Kentucky Retirement Systems v. Equal Employment Opportunity Commission

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

KENTUCKY RETIREMENT SYSTEMS ET AL. v. EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT

No. 06–1037. Argued January 9, 2008—Decided June 19, 2008
Kentucky permits “hazardous position” workers, e.g., policemen, to re-
ceive normal retirement benefits after working either 20 years or 5
years and attaining age 55 and pays “disability retirement” benefits
to workers meeting specified requirements. Kentucky’s “Plan” calcu-
lates normal retirement benefits based on actual years of service.
The Plan calculates disability benefits by adding to an employee’s ac-
tual years of service the number of years that the employee would
have had to continue working in order to become eligible for normal
retirement benefits, adding no more than the number of years the
employee had previously worked. Charles Lickteig, who continued
working after becoming eligible for retirement at age 55, became dis-
abled and retired at age 61. He filed an age discrimination complaint
with respondent (EEOC) after the Plan based his pension on his ac-
tual years of service without imputing any additional years. The
EEOC filed suit against Kentucky and others (collectively Kentucky),
arguing that the Plan failed to impute years solely because Lickteig
became disabled after age 55. The District Court granted Kentucky
summary judgment, holding that the EEOC could not establish age
discrimination, but the Sixth Circuit ultimately reversed on the
ground that the Plan violated the Age Discrimination in Employment
Act of 1967 (ADEA).
Held: Kentucky’s system does not discriminate against workers who
become disabled after becoming eligible for retirement based on age.
Pp. 4–14.
(a) The ADEA forbids an employer to “discriminate against any in-
dividual with respect to his compensation, terms, conditions, or privi-
leges of employment, because of such individual’s age.” 29 U. S. C.
2 KENTUCKY RETIREMENT SYSTEMS v. EEOC

Syllabus

§623(a)(1) (emphasis added). A plaintiff claiming age-related “dispa-
rate treatment” (i.e., intentional discrimination) must prove that age
“actually motivated the employer’s decision.” Hazen Paper Co. v.
Biggins, 507 U. S. 604, 610 (emphasis added). In Hazen Paper, the
Court found that, without evidence of intent, a dismissal based on
pension status was not a dismissal “because . . . of age,” id., at 611–
612, noting that, though pension status depended upon years of ser-
vice, and years of service typically go hand in hand with age, the two
concepts are “analytically distinct,” id., at 611. And the dismissal at
issue there, if based purely on pension status, would not embody the
evils prompting the ADEA: It was not based on a “prohibited stereo-
type” of older workers, did not produce any “attendant stigma” to
those workers, and was not “the result of an inaccurate and denigrat-
ing generalization about age.” Id., at 612. However, the Court noted
that discrimination based on pension status could violate the ADEA
if pension status was a “proxy for age.” Id., at 613. Pp. 4–6.
(b) Applying Hazen Paper, the circumstances here, taken together,
show that the differences in treatment in this particular instance
were not “actually motivated” by age. (1) Age and pension status re-
main “analytically distinct” concepts. (2) Here, several background
circumstances eliminate the possibility that pension status serves as
a “proxy for age.” Rather than an individual employment decision, at
issue here are complex systemwide rules involving not wages, but
pensions—a benefit the ADEA treats somewhat more flexibly and le-
niently in respect to age. Further, Congress has otherwise approved
programs, such as Social Security Disability Insurance, that calculate
disability benefits using a formula that expressly takes account of
age. (3) The disparity here has a clear non-age-related rationale.
The Plan’s disability rules track Kentucky’s “normal retirement”
rules by imputing only those additional years of service needed to
bring the disabled worker’s total to 20 or to the number of years that
the individual would have worked had he worked to age 55. Thus,
the disability rules’ purpose is to treat a disabled worker as though
he had become disabled after, rather than before, he had become eli-
gible for “normal retirement” benefits. Age factors into the disability
calculation only because the normal retirement rules themselves
permissibly consider age. The Plan simply seeks to treat disabled
employees as if they had worked until the point at which they would
be eligible for a normal pension. Thus, the disparity turns upon pen-
sion eligibility and nothing more. (4) Although the Plan placed an
older worker at a disadvantage here, in other cases, the rules can
work to the advantage of older workers, who may get a bigger boost
of imputed years than younger workers. (5) Kentucky’s system does
not rely on the sorts of stereotypical assumptions, e.g., the work ca-
 Cite as: 554 U. S. ____ (2008) 3

Syllabus

pacity of “older” workers relative to “younger” workers, that the
ADEA sought to eradicate. The Plan’s “assumptions” that no dis-
abled worker would have continued to work beyond the point at
which he was both disabled and pension eligible do not involve age-
related stereotypes, but apply equally to all workers regardless of
age. (6) The nature of the Plan’s eligibility requirements means that,
unless Kentucky were severely to cut the benefits to disabled workers
who are not yet pension eligible, it would have to increase the bene-
fits available to disabled, pension-eligible workers, while lacking any
clear criteria for determining how many extra years to impute for
those already 55 or older. The difficulty of finding a remedy that can
both correct the disparity and achieve the Plan’s legitimate objec-
tive—providing each disabled worker with a sufficient retirement
benefit—further suggests that this objective, not age, “actually moti-
vated” the Plan.
The Court’s opinion in no way unsettles the rule that a statute or
policy that facially discriminates based on age suffices to show dispa-
rate treatment under the ADEA. The Court is dealing with the quite
special case of differential treatment based on pension status, where
pension status—with the explicit blessing of the ADEA—itself turns,
in part, on age. Further, the rule for dealing with this sort of case is
clear: Where an employer adopts a pension plan that includes age as
a factor, and that employer then treats employees differently based
on pension status, a plaintiff, to state a claim under the ADEA, must
adduce sufficient evidence to show that the differential treatment
was “actually motivated” by age, not pension status. Pp. 6–11.
(c) The Federal Government’s additional arguments are rejected.
Since Hazen Paper provides the relevant precedent here, an ADEA
amendment made in light of Public Employees Retirement System of
Ohio v. Betts, 492 U. S. 158, is beside the point. And a contrary in-
terpretation contained in an EEOC regulation and its compliance
manual does not lead to a different conclusion. Pp. 11–13.
467 F. 3d 571, reversed.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SOUTER, and THOMAS, JJ., joined. KENNEDY, J., filed
a dissenting opinion, in which SCALIA, GINSBURG, and ALITO, JJ., joined.
 Cite as: 554 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–1037
_________________

KENTUCKY RETIREMENT SYSTEMS, ET AL.,
PETITIONERS v. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 19, 2008]

JUSTICE BREYER delivered the opinion of the Court.
The Commonwealth of Kentucky permits policemen,
firemen, and other “hazardous position” workers to retire
and to receive “normal retirement” benefits after either (1)
working for 20 years; or (2) working for 5 years and attain-
ing the age of 55. See Ky. Rev. Stat. Ann. §§16.576,
16.577(2) (Lexis 2003), 61.592(4) (Lexis Supp. 2003). It
permits those who become seriously disabled but have not
otherwise become eligible for retirement to retire immedi-
ately and receive “disability retirement” benefits. See
§16.582(2)(b) (Lexis 2003). And it treats some of those
disabled individuals more generously than it treats some
of those who became disabled only after becoming eligible
for retirement on the basis of age. The question before us
is whether Kentucky’s system consequently discriminates
against the latter workers “because of . . . age.” Age Dis-
crimination in Employment Act of 1967 (ADEA or Act),
§4(a)(1), 81 Stat. 603, 29 U. S. C. §623(a)(1). We conclude
that it does not.
2 KENTUCKY RETIREMENT SYSTEMS v. EEOC

Opinion of the Court

I
A
Kentucky has put in place a special retirement plan
(Plan) for state and county employees who occupy “[h]az-
ardous position[s],” e.g., active duty law enforcement
officers, firefighters, paramedics, and workers in correc-
tional systems. See Ky. Rev. Stat. Ann. §61.592(1)(a)
(Lexis Supp. 2003). The Plan sets forth two routes
through which such an employee can become eligible for
what is called “normal retirement” benefits. The first
makes an employee eligible for retirement after 20 years
of service. The second makes an employee eligible after
only 5 years of service provided that the employee has
attained the age of 55. See §§16.576, 16.577(2), 61.592(4).
An employee eligible under either route will receive a
pension calculated in the same way: Kentucky multiplies
years of service times 2.5% times final preretirement pay.
See §16.576(3).
Kentucky’s Plan has special provisions for hazardous
position workers who become disabled but are not yet
eligible for normal retirement. Where such an employee
has worked for five years or became disabled in the line of
duty, the employee can retire at once. See §§16.576(1),
16.582(2) (Lexis 2003). In calculating that employee’s
benefits Kentucky will add a certain number of (“im-
puted”) years to the employee’s actual years of service.
The number of imputed years equals the number of years
that the disabled employee would have had to continue
working in order to become eligible for normal retirement
benefits, i.e., the years necessary to bring the employee up
to 20 years of service or to at least 5 years of service when
the employee would turn 55 (whichever number of years is
lower). See §16.582(5)(a) (Lexis 2003). Thus, if an em-
ployee with 17 years of service becomes disabled at age 48,
the Plan adds 3 years and calculates the benefits as if the
employee had completed 20 years of service. If an em-
 Cite as: 554 U. S. ____ (2008) 3

Opinion of the Court

ployee with 17 years of service becomes disabled at age 54,
the Plan adds 1 year and calculates the benefits as if the
employee had retired at age 55 with 18 years of service.
The Plan also imposes a ceiling on imputed years equal
to the number of years the employee has previously
worked (i.e., an employee who has worked eight years
cannot receive more than eight additional imputed years),
see §16.582(5)(a); it provides for a certain minimum pay-
ment, see §16.582(6) (Lexis 2003); and it contains various
other details, none of which is challenged here.
B
Charles Lickteig, a hazardous position worker in the
Jefferson County Sheriff’s Department, became eligible for
retirement at age 55, continued to work, became disabled,
and then retired at age 61. The Plan calculated his an-
nual pension on the basis of his actual years of service
(18 years) times 2.5% times his final annual pay. Be-
cause Lickteig became disabled after he had already
become eligible for normal retirement benefits, the Plan
did not impute any additional years for purposes of the
calculation.
Lickteig complained of age discrimination to the Equal
Employment Opportunity Commission (EEOC); and the
EEOC then brought this age discrimination lawsuit
against the Commonwealth of Kentucky, Kentucky’s Plan
administrator, and other state entities (to whom we shall
refer collectively as “Kentucky”). The EEOC pointed out
that, if Lickteig had become disabled before he reached the
age of 55, the Plan, in calculating Lickteig’s benefits would
have imputed a number of additional years. And the
EEOC argued that the Plan failed to impute years solely
because Lickteig became disabled after he reached age 55.
The District Court, making all appropriate evidence-
related assumptions in the EEOC’s favor, see Fed. Rule
Civ. Proc. 56, held that the EEOC could not establish age
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Opinion of the Court

discrimination; and it granted summary judgment in the
defendants’ favor. A panel of the Sixth Circuit affirmed
that judgment. EEOC v. Jefferson Cty. Sheriff’s Dept., 424
F. 3d 467 (2005). The Sixth Circuit then granted rehear-
ing en banc, held that Kentucky’s Plan did violate the
ADEA, and reversed and remanded for further proceed-
ings. 467 F. 3d 571 (2006).
Kentucky sought certiorari. In light of the potentially
serious impact of the Circuit’s decision upon pension
benefits provided under plans in effect in many States, we
granted the writ. See, e.g., Ind. Code §§36–8–8–3.3(b) and
(c) (West 2004); Mich. Comp. Laws Ann. §§38.23 and
38.556(2)(d) (West 2005); N. C. Gen. Stat. Ann. §§135–1
and 135–5 (Lexis 2007); Pa. Stat. Ann., Tit. 7, §§5102 and
5704 (Purdon Supp. 2007), Tenn. Code Ann. §8–36–
501(c)(3) (Supp. 2007). See also Reply Brief for Petitioners
20–21 (predicting, inter alia, large increase in pension
liabilities, potential reduction in benefits for all disabled
persons, or both); Brief for National Association of State
Retirement Administrators et al. as Amici Curiae 8–14
(same).
II
The ADEA forbids an employer 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.” 29 U. S. C. §623(a)(1) (emphasis
added). In Hazen Paper Co. v. Biggins, 507 U. S. 604
(1993), the Court explained that where, as here, a plaintiff
claims age-related “disparate treatment” (i.e., intentional
discrimination “because of . . . age”) the plaintiff must
prove that age “actually motivated the employer’s deci-
sion.” Id., at 610 (emphasis added); see also Reeves v.
Sanderson Plumbing Products, Inc., 530 U. S. 133, 141
(2000). The Court noted that “[t]he employer may have
 Cite as: 554 U. S. ____ (2008) 5

Opinion of the Court

relied upon a formal, facially discriminatory policy requir-
ing adverse treatment” because of age, or “the employer
may have been motivated by [age] on an ad hoc, informal
basis.” Hazen Paper, 507 U. S., at 610. But “[w]hatever
the employer’s decisionmaking process,” a plaintiff alleg-
ing disparate treatment cannot succeed unless the em-
ployee’s age “actually played a role in that process and had
a determinative influence on the outcome.” Ibid. (emphasis
added). Cf. Smith v. City of Jackson, 544 U. S. 228, 239–
240 (2005) (plurality opinion) (describing “disparate-
impact” theory, not here at issue, which focuses upon
unjustified discriminatory results).
In Hazen Paper the Court considered a disparate treat-
ment claim that an employer had unlawfully dismissed a
62-year-old employee with over 91⁄2 years of service in
order to avoid paying pension benefits that would have
vested after 10 years. The Court held that, without more
evidence of intent, the ADEA would not forbid dismissal of
the claim. A dismissal based on pension status was not a
dismissal “because . . . of age.” 507 U. S., at 611–612. Of
course, pension status depended upon years of service, and
years of service typically go hand in hand with age. Id., at
611. But the two concepts were nonetheless “analytically
distinct.” Ibid. An employer could easily “take account of
one while ignoring the other.” Ibid. And the dismissal in
question, if based purely upon pension status (related to
years of service), would not embody the evils that led
Congress to enact the ADEA in the first place: The dis-
missal was not based on a “prohibited stereotype” of older
workers, did not produce any “attendant stigma” to those
workers, and was not “the result of an inaccurate and
denigrating generalization about age.” Id., at 612.
At the same time, Hazen Paper indicated that discrimi-
nation on the basis of pension status could sometimes be
unlawful under the ADEA, in particular where pension
status served as a “proxy for age.” Id., at 613. Suppose,
6 KENTUCKY RETIREMENT SYSTEMS v. EEOC

Opinion of the Court

for example, an employer “target[ed] employees with a
particular pension status on the assumption that these
employees are likely to be older.” Id., at 612–613. In such
a case, Hazen Paper suggested, age, not pension status,
would have “actually motivated” the employer’s decision-
making. Hazen Paper also left open “the special case
where an employee is about to vest in pension benefits as
a result of his age, rather than years of service.” Id., at
613. We here consider a variation on this “special case”
theme.
III
Kentucky’s Plan turns normal pension eligibility either
upon the employee’s having attained 20 years of service
alone or upon the employees having attained 5 years of
service and reached the age of 55. The ADEA permits an
employer to condition pension eligibility upon age. See 29
U. S. C. A. §623(l)(1)(A)(i) (Supp. 2007). Thus we must
decide whether a plan that (1) lawfully makes age in part
a condition of pension eligibility, and (2) treats workers
differently in light of their pension status, (3) automati-
cally discriminates because of age. The Government ar-
gues “yes.” But, following Hazen Paper’s approach, we
come to a different conclusion. In particular, the following
circumstances, taken together, convince us that, in this
particular instance, differences in treatment were not
“actually motivated” by age.
First, as a matter of pure logic, age and pension status
remain “analytically distinct” concepts. Hazen Paper, 507
U. S., at 611. That is to say, one can easily conceive of
decisions that are actually made “because of” pension
status and not age, even where pension status is itself
based on age. Suppose, for example that an employer pays
all retired workers a pension, retirement eligibility turns
on age, say 65, and a 70-year-old worker retires. Nothing
in language or in logic prevents one from concluding that
 Cite as: 554 U. S. ____ (2008) 7

Opinion of the Court

the employer has begun to pay the worker a pension, not
because the worker is over 65, but simply because the
worker has retired.
Second, several background circumstances eliminate the
possibility that pension status, though analytically dis-
tinct from age, nonetheless serves as a “proxy for age” in
Kentucky’s Plan. Cf. id., at 613. We consider not an
individual employment decision, but a set of complex
systemwide rules. These systemic rules involve, not
wages, but pensions—a benefit that the ADEA treats
somewhat more flexibly and leniently in respect to age.
See, e.g., 29 U. S. C. A. §623(l)(1)(A)(i) (Supp. 2007) (ex-
plicitly allowing pension eligibility to turn on age); 29
U. S. C. §623(l)(2)(A) (allowing employer to consider (age-
related) pension benefits in determining level of severance
pay); §623(l)(3) (allowing employer to consider (age-
related) pension benefits in determining level of long-term
disability benefits). And the specific benefit at issue here
is offered to all hazardous position workers on the same
nondiscriminatory terms ex ante. That is to say, every
such employee, when hired, is promised disability retire-
ment benefits should he become disabled prior to the time
that he is eligible for normal retirement benefits.
Furthermore, Congress has otherwise approved of pro-
grams that calculate permanent disability benefits using
a formula that expressly takes account of age. For exam-
ple, the Social Security Administration now uses such a
formula in calculating Social Security Disability Insurance
benefits. See, e.g., 42 U. S. C. §415(b)(2)(B)(iii); 20 CFR
§404.211(e) (2007). And until (and in some cases after)
1984, federal employees received permanent disability
benefits based on a formula that, in certain circumstances,
did not just consider age, but effectively imputed years of
service only to those disabled workers younger than 60.
See 5 U. S. C. §8339(g) (2006 ed.); see also Office of Per-
sonnel Management, Disability Retirement Under the
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Opinion of the Court

Civil Service Retirement System, Retirement Facts 4, p. 3
(rev. Nov. 1997), on line at http://www.opm.gov/forms/
pdfimage/RI83-4.pdf (as visited June 16, 2008, and avail-
able in Clerk of Court’s case file).
Third, there is a clear non-age-related rationale for the
disparity here at issue. The manner in which Kentucky
calculates disability retirement benefits is in every impor-
tant respect but one identical to the manner in which
Kentucky calculates normal retirement benefits. The one
significant difference consists of the fact that the Plan
imputes additional years of service to disabled individuals.
But the Plan imputes only those years needed to bring the
disabled worker’s years of service to 20 or to the number of
years that the individual would have worked had he
worked to age 55. The disability rules clearly track Ken-
tucky’s normal retirement rules.
It is obvious, then, that the whole purpose of the disabil-
ity rules is, as Kentucky claims, to treat a disabled worker
as though he had become disabled after, rather than be-
fore, he had become eligible for normal retirement bene-
fits. Age factors into the disability calculation only be-
cause the normal retirement rules themselves permissibly
include age as a consideration. No one seeking to help
disabled workers in the way that Kentucky’s rules seek to
help those workers would care whether Kentucky’s normal
system turned eligibility in part upon age or upon other,
different criteria.
That this is so is suggested by the fact that one can
readily construct a plan that produces an identical dispar-
ity but is age neutral. Suppose that Kentucky’s Plan
made eligible for a pension (a) day-shift workers who have
20 years of service, and (b) night-shift workers who have
15 years of service. Suppose further that the Plan calcu-
lates the amount of the pension the same way in either
case, which method of calculation depends solely upon
years of service (say, giving the worker a pension equal to
 Cite as: 554 U. S. ____ (2008) 9

Opinion of the Court

$1,000 for each year of service). If the Plan were then to
provide workers who become disabled prior to pension
eligibility the same pension the workers would have re-
ceived had they worked until they became pension eligible,
the plan would create a disparity between disabled day-
shift and night-shift workers: A day-shift worker who
becomes disabled before becoming pension eligible would,
in many instances, end up receiving a bigger pension than
a night-shift worker who becomes disabled after becoming
pension eligible. For example, a day-shift worker who
becomes disabled prior to becoming pension-eligible would
receive an annual pension of $20,000, while a night-shift
worker who becomes disabled after becoming pension-
eligible, say, after 16 years of service, would receive an
annual pension of $16,000.
The disparity in this example is not “actually motivated”
by bias against night-shift workers. Rather, such a dis-
parity, like the disparity in the case before us, is simply an
artifact of Plan rules that treat one set of workers more
generously in respect to the timing of their eligibility for
normal retirement benefits but which do not treat them
more generously in respect to the calculation of the
amount of their normal retirement benefits. The example
helps to show that the Plan at issue in this case simply
seeks to treat disabled employees as if they had worked
until the point at which they would be eligible for a nor-
mal pension. The disparity turns upon pension eligibility
and nothing more.
Fourth, although Kentucky’s Plan placed an older
worker at a disadvantage in this case, in other cases, it
can work to the advantage of older workers. Consider, for
example, two disabled workers, one of whom is aged 45
with 10 years of service, one of whom is aged 40 with 15
years of service. Under Kentucky’s scheme, the older
worker would actually get a bigger boost of imputed years
than the younger worker (10 years would be imputed to
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Opinion of the Court

the former, while only 5 years would be imputed to the
latter). And that fact helps to confirm that the underlying
motive is not an effort to discriminate “because of . . . age.”
Fifth, Kentucky’s system does not rely on any of the
sorts of stereotypical assumptions that the ADEA sought
to eradicate. It does not rest on any stereotype about the
work capacity of “older” workers relative to “younger”
workers. See, e.g., General Dynamics Land Systems, Inc.
v. Cline, 540 U. S. 581, 590 (2004) (noting that except on
one point, all the findings and statements of objectives in
the ADEA are “either cast in terms of the effects of age as
intensifying over time, or are couched in terms that refer
to ‘older’ workers, explicitly or implicitly relative to
‘younger’ ones” (emphasis added)). The Plan does assume
that all disabled workers would have worked to the point
at which they would have become eligible for a pension. It
also assumes that no disabled worker would have contin-
ued working beyond the point at which he was both (1)
disabled; and (2) pension eligible. But these “assump-
tions” do not involve age-related stereotypes, and they
apply equally to all workers, regardless of age.
Sixth, the nature of the Plan’s eligibility requirements
means that, unless Kentucky were severely to cut the
benefits given to disabled workers who are not yet pension
eligible (which Kentucky claims it will do if its present
Plan is unlawful), Kentucky would have to increase the
benefits available to disabled, pension-eligible workers,
while lacking any clear criteria for determining how many
extra years to impute for those pension-eligible workers
who already are 55 or older. The difficulty of finding a
remedy that can both correct the disparity and achieve the
Plan’s legitimate objective—providing each disabled
worker with a sufficient retirement benefit, namely, the
normal retirement benefit that the worker would receive if
he were pension eligible at the time of disability—further
suggests that this objective and not age “actually moti-
 Cite as: 554 U. S. ____ (2008) 11

Opinion of the Court

vated” the Plan.
The above factors all taken together convince us that
the Plan does not, on its face, create treatment differences
that are “actually motivated” by age. And, for present
purposes, we accept the District Court’s finding that the
Government has pointed to no additional evidence that
might permit a factfinder to reach a contrary conclusion.
See App. 28–30.
It bears emphasizing that our opinion in no way unset-
tles the rule that a statute or policy that facially discrimi-
nates based on age suffices to show disparate treatment
under the ADEA. We are dealing today with the quite
special case of differential treatment based on pension
status, where pension status—with the explicit blessing of
the ADEA—itself turns, in part, on age. Further, the rule
we adopt today for dealing with this sort of case is clear:
Where an employer adopts a pension plan that includes
age as a factor, and that employer then treats employees
differently based on pension status, a plaintiff, to state a
disparate treatment claim under the ADEA, must come
forward with sufficient evidence to show that the differen-
tial treatment was “actually motivated” by age, not pen-
sion status. And our discussion of the factors that lead us
to conclude that the Government has failed to make the
requisite showing in this case provides an indication of
what a plaintiff might show in other cases to meet his
burden of proving that differential treatment based on
pension status is in fact discrimination “because of” age.
IV
The Government makes two additional arguments.
First, it looks for support to an amendment that Congress
made to the ADEA after this Court’s decision in Public
Employees Retirement System of Ohio v. Betts, 492 U. S.
158 (1989). In Betts, the employer denied a worker dis-
ability benefits on the ground that its bona fide benefit
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Opinion of the Court

program provided disability benefits only to workers who
became disabled prior to age 60, and the worker in that
case became disabled at age 61. Id., at 163. The ADEA at
that time exempted from its prohibitions employment
decisions taken pursuant to the terms of “ ‘any bona fide
employee benefit plan . . . which is not a subterfuge to
evade the purposes of’ the Act.” Id., at 161 (quoting 29
U. S. C. §623(f)(2) (1982 ed., Supp. V)). And the Court
held that the employer’s decision fell within that excep-
tion. 492 U. S., at 182. Subsequently Congress amended
the ADEA to make clear that it covered age-based dis-
crimination in respect to all employee benefits. See Older
Workers Benefit Protection Act, §102, 104 Stat. 978, 29
U. S. C. §630(l) (2000 ed.). Congress replaced the “not a
subterfuge” exception with a provision stating that age-
based disparities in the provision of benefits are lawful
only when they are justified in respect to cost savings. Id.,
at 978–979; 29 U. S. C. §623(f)(2)(B)(i).
We agree with the Government that the amendment
broadened the field of employer actions subject to antidis-
crimination rules and it narrowed the statutorily available
justifications for age-related differences. But these facts
cannot help the Government here. We do not dispute that
ADEA prohibitions apply to the Plan at issue, and our
basis for finding the Plan lawful does not rest upon
amendment-related justifications. Rather, we find that
the discrimination is not “actually motivated” by age.
Thus Hazen Paper, not Betts, provides relevant precedent.
And the amendment cited by the Government is beside the
point.
Second, the Government says that we must defer to a
contrary EEOC interpretation contained in an EEOC
regulation and compliance manual. The regulation, how-
ever, says only that providing “the same level of benefits to
older workers as to younger workers” does not violate the
Act. 29 CFR §1625.10(a)(2) (2007). The Government’s
 Cite as: 554 U. S. ____ (2008) 13

Opinion of the Court

interpretation of this language is not entitled to deference
because, on its face, the regulation “does little more than
restate the terms of the statute itself.” Gonzales v. Ore-
gon, 546 U. S. 243, 257 (2006) (denying deference to an
agency interpretation of its own regulation in light of the
“near equivalence” of the statute and regulation).
The Compliance Manual provides more explicitly that
benefits are not “equal” insofar as a plan “reduces or
eliminates benefits based on a criterion that is explicitly
defined (in whole or in part) by age.” 2 EEOC Compliance
Manual §3, p. 627:00041 (2001) (bold typeface deleted).
And the Compliance Manual further provides that
“[b]asing disability retirement benefits on the number of
years a disabled employee would have worked until nor-
mal retirement age by definition gives more constructive
years of service to younger than to older employees” and
thus violates the Act. See id., at 627:0010.
These statements, while important, cannot lead us to a
different conclusion. See National Railroad Passenger
Corporation v. Morgan, 536 U. S. 101, 111, n. 6 (2002)
(noting that compliance manuals are “ ‘ “entitled to re-
spect” under our decision in Skidmore v. Swift & Co., 323
U. S. 134, 140 (1944)’ ”); see also Christensen v. Harris
County, 529 U. S. 576, 587 (2000). Following Hazen Pa-
per, we interpret the Act as requiring a showing that the
discrimination at issue “actually motivated” the em-
ployer’s decision. Given the reasons set forth in Part III,
supra, we conclude that evidence of that motivation was
lacking here. And the EEOC’s statement in the Compli-
ance Manual that it automatically reaches a contrary
conclusion—a statement that the Manual itself makes
little effort to justify—lacks the necessary “power to per-
suade” us. Skidmore v. Swift & Co., 323 U. S. 134, 140
(1944).
14 KENTUCKY RETIREMENT SYSTEMS v. EEOC

Opinion of the Court

V
The judgment of the Court of Appeals is reversed.

It is so ordered.
 Cite as: 554 U. S. ____ (2008) 1

KENNEDY, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–1037
_________________

KENTUCKY RETIREMENT SYSTEMS, ET AL.,
PETITIONERS v. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 19, 2008]

JUSTICE KENNEDY, with whom JUSTICE SCALIA, JUSTICE
GINSBURG, and JUSTICE ALITO join, dissenting.
The Court today ignores established rules for interpret-
ing and enforcing one of the most important statutes
Congress has enacted to protect the Nation’s work force
from age discrimination, the Age Discrimination in Em-
ployment Act of 1967 (ADEA or Act), 81 Stat. 602, as
amended, 29 U. S. C. §621 et seq. That Act prohibits
employment actions that “discriminate against any indi-
vidual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s
age.” §623(a)(1). In recent years employers and employ-
ees alike have been advised by this Court, by most Courts
of Appeals, and by the agency charged with enforcing the
Act, the Equal Employment Opportunity Commission
(EEOC), that the most straightforward reading of the
statute is the correct one: When an employer makes age a
factor in an employee benefit plan in a formal, facial,
deliberate, and explicit manner, to the detriment of older
employees, this is a violation of the Act. Disparate treat-
ment on the basis of age is prohibited unless some exemp-
tion or defense provided in the Act applies.
The Court today undercuts this basic framework. In
doing so it puts the Act and its enforcement on a wrong
2 KENTUCKY RETIREMENT SYSTEMS v. EEOC

KENNEDY, J., dissenting

course. The decision of the en banc panel of the Court of
Appeals for the Sixth Circuit, which the Court reverses,
brought that Circuit’s case law into line with that of its
sister Circuits. See EEOC v. Jefferson Cty. Sheriff’s Dept.,
467 F. 3d 571, 573 (2006) (overturning Lyon v. Ohio Ed.
Assn. and Professional Staff Union, 53 F. 3d 135 (1995));
see also, e.g., Jankovitz v. Des Moines Independent Com-
munity School Dist., 421 F. 3d 649, 653–655 (CA8 2005);
Abrahamson v. Board of Ed. of Wappingers Falls Century
School Dist., 374 F. 3d 66, 72–73 (CA2 2004); Arnett v.
California Public Employees Retirement System, 179 F. 3d
690, 695–697 (CA9 1999); Auerbach v. Board of Ed. of
Harborfields Central School Dist. of Greenlawn, 136 F. 3d
104, 109–114 (CA2 1998); Huff v. UARCO, Inc., 122 F. 3d
374, 387–388 (CA7 1997). By embracing the approach
rejected by the en banc panel and all other Courts of Ap-
peals that have addressed this issue, this Court creates
unevenness in administration, unpredictability in litiga-
tion, and uncertainty as to employee rights once thought
well settled. These consequences, and the Court’s errors
in interpreting the statute and our cases, require this
respectful dissent.
Even were the Court correct that Kentucky’s facially
discriminatory disability benefits plan can be justified by a
proper motive, the employer’s own submission to us re-
veals that the plan’s discriminatory classification rests
upon a stereotypical assumption that itself violates the
Act and the Court’s own analytical framework.
As a threshold matter, all should concede that the para-
digm offered to justify the statute is a powerful one: The
young police officer or firefighter with a family is disabled
in the heroic performance of his or her duty. Disability
payments are increased to account for unworked years of
service. What the Court overlooks, however, is that a 61-
year-old officer or firefighter who is disabled in the same
heroic action receives, in many instances, a lower payment
 Cite as: 554 U. S. ____ (2008) 3

KENNEDY, J., dissenting

and for one reason alone: By explicit command of Ken-
tucky’s disability plan age is an express disadvantage in
calculating the disability payment.
This is a straightforward act of discrimination on the
basis of age. Though the Commonwealth is entitled by the
law, in some instances, to defend an age-based differential
as cost justified, 29 U. S. C. §623(f)(2)(B)(ii), that has yet
to be established here. What an employer cannot do, and
what the Court ought not to do, is to pretend that this
explicit discrimination based on age is somehow consistent
with the broad statutory and regulatory prohibition
against disparate treatment based on age.
I
The following appears to be common ground for both
sides of the dispute: Kentucky operates dual retirement
systems for employees in hazardous occupations. An
employee is eligible for normal retirement if he or she has
accumulated 20 years of service with the Commonwealth,
or is over age 55 and has accumulated at least 5 years of
service. If the employee can no longer work as a result of
a disability, however, he or she is entitled to receive dis-
ability retirement. Employees who are eligible for normal
retirement benefits are ineligible for disability retirement.
See Ky. Rev. Stat. Ann. §§16.576, 16.577(2) (Lexis 2003),
61.592(4) (Lexis Cum. Supp. 2003).
The distinction between normal and disability retire-
ment is not just a difference of nomenclature. Under the
normal retirement system benefits are calculated by mul-
tiplying a percentage of the employee’s pay at retirement
by years of service. See §16.576(3) (Lexis 2003). Under
the disability system the years-of-service multiplier in-
cludes not only the employee’s actual years of service but
also the number of years it would have taken the employee
to become eligible for normal retirement (subject to a cap
equal to the number of actual years served). See
4 KENTUCKY RETIREMENT SYSTEMS v. EEOC

KENNEDY, J., dissenting

§16.582(5)(a). In other words employees in the normal
retirement system are compensated based solely on their
actual years of service; but employees in the disability
retirement system get a bonus, which accounts for the
number of years the employee would have worked had he
or she remained healthy until becoming eligible to receive
normal retirement benefits.
Whether intended or not, the result of these divergent
benefits formulae is a system that, in some cases, compen-
sates otherwise similarly situated individuals differently
on the basis of age. Consider two covered workers, one 45
and one 55, both with five years of service with the Com-
monwealth and an annual salary of $60,000. If we assume
both become disabled in the same accident, the 45-year-old
will be entitled to receive $1,250 in monthly benefits; the
55-year-old will receive $625, just half as much. The
benefit disparity results from the Commonwealth’s deci-
sion, under the disability retirement formula, to credit the
45-year-old with 5 years of unworked service (thereby
increasing the appliable years-service-multipler to 10
years), while the 55-year-old’s benefits are based only on
actual years of service (5 years). In that instance age is
the only factor that accounts for the disparate treatment.
True, age is not a factor that reduces benefits in every
case. If a worker has accumulated 20 years of service with
the Commonwealth before he or she becomes disabled, age
plays no role in the benefits calculation. But there is no
question that, in many cases, a disabled worker over the
age of 55 who has accumulated fewer than 20 years of
service receives a lower monthly stipend than otherwise
similarly situated workers who are under 55. The Court
concludes this result is something other than discrimina-
tion on the basis of age only by ignoring the statute and
our past opinions.
 Cite as: 554 U. S. ____ (2008) 5

KENNEDY, J., dissenting

II
It is difficult to find a clear rule of law in the list of
policy arguments the Court makes to justify its holding.
The difficulty is compounded by the Court’s own analysis.
The Court concedes that, in this case, Kentucky’s plan
“placed an older worker at a disadvantage,” ante, at 9; yet
it proceeds to hold that the Commonwealth’s disparate
treatment of its workers was not “ ‘actually motivated’ by
age, ” ante, at 10. The Court’s apparent rationale is that,
even when it is evident that a benefits plan discriminates
on its face on the basis of age, an ADEA plaintiff still must
provide additional evidence that the employer acted with
an “underlying motive,” ante, at 9, to treat older workers
less favorably than younger workers.
The Court finds no support in the text of the statute. In
the wake of Public Employees Retirement System of Ohio
v. Betts, 492 U. S. 158 (1989), where the Court held that
bona fide employee benefit plans were exempt from the
coverage of the ADEA, Congress amended the Act to pro-
vide that an employee benefit plan that discriminates on
the basis of age is unlawful, except when the employer
establishes entitlement to one of the affirmative defenses
Congress has provided. See Older Workers Benefit Pro-
tection Act (OWBPA), 104 Stat. 978, codified at 29 U. S. C.
§623(f). As a result of the OWBPA, an employer cannot
operate an employee benefit plan in a manner that “dis-
criminate[s] against any individual . . . because of such
individual’s age,” §623(a), except when the plan is a “vol-
untary early retirement incentive plan” or when “the
actual amount of payment made or cost incurred on behalf
of an older worker is no less than that made or incurred on
behalf of a younger worker,” §§623(f)(2)(B)(i)–(ii); see
generally B. Lindemann & D. Kadue, Age Discrimination
in Employment Law 175 (2003). Under any common
understanding of the statute’s terms a disability plan that
pays older workers less than younger workers on the basis
6 KENTUCKY RETIREMENT SYSTEMS v. EEOC

KENNEDY, J., dissenting

of age “discriminate[s] . . . because of . . . age.” That is how
the agency that administers the statute, the EEOC, un-
derstands it. See 2 EEOC Compliance Manual §3,
p. 627:0004 (2001) (“[B]enefits will not be equal where a
plan reduces or eliminates benefits based on a criterion
that is explicitly defined (in whole or in part) by age”).
And the employer here has not shown that any of the
affirmative defenses or exemptions to the Act applies.
That should be the end of the matter; the employer is
liable unless it can make such a showing.
The Court’s holding stems, it asserts, from a statement
in Hazen Paper Co. v. Biggins, 507 U. S. 604 (1993), that
an employment practice discriminates only if it is “ ‘actu-
ally motivated’ ” by the protected trait. Ante, at 4 (quoting
Hazen Paper, 507 U. S., at 610; emphasis deleted). If this
phrase had been used without qualification, the Court’s
interpretation of it might have been justified. If one reads
the relevant passage in full (with particular emphasis on
the second sentence), however, Hazen Paper makes quite
clear that no additional proof of motive is required in an
ADEA case once the employment policy at issue is deemed
discriminatory on its face. The Court said this:
“In a disparate treatment case, liability depends on
whether the protected trait (under the ADEA, age) ac-
tually motivated the employer’s decision. See, e.g.,
United States Postal Service Bd. of Governors v. Aik-
ens, 460 U. S. 711 (1983); Texas Dept. of Community
Affairs v. Burdine, 450 U. S. 248, 252–256 (1981);
Furnco Constr. Corp. v. Waters, 438 U. S. 567, 576–
578 (1978). The employer may have relied upon a for-
mal, facially discriminatory policy requiring adverse
treatment of employees with that trait. See, e.g.,
[Trans World Airlines, Inc. v.] Thurston, [469 U. S.
111 (1985)]; Los Angeles Dept. of Water and Power v.
Manhart, 435 U. S. 702, 704–718 (1978). Or the em-
 Cite as: 554 U. S. ____ (2008) 7

KENNEDY, J., dissenting

ployer may have been motivated by the protected trait
on an ad hoc, informal basis. See, e.g., Anderson v.
Bessemer City, 470 U. S. 564 (1985); Teamsters [v.
United States, 431 U. S. 324, 334–343 (1977)]. What-
ever the employer’s decisionmaking process, a dispa-
rate treatment claim cannot succeed unless the em-
ployee’s protected trait actually played a role in that
process and had a determinative influence on the out-
come.” Ibid.
In context the paragraph identifies a decision made in
reliance on a “facially discriminatory policy requiring
adverse treatment of employees with [a protected] trait” as
a type of employment action that is “actually motivated”
by that trait. By interpreting Hazen Paper to say that a
formal, facial, explicit, mandated, age-based differential
does not suffice to establish a disparate-treatment viola-
tion (subject to statutory defenses and exemptions), it
misconstrues the precedent upon which its entire theory of
this case is built. The Court was right in Hazen Paper and
is wrong here.
At a minimum the Court should not cite Hazen Paper to
support what it now holds. Its conclusion that no dispa-
rate-treatment violation has been established here con-
flicts with the longstanding rule in ADEA cases. The
rule—confirmed by the quoted text in Hazen Paper—is
that once the plaintiff establishes that a policy discrimi-
nates on its face, no additional proof of a less-than-benign
motive for the challenged employment action is required.
For if the plan discriminates on its face, it is obvious that
decisions made pursuant to the plan are “actually moti-
vated” by age. The EEOC (or the employee) must prevail
unless the employer can justify its action under one of the
enumerated statutory defenses or exemptions.
Two cases cited in Hazen Paper as examples of “formal,
facially discriminatory polic[ies],” stand for this proposi-
8 KENTUCKY RETIREMENT SYSTEMS v. EEOC

KENNEDY, J., dissenting

tion. See Trans World Airlines, Inc. v. Thurston, 469 U. S.
111 (1985); Los Angeles Dept. of Water and Power v. Man-
hart, 435 U. S. 702 (1978).
In Thurston, the Court considered whether Trans World
Airlines’ transfer policy for older pilots violated the ADEA.
The policy allowed pilots to continue working for the air-
line past the mandatory retirement age of 60 if they trans-
ferred to the position of flight engineer. 469 U. S., at 115–
116. But the 60-year-old pilot had to bid for the position.
Under the bid procedures a pilot who became ineligible to
remain at the controls on account of a disability (or even
outright incompetence) had priority over a pilot forced out
due to age. Id., at 116–117. The Court held the burden-
shifting framework of McDonnell Douglas Corp. v. Green,
411 U. S. 792 (1973), which is used to determine whether
there was a discriminatory motive at play, had no applica-
tion because the policy was “discriminatory on its face.”
469 U. S., at 121.
Manhart, a Title VII case, involved a municipal employ-
ees’ retirement plan that forced female employees to make
larger contributions than their male counterparts. The
Court noted that even if there were no evidence that the
policy had a discriminatory “effect,” “that evidence does
not defeat the claim that the practice, on its face, dis-
criminated against every individual woman employed by
the Department.” 435 U. S., at 716.
Just as the majority misunderstands Hazen Paper’s
reference to employment practices that are “actually
motivated” by age, so too does it overstate what the Hazen
Paper Court meant when it observed that pension status
and age are “analytically distinct.” 507 U. S., at 611. The
Court now reads this language as creating a virtual safe
harbor for policies that discriminate on the basis of pen-
sion status, even when pension status is tied directly to
age and then linked to another type of benefit program.
The Hazen Paper Court did not allow, or support, this
 Cite as: 554 U. S. ____ (2008) 9

KENNEDY, J., dissenting

result. In Hazen Paper pension status and age were “ana-
lytically distinct” because the employee’s eligibility to
receive a pension formally had nothing to do with age;
pension status was tied solely to years of service. The
Court recognized that age and pension status were corre-
lated (because older workers were more likely to be pen-
sion eligible); but the Court found the plan to be facially
neutral with regard to age precisely because age and
pension status were not expressly linked under the terms
of the plan. See id., at 613 (noting that “we do not con-
sider the special case where an employee is about to vest
in pension benefits as a result of his age, rather than years
of service”). In order to prove disparate-treatment liability
the Hazen Paper Court held that the plaintiff needed to
provide additional evidence that his termination in fact
was motivated by age. Id., at 613–614.
The saving feature that was controlling in Hazen Paper
is absent here. This case is the opposite of Hazen Paper.
Here the age distinction is active and present, not super-
seded and absent. Age is a determining factor of pension
eligibility for all workers over the age of 55 who have over
5 (but less than 20) years of service; and pension status, in
turn, is used to determine eligibility for disability benefits.
For these employees, pension status and age are not “ana-
lytically distinct” in any meaningful sense; they merge
into one category. When it treats these employees differ-
ently on the basis of pension eligibility, Kentucky facially
discriminates on the basis of age. Were this not the case,
there would be no facial age discrimination if an employer
divided his employees into two teams based upon age—
putting all workers over the age of 65 on “Team A” and all
other workers on “Team B”—and then paid Team B mem-
bers twice the salary of their Team A counterparts, not on
the basis of age (the employer would declare) but of team
designation. Neither Hazen Paper nor the plain text of the
ADEA can be read to permit this result.
10 KENTUCKY RETIREMENT SYSTEMS v. EEOC

KENNEDY, J., dissenting

The closest the Court comes to reconciling its holding
with the actual text of the statute is its citation to the
Act’s exemption allowing employers to condition pension
eligibility on age. Ante, at 7. Of course, the fact that it
invokes an exemption is a concession by the Court that the
Act otherwise would condemn the age-based classification
Kentucky’s disability plan makes. But the exemption
provides no support for the Court’s holding in any event.
Its coverage is limited to “employee pension benefit plan[s]
[that] provid[e] for the attainment of a minimum age as a
condition of eligibility for normal or early retirement
benefits.” See 29 U. S. C. A. §623(l)(1)(A)(i) (Supp. 2007).
There is no farther reaching exemption for subsequent
employment decisions based upon pension eligibility. And
to the extent the Court finds such a loophole to be implicit
in the text of the statute, a disability benefits program of
the sort at issue here is not the only type of employment
policy that fits through it. If the ADEA allows an em-
ployer to tie disability benefits to an age-based pension
status designation, that same designation can be used to
determine wages, hours, heath care benefits, reimburse-
ments, job assignments, promotions, office space, trans-
portation vouchers, parking privileges, and any other
conceivable benefit or condition of employment.
III
The Court recognizes some of the difficulties with its
position and seeks to limit its holding, yet it does so in
ways not permitted by statute or our previous employment
discrimination cases.
The Court notes that age is not the sole determining
factor of pension eligibility but is instead just one factor
embedded in a set of “complex system-wide rules.” Ante,
at 7. There is no suggestion in our prior ADEA cases,
however, and certainly none in our related Title VII juris-
prudence, that discrimination based on a protected trait is
 Cite as: 554 U. S. ____ (2008) 11

KENNEDY, J., dissenting

permissible if the protected trait is one among many
variables.
This is quite evident when the protected trait is neces-
sarily a controlling, outcome-determinative factor in calcu-
lating employee benefits. In Manhart, for instance, sex
was not the only factor determining how much an em-
ployee was required to contribute to the pension plan on a
monthly basis; the employee’s salary, age, and length of
service were also variables in the equation. 435 U. S., at
705; Brief for Petitioners in Los Angeles Dept. of Water
and Power v. Manhart, O. T. 1977, No. 76–1810, p. 23.
And even though the employer’s decision to require higher
contributions from female employees was based upon an
actuarially sound premise—that women have longer life
expectancies than men—the Court held that the plan
discriminated on its face. 435 U. S., at 711.
Similarly, we have said that the ADEA’s substantive
prohibitions, which were “derived in haec verba from Title
VII,” Lorillard v. Pons, 434 U. S. 575, 584 (1978), require
the employer “to ignore an employee’s age (absent a statu-
tory exemption or defense),” Hazen Paper, 507 U. S., at
612. This statement perhaps has been qualified by the
Court’s subsequent holding in General Dynamics Land
Systems, Inc. v. Cline, 540 U. S. 581 (2004), that the
ADEA does not forbid employers from discriminating in
favor of older workers to the detriment of younger work-
ers. Reasonable minds may have disagreed about the
merits of Cline’s holding. See id., at 601 (SCALIA, J., dis-
senting); see also id., at 602 (THOMAS, J., dissenting). But
Cline does not dictate the path the Court chooses here.
For it is one thing to interpret a statute designed to com-
bat age discrimination in a way that benefits older work-
ers to the detriment of younger workers; it is quite another
to do what the Court does in this case, which is to inter-
pret the ADEA to allow a discriminatory employment
practice that disfavors older workers while favoring
12 KENTUCKY RETIREMENT SYSTEMS v. EEOC

KENNEDY, J., dissenting

younger ones. The Court, moreover, achieved the result in
Cline by reading the word “age” to mean “old age”—i.e., by
reading “discriminat[ion] . . . because of [an] individual’s
age,” 29 U. S. C. §623(a), to mean discrimination because
of an individual’s advanced age. See Cline, supra, at 596.
Here the Court seems to adopt a new definition of the
term “discriminate” by holding that there is no discrimina-
tion on the basis of a protected trait if the trait is one
among several factors that bear upon how an employee is
treated. There is no principled way to draw this distinc-
tion, and the Court does not attempt to do so. Cf. Man-
hart, supra, at 710 (“[T]here is no reason to believe that
Congress intended a special definition of discrimination in
the context of employee group insurance coverage”).
The Court recites what it sees as “several background
circumstances [that] eliminate the possibility that pension
status, though analytically distinct from age, nonetheless
serves as a ‘proxy for age’ in Kentucky’s Plan.” Ante, at 7.
Among these is a “clear non-age-related rationale,” ibid.,
“to treat a disabled worker as though he had become
disabled after, rather than before, he had become eligible
for normal retirement benefits,” ante, at 8. There is a
difference, however, between a laudable purpose and a
rule of law.
An otherwise discriminatory employment action cannot
be rendered lawful because the employer’s motives were
benign. In Automobile Workers v. Johnson Controls, Inc.,
499 U. S. 187 (1991), the employer had a policy barring all
female employees, except those who were infertile, from
performing jobs that exposed them to lead. The employer
said its policy was designed not to reinforce negative
gender stereotypes but to protect female employees’ un-
born children against the risk of birth defects. Id., at 191.
The argument did not prevail. The plan discriminated on
its face on the basis of sex, and the employer did not estab-
lish a bona fide occupational qualification defense. As a
 Cite as: 554 U. S. ____ (2008) 13

KENNEDY, J., dissenting

result, the Court held that the restriction violated Title
VII. “[T]he absence of a malevolent motive [did] not con-
vert a facially discriminatory plan into a neutral policy
with a discriminatory effect.” Id., at 199.
Still, even if our cases allowed the motive qualification
the Court puts forth to justify a facial and operative dis-
tinction based upon age, the plan at issue here does not
survive the Court’s own test. We need look no further
than the Commonwealth’s own brief for evidence that its
motives are contrary to the ADEA. In its brief the Com-
monwealth refers to the 61-year-old complainant in this
case, Charles Lickteig, as follows:
“An employee in Mr. Lickteig’s position has had an ex-
tra 21 years to devote to making money, providing for
himself and his family, saving funds for retirement,
and accruing years that will increase his retirement
benefits. Thus, the 40-year-old employee is likely to
need more of a boost.” Brief for Petitioners 23.
The hypothetical younger worker seems entitled to a boost
only if one accepts that the younger worker had more
productive years of work left in him at the time of his
injury than Lickteig did. As an actuarial matter, this
assumption may be sound. It is an impermissible basis for
differential treatment under the ADEA, however. As we
said in Hazen Paper, the idea that “productivity and com-
petence decline with old age” is the “very essence of age
discrimination.” 507 U. S., at 610. By forbidding age
discrimination against any “individual,” 29 U. S. C.
§623(a), the ADEA forbids employers from using the blunt
tool of age to assess an employee’s future productivity. Cf.
Western Air Lines, Inc. v. Criswell, 472 U. S. 400, 409
(1985) (noting the Labor Department’s findings that “the
process of psychological and physiological degeneration
caused by aging varies with each individual”). Whether
this is good public policy in all instances might be debat-
14 KENTUCKY RETIREMENT SYSTEMS v. EEOC

KENNEDY, J., dissenting

able. Until Congress sees fit to change the language of the
statute, however, there is no principled basis for upholding
Kentucky’s disability benefits formula.
* * *
As explained in this dissent, Kentucky’s disability re-
tirement plan violates the ADEA, an Act intended to
promote the interests of older Americans. Yet it is no
small irony that it does so, at least in part, because the
Commonwealth’s normal retirement plan treats older
workers in a particularly generous fashion. Kentucky
allows its employees to retire at the age of 55 if they have
accumulated only five years of service. But for this provi-
sion, which links age and years of service in a way that
benefits older workers, pension eligibility would be a
function solely of tenure, not age. Accordingly, this case
would be more like Hazen Paper, and the EEOC’s case
would be much weaker. Similarly, as the Court notes,
ante, at 10, Kentucky could avoid any problems by not
imputing unworked years of service to any disabled work-
ers, old and young alike. Neither change to the plan
would result in more generous treatment for older work-
ers. The only difference would be that, under the first
example, older workers would lose the option of early
retirement, and, under the second, younger workers would
see their benefits cut. These are not the only possible
remedies—the Commonwealth could impute unworked
years of service to all employees forced into retirement on
account of a disability regardless of age.
The Court’s desire to avoid construing the ADEA in a
way that encourages the Commonwealth to eliminate its
early retirement program or to reduce benefits to the
policemen and firefighters who are covered under the
disability plan is understandable. But, under our prece-
dents, “ ‘[a] benefit that is part and parcel of the employ-
ment relationship may not be doled out in a discrimina-
 Cite as: 554 U. S. ____ (2008) 15

KENNEDY, J., dissenting

tory fashion, even if the employer would be free . . . not to
provide the benefit at all.’ ” Thurston, 469 U. S., at 121
(quoting Hishon v. King & Spalding, 467 U. S. 69, 75
(1984)). If Kentucky’s facially discriminatory plan is good
public policy, the answer is not for this Court to ignore its
precedents and the plain text of the statute.
For these reasons, in my view, the judgment of the
Court of Appeals should be affirmed and the case re-
manded for a determination whether the State can assert
a cost-justification defense.