Amicus Curiae Brief — Johnson v. Mayor and City Council of Baltimore

UY) 4

No. 84-518, No. 84-710 / = seus ba

xX1LED

IN THE

Supreme Court of the Uniten| States * “|

OCTOBER TERM, 1964 | ALEXANDER | STEVAS,

“ —— eee eee

ee

ROBERT W. JOHNSON, ef al.,

Petitioners,

Vv.

Mayor and City CoUNCIL OF BALTIMORE, et al.,

Respondents.

EQuaL EMPLOYMENT OPPORTUNITY COMMISSION,

Petitioner,

Vv.

Mayor and City COUNCIL OF BALTIMORE, et ai.,

Respondents.

,

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

AMICUS CURIAE BRIEF OF THE ATTORNEY

GENERAL OF THE STATE OF NEW YORK

ROBERT ABRAMS

Attorney General of the

State of New York

Amicus Curiae

Suite 45-08

Two World Trade Center

New York, New York 10047

(212) 488-4631

ROBERT HERMANN

Solicitor General

Counsel of Record

HARVEY M. BERMAN

Assistant Attorney General

Of Counsel

~

Oo

TABLE OF CONTENTS

ee eee ns neues

er ee

Summary of Argument ..............0-200-

ARGUMENT—The Mandatory Retirement Age of

55 Established by Congress for Federal Law En-

forcement Officers and Firefigh*2rs Should, as a

Matter of Law, Be Deemed a bona Fide Occu-

pational Qualification for State and Local Law

Enforcement Officers and Firefighters. .......

A. Allowing Reliance on the Mandatory Retire-

ment Age of 55 Under 5 U.S.C. § 8335(b)

to Establish Retirement Ages for State and

Local Police and Firefighters Avoids an Un-

necessary Conflict Between Federal Law and

State and Local Laws. .........ccccc00.

B. The Mandatory Retirement of State and Local

Law Enforcement Officers and Firefighters at

Age 55 Is Compatible With the Purposes and

Objectives of Congress Under the ADEA and

ee I sca ciecenddenso00<

1. Congress Has Recognized That It Is Rea-

sonably Necessary to Consider Age as a

Factor in E ablishing Employment Poli-

cies for Law Enforcement Officers and

CE ae

2. Congress Has Found That a BFOQ May

Be Established by Means Other Than

Case-by-Case Litigation. .............

13

li

PAGE

C. Read /n Pari Materia, the ADEA and 5 U.S.C.

§ 8335(b) Establish a Statutory Scheme Un-

der Which Age 55 Is a BFOQ for Law En-

forcement Officers and Firefighters. ...... 16

COMERMTEEN ooo 0c 000ksennbeeeeeee 17

TABLE OF AUTHORITIES

Cases

Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977) .. 7

Chicago & North Western Transportation Co. v.

Kalo Brick & Tile Co., 450 U.S. 311 (1981) .. 6

EEOC v. City of St. Paul, 671 F.2d 1162 (8th Cir.

| rr 7, 8, 15

EEOC v. Commonweuith of Pennsylvania, 596

F. Supp 1333 (M.D. Pa. 1984) ............ 7, 15

EEOC v. Missouri State Highway Patrol, 748

F.2d 447 (8th Cir. 1984) ................ 7,15

EEOC v. State of New York, pending, No. 84-CV-

CL) PP 16

Garcia v. San Antonio Metropolitan Transit Au-

thority, — U.S. —, 53 U.S.L,W. 4135 (1985) .. 5

Hahn v. City of Buffalo, 596 F. Supp 939

CWHARLY. GORGD oc cccccecunucnue ee 2

Harris v. Pan American Airways, 649 F.2d 670

os Me | er ee 8

Heiar v. Crawford County, Wisc., 746 F.2d 1190

CFG Cie. BBG) ocd dcvccccsndene 7,8, 15

Hines v. Davidowitz, 312 U.S. 399 (1941) .... 6

Huron Portland Cement Co. v. Detroit, 362 U.S.

GED CEBGRD 0 occcecctccdsnsc uu 6

lil

PAGE

Johnson v. Mayor and City Council of Baltimore,

553 F. Supp 1287 (D. Md. 1981), rev'd, 731

F.2d 209 (4th Cir. 1984), cert. granted, — U.S.

—, 53 U.S.L.W. 3506 (1985) ........-.--. passim

Kokoszka v. Belford, 417 U.S. 642 (1974) .... 6

Lime and Avocado Growers v. Paul, 373 U.S. 132

DEED Gu vaseenesececcercceccsccccccces 6

Mahoney v. Trabucco, 738 F.2d 35 (lst Cir.

1984), cert. denied, — US. —, 53 U.S.L.W.

SEE cehedacstsceecseescscccneces 7,15

Massachusetts Board of Retirement v. Murgia, 427

DCT COUR ccnvcccccevccssccccoces a

National Leagu- vf Cities v. Usery, 426 U.S. 833

DT Ce eeueeeseeceescesccmesccssccece 5

Orzel v. City of Wauwatosa, 697 F.2d 743 (7th Cir.

1983), cert. denied, — U.S. —, 104 S. Ct. 484

DE DE da ebeeenesecevescesccecevesc 7, 8, 15

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) 6

Seagram & Sons, Inc. v. Hostetler, 384 U.S. 35

Sie Gee eeeseseseeccescceccccces 6

Teamsters v. United States, 431 U.S. 324 (1977) 12

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

(Sth Cir. 1976) ....ccccccccccccccccenes 8, 15

Vance v. Bradley, 440 U.S. 93 (1979) ........ 7

Constitution and Statutes

United States Constitution:

DETECT TERE TERETE E TEL 6

Tenth Amendment .........ccccccccccees 5, 16

iv

PAGE

Age Discrimination in Employment Act of 1967,

29 U.S.C. § 621 et seq. (1976 & Supp. IV) .. passim

Des EE cocnceeccasncunese¥e ae 5

DP ee ED Se dc coccccsdecbandseecs 10

Pe ED: cc dinceeneviedinleesenens passim

Pub. L. No. 80-879, 62 Stat. 122 (1948) ...... 10

Pub. L. No. 92-382, 86 Stat. 539 (1972) ...... 10

Pub. L. No. 93-350, 88 Stat. 356 (1974) ...... 5

Pub. L. No. 95-256, 92 Stat. 189 (1978) ...... 4

New York Civil Service Law, § 58(1)(a) ...... 2

New York Executive Law, § 296 (subd. 3-a) ... 13

New York Retirement and Social Security Law,

DOD Ge OP cide cckcceccssbacucses 2, 7, 14

Miscellaneous

S. Rep. No. 92-774, 92d Cong. 2d Sess. (1972) .. 10

S. Rep. No. 93-948, 93d Cong. 2d Sess. (1974) .. 10

S. Rep. No. 95-493, 95th Cong. 2d Sess. (1978) .. 13-14

H.R. Rep. No. 93-463, 93d Cong. Ist Sess. (1973) 11

H.R. Rep. No. 95-527, 95th Cong. Ist Sess. (1977) 12

119 Cong. Rec. 30592 (1974) (Remarks by Rep-

I re 10

119 Cong. Rec. 30594 (1974) (Remarks by Rep-

resentative Rangel) ........... AE 10

119 Cong. Rec. 30597 (1974) (Remarks by Rep-

SUTIN GD cc i ccccscvcscccevcess 11

123 Cong. Rec. 29003-29004 (1977) (Letter of

PAGUUROREREIIVO TEER) ccccceccccccccscesecs

123 Cong. Rec. 30556 (1977) (Remarks by Rep-

CR Dn ccccccewccccevesess

29 C.F.R. § 860.102 (1981) ................

Special Retirement Policies as Related to Mandatory

Retirement for Law Enforcement Officers, Fire-

fighters and Air Traffic Controllers, Subcothm. on

Compensation and Employee Benefits of the Sen-

ate Committee on Post Office and Civil Service,

95th Cong. 2d Sess. 13 (October 5, 1978) ....

1969 New York Legislative Annual 56 .........

PAGE

12

12

11

14

IN THE

Supreme Court of the United States

October Term, 1984

No. 84-518, No. 84-710

°

ROBERT W. JOHNSON, et al.,

Petitioners,

v.

Mayor and City COUNCIL OF BALTIMORE, ef al.,

Respondents.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Petitioner,

Vv.

Mayor and City CoUNCIL OF BALTIMORE, ef al.,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

°

AMICUS CURIAE BRIEF OF THE ATTORNEY

GENERAL OF THE STATE OF NEW YORK

Interest of Amicus

The State of New York, by its Attorney General, Robert

Abrams, submits this brief as amicus curiae pursuant to

Supreme Court Rule 36.4.

2

The State of New York has enacted legislation which

establishes age as a factor in the employment of state and

local law enforcement officers. Under the New York Civil

Service Law, one must, with certain exceptions, be under

the age of 30 to be eligible for appointment as a state or

local police officer. Civil Service Law, §58 (subd. 1,

par.[a]). Under the New York Retirement and Social

Security Law, a mandatory retirement age of 55 has been

set for state police officers. Retirement and Social Security

Law, § 381-b (subd. e). These statutes are presently under

separate challenge in federal court. Hahn v. City of Buffalo,

596 F. Supp. (W.D.N.Y. 1984), app. pending (challenge

to Civil Service Law); EEOC vy. State of New York, No.

84-CV-12 (N.D.N.Y.) (challenge to Retirement and Social

Security Law).

In Hahn, the district court invalidated section 58(1) (a)

of the Civil Service Law, finding, after a lengthy trial, that

the statute conflicts with the Federal Age Discrimination in

Employment Act (29 U.S.C. § 621 et seq.). In EEOC v.

State of New York, the Attorney General’s motion for sum-

mary judgment based on the same legal issues as are raised

here was denied. Thus, the Court’s decision in this case

will have a significant impact on the employment of law

enforcement officers in New York State.

Summary of Argument

The determination of whether age is a BFOQ reasonably

necessary for law enforcement and firefighting does not

require case-by-case litigation. For these occupations,

Congress has established age 55 as a statutory standard

on which state and local governments may rely. 5 U.S.C.

§ 8335(b).

The age limit established under 5 U.S.C. § 8335(b) is

easily harmonized with congressional concern, under the

ADEA, about age discrimination in employment. Under

the ADEA, age may be considered only insofar as it is a

reasonably necessary BFOQ. Under 5 U.S.C. § 8335(b),

Congress has established that age is a BFOQ for police and

firefighters. Thus, a federal standard has been established

on which state and local governments may rely in their

attempts to comply with the ADEA.

The failure of some courts to apply this statutory BFOQ

has resulted in the unnecessary invalidation of state and

local laws compelling police and firefighters to retire at the

age of 55. These courts have mistakenly presumed that

there is an irreconcilable conflict between these state and

local laws and the Federal Age Discrimination in Employ-

ment Act. 29 U.S.C. § 621 et seq. However, simply recog-

nizing that 5 U.S.C. § 8335(b) provides a reasonable

federal standard upon which to establish a BFOQ for state

or local police or firefighters would have obviated the need

to find statutory conflict in these cases. By doing so, the

strong policy against invalidating state or local laws, where

conflict with federal law is avoidable, is advanced. The

Fourth Circuit adopted such a common-sense approach.

Moreover, allowing reliance on 5 U.S.C. § 8335(b) to

establish retirement ages for siate or local police and fire-

fighters is compatible with the purposes and objectives of

Congress. Congress has expressed concern that litigation

not be the sole means of establishing a BFOQ, ane ‘jas rec-

ommended that generic standards or guideline’ %e used.

Under 5 U.S.C. § 8335(b), Congress itself has e tablished

such a guideline. The legislative history of this statute is

replete with congressional statements about the need for

relatively young law enforcement officers and firefighters.

No distinction was drawn between federal and nonfederal

employees in these occupations. Clearly, Congress has con-

4

cluded that a mandatory retirement age limit of 55 is rea-

sonably necessary to law enforcement and firefighting

opera.ions.

ARGUMENT

The Mandatory Retirement Age of 55 Established

by Congress for Federal Law Enforcement Officers and

Firefighters Should, as a Matter of Law, Be Deemed

a Bona Fide Occupational Mualification for State and

Local Law Enforcement Officers and Firefighters.

In 1967, Congress passed the Age Disc: ‘ation in

Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.

The ADEA prohibited employers from discriminating

against persons 40 to 65 years old because of age.* The

Act specifically made it unlawful for an employer to dis-

charge a worker on such a basis. 29 U.S.C. § 623(a).

However, Congress recognized that some employment prac-

tices based on age may be justifiable. Accordingly, it pro-

vided that age as an employment criterion is unlawful

“where age is a bona fide occupational qualification rea-

sonably necessary to the normal operation of the particular

business. . . .” 29 U.S.C. § 623(f)(1).

As originally passed in 1967, the ADEA did not apply

to the United States Government, the states or their political

subdivisions. However, in 1974, Congress extended the

Act to cover these governmental bodies.** Federal work-

* In 1978, the general protection of the ADEA was raised to age

70. Age Discrimination in Employment Act Amendments of 1978,

Pub. L. No. 95-256, 92 Stat. 189 (1978).

** Under § 11(b) of the ADEA, the definition of “employer” was

expanded to include “a State or a political subdivision of a State and

(footnote continued on following page)

ers were covered under section 15 of the Act. 29 U.S.C.

§ 633a. Although Congress created an independent en-

forcement machanism for federal employment, the same

restrictions and standards applied to federal, state and local

employers: age discrimination was prohibited unless it

could be shown that age is a BFOQ necessary to the per-

formance of the duties of the position. 29 U.S.C. §§ 623

(f)(1), 633a.

Significantly, in the same year in which Congress ex-

tended the ADEA to government employers, it also estab-

lished a mandatory retirement age for two federal occupa-

tions. Pub. L. No. 93-350, 88 Stat. 356 (1974), 5 U.S.C.

§ 8335(b). Under this statute, a law enforcement officer*

or firefighter must retire on the last day of the month in

which he or she becomes 55 years old or completes 20

years of service, whichever comes later.

Like Congress, the City of Baltimore has established a

mandatory retirement age of 55 for its firefighters. How-

ever, on this appeal, petitioners argue that this local law

conflicts with the ADEA and must, therefore, be invali-

dated. They contend that the validity of state and local

laws setting mandatory retirement ages for police and fire-

(footnote continued from preceding page)

- agency or instrumentality of a State or political subdivision of

a State... .” 29 U.S.C. § 630(b). In EEOC v. Wyoming, 460 US.

226 (1983), this Court found that the extension of the ADEA to

state and local governments did not violate the doctrine of Tenth

Amendment immunity articulated in National League of Cities v.

Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio

Metropolitan Transit Authority, — U.S. —, 53 U.S.L.W. 4135

(February 19, 1985).

*5 U.S.C. § 8331(20) defines law enforcement officei as “an

employee, the duties of whose position are primarily the investigation,

apprehension, or detention of individuals suspected or convicted of

offenses against the criminal laws of the United States.”

6

fighters may not be based on the federal age limit estab-

lished by Congress under 5 U.S.C. § 8335(b). The State

of New York disagrees.

The standards for determining whether state and local

laws are invalid under the Supremacy Clause, because of

a conflict with a federal statute, are well established. First,

courts indulge a rule of construction which avoids finding a

conflict, if at all possible. Chicago & North Western Trans-

portation Co. v. Kalo Brick & Tile Co., 450 U.S. 311

(1981); Ray v. Atlantic Richfield Co., 435 U.S. 151

(1978). This Court has a strong policy against invalidating

state and local laws in the absence of a clear showing of

irreconcilable conflict. Seagram & Sons, Inc. v. Hostetler,

384 U.S. 35, 45 (1966); Huron Portland Cement Co. v.

Detroit, 362 U.S. 440, 446 (1960). Second, a conflict

will be found only where the state or local law stands “as

an obstacle to the accomplishment and execution of the

full purposes and objectives of Congress .. .” Hines v.

Davidowitz, 312 U.S. 399, 404 (1941). See also, Lime

and Avocado Growers Vv. Paul, 373 U.S. 132 (1963).

Third, when interpreting a legislative scheme, this Court

looks to the whole of the statute or statutes on the same

subject to find “ ‘such a construction as will carry into exe-

cution the will of the legislature’”. Kokoszka v. Bedford,

417 U.S. 642, 650 (1974), quoting Brown v. Duchesne,

19 How. 183, 194 (1857). These standards require that

the federal statutory scheme which explicitly authorizes a

mandatory retirement age limit for federal police and fire-

fighters be regarded as likewise authorizing, rather than

displacing, state and local laws directing precisely the same

result.

A. Allowing Reliance on the Mandatory Retirement

Age of 55 Under 5 U.S.C. § 8335(b) to Establish

Retirement Ages for State and Local Police and

Firefighters Avoids an Unnecessary Conflict Be-

tween Federal Law and State and Local Laws.

Prior to 1974, when the ADEA did not apply to state

and local governments, government employers were afforded

a “relatively relaxed standard” in establishing mandatory

retirement age limits, and the validity of these limits was

consistently upheld. Massachusetts Board of Retirement v.

Murgia, 427 U.S. 307, 314 (1976) (rational relationship

standard applied in upholding the constitutionality of a

state statute requiring that state police officers retire at

age 55); Vance v. Bradley, 440 U.S. 93 (1979) (manda-

tory retirement age of 60 for participants in Foreign Service

Retirement System upheld. )

However, since the 1974 extension of the ADEA, a host

of lawsuits have challenged the mandatory retirement age

limits established by state and local governments. Most of

these lawsuits have involved law enforcement officers and

firefighters.* Indeed, in his concurring opinion in EEOC v.

Wyoming, 103 S. Ct. at 1069-1070 n. 2, Justice Stevens

noted that more than half the states have mandatory retire-

* See, for example, EEOC v. Missouri State Highway Patrol, 748

F.2d 447 (8th Cir. 1984); Mahoney v. Trabucco, 738 F.2d 35 (ist

Cir. 1984), petition for cert. denied, — U.S. —, 53 U.S.L.W. 403

(1984) (State police officers); EEOC v. City of St. Paul, 671 F.2d

1162 (8th Cir. 1982) (firefighters); Heiar v. Crawford County, Wisc.,

746 F.2d 1190 (7th Cir. 1984) (police officers); Orzel v. City of

Wauwatosa, 697 F.2d 743 (7th Cir. 1983), cert. denied, — U.S. —,

104 S. Ct. 484 (1984) (firefighters); Arritt v. Grisell, 567 F.2d 1267

(4th Cir. 1977) (city police officers); EEOC v. Commonwealth of

Pennsylvania, 596 F. Supp. 1333 (M.D. Pa. 1984) (State highway

patrolmen). New York State’s mandatory retirement age limit of 55

for state police officers (Retirement and Social Security Law, § 381-b

[subd. e], L. 1969 c. 3365, amended L. 1982, c. 862 § 1) is presently

under challenge in federal court, as well. EEOC v. State of New York,

No. 84-CV-12 (N.D.N.Y.).

ment laws for police or firefighters which violate the ADEA

unless they reflect a BFOQ.

In each of these cases challenging the mandatory retire-

ment age limit for law enforcement officers or firefighters,

the State or its political subdivision has been required to

establish at trial that age is a BFOQ. Since 1976, practically

all of these cases have adopted the same BFOQ standard

first set forth in an ADEA challenge brought against a

private employer. Usery v. Tamiami Trail Tours Inc., 531

F.2d 224, 236 (Sth Cir. 1976). This strict standard re-

quires that job qualifications on the basis of age be “reason-

ably 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” members of a class “on an individualized

basis”. Harris v. Pan American Airways, 649 F.2d 670,

676 (9th Cir. 1981), citing Tamiami, 531 F.2d at 236.

In applying the Tamiami standard, a number of courts,

including the district court below, have found that age is

not a BFOQ for law enforcement officers and firefighters.

Heiar v. Crawford County, Wisc. 746 F.2d 1190 (7th Cir.

1984); Orzel v. City of Wauwatosa, 697 F.2d 743 (7th Cir.

1983); EEOC v. City of St. Paul, 671 F.2d 1162 (8th Cir.

1982). Accordingly, these courts ruled that the state or

local law in question conflicts with the ADEA and is thus

invalid.

These findings, seemingly compelled by the Tamiami

standard, create a conflict whereby local and state laws are

displaced because they are held to violate one part of a

federal statutory scheme another part of which authorizes

the federal government to do precisely what is forbidden

to the states and municipalities. Such statutory conflict

9

could have been avoided had the courts not taken so limited

a view. Simply recognizing that 5 U.S.C. § 8335(b) pro-

vides a reasonable federal standard upon which to establish

a BFOQ for state and local police and firefighters would

have obviated the need to find statutory conflict in these

cases.

In the decision below, the Fourth Circuit adopted a

common-sense approach. It refused to accept the notion

that Congress would establish a mandatory retirement age

limit for federal law enforcement officers and firefighters

while, at the same time, placing state and local governments

at risk that these same age limits might be found unlawful

under federal law for identical occupations. Reluctant to

make a determination that Congress adopted an occupa-

tional qualification that is not bona fide (731 F.2d at 213),

the Fourth Circuit held that the federal age limit of 55

for police and firefighters is a reasonable standard applicable

as a BFOQ to nonfederal police and firefighters. To do

otherwise would have been to create judicially an unneces-

sary and irreconcilable conflict between federal and local

law.

B. The Mandatory Retirement of State and Loca! Law

Enforcement Officers and Firefighters at Age 55

Is Compatible With the Purposes and Objectives of

Congress Under the ADEA and 5 U.S.C. § 8335(b).

1. Congress Has Recognized That It Is Reasonably

Necessary to Consider Age As a Factor In Es-

tablishing Employment Policies for Law En-

forcement Officers and Firefighters.

The legislative history of 5 U.S.C. § 8335(b) clearly

shows that the same Congress which, in 1974, extended

the ADEA to state and local governments had, neverthe-

less, concluded that age is a factor which may be considered

in the employment of law enforcement officers and fire-

10

fighters. In establishing 55 as the basic age at which these

employees are required to retire, Congress found that “these

occupations should be composed, insofar as possible, of

young men and women physically capable of meeting the

vigorous demands of occupations which are far more taxing

physically than most in the Federal Service. They are

occupations calling for the strength and stamina of the

young rather than the middle aged.” * (emphasis added).

S. Rep. No. 93-948, 93d Cong. 2d Sess. (1974), 1974 U.S.

Code Cong & Ad. News 3699. This finding was echoed

on the floor of the House of Representatives. In support

of the bill, Representative Dulski stated that law enforce-

ment officers and firefighters “are different because we have

asked them to do a difficult and dangerous job... . all of

us will benefit by a younger, more active and more vigilant

law enforcement and firefighting work force.” 119 Cong.

Rec. 30592 (1974). See also the comments of Representa-

tive Rangel (“.. . it takes young men to do the good job

we require of them.”), 119 Cong. Rec. 30594 (1974).

Petitioner Johnson suggests that this congressional lan-

guage refers only to voluntary, not mandatory retirement

(Pet. Br. p. 22). This suggestion is entirely mistaken. Prior

to 1974, Congress had enacted legislation which provided

incentives for federal police and firefighters to retire volun-

tarily at age 50. Pub. L. No. 80-879, 62 Stat. 122 (1948);

Pub. L. No. 92-382, 86 Stat. 539 (1972). This approach

* The legislative history of 5 U.S.C. § 8335(a) shows that Congress

had previously reached the same conclusion with respect to air traffic

controllers: “Although there are some exceptions to the general rule,

most controllers are not able to control traffic in busy facilities at any

age near 55—the physical and emotional strength required to do the

job, to work odd and continuously —- work shifts, and to insure

air safety for the traveling public is simp > much for any man

in that age bracket.” S. Rep. No. 92-774, 92d Cong. 2d Sess. (1972),

1972 U.S. Code Cong. & Ad. News 2289.

11

proved unsuccessful. Many employees remained on the job

until age 70. H.R. Rep. No. 93-463, 93d Cong. Ist Sess.

3-4 (1973). Thus, a mandatory retirement age was estab-

lished to rectify this situation and ensure that only relatively

young people would serve in these occupations. The statu-

tory language is clear, as is the legislative history.* In

enacting 5 U.S.C. § 8335(b), Congress concluded, in 1974,

that a mandatory retirement age limit is reasonably neces-

sary to law enforcement and firefighting operations.**

Four years later, Congress again considered this issue

in enacting the 1978 amendments to the ADEA. In its

Report to Congress on the ADEA, the House Committee

on Education and Labor reiterated the findings upon which

5 U.S.C. § 8335(b) had been based:

While it is the prima.>; purpose of this legislation

to limit mandatory retirement and other employment

discrimination for non-federal employees aged 40-

69, . . . it is not intended that the bill prohibit

mandatory retirement or other employment practices

where age is a bona fide occupational qualification

reasonably necessary to normal operation of a

particular activity... . It is recognized that certain

mental and physical capacities may decline with age,

* The Senate report accompanying the bill recognized that it

“provides for the mandatory retirement of law enforcement officers

at age 55...” 1974 US. e Cong. & Ad. News 3699. Similarly,

during consideration of the bill, Representative Leggett explained that

“this bill would fix rer! retirement at age 55 in most cases”.

119 Cong. Rec. 30597 (1974). These statements also show that

Congress had established age 55 as a focal point of its legislation.

a — contrary argument is without merit. (EEOC Br., pp.

** Indeed, in the Code of Federal Regulations it is clear that Con-

gress has established “age as a BFOQ for police officers and firefighters.

The code implicitly refers to the statute as an illustration of a BFOQ.

29 C.F.R. § 860.102 (1981).

12

and in some jobs with unusually high demands, age

may be considered a factor in hiring and retaining

workers. For example, jobs such as some of those

in air traffic control and in law enforcement and

firefighting have very strict physical requirements on

which the public safety depends. (emphasis added )

H.R. Rep. No. 95-527, 95th Cong. Ist Sess. 12 (1977).

Moreover, in passing these 1978 amendments, Congress

specifically considered and rejected a proposal to repeal 5

U.S.C. § 8335(b). In a letter setting forth the position

of the House Post Office and Civil Service Committee, its

chairman stated that age requirements “are necessary and

can be justified by the particular occupations involved and,

therefore, we are opposed to any attempt to repeal the

authority for such age requirements.” 123 Cong. Rec.

29003-29004 (1977).

It matters little that some members of Congress voted

against repealing the statute not because they supported

mandatory retirement but only because they believed that

the retirement programs for police and firefighters should

be reviewed more fully at a later time. 123 Cong. Rec.

30556 (1977). First, this sentiment hardly negates the fact

that, in 1974, Congress clearly enacted 5 U.S.C. § 8335(b)

to ensure that law enforcement officers and firefighters be

relatively young. “It is the intent of the Congress that en-

acted [the section] that controls.” Teamsters v. United

States, 431 U.S. 324, 354 n. 39 (1977). Second, as shown

by the letter above, the extent to which members of the

House shared this belief is subject to dispute. Third, eight

years have elapsed and the statute is still in effect. By

implication, Congress continues to recognize that it is rea-

sonably necessary to establish a mandatory retirement age

for law enforcement officers and firefighters.

13

Finally, in support of its argument that Congress intended

to distinguish between federal police and firefighters and

their state and local counterparts, the EEOC notes that

various sections of the ADEA provide different treatment

for federal and nonfederal employees (EEOC Br., pp. 24-

25). It is certainly true that some distinction is found.

29 U.S.C. §§ 626(c) (2), 630, 633a. However, to compel

an employee to retire on the basis of age, both federal and

nonfederal employers must establish that age is a BFOQ.

Moreover, all of the ADEA distinctions between federal

and nonfederal employment place a heavier burden on the

federal government. Thus, for example, the ADEA covers

nonfederal employees up to the age of 70, but provides no

such ceiling for federal employees. 29 U.S.C. § 631(a)(b).

It is one thing for Congress in a given area to require more

of the federal government than of the states or their sub-

divisions.* It is quite another for Congress inexplicably to

place a heavier burden on the states, with no discernible

rationale for so doing. As the Fourth Circuit stated in its

decision below, “A court should not lightly make such a

determination as to Congressional purpose.” 731 F.2d at

213.

2. Congress Has Found That a BFOQ May Be

Established by Means Other Than Case-by-

Case Litigation.

In its Report to Congress on the ADEA amendments of

1978, the Senate Human Resources Committee recognized

that a BFOQ will usually be established on a case-by-case

basis, but also expressed its concern “that litigation should

not be the sole means of determining the validity of a bona

fide occupational qualification.” S. Rep. No. 95-493, 95th

_* We note, however, that New York law prohibits employment

discrimination on the basis of age for all persons eighteen years or

older, with no ceiling. New York Executive Law, § 296 (subd. 3-a).

14

Cong. 2d Sess. (1978), 1978 U.S. Code Cong. & Ad. News

514. The Committee recommended that guidelines be

established for certain occupations.

It is, therefore, altogether reasonable for state and local

governments to rely on an existing “guideline” established

by Congress itself for law enforcement officers and fire-

fighters. This reliance is enforced by co.:gressional recogni-

tion of the need to ensure that relatively young persons

occupy these positions.

Furthermore, nowhere in the legislative history of the

ADEA or of £ U.S.C. § 8335(b) did Congress distinguish

between the demands placed on federal police or firefighters

and on their state or local counterparts.* Although 5 U.S.C:

§ 8335(b) is limited by its terms to federal employees, the

congressional findings giving rise to the statute are applic-

able, as well, to state and local employees.** No party here

has suggested that fighting fires for the federal government

is more arduous than doing so for Baltimore or New York

City. Thus, the statute is a “reasonable federal standard”

upon which state and local governments may rely in estab-

lishing a BFOQ. EEOC v. Wyoming, 460 U.S. 226, 240

(1983).

*In fact, it appears that federal firefighting may be as much as

thirteen times safer than state or local firefighting. See, Special Retire-

ment Policies as Related to Mandatory Retirement for Law Enforce-

ment Officers, Firefighters and Air Traffic Controllers, Subcom. on

Compensation and Employee Benefits of the Sen. Comm. on Post

Office and Civil Service, 95th Cong. 2d Sess. 13 (October 5, 1978).

** As noted, earlier, New York State has enacted legislation estab-

lishing a mandatory retirement age of 55 for state police officers.

Retirement and Social ee Law § 381-b (subd. e). The legislative

history of this statute reveals language remarkably similar to that

found in the history of 5 U.S.C. § 8335(b): “A low mandatory

retirement age is necessary for most members of the State Police.

The strenuous and often hazardous physical demands of the B na

require young and vigorous men to fill the positions.” (1969 New

York Legislative Annual 56).

15

In its brief, the EEOC claims that the application of a

standard which does not require a case-by-case determina-

tion will result in chaos (p. 17). On the contrary, the

application of the Tamiami standard to police officers and

firefighters continues to create doubt, confusion and incon-

sistency as to possible conflicts with federal law. After

lengthy trials involving extensive expert testimony, some

courts have found that age is not a BFOQ for law enforce-

ment officers and firefighters. Heiar v. Crawford County,

Wisc., 746 F.2d at 1190; Orzel v. City of Wauwatosa, 697

F.2d at 743; EEOC v. City of St. Paul, 671 F.2d at 1162.

Other courts have found that a BFOQ for age does exist.

EEOC v. Missouri State Highway Patrol, 748 F.2d 447

(8th Cir. 1984); Mahoney v. Trabucco, 738 F.2d 35 (1st

Cir. 1984), cert. denied, — U.S. —, 53 U.S.L.W. 403

(1984); EEOC v Commonwealth of Pennsylvania, 596

F. Supp. 1333 (M.D. Pa. 1984).

Moreover, courts reviewing identical evidence have

reached different conclusions. In Missouri State Highway

Patrol, the Eighth Circuit reversed the district court’s con-

clusion that no BFOQ had been established, finding that

the district court had erroneously ignored the testimony of

a cardiologist and a physiologist. It was, however, the testi-

mony of these same two experts regarding the testing of

coronary health which the district court in Trabucco relied

on in finding a BFOQ and which the district court dis-

counted in this case. See 515 F. Supp. 1287, 1299-1300.

Indeed, the Fourth Circuit noted this inconsistency in re-

jecting such an adjudicative, case-by-case approach where

Congress had clearly set out to establish generic standards.

See 731 F.2d at 215 n. 20.

16

C. Read in Pari Materia, the ADEA and 5 U.S.C.

§ 8335(b) Establish a Statutory Scheme Under

Which Age 55 Is a BFOQ for Law Enforcement

Officers and Firefighters.

Where two or more statutes deal with the same subject,

they are of course to be read in pari materia. Erlenbaugh v.

United States, 409 U.S. 239, 243 (1972). This rule applies

with even greater strength when the two statutes at issue

are enacted by the same legislative body at the same time.

Id. at 244. In the same year Congress extended the ADEA

to the federal, state and local governments, it expressly

found and directed that law enforcement and firefighting

are occupations that need to be staffed by relatively young

persons.

The two recent statutes are easily harmonized. The

ADEA permits consideration of age only insofar as it is a

BFOQ reasonably necessary for the task that is to be per-

formed. Under 5 U.S.C. § 8335(b), Congress has estab-

lished that age is a reasonably necessary BFOQ for police

and firefighters. By doing so, Congress established a federal

standard to which state and local governments could at

least refer in their attempts to comply with the ADEA.

Such a construction avoids statutory conflict and advances

congressional objectives. *

* Despite petitioner’s contrary assertion (Johnson Br., p. 17),

the Court has not previously addressed this issue. EEOC v. Wyoming,

460 U.S. at 226, concerned only whether extending the ADEA to

the states was in violation of Tenth Amendment protections. This

Court was not asked to decide whether 5 U.S.C. § 8335(b) establishes

a BFOQ for state or local law enforcement officers. Wyoming's brief

(pp. 12-14) reveals only a request that it be allowed to establish a

mandatory retirement age limit as Congress did in enacting § 8335(b).

To be sure, in his dissent Chief Justice Burger assumed that 5 U.S.C.

§ 8335(b) is an exception to the ADEA limited to federal employees.

This assumption, however, was made without the benefit of any

significant discussion. No contrary position was argued.

17

CONCLUSION

For the foregoing reasons, this Court should affirm the

judgment of the United States Court of Appeals for the

Fourth Circuit.

Dated: New York, New York

March 29, 1985

Respectfully submitted,

ROBERT ABRAMS

Attorney General of the

State of New York

Amicus Curiae

Suite 45-08

Two World Trade Center

New York, New York 10047

(212) 488-4631

ROBERT HERMANN

Solicitor General

Counsel of Record

HARVEY M. BERMAN

Assistant Attorney General

Of Counsel