Cite as: 515 U. S. 323 (1995)
O'Connor, J., dissenting
249 (O'Connor, J., dissenting). Only Justice Scalia disagreed, arguing instead that the phrase "personal injuries" under § 104(a)(2) "is necessarily limited to injuries to physical or mental health," id., at 244; in his view, employment discrimination, without more, does not inflict a personal injury because it is only a legal injury that causes economic deprivation, ibid. Whatever the merits of this view, it was rejected by the Court in Burke and wisely not advanced by the Commissioner in this case, see Brief for Petitioner 10, 25, n. 15.
Although the Court professes agreement with the view that "personal injury" within the meaning of § 104(a)(2) comprehends both tangible and intangible harms, ante, at 329, n. 4, the Court's analysis contradicts this fundamental premise. The Court's hypothetical contrast between wages lost due to a car crash and wages lost due to illegal discrimination would be significant only if one presumes that there is a relevant difference for purposes of § 104(a)(2) between the car crash and the illegal discrimination. But such a difference exists only if one reads "personal injuries," as Justice Scalia did in Burke, to include only tangible injuries. Those physical and mental injuries, of course, differ from the economic and stigmatic harms that discrimination inflicts upon its victims, but it is a difference without relevance under § 104(a)(2)—at least in the view of eight Justices in Burke, and the view that the Court professes to adopt today, ante, at 329, n. 4. The injuries from discrimination that the ADEA redresses—like the harm to reputation and loss of business caused by a dignitary tortlike defamation, see Burke, 504 U. S., at 234-235; id., at 247 (Souter, J., concurring in judgment)—may not always manifest themselves in physical symptoms, but they are no less personal, see supra, at 339, and thus no less worthy of excludability under § 104(a)(2). The Court states: "Whether one treats respondent's attaining the age of 60 or his being laid off on account of his age as the proximate cause of respondent's loss of income,
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