General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 24 (2004)

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Thomas, J., dissenting

age," unlike a phrase such as "he fired her because of her age." Second, the use of the word "age" in other portions of the statute effectively destroys any doubt. The ADEA's advertising prohibition, 29 U. S. C. 623(e), and the bona fide occupational qualification defense, 623(f)(1), would both be rendered incoherent if the term "age" in those provisions were read to mean only "older age." 1 Although it is true that the " 'presumption that identical words used in different parts of the same act are intended to have the same meaning' " is not "rigid" and can be overcome when the context is clear, ante, at 595 (quoting Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433 (1932)), the presumption is not rebutted here. As noted, the plain and common reading of the phrase "such individual's age" refers to the individual's chronological age. At the very least, it is manifestly unclear that it bars only discrimination against the relatively older. Only by incorrectly concluding that 623(a)(1) clearly and unequivocally bars only discrimination as "against the older," ante, at 591, can the Court then conclude that the "context" of 623(f)(1) and 623(e) allows for an alternative meaning of the term "age," ante, at 596-597.

The one structural argument raised by the Court in defense of its interpretation of "discriminates . . . because of such individual's age" is the provision limiting the ADEA's protections to those over 40 years of age. See 29 U. S. C.

1 Section 623(f)(1) provides a defense where "age is a bona fide occupational qualification." If "age" were limited to "older age," then 623(f)(1) would provide a defense only where a defense is not needed, since under the Court's reading, discrimination against the relatively young is always legal under the ADEA. Section 623(e) bans the "print[ing] . . . [of] any notice or advertisement relating to . . . indicating any preference, limitation, specification, or discrimination . . . based on age." Again, if "age" were read to mean only "older age," an employer could print advertisements asking only for young applicants for a new job (where hiring or considering only young applicants is banned by the ADEA), but could not print advertisements requesting only older applicants (where hiring only older applicants would be legal under the Court's reading of the ADEA).

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