Anthony Kennedy

“ The phrase "compensation, terms, conditions, or privileges of employment" in § 4 (a) (1) can be read to encompass employee benefit plans of the type covered by § 4 (f) (2) . Such an interpretation, however, would in effect render the § 4 (f) (2) exemption nugatory with respect to post-Act plans. Any benefit plan that by its terms mandated discrimination against older workers would also be facially irreconcilable with the prohibitions in § 4 (a) (1) and, therefore, with the purposes of the Act itself. ”

“ Its goals were far more comprehensive. As Senator Javits put it, "the age discrimination law is not the proper place to fight" the battle of ensuring "adequate pension benefits for olde workers," and § 4 (f) (2) was therefore intended to be "a fairly broad exemption . . . for bona fide retirement and seniority systems." Ibid. Later, referring to the effect of his proposed amendment on the provisions of employee benefit plans, Senator Javits stated that " [i] f the older worker chooses to waive all of those provisions, then the older worker can obtain the benefits of this act. ”

“ With respect to disability benefits in particular, the regulation provides that " [r] eductions on the basis of age in the level or duration of benefits available for disability are justifiable only on the basis of age-related cost considerations. . . ." § 1625.10 (f) (1) (ii) . Under these provisions, employers may reduce the value of the benefits provided to older workers as necessary to equalize costs for workers of all ages, but they cannot exclude older workers from the coverage of their benefit plans altogether. ”

“ As construed above, § 4 (f) (2) is not so much a defense to a charge of age discrimination as it is a description of the type of employer conduct that is prohibited in the employee benefit plan context. By requiring a showing of actual intent to discriminate in those aspects of the employment relationship protected by the provisions of the ADEA, § 4 (f) (2) redefines the elements of a plaintiff's prima facie case instead of establishing a defense to what otherwise would be a violation of the Act. ”

“ It is true that the age-60 rule was adopted before 1974, and is thus insulated under McMann from challenge as a subterfuge. The plan provision attacked by appellee, however, is the rule that disability retirees automatically receive a minimum of 30 percent of their final average salary upon retirement, while disabled employees who retire after age 60 do not. ”

“ As Congress did not amend the relevant statutory language, we see no reason to depart from our holding in McMann that the term "subterfuge" is to be given its ordinary meaning, and that as a result an employee benefit plan adopted prior to enactment of the ADEA cannot be a subterfuge. ”

“ The board is a public agency, and its employees are covered by PERS. In 1984, because of medical problems, appellee became unable to perform her job adequately and was reassigned to a less demanding position. ”