# Petition — County of Los Angeles v. Equal Employment Opportunity Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0332%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 464 U.S. 1073 ## Text 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, y 4 oe” eis ie ee 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. & ‘d "9 F a er> - F oe ee 5 R4 as J * COS Ee Sa eS ee ee a Pe ee ae Oe 4 ae baer »=¢ at ee a. Beet. are " os a 7s) 4 a = ye vf Te: SA - : he ats rh, © * , —!I 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. - ‘» .e - ee ee a ae | eS 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 . 5 OP ae » ‘ a a AN oh Vata torr. oe eee) ee * hy _ " 4 a4. Pee Se ee pee e —_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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0332%3A1. Public record. Not legal advice.