of City and
County of San Francisco , 387 U. S. 523 , 530
(1967). “The Amendment guarantees the privacy, dignity, and
security of persons against certain arbitrary and invasive acts by
officers of the Government,” without regard to whether the
government actor is investigating crime or performing another
function. Skinner v. Railway Labor Executives’
Assn. , 489 U.
S. 602 , 613–614 (1989). The Fourth Amendment applies as well
when the Government acts in its capacity as an employer. Treasury Employees v. Von Raab , 489 U. S. 656 , 665
(1989).

															   The Court discussed this
principle in O’Connor. There a physician employed by a
state hospital alleged that hospital officials investigating
workplace misconduct had violated his Fourth Amendment rights by
searching his office and seizing personal items from his desk and
filing cabinet. All Members of the Court agreed with the general
principle that “[i]ndividuals do not lose Fourth Amendment rights
merely because they work for the government instead of a private
employer.” 480 U. S., at 717 (plurality opinion); see also id., at 731 (Scalia, J., concurring in judgment); id., at 737 (Blackmun, J., dissenting). A majority of the
Court further agreed that “ ‘special needs, beyond the normal
need for law enforcement,’ ” make the warrant and
probable-cause requirement impracticable for government employers. Id., at 725 (plurality opinion) (quoting New
Jersey v. T. L. O. , 469 U. S. 325 , 351
(1985) (Blackmun, J., concurring in judgment); 480 U. S. , at 732 (opinion of Scalia, J.) (quoting same).

															   The O’Connor Court did disagree on
the proper analytical framework for Fourth Amendment claims against
government employers. A four-Justice plurality concluded that the
correct analysis has two steps. First, because “some government
offices may be so open to fellow employees or the public that no
expectation of privacy is reasonable,” id., at 718, a
court must consider “[t]he operational realities of the workplace”
in order to determine whether an employee’s Fourth Amendment rights
are implicated, id., at 717. On this view, “the question
whether an employee has a reasonable expectation of privacy must be
addressed on a case-by-case basis.” Id., at 718. Next,
where an employee has a legitimate privacy expectation, an
employer’s intrusion on that expectation “for noninvestigatory,
work-related purposes, as well as for investigations of
work-related misconduct, should be judged by the standard of
reasonableness under all the circumstances.” Id., at
725–726.

															   Justice Scalia, concurring in the judgment,
outlined a different approach. His opinion would have dispensed
with an inquiry into “operational realities” and would conclude
“that the offices of government employees … are covered by Fourth
Amendment protections as a general matter.” Id., at 731.
But he would also have held “that government searches to retrieve
work-related materials or to investigate violations of workplace
rules—searches of the sort that are regarded as reasonable and
normal in the private-employer context—do not violate the Fourth
Amendment.” Id., at 732.

															   Later, in the Von Raab decision, the
Court explained that “operational realities” could diminish an
employee’s privacy expectations, and that this diminution could be
taken into consideration when assessing the reasonableness of a
workplace search. 489 U. S., at 671. In the two decades since O’Connor , however, the threshold test for determining the
scope of an employee’s Fourth Amendment rights has not been
clarified further. Here, though they disagree on whether Quon had a
reasonable expectation of privacy, both petitioners and respondents
start from the premise that the O’Connor plurality
controls. See Brief for Petitioners 22–28; Brief for Respondents
25–32. It is not necessary to resolve whether that premise is
correct. The case can be decided by determining that the search was
reasonable even assuming Quon had a reasonable expectation of
privacy. The two O’Connor approaches—the plurality’s and
Justice Scalia’s—therefore lead to the same result here.

															III

															A

															   Before turning to the
reasonableness of the search, it is instructive to note the
parties’ disagreement over whether Quon had a reasonable
expectation of privacy. The record does establish that OPD, at the
outset, made it clear that pager messages were not considered
private. The City’s Computer Policy stated that “[u]sers should
have no expectation of privacy or confidentiality when using” City
computers. App. to Pet. for Cert. 152a. Chief Scharf’s memo and
Duke’s statements made clear that this official policy extended to
text messaging. The disagreement, at least as respondents see the
case, is over whether Duke’s later statements overrode the official
policy. Respondents contend that because Duke told Quon that an
audit would be unnecessary if Quon paid for the overage, Quon
reasonably could expect that the contents of his messages would
remain private.

															   At this point, were we to assume
that inquiry into “operational realities” were called for, compare O’Connor , 480 U. S., at 717 (plurality opinion), with id., at 730–731 (opinion of Scalia, J.); see also id., at 737–738 (Blackmun, J., dissenting), it would be
necessary to ask whether Duke’s statements could be taken as
announcing a change in OPD policy, and if so, whether he had, in
fact or appearance, the authority to make such a change and to
guarantee the privacy of text messaging. It would also be necessary
to consider whether a review of messages sent on police pagers,
particularly those sent while officers are on duty, might be
justified for other reasons, including performance evaluations,
litigation concerning the lawfulness of police actions, and perhaps
compliance with state open records laws. See Brief for Petitioners
35–40 (citing Cal. Public Records Act, Cal. Govt. Code Ann. §6250 et seq. (West 2008)). These matters would all bear on the
legitimacy of an employee’s privacy expectation.

															   The Court must proceed with care when
considering the whole concept of privacy expectations in
communications made on electronic equipment owned by a government
employer. The judiciary risks error by elaborating too fully on the
Fourth Amendment implications of emerging technology before its
role in society has become clear. See, e.g., Olmstead v. United States , 277 U. S. 438 (1928),
overruled by Katz v. United States , 389 U. S. 347 , 353
(1967). In Katz , the Court relied on its own knowledge and
experience to conclude that there is a reasonable expectation of
privacy in a telephone booth. See id., at 360–361 (Harlan,
J., concurring). It is not so clear that courts at present are on
so sure a ground. Prudence counsels caution before the facts in the
instant case are used to establish far-reaching premises that
define the existence, and extent, of privacy expectations enjoyed
by employees when using employer-provided communication
devices.

															   Rapid changes in the dynamics of communication
and information transmission are evident not just in the technology
itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least
tolerate personal use of such equipment by employees because it
often increases worker efficiency. See Brief for Electronic
Frontier Foundation et al. 16–20. Another amicus points out that the law is beginning to respond to these
developments, as some States have recently passed statutes
requiring employers to notify employees when monitoring their
electronic communications. See Brief for New York Intellectual
Property Law Association 22 (citing Del. Code Ann., Tit. 19, §705
(2005); Conn. Gen. Stat. Ann. §31–48d (West 2003)). At present, it
is uncertain how workplace norms, and the law’s treatment of them,
will evolve.

															   Even if the Court were certain that the O’Connor plurality’s approach were the right one, the
Court would have difficulty predicting how employees’ privacy
expectations will be shaped by those changes or the degree to which
society will be prepared to recognize those expectations as
reasonable. See 480 U. S., at 715. Cell phone and text message
communications are so pervasive that some persons may consider them
to be essential means or necessary instruments for self-expression,
even self-identification. That might strengthen the case for an
expectation of privacy. On the other hand, the ubiquity of those
devices has made them generally affordable, so one could counter
that employees who need cell phones or similar devices for personal
matters can purchase and pay for their own. And employer policies
concerning communications will of course shape the reasonable
expectations of their employees, especially to the extent that such
policies are clearly communicated.

															   A broad holding concerning employees’ privacy
expectations vis-À-vis employer-provided technological equipment
might have implications for future cases that cannot be predicted.
It is preferable to dispose of this case on narrower grounds. For
present purposes we assume several propositions arguendo: First, Quon had a reasonable expectation of privacy in the text
messages sent on the pager provided to him by the City; second,
petitioners’ review of the transcript constituted a search within
the meaning of the Fourth Amendment; and third, the principles
applicable to a government employer’s search of an employee’s
physical office apply with at least the same force when the
employer intrudes on the employee’s privacy in the electronic
sphere.

															B

															   Even if Quon had a reasonable
expectation of privacy in his text messages, petitioners did not
necessarily violate the Fourth Amendment by obtaining and reviewing
the transcripts. Although as a general matter, warrantless searches
“are per se unreasonable under the Fourth Amendment,”
there are “a few specifically established and well-delineated
exceptions” to that general rule. Katz, supra, at
357. The Court has held that the “ ‘special needs’ ” of
the workplace justify one such exception. O’Connor , 480 U.
S., at 725 (plurality opinion); id., at 732 (Scalia, J.,
concurring in judgment); Von Raab, 489 U. S., at
666–667.

															   Under the approach of the O’Connor plurality, when conducted for a
“noninvestigatory, work-related purpos[e]” or for the
“investigatio[n] of work-related misconduct,” a government
employer’s warrantless search is reasonable if it is
“ ‘justified at its inception’ ” and if “ ‘the
measures adopted are reasonably related to the objectives of the
search and not excessively intrusive in light of’ ” the
circumstances giving rise to the search. 480 U. S., at 725–726. The
search here satisfied the standard of the O’Connor plurality and was reasonable under that approach.

															   The search was justified at its inception
because there were “reasonable grounds for suspecting that the
search [was] necessary for a noninvestigatory work-related
purpose.” Id., at 726. As a jury found, Chief Scharf
ordered the search in order to determine whether the character
limit on the City’s contract with Arch Wireless was sufficient to
meet the City’s needs. This was, as the Ninth Circuit noted, a
“legitimate work-related rationale.” 529 F. 3d, at 908. The
City and OPD had a legitimate interest in ensuring that employees
were not being forced to pay out of their own pockets for
work-related expenses, or on the other hand that the City was not
paying for extensive personal communications.

															   As for the scope of the search, reviewing the
transcripts was reasonable because it was an efficient and
expedient way to determine whether Quon’s overages were the result
of work-related messaging or personal use. The review was also not
“ ‘excessively intrusive.’ ” O’Connor, supra, at 726 (plurality opinion) . Although Quon
had gone over his monthly allotment a number of times, OPD
requested transcripts for only the months of August and September
2002. While it may have been reasonable as well for OPD to review
transcripts of all the months in which Quon exceeded his allowance,
it was certainly reasonable for OPD to review messages for just two
months in order to obtain a large enough sample to decide whether
the character limits were efficacious. And it is worth noting that
during his internal affairs investigation, McMahon redacted all
messages Quon sent while off duty, a measure which reduced the
intrusiveness of any further review of the transcripts.

															   Furthermore, and again on the assumption that
Quon had a reasonable expectation of privacy in the contents of his
messages, the extent of an expectation is relevant to assessing
whether the search was too intrusive. See Von Raab , supra, at 671; cf. Vernonia School Dist. 47J v. Acton , 515
U. S. 646 , 654–657 (1995). Even if he could assume some level
of privacy would inhere in his messages, it would not have been
reasonable for Quon to conclude that his messages were in all
circumstances immune from scrutiny. Quon was told that his messages
were subject to auditing. As a law enforcement officer, he would or
should have known that his actions were likely to come under legal
scrutiny, and that this might entail an analysis of his on-the-job
communications. Under the circumstances, a reasonable employee
would be aware that sound management principles might require the
audit of messages to determine whether the pager was being
appropriately used. Given that the City issued the pagers to Quon
and other SWAT Team members in order to help them more quickly
respond to crises—and given that Quon had received no assurances of
privacy—Quon could have anticipated that it might be necessary for
the City to audit pager messages to assess the SWAT Team’s
performance in particular emergency situations.

															   From OPD’s perspective, the fact that Quon
likely had only a limited privacy expectation, with boundaries that
we need not here explore, lessened the risk that the review would
intrude on highly private details of Quon’s life. OPD’s audit of
messages on Quon’s employer-provided pager was not nearly as
intrusive as a search of his personal e-mail account or pager, or a
wiretap on his home phone line, would have been. That the search
did reveal intimate details of Quon’s life does not make it
unreasonable, for under the circumstances a reasonable employer
would not expect that such a review would intrude on such matters.
The search was permissible in its scope.

															   The Court of Appeals erred in finding the
search unreasonable. It pointed to a “host of simple ways to verify
the efficacy of the 25,000 character limit … without intruding on
[respondents’] Fourth Amendment rights.” 529 F. 3d, at 909.
The panel suggested that Scharf “could have warned Quon that for
the month of September he was forbidden from using his pager for
personal communications, and that the contents of all his messages
would be reviewed to ensure the pager was used only for
work-related purposes during that time frame. Alternatively, if
[OPD] wanted to review past usage, it could have asked Quon to
count the characters himself, or asked him to redact personal
messages and grant permission to [OPD] to review the redacted
transcript.” Ibid. This approach was inconsistent with
controlling precedents. This Court has “repeatedly refused to
declare that only the ‘least intrusive’ search practicable can be
reasonable under the Fourth Amendment.” Vernonia , supra, at 663; see also, e.g. , Board of Ed.
of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls , 536
U. S. 822 , 837 (2002); Illinois v. Lafayette , 462 U. S. 640 ,
647 (1983). That rationale “could raise insuperable barriers to the
exercise of virtually all search-and-seizure powers,” United
States v. Martinez-Fuerte , 428 U. S. 543 , 557,
n. 12 (1976), because “judges engaged in post hoc evaluations of government conduct can almost always imagine some
alternative means by which the objectives of the government might
have been accomplished,” Skinner , 489 U. S., at 629,
n. 9 (internal quotation marks and brackets omitted). The
analytic errors of the Court of Appeals in this case illustrate the
necessity of this principle. Even assuming there were ways that OPD
could have performed the search that would have been less
intrusive, it does not follow that the search as conducted was
unreasonable.

															   Respondents argue that the search was per
se unreasonable in light of the Court of Appeals’ conclusion
that Arch Wireless violated the SCA by giving the City the
transcripts of Quon’s text messages. The merits of the SCA claim
are not before us. But even if the Court of Appeals was correct to
conclude that the SCA forbade Arch Wireless from turning over the
transcripts, it does not follow that petitioners’ actions were
unreasonable. Respondents point to no authority for the proposition
that the existence of statutory protection renders a search per
se unreasonable under the Fourth Amendment. And the precedents
counsel otherwise. See Virginia v. Moore , 553 U. S. 164 ,
168 (2008) (search incident to an arrest that was illegal under
state law was reasonable); California v. Greenwood , 486 U. S. 35 , 43 (1988)
(rejecting argument that if state law forbade police search of
individual’s garbage the search would violate the Fourth
Amendment). Furthermore, respondents do not maintain that any OPD
employee either violated the law him- or herself or knew or should
have known that Arch Wireless, by turning over the transcript,
would have violated the law. The otherwise reasonable search by OPD
is not rendered unreasonable by the assumption that Arch Wireless
violated the SCA by turning over the transcripts.

															   Because the search was motivated by a
legitimate work-related purpose, and because it was not excessive
in scope, the search was reasonable under the approach of the O’Connor plurality. 480 U. S., at 726. For these same
reasons—that the employer had a legitimate reason for the search,
and that the search was not excessively intrusive in light of that
justification—the Court also concludes that the search would be
“regarded as reasonable and normal in the private-employer context”
and would satisfy the approach of Justice Scalia’s concurrence. Id., at 732. The search was reasonable, and the Court of
Appeals erred by holding to the contrary. Petitioners did not
violate Quon’s Fourth Amendment rights.

															C

															   Finally, the Court must consider
whether the search violated the Fourth Amendment rights of Jerilyn
Quon, Florio, and Trujillo, the respondents who sent text messages
to Jeff Quon. Petitioners and respondents disagree whether a sender
of a text message can have a reasonable expectation of privacy in a
message he knowingly sends to someone’s employer-provided pager. It
is not necessary to resolve this question in order to dispose of
the case, however. Respondents argue that because “the search was
unreasonable as to Sergeant Quon, it was also unreasonable as to
his correspondents.” Brief for Respondents 60 (some capitalization
omitted; boldface deleted). They make no corollary argument that
the search, if reasonable as to Quon, could nonetheless be
unreasonable as to Quon’s correspondents. See id., at
65–66. In light of this litigating position and the Court’s
conclusion that the search was reasonable as to Jeff Quon, it
necessarily follows that these other respondents cannot
prevail.

															*  *  *

															   Because the search was
reasonable, petitioners did not violate respondents’ Fourth
Amendment rights, and the court below erred by concluding
otherwise. The judgment of the Court of Appeals for the Ninth
Circuit is reversed, and the case is remanded for further
proceedings consistent with this opinion.

															It is so ordered. 560 U. S. ____ (2010) ONTARIO V. QUON 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1332 CITY OF ONTARIO, CALIFORNIA, et al.,
PETITIONERS v. JEFF QUON et al.

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

															[June 17, 2010]

															   Justice Stevens, concurring.

															   Although I join the Court’s
opinion in full, I write separately to highlight that the Court has
sensibly declined to resolve whether the plurality opinion in O’Connor v. Ortega , 480 U. S. 709 (1987), provides the
correct approach to determining an employee’s reasonable
expectation of privacy. See ante , at 9. Justice Blackmun,
writing for the four dissenting Justices in O’Connor ,
agreed with Justice Scalia that an employee enjoys a reasonable
expectation of privacy in his office. 480 U. S., at 737. But he
advocated a third approach to the reasonable expectation of privacy
inquiry, separate from those proposed by the O’Connor plurality and by Justice Scalia, see ante , at 8.
Recognizing that it is particularly important to safeguard “a
public employee’s expectation of privacy in the workplace” in light
of the “reality of work in modern time,” 480 U. S., at 739, which
lacks “tidy distinctions” between workplace and private activities, ibid. , Justice Blackmun argued that “the precise extent of
an employee’s expectation of privacy often turns on the nature of
the search,” id., at 738. And he emphasized that courts
should determine this expectation in light of the specific facts of
each particular search, rather than by announcing a categorical
standard. See id. , at 741.

															   For the reasons stated at page 13 of the
Court’s opinion, it is clear that respondent Jeff Quon, as a law
enforcement officer who served on a SWAT Team, should have
understood that all of his work-related actions—including all of
his communications on his official pager—were likely to be subject
to public and legal scrutiny. He therefore had only a limited
expectation of privacy in relation to this particular audit of his
pager messages. Whether one applies the reasoning from Justice
O’Connor’s opinion, Justice Scalia’s concurrence, or Justice
Blackmun’s dissent* in O’Connor , the result is the same:
The judgment of the Court of Appeals in this case must be
reversed.

															* I do not contend that Justice Blackmun’s
opinion is controlling under Marks v. United
States , 430 U.
S. 188 , 193 (1977), but neither is his approach to evaluating a
reasonable expectation of privacy foreclosed by O’Connor .
Indeed, his approach to that inquiry led to the conclusion, shared
by Justice Scalia but not adopted by the O’Connor plurality, that an employee had a reasonable expectation of privacy
in his office. See O’Connor v. Ortega , 480 U. S. 709 , 718 (1987) (plurality
opinion). But Justice Blackmun would have applied the Fourth
Amendment’s warrant and probable-cause requirements to workplace
investigatory searches, id. , at 732 (dissenting opinion),
whereas a majority of the Court rejected that view, see id. , at 722, 725 (plurality opinion); id. , at 732
(Scalia, J., concurring in judgment). It was that
analysis—regarding the proper standard for evaluating a search when
an employee has a reasonable expectation of privacy—that produced
the opposite result in the case. This case does not implicate that
debate because it does not involve an investigatory search. The
jury concluded that the purpose of the audit was to determine
whether the character limits were sufficient for work-related
messages. See ante , at 6. OPINION OF SCALIA, J. ONTARIO V. QUON 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1332 CITY OF ONTARIO, CALIFORNIA, et al.,
PETITIONERS v. JEFF QUON et al.

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

															[June 17, 2010]

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

															   I join the Court’s opinion except
for Part III–A. I continue to believe that the “operational
realities” rubric for determining the Fourth Amendment’s
application to public employees invented by the plurality in O’Connor v. Ortega , 480 U. S. 709 , 717
(1987), is standardless and unsupported. Id. , at 729–732
(Scalia, J., concurring in judgment). In this case, the proper
threshold inquiry should be not whether the Fourth Amendment
applies to messages on public employees’ employer-issued
pagers, but whether it applies in general to such messages
on employer-issued pagers. See id. , at 731.

															   Here, however, there is no need to answer that
threshold question. Even accepting at face value Quon’s and his
co-plaintiffs’ claims that the Fourth Amendment applies to their
messages, the city’s search was reasonable, and thus did not
violate the Amendment. See id. , at 726 (plurality
opinion); id. , at 732 (Scalia, J., concurring in
judgment). Since it is unnecessary to decide whether the Fourth
Amendment applies, it is unnecessary to resolve which approach in O’Connor controls: the plurality’s or mine.* That should
end the matter.

															   The Court concedes as much, ante , at
9, 12–17, yet it inexplicably interrupts its analysis with a
recitation of the parties’ arguments concerning, and an excursus on
the complexity and consequences of answering, that admittedly
irrelevant threshold question, ante , at 9–12. That
discussion is unnecessary. (To whom do we owe an additional explanation for declining to decide an issue,
once we have explained that it makes no difference?) It also seems
to me exaggerated. Applying the Fourth Amendment to new
technologies may sometimes be difficult, but when it is necessary
to decide a case we have no choice. The Court’s implication, ante , at 10, that where electronic privacy is concerned we
should decide less than we otherwise would (that is, less than the
principle of law necessary to resolve the case and guide private
action)—or that we should hedge our bets by concocting
case-specific standards or issuing opaque opinions—is in my view
indefensible. The-times-they-are-a-changin’ is a feeble excuse for
disregard of duty.

															   Worse still, the digression is self-defeating.
Despite the Court’s insistence that it is agnostic about the proper
test, lower courts will likely read the Court’s self-described
“instructive” expatiation on how the O’Connor plurality’s
approach would apply here (if it applied), ante , at 9–11,
as a heavy-handed hint about how they should proceed.
Litigants will do likewise, using the threshold question whether
the Fourth Amendment is even implicated as a basis for bombarding
lower courts with arguments about employer policies, how they were
communicated, and whether they were authorized, as well as the
latest trends in employees’ use of electronic media. In short, in
saying why it is not saying more, the Court says much more than it
should.

															   The Court’s inadvertent boosting of the O’Connor plurality’s standard is all the more ironic
because, in fleshing out its fears that applying that test to new
technologies will be too hard, the Court underscores the
unworkability of that standard. Any rule that requires evaluating
whether a given gadget is a “necessary instrumen[t] for
self-expression, even self-identification,” on top of assessing the
degree to which “the law’s treatment of [workplace norms has]
evolve[d],” ante , at 11, is (to put it mildly) unlikely to
yield objective answers.

															   I concur in the Court’s judgment.

															* Despite his disclaimer, ante , at 2,
n. (concurring opinion), Justice Stevens’ concurrence implies, ante , at 1–2, that it is also an open question whether the
approach advocated by Justice Blackmun in his dissent in O’Connor is the proper standard. There is room for
reasonable debate as to which of the two approaches advocated by
Justices whose votes supported the judgment in O’Connor —the plurality’s and mine—is controlling under Marks v. United States , 430 U. S. 188 , 193
(1977). But unless O’Connor is overruled, it is assuredly
false that a test that would have produced the opposite result in that case is still in the running.

Summary: The Supreme Court ruled that the City of Ontario's search of an employee's text messages was reasonable due to a valid work-related purpose and the employee's reduced expectation of privacy based on the employer's computer usage policy. The Court did not establish a new standard for electronic privacy but applied existing Fourth Amendment principles to the case.