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U.S. Supreme Court

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985)

Trans World Airlines, Inc. v. Thurston

No. 83-997

Argued October 9, 1984

Decided January 8, 1985*

469 U.S. 111


The Age Discrimination in Employment Act (ADEA) was amended in 1978 to prohibit the mandatory retirement of a protected employee because of his age. Concerned that its retirement policy, at least as it applied to flight engineers, violated the ADEA, petitioner Trans World Airlines (TWA) adopted a plan permitting any employee in "flight engineer status" at age 60 to continue working in that capacity. The plan, however, does not give 60-year-old captains (pilots) the right automatically to begin training as flight engineers. Instead, a captain may remain with the airline only if he has been able to obtain "flight engineer status" through the bidding procedures outlined in the collective bargaining agreement between TWA and petitioner Air Line Pilots Association (ALPA). These procedures require a captain, prior to his 60th birthday, to submit a "standing bid" for the position of flight engineer. When a vacancy occurs, it is assigned to the most senior captain with a standing bid. If no vacancy occurs prior to his 60th birthday, or if he lacks sufficient seniority to bid successfully for those vacancies that do occur, the captain is retired. Under the collective bargaining agreement, a captain displaced for any reason besides age need not resort to the bidding procedure. For example, a captain who is medically disabled or whose position is eliminated due to reduced manpower may displace automatically, or "bump," a less senior flight engineer. Respondent former TWA captains (hereafter respondents) were retired upon reaching age 60. Each was denied an opportunity to "bump" a less senior flight engineer. Two of them were forced to retire before TWA adopted its new plan and thus were denied an opportunity to become flight engineers through the bidding procedures. The third filed a standing bid for the position of flight engineer but no vacancies occurred prior to his 60th birthday, and he too was forced to retire. Respondents filed an action against TWA and ALPA in Federal District Court, claiming that TWA's transfer policy violated § 4(a)(1) of the ADEA -- which proscribes differential treatment of older workers "with respect to . . . [a] privileg[e] of employment" -- because, while it allowed captains displaced for reasons

Page 469 U. S. 112

other than age to "bump" less senior flight engineers, it did not allow the same "privilege of employment" to captains compelled to vacate their positions upon reaching age 60. The District Court entered summary judgment in favor of TWA and ALPA, holding that respondents had failed to establish a prima facie case of age discrimination under the test set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792, and that the affirmative defenses provided by § 4(f)(1) -- an employer may take "any action otherwise prohibited" where age is a "bona fide occupational qualification [BFOQ]" -- and § 4(f)(2) -- it is not unlawful for an employer to adopt a "bona fide seniority system" -- of the ADEA justified TWA's transfer policy. The Court of Appeals reversed, holding that the McDonnell Douglas test was inapposite because respondents had adduced direct proof of age discrimination; that TWA was required by § 4(a)(1) to afford 60-year-old captains the same "privilege of employment," i.e., "bumping" less senior flight engineers, allowed captains disqualified for reasons other than age; that the affirmative defenses of the ADEA did not justify TWA's discriminatory transfer policy; and that TWA was liable for "liquidated" or double damages under § 7(b) of the ADEA, because its violation of the ADEA was "willful" within the meaning of that section.


1. TWA's transfer policy denies 60-year-old captains a "privilege of employment" on the basis of age in violation of § 4(a)(1) of the ADEA. Captains disqualified because of age are not afforded the same "bumping" privilege as captains disqualified for reasons other than age, but instead must resort to the bidding procedures. While the ADEA does not require TWA to grant transfer privileges to disqualified captains, nevertheless, if it does grant some disqualified captains the "privilege" of "bumping" less senior flight engineers, it may not deny the opportunity to others because of their age. The McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination. Here, there is direct evidence that the transfer method available to a captain depends on his age. Since it allows captains disqualified for any reason other than age to "bump" less senior flight engineers, TWA's transfer policy is discriminatory on its face. Pp. 469 U. S. 120-122.

2. The affirmative defenses provided by §§ 4(f)(1) and (2) do not support the argument that TWA's discriminatory transfer policy is justified. The BFOQ defense is meritless because age is not a BFOQ for the position of flight engineer. Nor can TWA's policy be viewed as part of a bona fide seniority system. A system that includes this discriminatory transfer policy permits the forced retirement of captains on the basis of age. Pp. 469 U. S. 122-125.

Page 469 U. S. 113

3. TWA's violation of the ADEA was not willful within the meaning of § 7(b), and therefore respondents are not entitled to "liquidated" or double damages. A violation is "willful" within the meaning of § 7(b) if the employer knew its conduct was prohibited by the ADEA or showed a "reckless disregard" for whether it was prohibited, but not if the employer simply knew of the potential applicability of the ADEA or that ADEA was "in the picture." The latter broad standard would result in an award of double damages in almost every case. TWA certainly did not "know" that its conduct violated the ADEA. Nor can it fairly be said that the TWA adopted its transfer policy in "reckless disregard" of the ADEA's requirements. The record makes clear that TWA officials acted reasonably and in good faith in attempting to determine whether their policy would violate the ADEA. Pp. 469 U. S. 125-130.

713 F.2d 940, affirmed in part and reversed in part.

POWELL, J., delivered the opinion for a unanimous Court.

Page 469 U. S. 114

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