88
Opinion of the Court
crimination less than absolute, the Act's substantive requirements nevertheless remain at a level akin to our heightened scrutiny cases under the Equal Protection Clause.
Petitioners also place some reliance on the next clause in § 623(f)(1), which permits employers to engage in conduct otherwise prohibited by the Act "where the differentiation is based on reasonable factors other than age." This exception confirms, however, rather than disproves, the conclusion that the ADEA's protection extends beyond the requirements of the Equal Protection Clause. The exception simply makes clear that "[t]he employer cannot rely on age as a proxy for an employee's remaining characteristics, such as productivity, but must instead focus on those factors directly." Hazen Paper Co. v. Biggins, 507 U. S. 604, 611 (1993). Under the Constitution, in contrast, States may rely on age as a proxy for other characteristics. See Gregory, 501 U. S., at 473 (generalization about ability to serve as judges at age 70); Bradley, 440 U. S., at 108-109, 112 (generalization about ability to serve as Foreign Service officer at age 60); Murgia, 427 U. S., at 314-317 (generalization about ability to serve as state police officer at age 50). Section 623(f)(1), then, merely confirms that Congress, through the ADEA, has effectively elevated the standard for analyzing age discrimination to heightened scrutiny.
That the ADEA prohibits very little conduct likely to be held unconstitutional, while significant, does not alone provide the answer to our § 5 inquiry. Difficult and intractable problems often require powerful remedies, and we have never held that § 5 precludes Congress from enacting reasonably prophylactic legislation. Our task is to determine whether the ADEA is in fact just such an appropriate remedy or, instead, merely an attempt to substantively redefine the States' legal obligations with respect to age discrimination. One means by which we have made such a determination in the past is by examining the legislative record containing the reasons for Congress' action. See, e. g., Flor-
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