# EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. MISSISSIPPI STATE TAX COMMISSION, Defendant-Appellee

> Court of Appeals for the Fifth Circuit · June 21, 1988 · 848 F.2d 526

URL: https://www.frixlaw.com/law-library/cases/9477741

## Case

- **Full name:** 47 Fair empl.prac.cas. 382, 47 Empl. Prac. Dec. P 38,118 Equal Employment Opportunity Commission v. Mississippi State Tax Commission
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** June 21, 1988
- **Citations:** 848 F.2d 526; 47 Empl. Prac. Dec. (CCH) 38,118; 47 Fair Empl. Prac. Cas. (BNA) 382; 1988 U.S. App. LEXIS 9238
- **Precedential status:** Published
- **Opinion:** Concurrence by Jones
- **Judges:** Goldberg, Rubin, Jones
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

EDITH H. JONES, Circuit Judge,
specially concurring:
Although Judge Rubin’s opinion is thorough and well-written, I concur in today’s decision only because its result is dictated by the factually and legally similar case of EEOC v. Mississippi, 837 F.2d 1398 (5th Cir.1988). Were I writing on a clean slate, however, my analysis and probably my result 1 would follow that of the two courts *534 of appeals which, unlike ours, have not required law enforcement employers to develop, implement, and enforce minimum fitness standards before their alleged qualifications can be deemed “reasonably necessary.” Compare EEOC v. Pennsylvania, 829 F.2d 392 (3rd Cir.1987) (minimum standards required), and EEOC v. Mississippi, 837 F.2d 1398 (5th Cir.1988) (same), with EEOC v. City of East Providence, 798 F.2d 524 (1st Cir.1986) (minimum standards not required), and EEOC v. Missouri State Highway Patrol, 748 F.2d 447 (8th Cir. 1984) (same). 2
In Western Air Lines, Inc. v. Criswell, 472 U.S. 400 , 105 S.Ct. 2743 , 86 L.Ed.2d 321 (1985), the Supreme Court adopted the two-pronged test crafted by then-Chief Judge Brown in Usery v. Tamiami Trail Tours, 531 F.2d 224 (5th Cir.1976), in setting the scope of the BFOQ exception to the ADEA. First, the employer must establish that the job qualifications he invokes to justify age discrimination are reasonably necessary to the essence of his business. The purpose of the “reasonably necessary” prong is to serve as a basic check against qualifications so peripheral as to be non-essential to the job. Second, the employer must demonstrate that he is compelled to rely on age as a proxy for the essential job qualification validated by the first inquiry. The second prong can be proven by establishing either (a) that the employer had reasonable cause to believe that all or substantially all persons over the age qualification would not be able to perform the duties of the job safely, or (b) that it is highly impractical to deal with the older employees on an individualized basis. The second prong ensures that age is the necessary proxy for the essential job qualification. EEOC v. Mississippi, 837 F.2d at 1400-01 (discussing Criswell).
Following EEOC v. Mississippi, the central issue here becomes the type of proof needed to satisfy the “reasonably necessary” prong of Tamiami. Our prior panel noted that employers are entitled “to exercise substantial discretion in judging the reasonableness of safety-related job qualifications,” and that in Tamiami we had held that “employers are entitled to substantial discretion in judging the reasonableness of qualifications[.]” Id. Relying on EEOC v. Pennsylvania, 829 F.2d 392 (3rd Cir.1987), however, our court then held that age qualifications will not survive the “reasonably necessary” inquiry absent the development, implementation and enforcement of minimum standards of employee fitness. Id. at 1401-02. It is this addendum to the Tamiami test — or at least to the first prong— that causes me to write separately.
By focusing on “minimum standards” in a case involving active law enforcement duties, we are, I believe, missing the forest for the trees. Fitness for engaging in law enforcement is not merely a matter of being able to pass certain strength, aerobic capacity, and coronary fitness tests and to maintain overall good health. It requires endurance, fast reflexes, and mental and physical flexibility, as the testimony here indicated and the district court found. “Minimum standards” as required by our amendment of Tamiami do not necessarily correlate with or replicate the job duties of law enforcement, and to that extent, they are a potentially misleading gauge of what is “reasonably necessary”. 3 In practice, *535 the minimum standards requirement imposes a considerable burden on the Mississippi State Tax Commission and other law enforcement agencies. The cost of developing and implementing physical fitness training or monitoring will not be insignificant, especially for a state-wide agency whose employees are widely dispersed. The costs of the program will almost surely be diverted from the agency’s principal mission of law enforcement. Moreover, once the standards are in place, agencies will have to decide how to enforce them. In order to prove the validity of “minimum standards,” for instance, must they fire or discipline experienced officers who gained 20 pounds or developed controllable arthritis or ran a mile in 10 minutes rather than 8:30? Such a program would disportionately elevate “minimum standards” over actual job performance and could easily disrupt morale among the law enforcement officers. It is akin to requiring every legal secretary in a law firm to demonstrate her proficiency in typing Latin. The First Circuit neatly explained the dilemma imposed on such employers by the minimum standards shibboleth:
The ADEA was intended to be used as a shield to protect older employees from discriminatory employment practices, not as a sword to compel employers concerned with public safety to perfect their procedures for assuring the maximum physical fitness of younger employees.
EEOC v. City of East Providence, 798 F.2d 524, 529 (1st Cir.1986) (footnote omitted).
Equally significant, it seems to me, is that neither Criswell, Tamiami nor legislative history requires an employer to prove the first Tamiami prong by means of “minimum standards.” Whether a job qualification is reasonably necessary to the essence of the employer’s business focuses in plain language on the actual job duties and conditions rather than qualifications “peripheral” to the “central mission” of the employer. Criswell, 105 S.Ct. at 2751 . Although the analysis of the reasonable necessity of particular law enforcement qualifications, e.g., physical stamina and fast reflexes, must be determined in each case from objective evidence and not merely the employer’s opinion, the presence or absence of physical “minimum standards” should not substitute for the real job duties. Again, the First Circuit well expressed the evidentiary significance of such criteria:
But a police force’s failure to monitor physical standards does not, standing alone, compel a finding that physical fitness is not a reasonably necessary job qualification. Such laxity may merely show that, because of inertia or outside pressures, the present leaders of the department are putting up with lower standards than properly they should.
EEOC v. City of East Providence, 798 F.2d at 530 . Moreover, to rest the first prong of Tamiami on the development and enforcement of minimum standards effectively severs from the second prong of Tamiami the employer’s option to prove that age is a valid proxy by establishing that individual determinations are impossible.
I would not deny that “minimum standards” have a proper place in applying the BFOQ defense in age discrimination cases. Their existence or non-existence may be one factor considered by the court in determining whether job qualifications are reasonably necessary to the essence of the employer’s business. Compare Heiar v. Crawford County, 746 F.2d at 1198-99. I would also rely on an employer’s application of “minimum standards” such as periodic medical examinations as evidence under Tamiami’s second prong, which calls for a logical nexus between age and the job qualifications of the employer. 4
*536 In Criswell , the Supreme Court established a fact-intensive standard for effectuating Congress’s intent that mandatory retirement should be eliminated except where it is objectively necessary to insure adequate job performance. Furthermore, both Criswell and Tamiami advise us to interpret and apply the tests on a case-by-case method. Criswell, 105 S.Ct. at 2750 . The test adopted by our court in EEOC v. Mississippi extends the significance of one piece of evidence, minimum standards, well beyond the demands of Criswell and Tam-iami. In so doing, I believe it also undermines the intent of Congress in passing the admittedly narrow BFOQ defense. Congress could have required employers to maintain minimum standards of health and fitness for particular jobs, or it could have outlawed all mandatory retirement. It did neither. Our decision, in my view, goes far toward doing both.
. The First Circuit and Eighth Circuit cases addressed the mandatory retirement of city police officers and state highway patrol officers who constantly faced situations life-threatening to themselves and to the public. Here, however, we are reviewing the mandatory retirement of scales enforcement officers whose involvement in life-threatening situations, according to the record, is the exception rather than the rule. The distinction could be significant. I do not find it necessary to review the district court’s determinations independently at this stage, except to note that the “clearly erroneous” rule applies to its findings of fact.
. Cf. Heiar v. Crawford County, 746 F.2d 1190 (7th Cir.1984), cert. denied, 472 U.S. 1027 , 105 S.Ct. 3500 , 87 L.Ed.2d 631 (1985) (Court did not expressly require minimum standards; in reviewing "weak" evidence under "clearly erroneous” standard, however, the panel mentioned more than once the employer's failure to require annual or periodic physical examinations.).
. Congress has recognized that law enforcement jobs may be particularly susceptible to mandatory retirement policies, in its report on the BFOQ amendment to the Age Discrimination in Employment Act:
For example, in certain types of particularly arduous law enforcement activity, there may be a factual basis for believing that substantially all employees above a specified age would be unable to continue to perform swiftly and efficiently the duties of their particular jobs, and it may be impossible or impractical to determine through medical examinations, periodic reviews of current job performance and other objective tests the employees' capacity or ability to continue to perform the jobs safely and efficiently.
S.Rep. No. 95-493, 95th Cong., reprinted in 1978 U.S.Code Cong. & Ad.News 504, 513-14 (legislative history).
. Cf. EEOC v. Mississippi, 837 F.2d at 1402 : It Is likely that Mississippi’s age qualifications for game wardens would have passed muster had the Mississippi legislature "developed, implemented and enforced” minimum standards of health and fitness and shown that nearly all conservation officers over age sixty could not meet those standards or that individual determinations were impossible. Since the Supreme Court’s concerns would have been satisfied, our task would have been simply to defer to a decision by a competent authority. That did not take place, however; and because it did not, there is no essential *536 job qualification in this case that age can stand as a proxy for. (Bolding in original, underlining added.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9477741. Public record. Not legal advice.