CASE 9.2 SMITH V. CITY OF JACKSON, MISSISSIPPI 544 US. 228 (2005] [The City of Jackson, Mississippi adopted a pay plan in May 1999 that was intended to bring the starting salaries of police ofcers up to the average of other police departments in the region. The city granted raises to all police oHicers, but the officers with less than Five years of tenure received proportionately greater raises than officers with more than ve years oflaenure. Most of the officers who were older than 40 years of age had more than five years tenure. A group of older officers filed suit against the city, alleging that the differential raise policy violated the Age Discrimination in Employment Act. They alleged that the city had engaged in intentional age discrimination, and also that the pay raise policy had a disparate impact against the older ofcers. The trial court dismissed the suit, and the U.S. Court of Appeals affirmed the dismissal. The officers then appealed to the U.S. Supreme Court] Sievens, J. [This] suit raises the question whether the \"disparate- impact\" theory of recovery announced in Gn'ggs v. Duke Power Co. for cases brought under Title VII of the Civil Rights Act of 1964, is [available] under the ADEA... As enacted in 1967, 4(a)(2) of the ADEA .. . 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 opportuni- ties or otherwise adversely affect his status as an employee, because of such individual's age. ...\" Except For substitution of the word \"age'1 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. Unlike Title VII, however, 4(f)(l) of the ADEA contains language that significantly narrows its coverage by permitting any \"otherwise prohib- ited\" action \"where the diEerentiation is based on reasonable factors other than age\" [the RFOA provision}. In determining whether the ADEA authorizes dispa rate-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.... In Grrzg'gs, 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 intel ligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be signicantly 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 long- standing practice of giving preference to whites.\" Accepting the Court of AppealsI 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." We explained that Congress had \"directed the thrust of the Act to the consequences of employment practices, not simply the motivation.'I We thus squarely held that 703(a) (2) oFTitie VII did not require a showing of discriminatory intent.... While our opinion in Griggt 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. 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 arbmuiu adversely 11??\" his status as an employee, because of such individual 5 race or age.... Thus the text focuses on the {rst of the action on 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 an employee. While we noted that disparate-treatment \"captures the essence of what Congress sought to prohibit in the ADEA,\" we were careil to explain that we were not deciding \"whether a disparate impact theory of liability is available under the ADEA... In sum, there is nothing in our opinion in Hagen Paper that precludes an interpretation of the ADEA that parallels our holding in Gigs. The Court of Appeals' categorical rejection of disparate impact liability [in this case] 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 supports the prr-Hazm Pap" consensus concerning disparate'impact liability. And Hazel! 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 differentia- tion is based on reasonable Factors other than age discrimina- tion... ." 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. . .. In disparate-impact cases, however, the allegedly \"other- wise prohibited" activity is not based on age... . It is, accord- ingly, 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 ADFA, the RFOA the employee rather than the motivation for the action of the employer. Griggs, which interpreted the identical text at issue here, thus strongly suggests that a disparate-impact theory should be eognimble under the ADEA. Indeed, for over two decades after our decision in anggs, the Courts of Appeal uniformly interpreted the ADEA as authorizing recovery on a I"disparate-impact'I theory in appropriate cases. IT WAS ONLY AFTER our decision in Hagen Paper Co. v. 3131'\": that some of those courts concluded that the ADEA did not authorize a disparate-impact theory of liability. Our opinion in Haze Paper, however, did not address or comment on the issue we decide today. In that case, we held that an provision actually supports the contrary conclusion. The text of the statute, as interpreted in Grigr, 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 categoriaiiy unavailable under the ADFA. Two textual di'erences between the ADEA and Title VII make itclear that even though both statutes authorize recovery on a disparate'impact theory, the scope of disparateuimpact liability under ADEA is narrower than under Title VII. The rst is the RFOA provision, which we have already identi- Bed. The second is the amendment to Title VII contained in the Civil Rights Act of 199]. One of the purposes of that amendment was to modify the Court's holding in Writ Cow Packing Co. a. Atam'o, a case in which we narrowly construed the employer's exposure to liability on a dispa rate-impact theory. While the relevant 1991 amendments expanded the coverage ofTitie VII, they did not amend the ADEA or speak to the subject of age discrimination. Hence, Why-dc Cow's prel 991 interpretation of Title Vll'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 protecoed by Title VII, not uncommonly has relevance to an individual's capacity to engage in certain types of employment. . .. Turning to the case before us, we initially note that peti- tioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers. They have not identied any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers. As we held in Writ Cow, 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."I Petitioners have failed to do so.... 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 positionspolice officer, master police officer, police sergeant, police lieu- tenant, and deputy police chiefinto a series of steps and halfsteps. The wage for each range was based on a survey of comparable communities in the Southeast. Employees 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 ofcers under 40 received raises of more than 10% while less than half (45.3%) of those over 40 did. 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. 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 explana- tion 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. While there may have been other reasonable ways for the City to achieve its goals, the one selected was not unreason able. 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 disparateimpact theory of recovery is never available under the ADEA, we affirm its judgment. It is so ordered. Case Questions I. How did the city's pay raise plan affect older police officers? Why did the city adopt sud) a pay raise plan? 2. According to Justice Stevens, what provisions of the ADEA allow plaintiffs to bring a disparate impact wee then _ a st (or half-gt ) within their tion claim of age discrimination? were then assigned a step (or half-step) within their position that corresponded to the lowest step that would still give the 3. How does a claim of disparate impact age discrimina- individual a 2% raise. Most of the officers were in the three tion under the ADEA differ from a claim of disparate lowest ranks; in each of those ranks there were officers under impact discrimination under Title VII of the Civil age 40 and officers over 40. In none did their age affect their Rights Act of 1964? compensation. The few officers in the two highest ranks are 4. Why did the Supreme Court dismiss the plaintiff's all over 40. Their raises, though higher in dollar amount disparate impact age discrimination claim fail here? than the raises given to junior officers, represented a smaller Explain