Johnson v. New York

I respectfully dissent. The majority frames the issue as “whether, by adopting the Air National Guard’s (the “Guard”) mandatory age-60 retirement policy as a term of employment,” the Division violated the ADEA. Having framed the issue in that way, the majority has little trouble concluding that the Division’s policy is facially discriminatory. I do not see the issue in terms of an adoption by reference of the Guard’s retirement policy. Nor do I think that the Division’s termination policy is “inextricably linked” to age. I would therefore consider the Division’s policy within the McDonnell…