Upload
supreme-court
View
221
Download
0
Embed Size (px)
Citation preview
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 1/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
IN THE SUPREME COURT OF THE UNITED STATES
- - - - - - - - - - - - - - - - - x
KENTUCKY RETIREMENT :
SYSTEMS, ET AL., :
Petitioners :
v. : No. 06-1037
EQUAL EMPLOYMENT :
OPPORTUNITY COMMISSION. :
- - - - - - - - - - - - - - - - - x
Washington, D.C.
Wednesday, January 9, 2008
The above-entitled matter came on for oral
argument before the Supreme Court of the United States
at 11:09 a.m.
APPEARANCES:
ROBERT D. KLAUSNER, ESQ., Plantation, Fla.; on behalf of
the Petitioners.
MALCOLM L. STEWART, ESQ., Assistant to the Solicitor
General, Department of Justice, Washington, D.C.; on
behalf of the Respondent.
1Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 2/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
C O N T E N T S
ORAL ARGUMENT OF PAGE
ROBERT D. KLAUSNER, ESQ.
On behalf of the Petitioners 3MALCOLM L. STEWART, ESQ.
On behalf of the Respondent 23REBUTTAL ARGUMENT OFROBERT D. KLAUSNER, ESQ.
On behalf of the Petitioners 49
2Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 3/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
P R O C E E D I N G S
(11:09 a.m.)
CHIEF JUSTICE ROBERTS: We'll hear argument
next in Case 06-1037, Kentucky Retirement Systems v.
EEOC.
Mr. Klausner.
ORAL ARGUMENT OF ROBERT D. KLAUSNER
ON BEHALF OF THE PETITIONERS
MR. KLAUSNER: Mr. Chief Justice, and may it
please the Court:
Retirement eligibility in Kentucky is based
on 20 years of service or age 55. Age is not the only
determinant. And "age" is not a bad word. As Justice
White said in McMann v. United Airlines, all retirement
plans necessarily make distinctions based on age.
Here it is age or service. And the EEOC's
focus on age alone fails to appreciate that Kentucky is
an integrated, consolidated retirement plan with the
goal of providing benefits to all qualified workers. To
say, as the EEOC does, that all younger workers will
always fare better than all older workers is factually
wrong, and it fails to appreciate the myriad factors
that go into determining pension amounts.
It's not age alone that determines the
result. Age is a factor. It's not the factor. The
3Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 4/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
plan is not facially discriminatory, it's not arbitrary,
and it doesn't violate --
JUSTICE BREYER: I guess the part that they
are saying is arbitrary as I understand it, and I
appreciate your correcting me if I don't understand it
correctly, is that you get double your pension at 55 if
you've worked 20 years as opposed to 10. Is that right?
MR. KLAUSNER: No, Mr. Chief Justice --
JUSTICE BREYER: A worker who has been
there, he's qualified, he has only worked for 10 years
and now he's 55 years old. There is a chart in the SG's
brief, and as I read that chart, he got amount "X". He
started at 45, he ended up at 55, he gets "X". If he
started at 35 and worked for 20 years, he would get much
more than "X".
MR. KLAUSNER: If the EEOC's chart were --
correct, that would be true, Your Honor, limited only to
the amount of imputed service. The person who began
younger in the example which Your Honor used would get
more imputed service.
JUSTICE BREYER: You would get "Y", because
he worked for 20 years rather than 10; is that right?
I'm not talking about a disabled person. I'm talking
about anybody.
MR. KLAUSNER: No, Your Honor. That's only
4Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 5/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
in the case of disability. In a normal requirement
setting, one works a number of years and you get two
and-a-half percent of your salary for each year that you
worked.
JUSTICE BREYER: So if a person works for 20
years, he gets more than if he worked for 10 years; is
that right?
MR. KLAUSNER: That's right.
JUSTICE BREYER: Now he is disabled. And
when he's disabled, if he's disabled after working only
10 and he is 45 years old, they pretend he had worked
the full 20?
MR. KLAUSNER: They impute -- yes, Your
Honor. They impute the additional service to you.
JUSTICE BREYER: Now I understand it.
Now, this individual says, I was working
there after the age of 55, I only worked for 14 years,
now I become disabled. If I become disabled before I
was 55, let's say I had six years to go, they would give
me six years extra. But because I was disabled after
I'm 55, I get nothing extra. Nothing is imputed. Is
that right?
MR. KLAUSNER: It's only partially right,
Mr. Justice. Justice Breyer, the reason that you get
additional before age 55 is the same as the reason why
5Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 6/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
you get extra before you reach 20 years.
JUSTICE BREYER: I didn't ask you for the
reasons. I want to know if I'm factually right.
MR. KLAUSNER: Your only partially --
JUSTICE BREYER: Where am I factually wrong?
MR. KLAUSNER: The difference is that the
imputed service comes before 55, because you're not
eligible for after 55 or after 20 years you are eligible
for benefits --
JUSTICE BREYER: You're giving me reasons.
I'll ask you in a second for the reasons. I want to
know if what I said is factually true?
MR. KLAUSNER: If you were disabled before
normal retirement, you receive imputed service.
JUSTICE BREYER: And not after?
MR. KLAUSNER: Correct.
JUSTICE BREYER: Okay. Now I'll say that I
think is the discrimination of which he is complaining.
And now what he would like to know is what possible
reason is there for that difference? Now I'd like to
hear what the reason is that justifies that difference.
You give him six extra years when he retired
after 14 years and though he was only 49 years old, and
you don't give him even one extra year when everything
else was the same but he retired after he was 55.
6Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 7/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
Now, explain to me what the reason is for
that.
MR. KLAUSNER: The reason for that, Justice
Breyer, is as follows: The person who's 49 and gets
disabled, assuming he does not have -- he or she doesn't
have 20 years of service, can't retire. The person who
is 55 in your example can leave tomorrow.
Additionally, the person who begins work
older starts out closer to retirement. We are not
talking about two different groups of people. The plan
favors the older worker by saying on the day you begin
work, you're always closer to retiring than a younger
person.
The purpose of the imputed service is to try
to replicate as closely as possible within some
financial limits set by the -- by the General Assembly
of Kentucky what you would have received had you made --
JUSTICE BREYER: No. He says now, what he
says to that, I take it, is fine. He is 49 years old.
He has six years to go to qualify for retirement, so let
him retire. If you let him retire, and you gave him 14
years of credit, you would be treating him just like
you're treating me.
But in addition to letting him retire, you
give him six extra years of credit, which at two
7Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 8/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
and-a-half percent per year. Good, I'm glad you do
that. Give me the six extra years at two and-a-half
percent as well. Treat us alike.
What's your response?
MR. KLAUSNER: My response, Justice, is
this. They start out un-alike. As I mentioned before,
the person who was in 55 in your example, A, is already
eligible for benefit. He doesn't have to wait to be
disabled. He may leave tomorrow.
The person who starts younger, particularly
in a public safety retirement plan, spends more time in
the line of fire than the person who starts older. The
person who starts older takes advantage of the fact that
in this retirement plan you can retire with as little as
five years of service. Actually a person who is 55 is
eligible for a benefit after only a month. In fact,
Kentucky may be the only plan in the country that does
that.
But where they don't start out alike and
where the EEOC's chart is based on fallacy is that the
person who began older in work in your example was
always closer to retirement, they needed less years.
The purpose of the plan for disability
purposes, which is not a separate plan, it's simply a
means of getting one to normal retirement who is not
8Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 9/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
otherwise eligible.
JUSTICE KENNEDY: This has been very
helpful, but it does seem to me to raise a question
about the fairness of your opening statement. You began
by saying something to the effect that this does not
discriminate on the basis of age. It does. Age is the
explicit factor that the statute uses in order to answer
Justice Breyer's question. And the Act does not
prohibit the use of age in all circumstances to which it
applies, but it does -- the Act goes on to prohibit the
use of age in some of the circumstances. And one of
those circumstances is the hypothetical of the
55-plus-year-old person used in Justice Breyer's
statement and example.
So, it is not correct, it seems to me, for
you to say that this does not discriminate on the basis
of age. Now, maybe there is some good reasons for doing
that, you can get into that, but it seems to me it does
make an explicit determination based on age as to some
people.
MR. KLAUSNER: Respectfully, Justice
Kennedy, I think that's not entirely correct, for this
reason. The plan makes the determination of eligible to
retire on 20 years or age 55 with five years. In other
words, it makes the determination not based on age but
9Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 10/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
on pension status, that is, eligibility to receive an
unreduced normal retirement.
JUSTICE SCALIA: You're saying you're one
step removed. You're making your determination on the
basis of eligibility for retirement, which in turn is
based on age. And you're saying that that --
JUSTICE STEVENS: It's sometimes based on
age.
JUSTICE SCALIA: Huh?
JUSTICE STEVENS: It's sometimes based on
age, sometimes years of service.
JUSTICE SCALIA: Right.
CHIEF JUSTICE ROBERTS: And always based on
age plus service.
MR. KLAUSNER: Right. Yes, Mr. Chief
Justice.
JUSTICE SOUTER: But your answer, as I
understand it, to Justice Breyer's question was, could
be boiled down to this: The person whose disability
benefit or total benefit following disability is
calculated on the basis of age 55, is less likely to
have worked or is likely to have worked less long than
the person whose benefit is imputed and calculated on
the basis of 20 years. And because the odds are that
we'll say the person in the 55-year-old category has
10
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 11/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
worked less and endured less risk, it is, therefore,
fair to impute less time on average to such a person,
and therefore, give a lower benefit.
You're saying there is a tradeoff. And the
tradeoff is because the 55-year-old retiree may get a
benefit after very little work and very little risk, it
is therefore fair and not a discrimination that on the
average the windfall is less for that person by the
imputation than the windfall to the person who retires
on the basis of age 20.
Is that a fair statement of your argument?
MR. KLAUSNER: Yes.
JUSTICE SOUTER: Okay.
MR. KLAUSNER: As I noted before, it's
about retirement eligibility, not about age.
In Hazen Paper you dealt with the question
of an individual who was fired because they were about
to meet the 10-year vesting requirement in a private
sector plan. The person was also over the age of 40.
The Court found that it wasn't an age discrimination
case because it said that age was merely correlated with
what the Court called pension status. I think pension
status and retirement eligibility, which can occur at 20
years or it can occur at age 55 with some service, is
exactly the same. In --
11
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 12/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
JUSTICE ALITO: That would be a good
argument if the sole basis for retirement under your
system was years of service, but it's not just years of
service, isn't that right?
MR. KLAUSNER: That's correct, Justice. One
needs some service, but one may retire at 55 or one may
retire at 20 years.
JUSTICE ALITO: You can't take your -- you
couldn't take your statute and erase all the references
to age and have the statute work, could you?
MR. KLAUSNER: No. And I don't -- I don't
think that pension statutes are required to eliminate
any use of age at all.
JUSTICE ALITO: Because the ADA expressly
allows them to do that; isn't that right?
MR. KLAUSNER: The ADA is designed to
eliminate arbitrary age discrimination. That is where
the design of the plan is motivated by a policy of the
employer to discriminate, to provide less solely because
of the individual's age.
JUSTICE SOUTER: That's -- you're sticking
in a word, "arbitrary," that appears nowhere in the body
of the statute. You picked it up from the preamble, and
that's -- and you're interpreting the statute with that.
And it isn't customary for this Court to take words that
12
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 13/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
don't appear in the text of the statute and read them
in, based on some statement of purpose or preamble.
MR. KLAUSNER: Justice Ginsburg, I'm aware
that the preamble alone doesn't direct, and I understand
that the operative language is in 623(a). But I think
that the --
JUSTICE SCALIA: You'd be in better shape if
it was in legislative history and not in the preamble.
We probably would take it into account.
MR. KLAUSNER: I think, Justice, the
legislative history is important for this reason. When
Title VII was first written age was included and then it
was taken out, and there was a reason why it was taken
out: Because there is never a reason to discriminate on
the basis of race, there is never a reason to
discriminate on the basis of national origin or
religion; but in government retirement plans, which are
paid for life and in which the calculation is determined
in part on age, on how long someone will live and how
long they've worked and that interrelationship, I think
Congress recognized age is qualitatively different.
JUSTICE GINSBURG: I think the Congress
recognized that what they were protecting was not age as
such, but old age, where in the other case they say it's
the racial criterion and whether it's -- or the sex
13
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 14/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
criterion, whether it's a man that's adversely affected
or a woman it doesn't make any difference; Title VII
applies to them both. But the Age Discrimination Act
doesn't apply to younger workers. It doesn't say that
you can't discriminate on the basis of age, so you can't
prefer the older person over the younger person.
MR. KLAUSNER: Justice Ginsburg, I
understand this Court's holding in Cline was that the
statute is intended to protect the relatively older as
it relates to the relatively younger. But you also said
in Cline that age is qualitatively different, because
what gives age reason in terms of discrimination is when
it's arbitrary. That is, when it is invidious, and
that's the distinction between the Title VII cases that
the Government relies on, and why I think Hazen Paper is
important, because, as the Court said, unless you can
show in a disparate treatment case that the policy is
motivated by age, then I think that the -- the intent
goes. And the -- one cannot draw from the face of the
Kentucky statute -- and that's what this is; this was a
challenge that said the statute discriminates on its
face -- that the only inference that one can have is
that the design of the plan is motivated to pay older
people less.
JUSTICE GINSBURG: There is one little piece
14
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 15/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
of it that seems, that clearly does favor the younger
retiree. And that's the -- what is it -- you're
guaranteed, what was it, at least 25 percent of your
final monthly salary. That's not under -- for a regular
retiree; and also this 10 percent that you get added on
for each child -- that's not part -- that's somebody who
is disabled gets that, but not somebody who is already a
retiree. Isn't that so?
MR. KLAUSNER: That is correct, but Justice
Ginsburg, that type of disability is not the disability
which was at issue in this particular case. That is for
a person who is disabled from any ability to work,
period, in other words, the Social Security standard of
disability. The disability at issue in this case was
the inability to work as a public safety officer, in
this case a police officer.
JUSTICE GINSBURG: I'm not sure that I
follow that answer.
JUSTICE STEVENS: Am I correct in
understanding that your plan does not provide a
disability benefit just as a disability benefit? The
only time disability is relevant is when it determines
whether or not a person will become eligible for the
regular retirement benefit?
MR. KLAUSNER: That's correct. This isn't,
15
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 16/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
for example, a stand-alone disability insurance policy.
JUSTICE STEVENS: So that for the old person
who has already reached retirement age the fact that he
doesn't get a disability benefit is common to everybody
subject to the plan.
MR. KLAUSNER: It is common subject to
everyone in the plan without --
JUSTICE STEVENS: Isn't that the answer to
Justice Breyer's question?
MR. KLAUSNER: And I -- you certainly said
it better than I did, Justice Stevens.
CHIEF JUSTICE ROBERTS: But is there any
reason -- I think what you're saying is we should view
this as a retirement plan and there are a number of ways
you can be eligible for retirement: Age plus years of
service, but another way you can be eligible is
disability.
MR. KLAUSNER: Disability fills in -- it
covers a gap. Disability is designed to cover you in
most instances from the time you get five years of
service -- and by the way, you're uncovered in this plan
for disability for the first five years of employment
except for a very limited, specific number of instances
in which only total disability from all work applies.
So in the case of the individual who the
16
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 17/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
EEOC talks about as having been discriminated against,
if you were a younger worker for the first five years of
employment you would have been not covered. A 55 -- for
any benefit at all. A person who starts at 21 and gets
disabled from work as a police officer or firefighter
for the first five years of employment has no protection
at all.
JUSTICE GINSBURG: But let's take the one
who gets over the five-year initial period. The
disability pay when you no longer can be in the
hazardous occupation, it will begin immediately, right?
You don't wait until you get -- you're 55 to get it.
MR. KLAUSNER: No, ma'am. That's the
purpose of the imputed services. And it's
essentially -- we say if during this gap of time before
normal retirement, this risk that's covered, that if
this disabling event occurs, we advance you to normal
retirement immediately and try to replicate as closely
as possible the benefit that one would have achieved had
you worked to the closest --
JUSTICE BREYER: But that's the point,
right?
MR. KLAUSNER: -- point of eligibility.
JUSTICE BREYER: There -- that's what the
complaint is, I think, that you say it's the second part
17
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 18/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
that you just said. What you do when the person is
disabled and he is not yet 55 -- he hasn't qualified
yet -- is you both qualify him, and when you qualify him
you give him credit for years he hasn't worked. Now,
the older person who is still working and is also
disabled says: Fine, you let me retire, but you don't
give me any extra years.
Now that's the complaint, I think. So that
if you had a person who had started at 45, eligible to
retire at 55, works for 4 years and becomes disabled, he
is credited with 14 years; while the person who started
at 35 and at 45 becomes disabled, he is given 20 years.
He is given the 10 extra years. So the first person,
older person, says: You gave him some extra years; you
didn't have to give him those extra years in order to
qualify him to retire. You could have just said you can
retire, but you gave him 10 extra years and you give me
no extra years. Why not?
MR. KLAUSNER: The answer to your question,
Justice Breyer, is the person who has either 20 years or
is 55 on the day they become disabled is already
eligible to retire. The plan is a single plan that
provides a benefit. If you start older, you have to
work less to get there. By the same token, by starting
closer to retirement you need less added to your balance
18
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 19/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
to bring you to normal retirement. In the example --
JUSTICE BREYER: You don't need anything to
bring you to normal retirement. You could rewrite the
plan and say when a person becomes disabled you get
retirement, right at that moment. You could say that.
And what the plaintiff is saying is, why don't you say
that? Though it's a bit mean. But I think what he
would probably like is you would extend the extra years
to him.
MR. KLAUSNER: There's reasons why that
isn't done. Number one, to follow your example, Justice
Breyer, for current employees, people hired before 2004,
of which there were several hundred thousand, you'd have
to lower the benefit to follow your example. The
Kentucky Constitution forbids lowering the benefits.
Actually, the Commonwealth, in response to the liability
in this case, did change the disability benefit. For
people hired after 2004, they slashed its economic value
substantially, and now everybody just gets a certain
amount of disability. It doesn't, however, accomplish
the Commonwealth's goal of attracting and retaining
employees to do hazardous duty jobs.
CHIEF JUSTICE ROBERTS: So the effect of
this litigation is that policemen or firefighters who
are injured and become disabled now get lower benefits
19
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 20/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
for disability?
MR. KLAUSNER: Much lower. It's a
substantial reduction. They just get a small piece of
change.
It's interesting, you know, in the Federal
Civil Service Retirement System, the police officers,
for example, who work in this Court, if they become
disabled, they have imputed service to an age. It's a
very similar system. In fact, all employees in both
FERS, the Federal Employees' Retirement System, and the
Civil Service Employees' Retirement System, both
participate in a program where age is imputed to normal
retirement. It's a common practice, as the Court can
see from the amicus briefs. It's a common practice
throughout the United States. I think --
JUSTICE BREYER: See, that's why I think the
result in this case is just terrible. I think it takes
disabled people and cuts their benefits with no benefit.
I cannot believe for two minutes that Congress would
have intended that result. But the reason I asked you
the question was I want you to tell me how to get to
that result under this statute.
MR. KLAUSNER: You may get to this result in
this way: If you determine that age is not the driver,
that is, that because you have a plan that has normal
20
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 21/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
retirement based on service alone, a 38-year-old
employee who gets disabled with 18 years of service gets
two years of imputed service. The 45-year-old, in your
example, who started at 35 would get 10 years.
JUSTICE KENNEDY: Suppose I can't make that
assumption or adopt that premise. Is there another
basis on which to reach the result? I think this does
explicitly discriminate based on age as to some people,
and you're telling me you don't want me to do that. But
Suppose I don't agree with you. Is there some other way
to reach the result?
MR. KLAUSNER: I think Your Honor you can
reach the result in this way. The statute was
challenged as being facially discriminatory, and I think
under this Court's precedents for facial discrimination,
one would have to say that the only reasonable inference
in the statute, by its mere use of age, is that you say
that it starts out presumptively discriminatory. What
the Government has really argued here is an as-applied
circumstance. They said the effect of the statute in
certain cases, and in those circumstances the statute
would stand on its face and if there is a circumstance
in which someone effectively is discriminated, then you
look to see are there reasonable factors other than age
that effect -- that take effect in this instance?
21
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 22/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
Secondly, I think the Court can determine --
and I think this is the question that is the next step
after Hazen, where you said that age correlated with
pension status, in that case being vested for 10 years.
The question is, if a plan has eligibility to retire as
its motivation, that is, it is service regardless of age
or age plus service, is it really motivated by age? And
I think the answer to that question, Justice Kennedy,
clearly is no.
The one thing I would add is if you look at
the statute in Betts, the Ohio case, which is the last
time an age case on a public plan got to this Court, in
the Ohio plan you couldn't get a disability because you
were 60, but you could also retire in that plan just
like Kentucky on years of service alone, but a
years-of-service retiree in Ohio could get a disability.
That's not true in Kentucky. Somebody who
starts as a firefighter at 18 no longer has disability
protection at 38 years old. A person who starts as a
police officer at 45 retains disability coverage until
they're 55. I think -- I think the language of the
statute alone enables you to get there.
And I think to get back to Justice
Ginsburg's question -- and I don't believe I fully
answered on this issue of the role of the word
22
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 23/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
"arbitrary" in the statute -- I think that that gives
that word meaning, not just because it's in the
preamble, but because it's in the legislative history,
and the evil that Congress was trying to get to is what
is it that we're trying to prevent? We're trying to
create job opportunities for older workers, and what
Congress said after Betts is you want to make sure
benefit plans are covered. And I think Kentucky has
accomplished both. It doesn't use a retirement age, as
many employers do. Again, the Federal Government forces
police officers and firefighters out of their jobs.
Firefighters at 55, police officers at 57. Kentucky
doesn't. The program doesn't discriminate on the basis
of age.
If there's no question, I'd like to reserve
the rest of my time for rebuttal.
CHIEF JUSTICE ROBERTS: Thank you, counsel.
Mr. Stewart.
ORAL ARGUMENT OF MALCOLM L. STEWART
ON BEHALF OF THE RESPONDENT
MR. STEWART: Mr. Chief Justice, and may it
please the Court:
In calculating the retirement benefits owed
to disabled workers, Kentucky uses age as an explicit
decisionmaking factor in a way that disadvantages older
23
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 24/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
employees. Although Kentucky may be able to establish
on --
JUSTICE BREYER: Let me ask you this sort of
basic question: Does it use age any differently than it
uses years of service?
MR. STEWART: It does in the sense that,
with respect to disabled employees, two employees who
have the same total years of actual service but who are
of different ages may receive dramatically different
benefits.
JUSTICE STEVENS: That's because of the
period necessary to qualify for retirement?
MR. STEWART: It's -- let me direct your
attention to the relevant provision of the Kentucky
statute, and it's at page 7a and 8a of the blue brief.
This is with respect to -- it's true that, for a normal
retirement, an individual either has to be age 55 with 5
years of service or have 20 years of service at whatever
age. But if you look at the requirements for disability
retirement in particular, the very bottom of the page,
it says: "Any person may qualify to retire on
disability subject to the following. The person shall
have 60 months of service, 12 of which shall be current
service credited under provisions of Kentucky law."
JUSTICE STEVENS: Let me just interrupt you.
24
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 25/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
Is there -- is it your position there is a disability
benefit that is different from the retirement benefit?
MR. STEWART: They -- they are different in
the sense that they are calculated differently. That
is, if all Kentucky had done was say --
JUSTICE STEVENS: I thought that all that
disability did was determine -- help get a man who is
disabled eligible for the retirement benefit.
MR. STEWART: The program --
JUSTICE STEVENS: That's the only function
it provides.
MR. STEWART: I think that's incorrect.
There are two distinct functions of -- there are two
distinct differences between disability retirement and
normal retirement: The first is that the eligibility
criteria are different. In order to qualify for normal
retirement, you have to be either 55 years old with 5
years of service or have 20 years of service. For
disability retirement, you become eligible if you are of
any age and are forced to retire due to disability and
have at least five years of service.
JUSTICE SCALIA: Well, why does that matter?
I mean, the exception in the statute is for -- for
retirement, taking age into account for retirement, is
narrowly crafted. It says that they can make any
25
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 26/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
decision about -- they can require the attainment of a
minimum age as a condition of eligibility for normal or
early retirement.
Now, we have not read that to exclude adding
an additional element to age, namely age plus years of
service. We don't say that that disables you from the
-- from that exemption. Why can't you add a third
factor? Age, years of service, and disability.
MR. STEWART: You can't. The first thing I
would say about that exception is it refers specifically
to a minimum age, and what that was intended to make
clear was that to the extent that Kentucky allows
55-year-olds to retire with only 5 years of service, but
requires a 45-year-old to have 20 years of service, that
minimum age would not violate the statute. Now, as a
result of this Court's decision in Cline, that provision
in a sense is superfluous because the younger worker
wouldn't have an ADEA claim anyway. But the reference
to a minimum age is intended to address that situation.
JUSTICE SCALIA: And --
JUSTICE ALITO: It seems to me that what
Kentucky is trying to do is to, at least in part,
provide make-whole benefits for a police officer who
becomes disabled below the age of 55. So what they want
to do is to say we want to give you the benefit that you
26
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 27/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
would have received if you had not been hurt on the job
and therefore unable to work and had been able to work
to the normal retirement age.
Now, if that's correct, is that an
illegitimate objective? And if it's not an illegitimate
objective, is there any way that they can do that
consistent with your understanding of the ADEA? Because
when someone is over the retirement age, it's rather
hard to see how many years you would add on projecting
how long that person would continue to work beyond the
age of retirement eligibility.
MR. STEWART: It is certainly not
illegitimate for Kentucky to say: We want to be more
generous to people who are forced to retire due to
disability than to people who choose to retire
voluntarily when they are physically capable of
continuing to work.
And so if Kentucky wants to say, in the case
of an individual who is forced to retire due to
disability, we will add additional years in computing
benefits to estimate the number of years this person
would have worked had he or she not become disabled,
that's fine as well.
What they can't do, at least what they can't
do without establishing one of the affirmative defenses,
27
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 28/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
is use age as a proxy, as the basis for deciding how
many years would this person have worked if he or she
had not become disabled because --
JUSTICE ALITO: So if they want to do that
and they have a case of a police officer who works
beyond 55 -- the officer is 55-plus with 10 years of
service and then becomes disabled -- you say they have
to give that person 10 years of credit.
MR. STEWART: If they are going to give the
45-year-old with 10 years of service 10 years of credit,
they have to give the 55-year-old 10 years of service --
with 10 years of service 10 years of credit, again,
unless they can establish the cost-justification
defense.
And part of the argument they are making is
it would be unduly expensive to guarantee the
55-year-old an additional 10 years of service, because
it's much more likely that the 55-year-old will become
disabled than it is with the 45-year-old.
JUSTICE SOUTER: But he is saying one thing
more. He is saying it's also highly unlikely that the
55-year-old has worked as long subject to risk at the
point at which the calculation is made than is the case
with the person who retires on the basis of 20 years.
And so that there is a tradeoff. And, therefore, you
28
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 29/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
constantly analyze this as the kind of garden variety of
discrimination based on age which Congress was aiming
for.
MR. STEWART: Well, to go back to the
question you were asking Mr. Klausner, I think if we
were looking at the class of voluntary retirees, it
would be an accurate generalization to say that those
above 55 were likely to have fewer years of service than
the younger people. Because the only way that a younger
person could qualify for normal retirement would be to
amass 20 years of service; whereas, the older person
could do it with fewer years.
But if you are looking at people who want to
continue working but who are prevented from doing so by
reason of disability, there is no reason to assume that
the older people are going to have spent less time in
the line of fire than the younger people. And, in any
event, the comparison that we are making --
JUSTICE SCALIA: Just say that again. Just
say the last thing again. I didn't follow you.
JUSTICE SOUTER: Yes. I didn't get it
either.
MR. STEWART: If we're looking at the class
of people who -- including over 55-year-old and under
55-year-old -- who want to continue working but who have
29
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 30/63
1
2
3
4
5 --
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
been prevented from doing so by reason of disability,
there is no reason to think that the older people within
that class, as a group, will have fewer years in the
line of fire than the younger people. And, in any event
JUSTICE SCALIA: Why? I -- I think -- you
mean in the future?
MR. STEWART: No. No. Under their belt.
Under their belt.
JUSTICE SCALIA: Under their belt. I see.
JUSTICE SOUTER: They are exactly the same
people. The only thing that distinguishes the one
class, those who voluntarily do and those who are
disabled, is happenstance; and the happenstance is
disability in the line of service.
MR. STEWART: It's not just happenstance,
because if you're guessing the likely tenure of service
of people who take voluntary normal retirement before
age 55, in a sense you are skewing the class, because
the only people who can do that under Kentucky law are
people with at least 20 years of service.
So the voluntary retirees, the younger
people, as a group, are likely to be -- have longer
tenure. But that generalization doesn't hold true with
respect to people who are forced to retire due to
30
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 31/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
disability.
JUSTICE STEVENS: It seems to me your
argument boils down to the claim that people who have
already reached -- become eligible for retirement by
either age or period of service, the State has a duty to
give them a chance to recover a disability benefit if
they give a disability benefit to younger workers.
MR. STEWART: No. Our point is that they
should use the same computation methodology for both
categories of employees.
JUSTICE STEVENS: The computation is for a
different purpose in that -- in -- for the younger
workers the purpose is to make them eligible for
retirement. For the older workers, they are already
eligible for retirement.
MR. STEWART: I think that's incorrect, and
that was really the point I was making by quoting from
the Kentucky law on page 7a and 8a. The Kentucky
provision that I quoted was the provision that
establishes eligibility for disability retirement. And
it says, as the criterion for eligibility, beyond, of
course, the fact of disability, the person shall have 60
months of service.
So an individual under Kentucky law who is
forced to retire due to disability and has at least five
31
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 32/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 --
Official - Subject to Final Review
years of service is eligible for disability retirement.
The imputation of additional years of service is not
necessary --
JUSTICE STEVENS: The term "eligibility for
retirement," as used in that part of the statute, is
referring to actually the same thing as retirement
achieved by getting their -- getting credit for
post-disability years.
MR. STEWART: Exactly. Well, the purpose of
defining the category of eligible persons is to make
sure that they do get a retirement benefit even though
they wouldn't satisfy the normal age and service
requirements for ordinary retirement. And we have no
problem with that.
Kentucky can say we want to define a
separate category of individuals who don't satisfy
normal age and service rules but who should,
nevertheless, be given a retirement benefit because they
have been forced to retire due to disability. That's
fine.
And if they use the same computation
methodology, namely, some factor of actual years of
service times final compensation times a multiplier, as
they do for normal retirement, that would be fine. Our
32
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 33/63
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 34/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
who are disabled at a time when they are younger and
probably have fairly good expenses, and everybody gets
this kind of insurance.
And this man who is the Plaintiff here had
it, too, while he was there. So it's true you are
really using in a minimal sense age, but you are doing
it in a statute that permits you to do it because it's a
lesser version of that.
MR. STEWART: There are a couple of things
I'd say. The first is that the Act is quite specific in
saying that a State may establish a minimum -- may
establish a retirement age with respect to its State
police and firefighters, but it doesn't say the ADEA is
inapplicable to police and firefighters who are over age
55.
JUSTICE BREYER: It doesn't say it's
inapplicable. I wasn't saying it's inapplicable. What
I am worried about -- and this is a perfect example of
people using absolutely mechanical rules, and
particularly when you talk about pension systems, which,
of course, age is relevant to a pension system, and what
they do is find comparisons; and, before you know it,
you are in the kind of a -- of a hamburger situation
where it's so chopped up that perfectly worthwhile
things are forbidden. And this would seem to be a
34
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 35/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
number 1 exhibit.
MR. STEWART: There are several different
answers I would give. The first is if the greater
included the lesser, it would be permissible for
Kentucky to say: We will keep the over 55-year-old
people on the work force, but we'll pay them less
because of their age.
JUSTICE BREYER: No, because what you are
looking at is to see whether the purpose of Congress is
somehow implicated, a purpose designed to prevent
stereotypical thinking from being used to put older
people at a disadvantage. And there is no indication
that this is so in this case.
MR. STEWART: I think --
JUSTICE BREYER: Now, what's the response?
MR. STEWART: I think that's incorrect, that
is, the two justifications that have been given for the
disparate treatment of older workers are, first, younger
workers as a group are likely to need more of a boost;
and, second, the younger disabled person probably would
have worked longer if he had not become disabled. And
so this replicates the situation that would have
prevailed.
I think, whether or not you want to think of
those as stigmatizing stereotypes, it's quite clear that
35
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 36/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
neither of those generalizations could typically be used
as a basis for age-based disparities.
For instance, nobody would claim that an
employer could pay the older workers less because they
are likely to be less in need of financial assistance.
And with respect to the initial --
JUSTICE SOUTER: The reason for that is that
we accept the criterion at the outset that your pay
bears some relationship to what you do.
We are now in a situation in which the
benefit does not bear a relationship to what you are
doing or going to do.
MR. STEWART: Well, on the whole, the
benefit bears a close -- the retirement benefit bears a
close relationship to what you have done. That is, the
benefit is calculated on the basis of actual years of
service, and the purpose clearly is, in part, to reward
the employee for service to the employer.
But with respect to -- and that's the way
it's done with respect to the older disabled worker.
His benefits are computed based on what years of service
he has actually contributed to the employer. With
respect to the younger people, it's not based on that
alone. Rather, the State imputes additional years --
JUSTICE GINSBURG: And with respect to that,
36
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 37/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
Mr. Stewart, the problem that Justice Breyer brought up,
you -- if you would look to your brief, page 30,
footnote 13, the question is, so we have this -- if we
take your interpretation of the statute, how can we deal
with a person in her 30s who becomes disabled when she
is making a low salary and has only, say, 10 years of
service? She is going to get a very low disability.
And you say that's one thing that's all right.
On a prospective basis, what could Kentucky
do? One is give the younger workers only their actual
years of service, which Mr. Klausner said is what is
happening, and therefore, these people are getting a lot
less than they used to get. And then you say, oh, but
there's another way, and that is to impute additional
years of service on an age-neutral basis. And you're
not specific about what would the age-neutral basis be.
MR. STEWART: I guess there could be a range
of alternatives. One alternative, for instance, would
be for every disabled worker of whatever age impute an
additional five years of service as something of a rough
estimate of the number that person might have worked if
he or she had not become disabled.
Another possibility would be to impute years
of service up to 10 or 20. Again, there would be
probably an infinite number of ways it could be done as
37
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 38/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
long as age were not used as, as the basis.
The other thing I wanted to say about --
JUSTICE ALITO: But if do you that, aren't
you going to be -- you're going to be undercompensating
the younger person who gets disabled and
overcompensating the people over 55 who gets disabled
who may not -- it may not be realistic to think that
someone's going to continue to work as a police officer
until 65. I don't know.
MR. STEWART: Well, the other thing I would
say about that justification, which rests on I think the
valid statistical correlation between how old you are at
the time that you're disabled and how much longer you
would have worked. Again, whether or not -- I think you
wouldn't think of that as an invidious stereotype. But
again, it's not a generalization that could typically be
used as a basis for age-specific decisions.
For example, the Wirtz report makes clear
that the paradigmatic pre-ADA practice that Congress
wanted to get rid of was a limit of age 50 or age 45 and
an employer saying: We're not going to hire anybody who
is over that age. And certainly the employer could say
justifiably as a group people above that age are likely
to have fewer work years ahead of them than people below
that age. And if that generalization could provide a
38
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 39/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
basis for an explicit age-based distinction, the Act
would really be eviscerated.
The other thing I wanted to respond to is
the suggestion that, while we might be able to tease
this out of the literal language of the statute, this is
certainly an unintended consequence. It is not
something that Congress would have wanted. I think, to
the contrary, this is not identical but very similar to
the type of disparity that was present in Betts. That
is, in Betts the individual was over the age of normal
retirement but had elected to keep working. She became
disabled and was prevented from continuing to work. She
was eligible for normal retirement benefits. She wanted
to collect disability retirement benefits, because
again, the reason for her retirement was disability.
She was told that she couldn't do it. And the State's
computation methodology for calculating disability
retirement benefits was significantly more generous than
the one that it offered for --
JUSTICE BREYER: What about this idea, which
is -- would this wreck the statute? You say we're
talking about age, which is not an immutable
characteristic. Everybody goes through it. Everybody
is younger, everybody is older. And therefore we take
the word "discriminate" and the word "discriminate" in
39
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 40/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
this context, when considered in terms of pension
requirements, which inevitably are age mixed to a
considerable degree, means that if there are plausible
justifications and no significant reason for thinking
that it reflects stereotypical thinking, that it does
not fall within the scope of the word "discriminate."
MR. STEWART: I think, first, that would be
contrary to the way that the word "discriminate" has
been construed in Title VII.
JUSTICE BREYER: I started out by saying,
that's why I said that this is not an immutable
characteristic, and it is -- that's why I put all the
qualifications in there.
MR. STEWART: Well, the court in Thurston
has said the language of the ADEA should be construed
similarly to that of Title VII because the basic
anti-discrimination prohibition was drawn in haec verba
from Title VII in the legislative history to the older
workers's Benefit Protection Act when Congress amended
the statute to cover fringe benefits, which the Court in
Betts had held were not covered. Congress did that by
enacting a new 29 U.S.C. 630(l) to say the term -- that
the phrase "terms and conditions of employment" includes
fringe benefits.
And the legislative history explains that
40
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 41/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
Congress could have achieved the same result by adding a
reference to fringe benefits in the basic
anti-discrimination provision contained in 29 U.S.C.
623(a), but the Congress chose not to do that because it
wanted to maintain the similarity in wording between the
ADEA's anti-discrimination provision and that of Title
VII in order to reinforce the inference that the two
were to be construed in pari materia.
The other thing I would say with respect to
your reference to age distinctions that are not based on
stereotypes is again to return to what I was discussing
earlier. The two justifications that have been offered
are first, younger people are likely to have fewer
financial resources, so they need more of a boost; the
second is the younger worker probably would have worked
longer if he hadn't become disabled and therefore this
is replicating the situation that would have prevailed
absent the disability.
And again, my point is, whether or not you
think of those as invidious stereotypes, they are
plainly not generalizations that could typically be used
to justify --
JUSTICE STEVENS: May I ask this question
right on that point. Supposing you have two different
people retire, one -- that become disabled, rather --
41
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 42/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
one because he's five years short of the age eligibility
and the other because he's five years short of years of
service, so it would be a younger person, and both would
have become eligible for retirement in five years after
their disability. Are they treated the same way under
the plan? And if they are, where is the discrimination?
MR. STEWART: Well, the discrimination is if
you imagine --
JUSTICE STEVENS: Well, first of all, tell
me whether they're treated the same way under the plan.
MR. STEWART: Well, it depends on other
variables. For instance, if you have a --
JUSTICE STEVENS: What other variables?
MR. STEWART: As to the person who is five
years away from qualifying by reason of --
JUSTICE STEVENS: Years of service.
MR. STEWART: -- years of service, if that
person is younger than 50, then they'll be treated the
same, because each of them will have --
JUSTICE STEVENS: That's a hypothesis.
MR. STEWART: But --
JUSTICE STEVENS: So then how is that
discrimination on the basis of age?
MR. STEWART: But it is a discrimination on
the basis --
42
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 43/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
JUSTICE STEVENS: It's not even
discrimination as far as I see it.
MR. STEWART: Well, it wouldn't -- there
wouldn't be any claim of disparate treatment with
respect to those two individuals. But if you have an
individual who is 55 years old with 15 years of service
and 50 years old with 15 years of service, they are both
equally close to the 20-year threshold for qualifying
for normal retirement on the basis of years of service.
Yet the 50-year-old gets 5 imputed years added and gets
a significantly larger benefit than the 55-year-old.
Their justification is, well, the
55-year-old is already eligible for normal retirement
and therefore, it's fair to treat him differently. And
the point I was making with reference to the Kentucky
code is the 50-year-old who is forced to retire due to
disability is also eligible for retirement. It's called
disability retirement.
JUSTICE STEVENS: It seems to me that your
claim boils down to an argument that the statute
requires someone who is already qualified for retirement
to get a disability benefit that the younger person
would. It seems to me that's the basic difference.
MR. STEWART: No, I don't think that's
correct. If all the State did was to say disability
43
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 44/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
retirement benefits will be available to people who have
at least five years of service and are forced to retire
due to disability and we are excluding people who are
above 55, in and of itself that's fine. If the only
purpose of excluding the older workers is to make clear
that they can't get both benefits simultaneously, there
is no problem with that.
Our problem is that, having defined the
class of persons eligible for disability benefits to
include only those who are under 55 --
JUSTICE STEVENS: I see you talking about
two benefits.
MR. STEWART: -- they did use a more
generous computation methodology.
JUSTICE STEVENS: There not two benefits.
It's only one.
MR. STEWART: It's only one benefit. And
really, that's part of our point. It's only one
benefit, so why would they say that people who are older
will have their benefits computed using a different
formula than people who are younger?
CHIEF JUSTICE ROBERTS: You prevent the
State from taking into account the fact that younger
disabled workers have not had the same opportunity that
older disabled workers have. And it results -- if we
44
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 45/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
adopt your system where you can look only at years of
service, what it, in effect, is going to do is to
prevent Kentucky from giving disability benefits to
older workers who become disabled.
For example, if you have two workers, one
who starts work at 18 and acquires years of service,
say, 12 years of service and becomes disabled, you would
say, well, you can take those years of service into
account. The older worker who begins at age 30 and is
disabled in his first year on the job, you say, well,
you can only look at years of service. You can't impute
to both of them retirement age. So the 30-year-old who
becomes disabled has to get less, fewer benefits than
the 18-year-old who becomes disabled.
MR. STEWART: Well, first, we are not
preventing Kentucky from imputing additional years. We
are simply saying the method of determining how many
years will be imputed, absent an affirmative defense,
can't be dependent on the employee's age.
JUSTICE BREYER: Would it be the same as --
I mean it seems to me now -- I'm thinking the problem is
we are going into the package; we are starting opening
up the package that the 55-year-old retiree normally
gets.
Suppose they said this: here's what we'll
45
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 46/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
do to the disabled person. We'll treat him just as if
he retired at 55. He is only 35; and, moreover, at 55
when you retire in our police force, we give you a big
party and a gold watch. Well, we don't do that if you
retire later on. Same kind of claim.
Why not? Over 65 years old, he retired.
Hey, you didn't give him the gold watch. Why did you
give the other person the gold watch? You said the
reason is we treat them all like we treat them when you
retire at 55.
MR. STEWART: I'm not quite sure if I
understand the question, but I don't think that there is
any --
JUSTICE BREYER: That's fair, that you don't
understand.
(Laughter.)
MR. STEWART: I don't think there would be
anything wrong with Kentucky saying we are going -- in
fact, this is what we are asking for. If Kentucky wants
to say a younger person who is forced to retire due to
disability will be treated as though he were 55 years
old, that's fine. If they give him disability benefits
and they calculate the benefits using actual years of
service as they do for the other -- for the older
employees, that there is no ADEA problem with that.
46
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 47/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
Our problem is that they say we are treating
him as though he had worked additional years until he
was 55 when he hasn't, and when the older employee isn't
given that same opportunity.
And, again, it is true that Kentucky's
system is particularly generous to older employees who
want to retire voluntarily. They can retire with as
little as five years of service, even though the younger
worker would have to have more. But the people on
whose behalf the EEOC is suing have not derived any of
that benefit. These were people who did not retire
voluntarily. They were people who were eligible for
retirement benefits, but chose to remain in the work
force. And, essentially, they are being told, in
estimating how many more years you would have worked, we
are going to have an irrebuttable presumption that the
answer is zero, even though their very circumstances,
the fact that they continued to work after they could
have retired, belie that assumption.
And just a final point I wanted to make
about Betts, is that the system here is not identical,
but very similar to the system that was at issue there,
in the sense that an older worker who was forced to
retire due to disability got a lower benefit than she
would have received if she had been younger with the
47
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 48/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
same years of service and the same disability.
It couldn't be clearer that Congress wanted
to overturn that decision. That was the impetus for the
enactment of the OWBPA.
So I think there is really -- it's not
correct to suggest that, even if we win, this is somehow
an unintended consequence of what Congress did. This is
the very situation that Congress wanted to cover while
providing an affirmative defense to employers who can
satisfy it.
JUSTICE GINSBURG: Mr. Stewart, before you
finish, that little piece that seems to be favoring the
younger worker that you guaranteed at least -- what was
it, 25 percent of your final monthly salary, and you get
10 percent for each child -- now that does seem to be
something that's -- that's not available for a regular
retiree.
MR. STEWART: It's not available for a
regular retiree, and it's not available for a person who
is eligible for normal retirement but becomes disabled
and is forced to retire for that reason.
If the only problem were that Kentucky made
those benefits available to people who were forced to
retire due to disability, that wouldn't be an ADEA
violation, so long as they made those benefits available
48
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 49/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
to the older worker who was also forced to retire.
But I take your point that those aspects of
the statute introduce a further element of age
discrimination without even the justification that
Kentucky has proffered for the imputed years.
With respect to the children, in particular,
that seems to be the only other area in the plan in
which Kentucky is directly targeting the people who are
in greatest financial need, at least by one measure
having dependent children, and yet the older workers are
left out of that entirely.
CHIEF JUSTICE ROBERTS: Thank you,
Mr. Stewart.
Now, Mr. Klausner, you have four minutes
remaining.
REBUTTAL ARGUMENT OF ROBERT D. KLAUSNER,
ON BEHALF OF THE PETITIONERS
MR. KLAUSNER: I'd like to start back where
we just left off with Justice Ginsburg's question about
the guaranteed benefit. If a person is 38 years old and
has 20 years of service, that benefit is not available.
If you're 50 years old with 5 years of service, the
benefit is available.
The benefit is not available to the
38-year-old because that person is eligible to retire on
49
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 50/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
a normal retirement benefit. Age isn't the driver.
Eligibility for retirement is the motivation.
And while my brother says that Congress
wanted to overturn Betts, what they wanted to overturn
in Betts was the language in this Court's decision that
cast doubt on whether pension plans were generally
covered by the language of the Age Discrimination in
Employment Act. And the Older Workers Benefits
Protection Act, if one looks at the legislative history,
was focused far less on what happened in a public
employee retirement system. The real issue that
Congress focused on, if one looks at the House and
Senate reports, is they said there is a problem in
private industry in the Rust Belt that normal retirement
eligibility is being used to force people not to get
some other benefit in some other stand-alone plan.
That's not the issue here.
And the plan in Betts is no more like
Kentucky's plan than the Thurston plan. In Thurston,
the pilot case, no pilot over 60, no matter how
skillful, had bumping rights to be a flight engineer.
In Kentucky, one with 20 years of service, regardless of
age, is in the same posture as someone who is 55 with a
minimum service.
My brother also pointed you to a provision
50
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 51/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
in the Kentucky statute on pages 7a and -- page 7a in
the appendix. Look also at 2a, which defines normal
retirement to be 55 with 5 years of service, or 20 years
of service regardless of age. The methodology for
determining disability in this case is exactly the same.
It's based on your proximity to normal retirement, not
based on your age.
One example was given. If a person is 45
years old with 4 years of service and became disabled,
that person would get nothing because they haven't met
the five-year service requirement. But a 55-year-old
with 4 years of service has a normal retirement benefit.
It's about limited Government resources not
being duplicated, and perhaps that's the reason why the
EEOC adopted its regulation on December 26th
coordinating retiree health care. The rationale they
gave was we looked at all the -- all the ways to do
this, and we couldn't come up with a reason to do it any
other way.
In the Sixth Circuit Federal argument, Judge
Boggs noted in his dissent -- Chief Judge Boggs noted he
asked the EEOC for a reason on how to fix this, and they
couldn't give him one.
What this case is about is about being fair
to workers without regard to age. All the people who
51
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 52/63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Official - Subject to Final Review
run these plans, who fund these plans, who are in these
plans, are all lined up on Kentucky's side of the table.
That should tell you that it's neither
arbitrary nor discriminatory. The plan is fair, and the
plan does not violate the law. We ask you to reverse
the decision below and reinstate the district court's
original final summary judgment.
Thank you.
CHIEF JUSTICE ROBERTS: Thank you
Mr. Klausner. The case is submitted.
(Whereupon, at 12:07 p.m., the case in the
above-entitled matter was submitted.)
52
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 53/63
Official - Subject to Final Review
Page 53
A ability 15:12able 24:1 27:2
39:4above-entitled
1:12 52:12absent 41:18
45:18absolutely 34:19accept 36:8accomplish
19:20accomplished
23:9account 13:9
25:24 44:23
45:9accurate 29:7achieved 17:19
32:7 41:1acquires 45:6Act 9:8,10 14:3
34:10 39:140:19 50:8,9
actual 24:832:22 36:1637:10 46:23
ADA 12:14,16add 22:10 26:7
27:9,20added 15:5
18:25 43:10adding 26:4
41:1addition 7:24additional 5:14
5:25 26:527:20 28:1732:2 36:2437:14,20 45:1647:2
Additionally 7:8address 26:19ADEA 26:18
27:7 33:10,1334:13 40:1546:25 48:24
ADEA's 41:6adopt 21:6 45:1adopted 51:15advance 17:17advantage 8:13
adversely 14:1affirmative
27:25 45:1848:9
age 3:12,12,133:15,16,17,243:25 5:17,259:6,6,9,11,179:19,24,2510:6,8,11,1410:21 11:10,15
11:19,20,21,2412:10,13,17,2013:12,19,21,2313:24 14:3,514:11,12,1816:3,15 20:820:12,24 21:821:17,24 22:322:6,7,7,1223:9,14,2424:4,17,1925:20,24 26:226:5,5,8,11,1526:19,24 27:327:8,11 28:129:2 30:1931:5 32:12,1733:3,7,11 34:634:12,14,2135:7 37:1938:1,20,20,2238:23,25 39:1039:22 40:2
41:10 42:1,2345:9,12,1949:3 50:1,7,2351:4,7,25
ages 24:9age-based 36:2
39:1age-neutral
37:15,16age-specific
38:17agree 21:10ahead 38:24
aiming 29:2Airlines 3:14AL 1:4alike 8:3,19ALITO 12:1,8
12:14 26:2128:4 38:3
allows 12:1526:12
alternative 37:18
alternatives 37:18amass 29:11amended 40:19amicus 20:14amount 4:12,18
19:20amounts 3:23analyze 29:1and-a-half 5:3
8:1,2answer 9:7
10:17 15:1816:8 18:1922:8 47:17
answered 22:25answers 35:3anti-discrimin...
40:17 41:3,6anybody 4:24
38:21anyway 26:18apart 33:11
appear 13:1APPEARAN...
1:15appears 12:22appendix 51:2applies 9:10
14:3 16:24apply 14:4
appreciate 3:173:22 4:5
arbitrary 4:1,412:17,22 14:1323:1 52:4
area 49:7argued 21:19argument 1:13
2:2,7 3:3,711:11 12:223:19 28:1531:3 43:2049:16 51:20
asked 20:2051:22
asking 29:5
46:19aspects 49:2Assembly 7:16assistance 36:5Assistant 1:18assume 29:15assuming 7:5assumption 21:6
47:19as-applied 21:19attainment 26:1attention 24:14attracting 19:21available 44:1
48:16,18,19,2348:25 49:21,2349:24
average 11:2,8aware 13:3a.m 1:14 3:2
B back 22:23 29:4
49:18bad 3:13balance 18:25based 3:11,15
8:20 9:19,2510:6,7,10,1313:2 21:1,829:2 36:21,23
41:10 51:6,7basic 24:4 40:16
41:2 43:23basis 9:6,16 10:5
10:21,24 11:10
12:2 13:15,1614:5 21:723:13 28:1,2436:2,16 37:937:15,16 38:138:17 39:142:23,25 43:9
bear 36:11bears 36:9,14,14began 4:18 8:21
9:4
begins 7:8 45:9behalf 1:16,20
2:4,6,9 3:823:20 47:1049:17
belie 47:19believe 20:19
22:24belt 30:8,9,10
50:14benchmark
33:17,18benefit 8:8,16
10:20,20,2311:3,6 15:2115:21,24 16:417:4,19 18:2319:14,17 20:1823:8 25:2,2,826:25 31:6,732:11,18 36:1136:14,14,1640:19 43:11,22
44:17,19 47:1147:24 49:20,2149:23,24 50:150:16 51:12
benefits 3:19 6:919:15,25 20:1823:23 24:1026:23 27:21
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 54/63
Official - Subject to Final Review
Page 54
36:21 39:13,1439:18 40:20,2441:2 44:1,6,944:12,15,2045:3,13 46:22
46:23 47:1348:23,25 50:8
better 3:21 13:716:11
Betts 22:11 23:739:9,10 40:2147:21 50:4,550:18
beyond 27:1028:6 31:21
big 46:3
bit 19:7blue 24:15body 12:22Boggs 51:21,21boiled 10:19boils 31:3 43:20boost 35:19
41:14bottom 24:20Breyer 4:3,9,21
5:5,9,15,24 6:26:5,10,15,177:4,18 17:2117:24 18:2019:2,12 20:1624:3 33:16,2234:16 35:8,1537:1 39:2040:10 45:2046:14
Breyer's 9:8,1310:18 16:9
brief 4:12 24:15
37:2briefs 20:14bring 19:1,3brother 50:3,25brought 37:1bumping 50:21business 33:24
C C 2:1 3:1calculate 46:23calculated 10:21
10:23 25:436:16
calculating 23:23 39:17
calculation 13:18 28:23
called 11:2243:17
capable 27:16care 51:16case 3:4 5:1
11:21 13:24
14:17 15:11,1415:16 16:2519:17 20:1722:4,11,1227:18 28:5,2335:13 50:2051:5,24 52:1052:11
cases 14:1421:21
cast 50:6
categories 31:10category 10:25
32:10,16certain 19:19
21:21certainly 16:10
27:12 38:2239:6
challenge 14:21challenged
21:14chance 31:6change 19:17
20:4characteristic
39:23 40:12chart 4:11,12,16
8:20Chief 3:3,9 4:8
10:13,15 16:12
19:23 23:17,2133:1,6 44:2249:12 51:2152:9
child 15:6 48:15
children 49:6,10choose 27:15chopped 34:24chose 41:4 47:13Circuit 51:20circumstance
21:20,22circumstances
9:9,11,1221:21 47:17
Civil 20:6,11
claim 26:18 31:336:3 43:4,2046:5
class 29:6,2330:3,13,1944:9
clear 26:1235:25 38:1844:5
clearer 48:2clearly 15:1 22:9
36:17Cline 14:8,11
26:16 33:12close 36:14,15
43:8closely 7:15
17:18closer 7:9,12
8:22 18:25closest 17:20code 43:16collect 39:14
come 51:18comes 6:7COMMISSION
1:8common 16:4,6
20:13,14Commonwealth
19:16
Commonweal... 19:21
comparison 29:18
comparisons 34:22
compensation 32:23
complaining 6:18
complaint 17:2518:8
computation 31:9,11 32:2133:4 39:1744:14
computed 36:2144:20
computing 27:20
condition 26:2conditions 40:23Congress 13:21
13:22 20:1923:4,7 29:235:9 38:1939:7 40:19,2141:1,4 48:2,7,850:3,12
consequence 39:6 48:7
considerable 40:3
considered 40:1consistent 27:7consolidated
3:18constantly 29:1Constitution
19:15construed 40:9
40:15 41:8contained 41:3context 40:1continue 27:10
29:14,25 38:8continued 47:18
continuing 27:17 39:12
contrary 39:840:8
contributed 36:22
coordinating 51:16
correct 4:176:16 9:15,2212:5 15:9,1915:25 27:433:5 43:2548:6
correcting 4:5correctly 4:6
correlated 11:2122:3
correlation 38:12
cost-justificati... 28:13
counsel 23:17country 8:17couple 34:9course 31:22
34:21court 1:1,13
3:10 11:20,2212:25 14:1620:7,13 22:122:12 23:2240:14,20
court's 14:821:15 26:1633:12 50:552:6
cover 16:1940:20 48:8
coverage 22:20covered 17:3,16
23:8 40:2150:7
covers 16:19crafted 25:25create 23:6credit 7:22,25
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 55/63
Official - Subject to Final Review
Page 55
18:4 28:8,1028:12 32:7
credited 18:1124:24
criteria 25:16
criterion 13:2514:1 31:2136:8
current 19:1224:23
customary 12:25
cuts 20:18
D D 1:16 2:3,8 3:1
3:7 49:16day 7:11 18:21deal 37:4dealt 11:16December 51:15deciding 28:1decision 26:1,16
33:12 48:350:5 52:6
decisionmaking 23:25
decisions 38:17
defense 28:1445:18 48:9
defenses 27:25define 32:15defined 44:8defines 51:2defining 32:10degree 40:3Department
1:19dependent
45:19 49:10depends 42:11derived 47:10design 12:18
14:23designed 12:16
16:19 35:10determinant
3:13determination
9:19,23,2510:4
determine 20:24
22:1 25:7determined
13:18determines 3:24
15:22determining
3:23 33:845:17 51:5
difference 6:66:20,21 14:243:23
differences 25:14different 7:10
13:21 14:1124:9,9 25:2,325:16 31:1235:2 41:2444:20
differently 24:425:4 43:14
direct 13:424:13
directly 49:8disability 5:1
8:23 10:19,2015:10,10,14,1415:21,21,2216:1,4,17,1816:19,22,2417:10 19:17,2020:1 22:13,1622:18,20 24:1924:22 25:1,7
25:14,19,2026:8 27:15,2029:15 30:1,1531:1,6,7,20,2231:25 32:1,1933:19 37:739:14,15,1741:18 42:5
43:17,18,22,2544:3,9 45:346:21,22 47:2448:1,24 51:5
disabled 4:23
5:9,10,10,185:18,20 6:137:5 8:9 15:7,1217:5 18:2,6,1018:12,21 19:419:25 20:8,1821:2 23:2424:7 25:826:24 27:2228:3,7,1930:14 34:1
35:20,21 36:2037:5,19,2238:5,6,1339:12 41:16,2544:24,25 45:445:7,10,13,1446:1 48:2051:9
disables 26:6disabling 17:17disadvantage
35:12disadvantages
23:25discriminate 9:6
9:16 12:1913:14,16 14:521:8 23:1339:25,25 40:640:8
discriminated 17:1 21:23
discriminates 14:21
discrimination 6:18 11:7,2012:17 14:3,1221:15 29:242:6,7,23,2443:2 49:4 50:7
discriminatory
4:1 21:14,1852:4
discussing 41:11disparate 14:17
35:18 43:4
disparities 36:2disparity 39:9dissent 51:21distinct 25:13,14distinction
14:14 39:1distinctions 3:15
41:10distinguishes
30:12district 52:6
doing 9:17 29:1430:1 34:636:12
double 4:6doubt 50:6dramatically
24:9draw 14:19drawn 40:17driver 20:24
50:1due 25:20 27:14
27:19 30:2531:25 32:1943:16 44:346:20 47:2448:24
duplicated 51:14
duty 19:22 31:5D.C 1:10,19
E E 2:1 3:1,1earlier 41:12early 26:3economic 19:18EEOC 3:5,20
17:1 47:1051:15,22
EEOC's 3:16
4:16 8:20effect 9:5 19:23
21:20,25,2545:2
effectively 21:23
either 18:2024:17 25:1729:22 31:5
elected 39:11element 26:5
33:3 49:3eligibility 3:11
10:1,5 11:1511:23 17:2322:5 25:1526:2 27:11
31:20,21 32:442:1 50:2,15
eligible 6:8,8 8:88:16 9:1,2315:23 16:15,1618:9,22 25:825:19 31:4,1331:15 32:1,1039:13 42:443:13,17 44:947:12 48:2049:25
eliminate 12:1212:17
employee 21:236:18 47:350:11
employees 19:1219:22 20:9,1020:11 24:1,7,731:10 46:2547:6
employee's 45:19
employer 12:1936:4,18,2238:21,22
employers 23:1048:9
employment 1:716:22 17:3,6
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 56/63
Official - Subject to Final Review
Page 56
40:23 50:8enables 22:22enacting 40:22enactment 48:4ended 4:13
endured 11:1engineer 50:21entirely 9:22
49:11EQUAL 1:7equally 43:8erase 12:9ESQ 1:16,18 2:3
2:5,8essentially 17:15
47:14
establish 24:128:13 34:11,12
establishes 31:20
establishing 27:25
estimate 27:2137:21
estimating 47:15
ET 1:4event 17:17
29:18 30:4everybody 16:4
19:19 34:239:23,23,24
evil 23:4eviscerated 39:2exactly 11:25
30:11 32:951:5
example 4:197:7 8:7,21 9:14
16:1 19:1,1119:14 20:721:4 34:1838:18 45:551:8
exception 25:2326:10
exclude 26:4
excluding 44:3,5exclusive 33:7exemption 26:7
33:10exhibit 35:1
expenses 34:2expensive 28:16explain 7:1explains 40:25explicit 9:7,19
23:24 33:1039:1
explicitly 21:8expressly 12:14extend 19:8extent 26:12
extra 5:20,216:1,22,24 7:258:2 18:7,13,1418:15,17,1819:8
F face 14:19,22
21:22facial 21:15facially 4:1
21:14
fact 8:13,16 16:320:9 31:2244:23 46:1947:18
factor 3:25,259:7 23:25 26:832:22
factors 3:2221:24
factually 3:216:3,5,12
fails 3:17,22fair 11:2,7,11
43:14 46:1451:24 52:4
fairly 34:2fairness 9:4fall 40:6fallacy 8:20
far 43:2 50:10fare 3:21favor 15:1favoring 48:12favors 7:11
Federal 20:5,1023:10 33:751:20
FERS 20:10fewer 29:8,12
30:3 38:2441:13 45:13
fills 16:18final 15:4 32:23
47:20 48:1452:7
financial 7:1636:5 41:1449:9
find 34:22fine 7:19 18:6
27:23 32:20,2433:1,2 44:446:22
finish 48:12fire 8:12 29:17
30:4 33:17fired 11:17firefighter 17:5
22:18firefighters
19:24 23:11,1234:13,14
first 13:12 16:2217:2,6 18:1325:15 26:934:10 35:3,1840:7 41:1342:9 45:10,15
five 8:15 9:2416:20,22 17:217:6 25:2131:25 33:1437:20 42:1,2,442:14 44:247:8
five-year 17:9
51:11fix 51:22Fla 1:16flight 50:21focus 3:17
focused 50:1050:12
follow 15:1819:11,14 29:20
following 10:2024:22
follows 7:4footnote 37:3forbidden 34:25forbids 19:15force 35:6 46:3
47:14 50:15forced 25:20
27:14,19 30:2531:25 32:1943:16 44:246:20 47:2348:21,23 49:1
forces 23:10formula 44:21found 11:20four 49:14fringe 40:20,24
41:2full 5:12fully 22:24function 25:10functions 25:13fund 52:1further 49:3future 30:7
G G 3:1
gap 16:19 17:15garden 29:1General 1:19
7:16generalization
29:7 30:2438:16,25
generalizations
36:1 41:21generally 50:6generous 27:14
39:18 44:1447:6
getting 8:2532:7,7 37:12
Ginsburg 13:313:22 14:7,2515:10,17 17:836:25 48:11
Ginsburg's 22:24 49:19
give 5:19 6:226:24 7:25 8:211:3 18:4,7,15
18:17 26:2528:8,9,11 31:631:7 33:1935:3 37:1046:3,7,8,2251:23
given 18:12,1332:18 35:1747:4 51:8
gives 14:12 23:1giving 6:10 45:3glad 8:1go 3:23 5:19
7:20 29:4goal 3:19 19:21goes 9:10 14:19
39:23going 28:9 29:16
33:19 36:1237:7 38:4,4,838:21 45:2,2246:18 47:16
gold 46:4,7,8
good 8:1 9:1712:1 34:2
government 13:17 14:1521:19 23:1051:13
greater 33:22,2335:3
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 57/63
Official - Subject to Final Review
Page 57
greatest 49:9group 30:3,23
35:19 38:23groups 7:10guarantee 28:16
guaranteed 15:348:13 49:20
guess 4:3 37:17guessing 30:17
H haec 40:17hamburger
34:23happened 50:10happening
37:12happenstance 30:14,14,16
hard 27:9hazardous 17:11
19:22Hazen 11:16
14:15 22:3health 51:16hear 3:3 6:21held 40:21help 25:7 33:25
helpful 9:3Hey 46:7highly 28:21hire 38:21hired 19:12,18history 13:8,11
23:3 40:18,2550:9
hold 30:24holding 14:8Honor 4:17,19
4:25 5:1421:12
House 50:12Huh 10:9hundred 19:13hurt 27:1hypothesis
42:20
hypothetical 9:12
I idea 39:20
identical 39:847:21
illegitimate 27:527:5,13
imagine 42:8immediately
17:11,18immutable
39:22 40:11impetus 48:3implicated
35:10important 13:1114:16
imputation 11:932:2
impute 5:13,1411:2 37:14,1937:23 45:11
imputed 4:18,205:21 6:7,147:14 10:2317:14 20:8,1221:3 43:1045:18 49:5
imputes 36:24imputing 45:16inability 15:15inapplicable
34:14,17,17include 44:10included 13:12
35:4includes 33:23
40:23including 29:24incorrect 25:12
31:16 35:16indication 35:12individual 5:16
11:17 16:2524:17 27:19
31:24 33:1339:10 43:6
individuals 32:16 43:5
individual's 12:20
industry 50:14inevitably 40:2inference 14:22
21:16 41:7infinite 37:25initial 17:9 36:6injured 19:25instance 21:25
33:23 36:337:18 42:12
instances 16:2016:23
insurance 16:134:3
integrated 3:18intended 14:9
20:20 26:11,19intent 14:18interesting 20:5interpretation
37:4interpreting
12:24interrelations...
13:20interrupt 24:25introduce 49:3invidious 14:13
38:15 41:20irrebuttable
47:16issue 15:11,14
22:25 47:22
50:11,17
J January 1:11 job 23:6 27:1
45:10 jobs 19:22 23:11Judge 51:20,21
judgment 52:7Justice 1:19 3:3
3:9,13 4:3,8,94:21 5:5,9,155:24,24 6:2,5
6:10,15,17 7:37:18 8:5 9:2,89:13,21 10:3,710:9,10,12,1310:16,17,1811:13 12:1,5,812:14,21 13:313:7,10,2214:7,25 15:915:17,19 16:216:8,9,11,12
17:8,21,2418:20 19:2,1119:23 20:1621:5 22:8,2323:17,21 24:324:11,25 25:625:10,22 26:2026:21 28:4,2029:19,21 30:630:10,11 31:231:11 32:433:1,6,16,2234:16 35:8,1536:7,25 37:138:3 39:2040:10 41:2342:9,13,16,2042:22 43:1,1944:11,15,2245:20 46:1448:11 49:12,1952:9
justifiably 38:23
justification 38:11 43:1249:4
justifications 35:17 40:441:12
justifies 6:21 justify 41:22
K keep 35:5 39:11Kennedy 9:2,22
21:5 22:8Kentucky 1:3
3:4,11,17 7:178:17 14:2019:15 22:15,1723:8,12,2424:1,14,2425:5 26:12,2227:13,18 30:2031:18,18,2432:15 35:537:9 43:1545:3,16 46:18
46:19 48:2249:5,8 50:2251:1
Kentucky's 47:550:19 52:2
kind 29:1 34:334:23 46:5
Klausner 1:162:3,8 3:6,7,94:8,16,25 5:85:13,23 6:4,6
6:13,16 7:3 8:59:21 10:1511:12,14 12:512:11,16 13:313:10 14:715:9,25 16:616:10,18 17:1317:23 18:1919:10 20:2,2321:12 29:537:11 49:14,1649:18 52:10
know 6:3,12,1920:5 34:2238:9
L L 1:18 2:5 23:19language 13:5
22:21 39:5
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 58/63
Official - Subject to Final Review
Page 58
40:15 50:5,7larger 43:11Laughter 46:16law 24:24 30:20
31:18,24 33:7
52:5leave 7:7 8:9left 49:11,19legislative 13:8
13:11 23:340:18,25 50:9
lesser 33:22,2333:24 34:835:4
letting 7:24let's 5:19 17:8
liability 19:16life 13:18limit 38:20limited 4:17
16:23 51:13limits 7:16line 8:12 29:17
30:4,15lined 52:2literal 39:5litigation 19:24little 8:14 11:6,6
14:25 47:848:12
live 13:19long 10:22 13:19
13:20 27:1028:22 38:148:25
longer 17:1022:18 30:2335:21 38:1341:16
look 21:24 22:1024:19 37:245:1,11 51:2
looked 51:17looking 29:6,13
29:23 35:9looks 50:9,12lot 37:12
low 37:6,7lower 11:3 19:14
19:25 20:247:24
lowering 19:15
M maintain 41:5make-whole
26:23making 10:4
28:15 29:1831:17 33:337:6 43:15
MALCOLM 1:18 2:5 23:19
man 14:1 25:734:4
materia 41:8matter 1:12
25:22 50:2052:12
ma'am 17:13McMann 3:14mean 19:7 25:23
30:7 45:21meaning 23:2means 8:25 40:3
measure 49:9mechanical
34:19meet 11:18mentioned 8:6mere 21:17merely 11:21met 51:10method 45:17methodology
31:9 32:22
39:17 44:1451:4
minimal 34:6minimum 26:2
26:11,15,1933:10 34:1150:24
minutes 20:19
49:14mixed 40:2moment 19:5month 8:16monthly 15:4
48:14months 24:23
31:23motivated 12:18
14:18,23 22:7motivation 22:6
50:2multiplier 32:23myriad 3:22
N N
2:1,1 3:1narrowly 25:25
national 13:16necessarily 3:15necessary 24:12
32:3need 18:25 19:2
35:19 36:541:14 49:9
needed 8:22needs 12:6neither 36:1
52:3never 13:14,15nevertheless
32:18new 40:22normal 5:1 6:14
8:25 10:217:16,17 19:119:3 20:12,2524:16 25:15,1626:2 27:3
29:10 30:1832:12,17,2439:10,13 43:943:13 48:2050:1,14 51:2,651:12
normally 45:23noted 11:14
51:21,21number 5:2
16:14,23 19:1127:21 35:137:21,25
O O 2:1 3:1objective 27:5,6occupation
17:11occur 11:23,24occurs 17:17odds 10:24offered 39:19
41:12
officer 15:15,1617:5 22:20
26:23 28:5,638:8
officers 20:623:11,12
oh 37:13Ohio 22:11,13
22:16Okay 6:17 11:13old 4:11 5:11
6:23 7:1913:24 16:222:19 25:1738:12 43:6,746:6,22 49:2049:22 51:9
older 3:21 7:97:11 8:12,138:21 14:6,9,2318:5,14,2323:6,25 29:1129:16 30:2
31:14 35:11,1836:4,20 39:2440:18 44:5,1944:25 45:4,946:24 47:3,647:23 49:1,1050:8
opening 9:4
45:22operative 13:5opportunities
23:6opportunity 1:8
44:24 47:4opposed 4:7oral 1:12 2:2 3:7
23:19order 9:7 18:15
25:16 41:7ordinary 32:13origin 13:16original 52:7outset 36:8overcompensa...
38:6overturn 48:3
50:4,4OWBPA 48:4owed 23:23
P P 3:1package 45:22
45:23page 2:2 24:15
24:20 31:1837:2 51:1
pages 51:1paid 13:18Paper 11:16
14:15paradigmatic
38:19pari 41:8part 4:3 13:19
15:6 17:2526:22 28:15
32:5 36:1744:18
partially 5:236:4
participate 20:12
particular 15:1124:20 49:6
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 59/63
Official - Subject to Final Review
Page 59
particularly 8:10 34:2047:6
party 46:4pay 14:23 17:10
35:6 36:4,8pension 3:23 4:6
10:1 11:22,2212:12 22:433:20 34:20,2140:1 50:6
people 7:10 9:2014:24 19:12,1820:18 21:827:14,15 29:929:13,16,17,24
30:2,4,12,1830:20,21,23,2531:3 33:2534:19 35:6,1236:23 37:1238:6,23,2441:13,25 44:144:3,19,2147:9,11,1248:23 49:850:15 51:25
percent 5:3 8:18:3 15:3,548:14,15
perfect 34:18perfectly 34:24period 15:13
17:9 24:1231:5
permissible 35:4permits 34:7person 4:18,23
5:5 7:4,6,8,13
8:7,10,12,138:15,21 9:1310:19,23,2511:2,8,9,1914:6,6 15:1215:23 16:217:4 18:1,5,918:11,13,14,20
19:4 22:1924:21,22 27:1027:21 28:2,828:24 29:10,1131:22 33:17,19
35:20 37:5,2138:5 42:3,1442:18 43:2246:1,8,2048:19 49:20,2551:8,10
persons 32:1044:9
Petitioners 1:51:17 2:4,9 3:849:17
phrase 40:23physically 27:16picked 12:23piece 14:25 20:3
48:12pilot 50:20,20plainly 41:21plaintiff 19:6
34:4plan 3:18 4:1
7:10 8:11,148:17,23,249:23 11:1912:18 14:2315:20 16:5,716:14,21 18:2218:22 19:420:25 22:5,1222:13,14 42:642:10 49:750:16,18,19,1952:4,5
plans 3:15 13:17
23:8 50:6 52:152:1,2
Plantation 1:16plausible 40:3please 3:10
23:22plus 10:14 16:15
22:7 26:5
point 17:21,2328:23 31:8,1741:19,24 43:1544:18 47:2049:2
pointed 50:25police 15:16
17:5 20:622:20 23:11,1226:23 28:534:13,14 38:846:3
policemen 19:24policy 12:18
14:17 16:1position 25:1
possibility 37:23possible 6:19
7:15 17:19posture 50:23post-disability
32:8practice 20:13
20:14 38:19preamble 12:23
13:2,4,8 23:3precedents
21:15prefer 14:6premise 21:6present 39:9presumption
47:16presumptively
21:18pretend 5:11prevailed 35:23
41:17prevent 23:5
35:10 44:2245:3
prevented 29:1430:1 39:12
preventing 45:16
pre-ADA 38:19private 11:18
50:14probably 13:9
19:8 34:235:20 37:2541:15
problem 32:1437:1 44:7,845:21 46:2547:1 48:2250:13
proffered 49:5program 20:12
23:13 25:9prohibit 9:9,10prohibition
40:17
projecting 27:9prospective 37:9protect 14:9protecting 13:23protection 17:6
22:19 40:1950:9
provide 12:1915:20 26:2338:25
provides 18:2325:11
providing 3:1948:9
provision 24:1426:16 31:19,1941:3,6 50:25
provisions 24:24proximity 51:6proxy 28:1public 8:11
15:15 22:1250:10
purpose 7:148:23 13:217:14 31:12,1332:9 35:9,1036:17 44:5
purposes 8:24put 35:11 40:12p.m 52:11
Q qualifications
40:13qualified 3:19
4:10 18:243:21
qualify 7:2018:3,3,1624:12,21 25:1629:10
qualifying 42:1543:8
qualitatively 13:21 14:11
question 9:3,810:18 11:16
16:9 18:1920:21 22:2,5,822:24 23:1524:4 29:5 37:341:23 46:1249:19
quite 34:1035:25 46:11
quoted 31:19quoting 31:17
R R 3:1race 13:15racial 13:25raise 9:3range 37:17rationale 51:16reach 6:1 21:7
21:11,13reached 16:3
31:4read 4:12 13:1
26:4real 50:11realistic 38:7really 21:19
22:7 31:1734:6 39:244:18 48:5
reason 5:24,25
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 60/63
Official - Subject to Final Review
Page 60
6:20,21 7:1,39:23 13:11,1313:14,15 14:1216:13 20:2029:15,15 30:1
30:2 33:2436:7 39:1540:4 42:1546:9 48:2151:14,18,22
reasonable 21:16,24
reasons 6:3,106:11 9:1719:10
rebuttal 2:7
23:16 49:16receive 6:14
10:1 24:9received 7:17
27:1 47:25recognized
13:21,23recover 31:6reduction 20:3reference 26:18
41:2,10 43:15references 12:9referring 32:6refers 26:10reflects 40:5regard 51:25regardless 22:6
50:22 51:4regular 15:4,24
48:16,19regulation 51:15reinforce 41:7reinstate 52:6
relates 14:10relationship
36:9,11,15relatively 14:9
14:10relevant 15:22
24:14 34:21relies 14:15
religion 13:17remain 47:13remaining 49:15removed 10:4replicate 7:15
17:18replicates 35:22replicating
41:17report 38:18reports 50:13require 26:1required 12:12requirement 5:1
11:18 33:851:11
requirements 24:19 32:1340:2
requires 26:1443:21
reserve 23:15resources 41:14
51:13respect 24:7,16
30:25 34:1236:6,19,20,2336:25 41:943:5 49:6
Respectfully 9:21
respond 39:3Respondent
1:20 2:6 23:20response 8:4,5
19:16 35:15rest 23:16rests 38:11result 3:25
20:17,20,22,2321:7,11,1326:16 41:1
results 44:25retaining 19:21retains 22:20retire 7:6,21,21
7:24 8:14 9:24
12:6,7 18:6,1018:16,17,2222:5,14 24:2125:20 26:1327:14,15,19
30:25 31:2532:19 41:2543:16 44:246:3,5,10,2047:7,7,11,2448:21,24 49:149:25
retired 6:22,2546:2,6 47:19
retiree 11:5 15:215:5,8 22:16
45:23 48:17,1951:16
retirees 29:630:22
retirement 1:33:4,11,14,186:14 7:9,208:11,14,22,2510:2,5 11:1511:23 12:213:17 15:2416:3,14,1517:16,18 18:2519:1,3,5 20:620:10,11,1321:1 23:9,2324:12,17,2025:2,8,14,1525:17,19,24,2426:3 27:3,8,1129:10 30:1831:4,14,15,2032:1,5,6,11,13
32:18,24 33:833:10,14 34:1236:14 39:11,1339:14,15,1842:4 43:9,1343:17,18,2144:1 45:1247:13 48:20
50:1,2,11,1451:3,6,12
retires 11:928:24
retiring 7:12
return 41:11reverse 52:5reward 36:17rewrite 19:3rid 38:20right 4:7,22 5:7
5:8,22,23 6:310:12,15 12:412:15 17:11,2219:5 37:841:24
rights 50:21risk 11:1,6
17:16 28:22ROBERT 1:16
2:3,8 3:7 49:16ROBERTS 3:3
10:13 16:1219:23 23:1733:1,6 44:2249:12 52:9
role 22:25rough 37:20rules 32:17
34:19run 52:1Rust 50:14
S S 2:1 3:1safety 8:11
15:15salary 5:3 15:4
37:6 48:14
satisfy 32:12,1648:10
saying 4:4 7:119:5 10:3,6 11:416:13 19:628:20,21 33:234:11,17 38:2140:10 45:17
46:18says 5:16 7:18
7:19 18:6,1424:21 25:2531:21 50:3
SCALIA 10:3,910:12 13:725:22 26:2029:19 30:6,10
scope 40:6second 6:11
17:25 35:2041:15
Secondly 22:1sector 11:19Security 15:13
see 20:14,1621:24 27:930:10 35:943:2 44:11
Senate 50:13sense 24:6 25:4
26:17 30:1934:6 47:23
separate 8:2432:16
service 3:12,164:18,20 5:146:7,14 7:6,148:15 10:11,1411:24 12:3,4,616:16,21 20:620:8,11 21:1,221:3 22:6,7,1524:5,8,18,1824:23,24 25:1825:18,21 26:626:8,13,1428:7,10,11,12
28:17 29:8,1130:15,17,2131:5,23 32:1,232:12,17,2333:14 36:17,1836:21 37:7,1137:15,20,2442:3,16,17
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 61/63
Official - Subject to Final Review
Page 61
43:6,7,9 44:245:2,6,7,8,1146:24 47:848:1 49:21,2250:22,24 51:3
51:4,9,11,12services 17:14set 7:16setting 5:2sex 13:25SG's 4:11shape 13:7short 42:1,2show 14:17side 52:2significant 40:4
significantly 39:18 43:11similar 20:9
39:8 47:22similarity 41:5similarly 40:16simply 8:24
45:17simultaneously
44:6single 18:22situation 26:19
34:23 35:2236:10 41:1748:8
six 5:19,20 6:227:20,25 8:2
Sixth 51:20skewing 30:19skillful 50:21slashed 19:18small 20:3Social 15:13
sole 12:2solely 12:19Solicitor 1:18somebody 15:6
15:7 22:17someone's 38:8sort 24:3SOUTER 10:17
11:13 12:2128:20 29:2130:11 36:7
specific 16:2334:10 37:16
specifically 26:10
spends 8:11spent 29:16stand 21:22standard 15:13stand-alone
16:1 50:16start 8:6,19
18:23 49:18started 4:13,14
18:9,11 21:440:10
starting 18:2445:22
starts 7:9 8:108:12,13 17:421:18 22:18,1945:6
State 31:5 34:1134:12 36:2443:25 44:23
statement 9:4,1411:11 13:2
States 1:1,1320:15
State's 39:16statistical 38:12status 10:1
11:22,23 22:4statute 9:7 12:9
12:10,23,2413:1 14:9,2014:21 20:22
21:13,17,20,2122:11,22 23:124:15 25:2326:15 32:534:7 37:4 39:539:21 40:2043:20 49:351:1
statutes 12:12step 10:4 22:2stereotype 38:15stereotypes
33:25 35:25
41:11,20stereotypical
35:11 40:5Stevens 10:7,10
15:19 16:2,816:11 24:11,2525:6,10 31:231:11 32:441:23 42:9,1342:16,20,2243:1,19 44:11
44:15Stewart 1:18 2:5
23:18,19,2124:6,13 25:3,925:12 26:927:12 28:929:4,23 30:830:16 31:8,1632:9 33:5,9,2134:9 35:2,1435:16 36:1337:1,17 38:1040:7,14 42:742:11,14,17,2142:24 43:3,2444:13,17 45:1546:11,17 48:1148:18 49:13
sticking 12:21stigmatizing
35:25subject 16:5,6
24:22 28:22
submitted 52:1052:12
substantial 20:3substantially
19:19suggest 48:6suggestion 39:4suing 47:10
summary 52:7superfluous
26:17Suppose 21:5,10
45:25
Supposing 41:24
Supreme 1:1,13sure 15:17 23:7
32:11 46:11system 12:3 20:6
20:9,10,1134:21 45:147:6,21,2250:11
systems 1:4 3:4
34:20
T T 2:1,1table 52:2take 7:19 12:8,9
12:25 13:917:8 21:2530:18 37:439:24 45:849:2
taken 13:13,13
takes 8:13 20:17talk 34:20talking 4:23,23
7:10 39:2244:11
talks 17:1targeting 49:8tease 39:4tell 20:21 42:9
52:3telling 21:9
tenure 30:17,24term 32:4 40:22terms 14:12
40:1,23terrible 20:17text 13:1Thank 23:17
49:12 52:8,9
thing 22:10 26:928:20 29:2030:12 32:637:8 38:2,1039:3 41:9
things 34:9,25think 6:18 9:22
11:22 12:1213:5,10,20,2214:15,18 16:1317:25 18:819:7 20:15,1620:17 21:7,1221:14 22:1,2,822:21,21,2323:1,8 25:12
29:5 30:2,631:16 33:2135:14,16,24,2438:7,11,14,1539:7 40:741:20 43:2446:12,17 48:5
thinking 35:1140:4,5 45:21
third 26:7thought 25:6thousand 19:13threshold 43:8Thurston 40:14
50:19,19time 8:11 11:2
15:22 16:2017:15 22:1223:16 29:1634:1 38:13
times 32:23,23Title 13:12 14:2
14:14 40:9,16
40:18 41:6token 18:24told 39:16 47:14tomorrow 7:7
8:9total 10:20
16:24 24:8tradeoff 11:4,5
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 62/63
Official - Subject to Final Review
Page 62
28:25treat 8:3 43:14
46:1,9,9treated 42:5,10
42:18 46:21
treating 7:22,2347:1
treatment 14:1735:18 43:4
true 4:17 6:1222:17 24:1630:24 34:547:5
try 7:14 17:18trying 23:4,5,5
26:22 33:25
turn 10:5two 5:2 7:10,25
8:2 20:19 21:324:7 25:13,1335:17 41:7,1241:24 43:544:12,15 45:5
type 15:10 39:9typically 36:1
38:16 41:21
U unable 27:2uncovered
16:21undercompen...
38:4understand 4:4
4:5 5:15 10:1813:4 14:846:12,15
understanding 15:20 27:7
unduly 28:16unintended 39:6
48:7United 1:1,13
3:14 20:15unreduced 10:2un-alike 8:6use 9:9,11 12:13
21:17 23:924:4 28:1 31:932:21 33:2,3,733:18 44:13
uses 9:7 23:24
24:5U.S.C 40:22
41:3
V v 1:6 3:4,14valid 38:12value 19:18variables 42:12
42:13variety 29:1
verba 40:17version 34:8
vested 22:4vesting 11:18view 16:13VII 13:12 14:2
14:14 40:9,1640:18 41:7
violate 4:2 26:1552:5
violated 33:1133:13
violation 48:25voluntarily
27:16 30:1347:7,12
voluntary 29:630:18,22
W wait 8:8 17:12want 6:3,11
20:21 21:9
23:7 26:24,2527:13 28:429:13,25 32:1535:24 47:7
wanted 38:2,2039:3,7,13 41:547:20 48:2,850:4,4
wants 27:18
46:19Washington
1:10,19wasn't 11:20
34:17
watch 46:4,7,8way 16:16,21
20:24 21:10,1323:25 27:629:9 36:1937:14 40:842:5,10 51:19
ways 16:1437:25 51:17
Wednesday 1:11
we'll 3:3 10:2535:6 45:2546:1
we're 23:5,529:23 38:2139:21
White 3:14win 48:6windfall 11:8,9Wirtz 38:18woman 14:2word 3:13 12:22
22:25 23:239:25,25 40:640:8
wording 41:5words 9:25
12:25 15:13work 7:8,12
8:21 11:612:10 15:12,1516:24 17:518:24 20:7
27:2,2,10,1735:6 38:8,2439:12 45:647:13,18
worked 4:7,104:14,22 5:4,65:11,17 10:2210:22 11:1
13:20 17:2018:4 27:2228:2,22 35:2137:21 38:1441:15 47:2,15
worker 4:9 7:1117:2 26:1736:20 37:1941:15 45:947:9,23 48:1349:1
workers 3:19,203:21 14:4 23:623:24 31:7,1331:14 35:18,1936:4 37:10
44:5,24,2545:4,5 49:1050:8 51:25
workers's 40:19working 5:10,16
18:5 29:14,2539:11
works 5:2,518:10 28:5
worried 34:18worthwhile
34:24wouldn't 26:18
32:12 33:11,1238:15 43:3,448:24
wreck 39:21written 13:12wrong 3:22 6:5
33:16 46:18
X x 1:2,9 4:12,13
4:15
Y Y 4:21year 5:3 6:24
8:1 45:10years 3:12 4:7
4:10,11,14,225:2,6,6,11,17
5:19,20 6:1,86:22,23,23 7:67:19,20,22,258:2,15,22 9:249:24 10:11,24
11:24 12:3,3,716:15,20,2217:2,6 18:4,718:10,11,12,1318:14,15,17,1818:20 19:821:2,3,4 22:422:15,19 24:524:8,18,1825:17,18,18,2126:5,8,13,14
27:9,20,2128:2,6,8,10,1028:11,12,12,1728:24 29:8,1129:12 30:3,2132:1,2,8,2233:14 36:16,2136:24 37:6,1137:15,20,2338:24 42:1,2,242:4,15,16,1743:6,6,7,7,9,1044:2 45:1,6,7,845:11,16,1846:6,21,2347:2,8,15 48:149:5,20,21,2249:22 50:2251:3,3,9,9,12
years-of-service 22:16
younger 3:204:19 7:12 8:10
14:4,6,10 15:117:2 26:1729:9,9,17 30:430:22 31:7,1233:15 34:135:18,20 36:2337:10 38:539:24 41:13,15
Alderson Reporting Company
8/14/2019 US Supreme Court: 06-1037
http://slidepdf.com/reader/full/us-supreme-court-06-1037 63/63
Official - Subject to Final Review
Page 63
42:3,18 43:22 23 2:6 34:15 38:644:21,23 46:20 25 15:3 48:14 43:6 44:4,1047:8,25 48:13 26th 51:15 46:2,2,10,21
Z zero 47:17
0 06-1037 1:6 3:4
1 1 35:110 4:7,10,22 5:6
5:11 15:518:13,17 21:422:4 28:6,8,1028:10,11,12,12
28:17 37:6,24
29 40:22 41:3
3 3 2:430 37:2 45:930s 37:530-year-old
45:1235 4:14 18:12
21:4 46:238 22:19 49:2038-year-old 21:1
49:25
4
47:3 50:2351:3
55-plus 28:655-plus-year-...
9:1355-year-old
10:25 11:528:11,17,18,2229:24,25 35:543:11,13 45:2351:11
55-year-olds 26:13
57 23:1248:15
10-year 11:1811:09 1:14 3:212 24:23 45:712:07 52:1113 37:314 5:17 6:23
7:21 18:1115 43:6,718 21:2 22:18
45:6
4 18:10 51:9,1240 11:1945 4:13 5:11
18:9,12 22:2038:20 51:8
45-year-old 21:326:14 28:10,19
49 2:9 6:23 7:47:19
5
6 60 22:14 24:23
31:22 50:20623(a) 13:5 41:4630(l) 40:2265 38:9 46:6
7 7a 24:15 31:18
51:1,1
18-year-old 5 24:17 25:17 8 45:14 26:13 43:10 8a 24:15 31:18
2 2a 51:220 3:12 4:7,14
4:22 5:5,12 6:16:8 7:6 9:2410:24 11:10,2312:7 18:12,2024:18 25:1826:14 28:2429:11 30:21
49:22 51:350 38:20 42:18
43:7 49:2250-year-old
43:10,1655 3:12 4:6,11
4:13 5:17,195:21,25 6:7,8
6:25 7:7 8:7,159:24 10:2111:24 12:6
9 1:11
9