I cannot agree with my learned colleagues in the majority that the posture in which the instant matter is presented before us serves to deprive the plaintiffs of a remedy which would adequately address the profoundly unreasonable and inequitable application to them, as elected Judges in New York State, of a recent amendment to the Federal Age Discrimination in Employment Act (hereinafter the ADEA) (29 USC § 621 et seq.). The ADEA provision, as amended, bars employment discrimination against individuals within its coverage who have attained the age of 40 years or older. By the inclusion within the protected class individuals who have reached the age of 70 years or older, the ADEA is placed in direct conflict with the New York State constitutional and statutory provisions (NY Const, art VI, § 25 [b]; Judiciary Law § 23) which mandate the retirement of Judges at the age of 70 years. I believe the majority correctly determines the validity of NY Constitution, article VI, § 25 (b) and Judiciary Law § 23, and I would, therefore, reverse so much of the order and judgment appealed from as declared those provisions to be unconstitutional. However, I strongly believe that the application of the ADEA, as interpreted by the New York State Administrative Board of the Courts in a formal opinion to exclude from the ADEA’s protections elected Judges in New York State, has no rational basis and is a conspicuous denial of equal protection of the laws to these plaintiffs. Therefore, I would enjoin the State from compelling the plaintiffs’ involuntary retirement by reason of age pursuant to the State’s mandatory retirement provisions. To the extent that the majority opinion runs contrary to this conclusion, I respectfully dissent.
The operative facts of this matter are fully set forth in the opinion of the majority and need not be duplicated here. Suffice it to say that the key issue, as crystallized by the parties’ contentions, is whether the exclusion of the plaintiffs from the class protected by the ADEA amendment lacks a *303rational basis and thus offends the Equal Protection Clause of the Fourteenth Amendment of the US Constitution.
In order to place this matter in historical perspective, any discussion of this issue must begin with the seminal case of Maresca v Cuomo (64 NY2d 242, appeal dismissed 474 US 802) in which the Court of Appeals determined that both Judiciary Law § 23 and NY Constitution, article VI, § 25 (b) requiring certain Judges of the State to retire at age 70 was rationally related to some or all of seven enumerated State interests. Since the court, pursuant to traditional equal protection analysis, found the age limitation contained in the challenged provisions of this State’s constitutional and statutory law to have a rational basis, it rejected a constitutional challenge premised upon both due process and equal protection grounds. While Maresca may have continued vitality with respect to the State’s mandatory retirement provisions, the effects of the recent amendment to the Federal ADEA upon the plaintiffs at bar takes the instant matter outside the simple analysis employed in Maresca. Therefore, contrary to the views expressed by the majority, the Maresca holding is not an absolute bar to the fashioning of a remedy for these plaintiffs.
Prior to January 1, 1987, the ADEA barred employment discrimination against individuals between the ages of 40 and 70, thereby having no impact upon New York’s mandatory retirement legislation. However, effective January 1, 1987, the ADEA was amended so as to remove the upper age limit, thus affording protection to covered employees who have simply met the lower age requirement of 40.
Following the ADEA’s amendment, the New York State Administrative Board of the Courts (hereinafter the board) construed the Federal ADEA, as amended, to prohibit the mandatory retirement at age 70 of appointed State Judges during their terms of office, but to offer no similar protection to elected State Judges. The board’s interpretation is founded upon 29 USC § 630 (f) which provides as follows: "(f) The term 'employee’ means an individual employed by any employer except that the term 'employee’ shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil *304service laws of a State government, governmental agency, or political subdivision. The term 'employee’ includes any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country”. The exemption provided for persons elected to public office created a distinction between elected and appointed Judges which lies at the heart of the instant challenge. On or about May 26, 1987, the Chief Administrative Judge of the New York Office of Court Administration, Albert M. Rosenblatt, a named defendant in this action, notified Judges throughout the State of the formal opinion of the board.
I would note that neither the majority nor any party to this action seriously disputes the preemption of this State’s mandatory retirement provisions with respect to appointed Judges. Although it has been administratively determined that the Federal ADEA, as amended, supersedes the mandatory retirement provisions of the NY Constitution and the New York State Judiciary Law to the extent that they conflict,* this issue has never been litigated and hence, there exists no formal declaration by any court of law regarding the preemption of this State’s mandatory retirement provisions with respect to appointed Judges. However, insofar as a conflict is clearly created by the plain language of the ADEA as amended, we are constrained by the Supremacy Clause of US Constitution article VI to acknowledge the conflict between Federal and State law, to employ the provisions of the Federal ADEA, and override the provisions of the State law to the extent of any conflict (see, City of Burbank v Lockheed Air Term., 411 US 624; Hines v Davidowitz, 312 US 52).
The majority’s position and, indeed, that of the defendants, is that to the extent the State’s mandatory retirement policy has not been preempted by the ADEA, the State is free to implement that policy, assuming it is otherwise valid. To that end, the majority rests upon the declaration in Maresca v Cuomo (supra) of the validity of New York’s mandatory retirement provisions, and claims that "[njothing has occurred *305during the few years since Maresca was decided which would, in any way, tend to detract from the cogency of those reasons [for the age-based limitation] or otherwise call into question the analysis or the result reached in that case”. I vigorously disagree with this position since the mandatory retirement policy at issue in Maresca is not the issue with which we are faced on this appeal. In Maresca, the court determined that there was a rational basis for the mandatory retirement age limitation as it applied to all State Judges; in the instant case, we are confronting a State policy which requires that all elected Judges retire at the age of 70, while permitting their appointed counterparts to complete their judicial terms well beyond the age of 70. It is this policy, the validity of which the majority apparently believes is not properly before us, that I find to be irrational and lacking a rational basis necessary to withstand equal protection analysis. Nor do I believe that we should avoid passing on this issue on the basis of a hypertechnical analysis of the Federal ADEA as interpreted in the formal opinion of the board which gave voice and substance to a new State policy on age discrimination with respect to the State’s Judges.
When reviewing a statute or constitutional provision under the rational basis test, the law will be upheld if it is found that there exists a rational relationship to a permissible State interest (see, Dandridge v Williams, 397 US 471). However, even under a rational basis standard, disparate treatment of those similarly situated will not be tolerated without justification (see, Johnson v Smith, 696 F2d 1334; Flowers v Webb, 575 F Supp 1450). In this regard, if the group to which the plaintiffs belong is similarly situated to the group receiving the benefit to which they claim entitlement, then a rational reason must exist for the disparity (see, Vance v Bradley, 440 US 93; Eisenstadt v Baird, 405 US 438).
In the matter before us, I do not believe that the narrow distinction as to whether a Judge is elected or appointed is sufficient to justify the disparity in their treatment. Elected and appointed Judges perform the identical job, handle a caseload of equal magnitude, drawing the same salary and compensation, and are held to the same standards of judicial responsibility. In this regard, I find no rational State interest whatsoever in the unequal treatment of members of our State judiciary who function in identical capacities.
The irrationality of this State’s policy permitting enforcement of New York’s mandatory retirement rule as against *306elected Judges while exempting, by reason of the Federal ADEA, those Judges who are appointed, is evidenced by the unfairly disparate treatment accorded Family Court Judges within the City of New York (who are appointed to their judgeships) from their counterparts sitting as Family Court Judges outside New York City (who are elected to their judicial posts). Merely because of geographic factors, the New York City Judges may serve well beyond the age of 70, while their similarly situated colleagues outside New York City are summarily forced to step down at age 70.
Equally irrational is the proposition that an appointed lower court Judge, who is designated and serves as an Acting Supreme Court Justice, would be permitted to remain on the Bench beyond the age of 70 without going through any certification process, while an elected Supreme Court Justice would be forced to retire at age 70, with only the possibility of serving for a limited term as a retired Justice providing he or she is certified.
Such disparate treatment of identically situated individuals may not be discounted, as the majority suggests, as simply an aberration of our structured system of the judiciary in which certain Judges are elected and some are appointed. Nor may such inequities as exist be explained by the Maresca decision upholding New York’s mandatory retirement policy. In fact, this pattern of injustice in the State’s retirement policy is particularly disturbing when viewed in the light of the Maresca court’s language that the very reason for permitting certification of Supreme Court Justices and not lower court Judges (pursuant to Judiciary Law § 115) was to insure the retention of experienced judicial personnel in the Supreme Court. Thus, what originated as a system under which elected Supreme Court justices could ostensibly sit on the Bench beyond their appointed counterparts, has evolved into a system under which appointed lower court Judges could ultimately remain on the Bench well beyond the years of their elected colleagues.
Turning then to the rationale underlying the distinction between officials who are appointed and those who are elected, I do not dispute the majority’s assertion that such distinction arises by operation of Federal law. However, I strongly doubt that the exemption for elected officials, which was carved out in a 1974 amendment to the ADEA (see, Pub L 93-259, § 28 [a] [4]) was ever intended to foster such a blatantly inequitable result as that with which we are now faced.
*307Although "[t]he legislative history behind the [1974] amendment to the ADEA is virtually nonexistent” (see, U.S. Equal Employment Opportunity Commn. v County of Calumet, 686 F2d 1249, 1252), the language in 29 USC § 630 (f) is identical to that contained in title VII of the Civil Rights Act of 1964, as amended in 1972 (42 USC § 2000e [f]). Consequently, the legislative history of that 1972 amendment to title VII may appropriately be considered here in establishing legislative intent (see, Lorillard v Pons, 434 US 575; Equal Employment Opportunity Commn. v Board of Trustees, 723 F2d 509).
The exemption of elected officials from the definition of the term "employee” in title VII was intended in part to preserve the right of the voters of a State "to elect their own officials and select their own employees” without restriction by the Federal Government (see, 118 Cong Rec, at 4483 [Feb. 17, 1972]). A review of the Congressional Record discloses no intention whatsoever that this exemption was intended to sanction age discrimination against elected officials only.
In sum, while I concur in the majority’s finding that NY Constitution, article VI, § 25 (b) and Judiciary Law § 23 are constitutional, I conclude that the application of the Federal ADEA, as amended in January 1987 and as interpreted in the formal opinion of the board, are patently violative of the plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment of the US Constitution.
Bracken, Brown, Lawrence and Spatt, JJ., concur; Thompson, J. P., concurs insofar as it is declared that NY Constitution, article VI, § 25 (b) and Judiciary Law § 23 do not violate the plaintiffs’ rights under the US Constitution to due process of law and equal protection of the laws, but otherwise dissents and votes to affirm the denial of the cross motion, and to modify the order and judgment appealed from by declaring that the Federal Age Discrimination in Employment Act (29 USC § 621 et seq.), as interpreted by the New York State Administrative Board of the Courts, violates the plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment to the US Constitution, and enjoining the State from compelling the plaintiffs’ involuntary retirement by reason of age pursuant to the State’s mandatory retirement provisions.
Ordered that the order and judgment is reversed insofar as appealed from by the appellants Cuomo, Regan, the New York State Employees’ Retirement System and the Policemen’s and *308Firemen’s Retirement System, on the law, without costs or disbursements, and the cross motion of those appellants to dismiss the complaint is granted to the extent that it is declared that NY Constitution, article VI, § 25 (b) and Judiciary Law § 23, do not violate the plaintiffs’ rights under the US Constitution to due process of law and equal protection of the laws; and it is further
Ordered that the appeal by the Westchester County Board of Elections is dismissed as academic, without costs or disbursements, in light of our determination on the appeal by the appellants Cuomo, Regan, the New York State Employees’ Retirement System and the Policemen’s and Firemen’s Retirement System.
In addition to the recent opinion and findings issued by the New York State Administrative Board of the Courts, the Equal Employment Opportunity Commission (hereinafter EEOC) has likewise issued an opinion as to the applicability of the ADEA to appointed State and local court Judges. The EEOC concluded that appointed State and local court Judges are "employees” within the definition of that term as found at 29 USC § 630 (f), and that the exemptions set forth therein would not generally be applicable to an appointed State or local judgeship.