SUPREME COURT OF THE UNITED STATES

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                                   No. 91-1600
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                    HAZEN PAPER COMPANY, ET AL., PETITIONERS
                              v. WALTER F. BIGGINS
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                       ON WRIT OF CERTIORARI TO THE UNITED
                      STATES COURT OF APPEALS FOR THE FIRST
                                     CIRCUIT

                                [April 20, 1993]

  JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, concur-
ring.

  I agree with the Court that the Court of Appeals placed improper reliance on
respondent's evidence of pension interference and that the standard for
determining willfulness announced in Trans World Airlines, Inc. v. Thurston, 469
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U. S. 111 (1985), applies to individual acts of age discrimination as well as
age discrimination manifested in formal, company-wide policy.  I write to under-
score that the only claim based upon the Age Discrimination in Employment Act
(ADEA), 29 U. S. C. S621 et seq., asserted by respondent in this litigation is
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that petitioners discriminated against him because of his age.  He has advanced
no claim that petitioners' use of an employment practice that has a
disproportionate effect on older workers violates the ADEA.  See App. 29-30
(amended complaint); 5 Record 71-76 (jury instructions).  As a result, nothing
in the Court's opinion should be read as incorporating in the ADEA context the
so-called "disparate impact" theory of Title VII of the Civil Rights Act of
1964, 42 U. S. C. SS2000e to 2000e-17.  As the Court acknowledges, ante, at 5,
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we have not yet addressed the question whether such a claim is cognizable under
the ADEA, and there are substantial arguments that it is improper to carry over
disparate impact analysis from Title VII to the

                                91-1600 - CONCUR

2                          HAZEN PAPER CO. v. BIGGINS
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ADEA.  See Markham v. Geller, 451 U. S. 945 (1981) (REHNQUIST, J., dissenting
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from denial of certiorari); Metz v. Transit Mix, Inc., 828 F. 2d 1202, 1216-1220
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(CA7 1987) (Easterbrook, J., dissenting); Note, Age Discrimination and the
Disparate Impact Doctrine, 34 Stan. L. Rev. 837 (1982).  It is on the
understanding that the Court does not reach this issue that I join in its
opinion.