SMITH et al. v. CITY OF JACKSON, MISSISSIPPI, et al.

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228 OCTOBER TERM, 2004
Syllabus
SMITH et al. v. CITY OF JACKSON, MISSISSIPPI,
et al.
certiorari to the united states court of appeals for
the fifth circuit
No. 03–1160. Argued November 3, 2004—Decided March 30, 2005
In revising its employee pay plan, respondent City granted raises to all
police officers and police dispatchers in an attempt to bring their start-
ing salaries up to the regional average. Officers with less than five
years’ service received proportionately greater raises than those with
more seniority, and most officers over 40 had more than five years of
service. Petitioners, a group of older officers, filed suit under the Age
Discrimination in Employment Act of 1967 (ADEA), claiming, inter
alia, that they were adversely affected by the plan because of their age.
The District Court granted the City summary judgment. Affirming,
the Fifth Circuit ruled that disparate-impact claims are categorically
unavailable under the ADEA, but it assumed that the facts alleged by
petitioners would entitle them to relief under Griggs v. Duke Power Co.,
401 U. S. 424, which announced a disparate-impact theory of recovery for
cases brought under Title VII of the Civil Rights Act of 1964 (Title VII).
Held: The judgment is affirmed.
351 F. 3d 183, affirmed.
Justice Stevens delivered the opinion of the Court with respect to
Parts I, II, and IV, concluding:
1. The ADEA authorizes recovery in disparate-impact cases compara-
ble to Griggs. Except for the substitution of “age” for “race, color, reli-
gion, sex, or national origin,” the language of ADEA § 4(a)(2) and Title
VII § 703(a)(2) is identical. Unlike Title VII, however, ADEA § 4(f)(1)
significantly narrows its coverage by permitting any “otherwise prohib-
ited” action “where the differentiation is based on reasonable factors
other than age” (hereinafter RFOA provision). Pp. 232–233.
2. Petitioners have not set forth a valid disparate-impact claim. Two
textual differences between the ADEA and Title VII make clear that
the disparate-impact theory’s scope is narrower under the ADEA than
under Title VII. One is the RFOA provision. The other is the amend-
ment to Title VII in the Civil Rights Act of 1991, which modified this
Court’s Wards Cove Packing Co. v. Atonio, 490 U. S. 642, holding that
narrowly construed the scope of liability on a disparate-impact theory.
Because the relevant 1991 amendments expanded Title VII’s coverage

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229 Cite as: 544 U. S. 228 (2005)
Syllabus
but did not amend the ADEA or speak to age discrimination, Wards
Cove’s pre-1991 interpretation of Title VII’s identical language remains
applicable to the ADEA. Congress’ decision to limit the ADEA’s cover-
age by including the RFOA provision is consistent with the fact that
age, unlike Title VII’s protected classifications, not uncommonly has rel-
evance to an individual’s capacity to engage in certain types of employ-
ment. Here, petitioners have done little more than point out that the
pay plan is relatively less generous to older workers than to younger
ones. They have not, as required by Wards Cove, identified any specific
test, requirement, or practice within the pay plan that has an adverse
impact on older workers. Further, the record makes clear that the
City’s plan was based on reasonable factors other than age. The City’s
explanation for the differential between older and younger workers was
its perceived need to make junior officers’ salaries competitive with com-
parable positions in the market. Thus, the disparate impact was attrib-
utable to the City’s decision to give raises based on seniority and posi-
tion. Reliance on these factors is unquestionably reasonable given the
City’s goal. Pp. 240–243.
Justice Stevens, joined by Justice Souter, Justice Ginsburg,
and Justice Breyer, concluded in Part III that the ADEA’s text, the
RFOA provision, and Equal Employment Opportunity Commission
(EEOC) regulations all support the conclusion that a disparate-impact
theory is cognizable under the ADEA. Pp. 233–240.
Justice Scalia concluded that the reasoning in Part III of Justice
Stevens’ opinion is a basis for deferring, pursuant to Chevron U. S. A.
Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, to the
EEOC’s reasonable view that the ADEA authorizes disparate-impact
claims. Pp. 243–247.
Justice O’Connor, joined by Justice Kennedy and Justice
Thomas, concluded that the judgment should be affirmed on the ground
that disparate impact claims are not cognizable under the ADEA.
Pp. 247–268.
Stevens, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, and IV, in which Scalia,
Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect
to Part III, in which Souter, Ginsburg, and Breyer, JJ., joined.
Scalia, J., filed an opinion concurring in part and concurring in the judg-
ment, post, p. 243. O’Connor, J., filed an opinion concurring in the judg-
ment, in which Kennedy and Thomas, JJ., joined, post, p. 247. Rehn-
quist, C. J., took no part in the decision of the case.

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230 SMITH v. CITY OF JACKSON
Opinion of the Court
Thomas C. Goldstein argued the cause for petitioners.
With him on the briefs were Amy Howe, Pamela S. Karlan,
and Dennis L. Horn.
Glen D. Nager argued the cause for respondents. With
him on the brief were Michael A. Carvin, Louis K. Fisher,
Terry Wallace, and Samuel L. Begley.*
Justice Stevens announced the judgment of the Court
and delivered the opinion of the Court with respect to
Parts I, II, and IV, and an opinion with respect to Part III,
in which Justice Souter, Justice Ginsburg, and Justice
Breyer join.
Petitioners, police and public safety officers employed by
the city of Jackson, Mississippi (hereinafter City), contend
that salary increases received in 1999 violated the Age Dis-
crimination in Employment Act of 1967 (ADEA) because
they were less generous to officers over the age of 40 than
to younger officers. Their suit raises the question whether
the “disparate-impact” theory of recovery announced in
Griggs v. Duke Power Co., 401 U. S. 424 (1971), for cases
brought under Title VII of the Civil Rights Act of 1964, is
cognizable under the ADEA. Despite the age of the ADEA,
it is a question that we have not yet addressed. See Hazen
*Briefs of amici curiae urging reversal were filed for the Academy of
Florida Trial Lawyers by John G. Crabtree; for the Cornell University
Chapter of the American Association of University Professors et al. by
Michael Evan Gold; and for the National Employment Lawyers Associa-
tion et al. by Cathy Ventrell-Monsees and Adele P. Kimmel.
Briefs of amici curiae urging affirmance were filed for the California
Employment Law Council by Paul Grossman, Paul W. Cane, Jr., and Neal
D. Mollen; for the Chamber of Commerce of the United States of America
by Peter Buscemi, Anne Brafford, Mark Dichter, Stephen A. Bokat, and
Robin S. Conrad; for the Equal Employment Advisory Council by Ann
Elizabeth Reesman; for the National League of Cities et al. by Richard
Ruda and James I. Crowley; and for the Pacific Legal Foundation by John
H. Findley.
Laurie A. McCann, Daniel B. Kohrman, and Melvin Radowitz filed a
brief for AARP et al. as amici curiae.

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Opinion of the Court
Paper Co. v. Biggins, 507 U. S. 604, 610 (1993); Markham v.
Geller, 451 U. S. 945 (1981) (Rehnquist, J., dissenting from
denial of certiorari).
I
On October 1, 1998, the City adopted a pay plan granting
raises to all City employees. The stated purpose of the plan
was to “attract and retain qualified people, provide incentive
for performance, maintain competitiveness with other public
sector agencies and ensure equitable compensation to all em-
ployees regardless of age, sex, race and/or disability.” 1 On
May 1, 1999, a revision of the plan, which was motivated, at
least in part, by the City’s desire to bring the starting sala-
ries of police officers up to the regional average, granted
raises to all police officers and police dispatchers. Those
who had less than five years of tenure received proportion-
ately greater raises when compared to their former pay than
those with more seniority. Although some officers over the
age of 40 had less than five years of service, most of the older
officers had more.
Petitioners are a group of older officers who filed suit
under the ADEA claiming both that the City deliberately
discriminated against them because of their age (the
“disparate-treatment” claim) and that they were “adversely
affected” by the plan because of their age (the “disparate-
impact” claim). The District Court granted summary judg-
ment to the City on both claims. The Court of Appeals held
that the ruling on the former claim was premature because
petitioners were entitled to further discovery on the issue of
intent, but it affirmed the dismissal of the disparate-impact
claim. 351 F. 3d 183 (CA5 2003). Over one judge’s dissent,
the majority concluded that disparate-impact claims are cate-
gorically unavailable under the ADEA. Both the majority
and the dissent assumed that the facts alleged by petitioners
would entitle them to relief under the reasoning of Griggs.
1 App. 15.

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232 SMITH v. CITY OF JACKSON
Opinion of the Court
We granted the officers’ petition for certiorari, 541 U. S.
958 (2004), and now hold that the ADEA does authorize re-
covery in “disparate-impact” cases comparable to Griggs.
Because, however, we conclude that petitioners have not set
forth a valid disparate-impact claim, we affirm.
II
During the deliberations that preceded the enactment of
the Civil Rights Act of 1964, Congress considered and re-
jected proposed amendments that would have included older
workers among the classes protected from employment dis-
crimination.2 General Dynamics Land Systems, Inc. v.
Cline, 540 U. S. 581, 587 (2004). Congress did, however, re-
quest the Secretary of Labor to “make a full and complete
study of the factors which might tend to result in discrimina-
tion in employment because of age and of the consequences
of such discrimination on the economy and individuals af-
fected.” § 715, 78 Stat. 265. The Secretary’s report, sub-
mitted in response to Congress’ request, noted that there
was little discrimination arising from dislike or intolerance
of older people, but that “arbitrary” discrimination did result
from certain age limits. Report of the Secretary of Labor,
The Older American Worker: Age Discrimination in Employ-
ment 5 (June 1965), reprinted in U. S. Equal Employment
Opportunity Commission, Legislative History of the Age
Discrimination in Employment Act (1981), Doc. No. 5 (here-
inafter Wirtz Report). Moreover, the report observed that
discriminatory effects resulted from “[i]nstitutional arrange-
ments that indirectly restrict the employment of older work-
ers.” Id., at 15.
In response to that report Congress directed the Secretary
to propose remedial legislation, see Fair Labor Standards
Amendments of 1966, Pub. L. 89–601, § 606, 80 Stat. 845, and
2 See 110 Cong. Rec. 2596–2599 (1964) (amendment offered by Rep.
Dowdy, voted down 123 to 94); id., at 9911–9913, 13490–13492 (amendment
offered by Sen. Smathers, voted down 63 to 28).

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then acted favorably on his proposal. As enacted in 1967,
§ 4(a)(2) of the ADEA, now codified as 29 U. S. C. § 623(a)(2),
provided that it shall be unlawful for an employer “to limit,
segregate, or classify his employees in any way which would
deprive or tend to deprive any individual of employment op-
portunities or otherwise adversely affect his status as an em-
ployee, because of such individual’s age . . . .” 81 Stat. 603.
Except for substitution of the word “age” for the words
“race, color, religion, sex, or national origin,” the language
of that provision in the ADEA is identical to that found in
§ 703(a)(2) of the Civil Rights Act of 1964 (Title VII). Other
provisions of the ADEA also parallel the earlier statute.3
Unlike Title VII, however, § 4(f)(1) of the ADEA, 81 Stat.
603, contains language that significantly narrows its cover-
age by permitting any “otherwise prohibited” action “where
the differentiation is based on reasonable factors other than
age” (hereinafter RFOA provision).
III
In determining whether the ADEA authorizes disparate-
impact claims, we begin with the premise that when Con-
gress uses the same language in two statutes having similar
purposes, particularly when one is enacted shortly after the
other, it is appropriate to presume that Congress intended
that text to have the same meaning in both statutes. North-
cross v. Board of Ed. of Memphis City Schools, 412 U. S.
427, 428 (1973) (per curiam). We have consistently applied
3 Like Title VII with respect to all protected classes except race, the
ADEA provides an affirmative defense to liability where age is “a bona
fide occupational qualification reasonably necessary to the normal opera-
tion of the particular business . . . .” § 4(f)(1), 81 Stat. 603. Cf. Civil
Rights Act of 1964, § 703(e), 78 Stat. 256 (“Notwithstanding any other pro-
vision of this title, . . . it shall not be [unlawful to perform any of the
prohibited activities in §§ 703(a)–(d)] on the basis of his religion, sex, or
national origin in those certain instances where religion, sex, or national
origin is a bona fide occupational qualification reasonably necessary to the
normal operation of that particular business or enterprise . . . ”).

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that presumption to language in the ADEA that was “de-
rived in haec verba from Title VII.” Lorillard v. Pons, 434
U. S. 575, 584 (1978).4 Our unanimous interpretation of
§ 703(a)(2) of Title VII in Griggs is therefore a precedent of
compelling importance.
In Griggs, a case decided four years after the enactment
of the ADEA, we considered whether § 703 of Title VII pro-
hibited an employer “from requiring a high school education
or passing of a standardized general intelligence test as
a condition of employment in or transfer to jobs when
(a) neither standard is shown to be significantly related to
successful job performance, (b) both requirements operate to
disqualify Negroes at a substantially higher rate than white
applicants, and (c) the jobs in question formerly had been
filled only by white employees as part of a longstanding prac-
tice of giving preference to whites.” 401 U. S., at 425–426.
Accepting the Court of Appeals’ conclusion that the em-
ployer had adopted the diploma and test requirements with-
out any intent to discriminate, we held that good faith “does
not redeem employment procedures or testing mechanisms
that operate as ‘built-in headwinds’ for minority groups and
are unrelated to measuring job capability.” Id., at 432.
We explained that Congress had “directed the thrust of
the Act to the consequences of employment practices, not
simply the motivation.” Ibid. We relied on the fact that
history is “filled with examples of men and women who ren-
dered highly effective performance without the conventional
badges of accomplishment in terms of certificates, diplomas,
or degrees. Diplomas and tests are useful servants, but
4 Oscar Mayer & Co. v. Evans, 441 U. S. 750, 756 (1979) (interpreting
§ 14(b) of the ADEA in light of § 706(c) of Title VII); Western Air Lines,
Inc. v. Criswell, 472 U. S. 400, 416 (1985) (interpreting ADEA’s bona fide
occupational qualification exception in light of Title VII’s BFOQ excep-
tion); Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 121 (1985)
(interpreting the ADEA to apply to denial of privileges cases in a similar
manner as under Title VII).

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Congress has mandated the commonsense proposition that
they are not to become masters of reality.” Id., at 433.
And we noted that the Equal Employment Opportunity
Commission (EEOC), which had enforcement responsibility,
had issued guidelines that accorded with our view. Id., at
433–434. We thus squarely held that § 703(a)(2) of Title VII
did not require a showing of discriminatory intent.5
While our opinion in Griggs relied primarily on the pur-
poses of the Act, buttressed by the fact that the EEOC had
endorsed the same view, we have subsequently noted that
our holding represented the better reading of the statutory
text as well. See Watson v. Fort Worth Bank & Trust, 487
U. S. 977, 991 (1988). Neither § 703(a)(2) nor the comparable
language in the ADEA simply prohibits actions that “limit,
segregate, or classify” persons; rather the language prohibits
such actions that “deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee, because of such individual’s” race or age. Ibid.
(explaining that in disparate-impact cases, “the employer’s
practices may be said to ‘adversely affect [an individual’s sta-
tus] as an employee’ ” (alteration in original) (quoting 42
5 The congressional purposes on which we relied in Griggs have a strik-
ing parallel to two important points made in the Wirtz Report. Just as
the Griggs opinion ruled out discrimination based on racial animus as a
problem in that case, the Wirtz Report concluded that there was no sig-
nificant discrimination of that kind so far as older workers are concerned.
Wirtz Report 6. And just as Griggs recognized that the high school di-
ploma requirement, which was unrelated to job performance, had an unfair
impact on African-Americans who had received inferior educational oppor-
tunities in segregated schools, 401 U. S., at 430, the Wirtz Report identified
the identical obstacle to the employment of older workers. “Any formal
employment standard which requires, for example, a high school diploma
will obviously work against the employment of many older workers—un-
fairly if, despite his limited schooling, an older worker’s years of experi-
ence have given him the relevant equivalent of a high school education.”
Wirtz Report 3. Thus, just as the statutory text is identical, there is a
remarkable similarity between the congressional goals we cited in Griggs
and those present in the Wirtz Report.

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U. S. C. § 2000e–2(a)(2))). Thus the text focuses on the ef-
fects of the action on the employee rather than the motiva-
tion for the action of the employer.6
Griggs, which interpreted the identical text at issue here,
thus strongly suggests that a disparate-impact theory should
be cognizable under the ADEA.7 Indeed, for over two dec-
6 In reaching a contrary conclusion, Justice O’Connor ignores key tex-
tual differences between § 4(a)(1), which does not encompass disparate-
impact liability, and § 4(a)(2). Paragraph (a)(1) makes it unlawful for an
employer “to fail or refuse to hire . . . any individual . . . because of such
individual’s age.” (Emphasis added.) The focus of the paragraph is on
the employer’s actions with respect to the targeted individual. Para-
graph (a)(2), however, makes it unlawful for an employer “to limit . . . his
employees in any way which would deprive or tend to deprive any in-
dividual of employment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s age.” (Emphasis
added.) Unlike in paragraph (a)(1), there is thus an incongruity between
the employer’s actions—which are focused on his employees generally—
and the individual employee who adversely suffers because of those ac-
tions. Thus, an employer who classifies his employees without respect to
age may still be liable under the terms of this paragraph if such classifica-
tion adversely affects the employee because of that employee’s age—the
very definition of disparate impact. Justice O’Connor is therefore quite
wrong to suggest that the textual differences between the two paragraphs
are unimportant.
7 Justice O’Connor reaches a contrary conclusion based on the text of
the statute, the legislative history, and the structure of the statute. As
we explain above, n. 6, supra, her textual reasoning is not persuasive.
Further, while Congress may have intended to remedy disparate-impact-
type situations through “noncoercive measures” in part, there is nothing
to suggest that it intended such measures to be the sole method of achiev-
ing the desired result of remedying practices that had an adverse effect
on older workers. Finally, we agree that the differences between age and
the classes protected in Title VII are relevant, and that Congress might
well have intended to treat the two differently. See post, at 253 (O’Con-
nor, J., concurring in judgment). However, Congress obviously consid-
ered those classes of individuals to be sufficiently similar to warrant enact-
ing identical legislation, at least with respect to employment practices it
sought to prohibit. While those differences, coupled with a difference in
the text of the statute such as the RFOA provision, may warrant address-
ing disparate-impact claims in the two statutes differently, see infra, at

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ades after our decision in Griggs, the Courts of Appeals uni-
formly interpreted the ADEA as authorizing recovery on a
“disparate-impact” theory in appropriate cases.8 It was
only after our decision in Hazen Paper Co. v. Biggins, 507
U. S. 604 (1993), that some of those courts concluded that
the ADEA did not authorize a disparate-impact theory of
liability.9 Our opinion in Hazen Paper, however, did not ad-
dress or comment on the issue we decide today. In that
case, we held that an employee’s allegation that he was dis-
charged shortly before his pension would have vested did
not state a cause of action under a disparate-treatment the-
ory. The motivating factor was not, we held, the employee’s
age, but rather his years of service, a factor that the ADEA
did not prohibit an employer from considering when termi-
240–241, it does not justify departing from the plain text and our settled
interpretation of that text.
8 B. Lindemann & D. Kadue, Age Discrimination in Employment Law
416, and n. 16 (2003) (citing Holt v. Gamewell Corp., 797 F. 2d 36, 37 (CA1
1986); Maresco v. Evans Chemetics, 964 F. 2d 106, 115 (CA2 1992); Blum
v. Witco Chemical Corp., 829 F. 2d 367, 372 (CA3 1987); Wooden v. Board
of Ed. of Jefferson Cty., Ky., 931 F. 2d 376, 379 (CA6 1991); Monroe v.
United Airlines, 736 F. 2d 394, 404, n. 3 (CA7 1984); Dace v. ACF Indus-
tries, 722 F. 2d 374, 378 (CA8 1983), modified, 728 F. 2d 976 (1984) (per
curiam); Palmer v. United States, 794 F. 2d 534, 536 (CA9 1986); Faulkner
v. Super Valu Stores, Inc., 3 F. 3d 1419 (CA10 1993) (assuming disparate-
impact theory); MacPherson v. University of Montevallo, 922 F. 2d 766,
771 (CA11 1991); Arnold v. United States Postal Serv., 863 F. 2d 994, 998
(CADC 1988) (assuming disparate-impact theory)).
9 See, e. g., Mullin v. Raytheon Co., 164 F. 3d 696, 700 (CA1 1999) (“[T]ec-
tonic plates shifted when the Court decided [Hazen Paper]”); Gantt v.
Wilson Sporting Goods Co., 143 F. 3d 1042, 1048 (CA6 1998) (“[T]here is
now considerable doubt as to whether a claim of age discrimination may
exist under a disparate-impact theory” (internal quotation marks omit-
ted)). See also Lindemann & Kadue, Age Discrimination in Employment
Law, at 417–418, n. 23 (collecting cases). In contrast to the First, Seventh,
Tenth, and Eleventh Circuits, which have held that there is no disparate-
impact theory, the Second, Eighth, and Ninth Circuits continue to recog-
nize such a theory. Id., at 417, and n. 22.

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nating an employee. Id., at 612.10 While we noted that dis-
parate treatment “captures the essence of what Congress
sought to prohibit in the ADEA,” id., at 610, we were careful
to explain that we were not deciding “whether a disparate
impact theory of liability is available under the ADEA . . . ,”
ibid. In sum, there is nothing in our opinion in Hazen Paper
that precludes an interpretation of the ADEA that parallels
our holding in Griggs.
The Court of Appeals’ categorical rejection of disparate-
impact liability, like Justice O’Connor’s, rested primarily
on the RFOA provision and the majority’s analysis of legisla-
tive history. As we have already explained, we think the
history of the enactment of the ADEA, with particular refer-
ence to the Wirtz Report, supports the pre-Hazen Paper con-
sensus concerning disparate-impact liability. And Hazen
Paper itself contains the response to the concern over the
RFOA provision.
The RFOA provision provides that it shall not be unlawful
for an employer “to take any action otherwise prohibited
under subsectio[n] (a) . . . where the differentiation is based
on reasonable factors other than age [discrimination] . . . .”
81 Stat. 603. In most disparate-treatment cases, if an em-
ployer in fact acted on a factor other than age, the action
would not be prohibited under subsection (a) in the first
place. See Hazen Paper, 507 U. S., at 609 (“[T]here is no
disparate treatment under the ADEA when the factor moti-
vating the employer is some feature other than the employ-
ee’s age”). In those disparate-treatment cases, such as in
Hazen Paper itself, the RFOA provision is simply unneces-
sary to avoid liability under the ADEA, since there was no
prohibited action in the first place. The RFOA provision
is not, as Justice O’Connor suggests, a “safe harbor from
liability,” post, at 252 (emphasis deleted), since there would
10 We did note, however, that the challenged conduct was actionable
under § 510 of the Employee Retirement Income Security Act of 1974.
507 U. S., at 612.

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be no liability under § 4(a). See Texas Dept. of Commu-
nity Affairs v. Burdine, 450 U. S. 248, 254 (1981) (noting, in
a Title VII case, that an employer can defeat liability by
showing that the employee was rejected for “a legitimate,
nondiscriminatory reason” without reference to an RFOA
provision).
In disparate-impact cases, however, the allegedly “other-
wise prohibited” activity is not based on age. Ibid.
(“[C]laims that stress ‘disparate impact’ [by contrast] involve
employment practices that are facially neutral in their treat-
ment of different groups but that in fact fall more harshly
on one group than another . . . ” (quoting Teamsters v. United
States, 431 U. S. 324, 335–336, n. 15 (1977))). It is, accord-
ingly, in cases involving disparate-impact claims that the
RFOA provision plays its principal role by precluding liabil-
ity if the adverse impact was attributable to a nonage factor
that was “reasonable.” Rather than support an argument
that disparate impact is unavailable under the ADEA, the
RFOA provision actually supports the contrary conclusion.11
Finally, we note that both the Department of Labor, which
initially drafted the legislation, and the EEOC, which is the
agency charged by Congress with responsibility for imple-
menting the statute, 29 U. S. C. § 628, have consistently inter-
preted the ADEA to authorize relief on a disparate-impact
theory. The initial regulations, while not mentioning dis-
parate impact by name, nevertheless permitted such claims
if the employer relied on a factor that was not related to age.
29 CFR § 860.103(f)(1)(i) (1970) (barring physical fitness re-
quirements that were not “reasonably necessary for the spe-
11 We note that if Congress intended to prohibit all disparate-impact
claims, it certainly could have done so. For instance, in the Equal Pay
Act of 1963, 29 U. S. C. § 206(d)(1), Congress barred recovery if a pay dif-
ferential was based “on any other factor”—reasonable or unreasonable—
“other than sex.” The fact that Congress provided that employers could
use only reasonable factors in defending a suit under the ADEA is there-
fore instructive.

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cific work to be performed”). See also § 1625.7 (2004) (set-
ting forth the standards for a disparate-impact claim).
The text of the statute, as interpreted in Griggs, the
RFOA provision, and the EEOC regulations all support peti-
tioners’ view. We therefore conclude that it was error for
the Court of Appeals to hold that the disparate-impact the-
ory of liability is categorically unavailable under the ADEA.
IV
Two textual differences between the ADEA and Title VII
make it clear that even though both statutes authorize recov-
ery on a disparate-impact theory, the scope of disparate-
impact liability under ADEA is narrower than under Title
VII. The first is the RFOA provision, which we have al-
ready identified. The second is the amendment to Title VII
contained in the Civil Rights Act of 1991, 105 Stat. 1071.
One of the purposes of that amendment was to modify the
Court’s holding in Wards Cove Packing Co. v. Atonio, 490
U. S. 642 (1989), a case in which we narrowly construed the
employer’s exposure to liability on a disparate-impact theory.
See Civil Rights Act of 1991, § 2, 105 Stat. 1071. While the
relevant 1991 amendments expanded the coverage of Title
VII, they did not amend the ADEA or speak to the subject
of age discrimination. Hence, Wards Cove’s pre-1991 inter-
pretation of Title VII’s identical language remains applicable
to the ADEA.
Congress’ decision to limit the coverage of the ADEA by
including the RFOA provision is consistent with the fact that
age, unlike race or other classifications protected by Title
VII, not uncommonly has relevance to an individual’s capac-
ity to engage in certain types of employment. To be sure,
Congress recognized that this is not always the case, and
that society may perceive those differences to be larger or
more consequential than they are in fact. However, as Sec-
retary Wirtz noted in his report, “certain circumstances . . .
unquestionably affect older workers more strongly, as a

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241 Cite as: 544 U. S. 228 (2005)
Opinion of the Court
group, than they do younger workers.” Wirtz Report 11.
Thus, it is not surprising that certain employment criteria
that are routinely used may be reasonable despite their ad-
verse impact on older workers as a group. Moreover, inten-
tional discrimination on the basis of age has not occurred at
the same levels as discrimination against those protected by
Title VII. While the ADEA reflects Congress’ intent to
give older workers employment opportunities whenever pos-
sible, the RFOA provision reflects this historical difference.
Turning to the case before us, we initially note that peti-
tioners have done little more than point out that the pay plan
at issue is relatively less generous to older workers than to
younger workers. They have not identified any specific test,
requirement, or practice within the pay plan that has an ad-
verse impact on older workers. As we held in Wards Cove,
it is not enough to simply allege that there is a disparate
impact on workers, or point to a generalized policy that leads
to such an impact. Rather, the employee is “ ‘responsible
for isolating and identifying the specific employment prac-
tices that are allegedly responsible for any observed statisti-
cal disparities.’ ” 490 U. S., at 656 (quoting Watson, 487
U. S., at 994; emphasis added). Petitioners have failed to
do so. Their failure to identify the specific practice being
challenged is the sort of omission that could “result in em-
ployers being potentially liable for ‘the myriad of innocent
causes that may lead to statistical imbalances . . . .’ ” 490
U. S., at 657. In this case not only did petitioners thus err
by failing to identify the relevant practice, but it is also clear
from the record that the City’s plan was based on reasonable
factors other than age.
The plan divided each of five basic positions—police officer,
master police officer, police sergeant, police lieutenant, and
deputy police chief—into a series of steps and half-steps.
The wage for each range was based on a survey of compara-
ble communities in the Southeast. Employees were then as-
signed a step (or half-step) within their position that corres-

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242 SMITH v. CITY OF JACKSON
Opinion of the Court
ponded to the lowest step that would still give the individual
a 2% raise. Most of the officers were in the three lowest
ranks; in each of those ranks there were officers under age
40 and officers over 40. In none did their age affect their
compensation. The few officers in the two highest ranks are
all over 40. Their raises, though higher in dollar amount
than the raises given to junior officers, represented a smaller
percentage of their salaries, which of course are higher than
the salaries paid to their juniors. They are members of the
class complaining of the “disparate impact” of the award.
Petitioners’ evidence established two principal facts: First,
almost two-thirds (66.2%) of the officers under 40 received
raises of more than 10% while less than half (45.3%) of those
over 40 did.12 Second, the average percentage increase for
the entire class of officers with less than five years of tenure
was somewhat higher than the percentage for those with
more seniority.13 Because older officers tended to occupy
more senior positions, on average they received smaller in-
creases when measured as a percentage of their salary. The
basic explanation for the differential was the City’s perceived
need to raise the salaries of junior officers to make them
competitive with comparable positions in the market.
Thus, the disparate impact is attributable to the City’s de-
cision to give raises based on seniority and position. Reli-
ance on seniority and rank is unquestionably reasonable
given the City’s goal of raising employees’ salaries to match
those in surrounding communities. In sum, we hold that the
City’s decision to grant a larger raise to lower echelon em-
ployees for the purpose of bringing salaries in line with that
of surrounding police forces was a decision based on a “rea-
sonable facto[r] other than age” that responded to the City’s
legitimate goal of retaining police officers. Cf. MacPherson
v. University of Montevallo, 922 F. 2d 766, 772 (CA11 1991).
12 Exh. C, Record 1192.
13 App. to Pet. for Cert. 41a.

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243 Cite as: 544 U. S. 228 (2005)
Opinion of Scalia, J.
While there may have been other reasonable ways for the
City to achieve its goals, the one selected was not unrea-
sonable. 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 pro-
tected class, the reasonableness inquiry includes no such
requirement.
Accordingly, while we do not agree with the Court of Ap-
peals’ holding that the disparate-impact theory of recovery
is never available under the ADEA, we affirm its judgment.
It is so ordered.
The Chief Justice took no part in the decision of this
case.
Justice Scalia, concurring in part and concurring in the
judgment.
I concur in the judgment of the Court, and join all except
Part III of its opinion. As to that Part, I agree with all
of the Court’s reasoning, but would find it a basis, not for
independent determination of the disparate-impact question,
but for deferral to the reasonable views of the Equal Em-
ployment Opportunity Commission (EEOC or Commission)
pursuant to Chevron U. S. A. Inc. v. Natural Resources De-
fense Council, Inc., 467 U. S. 837 (1984). See General Dy-
namics Land Systems, Inc. v. Cline, 540 U. S. 581, 601–602
(2004) (Scalia, J., dissenting).
This is an absolutely classic case for deference to agency
interpretation. The Age Discrimination in Employment
Act of 1967 (ADEA), 29 U. S. C. § 621 et seq., confers upon
the EEOC authority to issue “such rules and regulations as
it may consider necessary or appropriate for carrying out”
the ADEA. § 628. Pursuant to this authority, the EEOC
promulgated, after notice-and-comment rulemaking, see 46
Fed. Reg. 47724, 47727 (1981), a regulation that reads as
follows:

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244 SMITH v. CITY OF JACKSON
Opinion of Scalia, J.
“When an employment practice, including a test, is
claimed as a basis for different treatment of employees
or applicants for employment on the grounds that it is a
‘factor other than’ age, and such a practice has an ad-
verse impact on individuals within the protected age
group, it can only be justified as a business necessity.”
29 CFR § 1625.7(d) (2004).
The statement of the EEOC which accompanied publication
of the agency’s final interpretation of the ADEA said the
following regarding this regulation: “Paragraph (d) of
§ 1625.7 has been rewritten to make it clear that employment
criteria that are age-neutral on their face but which never-
theless have a disparate impact on members of the protected
age group must be justified as a business necessity. See
Laugesen v. Anaconda Corp., 510 F. 2d 307 (6th Cir. 1975);
Griggs v. Duke Power Co., 401 U. S. 424 (1971).” 46 Fed.
Reg., at 47725. The regulation affirmed, moreover, what
had been the longstanding position of the Department of
Labor, the agency that previously administered the ADEA,
see ante, at 239; 29 CFR § 860.103(f)(1)(i) (1970). And fi-
nally, the Commission has appeared in numerous cases in the
lower courts, both as a party and as amicus curiae, to defend
the position that the ADEA authorizes disparate-impact
claims.1 Even under the unduly constrained standards of
agency deference recited in United States v. Mead Corp., 533
1 See, e. g., Brief for EEOC as Amicus Curiae Supporting Plaintiffs-
Appellees in Meacham v. Knolls Atomic Power Lab., No. 02–4083(L) etc.
(CA2), p. 12, available at http://www.eeoc.gov/ briefs/meacha.txt (all In-
ternet materials as visited Mar. 24, 2005, and available in Clerk of Court’s
case file) (“The Commission has consistently defended [the interpretation
announced in 29 CFR § 1625.7(d) (2004)], arguing that a claim of discrimi-
nation under a disparate impact theory is cognizable”); Brief for EEOC
as Amicus Curiae Supporting Plaintiffs-Appellants Seeking Reversal in
Sitko v. Goodyear Tire & Rubber Co., No. 02–4083 (CA6), p. 8, available
at http://www.eeoc.gov/ briefs/sitkov.txt (pending); EEOC v. McDonnell
Douglas Corp., 191 F. 3d 948, 950–951 (CA8 1999).

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U. S. 218 (2001), the EEOC’s reasonable view that the ADEA
authorizes disparate-impact claims is deserving of deference.
Id., at 229–231, and n. 12. A fortiori, it is entitled to defer-
ence under the pre-Mead formulation of Chevron, to which I
continue to adhere. See 533 U. S., at 256–257 (Scalia, J.,
dissenting).
Justice O’Connor both denies that the EEOC has taken
a position on the existence of disparate-impact claims and
asserts that, even if it has, its position does not deserve def-
erence. See post, at 264–267 (opinion concurring in judg-
ment). The first claim cannot be squared with the text of
the EEOC’s regulation, quoted above. This cannot possibly
be read as agnostic on the question whether the ADEA pro-
hibits employer practices that have a disparate impact on the
aged. It provides that such practices “can only be justified
as a business necessity,” compelling the conclusion that, ab-
sent a “business necessity,” such practices are prohibited.2
Justice O’Connor would not defer to the EEOC regula-
tion, even if it read as it does, because, she says, the regula-
tion “does not purport to interpret the language of § 4(a) at
all,” but is rather limited to an interpretation of the “reason-
able factors other than age” (RFOA) clause of § 4(f)(1) of the
ADEA, which she says is not at issue. Post, at 265. This
argument assumes, however, that the RFOA clause operates
independently of the remainder of the ADEA. It does not.
Section 4(f)(1) provides, in relevant part:
2 Perhaps Justice O’Connor adopts the narrower position that, while
the EEOC has taken the view that the ADEA prohibits actions that have
a disparate impact, it has stopped short of recognizing “disparate impact
claims.” Post, at 265 (opinion concurring in judgment) (emphasis added).
If so, this position is equally misguided. The EEOC need not take the
extra step of recognizing that individuals harmed by prohibited actions
have a right to sue; the ADEA itself makes that automatic. 29 U. S. C.
§ 626(c)(1) (“Any person aggrieved may bring a civil action in any court of
competent jurisdiction for such legal or equitable relief as will effectuate
the purposes of this chapter . . . ”).

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“It shall not be unlawful for an employer, employment
agency, or labor organization . . . to take any action oth-
erwise prohibited under subsections (a), (b), (c), or (e) of
this section . . . where the differentiation is based on
reasonable factors other than age . . . .” 29 U. S. C.
§ 623(f)(1) (emphasis added).
As this text makes clear, the RFOA defense is relevant only
as a response to employer actions “otherwise prohibited” by
the ADEA. Hence, the unavoidable meaning of the regula-
tion at issue is that the ADEA prohibits employer actions
that have an “adverse impact on individuals within the pro-
tected age group.” 29 CFR § 1625.7(d) (2004). And, of
course, the only provision of the ADEA that could conceiv-
ably be interpreted to effect such a prohibition is § 4(a)(2)—
the provision that Justice O’Connor maintains the EEOC
“does not purport to interpret . . . at all.” Post, at 265.3
3 Justice O’Connor argues that the regulation does not necessarily
construe § 4(a)(2) to prohibit disparate impact, because disparate treat-
ment also can have the effect which the regulation addresses—viz., “an
adverse impact on individuals within the protected age group,” 29 CFR
§ 1625.7(d) (2004). See post, at 265–266. That is true enough. But the
question here is not whether disparate-treatment claims (when they have
a disparate impact) are also covered by the regulation; it is whether
disparate-impact claims of all sorts are covered; and there is no way to
avoid the conclusion (consistently reaffirmed by the agency’s actions over
the years) that they are. That is also a complete response to Justice
O’Connor’s point that the regulation could not refer to § 4(a)(2) because
it includes “applicants for employment,” who are protected only under
§ 4(a)(1). Perhaps applicants for employment are covered only when (as
Justice O’Connor posits) disparate treatment results in disparate im-
pact; or perhaps the agency’s attempt to sweep employment applications
into the disparate-impact prohibition is mistaken. But whatever in addi-
tion it may cover, or may erroneously seek to cover, it is impossible to
contend that the regulation does not cover actions that “limit, segregate,
or classify” employees in a way that produces a disparate impact on those
within the protected age group; and the only basis for its interpretation
that those actions are prohibited is § 4(a)(2).

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O’Connor, J., concurring in judgment
Lastly, Justice O’Connor argues that the EEOC’s inter-
pretation of what is “otherwise prohibited” by the ADEA is
not entitled to deference because the Court concludes that
the same regulation’s interpretation of another term—the
term “reasonable factors other than age,” which the regula-
tion takes to include only “business necessity”—is unreason-
able. Post, at 266. Her logic seems to be that, because the
two interpretations appear in the same paragraph, they
should stand or fall together. She cites no case for this
proposition, and it makes little sense. If the two simultane-
ously adopted interpretations were contained in distinct
paragraphs, the invalidation of one would not, of course, ren-
der the other infirm. (Justice O’Connor does not mean to
imply, I assume, that our rejection of the EEOC’s application
of the phrase “ ‘reasonable factors other than age’ ” to
disparate-impact claims in paragraph (d) of § 1625.7 relieves
the lower courts of the obligation to defer to the EEOC’s
other applications of the same phrase in paragraph (c) or (e).)
I can conceive no basis for a different rule simply because
the two simultaneously adopted interpretations appear in
the same paragraph.
The EEOC has express authority to promulgate rules and
regulations interpreting the ADEA. It has exercised that
authority to recognize disparate-impact claims. And, for
the reasons given by the plurality opinion, its position is emi-
nently reasonable. In my view, that is sufficient to resolve
this case.
Justice O’Connor, with whom Justice Kennedy and
Justice Thomas join, concurring in the judgment.
“Disparate treatment . . . captures the essence of what
Congress sought to prohibit in the [Age Discrimination in
Employment Act of 1967 (ADEA), 29 U. S. C. § 621 et seq.]
It is the very essence of age discrimination for an older em-
ployee to be fired because the employer believes that produc-
tivity and competence decline with old age.” Hazen Paper

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248 SMITH v. CITY OF JACKSON
O’Connor, J., concurring in judgment
Co. v. Biggins, 507 U. S. 604, 610 (1993). In the nearly four
decades since the ADEA’s enactment, however, we have
never read the statute to impose liability upon an employer
without proof of discriminatory intent. See ibid.; Markham
v. Geller, 451 U. S. 945 (1981) (Rehnquist, J., dissenting from
denial of certiorari). I decline to join the Court in doing
so today.
I would instead affirm the judgment below on the ground
that disparate impact claims are not cognizable under the
ADEA. The ADEA’s text, legislative history, and purposes
together make clear that Congress did not intend the statute
to authorize such claims. Moreover, the significant differ-
ences between the ADEA and Title VII of the Civil Rights
Act of 1964 counsel against transposing to the former our
construction of the latter in Griggs v. Duke Power Co., 401
U. S. 424 (1971). Finally, the agencies charged with admin-
istering the ADEA have never authoritatively construed the
statute’s prohibitory language to impose disparate impact li-
ability. Thus, on the precise question of statutory interpre-
tation now before us, there is no reasoned agency reading of
the text to which we might defer.
I
A
Our starting point is the statute’s text. Section 4(a) of
the ADEA makes it unlawful for an employer:
“(1) to fail or refuse to hire or to discharge any indi-
vidual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s
age; [or]
“(2) to limit, segregate, or classify his employees in
any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise ad-
versely affect his status as an employee, because of such
individual’s age . . . .” 29 U. S. C. § 623(a).

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Neither petitioners nor the plurality contend that the first
paragraph, § 4(a)(1), authorizes disparate impact claims, and
I think it obvious that it does not. That provision plainly
requires discriminatory intent, for to take an action against
an individual “because of such individual’s age” is to do so
“by reason of ” or “on account of ” her age. See Webster’s
Third New International Dictionary 194 (1961); see also
Teamsters v. United States, 431 U. S. 324, 335–336, n. 15
(1977) (“ ‘Disparate treatment’ . . . is the most easily under-
stood type of discrimination. The employer simply treats
some people less favorably than others because of their [pro-
tected characteristic]. Proof of discriminatory motive is
critical” (emphasis added)).
Petitioners look instead to the second paragraph, § 4(a)(2),
as the basis for their disparate impact claim. But petition-
ers’ argument founders on the plain language of the statute,
the natural reading of which requires proof of discriminatory
intent. Section 4(a)(2) uses the phrase “because of . . . age”
in precisely the same manner as does the preceding para-
graph—to make plain that an employer is liable only if its
adverse action against an individual is motivated by the
individual’s age.
Paragraphs (a)(1) and (a)(2) do differ in one informa-
tive respect. The employer actions targeted by paragraph
(a)(1)—i. e., refusing to hire, discharging, or discriminating
against—are inherently harmful to the targeted individual.
The actions referred to in paragraph (a)(2), on the other
hand—i. e., limiting, segregating, or classifying—are facially
neutral. Accordingly, paragraph (a)(2) includes additional
language which clarifies that, to give rise to liability, the em-
ployer’s action must actually injure someone: The decision to
limit, segregate, or classify employees must “deprive or tend
to deprive [an] individual of employment opportunities or
otherwise adversely affect his status as an employee.” That
distinction aside, the structures of paragraphs (a)(1) and
(a)(2) are otherwise identical. Each paragraph prohibits an

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250 SMITH v. CITY OF JACKSON
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employer from taking specified adverse actions against an
individual “because of such individual’s age.”
The plurality instead reads paragraph (a)(2) to prohibit
employer actions that “adversely affect [an individual’s] sta-
tus as an employe[e] because of such individual’s age.”
Under this reading, “because of . . . age” refers to the cause
of the adverse effect rather than the motive for the employ-
er’s action. See ante, at 235–236. This reading is unper-
suasive for two reasons. First, it ignores the obvious paral-
lel between paragraphs (a)(1) and (a)(2) by giving the phrase
“because of such individual’s age” a different meaning in each
of the two paragraphs. And second, it ignores the drafters’
use of a comma separating the “because of . . . age” clause
from the preceding language. That comma makes plain that
the “because of . . . age” clause should not be read, as the
plurality would have it, to modify only the “adversely affect”
phrase. See, e. g., United States v. Ron Pair Enterprises,
Inc., 489 U. S. 235, 241 (1989) (interpreting statute in light
of the drafters’ use of a comma to set aside a particular
phrase from the following language); see also B. Garner, A
Dictionary of Modern Legal Usage 101 (2d ed. 1995) (“Gener-
ally, the word because should not follow a comma”). Rather,
the “because of . . . age” clause is set aside to make clear
that it modifies the entirety of the preceding paragraph: An
employer may not, because of an individual’s age, limit, seg-
regate, or classify his employees in a way that harms that
individual.
The plurality also argues that its reading is supported by
the supposed “incongruity” between paragraph (a)(2)’s use
of the plural in referring to the employer’s actions (“limit,
segregate, or classify his employees”) and its use of the
singular in the “because of such individual’s age” clause.
(Emphases added.) Ante, at 236, n. 6. Not so. For the
reasons just stated, the “because of . . . age” clause modifies
all of the preceding language of paragraph (a)(2). That pre-
ceding language is phrased in both the plural (insofar as it

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251 Cite as: 544 U. S. 228 (2005)
O’Connor, J., concurring in judgment
refers to the employer’s actions relating to employees) and
the singular (insofar as it requires that such action actually
harm an individual). The use of the singular in the “be-
cause of . . . age” clause simply makes clear that paragraph
(a)(2) forbids an employer to limit, segregate, or classify his
employees if that decision is taken because of even one em-
ployee’s age and that individual (alone or together with oth-
ers) is harmed.
B
While § 4(a)(2) of the ADEA makes it unlawful to inten-
tionally discriminate because of age, § 4(f)(1) clarifies that
“[i]t shall not be unlawful for an employer . . . to take any
action otherwise prohibited under subsections (a), (b), (c), or
(e) of this section . . . where the differentiation is based
on reasonable factors other than age . . . .” 29 U. S. C.
§ 623(f )(1). This “reasonable factors other than age”
(RFOA) provision “insure[s] that employers [are] permitted
to use neutral criteria” other than age, EEOC v. Wyoming,
460 U. S. 226, 232–233 (1983), even if this results in a dispar-
ate adverse impact on older workers. The provision there-
fore expresses Congress’ clear intention that employers not
be subject to liability absent proof of intentional age-based
discrimination. That policy, in my view, cannot easily be
reconciled with the plurality’s expansive reading of § 4(a)(2).
The plurality, however, reasons that the RFOA provision’s
language instead confirms that § 4(a) authorizes disparate im-
pact claims. If § 4(a) prohibited only intentional discrimina-
tion, the argument goes, then the RFOA provision would
have no effect because any action based on a factor other
than age would not be “ ‘otherwise prohibited’ ” under § 4(a).
See ante, at 238–239. Moreover, the plurality says, the
RFOA provision applies only to employer actions based on
reasonable factors other than age—so employers may still be
held liable for actions based on unreasonable nonage factors.
See ante, at 239.

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This argument misconstrues the purpose and effect of the
RFOA provision. Discriminatory intent is required under
§ 4(a), for the reasons discussed above. The role of the
RFOA provision is to afford employers an independent safe
harbor from liability. It provides that, where a plaintiff has
made out a prima facie case of intentional age discrimina-
tion under § 4(a)—thus “creat[ing] a presumption that the
employer unlawfully discriminated against the employee,”
Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248,
254 (1981)—the employer can rebut this case by producing
evidence that its action was based on a reasonable nonage
factor. Thus, the RFOA provision codifies a safe harbor
analogous to the “legitimate, nondiscriminatory reason”
(LNR) justification later recognized in Title VII suits.
Ibid.; McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802
(1973).
Assuming the McDonnell Douglas framework applies to
ADEA suits, see O’Connor v. Consolidated Coin Caterers
Corp., 517 U. S. 308, 311 (1996), this “rebuttal” function of the
RFOA provision is arguably redundant with the judicially
established LNR justification. See ante, at 238–239. But,
at most, that merely demonstrates Congress’ abundance of
caution in codifying an express statutory exemption from
liability in the absence of discriminatory intent. See Fort
Stewart Schools v. FLRA, 495 U. S. 641, 646 (1990) (provi-
sions that, although “technically unnecessary,” are some-
times “inserted out of an abundance of caution—a drafting
imprecision venerable enough to have left its mark on legal
Latin (ex abundanti cautela)”). It is noteworthy that even
after McDonnell Douglas was decided, lower courts contin-
ued to rely on the RFOA exemption, in lieu of the LNR
justification, as the basis for rebutting a prima facie case of
age discrimination. See, e. g., Krieg v. Paul Revere Life Ins.
Co., 718 F. 2d 998, 999 (CA11 1983) (per curiam); Schwager
v. Sun Oil Co. of Pa., 591 F. 2d 58, 61 (CA10 1979); Bittar v.
Air Canada, 512 F. 2d 582, 582–583 (CA5 1975) (per curiam).

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O’Connor, J., concurring in judgment
In any event, the RFOA provision also plays a distinct
(and clearly nonredundant) role in “mixed-motive” cases. In
such cases, an adverse action taken in substantial part be-
cause of an employee’s age may be “otherwise prohibited” by
§ 4(a). See Desert Palace, Inc. v. Costa, 539 U. S. 90, 93
(2003); Price Waterhouse v. Hopkins, 490 U. S. 228, 262–266
(1989) (O’Connor, J., concurring in judgment). The RFOA
exemption makes clear that such conduct is nevertheless
lawful so long as it is “based on” a reasonable factor other
than age.
Finally, the RFOA provision’s reference to “reasonable”
factors serves only to prevent the employer from gaining the
benefit of the statutory safe harbor by offering an irrational
justification. Reliance on an unreasonable nonage factor
would indicate that the employer’s explanation is, in fact,
no more than a pretext for intentional discrimination. See
Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133,
147 (2000); see also Hazen Paper, 507 U. S., at 613–614.
II
The legislative history of the ADEA confirms what its text
plainly indicates—that Congress never intended the statute
to authorize disparate impact claims. The drafters of the
ADEA and the Congress that enacted it understood that age
discrimination was qualitatively different from the kinds of
discrimination addressed by Title VII, and that many legiti-
mate employment practices would have a disparate impact
on older workers. Accordingly, Congress determined that
the disparate impact problem would best be addressed
through noncoercive measures, and that the ADEA’s prohibi-
tory provisions should be reserved for combating intentional
age-based discrimination.
A
Although Congress rejected proposals to address age dis-
crimination in the Civil Rights Act of 1964, § 715 of that Act
directed the Secretary of Labor to undertake a study of age

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discrimination in employment and to submit to Congress a
report containing “such recommendations for legislation to
prevent arbitrary discrimination in employment because of
age as he determines advisable,” 78 Stat. 265. See General
Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 586–
587 (2004); EEOC v. Wyoming, 460 U. S., at 229. In re-
sponse, Secretary Willard Wirtz submitted the report that
provided the blueprint for the ADEA. See Report of the
Secretary of Labor, The Older American Worker: Age Dis-
crimination in Employment (June 1965), reprinted in U. S.
Equal Employment Opportunity Commission, Legislative
History of the Age Discrimination in Employment Act
(1981), Doc. No. 5 (hereinafter Wirtz Report or Report).
Because the ADEA was modeled on the Wirtz Report’s find-
ings and recommendations, the Report provides critical in-
sights into the statute’s meaning. See generally Blumrosen,
Interpreting the ADEA: Intent or Impact 14–20, in Age Dis-
crimination in Employment Act: A Compliance and Litiga-
tion Manual for Lawyers and Personnel Practitioners 83–89
(M. Lake ed. 1982); see also General Dynamics, supra, at
587–590 (relying on the Wirtz Report to interpret the
ADEA); EEOC v. Wyoming, supra, at 230–231 (discussing
the Report’s role in the drafting of the ADEA).
The Wirtz Report reached two conclusions of central rele-
vance to the question presented by this case. First, the Re-
port emphasized that age discrimination is qualitatively dif-
ferent from the types of discrimination prohibited by Title
VII of the Civil Rights Act of 1964 (i. e., race, color, reli-
gion, sex, and national origin discrimination). Most impor-
tantly—in stark contrast to the types of discrimination ad-
dressed by Title VII—the Report found no evidence that age
discrimination resulted from intolerance or animus toward
older workers. Rather, age discrimination was based pri-
marily upon unfounded assumptions about the relationship
between an individual’s age and her ability to perform a job.
Wirtz Report 2. In addition, whereas ability is nearly al-

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ways completely unrelated to the characteristics protected
by Title VII, the Report found that, in some cases, “there is
in fact a relationship between [an individual’s] age and his
ability to perform the job.” Ibid. (emphasis deleted).
Second, the Wirtz Report drew a sharp distinction be-
tween “ ‘arbitrary discrimination’ ” (which the Report clearly
equates with disparate treatment) and circumstances or
practices having a disparate impact on older workers. See
id., at 2, 21–22. The Report defined “arbitrary” discrimina-
tion as adverse treatment of older workers “because of as-
sumptions about the effect of age on their ability to do a job
when there is in fact no basis for these assumptions.” Id.,
at 2 (emphasis in original). While the “most obvious kind”
of arbitrary discrimination is the setting of unjustified maxi-
mum age limits for employment, id., at 6, naturally the Re-
port’s definition encompasses a broad range of disparate
treatment.
The Report distinguished such “arbitrary” (i. e., inten-
tional and unfounded) discrimination from two other phe-
nomena. One involves differentiation of employees based on
a genuine relationship between age and ability to perform a
job. See id., at 2. In this connection, the Report examined
“circumstances which unquestionably affect older workers
more strongly, as a group, than they do younger workers,”
including questions of health, educational attainment, and
technological change. Id., at 11–14. 1 In addition, the Re-
1 It is in this connection that the Report refers to formal employment
standards requiring a high school diploma. See Wirtz Report 3. The
Wirtz Report did say that such a requirement would be “unfair” if an
older worker’s years of experience had given him an equivalent education.
Ibid. But the plurality is mistaken to find in this statement a congres-
sional “goal” of eliminating job requirements with a disparate impact on
older workers. See ante, at 235, n. 5. Rather, the Wirtz Report dis-
cussed the diploma requirement in the context of a broader discussion of
the effects of “wholly impersonal forces—most of them part of what is
properly, if sometimes too casually, called ‘progress.’ ” Wirtz Report 3.
These forces included “the pace of changing technology, changing jobs,

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port assessed “institutional arrangements”—such as senior-
ity rules, workers’ compensation laws, and pension plans—
which, though intended to benefit older workers, might actu-
ally make employers less likely to hire or retain them. Id.,
at 2, 15–17.
The Report specifically recommended legislative action to
prohibit “arbitrary discrimination,” i. e., disparate treat-
ment. Id., at 21–22. In sharp contrast, it recommended
that the other two types of “discrimination”—both involving
factors or practices having a disparate impact on older work-
ers—be addressed through noncoercive measures: programs
to increase the availability of employment; continuing educa-
tion; and adjustment of pension systems, workers’ compensa-
tion, and other institutional arrangements. Id., at 22–25.
These recommendations found direct expression in the
ADEA, which was drafted at Congress’ command that the
Secretary of Labor make “specific legislative recommenda-
tions for implementing the [Wirtz Report’s] conclusions,”
Fair Labor Standards Amendments of 1966, § 606, 80 Stat.
845. See also General Dynamics, supra, at 589 (“[T]he
ADEA . . . begins with statements of purpose and findings
that mirror the Wirtz Report”).
B
The ADEA’s structure confirms Congress’ determination
to prohibit only “arbitrary” discrimination (i. e., disparate
treatment based on unfounded assumptions), while address-
ing practices with a disparate adverse impact on older work-
changing educational requirements, and changing personnel practices,”
which “increase[d] the need for special efforts if older workers’ employ-
ment prospects are to improve significantly.” Ibid. (emphasis added); see
also id., at 11–15 (discussing the educational attainments of older workers,
together with health and technological change, in a section entitled “The
Necessary Recognition of Forces of Circumstance”). The Report recom-
mended that such forces be addressed through noncoercive instead of pro-
hibitory measures, and it specifically focused on the need for educational
opportunities for older workers. See id., at 23–25.

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ers through noncoercive measures. Section 2—which sets
forth the findings and purposes of the statute—draws a clear
distinction between “the setting of arbitrary age limits re-
gardless of potential for job performance” and “certain oth-
erwise desirable practices [that] may work to the disadvan-
tage of older persons.” 29 U. S. C. § 621(a)(2). In response
to these problems, § 2 identifies three purposes of the ADEA:
“[1] to promote employment of older persons based on their
ability rather than age; [2] to prohibit arbitrary age discrimi-
nation in employment; [and 3] to help employers and workers
find ways of meeting problems arising from the impact of
age on employment.” § 621(b).
Each of these three purposes corresponds to one of the
three substantive statutory sections that follow. Section 3
seeks to “promote employment of older persons” by directing
the Secretary of Labor to undertake a program of research
and education related to “the needs and abilities of older
workers, and their potentials for continued employment and
contribution to the economy.” § 622(a). Section 4, which
contains the ADEA’s core prohibitions, corresponds to the
second purpose: to “prohibit arbitrary age discrimination in
employment.” Finally, § 5 addresses the third statutory
purpose by requiring the Secretary of Labor to undertake a
study of “institutional and other arrangements giving rise to
involuntary retirement” and to submit any resulting findings
and legislative recommendations to Congress. § 624(a)(1).
Section 4—including § 4(a)(2)—must be read in light of the
express statutory purpose the provision was intended to
effect: the prohibition of “arbitrary age discrimination in
employment.” § 621(b). As the legislative history makes
plain, “arbitrary” age discrimination had a very specific
meaning for the ADEA’s drafters. It meant disparate treat-
ment of older workers, predominantly because of unfounded
assumptions about the relationship between age and ability.
See supra, at 255–256. Again, such intentional discrimina-
tion was clearly distinguished from circumstances and prac-

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tices merely having a disparate impact on older workers,
which—as ADEA §§ 2, 3, and 5 make clear—Congress in-
tended to address through research, education, and possible
future legislative action.
C
In addition to this affirmative evidence of congressional
intent, I find it telling that the legislative history is devoid
of any discussion of disparate impact claims or of the compli-
cated issues such claims raise in the ADEA context. See
Gold, Disparate Impact Under the Age Discrimination in
Employment Act of 1967, 25 Berkeley J. Emp. & Lab. L. 1,
40 (2004). At the time the ADEA was enacted, the predomi-
nant focus of antidiscrimination law was on intentional dis-
crimination; the concept of disparate impact liability, by con-
trast, was quite novel. See, e. g., Gold, Griggs’ Folly: An
Essay on the Theory, Problems, and Origin of the Adverse
Impact Definition of Employment Discrimination and a Rec-
ommendation for Reform, 7 Indus. Rel. L. J. 429, 518–520
(1985); Blumrosen, Strangers in Paradise: Griggs v. Duke
Power Co. and the Concept of Employment Discrimination,
71 Mich. L. Rev. 59, 69–71 (1972–1973). Had Congress in-
tended to inaugurate disparate impact liability in the ADEA,
one would expect to find some indication of that intent in the
text and the legislative history. There is none.
D
Congress’ decision not to authorize disparate impact
claims is understandable in light of the questionable utility
of such claims in the age-discrimination context. No one
would argue that older workers have suffered disadvantages
as a result of entrenched historical patterns of discrimina-
tion, like racial minorities have. See Massachusetts Bd. of
Retirement v. Murgia, 427 U. S. 307, 313–314 (1976) (per cu-
riam); see also Wirtz Report 5–6. Accordingly, disparate
impact liability under the ADEA cannot be justified, and is
not necessary, as a means of redressing the cumulative re-

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sults of past discrimination. Cf. Griggs, 401 U. S., at 430
(reasoning that disparate impact liability is necessary under
Title VII to prevent perpetuation of the results of past ra-
cial discrimination).
Moreover, the Wirtz Report correctly concluded that—un-
like the classifications protected by Title VII—there often is
a correlation between an individual’s age and her ability to
perform a job. Wirtz Report 2, 11–15. That is to be ex-
pected, for “physical ability generally declines with age,”
Murgia, supra, at 315, and in some cases, so does mental
capacity, see Gregory v. Ashcroft, 501 U. S. 452, 472 (1991).
Perhaps more importantly, advances in technology and in-
creasing access to formal education often leave older work-
ers at a competitive disadvantage vis-a` -vis younger workers.
Wirtz Report 11–15. Beyond these performance-affecting
factors, there is also the fact that many employment benefits,
such as salary, vacation time, and so forth, increase as an
employee gains experience and seniority. See, e. g., Fin-
negan v. Trans World Airlines, Inc., 967 F. 2d 1161, 1164
(CA7 1992) (“[V]irtually all elements of a standard compen-
sation package are positively correlated with age”). Accord-
ingly, many employer decisions that are intended to cut costs
or respond to market forces will likely have a disproportion-
ate effect on older workers. Given the myriad ways in
which legitimate business practices can have a disparate im-
pact on older workers, it is hardly surprising that Congress
declined to subject employers to civil liability based solely
on such effects.
III
The plurality and Justice Scalia offer two principal ar-
guments in favor of their reading of the statute: that the
relevant provision of the ADEA should be read in pari mate-
ria with the parallel provision of Title VII, and that we
should give interpretive weight or deference to agency state-
ments relating to disparate impact liability. I find neither
argument persuasive.

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A
The language of the ADEA’s prohibitory provisions was
modeled on, and is nearly identical to, parallel provisions in
Title VII. See McKennon v. Nashville Banner Publishing
Co., 513 U. S. 352, 357 (1995); Lorillard v. Pons, 434 U. S.
575, 584 (1978). Because Griggs, supra, held that Title VII’s
§ 703(a)(2) permits disparate impact claims, the plurality con-
cludes that we should read § 4(a)(2) of the ADEA similarly.
Ante, at 233–238.
Obviously, this argument would be a great deal more con-
vincing had Griggs been decided before the ADEA was
enacted. In that case, we could safely assume that Congress
had notice (and therefore intended) that the language at
issue here would be read to authorize disparate impact
claims. See, e. g., Department of Energy v. Ohio, 503 U. S.
607, 626 (1992); Holmes v. Securities Investor Protection
Corporation, 503 U. S. 258, 268 (1992). But Griggs was de-
cided four years after the ADEA’s enactment, and there is
no reason to suppose that Congress in 1967 could have fore-
seen the interpretation of Title VII that was to come. See
Fogerty v. Fantasy, Inc., 510 U. S. 517, 523, n. 9 (1994); see
also supra, at 258 (discussing novelty of disparate impact
theory at the time of the ADEA’s enactment).
To be sure, where two statutes use similar language we
generally take this as “a strong indication that [they] should
be interpreted pari passu.” Northcross v. Board of Ed. of
Memphis City Schools, 412 U. S. 427, 428 (1973) (per cu-
riam). But this is not a rigid or absolute rule, and it
“ ‘readily yields’ ” to other indicia of congressional intent.
General Dynamics, 540 U. S., at 595 (quoting Atlantic
Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433
(1932)). Indeed, “ ‘the meaning [of the same words] well
may vary to meet the purposes of the law.’ ” United States
v. Cleveland Indians Baseball Co., 532 U. S. 200, 213 (2001)
(quoting Atlantic Cleaners & Dyers, supra, at 433; altera-
tion in original). Accordingly, we have not hesitated to give

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a different reading to the same language—whether appear-
ing in separate statutes or in separate provisions of the same
statute—if there is strong evidence that Congress did not
intend the language to be used uniformly. See, e. g., General
Dynamics, supra, at 595–597 (“age” has different meaning
where used in different parts of the ADEA); Cleveland Indi-
ans, supra, at 213 (“wages paid” has different meanings in
different provisions of Title 26 U. S. C.); Robinson v. Shell
Oil Co., 519 U. S. 337, 343–344 (1997) (“employee” has differ-
ent meanings in different parts of Title VII); Fogerty, supra,
at 522–525 (Copyright Act’s attorney’s fees provision has dif-
ferent meaning than the analogous provision in Title VII,
despite their “virtually identical language”). Such is the
case here.
First, there are significant textual differences between
Title VII and the ADEA that indicate differences in con-
gressional intent. Most importantly, whereas the ADEA’s
RFOA provision protects employers from liability for any
actions not motivated by age, see supra, at 251–253, Title
VII lacks any similar provision. In addition, the ADEA’s
structure demonstrates Congress’ intent to combat inten-
tional discrimination through § 4’s prohibitions while ad-
dressing employment practices having a disparate impact on
older workers through independent noncoercive mechanisms.
See supra, at 256–258. There is no analogy in the structure
of Title VII. Furthermore, as the Congresses that adopted
both Title VII and the ADEA clearly recognized, the two
statutes were intended to address qualitatively different
kinds of discrimination. See supra, at 253–255. Disparate
impact liability may have a legitimate role in combating the
types of discrimination addressed by Title VII, but the na-
ture of aging and of age discrimination makes such liability
inappropriate for the ADEA. See supra, at 258–259.
Finally, nothing in the Court’s decision in Griggs itself pro-
vides any reason to extend its holding to the ADEA. As
the plurality tacitly acknowledges, ante, at 235, the decision

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262 SMITH v. CITY OF JACKSON
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in Griggs was not based on any analysis of Title VII’s actual
language. Rather, the ratio decidendi was the statute’s per-
ceived purpose, i. e.,
“to achieve equality of employment opportunities and
remove barriers that have operated in the past to favor
an identifiable group of white employees over other em-
ployees. Under the Act, practices, procedures, or tests
neutral on their face, and even neutral in terms of intent,
cannot be maintained if they operate to ‘freeze’ the sta-
tus quo of prior discriminatory employment practices.”
401 U. S., at 429–430.
In other words, the Court in Griggs reasoned that disparate
impact liability was necessary to achieve Title VII’s ostensi-
ble goal of eliminating the cumulative effects of historical
racial discrimination. However, that rationale finds no par-
allel in the ADEA context, see Murgia, 427 U. S., at 313–314,
and it therefore should not control our decision here.
Even venerable canons of construction must bow, in an ap-
propriate case, to compelling evidence of congressional in-
tent. In my judgment, the significant differences between
Title VII and the ADEA are more than sufficient to over-
come the default presumption that similar language is to be
read similarly. See Fogerty, supra, at 523–524 (concluding
that the “normal indication” that similar language should be
read similarly is “overborne” by differences between the leg-
islative history and purposes of two statutes).
B
The plurality asserts that the agencies charged with the
ADEA’s administration “have consistently interpreted the
[statute] to authorize relief on a disparate-impact theory.”
Ante, at 239. In support of this claim, the plurality de-
scribes a 1968 interpretive bulletin issued by the Depart-
ment of Labor as “permitt[ing]” disparate impact claims.
Ibid. (citing 29 CFR § 860.103(f)(1)(i) (1970)). And the plu-

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rality cites, without comment, an Equal Employment Oppor-
tunity Commission (EEOC) policy statement construing the
RFOA provision. Ante, at 240 (citing 29 CFR § 1625.7
(2004)). It is unclear what interpretive value the plurality
means to assign to these agency statements. But Justice
Scalia, at least, thinks that the EEOC statement is entitled
to deference under Chevron U. S. A. Inc. v. Natural Re-
sources Defense Council, Inc., 467 U. S. 837 (1984), and that
“that is sufficient to resolve this case.” Ante, at 247 (opinion
concurring in part and concurring in judgment). I disagree
and, for the reasons that follow, would give no weight to the
statements in question.
The 1968 Labor Department bulletin to which the plurality
alludes was intended to “provide ‘a practical guide to em-
ployers and employees as to how the office representing the
public interest in its enforcement will seek to apply it.’ ” 29
CFR § 860.1 (1970) (quoting Skidmore v. Swift & Co., 323
U. S. 134, 138 (1944)). In discussing the RFOA provision,
the bulletin states that “physical fitness requirements” and
“[e]valuation factors such as quantity or quality of produc-
tion, or educational level” can qualify as reasonable nonage
factors, so long as they have a valid relationship to job quali-
fications and are uniformly applied. §§ 860.103(f)(1), (2).
But the bulletin does not construe the ADEA’s prohibitory
provisions, nor does it state or imply that § 4(a) authorizes
disparate impact claims. Rather, it establishes “a nonexclu-
sive objective test for employers to use in determining
whether they could be certain of qualifying for the” RFOA
exemption. Public Employees Retirement System of Ohio
v. Betts, 492 U. S. 158, 172 (1989) (discussing 1968 bulletin’s
interpretation of the § 4(f)(2) exemption). Moreover, the
very same bulletin states unequivocally that “[t]he clear pur-
pose [of the ADEA] is to insure that age, within the limits
prescribed by the Act, is not a determining factor in making
any decision regarding the hiring, dismissal, promotion or
any other term, condition or privilege of employment of an

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individual.” § 860.103(c) (emphasis added). That language
is all about discriminatory intent.
The EEOC statement cited by the plurality and relied
upon by Justice Scalia is equally unhelpful. This “inter-
pretative rule or policy statement,” promulgated in 1981, su-
perseded the 1968 Labor Department bulletin after responsi-
bility for enforcing the ADEA was transferred from Labor
to the EEOC. See 46 Fed. Reg. 47724 (1981). It states, in
relevant part:
“[W]hen an employment practice, including a test, is
claimed as a basis for different treatment of employees
or applicants for employment on the grounds that it is a
‘factor other than’ age, and such a practice has an ad-
verse impact on individuals within the protected age
group, it can only be justified as a business necessity.”
29 CFR § 1625.7(d) (2004).
Like the 1968 bulletin it replaces, this statement merely
spells out the agency’s view, for purposes of its enforcement
policy, of what an employer must do to be certain of gaining
the safety of the RFOA haven. It says nothing about
whether disparate impact claims are authorized by the
ADEA.
For Justice Scalia, “[t]his is an absolutely classic case for
deference to agency interpretation.” Ante, at 243 (opinion
concurring in part and concurring in judgment). I disagree.
Under Chevron, we will defer to a reasonable agency inter-
pretation of ambiguous statutory language, see 467 U. S., at
843–844, provided that the interpretation has the requisite
“force of law,” Christensen v. Harris County, 529 U. S. 576,
587 (2000). The rationale for such deference is that Con-
gress has explicitly or implicitly delegated to the agency re-
sponsible for administering a statute the authority to choose
among permissible constructions of ambiguous statutory
text. See Chevron, supra, at 844. The question now before
us is not what it takes to qualify for the RFOA exemption,

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but rather whether § 4(a)(2) of the ADEA authorizes dispar-
ate impact claims. But the EEOC statement does not pur-
port to interpret the language of § 4(a) at all. Quite simply,
the agency has not actually exercised its delegated authority
to resolve any ambiguity in the relevant provision’s text,
much less done so in a reasonable or persuasive manner. As
to the specific question presented, therefore, the regulation
is not entitled to any deference. See John Hancock Mut.
Life Ins. Co. v. Harris Trust and Sav. Bank, 510 U. S. 86,
106–109, and n. 17 (1993); see also SEC v. Sloan, 436 U. S.
103, 117–118 (1978); Adamo Wrecking Co. v. United States,
434 U. S. 275, 287–289, and n. 5 (1978).2
Justice Scalia’s attempt to link the EEOC’s RFOA reg-
ulation to § 4(a)(2) is premised on a dubious chain of infer-
ences that, in my view, highlights the hazards of his ap-
proach. Because the RFOA provision is “relevant only as a
response to employer actions ‘otherwise prohibited’ by the
ADEA,” he reasons, the “unavoidable meaning” of the
EEOC statement is that the agency interprets the ADEA to
prohibit “employer actions that have an ‘adverse impact on
individuals within the protected age group.’ ” Ante, at 246
(opinion concurring in part and concurring in judgment)
(quoting 29 CFR § 1625.7(d) (2004)). But, of course, dispar-
ate treatment clearly has an “adverse impact on individuals
within the protected age group,” ibid., and Justice Scalia’s
reading of the EEOC’s rule is hardly “unavoidable.” The
regulation says only that if an employer wants to rely on
a practice—say, a physical fitness test—as the basis for an
exemption from liability, and that test adversely affects older
workers, the employer can be sure of qualifying for the ex-
emption only if the test is sufficiently job related. Such a
2 Because the EEOC regulation does not actually interpret the text at
issue, we need not address the degree of deference to which the regulation
would otherwise be entitled. Cf. General Dynamics Land Systems, Inc.
v. Cline, 540 U. S. 581, 600 (2004) (declining to address whether EEOC’s
regulations interpreting the ADEA are entitled to Chevron deference).

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limitation makes sense in disparate treatment cases. A test
that harms older workers and is unrelated to the job may be
a pretext for—or even a means of effectuating—intentional
discrimination. See supra, at 253. Justice Scalia com-
pletes his analytical chain by inferring that the EEOC regu-
lation must be read to interpret § 4(a)(2) to allow disparate
impact claims because that is the only provision of the
ADEA that could “conceivably” be so interpreted. Ante, at
246. But the support for that inference is doubtful, to say
the least. The regulation specifically refers to employment
practices claimed as a basis for “different treatment of em-
ployees or applicants for employment,” 29 CFR § 1625.7(d)
(2004) (emphasis added). Section 4(a)(2), of course, does not
apply to “applicants for employment” at all—it is only
§ 4(a)(1) that protects this group. See 29 U. S. C. § 623(a).
That suggests that the EEOC must have read the RFOA
to provide a defense against claims under § 4(a)(1)—which
unquestionably permits only disparate treatment claims, see
supra, at 249.
This discussion serves to illustrate why it makes little
sense to attribute to the agency a construction of the rele-
vant statutory text that the agency itself has not actually
articulated so that we can then “defer” to that reading.
Such an approach is particularly troubling where applied to
a question as weighty as whether a statute does or does not
subject employers to liability absent discriminatory intent.
This is not, in my view, what Chevron contemplated.
As an interpretation of the RFOA provision, moreover,
the EEOC regulation is both unreasonable on its face and
directly at odds with the Court’s holding in today’s case. It
says that the RFOA exemption is available only if the em-
ployer’s practice is justified by a “business necessity.” But
the Court has rejected that reading of the RFOA provision,
and rightly so: There may be many “reasonable” means by
which an employer can advance its goals, and a given nonage
factor can certainly be “reasonable” without being necessary.

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Ante, at 243; see also Western Air Lines, Inc. v. Criswell, 472
U. S. 400, 419 (1985) (distinguishing “ ‘reasonable necessity’ ”
standard from “reasonableness”). Of course, it is elemen-
tary that “no deference is due to agency interpretations at
odds with the plain language of the statute itself.” Betts,
492 U. S., at 171. The agency clearly misread the RFOA
provision it was attempting to construe. That error is not
necessarily dispositive of the disparate impact question.
But I think it highlights the improvidence of giving weight
(let alone deferring) to the regulation’s purported assump-
tion that an entirely different provision of the statute, which
is not even the subject of the regulation, authorizes disparate
impact claims. In my view, we should simply acknowledge
that this regulation is of no help in answering the question
presented.
IV
Although I would not read the ADEA to authorize dispar-
ate impact claims, I agree with the Court that, if such claims
are allowed, they are strictly circumscribed by the RFOA
exemption. See ante, at 241–242. That exemption requires
only that the challenged employment practice be based on
a “reasonable” nonage factor—that is, one that is rationally
related to some legitimate business objective. I also agree
with the Court, ante, at 240, that, if disparate impact claims
are to be permitted under the ADEA, they are governed by
the standards set forth in our decision in Wards Cove Pack-
ing Co. v. Atonio, 490 U. S. 642 (1989). That means, as the
Court holds, ante, at 241, that “a plaintiff must demonstrate
that it is the application of a specific or particular employ-
ment practice that has created the disparate impact under
attack,” Wards Cove, supra, at 657 (emphasis added); see also
Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 994 (1988)
(opinion of O’Connor, J.). It also means that once the em-
ployer has produced evidence that its action was based on a
reasonable nonage factor, the plaintiff bears the burden of
disproving this assertion. See Wards Cove, supra, at 659–

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268 SMITH v. CITY OF JACKSON
O’Connor, J., concurring in judgment
660; see also Watson, supra, at 997 (opinion of O’Connor, J.).
Even if petitioners’ disparate impact claim were cognizable
under the ADEA, that claim clearly would fail in light of
these requirements.