GENERAL DYNAMICS LAND SYSTEMS, INC. v. CLINE, 540 U.S. 581 (2004) 124 S.Ct. 1236
GENERAL DYNAMICS LAND SYSTEMS, INC. v. CLINE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
No. 02-1080.
Argued November 12, 2003.
Decided February 24, 2004.
A collective-bargaining agreement between petitioner company and a union
eliminated the company's obligation to provide health benefits to
subsequently retired employees, except as to then-current workers at
least 50 years old. Respondent employees (collectively, Cline)  who
were then at least 40 and thus protected by the Age Discrimination in
Employment Act of 1967 (ADEA), but under 50 and so without promise of
the benefits  claimed before the Equal Employment Opportunity
Commission (EEOC) that the agreement violated the ADEA because it
"discriminate[d against them] . . . because of [their] age,"
29 U.S.C. § 623(a)(1). The EEOC agreed, and invited the company and the
union to settle informally with Cline. When they failed, Cline brought
this action under the ADEA and state law. The District Court
dismissed, calling the federal claim one of "reverse age
discrimination" upon which no court had ever granted relief under the
ADEA, and relying on a Seventh Circuit decision holding that the ADEA
does not protect younger workers against older workers. The Sixth
Circuit reversed, reasoning that § 623(a)(1)'s prohibition of
discrimination is so clear on its face that if Congress had meant to
limit its coverage to protect only the older worker against the
younger, it would have said so. The court acknowledged that its ruling
conflicted with earlier cases, but criticized those decisions for
paying too much attention to the general language of Congress's ADEA
findings. The court also drew support from the EEOC's position in an
interpretive regulation.
Held: The ADEA's text, structure, purpose, history, and relationship to
other federal statutes show that the statute does not mean to stop an
employer from favoring an older employee over a younger one. Pp.
586-600.
1. The ADEA's prohibition covers "discriminat[ion] . . . because of
[an] individual's age" that helps the younger by hurting the older. In
the abstract, that phrase is open to the broader construction that it
also prohibits favor for the old over the young, since § 623(a)(1)'s
reference to "age" carries no express modifier, and the word could be
read to look two ways. This more expansive possible understanding does
not, however, square with the natural reading of the whole provision
prohibiting
Page 582
discrimination. In fact Congress's interpretive clues speak almost
unanimously to an understanding of discrimination as directed against
workers who are older than the ones getting treated better. The ADEA's
prefatory finding and purpose provisions and their legislative history
make a case to this effect that is beyond reasonable doubt. Nor is it
remarkable that the record is devoid of any evidence that younger
workers were suffering at their elders' expense, let alone that a
social problem required a federal statute to place a younger worker in
parity with an older one. The ADEA's restriction of the protected class
to those 40 and above confirms this interpretation. If Congress had
been worrying about protecting the younger against the older, it would
not likely have ignored everyone under 40. The federal case reports are
as replete with decisions taking this position as they are nearly
devoid of decisions like the one under review. While none of this
Court's cases directly addresses the question presented here, all of
them show the Court's consistent understanding that the text,
structure, and history point to the ADEA as a remedy for unfair
preference based on relative youth, leaving complaints of the
relatively young outside the statutory concern. See, e.g., Hazen Paper
Co. v. Biggins, 507 U.S. 604, 610. The very strength of this consensus
is enough to rule out any serious claim of ambiguity, and congressional
silence after years of judicial interpretation supports adherence to
that view. Pp. 586-594.
2. This Court rejects the three rejoinders proffered by Cline and
amicus EEOC in favor of their view that the statutory age
discrimination prohibition works both ways. Pp. 594-600.
(a) The argument that, because other instances of "age" in the ADEA
are not limited to old age, § 623(a)(1)'s "discriminat[ion] . . .
because of [an] individual's age" phrase means treatment that would not
have occurred if the individual's span of years had been either longer
or shorter, rests on two mistakes. First, it erroneously assumes that
the word "age" has the same meaning wherever the ADEA uses it. The
presumption that identical words in different parts of the same Act are
intended to have the same meaning, see, e.g., Atlantic Cleaners &
Dyers, Inc. v. United States, 286 U.S. 427, 433, is not rigid and
readily yields where, as here, there is such variation in the
connection in which the words are used as reasonably to warrant the
conclusion that they were employed in different parts of the Act with
different intent, e.g., ibid. Second, the argument for uniform usage
ignores the cardinal rule that statutory language must be read in
context since a phrase gathers meaning from the words around it. E.g.,
Jones v. United States, 527 U.S. 373, 389. Social history emphatically
reveals an understanding of age discrimination as aimed against the
old, and the statutory reference to age discrimination in this
idiomatic sense is confirmed by legislative
Page 583
history. For the very reason that reference to context shows that "age"
means "old age" when teamed with "discrimination," § 623(f)'s provision
of an affirmative defense when age is a bona fide occupational
qualification readily shows that "age" as a qualification means
comparative youth. As context shows that "age" means one thing in §
623(a)(1) and another in § 623(f), so it also demonstrates that the
presumption of uniformity cannot sensibly operate here. Pp. 594-598.
(b) Cline's and the EEOC's second argument  that their view is
supported by a colloquy on the Senate floor involving an ADEA sponsor
 has more substance than the first, but is still not enough to
unsettle this Court's holding. Senator Yarborough's view is the only
item in all the ADEA hearings, reports, and debates that goes against
the grain of the common understanding of age discrimination. Even from
a sponsor, a single outlying statement cannot stand against a tide of
context and history, not to mention 30 years of judicial interpretation
producing no apparent legislative qualms. Pp. 598-599.
(c) Finally, the argument that the Court owes deference to the
EEOC's contrary reading falls short because the EEOC is clearly wrong.
Even for an agency able to claim all the authority possible under
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, deference to its statutory interpretation is called for
only when the devices of judicial construction have been tried and
found to yield no clear sense of congressional intent, e.g., INS v.
Cardoza-Fonseca, 480 U.S. 421, 446. Here, regular interpretive method
leaves no serious question. The word "age" takes on a definite meaning
from being in the phrase "discriminat[ion] . . . because of such
individual's age," occurring as that phrase does in a statute
structured and manifestly intended to protect the older from arbitrary
favor for the younger. Pp. 599-600.
296 F. 3d 466, reversed.
SOUTER, J., delivered the opinion of the Court, in which REHNQUIST,
C.J., and STEVENS, O'CONNOR, GINSBURG, and BREYER, JJ., joined. SCALIA,
J., filed a dissenting opinion, post, p. 601. THOMAS, J., filed a
dissenting opinion, in which KENNEDY, J., joined, post, p. 602.
Donald B. Verrilli, Jr., argued the cause for petitioner. With him on
the briefs were Deanne E. Maynard, William J. Kilberg, and Craig C.
Martin.
Mark W. Biggerman argued the cause for respondents. With him on the
brief were Erin Stottlemyer Gold, E. Bruce Hadden, and Joanne C. Brant.
Page 584
Acting Solicitor General Clement argued the cause for the United States
et al. as amici curiae urging affirmance. With him on the brief were
Irving L. Gornstein, Carolyn L. Wheeler, Lorraine C. Davis, Robert J.
Gregory, and Susan R. Oxford.[fn*]
[fn*] Briefs of amici curiae urging reversal were filed for AARP by
Laurie A. McCann, Daniel B. Kohrman, and Melvin Radowitz; for the
American Federation of Labor and Congress of Industrial Organizations et
al. by Jonathan P. Hiatt, James B. Coppess, Daniel W. Sherrick, Michael
F. Saggau, and Laurence Gold; for the Central States, Southeast and
Southwest Areas Health and Welfare Fund by Thomas C. Nyhan, James P.
Condon, and John J. Franczyk, Jr.; for the Equal Employment Advisory
Council et al. by Ann Elizabeth Reesman, Daniel V. Yager, Katherine Y.K.
Cheung, Stephen A. Bokat, Robin S. Conrad, and Ellen Dunham Bryant; for
the ERISA Industry Committee by Caroline M. Brown and John M. Vine; and
for the National Education Association by Robert H. Chanin, John M. West,
and Douglas L. Greenfield.
JUSTICE SOUTER delivered the opinion of the Court.
The Age Discrimination in Employment Act of 1967 (ADEA or Act),
81 Stat. 602, 29 U.S.C. § 621 et seq., forbids discriminatory preference for
the young over the old. The question in this case is whether it also
prohibits favoring the old over the young. We hold it does not.
I
In 1997, a collective-bargaining agreement between petitioner General
Dynamics and the United Auto Workers eliminated the company's obligation
to provide health benefits to subsequently retired employees, except as
to then-current workers at least 50 years old. Respondents
(collectively, Cline) were then at least 40 and thus protected by the
Act, see 29 U.S.C. § 631(a), but under 50 and so without promise of the
benefits. All of them objected to the new terms, although some had
retired before the change in order to get
Page 585
the prior advantage, some retired afterwards with no benefit, and some
worked on, knowing the new contract would give them no health coverage
when they were through.
Before the Equal Employment Opportunity Commission (EEOC or Commission)
they claimed that the agreement violated the ADEA, because it
"discriminate[d against them] . . . with respect to . . . compensation,
terms, conditions, or privileges of employment, because of [their] age,"
§ 623(a)(1). The EEOC agreed, and invited General Dynamics and the union
to settle informally with Cline.
When they failed, Cline brought this action against General Dynamics,
combining claims under the ADEA and state law. The District Court called
the federal claim one of "reverse age discrimination," upon which, it
observed, no court had ever granted relief under the ADEA.
98 F. Supp. 2d 846, 848 (ND Ohio 2000). It dismissed in reliance on
the Seventh Circuit's opinion in Hamilton v. Caterpillar Inc.,
966 F. 2d 1226 (1992), that "the ADEA `does not protect . . . the younger
against the older,'" id., at 1227 (quoting Karlen v. City Colleges of
Chicago, 837 F. 2d 314, 318 (CA7), cert. denied sub nom. Teachers v. City
Colleges of Chicago, 486 U.S. 1044 (1988)).
A divided panel of the Sixth Circuit reversed, 296 F. 3d 466 (2002),
with the majority reasoning that the prohibition of § 623(a)(1), covering
discrimination against "any individual . . . because of such individual's
age," is so clear on its face that if Congress had meant to limit its
coverage to protect only the older worker against the younger, it would
have said so. Id., at 472. The court acknowledged the conflict of its
ruling with earlier cases, including Hamilton and Schuler v. Polaroid
Corp., 848 F. 2d 276 (1988) (opinion of Breyer, J.), from the First
Circuit, but it criticized the cases going the other way for paying too
much attention to the "hortatory, generalized language" of the
congressional findings incorporated in the ADEA. 296 F. 3d, at 470. The
Sixth Circuit
Page 586
drew support for its view from the position taken by the EEOC in
an interpretive regulation.[fn1] Id., at 471.
Judge Cole, concurring, saw the issue as one of plain meaning that
produced no absurd result, although he acknowledged a degree of tension
with O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996),
in which this Court spoke of age discrimination as giving better
treatment to a "`substantially younger'" worker. 296 F. 3d, at 472. Judge
Williams dissented in preference for Hamilton and the consensus of the
federal courts, thinking it "obvious that the older a person is, the
greater his or her needs become." 296 F. 3d, at 476.
We granted certiorari to resolve the conflict among the Circuits,
538 U.S. 976 (2003), and now reverse.
II
The common ground in this case is the generalization that the ADEA's
prohibition covers "discriminat[ion] . . . because of [an] individual's
age," 29 U.S.C. § 623(a)(1), that helps the younger by hurting the
older. In the abstract, the phrase is open to an argument for a broader
construction, since reference to "age" carries no express modifier and
the word could be read to look two ways. This more expansive possible
understanding does not, however, square with the natural reading of the
whole provision prohibiting discrimination, and in fact Congress's
interpretive clues speak almost unanimously to an understanding of
discrimination as directed against workers who are older than the ones
getting treated better.
Congress chose not to include age within discrimination forbidden by
Title VII of the Civil Rights Act of 1964, § 715,
Page 587
78 Stat. 265, being aware that there were legitimate reasons as well as
invidious ones for making employment decisions on age. Instead it called
for a study of the issue by the Secretary of Labor, ibid., who concluded
that age discrimination was a serious problem, but one different in kind
from discrimination on account of race.[fn2] The Secretary spoke of
disadvantage to older individuals from arbitrary and stereotypical
employment distinctions (including then-common policies of age ceilings
on hiring), but he examined the problem in light of rational
considerations of increased pension cost and, in some cases, legitimate
concerns about an older person's ability to do the job. Wirtz Report 2.
When the Secretary ultimately took the position that arbitrary
discrimination against older workers was widespread and persistent enough
to call for a federal legislative remedy, id., at 21-22, he placed his
recommendation against the background of common experience that the
potential cost of employing someone rises with age, so that the older an
employee is, the greater the inducement to prefer a younger substitute.
The report contains no suggestion that reactions to age level off at some
point, and it was devoid of any indication that the Secretary had noticed
unfair advantages accruing to older employees at the expense of their
juniors.
Congress then asked for a specific proposal, Fair Labor Standards
Amendments of 1966, § 606, 80 Stat. 845, which the Secretary provided in
January 1967. 113 Cong. Rec. 1377 (1967); see also Public Papers of the
Presidents, Lyndon
Page 588
B. Johnson, Vol. 1, Jan. 23, 1967, p. 37 (1968) (message to Congress
urging that "[o]pportunity . . . be opened to the many Americans over 45
who are qualified and willing to work"). Extensive House and Senate
hearings ensued. See Age Discrimination in Employment: Hearings on H.R.
3651 et al. before the General Subcommittee on Labor of the House
Committee on Education and Labor, 90th Cong., 1st Sess. (1967)
(hereinafter House Hearings); Age Discrimination in Employment: Hearings
on S. 830 and S. 788 before the Subcommittee on Labor of the Senate
Committee on Labor and Public Welfare, 90th Cong., 1st Sess. (1967)
(hereinafter Senate Hearings). See generally EEOC v. Wyoming, 460 U.S. 226,
229-233 (1983).
The testimony at both hearings dwelled on unjustified assumptions about
the effect of age on ability to work. See, e.g., House Hearings 151
(statement of Rep. Joshua Eilberg) ("At age 40, a worker may find that
age restrictions become common. . . . By age 45, his employment
opportunities are likely to contract sharply; they shrink more severely at
age 55 and virtually vanish by age 65"); id., at 422 (statement of Rep.
Claude Pepper) ("We must provide meaningful opportunities for employment
to the thousands of workers 45 and over who are well qualified but
nevertheless denied jobs which they may desperately need because someone
has arbitrarily decided that they are too old"); Senate Hearings 34
(statement of Sen. George Murphy) ("[A]n older worker often faces an
attitude on the part of some employers that prevents him from receiving
serious consideration or even an interview in his search for
employment").[fn3] The hearings specifically
Page 589
addressed higher pension and benefit costs as heavier drags on hiring
workers the older they got. See, e.g., House Hearings 45 (statement of
Norman Sprague) (Apart from stereotypes, "labor market conditions,
seniority and promotion-from-within policies, job training costs, pension
and insurance costs, and mandatory retirement policies often make
employers reluctant to hire older workers"). The record thus reflects the
common facts that an individual's chances to find and keep a job get
worse over time; as between any two people, the younger is in the
stronger position, the older more apt to be tagged with demeaning
stereotype. Not surprisingly, from the voluminous records of the
hearings, we have found (and Cline has cited) nothing suggesting that any
workers were registering complaints about discrimination in favor of
their seniors.
Nor is there any such suggestion in the introductory provisions of the
ADEA, 81 Stat. 602, which begins with statements of purpose and findings
that mirror the Wirtz Report and the committee transcripts. Id., § 2. The
findings stress the impediments suffered by "older workers . . . in their
efforts to retain . . . and especially to regain employment," id., §
2(a)(1); "the [burdens] of arbitrary age limits regardless of potential
for job performance," id., § 2(a)(2); the costs of "otherwise desirable
practices [that] may work to the disadvantage of older persons," ibid.;
and "the incidence of unemployment, especially long-term unemployment[,
which] is, relative to the younger ages, high among older workers," id.,
§ 2(a)(3). The statutory objects were "to promote employment of older
persons based on their ability rather than age; to prohibit arbitrary age
discrimination in employment; [and]
Page 590
to help employers and workers find ways of meeting problems arising from
the impact of age on employment." Id., § 2(b).
In sum, except on one point, all the findings and statements of
objectives are either cast in terms of the effects of age as intensifying
over time, or are couched in terms that refer to "older" workers,
explicitly or implicitly relative to "younger" ones. The single subject
on which the statute speaks less specifically is that of "arbitrary
limits" or "arbitrary age discrimination." But these are unmistakable
references to the Wirtz Report's finding that "[a]lmost three out of
every five employers covered by [a] 1965 survey have in effect age
limitations (most frequently between 45 and 55) on new hires which they
apply without consideration of an applicant's other qualifications." Wirtz
Report 6. The ADEA's ban on "arbitrary limits" thus applies to age caps
that exclude older applicants, necessarily to the advantage of younger
ones.
Such is the setting of the ADEA's core substantive provision, § 4 (as
amended, 29 U.S.C. § 623), prohibiting employers and certain others from
"discriminat[ion] . . . because of [an] individual's age," whenever (as
originally enacted) the individual is "at least forty years of age but
less than sixty-five years of age," § 12, 81 Stat. 607.[fn4] The
prefatory provisions and their legislative history make a case that we
think is beyond reasonable doubt, that the ADEA was concerned
Page 591
to protect a relatively old worker from discrimination that works
to the advantage of the relatively young.
Nor is it remarkable that the record is devoid of any evidence that
younger workers were suffering at the expense of their elders, let alone
that a social problem required a federal statute to place a younger
worker in parity with an older one. Common experience is to the
contrary, and the testimony, reports, and congressional findings simply
confirm that Congress used the phrase "discriminat[ion] . . . because of
[an] individual's age" the same way that ordinary people in common usage
might speak of age discrimination any day of the week. One commonplace
conception of American society in recent decades is its character as a
"youth culture," and in a world where younger is better, talk about
discrimination because of age is naturally understood to refer to
discrimination against the older.
This same, idiomatic sense of the statutory phrase is confirmed by the
statute's restriction of the protected class to those 40 and above. If
Congress had been worrying about protecting the younger against the
older, it would not likely have ignored everyone under 40. The youthful
deficiencies of inexperience and unsteadiness invite stereotypical and
discriminatory thinking about those a lot younger than 40, and prejudice
suffered by a 40-year-old is not typically owing to youth, as
40-year-olds sadly tend to find out. The enemy of 40 is 30, not 50. See
H.R. Rep. No. 805, 90th Cong., 1st Sess., 6 (1967) ("[T]estimony
indicated [40] to be the age at which age discrimination in employment
becomes evident"). Even so, the 40-year threshold was adopted over the
objection that some discrimination against older people begins at an even
younger age; female flight attendants were not fired at 32 because they
were too young, ibid. See also Senate Hearings 47 (statement of Sec'y
Wirtz) (lowering the minimum age limit "would change the nature of the
proposal from an over-age employment discrimination measure"). Thus, the
40-year threshold makes sense as identifying a class requiring
Page 592
protection against preference for their juniors, not as defining a class
that might be threatened by favoritism toward seniors.[fn5]
The federal reports are as replete with cases taking this position as
they are nearly devoid of decisions like the one reviewed here. To start
closest to home, the best example is Hazen Paper Co. v. Biggins,
507 U.S. 604 (1993), in which we held there is no violation of the ADEA
in firing an employee because his pension is about to vest, a basis for
action that we took to be analytically distinct from age, even though it
would never occur without advanced years. Id., at 611-612. We said that
"the very essence of age discrimination [is] for an older employee to be
fired because the employer believes that productivity and competence
decline with old age," id., at 610, whereas discrimination on the basis
of pension status "would not constitute discriminatory treatment on the
basis of age [because t]he prohibited stereotype [of
Page 593
the faltering worker] would not have figured in this decision, and the
attendant stigma would not ensue," id., at 612. And we have relied on
this same reading of the statute in other cases. See, e.g., O'Connor,
517 U.S., at 313 ("Because the ADEA prohibits discrimination on the basis
of age . . . the fact that a replacement is substantially younger than
the plaintiff is a . . . reliable indicator of age discrimination");
Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 409 (1985) ("[T]he
legislative history of the ADEA . . . repeatedly emphasize[s that] the
process of psychological and physiological degeneration caused by aging
varies with each individual"). While none of these cases directly
addresses the question presented here, all of them show our consistent
understanding that the text, structure, and history point to the ADEA as
a remedy for unfair preference based on relative youth, leaving
complaints of the relatively young outside the statutory concern.
The Courts of Appeals and the District Courts have read the law the
same way, and prior to this case have enjoyed virtually unanimous accord
in understanding the ADEA to forbid only discrimination preferring young
to old. So the Seventh Circuit held in Hamilton, and the First Circuit
said in Schuler, and so the District Courts have ruled in cases too
numerous for citation here in the text.[fn6] The very
Page 594
strength of this consensus is enough to rule out any serious claim of
ambiguity, and congressional silence after years of judicial
interpretation supports adherence to the traditional view.[fn7]
III
Cline and amicus EEOC proffer three rejoinders in favor of their
competing view that the prohibition works both ways. First, they say (as
does JUSTICE THOMAS, post, at 602-605) that the statute's meaning is
plain when the word "age" receives its natural and ordinary meaning and
the statute is read as a whole giving "age" the same meaning throughout.
And even if the text does not plainly mean what they say it means, they
argue that the soundness of their version is shown by a colloquy on the
floor of the Senate involving Senator Yarborough, a sponsor of the bill
that became the ADEA. Finally, they fall back to the position (fortified
by JUSTICE SCALIA's dissent) that we should defer to the EEOC's reading
of the statute. On each point, however, we think the argument falls short
of unsettling our view of the natural meaning of the phrase speaking of
discrimination, read in light of the statute's manifest purpose.
A
The first response to our reading is the dictionary argument that "age"
means the length of a person's life, with the
Page 595
phrase "because of such individual's age" stating a simple test of
causation: "discriminat[ion] . . . because of [an] individual's age" is
treatment that would not have occurred if the individual's span of years
had been longer or shorter. The case for this reading calls attention to
the other instances of "age" in the ADEA that are not limited to old
age, such as 29 U.S.C. § 623(f), which gives an employer a defense to
charges of age discrimination when "age is a bona fide occupational
qualification." Cline and the EEOC argue that if "age" meant old age, §
623(f) would then provide a defense (old age is a bona fide
qualification) only for an employer's action that on our reading would
never clash with the statute (because preferring the older is not
forbidden).
The argument rests on two mistakes. First, it assumes that the word
"age" has the same meaning wherever the ADEA uses it. But this is not
so, and Cline simply misemploys the "presumption that identical words
used in different parts of the same act are intended to have the same
meaning." Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427,
433 (1932). Cline forgets that "the presumption is not rigid and readily
yields whenever there is such variation in the connection in which the
words are used as reasonably to warrant the conclusion that they were
employed in different parts of the act with different intent." Ibid.; see
also United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 213
(2001) (phrase "wages paid" has different meanings in different parts of
Title 26 U.S.C.); Robinson v. Shell Oil Co., 519 U.S. 337, 343-344 (1997)
(term "employee" has different meanings in different parts of Title
VII). The presumption of uniform usage thus relents[fn8] when a word used
Page 596
has several commonly understood meanings among which a speaker can
alternate in the course of an ordinary conversation, without being
confused or getting confusing.
"Age" is that kind of word. As JUSTICE THOMAS (post, at 603) agrees,
the word "age" standing alone can be readily understood either as
pointing to any number of years lived, or as common shorthand for the
longer span and concurrent aches that make youth look good. Which
alternative was probably intended is a matter of context; we understand
the different choices of meaning that lie behind a sentence like "Age can
be shown by a driver's license," and the statement, "Age has left him a
shut-in." So it is easy to understand that Congress chose different
meanings at different places in the ADEA, as the different settings
readily show. Hence the second flaw in Cline's argument for uniform
usage: it ignores the cardinal rule that "[s]tatutory language must be
read in context [since] a phrase `gathers meaning from the words around
it.'" Jones v. United States, 527 U.S. 373, 389 (1999) (quoting Jarecki
v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)). The point here is that
we are not asking an abstract question about the meaning of "age"; we are
seeking the meaning of the whole phrase "discriminate . . . because of
such individual's age," where it occurs in the ADEA, 29 U.S.C. § 623(a)(1).
As we have said, social history emphatically reveals an understanding of
age discrimination as aimed against the old, and the statutory reference
to age discrimination in this idiomatic sense is confirmed by legislative
history. For the very reason that reference to context shows that "age"
means "old age" when teamed with "discrimination," the provision of an
affirmative defense when age is a bona fide occupational qualification
readily shows that "age" as a qualification means comparative youth. As
Page 597
context tells us that "age" means one thing in § 623(a)(1) and another in
§ 623(f),[fn9] so it also tells us that the presumption of uniformity
cannot sensibly operate here.[fn10]
The comparisons JUSTICE THOMAS urges, post, at 608-612, to McDonald v.
Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), and Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75 (1998), serve to clarify our
position. Both cases involved Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and its prohibition on employment
discrimination "because of [an] individual's race . . . [or] sex," §
2000e-2(a)(1) (emphasis added). The term "age" employed by the ADEA is
not, however, comparable to the terms "race" or "sex" employed by Title
VII. "Race" and "sex" are general terms that in every day usage require
modifiers to indicate
Page 598
any relatively narrow application. We do not commonly understand "race"
to refer only to the black race, or "sex" to refer only to the female.
But the prohibition of age discrimination is readily read more narrowly
than analogous provisions dealing with race and sex. That narrower
reading is the more natural one in the textual setting, and it makes
perfect sense because of Congress's demonstrated concern with distinctions
that hurt older people.
B
The second objection has more substance than the first, but still not
enough. The record of congressional action reports a colloquy on the
Senate floor between two of the legislators most active in pushing for
the ADEA, Senators Javits and Yarborough. Senator Javits began the
exchange by raising a concern mentioned by Senator Dominick, that "the
bill might not forbid discrimination between two persons each of whom
would be between the ages of 40 and 65." 113 Cong. Rec. 31255 (1967).
Senator Javits then gave his own view that, "if two individuals ages 52
and 42 apply for the same job, and the employer selected the man aged 42
solely . . . because he is younger than the man 52, then he will have
violated the act," and asked Senator Yarborough for his opinion. Ibid.
Senator Yarborough answered that "[t]he law prohibits age being a factor
in the decision to hire, as to one age over the other, whichever way
[the] decision went." Ibid.
Although in the past we have given weight to Senator Yarborough's views
on the construction of the ADEA because he was a sponsor, see, e.g.,
Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158, 179
(1989), his side of this exchange is not enough to unsettle our reading
of the statute. It is not merely that the discussion was prompted by the
question mentioned in O'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 (1996), the possibility of a 52-year-old suing over a
preference for someone
Page 599
younger but in the over-40 protected class. What matters is that the
Senator's remark, "whichever way [the] decision went," is the only item
in all the 1967 hearings, reports, and debates going against the grain of
the common understanding of age discrimination.[fn11] Even from a
sponsor, a single outlying statement cannot stand against a tide of
context and history, not to mention 30 years of judicial interpretation
producing no apparent legislative qualms. See Consumer Product Safety
Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980) ("[O]rdinarily
even the contemporaneous remarks of a single legislator who sponsors a
bill are not controlling in analyzing legislative history").
C
The third objection relies on a reading consistent with the Yarborough
comment, adopted by the agency now charged with enforcing the statute, as
set out at 29 CFR § 1625.2(a) (2003), and quoted in full, n. 1, supra.
When the EEOC adopted § 1625.2(a) in 1981, shortly after assuming
administrative responsibility for the ADEA, it gave no reasons for the
view expressed, beyond noting that the provision was carried forward from
an earlier Department of Labor regulation, see 44 Fed. Reg. 68858
(1979); 46 Fed. Reg. 47724 (1981); that earlier regulation itself gave no
reasons, see 33 Fed. Reg. 9172 (1968) (reprinting 29 CFR § 860.91,
rescinded by 46 Fed. Reg. 47724 (1981)).
Page 600
The parties contest the degree of weight owed to the EEOC's reading,
with General Dynamics urging us that Skidmore v. Swift & Co., 323 U.S. 134
(1944), sets the limit, while Cline and the EEOC say that § 1625.2(a)
deserves greater deference under Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). Although we have devoted a
fair amount of attention lately to the varying degrees of deference
deserved by agency pronouncements of different sorts, see United States
v. Mead Corp., 533 U.S. 218 (2001); Christensen v. Harris County,
529 U.S. 576 (2000), the recent cases are not on point here. In Edelman
v. Lynchburg College, 535 U.S. 106, 114 (2002), we found no need to
choose between Skidmore and Chevron, or even to defer, because the EEOC
was clearly right; today, we neither defer nor settle on any degree of
deference because the Commission is clearly wrong.
Even for an agency able to claim all the authority possible under
Chevron, deference to its statutory interpretation is called for only
when the devices of judicial construction have been tried and found to
yield no clear sense of congressional intent. INS v. Cardoza-Fonseca,
480 U.S. 421, 446-448 (1987) (citing Chevron, supra, at 843, n. 9).
Here, regular interpretive method leaves no serious question, not even
about purely textual ambiguity in the ADEA. The word "age" takes on a
definite meaning from being in the phrase "discriminat[ion] . . . because
of such individual's age," occurring as that phrase does in a statute
structured and manifestly intended to protect the older from arbitrary
favor for the younger.
IV
We see the text, structure, purpose, and history of the ADEA, along
with its relationship to other federal statutes, as showing that the
statute does not mean to stop an employer from favoring an older employee
over a younger one. The judgment of the Court of Appeals is
Reversed.
[fn1] 29 CFR § 1625.2(a) (2003) ("[I]f two people apply for the same
position, and one is 42 and the other 52, the employer may not lawfully
turn down either one on the basis of age, but must make such decision on
the basis of some other factor"). We discuss this regulation at greater
length, infra, at 599-600.
[fn2] That report found that "[e]mployment discrimination because of race
is identified . . . with . . . feelings about people entirely unrelated
to their ability to do the job. There is no significant discrimination of
this kind so far as older workers are concerned. The most closely related
kind of discrimination in the non-employment of older workers involves
their rejection 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." Report of the Secretary of Labor, The Older American
Worker: Age Discrimination in Employment 2 (June 1965) (hereinafter Wirtz
Report) (emphasis in original).
[fn3] See also House Hearings 449 (statement of Rep. James A. Burke)
("Discrimination arises for [the older job seeker] because of assumptions
that are made about the effects of age on performance"); Senate Hearings
179 (statement of Dr. Harold L. Sheppard) ("[O]ne of the underlying
conditions for this upward trend in unemployment rates for a given group
of so-called older workers over a period of time . . . is related to the
barrier of age discrimination"); id., at 215 (statement of Sen. Harrison
A. Williams) ("`Unfavorable beliefs and generalizations about older
persons have grown up and have been translated into restrictive policies
and practices in hiring new employees which bar older jobseekers from
employment principally because of age'" (quoting earlier report of Senate
Special Committee on Aging)).
[fn4] In 1978, Congress changed the upper age limit to 70 years, Pub.L.
95-256, § 3(a), 92 Stat. 189, and then struck it entirely in 1986,
Pub.L. 99-592, § 2(c)(1), 100 Stat. 3342. The President transferred
authority over the ADEA from the Department of Labor to the EEOC in
1978. Reorg. Plan No. 1 of 1978, 5 U.S.C. App. § 2, p. 206. Congress has
also made other changes, including extending the ADEA to government
employees (state, local, and federal), Pub.L. 93-259, 88 Stat. 74-75
(amending 29 U.S.C. § 630(b) and adding § 633a), and clarifying that it
extends, with certain exceptions, to employee benefits, Pub.L. 101-433,
104 Stat. 978 (amending among other provisions 29 U.S.C. § 630(l)).
[fn5] JUSTICE THOMAS, post, at 606-613 (dissenting opinion), charges our
holding with unnaturally limiting a comprehensive prohibition of age
discrimination to "the principal evil that Congress targeted," post, at
607, which he calls inconsistent with the method of McDonald v. Santa Fe
Trail Transp. Co., 427 U.S. 273 (1976) (the Title VII prohibition of
discrimination because of race protects whites), and Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75 (1998) (the Title VII prohibition of
discrimination because of sex protects men from sexual harassment by
other men). His objection is aimed at the wrong place. As we discuss at
greater length infra, at 596-598, we are not dealing here with a
prohibition expressed by the unqualified use of a term without any
conventionally narrow sense (as "race" or "sex" are used in Title VII),
and are not narrowing such a prohibition so that it covers only instances
of the particular practice that induced Congress to enact the general
prohibition. We hold that Congress expressed a prohibition by using a term
in a commonly understood, narrow sense ("age" as "relatively old age").
JUSTICE THOMAS may think we are mistaken, post, at 603-606, when we infer
that Congress used "age" as meaning the antithesis of youth rather than
meaning any age, but we are not making the particular mistake of
confining the application of terms used in a broad sense to the
relatively narrow class of cases that prompted Congress to address their
subject matter.
[fn6] See Lawrence v. Irondequoit, 246 F. Supp. 2d 150, 161 (WDNY
2002) (following Hamilton); Greer v. Pension Benefit Guaranty
Corporation, 85 FEP Cases 416, 419 (SDNY 2001) (noting unanimity of the
courts); Dittman v. General Motors Corp.-Delco Chassis Div.,
941 F. Supp. 284, 286-287 (Conn. 1996) (alternative holding)
(following Hamilton); Parker v. Wakelin, 882 F. Supp. 1131, 1140
(Me. 1995) ("The ADEA has never been construed to permit younger persons
to claim discrimination against them in favor of older persons"); Wehrly
v. American Motors Sales Corp., 678 F. Supp. 1366, 1382 (ND Ind.
1988) (following Karlen v. City Colleges of Chicago, 837 F. 2d 314, 318
(CA7), cert. denied sub nom. Teachers v. City Colleges of Chicago,
486 U.S. 1044 (1988)). The only case we have found arguably to the
contrary is Mississippi Power & Light Co. v. Local Union Nos. 605 &
985, IBEW, 945 F. Supp. 980, 985 (SD Miss. 1996), which allowed a
claim objecting to a benefit given to individuals between 60 and 65 and
denied to those outside that range, without discussing Hamilton or any of
the other authority holding that the plaintiffs under 60 would lack a
cause of action.
[fn7] Congress has not been shy in revising other judicial constructions
of the ADEA. See Public Employees Retirement System of Ohio v. Betts,
492 U.S. 158, 167-168 (1989) (observing that the 1978 amendment to the
ADEA "changed the specific result" of this Court's earlier case of United
Air Lines, Inc. v. McMann, 434 U.S. 192 (1977)); H.R. Rep. No. 101-664,
pp. 10-11, 34 (1990) (stating that Congress in 1978 had also disapproved
McMann's reasoning, and that with the 1990 amendments it meant to
overrule Betts as well).
[fn8] It gets too little credit for relenting, though. "The tendency to
assume that a word which appears in two or more legal rules, and so in
connection with more than one purpose, has and should have precisely the
same scope in all of them, runs all through legal discussions. It has all
the tenacity of original sin and must constantly be guarded against."
Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 Yale L.J.
333, 337 (1933). The passage has become a staple of our opinions. See
United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 213
(2001); NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co.,
513 U.S. 251, 262 (1995); CAB v. Delta Air Lines, Inc., 367 U.S. 316, 328
(1961).
[fn9] An even wider contextual enquiry supports our conclusion, for the
uniformity Cline and the EEOC claim for the uses of "age" within the ADEA
itself would introduce unwelcome discord among the federal statutes on
employee benefit plans. For example, the Tax Code requires an employer to
allow certain employees who reach age 55 to diversify their stock
ownership plans in part, 26 U.S.C. § 401(a)(28)(B); removes a penalty on
early distributions from retirement plans at age 59½, § 72(t)(2)(A)(i);
requires an employer to allow many employees to receive benefits
immediately upon retiring at age 65, § 401(a)(14); and requires an
employer to adjust upward an employee's pension benefits if that employee
continues to work past age 70½, § 401(a)(9)(C)(iii). The Employee
Retirement Income Security Act of 1974 makes similar provisions. See,
e.g., 29 U.S.C. § 1002(24) ("normal retirement age" may come at age 65,
although the plan specifies later); § 1053(a) (a plan must pay full
benefits to employees who retire at normal retirement age). Taken one at
a time any of these statutory directives might be viewed as an exception
Congress carved out of a generally recognized principle that employers
may not give benefits to older employees that they withhold from younger
ones. Viewed as a whole, however, they are incoherent with the alleged
congressional belief that such a background principle existed.
[fn10] Essentially the same answer suffices for Cline's and the EEOC's
suggestion that our reading is at odds with the statute's ban on
employers' "print[ing] . . . any notice or advertisement relating to
employment . . . indicating any preference, limitation, specification, or
discrimination . . . based on age." § 623(e).
[fn11] It is only fair to add, though, that Senator Dominick himself does
appear to have sought clarification on the question presented, asking in a
statement appended to the Committee Report whether "the prospective
employer [is] open to a charge of discrimination if he hires the younger
man and would . . . be open to a charge of discrimination by the younger
man if he hired the older one." S. Rep. No. 723, 90th Cong., 1st Sess.,
15-16 (1967); see also id., at 16 (mentioning confusion among committee
counsel). Senator Dominick considered this result undesirable. See ibid.
("[M]any legal complexities surrounding this bill . . . have not been
adequately dealt with by the committee").
Page 601
JUSTICE SCALIA, dissenting.
The Age Discrimination in Employment Act of 1967 (ADEA or Act),
29 U.S.C. §§ 621-634, makes it unlawful for an employer to "discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's
age." § 623(a)(1). The question in this case is whether, in the absence
of an affirmative defense, the ADEA prohibits an employer from favoring
older over younger workers when both are protected by the Act, i.e., are
40 years of age or older.
The Equal Employment Opportunity Commission (EEOC) has answered this
question in the affirmative. In 1981, the agency adopted a regulation
which states, in pertinent part:
"It is unlawful in situations where this Act applies,
for an employer to discriminate in hiring or in any
other way by giving preference because of age between
individuals 40 and over. Thus, if two people apply for
the same position, and one is 42 and the other 52, the
employer may not lawfully turn down either one on the
basis of age, but must make such decision on the basis
of some other factor." 29 CFR § 1625.2(a) (2003).
This regulation represents the interpretation of the agency tasked by
Congress with enforcing the ADEA. See 29 U.S.C. § 628.
The Court brushes aside the EEOC's interpretation as "clearly wrong."
Ante, at 600. I cannot agree with the contention upon which that
rejection rests: that "regular interpretive method leaves no serious
question, not even about purely textual ambiguity in the ADEA." Ibid. It
is evident, for the reasons given in Part II of JUSTICE THOMAS's
dissenting opinion, that the Court's interpretive method is anything but
"regular." And for the reasons given in Part I of that opinion, the
EEOC's interpretation is neither foreclosed by the statute nor
unreasonable.
Page 602
Because § 623(a) "does not unambiguously require a different
interpretation, and . . . the [EEOC's] regulation is an entirely
reasonable interpretation of the text," Barnhart v. Thomas, ante, at
29-30, I would defer to the agency's authoritative conclusion. See United
States v. Mead Corp., 533 U.S. 218, 257 (2001) (SCALIA, J., dissenting).
I respectfully dissent.
JUSTICE THOMAS, with whom JUSTICE KENNEDY joins, dissenting.
This should have been an easy case. The plain language of
29 U.S.C. § 623(a)(1) mandates a particular outcome: that the respondents
are able to sue for discrimination against them in favor of older
workers. The agency charged with enforcing the statute has adopted a
regulation and issued an opinion as an adjudicator, both of which adopt
this natural interpretation of the provision. And the only portion of
legislative history relevant to the question before us is consistent with
this outcome. Despite the fact that these traditional tools of statutory
interpretation lead inexorably to the conclusion that respondents can
state a claim for discrimination against the relatively young, the
Court, apparently disappointed by this result, today adopts a different
interpretation. In doing so, the Court, of necessity, creates a new tool
of statutory interpretation, and then proceeds to give this newly created
"social history" analysis dispositive weight. Because I cannot agree with
the Court's new approach to interpreting antidiscrimination statutes, I
respectfully dissent.
I
"The starting point for [the] interpretation of a statute is always its
language," Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739
(1989), and "courts must presume that a legislature says in a statute
what it means and means in a statute what it says there," Connecticut
Nat. Bank v. Germain, 503 U.S. 249, 253-254 (1992). Thus,
Page 603
rather than looking through the historical background of the Age
Discrimination in Employment Act of 1967 (ADEA), I would instead start
with the text of § 623(a)(1) itself, and if "the words of [the] statute
are unambiguous," my "judicial inquiry [would be] complete." Id., at 254
(internal quotation marks omitted).
The plain language of the ADEA clearly allows for suits brought by the
relatively young when discriminated against in favor of the relatively
old. The phrase "discriminate . . . because of such individual's age,"
29 U.S.C. § 623(a)(1), is not restricted to discrimination because of
relatively older age. If an employer fired a worker for the sole reason
that the worker was under 45, it would be entirely natural to say that
the worker had been discriminated against because of his age. I struggle
to think of what other phrase I would use to describe such behavior. I
wonder how the Court would describe such incidents, because the Court
apparently considers such usage to be unusual, atypical, or aberrant. See
ante, at 591 (concluding that the "common usage" of language would
exclude discrimination against the relatively young from the phrase
"discriminat[ion] . . . because of [an] individual's age").
The parties do identify a possible ambiguity, centering on the multiple
meanings of the word "age." As the parties note, "age" does have an
alternative meaning, namely, "[t]he state of being old; old age."
American Heritage Dictionary 33 (3d ed. 1992); see also Oxford American
Dictionary 18 (1999); Webster's Third New International Dictionary 40
(1993). First, this secondary meaning is, of course, less commonly used
than the primary meaning, and appears restricted to those few instances
where it is clear in the immediate context of the phrase that it could
have no other meaning. The phrases "hair white with age," American
Heritage Dictionary, supra, at 33, or "eyes . . . dim with age," Random
House Dictionary of the English Language 37 (2d ed. 1987), cannot
possibly be using "age" to include "young
Page 604
age," unlike a phrase such as "he fired her because of her age." Second,
the use of the word "age" in other portions of the statute effectively
destroys any doubt. The ADEA's advertising prohibition, 29 U.S.C. § 623(e),
and the bona fide occupational qualification defense, § 623(f)(1), would
both be rendered incoherent if the term "age" in those provisions were
read to mean only "older age."[fn1] Although it is true that the
"`presumption that identical words used in different parts of the same
act are intended to have the same meaning'" is not "rigid" and can be
overcome when the context is clear, ante, at 595 (quoting Atlantic
Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932)), the
presumption is not rebutted here. As noted, the plain and common reading
of the phrase "such individual's age" refers to the individual's
chronological age. At the very least, it is manifestly unclear that it
bars only discrimination against the relatively older. Only by
incorrectly concluding that § 623(a)(1) clearly and unequivocally bars
only discrimination as "against the older," ante, at 591, can the Court
then conclude that the "context" of §§ 623(f)(1) and 623(e) allows for an
alternative meaning of the term "age," ante, at 596-597.
The one structural argument raised by the Court in defense of its
interpretation of "discriminates . . . because of such individual's age"
is the provision limiting the ADEA's protections to those over 40 years
of age. See
Page 605
29 U.S.C. § 631(a). At first glance, this might look odd when paired with
the conclusion that § 623(a)(1) bars discrimination against the
relatively young as well as the relatively old, but there is a perfectly
rational explanation. Congress could easily conclude that age
discrimination directed against those under 40 is not as damaging, since
a young worker unjustly fired is likely to find a new job or otherwise
recover from the discrimination. A person over 40 fired due to irrational
age discrimination (whether because the worker is too young or too old)
might have a more difficult time recovering from the discharge and
finding new employment. Such an interpretation also comports with the
many findings of the Wirtz report, United States Dept. of Labor, The
Older American Worker: Age Discrimination in Employment (June 1965), and
the parallel findings in the ADEA itself. See, e.g., 29 U.S.C. § 621(a)(1)
(finding that "older workers find themselves disadvantaged in their
efforts to retain employment, and especially to regain employment when
displaced from jobs"); § 621(a)(3) (finding that "the incidence of
unemployment, especially long-term unemployment with resultant
deterioration of skill, morale, and employer acceptability is, relative
to the younger ages, high among older workers").
This plain reading of the ADEA is bolstered by the interpretation of
the agency charged with administering the statute. A regulation issued by
the Equal Employment Opportunity Commission (EEOC) adopts the view
contrary to the Court's, 29 CFR § 1625.2(a) (2003), and the only binding
EEOC decision that addresses the question before us also adopted the view
contrary to the Court's, see Garrett v. Runyon, Appeal No. 01960422, 1997
WL 574739, *1 (EEOC, Sept. 5, 1997). I agree with the Court that we need
not address whether deference under Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), would apply to the
EEOC's regulation in this case. See ante, at 600. Of course, I so
conclude because the EEOC's interpretation is consistent with the best
reading
Page 606
of the statute. The Court's position, on the other hand, is untenable.
Even if the Court disagrees with my interpretation of the language of the
statute, it strains credulity to argue that such a reading is so
unreasonable that an agency could not adopt it. To suggest that, in the
instant case, the "regular interpretive method leaves no serious
question, not even about purely textual ambiguity in the ADEA," ibid., is
to ignore the entirely reasonable (and, incidentally, correct) contrary
interpretation of the ADEA that the EEOC and I advocate.
Finally, the only relevant piece of legislative history addressing the
question before the Court  whether it would be possible for a younger
individual to sue based on discrimination against him in favor of an
older individual  comports with the plain reading of the text. Senator
Yarborough, in the only exchange that the parties identified from the
legislative history discussing this particular question, confirmed that
the text really meant what it said. See 113 Cong. Rec. 31255 (1967).[fn2]
Although the statute is clear, and hence there is no need to delve into
the legislative history, this history merely confirms that the plain
reading of the text is correct.
II
Strangely, the Court does not explain why it departs from accepted
methods of interpreting statutes. It does, however, clearly set forth its
principal reason for adopting its particular reading of the phrase
"discriminate . . . based on [an] individual's age" in Part III-A of its
opinion. "The point here," the Court states, "is that we are not asking an
abstract question about the meaning of `age'; we are seeking the meaning
of the whole phrase `discriminate . . . because of such individual's
age.' . . . As we have said, social history emphatically reveals an
understanding of age discrimination as aimed against the old, and the
statutory reference to age
Page 607
discrimination in this idiomatic sense is confirmed by legislative
history." Ante, at 596 (emphasis added). The Court does not define
"social history," although it is apparently something different from
legislative history, because the Court refers to legislative history as a
separate interpretive tool in the very same sentence. Indeed, the Court
has never defined "social history" in any previous opinion, probably
because it has never sanctioned looking to "social history" as a method
of statutory interpretation. Today, the Court takes this unprecedented
step, and then places dispositive weight on the new concept.
It appears that the Court considers the "social history" of the phrase
"discriminate . . . because of [an] individual's age" to be the principal
evil that Congress targeted when it passed the ADEA. In each section of
its analysis, the Court pointedly notes that there was no evidence of
widespread problems of antiyouth discrimination, and that the primary
concerns of Executive Branch officials and Members of Congress pertained
to problems that workers generally faced as they increased in age.[fn3]
The Court reaches its final, legal conclusion as to the meaning of the
phrase (that "ordinary people" employing the common usage of language
would "talk about discrimination because of age [as] naturally [referring
to] discrimination against the older," ante, at 591) only after
concluding both that "the ADEA was concerned to protect a relatively old
worker from discrimination that works to the advantage of the relatively
young" and that
Page 608
"the record is devoid of any evidence that younger workers were suffering
at the expense of their elders, let alone that a social problem required
a federal statute to place a younger worker in parity with an older one."
Ante, at 590-591. Hence, the Court apparently concludes that if Congress
has in mind a particular, principal, or primary form of discrimination
when it passes an antidiscrimination provision prohibiting persons from
"discriminating because of [some personal quality]," then the phrase
"discriminate because of [some personal quality]" only covers the
principal or most common form of discrimination relating to this personal
quality.
The Court, however, has not typically interpreted nondiscrimination
statutes in this odd manner. "[S]tatutory prohibitions often go beyond
the principal evil to cover reasonably comparable evils, and it is
ultimately the provisions of our laws rather than the principal concerns
of our legislators by which we are governed." Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75, 79 (1998). The oddity of the
Court's new technique of statutory interpretation is highlighted by this
Court's contrary approach to the racial-discrimination prohibition of
Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended,
42 U.S.C. § 2000e et seq.
There is little doubt that the motivation behind the enactment of the
Civil Rights Act of 1964 was to prevent invidious discrimination against
racial minorities, especially blacks. See 110 Cong. Rec. 6552 (1964)
(statement of Sen. Humphrey) ("The goals of this bill are simple ones: To
extend to Negro citizens the same rights and the same opportunities that
white Americans take for granted"). President Kennedy, in announcing his
Civil Rights proposal, identified several social problems, such as how a
"Negro baby born in America today . . . has about one-half as much chance
of completing a high school as a white baby . . . one-third as much
chance of becoming a professional man, twice as much chance of becoming
unemployed, . . . and the prospects of earning only half
Page 609
as much." Radio and Television Report to the American People on Civil
Rights, Public Papers of the Presidents, John F. Kennedy, No. 237, June,
11, 1963, pp. 468-469 (1964). He gave no examples, and cited no
occurrences, of discrimination against whites or indicated that such
discrimination motivated him (even in part) to introduce the bill.
Considered by some to be the impetus for the submission of a Civil Rights
bill to Congress,[fn4] the 1961 Civil Rights Commission Report focused
its employment section solely on discrimination against racial
minorities, noting, for instance, that the "twin problems" of
unemployment and a lack of skilled workers "are magnified for minority
groups that are subject to discrimination." 3 U.S. Commission on Civil
Rights Report 1 (1961). It also discussed and analyzed the more severe
unemployment statistics of black workers compared to white workers. See
id., at 1-4; see also id., at 153 (summarizing findings of the
Commission, listing examples only of discrimination against blacks). The
report presented no evidence of any problems (or even any incidents) of
discrimination against whites.
The congressional debates and hearings, although filled with statements
decrying discrimination against racial minorities and setting forth the
disadvantages those minorities suffered, contain no references that I
could find to any problem of discrimination against whites. See, e.g.,
110 Cong. Rec. 7204 (1964) (statement of Sen. Clark) ("I turn now to the
background of racial discrimination in the job market, which is the basis
for the need for this legislation. I suggest that economics is at the
heart of racial bias. The Negro has been condemned to poverty because of
lack of equal job opportunities. This poverty has kept the Negro out of
the mainstream of American life"); id., at 7379 (statement of Sen.
Kennedy) ("Title VII is directed toward what, in my judgment, American
Negroes need most to increase their health
Page 610
and happiness. . . . [T]o be deprived of the chance to make a decent
living and of the income needed to bring up children is a family
tragedy"); id., at 6547 (statement of Sen. Humphrey) ("I would like to
turn now to the problem of racial discrimination in employment. At the
present time Negroes and members of other minority groups do not have an
equal chance to be hired, to be promoted, and to be given the most
desirable assignments"); ibid. (citing disfavorable unemployment rates of
nonwhites as compared to whites); ibid. ("Discrimination in employment is
not confined to any region  it is widespread in every part of the
country. It is harmful to Negroes and to members of other minority
groups"); id., at 6548 ("The crux of the problem is to open employment
opportunities for Negroes in occupations which have been traditionally
closed to them"); id., at 6562 (statement of Sen. Kuchel) ("If a Negro or
a Puerto Rican or an Indian or a Japanese-American or an American of
Mexican descent cannot secure a job and the opportunity to advance on
that job commensurate with his skill, then his right to be served in
places of public accommodation is a meaningless one. . . . And if a member
of a so-called minority group believes that no matter how hard he
studies, he will be confronted with a life of unskilled and menial
labor, then a loss has occurred, not only for a human being, but also for
our Nation"); id., at 6748 (statement of Sen. Moss) ("All of us, that is
except the person who is discriminated against on the basis of race,
color, or national origin. . . . He frequently knows that he is not going
to school to prepare for a job. . . . He frequently knows that no matter
how hard he works, how diligently he turns up day after day, how much
overtime he puts in, that he will never get to be the boss of a single
work crew or the foreman of a single division. And that is what the fair
employment practices title is about  not the right to displace a white
man or be given preference over him  but simply the right to be in the
running"). I find no evidence that even a single legislator appeared
concerned about
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whether there were incidents of discrimination against whites, and I find
no citation to any such incidents.
In sum, there is no record evidence "that [white] workers were
suffering at the expense of [racial minorities]," and in 1964,
discrimination against whites in favor of racial minorities was hardly "a
social problem requir[ing] a federal statute to place a [white] worker in
parity with [racial minorities]." Ante, at 591. Thus, "talk about
discrimination because of [race would] naturally [be] understood to refer
to discrimination against [racial minorities]." Ibid. In light of the
Court's opinion today, it appears that this Court has been treading down
the wrong path with respect to Title VII since at least 1976.[fn5] See
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) (holding that
Title VII protected whites discriminated against in favor of racial
minorities).
In McDonald, the Court relied on the fact that the terms of Title VII,
prohibiting the discharge of "any individual" because of "such
individual's race," 42 U.S.C. § 2000e-2(a)(1), "are not limited to
discrimination against members of any particular race."
427 U.S., at 278-279. Admittedly, the Court there also relied on the
EEOC's interpretation of Title VII as given in its decisions, id., at
279-280, and also on statements from the legislative history of the
enactment of Title VII. See id., at 280 (citing 110 Cong. Rec., at 2578
(remarks of Rep. Celler); id., at 7218 (memorandum of Sen. Clark); id.,
at 7213 (memorandum of Sens. Clark and Case); id., at 8912 (remarks of
Sen. Williams)). But, in the instant case, as I have already noted
above, see supra, at 605, the EEOC has issued a regulation and a binding
EEOC decision adopting the view contrary to the Court's and in line with
the interpretation of Title VII. And, again as already noted, see supra,
at 606, the only relevant piece of legislative history with respect to
the question before the Court is in the same posture as the legislative
history behind Title VII:
Page 612
namely, a statement that age discrimination cuts both ways and a
relatively younger individual could sue when discriminated against. See
113 Cong. Rec., at 31255 (statement of Sen. Yarborough).
It is abundantly clear, then, that the Court's new approach to
antidiscrimination statutes would lead us far astray from well-settled
principles of statutory interpretation. The Court's examination of "social
history" is in serious tension (if not outright conflict) with our prior
cases in such matters. Under the Court's current approach, for instance,
McDonald and Oncale[fn6] are wrongly decided. One can only hope that this
new technique of statutory interpretation does not catch on, and that its
errors are limited to only this case.
Responding to this dissent, the Court insists that it is not making
this "particular mistake," namely, "confining the application of terms
used in a broad sense to the relatively narrow class of cases that
prompted Congress to address their subject matter." Ante, at 592, n. 5. It
notes that, in contrast to the term "age," the terms "race" and "sex" are
"general terms that in every day usage require modifiers to indicate any
relatively narrow application." Ante, at 597-598. The Court, thus, seems
to claim that it is merely trying to identify whether the "narrower
reading" of the term "age" is "the more natural one in the textual
setting." Ante, at 598.[fn7] But the Court does not seriously attempt to
analyze
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whether the term "age" is more naturally read narrowly in the context of
§ 623(a)(1). Instead, the Court jumps immediately to, and rests its
entire "common usage" analysis, ante, at 591, on, the "social history" of
the "whole phrase `discriminate . . . because of such individual's age.'"
Ante, at 596. In other words, the Court concludes that the "common usage"
of "age discrimination" refers exclusively to discrimination against the
relatively old only because the "social history" of the phrase as a whole
mandates such a reading. As I have explained here, the "social history"
of the "whole phrase `discriminate . . . because of such individual's
age,'" ibid., found in § 623(a)(1) is no different than the "social
history" of the whole phrase "discriminate . . . because of such
individual's race." 42 U.S.C. § 2000e-2(a)(1).
* * *
As the ADEA clearly prohibits discrimination because of an individual's
age, whether the individual is too old or too young, I would affirm the
Court of Appeals. Because the Court resorts to interpretive sleight of
hand to avoid addressing the plain language of the ADEA, I respectfully
dissent.
[fn1] Section 623(f)(1) provides a defense where "age is a bona fide
occupational qualification." If "age" were limited to "older age," then
§ 623(f)(1) would provide a defense only where a defense is not needed,
since under the Court's reading, discrimination against the relatively
young is always legal under the ADEA. Section 623(e) bans the "print[ing]
. . . [of] any notice or advertisement relating to . . . indicating any
preference, limitation, specification, or discrimination . . . based on
age." Again, if "age" were read to mean only "older age," an employer
could print advertisements asking only for young applicants for a new job
(where hiring or considering only young applicants is banned by the
ADEA), but could not print advertisements requesting only older
applicants (where hiring only older applicants would be legal under the
Court's reading of the ADEA).
[fn2] See ante, at 598 (citing exchange between Sens. Yarborough and
Javits).
[fn3] See ante, at 587 ("The [Wirtz] report contains no suggestion that
reactions to age level off at some point, and it was devoid of any
indication that the Secretary [of Labor] had noticed unfair advantages
accruing to older employees at the expense of their juniors"); ante, at
589 (finding from the records of congressional hearings "nothing
suggesting that any workers were registering complaints about
discrimination in favor of their seniors"); ante, at 590 (finding that,
with one exception, "all the findings and statements of objectives are
either cast in terms of the effects of age as intensifying over time, or
are couched in terms that refer to `older' workers, explicitly or
implicitly relative to `younger' ones").
[fn4] See R. Loevy, To End All Segregation: The Politics of the Passage
of the Civil Rights Act of 1964, p. 24 (1990).
[fn5] The same could likely be said, of course, of most, if not all, of
the other provisions of the Civil Rights Act of 1964.
[fn6] "[M]ale-on-male sexual harassment in the workplace was assuredly
not the principal evil Congress was concerned with when it enacted Title
VII." Oncale, 523 U.S., at 79. I wonder if there is even a single
reference in all the committee reports and congressional debates on Title
VII's prohibition of sex discrimination to any "social problem
requir[ing] a federal statute [to correct]," ante, at 591, arising out of
excessive male-on-male sexual harassment.
[fn7] The Court phrases this differently: It states that the "prohibition
of age discrimination is readily read more narrowly than analogous
provisions dealing with race and sex." Ante, at 598 (emphasis added). But
this can only be true if the Court believes that the term "age" is more
appropriately read in the narrower sense.
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