US Supreme Court: 06-1037

8/14/2019 US Supreme Court: 06-1037

http://slidepdf.com/reader/full/us-supreme-court-06-1037 1/63

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Official - Subject to Final Review

IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - - x

KENTUCKY RETIREMENT :

SYSTEMS, ET AL., :

Petitioners :

v. : No. 06-1037

EQUAL EMPLOYMENT :

OPPORTUNITY COMMISSION. :

- - - - - - - - - - - - - - - - - x

Washington, D.C.

Wednesday, January 9, 2008

The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 11:09 a.m.

APPEARANCES:

ROBERT D. KLAUSNER, ESQ., Plantation, Fla.; on behalf of

the Petitioners.

MALCOLM L. STEWART, ESQ., Assistant to the Solicitor

General, Department of Justice, Washington, D.C.; on

behalf of the Respondent.

1Alderson Reporting Company



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


C O N T E N T S

ORAL ARGUMENT OF PAGE

ROBERT D. KLAUSNER, ESQ.

On behalf of the Petitioners 3MALCOLM L. STEWART, ESQ.

On behalf of the Respondent 23REBUTTAL ARGUMENT OFROBERT D. KLAUSNER, ESQ.

On behalf of the Petitioners 49




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


P R O C E E D I N G S

(11:09 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear argument

next in Case 06-1037, Kentucky Retirement Systems v.

EEOC.

Mr. Klausner.

ORAL ARGUMENT OF ROBERT D. KLAUSNER

ON BEHALF OF THE PETITIONERS

MR. KLAUSNER: Mr. Chief Justice, and may it

please the Court:

Retirement eligibility in Kentucky is based

on 20 years of service or age 55. Age is not the only

determinant. And "age" is not a bad word. As Justice

White said in McMann v. United Airlines, all retirement

plans necessarily make distinctions based on age.

Here it is age or service. And the EEOC's

focus on age alone fails to appreciate that Kentucky is

an integrated, consolidated retirement plan with the

goal of providing benefits to all qualified workers. To

say, as the EEOC does, that all younger workers will

always fare better than all older workers is factually

wrong, and it fails to appreciate the myriad factors

that go into determining pension amounts.

It's not age alone that determines the

result. Age is a factor. It's not the factor. The




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


plan is not facially discriminatory, it's not arbitrary,

and it doesn't violate --

JUSTICE BREYER: I guess the part that they

are saying is arbitrary as I understand it, and I

appreciate your correcting me if I don't understand it

correctly, is that you get double your pension at 55 if

you've worked 20 years as opposed to 10. Is that right?

MR. KLAUSNER: No, Mr. Chief Justice --

JUSTICE BREYER: A worker who has been

there, he's qualified, he has only worked for 10 years

and now he's 55 years old. There is a chart in the SG's

brief, and as I read that chart, he got amount "X". He

started at 45, he ended up at 55, he gets "X". If he

started at 35 and worked for 20 years, he would get much

more than "X".

MR. KLAUSNER: If the EEOC's chart were --

correct, that would be true, Your Honor, limited only to

the amount of imputed service. The person who began

younger in the example which Your Honor used would get

more imputed service.

JUSTICE BREYER: You would get "Y", because

he worked for 20 years rather than 10; is that right?

I'm not talking about a disabled person. I'm talking

about anybody.

MR. KLAUSNER: No, Your Honor. That's only




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


in the case of disability. In a normal requirement

setting, one works a number of years and you get two

and-a-half percent of your salary for each year that you

worked.

JUSTICE BREYER: So if a person works for 20

years, he gets more than if he worked for 10 years; is

that right?

MR. KLAUSNER: That's right.

JUSTICE BREYER: Now he is disabled. And

when he's disabled, if he's disabled after working only

10 and he is 45 years old, they pretend he had worked

the full 20?

MR. KLAUSNER: They impute -- yes, Your

Honor. They impute the additional service to you.

JUSTICE BREYER: Now I understand it.

Now, this individual says, I was working

there after the age of 55, I only worked for 14 years,

now I become disabled. If I become disabled before I

was 55, let's say I had six years to go, they would give

me six years extra. But because I was disabled after

I'm 55, I get nothing extra. Nothing is imputed. Is

that right?

MR. KLAUSNER: It's only partially right,

Mr. Justice. Justice Breyer, the reason that you get

additional before age 55 is the same as the reason why




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


you get extra before you reach 20 years.

JUSTICE BREYER: I didn't ask you for the

reasons. I want to know if I'm factually right.

MR. KLAUSNER: Your only partially --

JUSTICE BREYER: Where am I factually wrong?

MR. KLAUSNER: The difference is that the

imputed service comes before 55, because you're not

eligible for after 55 or after 20 years you are eligible

for benefits --

JUSTICE BREYER: You're giving me reasons.

I'll ask you in a second for the reasons. I want to

know if what I said is factually true?

MR. KLAUSNER: If you were disabled before

normal retirement, you receive imputed service.

JUSTICE BREYER: And not after?

MR. KLAUSNER: Correct.

JUSTICE BREYER: Okay. Now I'll say that I

think is the discrimination of which he is complaining.

And now what he would like to know is what possible

reason is there for that difference? Now I'd like to

hear what the reason is that justifies that difference.

You give him six extra years when he retired

after 14 years and though he was only 49 years old, and

you don't give him even one extra year when everything

else was the same but he retired after he was 55.




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


Now, explain to me what the reason is for

that.

MR. KLAUSNER: The reason for that, Justice

Breyer, is as follows: The person who's 49 and gets

disabled, assuming he does not have -- he or she doesn't

have 20 years of service, can't retire. The person who

is 55 in your example can leave tomorrow.

Additionally, the person who begins work

older starts out closer to retirement. We are not

talking about two different groups of people. The plan

favors the older worker by saying on the day you begin

work, you're always closer to retiring than a younger

person.

The purpose of the imputed service is to try

to replicate as closely as possible within some

financial limits set by the -- by the General Assembly

of Kentucky what you would have received had you made --

JUSTICE BREYER: No. He says now, what he

says to that, I take it, is fine. He is 49 years old.

He has six years to go to qualify for retirement, so let

him retire. If you let him retire, and you gave him 14

years of credit, you would be treating him just like

you're treating me.

But in addition to letting him retire, you

give him six extra years of credit, which at two




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


and-a-half percent per year. Good, I'm glad you do

that. Give me the six extra years at two and-a-half

percent as well. Treat us alike.

What's your response?

MR. KLAUSNER: My response, Justice, is

this. They start out un-alike. As I mentioned before,

the person who was in 55 in your example, A, is already

eligible for benefit. He doesn't have to wait to be

disabled. He may leave tomorrow.

The person who starts younger, particularly

in a public safety retirement plan, spends more time in

the line of fire than the person who starts older. The

person who starts older takes advantage of the fact that

in this retirement plan you can retire with as little as

five years of service. Actually a person who is 55 is

eligible for a benefit after only a month. In fact,

Kentucky may be the only plan in the country that does

that.

But where they don't start out alike and

where the EEOC's chart is based on fallacy is that the

person who began older in work in your example was

always closer to retirement, they needed less years.

The purpose of the plan for disability

purposes, which is not a separate plan, it's simply a

means of getting one to normal retirement who is not




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


otherwise eligible.

JUSTICE KENNEDY: This has been very

helpful, but it does seem to me to raise a question

about the fairness of your opening statement. You began

by saying something to the effect that this does not

discriminate on the basis of age. It does. Age is the

explicit factor that the statute uses in order to answer

Justice Breyer's question. And the Act does not

prohibit the use of age in all circumstances to which it

applies, but it does -- the Act goes on to prohibit the

use of age in some of the circumstances. And one of

those circumstances is the hypothetical of the

55-plus-year-old person used in Justice Breyer's

statement and example.

So, it is not correct, it seems to me, for

you to say that this does not discriminate on the basis

of age. Now, maybe there is some good reasons for doing

that, you can get into that, but it seems to me it does

make an explicit determination based on age as to some

people.

MR. KLAUSNER: Respectfully, Justice

Kennedy, I think that's not entirely correct, for this

reason. The plan makes the determination of eligible to

retire on 20 years or age 55 with five years. In other

words, it makes the determination not based on age but




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


on pension status, that is, eligibility to receive an

unreduced normal retirement.

JUSTICE SCALIA: You're saying you're one

step removed. You're making your determination on the

basis of eligibility for retirement, which in turn is

based on age. And you're saying that that --

JUSTICE STEVENS: It's sometimes based on

age.

JUSTICE SCALIA: Huh?

JUSTICE STEVENS: It's sometimes based on

age, sometimes years of service.

JUSTICE SCALIA: Right.

CHIEF JUSTICE ROBERTS: And always based on

age plus service.

MR. KLAUSNER: Right. Yes, Mr. Chief

Justice.

JUSTICE SOUTER: But your answer, as I

understand it, to Justice Breyer's question was, could

be boiled down to this: The person whose disability

benefit or total benefit following disability is

calculated on the basis of age 55, is less likely to

have worked or is likely to have worked less long than

the person whose benefit is imputed and calculated on

the basis of 20 years. And because the odds are that

we'll say the person in the 55-year-old category has

10

Alderson Reporting Company



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


worked less and endured less risk, it is, therefore,

fair to impute less time on average to such a person,

and therefore, give a lower benefit.

You're saying there is a tradeoff. And the

tradeoff is because the 55-year-old retiree may get a

benefit after very little work and very little risk, it

is therefore fair and not a discrimination that on the

average the windfall is less for that person by the

imputation than the windfall to the person who retires

on the basis of age 20.

Is that a fair statement of your argument?

MR. KLAUSNER: Yes.

JUSTICE SOUTER: Okay.

MR. KLAUSNER: As I noted before, it's

about retirement eligibility, not about age.

In Hazen Paper you dealt with the question

of an individual who was fired because they were about

to meet the 10-year vesting requirement in a private

sector plan. The person was also over the age of 40.

The Court found that it wasn't an age discrimination

case because it said that age was merely correlated with

what the Court called pension status. I think pension

status and retirement eligibility, which can occur at 20

years or it can occur at age 55 with some service, is

exactly the same. In --

11




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


JUSTICE ALITO: That would be a good

argument if the sole basis for retirement under your

system was years of service, but it's not just years of

service, isn't that right?

MR. KLAUSNER: That's correct, Justice. One

needs some service, but one may retire at 55 or one may

retire at 20 years.

JUSTICE ALITO: You can't take your -- you

couldn't take your statute and erase all the references

to age and have the statute work, could you?

MR. KLAUSNER: No. And I don't -- I don't

think that pension statutes are required to eliminate

any use of age at all.

JUSTICE ALITO: Because the ADA expressly

allows them to do that; isn't that right?

MR. KLAUSNER: The ADA is designed to

eliminate arbitrary age discrimination. That is where

the design of the plan is motivated by a policy of the

employer to discriminate, to provide less solely because

of the individual's age.

JUSTICE SOUTER: That's -- you're sticking

in a word, "arbitrary," that appears nowhere in the body

of the statute. You picked it up from the preamble, and

that's -- and you're interpreting the statute with that.

And it isn't customary for this Court to take words that

12




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


don't appear in the text of the statute and read them

in, based on some statement of purpose or preamble.

MR. KLAUSNER: Justice Ginsburg, I'm aware

that the preamble alone doesn't direct, and I understand

that the operative language is in 623(a). But I think

that the --

JUSTICE SCALIA: You'd be in better shape if

it was in legislative history and not in the preamble.

We probably would take it into account.

MR. KLAUSNER: I think, Justice, the

legislative history is important for this reason. When

Title VII was first written age was included and then it

was taken out, and there was a reason why it was taken

out: Because there is never a reason to discriminate on

the basis of race, there is never a reason to

discriminate on the basis of national origin or

religion; but in government retirement plans, which are

paid for life and in which the calculation is determined

in part on age, on how long someone will live and how

long they've worked and that interrelationship, I think

Congress recognized age is qualitatively different.

JUSTICE GINSBURG: I think the Congress

recognized that what they were protecting was not age as

such, but old age, where in the other case they say it's

the racial criterion and whether it's -- or the sex

13




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


criterion, whether it's a man that's adversely affected

or a woman it doesn't make any difference; Title VII

applies to them both. But the Age Discrimination Act

doesn't apply to younger workers. It doesn't say that

you can't discriminate on the basis of age, so you can't

prefer the older person over the younger person.

MR. KLAUSNER: Justice Ginsburg, I

understand this Court's holding in Cline was that the

statute is intended to protect the relatively older as

it relates to the relatively younger. But you also said

in Cline that age is qualitatively different, because

what gives age reason in terms of discrimination is when

it's arbitrary. That is, when it is invidious, and

that's the distinction between the Title VII cases that

the Government relies on, and why I think Hazen Paper is

important, because, as the Court said, unless you can

show in a disparate treatment case that the policy is

motivated by age, then I think that the -- the intent

goes. And the -- one cannot draw from the face of the

Kentucky statute -- and that's what this is; this was a

challenge that said the statute discriminates on its

face -- that the only inference that one can have is

that the design of the plan is motivated to pay older

people less.

JUSTICE GINSBURG: There is one little piece

14




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


of it that seems, that clearly does favor the younger

retiree. And that's the -- what is it -- you're

guaranteed, what was it, at least 25 percent of your

final monthly salary. That's not under -- for a regular

retiree; and also this 10 percent that you get added on

for each child -- that's not part -- that's somebody who

is disabled gets that, but not somebody who is already a

retiree. Isn't that so?

MR. KLAUSNER: That is correct, but Justice

Ginsburg, that type of disability is not the disability

which was at issue in this particular case. That is for

a person who is disabled from any ability to work,

period, in other words, the Social Security standard of

disability. The disability at issue in this case was

the inability to work as a public safety officer, in

this case a police officer.

JUSTICE GINSBURG: I'm not sure that I

follow that answer.

JUSTICE STEVENS: Am I correct in

understanding that your plan does not provide a

disability benefit just as a disability benefit? The

only time disability is relevant is when it determines

whether or not a person will become eligible for the

regular retirement benefit?

MR. KLAUSNER: That's correct. This isn't,

15




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


for example, a stand-alone disability insurance policy.

JUSTICE STEVENS: So that for the old person

who has already reached retirement age the fact that he

doesn't get a disability benefit is common to everybody

subject to the plan.

MR. KLAUSNER: It is common subject to

everyone in the plan without --

JUSTICE STEVENS: Isn't that the answer to

Justice Breyer's question?

MR. KLAUSNER: And I -- you certainly said

it better than I did, Justice Stevens.

CHIEF JUSTICE ROBERTS: But is there any

reason -- I think what you're saying is we should view

this as a retirement plan and there are a number of ways

you can be eligible for retirement: Age plus years of

service, but another way you can be eligible is

disability.

MR. KLAUSNER: Disability fills in -- it

covers a gap. Disability is designed to cover you in

most instances from the time you get five years of

service -- and by the way, you're uncovered in this plan

for disability for the first five years of employment

except for a very limited, specific number of instances

in which only total disability from all work applies.

So in the case of the individual who the

16




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


EEOC talks about as having been discriminated against,

if you were a younger worker for the first five years of

employment you would have been not covered. A 55 -- for

any benefit at all. A person who starts at 21 and gets

disabled from work as a police officer or firefighter

for the first five years of employment has no protection

at all.

JUSTICE GINSBURG: But let's take the one

who gets over the five-year initial period. The

disability pay when you no longer can be in the

hazardous occupation, it will begin immediately, right?

You don't wait until you get -- you're 55 to get it.

MR. KLAUSNER: No, ma'am. That's the

purpose of the imputed services. And it's

essentially -- we say if during this gap of time before

normal retirement, this risk that's covered, that if

this disabling event occurs, we advance you to normal

retirement immediately and try to replicate as closely

as possible the benefit that one would have achieved had

you worked to the closest --

JUSTICE BREYER: But that's the point,

right?

MR. KLAUSNER: -- point of eligibility.

JUSTICE BREYER: There -- that's what the

complaint is, I think, that you say it's the second part

17




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


that you just said. What you do when the person is

disabled and he is not yet 55 -- he hasn't qualified

yet -- is you both qualify him, and when you qualify him

you give him credit for years he hasn't worked. Now,

the older person who is still working and is also

disabled says: Fine, you let me retire, but you don't

give me any extra years.

Now that's the complaint, I think. So that

if you had a person who had started at 45, eligible to

retire at 55, works for 4 years and becomes disabled, he

is credited with 14 years; while the person who started

at 35 and at 45 becomes disabled, he is given 20 years.

He is given the 10 extra years. So the first person,

older person, says: You gave him some extra years; you

didn't have to give him those extra years in order to

qualify him to retire. You could have just said you can

retire, but you gave him 10 extra years and you give me

no extra years. Why not?

MR. KLAUSNER: The answer to your question,

Justice Breyer, is the person who has either 20 years or

is 55 on the day they become disabled is already

eligible to retire. The plan is a single plan that

provides a benefit. If you start older, you have to

work less to get there. By the same token, by starting

closer to retirement you need less added to your balance

18




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


to bring you to normal retirement. In the example --

JUSTICE BREYER: You don't need anything to

bring you to normal retirement. You could rewrite the

plan and say when a person becomes disabled you get

retirement, right at that moment. You could say that.

And what the plaintiff is saying is, why don't you say

that? Though it's a bit mean. But I think what he

would probably like is you would extend the extra years

to him.

MR. KLAUSNER: There's reasons why that

isn't done. Number one, to follow your example, Justice

Breyer, for current employees, people hired before 2004,

of which there were several hundred thousand, you'd have

to lower the benefit to follow your example. The

Kentucky Constitution forbids lowering the benefits.

Actually, the Commonwealth, in response to the liability

in this case, did change the disability benefit. For

people hired after 2004, they slashed its economic value

substantially, and now everybody just gets a certain

amount of disability. It doesn't, however, accomplish

the Commonwealth's goal of attracting and retaining

employees to do hazardous duty jobs.

CHIEF JUSTICE ROBERTS: So the effect of

this litigation is that policemen or firefighters who

are injured and become disabled now get lower benefits

19




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


for disability?

MR. KLAUSNER: Much lower. It's a

substantial reduction. They just get a small piece of

change.

It's interesting, you know, in the Federal

Civil Service Retirement System, the police officers,

for example, who work in this Court, if they become

disabled, they have imputed service to an age. It's a

very similar system. In fact, all employees in both

FERS, the Federal Employees' Retirement System, and the

Civil Service Employees' Retirement System, both

participate in a program where age is imputed to normal

retirement. It's a common practice, as the Court can

see from the amicus briefs. It's a common practice

throughout the United States. I think --

JUSTICE BREYER: See, that's why I think the

result in this case is just terrible. I think it takes

disabled people and cuts their benefits with no benefit.

I cannot believe for two minutes that Congress would

have intended that result. But the reason I asked you

the question was I want you to tell me how to get to

that result under this statute.

MR. KLAUSNER: You may get to this result in

this way: If you determine that age is not the driver,

that is, that because you have a plan that has normal

20




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


retirement based on service alone, a 38-year-old

employee who gets disabled with 18 years of service gets

two years of imputed service. The 45-year-old, in your

example, who started at 35 would get 10 years.

JUSTICE KENNEDY: Suppose I can't make that

assumption or adopt that premise. Is there another

basis on which to reach the result? I think this does

explicitly discriminate based on age as to some people,

and you're telling me you don't want me to do that. But

Suppose I don't agree with you. Is there some other way

to reach the result?

MR. KLAUSNER: I think Your Honor you can

reach the result in this way. The statute was

challenged as being facially discriminatory, and I think

under this Court's precedents for facial discrimination,

one would have to say that the only reasonable inference

in the statute, by its mere use of age, is that you say

that it starts out presumptively discriminatory. What

the Government has really argued here is an as-applied

circumstance. They said the effect of the statute in

certain cases, and in those circumstances the statute

would stand on its face and if there is a circumstance

in which someone effectively is discriminated, then you

look to see are there reasonable factors other than age

that effect -- that take effect in this instance?

21




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


Secondly, I think the Court can determine --

and I think this is the question that is the next step

after Hazen, where you said that age correlated with

pension status, in that case being vested for 10 years.

The question is, if a plan has eligibility to retire as

its motivation, that is, it is service regardless of age

or age plus service, is it really motivated by age? And

I think the answer to that question, Justice Kennedy,

clearly is no.

The one thing I would add is if you look at

the statute in Betts, the Ohio case, which is the last

time an age case on a public plan got to this Court, in

the Ohio plan you couldn't get a disability because you

were 60, but you could also retire in that plan just

like Kentucky on years of service alone, but a

years-of-service retiree in Ohio could get a disability.

That's not true in Kentucky. Somebody who

starts as a firefighter at 18 no longer has disability

protection at 38 years old. A person who starts as a

police officer at 45 retains disability coverage until

they're 55. I think -- I think the language of the

statute alone enables you to get there.

And I think to get back to Justice

Ginsburg's question -- and I don't believe I fully

answered on this issue of the role of the word

22




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


"arbitrary" in the statute -- I think that that gives

that word meaning, not just because it's in the

preamble, but because it's in the legislative history,

and the evil that Congress was trying to get to is what

is it that we're trying to prevent? We're trying to

create job opportunities for older workers, and what

Congress said after Betts is you want to make sure

benefit plans are covered. And I think Kentucky has

accomplished both. It doesn't use a retirement age, as

many employers do. Again, the Federal Government forces

police officers and firefighters out of their jobs.

Firefighters at 55, police officers at 57. Kentucky

doesn't. The program doesn't discriminate on the basis

of age.

If there's no question, I'd like to reserve

the rest of my time for rebuttal.

CHIEF JUSTICE ROBERTS: Thank you, counsel.

Mr. Stewart.

ORAL ARGUMENT OF MALCOLM L. STEWART

ON BEHALF OF THE RESPONDENT

MR. STEWART: Mr. Chief Justice, and may it

please the Court:

In calculating the retirement benefits owed

to disabled workers, Kentucky uses age as an explicit

decisionmaking factor in a way that disadvantages older

23




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


employees. Although Kentucky may be able to establish

on --

JUSTICE BREYER: Let me ask you this sort of

basic question: Does it use age any differently than it

uses years of service?

MR. STEWART: It does in the sense that,

with respect to disabled employees, two employees who

have the same total years of actual service but who are

of different ages may receive dramatically different

benefits.

JUSTICE STEVENS: That's because of the

period necessary to qualify for retirement?

MR. STEWART: It's -- let me direct your

attention to the relevant provision of the Kentucky

statute, and it's at page 7a and 8a of the blue brief.

This is with respect to -- it's true that, for a normal

retirement, an individual either has to be age 55 with 5

years of service or have 20 years of service at whatever

age. But if you look at the requirements for disability

retirement in particular, the very bottom of the page,

it says: "Any person may qualify to retire on

disability subject to the following. The person shall

have 60 months of service, 12 of which shall be current

service credited under provisions of Kentucky law."

JUSTICE STEVENS: Let me just interrupt you.

24




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


Is there -- is it your position there is a disability

benefit that is different from the retirement benefit?

MR. STEWART: They -- they are different in

the sense that they are calculated differently. That

is, if all Kentucky had done was say --

JUSTICE STEVENS: I thought that all that

disability did was determine -- help get a man who is

disabled eligible for the retirement benefit.

MR. STEWART: The program --

JUSTICE STEVENS: That's the only function

it provides.

MR. STEWART: I think that's incorrect.

There are two distinct functions of -- there are two

distinct differences between disability retirement and

normal retirement: The first is that the eligibility

criteria are different. In order to qualify for normal

retirement, you have to be either 55 years old with 5

years of service or have 20 years of service. For

disability retirement, you become eligible if you are of

any age and are forced to retire due to disability and

have at least five years of service.

JUSTICE SCALIA: Well, why does that matter?

I mean, the exception in the statute is for -- for

retirement, taking age into account for retirement, is

narrowly crafted. It says that they can make any

25




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


decision about -- they can require the attainment of a

minimum age as a condition of eligibility for normal or

early retirement.

Now, we have not read that to exclude adding

an additional element to age, namely age plus years of

service. We don't say that that disables you from the

-- from that exemption. Why can't you add a third

factor? Age, years of service, and disability.

MR. STEWART: You can't. The first thing I

would say about that exception is it refers specifically

to a minimum age, and what that was intended to make

clear was that to the extent that Kentucky allows

55-year-olds to retire with only 5 years of service, but

requires a 45-year-old to have 20 years of service, that

minimum age would not violate the statute. Now, as a

result of this Court's decision in Cline, that provision

in a sense is superfluous because the younger worker

wouldn't have an ADEA claim anyway. But the reference

to a minimum age is intended to address that situation.

JUSTICE SCALIA: And --

JUSTICE ALITO: It seems to me that what

Kentucky is trying to do is to, at least in part,

provide make-whole benefits for a police officer who

becomes disabled below the age of 55. So what they want

to do is to say we want to give you the benefit that you

26




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


would have received if you had not been hurt on the job

and therefore unable to work and had been able to work

to the normal retirement age.

Now, if that's correct, is that an

illegitimate objective? And if it's not an illegitimate

objective, is there any way that they can do that

consistent with your understanding of the ADEA? Because

when someone is over the retirement age, it's rather

hard to see how many years you would add on projecting

how long that person would continue to work beyond the

age of retirement eligibility.

MR. STEWART: It is certainly not

illegitimate for Kentucky to say: We want to be more

generous to people who are forced to retire due to

disability than to people who choose to retire

voluntarily when they are physically capable of

continuing to work.

And so if Kentucky wants to say, in the case

of an individual who is forced to retire due to

disability, we will add additional years in computing

benefits to estimate the number of years this person

would have worked had he or she not become disabled,

that's fine as well.

What they can't do, at least what they can't

do without establishing one of the affirmative defenses,

27




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


is use age as a proxy, as the basis for deciding how

many years would this person have worked if he or she

had not become disabled because --

JUSTICE ALITO: So if they want to do that

and they have a case of a police officer who works

beyond 55 -- the officer is 55-plus with 10 years of

service and then becomes disabled -- you say they have

to give that person 10 years of credit.

MR. STEWART: If they are going to give the

45-year-old with 10 years of service 10 years of credit,

they have to give the 55-year-old 10 years of service --

with 10 years of service 10 years of credit, again,

unless they can establish the cost-justification

defense.

And part of the argument they are making is

it would be unduly expensive to guarantee the

55-year-old an additional 10 years of service, because

it's much more likely that the 55-year-old will become

disabled than it is with the 45-year-old.

JUSTICE SOUTER: But he is saying one thing

more. He is saying it's also highly unlikely that the

55-year-old has worked as long subject to risk at the

point at which the calculation is made than is the case

with the person who retires on the basis of 20 years.

And so that there is a tradeoff. And, therefore, you

28




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


constantly analyze this as the kind of garden variety of

discrimination based on age which Congress was aiming

for.

MR. STEWART: Well, to go back to the

question you were asking Mr. Klausner, I think if we

were looking at the class of voluntary retirees, it

would be an accurate generalization to say that those

above 55 were likely to have fewer years of service than

the younger people. Because the only way that a younger

person could qualify for normal retirement would be to

amass 20 years of service; whereas, the older person

could do it with fewer years.

But if you are looking at people who want to

continue working but who are prevented from doing so by

reason of disability, there is no reason to assume that

the older people are going to have spent less time in

the line of fire than the younger people. And, in any

event, the comparison that we are making --

JUSTICE SCALIA: Just say that again. Just

say the last thing again. I didn't follow you.

JUSTICE SOUTER: Yes. I didn't get it

either.

MR. STEWART: If we're looking at the class

of people who -- including over 55-year-old and under

55-year-old -- who want to continue working but who have

29




1

2

3

4

5 --

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


been prevented from doing so by reason of disability,

there is no reason to think that the older people within

that class, as a group, will have fewer years in the

line of fire than the younger people. And, in any event

JUSTICE SCALIA: Why? I -- I think -- you

mean in the future?

MR. STEWART: No. No. Under their belt.

Under their belt.

JUSTICE SCALIA: Under their belt. I see.

JUSTICE SOUTER: They are exactly the same

people. The only thing that distinguishes the one

class, those who voluntarily do and those who are

disabled, is happenstance; and the happenstance is

disability in the line of service.

MR. STEWART: It's not just happenstance,

because if you're guessing the likely tenure of service

of people who take voluntary normal retirement before

age 55, in a sense you are skewing the class, because

the only people who can do that under Kentucky law are

people with at least 20 years of service.

So the voluntary retirees, the younger

people, as a group, are likely to be -- have longer

tenure. But that generalization doesn't hold true with

respect to people who are forced to retire due to

30




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


disability.

JUSTICE STEVENS: It seems to me your

argument boils down to the claim that people who have

already reached -- become eligible for retirement by

either age or period of service, the State has a duty to

give them a chance to recover a disability benefit if

they give a disability benefit to younger workers.

MR. STEWART: No. Our point is that they

should use the same computation methodology for both

categories of employees.

JUSTICE STEVENS: The computation is for a

different purpose in that -- in -- for the younger

workers the purpose is to make them eligible for

retirement. For the older workers, they are already

eligible for retirement.

MR. STEWART: I think that's incorrect, and

that was really the point I was making by quoting from

the Kentucky law on page 7a and 8a. The Kentucky

provision that I quoted was the provision that

establishes eligibility for disability retirement. And

it says, as the criterion for eligibility, beyond, of

course, the fact of disability, the person shall have 60

months of service.

So an individual under Kentucky law who is

forced to retire due to disability and has at least five

31




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25 --


years of service is eligible for disability retirement.

The imputation of additional years of service is not

necessary --

JUSTICE STEVENS: The term "eligibility for

retirement," as used in that part of the statute, is

referring to actually the same thing as retirement

achieved by getting their -- getting credit for

post-disability years.

MR. STEWART: Exactly. Well, the purpose of

defining the category of eligible persons is to make

sure that they do get a retirement benefit even though

they wouldn't satisfy the normal age and service

requirements for ordinary retirement. And we have no

problem with that.

Kentucky can say we want to define a

separate category of individuals who don't satisfy

normal age and service rules but who should,

nevertheless, be given a retirement benefit because they

have been forced to retire due to disability. That's

fine.

And if they use the same computation

methodology, namely, some factor of actual years of

service times final compensation times a multiplier, as

they do for normal retirement, that would be fine. Our

32




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


who are disabled at a time when they are younger and

probably have fairly good expenses, and everybody gets

this kind of insurance.

And this man who is the Plaintiff here had

it, too, while he was there. So it's true you are

really using in a minimal sense age, but you are doing

it in a statute that permits you to do it because it's a

lesser version of that.

MR. STEWART: There are a couple of things

I'd say. The first is that the Act is quite specific in

saying that a State may establish a minimum -- may

establish a retirement age with respect to its State

police and firefighters, but it doesn't say the ADEA is

inapplicable to police and firefighters who are over age

55.

JUSTICE BREYER: It doesn't say it's

inapplicable. I wasn't saying it's inapplicable. What

I am worried about -- and this is a perfect example of

people using absolutely mechanical rules, and

particularly when you talk about pension systems, which,

of course, age is relevant to a pension system, and what

they do is find comparisons; and, before you know it,

you are in the kind of a -- of a hamburger situation

where it's so chopped up that perfectly worthwhile

things are forbidden. And this would seem to be a

34




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


number 1 exhibit.

MR. STEWART: There are several different

answers I would give. The first is if the greater

included the lesser, it would be permissible for

Kentucky to say: We will keep the over 55-year-old

people on the work force, but we'll pay them less

because of their age.

JUSTICE BREYER: No, because what you are

looking at is to see whether the purpose of Congress is

somehow implicated, a purpose designed to prevent

stereotypical thinking from being used to put older

people at a disadvantage. And there is no indication

that this is so in this case.

MR. STEWART: I think --

JUSTICE BREYER: Now, what's the response?

MR. STEWART: I think that's incorrect, that

is, the two justifications that have been given for the

disparate treatment of older workers are, first, younger

workers as a group are likely to need more of a boost;

and, second, the younger disabled person probably would

have worked longer if he had not become disabled. And

so this replicates the situation that would have

prevailed.

I think, whether or not you want to think of

those as stigmatizing stereotypes, it's quite clear that

35




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


neither of those generalizations could typically be used

as a basis for age-based disparities.

For instance, nobody would claim that an

employer could pay the older workers less because they

are likely to be less in need of financial assistance.

And with respect to the initial --

JUSTICE SOUTER: The reason for that is that

we accept the criterion at the outset that your pay

bears some relationship to what you do.

We are now in a situation in which the

benefit does not bear a relationship to what you are

doing or going to do.

MR. STEWART: Well, on the whole, the

benefit bears a close -- the retirement benefit bears a

close relationship to what you have done. That is, the

benefit is calculated on the basis of actual years of

service, and the purpose clearly is, in part, to reward

the employee for service to the employer.

But with respect to -- and that's the way

it's done with respect to the older disabled worker.

His benefits are computed based on what years of service

he has actually contributed to the employer. With

respect to the younger people, it's not based on that

alone. Rather, the State imputes additional years --

JUSTICE GINSBURG: And with respect to that,

36




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


Mr. Stewart, the problem that Justice Breyer brought up,

you -- if you would look to your brief, page 30,

footnote 13, the question is, so we have this -- if we

take your interpretation of the statute, how can we deal

with a person in her 30s who becomes disabled when she

is making a low salary and has only, say, 10 years of

service? She is going to get a very low disability.

And you say that's one thing that's all right.

On a prospective basis, what could Kentucky

do? One is give the younger workers only their actual

years of service, which Mr. Klausner said is what is

happening, and therefore, these people are getting a lot

less than they used to get. And then you say, oh, but

there's another way, and that is to impute additional

years of service on an age-neutral basis. And you're

not specific about what would the age-neutral basis be.

MR. STEWART: I guess there could be a range

of alternatives. One alternative, for instance, would

be for every disabled worker of whatever age impute an

additional five years of service as something of a rough

estimate of the number that person might have worked if

he or she had not become disabled.

Another possibility would be to impute years

of service up to 10 or 20. Again, there would be

probably an infinite number of ways it could be done as

37




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


long as age were not used as, as the basis.

The other thing I wanted to say about --

JUSTICE ALITO: But if do you that, aren't

you going to be -- you're going to be undercompensating

the younger person who gets disabled and

overcompensating the people over 55 who gets disabled

who may not -- it may not be realistic to think that

someone's going to continue to work as a police officer

until 65. I don't know.

MR. STEWART: Well, the other thing I would

say about that justification, which rests on I think the

valid statistical correlation between how old you are at

the time that you're disabled and how much longer you

would have worked. Again, whether or not -- I think you

wouldn't think of that as an invidious stereotype. But

again, it's not a generalization that could typically be

used as a basis for age-specific decisions.

For example, the Wirtz report makes clear

that the paradigmatic pre-ADA practice that Congress

wanted to get rid of was a limit of age 50 or age 45 and

an employer saying: We're not going to hire anybody who

is over that age. And certainly the employer could say

justifiably as a group people above that age are likely

to have fewer work years ahead of them than people below

that age. And if that generalization could provide a

38




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


basis for an explicit age-based distinction, the Act

would really be eviscerated.

The other thing I wanted to respond to is

the suggestion that, while we might be able to tease

this out of the literal language of the statute, this is

certainly an unintended consequence. It is not

something that Congress would have wanted. I think, to

the contrary, this is not identical but very similar to

the type of disparity that was present in Betts. That

is, in Betts the individual was over the age of normal

retirement but had elected to keep working. She became

disabled and was prevented from continuing to work. She

was eligible for normal retirement benefits. She wanted

to collect disability retirement benefits, because

again, the reason for her retirement was disability.

She was told that she couldn't do it. And the State's

computation methodology for calculating disability

retirement benefits was significantly more generous than

the one that it offered for --

JUSTICE BREYER: What about this idea, which

is -- would this wreck the statute? You say we're

talking about age, which is not an immutable

characteristic. Everybody goes through it. Everybody

is younger, everybody is older. And therefore we take

the word "discriminate" and the word "discriminate" in

39




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


this context, when considered in terms of pension

requirements, which inevitably are age mixed to a

considerable degree, means that if there are plausible

justifications and no significant reason for thinking

that it reflects stereotypical thinking, that it does

not fall within the scope of the word "discriminate."

MR. STEWART: I think, first, that would be

contrary to the way that the word "discriminate" has

been construed in Title VII.

JUSTICE BREYER: I started out by saying,

that's why I said that this is not an immutable

characteristic, and it is -- that's why I put all the

qualifications in there.

MR. STEWART: Well, the court in Thurston

has said the language of the ADEA should be construed

similarly to that of Title VII because the basic

anti-discrimination prohibition was drawn in haec verba

from Title VII in the legislative history to the older

workers's Benefit Protection Act when Congress amended

the statute to cover fringe benefits, which the Court in

Betts had held were not covered. Congress did that by

enacting a new 29 U.S.C. 630(l) to say the term -- that

the phrase "terms and conditions of employment" includes

fringe benefits.

And the legislative history explains that

40




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


Congress could have achieved the same result by adding a

reference to fringe benefits in the basic

anti-discrimination provision contained in 29 U.S.C.

623(a), but the Congress chose not to do that because it

wanted to maintain the similarity in wording between the

ADEA's anti-discrimination provision and that of Title

VII in order to reinforce the inference that the two

were to be construed in pari materia.

The other thing I would say with respect to

your reference to age distinctions that are not based on

stereotypes is again to return to what I was discussing

earlier. The two justifications that have been offered

are first, younger people are likely to have fewer

financial resources, so they need more of a boost; the

second is the younger worker probably would have worked

longer if he hadn't become disabled and therefore this

is replicating the situation that would have prevailed

absent the disability.

And again, my point is, whether or not you

think of those as invidious stereotypes, they are

plainly not generalizations that could typically be used

to justify --

JUSTICE STEVENS: May I ask this question

right on that point. Supposing you have two different

people retire, one -- that become disabled, rather --

41




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


one because he's five years short of the age eligibility

and the other because he's five years short of years of

service, so it would be a younger person, and both would

have become eligible for retirement in five years after

their disability. Are they treated the same way under

the plan? And if they are, where is the discrimination?

MR. STEWART: Well, the discrimination is if

you imagine --

JUSTICE STEVENS: Well, first of all, tell

me whether they're treated the same way under the plan.

MR. STEWART: Well, it depends on other

variables. For instance, if you have a --

JUSTICE STEVENS: What other variables?

MR. STEWART: As to the person who is five

years away from qualifying by reason of --

JUSTICE STEVENS: Years of service.

MR. STEWART: -- years of service, if that

person is younger than 50, then they'll be treated the

same, because each of them will have --

JUSTICE STEVENS: That's a hypothesis.

MR. STEWART: But --

JUSTICE STEVENS: So then how is that

discrimination on the basis of age?

MR. STEWART: But it is a discrimination on

the basis --

42




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


JUSTICE STEVENS: It's not even

discrimination as far as I see it.

MR. STEWART: Well, it wouldn't -- there

wouldn't be any claim of disparate treatment with

respect to those two individuals. But if you have an

individual who is 55 years old with 15 years of service

and 50 years old with 15 years of service, they are both

equally close to the 20-year threshold for qualifying

for normal retirement on the basis of years of service.

Yet the 50-year-old gets 5 imputed years added and gets

a significantly larger benefit than the 55-year-old.

Their justification is, well, the

55-year-old is already eligible for normal retirement

and therefore, it's fair to treat him differently. And

the point I was making with reference to the Kentucky

code is the 50-year-old who is forced to retire due to

disability is also eligible for retirement. It's called

disability retirement.

JUSTICE STEVENS: It seems to me that your

claim boils down to an argument that the statute

requires someone who is already qualified for retirement

to get a disability benefit that the younger person

would. It seems to me that's the basic difference.

MR. STEWART: No, I don't think that's

correct. If all the State did was to say disability

43




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


retirement benefits will be available to people who have

at least five years of service and are forced to retire

due to disability and we are excluding people who are

above 55, in and of itself that's fine. If the only

purpose of excluding the older workers is to make clear

that they can't get both benefits simultaneously, there

is no problem with that.

Our problem is that, having defined the

class of persons eligible for disability benefits to

include only those who are under 55 --

JUSTICE STEVENS: I see you talking about

two benefits.

MR. STEWART: -- they did use a more

generous computation methodology.

JUSTICE STEVENS: There not two benefits.

It's only one.

MR. STEWART: It's only one benefit. And

really, that's part of our point. It's only one

benefit, so why would they say that people who are older

will have their benefits computed using a different

formula than people who are younger?

CHIEF JUSTICE ROBERTS: You prevent the

State from taking into account the fact that younger

disabled workers have not had the same opportunity that

older disabled workers have. And it results -- if we

44




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


adopt your system where you can look only at years of

service, what it, in effect, is going to do is to

prevent Kentucky from giving disability benefits to

older workers who become disabled.

For example, if you have two workers, one

who starts work at 18 and acquires years of service,

say, 12 years of service and becomes disabled, you would

say, well, you can take those years of service into

account. The older worker who begins at age 30 and is

disabled in his first year on the job, you say, well,

you can only look at years of service. You can't impute

to both of them retirement age. So the 30-year-old who

becomes disabled has to get less, fewer benefits than

the 18-year-old who becomes disabled.

MR. STEWART: Well, first, we are not

preventing Kentucky from imputing additional years. We

are simply saying the method of determining how many

years will be imputed, absent an affirmative defense,

can't be dependent on the employee's age.

JUSTICE BREYER: Would it be the same as --

I mean it seems to me now -- I'm thinking the problem is

we are going into the package; we are starting opening

up the package that the 55-year-old retiree normally

gets.

Suppose they said this: here's what we'll

45




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


do to the disabled person. We'll treat him just as if

he retired at 55. He is only 35; and, moreover, at 55

when you retire in our police force, we give you a big

party and a gold watch. Well, we don't do that if you

retire later on. Same kind of claim.

Why not? Over 65 years old, he retired.

Hey, you didn't give him the gold watch. Why did you

give the other person the gold watch? You said the

reason is we treat them all like we treat them when you

retire at 55.

MR. STEWART: I'm not quite sure if I

understand the question, but I don't think that there is

any --

JUSTICE BREYER: That's fair, that you don't

understand.

(Laughter.)

MR. STEWART: I don't think there would be

anything wrong with Kentucky saying we are going -- in

fact, this is what we are asking for. If Kentucky wants

to say a younger person who is forced to retire due to

disability will be treated as though he were 55 years

old, that's fine. If they give him disability benefits

and they calculate the benefits using actual years of

service as they do for the other -- for the older

employees, that there is no ADEA problem with that.

46




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


Our problem is that they say we are treating

him as though he had worked additional years until he

was 55 when he hasn't, and when the older employee isn't

given that same opportunity.

And, again, it is true that Kentucky's

system is particularly generous to older employees who

want to retire voluntarily. They can retire with as

little as five years of service, even though the younger

worker would have to have more. But the people on

whose behalf the EEOC is suing have not derived any of

that benefit. These were people who did not retire

voluntarily. They were people who were eligible for

retirement benefits, but chose to remain in the work

force. And, essentially, they are being told, in

estimating how many more years you would have worked, we

are going to have an irrebuttable presumption that the

answer is zero, even though their very circumstances,

the fact that they continued to work after they could

have retired, belie that assumption.

And just a final point I wanted to make

about Betts, is that the system here is not identical,

but very similar to the system that was at issue there,

in the sense that an older worker who was forced to

retire due to disability got a lower benefit than she

would have received if she had been younger with the

47




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


same years of service and the same disability.

It couldn't be clearer that Congress wanted

to overturn that decision. That was the impetus for the

enactment of the OWBPA.

So I think there is really -- it's not

correct to suggest that, even if we win, this is somehow

an unintended consequence of what Congress did. This is

the very situation that Congress wanted to cover while

providing an affirmative defense to employers who can

satisfy it.

JUSTICE GINSBURG: Mr. Stewart, before you

finish, that little piece that seems to be favoring the

younger worker that you guaranteed at least -- what was

it, 25 percent of your final monthly salary, and you get

10 percent for each child -- now that does seem to be

something that's -- that's not available for a regular

retiree.

MR. STEWART: It's not available for a

regular retiree, and it's not available for a person who

is eligible for normal retirement but becomes disabled

and is forced to retire for that reason.

If the only problem were that Kentucky made

those benefits available to people who were forced to

retire due to disability, that wouldn't be an ADEA

violation, so long as they made those benefits available

48




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


to the older worker who was also forced to retire.

But I take your point that those aspects of

the statute introduce a further element of age

discrimination without even the justification that

Kentucky has proffered for the imputed years.

With respect to the children, in particular,

that seems to be the only other area in the plan in

which Kentucky is directly targeting the people who are

in greatest financial need, at least by one measure

having dependent children, and yet the older workers are

left out of that entirely.

CHIEF JUSTICE ROBERTS: Thank you,

Mr. Stewart.

Now, Mr. Klausner, you have four minutes

remaining.

REBUTTAL ARGUMENT OF ROBERT D. KLAUSNER,

ON BEHALF OF THE PETITIONERS

MR. KLAUSNER: I'd like to start back where

we just left off with Justice Ginsburg's question about

the guaranteed benefit. If a person is 38 years old and

has 20 years of service, that benefit is not available.

If you're 50 years old with 5 years of service, the

benefit is available.

The benefit is not available to the

38-year-old because that person is eligible to retire on

49




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


a normal retirement benefit. Age isn't the driver.

Eligibility for retirement is the motivation.

And while my brother says that Congress

wanted to overturn Betts, what they wanted to overturn

in Betts was the language in this Court's decision that

cast doubt on whether pension plans were generally

covered by the language of the Age Discrimination in

Employment Act. And the Older Workers Benefits

Protection Act, if one looks at the legislative history,

was focused far less on what happened in a public

employee retirement system. The real issue that

Congress focused on, if one looks at the House and

Senate reports, is they said there is a problem in

private industry in the Rust Belt that normal retirement

eligibility is being used to force people not to get

some other benefit in some other stand-alone plan.

That's not the issue here.

And the plan in Betts is no more like

Kentucky's plan than the Thurston plan. In Thurston,

the pilot case, no pilot over 60, no matter how

skillful, had bumping rights to be a flight engineer.

In Kentucky, one with 20 years of service, regardless of

age, is in the same posture as someone who is 55 with a

minimum service.

My brother also pointed you to a provision

50




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


in the Kentucky statute on pages 7a and -- page 7a in

the appendix. Look also at 2a, which defines normal

retirement to be 55 with 5 years of service, or 20 years

of service regardless of age. The methodology for

determining disability in this case is exactly the same.

It's based on your proximity to normal retirement, not

based on your age.

One example was given. If a person is 45

years old with 4 years of service and became disabled,

that person would get nothing because they haven't met

the five-year service requirement. But a 55-year-old

with 4 years of service has a normal retirement benefit.

It's about limited Government resources not

being duplicated, and perhaps that's the reason why the

EEOC adopted its regulation on December 26th

coordinating retiree health care. The rationale they

gave was we looked at all the -- all the ways to do

this, and we couldn't come up with a reason to do it any

other way.

In the Sixth Circuit Federal argument, Judge

Boggs noted in his dissent -- Chief Judge Boggs noted he

asked the EEOC for a reason on how to fix this, and they

couldn't give him one.

What this case is about is about being fair

to workers without regard to age. All the people who

51




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


run these plans, who fund these plans, who are in these

plans, are all lined up on Kentucky's side of the table.

That should tell you that it's neither

arbitrary nor discriminatory. The plan is fair, and the

plan does not violate the law. We ask you to reverse

the decision below and reinstate the district court's

original final summary judgment.

Thank you.

CHIEF JUSTICE ROBERTS: Thank you

Mr. Klausner. The case is submitted.

(Whereupon, at 12:07 p.m., the case in the

above-entitled matter was submitted.)

52





A ability 15:12able 24:1 27:2

39:4above-entitled

1:12 52:12absent 41:18

45:18absolutely 34:19accept 36:8accomplish

19:20accomplished

23:9account 13:9

25:24 44:23

45:9accurate 29:7achieved 17:19

32:7 41:1acquires 45:6Act 9:8,10 14:3

34:10 39:140:19 50:8,9

actual 24:832:22 36:1637:10 46:23

ADA 12:14,16add 22:10 26:7

27:9,20added 15:5

18:25 43:10adding 26:4

41:1addition 7:24additional 5:14

5:25 26:527:20 28:1732:2 36:2437:14,20 45:1647:2

Additionally 7:8address 26:19ADEA 26:18

27:7 33:10,1334:13 40:1546:25 48:24

ADEA's 41:6adopt 21:6 45:1adopted 51:15advance 17:17advantage 8:13

adversely 14:1affirmative

27:25 45:1848:9

age 3:12,12,133:15,16,17,243:25 5:17,259:6,6,9,11,179:19,24,2510:6,8,11,1410:21 11:10,15

11:19,20,21,2412:10,13,17,2013:12,19,21,2313:24 14:3,514:11,12,1816:3,15 20:820:12,24 21:821:17,24 22:322:6,7,7,1223:9,14,2424:4,17,1925:20,24 26:226:5,5,8,11,1526:19,24 27:327:8,11 28:129:2 30:1931:5 32:12,1733:3,7,11 34:634:12,14,2135:7 37:1938:1,20,20,2238:23,25 39:1039:22 40:2

41:10 42:1,2345:9,12,1949:3 50:1,7,2351:4,7,25

ages 24:9age-based 36:2

39:1age-neutral

37:15,16age-specific

38:17agree 21:10ahead 38:24

aiming 29:2Airlines 3:14AL 1:4alike 8:3,19ALITO 12:1,8

12:14 26:2128:4 38:3

allows 12:1526:12

alternative 37:18

alternatives 37:18amass 29:11amended 40:19amicus 20:14amount 4:12,18

19:20amounts 3:23analyze 29:1and-a-half 5:3

8:1,2answer 9:7

10:17 15:1816:8 18:1922:8 47:17

answered 22:25answers 35:3anti-discrimin...

40:17 41:3,6anybody 4:24

38:21anyway 26:18apart 33:11

appear 13:1APPEARAN...

1:15appears 12:22appendix 51:2applies 9:10

14:3 16:24apply 14:4

appreciate 3:173:22 4:5

arbitrary 4:1,412:17,22 14:1323:1 52:4

area 49:7argued 21:19argument 1:13

2:2,7 3:3,711:11 12:223:19 28:1531:3 43:2049:16 51:20

asked 20:2051:22

asking 29:5

46:19aspects 49:2Assembly 7:16assistance 36:5Assistant 1:18assume 29:15assuming 7:5assumption 21:6

47:19as-applied 21:19attainment 26:1attention 24:14attracting 19:21available 44:1

48:16,18,19,2348:25 49:21,2349:24

average 11:2,8aware 13:3a.m 1:14 3:2

B back 22:23 29:4

49:18bad 3:13balance 18:25based 3:11,15

8:20 9:19,2510:6,7,10,1313:2 21:1,829:2 36:21,23

41:10 51:6,7basic 24:4 40:16

41:2 43:23basis 9:6,16 10:5

10:21,24 11:10

12:2 13:15,1614:5 21:723:13 28:1,2436:2,16 37:937:15,16 38:138:17 39:142:23,25 43:9

bear 36:11bears 36:9,14,14began 4:18 8:21

9:4

begins 7:8 45:9behalf 1:16,20

2:4,6,9 3:823:20 47:1049:17

belie 47:19believe 20:19

22:24belt 30:8,9,10

50:14benchmark

33:17,18benefit 8:8,16

10:20,20,2311:3,6 15:2115:21,24 16:417:4,19 18:2319:14,17 20:1823:8 25:2,2,826:25 31:6,732:11,18 36:1136:14,14,1640:19 43:11,22

44:17,19 47:1147:24 49:20,2149:23,24 50:150:16 51:12

benefits 3:19 6:919:15,25 20:1823:23 24:1026:23 27:21





36:21 39:13,1439:18 40:20,2441:2 44:1,6,944:12,15,2045:3,13 46:22

46:23 47:1348:23,25 50:8

better 3:21 13:716:11

Betts 22:11 23:739:9,10 40:2147:21 50:4,550:18

beyond 27:1028:6 31:21

big 46:3

bit 19:7blue 24:15body 12:22Boggs 51:21,21boiled 10:19boils 31:3 43:20boost 35:19

41:14bottom 24:20Breyer 4:3,9,21

5:5,9,15,24 6:26:5,10,15,177:4,18 17:2117:24 18:2019:2,12 20:1624:3 33:16,2234:16 35:8,1537:1 39:2040:10 45:2046:14

Breyer's 9:8,1310:18 16:9

brief 4:12 24:15

37:2briefs 20:14bring 19:1,3brother 50:3,25brought 37:1bumping 50:21business 33:24

C C 2:1 3:1calculate 46:23calculated 10:21

10:23 25:436:16

calculating 23:23 39:17

calculation 13:18 28:23

called 11:2243:17

capable 27:16care 51:16case 3:4 5:1

11:21 13:24

14:17 15:11,1415:16 16:2519:17 20:1722:4,11,1227:18 28:5,2335:13 50:2051:5,24 52:1052:11

cases 14:1421:21

cast 50:6

categories 31:10category 10:25

32:10,16certain 19:19

21:21certainly 16:10

27:12 38:2239:6

challenge 14:21challenged

21:14chance 31:6change 19:17

20:4characteristic

39:23 40:12chart 4:11,12,16

8:20Chief 3:3,9 4:8

10:13,15 16:12

19:23 23:17,2133:1,6 44:2249:12 51:2152:9

child 15:6 48:15

children 49:6,10choose 27:15chopped 34:24chose 41:4 47:13Circuit 51:20circumstance

21:20,22circumstances

9:9,11,1221:21 47:17

Civil 20:6,11

claim 26:18 31:336:3 43:4,2046:5

class 29:6,2330:3,13,1944:9

clear 26:1235:25 38:1844:5

clearer 48:2clearly 15:1 22:9

36:17Cline 14:8,11

26:16 33:12close 36:14,15

43:8closely 7:15

17:18closer 7:9,12

8:22 18:25closest 17:20code 43:16collect 39:14

come 51:18comes 6:7COMMISSION

1:8common 16:4,6

20:13,14Commonwealth

19:16

Commonweal... 19:21

comparison 29:18

comparisons 34:22

compensation 32:23

complaining 6:18

complaint 17:2518:8

computation 31:9,11 32:2133:4 39:1744:14

computed 36:2144:20

computing 27:20

condition 26:2conditions 40:23Congress 13:21

13:22 20:1923:4,7 29:235:9 38:1939:7 40:19,2141:1,4 48:2,7,850:3,12

consequence 39:6 48:7

considerable 40:3

considered 40:1consistent 27:7consolidated

3:18constantly 29:1Constitution

19:15construed 40:9

40:15 41:8contained 41:3context 40:1continue 27:10

29:14,25 38:8continued 47:18

continuing 27:17 39:12

contrary 39:840:8

contributed 36:22

coordinating 51:16

correct 4:176:16 9:15,2212:5 15:9,1915:25 27:433:5 43:2548:6

correcting 4:5correctly 4:6

correlated 11:2122:3

correlation 38:12

cost-justificati... 28:13

counsel 23:17country 8:17couple 34:9course 31:22

34:21court 1:1,13

3:10 11:20,2212:25 14:1620:7,13 22:122:12 23:2240:14,20

court's 14:821:15 26:1633:12 50:552:6

cover 16:1940:20 48:8

coverage 22:20covered 17:3,16

23:8 40:2150:7

covers 16:19crafted 25:25create 23:6credit 7:22,25





18:4 28:8,1028:12 32:7

credited 18:1124:24

criteria 25:16

criterion 13:2514:1 31:2136:8

current 19:1224:23

customary 12:25

cuts 20:18

D D 1:16 2:3,8 3:1

3:7 49:16day 7:11 18:21deal 37:4dealt 11:16December 51:15deciding 28:1decision 26:1,16

33:12 48:350:5 52:6

decisionmaking 23:25

decisions 38:17

defense 28:1445:18 48:9

defenses 27:25define 32:15defined 44:8defines 51:2defining 32:10degree 40:3Department

1:19dependent

45:19 49:10depends 42:11derived 47:10design 12:18

14:23designed 12:16

16:19 35:10determinant

3:13determination

9:19,23,2510:4

determine 20:24

22:1 25:7determined

13:18determines 3:24

15:22determining

3:23 33:845:17 51:5

difference 6:66:20,21 14:243:23

differences 25:14different 7:10

13:21 14:1124:9,9 25:2,325:16 31:1235:2 41:2444:20

differently 24:425:4 43:14

direct 13:424:13

directly 49:8disability 5:1

8:23 10:19,2015:10,10,14,1415:21,21,2216:1,4,17,1816:19,22,2417:10 19:17,2020:1 22:13,1622:18,20 24:1924:22 25:1,7

25:14,19,2026:8 27:15,2029:15 30:1,1531:1,6,7,20,2231:25 32:1,1933:19 37:739:14,15,1741:18 42:5

43:17,18,22,2544:3,9 45:346:21,22 47:2448:1,24 51:5

disabled 4:23

5:9,10,10,185:18,20 6:137:5 8:9 15:7,1217:5 18:2,6,1018:12,21 19:419:25 20:8,1821:2 23:2424:7 25:826:24 27:2228:3,7,1930:14 34:1

35:20,21 36:2037:5,19,2238:5,6,1339:12 41:16,2544:24,25 45:445:7,10,13,1446:1 48:2051:9

disables 26:6disabling 17:17disadvantage

35:12disadvantages

23:25discriminate 9:6

9:16 12:1913:14,16 14:521:8 23:1339:25,25 40:640:8

discriminated 17:1 21:23

discriminates 14:21

discrimination 6:18 11:7,2012:17 14:3,1221:15 29:242:6,7,23,2443:2 49:4 50:7

discriminatory

4:1 21:14,1852:4

discussing 41:11disparate 14:17

35:18 43:4

disparities 36:2disparity 39:9dissent 51:21distinct 25:13,14distinction

14:14 39:1distinctions 3:15

41:10distinguishes

30:12district 52:6

doing 9:17 29:1430:1 34:636:12

double 4:6doubt 50:6dramatically

24:9draw 14:19drawn 40:17driver 20:24

50:1due 25:20 27:14

27:19 30:2531:25 32:1943:16 44:346:20 47:2448:24

duplicated 51:14

duty 19:22 31:5D.C 1:10,19

E E 2:1 3:1,1earlier 41:12early 26:3economic 19:18EEOC 3:5,20

17:1 47:1051:15,22

EEOC's 3:16

4:16 8:20effect 9:5 19:23

21:20,25,2545:2

effectively 21:23

either 18:2024:17 25:1729:22 31:5

elected 39:11element 26:5

33:3 49:3eligibility 3:11

10:1,5 11:1511:23 17:2322:5 25:1526:2 27:11

31:20,21 32:442:1 50:2,15

eligible 6:8,8 8:88:16 9:1,2315:23 16:15,1618:9,22 25:825:19 31:4,1331:15 32:1,1039:13 42:443:13,17 44:947:12 48:2049:25

eliminate 12:1212:17

employee 21:236:18 47:350:11

employees 19:1219:22 20:9,1020:11 24:1,7,731:10 46:2547:6

employee's 45:19

employer 12:1936:4,18,2238:21,22

employers 23:1048:9

employment 1:716:22 17:3,6





40:23 50:8enables 22:22enacting 40:22enactment 48:4ended 4:13

endured 11:1engineer 50:21entirely 9:22

49:11EQUAL 1:7equally 43:8erase 12:9ESQ 1:16,18 2:3

2:5,8essentially 17:15

47:14

establish 24:128:13 34:11,12

establishes 31:20

establishing 27:25

estimate 27:2137:21

estimating 47:15

ET 1:4event 17:17

29:18 30:4everybody 16:4

19:19 34:239:23,23,24

evil 23:4eviscerated 39:2exactly 11:25

30:11 32:951:5

example 4:197:7 8:7,21 9:14

16:1 19:1,1119:14 20:721:4 34:1838:18 45:551:8

exception 25:2326:10

exclude 26:4

excluding 44:3,5exclusive 33:7exemption 26:7

33:10exhibit 35:1

expenses 34:2expensive 28:16explain 7:1explains 40:25explicit 9:7,19

23:24 33:1039:1

explicitly 21:8expressly 12:14extend 19:8extent 26:12

extra 5:20,216:1,22,24 7:258:2 18:7,13,1418:15,17,1819:8

F face 14:19,22

21:22facial 21:15facially 4:1

21:14

fact 8:13,16 16:320:9 31:2244:23 46:1947:18

factor 3:25,259:7 23:25 26:832:22

factors 3:2221:24

factually 3:216:3,5,12

fails 3:17,22fair 11:2,7,11

43:14 46:1451:24 52:4

fairly 34:2fairness 9:4fall 40:6fallacy 8:20

far 43:2 50:10fare 3:21favor 15:1favoring 48:12favors 7:11

Federal 20:5,1023:10 33:751:20

FERS 20:10fewer 29:8,12

30:3 38:2441:13 45:13

fills 16:18final 15:4 32:23

47:20 48:1452:7

financial 7:1636:5 41:1449:9

find 34:22fine 7:19 18:6

27:23 32:20,2433:1,2 44:446:22

finish 48:12fire 8:12 29:17

30:4 33:17fired 11:17firefighter 17:5

22:18firefighters

19:24 23:11,1234:13,14

first 13:12 16:2217:2,6 18:1325:15 26:934:10 35:3,1840:7 41:1342:9 45:10,15

five 8:15 9:2416:20,22 17:217:6 25:2131:25 33:1437:20 42:1,2,442:14 44:247:8

five-year 17:9

51:11fix 51:22Fla 1:16flight 50:21focus 3:17

focused 50:1050:12

follow 15:1819:11,14 29:20

following 10:2024:22

follows 7:4footnote 37:3forbidden 34:25forbids 19:15force 35:6 46:3

47:14 50:15forced 25:20

27:14,19 30:2531:25 32:1943:16 44:246:20 47:2348:21,23 49:1

forces 23:10formula 44:21found 11:20four 49:14fringe 40:20,24

41:2full 5:12fully 22:24function 25:10functions 25:13fund 52:1further 49:3future 30:7

G G 3:1

gap 16:19 17:15garden 29:1General 1:19

7:16generalization

29:7 30:2438:16,25

generalizations

36:1 41:21generally 50:6generous 27:14

39:18 44:1447:6

getting 8:2532:7,7 37:12

Ginsburg 13:313:22 14:7,2515:10,17 17:836:25 48:11

Ginsburg's 22:24 49:19

give 5:19 6:226:24 7:25 8:211:3 18:4,7,15

18:17 26:2528:8,9,11 31:631:7 33:1935:3 37:1046:3,7,8,2251:23

given 18:12,1332:18 35:1747:4 51:8

gives 14:12 23:1giving 6:10 45:3glad 8:1go 3:23 5:19

7:20 29:4goal 3:19 19:21goes 9:10 14:19

39:23going 28:9 29:16

33:19 36:1237:7 38:4,4,838:21 45:2,2246:18 47:16

gold 46:4,7,8

good 8:1 9:1712:1 34:2

government 13:17 14:1521:19 23:1051:13

greater 33:22,2335:3





greatest 49:9group 30:3,23

35:19 38:23groups 7:10guarantee 28:16

guaranteed 15:348:13 49:20

guess 4:3 37:17guessing 30:17

H haec 40:17hamburger

34:23happened 50:10happening

37:12happenstance 30:14,14,16

hard 27:9hazardous 17:11

19:22Hazen 11:16

14:15 22:3health 51:16hear 3:3 6:21held 40:21help 25:7 33:25

helpful 9:3Hey 46:7highly 28:21hire 38:21hired 19:12,18history 13:8,11

23:3 40:18,2550:9

hold 30:24holding 14:8Honor 4:17,19

4:25 5:1421:12

House 50:12Huh 10:9hundred 19:13hurt 27:1hypothesis

42:20

hypothetical 9:12

I idea 39:20

identical 39:847:21

illegitimate 27:527:5,13

imagine 42:8immediately

17:11,18immutable

39:22 40:11impetus 48:3implicated

35:10important 13:1114:16

imputation 11:932:2

impute 5:13,1411:2 37:14,1937:23 45:11

imputed 4:18,205:21 6:7,147:14 10:2317:14 20:8,1221:3 43:1045:18 49:5

imputes 36:24imputing 45:16inability 15:15inapplicable

34:14,17,17include 44:10included 13:12

35:4includes 33:23

40:23including 29:24incorrect 25:12

31:16 35:16indication 35:12individual 5:16

11:17 16:2524:17 27:19

31:24 33:1339:10 43:6

individuals 32:16 43:5

individual's 12:20

industry 50:14inevitably 40:2inference 14:22

21:16 41:7infinite 37:25initial 17:9 36:6injured 19:25instance 21:25

33:23 36:337:18 42:12

instances 16:2016:23

insurance 16:134:3

integrated 3:18intended 14:9

20:20 26:11,19intent 14:18interesting 20:5interpretation

37:4interpreting

12:24interrelations...

13:20interrupt 24:25introduce 49:3invidious 14:13

38:15 41:20irrebuttable

47:16issue 15:11,14

22:25 47:22

50:11,17

J January 1:11 job 23:6 27:1

45:10 jobs 19:22 23:11Judge 51:20,21

judgment 52:7Justice 1:19 3:3

3:9,13 4:3,8,94:21 5:5,9,155:24,24 6:2,5

6:10,15,17 7:37:18 8:5 9:2,89:13,21 10:3,710:9,10,12,1310:16,17,1811:13 12:1,5,812:14,21 13:313:7,10,2214:7,25 15:915:17,19 16:216:8,9,11,12

17:8,21,2418:20 19:2,1119:23 20:1621:5 22:8,2323:17,21 24:324:11,25 25:625:10,22 26:2026:21 28:4,2029:19,21 30:630:10,11 31:231:11 32:433:1,6,16,2234:16 35:8,1536:7,25 37:138:3 39:2040:10 41:2342:9,13,16,2042:22 43:1,1944:11,15,2245:20 46:1448:11 49:12,1952:9

justifiably 38:23

justification 38:11 43:1249:4

justifications 35:17 40:441:12

justifies 6:21 justify 41:22

K keep 35:5 39:11Kennedy 9:2,22

21:5 22:8Kentucky 1:3

3:4,11,17 7:178:17 14:2019:15 22:15,1723:8,12,2424:1,14,2425:5 26:12,2227:13,18 30:2031:18,18,2432:15 35:537:9 43:1545:3,16 46:18

46:19 48:2249:5,8 50:2251:1

Kentucky's 47:550:19 52:2

kind 29:1 34:334:23 46:5

Klausner 1:162:3,8 3:6,7,94:8,16,25 5:85:13,23 6:4,6

6:13,16 7:3 8:59:21 10:1511:12,14 12:512:11,16 13:313:10 14:715:9,25 16:616:10,18 17:1317:23 18:1919:10 20:2,2321:12 29:537:11 49:14,1649:18 52:10

know 6:3,12,1920:5 34:2238:9

L L 1:18 2:5 23:19language 13:5

22:21 39:5





40:15 50:5,7larger 43:11Laughter 46:16law 24:24 30:20

31:18,24 33:7

52:5leave 7:7 8:9left 49:11,19legislative 13:8

13:11 23:340:18,25 50:9

lesser 33:22,2333:24 34:835:4

letting 7:24let's 5:19 17:8

liability 19:16life 13:18limit 38:20limited 4:17

16:23 51:13limits 7:16line 8:12 29:17

30:4,15lined 52:2literal 39:5litigation 19:24little 8:14 11:6,6

14:25 47:848:12

live 13:19long 10:22 13:19

13:20 27:1028:22 38:148:25

longer 17:1022:18 30:2335:21 38:1341:16

look 21:24 22:1024:19 37:245:1,11 51:2

looked 51:17looking 29:6,13

29:23 35:9looks 50:9,12lot 37:12

low 37:6,7lower 11:3 19:14

19:25 20:247:24

lowering 19:15

M maintain 41:5make-whole

26:23making 10:4

28:15 29:1831:17 33:337:6 43:15

MALCOLM 1:18 2:5 23:19

man 14:1 25:734:4

materia 41:8matter 1:12

25:22 50:2052:12

ma'am 17:13McMann 3:14mean 19:7 25:23

30:7 45:21meaning 23:2means 8:25 40:3

measure 49:9mechanical

34:19meet 11:18mentioned 8:6mere 21:17merely 11:21met 51:10method 45:17methodology

31:9 32:22

39:17 44:1451:4

minimal 34:6minimum 26:2

26:11,15,1933:10 34:1150:24

minutes 20:19

49:14mixed 40:2moment 19:5month 8:16monthly 15:4

48:14months 24:23

31:23motivated 12:18

14:18,23 22:7motivation 22:6

50:2multiplier 32:23myriad 3:22

N N

2:1,1 3:1narrowly 25:25

national 13:16necessarily 3:15necessary 24:12

32:3need 18:25 19:2

35:19 36:541:14 49:9

needed 8:22needs 12:6neither 36:1

52:3never 13:14,15nevertheless

32:18new 40:22normal 5:1 6:14

8:25 10:217:16,17 19:119:3 20:12,2524:16 25:15,1626:2 27:3

29:10 30:1832:12,17,2439:10,13 43:943:13 48:2050:1,14 51:2,651:12

normally 45:23noted 11:14

51:21,21number 5:2

16:14,23 19:1127:21 35:137:21,25

O O 2:1 3:1objective 27:5,6occupation

17:11occur 11:23,24occurs 17:17odds 10:24offered 39:19

41:12

officer 15:15,1617:5 22:20

26:23 28:5,638:8

officers 20:623:11,12

oh 37:13Ohio 22:11,13

22:16Okay 6:17 11:13old 4:11 5:11

6:23 7:1913:24 16:222:19 25:1738:12 43:6,746:6,22 49:2049:22 51:9

older 3:21 7:97:11 8:12,138:21 14:6,9,2318:5,14,2323:6,25 29:1129:16 30:2

31:14 35:11,1836:4,20 39:2440:18 44:5,1944:25 45:4,946:24 47:3,647:23 49:1,1050:8

opening 9:4

45:22operative 13:5opportunities

23:6opportunity 1:8

44:24 47:4opposed 4:7oral 1:12 2:2 3:7

23:19order 9:7 18:15

25:16 41:7ordinary 32:13origin 13:16original 52:7outset 36:8overcompensa...

38:6overturn 48:3

50:4,4OWBPA 48:4owed 23:23

P P 3:1package 45:22

45:23page 2:2 24:15

24:20 31:1837:2 51:1

pages 51:1paid 13:18Paper 11:16

14:15paradigmatic

38:19pari 41:8part 4:3 13:19

15:6 17:2526:22 28:15

32:5 36:1744:18

partially 5:236:4

participate 20:12

particular 15:1124:20 49:6





particularly 8:10 34:2047:6

party 46:4pay 14:23 17:10

35:6 36:4,8pension 3:23 4:6

10:1 11:22,2212:12 22:433:20 34:20,2140:1 50:6

people 7:10 9:2014:24 19:12,1820:18 21:827:14,15 29:929:13,16,17,24

30:2,4,12,1830:20,21,23,2531:3 33:2534:19 35:6,1236:23 37:1238:6,23,2441:13,25 44:144:3,19,2147:9,11,1248:23 49:850:15 51:25

percent 5:3 8:18:3 15:3,548:14,15

perfect 34:18perfectly 34:24period 15:13

17:9 24:1231:5

permissible 35:4permits 34:7person 4:18,23

5:5 7:4,6,8,13

8:7,10,12,138:15,21 9:1310:19,23,2511:2,8,9,1914:6,6 15:1215:23 16:217:4 18:1,5,918:11,13,14,20

19:4 22:1924:21,22 27:1027:21 28:2,828:24 29:10,1131:22 33:17,19

35:20 37:5,2138:5 42:3,1442:18 43:2246:1,8,2048:19 49:20,2551:8,10

persons 32:1044:9

Petitioners 1:51:17 2:4,9 3:849:17

phrase 40:23physically 27:16picked 12:23piece 14:25 20:3

48:12pilot 50:20,20plainly 41:21plaintiff 19:6

34:4plan 3:18 4:1

7:10 8:11,148:17,23,249:23 11:1912:18 14:2315:20 16:5,716:14,21 18:2218:22 19:420:25 22:5,1222:13,14 42:642:10 49:750:16,18,19,1952:4,5

plans 3:15 13:17

23:8 50:6 52:152:1,2

Plantation 1:16plausible 40:3please 3:10

23:22plus 10:14 16:15

22:7 26:5

point 17:21,2328:23 31:8,1741:19,24 43:1544:18 47:2049:2

pointed 50:25police 15:16

17:5 20:622:20 23:11,1226:23 28:534:13,14 38:846:3

policemen 19:24policy 12:18

14:17 16:1position 25:1

possibility 37:23possible 6:19

7:15 17:19posture 50:23post-disability

32:8practice 20:13

20:14 38:19preamble 12:23

13:2,4,8 23:3precedents

21:15prefer 14:6premise 21:6present 39:9presumption

47:16presumptively

21:18pretend 5:11prevailed 35:23

41:17prevent 23:5

35:10 44:2245:3

prevented 29:1430:1 39:12

preventing 45:16

pre-ADA 38:19private 11:18

50:14probably 13:9

19:8 34:235:20 37:2541:15

problem 32:1437:1 44:7,845:21 46:2547:1 48:2250:13

proffered 49:5program 20:12

23:13 25:9prohibit 9:9,10prohibition

40:17

projecting 27:9prospective 37:9protect 14:9protecting 13:23protection 17:6

22:19 40:1950:9

provide 12:1915:20 26:2338:25

provides 18:2325:11

providing 3:1948:9

provision 24:1426:16 31:19,1941:3,6 50:25

provisions 24:24proximity 51:6proxy 28:1public 8:11

15:15 22:1250:10

purpose 7:148:23 13:217:14 31:12,1332:9 35:9,1036:17 44:5

purposes 8:24put 35:11 40:12p.m 52:11

Q qualifications

40:13qualified 3:19

4:10 18:243:21

qualify 7:2018:3,3,1624:12,21 25:1629:10

qualifying 42:1543:8

qualitatively 13:21 14:11

question 9:3,810:18 11:16

16:9 18:1920:21 22:2,5,822:24 23:1524:4 29:5 37:341:23 46:1249:19

quite 34:1035:25 46:11

quoted 31:19quoting 31:17

R R 3:1race 13:15racial 13:25raise 9:3range 37:17rationale 51:16reach 6:1 21:7

21:11,13reached 16:3

31:4read 4:12 13:1

26:4real 50:11realistic 38:7really 21:19

22:7 31:1734:6 39:244:18 48:5

reason 5:24,25





6:20,21 7:1,39:23 13:11,1313:14,15 14:1216:13 20:2029:15,15 30:1

30:2 33:2436:7 39:1540:4 42:1546:9 48:2151:14,18,22

reasonable 21:16,24

reasons 6:3,106:11 9:1719:10

rebuttal 2:7

23:16 49:16receive 6:14

10:1 24:9received 7:17

27:1 47:25recognized

13:21,23recover 31:6reduction 20:3reference 26:18

41:2,10 43:15references 12:9referring 32:6refers 26:10reflects 40:5regard 51:25regardless 22:6

50:22 51:4regular 15:4,24

48:16,19regulation 51:15reinforce 41:7reinstate 52:6

relates 14:10relationship

36:9,11,15relatively 14:9

14:10relevant 15:22

24:14 34:21relies 14:15

religion 13:17remain 47:13remaining 49:15removed 10:4replicate 7:15

17:18replicates 35:22replicating

41:17report 38:18reports 50:13require 26:1required 12:12requirement 5:1

11:18 33:851:11

requirements 24:19 32:1340:2

requires 26:1443:21

reserve 23:15resources 41:14

51:13respect 24:7,16

30:25 34:1236:6,19,20,2336:25 41:943:5 49:6

Respectfully 9:21

respond 39:3Respondent

1:20 2:6 23:20response 8:4,5

19:16 35:15rest 23:16rests 38:11result 3:25

20:17,20,22,2321:7,11,1326:16 41:1

results 44:25retaining 19:21retains 22:20retire 7:6,21,21

7:24 8:14 9:24

12:6,7 18:6,1018:16,17,2222:5,14 24:2125:20 26:1327:14,15,19

30:25 31:2532:19 41:2543:16 44:246:3,5,10,2047:7,7,11,2448:21,24 49:149:25

retired 6:22,2546:2,6 47:19

retiree 11:5 15:215:5,8 22:16

45:23 48:17,1951:16

retirees 29:630:22

retirement 1:33:4,11,14,186:14 7:9,208:11,14,22,2510:2,5 11:1511:23 12:213:17 15:2416:3,14,1517:16,18 18:2519:1,3,5 20:620:10,11,1321:1 23:9,2324:12,17,2025:2,8,14,1525:17,19,24,2426:3 27:3,8,1129:10 30:1831:4,14,15,2032:1,5,6,11,13

32:18,24 33:833:10,14 34:1236:14 39:11,1339:14,15,1842:4 43:9,1343:17,18,2144:1 45:1247:13 48:20

50:1,2,11,1451:3,6,12

retires 11:928:24

retiring 7:12

return 41:11reverse 52:5reward 36:17rewrite 19:3rid 38:20right 4:7,22 5:7

5:8,22,23 6:310:12,15 12:412:15 17:11,2219:5 37:841:24

rights 50:21risk 11:1,6

17:16 28:22ROBERT 1:16

2:3,8 3:7 49:16ROBERTS 3:3

10:13 16:1219:23 23:1733:1,6 44:2249:12 52:9

role 22:25rough 37:20rules 32:17

34:19run 52:1Rust 50:14

S S 2:1 3:1safety 8:11

15:15salary 5:3 15:4

37:6 48:14

satisfy 32:12,1648:10

saying 4:4 7:119:5 10:3,6 11:416:13 19:628:20,21 33:234:11,17 38:2140:10 45:17

46:18says 5:16 7:18

7:19 18:6,1424:21 25:2531:21 50:3

SCALIA 10:3,910:12 13:725:22 26:2029:19 30:6,10

scope 40:6second 6:11

17:25 35:2041:15

Secondly 22:1sector 11:19Security 15:13

see 20:14,1621:24 27:930:10 35:943:2 44:11

Senate 50:13sense 24:6 25:4

26:17 30:1934:6 47:23

separate 8:2432:16

service 3:12,164:18,20 5:146:7,14 7:6,148:15 10:11,1411:24 12:3,4,616:16,21 20:620:8,11 21:1,221:3 22:6,7,1524:5,8,18,1824:23,24 25:1825:18,21 26:626:8,13,1428:7,10,11,12

28:17 29:8,1130:15,17,2131:5,23 32:1,232:12,17,2333:14 36:17,1836:21 37:7,1137:15,20,2442:3,16,17





43:6,7,9 44:245:2,6,7,8,1146:24 47:848:1 49:21,2250:22,24 51:3

51:4,9,11,12services 17:14set 7:16setting 5:2sex 13:25SG's 4:11shape 13:7short 42:1,2show 14:17side 52:2significant 40:4

significantly 39:18 43:11similar 20:9

39:8 47:22similarity 41:5similarly 40:16simply 8:24

45:17simultaneously

44:6single 18:22situation 26:19

34:23 35:2236:10 41:1748:8

six 5:19,20 6:227:20,25 8:2

Sixth 51:20skewing 30:19skillful 50:21slashed 19:18small 20:3Social 15:13

sole 12:2solely 12:19Solicitor 1:18somebody 15:6

15:7 22:17someone's 38:8sort 24:3SOUTER 10:17

11:13 12:2128:20 29:2130:11 36:7

specific 16:2334:10 37:16

specifically 26:10

spends 8:11spent 29:16stand 21:22standard 15:13stand-alone

16:1 50:16start 8:6,19

18:23 49:18started 4:13,14

18:9,11 21:440:10

starting 18:2445:22

starts 7:9 8:108:12,13 17:421:18 22:18,1945:6

State 31:5 34:1134:12 36:2443:25 44:23

statement 9:4,1411:11 13:2

States 1:1,1320:15

State's 39:16statistical 38:12status 10:1

11:22,23 22:4statute 9:7 12:9

12:10,23,2413:1 14:9,2014:21 20:22

21:13,17,20,2122:11,22 23:124:15 25:2326:15 32:534:7 37:4 39:539:21 40:2043:20 49:351:1

statutes 12:12step 10:4 22:2stereotype 38:15stereotypes

33:25 35:25

41:11,20stereotypical

35:11 40:5Stevens 10:7,10

15:19 16:2,816:11 24:11,2525:6,10 31:231:11 32:441:23 42:9,1342:16,20,2243:1,19 44:11

44:15Stewart 1:18 2:5

23:18,19,2124:6,13 25:3,925:12 26:927:12 28:929:4,23 30:830:16 31:8,1632:9 33:5,9,2134:9 35:2,1435:16 36:1337:1,17 38:1040:7,14 42:742:11,14,17,2142:24 43:3,2444:13,17 45:1546:11,17 48:1148:18 49:13

sticking 12:21stigmatizing

35:25subject 16:5,6

24:22 28:22

submitted 52:1052:12

substantial 20:3substantially

19:19suggest 48:6suggestion 39:4suing 47:10

summary 52:7superfluous

26:17Suppose 21:5,10

45:25

Supposing 41:24

Supreme 1:1,13sure 15:17 23:7

32:11 46:11system 12:3 20:6

20:9,10,1134:21 45:147:6,21,2250:11

systems 1:4 3:4

34:20

T T 2:1,1table 52:2take 7:19 12:8,9

12:25 13:917:8 21:2530:18 37:439:24 45:849:2

taken 13:13,13

takes 8:13 20:17talk 34:20talking 4:23,23

7:10 39:2244:11

talks 17:1targeting 49:8tease 39:4tell 20:21 42:9

52:3telling 21:9

tenure 30:17,24term 32:4 40:22terms 14:12

40:1,23terrible 20:17text 13:1Thank 23:17

49:12 52:8,9

thing 22:10 26:928:20 29:2030:12 32:637:8 38:2,1039:3 41:9

things 34:9,25think 6:18 9:22

11:22 12:1213:5,10,20,2214:15,18 16:1317:25 18:819:7 20:15,1620:17 21:7,1221:14 22:1,2,822:21,21,2323:1,8 25:12

29:5 30:2,631:16 33:2135:14,16,24,2438:7,11,14,1539:7 40:741:20 43:2446:12,17 48:5

thinking 35:1140:4,5 45:21

third 26:7thought 25:6thousand 19:13threshold 43:8Thurston 40:14

50:19,19time 8:11 11:2

15:22 16:2017:15 22:1223:16 29:1634:1 38:13

times 32:23,23Title 13:12 14:2

14:14 40:9,16

40:18 41:6token 18:24told 39:16 47:14tomorrow 7:7

8:9total 10:20

16:24 24:8tradeoff 11:4,5





28:25treat 8:3 43:14

46:1,9,9treated 42:5,10

42:18 46:21

treating 7:22,2347:1

treatment 14:1735:18 43:4

true 4:17 6:1222:17 24:1630:24 34:547:5

try 7:14 17:18trying 23:4,5,5

26:22 33:25

turn 10:5two 5:2 7:10,25

8:2 20:19 21:324:7 25:13,1335:17 41:7,1241:24 43:544:12,15 45:5

type 15:10 39:9typically 36:1

38:16 41:21

U unable 27:2uncovered

16:21undercompen...

38:4understand 4:4

4:5 5:15 10:1813:4 14:846:12,15

understanding 15:20 27:7

unduly 28:16unintended 39:6

48:7United 1:1,13

3:14 20:15unreduced 10:2un-alike 8:6use 9:9,11 12:13

21:17 23:924:4 28:1 31:932:21 33:2,3,733:18 44:13

uses 9:7 23:24

24:5U.S.C 40:22

41:3

V v 1:6 3:4,14valid 38:12value 19:18variables 42:12

42:13variety 29:1

verba 40:17version 34:8

vested 22:4vesting 11:18view 16:13VII 13:12 14:2

14:14 40:9,1640:18 41:7

violate 4:2 26:1552:5

violated 33:1133:13

violation 48:25voluntarily

27:16 30:1347:7,12

voluntary 29:630:18,22

W wait 8:8 17:12want 6:3,11

20:21 21:9

23:7 26:24,2527:13 28:429:13,25 32:1535:24 47:7

wanted 38:2,2039:3,7,13 41:547:20 48:2,850:4,4

wants 27:18

46:19Washington

1:10,19wasn't 11:20

34:17

watch 46:4,7,8way 16:16,21

20:24 21:10,1323:25 27:629:9 36:1937:14 40:842:5,10 51:19

ways 16:1437:25 51:17

Wednesday 1:11

we'll 3:3 10:2535:6 45:2546:1

we're 23:5,529:23 38:2139:21

White 3:14win 48:6windfall 11:8,9Wirtz 38:18woman 14:2word 3:13 12:22

22:25 23:239:25,25 40:640:8

wording 41:5words 9:25

12:25 15:13work 7:8,12

8:21 11:612:10 15:12,1516:24 17:518:24 20:7

27:2,2,10,1735:6 38:8,2439:12 45:647:13,18

worked 4:7,104:14,22 5:4,65:11,17 10:2210:22 11:1

13:20 17:2018:4 27:2228:2,22 35:2137:21 38:1441:15 47:2,15

worker 4:9 7:1117:2 26:1736:20 37:1941:15 45:947:9,23 48:1349:1

workers 3:19,203:21 14:4 23:623:24 31:7,1331:14 35:18,1936:4 37:10

44:5,24,2545:4,5 49:1050:8 51:25

workers's 40:19working 5:10,16

18:5 29:14,2539:11

works 5:2,518:10 28:5

worried 34:18worthwhile

34:24wouldn't 26:18

32:12 33:11,1238:15 43:3,448:24

wreck 39:21written 13:12wrong 3:22 6:5

33:16 46:18

X x 1:2,9 4:12,13

4:15

Y Y 4:21year 5:3 6:24

8:1 45:10years 3:12 4:7

4:10,11,14,225:2,6,6,11,17

5:19,20 6:1,86:22,23,23 7:67:19,20,22,258:2,15,22 9:249:24 10:11,24

11:24 12:3,3,716:15,20,2217:2,6 18:4,718:10,11,12,1318:14,15,17,1818:20 19:821:2,3,4 22:422:15,19 24:524:8,18,1825:17,18,18,2126:5,8,13,14

27:9,20,2128:2,6,8,10,1028:11,12,12,1728:24 29:8,1129:12 30:3,2132:1,2,8,2233:14 36:16,2136:24 37:6,1137:15,20,2338:24 42:1,2,242:4,15,16,1743:6,6,7,7,9,1044:2 45:1,6,7,845:11,16,1846:6,21,2347:2,8,15 48:149:5,20,21,2249:22 50:2251:3,3,9,9,12

years-of-service 22:16

younger 3:204:19 7:12 8:10

14:4,6,10 15:117:2 26:1729:9,9,17 30:430:22 31:7,1233:15 34:135:18,20 36:2337:10 38:539:24 41:13,15





42:3,18 43:22 23 2:6 34:15 38:644:21,23 46:20 25 15:3 48:14 43:6 44:4,1047:8,25 48:13 26th 51:15 46:2,2,10,21

Z zero 47:17

0 06-1037 1:6 3:4

1 1 35:110 4:7,10,22 5:6

5:11 15:518:13,17 21:422:4 28:6,8,1028:10,11,12,12

28:17 37:6,24

29 40:22 41:3

3 3 2:430 37:2 45:930s 37:530-year-old

45:1235 4:14 18:12

21:4 46:238 22:19 49:2038-year-old 21:1

49:25

4

47:3 50:2351:3

55-plus 28:655-plus-year-...

9:1355-year-old

10:25 11:528:11,17,18,2229:24,25 35:543:11,13 45:2351:11

55-year-olds 26:13

57 23:1248:15

10-year 11:1811:09 1:14 3:212 24:23 45:712:07 52:1113 37:314 5:17 6:23

7:21 18:1115 43:6,718 21:2 22:18

45:6

4 18:10 51:9,1240 11:1945 4:13 5:11

18:9,12 22:2038:20 51:8

45-year-old 21:326:14 28:10,19

49 2:9 6:23 7:47:19

5

6 60 22:14 24:23

31:22 50:20623(a) 13:5 41:4630(l) 40:2265 38:9 46:6

7 7a 24:15 31:18

51:1,1

18-year-old 5 24:17 25:17 8 45:14 26:13 43:10 8a 24:15 31:18

2 2a 51:220 3:12 4:7,14

4:22 5:5,12 6:16:8 7:6 9:2410:24 11:10,2312:7 18:12,2024:18 25:1826:14 28:2429:11 30:21

49:22 51:350 38:20 42:18

43:7 49:2250-year-old

43:10,1655 3:12 4:6,11

4:13 5:17,195:21,25 6:7,8

6:25 7:7 8:7,159:24 10:2111:24 12:6

9 1:11

9

US Supreme Court: 06-1037

Documents

Transcript of US Supreme Court: 06-1037