Western Air Lines, Inc. v. Criswell

Facts

The statutory framework. The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621–634, “generally prohibits mandatory retirement before age 70,” but section 4(f)(1) excepts conduct “‘where age is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business.’” (Criswell, supra, 472 U.S. at pp. 402–403.) The Court reproduced the text: “‘It shall not be unlawful for an employer … (1) to take any action otherwise prohibited … where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business ….’” (Id. at p. 403, fn. 1, quoting 29 U.S.C. § 623(f)(1).) The statute’s declared purpose is “‘to promote employment of older persons based on their ability rather than age [and] to prohibit arbitrary age discrimination in employment.’” (Id. at p. 410, quoting 29 U.S.C. § 621(b).) Its prohibition then reached “‘all persons between the ages of 40 and 70.’” (Ibid.)

The job. Western operated aircraft requiring three cockpit crew members — “‘a captain, a first officer, and a flight engineer.’” (Id. at p. 403.) The flight engineer “‘usually monitors a side-facing instrument panel,’” and “‘does not operate the flight controls unless the captain and the first officer become incapacitated.’” (Ibid., quoting Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 114.) An FAA regulation forbids anyone from serving “‘as a pilot or first officer on a commercial flight “if that person has reached his 60th birthday”’” (id. at p. 404), but the FAA “‘has refused to establish a mandatory retirement age for flight engineers’” (ibid.), and “‘available statistics establish that flight engineers have rarely been a contributing cause or factor’” in commercial aircraft accidents or incidents (ibid.).

The terminations. In 1978 respondents Criswell and Starley were DC-10 captains who turned 60; to avoid the FAA’s under-age-60 pilot rule they applied for reassignment as flight engineers, and Western denied both requests “‘ostensibly on the ground that both employees were members of the company’s retirement plan which required all crew members to retire at age 60.’” (Id. at pp. 404–405.) Respondent Ron, “‘a career flight engineer, was also retired in 1978 after his 60th birthday.’” (Id. at pp. 405–406.) The Western official responsible “‘conceded that “the sole basis” for the denial’” was the pension-plan retirement provision, and admitted “‘he had “no personal knowledge” of any safety rationale for the under-age-60 rule for flight engineers.’” (Id. at p. 405, fn. 4.)

The conflicting evidence. The District Court found the flight engineer’s “‘normal duties are less critical to the safety of flight than those of a pilot,’” though he “‘does have critical functions in emergency situations.’” (Id. at p. 406.) Western’s expert, a former FAA Deputy Federal Air Surgeon, testified that “‘with advancing age the likelihood of onset of disease increases and that in persons over age 60 it could not be predicted whether and when such diseases would occur.’” (Ibid.) Plaintiffs’ experts testified that “‘physiological deterioration is caused by disease, not aging,’” and that “‘it was feasible to determine on the basis of individual medical examinations’” whether crew members over age 60 “‘were physically qualified to continue to fly.’” (Id. at pp. 406–407.) The record showed the FAA and airlines had recertified pilots grounded for alcoholism or cardiovascular disease and allowed others to “‘downgrade’” to flight engineer, and that “‘several large commercial airlines have flight engineers over age 60 “flying the line” without any reduction in their safety record.’” (Id. at p. 407.)

Procedural history

Criswell, Starley, and Ron sued Western in the United States District Court for the Central District of California, contending the under-age-60 qualification for flight engineer violated the ADEA. (Id. at pp. 405–406.) Western defended in part on the theory that the age-60 rule was a BFOQ “‘“reasonably necessary” to the safe operation of the airline.’” (Id. at p. 405.) The jury was instructed on the BFOQ defense (quoted below), “‘rendered a verdict for the plaintiffs, and awarded damages,’” and the District Court granted equitable relief, finding no merit in Western’s BFOQ defense. (Id. at p. 408; see 514 F.Supp. 384 (C.D. Cal. 1981).) The Ninth Circuit “‘affirmed in all respects,’” specifically “‘reject[ing] Western’s contention that the instruction on the BFOQ defense was insufficiently deferential to the airline’s legitimate concern for the safety of its passengers.’” (Id. at p. 408; see 709 F.2d 544 (9th Cir. 1983).) The Supreme Court granted certiorari “‘to consider the merits of this question.’” (Ibid.) Justice Stevens delivered the opinion of the Court; Justice Powell took no part. (Id. at pp. 402, 423.)

Issue

The Court framed the question narrowly: “‘The question here is whether the jury was properly instructed on the elements of the BFOQ defense.’” (Id. at p. 403.) That broke into a doctrinal question — what an employer must show to establish an age-based BFOQ purportedly justified by safety — and an instructional question: whether the trial court’s Tamiami-pattern charge was correct and “‘sufficiently protective of public safety,’” or whether the jury should instead have been told to defer to the airline’s safety judgment under a “‘rational basis in fact’” standard. (Id. at pp. 408, 417, 421.)

Holding

Reasoning

The empirical premise: age is a poor proxy for ability. Justice Stevens opened the analysis with the fact that pervades the ADEA’s legislative history: “‘the process of psychological and physiological degeneration caused by aging varies with each individual.’” (Id. at p. 409.) Congress had “‘[t]he basic research in the field of aging has established that there is a wide range of individual physical ability regardless of age,’” so that “‘many older American workers perform at levels equal or superior to their younger colleagues.’” (Id. at pp. 409–410 & fn. 11.) The 1965 Secretary of Labor report and the 1978 Amendments confirmed that mandatory retirement “‘based solely upon age is arbitrary’” and that “‘chronological age alone is a poor indicator of ability to perform a job.’” (Id. at pp. 409–411.)

The BFOQ is an “extremely narrow” exception. Congress borrowed the BFOQ “‘concept and statutory language from Title VII of the Civil Rights Act of 1964,’” permitting age classifications only “‘“where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.”’” (Id. at pp. 411–412.) Because the enforcing agencies had declared the exception of “‘“limited scope and application”’” and to be “‘“construed narrowly,”’” the Court concluded that, “‘like its Title VII counterpart, the BFOQ exception “was in fact meant to be an extremely narrow exception to the general prohibition” of age discrimination.’” (Id. at p. 412, quoting Dothard v. Rawlinson (1977) 433 U.S. 321, 334.)

Adopting the two-part Tamiami inquiry. The heart of the opinion is its adoption of the framework the Fifth Circuit announced in Usery v. Tamiami Trail Tours, Inc. (5th Cir. 1976) 531 F.2d 224. The first inquiry recognizes that “‘some job qualifications may be so peripheral to the central mission of the employer’s business that no age discrimination can be “reasonably necessary to the normal operation of the particular business.”’” (Id. at p. 413.) Quoting Tamiami, the safety justification “‘“must be reasonably necessary to the essence of his business — here, the safe transportation of bus passengers … . The greater the safety factor … the more stringent may be the job qualifications.”’” (Ibid.) The second inquiry holds that “‘the ADEA requires that age qualifications be something more than “convenient” or “reasonable”; they must be “reasonably necessary … to the particular business,” and this is only so when the employer is compelled to rely on age as a proxy for the safety-related job qualifications validated in the first inquiry.’” (Id. at p. 414.)

The two ways to prove the proxy. The Court spelled out how an employer carries the second showing. It may “‘establish that it “‘had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all [persons over the age qualifications] would be unable to perform safely and efficiently the duties of the job involved.’”’” (Id. at p. 414.) “‘Alternatively, the employer could establish that age was a legitimate proxy for the safety-related job qualifications by proving that it is “‘impossible or highly impractical’” to deal with the older employees on an individualized basis.’” (Ibid.) And: “‘“One method by which the employer can carry this burden is to establish that some members of the discriminated-against class possess a trait precluding safe and efficient job performance that cannot be ascertained by means other than knowledge of the applicant’s membership in the class.”’” (Id. at pp. 414–415.) The Court found the two-part test independently confirmed by the 1978 Amendments’ legislative history — Congress having “‘implicitly endorsed the two-part inquiry’” (id. at p. 415) — by an EEOC regulation embracing “‘the same criteria’” (id. at p. 416 & fn. 24), and by the uniform practice of “‘[e]very Court of Appeals that has confronted a BFOQ defense based on safety considerations’” (id. at p. 416 & fn. 23).

Rejecting “reasonableness” for “reasonable necessity.” Western urged the jury be told to “‘defer to “Western’s selection of job qualifications for the position of [flight engineer] that are reasonable in light of the safety risks.”’” (Id. at p. 419.) The Court refused: that proposal “‘is plainly at odds with Congress’ decision, in adopting the ADEA, to subject such management decisions to a test of objective justification in a court of law. The BFOQ standard adopted in the statute is one of “reasonable necessity,” not reasonableness.’” (Ibid.) Yet the Court took pains to reassure that safety is not slighted: “‘That interest is adequately reflected in instructions that track the language of the statute.’” (Ibid.) Indeed, “‘[t]he uncertainty implicit in the concept of managing safety risks always makes it “reasonably necessary” to err on the side of caution in a close case,’” and the employer cannot be required to prove the risk “‘“to a certainty, for certainty would require running the risk until a tragic accident would prove that the judgment was sound.”’” (Id. at pp. 419–420.) A lay jury, the Court observed, “‘would not [likely fail to] defer in a close case to the airline’s judgment.’” (Id. at p. 420.)

The “highest possible degree of safety” instruction. Western complained that the charge defining the essence of its business as “‘the safe transportation of their passengers’” failed to tell the jury an airline must operate “‘“with the highest possible degree of safety.”’” (Id. at pp. 420–421.) The Court rejected the objection because instructions “‘“may not be judged in artificial isolation,”’” but in “‘“context of the overall charge.”’” (Id. at pp. 420–421, quoting Cupp v. Naughten (1973) 414 U.S. 141, 147.) The charge referred to “‘“safe and efficient job performance,”’” and counsel argued in closing that “‘“safety is the essence of Western’s business.”’” (Id. at p. 421.) “‘Viewing the record as a whole,’” the jury’s attention “‘was adequately focused on the importance of safety.’” (Ibid.)

Rejecting the “rational basis in fact” standard. Western’s central proposed instruction would have let it prevail on the BFOQ defense by proving “‘“a rational basis in fact”’” to believe that individualized identification of unqualified persons could not be made. (Id. at pp. 417–418, 421.) The Court held this “‘would have been tantamount to an instruction to return a verdict in the defendant’s favor,’” and that it “‘conveys a meaning that is significantly different from that conveyed by the statutory phrase “reasonably necessary.”’” (Id. at pp. 421–422.) It was also “‘inconsistent with the preference for individual evaluation expressed in the language and legislative history of the ADEA’” — for “‘[i]t might well be “rational” to require mandatory retirement at any age less than 70,’” yet that “‘would not comply with Congress’ direction that employers must justify the rationale for the age chosen.’” (Id. at p. 422.) Unless the employer shows that all or nearly all older employees lack the qualifications, “‘the age selected for mandatory retirement less than 70 must be an age at which it is highly impractical for the employer to insure by individual testing’” fitness. (Id. at pp. 422–423.)

Conflicting experts go to the jury, not to deference. Western argued that where “‘“qualified experts disagree,” an employer must be allowed to resolve that controversy in a conservative manner.’” (Id. at p. 423.) The Court answered that this “‘incorrectly assumes that all expert opinion is entitled to equal weight, and virtually ignores the function of the trier of fact in evaluating conflicting testimony.’” (Ibid.) The jury “‘may well have attached little weight to the testimony of Western’s expert.’” (Ibid.) A rule of deference to “‘any expert witness testifying for the employer, no matter how unpersuasive,’” would license “‘the stereotype of older workers that Congress decried.’” (Ibid.) Where reputable industry peers reject early mandatory retirement, the employer itself uses individualized testing in similar circumstances, and the regulator finds individualized testing practical, the employer’s litigation-solicited contrary expert “‘is hardly convincing on any objective standard short of complete deference’” — and “‘[e]ven in cases involving public safety, the ADEA plainly does not permit the trier of fact to give complete deference to the employer’s decision.’” (Id. at p. 423.)

Significance

Criswell is the Supreme Court’s definitive articulation of the age-BFOQ defense, elevating the Fifth Circuit’s Tamiami two-part inquiry into binding national law and decided alongside its companion, Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111. Where Thurston addressed a discriminatory transfer policy that imposed no under-age-60 qualification (Criswell, supra, 472 U.S. at p. 403, fn. 2), Criswell squarely resolved how an employer may justify an age line as a BFOQ. By insisting on “‘reasonable necessity,’” not “‘reasonableness,’” and by refusing any deference to the employer’s safety judgment, the Court placed the burden of objective, evidence-based justification on the employer and committed the question to a jury. (Id. at pp. 419, 423.)

The decision’s logic — that age is a permissible proxy only when individualized assessment is impossible or highly impractical — became the doctrinal template later carried into Title VII sex-BFOQ analysis (compare Dothard v. Rawlinson, supra, 433 U.S. 321, on which the Court relied). For California practitioners, Criswell supplies the federal architecture behind FEHA’s parallel BFOQ defense to age claims (Gov. Code § 12940; CACI age-discrimination and BFOQ instructions), and its rejection of employer deference and its “err on the side of caution in a close case” qualifier remain the two poles between which safety-based defenses are litigated. Its limits are real: the prohibition then ran only to age 70 (id. at p. 410) — Congress has since lifted the upper cap for most employees — and the FAA’s pilot age-60 rule the opinion treats as “‘relevant evidence’” but “‘not … conclusive’” (id. at p. 418) has since changed, so a citator check is essential before relying on the regulatory backdrop.

Key quotes

“The job qualifications which the employer invokes to justify his discrimination must be reasonably necessary to the essence of his business — here, the safe transportation of bus passengers from one point to another.” (Criswell, supra, 472 U.S. at p. 413.)

“[T]he ADEA requires that age qualifications be something more than ‘convenient’ or ‘reasonable’; they must be ‘reasonably necessary … to the particular business,’ and this is only so when the employer is compelled to rely on age as a proxy for the safety-related job qualifications validated in the first inquiry.” (Id. at p. 414.)

“The BFOQ standard adopted in the statute is one of ‘reasonable necessity,’ not reasonableness.” (Id. at p. 419.)

“Even in cases involving public safety, the ADEA plainly does not permit the trier of fact to give complete deference to the employer’s decision.” (Id. at p. 423.)

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Practice pointer

Open questions

The Court left several matters unresolved. On the burden of proof for the “reasonable factors other than age” (RFOA) defense, the Court had granted certiorari but declined to reach it: because, as it read the instructions, “‘the burden was placed on the plaintiffs on the RFOA issue,’” the Court stated, “‘we need not consider whether it would have been error to assign it to the defendant.’” (Id. at p. 408, fn. 10.) On the “highest possible degree of safety” formulation, the Court held only that, viewed in context, the omission was harmless on this record, without deciding whether such an instruction would ever be required. (Id. at pp. 420–421.) On the “highest degree of safety” qualifier itself, the Court reserved precisely how far safety considerations bear on the BFOQ analysis, noting they are “‘only relevant at the margin of a close case, and do not relieve the employer from its burden of establishing the BFOQ by the preponderance of credible evidence.’” (Id. at p. 419, fn. 29.) Finally, the Court declined to fault the trial judge for not giving a deference instruction “‘that was not requested,’” leaving open how a properly requested deference charge would fare. (Id. at p. 420, fn. 30.)