Opposition Brief — Pennsylvania v. Equal Employment Opportunity Commission

OCTOBER TERM, 1987

(COMMONWEALTH OF PENNSYLVANIA, ET AL., PETITIONERS

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND

LIEUTENANT OTTO J, BINKER

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION

CHARLES FRIED

Solicitor General _

Department of Justice

Washington, D.C. 20530

(202) 633-2217

CHARLES A. SHANOR

General Counsel .

Equal Employment Opportunity

_ Commission

Washington, D.C. 20507

Ry

QUESTION PRESENTED

Whether petitioners established that a mandatory retire-

ment age of sixty for state police officers is “a bona fide

occupational qualification reasonably necessary to the

normal operation” of the Pennsylvania State Police,

within the meaning of Section 4(f)(1) of the Age Discrimi-

nation in Employment Act of 1967, 29 U.S.C. (& Supp.

IIT) 623(f)(1).

(I)

TABLE OF CONTENTS

Page

RES |

ee ce a bse be ek usb we saaaenee¥neens ]

ea ie Win a a0 <6 ¥ 4 64-6.0-00 5 A ee 2

GIS OSE 4

EE La ar 10

TABLE OF AUTHORITIES

Cases:

EEOC vy. City of East Providence, 798 F.2d 524 (Ast Cir.

eb beware aes sede esses 6, 7,8

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

(8th Cir. 1984), cert. denied, 474 U.S. 828 (1985) ...... 7

EEOC v. University of Texas Health Science Center, 710

I, cca acbscvsacuncssess 7

Johnson v. Mayor of Baltimore, 472 U.S. 353 (1985) ....2, 3, 6

Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985)... 2, 3,

»

Statutes:

Age Discrimination in Employment Act of 1967, 29

U.S.C. (& Supp. II1) 621 ef seq.:

RE Gg 2

§ 4(f)(1), 29 U.S.C. (& Supp. Hl) 623(H(1) ... 2... 2

Age Discrimination in Employment Amendments of 1986,

Pub. L. No. 99-592, 100 Stat. 3342:

§ 3(a)(i), 100 Stat. 3342 (to be codified at 29 U.S.C.

eee eed aad c s

§ 3(b), 100 Stat. 3342 (to be codified at 29 U.S.C.

Peer Tere reeree 8

ES re y)

ee y

ee ike aac ese wees y

§ 7(b), 100 Stat. 3345 (to be codified at 29 U.S.C.

IE I isis yc cnc ccssnessessucsess

Pa. Stat. Ann. tit. 71, § 65(d) (Purdon Supp. 1987) ......

tN «(COO

(111)

In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-958

COMMONWEALTH OF PENNSYLVANIA, ET AL., PETITIONERS

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND

LIEUTENANT OTTO J. BINKER

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-10a)

is reported at 829 F.2d 392. The opinion of the district

court (Pet. App. 36a) is reported at 645 F. Supp. 1545.

JURISDICTION

The judgment of the court of appeals (Pet. App. 37a)

was entered on September 21, 1987. A petition for rehear-

ing was denied on October 19, 1987 (Pet. App. 39a). The

petition for a writ of certiorari was filed on December 11,

1987. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

eel

2

STATEMENT

1. Under Pennsylvania law, all state police troopers

with 20 years of service must retire at age sixty (Pa. Stat.

Ann. tit. 71, § 65(d) (Purdon Supp. 1987)). In 1983, the

Equal Employment Opportunity Commission (EEOC), on

behalf of all persons adversely affected by that mandatory

retirement law, and Lieutenant Otto J. Binker of the

Pennsylvania State Police (PSP), on his own behalf,

brought separate actions (subsequently consolidated) in

the United States District Court for the Middle District of

Pennsylvania challenging the validity of the law under the

Age Discrimination in Employment Act of 1967 (ADEA),

29 U.S.C. (& Supp. III) 621 ef seg. Section 4(a)(1) of the

ADEA makes it unlawful for an employer “to discharge

any individual * * * because of such individual’s age” (29

U.S.C. 623(a)(1)).

Following a trial, the district court denied relief on the

ground that the Commonwealth’s mandatory retirement

age for state police officers does not violate the ADEA.

See 596 F. Supp. 1333 (M.D. Pa. 1984). The court agreed

with petitioners that the mandatory retirement age falls

outside the scope of the ADEA’s ban on age discrimina-

tion because it is a “bona fide occupational qualification”

(BFOQ), within the meaning of Section 4(f)(1) of the

ADEA (29 U.S.C. (& Supp. III) 623(f)(1)), which exempts

“reasonably necessary” BFOQs from that ban. See 596 F.

Supp. at 1336-1348.

2. The court of appeals vacated the district court’s

decision and remanded for reconsideration in light of this

Court’s intervening decisions in Johnson v. Mayor of

Baltimore, 472 U.S. 353 (1985) and Western Air Lines,

Inc. v. Criswell, 472 U.S. 400 (1985). See 768 F.2d 514 (3d

Cir. 1985). In Johnson and Criswell, this Court endorsed a

two-part inquiry that requires an employer relying on a

3

BFOQ defense to make a “particularized, factual

showing” that, first, “the job qualifications * * * [are]

reasonably necessary to the essence of his business” and,

second, “the employer is compelled to rely on age as a

proxy for the * * * job qualifications validated in the first

inquiry” (see 472 U.S. at 362; 472 U.S. at 413, 414 (cita-

tion and emphasis omitted)). The court of appeals con-

cluded that remand was warranted because the district

court had apparently assumed that good health and

physical strength are job qualifications reasonably

necessary to the essence of the PSP’s operations and had

not made the required particularlized factual findings (see

Pet. App. 4a).

3. Onremand, the district court again concluded (Pet.

App. 1 1la-36a) that petitioners had not violated the ADEA

because the Commonwealth’s mandatory retirement age

for state police officers is a BFOQ. The court found (id. at

15a) that “[g]ood health and physical fitness, strength, and

dexterity are job qualifications reasonably necessary to the

essence of the State Police business” (see id. at 15a-21a,

27a-31a). The court also found (id. at 21a) that petitioners

“are compelled to rely on the mandatory retirement of of-

ficers at age 60 as a proxy for individual testing of older

officers for the presence of the good health, physical

fitness, strength and dexterity required to perform the job

of a state police officer” (see id. at 21a-27a, 3la-35a).

4. The court of appeals reversed (Pet. App. la-10a).

The court concluded that the district court’s finding that

good health, physical fitness, strength, and dexterity are

job qualifications reasonably necessary to the essence of

the operation of the state police is clearly erroneous. Ac-

cording to the court of appeals (id. at 8a), “[t}he factual

findings supporting the district court’s treatment of the

first prong of the BFOQ defense do not include the deter-

mination that the department in fact presently requires all

——————

4

state troopers to maintain a minimum level of health and

fitness. Nor would the record support such a finding.”

“Before a characteristic can be a reasonably necessary

BFOQ,” the court held (id. at 9a), “it must be a trait that

the employer at least attempts to require of employees of

all ages.” Hence, the court concluded (id. at 8a), “[ujntil

minimum standards are developed, implemented and en-

forced, the PSP cannot justify its mandatory retirement

law by relying on good health and physical conditioning as

BFOQs reasonably necessary to PSP business.” The court

stressed (id. at 9a) that the record in this case suggests that

most of the younger officers did not possess the purported

BFOQs.

ARGUMENT

The decision of the court of appeals, holding that the

district court clearly erred in finding that the first prong of

the Crisweill test had been met, is both correct and highly

fact-specific. Although it is inconsistent with the decision

of another circuit, the continuing importance of the con-

flict has been greatly diminished by recent amendments to

the ADEA, which prospectively exempt from Section

4(a)(1)’s ban on age discrimination state and local manda-

tory retirement laws that apply to law enforcement of-

ficials. Accordingly, the petition should be denied.

1. As the court of appeals explained (Pet. App. 9a), a

trait can justify a mandatory retirement age only if it is a

trait that an “employer at least attempts to require of

employees of all ages.” The court of appeals noted (id. at

7a), however, that the Commonwealth has “admitted that

it presently has no mandatory minimum fitness

standards.” The absence of any standards relating to

fitness, health, strength or dexterity — whether enforced or

not — was supported in the record not only by petitioners’

admission, but by the failure of the district court to in-

dicate what minimum level of particular traits is necessary

to the performance of state trooper duties (ibid.), and by

suggestions in the record that most of the younger officers

do not possess the purported BFOQs (id. at 9a).' In addi-

tion to the fact that no such standards or requirements

were even in existence, the court commented on the

absence of any implementation or enforcement program,

especially with regard to fitness (id. at 8a-9a). The court of

appeals further made clear its view that the ADEA “does

not require perfect monitoring and maintenance of a par-

ticular qualification at all age levels” (id. at 6a). Contrary

to petitioners’ claim (Pet. 12), the court cannot fairly be

said to have held that the first prong of Criswel/ is satisfied

only where minimum standards of health and fitness are

developed, implemented, and enforced, through “regular

testing,” and “sanctions and eventual dismissal of non-

qualifying employees.”

Hence, it was the total absence in the record of either a

“particularized factual showing” or any evidence to sup-

port a finding that petitioners had in effect any require-

' Contrary to petitioners’ suggestion (Pet. 11 n.7), the evidence in

the record does not support, and the district court did not specifically

find, either that “younger employees * * * are capable of” perform-

ing the tasks from which the Commonwealth deduced the type of

fitness skills required for a state police officer, or that petitioners

assign to “limited duty status” all officers with “medical deficiencies”

that render them unable to perform the duties of a state trooper. With

regard to the latter, the district court found (Pet. App. 20a-21a) only

that there was some “limited monitoring of the health and fitness” of

state police officers and a “limited duty status program” for “tem-

porarily disabled” officers. As the court of appeals found (id. at 8a

(emphasis in original)), “{t}he district court’s findings primarily con-

cern the health of [state police] officers, not their fitness levels” and

the district court made no finding that the troopers must maintain a

minimum level of health and fitness.

6

ments relating to the health and fitness of employees, that

properly prompted the court of appeals to reject peti-

tioners’ BFOQ defense. See Johnson v. Mayor of

Baltimore, 472 U.S. at 362. The decision of the court of

appeals is therefore both fact-specific and represents a

reasonable construction of this Court’s decisions. ?

2. While there is some basis—because of the fact-

specific character of the court of appeals’ holding—on

-which to contend that no square circuit conflict exists,

substantial inconsistency exists between the decision of the

court below and the decision of the First Circuit in EEOC

v. City of East Providence, 798 F.2d 524 (1986).3 The First

Circuit’s decision focuses primarily on the dispensability

of fitness testing (798 F.2d at 530) to the legality of a man-

datory retirement program, and in that respect differs in

? Criswell involved a mandatory retirement age used as a proxy for

the increased tendency to “possess traits of a physiological, psycho-

logical or other nature which preclude safe and efficient job perfor-

mance” by a flight engineer (see 472 U.S. at 407-408). In affirming a

judgment for the plaintiffs, the Court did not fault the jury instruc-

tions for failing to require that the employer prove the existence of

basic standards requiring that all flight engineers be free of such traits.

The jury instructions may have lacked such a requirement in part

because the employer sought to justify its practice on the ground that

there was no effective way to test for the risk of sudden heart attack or

other events imperiling passenger safety, let alone to articulate a basic

minimum standard (see 472 U.S. at 406). In this respect, that case dif-

fers from this one, where at least some aspects of the qualities of

fitness, strength, and dexterity can be stated in terms of minimum re-

quirements. In any event, this Court’s omission in Criswel/ to fault the

lower courts for failing to require the existence, where feasible, of

generally applicable minimum standards, does not necessarily indicate

approval of that practice, since the judgment was against the

employer.

> The court of appeals was explicit in “reject{ing] the analysis in

EEOC v. City of East Providence” (Pet. App. 9a). The First Circuit in

7

emphasis from the instant case. However, it also appears

to have involved a program, like that involved here, where

no identifiable fitness and health standards had been for-

mulated. That the program was upheld in City of East

Providence notwithstanding that fact places the decision

in conflict with the instant case.

City of East Providence, on the other hand, noted (798 F.2d at 530)

that the “city’s acceptance of low physical standards, coupled with

other facts, might persuade a district court that physical fitness was

not deemed a necessary job qualification by that police force.”

The decisions of the Third Circuit in this case and of the Eighth Cir-

cuit in EEOC v. Missouri State Highway Patrol, 748 F.2d 447 (1984),

cert. denied, 474 U.S. 828 (1985), are distinguishable in a more fun-

damental respect. The Eighth Circuit’s discussion of the legal

relevance of physical examinations and fitness programs, which it dis-

counts, is confined to the second prong of the BFOQ analysis (see 748

F.2d at 453-454). The Third Circuit’s ruling in this case, however, is

concerned exclusively with the first prong. The Eighth Circuit’s first-

prong analysis, moreover, subjected the job qualifications at issue

only to the most cursory scrutiny (see id. at 451) and, for that reason,

would seem plainly contrary to this Court’s subsequent decision in

Criswell, which concluded that a “rational basis” scrutiny was not ade-

quate under either prong (see 472 U.S. at 418-420 & n.30, 421-423).

Contrary to petitioners’ claim (Pet. 14), the decision of the court of

appeals does not conflict with the Fifth Circuit’s decision in EEOC v.

University of Texas Health Science Center, 710 F.2d 1091 (1983). The

court of appeals in this case has not disputed the Fifth Circuit’s ruling

in University of Texas that “the ability of individuals to perform effec-

tively can * * * be balanced against the need to fill vacancies” (710

F.2d at 1096). In that case, however, unlike this case, the question

presented was whether the state employer could relax its fitness re-

quirements by raising its mandatory retirement age ceiling without

defeating its claim that fitness requirements were necessary. This case

presents the distinct question, not raised in University of Texas,

whether an employer has met the threshold requirement of establish-

ing that fitness and other standards even exist for employees other

than those of retirement age.

8

3. Any dispute between the court of appeals in this

case and the First Circuit is of little continuing import-

ance, however. In 1986, after City of East Providence had

been decided, Congress amended the ADEA to allow, in

effect, a state and local government to apply prospectively

the very type of mandatory retirement law at issue in this

case pending the results of a congressionally-mandated

study. Section 3(a)(i) of the Age Discrimination in

Employment Amendments of 1986, Pub. L. No. 99-592,

100 Stat. 3342, provides that it is not unlawful for state or

local government “to discharge any individual because of

such individual’s age if such action is taken—(1) with

respect to the employment of an individual as a firefighter

or as a law enforcement officer and the individual has at-

tained the age of hiring or retirement in effect under ap-

plicable State or local law on March 3, 1983, and —(2) pur-

suant to a bona fide * * * retirement plan that is not a

subterfuge to evade the purposes of [the ADEA]” (to be

codified at 29 U.S.C. (Supp. IV) 623(i)).

This amendment, which became effective on January 1,

1987, and remains in effect through 1993,* does not apply

to actions, such as this one, which were brought under the

ADEA before its effective date (see Pub. L. No. 99-592,

§ 7(b), 100 Stat. 3345 (to be codified at 29 U.S.C. (Supp.

IV) 621 note)). In confining the continuing significance of

the question presented in this case to those few suits for

retrospective relief that were brought against state and

local governments before January 1, 1987, the amendment

renders the circuit conflict a matter of little continuing im-

portance. >

* The amendment will cease to be effective on December 31, 1993,

unless reenacted. See Pub. L. No. 99-592, § 3(b), 100 Stat. 3342 (to be

codified at 29 U.S.C. (Supp. IV) 623 & note)).

’ The 1986 amendment applies with regard to state and local man-

datory retirement laws pertaining to firefighters and law enforcement

So Ses Sa

9

The 1986 amendments also require that the EEOC and

Secretary of Labor study whether physical and mental

tests can validly measure the ability of law enforcement of-

ficers and firefighters to perform their jobs, and to report

the results of that study, along with recommendations

regarding specific standards that such tests should satisfy,

to Congress within four years. See Pub. L. No. 99-592,

§ 5(a) and (b), 100 Stat. 3343. The EEOC is instructed to

propose guidelines within five years “for the administra-

tion and use of physical and mental fitness tests to

measure the ability and competency of police officers and

firefighters to perform the requirements of their jobs”

(§ 5(c), 100 Stat. 3343). Congress, therefore, has itself

determined that, if valid, tests of physical and mental

fitness should be used and administered in the law enforce-

ment area when the current exemption from the age

discrimination ban is lifted.

Notwithstanding the conflict in the courts of appeals,

therefore, the decision below does not warrant further

review.

officers, but not to private employees of similar occupations, as to

whom cases raising comparable BFOQ issues are rare.

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

CHARLES A. SHANOR

General Counsel

Equal Employment Opportunity

Commission

Washington, D.C. 20507

FEBRUARY 1988

.. US. GOVERNMENT PRINTING OFFICE: 1988— 202-037/60286