Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/65

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Cite as: 576 U. S. ____ (2015)

Alito, J., dissenting

"It shall be an unlawful employment practice for an employer—


"(2) to limit, segregate, or classify his employees or applicants for employment 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 race, color, religion, sex, or national origin." 42 U. S. C. §2000e–2(a)(2) (emphasis added).

For purposes here, the only relevant difference between these provisions is that the ADEA provision refers to "age" and the Title VII provision refers to "race, color, religion, or national origin." Because identical language in two statutes having similar purposes should generally be presumed to have the same meaning, the plurality in Smith, echoed by Justice Scallia, saw Griggs as "compelling" support for the conclusion that §4(a)(2) of the ADEA authorizes disparate-impact claims. 544 U. S., at 233–234 (plurality opinion) (citing Northcross v. Board of Ed. of Memphis City Schools, 412 U. S. 427, 428 (1973) (per curiam)).

When it came to the other ADEA provision addressed in Smith, namely, §4(a)(1), the Court unanimously reached the opposite conclusion. Section 4(a)(1) states:

"It shall be unlawful for an employer—

"(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U. S. C. §623(a)(1) (emphasis added).

The plurality opinion’s reasoning, with which Justice Scalia agreed, can be summarized as follows. Under §4(a)(1), the employer must act because of age, and thus