15 Am. Jur. Proof of Facts 2d 481 | 1
15 Am. Jur. Proof of Facts 2d 481
Age As Bona Fide Occupational Qualification Under ADEA
Jonathan M. Purver, LL.B.*
American Jurisprudence Proof of Facts 2d
Database updated July 2009
Categorical List of Articles
Topic of Article:
Whether an employment practice which has been shown to be based on the age of the employee falls
within the bona fide occupational qualification provisions of the Age Discrimination in Employment
Act of 1967 (29 USCA §§ 621 et seq.) so that a prima facie violation of the Act is justified.
This fact question may arise where an individual, as employee or applicant, brings an action against
an employer under the Age Discrimination in Employment Act, or where an action is instituted by
the Secretary of Labor under the Act, for damages and other relief afforded by the Act. The question
may also arise in the limited type of class action permitted under the Act.
ARTICLE OUTLINE
I Background§ 1 In general; scope
§ 1.3 Disparate impact of employer policies
§ 1.5 “Age discrimination by proxy”
§ 2 The bona fide occupational qualification exception (BFOQ)
§ 3 Statutory construction
§ 4 BFOQ burden of proof
§ 4.5 Pretext, mixed-motives, and burden-shifting
§ 5 Evidence of BFOQ in particular jobs
§ 6 Effect of federal safety regulations
§ 7 BFOQ pleading and practice
§ 7.5 Arbitration of ADEA
§ 8 Elements of damages; guide and checklist
§ 8.5 Costs and attorney’s fees
II Proof That Age Was a Bona Fide Occupational Qualification—Common Carrier
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15 Am. Jur. Proof of Facts 2d 481 | 2
A Elements of Proof§ 9 Guide and checklist
B Testimony of Medical Expert§ 10 Qualification in industrial
medicine—Generally
§ 11 Qualification in industrial medicine—Expertise relating to
commercial vehicle drivers
§ 12 Age as affecting driving ability—Generally
§ 13 Age as affecting driving ability—Visual degeneration
§ 14 Age as affecting driving ability—Cardiovascular and other
physiological degeneration
§ 15 Age as affecting driving ability—Psychological changes
§ 16 Gradualness of age as affecting driving ability—generally
§ 17 Gradualness of age as affecting driving ability—Difficulty of
examinations to detect gradual age deterioration after particular age
§ 18 Compliance with federal safety regulations as not sufficient
§ 19 Chronological age standard as reasonable in terms of public safety
C Testimony of Transportation Safety Expert§ 20 Qualification as
commercial vehicle safety expert
§ 21 Importance of physical abilities of driver
§ 22 Particular pressures on intercity bus drivers
§ 23 Successful industry safety record under present age requirements
§ 24 Chronological age standard as reasonably necessary to safe
operations
Research References
INDEX
Age as Bona Fide Occupational Qualification under ADEA
Actors, § 5
Airline pilots, § 6
Apprenticeship programs, effect of, § 5
Burden of proof, §§ 3, 4
Bureau of Motor Carrier Safety of United States Department of Transportation, §§ 6, 7
Bus driver hiring practices
generally, §§ 5– 7
proof of, § 24
Cardiovascular degeneration after particular age, proof of, § 14
Certifications of medical expert, proof of, § 10
Chronological age standards—
generally, § 4
reasonableness of, proof of, §§ 19, 24
Civil Rights Act of 1964, §§ 1, 2
Class suits, § 7
Commercial driver abilities, importance of, proof of, § 21
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15 Am. Jur. Proof of Facts 2d 481 | 3
Conciliation, requirement of, § 7
Counsel fees, § 8
Damages, elements of, § 8
Department of Labor—
as agency charged with ADEA enforcement, § 3
discretion of, § 2
interpretive bulletins of, §§ 2, 3, 6
Driving ability, age as affecting, proof of, §§ 12– 15, 24
Evidence justifying BFOQ defense, § 5
FAA regulations, effect of, §§ 3, 6
Federal Rule of Civil Procedure 23, § 7
Goals of ADEA, § 1
Gradualness of age as affecting ability, proof of, §§ 16, 17
Injunction, § 8
Interstate Commerce Act, effect of, § 6
Legislative intent of ADEA, § 3
Letter of discharge, § 7
Limited application of BFOQ doctrine, § 3
Mature appearance, industries requiring, § 5
Medical expert, testimony of, §§ 10– 19
Motive to discriminate, requirement of, § 7
National origin discrimination suits, § 2
Older American Message of January 1967, § 1
Pain and suffering awards, § 8
Particular occupations, evidence of BFOQ in, § 5
Performance appraisals, § 7
Personality changes in older employees, proof of, § 15
Physiological degeneration after particular age, proof of, § 14
Pleading, § 7
Practical application of ADEA, § 3
Practice, § 7
Prospective violations, § 7
Psychological changes after particular age, proof of, § 15
Public safety, §§ 4, 5
Qualification of experts, proof of, §§ 10, 11, 20
Religious discrimination suits, § 2
Remedies, § 8
Reprisals by employer, § 7
Retaliatory conduct of employer as prohibited, § 2
Safety record of industry under particular age requirements, proof of, § 23
Safety regulations, effect of, § 6
Scope of article, § 1
Screening process of job applicants, proof of, § 24
Sex discrimination suits, § 2
Shifting burden of proof, § 7
Shutdown of employer’s operations as grounds of discharge, § 7
Standing to sue, § 7
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15 Am. Jur. Proof of Facts 2d 481 | 4
State legislation, § 6
Statistical safety information, § 7
Statutory construction, § 3
Tardiness of employee as grounds for discharge, § 7
Transportation safety expert, testimony of, §§ 20– 24
Visual degeneration after particular age, proof of, § 13
Visual field of employee, age as reducing, proof of, § 13
Witnesses—
medical expert, §§ 10– 19
transportation safety expert, §§ 20– 24
Youthful appearance, industries requiring, § 5
I. Background
§ 1. In general; scope
[Cumulative Supplement]
President Johnson, in his Older American Message of January 23, 1967, recommended the Age
Discrimination in Employment Act of 1967 (hereinafter ADEA), which was transmitted to the
Congress by the Secretary of Labor in February of that year. The President’s Message stated, in
pertinent part: “Hundreds of thousands, not yet old, not yet voluntarily retired, find themselves
jobless because of arbitrary age discrimination … in economic terms, this is a serious—and
senseless—loss to a nation on the move. But the greater loss is the cruel sacrifice in happiness and
well being, which joblessness imposes on these citizens and their families. Opportunity must be
opened to the many Americans over 45 who are qualified and willing to work. We must end arbitrary
age limits on hiring.”1
Recognizing the seriousness of the problem of age discrimination in employment, Congress enacted
ADEA for the express purpose of promoting “employment of older persons based upon their ability
rather than age” and prohibiting “arbitrary age discrimination,” ADEA makes it unlawful for
employers, employment agencies, and labor organizations to discriminate on the basis of age against
persons between the ages of 40 and 65.2
The Act, in language similar to the employment practices sections of the Civil Rights Act of 1964,3
prohibits an employer from refusing to hire, from discharging, or from otherwise discriminating
against an individual with respect to that individual’s compensation, terms, conditions, or privileges
of employment, whenever such discrimination is based on age. A detailed discussion of the Act is
the subject of an earlier article.4 Some questions closely related to age discrimination in employment
are also dealt with in cases involving sex discrimination in employment. The latter subject is treated
in an earlier article.5
This article treats the legal issues and the factual settings arising when a defendant in an age
discrimination in employment suit under ADEA asserts the defense that the prima facie age
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15 Am. Jur. Proof of Facts 2d 481 | 5
discrimination was legal as an exception under a proviso of ADEA permitting age as a bona fide
occupational qualification (BFOQ) where reasonably necessary to the normal operation of the
particular business.6
Discussed also are principles of statutory construction which have been placed upon the BFOQ
exception,7 the burden of proof in BFOQ cases,8 and the types of evidence which have justified the
upholding of a BFOQ defense.9
Also treated is the effect of particular federal safety regulations upon BFOQ litigation,10 as well as
pleading and practice considerations to assist counsel in the preparation of a BFOQ defense to a
charge of age discrimination under ADEA.11 While this article is geared to the employer who is
attempting to assert the ADEA defense, the article nevertheless considers those damages which have
sometimes been held appropriate when the defense has been unsuccessful.12
CUMULATIVE SUPPLEMENT
Trial Strategy
Proof of Discrimination Under Age Discrimination in Employment Act, 44 Am. Jur. Proof of Facts
3d 79
Age Discrimination in Employment Action Under ADEA, 75 Am. Jur. Trials 363
Cases:
The fact that a plaintiff in a case brought under the ADEA was replaced by someone outside the
protected class was not a proper element of establishing a prima facie case under the framework
established in McDonnell Douglas Corp. v Green, 36 L Ed 2d 668 (1973)—which the Supreme
Court assumed to apply to cases brought under the ADEA—because (1) such fact failed the
requirement that there be at least a logical connection between each element of the prima facie case
and the illegal discrimination for which it established a legally mandatory rebuttable presumption;
(2) with respect to the requirement for establishing a prima facie case under McDonnell Douglas that
the evidence be adequate to create an inference that an employment decision was based on an illegal
discriminatory criterion, such an inference could not be drawn in an ADEA case from the
replacement of one worker with another worker who was insignificantly younger; and (3) the fact
that a replacement was substantially younger than the plaintiff was a far more reliable indicator of
age discrimination under the ADEA than was the fact that the plaintiff was replaced by someone
outside the protected class. O’Connor v Consolidated Coin Caterers Corp. (1996, US) 134 L Ed 2d
433, 116 S Ct 1307, 96 CDOS 2222, 96 Daily Journal DAR 3716, 70 BNA FEP Cas 486, 67 CCH
EPD ¶43927, 9 FLW Fed S 526, on remand (CA4) 84 F3d 718, 70 BNA FEP Cas 1628, 68 CCH
EPD ¶44085.
States may discriminate on the basis of age without offending the Fourteenth Amendment’s equal
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15 Am. Jur. Proof of Facts 2d 481 | 6
protection clause if the age classification in question is rationally related to a legitimate state interest.
U.S.C.A. Const.Amend. 14. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 120 S. Ct. 631, 145 L. Ed.
2d 522, 140 Ed. Law Rep. 825 (2000); West’s Key Number Digest, Constitutional Law
213.1(2).
The ADEA’s safe-harbor provision did not save Massachusetts’ mandatory retirement age of 55 as
applied to state police officers who were in former state police division at the time it was merged
with three other police forces; safe-harbor provision permitted state to grandfather state retirement
standards, but did not require state to continue to enforce such age-based standards, nor did it
empower individual state employees to force the state to do so. Age Discrimination in Employment
Act of 1967, § 4(j), 29 U.S.C.A. § 623(j); M.G.L.A. c. 32, § 6(3)(a). State Police for Automatic
Retirement Ass’n v. DiFava, 317 F.3d 6, 90 Fair Empl. Prac. Cas. (BNA) 1363, 83 Empl. Prac. Dec.
(CCH) ¶41326 (1st Cir. 2003); West’s Key Number Digest, Civil Rights
171.
Uniformed members of armed services may not assert claims under Title VII of Civil Rights Act or
ADEA. Age Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq.;
Civil Rights Act of 1964, §§ 701 et seq., 42 U.S.C.A. §§ 2000e et seq. Baldwin v. U.S. Army, 223
F.3d 100 (2d Cir. 2000); West’s Key Number Digest, Civil Rights
146.
Because the ADA, ADEA and Title VII all serve the same purpose, to prohibit discrimination in
employment against members of certain classes, the methods and manner of proof under one statute
should inform the standards under the others as well; accordingly, the McDonnell Douglas
burden-shifting framework for Title VII cases is applicable to discrimination claims under the
Rehabilitation Act. Age Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§
621 et seq.; Rehabilitation Act of 1973, §§ 501 et seq., 29 U.S.C.A. §§ 791 et seq.; Civil Rights Act
of 1964, §§ 701 et seq., 42 U.S.C.A. §§ 2000e et seq.; Americans with Disabilities Act of 1990, §§ 2
et seq., 42 U.S.C.A. §§ 12101 et seq. Wishkin v. Potter, 476 F.3d 180, 18 A.D. Cas. (BNA) 1719 (3d
Cir. 2007); West’s Key Number Digest, Civil Rights
1540.
ADEA’s “safe harbor” provision, under which an employer may take an action otherwise
prohibited by the ADEA in order to observe the terms of a benefit plan under which the cost incurred
on behalf of an older worker is no less than that incurred on behalf of a younger worker, applies
when an employer reduces health benefits based on Medicare eligibility. Age Discrimination in
Employment Act of 1967, § 4(f)(2)(B)(i), 29 U.S.C.A. § 623(f)(2)(B)(i); 29 C.F.R. § 1625.10(a)(1).
Erie County Retirees Ass’n v. County of Erie, Pa., 220 F.3d 193 (3d Cir. 2000); West’s Key Number
Digest, Civil Rights
168.1.
Because prohibition against age discrimination contained in ADEA is similar in text, tone, and
purpose to prohibition against discrimination contained in Title VII (42 USCA §§ 2000e et seq.),
courts routinely look to law developed under Title VII to guide inquiry under ADEA. Barber v CSX
Distrib. Servs. (1995, CA3 Pa) 68 F3d 694, 69 BNA FEP Cas 81, 67 CCH EPD ¶43758.
Defendant employer could not be held liable under ADEA for closing unionized plants in northern
states and opening new plants in nonunion southern states, employing smaller, younger, less
expensive workforce, since ADEA does not provide remedy for business decisions, however harshly
they may affect older workers, that do not support inference of age discrimination. Allen v Diebold,
Inc. (1994, CA6 Ohio) 33 F3d 674, 65 BNA FEP Cas 1202, 1994 FED App 309P, 65 CCH EPD
¶43217.
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15 Am. Jur. Proof of Facts 2d 481 | 7
Employer’s comments that employee was unable to “crawl through the dirt while rebuilding the
company,” there were “cultural differences in the organization,” and employee did not possess “team
synergy” did not evidence age bias for purposes of ADEA analysis. Age Discrimination in
Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq. Chiaramonte v. Fashion Bed
Group, Inc., a Div. of Leggett & Platt, Inc., 129 F.3d 391 (7th Cir. 1997).
Fact that employer chose to place special emphasis on certain areas of job performance did not
constitute grounds for challenging employee’s evaluation as discriminatory, under ADEA. Age
Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq. Cramer v.
McDonnell Douglas Corp., 120 F.3d 874 (8th Cir. 1997).
Because state’s statute requiring mandatory retirement of state troopers at age 55 predated
application of Age Discrimination in Employment Act (ADEA) to state and local governments,
statute could not be deemed subterfuge to evade ADEA, and trial court thus erred in denying state’s
summary judgment motion in ADEA action by 55-year-old trooper on ground that statute was
subterfuge. Knight v Georgia (1993, CA11 Ga) 992 F2d 1541, 62 BNA FEP Cas 4, 61 CCH EPD
¶42348, 7 FLW Fed C 454.
Prohibition against age discrimination in Government Employee Rights Act of 1991 (2 USCA §
1202(2)) does not repeal mandatory retirement provisions of 5 USCA §§ 8335(d) and 8425(b).
Riggin v Office of Senate Fair Employment Practices (1995, CA FC) 61 F3d 1563, 68 BNA FEP
Cas 679, 66 CCH EPD ¶43649.
”RFOA provision” allowing employers to avoid liability if employment decision shown to have
disparate impact on employees protected under ADEA was based on reasonable factors other than
employees’ age, though apparently applicable equally to disparate treatment claims, is unnecessary
for such claims; employer can legally reject applicant for a legitimate nondiscriminatory reason
without reference to RFOA provision, as the decision would not be because of the individual’s age.
Age Discrimination in Employment Act of 1967, § 4(a)(1), (f)(1), 29 U.S.C.A. § 623(a)(1), (f)(1).
E.E.O.C. v. Allstate Ins. Co., 458 F. Supp. 2d 980, 99 Fair Empl. Prac. Cas. (BNA) 536, 89 Empl.
Prac. Dec. (CCH) P 42680 (E.D. Mo. 2006), certification granted, judgment modified, 99 Fair Empl.
Prac. Cas. (BNA) 1098, 2007 WL 38675 (E.D. Mo. 2007); West’s Key Number Digest, Civil Rights
1210.
ADEA shares common purpose with Title VII of Civil Rights Act of 1964 (42 USCA §§ 2000e et
seq.), namely elimination of discrimination in workplace; consequently, complementary provisions
of Title VII and ADEA are to be construed consistently. Bass v City of Wilson (1993, ED NC) 835 F
Supp 255, summary judgment den (ED NC) 155 FRD 130.
To extent that Puerto Rican statute provided for automatic expiration of harbor pilot’s license, which
was issued by Puerto Rico Ports Authority (PRPA), on account of pilot attaining age of 70, statute
was preempted by, and violated, the ADEA; Puerto Rican statute was equivalent of mandatory
retirement plan based on age. Age Discrimination in Employment Act of 1967, §§ 2 et seq., 29
U.S.C.A. §§ 621 et seq.; 23 L.P.R.A. § 361s. Camacho v. Puerto Rico Ports Authority, 254 F. Supp.
2d 220 (D.P.R. 2003); West’s Key Number Digest, States
18.49.
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[END OF SUPPLEMENT]
§ 1.3. Disparate impact of employer policies
[Cumulative Supplement]
CUMULATIVE SUPPLEMENT
Cases:
Exemption from liability for disparate impact claim under ADEA for employer actions based on
reasonable factors other than age (RFOA) creates an affirmative defense, on which employer bears
both the burden of production and burden of persuasion. Age Discrimination in Employment Act of
1967, § 4(f)(1), 29 U.S.C.A. § 623(f)(1). Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct.
2395, 171 L. Ed. 2d 283, 103 Fair Empl. Prac. Cas. (BNA) 908, 91 Empl. Prac. Dec. (CCH) P 43231
(U.S. 2008); West’s Key Number Digest, Civil Rights
1529.
Age Discrimination in Employment Act (ADEA) authorizes disparate-impact claims. (per Justice
Stevens, with three Justices joining and one Justice concurring in judgment). Age Discrimination in
Employment Act of 1967, § 4(a)(1, 2), 29 U.S.C.A. § 623(a)(1, 2). Smith v. City of Jackson, Miss.,
125 S. Ct. 1536, 161 L. Ed. 2d 410, 95 Fair Empl. Prac. Cas. (BNA) 641 (U.S. 2005); West’s Key
Number Digest, Civil Rights
1211.
Disparate impact claims (those which challenge employment practices that are facially neutral in
their treatment of different groups but that in fact fall more harshly on one group than another and
cannot be justified by business necessity) are not cognizable under ADEA. Ellis v United Airlines
(1996, CA10 Colo) 73 F3d 999, 69 BNA FEP Cas 1167, 151 BNA LRRM 2306, 67 CCH EPD
¶43834.
Challenges to effects of bona fide seniority systems may not be based upon assertions of disparate
impact; rather, ADEA plaintiff must prove intentional discrimination, and therefore, may claim only
disparate treatment. Hiatt v Union Pac. R.R. (1995, CA10 Wyo) 65 F3d 838, 68 BNA FEP Cas 1160,
150 BNA LRRM 2265.
ER physicians: Hospital and physician’s group had nondiscriminatory reason for termination of
older emergency room physicians who were not board certified in designated medical specialties,
precluding claim that termination had disparate impact on older physicians, in violation of New York
Human Rights Law; under new requirement city fire department would not deliver patients to
hospitals whose emergency room physicians were not board certified, and hospital received 40% of
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15 Am. Jur. Proof of Facts 2d 481 | 9
its emergency room business from fire department. N.Y.McKinney’s Executive Law §§ 290 et seq.
Gonzalez v. City of New York, 135 F. Supp. 2d 385 (E.D. N.Y. 2001); West’s Key Number Digest,
Civil Rights
170.
Weight limit for flight attendants: Former flight attendants who were not hired by successor airline
following asset purchase agreement could not prevail on state-law age discrimination claim based on
contention that airline’s weight requirements failed to take into consideration that older applicants
tended to be heavier; there was no evidence that weight restrictions had disparate impact upon older
employees, and airline presented substantial evidence that it relied heavily on seniority in employing
predecessor’s attendants and that its attendants averaged over 40 years of age. McKinney’s
Executive Law § 296. Delta Air Lines v. New York State Div. of Human Rights, 91 N.Y.2d 65, 666
N.Y.S.2d 1004, 689 N.E.2d 898 (1997).
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[END OF SUPPLEMENT]
§ 1.5. “Age discrimination by proxy”
[Cumulative Supplement]
CUMULATIVE SUPPLEMENT
Cases:
Under the equal protection clause of the Fourteenth Amendment, a state may rely on age as a proxy
for other qualities, abilities, or characteristics that are relevant to the state’s legitimate interests; that
age proves to be an inaccurate proxy in any individual case is irrelevant. U.S.C.A. Const.Amend. 14.
Kimel v. Florida Bd. of Regents, 528 U.S. 62, 120 S. Ct. 631, 145 L. Ed. 2d 522, 140 Ed. Law Rep.
825 (2000); West’s Key Number Digest, Constitutional Law
211(1).
The ADEA’s exception permitting employers to engage in otherwise prohibited conduct “where the
differentiation is based on reasonable factors other than age” makes clear that 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. Age Discrimination in Employment Act of 1967, § 4(f)(1), 29
U.S.C.A. § 623(f)(1). Kimel v. Florida Bd. of Regents, 528 U.S. 62, 120 S. Ct. 631, 145 L. Ed. 2d
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15 Am. Jur. Proof of Facts 2d 481 | 10
522, 140 Ed. Law Rep. 825 (2000); West’s Key Number Digest, Civil Rights
168.1.
ADEA does not prohibit employers from taking actions based on non-age factors, except when those
non-age factors are so related to age that they are mere proxies. Age Discrimination in Employment
Act of 1967, § 4(f)(1), 29 U.S.C.A. § 623(f)(1). Smith v. City of Jackson, Miss., 351 F.3d 183, 84
Empl. Prac. Dec. (CCH) ¶41521 (5th Cir. 2003); West’s Key Number Digest, Civil Rights
1201.
ADEA prohibits only actions actually motivated by age and does not constrain employer who acts on
the basis of other factors, such as pension status, seniority, and wage rate, that are empirically
correlated with age. Age Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§
621 et seq. Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1998 FED App. 142P (6th Cir.
1998).
Reduction in force (RIF) necessitated by store exceeding its salary budget, proffered by employer as
reason for terminating employees, was not pretext for age discrimination, inasmuch as employees
did not dispute that employer faced financial difficulties, employer used only objective criteria based
on store’s needs, employer followed its RIF guidelines, and employees’ argument that employer
could have saved costs by modifying their work schedules or reducing their hours was attack on a
business decision. Age Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621
et seq. Regel v. K-Mart Corp., 190 F.3d 876 (8th Cir. 1999); West’s Key Number Digest, Civil
Rights
170.
ADEA does not prohibit employer from making employment decision on basis of higher salaries,
increased benefits, pension status, or claims for medical expenses even though these characteristics
are often correlated with employee’s age. Age Discrimination in Employment Act of 1967, §§ 2 et
seq., 29 U.S.C.A. §§ 621 et seq. Broaddus v. Florida Power Corp., 145 F.3d 1283 (11th Cir. 1998).
ADEA is not concerned with employment decisions based on employee’s increased use of or
eligibility for benefits; while those decisions may violate ERISA, they do not violate ADEA.
Employee Retirement Income Security Act of 1974, §§ 2 et seq., 29 U.S.C.A. §§ 1001 et seq.; Age
Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq. Broaddus v.
Florida Power Corp., 145 F.3d 1283 (11th Cir. 1998).
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[END OF SUPPLEMENT]
§ 2. The bona fide occupational qualification exception (BFOQ)
[Cumulative Supplement]
Notwithstanding the requirements of the Age Discrimination in Employment Act and the large
measure of discretion accorded the Department of Labor to implement the legislative purposes of
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15 Am. Jur. Proof of Facts 2d 481 | 11
that Act,13
§ 623
…
(f) It shall not be unlawful for an employer, employment agency, or labor
organization—
(1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this
section where age is a bona fide occupational qualification reasonably necessary to
the normal operation of the particular business, …14 it is specifically provided in §
4(f)(1), in pertinent part, that:
This provision allows employers, labor organizations, and employment agencies to engage in
particular discriminations based upon age which would otherwise be unlawful under ADEA, so long
as the discriminator can prove that the age discrimination was necessitated by the fact that age was a
bona fide occupational qualification reasonably necessary to the normal operation of the business in
question.15
Observation:
Since Title VII of the Civil Rights Act of 1964 also contains the BFOQ defense,16 this issue can also
become the subject of a defense in suits which allege discrimination based upon sex,17 religion,18 or
national origin.19
CUMULATIVE SUPPLEMENT
Cases:
Where employee’s ability to maintain required status is conditioned on age, requirement is outlawed
by ADEA unless status is bona fide occupational qualification. Johnson v New York (1995, CA2
NY) 49 F3d 75, 67 BNA FEP Cas 264.
Personal staff exception: Factors that are significant in determining whether ADEA plaintiff falls
under personal staff exception are whether elected official has plenary powers of appointment and
removal, whether person in position at issue is personally accountable to only that elected official,
whether person in position at issue represents elected official in eyes of public, whether elected
official exercises considerable amount of control over position, level of position within
organization’s chain of command, and actual intimacy of working relationship between elected
official and person filling position. Gunaca v Texas (1995, CA5 Tex) 65 F3d 467, 68 BNA FEP Cas
1678.
On appeal of an age discrimination case originally brought by a school bus driver who alleged that
his former employer had discharged him because he was over sixty-five, in violation of the Age
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15 Am. Jur. Proof of Facts 2d 481 | 12
Discrimination in Employment Act, the circuit court reversed and remanded, holding that the district
court erroneously found the defendant had satisfied the requirements of a bona fide occupational
qualification reasonably necessary to ensure the safe transportation of students. The circuit court said
that the school neither advanced nor proved an occupational qualification. Particularly, defendant did
not meet the element of the affirmative defense requiring it to show a factual basis for believing all
people over the age qualifications would be unable to perform safely and efficiently or that it was
highly impractical to deal with older employees on an individualized basis. The district court
incorrectly relied on reported decisions not part of the record for its finding that as one grows older,
physical examinations become too imprecise to determine subtle but important deficiencies. The
only evidence on record was to the contrary. Plaintiff offered uncontradicted expert testimony by a
gerontologist who stated that tests were available which could determine whether individual drivers
were capable of performing their jobs safely. Tullis v Lear School, Inc. (1989, CA11 Fla) 874 F2d
1489, 50 BNA FEP Cas 1, 50 CCH EPD ¶39078.
Fact that municipal ordinance requiring police officers to retire at age 55 predated enactment of
ADEA did not mean it per se could not be challenged as “subterfuge” to evade purposes of ADEA,
for purposes of determining whether discharge of firefighters or law enforcement officers pursuant to
bona fide retirement plan was exempt from ADEA. Age Discrimination in Employment Act of 1967,
§ 4(j)(2), 29 U.S.C.A. § 623(j)(2). Breitigan v. New Castle County, 350 F. Supp. 2d 571 (D. Del.
2004); West’s Key Number Digest, Civil Rights
1207.
To qualify for ADEA firefighter or law enforcement officer exemption, retirement plan must meet
four criteria: (1) it must be sort of plan covered by section, (2) it must be bona fide, (3) county’s
action must be pursuant to plan, and (4) plan must not be subterfuge to evade purposes of ADEA.
Age Discrimination in Employment Act of 1967, § 4(j), 29 U.S.C.A. § 623(j). Breitigan v. New
Castle County, 350 F. Supp. 2d 571 (D. Del. 2004); West’s Key Number Digest, Civil Rights
1207.
Airline was entitled to invoke Federal Aviation Administration (FAA) rule requiring that pilots
retire at age 60 as a bona fide occupational qualification (BFOQ) defense to 60-year-old pilot’s
wrongful discharge claim under Age Discrimination in Employment Act (ADEA); airline had no
choice but to follow rule, which was in effect at time of pilot’s forced retirement. 14 C.F.R. §
121.383(c); 29 C.F.R. § 1625.6(b); Age Discrimination in Employment Act of 1967, § 4(f)(1), 29
U.S.C.A. § 623(f)(1). Carswell v. Air Line Pilots Ass’n Intern., 540 F. Supp. 2d 107, 103 Fair Empl.
Prac. Cas. (BNA) 418, 183 L.R.R.M. (BNA) 3036 (D.D.C. 2008); West’s Key Number Digest, Civil
Rights
1212.
High policy maker exception: Bank vice president was “high policymaker” within exception to
ADEA and state age-discrimination statute, with result that vice president had no actionable
age-discrimination claim arising from his forced retirement at age 65, where vice president was
fifth-ranking employee among bank’s 800 workers, had direct access to top decisionmakers, and had
nonforfeitable pension package within terms of policymaker exception. Morrissey v Boston Five
Cents Sav. Bank FSB (1994, DC Mass) 866 F Supp 643, 66 BNA FEP Cas 630.
County defendants’ compulsory compliance with state law requirement that police officer applicants
be under 35 years of age provided a non-retaliatory reason for denying 51-year-old applicant’s
application to take the police examination, even assuming that defendants were provided with fair
notice of the basis of applicant’s claims of retaliation for earlier charges of reverse discrimination.
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15 Am. Jur. Proof of Facts 2d 481 | 13
N.Y.McKinney’s Civil Service Law § 58(1)(a). Feldman v. Nassau County, 349 F. Supp. 2d 528
(E.D. N.Y. 2004); West’s Key Number Digest, Counties
62.
Under two-factor test for applying affirmative defense of bona fide occupational qualification
(BFOQ) under Age Discrimination in Employment Act (ADEA), employer is required to show that
there is either (1) substantial basis for believing that all or nearly all employees above an age lack the
qualifications required for the position in question, or (2) that reliance on an age classification is
necessary because it is highly impractical for the employer to insure by individual testing that its
employees will have the necessary qualifications for the job. Age Discrimination in Employment Act
of 1967, § 4(f)(1), 29 U.S.C.A. § 623(f)(1). Epter v. New York City Transit Authority, 127 F. Supp.
2d 384 (E.D. N.Y. 2001); West’s Key Number Digest, Civil Rights
168.1.
Genuine issue of material fact as to whether age consideration in Puerto Rican statute, mandating
expiration of harbor pilot licenses for pilots who obtain age of 70, was bona fide occupational
qualification (BFOQ) for harbor pilots, such that consideration was not unlawful under the ADEA,
precluded summary judgment in 70-yearold pilot’s ADEA action against Puerto Rico Ports
Authority (PRPA). Age Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§
621 et seq.; 23 L.P.R.A. § 361s. Camacho v. Puerto Rico Ports Authority, 254 F. Supp. 2d 220
(D.P.R. 2003); West’s Key Number Digest, Federal Civil Procedure
2497.1.
[Top of Section]
[END OF SUPPLEMENT]
§ 3. Statutory construction
[Cumulative Supplement]
Pursuant to its usual practice, the Department of Labor promulgated an Interpretative Bulletin
indicating the construction of ADEA which it believed correct to be used as an aid for employers and
employees to comply with its provisions.20 These interpretations by the Department of Labor—the
agency charged with the enforcement of ADEA—are given considerable weight by the courts in
BFOQ litigation.21 Congress has sought to temper the ideals embodied in ADEA with the practical
knowledge that differentiation based on age is reasonably necessary to the normal operation of some
particular businesses, or to specific positions within some businesses. In interpreting § 4(f)(1), the
touchstone for the BFOQ exemption provided under the Act is a finding that age is a “reasonable”
requirement, necessitated by normal business operations and having a manifest relationship to the
employment in question.
The Interpretative Bulletin states that the phrase “bona fide occupational qualification” is a term of
art subject to narrow interpretation, and that it is anticipated that the concept of a bona fide
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15 Am. Jur. Proof of Facts 2d 481 | 14
occupational qualification will have limited scope and application.22 However, although the
exemptions are to be narrowly construed against the employer seeking to assert them, they must still
be applied to those establishments and businesses which are plainly and unmistakably within their
terms and spirit.23
At this juncture, it is well to remember that a maxim in statutory construction or interpretation is that
the legislation must be viewed in total context, giving full force and effect to all particulars of the
statute wherever feasible, without exclusive reliance upon particular provisions whose meaning may
or may not shift in a subtle fashion when listed and applied out of context.24 Viewed in its entirety,
ADEA sets forth the clear and general legislative intent and Congressional purpose in formulating
prohibitions against age discrimination; the care with which Congress chose the words to emphasize
the Act’s broad function as well as to specifically make allowances for exclusions from the statute
are of equal significance.
The Department of Labor’s Interpretative Bulletin states that whether a BFOQ will be deemed to be
“bona fide” and “reasonably necessary to the normal operation of the particular business” will be
determined on the basis of all the pertinent facts surrounding each particular situation. The Bulletin
further anticipates that the burden of proof in establishing that the BFOQ exception applies will rest
upon the employer who relies upon it.25
The Bulletin lists, as an illustration of a possible BFOQ, those situations where federal statutory and
regulatory requirements provide for compulsory retirement, without reference to the individual’s
actual physical condition at the terminal age, when such conditions are clearly imposed for the safety
and convenience of the public.26 The Bulletin cites as an example the situation where Federal
Aviation Agency regulations do not permit airline pilots to engage in carrier operations as pilots after
they reach age 60.27
Practice Caution:
The Department of Labor Bulletin states that the Department of Labor will not recognize as a BFOQ
the fact that the average cost of employing a worker of a more advanced age is sometimes higher for
an employer than the average cost of employing younger workers as a group.28 This rule is a
corollary of the principle that the age factor alone may not be used to justify a differentiation in
employment.29
CUMULATIVE SUPPLEMENT
Cases:
State statute which mandated retirement of public school teachers at age 70 was plainly invalid for
two years it was still on books by virtue of its preemption by amendment of federal Age
Discrimination in Employment Act which made mandatory retirement at any age unlawful, with few
immaterial exceptions. EEOC v Illinois (1995, CA7 Ill) 69 F3d 167, 19 EBC 2157, 69 BNA FEP
Cas 306, 67 CCH EPD ¶43775.
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15 Am. Jur. Proof of Facts 2d 481 | 15
Massachusetts statute, which precludes persons over age of 65 from becoming members of state and
local retirement systems, violates, and is preempted by, ADEA, and does not fall within exception
provided in 29 USCA § 623(f)(2). EEOC v Massachusetts (1995, DC Mass) 68 BNA FEP Cas 915.
[Top of Section]
[END OF SUPPLEMENT]
§ 4. BFOQ burden of proof
[Cumulative Supplement]
One of the most important considerations in an age discrimination case in which § 4(f)(1) is asserted
by way of defense is the burden of proof. The burden of proving that age is a BFOQ within the
meaning and spirit of § 4(f)(1) rests upon the party asserting that particular defense.30 In this regard,
it has been said that in establishing the BFOQ exemption, the quantum of proof required on the part
of the employer is inversely proportional to the degree and unavoidability of risk to the public or to
fellow employees inherent in the requirements and duties of a particular job.31
The courts will not permit any claim for a BFOQ exemption from the proscriptions of ADEA merely
on the basis of an employer’s stereotyping assumption that most—or even many—employees in
particular types of jobs may become physically unable to perform duties of that job after reaching a
certain age.32
Practice Observation:
Notwithstanding the employer’s burden of proving that age is a BFOQ for employment in its
industry, a court in a decision involving intercity bus drivers stated that the burden of proof on the
employer claiming a BFOQ should be lighter where the employer bases the need for the qualification
on the grounds of public safety, on the theory that in such cases the concern goes beyond that of the
welfare of the individual job applicant and must include consideration of the safety of the public,
which, in that case, were the bus passengers and other motorists.33
CUMULATIVE SUPPLEMENT
Cases:
Employer was entitled to new trial, where district court had failed to explain ADEA plaintiff’s
burden of proof after employer articulated facially nondiscriminatory explanation for its complained
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15 Am. Jur. Proof of Facts 2d 481 | 16
of action, since employer was prejudiced thereby. Seman v Coplay Cement Co. (1994, CA3 Pa) 26
F3d 428, 64 BNA FEP Cas 1749.
For purposes of summary judgment, ADEA plaintiff must establish genuine issue of material fact
either through direct, statistical or circumstantial evidence as to whether employer’s reason for
discharging her is false, and as to whether it is more likely that discriminatory reason motivated
employer to make adverse employment decision. Gallo v Prudential Residential Servs., Ltd.
Partnership (1994, CA2 NY) 22 F3d 1219, 64 BNA FEP Cas 950, 64 CCH EPD ¶42998.
Prima facie case: Complaint in which former employee alleged that he had been terminated on
account of his national origin, in violation of Title VII, and in account of his age, in violation of
ADEA, and in which he detailed the events leading to his termination, provided relevant dates, and
included ages and nationalities of at least some of relevant persons involved in his termination, gave
employer fair notice of employee’s claims and grounds upon which they rested, and thus was
sufficient to state Title VII and ADEA claims, notwithstanding failure to allege facts in complaint
constituting a prima facie case of discrimination under McDonnell Douglas standard. Age
Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq.; Civil Rights
Act of 1964, §§ 701 et seq., as amended, 42 U.S.C.A. §§ 2000e et seq. Swierkiewicz v. Sorema N.
A., 122 S. Ct. 992 (U.S. 2002); West’s Key Number Digest, Civil Rights
375.
With respect to bona fide occupational qualification exception, employer must be able to show that
qualification at issue is reasonably necessary to essence of its business, and must justify its use of
age as proxy for that qualification. Gately v Massachusetts (1993, CA1 Mass) 2 F3d 1221, 17 EBC
1105, 62 BNA FEP Cas 1033, 62 CCH EPD ¶42508, summary op at (CA1 Mass) 21 M.L.W. 3312.
If ADEA plaintiffs make out their prima facie case, then burden of production shifts to the
defendants to articulate legitimate, nondiscriminatory reason for adverse employment action, and if
defendants do so, inference of discrimination drops, and plaintiffs may then attempt to prove
discrimination by offering evidence that defendants’ stated reason is pretextual. Age Discrimination
in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq. Smith v. City of Jackson, Miss.,
351 F.3d 183, 84 Empl. Prac. Dec. (CCH) ¶41521 (5th Cir. 2003); West’s Key Number Digest, Civil
Rights
1539.
Because the ebb and flow of burden-shifting is intended to apply at interim stages of ADEA
proceeding, that is, when party’s rights are affected by record containing less than full proof,
reviewing court need not examine adequacy of showing at any stage of burden-shifting framework
after case has been fully tried on merits. Age Discrimination in Employment Act of 1967, §§ 2 et
seq., 29 U.S.C.A. §§ 621 et seq. Boehms v. Crowell, 139 F.3d 452 (5th Cir. 1998).
Employer’s burden to make particularized factual showing in support of its bona fide occupational
qualification defense under ADEA is satisfied by demonstrating existence of age-based federal
agency rule by which employer is bound, at least where rule was adopted on grounds that could
support defense had age limit been adopted by employer voluntarily. Age Discrimination in
Employment Act of 1967, § 4(f)(1), 29 U.S.C.A. § 623(f)(1); 29 C.F.R. § 1625.6(b). Robert J. Coupe
v. Federal Express Corporation, 121 F.3d 1022, 1997 FED App. 231P (6th Cir. 1997).
When ADEA plaintiff lacks direct evidence of age discrimination, it is plaintiff’s initial burden to
tender evidence establishing that he fell within protected class of persons between ages of 40 and 70,
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15 Am. Jur. Proof of Facts 2d 481 | 17
that he was meeting his employer’s legitimate expectations, that he was discharged or demoted, and
that younger employees were treated more favorably. Robinson v PPG Indus. (1994, CA7 Ill) 23 F3d
1159, 64 BNA FEP Cas 1690, 64 CCH EPD ¶43019.
Trial court in ADEA action harmlessly applied higher burden of proof (direct, circumstantial or
statistical evidence of age discrimination, which court held to be applicable to reduction-in-force
cases, rather than rebuttal of employer’s reasons for discharge) to claim of 61-year-old television
newsman who was discharged when satellite news bureau was closed, where court properly found
that newsman had failed to meet lower (non-RIF in court’s view) burden of McDonnell
Douglas/Burdine analysis. Oxman v WLS-TV (1993, CA7 Ill) 12 F3d 652, 63 BNA FEP Cas 844,
63 CCH EPD ¶42721.
Because discrimination cases often turn on inferences rather than on direct evidence, court of appeals
is particularly deferential to nonmoving party alleging discrimination. Webb v Garelick Mfg. Co.
(1996, CA8 Minn) 94 F3d 484.
”Mt. Healthy/Price Waterhouse” mixed motive analysis applies only in dual motive cases where
complainant produces evidence that directly reflects use of illegitimate criterion in challenged
decision; direct evidence means evidence showing specific link between improper motive and
challenged employment decision. Carroll v United States DOL (1996, CA8) 78 F3d 352, 131 CCH
LC ¶58100.
”Courts should not close their doors to new knowledge by granting summary judgment on a mere
assertion that a job involves the performance of arduous tasks affecting the safety of others. When
safety is ‘the essence’ of the particular business, that factor obviously becomes an important
occupational consideration. Consequently, employers whose businesses are safety-related have less
difficulty proving that age is a BFOQ. Nevertheless, courts cannot assume in the absence of any
evidence as to its effects on safe performance that age, per se, constitutes a BFOQ. Furthermore,
when evidence is presented by the employer, the plaintiff must be given an opportunity of rebuttal.”
Equal Employment Opportunity Com. v County of Santa Barbara (1982, CA9) 666 F2d 373, 27
BNA FEP Cas 1481, 27 CCH EPD ¶32396.
A factual foundation is necessary to establish that age is a BFOQ. Without the aid of factual
evidence showing the impact of aging on one’s ability to perform the tasks required in a particular
job, the court is unable to balance the competing interests, and violation of the Age Discrimination in
Employment Act will be assumed. Thus, where two correctional officers had been satisfactorily
performing their duties when they were discharged at the respective ages of 58 and 56, and no
evidence was presented by the employer as to the general effects of aging on the performance of
those duties or as to the possibility of determining whether individual employees could be counted
on to perform their duties safely, a summary judgment in favor of the employer was set aside. Equal
Employment Opportunity Com. v County of Santa Barbara (1982, CA9) 666 F 2d 373, 27 BNA FEP
Cas 1481, 27 CCH EPD ¶32396.
Issue of fact whether defendant former employer deliberately exploited 63-year-old library clerk’s
poor night vision as means to cause her to resign precluded summary judgment for defendant on
issue of constructive discharge in ADEA action, where defendant reassigned clerk to work night
shift while allegedly knowing that her poor night vision precluded driving after dark. Schwarz v
Northwest Iowa Community College (1995, ND Iowa) 881 F Supp 1323, 4 AD Cas 490.
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15 Am. Jur. Proof of Facts 2d 481 | 18
Circumstantial evidence of pretext: When an Age Discrimination in Employment Act (ADEA)
plaintiff attempts to show pretext by demonstrating that the employer’s proffered reason for a
discharge has no basis in fact, or by showing that the proffered reason is insufficient to explain the
discharge, the fact finder may infer discrimination from the circumstances. Age Discrimination in
Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq. Austin v. Fuel Systems, LLC, 379
F. Supp. 2d 884 (W.D. Mich. 2004); West’s Key Number Digest, Civil Rights
1539.
[Top of Section]
[END OF SUPPLEMENT]
§ 4.5. Pretext, mixed-motives, and burden-shifting
[Cumulative Supplement]
CUMULATIVE SUPPLEMENT
Cases:
Under McDonnell Douglas burden-shifting scheme for discriminatory-treatment cases, ADA
plaintiff must first establish prima facie case of discrimination, then burden shifts to employer to
articulate legitimate, nondiscriminatory reason for its employment action, and if employer meets this
burden, presumption of intentional discrimination disappears, but plaintiff can still prove disparate
treatment by, for instance, offering evidence demonstrating that employer’s explanation is pretextual.
Americans with Disabilities Act of 1990, §§ 2 et seq., 42 U.S.C.A. §§ 12101 et seq. Raytheon Co. v.
Hernandez, 124 S. Ct. 513, 14 A.D. Cas. (BNA) 1825 (U.S. 2003); West’s Key Number Digest,
Civil Rights
1540.
Though Supreme Court has not squarely addressed whether McDonnell Douglas framework,
developed to assess claims brought under Title VII, also applies to ADEA actions, Supreme Court
would assume, arguendo, that McDonnell Douglas framework was fully applicable in ADEA case
under review, where parties did not dispute the issue. Age Discrimination in Employment Act of
1967, § 4(a)(1), 29 U.S.C.A. § 623(a)(1); Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C.A. §
2000e-2(a)(1). Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, 147 L. Ed. 2d 105
(U.S. 2000); West’s Key Number Digest, Federal Courts
460.1.
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15 Am. Jur. Proof of Facts 2d 481 | 19
Where there is no smoking gun evidence of age discrimination, a employee asserting an ADEA
claim can use the familiar McDonnell Douglas burden-shifting framework to meet his ultimate
burden of proving that he was discriminated against due to his age. Age Discrimination in
Employment Act of 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq. Arroyo-Audifred v. Verizon
Wireless, Inc., 527 F.3d 215, 103 Fair Empl. Prac. Cas. (BNA) 708, 91 Empl. Prac. Dec. (CCH) P
43241 (1st Cir. 2008); West’s Key Number Digest, Civil Rights
1539.
When an employer, at different times, gives different and arguably inconsistent explanations for
terminating an employee, a jury may infer that the articulated reasons are pretexts for age
discrimination. Age Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et
seq. Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424 (1st Cir. 2000); West’s Key Number
Digest, Civil Rights
380.
In age discrimination case in which sole question before jury was whether employer’s proffered
nondiscriminatory justification for discharging highway maintenance employee was pretextual,
testimony of subsequently-hired worker the same age and assigned to the same crew as plaintiff, that
he was asked by the same foreman to stay on crew permanently and was still working for foreman at
time of trial, was admissible to rebut plaintiff’s argument that he was fired as part of broader plan to
get rid of older workers to increase productivity; testimony was offered to establish that foreman did
not have discriminatory intent when he discharged plaintiff, not as evidence of foreman’s good
character or propensity not to discriminate against older workers to show conduct in conformity
therewith. Fed.Rules Evid.Rule 404(b), 28 U.S.C.A.; Age Discrimination in Employment Act of
1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq. Ansell v. Green Acres Contracting Co., Inc., 347 F.3d
515, 92 Fair Empl. Prac. Cas. (BNA) 1475 (3d Cir. 2003); West’s Key Number Digest, Evidence
134.
Material fact issues existed as to whether supervisor’s explanation for his choice of departmental
seniority as basis for terminating 61-year-old employee, rather than job seniority or overall seniority,
was pretextual, and thus as to whether employer’s articulated justification for terminating employee
could be disbelieved, thus precluding summary judgment for employer on employee’s claim alleging
that his termination in reduction-in-force (RIF), following hospital merger, violated ADEA. Age
Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq. Showalter v.
University of Pittsburgh Medical Center, 190 F.3d 231 (3d Cir. 1999); West’s Key Number Digest,
Federal Civil Procedure
2497.1.
Under mixed-motives analysis, or modified McDonnell Douglas approach, as applied to ADEA
claim: (1) employee must demonstrate prima facie case of age discrimination; (2) employer must
articulate legitimate, non-discriminatory reason for its adverse employment decision; (3) employee
must offer evidence to create issue of material fact either that employer’s reason is pretextual, or that
employer’s reason, while true, is only one reason for its conduct, and another motivating factor is
age; and (4) if employee demonstrates that age was motivating factor, employer must prove that
same adverse action would have been made regardless of discriminatory animus. Age Discrimination
in Employment Act of 1967, §§ 2 et seq., as amended, 29 U.S.C.A. §§ 621 et seq. Rachid v. Jack In
The Box, Inc., 376 F.3d 305, 93 Fair Empl. Prac. Cas. (BNA) 1761 (5th Cir. 2004); West’s Key
Number Digest, Mandamus
1209.
The indirect method of proving an ADEA claim is the framework set out in McDonnell Douglas
Corp. v. Green, which is a paradigm designed to give plaintiffs a fair chance to prove discrimination
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15 Am. Jur. Proof of Facts 2d 481 | 20
when direct evidence of it is not available. Age Discrimination in Employment Act of 1967, §§ 2 et
seq., 29 U.S.C.A. §§ 621 et seq. E.E.O.C. v. Bd. Of Regents Of University Of Wisconsin System,
288 F.3d 296, 164 Ed. Law Rep. 59 (7th Cir. 2002); West’s Key Number Digest, Civil Rights
388.
At stage of ADEA action in which employee attempts to prove that employer’s proffered
nondiscriminatory reason for its adverse employment action is pretextual, employee’s general
averments that he or she performed adequately are insufficient to create a genuine issue of fact and
thus to preclude summary judgment; employee must produce some independent evidence showing
that employer’s motives are not believable. Age Discrimination in Employment Act of 1967, §§ 2 et
seq., 29 U.S.C.A. §§ 621 et seq.; Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. Roberts v. Separators,
Inc., 172 F.3d 448 (7th Cir. 1999); West’s Key Number Digest, Federal Civil Procedure
2497.1.
Pretext may be established directly with evidence that employer was more likely that not motivated
by discriminatory reason, or indirectly by evidence that employer’s explanation is not credible; under
indirect method of proof, only burden of production shifts from one party to other, and ultimate
burden of proving intentional discrimination remains with plaintiff. Sarsha v Sears, Roebuck & Co.
(1993, CA7 Ill) 3 F3d 1035, 62 BNA FEP Cas 1114, 62 CCH EPD ¶42546.
The showing of pretext necessary to survive summary judgment in an ADEA action requires more
than merely discrediting an employer’s asserted reasoning for terminating an employee; an employee
must also demonstrate that the circumstances permit a reasonable inference of discriminatory
animus. Age Discrimination in Employment Act of 1967, 2 et seq., 29 U.S.C.A. § 621 et seq.;
Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. Roeben v. BG Excelsior Ltd. Partnership, 545 F.3d 639,
104 Fair Empl. Prac. Cas. (BNA) 1153 (8th Cir. 2008); West’s Key Number Digest, Federal Civil
Procedure
2497.1.
Once an employer articulates a nondiscriminatory reason for terminating an ADEA plaintiff, the
burden falls to the plaintiff, who can avoid summary judgment if the evidence creates: (1) a fact
issue as to whether the employer’s proffered reason is pretextual, and (2) a reasonable inference that
age was a determinative factor in his termination. Age Discrimination in Employment Act of 1967, 2
et seq., 29 U.S.C.A. §§ 621 et seq.; Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. Carraher v. Target
Corp., 503 F.3d 714, 101 Fair Empl. Prac. Cas. (BNA) 1055, 90 Empl. Prac. Dec. (CCH) P 42960
(8th Cir. 2007); West’s Key Number Digest, Federal Civil Procedure
2497.1.
There was no evidence that employer’s replacement of employee with an older employee was a
subterfuge to insulate employer from potential liability for age discrimination under the ADEA, as
required for employee’s age discrimination claim; although the replacement retired only three years
after replacing employee, the replacement testified that he never communicated to anyone that he
wanted to retire any time soon, and when replacement interviewed for the position, he stated he
would work as long as his health remained good, perhaps as long as five or 10 years. Age
Discrimination in Employment Act of 1967, § 2(b), 29 U.S.C.A. § 621(b). Morgan v. A.G. Edwards
& Sons, Inc., 486 F.3d 1034, 100 Fair Empl. Prac. Cas. (BNA) 1075, 89 Empl. Prac. Dec. (CCH) P
42816 (8th Cir. 2007); West’s Key Number Digest, Civil Rights
1209.
In an ADEA case, if the employer provides a non-discriminatory reason, the presumption of
discrimination disappears, and the plaintiff can only avoid summary judgment if he or she presents
evidence that considered in its entirety, (1) creates a question of material fact as to whether the
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15 Am. Jur. Proof of Facts 2d 481 | 21
defendant’s proffered reasons are pretextual and (2) creates a reasonable inference that age was a
determinative factor in the adverse employment decision. Age Discrimination in Employment Act of
1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq. Kohrt v. MidAmerican Energy Co., 364 F.3d 894, 93
Fair Empl. Prac. Cas. (BNA) 1064, 20 O.S.H. Cas. (BNA) 1755, 85 Empl. Prac. Dec. (CCH) P
41636 (8th Cir. 2004); West’s Key Number Digest, Mandamus
2497.1.
District court erroneously applied McDonnell Douglas burden-shifting analysis in ruling on
employer’s summary judgment motion in ADEA action by requiring former employee to produce
evidence that employer had a discriminatory motive for terminating his employment as a taxi driver,
where employee presented direct evidence that employer permanently terminated his employment
because he was over 70; evidence that employee was 73 years old and that employer’s new auto
insurance policy did not cover drivers over the age of 70 supported inference that employer had
adopted practice of intentionally discriminating against drivers over 70 years of age. Age
Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq. Enlow v.
Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802 (9th Cir. 2004); West’s Key Number Digest,
Mandamus
2497.1.
The Court of Appeals may pause to assess the existence of a prima facie ADEA retaliation case even
though, at summary judgment, the employer puts forth a nondiscriminatory reason for its adverse
employment action; although the prima facie case requirement may sometimes prove a sideshow to
the main action of pretext, if an employee fails to present even the limited quantum of evidence
necessary to raise a prima facie inference that his or her protected activity led to an adverse
employment action, it can become pointless to go through the motions of the remainder of the
McDonnell Douglas framework. Age Discrimination in Employment Act of 1967, § 4(d), 29
U.S.C.A. § 623(d); Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. Hinds v. Sprint/United Management
Co., 523 F.3d 1187, 103 Fair Empl. Prac. Cas. (BNA) 145, 91 Empl. Prac. Dec. (CCH) P 43163
(10th Cir. 2008); West’s Key Number Digest, Federal Courts
766.
Spreadsheet created by managers to identify “potential problems” with reduction in force (RIF) did
not indicate that employer’s proffered reason for terminating employee, i.e., that it discontinued his
entire work group, was pretext for discrimination in violation of ADEA, even if spreadsheet was
used during RIF process, in that use of spreadsheet to look for signs of discrimination did not
indicate discriminatory animus, spreadsheet contained objective criteria, there was no indication that
managers accessed its password-protected age data, and exclusion of three employees from
spreadsheet was not inconsistent with employer’s stated purpose for spreadsheet. Age Discrimination
in Employment Act of 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq. Hinds v. Sprint/United
Management Co., 523 F.3d 1187, 103 Fair Empl. Prac. Cas. (BNA) 145, 91 Empl. Prac. Dec. (CCH)
P 43163 (10th Cir. 2008); West’s Key Number Digest, Civil Rights
1209.
Former employee provided sufficient evidence upon which jury reasonably could have concluded
that employer’s stated reasons for terminating him, including reduction in force (RIF), were
“pretext” for discrimination under Age Discrimination in Employment Act (ADEA), where day after
employee was fired he was replaced by someone from outside company who was hired at roughly
same salary and was 24 years younger, and employee’s performance was not a factor in employer’s
decision to fire him even though employer previously told Equal Employment Opportunity
Commission (EEOC) that performance was factor. Age Discrimination in Employment Act of 1967,
§§ 2 et seq., 29 U.S.C.A. §§ 621 et seq. Miller v. Eby Realty Group LLC, 396 F.3d 1105, 95 Fair
Empl. Prac. Cas. (BNA) 65, 85 Empl. Prac. Dec. (CCH) P 41908 (10th Cir. 2005); West’s Key
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15 Am. Jur. Proof of Facts 2d 481 | 22
Number Digest, Civil Rights
1551.
Indicia of pretext: Employees typically show pretext in Title VII actions by revealing such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could rationally find them
unworthy of credence. Civil Rights Act of 1964, §§ 701 et seq., 42 U.S.C.A. §§ 2000e et seq. Jones
v. Barnhart, 349 F.3d 1260, 92 Fair Empl. Prac. Cas. (BNA) 1623 (10th Cir. 2003); West’s Key
Number Digest, Civil Rights
1137.
Genuine issues of material fact as to whether or not former employer’s system of ranking and
evaluation of employees was based upon objective criteria and was applied to all similarly-situated
employees, and whether employer deviated from its normal procedures in ranking employee,
precluded summary judgment on issue of whether employer’s proffered nondiscriminatory reason
for demotions, transfers, and other adverse employment actions, that they were based upon
employee’s poor ranking and performance, was pretextual, in former employee’s employment
discrimination action against former employer, alleging violation of Title VII and the ADEA. Age
Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq.; Civil Rights
Act of 1964, §§ 701 et seq., 42 U.S.C.A. §§ 2000e et seq.; Fed.Rules Civ.Proc.Rule 56(c), 28
U.S.C.A. Garrett v. Hewlett Packard Co., 305 F.3d 1210 (10th Cir. 2002); West’s Key Number
Digest, Federal Civil Procedure
2497.1.
Once the employer has asserted a facially nondiscriminatory reason for its actions, an age
discrimination plaintiff may still resist summary judgment, either by presenting evidence that the
employer’s reason is pretextual, i.e., unworthy of belief, or by otherwise introducing evidence of a
discriminatory motive, and when assessing whether plaintiff has made an appropriate showing of
pretext, court must consider the evidence as a whole. Age Discrimination in Employment Act of
1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq. Danville v. Regional Lab Corp., 292 F.3d 1246 (10th
Cir. 2002); West’s Key Number Digest, Federal Civil Procedure
2497.1.
Comparison of unsuccessful applicant’s qualifications with those of seven male and/or younger
individuals that airline interviewed and hired as flight officers did not suggest pretext in airline’s
qualifications-related reasons for not hiring applicant, for purposes of applicant’s disparate treatment
claims under Title VII and ADEA, where applicant’s evidence did not show that she was
overwhelmingly better qualified than other candidates, but, at most, that the seven other candidates
were similarly qualified; choosing between similarly qualified candidates was not evidence of
pretext. Age Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq.;
Civil Rights Act of 1964, §§ 701 et seq., as amended, 42 U.S.C.A. §§ 2000e et seq. Bullington v.
United Air Lines, Inc., 186 F.3d 1301 (10th Cir. 1999); West’s Key Number Digest, Civil Rights
158.1.
Federal Reserve Board’s (FRB’s) proffered reason for not promoting older certified public
accountant (CPA) to managerial position, decisionmaker’s honest and objective belief that younger
applicant “was better qualified for the manager position as a result of her excellent credentials,
communication skills, and experience in problem solving that would be applied to electronic
banking, fiduciary activities, and the Shared National Credit Program,” was legitimate and
nondiscriminatory and shifted burden to older employee to show pretext. Age Discrimination in
Employment Act of 1967, § 15, 29 U.S.C.A. § 633a. Jones v. Bernanke, 493 F. Supp. 2d 18, 89
Empl. Prac. Dec. (CCH) P 42871 (D.D.C. 2007); West’s Key Number Digest, Civil Rights
1539.
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15 Am. Jur. Proof of Facts 2d 481 | 23
Genuine issue of material fact existed as to whether employer’s stated legitimate, non-discriminatory
reason for firing employee, cash-flow problems as result of loss of account, was a pretext for age
discrimination, precluding summary judgment in favor of employer on age discrimination claim
brought under New York law; in light of facts that employee had worked on numerous accounts
during his thirty years and was not exclusively tied to lost account, and that employer had declined
employee’s offer to accept a reduction in his salary, despite having accepted on previous occasions
when it experienced cash-flow problems, jury could reasonably find that the decision to terminate
employee was motivated by the desire to replace an older employee. Epstein v. Triton Advertising,
Inc., 123 F. Supp. 2d 745 (S.D. N.Y. 2000); West’s Key Number Digest, Federal Civil Procedure
2497.1.
Employee can show “pretext” for discrimination by revealing such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in employer’s proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them unworthy of credence. Boyles v. AG
Equipment Co., 506 F. Supp. 2d 809 (N.D. Okla. 2007); West’s Key Number Digest, Civil Rights
1137.
Former employee’s assertion that employer eliminated his position so it could outsource more of its
marketing work and simultaneously claimed that it was displeased with employee’s performance
because he outsourced too much marketing work did not create genuine issue of material fact as to
whether employer’s reason for terminating employee, namely that company was undergoing
restructuring and that position was eliminated based in part on employee’s performance and that it
was more financially efficient to outsource employee’s functions and hire lower-grade person to
assist outside agency in performing those functions, was pretextual for age discrimination, as
required to survive summary judgment in action brought under Alabama Age Discrimination and
Employment Act; rather, employer noted that employee was outsourcing much of marketing work
and determined that it was cost-efficient to eliminate employee’s marketing position and outsource
work to outside agency. (Per Stuart, J., with five Justices concurring in the result.) Code 1975, §§
25-1-20 et seq.; Rules Civ.Proc., Rule 56(c). Robinson v. Alabama Cent. Credit Union, 964 So. 2d
1225, 100 Fair Empl. Prac. Cas. (BNA) 939 (Ala. 2007); West’s Key Number Digest, Judgment
185.3(13).
First Amendment principles did not preclude judicial inquiry into terminated teachers’ claim that
doctrinal reason proffered by parochial school for their termination was mere pretext and that
termination was actually motivated by age discrimination, where teachers established prima facie
case of employment discrimination and allegations did not require trial court to determine religious
doctrine; teachers were entitled to opportunity to demonstrate that legitimate doctrinal reason
proffered by school was not real motivation behind their termination. U.S.C.A. Const.Amend. 1.
Basinger v. Pilarczyk, 125 Ohio App. 3d 74, 707 N.E.2d 1149, 133 Ed. Law Rep. 240 (1st Dist.
Hamilton County 1997), dismissed, appeal not allowed, 81 Ohio St. 3d 1511, 692 N.E.2d 618
(1998); West’s Key Number Digest, Civil Rights
171.
For age-discrimination suits, a three-step burden-shifting framework is used: plaintiff must first
establish a prima facie case of age discrimination by showing that he was within the protected age
group, that he was adversely affected, that he was replaced by a younger person, and that he was
qualified for the job; burden then shifts to the employer to articulate the legitimate,
nondiscriminatory reason for its employment decision; when employer has met its burden, which is
one of production only, burden shifts back to plaintiff to prove that employer’s proffered reasons are
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15 Am. Jur. Proof of Facts 2d 481 | 24
pretexts specifically for age discrimination. Texas Labor Code § 21.051. Jaso v. Travis County
Juvenile Bd., 6 S.W.3d 324 (Tex. App. Austin 1999); West’s Key Number Digest, Civil Rights
168.1.
[Top of Section]
[END OF SUPPLEMENT]
§ 5. Evidence of BFOQ in particular jobs
[Cumulative Supplement]
In some industries, particularly those affecting the public safety, an age requirement has sometimes
been upheld as a BFOQ where compelling evidence was presented showing that a chronological age
standard was, on the particular facts, reasonable in terms of public safety.34 In some such cases,
substantial evidence was presented by the representatives of the bus transportation industry, that the
excellent current safety record of the industry would be severely jeopardized and the risk of harm to
its passengers and others would greatly increase if the industry were required to consider
employment applications of persons 40 years or older for the position of intercity bus drivers.35
Case Illustration:
A bus company sufficiently established age as a BFOQ where it showed, after establishing that
human beings suffered degenerative changes impairing driving ability starting at age 30, that
employees were divided into two groups, those who made regularly-scheduled runs and those who
made more strenuous runs, and where it showed that newly hired drivers, regardless of age or prior
experience, went to the bottom of the seniority list and would remain there for a period of 10 to 40
years depending upon the territory in which employed; there being testimony to the effect that the
work of the newly hired driver was particularly physically and mentally demanding and that it placed
an unusual amount of emotional stress on the new driver.36
So, too, with other jobs or positions which involve a direct relationship to the safety of the public,
age requirements have been held to be a BFOQ where the evidence shows that dangers to the public,
or to other employees, may be very great if age is not considered in the hiring or retention of the
employees in question.37
Case Illustrations:
—Where the plaintiff applied for the position of police officer and was refused on the ground that he
was older than 35 years of age, no unlawful age discrimination was present since the aging process
and declining physical ability, which are part of that process, were to be deemed universal in nature,
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15 Am. Jur. Proof of Facts 2d 481 | 25
and the minimal increase in risk of harm to others was all that should be shown to justify the
maximum hiring age requirement.38
—State legislation requiring mandatory retirement of a state police officer at the age of 60 did not
violate ADEA since age was a BFOQ as to the occupation of police officer on evidence that dangers
to the public would result if age were not taken into consideration.39
The Department of Labor has recognized age as a BFOQ for some occupations or jobs in which a
youthful appearance, or an appearance of maturity, is necessary to the successful performance of the
job. For example, age would be considered a BFOQ for the hiring of an actor who is needed to
portray a youthful or elderly characterization or role.40 Similarly, where an individual is needed by
an employer to promote or to advertize products which are designed for—and directed to appeal
exclusively to—either youthful or elderly consumers, age would constitute a BFOQ.41
Another job or position in which BFOQ is sometimes established is that of an apprenticeship
program. The Department of Labor has issued an Interpretative Bulletin to the effect that age
limitations for entry into bona fide apprenticeship programs were not intended to be affected by
ADEA, so long as the program meets specified Department of Labor standards.42
Practice Observation:
In marshalling the evidence, counsel for both parties should be aware that, at least with respect to
industries involving the safety of the public or safety of fellow employees, the question as to whether
a BFOQ will be found to exist will be based upon a balancing process. As aptly stated by one court
in a case involving age limitations upon applicants for intercity bus drivers:
”Inextricably involved here, on the one hand, is perpetuation of the stated legislative
purpose to promote employment of older persons based on their ability rather than
age, undeniably a laudable one, which must be somehow balanced against the
unquestionably sincere claims of the nationwide bussing industry which, as expressed
by some of its most eminent spokesmen, has amassed a safety record unsurpassed by
any other transportation industry so that the public interest—here a term directly
translatable into the safety of millions of intercity bus passengers per year—demands
that the non-hiring of intercity bus drivers over 40 years of age be sanctioned as a
necessary exception.”43
CUMULATIVE SUPPLEMENT
Cases:
Airline policy of permitting captains disqualified for reasons other than age to transfer automatically
to position of flight engineer, while requiring captains disqualified by reason of age to bid for flight
engineer vacancies, is discriminatory on its face and constitutes violation of 29 USCA § 623(a)(1).
Trans World Airlines, Inc. v Thurston (1985) 469 US 111, 83 L Ed 2d 523, 105 S Ct 613, 36 BNA
FEP Cas 977, 35 CCH EPD ¶34851 (not followed by Glenn v General Motors Corp. (CA11 Ala) 841
F2d 1567, 46 BNA FEP Cas 1331, 28 BNA WH Cas 1033, 46 CCH EPD ¶37921, 108 CCH LC
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15 Am. Jur. Proof of Facts 2d 481 | 26
¶35054, cert den (US) 102 L Ed 2d 367, 109 S Ct 378, 48 BNA FEP Cas 232, 29 BNA WH Cas 752,
50 CCH EPD ¶39164, 110 CCH LC ¶35125) and (disagreed with by multiple cases as stated in
Burlew v Eaton Corp. (CA7 Wis) 869 F2d 1063, 49 BNA FEP Cas 395, 49 CCH EPD ¶38874).
Old-fashioned fashion reporter: Newspaper owner’s failure to allow reporter to cover fashion
shows did not demonstrate age-based animus for purposes of ADEA, since, given employee’s
acknowledged penchant for old-fashioned clothing and hairstyles, it was plausible to attribute
owner’s decision to fact that employee was insufficiently attuned to current fashions. Age
Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq. Gonzalez v. El
Dia, Inc., 304 F.3d 63 (1st Cir. 2002); West’s Key Number Digest, Civil Rights
168.1.
ADEA action for injunctive relief brought by members of police force, who prior to consolidation of
four separate police forces were subject to mandatory retirement age of 65 and after consolidation
were subject to mandatory retirement age of 55, was not precluded by doctrine of stare decisis on
basis of prior cases which had held that mandatory retirement age of 50 for one of now-consolidated
police forces was BFOQ, since question of whether mandatory retirement age is BFOQ is
fact-intensive inquiry, underlying facts in present case are different from prior cases, and legal
landscape has been altered in critical respects since prior cases were decided. Gately v Massachusetts
(1993, CA1 Mass) 17 EBC 1105, 62 BNA FEP Cas 1033, 62 CCH EPD ¶42508, summary op at
(CA1 Mass) 21 M.L.W. 3312.
ADEA action for injunctive relief brought by members of police force, who prior to consolidation of
four separate police forces were subject to mandatory retirement age of 65 and after consolidation
were subject to mandatory retirement age of 55, was not precluded by doctrine of stare decisis on
basis of prior cases which had held that mandatory retirement age of 50 for one of now-consolidated
police forces was BFOQ, since question of whether mandatory retirement age is BFOQ is
fact-intensive inquiry, underlying facts in present case are different from prior cases, and legal
landscape has been altered in critical respects since prior cases were decided. Gately v Massachusetts
(1993, CA1 Mass) 17 EBC 1105, 62 BNA FEP Cas 1033, 62 CCH EPD ¶42508, summary op at
(CA1 Mass) 21 M.L.W. 3312.
Trial court properly enjoined impending forced retirements of state police officers pursuant to state
statute at age 55, where, because state’s consolidation of four state police agencies into one agency
with mandatory age-55 retirement rule during seven-year grace period allowed by congress in
amending Age Discrimination in Employment Act (ADEA), intended to allow mandatory age-based
retirements that were in effect prior to amendment, and consolidation had effect of lowering
retirement age for some affected officers, state could not take advantage of grace period as to
officers whose retirement ages were lowered. Gately v Massachusetts (1993, CA1 Mass) 2 F3d
1221, 17 EBC 1105, 62 BNA FEP Cas 1033, 62 CCH EPD ¶42508, summary op at (CA1 Mass) 21
M.L.W. 3312.
Airline offered age-neutral explanation for not hiring pilots for newly-acquired shuttle service purely
on the basis of their seniority with airline that previously operated service, as required to rebut pilots’
prima facia claim that hiring plan based on experience flying planes in question violated ADEA;
airline claimed that it needed to staff service immediately without retraining more senior pilots
accustomed to flying different aircraft and that seniority system would obligate airline to hire more
pilots than it needed. Age Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§
621 et seq. Criley v. Delta Air Lines, Inc., 119 F.3d 102 (2d Cir. 1997).
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15 Am. Jur. Proof of Facts 2d 481 | 27
Air traffic controller did not establish that his mandatory retirement at age 56, as required by the
Civil Service Retirement System (CSRS), violated the ADEA, even though other ATC’s, who were
fired after striking and then rehired, were permitted to work beyond age 56 under the Federal
Retirement System (FERS); the mandatory retirement age of all ATC’s was dictated by legislation
properly enacted by Congress, regardless of whether they were governed by the CSRS or the FERS.
Age Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq.; 5
U.S.C.A. §§ 8335(a), 8425(a). Dungan v. Slater, 252 F.3d 670 (3d Cir. 2001), cert. denied, 122 S. Ct.
397 (U.S. 2001); West’s Key Number Digest, Civil Rights
171.
Federal Aviation Administration’s rule prohibiting air cargo operator from utilizing services of pilot
who has reached his sixtieth birthday gave rise to bona fide occupational qualification reasonably
necessary to normal operation of operator’s business, for purposes of ADEA, and operator was not
required to adduce evidence in support of rule and convince judicial factfinder that age limitation for
its pilots was bona fide occupational qualification on its own merits. Age Discrimination in
Employment Act of 1967, § 4(a)(1), (f)(1), 29 U.S.C.A. § 623(a)(1), (f)(1); 14 C.F.R. § 121.383(c);
29 C.F.R. § 1625.6(b). Robert J. Coupe v. Federal Express Corporation, 121 F.3d 1022, 1997 FED
App. 231P (6th Cir. 1997).
Reversing a summary judgment which had been rendered in favor of the corporate employer of an
airline pilot who was required to retire at the age of 60, the court held that the defendant employer
had the burden of establishing that the forced retirement was “reasonably necessary” based solely on
age. The issue at trial, explained the court, would be whether safety considerations render an age-60
rule for the defendant’s pilots reasonably necessary. To establish this reasonable necessity the
defendant must present a factual basis for its determination that medical science cannot predict on an
individual basis the likelihood that a pilot who has reached age 60 will become incapacitated during
flight. The trial judge must weigh the defendant’s evidence against that of the pilot who asserts that
medical science does have the means of measuring physiological and psychological health
independent of age and that there is no factual basis for believing that all pilots age 60 and over are
unable to perform their duties safely. Tuohy v Ford Motor Co. (1982, CA6 Mich) 675 F2d 842, 28
BNA FEP Cas 1116, 28 CCH EPD ¶32658, 63 ALR Fed 603.
Airline pilots: Federal Aviation Administration (FAA) provided rational justifications for allowing
foreign air carriers operating in United States airspace to employ pilots beyond age of 60, pursuant to
Convention on International Civil Aviation, and in temporarily allowing commuter airlines within
United States to employ pilots beyond age of 60, while scope of rule prohibiting those who have
reached age of 60 from serving as commercial airline pilots was expanded to apply to such pilots,
and therefore FAA did not abuse its discretion by treating foreign and commuter pilots differently
than domestic commercial airline pilots who sought, but were denied, exemption from “Age Sixty
Rule.” 49 U.S.C.A. § 40105(b)(1)(A, B); 14 C.F.R. § 121.383(c); Convention on International Civil
Aviation, Art. 1 et seq., 61 Stat. 1180. Yetman v. Garvey, 261 F.3d 664 (7th Cir. 2001); West’s Key
Number Digest, Aviation
122.
An applicant refused a position with a local government as a police officer or a firefighter on the
basis of age does not have an ADEA remedy unless the local government had no age limit in place
as of March 3, 1983, which was the day after the Supreme Court ruled that the ADEA could be
applied to law enforcement officers, or the local government has attempted to discriminate beyond
the limits that were in place at that time. Age Discrimination in Employment Act of 1967, §
4(j)(1)(A), 29 U.S.C.A. § 623(j)(1)(A). Kopec v. City of Elmhurst, 193 F.3d 894 (7th Cir. 1999);
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15 Am. Jur. Proof of Facts 2d 481 | 28
West’s Key Number Digest, Civil Rights
171.
City was not required to prove that age was bona fide occupational qualification (BFOQ) for position
of full-time police officer in order for its hiring plan to be “bona fide” for purposes of ADEA section
allowing local governments to refuse to hire police officers based on age if city had age limit in place
on March 3, 1983 and if refusal to hire was pursuant to bona fide hiring plan that was not subterfuge.
Age Discrimination in Employment Act of 1967, § 4(j)(1)(A), (j)(2), 29 U.S.C.A. § 623(j)(1)(A),
(j)(2). Kopec v. City of Elmhurst, 193 F.3d 894 (7th Cir. 1999); West’s Key Number Digest, Civil
Rights
171.
Police officer’s due process rights were not violated when his age discrimination action was barred
by retroactive application of ADEA amendment reinstating exemption for state and local
governments that had had age-based restrictions for police officers in place on March 3, 1983;
amendment’s specification of effective date left no doubt that Congress meant for amendment to
apply to decisions that took place in interim between expiration of exemption and enactment of
amendment, and, although Congress did not state explicitly that amendment would govern pending
lawsuits, it surely was aware of likelihood that some suits based on events occurring after expiration
of exemption had already been filed. U.S.C.A. Const.Amend. 5; Age Discrimination in Employment
Act of 1967, § 4(j)(1)(A), 29 U.S.C.A. § 623(j)(1)(A). Kopec v. City of Elmhurst, 193 F.3d 894 (7th
Cir. 1999); West’s Key Number Digest, Civil Rights
102.1.
California National Guard does not violate ADEA when it requires active duty commissioned
officers of state national guard who can no longer be called into active federal service to separate
from active duty on their sixtieth birthday, since military departments of states, when taking actions
affecting active duty officers of state national guard, are not employers within meaning of ADEA.
Frey v State (1993, CA9 Cal) 982 F2d 399, 93 CDOS 93, 93 Daily Journal DAR 213, 60 BNA FEP
Cas 958, 60 CCH EPD ¶41966.
Notwithstanding ADEA requirements, federal agencies can establish maximum age limits for
appointment as law enforcement officials under 5 USCA § 3307(d); thus, applicant challenging
Postal Service’s policy of refusing to appoint any person over age of 35 to position of inspector
lacked valid claim. Patterson v United States Postal Service (1990, CA11 Fla) 901 F2d 927, 52 BNA
FEP Cas 1473, 53 CCH EPD ¶39929.
ADEA does not restrict Federal Aviation Administration from making age a criterion for
employment when its acts in its capacity as guarantor of public safety in the air, rather than as
employer. Age Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq.
Professional Pilots Federation v. F.A.A., 118 F.3d 758 (D.C. Cir. 1997).
Mandatory electrocardiogram policy: Bona fide occupational qualification (BFOQ) exception to
prohibition against age discrimination under Age Discrimination in Employment Act (ADEA) did
not apply to transit authority’s policy of requiring all over-40 candidates for supervisory position to
submit to electrocardiogram (EKG) test as part of physical; there was no basis for believing that all
or nearly all employees above age of 40 lacked qualifications for supervisory position or that all or
nearly all over-40 employees had significant likelihood of possessing heart condition preventing
them from discharging duties of position, supervisor’s lack of physical preparedness did not pose
danger to general public, and there was no showing that use of individual testing rather than age
classification would be highly impractical or costly. Age Discrimination in Employment Act of
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15 Am. Jur. Proof of Facts 2d 481 | 29
1967, § 4(f)(1), 29 U.S.C.A. § 623(f)(1). Epter v. New York City Transit Authority, 127 F. Supp. 2d
384 (E.D. N.Y. 2001); West’s Key Number Digest, Civil Rights
171.
Involuntary retirement of physically-limited police officers who were older than 40, after six-month
period working at desk assignment and according to policy that limits light-duty work to six months,
did not violate state age-discrimination statute, where only proffered evidence of age discrimination
was conclusion that, because light-duty rule applies only to retirement-eligible that is, those with 20
years of service) officers and applicants must be at least 21, retirement-eligible officers subject to
separation at end of six-month light-duty stint would necessarily be at least 41, and where officers
were retired solely due to their physical inability to perform duties of police officer. Matos v City of
Phoenix (1993, App) 176 Ariz 125, 859 P2d 748, 131 Ariz Adv Rep 36, 2 AD Cas 1458.
Firefighters: Municipal agencies could apply age limit of 29 years to civil service examination for
position of firefighter, which was limited to current fire department employees having certain
emergency medical titles, as examination was more similar to an “open competitive” exam for which
age requirements were permitted, than to an exam for a promotion from a grade that was in direct
line, for which age requirements were prohibited. McKinney’s Civil Service Law §§ 52, subds. 1, 8,
54; New York City Administrative Code, § 15-103. Beloten v. Diamond, 276 A.D.2d 438, 714
N.Y.S.2d 491 (1st Dep’t 2000); West’s Key Number Digest, Municipal Corporations
197.
[Top of Section]
[END OF SUPPLEMENT]
§ 6. Effect of federal safety regulations
[Cumulative Supplement]
The effect of federal safety regulations on whether age is a successful BFOQ defense, in situations
involving employment practices in industries directly affecting the public safety, can clearly be seen
in cases involving the common carrier industry, particularly with respect to bus operations. In
sustaining the BFOQ defense as to the industry-wide practice of bus companies of not hiring as bus
drivers initial applicants over 40 years of age,44 the court specifically noted the effect of
governmental safety regulations, pointing out that motor bus carriers, along with all common
carriers, were charged both under considerations of public policy and by the operation of law with
exercising “an extraordinarily high standard of care for the safety of their passengers.” The court
further pointed out that, pursuant to the Interstate Commerce Act45 the Bureau of Motor Carriers
Safety had issued detailed regulations affecting drivers (among other aspects of motor carrier
passenger operation), and that these regulations prescribed minimum qualifications for the drivers of
motor vehicles and minimum standards governing the forms of employment applications, written
and road tests to be given, and physical requirements applicable to drivers. The court further noted
that under the regulations, which were minimum standards only, nothing was to prohibit a motor
carrier from requiring and enforcing “more stringent rules and regulations” relating to the safety of
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15 Am. Jur. Proof of Facts 2d 481 | 30
operation.46
Particular federal safety regulations may have an effect on the establishment of BFOQ in other cases
as well. For example, according to the Department of Labor Interpretative Bulletins relating to
ADEA,47 compulsory age limits for hiring, which are sometimes imposed by federal statutes or
regulations and which are based solely upon age, may be “possible” BFOQs under ADEA, so long as
“such conditions are clearly imposed for the safety and convenience of the public.”48 By way of
illustration, the BFOQ exception would apply to airline pilots within Federal Aviation Agency
jurisdiction, since FAA regulations do not permit an airline pilot to engage in carrier operations, as a
pilot, after reaching age 60.49
Practice Caution:
Those federal regulations which allow a federal statutory or regulatory limit also to constitute a
BFOQ do not discuss the efficacy of maximum-age regulations enacted by states.
CUMULATIVE SUPPLEMENT
Cases:
Massachusetts statute, prohibiting hiring police officers over age 32, was rationally related to
legitimate state interests of encouraging long-term commitment to police force, ensuring physical
fitness of officers, and reducing strain on pension system, and thus did not violate Equal Protection
Clause. U.S.C.A. Const.Amend. 14; M.G.L.A. c. 31, § 58A. Donahue v. City of Boston, 371 F.3d 7,
93 Fair Empl. Prac. Cas. (BNA) 1618, 85 Empl. Prac. Dec. (CCH) P 41697, 150 Lab. Cas. (CCH) P
59873 (1st Cir. 2004), cert. denied, 2004 WL 2072776 (U.S. 2004); West’s Key Number Digest,
Mandamus
176(3.1).
Relying on rules adopted by the Federal Aviation Administration establishing a mandatory
retirement age of sixty for pilots of commercial airlines, the court in Rasberg v Nationwide Life Ins.
Co. (1987, SD Ohio) 671 F Supp 494, 43 BNA FEP Cas 1742, upheld an insurance company’s
policy of mandatory retirement at 62 for pilots employed by the company to transport company
executives, employees and clients. In addition, the court relied on the testimony of a scientist with
the National Aeronautic and Space Administration who established that there was a high degree of
congruity between the insurance company’s operations and those of commercial airlines.
[Top of Section]
[END OF SUPPLEMENT]
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15 Am. Jur. Proof of Facts 2d 481 | 31
§ 7. BFOQ pleading and practice
[Cumulative Supplement]
First and foremost, counsel for both parties should be aware that there can be no liability for
violation of ADEA if the complaining party is not within the age bracket which is protected under
the Act, namely, the ages 40 through 65. In this regard, an employee cannot sue prospectively while
he or she is under the age of 65 and complain of something which will happen only after the
employee has attained 65.50
Furthermore, no violation may be considered if the Department of Labor did not attempt to conciliate
the case before bringing suit. Hence counsel should consider whether the Department of Labor’s
conciliatory efforts might have been deficient either in quality or quantity, so as to have amounted to
no conciliation at all.51 As to the important matter of Department of Labor conciliation, litigation has
sometimes revolved around (1) whether the Department of Labor made a sufficient attempt to elicit
voluntary compliance with ADEA, and (2) whether the Department’s efforts, even if extensive,
could have been expected reasonably to secure such compliance; in this regard, at a minimum, the
Department is expected to make “strong, affirmative attempts” including “exhaustive affirmative
action” to achieve conciliation before legal action can be begun.52
The stronger the evidence that age is a BFOQ in the particular industry, and specifically as to the
particular job position, the greater the chances of the BFOQ defense. By way of illustration, in one
carefully prepared case, in which the BFOQ defense was sustained on the grounds that age was
necessary in the interests of public safety, clear and compelling medical and other expert testimony
was given that:
(1)
persons undergo degenerative physical and sensory changes brought on by the aging process
which begins in the late thirties;
(2)
the work which new bus drivers would be performing was particularly physically and mentally
demanding;
(3)
the employer’s safest driver statistically was the one who had between 16 and 20 years of driving
experience and was between 50 and 55 years of age, an optimum blend of age and experience
which could never be attained by applicants over 40 years of age; and
(4)
despite the offsetting benefits of increased driving experience, the driver accident rate begins to
increase at age 55, which was consistent with a report of the Bureau of Motor Carrier Safety
of the United States Department of Transportation.53
In presenting the case for establishment of a valid BFOQ defense, counsel is reminded to emphasize
the importance of safety in the industry in question.54 Safety will be emphasized by the court in any
industrial area where safety to fellow employees or to the public at large is involved; where
sufficient statistical safety information is presented, the court should be asked to hold that the
employer must be afforded substantial discretion in setting specific standards which, if they err at all,
should err on the side of preservation of life and limb.55
Specifically, the employer should present, where possible, compelling (1) statistical evidence
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15 Am. Jur. Proof of Facts 2d 481 | 32
indicating that in his industry there is a correlation between age and accident frequency, and (2)
expert medical and other expert testimony to prove that, as to the particular tasks required in the
industry under consideration, medical science cannot accurately separate chronological from
functional or physiological age and that even the most refined examinations could not detect the
changes of age, and that, therefore, (3) the age cutoff required is not an arbitrary cutoff but is based
on a degree of reasonable medical certainty that it would be impossible adequately and safely to
screen persons over that age.56
Caution:
It is insufficient in establishing the BFOQ defense for the employer to show simply that there is a
correlation between age and accident frequency. The employer must also present evidence to show
that medical science cannot adequately ascertain which individuals over a particular age would or
would not be able to perform the functions required.57
While this article concerns specifically the defense of BFOQ, counsel is advised that in any litigation
under ADEA, there are a variety of potential defenses to be considered. For example, although the
burden is on the employer to establish the BFOQ defense,58 in any ADEA case the initial burden is
on the plaintiff to first come forward and demonstrate that there has, in fact, been a discriminatory
action, and only then does the burden shift to the employer. In this regard, defendants have
sometimes successfully defended against an ADEA suit on the grounds of insufficient evidence on
the part of plaintiff that ADEA had been prima facie violated.59 So, too, if the government fails to
introduce evidence that the employer either had actual notice of the age of the employee or any
reason to be aware of such age, dismissal has sometimes resulted in ADEA cases on the grounds that
discriminatory motive was not proven.60
Perhaps most important, ADEA specifically exempts employer activities which were taken for
reasons other than age;61 hence, legitimate reasons for termination of employees despite the fact that
they were between 40 and 65 years of age was found, for example, where an employee was
repeatedly tardy over a two-year period,62 where the employee was not capable of working in the
employer’s refrigeration plant because he had not gone through the normal “break in” period,63 and
where employees were terminated following a plant reduction and shut-down of a portion of the
operations.64
Practice Observation:
Counsel is advised that it has been held not to be a sine qua non for an employer to show that an
employee’s immediate supervisor was consulted in determining the employee’s ability or
productivity, nor that an employee was given an opportunity to consult with those in
decision-making positions and to comment on their evaluation of him before the employee may
legitimately be terminated for reasons other than age.65
Practice Observation:
An employer contemplating the discharge of an employee within the protected age group is advised
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to state at the time of termination the reason showing good cause for the discharge, and to do so in a
formal letter of discharge. Failure to do so has resulted in a court concluding, where the plaintiff
made out a prima facie case of age discrimination, that good cause was lacking.66 Furthermore,
performance appraisals setting forth in writing a supervisor’s evaluation of the discharged employee,
based on definite and valid criteria, have been held important for purposes of considering the
question of good cause for dismissal,67 but appraisals which have been written after the decision to
fire the employee have sometimes been discounted as self-serving.68
Counsel for plaintiff who is contemplating bringing a suit for discrimination under ADEA, is advised
that where discrimination appears to be wide-spread and the client may have reprisal taken against
him or her for communicating with the Secretary of Labor, a class action under 29 USCA § 216(b),
should be attempted, provided that each of the plaintiffs gives a written consent to be a party to the
action.69
CUMULATIVE SUPPLEMENT
Cases:
Standard of review: Court of appeals will not subject jury verdicts in age discrimination cases to
stricter scrutiny than is applicable in other cases, despite defendant’s contention that juries tend to be
especially sympathetic to age discrimination plaintiffs; suggestion that scope of appellate review
should vary with judges’ assessment of probable direction of jury bias has no basis in established
law. EEOC v G-K-G, Inc. (1994, CA7 Ill) 39 F3d 740, 66 BNA FEP Cas 344.
Former pilots who challenged settlement agreement because they were not parties to agreement and
received no benefit from it had no claims, because EEOC suit under ADEA extinguishes right of
private litigants to bring suit. EEOC v Pan American World Airways, Inc. (1990, CA9 Cal) 897 F2d
1499, 52 BNA FEP Cas 990, 52 CCH EPD ¶39698, cert den (US) 112 L Ed 2d 31, 111 S Ct 55, 53
BNA FEP Cas 1512, 54 CCH EPD ¶40258.
Strict construction of exception: Bona fide occupational qualification (BFOQ) exception to
ADEA’s general prohibition of age discrimination is extremely narrow, and for it to apply, employer
must show that qualification was reasonably necessary to essence of its business, and then employer
must justify use of age as proxy for that qualification by either showing that there is factual basis for
believing that all or substantially all persons over age qualification would be unable to perform
duties of job involved or that it would be impossible or highly impractical to insure by individual
testing that its employees will have necessary qualifications. Age Discrimination in Employment Act
of 1967, § 4(f)(1), 29 U.S.C.A. § 623(f)(1). Camacho v. Puerto Rico Ports Authority, 254 F. Supp.
2d 220 (D.P.R. 2003); West’s Key Number Digest, Civil Rights
168.1.
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§ 7.5. Arbitration of ADEA
[Cumulative Supplement]
CUMULATIVE SUPPLEMENT
Cases:
Validly age-disqualified commercial airline captains’ ADEA action challenging airline’s policy of
not permitting them to downgrade to flight officer after age 60 had to be stayed pending referral to
arbitration, under Railway Labor Act’s grant of exclusive jurisdiction to arbitral boards to resolve
questions involving collective bargaining agreements (CBAs); potentially dispositive issue of
whether age-disqualified captains could be entitled to bump incumbent flight officers depended on
whether CBA between pilots’ union and airline entitled more senior pilots disqualified from captain
positions for reasons other than age to bump less senior pilots from flight officer positions. 9
U.S.C.A. § 3; Age Discrimination in Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et
seq.; Railway Labor Act, §§ 1 et seq., 45 U.S.C.A. §§ 151 et seq. Tice v. American Airlines, Inc.,
288 F.3d 313 (7th Cir. 2002); West’s Key Number Digest, Labor Relations
416.8.
Federal Arbitration Act (9 USCA §§ 1 et seq.) covers all employment agreements, except those
dealing with workers employed in transportation industries; thus, claims under ADEA are not
exempt from arbitration thereunder. Crawford v West Jersey Health Sys. (1994, DC NJ) 847 F Supp
1232, 64 BNA FEP Cas 853.
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[END OF SUPPLEMENT]
§ 8. Elements of damages; guide and checklist
[Cumulative Supplement]
Where the age of the employee or job applicant is found to constitute a bona fide occupational
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15 Am. Jur. Proof of Facts 2d 481 | 35
qualification reasonably necessary to the normal operation of the employer’s business under
§ 4(f)(1) of the Age Discrimination in Employment Act,70 the Act has not been violated,
hence there are no damages recoverable. On the other hand, where the facts do not reveal that
age was a bona fide occupational qualification, and the Act has been violated, damages are
recoverable.71
Counsel is advised that a recent federal decision has held that an employee who has been forced
into retirement contrary to the provisions of ADEA cannot recover damages for pain and
suffering under the Act.72
□ Checklist:
Testimony as to the following elements of damages, among others, should be elicited, when
applicable, from the plaintiff and its witnesses in an action for damages and other relief
for violation of the Age Discrimination in Employment Act:
□
Wages or salary of job connected with wrongful discharge or refusal of application
□
Other specific monetary benefits of job, such as pension, vacation and medical benefit rights
□
Period of time from wrongful discharge or refusal of application to trial date
□
Overtime compensation of job for such period, if any
□
Value of total monetary benefits received by plaintiff from other jobs for such period (credit)
□
Value of services of plaintiff’s attorney74
CUMULATIVE SUPPLEMENT
A.L.R. Library
Liability of Employer, Supervisor, or Manager for Intentionally or Recklessly Causing Employee
Emotional Distress—Age Discrimination, 11 A.L.R. 6th 447
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15 Am. Jur. Proof of Facts 2d 481 | 36
Cases:
Amounts awarded to plaintiff for backpay and liquidated damages, as result of suit brought against
former employer under ADEA, are, for tax purposes, excludable from gross income. Burns v
Commissioner (1994) 65 BNA FEP Cas 536, TC Memo 1994-284, 67 CCH TCM 3116, 94 TNT
120-13.
ADEA does not allow compensatory damages for pain and suffering; modeled after the FLSA,
remedy provisions of the ADEA allow awards for only those pecuniary benefits connected to job
relation, including unpaid wages or overtime compensation, and aside from monetary relief, federal
courts may also grant such legal or equitable relief as may be appropriate. Fair Labor Standards Act
of 1938, § 16(b), 29 U.S.C.A. § 216(b); Age Discrimination in Employment Act of 1967, § 7(b), 29
U.S.C.A. § 626(b). Collazo v. Nicholson, 535 F.3d 41, 103 Fair Empl. Prac. Cas. (BNA) 1448, 91
Empl. Prac. Dec. (CCH) P 43261 (1st Cir. 2008); West’s Key Number Digest, Civil Rights
1560.
In calculating back pay resulting from employer’s ADEA violation, jury reasonably used as baseline
sales employee’s peak earnings rate rather than lower rate he was earning at time of termination,
inasmuch as jury reasonably could have determined that employer engaged in scheme to replace its
aging sales force with younger one, that scheme began with employer’s refusal to assign employee to
lucrative territory to reduce his earnings rate before terminating him, and that employee would have
attained higher earnings rate levels but for employer’s ADEA violations. Age Discrimination in
Employment Act of 1967, §§ 2 et seq., 29 U.S.C.A. §§ 621 et seq. Palasota v. Haggar Clothing Co.,
499 F.3d 474, 101 Fair Empl. Prac. Cas. (BNA) 769, 90 Empl. Prac. Dec. (CCH) P 42945 (5th Cir.
2007), order clarified, (Sept. 27, 2007); West’s Key Number Digest, Civil Rights
1574.
Under the ADEA, liquidated damages are only payable for “willful” violations; a violation is
“willful” if the employer knew or showed reckless disregard for the matter of whether its conduct
was prohibited by the ADEA. Age Discrimination in Employment Act of 1967, § 9(b), 29 U.S.C.A.
§ 626(b). Tyler v. Union Oil Co. of California, 304 F.3d 379 (5th Cir. 2002); West’s Key Number
Digest, Civil Rights
407.
In ADEA cases, backpay period ends when a plaintiff begins earning more at his new job then he did
at the job from which he was discharged. Stephens v C.I.T. Group/Equipment Financing, Inc. (1992,
CA5 Tex) 955 F2d 1023, 58 BNA FEP Cas 714, 58 CCH EPD ¶41377.
Award of front pay in an ADEA case is within the trial court’s equitable discretion. Front pay is a
particularly appropriate where an employer dislikes an employee for reasons independent of the
employee’s membership in the protected class. In such hostile circumstances an award of front pay
will be sustained even as to an employee who seeks reinstatement because of the burden placed on
the court by the need to supervise a coerced employment relation. Since both entitlement to front pay
and the amount thereof are equitable issues the court can submit them to the jury for advice but is not
bound by the jury’s findings. Price v Marshall Erdman & Assoc., Inc. (1992, CA7 Wis) 966 F2d
320, 59 BNA FEP Cas 462, 59 CCH EPD ¶41612.
Mitigation of damages: Burden is on defendant employer to show that ADEA plaintiff has not
fulfilled requirement that he mitigate damages by using reasonable efforts to obtain other
employment after termination. Kehoe v Anheuser-Busch, Inc. (1996, CA8 Mo) 96 F3d 1095, 71
BNA FEP Cas 1749.
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In ADEA action, mitigation of damages is affirmative defense, and as such, burden of proving
failure to mitigate by plaintiff falls on defendant. Conway v Hercules, Inc. (1993, DC Del) 831 F
Supp 354.
Former employer bears burden of proving that former employee who brought age discrimination
action failed in whole or in part to mitigate his damages, because mitigation of damages is
affirmative defense; mitigation can be shown by evidence that employer offered employee job
substantially equivalent to his former position, or that other substantially equivalent positions were
available to plaintiff and he failed to use reasonable diligence in attempting to secure such position.
Conway v Hercules, Inc. (1993, DC Del) 831 F Supp 354.
Compensatory damages are within remedial structure of ADEA; however, punitive damages are not
recoverable. Eggleston v South Bend Community Sch. Corp. (1994, ND Ind) 64 BNA FEP Cas 999.
ADEA plaintiff who was awarded damages for economic loss and liquidated damages was not
entitled to reinstatement and front pay, since liquidated damages furnished fully appropriate relief;
plaintiff’s future economic loss was highly problematic given deterioration in former employer’s
business and growing success of plaintiff’s own business. Shove v E.J. Prescott, Inc. (1994, DC Me)
3 AD Cas 528, 65 BNA FEP Cas 96.
Although combination of backpay and reinstatement is preferred remedy in ADEA cases, front pay
is proper when reinstatement is not feasible; reinstatement may not be feasible if there is no position
available (either same position plaintiff had prior to discriminatory action or substantially
comparable position) at time of judgment, or if relationship between parties has been so damaged by
animosity that reinstatement is impracticable. Zampino v Supermarkets Gen. Corp. (1993, ED Pa)
821 F Supp 1067, 61 BNA FEP Cas 1310.
Payments in settlement of age discrimination claim representing back pay and liquidated damages
are excludable from gross income since settlement of age discrimination claim is settlement of
tort-type claims. Bennett v United States (1994) 30 Fed Cl 396, judgment rev’d, 60 F3d 843.
Punitive damages award of $390,000, which was awarded to employee who prevailed on his
age-related hostile work environment claim under District of Columbia Human Rights Act
(DCHRA), was not so grossly excessive as to violate due process, even though punitive damages
award was 39 times employee’s $10,000 compensatory damages award. U.S.C.A. Const.Amend. 14;
D.C.Code 1981, §§ 1-2501 et seq. Daka, Inc. v. Breiner, 711 A.2d 86 (D.C. 1998).
[Top of Section]
[END OF SUPPLEMENT]
§ 8.5. Costs and attorney’s fees
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15 Am. Jur. Proof of Facts 2d 481 | 38
[Cumulative Supplement]
CUMULATIVE SUPPLEMENT
Cases:
ADEA, which provides for attorney’s fees only to prevailing plaintiffs, does not preempt application
of Equal Access to Justice Act (28 USCA § 2412) to ADEA case brought by EEOC. EEOC v O & G
Spring & Wire Forms Specialty Co. (1994, CA7 Ill) 38 F3d 872, 65 BNA FEP Cas 1823.
Expert witness fees incurred in ADEA case cannot be recovered as part of reasonable attorney’s fee
and costs. James v Sears, Roebuck & Co. (1994, CA10 Utah) 21 F3d 989, 18 EBC 1001, 64 BNA
FEP Cas 886, 64 CCH EPD ¶43023.
Since the ADEA requires private plaintiffs to seek administrative remedies prior to bringing suit, an
attorney’s fee award under the act may properly include fees incurred in preliminary administrative
proceedings. Whalen v Unit Rig, Inc. (1992, CA10 Okla) 974 F2d 1248, 59 BNA FEP Cas 1368, 59
CCH EPD ¶41755, 24 FR Serv 3d 195.
Expert witness fees incurred by plaintiff in ADEA action cannot be recovered as part of reasonable
attorney’s fee and costs of action, as provided for in FLSA (29 USCA § 216(b)), and made
applicable to ADEA actions by virtue of 29 USCA § 626. Gray v Phillips Petroleum Co. (1992,
CA10 Kan) 971 F2d 591, 59 BNA FEP Cas 833, 59 CCH EPD ¶41643.
In computing attorney fees in ADEA cases, court may consider: (1) time and labor required; (2)
novelty and difficulty of questions; (3) skill required to perform legal services properly; (4)
preclusion of other employment by attorney because of his acceptance of case; (5) customary fee; (6)
whether fee is fixed or contingent; (7) any time limitations imposed by client or circumstances; (8)
amounts involved and results obtained; (9) experience, reputation and ability of attorneys; (10)
undesirability of case; (11) nature and length of professional relationship with client; and (12)
awards in other similar cases. Age Discrimination in Employment Act of 1967, §§ 2 et seq., 29
U.S.C.A. §§ 621 et seq. Baralt v. Nationwide Mut. Ins. Co., 86 F. Supp. 2d 31 (D.P.R. 2000); West’s
Key Number Digest, Civil Rights
418.
Contingent fee arrangement between ADEA plaintiff and his attorney, which applied to percentage
of all sums recovered (including statutory attorney’s fees), was not repugnant to federal law.
Williamson v Belovich (1993, Lucas Co) 84 Ohio App 3d 628, 617 NE2d 786, 62 BNA FEP Cas
1686, motion overr 66 Ohio St 3d 1510, 613 NE2d 1048.
[Top of Section]
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[END OF SUPPLEMENT]
II. Proof That Age Was a Bona Fide Occupational Qualification—Common Carrier
A. Elements of Proof
§ 9. Guide and checklist
[Cumulative Supplement]
The following facts and circumstances, among others, tend to establish that age is a bona fide
occupational qualification reasonably necessary to the normal operation of a bus company,
within the meaning of § 4(f)(1) of the Age Discrimination in Employment Act, so that the
company can refuse to consider driver applicants of over a particular age without violating the
Act:
□
Qualifications of expert witnesses [§§ 10– 11, 20]
□
Age as affecting driving ability—Generally [§ 12]
□
—Visual degeneration [§ 13]
□
—Cardiovascular and other physiological degeneration [§ 14]
□
—Psychological changes [§ 15]
□
Gradualness of age as affecting driving ability—Generally [§ 16]
□
—Difficulty of examinations to detect gradual age deterioration after particular age [§ 17]
□
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15 Am. Jur. Proof of Facts 2d 481 | 40
Compliance with federal safety regulations as not sufficient [§ 18]
□
Chronological age standard as reasonable in terms of public safety [§§ 19, 24]
□
Importance of physical abilities of driver [§ 21]
□
Particular pressures on intercity bus drivers [§ 22]
□
Successful industry safety record under present age requirements [§ 23]
[In the following proof, it is assumed that the defendant is an employer within the meaning of the
federal Age Discrimination in Employment Act; that all other prerequisites of bringing suit
by the Department of Labor have been met; and that the Department of Labor has met its
burden of showing that a prima facie case of discrimination under ADEA has been met, in
that the defendant-interstate bus company has admitted that it refuses to consider
employment applications for intercity bus drivers of persons over 40 years of age. It is
further assumed that the Department of Labor, on behalf of otherwise qualified job
applicants for the position of intercity bus drivers, has sought permanently to enjoin the
defendant-bus company from denying employment to individuals within the age group
protected by the Act. The defendant-bus company is asserting specifically the defense that
such refusal to consider applicants over the age of 40 was done pursuant to the BFOQ
exemption provided in § 4(f)(1) of ADEA.] 75
CUMULATIVE SUPPLEMENT
Cases:
Discrimination inferred from falsity: It is permissible for trier of fact in employment
discrimination case to infer the ultimate fact of discrimination from the falsity of the employer’s
explanation; proof that defendant’s explanation is unworthy of credence is simply one form of
circumstantial evidence that is probative of intentional discrimination, and it may be quite
persuasive. Age Discrimination in Employment Act of 1967, § 4(a)(1), 29 U.S.C.A. § 623(a)(1);
Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e-2(a)(1). Reeves v. Sanderson Plumbing
Products, Inc., 120 S. Ct. 2097, 147 L. Ed. 2d 105 (U.S. 2000); West’s Key Number Digest, Civil
Rights
377.1.
[Top of Section]
[END OF SUPPLEMENT]
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B. Testimony of Medical Expert
§ 10. Qualification in industrial medicine—Generally
[After introduction and identification of witness]
Q.
What is your occupation or profession?
A.
I am a physician.
Q.
Could you please relate to us, doctor, your academic background?
A.
Yes. I received a bachelor of science degree from University in and earned my doctor of
medical science degree in and my doctor of medicine in from that same university.
Q.
Have you been actively engaged in the medical profession since that time, doctor?
A.
Yes. After interning at Hospital from to , I entered the private practice of medicine in and
have been so occupied since that time.
Q.
Have you specialized in a particular field of medicine?
A.
Yes. I am an internist and cardiologist, and I have been engaged in industrial medicine, particularly
in relation to commercial-vehicle drivers.
Q.
In addition to your private practice in the area which you have indicated, are you engaged in other
medical activities as well?
A.
Yes. I am an associate clinical professor of medicine at University College of Medicine; a visiting
physician at Hospital; and attending physician at Hospital and Hospital in [city].
Q.
Do you hold any certifications in areas of specialization in the medical field?
A.
Yes. I am a diplomate of the American Board of Internal Medicine; a fellow of the American
College of Physicians; a fellow of the American College of Cardiology; a fellow of the Academy
of Medicine; a fellow of the American Diabetes Association; a member of the American Medical
Association; and I belong to numerous other medical organizations which I can specify if you so
desire.
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§ 11. Qualification in industrial medicine—Expertise relating to commercial vehicle drivers
Q.
Doctor, you testified earlier that your specialty was industrial medicine with particular emphasis on
commercial-vehicle drivers. Specifically, what has been your experience, if any, with the medical
aspects of the transportation industry?
A.
From an occupational standpoint, I was medical director of the [unit of government] Transit
System, a city transportation system, from until . I was also medical director of the Parcel
Service, a national corporation, from until . I was medical director of the Transportation
Company from until . At present, I am medical director of the Public Utility Company in
[state], which employs [number] drivers on a statewide basis. I have also served as a special
medical consultant to the bus lines and the long distance moving van line corporation since .
Q.
Do you serve on any governmental or private committees or organizations in the field of industrial
transportation safety as it pertains to commercial drivers?
A.
Yes. I have held memberships in various committees and am presently chief medical consultant to
the Motor Transport Conference of the National Safety Council. I am chairperson of the Committee
on the Medical Aspects of Driver Safety of the Industrial Medical Association and am a former
member of the Committee on Medical Aspects of Crash Injuries and Deaths of the American
Medical Association. I am a former member of the Board of Directors of the American Association
of Automotive Medicine and am a member of the Medical and Health Committee of the National
Safety Council. Furthermore, I am a former member of the Committee on Health, Medical Care and
Transportation of the Advisory Council of the President’s Committee on Traffic Safety.
Q.
Have you been consulted by any agencies of government in the area of your expertise?
A.
Yes. I have been consulted by the Interstate Commerce Commission on the development of its
medical examination for driver qualifications and have been a consultant to [state] in the
development of a program of medical examination for driver licensing.
Q.
Have you written published articles or books in the field of industrial safety as it relates to
commercial drivers?
A.
I have published approximately papers in medical journals, of which of them are directly related
to motor vehicle accidents and commercial driver safety. In addition to that, I have published
chapters in approximately books on the medical problems of motor vehicle accidents.
Q.
Doctor, in your capacity as medical director for both the [unit of government] Transit System and
the Parcel Service, what duties did you medically perform?
A.
The health and accident rates of each of these companies were directly under my jurisdiction. I
developed a medical department consisting, in each of these companies, of approximately 10 to 12
people. These were other physicians, nurses, and secretaries. We examined and took care of the bus
drivers at the Transit System. There were bus drivers, and there were about the same number at
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15 Am. Jur. Proof of Facts 2d 481 | 43
the Parcel Service.
Q.
Could you give us some idea as to the size and scope of operations of the Parcel Service in this
country?
A.
It conducts operations throughout the entire country.
Q.
Did your responsibility encompass employees of the Parcel Service throughout the country?
A.
Yes. My responsibility was the medical care of people throughout the country, particularly located in
the area.
Q.
Doctor, in terms of years, how long have you been actively engaged in the field of automotive, or
commercial driver, medicine?
A.
Since . That would be years.
Counsel:
Your Honor, we tender Dr. [witness] as an expert in the field of automotive medicine for further
examination.
The Court:
Granted.
§ 12. Age as affecting driving ability—Generally
Q.
Doctor, could you relate to us, first of all, as a result of your experience and knowledge in the field
of automotive medicine, the significance, in your opinion, of the driver as it relates to highway
accidents?
A.
It is my opinion that the driver’s responsibility for accidents is approximately 85 percent.
Q.
What other factors, other than the driver, are typically involved in an accident?
A.
The vehicle itself, the road, and road conditions.
Q.
Could you tell us initially, doctor, what happens from a medical standpoint as a person grows older,
between the ages of 40 and 64?
A.
As a person grows older, he develops varying aging processes, which consist of degenerative
changes of various organs. As a result of these, he ultimately develops a certain disability and
deterioration. These changes occur at different times in different individuals; however, for the most
part, they occur at approximately the same age as a rule. Some people may have fewer changes at an
older age, while some people may very well develop changes at a younger age.
Q.
Doctor, what effect, if any, does a person’s progressive age have upon the driving ability of the
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15 Am. Jur. Proof of Facts 2d 481 | 44
person, particularly as it pertains to a commercial driver?
A.
Primarily, all of the various bodily and psychological changes which occur as a person gets older
affect the physiological ability of an individual to do his work. Most of the changes result in a
decrease in reaction time to events, which could be a factor in the development of an accident. In this
regard, fatigue is particularly important.
Q.
Please explain.
A.
As people become older, there is a marked increase in the fatigue which occurs. The person—the
driver—is less able to stay awake or drive as continuously as he should. In other words, there is
decreased stamina. There is also an impairment in most of the sensory reactions, particularly with
vision. Sometimes with hearing. Furthermore, a number of studies have been made which indicate
that increasing age is accompanied by a decline in visual acuity, a deterioration of psychomotor
skills as early as 35 or 40 years, and a decreasing ability to interpret new stimuli.
Q.
Do these factors make the driver less capable of driving safely?
A.
Very definitely.
Note: Burden of proof.
Counsel representing the employer is reminded that the burden of proving that age is a BFOQ within
the meaning of § 4(f)(1) of ADEA rests on the party asserting that defense. Usery v Tamiami Trail
Tours, Inc. (CA5 Fla) 531 F2d 224; Aaron v Davis (DC Ark) 414 F Supp 453, reh den (DC Ark) 424
F Supp 1238. It is to be noted in this regard, however, that the burden of proof on the employer
claiming a BFOQ may be somewhat lighter where the employer bases the need for the qualification
on the grounds of public safety, as in the instant proof, the theory being that in such a case the
court’s concern transcends that of the individual job applicant and includes consideration of the
safety of the general public. Hodgson v Greyhound Lines, Inc. (CA7 Ill) 499 F2d 859, cert den 419
US 1122, 42 L Ed 2d 822, 95 S Ct 805. Cross-reference: As to meeting the burden of proof, see § 4,
supra.
§ 13. Age as affecting driving ability—Visual degeneration
Q.
Specifically, doctor, what are these changes which occur in a person as age increases?
A.
Well, the changes are involved in different organs. One of the most important and significant
changes, from the standpoint of my field, namely automotive safety as it relates to
commercial-vehicle drivers, is that there are marked visual changes as a person gets older. Certainly,
night vision decreases as one gets older. Also, there is an impairment in the glare tolerance or
recovery. In other words, that means that, if you stare or have a bright light shine in your face, the
recovery time becomes impaired in an older individual.
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Q.
Is there a change in the visual field of a person as age progresses?
A.
Yes, there is a reduction in the visual field as a person grows older. The very important thing is that
as you get older, there is an increased need for better lighting in order to interpret what you see. As
people get older, the need for light becomes greater.
Q.
How would these changes affect a commercial driver, if at all?
A.
The visual changes which I have mentioned result primarily in the older person needing to have
more time to interpret what he or she sees. When you are younger, you could see an automobile
crossing the road on which you were driving in a fraction of a second. As you get older, however, the
time that is necessary to interpret what you see—such as a car or person crossing in front of
you—takes longer. In addition to that, a person can develop physical or organic changes, such as a
cataract. They may also develop glaucoma and impaired vision and a need for eyeglasses.
§ 14. Age as affecting driving ability—Cardiovascular and other physiological degeneration
Q.
Doctor, do any other types of changes occur as an individual’s age progresses?
A.
Yes. Visual ability and ability to interpret what one sees is only one of the many changes which
occur as a person gets older. The most important changes which occur to an individual are those to
the cardiovascular system in which the patient—or the driver—develops arteriosclerotic changes in
the various blood vessels in the body, particularly the heart, the brain, the kidney, the peripheral
vascular blood vessels, and the individual develops hypertension frequently.
Q.
Do any other changes take place in the individual?
A.
Yes. There are neurological or neuro-muscular changes which occur. Some people, as they get older,
develop tremor, Parkinson’s Disease. There may also be disease of the joints and muscles, arthritic
changes, and sometimes deformity.
§ 15. Age as affecting driving ability—Psychological changes
Q.
Are there any other types of changes which occur to the individual as he or she gets older?
A.
As well as the various forms of physiological and organic degeneration which I have outlined in
broad terms, there are certain psychological and emotional changes—changes in the
personality—which may occur in the individual who gets older.
Q.
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15 Am. Jur. Proof of Facts 2d 481 | 46
Please explain.
A.
Persons sometimes become more irritable as they grow older. As pertains to my field of specialty,
for example, we have a great many of the older bus drivers who complain of being irritated by the
passengers. Without going into a full clinical explanation from a psychiatric standpoint, I might
simply say that the older person or driver frequently does not handle or tolerate stress as well and
does not as readily cope with the day-to-day, and sometimes minute-to-minute, relationships with
passengers, pedestrians, or other drivers.
§ 16. Gradualness of age as affecting driving ability—generally
Q.
You have testified, doctor, as to the various ways in which a person’s increasing age affects the
ability to drive safely. Are you able to explain to us the nature of these changes; specifically, whether
such changes in driving ability occur slowly or quickly?
A.
Yes, I am.
Q.
Please do so.
A.
All of these things to which I have testified create various changes in the physiological and
psychological ability of the driver to do his work, and this is a slow, gradual change. We must
actually characterize this change as insidious since it cannot be detected easily. These changes may
occur very, very slowly and may not be detectable for a long time.
§ 17. Gradualness of age as affecting driving ability—Difficulty of examinations to detect
gradual age deterioration after particular age
Q.
Doctor, can’t a physical examination detect these changes resulting from age?
A.
Yes, somewhat. But there are many results of age deterioration which we call subclinical. In other
words, there are conditions which are present, but which we are not able to detect. Here we are not
talking about Parkinson’s Disease, a heart attack, or a cataract. What we are talking about are very
subtle, continuous, and virtually undetectable changes in the individual.
Q.
Please explain, doctor.
A.
In many instances, no matter how carefully the examinations may be, the physician or the medical
examiner will be unable to detect certain changes, for example, in vision, and certain changes in the
myocardium cannot be detected. The electrocardiogram, for example, may not pick up certain
changes until a person has had an actual myocardial infarction.
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Q.
Can you provide further examples, doctor?
A.
A physician would also be unable to determine fatigue—the stamina which a driver may not have,
yet which he would so vitally need. The doctor would be unable to detect certain psychological
changes, even if the driver were examined by a psychiatrist. What should be understood is that there
are many things in the aging process which can be picked up by a careful examination, but there are
also many things which even the most detailed examination cannot possibly determine. Another
point for consideration is that it is not possible to monitor a person—a driver—continuously.
Periodic examinations could be performed annually or even biannually, but it would be impossible at
a daily interval to monitor the driver.
§ 18. Compliance with federal safety regulations as not sufficient
Q.
Doctor, in relation to the testimony which you have just given, are you familiar with the physical
examination of driver forms which are filled out by the examining physician for a Department of
Transportation certificate?
A.
Yes, I am very familiar with this examination and with those forms.
Q.
Can the various aspects of the aging process, which you have testified affect driving ability, be
ascertained, measured, or recorded as a result of the typical Department of Transportation physical
examination?
A.
Well, there are some types of degeneration from the aging process which could be determined on the
basis of this examination. However, there are many things which are subclinical and which could not
be detected on the basis of this examination, particularly the emotional changes.
Q.
Please explain.
A.
There is nothing on these Department of Transportation examinations which would indicate, except
in the history, whether a person had a neurosis. A driver might not even realize that he or she has it.
The federal examination would not pick it up. Furthermore, it would not pick up certain changes in
vision, glare resistance, or the need for more light, or the need to measure the greater amount of time
necessary to interpret what one sees; this is vitally important for a driver, let alone a commercial
driver.
Q.
Would the Department of Transportation examination fail to pick up any other age difficulties?
A.
Yes. This examination could not determine the amount of fatigue that a driver would have or the
amount of stamina.
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§ 19. Chronological age standard as reasonable in terms of public safety
Q.
Doctor, from a medical standpoint, does the probability of undetectable physiological and
psychological impairment to driving ability increase with one’s age?
A.
Yes, it does.
Q.
Are you familiar with the term “functional age”?
A.
Yes.
Q.
What meaning does that term have to you?
A.
The term “functional age” is generally interpreted as the ability of an individual to perform the
functions that he is required to do at a given age.
Q.
Would one’s functional age depend on the function which is required of him?
A.
Yes. In other words, it would indicate to me, is this individual capable of performing certain duties
that he is required to do?
Q.
Now, in that regard, and from a medical standpoint, in examining applicants for the position of a bus
driver, are you able to measure the functional age or functional ability of that applicant with any
reasonable degree of medical certainty?
A.
We are able to measure the functional age, as I said previously, to some extent, but we could not
measure it entirely for the reasons to which I have testified.
Q.
You have related to us earlier the various aspects of the aging process and how they affect one’s
ability to drive. In your experience, in studies throughout these many years in the field of automotive
medicine and automotive safety, would you say that the older driver tends to compensate in his
driving habits as a result of the natural aging process?
A.
Yes. The driver, as he gets older, learns certain things after a period of time, and experience helps the
driver to learn how to compensate for some deficiencies.
Q.
In what respect to they compensate in their actual driving habits?
A.
What happens is that the average driver would prefer, when he gets older, not to drive at night
because he would have difficulty in seeing or in recovery from the oncoming headlights. He would
prefer not to drive in bad weather, and he would also drive more slowly and more cautiously. As a
matter of fact, this has sometimes become a problem in that an older driver, because of his actual
carefulness, may very well cause an accident by driving too slowly.
Q.
What age areas are we talking about here?
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A.
These problems can occur at almost any age from 40 or 45 years on. We are not simply talking about
the elderly; it varies in different individuals.
Q.
In your experience, particularly with the commercial vehicle aspect of automotive medicine, is the
commercial-vehicle driver able to compensate in his driving habits in the same way and to the same
extent that the average automobile driver does?
A.
Well, there are different problems.
Q.
Please explain.
A.
The commercial-vehicle driver can compensate with experience, and it has been learned that
commercial-vehicle drivers with four, five, and six years of experience become less likely to become
involved in an accident after this period of experience than they did before. This is the result of their
ability to compensate for the aging process that occurs. However—and this is the problem—there is
a point at which the compensation is overcome by the disability. Of course, the commercial-vehicle
driver, different than the civilian driver, has other requirements. The civilian driver can choose the
time in which he drives. If he becomes fatigued, he can stop and get a cup of coffee on the road, and
he does not have to drive in bad weather.
Q.
The commercial driver does not have this choice?
A.
No. The commercial-vehicle driver, particularly the bus driver, does not have this choice at all. He is
required, irrespective of how he feels, to drive under bad weather conditions, under difficult
situations, whether he is fatigued or not. He is not able to stop and rest. In addition, he has certain
other responsibilities of the job that make it much more difficult for him.
Q.
Doctor, this case involves the use of chronological age as a cutoff in employment practices. Do you
have an opinion, from a medical standpoint, whether chronological age is a reasonable indicator of a
person’s functional ability, particularly as it relates to the ability to operate an intercity motor bus?
A.
I have an opinion.
Practice Caution: Asking witness’ opinion as to ultimate fact in issue.
Counsel asking the question set forth above is cautioned that opposing counsel may object to such
question on the grounds that the expert witness is being asked the ultimate fact in issue. Should the
objection be sustained, counsel asking the question should rephrase it in terms of whether
consideration of the age of the individual as an applicant is reasonably necessary, in his medical
opinion, for the normal and safe operation of the business involved, in terms of the safety to the
applicant and to the general public. Nevertheless, the precise question, as phrased in this proof, was
sustained as appropriate, and the objection was overruled, in Usery v Tamiami Trail Tours, Inc.
(CA5) 531 F2d 224, and counsel asking this question to the witness should be prepared to cite this
decision as grounds for the overruling of the objection to this question.
Q.
What is that opinion, doctor?
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15 Am. Jur. Proof of Facts 2d 481 | 50
A.
That the chronological age is a definite factor in the determination of whether an individual can drive
a commercial vehicle with safety. It is my opinion that chronological age cannot be separated from
aging or the functional or physiological age of an individual because they go hand-in-hand. For that
reason, I believe that chronological age is a factor in the determination of an individual’s ability to
drive, particularly a commercial vehicle.
Q.
If an applicant for a position as an intercity bus driver is 40 years old or older, couldn’t he just be
individually evaluated as to his fitness to drive commercially?
A.
I have no objection to the individual being individually evaluated. My objection is that the person
past 40, if he is just looking for a first job, will be too old because he is going to develop
physiological abnormalities which are going to make him a dangerous driver. The point is this: he
would have to go through this period of four, five, or six years of developing experiences which
would improve his driving, and by that time his physical abnormalities will occur. In bus driving,
after a period that varies in different companies, usually about ten years, people develop seniority,
and on the basis of this seniority they are able to get much more suitable runs to compensate for their
increase in age. This is a very important means of lowering the accident rate, because the driver with
high seniority can choose the time of day he makes his runs and the type of run, whereas the younger
man, who is new in the organization, will have to take the more difficult run, the night runs, the
difficult and irregular hour runs. He is more likely to become involved in an accident.
C. Testimony of Transportation Safety Expert
§ 20. Qualification as commercial vehicle safety expert
[After introduction and identification of witness]
Q.
What is your present occupation?
A.
I am a consultant on commercial vehicle safety to a national trade organization of motor carriers and
also a consultant on commercial safety matters to a trade publication of national circulation.
Q.
What is that national association that you are connected with?
A.
The American Trucking Association.
Q.
Could you please tell us what that association is?
A.
It is a federation of state trucking associations, representing their interests with respect to legislative
matters, public relations, advertising, advancement of safety, and development of statistical
information of general interest.
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Q.
What are your responsibilities as a special consultant on safety to that organization?
A.
My responsibilities are to devise methods of strengthening their overall safety undertakings, to
develop methods of promotion and methods of increasing safety performance, and to do everything
possible to cooperate with governmental regulatory authorities with respect to motor carrier safety
proposals and regulations.
Q.
When did you join the American Trucking Association as a special consultant on safety?
A.
On , .
Q.
Will you please tell us something about your educational background and your experience in the
transportation industry, insofar as it relates to safety?
A.
I graduated from College in . I have been engaged in transportation employment since ,
working for years in the area of vehicle transportation safety. During my last years with
Corporation, I was its safety director in charge of directing its national safety programs, and at
various times during that period of employment I was engaged in operations that included
dispatching and arranging for the assignment of truck drivers to their work.
Q.
Have you had any government employment in this area?
A.
Yes. In , I entered the service of the United States Government as a safety director for the Interstate
Commerce Commission, carrying out the motor carrier, truck, and bus responsibilities in the field.
Q.
What did your work in that capacity involve?
A.
My work with the Interstate Commerce Commission involved the inception of motor carrier
practices, records, inspection of vehicles, both at terminals and en route, examination of records to
determine compliance with the safety requirements as to maximum hours and qualifications of
employees, and also the investigation of accidents.
Q.
Please continue.
A.
In , , I was transferred from [city] to the Washington headquarters as assistant chief of the
Section of Safety in the Interstate Commerce Commission, and I became chief of that Section in .
The duties there involved the development of regulatory proposals under the provisions of the
Interstate Commerce Act, which required the Interstate Commerce Commission, at that time, among
other things, to regulate interstate motor carriers of property and passengers as to qualifications and
maximum hours of service of employees and safety of operations and equipment. In that capacity, I
was responsible for developing information essential to the formulation of regulatory proposals and
directing the administration of the safety program, including accident investigation.
Q.
In addition to your government service and your prior employment in the transportation industry in
the area of safety, have you throughout your career participated in any boards, organizations, or
committees related to highway traffic safety?
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A.
Yes, I have.
Q.
Which ones?
A.
I have been a member of the board of directors of the National Safety Council for the last years
and a member of the Motor Transportation Conference of the National Safety Council, which is
particularly concerned with the promotion of safety efforts among commercial vehicles. I have
served for years as a member of the National Safety Council’s board of judges. Since , I have
been a member of the National Committee on Uniform Traffic Laws and Ordinances, and for the last
years have served as chairperson of the Subcommittee on Vehicles and Roads of that National
Committee. I have also served on other committees and organizations, such as the American
National Standards Institute, and I’m a member of the American Society of Safety Engineers.
Q.
Have you received any awards from any of these committees with respect to your contribution to
safety?
A.
I was privileged in to receive the National Safety Council’s Honorary Citation for Service to
Safety, and in I was privileged to receive a lifetime honorary membership in the Motor
Transportation Conference of the National Safety Council.
Q.
Throughout your years of service to safety, have you gained first-hand knowledge and experience
with respect to the operation of intercity motor buses and their drivers?
A.
Yes.
Q.
Could you please tell us what that experience includes?
A.
In the course of my duties in the Interstate Commerce Commission, and later in the Department of
Transportation, in order to be well-informed as to the necessities and bases for making
recommendations to the decisional authority, I found it necessary and I did continue, to conduct
discussions from time to time with motor carrier management, with their safety directors, with
drivers themselves, with the representatives of labor organizations, and with medical doctors who
were well-informed and practiced extensively in the examination of commercial-vehicle drivers. I
made it a practice to ride on over-the-road intercity buses from time to time in order to observe the
driver’s job, to keep well-informed. My duties also involved the direction of investigations into the
circumstances of serious accidents, in addition to the investigations that I made myself in the course
of my field experience. All of these activities were essential in enabling me to develop analyses and
to acquire judgments as to the characteristics of the work and the type of persons who ought to be
entrusted with such work.
§ 21. Importance of physical abilities of driver
Q.
As a result of your knowledge and experience in this industry, could you tell us of the importance of
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the driver as it relates to traffic safety?
A.
Yes. Not only my own experience and knowledge, but that of many other well-informed authorities
in this field have constantly emphasized the fundamental importance of the driver in assuring a
maximum measure of safe operations, particularly in commercial vehicle operations. In fact, when
the Interstate Commerce Commission, under its responsibilities to carry out the provisions of § 204
of the Interstate Commerce Act, adopted its first report and regulations as to safety requirements, this
report was published in Volume 1 of Motor Carrier Cases of the Commission, beginning at page one,
and it said, “We recognize that first and foremost in the problem of motor carrier safety is the driver,
the man at the wheel.” Above everything else in transportation, in terms of safety, the driver is the
chief factor.
§ 22. Particular pressures on intercity bus drivers
Q.
Are there any particular pressures and demands placed on the commercial-vehicle driver, and
specifically on an intercity motor bus operator, which are not typical demands and pressures of the
average automobile driver?
A.
Yes.
Q.
Please describe those pressures and demands.
A.
The task of the intercity bus driver is one which demands a great deal of capability. The vehicle itself
possesses problems which are entirely different than those related to driving an ordinary automobile,
such as its weight, the difficulties of its maneuverability, it complex mechanical and electrical
systems, all of which require knowledge on the part of a driver in order to assure maximum safety.
Q.
Are there pressures and demands other than those presented by the vehicle itself?
A.
Yes. The work involves an absolute necessity for competent judgment, capability, skills and
understanding of the characteristics of the roadway, anticipating the effects of changes in
temperature in bad weather, and other hazardous weather conditions, as well as pavement conditions.
It also involves dealing with passengers, including the occasional irritations that go with passenger
problems, and assuring safety and comfort.
Q.
What of scheduling demands?
A.
There are also the demands which a driver faces in meeting schedule requirements, and in
endeavoring to complete schedules with adherence to their intended times of arrival, and yet having
enough self-control and self-disciplinary authority to enable him to disregard such requirements
whenever adverse weather and pavement conditions occur. There is also the question of driver
fatigue, which is obviously an extremely important element, as well as the necessity for meeting
extremely important physical, mental, and emotional demands.
Q.
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From the standpoint of safety, in the operation of an intercity motor coach system, can you compare
such an operation to other commercial modes of transportation, such as transit operations,
sight-seeing buses, or taxicabs, operations of that nature?
A.
In my judgment, there is really no comparison.
Q.
Why is that?
A.
First of all, the stresses and strains as to the types of driving that it involves is completely different.
Take the factor of speed, for instance. The local transit operator is operating at an average speed of
about seven or eight miles an hour through admittedly congested urban areas with people getting on
and off. The stresses and strains are entirely different from the need for driving 50 or 55 miles an
hour down a crowded highway, with the whole tempo of activities picking up. Any small error is
magnified many times. The driver’s ability and need to respond to rapidly changing conditions has to
be quick and it has to be right. If it isn’t, the result can be absolutely disastrous.
Q.
Why disastrous?
A.
We have up to 47 people on board a bus today. That fact, coupled with the greater increase in traffic,
means that accidents have the potential for causing great numbers of injuries and deaths.
§ 23. Successful industry safety record under present age requirements
Q.
In light of the complex nature of the intercity motor bus operations and the pressure and demands
which you have just described, has the motor bus industry been successful in its attempt to assure the
safety of the travelling public?
A.
It has accomplished a great deal. I should say, in this connection, that the bus industry has been
tremendously cooperative with the government agencies in endeavoring to develop reasonable
standards and requirements under the regulations. The experience for the last years has
demonstrated an increasingly improved experience, as measured by fewer accidents and fatalities
year-by-year. This has been a constant improvement in this field.
Q.
Has there been a lessening of total fatalities despite the fact of increasing traffic and increasingly
more highway users?
A.
Yes, definitely. The Interstate Commerce Commission in its annual reports to Congress year after
year publishes data with respect to intercity miles of motor carriers and the number of persons killed
in accidents involving the buses of intercity carriers. There has been a constant improvement, based
on these figures, in the safety of performance as measured by those indicia.
Q.
To what factors do you attribute the success of the motor bus industry in continually lowering the
accident and fatality rate involved in motor bus accidents?
A.
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15 Am. Jur. Proof of Facts 2d 481 | 55
It has been due to a combination of factors. Having been a part of the government establishment, I
attribute, at least in some measure, the improvement to the efforts of the regulatory agency. There
have also been improvements in the vehicles, and improvements over the years in the nation’s
highway system. Most important, in my opinion, has been the constant emphasis on strengthening
the requirements for driver selection, their physical qualifications, their training, the development of
proper attitudes with respect to the safety responsibilities of this work. The emphasis placed on
driver capabilities and development of proper driver attitude, and institution of exhaustive training
programs have by far the most influence and are vitally important ingredients in this
accomplishment.
Practice Note: Industry safety record.
Presenting evidence that the industry in question has a good safety record, which might be severely
jeopardized if the industry were required to consider job applicants of over a certain age, will greatly
enhance the chances of a valid BFOQ being found to exist. See Usery v Tamiami Trail Tours, Inc.
(CA5 Fla) 531 F2d 224, in which substantial evidence was presented by experts in industrial
medicine, as well as in the commercial transportation field, as to the effect of age upon the ability of
the intercity bus driver to perform safely.
§ 24. Chronological age standard as reasonably necessary to safe operations
Q.
Are you aware of the issue involved in this lawsuit as it pertains to the defendant’s policy, which
encompasses an age limitation at age 40 for the position of a newly hired intercity motor coach
operator?
A.
I am.
Q.
Are you familiar with the intercity bus driver hiring procedures used by [defendant]?
A.
Yes, I am.
Q.
How did you become familiar with those practices?
A.
At your request, I spent months in studying those procedures and in examining them in detail, both
in the field and from [defendant]’s records.
Q.
You have testified concerning the importance of the physical abilities of a commercial driver, and in
particular of a driver of intercity buses, to the safety of the travelling public. You have also testified
as to particular pressures on intercity bus drivers. Does [defendant corporation] have a formal
safety program in an attempt to maintain the safety of its operations?
A.
Yes, it has an extensive program.
Q.
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15 Am. Jur. Proof of Facts 2d 481 | 56
Will you please explain what the program is and how it works?
A.
[Defendant] includes the hiring process of the driver as the beginning of the safety program. This is
by careful screening and reviewing the driver as an applicant and then later as a student in the driver
training school. It coordinates very closely with federal and state agencies in the driver safety
training programs and in evaluating driver performance at all stages. It tries to pick up bad driving
habits or, when a driver is involved in an accident, it tries to identify the causative elements and
correct them before they become more serious. In addition, it has a refresher training course for any
drivers who might be developing problems and it develops special programs in this regard. What is
really most important—and what is the keystone of any sound safety program—is at the hiring door,
the selection of the driver. This is where you begin building your professional safety program for any
fleet operation.
Q.
In regard to [defendant]’s initial screening process of job applicants for intercity bus drivers, what
considerations are given to job application forms before the granting of an interview in the screening
process?
A.
The qualifications for consideration for employment—to get to the interview stage—would be that
the applicant must be between the age of 24 and 40 years of age; his height must be from five feet
seven inches to six feet one inch; his weight must be from 150 pounds to 200 pounds; he must have a
high school education or equivalent; he must have a valid driver’s license; he must be a United
States citizen; and he must have no military obligations, that is, in the National Guard or Reserve.
Also, he must be of good moral character and good physical condition, which, of course, is verified
later by physical examination. His application must reflect a good previous driving record. These are
the matters that [defendant] looks at initially in the consideration of the employee.
Q.
In your opinion, is the requirement that an applicant for an intercity bus driver position be under 40
years of age important in the interest of safety to the passengers and the highway public?
A.
It is perhaps the most important ingredient in the overall basic standards for drivers.
Q.
Upon what do you base that opinion?
A.
Going back to what I stated earlier, the keystone in [defendant] safety record, and in the safety
record in the industry, is the selection of the driver. The tools which we have available to us today in
the selection of a driver are far from perfect.
Q.
Please explain.
A.
One of the prime factors in looking at the question of where to establish the age limitation on hiring
new drivers is the identification, for the net benefit of the safety of operation, of those factors which
will produce the safety of operation which you need in your industry. We have discovered over the
years that we have a work force with an average experience factor of about 16 to 17 years. This is a
very important part of the mix that has produced the safety record. If they were to modify this factor
by increasing the age, you would automatically decrease the average experience factor of the drivers.
I can state unequivocally that this would seriously jeopardize the lives of the passengers and other
highway users. It would lead to an experiment which we are not prepared to undertake.
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15 Am. Jur. Proof of Facts 2d 481 | 57
Q.
Is this age policy maintained for any reason other than safety?
A.
No.
Q.
Would it be consistent with safe practices within your industry to begin the employment of new bus
drivers after they reach the age of 40?
A.
No. A man changes rapidly once he hits the mid-thirties. His ability to be more flexible to the
lifestyle changes, and the demands placed on him as an operator of an intercity bus would be great.
His ability to even change his basic patterns and to accept new ideas and use them effectively is
another factor. These become much more rigid and much more difficult.
Oldham, Questions of Exclusion and Exception Under Title VII—”Sex-Plus” and the BFOQ, 23
Hastings L J 55
A.L.R. Library
Liability of Employer, Supervisor, or Manager for Intentionally or Recklessly Causing Employee
Emotional Distress—Age Discrimination, 11 A.L.R. 6th 447
Right of attorney to conduct ex parte interviews with former corporate employees, 57 A.L.R. 5th 633
Application of state law to age discrimination in employment, 51 A.L.R. 5th 1
Nature of alternative employment which employee must accept to minimize damages for wrongful
discharge, 44 A.L.R. 3d 629
Validity and construction of labor legislation prohibiting discrimination on account of age, 29 A.L.R.
3d 1407
Construction and application of Fair Labor Standards Act (U.S.C.A. § 215(a)(3)) forbidding reprisals
against any employee who has filed a complaint, or the like under the Act, 93 A.L.R. 2d 610
Exhaustion of grievance procedure or of remedies provided in collective bargaining agreement as
condition of employee’s resort to civil courts for assertedly wrongful discharge, 72 A.L.R. 2d 1439
What laws govern employee’s right to damages for wrongful discharge, 61 A.L.R. 2d 917
Discharge or retirement of employee because of age or physical disability as within provision of
collective bargaining contract limiting employer’s right to discharge employee, 56 A.L.R. 2d 991
Power of National Labor Relations Board to hold both employer and labor union jointly and
severally liable for loss of pay suffered by employee discriminatorily discharged, 27 A.L.R. 2d 638
Sufficiency of Contents of Notice to Equal Employment Opportunity Commission Charging
Violation of Age Discrimination in Employment Act, 27 A.L.R. Fed. 2d 367
Award of Liquidated Damages Under sec. 7 of Age Discrimination in Employment Act (29 U.S.C.A.
sec. 626b)) for “Willful” Violations of Act, 5 A.L.R. Fed. 2d 243
Disparate Impact Claims Under Age Discrimination Act of 1967, §§ 2 et seq., 29 USCA §§ 621 et
seq., 186 A.L.R. Fed. 1
“Bona Fide Employee Benefit Plan” Exception to General Prohibition of Age Discrimination in
Employment Act (29 USCA § 623(f)) as Applied to Plans Other Than Early Retirement Incentive
Plans, 184 A.L.R. Fed. 1
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15 Am. Jur. Proof of Facts 2d 481 | 58
Actions Brought Under Age Discrimination in Employment Act, 29 USCA §§ 621 et seq.—Supreme
Court Cases, 181 A.L.R. Fed. 325
“Bona Fide Seniority System” Exception to General Prohibition of Age Discrimination in
Employment (29 USCA § 623(f)), 177 A.L.R. Fed. 415
“Bona Fide Employee Benefit Plan” Exception to General Prohibition of Age Discrimination in
Employment Act (29 USCA § 623(f)) as Applied to Early Retirement Incentive Plans, 176 A.L.R.
Fed. 115
Award of “Front Pay” Under § 7 of Age Discrimination in Employment Act of 1967 (29 USCA §
626), 175 A.L.R. Fed. 359
What Constitutes “Willful” Violation under Age Discrimination in Employment Act (29 U.S.C.A. §§
626 et seq.) Entitling Victim to Liquidated Damages, 165 A.L.R. Fed. 1
What constitutes direct evidence of age discrimination in action under Age Discrimination in
Employment Act (29 U.S.C.A. §§ 621 et seq.)—post Price Waterhouse cases, 155 A.L.R. Fed. 283
Enforceability of arbitration clauses in collective bargaining agreements as regards claims under
federal civil rights statutes, 152 A.L.R. Fed. 75
Factors or conditions in employment discrimination cases said to justify decrease in attorneys’ fees
awarded under § 706(k) of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e-5(k)), 151 A.L.R. Fed. 77
Sufficiency of defendant’s nondiscriminatory reason to rebut inference of sex discrimination in
promotion or demotion of employee as violation of Title VII of Civil Rights Act of 1964 (42 USCA
§§ 2000e et seq.), 111 A.L.R. Fed. 1
Permissible sex discrimination in employment based on bona fide occupational qualifications under
§ 703(e)(1) of Title VII of Civil Rights Act of 1964 (42 USCA § 2000e-2(e)(1)), 110 A.L.R. Fed. 28
Pension plan designed to induce early retirement of employees of certain age as violation of Age
Discrimination in Employment Act (29 USCA §§ 621 et seq.) or ERISA (29 USCA §§ 1001 et seq.),
91 A.L.R. Fed. 296
”Bona fide employment benefit plan” exception to general prohibition of age discrimination in
employment (29 USCA § 623(f)(2)), 70 A.L.R. Fed. 110
Age as bona fide occupational qualification “reasonably necessary” for normal conduct of business
under § 4(f)(1) of Age Discrimination in Employment Act (29 USCA § 623(f)(1)), 63 A.L.R. Fed.
610
Effect of customer’s interest or preference on establishing bona fide occupational qualification under
Title VII of Civil Rights Act of 1964 (42 USCA § 200e-2(e)), 63 A.L.R. Fed. 402
Construction and application of Age Discrimination in Employment Act of 1967 (29 USCA §§ 621
et seq.), 24 A.L.R. Fed. 808
Exhaustion of remedies under Title VII (Equal Employment Opportunity) of Civil Rights Act of
1964 (42 USCA §§ 2000e et seq.) as prerequisite to maintenance of action under 42 USCA § 1981
for employment discrimination, 23 A.L.R. Fed. 895
Award of back pay under Title VII of Civil Rights Act of 1964, as amended by Equal Opportunity
Act of 1972 (42 USCA §§ 2000e et seq.) for discriminatory employment practices, 21 A.L.R. Fed.
472
Effect of prior state agency adjudication upon court action for unlawful employment practices under
§ 706 of the Civil Rights Act of 1964 (42 USCA §§ 2000e-5), 20 A.L.R. Fed. 963
Award of attorneys’ fees under § 706(k) of Civil Rights Act of 1964 (42 USCA § 2000e-5(k))
authorizing court to allow prevailing party, other than Equal Employment Opportunity Commission
or United States, reasonable attorney’s fee as part of cost in action under equal employment
opportunities part of Act, 16 A.L.R. Fed. 643
Punitive damages in actions For violation of Federal Civil Rights Act, 14 A.L.R. Fed. 608
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15 Am. Jur. Proof of Facts 2d 481 | 59
Legal Encyclopedias
Age discrimination, generally, as an unlawful employment practice under the Age Discrimination in
Employment Act, 15 Am. Jur. 2d, Civil Rights §§ 226–242
Bona fide occupational qualification exceptions to fair employment practices statutes, 48 Am. Jur.
2d, Labor and Labor Relations § 23
Discrimination based on seniority, merit, production, or ability test, 48 Am. Jur. 2d, Labor and Labor
Relations § 27
Age discrimination—state statutes, 48 Am. Jur. 2d, Labor and Labor Relations § 32
Age discrimination, generally, as an unlawful employment practice under the Age Discrimination in
Employment Act, 48 Am. Jur. 2d, Labor and Labor Relations §§ 29–31
Equal pay regulation under the Fair Labor Standards Act, 48 Am. Jur. 2d, Labor and Labor Relations
§§ 1681–83
Actions to recover wages and damages under the Fair Labor Standards Act, 48 Am. Jur. 2d, Labor
and Labor Relations §§ 1693, 1708
Remedies for wrongful discharge of employee, in general, 53 Am. Jur. 2d, Master and Servant §§ 60
et seq.
Treatises and Practice Aids
Dayton, Guare, Mezzullo and Wood, Advising the Elderly Client
Employment Discrimination Law Annotated
Litigating Age Discrimination Cases
Modjeska, Employment Discrimination Law (2d ed.)
Trial Strategy
Contingent Workers’ Protection Under Federal Anti-Discrimination Statutes, 57 Am. Jur. Proof of
Facts 3d 75
Proof of Discrimination Under Age Discrimination in Employment Act, 44 Am. Jur. Proof of Facts
3d 79
Employer’s Defense Under Americans With Disabilities Act, 42 Am. Jur. Proof of Facts 3d 1
Disability Discrimination Under the Americans with Disabilities Act, 20 Am. Jur. Proof of Facts 3d
361
Age of Person, 45 Am. Jur. Proof of Facts 2d 631
Sex Discrimination in Employment—Promotion Practices, 12 Am. Jur. Proof of Facts 2d 645
Discrimination Under Age Discrimination in Employment Act, 10 Am. Jur. Proof of Facts 2d 1
Forced Resignation, 7 Am. Jur. Proof of Facts 2d 87
Retaliatory Termination of Private Employment, 7 Am. Jur. Proof of Facts 2d 1
Racial Discrimination in Employment—Post-Hiring Practices, 4 Am. Jur. Proof of Facts 2d 477
Racial Discrimination in Employment—Recruiting and Hiring Practices, 3 Am. Jur. Proof of Facts
2d 221
Racial Discrimination in Employment—Testing and Educational Requirements, 2 Am. Jur. Proof of
Facts 2d 237
Racial Discrimination in Employment, 2 Am. Jur. Proof of Facts 2d 187 (In General; Use of
Statistics)
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15 Am. Jur. Proof of Facts 2d 481 | 60
Discharge From Employment Because of Garnishment of Earnings, 1 Am. Jur. Proof of Facts 2d 549
Age Discrimination in Employment Action Under ADEA, 75 Am. Jur. Trials 363
Defendant Class Actions Under Title VII, 63 Am. Jur. Trials 257
Efficiently and Effectively Defending Employment Discrimination Cases, 63 Am. Jur. Trials 127
Alternative Dispute Resolution: Employment Law, 57 Am. Jur. Trials 255
Defense of Claims Brought Under the Americans With Disabilities Act, 49 Am. Jur. Trials 171
Wrongful Discharge of At-Will Employee, 31 Am. Jur. Trials 317
Age Discrimination in Employment Action Under ADEA, 29 Am. Jur. Trials 1
Preparation and Trial of Federal Class Actions, 21 Am. Jur. Trials 625
Employment Discrimination Action Under Federal Civil Rights Acts, 21 Am. Jur. Trials 1
Forms
Complaint before administrative agency for discrimination in employment, 5 Am. Jur. Pleading and
Practice Forms, Civil Rights, Form 61
Complaint in federal court by applicant for employment under Age Discrimination in Employment
Act, 16 Am. Jur. Pleading and Practice Forms, Labor and Labor Relations, Form 311
Answer in Title VII action alleging defense of different employment conditions based on seniority or
merit system, production standards, job location, or ability tests, 16 Am. Jur. Pleading and Practice
Forms, Labor and Labor Relations, Form 328
Motion to dismiss complaint under § 706 of Civil Rights Act of 1964 on plaintiff’s failure to file
charge with state or political subdivision thereof, 16 Am. Jur. Pleading and Practice Forms, Labor
and Labor Relations, Form 330
Interrogatories by plaintiff in action under § 706 of Civil Rights Act of 1964, 16 Am. Jur. Pleading
and Practice Forms, Labor and Labor Relations, Form 337
Law Reviews and Other Periodicals
”Le roi est mort; vive le roi!”: an essay on the quiet demise of McDonnell Douglas and the
transformation of every Title VII case after Desert Palace, Inc. v. Costa into a mixed-motives case,
52 Drake L. Rev. 71 (2003 WL 23594070)
42-year-old’s replacing of 49-year-old is not ageism, Nat’l L.J., March 15, 2004 (2004 WL 1689865)
A coming of age? Why revised EEOC guidelines may force firms to protect against partner age
discrimination suits, 59 Wash. & Lee L. Rev. 1013 (2002 WL 32124681)
ADEA—reverse discrimination suits—Sixth Circuit permits reverse age discrimination suit to
proceed, 116 Harv. L. Rev. 1533 (2003 WL 1857295)
A game of numbers: ADEA compliance and litigation, 18 Lab. Law. 203 (2002 WL 32629947)
Agatstein, Age Discrimination in Employment Act of 1967: A Critique, 19 NY L F 309
Age and race: the court’s search for equality through the ADEA, [Smith v. City of Jackson, 125 S.
Ct. 1536 (2005). ], 33(2) S.U. L. Rev. 339 (2006 WL 2881228)
Age discrimination under the Age Discrimination in Employment Act: a two-way street blocked in
one direction, 42 Brandeis L.J. 673 (2004 WL 1690110)
Age Discrimination in the American Workplace: Old at a Young Age, (Reviewed), 2 Employee Rts.
Q. 80 (2002 WL 31107932)
Age Discrimination in the American Workplace: Old at a Young Age, (Reviewed), 27 Legal Stud. F.
479 (2003 WL 21497712)
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15 Am. Jur. Proof of Facts 2d 481 | 61
Age discrimination may be next frontier for employers; the law is evolving on disparate impact and
work environments hostile to older workers, 4/29/2002 Nat’l L.J. 29 (2002 WL 1311384)
Age discrimination checklist, 19 Corp. Couns. Q. 78 (2003 WL 21457936)
Age discrimination and disparate impact: a new look at an age-old problem, 70 Brook. L. Rev. 361
(2004 WL 3407213)
Age discrimination tougher to prove, N.J.L.J., July 17, 2006, (2006 WL 1997492)
A means to an end: the Cline court’s pragmatic refusal to allow reverse discrimination under the
ADEA, [General Dynamics Land Systems v. Cline, 124 S. Ct. 1236 (2004)], 55 Lab. L.J. 85 (2004
WL 2424000)
Antidiscrimination law and the perils of mindreading, 67(5) Ohio St. L.J. 1023 (2006 WL 4060633)
A reason to discriminate: curtailing the use of Title VII analysis in claims arising under the ADEA,
65 La. L. Rev. 411 (2004 WL 3508075)
Besser, Recent Developments in Equal Employment Opportunity Litigation, 22 Clev St L Rev 72
Beyond Milton Friedman’s imprimatur: law and logic support monetarist rejection of age
discrimination challenge to cash balance plans, 19(4) Benefits L.J. 97 (2006 WL 4012212)
Beyond the cat’s paw: an argument for adopting a “substantially influences” standard for Title VII
and ADEA liability, 6(2) Pierce L. Rev. 247 (2007 WL 4984595)
Blumrosen, Strangers in Paradise: Griggs v Duke Power Company and the Concept of Employment
Discrimination, 71 Mich L Rev 59
Boost in age bias suits from ‘boomers’, Nat’l L.J., March 12, 2007 (2007 WL 841959)
Bowling for certainty: picking up the seven-ten split by pinning down the reasonableness of
reassignment after Barnett, [U.S. Airways v. Barnett—122 S. Ct. 1516 (2002)], 87 Minn. L. Rev.
2063 (2003 WL 22507172)
Canepa & Reecer, Age Discrimination in Employment: A Comparison of the Federal and State Laws
and Remedies in New Mexico, 7 NM L Rev 51
Can plaintiffs make disparate-impact claims in age discrimination cases? 38 Trial 72 (2002 WL
1460965)
Causation in retaliation claims: conflict between the prima facie case and the plantiff’s ultimate
burden of pretext, 81 Wash. U. L.Q. 151 (2003 WL 22873608)
Charme, Age Discrimination in Employment: Available Federal Relief, 11 Colum J L & Soc Prob
281
Civil rights—ADEA—the availability of disparate impact claims, [Smith v. City of Jackson—125 S.
Ct. 1536 (2005)], 73(1) Tenn. L. Rev. 99 (2005 WL 4770266)
Comment, Civil Rights Act—Preemployment Testing Requirements Unrelated to Job Function Held
Unlawful, 18 NY L F 264
Comment, Employing Punitive Damages in Employment Discrimination Cases, 9 Harv Civil Rights
L Rev 325
Comment, In America, What You Do Is What You Are: The Equal Employment Opportunity Act of
1972, 22 Catholic U L Rev 455
Comment, Jury Trial in Employment Discrimination Cases—Constitutionally Mandated? 53 Tex L
Rev 483
Comment, Title VII: Discriminatory Results and the Scope of Business Necessity, 35 La L Rev 146
Cooper, Introduction: Equal Employment Law Today, 5 Colum Human Rights L Rev 263
Cooper & Rosenthal, Equal Employment Opportunity … New Legal Field, 8 Trial 47
Cooper & Sobol, Seniority and Testing Under Fair Employment Laws: A General Approach to
Objective Criteria of Hiring and Promotion, 82 Harv L Rev 1598
Corporate reorganizations, job layoffs, and age discrimination: has Smith v. City of Jackson
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15 Am. Jur. Proof of Facts 2d 481 | 62
substantially expanded the rights of older workers under the ADEA? 70(1) Alb. L. Rev. 143 (2006
WL 3997332)
Court sees “reduction in force” as age bias against controller, N.Y. L.J., April 8, 2008 (2008 WL
963584)
Devil of indirect age discrimination may be in the detail of HR policies, 845 IRS Employment Rev.
8 (2006 WL 1591598)
Discrimination against younger members of the ADEA’s protected class, 89 Iowa L. Rev. 313 (2003
WL 23653439)
Disparate impact and the ADEA: so, who is going to be in the comparison group? 39(4) J. Marshall
L. Rev. 1475 (2006 WL 4548346)
Does the theory of disparate impact liability apply in cases arising under the Age Discrimination in
Employment Act? A question of interpretation, 41 Duq. L. Rev. 773 (2003 WL 23633753)
Donahoe, Procedural Aspects of the Age Discrimination in Employment Act of 1967, 36 U Pitt L
Rev 914
Dotsey, Equal Employment Opportunity—A Brief History and the New Federal Approach Through
Affirmative Action, 8 Forum 100
Elders in the workforce: advantages and disadvantages of staying on the job, 4 Elder’s Advisor 40
(2002 WL 31957805)
Employment discrimination and the evidentiary standard for establishing pretext, 35 U.C. Davis L.
Rev. 1305 (2002 WL 31011552)
Employment Discrimination Litigation: Behavioral, Quantitative, and Legal Perspectives,
(Reviewed), 7 U. Pa. J. Lab. & Emp. L. 762 (2005 WL 1608744)
Employment discrimination—age discrimination—the Fifth Circuit holds a plaintiff may utilize the
mixed-motives method of analysis in age discrimination cases, absent any direct evidence of
discrimination, 58 SMU L. Rev. 487 (2005 WL 2375341)
Employment law—Title VII—Tenth Circuit clarifies causation standard for subordinate bias claims,
120(6) Harv. L. Rev. 1699 (2007 WL 1099203)
Evaluating employment discrimination claims from a defense counsel’s perspective, 58 J. Mo. B.
268 (2002 WL 32124773)
Fiss, A Theory of Fair Employment Laws, 38 U Chi L Rev 235
For whom the filing tolls—beware of hidden traps: time limitations and court supervision in class
actions under the FLSA and the ADEA: plaintiff’s counsel who make class allegations should cover
themselves at the outset of the case by filing consents of the named plaintiffs with the complaint, 76
Fla. B.J. 47 (2002 WL 130461)
Gilfix, First Hired-First Fired: Age Discrimination in Employment, 50 Calif SB J 462
Gillen, The Federal Age Discrimination in Employment Act Revisited, 9 Clearinghouse Rev 761
Grosjean v. First Energy Corp.: the relevance of age differentials in a prima facie ADEA case,
[Grosjean v. First Energy Corp., 349 F.3d 332 (6th Cir. 2003)], 55 Lab. L.J. 112 (2004 WL 2424002)
Handling class actions under the ADEA, 10(2) Employee Rts. & Emp. Pol’y J. 553 (2006 WL
4588630)
Haslam, Age Discrimination in Campus Employment, 2 J Coll & U L 326
Health and Safety Needs of Older Workers, (Reviewed), 7 U. Pa. J. Lab. & Emp. L. 762 (2005 WL
1608742)
High court says FedEx employees can sue over age bias, 154(40) Chi. Daily L. Bull. 1 (2008 WL
865403)
How American employers (almost) learned to respect their elders: Smith v. City of Jackson and the
availability of the disparate impact theory under the Age Discrimination in Employment Act, 26(2)
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15 Am. Jur. Proof of Facts 2d 481 | 63
Miss. C. L. Rev. 347 (2007 WL 2483888)
Human resources expert testimony in employment litigation, 28 Employee Rel. L.J. 29 (2002 WL
2002192)
In good measure: workforce demographics and statistical proof of discrimination, 23(1) Lab. Law.
59 (2007 WL 3088367)
Is business judgment a catch-22 for ADEA plaintiffs? The impact of Smith v. City of Jackson on
future ADEA employment litigation, [Smith v. City of Jackson, 544 U.S. 228 (2005)], 33(2) U.
Dayton L. Rev. 231 (2008 WL 3274203)
Knight, The Constitutionality of the ADEA after Usury, 30 Ark L Rev 363
Labor and employment law—uncertainty over burden of proof for mixed motive employee
discharge, 41(2) Suffolk U. L. Rev. 409 (2008 WL 2069845)
Learning how to stand on its own: will the Supreme Court’s attempt to distinguish the ADEA from
Title VII save employers from increased litigation? 66(6) Ohio St. L.J. 1375 (2005 WL 5288205)
Levien, The Age Discrimination in Employment Act: Statutory Requirements and Recent
Developments, 13 Duquesne L Rev (Winter) 1974
’Lies, damned lies, and statistics’: how The Peter Principle warps statistical analysis of age
discrimination claims, 22(3) Lab. Law. 251 (2007 WL 2058815)
Look before you RIF: managing the risk of ADEA collective actions, 54 Lab. L.J. 101 (2003 WL
23203004)
Making sense of pretext: an analysis of evidentiary requirements for summary judgment litigants in
the Fifth Circuit and a proposal for clarification, 34 St. Mary’s L.J. 257 (2002 WL 32120693)
Montlack, Using Statistical Evidence to Enforce the Laws Against Discrimination, 22 Clev St L Rev
259
Note, Age Discrimination in Employment: The Problem of the Older Worker, 41 NYU L Rev 383
Note, Age Discrimination in Employment, 50 NYU L Rev 924
Note, Age Discrimination in Employment: Correcting a Constitutionally Infirm Legislative
Judgment, 47 So Calif L Rev 1311
Note, Business Necessity Under Title VII of the Civil Rights Act of 1964: A No-Alternative
Approach, 84 Yale L J 98
Note, Employment Discrimination—Age Discrimination in the Employment Act of 1967—Bona
Fide Occupational Qualification, 6 BC Ind & Com L R 688
Note, Employment Testing: The Aftermath of Griggs v Duke Power Co., 72 Col L Rev 900
Note, Employment Discrimination: The Burden is on Business, 31 Md L Rev 255
Note, Employment Discrimination—Building Up the Headwinds, 52 NC L Rev 181
Note, Fair Employment Practices: The Concept of Business Necessity, 3 Memphis St U L Rev 76
Note, Labor Law—Discriminatorily Discharged Employees Must Seek Work Outside Their Trade to
Mitigate Back Pay Damages, 43 Fordham L Rev 889
Note, Proving Discrimination Under the Age Discrimination in Employment Act, 17 Ariz L Rev 495
Note, The Age Discrimination in Employment Act of 1967, 90 Harv L Rev 380
Older, wiser and more dispensable: ADEA options available under Smith v. Jackson: desperate times
call for disparate impact, [Smith v. City of Jackson, 125 S. Ct. 1536 (2005)], 33(2) N. Ky. L. Rev.
259 (2006 WL 2220958)
Older workers: recent trends in employment and retirement, 8 J. Deferred Compensation 30 (2003
WL 21433216)
Old v. older: creating a cause of action for reverse age discrimination under the ADEA in Cline v.
General Dynamics Land Systems, Inc., 36 Loy. L.A. L. Rev. 1627 (2003 WL 23716012)
One of these things is not like the other: analogizing ageism to racism in employment discrimination
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15 Am. Jur. Proof of Facts 2d 481 | 64
cases, 38 U. Rich. L. Rev. 839 (2004 WL 2581792)
Organizational downsizing and age discrimination litigation: the influence of personnel practices and
statistical evidence on litigation outcomes, 27 Law & Hum. Behav. 87 (2003 WL 1312491)
Picking up the pieces: resurrecting a private cause of action for disparate impact, 81 N.C. L. Rev.
356 (2002 WL 32057617)
Pilots battle mandatory-retirement law, Legal Times, July 17, 2006, (2006 WL 2017758)
Plaintiffs’ direct evidence burden in mixed-motive disparate treatment cases: an analysis in light of
Costa v. Desert Palace, 54 Case W. Res. L. Rev. 149 (2003 WL 23594113)
Pretext in employment discrimination litigation: mandatory instructions for permissible inferences?
61 Wash. & Lee L. Rev. 407 (2004 WL 2943908)
Pretext instructions in employment discrimination cases: inferring a new disadvantage for plaintiffs,
57 Fla. L. Rev. 411 (2005 WL 1504490)
Proof and pretext: Reeves provides some clarification of the burden-shifting formula in employment
discrimination lawsuits, [Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)], 27
L.A. Law. 22 (2004 WL 2052265)
Proving an employer’s intent: disparate treatment discrimination and the stray remarks doctrine, 55
Vand. L. Rev. 219 (2002 WL 500074)
Recent developments in the law governing employment benefits for older workers: a mixed bag,
11(3) J. Individual Emp. Rts. 239 (2003 WL 24234569)
Rehabilitate the Age Discrimination in Employment Act: resuscitate the “reasonable factors other
than age” defense and the disparate impact theory, 55 Hastings L.J. 1399 (2004 WL 3196858)
Religious freedom act applied in minister’s suit for age discrimination, N.Y. L.J., February 21, 2006
(2006 WL 496845)
Representing the age discrimination plaintiff: charges of age bias in the workplace are increasing as
baby boomers reach their 60s. While these cases have broad jury appeal, they can challenge even
seasoned trial lawyers, 44(8) Trial 36 (2008 WL 3863326)
Retiring mandatory retirement: as some firms drop age-based policies, will others follow suit?, 94
A.B.A. J. 23 (2008 WL 353263)
Reverse age discrimination: are “younger” employees protected? 60 Bench & B. Minn. 27 (2003 WL
23205578)
Reverse age discrimination under the Age Discrimination in Employment Act: protecting all
members of the protected class, 38 Val. U. L. Rev. 217 (2003 WL 23872851)
Reverse discrimination and the age act: General Dynamics v. Cline, 29 Employee Rel. L.J. 1 (2003
WL 22000475)
Reverse discrimination lives under the Age Discrimination in Employment Act, 16 Benefits L.J. 112
(2003 WL 1787012)
Richards, Monetary Awards for Age Discrimination in Employment, 30 Ark L Rev 305
Rolling the dice: litigating mixed motive cases after Desert Palace, Inc. v. Costa, 54 Lab. L.J. 180
(2003 WL 23347895)
Shifting through the burdens: a pretext for clarification—a study of the changing burdens of proof in
discrimination cases, 88 Mass. L. Rev. 48 (2003 WL 23205512)
Shrinking the realm of possibility for reverse age discrimination suits, 39 U. Rich. L. Rev. 753 (2005
WL 115471)
Smith v. City of Jackson: does it really open new opportunities for ADEA plaintiffs to recover under
a disparate impact theory? 36(1) U. Mem. L. Rev. 183 (2005 WL 4650029)
Split decisions: the lack of consensus on disparate impact claims under the Age Discrimination in
Employment Act, 29 Okla. City U. L. Rev. 63 (2004 WL 3219193)
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15 Am. Jur. Proof of Facts 2d 481 | 65
Springgat, The Age Discrimination in Employment Act: New Incentive for Private Enforcement, 17
Santa Clara L Rev 405
Statistics as a guide to RIF selections: caveat emptor, 20 Lab. Law. 79 (2004 WL 2920230)
Supreme Court to consider disparate-impact claims in age bias cases, 38 Trial 74 (2002 WL 534669)
The ADEA and reverse age discrimination: the realities and implications of Cline v. General
Dynamics Land Systems, Inc, 72 U. Cin. L. Rev. 389 (2003 WL 23893167)
The age 60 rule—it is time to defeat it! 70(2) J. Air L. & Com. 319 (2005 WL 4114146)
The aging of the American workforce, 81(2) Chi.-Kent L. Rev. NA (2006 WL 4445594)
The cost to older workers: how the ADEA has been interpreted to allow employers to fire older
employees based on cost concerns, 76 S. Cal. L. Rev. 1409 (2003 WL 23816461)
The elusive nature of discrimination, 55 Stan. L. Rev. 2365 (2003 WL 22148272)
The Sixth Circuit clarifies and qualifies the proper analysis of ADEA cases, 34 U. Mem. L. Rev. 975
(2004 WL 3246324)
The sky remains intact: why allowing subgroup evidence is consistent with the Age Discrimination
in Employment Act, 90(2) Marq. L. Rev. 227 (2006 WL 4287015)
The special problem of the “younger older worker”: reverse age discrimination and the ADEA, 65 U.
Pitt. L. Rev. 339 (2004 WL 2581844)
The trend of lowering an employer’s burden of proof to rebut age discrimination claims, 2003
B.Y.U. L. Rev. 1097 (2003 WL 24048180)
The U.S. Supreme Court’s 2004 term: disparate impact claims under the Age Discrimination in
Employment Act, 56(4) Lab. L.J. 271 (2005 WL 3722464)
Think before you speak: land mines of age discrimination in the workplace, 22 Preventive L. Rep. 19
(2002 WL 31974940)
Transferring employees in asset sales, 4/18/200 N.Y. L.J. 3 (2003 WL 21460361)
What’s age got to do with it? Recent developments in employment law in the United States Supreme
Court, 72 Def. Couns. J. 141 (2005 WL 1123696)
When is an employee too old? 39 Trial 27 (2003 WL 1884348)
Whitter & Whitter, Employment Discrimination: Alternative Remedies to Title VII, 43 UMKC L
Rev 296
Who is a partner? The EEOC looks beyond titles in its age discrimination case against a law firm, 91
A.B.A. J. 34 (2005 WL 1333167)
Why disparate impact claims should not be allowed under the federal employer provisions of the
ADEA, 99 Nw. U. L. Rev. 437 (2004 WL 3244548)
Wilson, A Second Look at Griggs v Duke Power Co.: Ruminations on Job Testing, Discrimination,
and the Role of the Federal Courts, 58 Va L Rev 844
You are not quite as old as you think: making the case for reverse age discrimination under the
ADEA, 26(2) Berkeley J. Emp. & Lab. L. 363 (2005 WL 3969639)
Younger workers can sue under ADEA, Sixth Circuit finds, 38 Trial 82 (2002 WL 31432882)
Adaptation of the older worker to occupational challenges, 22(2) Work 71 (2004)
Human factors in aviation crashes involving older pilots, Aviat. Space Environ. Med., 2002
Feb;73(2):134 (2002)
Practical ethics. Time to tell surgeon to retire?, 81(3) Hosp Health Netw 24 (2007)
The age 60 rule, 75(8) Aviat Space Environ Med 708 (2004)
Union-management solutions for preventing workplace injury of older workers, 22(2) Work 145
(2004)
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15 Am. Jur. Proof of Facts 2d 481 | 66
Additional References
Business necessity defense, B. Babcock, A. Freedman, E. Norton, and S. Ross, Sex Discrimination
and the Law: Causes and Remedies 331–50 (1975)
Age Discrimination in Employment, (Reviewed), 26(5) Legal Info. Alert 10 (2007 WL 2800206)
Footnotes
*
Senior Editor, Bancroft-Whitney Company.
1
113 Cong Rec 34, 743–34,744 (daily ed Dec 4, 1967).
2
29 USCA §§ 621 et seq.
Note:
As aptly expressed by one expert in the field of the legal problems of senior adults: “Age
discrimination is in many ways to the 1970’s what race discrimination was to the 1950’s
and sex discrimination to the 1960’s. Still unaccepted by many courts and deemphasized by
the media, it is an endemic problem that must be vigorously attacked. Indeed, it is a problem
of increased proportions in a time of labor cutbacks, business difficulties, and fierce
competition for an ever diminishing number of jobs.” Gilfix, First Hired—First Fired: Age
Discrimination in Employment, 50 Calif SB J 462, 513.
3
42 USCA §§ 2000e et seq.
4
Discrimination Under Age Discrimination in Employment Act, 10 Am. Jur. Proof of Facts
2d 1.
5
Sex Discrimination in Employment—Promotion Practices, 12 Am. Jur. Proof of Facts 2d
645.
6
29 USCA § 623(f)(1), which is ADEA § 4(f)(1). Cross-reference: This statutory provision
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15 Am. Jur. Proof of Facts 2d 481 | 67
is set forth at § 2, infra.
A discussion of age as a BFOQ in sex discrimination cases under Title VII of the Civil
Rights Act of 1964 is treated at 12 Am. Jur. Proof of Facts 2d 645 § 9.
The distinction between the business necessity doctrine and the BFOQ exception, generally,
is treated at 12 Am. Jur. Proof of Facts 2d 49 § 2.
7
See § 3, infra.
8
See § 4, infra.
9
See § 5, infra.
10
See § 6, infra.
11
See § 7, infra.
12
See § 8, infra.
13
Cross-reference: As to the great weight given to interpretative regulations of the
Department of Labor as to the Act, see § 3, infra.
14
29 USCA § 623(f)(1), which is ADEA § 4(f)(1).
15
Cross-reference: An example of such proof in a successful case is provided at §§ 9– 24,
infra.
Practice Caution:
It is to be borne in mind that the bona fide occupational qualification does not apply as an
exception to prohibited retaliatory conduct against individuals who initiate or participate in
proceedings under the Age Discrimination in Employment Act. In this regard, see 29 USCA
§§ 623(d), (f).
16
42 USCA § 2000e-2(e)(1). Compare § 4(f)(1) of ADEA with § 703(a) of the Civil Rights
Act of 1964, both specifically providing for a BFOQ.
17
See, for example, Diaz v Pan American World Airways, Inc. (CA5 Fla) 442 F2d 385, cert
den 404 US 950, 30 L Ed 2d 267, 92 S Ct 275 and on remand (DC Fla) 346 F Supp 1301,
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15 Am. Jur. Proof of Facts 2d 481 | 68
amd (DC Fla) 348 F Supp 1083.
18
See, for example, Young v Southwestern Sav. & Loan Asso. (CA5 Tex) 509 F2d 140.
19
While the BFOQ defense has not yet arisen in connection with a suit based on
discrimination due to national origin, attention is directed, generally, to Note, Civil
Rights—Employment—National Origin Discrimination and Aliens, 51 Tex L Rev 128.
Practice Note:
Although ADEA has been profitably compared with Title VII of the Civil Rights Act of
1964 in terms of purpose and prohibitions, and thus analogies to Title VII cases are often
helpful in age discrimination cases, it has been said that the two statutes are not entirely
identical and that decisions under Title VII are not wholly dispositive of all the issues raised
in an action brought under ADEA. Murphy v American Motors Sales Corp. (DC Ga) 410 F
Supp 1403.
20
29 CFR § 860.102 (1977).
21
Usery v Tamiami Trail Tours, Inc. (CA5 Fla) 531 F2d 224.
Note:
As to the considerable weight which the courts give to interpretations of federal legislation
by those agencies charged with the enforcement of that legislation, see also Udall v
Tallman, 380 US 1, 13 L Ed 2d 616, 85 S Ct 792, reh den 380 US 989, 14 L Ed 2d 283, 85
S Ct 1325; Griggs v Duke Power Co., 401 US 424, 28 L Ed 2d 158, 91 S Ct 849.
22
29 CFR § 860.102(b) (1977): “It is anticipated that this concept of a bona fide occupational
qualification will have limited scope and application. Further, as this is an exception it must
be construed narrowly, and the burden of proof in establishing that it applies is the
responsibility of the employer, employment agency or labor organization which relies upon
it.”
23
Arnold v Ben Kanowsky, Inc., 361 US 388, 4 L Ed 2d 393, 80 S Ct 453, reh den 362 US
945, 4 L Ed 2d 772, 80 S Ct 803.
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15 Am. Jur. Proof of Facts 2d 481 | 69
24
United States v Alpers, 338 US 680, 94 L Ed 457, 70 S Ct 352; United States v Cooper
Corp., 312 US 600, 85 L Ed 1071, 61 S Ct 742.
25
Cross-reference: As to the burden of proof in BFOQ cases, see § 4, infra.
26
Cross-reference: As to the effect of federal safety regulations on the establishment of a
BFOQ, see § 6, infra.
27
29 CFR § 860.102 (1977).
28
29 CFR § 860.103(h) (1977).
29
Ibid.
30
Usery v Tamiami Trail Tours, Inc. (CA5 Fla) 531 F2d 224; Aaron v Davis (DC Ark) 414 F
Supp 453, reh den (DC Ark) 424 F Supp 1238.
31
Aaron v Davis (DC Ark) 414 F Supp 453, reh den (DC Ark) 424 F Supp 1238.
32
Ibid.
33
Hodgson v Greyhound Lines, Inc. (CA7 Ill) 499 F2d 859, cert den 419 US 1122, 42 L Ed 2d
822, 95 S Ct 805.
Note:
As to the burden of proof in cases involving the defense of “business necessity” justifying a
prima facie discriminatory employment practice under Title VII of the Civil Rights Act of
1964, see 12 Am. Jur. Proof of Facts 2d 49 § 7. For further discussion of the burden of proof
in ADEA litigation, generally, see 10 Am. Jur. Proof of Facts 2d 1 § 4.
34
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15 Am. Jur. Proof of Facts 2d 481 | 70
See, for example, Hodgson v Greyhound Lines, Inc. (CA7 Ill) 499 F2d 859, cert den 419
US 1122, 42 L Ed 2d 822, 95 S Ct 805; Usery v Tamiami Trail Tours, Inc. (CA5 Fla) 531
F2d 224.
35
Hodgson v Greyhound Lines, Inc. (CA7 Ill) 499 F2d 859, cert den 419 US 1122, 42 L Ed 2d
822, 95 S Ct 805; Usery v Tamiami Trail Tours, Inc. (CA5 Fla) 531 F2d 224, in which
substantial medical evidence was presented by an expert in industrial medicine (in the
commercial vehicle field) as to the effects of age upon the ability of the bus driver to
perform safely. Cross-reference: For a sample proof in this regard, see §§ 9– 24, infra.
36
Hodgson v Greyhound Lines, Inc. (CA7 Ill) 499 F2d 859, cert den 419 US 1122, 42 L Ed 2d
822, 95 S Ct 805.
37
McIlvanie v Pennsylvania State Police, 6 Pa Cmwlth 505, 296 A2d 630, affd 454 Pa 129,
309 A2d 801, app dismd 415 US 986, 39 L Ed 2d 884, 94 S Ct 1583; Arritt v Grisell (DC W
Va) 421 F Supp 800.
38
Arritt v Grisell (DC W Va) 421 F Supp 800.
39
McIlvanie v Pennsylvania State Police, 6 Pa Cmwlth 505, 296 A2d 630 affd 454 Pa 129,
309 A2d 801, app dismd 415 US 986, 39 L Ed 2d 884, 94 S Ct 1583.
40
29 CFR § 860.102(e) (1977).
41
Ibid.
42
29 CFR § 860.106 (1977); 20 CFR §§ 521.2, 521.3 (1976).
43
Usery v Tamiami Trail Tours, Inc. (CA5 Fla) 531 F2d 224.
44
Usery v Tamiami Trail Tours, Inc. (CA5 Fla) 531 F2d 224.
45
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15 Am. Jur. Proof of Facts 2d 481 | 71
49 USCA §§ 301 et seq.
46
49 CFR § 392.1(b) (1976).
47
Cross-reference: As to the effect of these Interpretative Bulletins on judicial decisions as to
BFOQ, see § 3, supra.
48
29 CFR § 860.102(d) (1977).
49
Ibid. For the applicable FAA regulations on this subject, see 14 CFR § 121.383(c) (1977).
50
Hart v United Steelworkers of America (DC Pa) 350 F Supp 294, vacated as moot (CA3 Pa)
482 F2d 282.
51
29 USCA § 626(b).
52
Brennan v Ace Hardware Corp. (CA8 Neb) 495 F2d 368, 24 ALR Fed 795. As to some of
the more important procedural considerations in filing or defending a suit under ADEA,
attention is directed to Comment, Procedural Aspects of the Age Discrimination in
Employment Act of 1967, 36 U Pitt L Rev 914.
53
Hodgson v Greyhound Lines, Inc. (CA7 Ill) 499 F Supp 859, cert den 419 US 1122, 42 L
Ed 2d 822, 95 S Ct 805, holding that, in the face of such evidence, the court was convinced
that the company’s maximum age limit of 40 years for new bus drivers was not a violation
of ADEA, since a BFOQ was manifestly present.
54
See §§ 4– 5, supra.
55
See particularly, in this regard, Usery v Tamiami Trail Tours, Inc. (CA5 Fla) 531 F2d 224.
56
Ibid.
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15 Am. Jur. Proof of Facts 2d 481 | 72
57
Ibid.
58
See § 4, supra.
59
Brennan v Approved Personnel Service Inc. (DC NC) 8 CCH EPD ¶9810, revd on other
grounds (CA4) 10 CCH EPD ¶10472.
60
Hodgson v Earnest Machine Products, Inc. (CA6 Ohio) 479 F2d 1133.
61
29 USCA § 623(f)(1).
62
Brennan v Reynolds & Co. (DC Ill) 367 F Supp 440.
63
Hinote v Dworshak Dam Contractors (DC Idaho) 6 CCH EPD ¶8892.
64
Stringfellow v Monsanto Co. (DC Ark) 320 F Supp 1175. As to production levels as a bona
fide evaluation factor, see 29 CFR § 860.103(f)(2) (1977).
65
See, in this regard, Gill v Union Carbide Corp. (DC Tenn) 368 F Supp 364.
66
See, for example Schulz v Hickok Mfg. Co. (DC Ga) 358 F Supp 1208.
67
See, for example Gill v Union Carbide Corp. (DC Tenn) 368 F Supp 364.
68
Schulz v Hickok Mfg. Co. (DC Ga) 358 F Supp 1208.
69
Lachapelle v Owens—Illinois, Inc. (DC Ga) 64 FRD 96, affd (CA5 Ga) 513 F2d 286;
Burgett v Cudahy Co. (DC Kan) 361 F Supp 617.
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15 Am. Jur. Proof of Facts 2d 481 | 73
Note:
Fed R Civ P 23 requires that members of the class be so numerous that joinder of all is
impracticable, that questions of law or fact are common to the class, that the claims or
defenses of the representative parties are typical of the claims or defenses of the class, and
that the representative parties will fairly and adequately protect the interests of the class.
See, in this regard, 15 Am. Jur. 2d, Civil Rights § 75.
70
29 USCA §§ 621 et seq.
71
Note:
Remedies under ADEA for a successful complainant include awards for damages, an order
of reinstatement with back pay, the issuance of an injunction, and counsel fees. For a
detailed consideration of the remedies available to a successful complainant under ADEA,
see Construction and Application of Age Discrimination in Employment Act of 1967 (29
USCA §§ 621 et seq.), 24 A.L.R. Fed. 808 §§ 8–11. For a more detailed discussion of the
remedies and measure of damages in ADEA litigation, see 10 Am. Jur. Proof of Facts 2d 1
§§ 6–7. As to the appropriate measure of damages in litigation under ADEA, see Richards,
Monetary Awards for Age Discrimination in Employment, 30 Ark L Rev 305.
72
Rogers v Exxon Research & Engineering Co. (CA3 NJ) 550 F2d 834.
74
Schulz v Hickok Mfg. Co. (DC Ga) 358 F Supp 1208; 24 A.L.R. Fed. 808 § 9.
75
Cross-reference: § 4(f)(1) is set forth at § 2, supra.
Note:
Some portions of the proof are based on testimony rendered in Usery v Tamiami Trail
Tours, Inc. (CA5 Fla) 531 F2d 224, in which the proof established that age was a BFOQ
through the testimony, among others, of an expert in industrial medicine with particular
background relating to commercial-vehicle drivers and the testimony of transportation
safety experts.
Reminder:
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15 Am. Jur. Proof of Facts 2d 481 | 74
Counsel is again reminded that there are a wide variety of jurisdictional, notice, and
pleading prerequisites which must be met to sustain the prima facie case on the part of the
government, and attention is directed to § 7, supra, for a consideration of other factors
which may result in a successful defendant’s judgment even before the BFOQ defense is
reached.
End Of Document
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