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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 91-1600
- --------
- HAZEN PAPER COMPANY, et al., PETITIONERS v.
- WALTER F. BIGGINS
- on writ of certiorari to the united states court
- of appeals for the first circuit
- [April 20, 1993]
-
- Justice Kennedy, with whom The Chief Justice and
- Justice Thomas join, concurring.
- I agree with the Court that the Court of Appeals placed
- improper reliance on respondent's evidence of pension
- interference and that the standard for determining willful-
- ness announced in Trans World Airlines, Inc. v. Thurston,
- 469 U. S. 111 (1985), applies to individual acts of age
- discrimination as well as age discrimination manifested
- in formal, company-wide policy. I write to underscore that
- the only claim based upon the Age Discrimination in
- Employment Act (ADEA), 29 U. S. C. 621 et seq., as-
- serted by respondent in this litigation is that petitioners
- discriminated against him because of his age. He has
- advanced no claim that petitioners' use of an employment
- practice that has a disproportionate effect on older work-
- ers violates the ADEA. See App. 29-30 (amended com-
- plaint); 5 Record 71-76 (jury instructions). As a result,
- nothing in the Court's opinion should be read as incorpo-
- rating in the ADEA context the so-called -disparate
- impact- theory of Title VII of the Civil Rights Act of 1964,
- 42 U. S. C. 2000e to 2000e-17. As the Court acknowl-
- edges, ante, at 5, we have not yet addressed the question
- whether such a claim is cognizable under the ADEA, and
- there are substantial arguments that it is improper to
- carry over disparate impact analysis from Title VII to the
- ADEA. See Markham v. Geller, 451 U. S. 945 (1981)
- (Rehnquist, J., dissenting from denial of certiorari); Metz
- v. Transit Mix, Inc., 828 F. 2d 1202, 1216-1220 (CA7
- 1987) (Easterbrook, J., dissenting); Note, Age Discrimi-
- nation and the Disparate Impact Doctrine, 34 Stan. L.
- Rev. 837 (1982). It is on the understanding that the
- Court does not reach this issue that I join in its opinion.
-