KENTUCKY RETIREMENT SYSTEMS et al. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

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Syllabus
KENTUCKY RETIREMENT SYSTEMS et al. v. EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION
certiorari to the united states court of appeals for
the sixth circuit
No. 06–1037. Argued January 9, 2008—Decided June 19, 2008
Kentucky permits “hazardous position” workers, e. g., policemen, to re
ceive normal retirement benefits after working either 20 years or 5
years and attaining age 55 and pays “disability retirement” benefits to
workers meeting specified requirements. Kentucky’s “Plan” calculates
normal retirement benefits based on actual years of service. The Plan
calculates disability benefits by adding to an employee’s actual years of
service the number of years that the employee would have had to con
tinue working in order to become eligible for normal retirement bene
fits, adding no more than the number of years the employee had
previously worked. Charles Lickteig, who continued working after
becoming eligible for retirement at age 55, became disabled and retired
at age 61. He filed an age discrimination complaint with respondent
(EEOC) after the Plan based his pension on his actual years of service
without imputing any additional years. The EEOC filed suit against
Kentucky and others (collectively Kentucky), arguing that the Plan
failed to impute years solely because Lickteig became disabled after age
55. The District Court granted Kentucky summary judgment, holding
that the EEOC could not establish age discrimination, but the Sixth
Circuit ultimately reversed on the ground that the Plan violated the
Age Discrimination in Employment Act of 1967 (ADEA).
Held: Kentucky’s system does not discriminate against workers who be
come disabled after becoming eligible for retirement based on age.
Pp. 141–150.
(a) The ADEA forbids an employer to “discriminate against any in
dividual with respect to his compensation, terms, conditions, or privi
leges of employment, because of such individual’s age.” 29 U. S. C.
§ 623(a)(1) (emphasis added). A plaintiff claiming age-related “dispar
ate treatment” (i. e., intentional discrimination) must prove that age
“actually motivated the employer’s decision.” Hazen Paper Co. v. Big
gins, 507 U. S. 604, 610 (emphasis added). In Hazen Paper, the Court
found that, without evidence of intent, a dismissal based on pension sta
tus was not a dismissal “because of . . . age,” id., at 611–612, noting that,
though pension status depended upon years of service, and years

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of service typically go hand in hand with age, the two concepts are
“analytically distinct,” id., at 611. And the dismissal at issue there, if
based purely on pension status, would not embody the evils prompting
the ADEA: It was not based on a “prohibited stereotype” of older work
ers, did not produce any “attendant stigma” to those workers, and was
not “the result of an inaccurate and denigrating generalization about
age.” Id., at 612. However, the Court noted that discrimination based
on pension status could violate the ADEA if pension status was a “proxy
for age.” Id., at 613. Pp. 141–143.
(b) Applying Hazen Paper, the circumstances here, taken together,
show that the differences in treatment in this particular instance were
not “actually motivated” by age. (1) Age and pension status remain
“analytically distinct” concepts. (2) Here, several background circum
stances eliminate the possibility that pension status serves as a “proxy
for age.” Rather than an individual employment decision, at issue here
are complex systemwide rules involving not wages, but pensions—a
benefit the ADEA treats somewhat more flexibly and leniently in re
spect to age. Further, Congress has otherwise approved programs,
such as Social Security Disability Insurance, that calculate disability
benefits using a formula that expressly takes account of age. (3) The
disparity here has a clear non-age-related rationale. The Plan’s disabil
ity rules track Kentucky’s “normal retirement” rules by imputing only
those additional years of service needed to bring the disabled worker’s
total to 20 or to the number of years that the individual would have
worked had he worked to age 55. Thus, the disability rules’ purpose is
to treat a disabled worker as though he had become disabled after,
rather than before, he had become eligible for “normal retirement” ben
efits. Age factors into the disability calculation only because the nor
mal retirement rules themselves permissibly consider age. The Plan
simply seeks to treat disabled employees as if they had worked until the
point at which they would be eligible for a normal pension. Thus, the
disparity turns upon pension eligibility and nothing more. (4) Although
the Plan placed an older worker at a disadvantage here, in other cases,
the rules can work to the advantage of older workers, who may get a
bigger boost of imputed years than younger workers. (5) Kentucky’s
system does not rely on the sorts of stereotypical assumptions, e. g., the
work capacity of “older” workers relative to “younger” workers, that
the ADEA sought to eradicate. The Plan’s “assumptions” that no dis
abled worker would have continued to work beyond the point at which
he was both disabled and pension eligible do not involve age-related
stereotypes, but apply equally to all workers regardless of age. (6) The
nature of the Plan’s eligibility requirements means that, unless Ken

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Syllabus
tucky were severely to cut the benefits to disabled workers who are not
yet pension eligible, it would have to increase the benefits available to
disabled, pension-eligible workers, while lacking any clear criteria for
determining how many extra years to impute for those already 55 or
older. The difficulty of finding a remedy that can both correct the dis
parity and achieve the Plan’s legitimate objective—providing each dis
abled worker with a sufficient retirement benefit—further suggests that
this objective, not age, “actually motivated” the Plan.
The Court’s opinion in no way unsettles the rule that a statute or
policy that facially discriminates based on age suffices to show disparate
treatment under the ADEA. The Court is dealing with the quite spe
cial case of differential treatment based on pension status, where pen
sion status—with the explicit blessing of the ADEA—itself turns, in
part, on age. Further, the rule for dealing with this sort of case is
clear: Where an employer adopts a pension plan that includes age as a
factor, and that employer then treats employees differently based on
pension status, a plaintiff, to state a claim under the ADEA, must ad
duce sufficient evidence to show that the differential treatment was “ac
tually motivated” by age, not pension status. Pp. 143–148.
(c) The Federal Government’s additional arguments are rejected.
Since Hazen Paper provides the relevant precedent here, an ADEA
amendment made in light of Public Employees Retirement System of
Ohio v. Betts, 492 U. S. 158, is beside the point. And a contrary inter
pretation contained in an EEOC regulation and its compliance manual
does not lead to a different conclusion. Pp. 148–150.
467 F. 3d 571, reversed.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Stevens, Souter, and Thomas, JJ., joined. Kennedy, J., filed a
dissenting opinion, in which Scalia, Ginsburg, and Alito, JJ., joined,
post, p. 150.
Robert D. Klausner argued the cause for petitioners.
With him on the briefs were Gregory D. Stumbo, Attorney
General of Kentucky, David Brent Irvin, Assistant Attorney
General, C. Joseph Beavin, James D. Allen, E. Joshua Ro
senkranz, Kenneth H. Kirschner, N. Scott Lilly, William P.
Hanes, and J. Eric Wampler.
Malcolm L. Stewart argued the cause for respondent.
With him on the brief were former Solicitor General Clem

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138 KENTUCKY RETIREMENT SYSTEMS v. EEOC
Opinion of the Court
ent, Acting Solicitor General Garre, Ronald S. Cooper, Lor
raine C. Davis, and Carolyn L. Wheeler.*
Justice Breyer delivered the opinion of the Court.
The Commonwealth of Kentucky permits policemen, fire
men, and other “hazardous position” workers to retire and
to receive “normal retirement” benefits after either (1) work
ing for 20 years; or (2) working for 5 years and attaining the
age of 55. See Ky. Rev. Stat. Ann. §§ 16.576, 16.577(2) (Lexis
2003), 61.592(4) (Lexis Supp. 2003). It permits those who
become seriously disabled but have not otherwise become
eligible for retirement to retire immediately and receive
“disability retirement” benefits. See § 16.582(2)(b) (Lexis
2003). And it treats some of those disabled individuals more
generously than it treats some of those who became disabled
only after becoming eligible for retirement on the basis of
age. The question before us is whether Kentucky’s system
consequently discriminates against the latter workers “be
cause of . . . age.” Age Discrimination in Employment Act
of 1967 (ADEA or Act), § 4(a)(1), 81 Stat. 603, 29 U. S. C.
§ 623(a)(1). We conclude that it does not.
*Briefs of amici curiae urging reversal were filed for the State of Michi
gan et al. by Michael A. Cox, Attorney General of Michigan, Thomas L.
Casey, Solicitor General, and Larry F. Brya, Assistant Attorney General,
and by the Attorneys General for their respective States as follows: Talis
J. Colberg of Alaska, Dustin McDaniel of Arkansas, John Suthers of Colo
rado, Joseph R. Biden III of Delaware, Lawrence G. Wasden of Idaho,
Douglas F. Gansler of Maryland, Lori Swanson of Minnesota, Gary K.
King of New Mexico, W. A. Drew Edmondson of Oklahoma, Henry Mc-
Master of South Carolina, Robert E. Cooper, Jr., of Tennessee, and Greg
Abbott of Texas; for the National Association of Counties et al. by Richard
Ruda; for the National Association of State Retirement Administrators
et al. by Robert E. Tarcza; and for the National School Boards Association
by Francisco M. Negro´ n, Jr., and Lisa E. Soronen.
Laurie A. McCann and Melvin R. Radowitz filed a brief for AARP
et al. as amici curiae urging affirmance.

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Opinion of the Court
I
A
Kentucky has put in place a special retirement plan (Plan)
for state and county employees who occupy “[h]azardous po
sition[s],” e. g., active duty law enforcement officers, fire
fighters, paramedics, and workers in correctional systems.
See Ky. Rev. Stat. Ann. § 61.592(1)(a) (Lexis Supp. 2003).
The Plan sets forth two routes through which such an em
ployee can become eligible for what is called “normal retire
ment” benefits. The first makes an employee eligible for re
tirement after 20 years of service. The second makes an
employee eligible after only 5 years of service provided that
the employee has attained the age of 55. See §§ 16.576,
16.577(2), 61.592(4). An employee eligible under either
route will receive a pension calculated in the same way: Ken
tucky multiplies years of service times 2.5% times final pre
retirement pay. See § 16.576(3).
Kentucky’s Plan has special provisions for hazardous posi
tion workers who become disabled but are not yet eligible
for normal retirement. Where such an employee has
worked for five years or became disabled in the line of duty,
the employee can retire at once. See §§ 16.576(1), 16.582(2)
(Lexis 2003). In calculating that employee’s benefits Ken
tucky will add a certain number of (“imputed”) years to the
employee’s actual years of service. The number of imputed
years equals the number of years that the disabled employee
would have had to continue working in order to become eligi
ble for normal retirement benefits, i. e., the years necessary
to bring the employee up to 20 years of service or to at least
5 years of service when the employee would turn 55 (which
ever number of years is lower). See § 16.582(5)(a) (Lexis
2003). Thus, if an employee with 17 years of service be
comes disabled at age 48, the Plan adds 3 years and calcu
lates the benefits as if the employee had completed 20 years
of service. If an employee with 17 years of service becomes

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disabled at age 54, the Plan adds 1 year and calculates the
benefits as if the employee had retired at age 55 with 18
years of service.
The Plan also imposes a ceiling on imputed years equal to
the number of years the employee has previously worked
(i. e., an employee who has worked eight years cannot receive
more than eight additional imputed years), see § 16.582(5)(a);
it provides for a certain minimum payment, see § 16.582(6)
(Lexis 2003); and it contains various other details, none of
which is challenged here.
B
Charles Lickteig, a hazardous position worker in the Jef
ferson County Sheriff ’s Department, became eligible for re
tirement at age 55, continued to work, became disabled, and
then retired at age 61. The Plan calculated his annual pen
sion on the basis of his actual years of service (18 years)
times 2.5% times his final annual pay. Because Lickteig
became disabled after he had already become eligible for
normal retirement benefits, the Plan did not impute any
additional years for purposes of the calculation.
Lickteig complained of age discrimination to the Equal
Employment Opportunity Commission (EEOC); and the
EEOC then brought this age discrimination lawsuit against
the Commonwealth of Kentucky, Kentucky’s Plan adminis
trator, and other state entities (to whom we shall refer col
lectively as “Kentucky”). The EEOC pointed out that, if
Lickteig had become disabled before he reached the age of
55, the Plan, in calculating Lickteig’s benefits, would have
imputed a number of additional years. And the EEOC ar
gued that the Plan failed to impute years solely because
Lickteig became disabled after he reached age 55.
The District Court, making all appropriate evidence
related assumptions in the EEOC’s favor, see Fed. Rule Civ.
Proc. 56, held that the EEOC could not establish age dis
crimination; and it granted summary judgment in the de
fendants’ favor. A panel of the Sixth Circuit affirmed that

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judgment. EEOC v. Jefferson Cty. Sheriff ’s Dept., 424
F. 3d 467 (2005). The Sixth Circuit then granted rehearing
en banc, held that Kentucky’s Plan did violate the ADEA,
and reversed and remanded for further proceedings. 467
F. 3d 571 (2006).
Kentucky sought certiorari. In light of the potentially
serious impact of the Circuit’s decision upon pension bene
fits provided under plans in effect in many States, we
granted the writ. See, e. g., Ind. Code §§ 36–8–8–13.3(b) and
(c) (West 2004); Mich. Comp. Laws Ann. §§ 38.23 and
38.556(2)(d) (West 2005); N. C. Gen. Stat. Ann. §§ 135–1 and
135–5 (Lexis 2007); 71 Pa. Cons. Stat. §§ 5102 and 5704 (2001
and Supp. 2007); Tenn. Code Ann. § 8–36–501(c)(3) (Supp.
2007). See also Reply Brief for Petitioners 20–21 (predict
ing, inter alia, large increase in pension liabilities, potential
reduction in benefits for all disabled persons, or both); Brief
for National Association of State Retirement Administrators
et al. as Amici Curiae 8–14 (same).
II
The ADEA forbids an employer to “fail or refuse to hire
or to discharge any individual or otherwise discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual’s age.” 29 U. S. C. § 623(a)(1) (emphasis
added). In Hazen Paper Co. v. Biggins, 507 U. S. 604 (1993),
the Court explained that where, as here, a plaintiff claims
age-related “disparate treatment” (i. e., intentional discrimi
nation “because of . . . age”) the plaintiff must prove that age
“actually motivated the employer’s decision.” Id., at 610
(emphasis added); see also Reeves v. Sanderson Plumbing
Products, Inc., 530 U. S. 133, 141 (2000). The Court noted
that “[t]he employer may have relied upon a formal, facially
discriminatory policy requiring adverse treatment” because
of age, or “the employer may have been motivated by [age]
on an ad hoc, informal basis.” Hazen Paper, 507 U. S., at

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610. But “[w]hatever the employer’s decisionmaking proc
ess,” a plaintiff alleging disparate treatment cannot succeed
unless the employee’s age “actually played a role in that
process and had a determinative influence on the outcome.”
Ibid. (emphasis added). Cf. Smith v. City of Jackson, 544
U. S. 228, 239–240 (2005) (plurality opinion) (describing
“disparate-impact” theory, not here at issue, which focuses
upon unjustified discriminatory results).
In Hazen Paper, the Court considered a disparate
treatment claim that an employer had unlawfully dismissed
a 62-year-old employee with over 91⁄ 2 years of service in
order to avoid paying pension benefits that would have
vested after 10 years. The Court held that, without more
evidence of intent, the ADEA would not forbid dismissal of
the claim. A dismissal based on pension status was not a
dismissal “because of . . . age.” 507 U. S., at 611–612. Of
course, pension status depended upon years of service, and
years of service typically go hand in hand with age. Id., at
611. But the two concepts were nonetheless “analytically
distinct.” Ibid. An employer could easily “take account of
one while ignoring the other.” Ibid. And the dismissal in
question, if based purely upon pension status (related to
years of service), would not embody the evils that led Con
gress to enact the ADEA in the first place: The dismissal
was not based on a “prohibited stereotype” of older workers,
did not produce any “attendant stigma” to those workers,
and was not “the result of an inaccurate and denigrating gen
eralization about age.” Id., at 612.
At the same time, Hazen Paper indicated that discrimina
tion on the basis of pension status could sometimes be unlaw
ful under the ADEA, in particular where pension status
served as a “proxy for age.” Id., at 613. Suppose, for ex
ample, an employer “target[ed] employees with a particular
pension status on the assumption that these employees are
likely to be older.” Id., at 612–613. In such a case, Hazen
Paper suggested, age, not pension status, would have “ac

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tually motivated” the employer’s decisionmaking. Hazen
Paper also left open “the special case where an employee is
about to vest in pension benefits as a result of his age, rather
than years of service.” Id., at 613. We here consider a
variation on this “special case” theme.
III
Kentucky’s Plan turns normal pension eligibility either
upon the employee’s having attained 20 years of service
alone or upon the employee’s having attained 5 years of
service and reached the age of 55. The ADEA permits an
employer to condition pension eligibility upon age. See
29 U. S. C. § 623(l)(1)(A)(i) (2006 ed.). Thus we must de
cide whether a plan that (1) lawfully makes age in part a
condition of pension eligibility, and (2) treats workers differ
ently in light of their pension status, (3) automatically dis
criminates because of age. The Government argues “yes.”
But, following Hazen Paper’s approach, we come to a differ
ent conclusion. In particular, the following circumstances,
taken together, convince us that, in this particular instance,
differences in treatment were not “actually motivated”
by age.
First, as a matter of pure logic, age and pension status
remain “analytically distinct” concepts. Hazen Paper, 507
U. S., at 611. That is to say, one can easily conceive of deci
sions that are actually made “because of ” pension status and
not age, even where pension status is itself based on age.
Suppose, for example, that an employer pays all retired work
ers a pension, retirement eligibility turns on age, say, 65, and
a 70-year-old worker retires. Nothing in language or in
logic prevents one from concluding that the employer has
begun to pay the worker a pension, not because the worker
is over 65, but simply because the worker has retired.
Second, several background circumstances eliminate the
possibility that pension status, though analytically distinct
from age, nonetheless serves as a “proxy for age” in Ken

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tucky’s Plan. Cf. id., at 613. We consider not an individual
employment decision, but a set of complex systemwide rules.
These systemic rules involve, not wages, but pensions—
a benefit that the ADEA treats somewhat more flexibly
and leniently in respect to age. See, e. g., 29 U. S. C.
§ 623(l)(1)(A)(i) (explicitly allowing pension eligibility to turn
on age); § 623(l)(2)(A) (allowing employer to consider (age
related) pension benefits in determining level of severance
pay); § 623(l)(3) (allowing employer to consider (age-related)
pension benefits in determining level of long-term disability
benefits). And the specific benefit at issue here is offered to
all hazardous position workers on the same nondiscrimina
tory terms ex ante. That is to say, every such employee,
when hired, is promised disability retirement benefits should
he become disabled prior to the time that he is eligible for
normal retirement benefits.
Furthermore, Congress has otherwise approved of pro
grams that calculate permanent disability benefits using a
formula that expressly takes account of age. For example,
the Social Security Administration now uses such a formula
in calculating Social Security Disability Insurance benefits.
See, e. g., 42 U. S. C. § 415(b)(2)(B)(iii); 20 CFR § 404.211(e)
(2007). And until (and in some cases after) 1984, federal em
ployees received permanent disability benefits based on a
formula that, in certain circumstances, did not just consider
age, but effectively imputed years of service only to those
disabled workers younger than 60. See 5 U. S. C. § 8339(g)
(2006 ed.); see also Office of Personnel Management, Disabil
ity Retirement Under the Civil Service Retirement System,
Retirement Facts 4, p. 3 (rev. Nov. 1997), online at http://
www.opm.gov/forms/pdfimage/RI83-4.pdf (as visited June 16,
2008, and available in Clerk of Court’s case file).
Third, there is a clear non-age-related rationale for the
disparity here at issue. The manner in which Kentucky cal
culates disability retirement benefits is in every important
respect but one identical to the manner in which Kentucky

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calculates normal retirement benefits. The one significant
difference consists of the fact that the Plan imputes addi
tional years of service to disabled individuals. But the Plan
imputes only those years needed to bring the disabled work
er’s years of service to 20 or to the number of years that the
individual would have worked had he worked to age 55.
The disability rules clearly track Kentucky’s normal retire
ment rules.
It is obvious, then, that the whole purpose of the disability
rules is, as Kentucky claims, to treat a disabled worker as
though he had become disabled after, rather than before, he
had become eligible for normal retirement benefits. Age
factors into the disability calculation only because the normal
retirement rules themselves permissibly include age as a
consideration. No one seeking to help disabled workers in
the way that Kentucky’s rules seek to help those workers
would care whether Kentucky’s normal system turned eligi
bility in part upon age or upon other, different criteria.
That this is so is suggested by the fact that one can readily
construct a plan that produces an identical disparity but
is age neutral. Suppose that Kentucky’s Plan made eligi
ble for a pension (1) day-shift workers who have 20 years
of service, and (2) night-shift workers who have 15 years
of service. Suppose further that the Plan calculates the
amount of the pension the same way in either case, which
method of calculation depends solely upon years of service
(say, giving the worker a pension equal to $1,000 for each
year of service). If the Plan were then to provide workers
who become disabled prior to pension eligibility the same
pension the workers would have received had they worked
until they became pension eligible, the Plan would create a
disparity between disabled day-shift and night-shift work
ers: A day-shift worker who becomes disabled before becom
ing pension eligible would, in many instances, end up receiv
ing a bigger pension than a night-shift worker who becomes
disabled after becoming pension eligible. For example, a

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day-shift worker who becomes disabled prior to becoming
pension eligible would receive an annual pension of $20,000,
while a night-shift worker who becomes disabled after be
coming pension eligible, say, after 16 years of service, would
receive an annual pension of $16,000.
The disparity in this example is not “actually motivated”
by bias against night-shift workers. Rather, such a dispar
ity, like the disparity in the case before us, is simply an arti
fact of Plan rules that treat one set of workers more gener
ously in respect to the timing of their eligibility for normal
retirement benefits but which do not treat them more gener
ously in respect to the calculation of the amount of their
normal retirement benefits. The example helps to show
that the Plan at issue in this case simply seeks to treat dis
abled employees as if they had worked until the point at
which they would be eligible for a normal pension. The dis
parity turns upon pension eligibility and nothing more.
Fourth, although Kentucky’s Plan placed an older worker
at a disadvantage in this case, in other cases, it can work to
the advantage of older workers. Consider, for example, two
disabled workers, one of whom is aged 45 with 10 years of
service, one of whom is aged 40 with 15 years of service.
Under Kentucky’s scheme, the older worker would actually
get a bigger boost of imputed years than the younger worker
(10 years would be imputed to the former, while only 5 years
would be imputed to the latter). And that fact helps to con
firm that the underlying motive is not an effort to discrimi
nate “because of . . . age.”
Fifth, Kentucky’s system does not rely on any of the sorts
of stereotypical assumptions that the ADEA sought to eradi
cate. It does not rest on any stereotype about the work
capacity of “older” workers relative to “younger” workers.
See, e. g., General Dynamics Land Systems, Inc. v. Cline,
540 U. S. 581, 590 (2004) (noting that except on one point, all
the findings and statements of objectives in the ADEA are

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“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” (emphasis
added)). The Plan does assume that all disabled workers
would have worked to the point at which they would have
become eligible for a pension. It also assumes that no dis
abled worker would have continued working beyond the
point at which he was both (1) disabled and (2) pension eligi
ble. But these “assumptions” do not involve age-related ste
reotypes, and they apply equally to all workers, regardless
of age.
Sixth, the nature of the Plan’s eligibility requirements
means that, unless Kentucky were severely to cut the bene
fits given to disabled workers who are not yet pension eligi
ble (which Kentucky claims it will do if its present Plan is
unlawful), Kentucky would have to increase the benefits
available to disabled, pension-eligible workers, while lacking
any clear criteria for determining how many extra years to
impute for those pension-eligible workers who already are
55 or older. The difficulty of finding a remedy that can both
correct the disparity and achieve the Plan’s legitimate objec
tive—providing each disabled worker with a sufficient retire
ment benefit, namely, the normal retirement benefit that the
worker would receive if he were pension eligible at the time
of disability—further suggests that this objective and not
age “actually motivated” the Plan.
The above factors all taken together convince us that the
Plan does not, on its face, create treatment differences that
are “actually motivated” by age. And, for present purposes,
we accept the District Court’s finding that the Government
has pointed to no additional evidence that might permit a
factfinder to reach a contrary conclusion. See App. 28–30.
It bears emphasizing that our opinion in no way unsettles
the rule that a statute or policy that facially discriminates
based on age suffices to show disparate treatment under the

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ADEA. We are dealing today with the quite special case of
differential treatment based on pension status, where pen
sion status—with the explicit blessing of the ADEA—itself
turns, in part, on age. Further, the rule we adopt today for
dealing with this sort of case is clear: Where an employer
adopts a pension plan that includes age as a factor, and that
employer then treats employees differently based on pension
status, a plaintiff, to state a disparate-treatment claim under
the ADEA, must come forward with sufficient evidence to
show that the differential treatment was “actually moti
vated” by age, not pension status. And our discussion of the
factors that lead us to conclude that the Government has
failed to make the requisite showing in this case provides an
indication of what a plaintiff might show in other cases to
meet his burden of proving that differential treatment based
on pension status is in fact discrimination “because of ” age.
IV
The Government makes two additional arguments. First,
it looks for support to an amendment that Congress made to
the ADEA after this Court’s decision in Public Employees
Retirement System of Ohio v. Betts, 492 U. S. 158 (1989). In
Betts, the employer denied a worker disability benefits on
the ground that its bona fide benefit program provided dis
ability benefits only to workers who became disabled prior
to age 60, and the worker in that case became disabled at age
61. Id., at 163. The ADEA at that time exempted from
its prohibitions employment decisions taken pursuant to the
terms of “ ‘any bona fide employee benefit plan . . . which is
not a subterfuge to evade the purposes of ’ the Act.” Id., at
161 (quoting 29 U. S. C. § 623(f)(2) (1982 ed.)). And the
Court held that the employer’s decision fell within that
exception. 492 U. S., at 182. Subsequently Congress
amended the ADEA to make clear that it covered age-based
discrimination in respect to all employee benefits. See
Older Workers Benefit Protection Act, § 102, 104 Stat. 978,

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Opinion of the Court
29 U. S. C. § 630(l) (2000 ed.). Congress replaced the “not a
subterfuge” exception with a provision stating that age
based disparities in the provision of benefits are lawful only
when they are justified in respect to cost savings. Id., at
978–979, 29 U. S. C. § 623(f)(2)(B)(i).
We agree with the Government that the amendment
broadened the field of employer actions subject to antidis
crimination rules and it narrowed the statutorily available
justifications for age-related differences. But these facts
cannot help the Government here. We do not dispute that
ADEA prohibitions apply to the Plan at issue, and our basis
for finding the Plan lawful does not rest upon amendment
related justifications. Rather, we find that the discrimina
tion is not “actually motivated” by age. Thus Hazen Paper,
not Betts, provides relevant precedent. And the amend
ment cited by the Government is beside the point.
Second, the Government says that we must defer to a con
trary EEOC interpretation contained in an EEOC regula
tion and compliance manual. The regulation, however, says
only that providing “the same level of benefits to older work
ers as to younger workers” does not violate the Act. 29
CFR § 1625.10(a)(2) (2007). The Government’s interpreta
tion of this language is not entitled to deference because, on
its face, the regulation “does little more than restate the
terms of the statute itself.” Gonzales v. Oregon, 546 U. S.
243, 257 (2006) (denying deference to an agency interpreta
tion of its own regulation in light of the “near equivalence”
of the statute and regulation).
The compliance manual provides more explicitly that bene
fits are not “equal” insofar as a plan “reduces or eliminates
benefits based on a criterion that is explicitly defined (in
whole or in part) by age.” 2 EEOC Compliance Manual § 3,
p. 627:0004 (2001) (bold typeface deleted). And the compli
ance manual further provides that “[b]asing disability retire
ment benefits on the number of years a disabled employee
would have worked until normal retirement age by definition

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150 KENTUCKY RETIREMENT SYSTEMS v. EEOC
Kennedy, J., dissenting
gives more constructive years of service to younger than to
older employees” and thus violates the Act. See id., at
627:0010.
These statements, while important, cannot lead us to a dif
ferent conclusion. See National Railroad Passenger Cor
poration v. Morgan, 536 U. S. 101, 111, n. 6 (2002) (noting
that compliance manuals are “ ‘ “entitled to respect” under
our decision in Skidmore v. Swift & Co., 323 U. S. 134, 140
(1944)’ ”); see also Christensen v. Harris County, 529 U. S.
576, 587 (2000). Following Hazen Paper, we interpret the
Act as requiring a showing that the discrimination at issue
“actually motivated” the employer’s decision. Given the
reasons set forth in Part III, supra, we conclude that evi
dence of that motivation was lacking here. And the EEOC’s
statement in the compliance manual that it automatically
reaches a contrary conclusion—a statement that the manual
itself makes little effort to justify—lacks the necessary
“power to persuade” us. Skidmore v. Swift & Co., 323 U. S.
134, 140 (1944).
V
The judgment of the Court of Appeals is reversed.
It is so ordered.
Justice Kennedy, with whom Justice Scalia, Justice
Ginsburg, and Justice Alito join, dissenting.
The Court today ignores established rules for interpreting
and enforcing one of the most important statutes Congress
has enacted to protect the Nation’s work force from age dis
crimination, the Age Discrimination in Employment Act of
1967 (ADEA or Act), 81 Stat. 602, as amended, 29 U. S. C.
§ 621 et seq. That Act prohibits employment actions that
“discriminate against any individual with respect to his com
pensation, terms, conditions, or privileges of employment,
because of such individual’s age.” § 623(a)(1). In recent
years employers and employees alike have been advised by
this Court, by most Courts of Appeals, and by the agency

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151 Cite as: 554 U. S. 135 (2008)
Kennedy, J., dissenting
charged with enforcing the Act, the Equal Employment Op
portunity Commission (EEOC), that the most straightfor
ward reading of the statute is the correct one: When an em
ployer makes age a factor in an employee benefit plan in a
formal, facial, deliberate, and explicit manner, to the detri
ment of older employees, this is a violation of the Act. Dis
parate treatment on the basis of age is prohibited unless
some exemption or defense provided in the Act applies.
The Court today undercuts this basic framework. In
doing so it puts the Act and its enforcement on a wrong
course. The decision of the en banc panel of the Court of
Appeals for the Sixth Circuit, which the Court reverses,
brought that Circuit’s case law into line with that of its sister
Circuits. See EEOC v. Jefferson Cty. Sheriff ’s Dept., 467
F. 3d 571, 573 (2006) (overturning Lyon v. Ohio Ed. Assn.
and Professional Staff Union, 53 F. 3d 135 (1995)); see also,
e. g., Jankovitz v. Des Moines Independent Community
School Dist., 421 F. 3d 649, 653–655 (CA8 2005); Abrahamson
v. Board of Ed. of Wappingers Falls Central School Dist.,
374 F. 3d 66, 72–73 (CA2 2004); Arnett v. California Public
Employees Retirement System, 179 F. 3d 690, 695–697 (CA9
1999); Auerbach v. Board of Ed. of Harborfields Central
School Dist. of Greenlawn, 136 F. 3d 104, 109–114 (CA2
1998); Huff v. UARCO, Inc., 122 F. 3d 374, 387–388 (CA7
1997). By embracing the approach rejected by the en banc
panel and all other Courts of Appeals that have addressed
this issue, this Court creates unevenness in administration,
unpredictability in litigation, and uncertainty as to employee
rights once thought well settled. These consequences, and
the Court’s errors in interpreting the statute and our cases,
require this respectful dissent.
Even were the Court correct that Kentucky’s facially dis
criminatory disability benefits plan can be justified by a
proper motive, the employer’s own submission to us reveals
that the plan’s discriminatory classification rests upon a ste
reotypical assumption that itself violates the Act and the
Court’s own analytical framework.

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152 KENTUCKY RETIREMENT SYSTEMS v. EEOC
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As a threshold matter, all should concede that the para
digm offered to justify the statute is a powerful one: The
young police officer or firefighter with a family is disabled in
the heroic performance of his or her duty. Disability pay
ments are increased to account for unworked years of serv
ice. What the Court overlooks, however, is that a 61-year
old officer or firefighter who is disabled in the same heroic
action receives, in many instances, a lower payment and for
one reason alone: By explicit command of Kentucky’s disabil
ity plan age is an express disadvantage in calculating the
disability payment.
This is a straightforward act of discrimination on the basis
of age. Though the Commonwealth is entitled by the law,
in some instances, to defend an age-based differential as cost
justified, 29 U. S. C. § 623(f)(2)(B)(ii), that has yet to be estab
lished here. What an employer cannot do, and what the
Court ought not to do, is to pretend that this explicit discrim
ination based on age is somehow consistent with the broad
statutory and regulatory prohibition against disparate treat
ment based on age.
I
The following appears to be common ground for both sides
of the dispute: Kentucky operates dual retirement systems
for employees in hazardous occupations. An employee is eli
gible for normal retirement if he or she has accumulated 20
years of service with the Commonwealth, or is over age 55
and has accumulated at least 5 years of service. If the em
ployee can no longer work as a result of a disability, however,
he or she is entitled to receive disability retirement. Em
ployees who are eligible for normal retirement benefits are
ineligible for disability retirement. See Ky. Rev. Stat. Ann.
§§ 16.576, 16.577(2) (Lexis 2003), 61.592(4) (Lexis Cum. Supp.
2003).
The distinction between normal and disability retirement
is not just a difference of nomenclature. Under the normal
retirement system benefits are calculated by multiplying a

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153 Cite as: 554 U. S. 135 (2008)
Kennedy, J., dissenting
percentage of the employee’s pay at retirement by years of
service. See § 16.576(3) (Lexis 2003). Under the disability
system the years-of-service multiplier includes not only the
employee’s actual years of service but also the number of
years it would have taken the employee to become eligible
for normal retirement (subject to a cap equal to the number
of actual years served). See § 16.582(5)(a). In other words
employees in the normal retirement system are compensated
based solely on their actual years of service; but employees
in the disability retirement system get a bonus, which ac
counts for the number of years the employee would have
worked had he or she remained healthy until becoming eligi
ble to receive normal retirement benefits.
Whether intended or not, the result of these divergent
benefits formulae is a system that, in some cases, compen
sates otherwise similarly situated individuals differently on
the basis of age. Consider two covered workers, one 45 and
one 55, both with five years of service with the Common
wealth and an annual salary of $60,000. If we assume both
become disabled in the same accident, the 45-year-old will be
entitled to receive $1,250 in monthly benefits; the 55-year-old
will receive $625, just half as much. The benefit disparity
results from the Commonwealth’s decision, under the disabil
ity retirement formula, to credit the 45-year-old with 5 years
of unworked service (thereby increasing the appliable years
service-multiplier to 10 years), while the 55-year-old’s bene
fits are based only on actual years of service (5 years). In
that instance age is the only factor that accounts for the dis
parate treatment.
True, age is not a factor that reduces benefits in every
case. If a worker has accumulated 20 years of service with
the Commonwealth before he or she becomes disabled, age
plays no role in the benefits calculation. But there is no
question that, in many cases, a disabled worker over the
age of 55 who has accumulated fewer than 20 years of serv
ice receives a lower monthly stipend than otherwise simi

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154 KENTUCKY RETIREMENT SYSTEMS v. EEOC
Kennedy, J., dissenting
larly situated workers who are under 55. The Court con
cludes this result is something other than discrimination on
the basis of age only by ignoring the statute and our past
opinions.
II
It is difficult to find a clear rule of law in the list of policy
arguments the Court makes to justify its holding. The dif
ficulty is compounded by the Court’s own analysis. The
Court concedes that, in this case, Kentucky’s plan “placed an
older worker at a disadvantage,” ante, at 146; yet it proceeds
to hold that the Commonwealth’s disparate treatment of its
workers was not “ ‘actually motivated’ by age,” ante, at 147.
The Court’s apparent rationale is that, even when it is evi
dent that a benefits plan discriminates on its face on the basis
of age, an ADEA plaintiff still must provide additional evi
dence that the employer acted with an “underlying motive,”
ante, at 146, to treat older workers less favorably than
younger workers.
The Court finds no support in the text of the statute. In
the wake of Public Employees Retirement System of Ohio
v. Betts, 492 U. S. 158 (1989), where the Court held that bona
fide employee benefit plans were exempt from the coverage
of the ADEA, Congress amended the Act to provide that
an employee benefit plan that discriminates on the basis
of age is unlawful, except when the employer establishes
entitlement to one of the affirmative defenses Congress
has provided. See Older Workers Benefit Protection Act
(OWBPA), 104 Stat. 978, codified at 29 U. S. C. § 623(f). As
a result of the OWBPA, an employer cannot operate an em
ployee benefit plan in a manner that “discriminate[s] against
any individual . . . because of such individual’s age,”
§ 623(a)(1), except when the plan is a “voluntary early retire
ment incentive plan” or when “the actual amount of payment
made or cost incurred on behalf of an older worker is no less
than that made or incurred on behalf of a younger worker,”
§§ 623(f )(2)(B)(i)–(ii); see generally B. Lindemann & D.

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155 Cite as: 554 U. S. 135 (2008)
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Kadue, Age Discrimination in Employment Law 175 (2003).
Under any common understanding of the statute’s terms a
disability plan that pays older workers less than younger
workers on the basis of age “discriminate[s] . . . because of
. . . age.” That is how the agency that administers the stat
ute, the EEOC, understands it. See 2 EEOC Compliance
Manual § 3, p. 627:0004 (2001) (“[B]enefits will not be equal
where a plan reduces or eliminates benefits based on a crite
rion that is explicitly defined (in whole or in part) by age”
(bold typeface deleted)). And the employer here has not
shown that any of the affirmative defenses or exemptions to
the Act applies. That should be the end of the matter; the
employer is liable unless it can make such a showing.
The Court’s holding stems, it asserts, from a statement in
Hazen Paper Co. v. Biggins, 507 U. S. 604 (1993), that an
employment practice discriminates only if it is “ ‘actually mo
tivated’ ” by the protected trait. Ante, at 141 (quoting
Hazen Paper, 507 U. S., at 610; emphasis deleted). If this
phrase had been used without qualification, the Court’s inter
pretation of it might have been justified. If one reads the
relevant passage in full (with particular emphasis on the sec
ond sentence), however, Hazen Paper makes quite clear that
no additional proof of motive is required in an ADEA case
once the employment policy at issue is deemed discrimina
tory on its face. The Court said this:
“In a disparate treatment case, liability depends on
whether the protected trait (under the ADEA, age) ac
tually motivated the employer’s decision. See, e. g.,
United States Postal Service Bd. of Governors v. Ai
kens, 460 U. S. 711 (1983); Texas Dept. of Community
Affairs v. Burdine, 450 U. S. 248, 252–256 (1981); Furnco
Constr. Corp. v. Waters, 438 U. S. 567, 576–578 (1978).
The employer may have relied upon a formal, facially
discriminatory policy requiring adverse treatment of
employees with that trait. See, e. g., [Trans World Air
lines, Inc. v.] Thurston, [469 U. S. 111 (1985)]; Los

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156 KENTUCKY RETIREMENT SYSTEMS v. EEOC
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Angeles Dept. of Water and Power v. Manhart, 435 U. S.
702, 704–718 (1978). Or the employer may have been
motivated by the protected trait on an ad hoc, informal
basis. See, e. g., Anderson v. Bessemer City, 470 U. S.
564 (1985); Teamsters [v. United States, 431 U. S. 324,
334–343 (1977)]. Whatever the employer’s decision
making process, a disparate treatment claim cannot suc
ceed unless the employee’s protected trait actually
played a role in that process and had a determinative
influence on the outcome.” Ibid.
In context the paragraph identifies a decision made in reli
ance on a “facially discriminatory policy requiring adverse
treatment of employees with [a protected] trait” as a type of
employment action that is “actually motivated” by that trait.
By interpreting Hazen Paper to say that a formal, facial,
explicit, mandated, age-based differential does not suffice to
establish a disparate-treatment violation (subject to statu
tory defenses and exemptions), it misconstrues the precedent
upon which its entire theory of this case is built. The Court
was right in Hazen Paper and is wrong here.
At a minimum the Court should not cite Hazen Paper
to support what it now holds. Its conclusion that no
disparate-treatment violation has been established here con
flicts with the longstanding rule in ADEA cases. The
rule—confirmed by the quoted text in Hazen Paper—is that
once the plaintiff establishes that a policy discriminates on
its face, no additional proof of a less-than-benign motive for
the challenged employment action is required. For if the
plan discriminates on its face, it is obvious that decisions
made pursuant to the plan are “actually motivated” by age.
The EEOC (or the employee) must prevail unless the em
ployer can justify its action under one of the enumerated
statutory defenses or exemptions.
Two cases cited in Hazen Paper as examples of “formal,
facially discriminatory polic[ies]” stand for this proposition.
See Trans World Airlines, Inc. v. Thurston, 469 U. S. 111

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(1985); Los Angeles Dept. of Water and Power v. Manhart,
435 U. S. 702 (1978).
In Thurston, the Court considered whether Trans World
Airlines’ transfer policy for older pilots violated the ADEA.
The policy allowed pilots to continue working for the airline
past the mandatory retirement age of 60 if they transferred
to the position of flight engineer. 469 U. S., at 115–116.
But the 60-year-old pilot had to bid for the position. Under
the bid procedures a pilot who became ineligible to remain
at the controls on account of a disability (or even outright
incompetence) had priority over a pilot forced out due to
age. Id., at 116–117. The Court held the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U. S.
792 (1973), which is used to determine whether there was a
discriminatory motive at play, had no application because the
policy was “discriminatory on its face.” 469 U. S., at 121.
Manhart, a case brought under Title VII of the Civil
Rights Act of 1964, involved a municipal employees’ retire
ment plan that forced female employees to make larger con
tributions than their male counterparts. The Court noted
that even if there were no evidence that the policy had a
discriminatory “effect,” “that evidence does not defeat the
claim that the practice, on its face, discriminated against
every individual woman employed by the Department.” 435
U. S., at 716.
Just as the majority misunderstands Hazen Paper’s refer
ence to employment practices that are “actually motivated”
by age, so too does it overstate what the Hazen Paper Court
meant when it observed that pension status and age are “an
alytically distinct.” 507 U. S., at 611. The Court now reads
this language as creating a virtual safe harbor for policies
that discriminate on the basis of pension status, even when
pension status is tied directly to age and then linked to an
other type of benefit program. The Hazen Paper Court did
not allow, or support, this result. In Hazen Paper, pension
status and age were “analytically distinct” because the em

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158 KENTUCKY RETIREMENT SYSTEMS v. EEOC
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ployee’s eligibility to receive a pension formally had nothing
to do with age; pension status was tied solely to years of
service. The Court recognized that age and pension status
were correlated (because older workers were more likely to
be pension eligible); but the Court found the plan to be fa
cially neutral with regard to age precisely because age and
pension status were not expressly linked under the terms of
the plan. See id., at 613 (noting that “we do not consider
the special case where an employee is about to vest in pen
sion benefits as a result of his age, rather than years of serv
ice”). In order to prove disparate-treatment liability the
Hazen Paper Court held that the plaintiff needed to provide
additional evidence that his termination in fact was moti
vated by age. Id., at 613–614.
The saving feature that was controlling in Hazen Paper is
absent here. This case is the opposite of Hazen Paper.
Here the age distinction is active and present, not super
seded and absent. Age is a determining factor of pension
eligibility for all workers over the age of 55 who have over
5 (but less than 20) years of service; and pension status, in
turn, is used to determine eligibility for disability benefits.
For these employees, pension status and age are not “analyt
ically distinct” in any meaningful sense; they merge into one
category. When it treats these employees differently on the
basis of pension eligibility, Kentucky facially discriminates
on the basis of age. Were this not the case, there would
be no facial age discrimination if an employer divided his
employees into two teams based upon age—putting all work
ers over the age of 65 on “Team A” and all other workers on
“Team B”—and then paid Team B members twice the salary
of their Team A counterparts, not on the basis of age (the
employer would declare) but of team designation. Neither
Hazen Paper nor the plain text of the ADEA can be read to
permit this result.
The closest the Court comes to reconciling its holding with
the actual text of the statute is its citation to the Act’s ex

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emption allowing employers to condition pension eligibility
on age. Ante, at 144. Of course, the fact that it invokes an
exemption is a concession by the Court that the Act other
wise would condemn the age-based classification Kentucky’s
disability plan makes. But the exemption provides no sup
port for the Court’s holding in any event. Its coverage is
limited to “employee pension benefit plan[s] [that] provid[e]
for the attainment of a minimum age as a condition of eligi
bility for normal or early retirement benefits.” See 29
U. S. C. § 623(l)(1)(A)(i). There is no further reaching ex
emption for subsequent employment decisions based upon
pension eligibility. And to the extent the Court finds such
a loophole to be implicit in the text of the statute, a disability
benefits program of the sort at issue here is not the only type
of employment policy that fits through it. If the ADEA
allows an employer to tie disability benefits to an age-based
pension status designation, that same designation can be
used to determine wages, hours, health care benefits, re
imbursements, job assignments, promotions, office space,
transportation vouchers, parking privileges, and any other
conceivable benefit or condition of employment.
III
The Court recognizes some of the difficulties with its posi
tion and seeks to limit its holding, yet it does so in ways not
permitted by statute or our previous employment discrimi
nation cases.
The Court notes that age is not the sole determining factor
of pension eligibility but is instead just one factor embedded
in a set of “complex systemwide rules.” Ante, at 144.
There is no suggestion in our prior ADEA cases, however,
and certainly none in our related Title VII jurisprudence,
that discrimination based on a protected trait is permissible
if the protected trait is one among many variables.
This is quite evident when the protected trait is necessar
ily a controlling, outcome-determinative factor in calculating

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employee benefits. In Manhart, for instance, sex was not
the only factor determining how much an employee was re
quired to contribute to the pension plan on a monthly basis;
the employee’s salary, age, and length of service were also
variables in the equation. 435 U. S., at 705; Brief for Peti
tioners in Los Angeles Dept. of Water and Power v. Man
hart, O. T. 1977, No. 76–1810, p. 23. And even though the
employer’s decision to require higher contributions from fe
male employees was based upon an actuarially sound prem
ise—that women have longer life expectancies than men—
the Court held that the plan discriminated on its face. 435
U. S., at 711.
Similarly, we have said that the ADEA’s substantive pro
hibitions, which were “derived in haec verba from Title VII,”
Lorillard v. Pons, 434 U. S. 575, 584 (1978), require the em
ployer “to ignore an employee’s age (absent a statutory ex
emption or defense),” Hazen Paper, 507 U. S., at 612. This
statement perhaps has been qualified by the Court’s subse
quent holding in General Dynamics Land Systems, Inc. v.
Cline, 540 U. S. 581 (2004), that the ADEA does not prohibit
employers from discriminating in favor of older workers to
the detriment of younger workers. Reasonable minds may
have disagreed about the merits of Cline’s holding. See id.,
at 601 (Scalia, J., dissenting); see also id., at 602 (Thomas,
J., dissenting). But Cline does not dictate the path the
Court chooses here. For it is one thing to interpret a stat
ute designed to combat age discrimination in a way that ben
efits older workers to the detriment of younger workers; it
is quite another to do what the Court does in this case, which
is to interpret the ADEA to allow a discriminatory employ
ment practice that disfavors older workers while favoring
younger ones. The Court, moreover, achieved the result in
Cline by reading the word “age” to mean “old age”—i. e., by
reading “discriminat[ion] . . . because of [an] individual’s age,”
29 U. S. C. § 623(a)(1), to mean discrimination because of an
individual’s advanced age. See Cline, supra, at 596. Here
the Court seems to adopt a new definition of the term “dis

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criminate” by holding that there is no discrimination on the
basis of a protected trait if the trait is one among several
factors that bear upon how an employee is treated. There
is no principled way to draw this distinction, and the Court
does not attempt to do so. Cf. Manhart, supra, at 710
(“[T]here is no reason to believe that Congress intended a
special definition of discrimination in the context of employee
group insurance coverage”).
The Court recites what it sees as “several background cir
cumstances [that] eliminate the possibility that pension
status, though analytically distinct from age, nonetheless
serves as a ‘proxy for age’ in Kentucky’s Plan.” Ante, at
143–144. Among these is a “clear non-age-related ration
ale,” ante, at 144, “to treat a disabled worker as though he
had become disabled after, rather than before, he had become
eligible for normal retirement benefits,” ante, at 145. There
is a difference, however, between a laudable purpose and a
rule of law.
An otherwise discriminatory employment action cannot be
rendered lawful because the employer’s motives were be
nign. In Automobile Workers v. Johnson Controls, Inc.,
499 U. S. 187 (1991), the employer had a policy barring all
female employees, except those who were infertile, from per
forming jobs that exposed them to lead. The employer said
its policy was designed not to reinforce negative gender ste
reotypes but to protect female employees’ unborn children
against the risk of birth defects. Id., at 191. The argument
did not prevail. The plan discriminated on its face on the
basis of sex, and the employer did not establish a bona fide
occupational qualification defense. As a result, the Court
held that the restriction violated Title VII. “[T]he absence
of a malevolent motive [did] not convert a facially discrimi
natory policy into a neutral policy with a discriminatory
effect.” Id., at 199.
Still, even if our cases allowed the motive qualification the
Court puts forth to justify a facial and operative distinction
based upon age, the plan at issue here does not survive the

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Court’s own test. We need look no further than the Com
monwealth’s own brief for evidence that its motives are con
trary to the ADEA. In its brief the Commonwealth refers
to the 61-year-old complainant in this case, Charles Lickteig,
as follows:
“An employee in Mr. Lickteig’s position has had an extra
21 years to devote to making money, providing for him
self and his family, saving funds for retirement, and ac
cruing years that will increase his retirement benefits.
Thus, the 40-year-old employee is likely to need more of
a boost.” Brief for Petitioners 23.
The hypothetical younger worker seems entitled to a boost
only if one accepts that the younger worker had more pro
ductive years of work left in him at the time of his injury
than Lickteig did. As an actuarial matter, this assumption
may be sound. It is an impermissible basis for differential
treatment under the ADEA, however. As we said in Hazen
Paper, the idea that “productivity and competence decline
with old age” is the “very essence of age discrimination.”
507 U. S., at 610. By forbidding age discrimination against
any “individual,” 29 U. S. C. § 623(a), the ADEA prohibits
employers from using the blunt tool of age to assess an em
ployee’s future productivity. Cf. Western Air Lines, Inc. v.
Criswell, 472 U. S. 400, 409 (1985) (noting the Labor Depart
ment’s findings that “the process of psychological and physio
logical degeneration caused by aging varies with each indi
vidual”). Whether this is good public policy in all instances
might be debatable. Until Congress sees fit to change the
language of the statute, however, there is no principled basis
for upholding Kentucky’s disability benefits formula.
* * *
As explained in this dissent, Kentucky’s disability retire
ment plan violates the ADEA, an Act intended to promote
the interests of older Americans. Yet it is no small irony
that it does so, at least in part, because the Commonwealth’s

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163 Cite as: 554 U. S. 135 (2008)
Kennedy, J., dissenting
normal retirement plan treats older workers in a particularly
generous fashion. Kentucky allows its employees to retire
at the age of 55 if they have accumulated only five years of
service. But for this provision, which links age and years
of service in a way that benefits older workers, pension eligi
bility would be a function solely of tenure, not age. Accord
ingly, this case would be more like Hazen Paper, and the
EEOC’s case would be much weaker. Similarly, as the
Court notes, ante, at 147, Kentucky could avoid any problems
by not imputing unworked years of service to any disabled
workers, old and young alike. Neither change to the plan
would result in more generous treatment for older workers.
The only difference would be that, under the first example,
older workers would lose the option of early retirement, and,
under the second, younger workers would see their benefits
cut. These are not the only possible remedies—the Com
monwealth could impute unworked years of service to all
employees forced into retirement on account of a disability
regardless of age.
The Court’s desire to avoid construing the ADEA in a way
that encourages the Commonwealth to eliminate its early re
tirement program or to reduce benefits to the policemen and
firefighters who are covered under the disability plan is un
derstandable. But, under our precedents, “ ‘[a] benefit that
is part and parcel of the employment relationship may not
be doled out in a discriminatory fashion, even if the employer
would be free . . . not to provide the benefit at all.’ ” Thur
ston, 469 U. S., at 121 (quoting Hishon v. King & Spalding,
467 U. S. 69, 75 (1984)). If Kentucky’s facially discrimina
tory plan is good public policy, the answer is not for this
Court to ignore its precedents and the plain text of the
statute.
For these reasons, in my view, the judgment of the Court
of Appeals should be affirmed and the case remanded for
a determination whether the Commonwealth can assert a
cost-justification defense.