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Full Opinion
SMITH ET AL.
v.
CITY OF JACKSON, MISSISSIPPI, ET AL.
Supreme Court of United States.
*229 STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, in which SCALIA, SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion with respect to Part III, in which SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 243. O'CONNOR, J., filed an opinion concurring in the judgment, in which KENNEDY and THOMAS, JJ., joined, post, p. 247. REHNQUIST, C. J., took no part in the decision of the case.
*230 Thomas C. Goldstein argued the cause for petitioners. With him on the briefs were Amy Howe, Pamela S. Karlan, and Dennis L. Horn.
Glen D. Nager argued the cause for respondents. With him on the brief were Michael A. Carvin, Louis K. Fisher, Terry Wallace, and Samuel L. Begley.[*]
JUSTICE STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, and an opinion with respect to Part III, in which JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join.
Petitioners, police and public safety officers employed by the city of Jackson, Mississippi (hereinafter City), contend that salary increases received in 1999 violated the Age Discrimination in Employment Act of 1967 (ADEA) because they were less generous to officers over the age of 40 than to younger officers. Their suit raises the question whether the "disparate-impact" theory of recovery announced in Griggs v. Duke Power Co., 401 U. S. 424 (1971), for cases brought under Title VII of the Civil Rights Act of 1964, is cognizable under the ADEA. Despite the age of the ADEA, it is a question that we have not yet addressed. See Hazen *231 Paper Co. v. Biggins, 507 U. S. 604, 610 (1993); Markham v. Geller, 451 U. S. 945 (1981) (REHNQUIST, J., dissenting from denial of certiorari).
I
On October 1, 1998, the City adopted a pay plan granting raises to all City employees. The stated purpose of the plan was to "attract and retain qualified people, provide incentive for performance, maintain competitiveness with other public sector agencies and ensure equitable compensation to all employees regardless of age, sex, race and/or disability."[1] On May 1, 1999, a revision of the plan, which was motivated, at least in part, by the City's desire to bring the starting salaries of police officers up to the regional average, granted raises to all police officers and police dispatchers. Those who had less than five years of tenure received proportionately greater raises when compared to their former pay than those with more seniority. Although some officers over the age of 40 had less than five years of service, most of the older officers had more.
Petitioners are a group of older officers who filed suit under the ADEA claiming both that the City deliberately discriminated against them because of their age (the "disparate-treatment" claim) and that they were "adversely affected" by the plan because of their age (the "disparate-impact" claim). The District Court granted summary judgment to the City on both claims. The Court of Appeals held that the ruling on the former claim was premature because petitioners were entitled to further discovery on the issue of intent, but it affirmed the dismissal of the disparate-impact claim. 351 F. 3d 183 (CA5 2003). Over one judge's dissent, the majority concluded that disparate-impact claims are categorically unavailable under the ADEA. Both the majority and the dissent assumed that the facts alleged by petitioners would entitle them to relief under the reasoning of Griggs.
*232 We granted the officers' petition for certiorari, 541 U. S. 958 (2004), and now hold that the ADEA does authorize recovery in "disparate-impact" cases comparable to Griggs. Because, however, we conclude that petitioners have not set forth a valid disparate-impact claim, we affirm.
II
During the deliberations that preceded the enactment of the Civil Rights Act of 1964, Congress considered and rejected proposed amendments that would have included older workers among the classes protected from employment discrimination.[2]General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 587 (2004). Congress did, however, request the Secretary of Labor to "make a full and complete study of the factors which might tend to result in discrimination in employment because of age and of the consequences of such discrimination on the economy and individuals affected." § 715, 78 Stat. 265. The Secretary's report, submitted in response to Congress' request, noted that there was little discrimination arising from dislike or intolerance of older people, but that "arbitrary" discrimination did result from certain age limits. Report of the Secretary of Labor, The Older American Worker: Age Discrimination in Employment 5 (June 1965), reprinted in U. S. Equal Employment Opportunity Commission, Legislative History of the Age Discrimination in Employment Act (1981), Doc. No. 5 (hereinafter Wirtz Report). Moreover, the report observed that discriminatory effects resulted from "[i]nstitutional arrangements that indirectly restrict the employment of older workers." Id., at 15.
In response to that report Congress directed the Secretary to propose remedial legislation, see Fair Labor Standards Amendments of 1966, Pub. L. 89-601, § 606, 80 Stat. 845, and *233 then acted favorably on his proposal. As enacted in 1967, § 4(a)(2) of the ADEA, now codified as 29 U. S. C. § 623(a)(2), provided that it shall be unlawful for an employer "to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age ...." 81 Stat. 603. Except for substitution of the word "age" for the words "race, color, religion, sex, or national origin," the language of that provision in the ADEA is identical to that found in § 703(a)(2) of the Civil Rights Act of 1964 (Title VII). Other provisions of the ADEA also parallel the earlier statute.[3] Unlike Title VII, however, §4(f)(1) of the ADEA, 81 Stat. 603, contains language that significantly narrows its coverage by permitting any "otherwise prohibited" action "where the differentiation is based on reasonable factors other than age" (hereinafter RFOA provision).
III
In determining whether the ADEA authorizes disparate-impact claims, we begin with the premise that when Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes. Northcross v. Board of Ed. of Memphis City Schools, 412 U. S. 427, 428 (1973) (per curiam). We have consistently applied *234 that presumption to language in the ADEA that was "derived in haec verba from Title VII." Lorillard v. Pons, 434 U. S. 575, 584 (1978).[4] Our unanimous interpretation of § 703(a)(2) of Title VII in Griggs is therefore a precedent of compelling importance.
In Griggs, a case decided four years after the enactment of the ADEA, we considered whether § 703 of Title VII prohibited an employer "from requiring a high school education or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a longstanding practice of giving preference to whites." 401 U. S., at 425-426. Accepting the Court of Appeals' conclusion that the employer had adopted the diploma and test requirements without any intent to discriminate, we held that good faith "does not redeem employment procedures or testing mechanisms that operate as `built-in headwinds' for minority groups and are unrelated to measuring job capability." Id., at 432.
We explained that Congress had "directed the thrust of the Act to the consequences of employment practices, not simply the motivation." Ibid. We relied on the fact that history is "filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but *235 Congress has mandated the commonsense proposition that they are not to become masters of reality." Id., at 433. And we noted that the Equal Employment Opportunity Commission (EEOC), which had enforcement responsibility, had issued guidelines that accorded with our view. Id., at 433-434. We thus squarely held that § 703(a)(2) of Title VII did not require a showing of discriminatory intent.[5]
While our opinion in Griggs relied primarily on the purposes of the Act, buttressed by the fact that the EEOC had endorsed the same view, we have subsequently noted that our holding represented the better reading of the statutory text as well. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 991 (1988). Neither § 703(a)(2) nor the comparable language in the ADEA simply prohibits actions that "limit, segregate, or classify" persons; rather the language prohibits such actions that "deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's" race or age. Ibid. (explaining that in disparate-impact cases, "the employer's practices may be said to `adversely affect [an individual's status] as an employee'" (alteration in original) (quoting 42 *236 U. S. C. § 2000e-2(a)(2))). Thus the text focuses on the effects of the action on the employee rather than the motivation for the action of the employer.[6]
Griggs, which interpreted the identical text at issue here, thus strongly suggests that a disparate-impact theory should be cognizable under the ADEA.[7] Indeed, for over two decades *237 after our decision in Griggs, the Courts of Appeals uniformly interpreted the ADEA as authorizing recovery on a "disparate-impact" theory in appropriate cases.[8] It was only after our decision in Hazen Paper Co. v. Biggins, 507 U. S. 604 (1993), that some of those courts concluded that the ADEA did not authorize a disparate-impact theory of liability.[9] Our opinion in Hazen Paper, however, did not address or comment on the issue we decide today. In that case, we held that an employee's allegation that he was discharged shortly before his pension would have vested did not state a cause of action under a disparate-treatment theory. The motivating factor was not, we held, the employee's age, but rather his years of service, a factor that the ADEA did not prohibit an employer from considering when terminating *238 an employee. Id., at 612.[10] While we noted that disparate treatment "captures the essence of what Congress sought to prohibit in the ADEA," id., at 610, we were careful to explain that we were not deciding "whether a disparate impact theory of liability is available under the ADEA ...." Ibid. In sum, there is nothing in our opinion in Hazen Paper that precludes an interpretation of the ADEA that parallels our holding in Griggs.
The Court of Appeals' categorical rejection of disparate-impact liability, like JUSTICE O'CONNOR'S, rested primarily on the RFOA provision and the majority's analysis of legislative history. As we have already explained, we think the history of the enactment of the ADEA, with particular reference to the Wirtz Report, supports the pre-Hazen Paper consensus concerning disparate-impact liability. And Hazen Paper itself contains the response to the concern over the RFOA provision.
The RFOA provision provides that it shall not be unlawful for an employer "to take any action otherwise prohibited under subsectio[n] (a)... where the differentiation is based on reasonable factors other than age [discrimination] ...." 81 Stat. 603. In most disparate-treatment cases, if an employer in fact acted on a factor other than age, the action would not be prohibited under subsection (a) in the first place. See Hazen Paper, 507 U. S., at 609 ("[T]here is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee's age"). In those disparate-treatment cases, such as in Hazen Paper itself, the RFOA provision is simply unnecessary to avoid liability under the ADEA, since there was no prohibited action in the first place. The RFOA provision is not, as JUSTICE O'CONNOR suggests, a "safe harbor from liability," post, at 252 (emphasis deleted), since there would *239 be no liability under § 4(a). See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 254 (1981) (noting, in a Title VII case, that an employer can defeat liability by showing that the employee was rejected for "a legitimate, nondiscriminatory reason" without reference to an RFOA provision).
In disparate-impact cases, however, the allegedly "otherwise prohibited" activity is not based on age. Ibid. ("[C]laims that stress `disparate impact' [by contrast] involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another ..." (quoting Teamsters v. United States, 431 U. S. 324, 335-336, n. 15 (1977))). It is, accordingly, in cases involving disparate-impact claims that the RFOA provision plays its principal role by precluding liability if the adverse impact was attributable to a nonage factor that was "reasonable." Rather than support an argument that disparate impact is unavailable under the ADEA, the RFOA provision actually supports the contrary conclusion.[11]
Finally, we note that both the Department of Labor, which initially drafted the legislation, and the EEOC, which is the agency charged by Congress with responsibility for implementing the statute, 29 U. S. C. § 628, have consistently interpreted the ADEA to authorize relief on a disparate-impact theory. The initial regulations, while not mentioning disparate impact by name, nevertheless permitted such claims if the employer relied on a factor that was not related to age. 29 CFR § 860.103(f)(1)(i) (1970) (barring physical fitness requirements that were not "reasonably necessary for the specific *240 work to be performed"). See also § 1625.7 (2004) (setting forth the standards for a disparate-impact claim).
The text of the statute, as interpreted in Griggs, the RFOA provision, and the EEOC regulations all support petitioners' view. We therefore conclude that it was error for the Court of Appeals to hold that the disparate-impact theory of liability is categorically unavailable under the ADEA.
IV
Two textual differences between the ADEA and Title VII make it clear that even though both statutes authorize recovery on a disparate-impact theory, the scope of disparate-impact liability under ADEA is narrower than under Title VII. The first is the RFOA provision, which we have already identified. The second is the amendment to Title VII contained in the Civil Rights Act of 1991, 105 Stat. 1071. One of the purposes of that amendment was to modify the Court's holding in Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989), a case in which we narrowly construed the employer's exposure to liability on a disparate-impact theory. See Civil Rights Act of 1991, § 2, 105 Stat. 1071. While the relevant 1991 amendments expanded the coverage of Title VII, they did not amend the ADEA or speak to the subject of age discrimination. Hence, Wards Cove's pre-1991 interpretation of Title VII's identical language remains applicable to the ADEA.
Congress' decision to limit the coverage of the ADEA by including the RFOA provision is consistent with the fact that age, unlike race or other classifications protected by Title VII, not uncommonly has relevance to an individual's capacity to engage in certain types of employment. To be sure, Congress recognized that this is not always the case, and that society may perceive those differences to be larger or more consequential than they are in fact. However, as Secretary Wirtz noted in his report, "certain circumstances ... unquestionably affect older workers more strongly, as a *241 group, than they do younger workers." Wirtz Report 11. Thus, it is not surprising that certain employment criteria that are routinely used may be reasonable despite their adverse impact on older workers as a group. Moreover, intentional discrimination on the basis of age has not occurred at the same levels as discrimination against those protected by Title VII. While the ADEA reflects Congress' intent to give older workers employment opportunities whenever possible, the RFOA provision reflects this historical difference.
Turning to the case before us, we initially note that petitioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers. They have not identified any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers. As we held in Wards Cove, it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is "`responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.'" 490 U. S., at 656 (emphasis added) (quoting Watson, 487 U. S., at 994). Petitioners have failed to do so. Their failure to identify the specific practice being challenged is the sort of omission that could "result in employers being potentially liable for `the myriad of innocent causes that may lead to statistical imbalances ....'" 490 U. S., at 657. In this case not only did petitioners thus err by failing to identify the relevant practice, but it is also clear from the record that the City's plan was based on reasonable factors other than age.
The plan divided each of five basic positions police officer, master police officer, police sergeant, police lieutenant, and deputy police chief into a series of steps and half-steps. The wage for each range was based on a survey of comparable communities in the Southeast. Employees were then assigned a step (or half-step) within their position that corresponded *242 to the lowest step that would still give the individual a 2% raise. Most of the officers were in the three lowest ranks; in each of those ranks there were officers under age 40 and officers over 40. In none did their age affect their compensation. The few officers in the two highest ranks are all over 40. Their raises, though higher in dollar amount than the raises given to junior officers, represented a smaller percentage of their salaries, which of course are higher than the salaries paid to their juniors. They are members of the class complaining of the "disparate impact" of the award.
Petitioners' evidence established two principal facts: First, almost two-thirds (66.2%) of the officers under 40 received raises of more than 10% while less than half (45.3%) of those over 40 did.[12] Second, the average percentage increase for the entire class of officers with less than five years of tenure was somewhat higher than the percentage for those with more seniority.[13] Because older officers tended to occupy more senior positions, on average they received smaller increases when measured as a percentage of their salary. The basic explanation for the differential was the City's perceived need to raise the salaries of junior officers to make them competitive with comparable positions in the market.
Thus, the disparate impact is attributable to the City's decision to give raises based on seniority and position. Reliance on seniority and rank is unquestionably reasonable given the City's goal of raising employees' salaries to match those in surrounding communities. In sum, we hold that the City's decision to grant a larger raise to lower echelon employees for the purpose of bringing salaries in line with that of surrounding police forces was a decision based on a "reasonable facto[r] other than age" that responded to the City's legitimate goal of retaining police officers. Cf. MacPherson v. University of Montevallo, 922 F. 2d 766, 772 (CA11 1991).
*243 While there may have been other reasonable ways for the City to achieve its goals, the one selected was not unreasonable. Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement.
Accordingly, while we do not agree with the Court of Appeals' holding that the disparate-impact theory of recovery is never available under the ADEA, we affirm its judgment.
It is so ordered.
THE CHIEF JUSTICE took no part in the decision of this case.
JUSTICE SCALIA, concurring in part and concurring in the judgment.
I concur in the judgment of the Court, and join all except Part III of its opinion. As to that Part, I agree with all of the Court's reasoning, but would find it a basis, not for independent determination of the disparate-impact question, but for deferral to the reasonable views of the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). See General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 601-602 (2004) (SCALIA, J., dissenting).
This is an absolutely classic case for deference to agency interpretation. The Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. § 621 et seq., confers upon the EEOC authority to issue "such rules and regulations as it may consider necessary or appropriate for carrying out" the ADEA. § 628. Pursuant to this authority, the EEOC promulgated, after notice-and-comment rulemaking, see 46 Fed. Reg. 47724, 47727 (1981), a regulation that reads as follows:
*244 "When an employment practice, including a test, is claimed as a basis for different treatment of employees or applicants for employment on the grounds that it is a `factor other than' age, and such a practice has an adverse impact on individuals within the protected age group, it can only be justified as a business necessity." 29 CFR § 1625.7(d) (2004).
The statement of the EEOC which accompanied publication of the agency's final interpretation of the ADEA said the following regarding this regulation: "Paragraph (d) of § 1625.7 has been rewritten to make it clear that employment criteria that are age-neutral on their face but which nevertheless have a disparate impact on members of the protected age group must be justified as a business necessity. See Laugesen v. Anaconda Corp., 510 F. 2d 307 (6th Cir. 1975); Griggs v. Duke Power Co., 401 U. S. 424 (1971)." 46 Fed. Reg., at 47725. The regulation affirmed, moreover, what had been the longstanding position of the Department of Labor, the agency that previously administered the ADEA, see ante, at 239; 29 CFR § 860.103(f)(1)(i) (1970). And finally, the Commission has appeared in numerous cases in the lower courts, both as a party and as amicus curiae, to defend the position that the ADEA authorizes disparate-impact claims.[1] Even under the unduly constrained standards of agency deference recited in United States v. Mead Corp., 533 *245 U.S. 218 (2001), the EEOC's reasonable view that the ADEA authorizes disparate-impact claims is deserving of deference. Id., at 229-231, and n. 12. A fortiori, it is entitled to deference under the pre-Mead formulation of Chevron, to which I continue to adhere. See 533 U. S., at 256-257 (SCALIA, J., dissenting).
JUSTICE O'CONNOR both denies that the EEOC has taken a position on the existence of disparate-impact claims and asserts that, even if it has, its position does not deserve deference. See post, at 264-267 (opinion concurring in judgment). The first claim cannot be squared with the text of the EEOC's regulation, quoted above. This cannot possibly be read as agnostic on the question whether the ADEA prohibits employer practices that have a disparate impact on the aged. It provides that such practices "can only be justified as a business necessity," compelling the conclusion that, absent a "business necessity," such practices are prohibited.[2]
JUSTICE O'CONNOR would not defer to the EEOC regulation, even if it read as it does, because, she says, the regulation "does not purport to interpret the language of § 4(a) at all," but is rather limited to an interpretation of the "reasonable factors other than age" (RFOA) clause of § 4(f)(1) of the ADEA, which she says is not at issue. Post, at 265. This argument assumes, however, that the RFOA clause operates independently of the remainder of the ADEA. It does not. Section 4(f)(1) provides, in relevant part:
*246 "It shall not be unlawful for an employer, employment agency, or labor organization ... to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section ... where the differentiation is based on reasonable factors other than age ...." 29 U.S. C. § 623(f)(1) (emphasis added).
As this text makes clear, the RFOA defense is relevant only as a response to employer actions "otherwise prohibited" by the ADEA. Hence, the unavoidable meaning of the regulation at issue is that the ADEA prohibits employer actions that have an "adverse impact on individuals within the protected age group." 29 CFR § 1625.7(d) (2004). And, of course, the only provision of the ADEA that could conceivably be interpreted to effect such a prohibition is § 4(a)(2) the provision that JUSTICE O'CONNOR maintains the EEOC "does not purport to interpret ... at all." Post, at 265.[3]
*247 Lastly, JUSTICE O'CONNOR argues that the EEOC's interpretation of what is "otherwise prohibited" by the ADEA is not entitled to deference because the Court concludes that the same regulation's interpretation of another termthe term "reasonable factors other than age," which the regulation takes to include only "business necessity" is unreasonable. Post, at 266. Her logic seems to be that, because the two interpretations appear in the same paragraph, they should stand or fall together. She cites no case for this proposition, and it makes little sense. If the two simultaneously adopted interpretations were contained in distinct paragraphs, the invalidation of one would not, of course, render the other infirm. (JUSTICE O'CONNOR does not mean to imply, I assume, that our rejection of the EEOC's application of the phrase "`reasonable factors other than age'" to disparate-impact claims in paragraph (d) of § 1625.7 relieves the lower courts of the obligation to defer to the EEOC's other applications of the same phrase in paragraph (c) or (e)). I can conceive no basis for a different rule simply because the two simultaneously adopted interpretations appear in the same paragraph.
The EEOC has express authority to promulgate rules and regulations interpreting the ADEA. It has exercised that authority to recognize disparate-impact claims. And, for the reasons given by the plurality opinion, its position is eminently reasonable. In my view, that is sufficient to resolve this case.
JUSTICE O'CONNOR, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, concurring in the judgment.
"Disparate treatment ... captures the essence of what Congress sought to prohibit in the [Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S. C. § 621 et seq.] It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age." Hazen Paper *248 Co. v. Biggins, 507 U. S. 604, 610 (1993). In the nearly four decades since the ADEA's enactment, however, we have never read the statute to impose liability upon an employer without proof of discriminatory intent. See ibid.; Markham v. Geller, 451 U. S. 945 (1981) (REHNQUIST, J., dissenting from denial of certiorari). I decline to join the Court in doing so today.
I would instead affirm the judgment below on the ground that disparate impact claims are not cognizable under the ADEA. The ADEA's text, legislative history, and purposes together make clear that Congress did not intend the statute to authorize such claims. Moreover, the significant differences between the ADEA and Title VII of the Civil Rights Act of 1964 counsel against transposing to the former our construction of the latter in Griggs v. Duke Power Co., 401 U. S. 424 (1971). Finally, the agencies charged with administering the ADEA have never authoritatively construed the statute's prohibitory language to impose disparate impact liability. Thus, on the precise question of statutory interpretation now before us, there is no reasoned agency reading of the text to which we might defer.
I
A
Our starting point is the statute's text. Section 4(a) of the ADEA makes it unlawful for an employer:
"(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; [or]
"(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age ...." 29 U. S. C. § 623(a).
*249 Neither petitioners nor the plurality contend that the first paragraph, § 4(a)(1), authorizes disparate impact claims, and I think it obvious that it does not. That provision plainly requires discriminatory intent, for to take an action against an individual "because of such individual's age" is to do so "by reason of" or "on account of" her age. See Webster's Third New International Dictionary 194 (1961); see also Teamsters v. United States, 431 U. S. 324, 335-336, n. 15 (1977) ("`Disparate treatment' ... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their [protected characteristic]. Proof of discriminatory motive is critical" (emphasis added)).
Petitioners look instead to the second paragraph, § 4(a)(2), as the basis for their disparate impact claim. But petitioners' argument founders on the plain language of the statute, the natural reading of which requires proof of discriminatory intent. Section 4(a)(2) uses the phrase "because of ... age" in precisely the same manner as does the preceding paragraph to make plain that an employer is liable only if its adverse action against an individual is motivated by the individual's age.
Paragraphs (a)(1) and (a)(2) do differ in one informative respect. The employer actions targeted by paragraph (a)(1) i. e., refusing to hire, discharging, or discriminating against are inherently harmful to the targeted individual. The actions referred to in paragraph (a)(2), on the other hand i.e., limiting, segregating, or classifying are facially neutral. Accordingly, paragraph (a)(2) includes additional language which clarifies that, to give rise to liability, the employer's action must actually injure someone: The decision to limit, segregate, or classify employees must "deprive or tend to deprive [an] individual of employment opportunities or otherwise adversely affect his status as an employee." That distinction aside, the structures of paragraphs (a)(1) and (a)(2) are otherwise identical. Each paragraph prohibits an *250 employer from taking specified adverse actions against an individual "because of such individual's age."
The plurality instead reads paragraph (a)(2) to prohibit employer actions that "adversely affect [an individual's] status as an employe[e] because of such individual's age." Under this reading, "because of ... age" refers to the cause of the adverse effect rather than the motive for the employer's action. See ante, at 235-236. This reading is unpersuasive for two reasons. First, it ignores the obvious parallel between paragraphs (a)(1) and (a)(2) by giving the phrase "because of such individual's age" a different meaning in each of the two paragraphs. And second, it ignores the drafters' use of a comma separating the "because of ... age" clause from the preceding language. That comma makes plain that the "because of ... age" clause should not be read, as the plurality would have it, to modify only the "adversely affect" phrase. See, e. g., United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989) (interpreting statute in light of the drafters' use of a comma to set aside a particular phrase from the following language); see also B. Garner, A Dictionary of Modern Legal Usage 101 (2d ed. 1995) ("Generally, the word because should not follow a comma"). Rather, the "because of ... age" clause is set aside to make clear that it modifies the entirety of the preceding paragraph: An employer may not, because of an individual's age, limit, segregate, or classify his employees in a way that harms that individual.
The plurality also argues that its reading is supported by the supposed "incongruity" between paragraph (a)(2)'s use of the plural in referring to the employer's actions ("limit, segregate, or classify his employees") and its use of the singular in the "because of such individual's age" clause. (Emphases added.) Ante, at 236, n. 6. Not so. For the reasons just stated, the "because of ... age" clause modifies all of the preceding language of paragraph (a)(2). That preceding language is phrased in both the plural (insofar as it *251 refers to the employer's actions relating to employees) and the singular (insofar as it requires that such action actually harm an individual). The use of the singular in the "because of ... age" clause simply makes clear that paragraph (a)(2) forbids an employer to limit, segregate, or classify his employees if that decision is taken because of even one employee's age and that individual (alone or together with others) is harmed.
B
While § 4(a)(2) of the ADEA makes it unlawful to intentionally discriminate because of age, § 4(f)(1) clarifies that "[i]t shall not be unlawful for an employer ... to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section ... where the differentiation is based on reasonable factors other than age ...." 29 U. S. C. § 623(f)(1). This "reasonable factors other than age" (RFOA) provision "insure[s] that employers [are] permitted to use neutral criteria" other than age, EEOC v. Wyoming, 460 U. S. 226, 232-233 (1983), even if this results in a disparate adverse impact on older workers. The provision therefore expresses Congress' clear intention that employers not be subject to liability absent proof of intentional age-based discrimination. That policy, in my view, cannot easily be reconciled with the plurality's expansive reading of § 4(a)(2).
The plurality, however, reasons that the RFOA provision's language instead confirms that § 4(a) authorizes disparate impact claims. If § 4(a) prohibited only intentional discrimination, the argument goes, then the RFOA provision would have no effect because any action based on a factor other than age would not be "`otherwise prohibited'" under § 4(a). See ante, at 238-239. Moreover, the plurality says, the RFOA provision applies only to employer actions based on reasonable factors other than age so employers may still be held liable for actions based on unreasonable nonage factors. See ante, at 239.
*252 This argument misconstrues the purpose and effect of the RFOA provision. Discriminatory intent is required under § 4(a), for the reasons discussed above. The role of the RFOA provision is to afford employers an independent safe harbor from liability. It provides that, where a plaintiff has made out a prima facie case of intentional age discrimination under § 4(a) thus "creat[ing] a presumption that the employer unlawfully discriminated against the employee," Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 254 (1981) the employer can rebut this case by producing evidence that its action was based on a reasonable nonage factor. Thus, the RFOA provision codifies a safe harbor analogous to the "legitimate, nondiscriminatory reason" (LNR) justification later recognized in Title VII suits. Ibid.; McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973).
Assuming the McDonnell Douglas framework applies to ADEA suits, see O'Connor v. Consolidated Coin Caterers Corp., 517 U. S. 308, 311 (1996), this "rebuttal" function of the RFOA provision is arguably redundant with the judicially established LNR justification. See ante, at 238-239. But, at most, that merely demonstrates Congress' abundance of caution in codifying an express statutory exemption from liability in the absence of discriminatory intent. See Fort Stewart Schools v. FLRA, Additional Information