upholding blanket policy against hiring campus police officers beyond the age of 45 because objective testing of individuals for physical and psychological abilities is difficult and seriously uncertain
How later courts described this case
- upholding blanket policy against hiring campus police officers beyond the age of 45 because objective testing of individuals for physical and psychological abilities is difficult and seriously uncertain
Written by the judges who cited it.
The opinion
PATRICK E. HIGGINBOTHAM, Circuit Judge,
specially concurring:
I concur and write separately only to state candidly that our cases seem to be driven by at least three virtually sub rosa forces that make the requirements for proof of a bona fide occupational qualification under ADEA, while analogous in approach, not as exacting as those of Title VII. The first is inherent in the fact that race, sex, and national origin describe an immutable status while age is a dynamic progression. Second and relatedly is the reality that we accept the factual and legal validity of using age as a prediction of certain physical and agility skills, the inquiry being largely the correspondence between the specific age and the specific skill requirement, and we accept that age does so in such a sufficiently efficient manner that its use is not necessarily suspect. Finally, the risk of error when public safety is proved to be actually implicated is resolved in favor of safety. All of these circumstances are present here and are sufficient for me to join in affirming an otherwise close case.