Mandatory retirement ages have been largely eliminated for most employees, but still continue in a handful of areas. For many years, the Federal Aviation Administration prohibited pilots over the age of 60 from flying for commercial airlines. In 2007, that limit was raised to age 65 for domestic flights. But what about private pilots working before and after that date?
In EEOC v. Exxon Mobil Corp., Case No. 3:06-CV-01732-K (N.D. Tex. Dec. 19, 2012), the employer used a fleet of planes and pilots who acted much like those flying for commercial airlines. Consistent with (but not required by) the FAA regulations, it required pilots to retire at age 60. The EEOC brought suit on behalf those who were forced to retire under that policy. Although the case was initially brought in 2006, before the FAA rule change, the employer continued to require retirement at age 60 afterwards. The case itself had a lengthy procedural posture over its 6-year (so far) existence, including an appeal to the Fifth Circuit. Ultimately, however, the court ruled on cross motions to strike expert testimony and on the employer’s motion for summary judgment.
Both parties submitted expert testimony and the court reviewed all of the testimony in light of the decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Interestingly, while the court found that both parties’ experts met the Daubert standard, it found no need to decide whether Daubert applied at all in this context, and did not reference the discussion in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), regarding Daubert’s application at the class certification stage. This was an appropriate omission as the motions related to the merits (i.e. summary judgment) and not on the issue of certification itself.
The court concluded that the policy was lawful, largely faulting the EEOC’s own evidentiary submissions. The employer cited air safety as the reason for its policies, and medical testimony to the effect that “aging causes a progressive physiological and cognitive decline,” the basis for the FAA rule. The court found that the EEOC did not contest this fact nor the fact that a sudden incapacitation would jeopardize air safety. The court found that the work of the pilots was substantially similar to that of commercial pilots and that the same safety issues that prompted the FAA rule applied. While the EEOC successfully showed that instances in which even pilots over the age of 60 might become incapacitated without warning were “rare,” it failed to show what tests could be used to predict such instances or what steps could be taken to prevent them. Thus, the court found that the employer had established a defense that being under age 60 was a bona fide occupational qualification (“BFOQ”) for even private pilots.
Interestingly, the court also found that while the employer continued to require retirement at age 60 after the change in the FAA rule, that did not change the outcome. Even at age 60, the EEOC still had failed to show a practical means of dealing with the safety issue on an individual basis. Thus, the court granted summary judgment for the employer on the entire case.
The bottom line: Even with a defense as difficult as a BFOQ on a class basis, an employer may still be entitled to summary judgment where safety issues are paramount.