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U.S. Supreme Court

Western Air Lines v. Criswell, 472 U.S. 400 (1985)

Western Air Lines v. Criswell

No. 83-1545

Argued January 14, 1985

Decided June 17, 1985

472 U.S. 400


The Age Discrimination in Employment Act of 1967 (ADEA) generally prohibits mandatory retirement before age 70, but § 4(f)(1) of the Act provides an exception "where age is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business." Petitioner airline company requires that its flight engineers, who are members of the cockpit crews of petitioners' aircraft but do not operate flight controls unless both the pilot and the copilot become incapacitated, retire at age 60. A Federal Aviation Administration regulation prohibits any person from serving as a pilot or copilot after reaching his 60th birthday. Certain of the respondents, who include flight engineers forced to retire at age 60 and pilots who, upon reaching 60, were denied reassignment as flight engineers, brought suit in Federal District Court against petitioner, contending that the age 60 retirement requirement for flight engineers violated the ADEA. Petitioner defended, in part, on the theory that the requirement is a BFOQ "reasonably necessary" to the safe operation of the airline. The physiological and psychological capabilities of persons over age 60, and the ability to detect disease or a precipitous decline in such capabilities on the basis of individual medical examinations, were the subject of conflicting expert testimony presented by the parties. The jury instructions included statements that the "BFOQ defense is available only if it is reasonably necessary to the normal operation or essence of [petitioner's] business"; "the essence of [petitioner's] business is the safe transportation of [its] passengers"; and petitioner could establish a BFOQ by proving both that

"it was highly impractical for [petitioner] to deal with each [flight engineer] over age 60 on an individualized basis to determine his particular ability to perform his job safely"

and that some flight engineers

"over age 60 possess traits of a physiological, psychological or other nature which preclude safe and efficient job performance that cannot be ascertained by means other than knowing their age."

The District Court entered judgment based on the jury's verdict for the plaintiffs, and the Court of Appeals affirmed, rejecting petitioner's contention that the BFOQ instruction was insufficiently deferential to petitioner's legitimate concern for the safety of its passengers.

Page 472 U. S. 401


1. The ADEA's restrictive language, its legislative history, and the consistent interpretation of the administrative agencies charged with enforcing the statute establish that the BFOQ exception was meant to be an extremely narrow exception to the general prohibition of age discrimination contained in the ADEA. Pp. 472 U. S. 409-412.

2. The relevant considerations for resolving a BFOQ defense to an age-based qualification purportedly justified by safety interests are whether the job qualification is "reasonably necessary" to the overriding interest in public safety, and whether the employer is compelled to rely on age as a proxy for the safety-related job qualification validated in the first inquiry. The latter showing may be made by the employer's establishing either (a) that it had reasonable cause to believe that all or substantially all persons over the age qualification would be unable to perform safely the duties of the job, or (b) that it is highly impractical to deal with the older employees on an individualized basis. Pp. 472 U. S. 412-417.

3. The jury here was properly instructed on the elements of the BFOQ defense under the above standard, and the instructions were sufficiently protective of public safety. Pp. 472 U. S. 417-423.

(a) Petitioner's contention that the jury should have been instructed to defer to petitioner's selection of job qualifications for flight engineers "that are reasonable in light of the safety risks" is at odds with Congress' decision, in adopting the ADEA, to subject such decisions to a test of objective justification in a court of law. The BFOQ standard adopted in the statute is one of "reasonable necessity," not reasonableness. The public interest in safety is adequately reflected in instructions that track the statute's language. Pp. 472 U. S. 418-420.

(b) The instructions were not defective for failing to inform the jury that an airline must conduct its operations "with the highest possible degree of safety." Viewing the record as a whole, the jury's attention was adequately focused on the importance of safety to the operation of petitioner's business. Pp. 472 U. S. 420-421.

(c) There is no merit to petitioner's contention that the jury should have been instructed under the standard that the ADEA only requires that the employer establish "a rational basis in fact" for believing that identification of those persons lacking suitable qualifications cannot be made on an individualized basis. Such standard conveys a meaning that is significantly different from that conveyed by the statutory phrase "reasonably necessary," and is inconsistent with the preference for individual evaluation expressed in the language and legislative history of the ADEA. Nor can such standard be justified on the ground that an employer must be allowed to resolve the controversy in a conservative

Page 472 U. S. 402

manner when qualified experts disagree as to whether persons over a certain age can be dealt with on an individual basis. Such argument incorrectly assumes that all expert opinion is entitled to equal weight, and virtually ignores the function of the trier of fact in evaluating conflicting testimony. Pp. 472 U. S. 421-423.

709 F.2d 544, affirmed.

STEVENS, J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took no part in the decision of the case.

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