Petition — County of Los Angeles v. Equal Employment Opportunity Commission

o Office- Supreme Court, U.S.

8 3 3 3 2 FilLsBe

AUG 24 1983

ALEXANDER L. STEVAS,

CLERK

eee

IN THE

Supreme Court of the United States

October Term, 1983

COUNTY OF Los ANGELES,

Petitioner,

vs.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT.

DONALD K. BYRNE,

Chief Deputy County Counsel,

WILLIAM F. STEWART,

Chief Labor Relations Division,

648 Hall of Administration,

Los Angeles, Calif. 90012,

(213) 974-1829,

Attorneys for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

Questions Presented.

1. Can, and did, Congress intend to apply the ADEA

differently to similar federal, state and local law enforce-

ment occupations or to exempt only federal law enforcement

personnel from ADEA coverage? If so, does it constitute

an unconstitutional application of the Act to the states?

2. Was the Petitioner’s entry age limit of 35 for law

enforcement/firefighting personnel a bona fide occupational

qualification, or an exception to the Age Discrimination in

Employment Act considering Congressional authorization

of age limitations for the same federal occupations?

3. Did the Circuit Court adopt an unreasonable and

impermissibly strict BFOQ standard for law enforcement

agencies contrary to the intent of Congress by, inter alia,

precluding consideration of (a) economic or career longevity

factors unique to those agencies, and (b) comparable federal

age limitations?

4. Was the trial court’s application of the medical find-

ings clearly erroneous?

TABLE OF CONTENTS

Page

oon 8 Lc arabbbnedbunsdeves i

Opinion and Judgment Below ................ccceeeeeeeees |

RB EEE ae a |

EE Siclticd obese dewesncanvbbooesdpsvabvoeqancnt 2

I 5k ae osaecdvenbeutacahiascedyte 2

Reasons for Granting the Writ ...............c0ceceeeeeeees 7

I.

Congress Intended Consistent Treatment of Age Lim-

its for Similar Federal, State and Local Safety

Occupations and That Such Age Limits Were a

EE aE aA tcmiebiverbes docunadidebuseseicdscedtesss 7

A. The Supreme Court Should Establish a Rea-

sonable BFOQ Standard to Avoid Inconsistent

Treatment of Similar Safety Occupations and

to Harmonize Federal and State Hiring Prac-

NN CeGhih bie dSs nits wanpve ccepahslsipalimpicnioss 7

B. Congress Intended the Same Treatment of

Similar Federal, State and Local Law Enforce-

PUNE RIO on cic es cccscechercesonsinsneses 11

C. The Circuit Court Misapprehended the

Supreme Court’s Decision in EEOC v. Wyo-

Il.

The Circuit Court Adopted an Unreasonable BFOQ

Standard for Law Enforcement and Public Safety

IED. cdi cvercvesecerscccccedevssecennsesvetooooes 19

A. The Holding Is Contrary to Congressional In-

tent and Other Circuit Court Decisions ...... 19

ili

Page

B. The Lower Courts’ Application of Medical

Findings to the BFOQ Standard Was Clearly

AMNUEE 30h: 56 cos aindesecaces «: Unvextaertoepeseouioey 23

RIND fin crib cand buncodscadanns ceedanerbadsdevowstesaayt. 26

INDEX TO APPENDICES

Appendix A. Opinion, Filed: May 26, 1983...........

Reiadknae os ta keniees ickinanden dens oiuebwoenancer’ App. p. 1

Appendix C. Judgment, Filed: December 17, 1981

Sede. ple bent

iv

TABLE OF AUTHORITIES

Cases Page

Beck v. Borough of Manheim, 505 F.Supp. 923 (1981)

Bowman v. U.S. Department of Justice, 510 F.Supp.

BPUEIIED choks sisvabs shbvinsesiiszaieccdeazeisaraalia Ree

EEOC v. Missouri Highway Patrol, 554 F.Supp. 667

RIE scab basadueaickdces soase thdaciaveadedoasansewt 9, 10, 16

EEOC v. St. Paul, 671 F.2d 1162 .......0.....s.ce0ccee0s 16

EEOC v. Wyoming, —— U.S. —~_, 103 S.Ct. 1054

DRS Citi icaikedncvdscusigionkens 5, 6, 8, 11, 17, 18, 21

Equal Opportunity Commission v. County of Los An-

geles, __ F.2d __ (9th Cir. 1983), 31 F.E.P. Cases

DEE: shh s~ nelinkshoakénedschoSitebtass Mi tuubtsaostintecs |

Griggs v. Duke Power, 401 U.S. 424 (1971) .......... 14

Hodgson v. Greyhound Lines, 499 F.2d 859 (7th Cir.

POU dik caihilsvacboceveedcescsdeassiedohe 9, 10, 22, 23, 25

Houghton v. McDonnell Douglas Corporation, 627 F.2d

ee MRE AE, OUD cactsiisec cass sucstdebedeabacecdeanlies 9

Maki v. Commissioner of Education, State of New York,

_—. F.Supp. —_, 32 FEP Cases 630 (June 30, 1983)

Massachusetts Board of Retirement v. Murgia, 427 U.S.

200, 96 SL; 162 CPIM os... Ss 7

Murnane v. American Airlines, 667 F.2d 98 (1981) cert.

denied 102 S.Ct. 1770 ........... 9, 10, 16, 19, 22, 25

O’Donnel v. Schaefer, 491 F.2d 59 (D.C. Cir. 1974)

Poteet v. City of Palestine, 620 S.W.2d 181 (1981)

shapiowseecntbinteobeesengensosonereynessieenantel 9, 10, 16, 23

Smallwood v. United Airlines, 661 F.2d 303 (4th Cir.

GRRE etrerecoeressoerescncerereniseesieisenteneneeaeelabaes 19

Star v. FAA, 389 F.2d 307 (1978) ...00..cccccccccasenss 9

Stewart v. Smith, 673 F.2d 485 (D.C. Cir. 1982)

edinctausabebedesendhdbebeskdedscaupuapiay caiianen 5,9, 52, 44

Thomas v. U.S. Postal Inspection Service, 647 F.2d

ME MEIPED ~ivansiscencansisuevetes nn phinaneeeene 8, 15, 16

Turner v. Workers’ Compensation Appeals Board, 258

Cal Amp: 28 442 CIGGB) | oisincccss..ckdsmheiosasgnrgn 22

Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (Sth

Ras EY st Gcida a cdbaniase 3, 6, 7, 9, 10, 20, 22, 23, 25

Vance v. Bradley, 403 U.S. 93, 99 S.Ct. 939 (1979)

Constitution

United States Constitution, Art. I, Sec. 8, Clause 3

Miscellaneous

Congressional Subcommittee on Compensation and Em-

ployee Benefits of the Committee on Post Office and

Civil Service of the 95th Congress Report (October

Dy RAE dhaknnetinkscthscb opeveeonscucdavelaeeeeaeeees 8

Public Law 95-256, Sec. 3(a), 92 Stat. 189 (29 U.S.C.

SNE CD. SE SOUND nin in cwiswsrdégungedinacntadaneae 11

U.S. Code Cong. and Adm. News 67, p. 2217 ........ 12

U.S. Code Cong. and Adm. News 1974, p. 3699 ..... 13

Regulation

Code of Federal Regulations, Title 29, Sec. 860.102(d)

sSeekighdicmphintea pins iiegs ob 0iseicba «ddueeN eaninenanane 10, 12

Rules

Rules of U.S. Supreme Court, Rule 17(1)(a) ........... 1

Rules of U.S. Supreme Court, Rule 17(1)(c) ........... 1

i

vi

Page

Statutes

United States Code, Title 5, Sec. 633(a) ........... 13, 14

United States Code, Title 5, Sec. 633(d) ................ 15

United States Code, Title 5, Sec. 3307(d) ..... 2, 12, 14

United States Code, Title 28, Sec. 1254(1) ............. |

United States Code, Title 29, Sec. 623(f)(1) ........... 12

United States Code, Title 29, Sec. 631 et seq. ......... 2

United States Code, Title 29, Sec. 633(b) .............. 13

Textbook

1B Larson’s Workmen’s Compensation Law, Sec. 41.72

UREN shin Wid culccnrGhpiianpaeehsvunsi poekohevbats balernenes 22

No. ..-....

IN THE

Supreme Court of the United States

October Term, 1983

COUNTY OF Los ANGELES,

Petitioner,

vs.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT.

Petitioner prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the

Ninth Circuit entered in this proceeding on May 26, 1983.

Opinion and Judgment Below.

The opinion of the Ninth Circuit Court of Appeals is

printed as Appendix A and is reported as Equal Opportunity

Commission v. County of Los Angeles, _ F.2d —— (9th

Cir. 1983), 31 F.E.P. cases 1474. The district court’s Mem-

orandum Opinion and Judgment are printed as Appendices

B and C, respectively.

Jurisdiction.

The opinion of the Ninth Circuit Court of Appeals was

entered on May 26, 1983.

Jurisdiction of this Court is invoked under 28 U.S.C.

section 1254(1) and Rule 17(1)(a), (c).

pare,

Statutes Involved.

29 U.S.C. § 631 et seg., Age Discrimination in

Employment Act (ADEA).

United States Code, Title 5, Sec. 3307(d).

United States Cc astitution, Article I, section 8, clause 3

(Commerce Clause).

United States Constitution, the Tenth Amendment thereof.

Statement of the Case.

The County of Los Angeles, similar to the majority of

federal and state law enforcement and firefighting agencies,

imposed maximum hiring and retirement age limitations for

its deputy sheriffs and fire department helicopter pilots. This

case concerned only the entrance age limitation of 35 years.

The District Court, ruling that the ADEA could consti-

tutionally be applied to state and local governments, held

that the defendant’s maximum age limitations of 35 for

deputy sheriff and helicopter pilots was not a BFOQ, and

hence violated the act. The trial court rejected the defen-

dant’s contention that federal hiring age limits for similar

law enforcement and firefighting occupations indicated a

congressional intent that law enforcement agencies were

exempt or that age for those occupations was to be consid-

ered a BFOQ. Although recognizing that the jobs in question

were physically arduous which, as a general matter younger

persons were more physically able to handle, the defendant’s

BFOQ contentions had to be rejected because, inter alia,

there were some persons over age 40 who could physically

out-perform younger persons, and that current medical tests

could accurately diagnuse the present physical condition of

an applicant. (Appendix B, p. 18).

a,

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4

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ie < Wed

Applying the two-pronged BFOQ standard of Usery v.

Tamiami Trail Tours, 531 F.2d 224 (Sth Cir. 1976),' the

Court found that the first prong had been satisfied because

the functions of a police officer and helicopter pilot in the

firefighting service’ of the defendant County of Los Angeles

involved very physically demanding and arduous tasks which

required a high degree of physical fitness and stamina. The

physical fitness requirement was therefore reasonably nec-

essary to the essence of the defendant’s business of provid-

ing protective services to the public. (Appendix B, p. 14).

The Court, however, went on to reject defendant’s BFOQ

claim, because it found that despite the only 52% effec-

tiveness of laboratory cardiovascular tests (stress EKG/CKG)

in detecting asymptomatic disease, other simple and reliable

tests existed which were 99% accurate as a ‘‘short-term”’

predictor of the likelihood of cardiac difficulty. (Appendix

B, p. 17). The Court held ihat long-term physical, eco-

nomic, personnel, or career longevity consequences to the

public employer could not be considered as a factor in the

BFOQ determination (Appendix B, pp. 19, 20) and that no

special or more relaxed standard applied to safety

occupations.

It was acknowledged that Congress had authorized the

Raped sont of the Tamiami standard provides that the defen-

burden of showing that age was a BFOQ cither

2) that there was no practical way to differentiate qualified from

8-10 hours of oe ais ining mes couaniahy betantions

FELON

law enforcement, firefighting and other occupations and

such age limits were being enforced. The EEOC did not

contend that the County’s law enforcement and firefighting

duties are less arduous than their federal counterparts. The

EEOC further acknowledged that the ADELA and its BFOQ

standards applied equally to federal, state, and local gov-

ernments. (EEOC Post-Trial Brief, p. 14). Agreeing that

career longevity as affected by the aging process was rel-

evant as a management consideration, the EEOC asserted

that for BFOQ purposes only the present or short-term phys-

ical condition of applicants was a relevant hiring criteria for

public safety employees.

The main factual dispute concerned the effectiveness of

feasible available testing in identifying individuals with

asymptomatic cardiovascular disease or other age related

disabilities. Dr. Swan, an eminent cardiologist and Director

of Cardiology at Cedars-Sinai Hospital in Los Angeles, the

the only cardiologist witness, testified that the incidence of

heart disease has a ‘‘direct and very important correlation

with age.’’ (RT 277). While the incidence of the disease is

greater in increasing age groups, the point where the most

dramatic increase occurs is at 40. Between ages 30 to 50

the incidence of heart disease increases by a factor of 20.

(RT 450).’

In Dr. Swan’s medical opinion, the County’s age 35 entry

limit for deputy sheriffs and helicopter pilots was medically

justified and reasonable and that its elimination would ad-

versely affect the Sheriff and Fire Departments. (RT 328).

Dr. Swan testified, that if one contrasted the incidence of

cardiovascular disease between a group hired at age 40 and

a group hired at age 25 (the average hiring age of deputy

*The incidence rises from one-tenth of one percent at 25 to 15

percent at age 60. (RT 284). re

Mel

pet Wa

sheriffs (RT 328)), at the end of 20 years of service, 144

per one thousand individuals from the former group would

be lost from service but only 17 would be lost from the

group commencing at age 25. The death rate for the first

five years of service for the cohort entering at age 40 was

thirty times that of the group commencing their careers at

age 25. ;

Dr. Swan testified that the most practical and effective

noninvasive cardiovascular test available to employers was

a combination of a stress EKG/CKG, and it was accepted

by both the trial and the appellate courts that such tests

correctly identified only 52 percent of asymptomatic indi-

viduals actually having coronary heart disease. The lack of

long-term effectiveness of current feasible tests was never

in dispute. The EEOC’s position was that only the present

or short-term physical condition of the applicant constituted

a valid hiring criteria and this could be ascertained by current

tests.

Accepting the 52 percent accuracy of the stress EKG/

CKG, the EEOC countered with evidence that, by the con-

sideration of certain risk factors such as individual smoking

habits, family history, weight, and exercise activities, one

could predict with greater than 99% probability whether an

individual will h:.ve a heart attack within the next 12 months.

(Appendix A, p. 9).

On appeal, the Circuit Court found that:

1. The Supreme Court’s decision in EEOC v. Wyo-

ming had decided the constitutional question against

the County.

2. Stewart v. Smith, 673 F.2d 485 (D.C. Cir. 1982)

did not decide the question presented by the

County, to wit, whether Congress intended the

ADEA to be applied differently to similar state,

federal and local occupations. (Appendix A, p. 4).

an

a Se

In reliance on this court’s decision in EEOC vy.

Wyoming, the Circuit Court ruled that the ADEA

can apply to similar state and federal law enforce-

ment occupations differently.

3. That economic and career longevity considerations

impacting on law enforcement agencies could not

be considered.

4. That the Usery v. Tamiami* BFOQ standard was

applicable without modification to state and local

law enforcement agency age limitations and that

it had not been met in this case.

Finally, the Court rejected the defendant's contentions

regarding the District Court’s misunderstanding of the ev-

idence concerning the effectiveness of current cardiovas-

cular tests.

i.

REASONS FOR GRANTING THE WRIT.

1. There is presented an important federal question of

broad public significance which has not been, but should

be, settled by the Court. The Court should harmonize the

standards governing age as a BFOQ for state and federal

law enforcement occupations to avoid inconsistent and un-

justified treatment of the same public safety occupations.

The significant questions that should be decided are (a)

whether the ADEA, and in particular its BFOQ exemption,

can apply differently to similar federal, state and local safety

occupations, (b) what constitutes a reasonable BFOQ stan-

dard for Jaw enforcement and other safety occupations in

harmony with Congressional intent, and (c) whether the

ADEA was constitutionally applied in this case.

2. The decision of the Ninth Circuit is in conflict with

the decisions of other circuits on the same matters raised

herein.

L

CONGRESS INTENDED CONSISTENT TREATMENT OF AGE

LIMITS FOR SIMILAR FEDERAL, STATE AND LOCAL

SAFETY OCCUPATIONS AND THAT SUCH AGE LIMITS

WERE A BFOQ.

A. The Supreme Court Should Establish a Reasonable

BFOQ Standard to Avoid Inconsistent Treatment

of Similar Safety Occupations and to Hermonize

Federal and State Hiring Practices.

Although the Supreme Court on a number of occasions

has upheld mandatory hiring and retirement limits under the

Equal Protection Clause,’ and recently in EEOC v. Wyo-

ming, supra, ruled that the extension of the ADEA coverage

*Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 9%

S.Ct. 2562 (1976); Vance v. Bradley, 403 U.S. 93,99 S.Ct. 939 (1979).

‘alll

to the states was constitutional, it has yet to address the

appropriate standards for age as a BFOQ for law enforce-

ment personnel.

This case presents substantially different issues and a

more limited Constitutional question than in the recently

decided case of EEOC v. Wyoming. The case at bar raises

a number of significant legal questions relating to what

constitutes appropriate and reasonable BFOQ standards ap-

plicable to age limits for law enforcement, firefighting and

other public protective service occupations.

The law enforcement and firefighting duties performed

in metropolitan areas are essentially the same. They are

physically very demanding and extremely arduous, although

it has been generally recognized that state and local law

enforcement and firefighter functions are more arduous and

intensive than their federal counterparts.° Considering the

physical demands of these jobs regardless of iction,

it should be expected that age limits, both fOr hiring and

retirement, would be consistently applied, with divergence

justified only because of factual differences in duties and

functions rather than the governmental jurisdiction involved.

This, however, has not been the case. Federal age limits,

far broader than those generally applicable to state and loca!

occupations, have been upheld. Thomas v. U.S. Postal Ser-

vice, 647 F.2d 1035 (1981) (Age 34 limit for appointment

S aoe

a

tice, 510 F.Supp. 1183 (1981) (Mandatory retirement of

employees in Bureau of Prisons); Stewart v. Smith, 673

F.2d 485 (D.C. Cir. 1982) (Hiring age limit of 34 for em-

ployees of federal correctional facilities). State and local

age limits have been the object of inconsistent and contrary

treatment. Some entrance and retirement age limitations

have been upheld’ while others involving the same occu-

pations have been struck down. Age limitations have been

upheld for bus drivers, airline pilots, state highway patrol-

men, and firefighters."

While the determination of whether age is a BFOQ has

been generally described as a question of fact, age limits

for similarly situated occupations whether in the federal or

State sector should be treated in like manner. The current

problem facing state and local governments stems from lower

courts’ misunderstanding of the intent of Congress with

regard to law enforcement activities and the imposition of

inflexible and unreasonable BFOQ standards as demon-

strated by this case. Some courts have considered economic

and career longevity factors as being relevant to BFOQ

"Poteet v. City of Palestine, 620S.W. 2d 188 (393)) Ceres

of 35 for mma ta ape h of Manheim, 505 F.

3 for police offices), Beck for police officers

EEOC v. Missouri Hi Linay Pomel | 34 F.Supp. poise? (1982) (Age

hiring limit for ead et amices).

*Bus driver age Usery v. Tamiami Trail Tours, Inc.,

531 F.2d 244 tion). Cage it of 40 for bus drivers), Hodgson v.

Greyhound Lines, 499 F.2d 859 (7th Cir. 1974) (Age limit of 35 for

bus drivers); Maki v. Commissioner of Education, State of New York,

——F.Supp. —, 32 FEP Cases 630 (June 30, 1983) re-

ean limits upheld: Murna~e v. American Airlines, 667

981) (Maximum hiring ne ee Se ), cert

denied 1.2 S.Ct. 1770; Houghton v. McDonne

627 F.2d 858 (8th Cir. 1980) (Retirement age of 55 or airline pilots);

O'Donnel dpa na 491 F.2d 59 (D.C. Cl Cir. 1974); Starr v. FAA,

589 F.2d 307 (1978).

a |

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sssicli nie

determination.’ Others, as the Ninth Circuit did, reject them

in the belief that Congress precluded such considerations

when it enacted the ADEA. A number of courts have held

that it is medically impractical to detect the degenerative

effects of age so as to adequately distinguish the qualified

from the unqualified applicants except by reference to age. "°

Other courts have held that there is no medical justification

for a BFOQ.

The federal government clearly appears to have taken a

position that age for law enforcement and other safety oc-

cupations is a BFOQ or should be permitted notwithstanding

the ADEA.

Contemporaneously with their extension of the ADEA to

state and local governments in 1974, Congress approved

the establishment of maximum hiring and retirement ages

by certain federal agencies, most notably in law enforce-

ment, firefighting, the foreign service, air traffic control,

and employees of the Bureau of Prisons. Similarly the Fed-

eral Aeronautics Administration has established a maximum

retirement age of 60 for commercial pilots. The Department

of Labor at the time they had jurisdiction over the enforce-

ment of the ADEA, published a regulation (29 CFR

§ 860.102(d)) which gave as an example of a BFOQ, federal

*Murnane v. American Airlines, supra; EEOC v. Missouri Highway

Patrol, supra.

is ence-as ten tenting cones ace as a BFOQ, Hodgson v.

Greyhound Lines, 499 F.2d 858 (7th Cir 1974) and Useryv. Tamiami

Trail Tours, Inc., 7 eye inte ap em So ee sustained an

limit of 35 for bus drivers on the grounds that degenerative effects

ot aby aad pat ho - pemmye tests other than

automatic exclusion on the of Appeals of Texas

in Poteet v. City of Palestine, 620 S. 2d 28 181 (1981) in the

city’s maximum gindey officers against

that it violated the coli chargs within

statutory and regulatory compulsory age limitations when

they were clearly imposed for the safety and convenience

of the public.

As noted by this Court in EEOC v. Wyoming, the majority

of state and local jurisdictions have maximum entrance and

retirement age limitations. The contrast between federal and

state and local hiring practices, as well as the inconsistent

judgments below with regard to similar law enforcement

and other protective service activities must be resolved by

a determination of the appropriate BFOQ standards for these

unique occupations.

There is no difference in duties between federal and state

law enforcement agencies (if anything, the federal duties

are less arduous) that would justify different treatment for

state and local agencies. Even if Congress could constitu-

tionally apply the ADEA differently to the same federal and

state law enforcement occupations, a reading of the legis-

lative history indicates that such was not within the con-

templation of the national legislature. Congress clearly did

not intend that age limits were to be justified for federal

safety occupations but not for the state and local counterparts

simply because the latter were state employees.

B. Congress Intended the Same Treatment of Similar

Federal, State and Local Law Enforcement

Occupations.

The ADEA originally enacted in 1967 was amended in

1974 to apply to federal, as well as state and local govern-

ments. It was again amended in 1978 to extend coverage

to persons through age 69. 95-256, § 3(a), 92 Stat. 189

(codified at 29 U.S.C. § 631 (Supp. II 1978).

Congress recognizing that age was an appropriate con-

sideration in certain circumstances, provided for an exemp-

ar an

tion when age was a bona fide occupational qualification

(BFOQ)."

The legislative history of the BFOQ exemption demon-

Strates that it was to be a flexible and reasonable standard,

applicable even to jobs where physical performance and

fitness were not significant factors.'? Federal regulations

adopted to implement the ADEA indicated that the BFOQ

exemptions were to be liberally applied to cases involving

public safety. (29 CFR § 860.102(d)).

Contemporaneously with the extension of the Act in 1974

to federal, state and local governments, Congress enacted

legislation expressly permitting maximum entrance age lim-

itations for a broad range of federal safety occupations."

As stated by Senator Percy, and so found by the Court

of Appeals in Stewart v. Smith, supra, the purpose of au-

thorizing age limitations for that group of occupations was

for the safety of the public which Congress and the federal

executive agencies believed would be enhanced by main-

taining a relatively young, vibrant, and effective work force.

Senator Charles H. Percy of Illinois remarked before the

Subcommittee on Compensation and Employee Benefits of

the Committee on Post Office and Civil Service, 93rd

Congress,

"The language of that exemption, which has remained unchan

since 1967, is as follows: ot

“It shall not be unlawful for an employer, employment

pager bs mer er poi on

say tera oprssnt ep = qualification

nece to the normal prices.

I8.C. § 623K). (emphasis added

°posions designed for advancement to esate, administrative,

= ; certian. | U.S. Code Cong. and Adm. News 67, page

"5 U.S.C. § 3307(d) provides “The head of , with

the concurrence of such agent as the President may dommiadan

oe

“*It is the intent of this legislation to help federal law

enforcement firefighters agencies maintain a relatively

young, vibrant, and effective work force, both for the

safety of individual officers, and for the society which

they serve.’’ . . . [I]t [the legislation] simply acknowl-

edges that every day physical and psychological stress

which they must endure all too often results in fatalities

and serious injuries not ordinarily encountered by other

dedicated public servants.’’ (U.S. Code Cong. and

Adm. News 1974, p. 3699).

The purpose of such mandatory entry and separation ages

was further elaborated on in the Congressional Record at

page 3699.

‘*This intent has been based on the nature of the work

involved and the determination that these occupations

should be composed insofar as possible of young men

and women physically able and meeting the vigorous

demands of occupations which are far more taxing

physically than most in the federal service. They are

__ gecupations calling for the strength and stamina of the

“young rather than middle aged. Older employees in

these occupations should be encouraged to retire.’’

The United States Civil Service Commission, at the time

the ADEA was extended to federal employees, was granted

pursuant to 5 U.S.C. § 633(a), the responsibility for en-

forcing in federal employment the anti-discrimination pro-

visions of the Act. 29 U.S.C. § 633. Subdivision (b) pro-

vides that the Civil Service Commission is authorized to

enforce the age discrimination provisions and in so doing,

**[rleasonable exemptions to the provisions of this sec-

tion may be established by the Commission but only

when the Commission has established a maximum age

requirement on the basis of a determination that age is

a bona fide occupational qualification necessary to the

eT

performance of the duties of the positions.’’ (Emphasis

added).

In 1974, when Congress was considering federal age lim-

its for federal employees, the Civil Service Commission

supported such legislation.

The action of the U.S. Civil Service Commission in sup-

port of the federal employment age limits is illustrative of

Congress and the Commission’s view that age limits were

permissible under the ADEA for protective service occu-

pations. Moreover, for most of the government departments

enumerated in 633(a) such as the military department, the

Postal Service and police officers in the District of Colum-

bia, age limitations similar to the petitioner’s have been

invoked.

Interpretations of a statute by an agency charged with its

enforcement are entitled to considerable weight. Griggs v.

Duke Power, 401 U.S. 424 (1971). This is particularly so

when they are contemporaneous with the adoption of the

Statute and are a product of substantial interface with Con-

gress and the U.S. Attorney General. In this instance the

actions of the U.S. Civil Service Commission and the stat-

utory authorization by Congress of age limits for comparable

federal law enforcement firefighting occupations lead to the

inevitable conclusion that age limits are justified either as

a BFOQ or an exception to the ADEA for such occupations

regardless of governmental jurisdiction.

The District of Columbia Circuit Court on Maren 9, 1982

in Stewart v. Smith, supra, vuled that 5 U.S.C. § 3307(d),

which authorizes United States government agencies to set

maximum age requirements for appointment to law enforce-

ment positions, is an exception to the ADEA in view of

Congress’ clear intent to employ maximum entry age as a

means to secure a ‘‘young and vigorous’’ work force of law

enforcement officers.

seta

‘il

The Circuit Court in sustaining the District Court’s Sum-

mary Judgment noted the history of the federal age

limitations.

“‘In 1974 Congress enacted Public Law 93-350, 88

Stat. 355, a major piece of legislation designed to en-

hance the ‘youth and vigor’ of federal law enforcement

personnel. Together with provisions on mandatory re-

tirement and incentives for early retirement, Public

Law 93-350 provided agencies employing law enforce-

ment officers with authority to set maximum ages for

appointment to law enforcement positions. See 5 U.S.C.

§ 3307(d). To set such a maximum age rule, an agency

first had to receive the concurrence of the Civil Service

Commission (‘“Commission’’) in its determination that

the relevant employees are law enforcement officers.’’

(footnotes omitted). Supra at 487.

Noting that the U.S. Civil Service Commission had been

designated by the President to concur in this setting of max-

imum age limitations for law enforcement officers, the Cir-

cuit Court stated that

**[O}n March 12, 1975, it [Commission] concurred in

the department’s determination, thereby bringing BOP’s

employees in correctional facilities within the scope of

public law 93-350’s retirement provisions as well as

its provision for setting maximum age requirements.’’

Id. at 377.

Thus the Circuit Court noted the relationship between

federal age limits and BFOQ exemption as a consequence

of the role of the Civil Service Commission in approving

such age limits in furtherance of its BFOQ responsibilities

under § 633(d).

The Tenth Circuit in Thomas v. U.S. Postal Inspection

Service, 647 F.2d 1035 (1981) in upholding the maximum

hiring age of 34 for postal inspectors noted that it reflected

the intent of Congress in 1974 that the physical demands

—1l6—

of law enforcement activities required, ‘‘young, strong and

vigorous personnel.’’ Jd. at 1037.

State and federal courts at trial and appellate levels have

approved age as a BFOQ for the physically arduous occu-

pations of law enforcement officer and firefighter.

Recognizing current testing limitations, the Court of Ap-

peals of Texas in Poteet v. City of Palestine, 620 S.W.2d

181 (1981) recently upheld against a claimed ADEA vio-

lation, the city’s maximum hiring age of 35 for police of-

ficers. In sustaining the age limit of 35, the Court found

that there was no practical way to detect relevant physio-

logical and psychological changes in people with sufficient

reliability to meet the special safety obligations cast upon

beginning police officers.

The federal district court in EEOC v. Missouri State High-

way Patrol, 554 F.Supp. 667 (1982) found that the maxi-

mum hiring age of 32 for highway patrol troopers was a

valid BFOQ because of the arduous nature of the job and

career longevity considerations.

The same factual record was made by the defendant in

this case as in the other cases in which trial and circuit

courts have upheld age as a BFOQ. The Court’s rejection

of age as a BFOQ was predicated upon a misunderstanding

of the nature of the applicable BFOQ standard, an erroneous

disregard of Congressional intent as demonstrated by federal

age limitations, and its misunderstanding of the effective-

ness (even in the short term) of current cardiovascular tests.

In fact, the same testimony by the same witness for the

EEOC (Dr. Mohler) was rejected by other trial courts that

upheld age as a BFOQ (EEOC v. St. Paul, 671 F.2d 1162;

Murnane v. American Airlines, supra; EEOC v. Missouri

State Highway Patrol, supra).

There is nothing in legislative history to demonstrate a

Congressional belief or intent that age limits for state and

— =

local law enforcement personnel were prohibited per se or

to be treated any differently than those applicable to federal

employment. Nor is there any evidence in the Congressional

history indicating that Congress intended to withhold from

federal employees the full protection of the ADEA.

C. The Circuit Court Misapprehended the Supreme

Court’s Decision in EEOC v. Wyoming.

The Circuit Court below rejected the petitioner’s claim

that BFOQ standards be measured by comparable federal

age limits on the basis of an assumption that this Court in

EEOC v. Wyoming had considered ana dismissed such con-

tentions. The Circuit Court stated, ‘“Thus it is clear that the

County’s argument was before the Court in EEOC v. Wy-

oming, that the Court considered and rejected it, and that

we must do likewise . . .”” (Appendix A, p. 5).

The standards applicable to a BFOQ determination were

simply not at issue in EEOC v. Wyoming. The district court

held that the ADEA per se could not be applied constitu-

tionally to the states because the Act interfered with integral

operations in an area of traditional state activities.

Upon review the Supreme Court did not address what

constituted an appropriate BFOQ standard for law enforce-

ment occupations. The Court’s holding was limited to ruling

that the extension of the ADEA to state and local govern-

ments, on its face and as applied, was a constitutional ex-

ercise of the power under the Commerce Clause. The matter

is remanded to the state court for a determination whether

age was a BFOQ for the subject occupations.'*

= more appellees remain free under the ADEA

to continue to do what they are doing now, if they can dem-

onstrate there is a ‘bona occupational ification’ for the job of

=<

In upholding the constitutionality of the ADEA, the ma-

jority reasoned that the states were not unduly constrained

because they could measure their age limits against *‘a rea-

sonable federal standard’’, referring to the BFOQ exemp-

tion. If state or local agencies’ hiring practices are to be

measured against a reasonable federal standard as the ma-

jority observed, then surely that standard should include at

least a consideration of federal age limits, their factual basis,

a comparison of the duties of the state and federal occu-

pations, and the reasoning relied upon by Congress in ap-

proving age limits for their law enforcement and firefighting

personnel. In short, the petitioners urge that the Ninth Cir-

cuit Decision does not conform to a reasonable federal stan-

dard or to one that the Congress intended.

The Ninth Circuit, by reference to remarks made in the

dissent, misinterpreted the majority holding in EEOC v.

Wyoming. The remarks were made in the context of dem-

onstrating apparent inconsistency between the ADEA and

Congressional action as they bore on the constitutional ques-

ion. They are not, of course, part of the holding of the

court. The only mention of federal age limitations in the

majority opinion was in Footnote 17 which merely reflected

that such inconsistencies did not transform the ADEA into

unconstitutional legislation.

The petitioners herein are not urging that the ADEA is

unconstitutional per se as extended to the states, but rather

that the disparate treatment can and must be resolved by

recognition and articulation of the appropriate BFOQ stan-

dard Congress intended when it extended the ADEA to state

and federal agencies in 1974. There certainly is no factual

distinction between federal and state law enforcement and

firefighting activities that justifies divergent treatment.

A more reasonable and harmonious interpretation of the

Act’s BFOQ provision is that Congress in authorizing max-

=_— se

imum age limits for selected federal occupations at the same

time it extended the Act to the states, intended that similar

treatment be afforded state and local law enforcement per-

sonnel performing similar arduous tasks. The distinction

between federal and state law enforcement positions was to

be based on the nature of the duties involved, not on the

political jurisdiction.

I.

THE CIRCUIT COURT ADOPTED AN UNREASONABLE BFOQ

STANDARD FOR LAW ENFORCEMENT AND PUBLIC

SAFETY OCCUPATIONS.

A. The Holding Is Contrary to Congressional Intent

and Other Circuit Court Decisions.

The district court and circuit court per se rejected as valid

BFOQ considerations, career longevity factors and the unique

economic impact on law enforcement agencies the elimi-

nation of age limits would work. Citing Smallwood v. United

Airlines, 661 F.2d 303 (4th Cir. 1981), and disregarding

Murnane v. American Airlines, 667 F.2d 98 (D.C. Cir.

1981) the Ninth Circuit stated ‘‘economic considerations,

cannot be the basis for a BFOQ — precisely those consid-

erations were among the targets of the act.’’ (Appendix A,

p. 6).

The trial court per se rejected any different treatment of

public safety occupations on the theory that the Congress

did not recognize a difference when it extended the ADEA

to state and local governments in 1974. (Appendix B, p.

19). Neither court below made any analysis of Congres-

sional intent with regard to BFOQ standards to be applied

to law enforcement agencies or the significance of the age

limits imposed on similar federal positions.

The court adopted the position of the EEOC that only the

present physical condition of an applicant was relevant. In

=

the court’s view, future disabilities, reduced terms of as-

signment in arduous positions such as patrol, and the in-

creased economic costs to the law enforcement agency as

a product of hiring older individuals could not be considered.

Both lower courts evaluated the effectiveness of cardiovas-

cular and physical tests only in the context of their short-

term effect.

The BFOQ exemption adopted by Congress in 1974 con-

tains no prohibition against consideration of career and eco-

nomic factors as they bore on the question of the validity

of age as a BFOQ. Indeed, the legislative history clearly.

indicates that Congress intended that the career consid-

erations inherent in the extremely arduous and physically

demanding law enforcement and other safety services func-

tions were factors ‘‘reasonably necessary’’ to the normal

operation of those public services.

The Tamiami standard does not preclude consideration

of career factors as they impact on law enforcement. The

first half of the Tamiami standard recognizes age as a BFOQ

if the employer can show that all or substantially all persons

above the age limit are unable to meet the defendant’s health

and physical performance standards. The petitioners believe

the lower courts misapplied Tamiami in limiting the law

enforcement agencies ‘‘health and physical performance

standards’’ to only present conditions. If a law enforcement

agency’s health and physical performance standards require

the optimum ability to perform physically arduous duties

over an extended career, then the County’s hiring criteria

should not have been limited merely to the applicant’s pres-

ent physical ability.

The nature of law enforcement and firefighting and other

public safety occupations is so unique that it cannot be said

that only the applicant’s present physical condition is the

relevant hiring criteria. In addition to the special statutes

mS TS

which pertain to injuries incurred in the course of duty,

public safety itself demands the highest level of physical

performance attainable over the longest period of time, and

at the least expense to the taxpayer.

In upholding the extension of the ADEA to states, this

Court noted in EEOC v. Wyoming, _—_ U.S. ——, 103 S.Ct.

1054 (1983) that the states remained free to demonstrate

that age is a bona fide occupational qualification. Their

personnel practices are not being overridden entirely but are

“merely being tested against a reasonable federal stan-

dard’’. EEOC v. Wyoming, supra at 1062. The standard

adopted by the trial and appellate courts below was not a

reasonable standard, nor one that comports with Congres-

sional intent.

There is little dispute that the elimination of age would

have an adverse impact on law enforcement agencies, both

economically and from a career standpoint. Indeed, the

plaintiffs’ expert conceded that these were serious problems

and that all things being equal, he preferred the employment

of younger over older applicants because of the younger’s

greater career potential. (RT 568, 649-651). As the evidence

demonstrated, elimination of age restrictions on law en-

forcement agencies has an adverse effect in that it (1) results

in a limited career pattern and in particular the length of

assignment in the arduous patrol assignments, (2) it places

the employer at heightened risk because of the increasing

prevalence of cardiovascular and other diseases in the age

groups of 40 and older, and (3) it exposes the employer to

increased number of premature retirements, industrial in-

juries, reduced flexibility in assignments, and substantial

Unique to law enforcement and firefighting agencies are

statutes in many states which create presumptions with re-

gard to workers’ compensation benefits for injuries to law

n'y 4

}

ili te 8 an" » <a =.

,

enforcement/firefighting personnel. California and numer-

ous other states'’ have presumptive or so-called heart and

lung legislation which basically provides that if a law en-

forcement officer or firefighter incurs a cardiovascular or

lung disease after being employed a certain period of time

(five years in California), it is presumed that the disease

was incurred in the course and scope of employment and

the employee is entitled to preferential hospitalization and

retirement benefits. In California the presumption cannot be

rebutted by evidence of any preexisting disease. Turner v.

Workers’ Compensation Appeals Board, 258 Cal.App.2d

442 (1968).

While these career and economic considerations may not

be the sole criteria for determining whether age is a BFOQ,

they should not be summarily rejected. The court’s treatment

of these factors is contrary to decisions in other circuits.

See Usery v. Tamiami Trail Tours, supra, as well as Hodg-

son v. Greyhound, supra.

Recently the District of Columbia Circuit in Murnane v.

American Airlines, 667 F.2d 98 (1981) upheld the airlines

entry age limit of 35 for pilots. The Court found the age

limit to constitute a BFOQ because the elimination of the

age limit would increase the likelihood of risk of harm to

the public, particularly noting the relationship between in-

itial hiring and mandatory retirement age limits. The Circuit

Court observed that an individual hired over 40 would not

have time to acquire the requisite experience before having

to retire at age 60 under the FAA requirement.

oe

B. The Lower Courts’ Application of Medical Findings

to the BFOQ Standard Was Clearly Erroneous.

Even if Congress did not intend a more relaxed standard

applicable to law enforcement personnel and the strict sec-

ond prong of the Tamiami test is appropriate, the evidence

below clearly demonstrated that current medical tests are

inadequate to detect unqualified applicants over the age 40.

The findings on test efficiency are contrary to the findings

in similar cases upholding age as a BFOQ" and are not

justified by any advances in medical testing. The combi-

nation of the strict BFOQ standard applied by the Court and

the accepted evidence on test effectiveness, renders it im-

possible to establish age as a BFOQ for any occupation.

The courts below clearly erred in two respects. One, they

misapprehended, contrary to the clear weight of the evi-

dence, the efficiency of cardiovascular tests even in the

*‘short-term’’ (i.e., twelve months), and, secondly, the trial

court’s conclusion that current tests were 99% effective in

predicting a heart attack within the next 12 months was

incorrect in that it (a) considered only the short-term and

(b) accepted the prediction of a heart attack within 12 months

as meeting the employer’s legitimate hiring criteria. Whether

an applicant will suffer a heart attack within a certain period

of time is simply irrelevant in terms of a law enforcement

agency’s hiring interests and in meeting the second prong

of the Tamiami test. It is not a proper distinction between

a qualified and unqualified applicant. A public safety em-

ployer should not be compelled to hire someone who may

have heart disease merely because there is some assurance

that the individual will not suffer a heart attack within a

year.

""Usery v. Tamiami Trail Tours, Inc., supra; Hodgson v. Greyhound

Lines, Ay City of Palestine, supra.

is eS

It is beyond doubt that the circuit court believed that the

predictability of a heart attack within the next 12 months

was a valid criteria for job qualification. The circuit court

stated ‘‘Dr. Mohler’s testimony did not precisely address

whether 99% of all persons with asymptomatic heart disease

can be detected; . . . Rather, Dr. Mohler testified that the

‘studies by Dr. Bruce of Seattle, Washington .. . have

shown clearly by taking the various risk factors plus an

exercise test response, one can predict with greater than

99% accuracy that within the next 12 months that an in-

dividual will not have a cardiac event.’ This is not the same

as saying that 99% of all asymptomatic sufferers will be

detected."’ (emphasis by the Court) (Appendix A, p. 9).

The distinction noted by the Circuit Court in the last

sentence was correct and that is precisely why such evidence

is not a relevant BFOQ consideration.

The risk factors relied upon by the court do not increase

the detection of cardiovascular disease. Rather, they alleg-

edly serve as predictors of a possible future heart attack.

Moreover, there is no credible evidence to support the find-

ing that risk factor consideration provides flawless predict-

ability in the short term. First of all, many of the risk factors,

i.e., smoking, family history, exercise habits, etc. are sub-

jective and depend upon the veracity of the applicant. They

are not in any sense a medical diagnosis or test."’

The County's cardiologist testified that this risk factor

analysis was merely a guide to good health (RT 407) and

of no specific value in a predictive sense for heart disease

=

in an individual. He noted that for the age group 31-50 the

risk point value for aging increases from 3 to 4 points when

in actual experience the prevalence of, heart disease in that

age group goes up by a factor of about 20. (RT 450).

In sustaining the trial court's findings the appellate court

noted an additional factor. The circuit court reasoned that

despite the fact that 48% of asymptomatic sufferers of heart

disease remain undetected, the second prong of the Tamiami

test had not been met because the number was insignificant.

The court, observing that approximately 3% of 35-year-olds

suffer asymptomatic heart disease of which 52% can be

detected by current tests stated:

**The area of disagreement between the County and

the EEOC is with the remaining 48% of the 3% of the

35-year-olds who suffer asymptomatic heart disease —

in other words, the disagreement is over fewer than

1%% of 35-year-olds whose asymptomatic heart dis-

ease cannot be detected by administration of the EKG/

CKG."" (Appendix A, p. 9).

This position, of course, is contrary to the weight ac-

corded medical tests in Tamiami, supra, Hodgson, supra,

and Murnane, supra. Moreover, assuming that the number

of persons with asymptomatic heart disease is only 3% at

age 35, that is not the only age of concern to law enforcement

agencies. With the invalidation of the County's age 35 limit,

it cannot reject any applicants because of age even though

the undisputed eviaence showed that the prevalence of

asymptomatic heart disease rises dramatically in the fourth

and fifth decade of life. By a circuit court's reasoning, even

if current cardiovascular tests could detect only 25% of

asymptomatic sufferers, a highly inefficient test by anyone's

standards, the second prong of the Tamiami test would still

not be satisfied.

oe

Conclusion.

For the foregoing reasons, it is respectfully requested that

this Court grant the Petition for Writ of Certiorari herein.

Executed this 24th day of August, 1983, at Los Angeles,

California.

Respectfully submitted,

DONALD K. BYRNE,

Chief Deputy County Counsel,

WILLIAM F, STEWART,

Chief, Labor Relations Division,

Attorneys for Petitioner.

APPENDIX A.

Opinion.

In the United States Court of Appeals for the Ninth Circuit.

Equal Employment Opportunity Commission, Plaintiff-

Appellee, vs. County of Los Angeles, Defendant-Appellant.

No. 82-5083. D.C. #CV 78-2522.

Filed: May 26, 1983.

Appeal from the United States District Court for the Cen-

tral District of California.

Herbert Maletz,* District Judge, Presiding. Argued: Oc-

tober 8, 1982. Submitted: May 5, 1983.

Before: TANG and FERGUSON, Circuit Judges, and SOL-

OMON, ** District Judge.

TANG, Circuit Judge.

The County of Los Angeles (the County) appeals from

the district court’s judgment finding the County in violation

of the Age Discrimination in Employment Act, as amended,

29 U.S.C. § 631 et seg., (ADEA). The central issue is

whether the district court properly found that age under 35

is not a Bona Fide Occupational Qualification (BFOQ) for

entry level employment of deputy sheriffs and fire depart-

ment helicopter pilots.

There is no dispute that the policy and practice of the

County is to reject applications of persons 35 years and

above who seek positions as deputy sheriff or fire helicopter

pilots, and that they are rejected solely on the basis of age.'

*Judge of the United States Court of International Trade, sitting by

ignation pursuant to 28 U.S.C. § 293(b).

aii.

At trial and on appeal the main factual dispute concerned

the effectiveness of available testing in identifying individ-

uals who have asymptomatic cardiovascular disease. The

County emphasized the increase in cardiovascular disease

in the 40-50 age group and the difficulty of identifying

employees at risk. EEOC emphasized that the real issue was

the present physical condition of the applicants and em-

phasized the accuracy of certain tests, when considered with

individual risk factors such as smoking, weight, family his-

tory, etc.

The district court found that readily available tests were

99% accurate as a ‘‘short term predictor of the likelihood

of cardiac difficulty.’’ 526 F. Supp. 1135, 1140. Based on

this and other findings, the district court concluded that the

County had failed to prove its BFOQ defense because: ‘‘it

is not impractical for defendant to differentiate the qualified

from the unqualified applicants’’. Jd.

I.

Legal Contentions

A. The County argues that the Supreme Court’s deci-

sion in National League of Cities v. Usery, 426 U.S. 833

(1976), precludes application of the ADEA in this case,

involving as it does essential public safety decisions by a

local government.

This contention was rejected by the Supreme Court’s

recent decision in E.E.0.C. v. Wyoming, 103 S.Ct. 1054

(1983). That case involved a Wyoming Game and Fish

Department supervisor’s involuntary retirement at age 55

pursuant to Wyoming law. The Equal Employment Oppor-

tunity Commission (EEOC) sued on his behalf in district

court, alleging an ADEA violation. The district court dis-

missed the suit, holding that under National League of Cities

v. Usery, 426 U.S. 833 (1976), Congress was without power

a oe

to extend the ADEA to state law enforcement personnel,

including game wardens. E.E.0.C. v. Wyoming, 514 F.

Supp. 595, 600 (D. Wyo. 1981). The Supreme Court re-

versed, concluding that the ADEA ‘‘does not ‘directly im-

pair’ the State’s ability to ‘structure integral operations in

areas of traditional governmental functions.’ ’’ 103 S.Ct.

at 1062. The only difference between the case before us

and E.E.0.C. v. Wyoming is that this case involves a max-

imum hiring age and Wyoming a mandatory retirement age.

Under an ADEA analysis, however, this difference is not

significant because both involve age-based classifications.

Thus, the County’s challenge to the application of the ADEA

to state or local government law enforcement occupations

under National League of Cities v. Usery must fail.

B. The County also argues that because the ADEA ap-

plies to federal as well as state employment, any age-related

restrictions tolerated in federal occupations should apply

equally to similar state and local occupations.

Congressional authorization of the use of maximum hiring

ages in federal law enforcement occupations, 5 U.S.C.

§ 3307(d), was recently upheld against ADEA attack in

Stewart v. Smith, 673 F.2d 485 (D.C. Cir. 1982). The

County interprets Stewart as holding that Congress intended

such authorization for age restrictions (in Stewart, maximum

age 35 for entering federal law enforcement) to be an across-

the-board exception to the ADEA. Because Congress in-

tended the ADEA to apply equally to federal and state em-

ployment, the County argues, an exception to the ADEA

or a BFOQ as a matter of law for state and local law en-

forcement maximum hiring ages must be recognized in this

case.

The EEOC responds that the same Congress that enacted

the federal maximum-hiring statute, 5 U.S.C. § 3307(d),

extended the ADEA to state and local government employ-

1%

“S

; Se a ‘ell eit we il =

i ding" Bee ee

anaes

ment. EEOC argues that because Congress failed to provide

a per se exemption for state and local government hiring,

none should be read into the ADEA. EEOC argues further

that Stewart, relied on so heavily by the County, is not

applicable to this case because Stewart involved the inter-

pretation of the ADEA and 5 U.S.C. 3307(d) which only

applies to federal employees.

The Stewart court was faced with ‘‘reconciling’’ 5 U.S.C.

§ 3307(d) with the ADEA. 673 F.2d 485, 490. Stewart held

that § 3307(d) created an exception to the ADEA, and that

no BFOQ was necessary to justify the maximum age entry

requirements for federal law enforcement officers. Stewart

did not address the question presented here, which is whether

the ADEA can apply to similar federal, state, and local

occupations differently. ’

The Court in E.E.0.C. v. Wyoming, however, apparently

considered and rejected the argument raised here by the

County. In discussing, the ‘‘well-defined federal interest in

the [ADEA] legislation,’’ the Court noted ‘‘incidentally,

that the strength of the federal interest underlying the Act

is not negated by the fact that the federal government hap-

pens to impose mandatory retirement on a small class of its

own workers.’’ 103 S.Ct. at 1064, n.17. Chief Justice Burger

argued in dissent that the ADEA regulated the states in their

Capacity as states, that Wyoming’s choice of who would

serve as law enforcement officers was an attribute of sov-

ereignty, and that the ADEA directly impaired the states’

ability to structure integral operations. 103 S.Ct. at 1068-

72 (Burger, C.J. dissenting). In the course of this discussion,

Chief Justice Burger argued that ‘‘[I]t is not wholly without

itself in the exercise of its own sovereign powers.’’ Id. at

1068. See also id. at 1069-70 (Burger, C.J., dissenting)

(discussing Congressionally enacted exceptions to ADEA

ax

ag

ee” Ya

for federal law enforcement officers); id. at 1071 (Burger,

C.J., dissenting) (noting Congressional authorization for

mandatory retirement in Armed Services and Foreign Ser-

vice). Thus it is clear that the County’s argument was before

the Court in E.E£.0.C. v. Wyoming, that the Court consid-

ered and rejected it, and that we must do likewise.

C. The County further argues that the district court’s

decision is against the great weight of authority recognizing

age as a BFOQ in public safety occupations. The County

argues that because it made the same factual record here as

in other cases that have upheld age as a BFOQ, age as a

BFOQ should have been recognized here. We held in EEOC

v. County of Santa Barbara, 666 F.2d 373, 376 (9th Cir.

1982) that ‘‘a factual foundation is necessary to establish

that age is a BFOQ.”’ In Santa Barbara we stated, *‘[C]ourts

cannot assume, in the absence of any evidence as to its

effects on safe performance, that age, per se, constitutes a

BFOQ.”’ /d. at 377. Similarly, the court in Stewart v. Smith,

supra, noted that the BFOQ ‘‘standard is highly sensitive

to the factual record in individual cases,’’ 673 F.2d at 491,

n.26, and pointed to conflicting 4th Circuit and D.C. Circuit

cases reaching opposite results on a maximum age hiring

rule for pilots. Thus, we must look to the record in this

case, and to the County’s specific challenges based on this

record, to evaluate the County’s BFOQ position.

Il.

Application of Proper BFOQ Standards.

A. The County argues that the district court improperly

rejected economic considerations of the County in rejecting

the county’s BFOQ defense. The district court summarized

the County’s argument as follows:

Defendant next contends that older persons will be-

come unfit for these positions in a shorter time than

aooipiis

younger persons . . . . This it is argued, will result in

defendant receiving a less than optimal return on the

initial training it provides its deputy sheriffs and hel-

icopter pilots.

526 F. Supp. at 1140. The Court rejected this argument,

citing Smallwood v. United Air Lines, Inc., 661 F.2d 303

(4th Cir. 1981), cert. denied, 102 S.Ct. 2299 (1982). We

agree. ‘‘Economic considerations, however, cannot be the

basis for a BFOQ — precisely those considerations were

among the targets of the Act.’’ Jd. at 307.

B. The County argues that the district court applied an

unduly strict construction of the BFOQ standard for public

safety occupations, citing Usery v. Famiami Trail Tours,

Inc., 531 F.2d 224, 236 (Sth Cir. 1976). The Tamiami

standard has been adopted in this Circuit for Title VII and

ADEA BFOQ defenses. Harris v. Pan American Airways,

6A9 F.2d 670 (9th Cir. 1981) (Title VII); EEOC v. County

of Santa Barbara, 666 F.2d 373 (9th Cir. 1982) (ADEA).

The standard requires that the job qualifications be ‘‘rea-

sonably necessary to the essence of [the] business,’’ and

that either ‘“‘all or substantially all’’ members of a class

**would be unable to perform safely and efficiently the duties

of the job involved,’’ or ‘‘that it is impossible or highly

impractical to deal with’’ the members of a class ‘‘on an

individualized basis.’’ Harris, 649 F.2d at 676, citing Tam-

iami, 531 F.2d at 236 and Weeks v. Southern Bell Telephone

& Telegraph Co., 408 F.2d 228, 235 (Sth Cir. 1969).

In applying the test, the district court found that the County

had met his burden in establishing that strength, agility,

good reflexes and ability to run appreciable distances and

lift heavy objects were reasonably necessary to the jobs.

526 F. Supp. at 1139. The district court further found that

“‘there is no strict relationship between age and physical

ability,’’ id. at 1139, and that physical performance tests

te

can easily distinguish those persons who possess the nec-

essary physical attributes from those who lack them. /d.

The County’s real concern, however, is its inability to

assure itself that persons hired are not suffering from un-

detected heart disease.

The district court found that ‘‘all or substantially all per-

sons above the age of forty years are not unable to meet

defendant’s health standards due to heart disease.’’ Jd. at

1140. The district court continued:

considering that only an extremely small percentage of

all persons currently barred by defendant’s age restric-

tions are likely to have heart disease and go undetected

by the available medical tests, the court concludes that

in this regard it is not impractical for defendant to

differentiate the qualified from the unqualified appli-

cants. Thus on the second prong of the Tamiami test,

defendant’s age limit policy again fails to pass muster.

Nor is this conclusion altered by the fact that a very

small number of persons may conceivably go unde-

tected. In the court’s view, Tamiami requires only a

practical reliable differentiation of the unqualified from

the qualified applicant, 531 F.2d at 236, not a perfect

Id.

The district court applied the BFOQ standard fairly. There

was no error here.

C. The County argues that the district court placed too

much emphasis on the fact that there are persons over age

40 working in the positions involved. The County empha-

sizes that this is a case involving maximum age for initial

hiring, and not for the job itself. The challenged statement

of the district court follows:

Indeed, defendant currently employs numerous deputy

sheriffs over forty years of age. Also, two of the nine

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helicopter pilots currently employed by the defendant

are over forty. Given these considerations, the court

finds it inexplicable that defendant refuses to consider

for employment persons over thirty five years of age

who are satisfactorily employed in similar jobs by other

government agencies.

526 F. Supp. at 1139. (emphasis added) The County argued

at trial that the experience gained by deputies hired at a

young age makes up for the gradual decline in physical

fitness that often accompanies the aging process. Despite

this argument, the County has no provision to allow the

hiring of persons over thirty-five who have extensive similar

experience in other governmental agencies. It is clear that

the district court’s reference is to the contradiction inherent

in the County’s argument and its policy of not hiring even

experienced 35 and over applicants. We read no more into

the district court’s statement.

D. The County argues that the following finding of the

District Court is clearly erroneous and alone warrants

reversal:

Thus the simple electrocardiogram or cardiokymograph

testis will detect 52% of all asymptomatic sufferers.

Additionally, the evidence indicates that the Bruce pro-

tocol, a stress electrocardiogram test on an inclined

treadmill, coupled with an analysis of the individual’s

visk factors (such as weight, smoking habits, family

history, etc.) is 99% accurate as a short-term predictor

of the likelihood of cardiac difficulty.

526 F. Supp. at 1140. The County argues that this passage

shows that the trial court was confused by the evidence

because the most effective readily available procedures, the

EKG (electrocardiagram) and CKG (cardiokymograph) test

are only able to detect 52% of all asymptomatic sufferers

and that the risk factor analysis adds nothing to the procedure.

a

a me

First, we must point out that the district court’s ultimate

conclusion was that ‘‘only an extremely small percentage

of all persons over the age of thirty-five years applying for

the jobs in question are likely to have asymptomatic heart

disease and go undetected.’’ 526 F. Supp. at 1140.

This was based on the figure (undisputed on appeal) that

approximately 3% of 35 year olds suffer asymptomatic heart

disease — heart disease whose symptoms are not readily

apparent. It is also undisputed that 52% of this 3% can be

detected by a combination of the stress EKG/CKG tests that

are neither difficult nor prohibitively expensive to administer.

The area of disagreement between the County and the

EEOC is with the remaining 48% of the 3% of 35 year olds

who suffer asymptomatic heart disease — in other words,

the disagreement is over the fewer than 1'2% of 35 year

olds whose asymptomatic heart disease cannot be detected

by administration of the EKG/CKG.

The district court clearly credited the testimony of Dr.

Mohler, one of the many expert witnesses who testified.

Dr. Mohler’s testimony did not precisely address whether

99% oi all persons with asymptomatic heart disease can be

detected; neither does the district court’s reference to Moh-

ler’s testimony imply that it did. Rather, Dr. Mohler testified

that the ‘‘studies by Dr. Bruce of Seattle, Washington . . .

have shown clearly by taking the various risk factors plus

an exercise test response, one can predict with greater than

99 percent probability that within the next twelve months

that an individual will not have a cardiac event.’’ RT 774

(emphasis added). This is not the same as saying that 99%

of all asymptomatic sufferers will be detected. There is no

evidence that the district court was confused, and we decline

to reverse on this point.

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The district court’s conclusion that the County

establish a BFOQ is based on findings that are not clearly

PR Se

APPENDIX B.

Opinion.

United States District Court, Central District of California.

Equal Employment Opportunity Commission, Plaintiff,

v. County of Los Angeles, Defendant. Civil Action No. 78-

2522 — LTL.

Filed: November 24, 1981.

Samuel Dashiell, Regional Attorney, Robert T. Olmos,

Supervisory Trial Attorney, Martin K. Magid and Christine

Masters, Trial Attorneys, Equal Employment Opportunity

Commission, for plaintiff.

John H. Larson, County Counsel, and William F. Stew-

art, Chief, Labor Relations Division, for defendant.

MALETZ, Judge:' This is an action challenging the County

of Los Angeles’ policy of not hiring persons over the age

of thirty five for entry level positions as Deputy Sheriff? in

the County Sheriff's Department or as Helicopter Pilot in

the County Fire Department. Plaintiff, the Equal Employ-

ment Opportunity Commission, alleges that this policy con-

stitutes a violation of the Age Discrimination in Employment

Act.of 1967, as amended, 29 U.S.C. § 621 et seq. (here-

after ADEA).’

‘Of the United States Court of International Trade sitting by

"Deputy Sheriffs of the of Los Angeles serve as law enforce-

ment officers for various icone ef in Comat came of the City of Los

Angeles. They also serve as correction officers for the County.

_,

Briefly described, the defendant County of Los Angeles’

policy is not to consider any applicant over thirty five years

of age for these jobs regardless of his qualifications for the

position and regardless of how many years he may have

been satisfactorily employed in a similar position by a dif-

ferent employer.

At the outset, defendant, relying upon National League

of Cities v. Usery, 426 U.S. 833 (1976), argues that the

Tenth Amendment to the Constitution bars the application

of the ADEA to defendant’s hiring policies. In National

League of Cities, the Supreme Court held that the application

of federal minimum wage and overtime provisions to the

States and their political subdivisions would impermissibly

interfere with traditional aspects of state sovereignty in vi-

olation of the Tenth Amendment. Such regulation by Con-

gress of a state as an employer, pursuant to Congress’ power

under the Commerce Clause, the Court concluded, is barred

by the Tenth Amendment.

However, in enacting the ADEA and extending it to the

states and their political subdivisions, Congress exercised

its power to prohibit discrimination pursuant to section five

of the Fourteenth Amendment. Arritt v. Grissell, 567 F.2d

1267 (4th Cir. 1977). This is important because Congress’

power under the Fourteenth Amendment to regulate a state’s

employment practices is not limited by the strictures of the

Tenth Amendment upon which National League of Cities

is grounded. See, Ex Parte Virginia, 100 U.S. 339, 446-

48 (1879); Marshall v. City of Sheboygan, S77 F.2d 1 (7th

Cir. 1978); Arritt v. Grissell, supra; Usery v. Charleston

Cty Sch. Dist., 558 F.2d 1169 (4th Cir. 1977). On this basis

the courts after National League of Cities have repeatedly

upheld federal regulation of a state’s or its political subdi-

vision’s employment practices. See, e.g., Fitzpatrick v.

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itn:

Bitzer, 427 U.S. 445 (1976); Marshall v. City of Sheboygan,

supra; Arritt v. Grissell, supra; Usery v. Charleston Cty

Sch. Dist., supra. Thus the court concludes that the Tenth

Amendment does not bar the application of the ADEA to

the defendant.

Defendant next points out that entry level Federal Bureau

of Investigation agents, postal inspectors and firefighters

must be under thirty five years of age. That age limit is

authorized pursuant to 5 U.S.C. § 3307(d) which provides:

(d) The head of any agency may, with the concur-

rence of such agent as the President may designate,

determine and fix the minimum and maximum limits

of age within which an original appointment may be

made to a position as a law enforcement officer or

firefighter, as defined by Section 8331(20) and (21),

respectively, of this title.

In defendant’s view, section 3307(d) and the federal age

limits currently in force indicate that an age limit of thirty

five years is a bona fide occupational qualification (BFOQ)

for law enforcement and firefighting positions.

The problem with this argument is that although section

3307(d) authorizes entry level restrictions for certain jobs,

it does not require the adoption of any restriction. And most

importantly, that statutory provision neither authorizes nor

approves the specific age restrictions currently in force. Nor,

contrary to defendant’s claim, is there any case support for

the propo ‘ition that section 3307(d) establishes the age limit

of thirty five years as a BFOQ. Defendant relies on Stewart

v. Civiletti, 25 FEP Cases (BNA) 1702 (D.D.C. Dec. 14,

1979. However, in that case the court upheld an entry age

limitation for clerical employees not on the basis that an

age limitation of thirty five constituted a BFOQ, but on the

* basis that the employees were law enforcement personnel .

within the meaning of section 3307(d). Thomas v. U.S. Pty

Horny Fae

Postal Inspection Service, 647 F.2d 1035 (10th Cir. 1981)

— also relied on by defendant — merely determined that a

federal entry age restriction was not unconstitutional. And

Bowman v. U.S. Dept. of Justice, 510 F. Supp. 1183 (E.D.

Va. 1981), concerned the validity of a retirement provision

and not section 3307(d).

These considerations aside, defendant concedes that its

refusal to hire persons over the age of thirty five years

constitutes a prima facie violation of the ADEA which will

entitle plaintiff to relief unless that age limitation policy

constitutes a BFOQ.

In order for that policy to constitute a BFOQ, it must

first be shown that ‘‘the job qualifications invoke[d] to jus-

tify. . . [the] discrimination. . . [are] reasonably necessary

to the essence of [the] business . . . .’’ [Emphasis in orig-

inal.] Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224,

236 (Sth Cir. 1976). In the present case, there is no dispute

that defendant’s job qualifications for health, strength, agil-

ity and physical performance are reasonably necessary.

In addition, defendant’s age limitation can pass muster

as a BFOQ only if the evidence shows either (1) that all or

substantially all persons above that age are unable to meet

defendant’s health and physical performance standards; or

(2) that there is no practical way to differentiate qualified

from unqualified applicants among persons over the age

cutoff. Tamiami, 531 F.2d at 235-7.‘

Preliminarily, the parties disagree as to who has the bur-

den of proof on the issue of whether age is a BFOQ. Relevant

on that issue is Texas Dept. of Community Affairs v. Bur-

eo.

aet..

dine, 101 S. Ct. 1089 (1981). In that case, the Supreme

Court outlined the respective burdens of the plaintiff and

defendant on the question of the establishment of a BFOQ

under Title VIi of the Civil Rights Act of 1974 (id. at 1093):

First, the plaintiff has the burden of proving by the

preponderance of the evidence a prima facie case of

discrimination. Second, if the plaintiff succeeds in

proving the prima facie case, the burden shifts to the

defendant ‘‘to articulate some legitimate, nondis-

criminatory reason for the employee’s rejection.’’

[Citations omitted.] Third, should the defendant carry

this burden, the plaintiff must then have an opportunity

to prove by a preponderance of the evidence that the

legitimate reasons offered by the defendant were not

its true reasons, but were a pretext for discrimination.

Although Burdine involved Title VII of the Civil Rights

Act of 1964 and not the ADEA, the language of the BFOQ

provision of Title VII is virtually identical to the corre-

sponding language of the ADEA. Compare 42 U.S.C.

§ 2000e-2(e) with 29 U.S.C. § 623(f)(1) of the ADEA.

Given this similarity between Title VII and the ADEA, the

Ninth Circuit has recently applied the teaching of Burdine

to the ADEA. Douglas v. Anderson, 656 F.2d 528 (9th Cir.

1981).

In conformity with Burdine and Douglas v. Anderson,

this court concludes that upon defendant’s articulation of

legitimate, nondiscriminatory reasons for its age restriction,

the burden of proof as to whether age is a BFOQ lies with

Against this background, defendant's first contention as

to why age should be considered a BFOQ here is that persons

over the age of forty years would be unable to adequately

perform the tasks required by the jobs in issue. It is beyond

dispute that these jobs are physically arduous and require

ae eS

strength, agility, good reflexes and the ability to perform

such tasks as the running of appreciable distances and the

lifting of heavy objects.

The evidence showed that as a yeneral matter younger

persons more often possess such characteristics and are more

Ofien abie to perform such tasks than older persons. Never-

theless, as defendant concedes, qualified persons hired for

these positions before they reach the age of thirty five are

able to continue satisfactorily well beyond that age. Indeed,

defendant currently employs numerous deputy sheriffs over

forty years of age. Also, two of the nine helicopter pilots

currently employed by the defendant are over forty. Given

these considerations, the court finds it inexplicable that de-

fendant refuses to consider for employment persons over

thirty five years of age who are satisfactorily employed in

similar jobs by other government agencies.

What is more, the record establishes that there is no strict

relationship between age and physical ability. Thus, the

overwhelming weight of the evidence demonstrates that many

persons over the age of forty are capable of physically out-

performing many persons under the age of forty years. In-

deed, many persons over the age of forty possess the phys-

ical strength, agility and other characteristics needed for

these jobs, while many persons under the age of forty lack

those possessing them by the use of simple, inexpensive

the case, the general correlation between age and physical

ability cannot serve as a justification for defendant’s age

Defendant maintains though that age should be considered

a BFOQ because of the generally higher rate of heart disease

among older persons. In particular, defendant claims that

ca, ee

abandonment of its age limitation would result in an increase

in its hiring of persons suffering from undetected heart

disease.

It is not disputed that a certain percentage of persons

genuinely suffering from heart disease do not manifest such

readily apparent symptoms as chest pain. The evidence in-

dicates that the rate of such asymptomatic heart disease is

approximately three percent among thirty five year olds.

These figures do not, however, reflect defendant’s actual

risk of hiring asymptomatic sufferers of heart disease should

its age restriction be voided. This is because such disease

may in fact be detected by various medical procedures.

Thus, simple electrocardiogram and cardiokymograph tests

will detect 52 percent of all asymptomatic sufferers. Ad-

ditionally, the evidence indicates that the Bruce Protocol,

a stress electrocardiogram test on an inclined treadmill, cou-

pled vith an analysis of the individual’s risk factors (such

as weight, smoking habits, family history, etc.) is 99 percent

accurate as a short term predictor of the likelihood of cardiac

difficulty. All of these tests are inexpensive and easy to

administer. Thus, only an extremely small percentage of all

persons over the age of thirty five years applying for the

jobs in question are likely to have asymptomatic heart dis-

ease and go undetected.

Applying the first prong of the Tamiami test to these facts,

it is apparent from the record that all or substantially all

persons above the age of forty years are not unable to meet

defendant’s health standards due to heart disease.

Turning to the second prong of the test, and considering

that only an extremely small percentage of all persons cur-

rently barred by defendant’s age restrictions are likely to

have heart disease and go undetected by the available med-

ical tests, the court concludes that in this regard it is not

—13—

impractical for defendant to differentiate the qualified from

the unqualified applicants. Thus on the second prong of the

Tamiami test, defendant’s age limit policy again fails to

pass muster.

Nor is this conclusion altered by the fact that a very small

number of persons may conceivably go undetected. In the

court’s view, Tamiami requires only a practical reliable

differentiation of the unqualified from the qualified appli-

cant, 531 F.2d at 236, not a perfect differentiation.

Defendant next contends that older persons will become

unfit for these positions in a shorter time than younger

persons. It stresses the evidence in the record indicating that

the risk of heart disease increases with age. In essence,

defendant’s argument is that a voiding of its age policy will

saddle it with an older work force which will more rapidly

become unfit for the jobs in issue due to physical unfitness

and heart disease. This, it is argued, will result in defendant

receiving a less than optimal return on the initial training it

provides its deputy sheriffs and helicopter pilots.

What the evidence showed, however, was that physical

unfitness for these positions did not follow inexorably from

the aging process. Thus, as a person grows older, physical

fitness for the positions can be maintained by exercise and

the control of weight gain. And as noted earlier, defendant

currently employs a large number of deputy sheriffs over

the age of forty who are performing satisfactorily.

Essentially these same arguments were rejected in

McMahan v. Barclay, 510 F. Supp. 1114(S.D.N.Y. 1981).

There the district court considered a hiring age limit of

twenty nine years of age for police officers. While McMahan

was decided on constitutional grounds, the court’s discus-

sion of whether age constitutes a BFOQ for police officers

is applicable here (id. at 1116):

eta

Before this Court, defendants advance the contention

that the statute is valid as imposing a bona fide oc-

cupational qualification. However, the only justifica-

tion offered for this contention is: (1) that younger

police can serve for a longer period of time after being

trained than older recruits and (2) younger recruits will

remain physically fit for longer periods of time. Were

the Court to accept these justifications for imposing an

age barrier of 29, little would be left of the concept

that age discrimination, without some showing of a

real need therefor, is impermissible. The argument that

the investment in training younger recruits is more

likely to be recouped than that in the training of older

persons would negate the entire concept of protection

against age discrimination. Obviously, this is a con-

tention equally available to any employer of persons

who must receive training.

And as the Fourth Circuit recently stated in Smallwood

v. United Air Lines, _ F.2d ——, Slip Op. Oct. 8, 1981

at 9, ‘“‘economic considerations . . . cannot be the basis for

a BFOQ — precisely these considerations were among the

targets of the act.”’

Of course, given the fact that the ADEA has made age

discrimination generally unlawful, defendant cannot prevail

unless there is something distinctive about the jobs at issue

here that makes age a relevant consideration. In this regard,

defendant stresses the fact that the employer here is a public

body and that any increment in cost associated with a void-

ing of its policy will therefore have to be met with public

funds. This argument cannot be accepted in view of the

action of Congress in 1974 specifically extending the ADEA

to the states and their subdivisions. 29 U.S.C. § 630(b).

Defendant also emphasizes the public safety aspect of the

jobs in issue here and once again relying upon evidence of

increased incidence of heart disease among older persons h

os

argues that its policy minimizes the risk of employees being

debilitated by a heart attack while responding to an emer-

gency. In pursuing this argument, the defendant relies upon

cases upholding entry age restrictions for inter-city bus driv-

ers and airline pilots. See Tamiami, 531 F.2d 224 (bus

drivers); Hodgson v. Greyhound Lines, 499 F.2d 859 (7th

Cir. 1974), cert. denied, 419 U.S. 1122 (1975) (bus driv-

ers); Murnane v. American Airlines, 482 F. Supp. 135

(D.D.C. 1979) (airline pilots) but compare Smallwood v.

United Airlines, supra. Police work, of course, concerns

the safety of third persons but does not entail the direct and

continual reliance of a large number of persons upon the

individual officer’s moment to moment physical vitality.

Equally important, the record, as indicated previously , dem-

onstrates that an individual’s risk of suffering a heart attack

is highly predictable.

Given the facts established at trial, the court concludes

that plaintiff has met its burden of proving that age does

not constitute a BFOQ for the jobs here at issue and that

defendant’s age limit for hiring violates the ADEA. Accord.

EEOC v. County of Allegheny, 519 F. Supp. 1328 (W.D.

Pa. 1981).°

Pursuant to rule 58 of the Federal Rules of Civil Proce-

dure, the parties shall submit within 15 days a proposed

form of judgment.

/s/ Herbert N. Maletz

Herbert N. Maletz, Judge

a)

APPENDIX C.

Judgment.

United States District Court, Central District of California.

Equal Employment Opportunity Commission, Plaintiff,

v. County of Los Angeles, Defendant. Civil Action No. 78-

2522 HM.

Filed: December 17, 1981.

This action having been heard before this Court on Oc-

tober 8, 1980, the issues having been duly tried, and a

decision having been rendered by this Court,

IT IS NOW, THEREFORE, ORDERED AND

ADJUDGED:

1. The maximum entry hiring limitation of age of thirty-

five for the positions of Entry Level Deputy Sheriff and

Helicopter Pilot, Fire Services, utilized by Defendant,

County of Los Angeles, violates the provisions of the Age

Discrimination in Employment Act of 1967, as amended,

29 U.S.C. § 621, et seq. and in particular, §§ 626(b) and

(e);

2. Defendant, its agents, successors, officers, employ-

ees, and those acting in concert with it or at its direction

should be, and they hereby are, permanently restrained and

enjoined from continuing or maintaining the policy, prac-

tice, custom, and usage of limiting employment of appli-

cants for the positions of Entry Level Deputy Sheriff and

Helicopter Pilot, Fire Services, to those individuals who

have not yet attained the age of thirty-five (35).

3. Defendant, its agents, successors, officers, employ-

ees, and those acting in concert with it or at its direction

are hereby ordered to identify within thirty (30) days those

individuals over the age of thirty-five (35) who applied and

were rejected for employment as Entry Level Deputy Sheriff

ee

or Helicopter Pilot, Fire Services, during the period from

January, 1978 to the present; names and addresses of those

applicants so identified must be provided to the Equal Em-

ployment Opportunity Commission within ten (10) days of

such identification. Furthermore, Defendant, its agents, suc-

cessors, officer, employees, and those acting in concert with

it or at its direction are hereby ordered to notify the indi-

viduals so identified of the outcome of this lawsuit; to proc-

ess applications of such individuals through normal person-

nel procedures without regard to the age of the applicant;

and to accept into employment in the next available openings

those individuals who are otherwise qualified for said po-

sitions. A list of individuals accepted into employment by

Defendant must be provided to the Equal Employment Op-

portunity Commission within ten (10) days of such

acceptance.

4. Defendant, its agents, successors, officers, employ-

ees, and those acting in concert with it or at its direction

should be, and they hereby are, permanently restrained from

treating individuals hired after age thirty-five in the subject

positions in an adverse manner because of age or because

such hiring was required by this Judgment.

5. Defendant, its agents, successors, officers, employ-

ees, and those acting in concert with it or at its direction

should be, and they hereby are, ordered to communicate to

employees in the Sheriff's Department and the Fire Services

Department the fact that the entry age restriction of thirty-

five years violates the Age Discrimination in Employment

Act of 1967, as amended, 29 U.S.C. § 621, et seq., and

that such restriction will no longer be utilized by Defendant.

6. Defendant, its agents, successors, officers, employ-

ees, and those acting in concert with it or at its direction

should be, and they hereby are, permanently restrained and

enjoined from printing or publishing any reference to, or

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—_33—

hiring limitation because of, an applicant’s age in its ad-

vertisements, job announcements, or other documents used

to inform potential applicants of vacancies in the subject

_ 7. Defendant shall pay Plaintiff all costs herein allow-

able by law incurred and expended by Plaintiff, and Plaintiff

shall have execution therefor.

This Court shall retaja jurisdiction of the action following

entry of this Judgment to insure that the provisions herein

contained are implemented accordingly.

Dated: December 17, 1981

/s/ Herbert N. Maletz

HERBERT MALETZ

UNITED STATES DISTRICT JUDGE

/s/ Sitting by Designation

Approved as to form:

JOHN LARSON, County Counsel

By /s/ William F. Stewart

WILLIAM F. STEWART

Chief, Labor Relations Division

COUNTY OF LOS ANGELES

Presented by:

SAMUEL DASHIELL

Regional Attorney

ROBERT T. OLMOS

Supervisory Trial Attorney

MARTIN K. MAGID

Trial Attorney

a 2 By /s/ Christine Masters e