Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/64

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Alito, J., dissenting

quired to face that task in Smith, 544 U. S. 228, which addressed whether the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq., authorizes disparate-impact suits. The Court considered two provisions of the ADEA, §§4(a)(1) and 4(a)(2), 29 U. S. C. §§623(a)(1) and (a)(2).

The Court unanimously agreed that the first of these provisions, §4(a)(1), does not authorize disparate-impact claims. See 544 U. S., at 236, n. 6 (plurality opinion); id., at 243 (Scalia, J., concurring in part and concurring in judgment) (agreeing with the plurality’s reasoning); id., at 249 (O'Connor, J., concurring in judgment) (reasoning that this provision "obvious[ly]" does not allow disparate-impact claims).

By contrast, a majority of the Justices found that the terms of §4(a)(2) either clearly authorize disparate-impact claims (the position of the plurality) or at least are ambiguous enough to provide a basis for deferring to such an interpretation by the Equal Employment Opportunity Commission (the position of Justice Scalia). See 544 U. S., at 233–240 (plurality opinion); id., at 243–247 (opinion of Scalia, J.).

In reaching this conclusion, these Justices reasoned that §4(a)(2) of the ADEA was modeled on and is virtually identical to the provision in Griggs, 42 U. S. C. §2000e–2(a)(2). Section 4(a)(2) provides as follows:

"It shall be unlawful for an employer— . . . . . "(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." 29 U. S. C. §623(a) (emphasis added).

The provision of Title VII at issue in Griggs says this: