Reference no: EM133180811

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

This case is a seminal Supreme Court decision examining whether age ever is permitted to serve as a BFOQ. Western Air Lines requires that its flight engineers, who are members of the cockpit crew but do not operate flight controls unless both the pilot and the co-pilot become incapacitated, retire at age 60. The Federal Aviation Administration prohibits anyone from acting as a pilot or co-pilot after they have reached the age of 60.The respondents, in this case, include both pilots who were denied reassignment to the position of flight engineers at age 60 and flight engineers who were forced to retire at that age. The airline argued that the age 60 retirement requirement is a BFOQ reasonably necessary to the safe operation of the business. The lower court instructed the jury as follows: The airline could establish age as a BFOQ only if "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 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 Supreme Court evaluated whether this instruction was appropriate and determined that it correctly stated the law. Stevens, J. 

The evidence at trial established that the flight engineer's "normal duties are less critical to the safety of flight than those of a pilot." The flight engineer, however, does have critical functions in emergency situations and, of course, might cause considerable disruption in the event of his own medical emergency. The actual capabilities of persons over age 60, and the ability to detect diseases or a precipitous decline in their faculties, were the subject of conflicting medical testimony. Western's expert witness, a former FAA [Federal Aviation Administration] deputy federal air surgeon, was especially concerned about the possibility of a "cardiovascular event," such as a heart attack. He testified that "with advancing age the likelihood of onset of disease increases andthat in persons over age 60 it could not be predicted whether and when such diseases would occur." The plaintiff's experts, on the other hand, testified that physiological deterioration is caused by disease, not aging, and that "it was feasible to determine on the basis of individual medical examinations whether flight deck crew members, including those over age 60, were physically qualified to continue to fly." Moreover, several large commercial airlines have flight engineers over age 60 "flying the line" without any reduction in their safety record. Throughout the legislative history of the ADEA, one empirical fact is repeatedly emphasized: the process of psychological and physiological degeneration caused by aging varies with each individual. "The basic research in the field of aging has established that there is a wide range of individual physical ability regardless of age." As a result, many older workers perform at levels equal or superior to their younger colleagues. In 1965, the secretary of labor reported to Congress that despite these well-established medical facts, "there is persistent and widespread use of age limits in hiring that in a great many cases can be attributed only to arbitrary discrimination against older workers on the basis of age and regardless of ability." Two years later, the president recommended that Congress enact legislation to abolish arbitrary age limits on hiring. Such limits, the president declared, have a devastating effect on the dignity of the individual and result in a staggering loss of human resources vital to the national economy. The legislative history of the 1978 amendments to the ADEA makes quite clear that the policies and substantive provisions of the act apply with especial force in the case of mandatory retirement provisions. The House Committee on Education and Labor reported: "Increasingly, it is being recognized that mandatory retirement based solely upon age is arbitrary and that chronological age alone is a poor indicator of ability to perform a job." In Usery v. Tamiami Trail Tours, Inc., the court of appeals for the Fifth Circuit was called upon to evaluate the merits of a BFOQ defense to a claim of age discrimination. Tamiami Trail Tours had a policy of refusing to hire persons over age 40 as intercity bus drivers. At trial, the bus company introduced testimony supporting its theory that the hiring policy was a BFOQ based upon safety considerations-the need to employ persons who have a low risk of accidents. The court concluded that "the job qualifications which the employer invokes to justify his discrimination must be reasonably necessary to the essence of his business-here, the safe transportation of bus passengers from one point to another. The greater the safety factor, measured by the likelihood of harm and the probable severity of that harm in case of an accident, the more stringent may be the job qualifications designed to insure safe driving."page 624 In the absence of persuasive evidence supporting its position, Western nevertheless argues that the jury should have been instructed to defer to "Western's selection of job qualifications for the position of flight engineer that are reasonable in light of safety risks." This proposal is plainly at odds with Congress's decision, in adopting the ADEA, to subject management 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. In adopting that standard, Congress did not ignore the public interest in safety. That interest is adequately reflected in instructions that track the language of the statute. When an employer establishes that a job qualification has been carefully formulated to respond to documented concerns for public safety, it will not be overly burdensome to persuade a trier of fact that the qualification is "reasonably necessary" to safe operation of the business. The uncertainty implicit in the concept of managing safety risks always makes it "reasonably necessary" to err on the side of caution in a close case . . . . Since the instructions in this case would not have prevented the airline from raising this contention to the jury in closing argument, we are satisfied that the verdict is a consequence of a defect in Western's proof, rather than a defect in the trial court's instructions.

AND

Hazen Paper Co. v. Biggins 507 U.S. 604 (1993)

 The Supreme Court resolved a split among the circuits in the following case, where it confronted the question of whether an employer violates the ADEA where factors other than age motivate the adverse employment decision. The Hazens hired Walter Biggins in 1977 and fired him in 1986 when he was 62 years old. Biggins sued, alleging a violation of the ADEA. The Hazens claimed instead that they terminated him because he did business with their competitors. A jury decided in favor of Biggins and the appellate court agreed, relying on evidence that the Hazens really fired him in order to prevent his pension benefits from vesting (which would have happened in the few weeks following his termination). In this case, the Supreme Court determines whether a firing decision based on number of years served is "age-based."page 627 O'Connor, J. 

The Courts of Appeals repeatedly have faced the question whether an employer violates the ADEA by acting on the basis of a factor, such as an employee's pension status or seniority, that is empirically correlated with age . . . . We now clarify that there is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee's age. *** In a disparate treatment case, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision. The employer may have relied upon a formal, facially discriminatory policy requiring adverse treatment of employees with that trait. Or the employer may have been motivated by the protected trait on an ad hoc, informal basis. Whatever the employer's decision-making process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome. Disparate treatment, thus defined, captures the essence of what Congress sought to prohibit in the ADEA. It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age. "Although age discrimination rarely was based on the sort of animus motivating some other forms of discrimination, it was based in large part on stereotypes unsupported by objective fact. . . . Moreover, the available empirical evidence demonstrated that arbitrary age lines were in fact generally unfounded and that, as an overall matter, the performance of older workers was at least as good as that of younger workers." Thus the ADEA commands that "employers are to evaluate [older] employees . . . on their merits and not their age." The employer cannot rely on age as a proxy for an employee's remaining characteristics, such as productivity, but must instead focus on those factors directly. When the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is. Pension plans typically provide that an employee's accrued benefits will become nonforfeitable, or "vested," once the employee completes a certain number of years of service withthe employer. On average, an older employee has had more years in the workforce than a younger employee, and thus may well have accumulated more years of service with a particular employer. Yet an employee's age is analytically distinct from his years of service. An employee who is younger than 40, and therefore outside the class of older workers as defined by the ADEA, may have worked for a particular employer his entire career, while an older worker may have been newly hired. Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily "age based." The instant case is illustrative. Under the Hazen Paper pension plan, as construed by the Court of Appeals, an employee's pension benefits vest after the employee completes 10 years of service with the company. Perhaps it is true that older employees of Hazen Paper are more likely to be "close to vesting" than younger employees. Yet a decision by the company to fire an older employee solely because he has nine-plus years of service and therefore is "close to vesting" would not constitute discriminatory treatment on the basis of age. The prohibited stereotype ("Older employees are likely to be -") would not have figured in this decision, and the attendant stigma would not ensue. The decision would not be the result of an inaccurate and denigrating generalization about age, but would rather represent an accurate judgment about the employee-that he indeed is "close to vesting." We do not mean to suggest that an employer lawfully could fire an employee in order to prevent his pension benefits from vesting. Such conduct is actionable under § 510 of ERISA. But it would not, without more, violate the ADEA. That law requires the employer to ignore an employee's age (absent a statutory exemption or defense); it does not specify further characteristics that an employer must also ignore. . . . We do not preclude the possibility that an employer who targets employees with a particular pension status on the assumption that these employees are likely to be older thereby engages in age discrimination. . . . Finally, we do not consider the special case where an employee is about to vest in pension benefits as a result of his age, rather than years of service, and the employer fires the employee in order to prevent vesting. That case is not presented here. Our holding is simply that an employer does not violate the ADEA just by interfering with an older employee's pension benefits that would have vested by virtue of the employee's years of service.

PLEASE Read the two above cases for reference and answer the question below. Thank you for your help!

Age or seniority?

In the Hazen case, the Court attempts to settle a long-standing debate about age discrimination, whether seniority is a proxy (stand-in) for age.  Do you understand what the debate is about?  Explain what it means as you understand it.