No. 02-4083 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________________________________ DAVID A. SITKO; JOHN J. CAMPS, JR.; LAWANNA J. COX; PATRICIA A. CULLER; BARBARA A. HUTH; TERRY L. JONES; CAROLE A. MEIER; SUSAN K. RUTLEDGE; GLORIA J. SCANLAN; BEVERLY A. STEPHEN; RENEE STEPS; PEGGY A. WEAVER; PEGGY ZIROFF; CLEMENT ZURO, Plaintiffs-Appellants, v. THE GOODYEAR TIRE & RUBBER CO., Defendant-Appellee. ______________________________________________ On Appeal from the United States District Court for the Northern District of Ohio ______________________________________________ Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae Supporting Plaintiffs-Appellants Seeking Reversal ______________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel BENJAMIN N. GUTMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7022 Washington, DC 20507 (202) 663-4728 TABLE OF CONTENTS Table of Authorities ii Statement of Interest 1 Statement of the Issue 2 Summary of Argument 2 Argument 5 The plain language of the ADEA supports the disparate-impact theory 5 The EEOC's regulatory interpretation is entitled to Chevron deference 11 The legislative history is not to the contrary 15 The disparate-impact theory is consistent with Hazen Paper 18 Recognizing the disparate-impact theory under the ADEA is consistent with sound public policy 20 Conclusion 23 Certificate of Compliance 24 Certificate of Service 25 TABLE OF AUTHORITIES Cases Adams v. Fla. Power Corp., 255 F.3d 1322 (11th Cir. 2001), cert. dismissed, 535 U.S. 228 (2002) 1-2, 7, 15, 21 Bank of Am. v. FDIC, 244 F.3d 1309 (11th Cir. 2001), cert. denied, 122 S. Ct. 902 (2002) 13 Bankers Life & Cas. Co. v. United States, 142 F.3d 973 (7th Cir. 1998) 14 Bryant v. City of Chicago, 200 F.3d 1092 (7th Cir. 2000) 7 Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984) 11-14 Christensen v. Harris County, 529 U.S. 576 (2000) 13 Circuit City Stores v. Adams, 532 U.S. 105 (2001) 15-16 Connecticut v. Teal, 457 U.S. 440 (1982) 5 Criley v. Delta Air Lines, 119 F.3d 102 (2d Cir. 1997) 1 Dunn v. CFTC, 519 U.S. 465 (1997) 7 Edelman v. Lynchburg Coll., 122 S. Ct. 1145 (2002) 10-11 EEOC v. Francis W. Parker Sch., 41 F.3d 1073 (7th Cir. 1994) 2, 7 EEOC v. J.C. Penney Co., 843 F.2d 249 (6th Cir. 1988) 8-9 EEOC v. Wyoming, 460 U.S. 226 (1983) 16 Ellis v. United Airlines, 73 F.3d 999 (10th Cir. 1996) 2 Frank v. United Airlines, 216 F.3d 845 (9th Cir. 2000) 1 Griggs v. Duke Power Co., 401 U.S. 424 (1971) 5-7, 22 Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) 4, 18-20 In re Employment Discrimination Litig. Against Ala., 198 F.3d 1305 (11th Cir. 1999) 19 Kelly v. Robinson, 479 U.S. 36 (1986) 16 Kralman v. Ill. Dep't of Veterans' Affairs, 23 F.3d 150 (7th Cir. 1994)12 Lorillard v. Pons, 434 U.S. 575 (1978) 6 Lyon v. Ohio Educ. Ass'n, 53 F.3d 135 (6th Cir. 1995) 2 Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608 (6th Cir. 2002) 13-14 Mullin v. Raytheon Co., 164 F.3d 696 (1st Cir. 1999) 2 Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) 20 Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990) 10 Russello v. United States, 464 U.S. 16 (1983) 9 Smith v. City of Des Moines, 99 F.3d 1466 (8th Cir. 1996) 1 Southwestern Pa. Growth Alliance v. Browner, 144 F.3d 984 (6th Cir. 1998) 14 United States v. Mead Corp., 533 U.S. 218 (2001) 12 Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) 22 Wooden v. Bd. of Educ., 931 F.2d 376 (6th Cir. 1991) 6-7 Statutes Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 passim Civil Rights Act of 1991, 42 U.S.C. § 1981 note 9-10 Equal Pay Act, 29 U.S.C. § 206(d)(1)(iv) 8-9 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(2) 5-6 5 U.S.C. § 553(d) 13 Regulations 29 C.F.R. § 1625.7(d) 1, 3, 12 29 C.F.R. §§ 860.103-.104 (1970) 17, 21 44 Fed. Reg. 71,413 (1979) 13 46 Fed. Reg. 47,724 (1981) 12-13 Fed. R. App. P. 29(a) 2 Other Authorities Black's Law Dictionary (6th ed. 1990) 6 U.S. Dep't of Labor, The Older American Worker: Age Discrimination in Employment: Report of the Secretary of Labor to the Congress Under Section 715 of the Civil Rights Act of 1964 (1965) 17 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission enforces federal employment-discrimination statutes including the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634. Congress has empowered the EEOC to issue regulations carrying out the ADEA. Id. § 628. In this case, the district court effectively invalidated one of the EEOC's longstanding regulatory interpretations of the ADEA, 29 C.F.R. § 1625.7(d), by ruling that there is no disparate-impact theory of discrimination under the statute. In our view, this ruling greatly weakens the protections of the ADEA because it allows employers to use arbitrary employment practices that disproportionately screen out older workers. When these practices have no connection to the requirements of the job, they undermine the purpose of the ADEA — “to promote employment of older persons based on their ability rather than age.” 29 U.S.C. § 621(b). In recent years, the issue of disparate impact under the ADEA has closely divided the federal circuits. Three circuits have held squarely that the disparate-impact theory is available under the ADEA. Frank v. United Airlines, 216 F.3d 845 (9th Cir. 2000); Criley v. Delta Air Lines, 119 F.3d 102 (2d Cir. 1997); Smith v. City of Des Moines, 99 F.3d 1466 (8th Cir. 1996). Four circuits have held that there is no disparate-impact theory under the ADEA. Adams v. Fla. Power Corp., 255 F.3d 1322 (11th Cir. 2001), cert. dismissed, 535 U.S. 228 (2002); Mullin v. Raytheon Co., 164 F.3d 696 (1st Cir. 1999); Ellis v. United Airlines, 73 F.3d 999 (10th Cir. 1996); EEOC v. Francis W. Parker Sch., 41 F.3d 1073 (7th Cir. 1994). This Court has not yet decided the issue definitively. See Lyon v. Ohio Educ. Ass'n, 53 F.3d 135, 139 n.5 (6th Cir. 1995). Because of the importance of this issue, we offer our views to the Court as a United States agency under Fed. R. App. P. 29(a). STATEMENT OF THE ISSUE Does the ADEA prohibit facially neutral employment practices that have a disparate impact on older workers and cannot be justified by business necessity? The EEOC takes no position on any other issue raised in this appeal, including whether the plaintiffs have shown that any of Goodyear's employment practices actually had a disparate impact on its older workers. SUMMARY OF ARGUMENT One well-established method of proving liability in an employment-discrimination cases is through disparate impact. In contrast to disparate treatment, which requires proof through direct or circumstantial evidence that the employer intended to act on the basis of a protected trait such as age, disparate impact requires proof that a facially neutral employment practice disproportionately affects a protected group of workers to their detriment — but not proof that the practice was adopted with a discriminatory motive. If the practice has this disproportionate effect, the employer is liable for discrimination unless it shows that the practice is justified by business necessity. In this case, the question is whether the disparate-impact theory of discrimination is viable under the ADEA. The ADEA prohibits practices that “tend to deprive” any employee of employment opportunities or “adversely affect” the employee because of the employee's age. 29 U.S.C. § 623(a)(2). The ADEA permits a narrow defense to liability for such actions if the employer can prove that they are based on “reasonable factors other than age.” 29 U.S.C. § 623(f)(1). Together, these provisions undoubtedly establish the disparate-impact theory under the ADEA and the business-necessity defense. But even if the meaning of these provisions were not deemed plain on its face, this Court must give Chevron deference to the EEOC's regulation — codified at 29 C.F.R. § 1625.7(d) — interpreting the ADEA as embracing the disparate-impact theory. Congress has delegated to the EEOC rulemaking authority under the ADEA. 29 U.S.C. § 628. Because the EEOC followed notice-and-comment procedures in developing its regulatory interpretation, this Court should defer to the agency's permissible construction of the statutory language. None of the reasons cited by the district court for rejecting the EEOC's approach come close to overcoming Chevron deference. The Department of Labor report cited by the court — which was not adopted by Congress — does not unambiguously signal a congressional intent to reject the disparate-impact theory. To the contrary, the Department's earliest interpretations of the ADEA recognize the viability of the disparate-impact theory. Nor can any conclusion be drawn from the Supreme Court's opinion in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), because the Court explicitly left the issue of disparate impact under the ADEA — which had not been raised in that case — unresolved. Finally, considerations of public policy weight in favor of recognizing the disparate-impact theory. The disparate-impact theory serves a vital role in preventing arbitrary employment practices that disadvantage protected workers without serving employers' legitimate business interests. These practices are just as pernicious when the protected group is older workers as when it is a racial minority. ARGUMENT A. The plain language of the ADEA supports the disparate-impact theory. The ADEA makes it unlawful for an employer “to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age.” 29 U.S.C. § 623(a)(2). That language — “tend to deprive” and “otherwise adversely affect” — on its face supports a disparate-impact theory. The language in the ADEA, moreover, closely tracks the language in Title VII's parallel provision. Although addressing different bases for discrimination, Title VII also makes it unlawful for an employer “to limit, segregate, or classify his employees” in any way “which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's” protected traits. 42 U.S.C. § 2000e-2(a)(2). In Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971), the Supreme Court interpreted that provision as supporting a disparate-impact theory under Title VII, ruling that “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” See also Connecticut v. Teal, 457 U.S. 440, 448 (1982) (noting that a “disparate-impact claim reflects the language of” § 2000e-2(a)(2)). Because the “prohibitions of the ADEA were derived in haec verba from Title VII,” Lorillard v. Pons, 434 U.S. 575, 584 (1978), the ADEA should be construed in the same fashion as Title VII on this point. Although the district court recognized this parallel language in Title VII and the ADEA, it ruled that the ADEA should be read differently because it contains a provision not found in Title VII — the provision that permits an employer to take action otherwise prohibited by the ADEA “where the differentiation is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1). But this provision does not preclude all disparate-impact liability, as the district court apparently believed. It permits an employer to rely on an age-neutral factor when making an employment decision. There is an important restriction, however: The factor relied on must be “reasonable.” “Reasonable” is, by its very nature, a limiting term. Not all conduct is reasonable, and thus not all conduct passes muster under a reasonableness standard. See Black's Law Dictionary 1265 (6th ed. 1990) (“reasonable” means “[f]it and appropriate to the end in view”). Notably, in the context of Title VII the courts have defined business necessity to mean testing or screening devices that are demonstrably a “reasonable measure” of job performance. Griggs, 401 U.S. at 436 (emphasis added); see also Wooden v. Bd. of Educ., 931 F.2d 376, 380 (6th Cir. 1991) (affirming summary judgment in an ADEA disparate-impact case because there was no evidence that the employer's proffered justification was “unsound, unreasonable, or invalid”); Bryant v. City of Chicago, 200 F.3d 1092, 1098-99 (7th Cir. 2000) (“It would be unrealistic to require more than a reasonable measure of job performance. It therefore is a matter of reasonableness, except in cases in which the plaintiff can show that the employer was using the practice as a mere pretext for discrimination.”). Thus, as some jurists have recognized, “reasonable” in § 623(f)(1) is logically read in context as “a statutory description of the business necessity defense.” Adams, 255 F.3d at 1327 (Barkett, J., concurring specially); see also Francis W. Parker Sch., 41 F.3d at 1080 (Cudahy, J., dissenting). If § 623(f)(1) exempted all age-neutral practices from the ADEA, the term “reasonable” would be meaningless. See Dunn v. CFTC, 519 U.S. 465, 472 (1997) (“[L]egislative enactments should not be construed to render their provisions mere surplusage.”). The more logical interpretation of the provision is that Congress intended to set some limits on the use of age-neutral factors that have an adverse effect on older workers, in keeping with the type of business-necessity justification that the Supreme Court first recognized in Griggs. Together, then, the ADEA's provisions codify a disparate-impact theory. A practice that has an adverse effect on older workers is prohibited (§ 623(a)(2)) unless the employer can prove that the practice is justified by business necessity (§ 623(f)(1)). The district court ignored this statutory structure, instead drawing inferences from two other statutes — the Equal Pay Act and the Civil Rights Act of 1991. But neither analogy supports rejecting the plain meaning of the ADEA. To the contrary, lessons drawn from both statutes reinforce the view that the disparate-impact theory is cognizable under the ADEA. The district court's comparison between the ADEA and the Equal Pay Act is doubly inapt. The Equal Pay Act does authorize pay differentials “based on any other factor other than sex.” 29 U.S.C. § 206(d)(1)(iv). But contrary to the district court's understanding, this provision does not entirely preclude the disparate-impact theory under the Equal Pay Act. This Court has held that § 206(d)(1)(iv) “cannot constitute a blanket bar to all claims of wage discrimination based on disparate impact because the ‘factor other than sex' defense does not include literally any other factor, but a factor that, at a minimum, was adopted for a legitimate business reason.” EEOC v. J.C. Penney Co., 843 F.2d 249, 253 (6th Cir. 1988). Thus, drawing an analogy between the ADEA and the Equal Pay Act would support — not cast doubt on — the disparate-impact theory under the ADEA. But more importantly, there is a critical distinction between the parallel provisions of the ADEA and the Equal Pay Act: The word “reasonable” is not used in the Equal Pay Act, but it is in the ADEA. This distinction cannot be ascribed to “a simple mistake in draftsmanship.” Russello v. United States, 464 U.S. 16, 23 (1983) (Congress is presumed to act “intentionally and purposely in the disparate inclusion or exclusion” of language in related statutory provisions). The ADEA was passed four years after the Equal Pay Act. Congress could have said in the ADEA what it said in the Equal Pay — that it is lawful for an employer to rely on “any other factor other than age.” Congress chose not to do so. Instead, it provided a more limited defense for “reasonable” factors other than age. Even if the Equal Pay Act were construed to preclude the disparate-impact theory, that would not foreclose the theory under the ADEA. And because this Court has held that even the more general language in the Equal Pay Act embraces a disparate-impact theory by requiring that the employer demonstrate a “legitimate business reason,” J.C. Penney, 843 F.2d at 253, the narrower defense in the ADEA must be read to codify an even stronger form of disparate impact. The district court's reliance on the Civil Rights Act of 1991 — which explicitly added a disparate-impact provision to Title VII but not the ADEA — is similarly misplaced. There are two problems with drawing the conclusion that the Act signaled Congress's understanding that a disparate-impact theory is not available under the ADEA. First, subsequent legislative history of this kind is a “hazardous basis for inferring the intent of an earlier Congress.” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (internal quotation marks omitted). Second, Congress did not add a disparate-impact cause of action to Title VII. Congress merely added language to Title VII clarifying the burden-shifting framework applicable to Title VII claims brought under a disparate-impact theory. See Civil Rights Act of 1991 § 3(3), 42 U.S.C. § 1981 note (stating that the amendment merely “confirm[ed] statutory authority and provide[d] statutory guidelines for the adjudication of disparate impact suits under title VII”). There was no need for Congress to add a provision of this kind to the ADEA, because the ADEA — in contrast to Title VII — already had the reasonable-factors-other-than-age provision. As explained below, the EEOC's regulation has long interpreted that provision as adopting a business-necessity defense to claims of discrimination based on a disparate-impact theory, and until 1994 no appellate court had held to the contrary. Congress was presumably aware of the long history of this issue under the ADEA and — quite reasonably — saw no reason to address the point under the ADEA. Cf. Edelman v. Lynchburg Coll., 122 S. Ct. 1145, 1152 (2002) (“By amending the law without repudiating the regulation, Congress suggests its consent to the Commission's practice.” (internal quotation marks omitted)). Like Title VII, the ADEA reaches conduct that “otherwise adversely affect[s]” an individual's “status as an employee.” 29 U.S.C. § 623(a)(2). In contrast to the Equal Pay Act, the ADEA explicitly requires that the age-neutral factors relied upon by the employer be “reasonable.” Given the parallels between the substantive provisions of the ADEA and Title VII and the critical textual distinction between the provisions of the ADEA and the Equal Pay Act, the best understanding of the ADEA is that it codifies the disparate-impact theory with its exception for business necessity. B. The EEOC's regulatory interpretation is entitled to Chevron deference. But even if there were some other plausible way to read these provisions of the ADEA, the disparate-impact framework would be at least a permissible construction of the statute. This Court must therefore defer under Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984), to the EEOC's longstanding regulatory interpretation. Since 1981 — shortly after assuming responsibility for enforcing the ADEA as part of a reorganization of the executive branch — the EEOC has by regulation taken the position that a disparate-impact theory is cognizable under the ADEA. 46 Fed. Reg. 47,724 (1981). The regulation interprets the statutory phrase “reasonable factors other than age,” stating that “[w]hen an employment practice, including a test, is claimed as a basis for different treatment of employees or applicants for employment on the grounds that it is a ‘factor other than' age, and such a practice has an adverse impact on individuals within the protected age group, it can only be justified as a business necessity.” 29 C.F.R. § 1625.7(d). The EEOC's regulatory interpretation of the ADEA is entitled to full Chevron deference, since the ADEA — unlike Title VII — provides the EEOC with substantive rulemaking authority. 29 U.S.C. § 628; Kralman v. Ill. Dep't of Veterans' Affairs, 23 F.3d 150, 155 (7th Cir. 1994) (“Because the EEOC is the primary agency charged with implementing the ADEA, its interpretation is entitled to great deference [under Chevron].”). The disparate-impact regulation was issued after notice-and-comment procedures, and the Commission made changes to the regulation in response to public comment. 46 Fed. Reg. at 47,725. Thus, the regulation was the product of a “relatively formal administrative procedure” reflecting the kind of careful “deliberation” that supports a claim for Chevron deference. United States v. Mead Corp., 533 U.S. 218, 230 (2001); see also Christensen v. Harris County, 529 U.S. 576, 587 (2000) (“Of course, the framework of deference set forth in Chevron does apply to an agency interpretation contained in a regulation.”). Although the EEOC characterized the regulation as an “interpretive rule[] or statement[] of policy,” 46 Fed. Reg. at 47,724, Chevron deference is nevertheless appropriate. This Court has given Chevron deference to an agency's “Policy Interpretation” when it was developed through a formal notice-and-comment procedure. Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 615 (6th Cir. 2002). As in this case, the agency in Miami deemed its regulation an interpretive rule or statement of policy, thereby invoking an exception to the 30-day delay in effective date required by 5 U.S.C. § 553(d). Compare 44 Fed. Reg. 71,413, 71,413 (1979) (noting the effective date of December 11, 1979, the same as the date of the notice, for the Miami policy interpretation), with 46 Fed. Reg. at 47,724 (noting application of the exception for the ADEA regulation). Nonetheless, because the agency in Miami chose to follow a formal notice-and-comment procedure, this Court concluded that full Chevron deference was required. Miami Univ. Wrestling Club, 302 F.3d at 615; see also Bank of Am. v. FDIC, 244 F.3d 1309, 1322 (11th Cir. 2001) (applying Chevron to uphold an FDIC interpretive rule that was developed through notice-and-comment procedures), cert. denied, 122 S. Ct. 902 (2002); Bankers Life & Cas. Co. v. United States, 142 F.3d 973, 980 (7th Cir. 1998) (“When an agency undertakes notice and comment procedures it elevates the status of a regulation above mere interpretation.”). Likewise, here the EEOC had full enforcement authority under the ADEA, including substantive rulemaking authority, and issued the regulations through formal notice-and-comment procedures. Full Chevron deference is proper. Because the EEOC's regulation falls within the scope of Chevron, this Court must give “controlling weight” to it unless it is “arbitrary, capricious, or manifestly contrary to” the statute. Miami Univ. Wresting Club, 302 F.3d at 615; cf. Southwestern Pa. Growth Alliance v. Browner, 144 F.3d 984, 988 (6th Cir. 1998) (“To uphold [the agency's] interpretation of a statute, the Court need not find that it is the only permissible construction that [the agency] might have adopted but only that . . . [it] is a sufficiently rational one to preclude a court from substituting its judgment for that of [the agency].” (quotation marks omitted)). At the very least, the ADEA does not unambiguously preclude the disparate-impact theory. And given the strong textual argument for the EEOC's view, this Court should defer to the EEOC's interpretation. C. The legislative history is not to the contrary. The statute's text notwithstanding, the district court found support for a more restrictive reading of the ADEA's protections in a report by the Secretary of Labor issued two years before the ADEA was enacted. The district court followed the courts of appeals that have read the report as “recommend[ing] that Congress ban arbitrary discrimination, such as disparate treatment based on stereotypical perceptions of the elderly, but that factors affecting older workers, such as policies with disparate impact, be addressed in alternative ways.” Adams, 255 F.3d at 1325. But contrary to this view, the legislative history does not support a blanket rejection of the disparate-impact theory under the ADEA. To begin with, this history comes from an external source. It is not contained in a committee report; nor is it set forth in the floor statement of a sponsor or member. As the Supreme Court recently noted, “Legislative history is problematic even when the attempt is to draw inferences from the intent of duly appointed committees of the Congress. It becomes far more so when we consult sources still more steps removed from the full Congress.” Circuit City Stores v. Adams, 532 U.S. 105, 120 (2001). Even assuming that the “precise intent” of an external source can be determined — a point “doubtful” as a “general rule” — one “ought not attribute to Congress an official purpose” based on the content of external proposals for legislative change. Id.; see also Kelly v. Robinson, 479 U.S. 36, 51 n.13 (1986) (refusing to attach “any significance” to statements made in a “Bankruptcy Laws Commission Report” where the statements in question were not included “in the official Senate and House Reports”). No doubt, the Secretary of Labor's report played an important role in the legislative deliberations that led to enacting the ADEA. See EEOC v. Wyoming, 460 U.S. 226, 230-31 (1983). But Congress passed its own statute; it did not enact the report into law. It is the very function of Congress “to consult political forces and then decide how best to resolve conflicts in the course of writing the objective embodiments of the law we know as statutes.” Circuit City, 532 U.S. at 120. Without some specific evidence that Congress had the same understanding of the report as the district court and acted on the basis of that understanding in drafting the ADEA, it is speculative — at best — to read anything of value into the report. In any event, the report — carefully read — does not reflect an intent to place all age-neutral practices, regardless of their impact on older workers, beyond the reach of the ADEA. The report makes the obvious point that any age-discrimination law should focus on “arbitrary” discrimination against older workers. U.S. Dep't of Labor, The Older American Worker: Age Discrimination in Employment: Report of the Secretary of Labor to the Congress Under Section 715 of the Civil Rights Act of 1964, at 21-22 (1965). But a practice that adversely affects older workers may very well constitute “arbitrary” age discrimination if it cannot be justified as a business necessity. This view is supported by the interpretive regulations that the Department of Labor — the same agency that authored this report — issued shortly after the ADEA became effective, which recognized that the ADEA prohibited some age-neutral practices that had an adverse effect on older workers. See 29 C.F.R. §§ 860.103-.104 (1970). Those regulations stated that age-neutral evaluation factors “such as quantity or quality of production, or education level, would be acceptable bases for differentiation when, in the individual case, such factors are shown to have a valid relationship to job requirements.” Id. § 806.103(f)(2). Age-neutral physical-fitness standards were permissible if “such standards are reasonably necessary for the specific work to be performed.” Id. § 860.103(f)(1)(i). The EEOC's current regulation is consistent with these earlier pronouncements, which reflect the contemporaneous views of the agency initially entrusted with enforcing the ADEA. It is virtually impossible to reconcile the view that the Secretary of Labor's report is an authoritative rejection of the disparate-impact theory under the ADEA with the reality that the Department of Labor formally approved a disparate-impact interpretation of the final version of the statute. Undoubtedly, Congress intended to place some age-neutral practices beyond the reach of the ADEA. That is the whole point of the reasonable-factors-other-than-age provision. Nothing in the ADEA's legislative history, however, compels the conclusion that Congress — contrary to the plain language of the reasonable-factors provision — sought to exempt all neutral employment practices from the reach of the Act. D. The disparate-impact theory is consistent with Hazen Paper. In ruling that the disparate-impact theory is not cognizable under the ADEA, the district court in this case relied heavily on the Supreme Court's decision in Hazen Paper Co. v. Biggins. The court has misread Hazen Paper. The Hazen Paper Court explicitly declined to rule — one way or the other — on the existence of the disparate-impact theory under the ADEA. 507 U.S. at 610 (“[W]e have never decided whether a disparate impact theory of liability is available under the ADEA, and we need not do so here.” (citations omitted)). Even the separate concurrence by three Justices noted only that there were “substantial arguments that it is improper to carry over disparate impact analysis from Title VII to the ADEA,” id. at 618 (emphasis added), without definitively opining on whether those arguments are valid. The statements in the Court's decision must be viewed in that light. It is no doubt true that under a disparate-treatment theory, an employer does not violate the ADEA when it is “wholly motivated by factors other than age.” Id. at 611. It is also no doubt true that under a disparate-treatment theory, “a decision by a company to fire an older employee because he has nine-plus years of service and therefore is ‘close to vesting'” is not actionable absent specific proof of a discriminatory bias. Id. at 612-13. These truisms speak to the nature of the disparate-treatment theory under the ADEA; they do not call into question the viability of a disparate-impact theory of liability. The Court did suggest in Hazen Paper that disparate treatment “captures the essence of what Congress sought to prohibit in the ADEA.” Id. at 610. But this does not foreclose recognizing a disparate-impact theory. Indeed, it would probably be fair to say that disparate treatment also captures the essence of what Congress sought to prohibit in Title VII. Cf. In re Employment Discrimination Litig. Against Ala., 198 F.3d 1305, 1321 (11th Cir. 1999) (characterizing the disparate-impact theory as a “prophylactic” measure under Title VII). Nonetheless, Title VII plainly embraces the disparate-impact theory. “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparably evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998). Like the parallel provisions of Title VII, the language of the ADEA is broad enough to encompass a disparate-impact theory. The evils addressed by a disparate-impact theory, moreover, are “reasonably comparable” to those addressed by a disparate-treatment theory. As explained below, the disparate-impact theory permits a claimant to attack facially neutral practices that are functionally equivalent to intentional discrimination. Congress may have passed the ADEA to eradicate “inaccurate and stigmatizing [age-based] stereotypes,” Hazen Paper, 507 U.S. at 610, but it understood that arbitrary age discrimination sometimes takes the form of “otherwise desirable practices” that “work to the disadvantage of older workers.” 29 U.S.C. § 621(a)(2). Hazen Paper recognized the primacy of the disparate-treatment theory. It does not deny the existence of the disparate-impact theory. E. Recognizing the disparate-impact theory under the ADEA is consistent with sound public policy. In addition to the sound reasons based on the text and history of the ADEA, there are also important policy reasons for recognizing the disparate-impact theory under the ADEA. There are a number of factors — experience, years of service, salary — that may correlate in some fashion with age. Of course, in some cases — perhaps many — using these factors may be justified as a business necessity. Indeed, disparate impact “is probably a more difficult claim to make under the ADEA than in a race or gender context because the impact of neutral policies which fall disproportionately on class members protected by the ADEA can be proven to be related to legitimate business reasons in more instances than those which might impact other protected groups.” Adams, 255 F.3d at 1327 (Barkett, J., concurring specially). In other cases, however, where no showing of business necessity can be made, these factors may have the effect of arbitrarily screening out a significant number of older workers. For example, as the Department of Labor's regulations recognized, it might be perfectly legitimate for an employer to adopt a strength test for an iron worker's job — even if the effect of doing so is to disqualify a disproportionate number of older workers. 29 C.F.R. § 860.103(f)(1)(ii) (1970). But that would not be true for a sedentary job such as a librarian. In that case, a strength test would be an unreasonable barrier to employment for older workers while serving no legitimate interest of the employer. In recognizing the disparate-impact theory under Title VII, the Supreme Court opined that “good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds' for minority groups and are unrelated to measuring job capability.” Griggs, 401 U.S. at 432. The Court later explained that “the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987 (1988). The Court stressed that discrimination cannot be “adequately policed” through disparate-treatment analysis alone, because “the problem of subconscious stereotypes and prejudices would remain.” Id. at 990. That is equally true under the ADEA, the purpose of which is to “promote employment of older persons based on their ability rather than age.” 29 U.S.C. § 621(b). A blanket rule precluding any use of the disparate-impact theory under the ADEA would deprive plaintiffs of a necessary tool for challenging employment practices that arbitrarily exclude older workers from employment opportunities. CONCLUSION The disparate-impact theory serves a vital role in constraining employers from erecting unreasonable employment barriers for older workers. This Court should defer to the EEOC's regulatory interpretation, which is grounded in the plain text of the ADEA, and reverse the district court's judgment. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel __________________________ BENJAMIN N. GUTMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW, Room 7022 Washington, DC 20507 (202) 663-4728 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 4,841 words. ____________________________ BENJAMIN N. GUTMAN January 22, 2003 CERTIFICATE OF SERVICE I certify that on January 22, 2003, I served copies of this brief by having them delivered overnight, via UPS, to the following: Office of the Clerk United States Court of Appeals for the Sixth Circuit 532 Potter Stewart U.S. Courthouse 100 E. Fifth Street Cincinnati, OH 45202-3988 Thomas R. Crookes Brouse & McDowell 106 S. Main Street Suite 500 First National Tower Akron, OH 44308-1471 John L. Wolfe National City Center 1 Cascade Plaza, Suite 740 Akron, OH 44308-1154 I also certify that on January 22, 2003, I served copies of this brief by having them mailed first-class, postage prepaid, to the following amici: Thomas W. Osborne AARP 601 E Street, NW, Fourth Floor Washington, DC 20049 Cathy Ventrell-Monsees Law Offices 3208 Flushing Meadow Terrace Chevy Chase, MD 20815 ____________________________ BENJAMIN N. GUTMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7022 Washington, DC 20507 (202) 663-4728