This is far more convoluted than you make it out to be.
JUSTICE STEVENS, joined by JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER, concluded in Part III that the ADEA’s text, the RFOA provision, and Equal Employment Opportunity Commission (EEOC) regulations all support the conclusion that a disparate-impact theory is cognizable under the ADEA. Pp. 4–11.
JUSTICE SCALIA concluded that the reasoning in Part III of JUSTICE STEVENS’ opinion is a basis for deferring, pursuant to Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, to the EEOC’s reasonable view that the ADEA authorizes dispa-rate-impact claims. Pp. 1–5.
JUSTICE O’CONNOR, joined by JUSTICE KENNEDY and JUSTICE THOMAS, concluded that the judgment should be affirmed on the ground that disparate impact claims are not cognizable under the ADEA. Pp. 1–22.
Here's the opinion Scalia penned.
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 (cite omitted--but he DISSENTED in those cites).
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:
“When an employment practice, including a test, isclaimed 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. (cites omitted). 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 10; 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 U. S. 218 (2001), the EEOC’s reasonable view that the ADEA authorizes disparate-impact claims is deserving of deference.
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Scalia, following precedent, has good reason to rule where he does. O'Connor and her fans are blasting precedent. Having not read the precedent, I don't know which to agree with, but I tend to follow Scalia and doubt Thomas (pun intended).
As a practical matter, this decision won't make much difference. I defend employers in employment litigation. Disparate impact cases (unintentional discrimination cases) are very rare even though they have been permitted with respect to sex and race for years.