554 U. S. ____ (2008)

CLIFFORD B. MEACHAM, et al., PETITIONERS v.KNOLLS ATOMIC POWER LABORATORY,
aka KAPL, INC., et al.

on writ of certiorari to the united states court of appeals for the second circuit

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Justice Thomas, concurring in part and dissenting in part.

I write separately to note that I continue to believe that disparate-impact claims are not cognizable under the Age Discrimination in Employment Act of 1967, 29 U. S. C. §621 et seq. See Smith v. City of Jackson, 544 U. S. 228, 247–268 (2005) (O’Connor, J., joined by Kennedy and Thomas, JJ., concurring in judgment). Moreover, I disagree with the Court’s statement that the “reasonable factors other than age” (RFOA) exception, §623(f)(1), is principally relevant in disparate-impact cases. Compare City of Jackson, supra, at 251–253 (opinion concurring in judgment), with ante, at 10–11 (citing City of Jackson, supra, at 239 (plurality opinion)). I therefore join only Parts I and II–A of the Court’s opinion because I agree that the RFOA exception is an affirmative defense—when it arises in disparate-treatment cases. Here, although the Court of Appeals erred in placing the burden of proof on petitioners, I would nonetheless affirm because the only claims at issue are disparate-impact claims.