Petition for Writ of Certiorari — Ellis v. United Airlines, Inc.

Supreme Cain

15 | '

VE &

051649 0 1996

ae ‘

In The

Supreme Court of the United States

October Term, 1995

e-— —

CRIST ELLIS AND NORMA WONG-LARKIN,

Petitioners,

UNITED AIRLINES, INC.

Respondent

-—— @

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

- * —

PETITION FOR A WRIT OF CERTIORARI

—— ¢--——— —

JOHN Mossy

730 17th Street, Suite 750

Denver, Colorado 80202

(303) 623-1355

Eusa Moran

8451 East Oregon Place

Denver, Colorado 80231

(303) 745-6560

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 442-2831

QUESTIONS PRESENTED FOR REVIEW

1. Certiorari should be granted to clarify the split in

the Circuits of whether the disparate impact proof theory

available to other victims of discrimination is available to

a plaintiff in an Age Discrimination in Employment Act

(“ADEA”) case.

2. Certiorari should be granted to clarify the burden

of proof in a case under the Airline Deregulation Act

where an employer uses criteria which defeats the pur-

pose of the Act and excludes older flight attendants.

il

PARTIES TO THE PROCEEDING

Petitioners, Crist Ellis and Norma Wong-Larkin, are

residents of the State of Colorado. They were the Plain-

tiffs in the lower court proceedings of this case and were

the Appellants before the United States Court of Appeals

for the Tenth Circuit.

Respondent, United Air Lines, Inc., is a corporation,

existing by the virtue of the laws of the State of Delaware.

Respondent does business within the State of Colorado

and was a Defendant to the action in the lower court

proceedings. Respondent was also an Appellee before the

United States Court of Appeals for the Tenth Circuit. Its

parent companies, subsidiaries (except wholly owned

subsidiaries) and affiliates consist of UAL Corporation,

Mileage Plus, Inc., U-C Corp., Air Wis Services, Inc.,

Covia Corporation, Cypher Corporation, E & T Trading

Corporation, United Airlines Credit Corporation, United

Airlines Galileo Holding Company, United Aviation Fuels

Corporation, United Cogen, Inc., United Worldwide Cor-

poration, and United Vacations, Inc. Covia Corporation

owns 50% equity interest in Covia Partnership, a Dela-

ware general partnership. Covia Corporation also owns

25.6% interest in the Galileo Company Limited, a United

Kingdom company.

There are no other parties to this action.

iil

TABLE OF CONTENTS

Page

Questions Presented for Review .......---.+++++++> i

Parties to the Proceeding ......... 6.6.55 +e5+eeeeees ii

Ne ncn cenceseonoenecesoasenes iii

Tlehe of Assthorities .. 0... ccc secs ccc ceeesecseecees Vv

Opinions Below ..........5-.: sss sees e ener reese ees l

Statement of Jurisdiction. ............6 66-5 ee eee eee 1

Ghateaben PNVONVER . oo... ccc cece ec scec es eeenensens 2

Statement of the Case ........ 0. ccc cece cece sceees 2

Reasons for Granting the Writ ...........---++55+5> 4

I. This Court’s intervention is necessary to

resolve a split in the circuits concerning an

issue which has a significant impact on the

federal policies embodied in the Age Discrimi-

nation In Employment Act (“ADEA”) and has

been the subject of much recent litigation.... 4

A. The decision below conflicts with deci-

sions of other Circuit Courts of Appeals 4

B. The decision below presents important

issues of Federal law...............++5:: 7

C. The decision below has far reaching effect

and controls the course of ADEA litigation

for the Tenth Circuit impacting many par-

AI re Pere ee ee CTT eet Ok 7

Il. Certiorari should be granted to clarify the burden

of proof in a case under the Airline Deregulation

Act (“ADA”) where an employer uses criteria

which arguably defeats the purpose of the ADA

and excludes older flight attendants ........... 7

ee a eck eae bed e ce eteeen 10

iv

TABLE OF CONTENTS - Continued

Appendix

Opinion of the United States Court of Appeals for

the Tenth Circuit in Ellis and Wong-Larkin v.

United Airlines, Inc., 73 F.3d 999 (10th Cir. 1996) ...

Memorandum Opinion and Order of the United

States District Court For the District of Colo-

rado in Ellis and Wong-Larkin v. United Air-

lines, Inc., Case No. 90 S 1085 (D.Colo. 1994)....

Order denying Petition for Rehearing by the

United States Court of Appeals for the Tenth

Circuit in Ellis and Wong-Larkin v. United Air-

lines, Inc., No. 94-1351 (10th Cir. 1996) ........

Judgment of the United States District Court For

the District of Colorado in Ellis and Wong-

Larkin v. United Airlines, Inc., Case No. 90 S

2008 GE Goke:: BODO Osis SS oe 8i acid 685s

Statutes, Regulations, and Legislative Material. ...

Page

. la

33a

LL ECE

Vv

TABLE OF AUTHORITIES

Page

Cases

Abbott v. Federal Forge, 912 F.2d 867 (6th Cir.

SEED ssc bbw h.cdndaes beNedbebin pheneeineteheas Faseees 6

Bowdry et. al. v. United Airlines, Inc., 58 F.3d 1483

eo Sa el.) rrrrerr igri re stot Cre tre 8

Crocker v. Piedmont Aviation, Inc., 49 F.3d 735

OS AIA ROMs van ends vs rncdvvnunedgsn aabueise cass 8

DiBiase v. Smithkline Beecham Corp., 48 F.3d 719

(Sud Cis. 1995). Gin fo cee ves ev etca wees sasaen ests 5, 10

EEOC v. Borden’s Inc., 724 F.2d 390 (9th Cir. 1984) ..... 6

_ EEOC v. Flasher Co., Inc., 986 F.3d 1312 (10th Cir.

Ls Onn ee Ny er eee wer ee ee ore ott re ere ee 9

EEOC v. Francis W. Parker School, 41 F.3d 1073

C7hy Che. RIED aa sik. vin's oc deg i Mien sins Cia sq aos He 6

EEOC v. Local 350, Plumbers & Pipefitters, 998

F.2d 641 (9th Cir. 1992).......... cece cece eee eeeees 6

Geller v. Markham, 635 F.2d 1027 (2d Cir. 1980)

cert. denied, 451 U.S. 945 (1981).............--5:- 6

Hazen Paper Co. v. Biggins, 113 S. Ct. 1701 (1993) ..... 4

Houghton v. Sipco, Inc., 38 F.3d 953 (8th Cir. 1994) ..... 6

Leftwich v. Harris-Stowe State College, 702 F.2d

676 (8th Cir. 1983). .......... cece cece ence eee eeeees 6

Lyon v. Ohio Educ. Assn. & Professional Staff

Union, 53 F.3d 135 (6th Cir. 1995) ........---+-- 6, 10

STATUTES

The Age Discrimination in Employment Act

(ADEA) 29 U.S.C. Section 621-34........-..+-- passim

The Airline Deregulation Act of 1978, (ADA) Pub.

L. No. 95-504, 92 Stat. 1705, 49 U.S.C. Section

42101-03 (formerly codified at 49 U.S.C. Section

1552 (1988)) ........ cece eee e cece cece eee eeeee passim

PETITION FOR A WRIT OF CERTIORARI

Crist Ellis and Norma Wong-Larkin hereby petition

this Court for issuance of a Writ of Certiorari to review

the decision of the United States Court of Appeals for the

Tenth Circuit entered in this proceeding on January 4,

1996.

—_—_____—_—¢

OPINIONS BELOW

On January 4, 1996, the United States Court of

Appeals for the Tenth Circuit issued its opinion, affirming

the decision of the District Court. The Opinion is found at

73 F.3d 999 (10th Cir. 1996) and is reprinted in the Appen-

dix (“APP”) at page 1A!. The opinion of the district court

is unreported, and is reprinted in the Appendix at page

33A.

STATEMENT OF JURISDICTION

The Opinion and Judgment of the Court of Appeals

was entered on January 4, 1996. A timely petition for

rehearing and suggestion for rehearing en banc was

denied on February 9, 1996. Petitioners invoke the cer-

tiorari jurisdiction conferred on this Court by 28 U.S.C.

§ 1254(1).

' Citations to material printed in annexed appendix appear

a ae

STATUTES INVOLVED

1. The Age Discrimination in Employment Act

(“ADEA”), codified as amended at 29 U.S.C. §§ 621-34.

2. The Airline Deregulation Act (“ADA”) codified

as amended at 49 U.S.C. §§ 42101-03 (formerly codified at

49 U.S.C. §§ 1552) (1988).

STATEMENT OF THE CASE

Both female Petitioners were formerly employed as

flight attendants by Frontier Airlines, Inc., (“Frontier”)

with seniority dates dating back to 1970 (Wong-Larkin)

and 1972 (Ellis). Petitioners lost their jobs as a result of

Frontier’s bankruptcy on August 26, 1986. In 1986, both

Petitioners applied for employment as flight attendants

with United Airlines. Petitioners, Crist Ellis and Norma

Wong-Larkin, asserted claims under Age Discrimination

in Employment Act (“ADEA”) and the Airline Deregula-

tion Act, (ADA) 49 U.S.C. Section 1552.

In the proceeding before the district court, Petitioners

attempted to prove age discrimination under both a dis-

parate treatment theory as well as a disparate impact

theory of discrimination.

With respect to Petitioners’ claims under the Airlines

Deregulation Act (“ADA”), when Frontier Airlines ceased

operations due to bankruptcy, Petitioners became “pro-

tected employees” entitled to exercise first hire rights

under the Airline Deregulation Act, 15 U.S.C. App. § 1551

(“ADA”). Petitioners asserted that if a carrier uses job

qualifications which have the effect of excluding “pro-

tected employees,” the carrier bears the burden of pro-

ving that the criteria is job-related.

United had a “dual” weight policy. It required older

applicants to weigh less than similarly situated incum-

bent flight attendants. Therefore when applying for a job

a 40 year old flight attendant must weigh the same as a 20

year old. Yet, the day after hire the 40 year old is given an

“age 2:lowance” and can weigh more.

Thus, United Airlines has acknowledged that older

flight attendants weigh more and can still perform the job

at the higher weight. Yet, in order to be hired, she must

weigh what a 20 year old weighs. This artificially makes a

younger pool since 40 year old flight attendant applicants

will be excluded from consideration if she weighs an

amount covered by the United Airlines’ “age allowance.”

Both Petitioners demonstrated their weights were

within the weight amounts for flight attendants already

working at United who were their age, yet they were

excluded because they didn’t weigh what a 20 year old

flight attendant was required to weigh to be hired.

The district court granted summary judgment on all

claims. The Tenth Circuit, in its Opinion on January 4,

1995, affirmed the district court and ruled that “ADEA

claims cannot be based on a disparate impact theory of

discrimination.”

The Tenth Circuit further ruled, with respect to the

ADA claim, that:

af

. we do not believe the ADA permits us to

second-guess the business judgment of

employers any more than does the ADEA. An

air carrier may require -an applicant to meet

“any prerequisites of qualifications” except ini-

tial hiring age, 29 C.F.R. §§ 220.20 (a) & 220.21

(a)(1) (emphasis added), and other criteria not

here involved, and, as explained above, Plain-

tiffs have not shown that United's use of weight

standards was pretextual.”

*

REASONS FOR GRANTING WRIT

This case presents questions of fundamental importance

under federal law affecting the entire framework for how

all ADEA cases must be tried. This ruling forecloses an

avenue of proof to ADEA plaintiffs in pursuing their

claims. Congress did not so limit ADEA plaintiffs, yet,

the Tenth Circuit has, contrary to the holdings in other

circuits.

I. This Court’s intervention is necessary to resolve a

split in the circuits concerning an issue which has a

significant impact on the federal policies embodied

in the Age Discrimination In Employment Act

(“ADEA”) and has been the subject of much recent

litigation.

A. The decision below conflicts with decisions of

other Circuit Courts of Appeals.

The question involving whether a disparate impact

claim can be brought under the ADEA has never been

decided by the United States Supreme Court. See, Hazen

Paper Co. v. Biggins, 113 S. Ct. 1701, 1706 (1993). The issue

of whether the disparate impact theory is available as a

——— Eee

method of proof to victims of age discrimination is of

major legal significance. Most importantly, the Circuit

Courts are split and awaiting a resolution from this Court

of this issue.

The Tenth Circuit’s opinion, at page 24, states,

. of those courts that have considered the issue since

Hazen, there is a clear trend toward concluding that the

ADEA does not support a disparate impact claim”. The

Tenth Circuit cites DiBiase v. Smithkline Beecham Corp., 48

F. 3d 719, 732-34 (3rd Cir. 1995). The Tenth Circuit speci-

fically states that DiBiase holds, “that there is no disparate

impact claim under the ADEA”. This is a clearly erro-

neous interpretation since the DiBiase court did not so

rule. The DiBiase court issued separate opinions on this

issue. Two of the three judges found that the case didn’t

lend itself to a disparate impact analysis.

In the Dibiase case, Judge Greenberg then wrote that,

. and in fact, we recently recognized that the

existence of disparate impact theory under the

ADEA is an open question... ” Id. 732.

* * >

“But I need not go so far as to say that dispa-

rate impact theory is never available under the

ADEA. Rather, resolution of that issue must

await another day. | write this section to high-

light my doubts and to say that, at any rate,

disparate impact theory should not be applied

as a matter of course. Here, of course, we only

need hold that even if in some situations dispa-

rate impact liability may be established under

the ADEA, this case does not present one of

them.” Id. at 734. (Emphasis added).

The Tenth Circuit also indicated that Lyon v. Ohio

Educ. Assn. & Professional Staff Union, 53 F. 3d 135, 138-39

(6th Cir. 1995), held the “same” as D:Biase. This is clearly

erroneous. Consider the following language from Lyon:

“Plaintiffs have conceded that “[t}]his is not a

disparate impact case since Option B, as admin-

istered by Defendants-Appellants [sic] is not age

neutral,” and we shall take them at their word.”

Id. 137-138.

In fact, the Lyon court, in footnote 5, states the exact

opposite of what the Tenth Circuit asserts. Footnote 5

states:

“ _ _ However, this circuit has stated that a

disparate-impact theory of age discrimination

may be possible. See, Abbott v. Federal Forge, 912

F.2d 867 (6th Cir. 1990).”

It is apparent that the Tenth Circuit has misin-

terpreted the provisions of the ADEA. It is equally appar-

ent that the Circuit Courts are split on this issue and the

point is at hand where this Court must unify the Circuit

Courts on this issue. The Tenth Circuit in this case and

the Seventh Circuit’s decision in EEOC v. Francis W. Par-

ker School, 41 F. 3d 1073 (7th Cir. 1994) are clearly in

conflict with decisions from the Second, Eighth, and

Ninth Circuits. See, Geller v. Markham, 635 F.2d 1027,

1032-1034 (2d Cir. 1980, cert. denied, 451 U.S. 945 (1981);

Leftwich v. Harris-Stowe State College, 702 F.2d 686, 690-92

(8th Cir. 1983); Houghton v. Sipco, Inc., 38 F. 3d 953,

958-959 (8th Cir. 1994); EEOC v. Borden's Inc., 724 F. 2d

1390, 1394-95 (9th Cir. 1984) and EEOC v. Local 350,

Plumbers & Pipefitters, 998 F.2d 641, 646, 648 n.2 (9th Cir.

1992).

(©, «: pthed edi

B. The decision below presents important issues

of Federal law

These issues are important issues of federal law. They

exemplify the problem of a split in the Circuits when, in

some Circuits an entire theory of proof is availiable to an

ADEA plaintiff whereas, in the Tenth Circuit it ts not

This is a statute designed and created to protect older

workers from invideous discrimination. Yet, in the Tenth

Circuit, these rights have been dramatically and dras-

tically curtailed.

C. The decision below has far reaching effect and

controls the course of ADEA litigation for the

Tenth Circuit impacting many parties.

Age discrimination for all parties in the Tenth Circuit

has been impacted by this ruling. The entire framework

upon which an age claim can be brought is affected. This

case impacts not just these two petitioners but every

single plaintiff and defendant in every age case that will

ever be brought in the Tenth Circuit.

Il. CERTIORARI SHOULD BE GRANTED TO CLAR-

IFY THE BURDEN OF PROOF IN A CASE UNDER

THE AIPLINE DEREGULATION ACT (“ADA”)

WHERE AN EMPLOYER USES CRITERIA WHICH

ARGUABLY DEFEATS THE PURPOSE OF THE

ADA AND EXCLUDES OLDER FLIGHT ATTEN-

DANTS.

“When Congress deregulated the airline industry in

the late 1970s, it sought to soften the blow to longtime

airline employees who might lose their jobs in the

expected industry shake-up. It therefore included in the

deregulatory legislation an Employee Protection Program

(“EPP”) for experienced airline workers who lost jobs or

income as the result of a covered carrier’s bankruptcy or

downsizing . . . Among other things, the EPP gives a

furloughed or terminated employee with four years’

experience as of October 1978 a ‘first right of hire’,

regardless of age, in his occupational specialty, by any

other air carrier hiring additional employees . . . ”. See,

Crocker v. Piedmont Aviation Inc., 49 F.3d 735, 737 (C.A.

D.C. 1995). “A first-hire action under the Airline Dereg-

ulation Act ‘is not, at its core, an anti-discrimination

suit’.” See, Bowdry et al v. United Airlines, Inc., 58 F. 3d

1483, 1489 (10th Cir. 1995) (Citing Crocker v. Piedmont

Aviation, Inc., supra).

With respect to the ADA claim, the Tenth Circuit

ruled, “As a general matter, weight requirements are

permissible job-related criteria for flight attendants.” This

is not in dispute. An employer can use any non-discrimi-

natory criteria it so chooses. However, that criteria cannot

defeat the purpose of the ADA. Based upon the Depart-

ment of Labor’s interpretation of § 220.21(a) there are

questions of fact for the jury concerning whether United’s

dual weight policy is directly job related and whether the

non-job related qualification “defeats the purpose of the

Act.” Here, since older, heavier flight attendants are on

the job and performing the job, United simply cannot

justify refusing to hire older people of the exact same

weight, who could otherwise do the job.

The Tenth Circuit stated, “we do not believe that

United’s use of weight standards defeated the purpose of

the ADA...” At page 28. This is a question of fact to be

decided by the jury which is sufficient to avoid summary

judgment.

The Tenth Circuit reasoned, at page 27, that:

“Plaintiffs have not shown that United’s use of

weight standards was pretexual.”

The Tenth Circuit’s reasoning is erroneous. The ADA

was enacted to provide a first right of hire for “protected

employees” without the hindrance of job requirements

which defeat the purpose of the Act.

In a Title VII case, a plaintiff must show not only that

a defendant’s articulated reason is a pretext, but must

show that it is a pretext for discrimination. See, EEOC v.

Flasher Co., Inc. 986 F. 3d 1312 (10th Cir. 1992). Petitioners

proved that individuals whose weight was identica! to

theirs were actually performing the job.

Under the ADA, it is the employer’s burden to show

that a job requirement which excludes protected

employees is job related. United has never argued that its

weight requirement was job related. United only argues

that it has a dual weight system as a result of the union

contract.

This Tenth Circuit’s reasoning that “[P]laintiffs have

also failed to introduce any evidence that the weight

standards acted generally to frustrate the first hire rights

of designated employees by preventing them from get-

ting hired” (Opinion at page 27) makes no sense. Peti-

tioners produced evidence that United was aware that

both these individuals were protected employees. Peti-

tioners produced evidence that other flight attendants in

United’s workforce with identical height-weight ratios

10

were allowed to weigh what Petitioners weighed if they

were employed and were performing the job. Petitioners

produced evidence that United’s requirement that these

older women must meet the height-weight requirement

of 20 year olds, frustrated the purpose of the ADA. In

short, Petitioners produced evidence from which a rea-

sonable fact-finder could have concluded that under the

ADA United’s height-weight requirement “defeats the

purpose of the Act” and was designed to deny “protected

employees” their first right of hire.

The Tenth Circuit imposed an illusory burden upon

the Petitioners. They required that Petitioners prove that

a legitimate job qualification was pretextual under Title

VII for ADA liability to attach. In a Title VII discrimina-

tion case the pretext must be illegal discrimination. In an

ADA case the pretext must frustrate the purpose of the

ADA. In the case at bar, Petitioners clearly proved that

the height-weight requirement, legitimate or not, bore no

relationship to Petitioners’ ability to perform the job and

frustrated the purpose of the ADA.

+

CONCLUSION

The Tenth Circuit misread the holdings of both

DiBiase and Lyon. Contrary to this Tenth Circuit's ruling,

the 3rd Circuit and the 6th Circuit have not ruled that

“there is no disparate impact claim under the ADEA. This

is an issue of exceptional importance and should be given

consideration by the full Court based on the above stated

reasons. The Tenth Circuit has gutted the ADEA based

upon a misinterpretation of rulings from other circuits. It

11

has by that action universally denied rights to legitimate

victims under the ADEA.

With respect to the Airlines Deregulation Act, The

Tenth Circuit held that for “protected employees” to pre-

vail under the ADA the Petitioners must demonstrate

pretext. Petitioners believe this is incorrect.

Under the ADA, Petitioners need only show that the

requirements “frustrate the purpose of the Act”. The

weight requirement imposed upon the Petitioners was

purely cosmetic. There was absolutely no correlation to

the weight and the job since incumbent employees were

allowed to weigh exactly what Petitioners weighed and

those employees were performing the job. Here, these

requirements which disappear the day after hire are

clearly requirements that “frustrate the purpose of the

Act”. There were clearly factual issues in dispute. Sum-

mary judgment should have been denied.

Respectfully submitted,

JoHN Mossy

730 17th Street, Suite 750

Denver, Colorado 80202

(303) 623-1355

EvisA MoraAN

8451 East Oregon Place

Denver, Colorado 80231

(303) 745-6560

Attorneys for Petitioners

Date: April 9, 1996

la

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CRIST ELLIS and NORMA

WONG-LARKIN,

Plaintiffs-Appellants,

No. 94-1351

V.

UNITED AIRLINES, INC., a

| Delaware corporation,

Defendant-Appellee.

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Amicus Curiae.

CRIST ELLIS and NORMA

WONG-LARKIN,

Plaintiffs-Appellants,

ea ee

No. 95-1034

V.

UNITED AIRLINES, INC., a

Delaware corporation,

ee eee eee

Defendant-Appellee.

} Appeals from the United States District Court

for the District of Colorado

(D.C. No. 90-S-1085)

(Filed Jan 4, 1996)

2a

John Mosby, Denver, Colorado (Elisa Moran, Denver, Col-

orado with him on the briefs) for Plaintiffs-Appellants.

Kris J. Kostolansky (Michael D. Nosler and Susan L.

Strebel with him on the briefs) of Rothgerber, Appel,

Powers & Johnson, Denver, Colorado for Defendant-

Appellee.

Paul D. Ramshaw (James R. Neely, Jr., Gwendolyn Young

Reams, and Vincent J. Blackwood with him on the brief)

for Amicus Curiae.

Before EBEL and MCKAY, Circuit Judges, and COOK,”

District Judge.

EBEL, Circuit Judge.

Plaintiffs Crist Ellis (“Ellis”) and Norma Wong-Larkin

(“Wong-Larkin”) filed this action against United Air

Lines, Inc. (“United”) after United refused to hire them as

flight attendants when they applied for positions follow-

ing the bankruptcy of their former employer Frontier

Airlines (“Frontier”). Plaintiffs contended that United’s

refusal to hire them violated (1) the Age Discrimination

in Employment Act (“ADEA”), codified as amended at 29

U.S.C. §§ 621-34; and (2) the Airline Deregulation Act

(“ADA”), codified as amended at 49 U.S.C. § 42101-03

(formerly codified at 49 U.S.C. App. § 1552). United

stated that it rejected Plaintiffs’ applications because

Plaintiffs failed to meet United’s weight requirements for

* The Honorable H. Dale Cook, Senior District Judge, United

States District Court for the Northern District of Oklahoma,

sitting by designation.

.

3a

new flight attendant hires. In response, Plaintiffs argued

that United’s explanation was a pretext for intentional

discrimination against them because of their age, in viola-

tion of the ADEA. Plaintiffs also argued that, even if

United did not intentionally discriminate against them

because of age, United’s age-neutral weight requirements

disparately impacted them because of their age, in con-

travention of the ADEA. Plaintiffs further claim that the

weight requirements, whether discriminatory or not, can-

not excuse United’s failure to grant Plaintiffs the prefer-

ential hiring treatment to which they were entitled under

the ADA as airline employees displaced by deregulation.

The district court granted summary judgment for

United on Plaintiffs’ ADEA and ADA claims, and then

denied Plaintiffs’ motion for the payment of certain

expenses associated with United’s deposition of plain-

tiffs’ expert witness. Plaintiffs appeal both rulings, and

we affirm. We reject Plaintiffs’ ADEA claim because

Plaintiffs have failed to submit evidence raising a genuine

dispute that United’s explanation for not hiring them is

pretextual, and because we hold that ADEA claims can-

not be based on a disparate impact theory of discrimina-

tion. Plaintiffs’ ADA claim fails because, once again,

Plaintiffs failed to produce evidence raising a genuine

dispute that United’s explanation for not hiring them is

pretextual. Finaily, we conclude that the district court did

not abuse its discretion in ruling that Plaintiffs are not

entitled to the payment of further expert witness fees

because their motion for such fees was untimely.

4a

I. BACKGROUND

Ellis and Wong-Larkin worked as flight attendants

for Frontier from 1972 and 1970 respectively until they

lost their jobs as a result of Frontier’s bankruptcy in

August 1986. Following Frontier’s demise, they applied

for flight attendant positions with United on several occa-

sions, but United refused to hire them because they both

allegedly failed to meet its weight standards for new

flight attendant hires.

United employs two different weight standards for

its flight attendants. One standard sets weight limits

which must initially be met by new job applicants and the

second standard establishes maximum weight limits that

cannot be exceeded by flight attendants after they are

hired. Both standards specify maximum weights accord-

ing to height. The standard applied to initial job appli-

cants disregards age entirely, while the weight standard

for employees makes allowances for weight gain accord-

ing to age. United argues that the standard for

employees, which allows for some weight gain with age,

was a product of its collective bargaining agreement with

the flight attendant union.

The following weight chart applied to Plaintiffs as

initial job applicants:

Height Maximum Weight

5'4" 132

5'4'/5" 133

5'4'/2" 134

5'6" 139

5'6'/3" 140

5'61/2" 141

5a

Had Plaintiffs been hired, they would then have had to

keep their weight below the following limits in order to

maintain their jobs as flight attendants:

Maximum

Weight

Age 34 & 55 &

Height younger 35-44 45-54 older

5'4" 134 137. +140 ~—=143

5'4-1/4" 135 138 141 144

5'4-1/2" 136 139 142 145

5'6" 141 144 147 150

5'6-1/4" 142 145 148 151

5'6-1/2" 143 146 +3149 152

As the charts reveal, the height/weight requirements for

all new job applicants are the same regardless of the

applicant’s age, while a nine-pound differential exists

between the maximum weights for the youngest and

oldest employed female flight attendants of a given

height. Thus, new job appli_ants could fail to satisfy the

age-neutral weight requirements used for hiring and yet

still be within the weight requirement for existing

employees of their same age.

Ellis first applied for a flight attendant position at

United in August 1986. Ellis is 5'4'/2" tall and was 40

years old when she first applied. Therefore, pursuant to

United’s initial hiring requirements, Ellis could weigh no

more than a maximum of 134 pounds. United rejected

Ellis’ application, stating that she failed to meet its

weight requirements and informing her that “[yjour

weight history over the past twelve months suggests you

would be unable to maintain your weight within our

6a

standards.” United, however, invited her to apply for

other positions that did not have a weight requirement.

Unfortunately, no records remain of Ellis’ actual weight at

that time; however, Ellis has introduced no evidence chal-

lenging or denying United's conclusion that she exceeded

its weight limits for flight attendant applicants.

Ellis applied a second time on February 4, 1987. She

listed her weight as 120 pounds and stated that the heav-

iest she weighed in the last twelve months was 122

pounds. Based on that application, as updated in Septem-

ber 1988, United interviewed Ellis on December 14, 1988.

At that time, United recorded Ellis’ weight as 139 pounds,

five pounds over the maximum allowable weight for new

job applicants.' United noted that she was overweight

and then sent Ellis a letter stating that it had hired more

qualified candidates. Ellis applied a final time in Septem-

ber 1990, and United again refused to hire her. The record

before us does not contain any information about Ellis’

weight at that time, but, again, Ellis introduced no evi-

dence that she met United’s weight requirements at that

time.

Wong-Larkin first applied for a flight attendant posi-

tion at United in September 1986 when she was 38. Some

dispute exists concerning Wong-Larkin’s height. Plaintiffs

maintain that she is 5'6'/2" tall, as stated on her resume,

and as listed in some of her applications described below.

United contends that she is 5'6", as it recorded after her

\ Plaintiffs note that United misrecorded Ellis’ height as

5'3'/.", Appellant App. at 78, but do not base any part of their

claim on that mistake.

7a

September 1986 application and as she stated in a deposi-

tion. At 5'6", Wong-Larkin could weigh no more than 139

pounds as an applicant for a flight attendant position. At

5'6'/2", she could weigh 141 pounds as an applicant for a

flight attendant position.

In any event, United interviewed Wong-Larkin fol-

lowing her September 1986 application. No record

remains of her weight at that time; however, Wong-

Larkin recalled that United recorded her height as 5'6°

and she agreed that was her height. She felt at the time

that she weighed about 142 pounds because that is what

she weighed at Frontier in January 1986. United asserted

that it did not hire her because of her weight, although

she contends that United never articulated a reason for

not hiring her until this litigation arose.

Wong-Larkin applied again on August 29, 1988, at

the age of 40, listing her height as 5'6'/2" and her weight

as 135 pounds on her application. At a subsequent inter-

view on January 14, 1989, she listed her height as 5'6'/2"

and her weight as 140 pounds. United argues that she

was not hired because of her weight. However, once,

again, no evidence exists in the record before us of her

actual weight at the time. Wong-Larkin states that she

received no reply from United at the time and was told

that no record existed of her application when she

attempted to inquire as to the status of her application.

Finally, Wong-Larkin applied on January 31, 1990, listing

her height as 5'6'/2" and her weight as 150 pounds. The

record before us does not contain any information on the

disposition of this application; however, United explains,

and Plaintiffs do not dispute, that United again denied

OO

8a

her application at least purportedly because of her

weight.

Based on these events, Plaintiffs filed suit against

United, claiming that United (1) discriminated against

them in violation of the ADEA; and (2) denied them

preferential hiring treatment, as required by the ADA for

employees displaced by deregulation of the airline indus-

try.2 In a related action, United moved for summary

judgment against different plaintiffs on their ADA claims

in that case, arguing that those plaintiffs had waived their

first-hire rights and were barred from raising certain of

their claims by the statute of limitations. The district

court granted the motion and then, for substantially the

same reasons, also granted summary judgment for United

in the instant case. Pending appeal, the court stayed

consideration of Plaintiffs’ ADEA claim. We reversed the

district court’s ruling as to the ADA in the related case of

Bowdry v. United Air Lines. Inc., 956 F.2d 999 (10th Cir.),

cert. denied, 113 S. Ct. 97 (1992), and the court reinstated

Plaintiffs’ claims in the instant action.

United then moved for summary judgment again in

this case, arguing that its refusal to hire Plaintiffs because

2 Plaintiffs - joined by co-plaintiff Charles Bowdry -

initially filed suit against United on December 16, 1988, alleging

claims under the ADA and 42 U.S.C. § 1981. Appellee Supp.

App. at 1. Subsequently, on June 20, 1990, Plaintiffs filed a

second independent complaint, which they amended on July 24,

1990, charging that United discriminated against them in

violation of the ADEA. Appellant App. at 1.5. Upon Plaintiffs’

motion, the district court consolidated the two actions. District

Ct. Memorandum Opinion and Order at 1. Plaintiffs’ § 1981

claim is not before us.

9a

of their failure to meet its weight standards did not

discriminate against them because of their age and was

not in violation of the ADA. The district court granted

summary judgment for United, and Plaintiffs then filed

the instant appeal.

Approximately four and one-half months after the

district court entered its judgment and Plaintiffs filed this

appeal, Plaintiffs filed a motion with the district court to

order United to pay certain fees incurred by Plaintiffs’

expert witness when that witness was deposed by

United.* United had paid Plaintiffs’ expert $1,961.36, but

refused to pay an additional $4,603.00 incurred by the

‘expert for preparation, review, and travel associated with

the deposition. The district court denied Plaintiffs’

motion as untimely, and Plaintiffs appeal that ruling, as

well as the grant of summary judgment for United on

their ADEA and ADA claims.

Il. ADEA

Plaintiffs articulate two distinct theories to support

their claim that United discriminated against them in

violation of the ADEA when it refused to hire them as

flight attendants.* First, Plaintiffs argue that United

3 The court had previously ordered each party to bear its

own costs,

4 The ADEA provides, in relevant part, that “[iJt shall be

unlawful for an employer . . . to fail or refuse to hire or to

discharge any individual or otherwise discriminate against any

individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual's age.”

29 U.S.C. § 623(a) (1).

FO Le ee eget eee

10a

intentionally discriminated against them because of their

age. Second, Plaintiffs maintain that United's use of age-

neutral weight requirements for hiring, even if not moti-

vated by a discriminatory animus against age, disparately

impacted them because of their age. The district court

found that Plaintiffs had abandoned their disparate treat-

ment claim in a pretrial concession to the court. As to the

disparate impact claim, the court assumed without decid-

ing that the ADEA recognizes a disparate impact theory

of discrimination, but ruled that Plaintiffs had not pro-

duced evidence upon which a reasonable jury could find

that United’s use of weight standards had a disparate

impact upon older flight attendant applicants.

We review the district court’s grant of summary judg-

ment for United de novo, James v. Sears, Roebuck & Co., 21

F.3d 989, 997-98 (10th Cir. 1994),5 and affirm. Contrary to

the district court, we conclude that Plaintiffs did not

abandon their disparate treatment claim in their pretrial

dialogue. Nevertheless, we agree that United was entitled

to summary judgment because Plaintiffs have failed to

create a genuine dispute of fact that United discriminated

against them on the basis of age, either intentionally or in

effect.

5 We construe the factual record and all reasonable

inferences therefrom in the light most favorable to the party

opposing summary judgment. Blue Circle Cement, Inc. v. Board of

County Comm'rs, 27 F.3d 1499, 1503 (10th Cir. 1994). “Summary

judgment is appropriate if there is no genuine issue as to any

material fact and . . . the moving party is entitled to a judgment

as a matter of law.” Hagelin for President Comm. v. Graves, 25 F.3d

956, 959 (10th Cir. 1994) (quoting Fed. R. Civ. P. 56(c)), cert.

denied, 115 S. Ct. 934 (1995).

lla

A. Disparate Treatment

We consider first whether Plaintiffs abandoned their

disparate treatment claim below. Plaintiffs’ complaint

was broad enough to include a disparate treatment claim,

and plaintiffs further articulated such a claim in response

to United’s motion for summary judgment. United

addressed that claim in its reply to Plaintiffs’ response.

However, because the district court found that at a subse-

quent hearing on United’s summary judgment motion

Plaintiffs indicated that they were alleging age discrimi-

nation only under a disparate impact theory, the court

declined to address a disparate treatment claim. We treat

the district court’s conclusion as a primarily factual find-

ing that Plaintiffs abandoned their intentional discrimina-

tion claim, and review for clear error, see Pierce v.

Underwood, 487 U.S. 552, 558 (1988) (questions of fact

reviewable for clear error). In so doing, we conclude that

Plaintiffs clearly did not abandon their intentional dis-

crimination claim.

At the June 1, 1994 hearing on United’s summary

judgment motion, the following colloquy occurred

between Plaintiffs’ counsel Mosby and the court:

THE COURT: . . . I assume you're talking about

your disparate impact case at this point in time.

MOSBY: That’s the only case I’m talking about,

Your Honor, because I think that’s our argument

in this case, is disparate impact.

THE COURT: So, you’re not making a dispa-

rate treatment case, is that what you're saying?

MOSBY: Well, it might be difficult under the

new cases that have come down lately.

0

12a

THE COURT: I wouldn’t abandon disparate

treatment quite so quickly.

MOSBY: I haven’t abandoned it. I’m just going

to rest on — [Mosby gets interrupted by court

here and conversation shifts focus]

Although Plaintiffs’ counsel indicated that Plaintiffs’ case

rested on a disparate impact argument (“that’s our argu-

ment in this case, is disparate impact”), he also expressly

stated that he did not intend to abandon the disparate

treatment theory (“I haven’t abandoned it.”). Counsel’s

subsequent statement was cut off, but it suggests he was

planning to rest on his brief on that claim.

Furthermore, this is not a case of a party trying to

preserve an issue that it has failed to prosecute in sub-

stance. Before the purported abandonment, Plaintiffs

articulated the legal and factual basis for their disparate

treatment claim in response to United’s motion for sum-

mary judgment, and United responded to the merits of

Plaintiffs’ claim in reply. Accordingly, we agree with

Plaintiffs that they did not abandon their disparate treat-

ment claim.

Turning then to the merits of a disparate treatment

claim under the ADEA, a plaintiff must show that age

actually motivated an employer's decision. Hazen Paper

Co. v. Biggins, 113 S. Ct. 1701, 1706 (1993). In the instant

case, Plaintiffs offer no direct evidence of United's dis-

criminatory intent, but rather rely on circumstantial evi-

dence. Where a discrimination claim rests on

circumstantial evidence, we employ the McDonnell Dou-

glas burden shifting scheme, see McDonnell Douglas v.

Green, 411 U.S. 792, 802-05 (1973), which we have applied

13a

to ADEA cases from the Title VII context where it was

originally developed, Cooper v. Asplundh Tree Expert Co.,

836 F.2d 1544, 1547 & n.1 (10th Cir. 1988) (applying bur-

den shifting proof scheme to age discrimination claim).

Under that scheme, Plaintiffs must first establish a prima

face case by showing that (1) they were within the pro-

tected age group; (2) they were not hired; (3) they were

qualified for the position; and (4) United filled the posi-

tions with younger applicants. See id. at 1547.

If Plaintiffs can establish a prima facie case, then the

burden shifts to United to articulate a facially non-

discriminatory reason for not hiring Plaintiffs. EEOC v.

Flasher, 986 F.2d 1312, 1315-16 (10th Cir. 1992). If United

articulates such a reason, the burden reverts to Plaintiffs

to establish United’s discriminatory motivation by either

(1) presenting direct evidence that age was a determina-

tive factor in United’s decision;® or (2) presenting evi-

dence upon which a jury could conclude that United's

proffered explanation is pretextual and unworthy of cred-

ence. Texas Dep’t of Community Affairs v. Burdine, 450 U.S.

248, 256 (1981); Randle v. City of Aurora, 69 F.3d 441, 452

n.17 (10th Cir. 1995) (“[A] civil rights plaintiff may with-

stand a motion for summary judgment .. . if the plaintiff

establishes a prima facie case and presents evidence that

the defendant's proffered nondiscriminatory reason was

pretextual —- i.e., unworthy of belief.”).

As to the prima facie case, neither party disputes that

(1) Ellis was within the age group protected by the ADEA

6 Of course, Plaintiffs can use direct evidence to establish

discrimination and avoid the burden shifting analysis

altogether. See Heim v. Utah, 8 F.3d 1541, 1546 (10th Cir. 1993).

l4a

each time she applied for a job with United, and Wong-

Larkin was within the protected age group beginning

with her 1988 application;”? (2) United rejected applica-

tions from each plaintiff while each was protected by the

ADEA; and (3) United hired younger applicants instead.

However, United argues that Plaintiffs have failed to

show that they were qualified for the flight attendant

positions — an essential element of the prima facie case -

because they did not meet United’s weight standards for

new hires. In the event that the plaintiffs do establish a

prima facie case, United then relies on the weight stan-

dards as its nondiscriminatory explanation for why it did

not hire Plaintiffs. Plaintiffs argue that United’s invoca-

tion of its weight standards is a pretext for its true dis-

criminatory motives, and that those weight standards

should not be used to determine their qualifications to

serve as flight attendants.

Here, even if plaintiffs had established a prima facie

case (which we doubt),® the court still properly granted

?7 The ADEA covers individuals who are at least 40 years of

age. 29 U.S.C. § 631(a). Prior to January 1, 1987, it covered

individuals who were at least 40 years of age but less than 70

years of age. Ellis turned 40 on December 6, 1985, and Wong-

Larkin turned 40 on August 8, 1988.

8 In MacDonald v. Eastern Wyoming Mental Health Ctr., 941

F.2d 1115, 1118-22 (10th Cir. 1991), we held that it was improper

to consider the employer’s explanation that it discharged the

plaintiff because she was doing unsatisfactory work in

assessing whether the plaintiff established a prima facie case.

See id. at 1119 (following majority of circuits that have

“refus[ed] to consider a defendant’s proffered reasons for

discharge in assessing the existence of a prima facie case”).

Rather, we allowed the plaintiff to satisfy her prima facie

15a

summary judgment for defendant because plaintiffs have

not presented any evidence that United’s explanation for

its hiring decisions was pretextual. Plaintiffs have pro-

duced no evidence that United selectively applied its

weight standards only to older applicants and hired

younger applicants who failed to meet those standards.

Plaintiffs have not shown that they actually met the

weight guidelines and, thus, must have been rejected for

burden by producing evidence of her objective qualifications, id.

at 1121, and then placed the burden on the plaintiff to rebut the

employer’s contention that the plaintiff was not truly qualified

at the pretext stage of our analysis, id. at 1121-22; see also

Bienkowski v. American Airlines. Inc., 851 F.2d 1503, 1506 (5th Cir.

1988) (“The lines of battle may then be drawn over the

employer’s articulated reason for its action and whether that

reason is a pretext for age discrimination.”). However,

MacDonald involved subjective employment criteria, which are

particularly easy for an employer to invent in an effort to

sabotage a plaintiff’s prima facie case and mask discrimination,

whereas the present case involves objective hiring criteria

applied to all applicants. MacDonald, 941 F.2d at 1121 (“(W]e

conclude that a plaintiff may make out a prima facie case of

discrimination in a discharge case by credible evidence that she

continued to possess the objective qualifications she held when

she was hired. . . . ” Emphasis added.) Of course, if a plaintiff

can show that the employer has imposed an objective

employment criteria for the purpose of excluding a protected

class, then such a plaintiff will have presented direct proof of

discrimination and the burden shifting mechanism of McDonell

Douglas will not be needed. Here, plaintiffs failed to establish

that they met the objective weight qualification for new flight

attendants. Nevertheless, even if plaintiffs were deemed to have

satisfied the prima facie case, they have failed to establish that

United’s reason for not hiring them was pretexual.

l6a

some other reason. Finally, Plaintiffs have failed to

produce other evidence that United chose its weight stan-

dards in order to keep out older applicants.

Plaintiffs argue that United could not have been gen-

uinely concerned about their weight because, at least on

several of their applications, they satisfied the standards

that United applies to flight attendants after they are

hired.!° In essence, Plaintiffs argue that United cannot

* We pause somewhat over Wong-Larkin’s 1988 application

due to the apparent dispute about her height, but ultimately

_ conclude that she has not created a genuine dispute that she met the

guidelines. Wong-Larkin listed her height as 5'6'/2" at her 1989

interview following that application, and, thus, at her then stated

weight of 140 pounds would have satisfied United’s standards.

However, she would not have satisfied United’s standards for

someone 5'6". No records were introduced of Wong-Larkin’s actual

height and weight at that time. However, Wong-Larkin admitted at

a deposition that she is 5'6" and that United actually measured her at

5'6" in 1986. Accordingly, we conclude that Wong-Larkin has not

provided an evidentiary basis upon which a jury could infer that

United treated her as 5'6'/2", given that she admits that she is

physically 5'6" and that United had previously recorded her height

as such. Further, the fact that United interviewed Wong-Larkin after

receiving her application with a stated weight of 140 pounds does

not show that United was not concerned about her weight.

Although United generally only interviews applicants who meet its

basic hiring criteria - including weight - United interviewed Wong-

Larkin in 1989 at an open house and not after screening her

application.

'0 Ellis weighed 139 pounds when United interviewed her

after her 1987 application, the maximum allowable weight for

an incumbent 40-year old 5'4" tall flight attendant. Wong-Larkin

weighed 140 pounds when United interviewed her after her

1988 application — at least according to her application - four

pounds less than the maximum allowable weight for an

incumbent 40-year old 5'6" tall flight attendant.

17a

claim that its weight requirements for new hires promote

its business justifications for restricting the weight of

flight attendants since flight attendants, once hired, have

more relaxed weight requirements. However, United

explains that it employs different standards for its current

employees because it was obligated to do so by its collec-

tive bargaining agreement with its union.!! Given the

age-sensitive criteria applied to flight attendants once

'! Plaintiffs argue that United cannot rely on the collective

bargaining agreement to explain why it employs dual weight

standards because the agreement was not introduced into

evidence. However, United produced an affidavit describing

the collective bargaining agreement, and Plaintiffs have cited no

evidentiary ground on which the representations in that

affidavit should have been excluded from consideration for

summary judgment purposes. Plaintiffs merely claim on appeal!

that this affidavit was inaccurate, and have submitted on appeal

newly discovered affidavits from an unrelated case that they

maintain show that United fraudulently mischaracterized the

collective bargaining agreement to the district court. Plaintiffs

further request the award of fees and costs that they have

incurred responding to this allegedly fraudulent affidavit

pursuant to Fed. R. Civ. P. 56(g). However, Plaintiffs’ affidavits

are not properly before us nor were they before the district

court, and, in any event, they do not demonstrate that United

acted fraudulently. Furthermore, Plaintiffs have not explained

why they did not produce the collective bargaining agreement

themselves below, cr otherwise attack United’s characterization

of the agreement. Accordingly, we deny Plaintiffs’ motion for

fees and costs.

United has filed a motion on appeal to strike Plaintiffs’

assertion that United acted in bad faith and to sanction

Plaintiffs’ counsel. As explained above, we have not considered

Plaintiffs’ newly submitted evidence. Accordingly, we grant

United’s motion to strike, although we deny United’s motion

for sanctions.

18a

hired, United’s continued use of age-neutral hiring crite-

ria, at first glance, might make little sense; however,

United justified this practice in the district court by

asserting that it does not inquire into the age of its

applicants because, in many states, such an inquiry is

illegal. In any event, an employer's exercise of erroneous

or even illogical business judgment does not, by itself,

constitute pretext. See Faulkner v. Super Valu Stores. Inc., 3

F.3d 1419, 1426 (10th Cir. 1993) (“The ADEA is not a

vehicle for reviewing the propriety of business deci-

sions.”). That United allows older incumbent flight atten-

dants greater leeway in their weight once hired because

of the union does not establish that United does not truly

want all of its new hires to meet its uniform weight

requirements or suggest that United selected those crite-

ria with an intent to screen out older applicants. The most

Plaintiffs may have shown is that United discriminated

between its incumbent employees and applicants on the

matter of weight. However, that type of discrimination is

not prohibited by the ADEA, and, in any event, United

offered the unrefuted explanation for the disparate treat-

ment that the more liberal standard was a product of its

collective bargaining agreement. Thus, Plaintiffs’ dispa-

rate treatment claim must fail, and we affirm the grant of

summary judgment for United on this claim.

B. Disparate Impact

Plaintiffs claim, alternatively, that United’s hiring

decisions violated the ADEA because the decisions were

based on weight requirements that disparately impacted

older job applicants. Disparate impact claims, as recog-

nized in the Title VII context, see Griggs v. Duke Power Co.,

iis i ae Lal mnt sarce

ee anaes 4

Te oe

Dias tal

ee Pee ee

19a

401 U.S. 424, 431 (1971), challenge “employment practices

that are facially neutral in their treatment of different

groups but that in fact fall more harshly on one group

than another and cannot be justified by business neces-

sity.” Hazen Paper, 113 S. Ct. at 1705 (quoting International

Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.i5

(1977)). Whether a disparate impact claim can be brought

under the AMA is, however, an open question. See Hazen

Paper, 113 S. Ct. at 1706 (“[W]le have never decided

whether a disparate impact theory of liability is available

under the ADEA, and we need not do so here.”) (internal

citation omitted); Faulkner, 3 F.3d at 1428 (explaining that

“(t]he Tenth Circuit has never directly addressed whether

a disparate impact claim is cognizable under the ADEA,”

and leaving the question open). Based on our interpreta-

tion of the statutory text and congressional intent, we

now answer that question and hold that disparate impact

claims are not cognizable under the ADEA; thus, we

affirm the district court’s grant of summary judgment for

United on that ground.

Our interpretation begins with the text of the ADEA.

The ADEA’s core prohibition of discrimination provides,

in relevant part, that

[i]t shall be unlawful for an employer - (1) to

fail or refuse to hire or to discharge any individ-

ual or otherwise discriminate against any indi-

vidual with respect to his compensation, terms,

conditions, or privileges of employment, because

of such individual's age; (2) to limit, segregate, or

classify his employees in any way which would

deprive or tend to deprive any individual of

employment opportunities or otherwise

20a

adversely affect his status as an employee,

because of such individual's age. . . .

(Emphasis added.) 29 U.S.C. § 623(a).

Section 623(a)(1), which contains the ADEA’s explicit

prohibition of discriminatory refusals to hire, specifically

proscribes only decisions not to hire because of someone's

age. The most obvious reading of the clause, “because of

such individual’s age,” is that it prohibits an employer

from intentionally treating someone differently based on

his or her age. It would be a stretch to read the phrase

“because of such individual's age” to prohibit incidental

and unintentional discrimination that resulted because of

employment decisions which were made for reasons other

than age. Hazen Paper Co. v. Biggins, 113 S. Ct. 1701, 1707

(1993) (“The ADEA requires the employer to ignore an

employee's age . . . ; it does not specify further charac-

teristics that an employer must also ignore.”).!2

'2 We do not dwell on Section 623(a) (2) because it does not

appear to address refusals to hire at all, see EEOC v. Francis W.

Parker School, 41 F.3d 1073, 1077-78 (7th Cir. 1994), cert. denied,

115 S. Ct. 2577 (1995). We recognize that the Supreme Court

applied language similar to § 623(a)(2) in Title VII to job

applicants in Griggs. Griggs, 401 U.S. at 426-27 & n.1. However,

following Griggs in 1972, Congress expressly added applicants

to the parallel provision in Title VII, see 42 U.S.C. § 2000e.

2(a)(2), but not to the ADEA, indicating an intent that § 623(a)

(2) of the ADEA not apply to applicants as § 623(a)(1) expressly

does. Moreover, Section 623(a)(2) concludes with the same

phrase as does Section 623(a) (1), anda parallel reading of those

two sections would require us to conclude that they are both

limited to intentional discrimination. DiBase v. Smithkline

Beecham Corp., 48 F.3d 719, 733 (3d Cir.), cert. denied, 116 S. Ct.

306 (1995); EEOC v. Francis W. Parker School, 417 F.3d at 1077-78.

2la

Admittedly, in Griggs, the Supreme Court construed

language in Title VII that was nearly identical to that

found in Section 623(a) of the ADEA to create a disparate

impact theory of discrimination. Griggs, 401 U.S. at 431

(holding that employment practices which are neutral in

form but which result in discriminatory effects are pro-

hibited unless justified by business necessity). Further-

more, we generally interpret the ADEA in tandem with

Title VII because the ADEA was based in substantial part

on Title VII. See Lorillard v. Pons, 434 U.S. 575, 584 (1978)

(noting that “the prohibitions of the ADEA were derived

in haec verba from Title VII"); see also Cooper, 836 F.2d at

1547 & n.1 (applying burden shifting scheme from Title

VII to ADEA disparate treatment claim). However, the

ADEA differs from Title VII in salient ways that counsel

against interpreting the ADEA to recognize disparate

impact claims and that reinforce our reading of the text of

the ADEA.

13 Congress enacted the ADEA before Griggs, and,

therefore, could not have intended literally to apply Griggs to

the ADEA by incorporating language from Title VII. Thus, the

relevant inquiry is whether the factors that drove the Supreme

Court in Griggs to recognize disparate impact claims in Title VII

apply to the ADEA. However, Griggs did not base its holding on

the text of Title VII, but rather looked primarily to the larger

objectives underlying Congress’ enactment of Title VII. See

Griggs, 401 U.S. at 429-30; Michael C. Sloan, “Disparate Impact

in the Age Discrimination in Employment Act,” 1995 Wis. L

Rev. 507, 517 (1995) (“[T]he Griggs Court did not analyze

statutory language to justify its decision, but instead relied on

its interpretation of congressional intent and legislative

history.”). As explained in the text, the ADEA differs from Title

VII in these nontextual considerations, as well as in its text and

structure

22a

First, Section 623(f) of the ADEA provides in relevant

part that:

[i]t shall not be unlawful for an employer,

employment agency, or labor organization - (1)

to take any action otherwise prohibited under

subsections (a), (b), (c), or (e) of this section

where age is a bona fide occupational qualifica-

tion reasonably necessary to the normal opera-

tion of the particular business, or where the

differentiation is based on reasonable factors other

than age... . (Emphasis added.)

This authorization of actions based on “factors other than

age” is similar to section 206(d) (1) of the Equal Pay Act.

29 U.S.C. § 206(d) (1).'4 The Supreme Court interpreted

section 206(d)(1) of the Equal Pay Act to preclude dispa-

rate impact claims. County of Washington, Ore. v. Gunther,

452 U.S. 161, 170-71 (1981) (distinguishing Title VII on the

basis of that provision).

Second, the legislative history of the ADEA suggests it

was not enacted to address disparate impact claims. Con-

gress enacted the ADEA in large part on a report it commis-

sioned from the Secretary of Labor, The Older American

Worker: Age Discrimination in Employment (1965) (“Secre-

tary of Labor Report”). See EEOC v. Wyoming, 460 U.S. at

229-31 (tracing legislative history of ADEA and central role

of Secretary of Labor Report); see also Sloan, supra, at 512

(“Because other materials are sparse, discussions of the

ADEA’s legislative history usually focus on the Secretary's

'* The Equal Pay Act provides, in relevant part, that

employers can pay unequal wages to men and women where

the pay differential is “based on any other factor other than

sex... . ” 29 U.S.C. § 206(d)(1).

—_

23a

Report.”). That report differentiated between what it termed

“arbitrary discrimination” based on age (intentional discrim-

ination based on age stereotypes) and problems resulting

from factors that “affect older workers more strongly, as a

group, than they do younger employees,” (disparate impact)

id. at 5, 11. The report then recommended that Congress

prohibit “arbitrary discrimination,” but that factors which

“affect older workers” be addressed through programmatic

measures to improve opportunities for older workers. Id. at

21-25. The ADEA’s stated purposes and sections 622 and 623

reflect different approaches for intentional or arbitrary dis-

crimination and the more benign problem of disparate

impact.

Third, a comparison of Congress’ subsequent amend-

ments to Title VII and to the ADEA further reveals this

congressional intent. Specifically, Congress explicitly

added a disparate impact cause of action to Title VII in

the 1991 Civil Rights Act, see Pub. L. No. 102-166, § 105,

105 Stat. 1071, 1074-75 (1991), codified at 42 U.S.C.

§ 2000e-2(k). However, Congress added no such parallel

provision to the ADEA, despite its amendment of other

portions of the ADEA, see, e.g., id. at § 115, 105 Stat. at

1079 (amending the time period within which an

employee may file civil actions); id. at § 302(2), 105 Stat.

at 1088 (extending coverage of ADEA to congressional

employees), thus signalling its intent not to provide for a

disparate impact cause of action under the ADEA.

Fourth, the Supreme Court's recent Hazen Paper deci-

sion further informs our interpretation of the ADEA. The

Court, although not expressly ruling on the issue, indi-

cated in dicta that the ADEA only prohibits intentional

discrimination. In Hazen Paper, the Court addressed a

24a

disparate treatment claim against an employer who fired

a 62 year old employee just a few weeks before his

pension benefits would vest. The Court observed that

“|djisparate treatment captures the essence of what Con-

gress sought to prohibit in the ADEA.” Hazen Paper, 113 S.

Ct. at 1706. Even more to the point, the Court said that

the ADEA was enacted to prevent older workers from

being stigmatized by inaccurate stereotyping and that,

“When the employer’s decision is wholly moti-

vated by factors other than age, the problem of

inaccurate and stigmatizing stereotypes disap-

pears. This is true even if the motivating factor is

correlated with age, as pension status typically is.”

Id. (Emphasis added.)

And, reiterated that theme again later when it said,

The law requires the employer to ignore an

employee's age . . . ; it does not specify further

characteristics [like the correlation between age

and the likelihood that a worker will qualify for

a pension] that an employer must also ignore.”

Id. (Emphasis added.)

Although the Court’s holding was technically limited to

the disparate treatment claim before it, one cannot read

that opinion without receiving the strong impression that

the Supreme Court is suggesting that the ADEA does not

encompass a disparate impact claim.'5 The Chief Justice

1S For example, the Court also explained that an employer

cannot rely on age as a proxy for some quality like productivity,

but “must instead focus on those factors directly,” 113 S. Ct. at

1706, implying that an employer could in good faith rely on

some factor other than age even if it similarly resulted in an

older employee losing his or her job.

25a

and Justices Kennedy and Thomas concurred, noting that

“there are substantial arguments that it is improper to

carry over disparate impact analysis from Title VII to the

ADEA.” Hazen, 113 S. Ct. at 1710.

Fifth, of those courts that have considered the issue

since Hazen, there is a clear trend toward concluding that

the ADEA does not support a disparate impact claim.

DiBiase v. Smithkline Beecham Corp., 48 F.3d 719, 732-34 (3d

Cir. 1995) (holding that there is no disparate impact claim

under the ADEA); EEOC v. Francis W. Parker School, 41

F.3d 1073, 1076.77 (7th Cir. 1994) (same); Lyon v. Ohio

Educ. Ass'n & Professional Staff Union, 53 F.3d 135, 138-39

(6th Cir. 1995) (same). But see, Mangold v. California Pub.

Utilities Comm’‘n, 67 F.3d 1470, 1474 (9th Cir. 1995) (not

deciding the issue but referring to earlier Ninth Circuit

precedent - one pre-Hazen case and one post-Hazen case

perceiving no conflict between Hazen and its decision -

that recognize a disparate impact claim under the ADEA);

Houghton v. Sipco, Inc., 38 F.3d 953, 958-59 (8th Cir. 1994)

(assuming, without analysis, that a disparate impact

claim is viable under the ADEA).

Finally, we note that permitting disparate impact age

discrimination claims would create several practical

problems. In particular, many courts have interpreted the

ADEA to prohibit an employer from favoring anyone

younger than a protected plaintiff. See Rinehart v. City of

Independence. Mo., 35 F.3d 1263, 1266 & n.2 (8th Cir. 1994)

(noting majority position), cert. denied, 115 S. Ct. 1822

(1995). Accordingly, the line defining the class that is

disparately impacted by a challenged policy is an impre-

cise one, which could be manipulated to either strengthen

26a

or weaken the impact of a policy on some age group. As

then District Court Judge Higgenbotham remarked,

the disparate impact analysis in race cases can-

not be extended easily to age cases given that

the facially neutral factors challenged almost

certainly will generate different impacts for dif-

ferent age groups because each point in the life

cycle tends to be associated with different distri-

butions. “Unless virtually all facially neutral

classifications are to become suspect, the use of

nonage factors ought to enjoy a strong presump-

tion of reasonableness notwithstanding the age-

specific differential impacts that inevitably

ensue.”

Cunningham v. Central Beverage, Inc., 486 F. Supp. 59, 62-63

(N.D. Tex. 1980) (quoting Peter H. Schuck, The Graying of

Civil Rights Law: The Age Discrimination Act of 1975, 89

Yale L.J. 27, 35-37 (1979)).

Thus, policy considerations add to our analysis of

precedent and the ADEA's text, structure, purposes, and

legislative history, and confirm our ultimate holding that

plaintiffs cannot bring a disparate impact claim under the

ADEA. As such, we affirm the district court’s grant of

summary judgment for United on Plaintiff's disparate

impact claim on that ground.

Ill. ADA

Even if United did not violate the ADEA, Plaintiffs

maintain that United violated the ADA by not fulfilling

its affirmative duty under that statute to hire Plaintiffs.

The ADA defines an airline employee who was employed

by a covered carrier for four years prior to passage of the

27a

ADA as a “protected employee.” 49 U.S.C. § 42101(a) (3).

A protected employee who loses his or her job as a result

of deregulation becomes a “designated employee” and is

entitled to a right of first hire by other covered carriers.

Id. at § 42103(a). However, under Department of Labor

regulations promulgated pursuant to the ADA, an air

carrier may require an applicant to meet “any prerequi-

sites or qualifications determined by it for any vacancy”

with the exception of initial hiring age and certain other

criteria not here relevant. 29 C.F.R. §§ 220.20(a) &

220.21(a)(1). United argues that its weight requirements

for new hires constitute such permissible prerequisites or

qualifications, and that Plaintiffs’ ADA claim, therefore,

fails as a matter of law. Plaintiffs do not challenge the

Department of Labor regulations per se, but respond that

United’s use of weight standards is pretextual for

“limit{ing] employment opportunities for designated

employees on the basis of . . . [i]nitial hiring age.” Plain-

tiffs further argue that even if the standards do not dis-

criminate on the basis of age, they are not job-related,

and, therefore, cannot be considered bona fide job quali-

fications. We disagree for substantially the same reasons

outlined above in our consideration of Plaintiffs’ ADEA

claim.

As a general matter, weight requirements are permis-

sible job-related criteria for flight attendants. As the

Department of Labor stated in an opinion letter contained

in the record before us,

carriers [possess] broad latitude in determining

qualifications for prospective employees. For

example, height, weight, or vision requirements

28a

are examples of commonly used, objective hir-

ing criteria for various jobs. ... We believe that

the carriers are entitled to apply all such crite-

ria, and to do so in diverse ways.

Letter from H. Charles Spring, Acting Deputy Under

Secretary, U.S. Department of Labor, to Mary P. Weir,

Northwest Airlines, Inc. (June 20, 1991); see also Jarrell v.

Eastern Air Lines. Inc., 430 F. Supp. 884, 891 (E.D. Va.

1977), aff'd 577 F.2d 869 (4th Cir. 1978). Accordingly, we

do not believe the ADA permits us to second-guess the

business judgment of employers any more than does the

ADEA. An air carrier may require an applicant to meet

“any prerequisites of qualifications” except initial hiring

age, 29 C.F.R. §§ 220.20(a) & 220.21(a)(1) (emphasis

added), and other criteria not here involved, and, as

explained above, Plaintiffs have not shown that United's

use of weight standards was pretextual.'©

The Department of Labor opinion letter also stated

that an airline’s hiring discretion is not unlimited, and

that an airline cannot “apply qualifications that defeat the

16 In the context of Plaintiffs’ ADEA claim, we did not

consider Wong-Larkin’s September 1986 application, because

she was only 38 years old at the time and not yet protected by

the ADEA. Because no threshold age requirement exists for the

ADA, we consider that episode in the context of Plaintiffs’ ADA

claim. However, in so doing we do not alter our conclusion that

Plaintiffs have failed to establish pretext. Although no record

exists of Wong-Larkin’s actual weight in September 1986, she

weighed 142 pounds several months earlier while working at

Frontier and admitted that she likely weighed the same when

she applied to United in September. She also listed her height at

that time as 5°6". At that height and weight, Wong-Larkin

exceeded United’s weight requirements.

29a

purpose of the Act.” However, in addition to their failure

to establish that United discriminated against them based

on their age, Plaintiffs have also failed to introduce any

evidence that the weight standards acted generally to

frustrate the first hire rights of designated employees by

preventing them from getting hired. Accordingly, we do

not believe that United’s use of weight standards de-

feated the purposes of the ADA or were otherwise imper-

missible, and we affirm the district court’s grant of

summary judgment on Plaintiffs’ ADA claim.

IV. EXPERT WITNESS FEES

Independent of their discrimination claims, Plaintiffs

argue that United should have to pay fees incurred by

Plaintiffs’ expert witness for preparation, review, and

travel associated with United’s deposition of that

expert.!” Fed. R. Civ. P. 26(b)(4)(C) provides that “[uJnless

manifest injustice would result . . . the court shall require

that the party seeking discovery pay the expert a reason-

able fee for time spent in responding to discovery... . ”

United paid Plaintiffs’ expert $1,961.36 for its deposition,

but refused to pay $4,603.00 in attendant expenses. The

district court denied Plaintiffs’ motion to compel United

to pay additional expenses because (1) Plaintiffs’ motion

was untimely; (2) the court lacked jurisdiction over the

issue because the action had already been appealed

'7 Plaintiffs appealed this issue in case no. 95-1034 and

moved to consolidate that appeal with its appeal of the ADEA

and ADA issues in case no. 94-1351. Having already heard the

related appeals as separate matters, we reject Plaintiffs’ motion

but nevertheless address both appeals in this opinion.

30a

before Plaintiff filed its motion; and (3) Plaintiffs’ request

was not for “reasonable” fees, as required under Fed. R.

Civ. P. 26(b)(4) (C), even if fees for review, preparation

and travel time are recoverable generally. We agree that

Plaintiffs’ motion was untimely and affirm on that

ground. Therefore, we do not reach the other issues pre-

sented in the district court’s ruling.

Rule 26(b)(4) (C) itself does not specify whether or

when a party must demand payment of fees to its expert.

However, the advisory committee notes to the rule pro-

vide that “[t]he court may issue the latter order [to pay

fees and expenses that a party incurs in obtaining infor-

mation from an expert] as a condition of discovery, or it

may delay the order until after discovery is completed.”

Fed. R. Civ. P. 26(b) (4)(C) (Notes of Advisory Committee

on Rules to 1970 Amendment). Pursuant to that authori-

zation, courts have awarded fees under Rule 26(b)(4)(C)

after trial. See, e.g., Louisiana Power & Light Co. v. Kell-

strom, 50 F.3d 319, 336 (5th Cir.), cert. denied, 116 S. Ct. 173

(1995); Chambers v. Ingram, 858 F.2d 351, 360-61 (7th Cir.

1988). Nevertheless, Plaintiffs cite no authority for the

proposition that a court must award Rule 26(b)(4)(C) fees

no matter how long after entry of final judgment a party

requests such fees. In the present case, we do not believe |

the district court abused its discretion’ in ruling that

18 Although we review a district court’s conclusions of law

de novo, we believe the present dispute, as presented in this

appeal, falls within the court’s general discretion over discovery

disputes. See GWN Petroleum Corp. v. OK-TEX Oil & Gas. Inc.,

998 F.2d 853, 858 (10th Cir. 1993) (discovery rulings are

reviewed for an abuse of discretion); see also Riggs v. Scrivner,

Inc., 927 F.2d 1146, 1149 (10th Cir.) (district court’s award of

ee eer

3la

Plaintiffs’ motion for fees was untimely given that it was

filed four and one-half months after the court had entered

a final judgment in the case and ordered each party to

bear its own costs.!?

Courts have granted motions for fees under Rule

26(b)(4)(C) that were filed even later than Plaintiffs’

motion in the instant case. See, Kellstrom, 50 F.3d at 336

(holding that request for Rule 26 costs filed nine months

after original application for taxation of costs not

untimely). However, special circumstances usually exist

to excuse the delay. See id. at 336 n.37 (“We do not mean

to imply that, under all circumstances, a party may file a

request for Rule 26(b)(4)(C) costs nine months after judg-

ment on the merits. The record reflects multiple changes

and disputes about the fees extending over a period of

many months. Accordingly, we merely hold that on the

specific facts of this case, Comstock may recover its Rule

26(b)(4) (C) costs.”). Here, the parties engaged in a pro-

longed dispute about United’s responsibility to reimburse

costs reviewed under abuse of discretion standard), cert. denied

502 U.S. 867 (1991).

19 Plaintiffs argue that United’s refusal to pay these fees

actually constituted a violation of this earlier order directing

each party to pay its own costs. Plaintiffs reason that the full

amount of the expert’s fees were costs incurred by United since

United requested the deposition. As such, Plaintiffs assert that

they did not actually need to file a motion for fees under Fed. R.

Civ. P. 26(b)(4)(C). However, the district court apparently did

not agree with Plaintiffs’ contention that United violated its

earlier order, given that it rejected Plaintiffs’ subsequent

motion. We decline now to question the district court's

construction of its own order, and focus only on Plaintiffs’

subsequent motion.

32a

Plaintiffs’ expert, but the dispute ran its course and

reached an impasse before the court granted summary

judgment for United, as the letters exchanged between

opposing counsel in November and December of 1993

reflect. Nothing in the intervening four and one-half

months altered the dispute. Accordingly, we hold that the

district court did not abuse its discretion in declining to

award Plaintiffs fees to which they might otherwise have

been entitled if it were not for their waiting so long to

bring the issue to the court’s attention.”°

V. CONCLUSION

For the foregoing reasons, we AFFIRM the district

court’s grant of summary judgment for United. We fur-

ther AFFIRM the district court’s denial of Plaintiffs’

motion for Rule 26(b)(4)(C) fees on the ground that the

motion was untimely.

20 United argues that we lack jurisdiction even to consider

this issue because Plaintiffs failed to perfect a proper appeal of

the district court’s ruling. Specifically, United contends that

Plaintiffs’ failure to appeal the issue of costs pursuant to Fed. R.

App. P. 4(a)(1) within thirty days of the district court's grant of

summary judgment and order to each party to bear its own costs

barred the Plaintiffs from later appealing following the district

court’s denial of its motion for additional expert witness fees.

United moved to dismiss Plaintiffs’ appeal of the expert witness

fee issue on that ground. We deny United’s motion because

Plaintiffs appealed the district court’s ruling on its motion for

additional fees in a timely manner. We further deny United’s

motion for fees and costs in responding to Plaintiffs’ appeal

because such appeal was not frivolous.

33a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Daniel B. Sparr

Civil Action No. 90-S-1085

CRIST ELLIS and NORMA WONG-LARKIN,

Plaintiffs,

v.

UNITED AIR LINES, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

(Filed Jun. 30, 1994)

THIS MATTER comes before the court on the Defen-

dant’s Motion for Summary Judgment, filed January 14,

1994. The court has reviewed the motion, the Plaintiffs’

response, the entire case file, the presentations by counsel

at the June 1, 1994 hearing, and the applicable law and is

fully advised ir the premises.

Background

On January 7, 1991, this court consolidated the Air-

line Deregulation Act (ADA) claims of Piaintiffs Ellis and

Wong-Larkin from Bowdry, et al. v. United Air Lines, Civil

Action No. 88-S-1997, into this case. On motion for sum-

mary judgment in Bowdry, this court concluded that

because certain Plaintiffs were deemed to have relin-

quished their first-hire rights by signing the Election of

Severance Benefits and Waiver of Claims (Waiver),

United could not have violated those Plaintiffs’ first-hire

34a

rights under the ADA, 49 U.S.C. § 1552. The court also

determined that the six-month statute of limitations from

Colo. Rev. Stat. §§ 8-3-110(16) and 24-34-403 was applica-

ble to the Plaintiffs’ ADA claims. Therefore, summary

judgment was granted for United on certain Plaintiffs’

ADA claims in the Bowdry case.

On April 30, 1991, the court granted summary judg-

ment on the Plaintiffs’ ADA claims in this case for similar

reasons. Plaintiffs Ellis and Wong-Larkin executed the

same Waiver. During the six-month statutory time period

that the court determined Ellis and Wong-Larkin had

rights under the ADA (August 24, 1986 through October

14, 1986), United did not hire any persons into a flight

attendant position. Therefore, United could not have vio-

lated the Plaintiffs’ rights under the ADA and the court

granted summary judgment for United on the Plaintiffs’

ADA claims.

On February 13, 1992, the Tenth Circuit Court of

Appeals reversed this court’s summary judgment order in

Bowdry on both grounds, effectively reversing the sum-

mary judgment order in this case on both grounds. Bow-

dry v. United Air Lines, Inc., 956 F.2d 999 (10th Cir.), cert.

denied, 113 S.Ct. 97 (1992). The Tenth Circuit ruled that:

(1) the Plaintiffs did not lose their first-hire rights by

executing the Waiver; and (2) the applicable statute of

limitations is the two-year Colo. Rev. Stat. § 13-80-102(g).

Accordingly, at this time, the Plaintiffs’ First Claim for

Relief under the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. § 621 et seq., and the Plaintiffs’ consoli-

dated claim under the Airline Deregulation Act (ADA),

49 U.S.C. § 1552, both remain at issue.

35a

Motion for Summary Judgment

The Plaintiffs claim that they were discriminated

against based on their age in violation of the ADEA

because the height/weight requirements applied to them

as new applicants were different than the height/weight

requirements applied to incumbent employees. At the

June 1, 1994 hearing, the Plaintiffs indicated that they are

alleging age discrimination under a disparate impact the-

ory only. This alleged age discrimination is also the basis

for the Plaintiffs’ ADA claim.

The Defendant moves for summary judgment on the

grounds that the ADEA permits the two different height /

weight requirements because “the differentiation is based

on reasonable factors other than age.” 29 U.S.C.

§ 623(f)(1). In addition, because the Plaintiffs do not meet

the lawful hiring criteria for new applicants, they'are not

entitled to protection under the ADA.

Plaintiffs’ ADEA claim

Summary judgment is appropriate when, viewing the

evidence in the light most favorable to the nonmoving

party, “the pleadings, depositions, answers to interroga-

tories, and admissions on file, together with the affi-

davits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c);

Thrasher v. B & B Chemical Company, Inc., 2 F.3d 995, 996

(10th Cir. 1993) (citations omitted). The moving party

bears the initial burden of showing that there is an

absence of any issues of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga,

36a

942 F.2d 737, 743 (10th Cir. 1991). If the moving party

meets this burden, the non-moving party then has the

burden to come forward with specific facts showing that

there is a genuine issue for trial as to elements essential

to the non-moving party’s case. Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus

Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887,891 (10th Cir.

1991). To sustain this burden, the non-moving party can-

not rest on the mere allegations in the pleadings. Fed. R.

Civ. P. 56(e); Celotex, 477 U.S. at 324; Applied Genetics Int'l.

v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.

1990). If the nonmoving party fails to make the required

showing with respect to any element essential to its case

and on which it bears the burden of proof at trial, then

the moving party is entitled to summary judgment “since

a complete failure of proof concerning an essential ele-

ment of the nonmoving party’s case necessarily renders

all other facts immaterial.” Celotex, 477 U.S. at 323.

The Supreme Court has never decided whether a

disparate impact theory of liability is available under the

ADEA. Hazen Paper Co. v. Biggins, __ U.S. __, 113 S.Ct.

1701, 1706 (1993). While the Tenth Circuit has never

directly addressed whether a disparate impact claim is

cognizable under the ADEA, it has indicated that the

prudent course is to merely assume the applicability of

the disparate impact analysis without deciding whether it

is a viable theory of recovery under the ADEA. Faulkner v.

Super Valu Stores, Inc., 3 F.3d 1419, 1428 (10th Cir. 1993). A

disparate impact theory of recovery involves “employ-

ment practices that are facially neutral in their treatment

of different groups but that in fact fall more harshly on

“ a ee ae a — ere

37a

one group than another and cannot be justified by busi-

ness necessity.” Faulkner, 3 F.3d at 1428, citing Interna-

tional Bhd. of Teamsters v. United States, 431 U.S. 324, 336

n.15 (1977). Unlike disparate treatment, the disparate

impact theory does not require proof of discriminatory

motive or intent. Faulkner, 3 F.3d at 1428, citing Ortega v.

Safeway Stores, Inc., 943 F.2d 1230, 1242 (10th Cir. 1991).

Generally, a plaintiff must establish a prima facie case of

age discrimination by a preponderance of the evidence.

Faulkner, 3 F.3d at 1425, citing Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To establish

a prima facie case of disparate impact discrimination, the

plaintiff must show that a specific identifiable employ-

ment practice or policy caused a significant disparate

impact on a protected group. Faulkner, 3 F.3d at 1428

(citations omitted). A plaintiff may use statistics to estab-

lish a prima facie case of disparate impact, Faulkner, 3

F.3d at 1428 (citations omitted), but a plaintiff must show

more than mere statistical disparities. Smith v. Denver

Public School Board, 767 F.Supp. 226, 229 (D. Colo. 1991).

The plaintiff must also identify an employment practice

responsible for an observed disparate impact. Wards Cove

Packing Co. v. Antonio, 490 U.S. 642, 657 (1989). Once an

employment practice has been identified, the plaintiff

must offer evidence of a kind and degree sufficient to

show that the practice has caused a disparate impact on

members of a protected group. Watson v. Fort Worth Bank

& Trust, 487 U.S. 977, 994 (1988).

A plaintiff who succeeds in establishing a prima facie

case of disparate impact does not automatically survive a

motion for summary judgment. MacDonald v. Eastern

Wyoming Mental Health Center, 941 F.2d 1115, 1121 (10th

i

38a

Cir. 1991) (citations omitted). Once the plaintiff estab-

lishes a prima facie case, the burden shifts to the

employer to produce evidence demonstrating a “business

justification” for its employment practices. Faulkner, 3

F.3d at 1428, citing Wards Cove, 490 U.S. at 658. A business

justification proffered by an employer must have a mani-

fest relationship to the employment in question, but need

not be essential or indispensable to the employer’s busi-

ness. Faulkner, 3 F.3d at 1429 (citations omitted). The

ADEA “is not intended as a vehicle for judicial review of

employment decisions which are made in good faith and

are not actuated by age bias.” Faulkner, 3 F.3d at 1426,

citing Grebin v. Sioux Falls Indep. Sch. Dist. No. 49-5, 779

F.2d 18, 20 n.1 (8th Cir. 1985). The court will not second-

guess the propriety of business decisions in the absence

of some evidence of impermissible motives. Faulkner, 3

F.3d at 1426-27, citing Lucas v. Dover Corp., Norris Div., 857

F.2d 1397, 1404 (10th Cir. 1988).

An employer satisfies the burden of production by

presenting its reasons for the challenged actions with

sufficient specificity to allow the plaintiff to demonstrate

pretext. Faulkner, 3 F.3d at 1434, citing Pitre v. Western

Electric Co., 843 F.2d 1262, 1265-66 (10th Cir. 1988). If the

employer presents such evidence, the plaintiff may still

prevail if he or she can persuade the factfinder that other

tests or selection devices, without a similarly undesirable

disparate effect, would also serve the employer's legiti-

mate interests. Faulkner, 3 F.3d at 1428-29 (citations omit-

ted). The plaintiff must prove that the employer was

using the challenged employment practice merely as a

pretext for discrimination. Wards Cove, 490 U.S. at 660.

ee ee Te

39a

The sum and substance of the Plaintiffs’ case is that:

(1) United knew that the Plaintiffs were in the protected

age group when they applied for employment, and (2) the

different height/weight requirements for new applicants

versus incumbent employees are not justified by any

business necessity, but are merely a pretext for age dis-

crimination. Under United’s height/ weight requirements,

a new female applicant who is five feet four inches tall

must weigh no more than 132 pounds, while an incum-

bent female employee of the same height can weigh up to

135 pounds if between 35 and 45 years of age, 138 pounds

if between 45 and 55 years of age, and 141 pounds if age

55 or older. Plaintiffs argue that the stricter height/

weight requirements for new applicants effectively keep

United’s new hires younger, in violation of the ADEA

and the ADA. Unfortunately, the facts and the law do not

support Plaintiffs’ arguments in opposition to United's

motion for summary judgment.

First, it has been determined that airline standards

for height and weight need not reflect the general popu-

lation’s characteristics. Air Line Pilots Ass'n. v. United Air

Lines, Inc., 26 Fair Emp. Prac. Case (BNA) 607 (E.D.N.Y.

1979). Height and weight requirements are commonly

used objective criteria that air carriers are entitled to

apply. Dept. of Labor opinion letter 23B (Exhibit F to

Defendant’s Motion for Summary Judgment). It is not for

the court to question the wisdom of United’s choice of

employment qualifications. See Faulkner, 3 F.3d at 1426-27.

The Plaintiffs have not shown that height/weight

requirements are per se improper.

Second, there is no disparate impact if the require-

ment is one that the affected employee or applicant can

40a

readily observe. Garcia v. Gloor, 618 F.2d 264, 270 (Sth Cir.

1980), cert. denied, 449 U.S. 1113 (1981); Rogers v. American

Airlines, Inc., 527 F.Supp. 229, 231 (S.D.N.Y. 1981). United

requires certain weights for certain corresponding

heights. While the Plaintiffs cannot change their ages,

they both admit that they had the ability to control their

weight at all times relevant to this case and that they

could have met the height/weight requirements for new

applicants. (Deposition testimony of Norma Wong-

Larkin, Exhibit A to Defendant’s Motion for Summary

Judgment Vol. I p. 188; Deposition testimony of Crist

Ellis, Exhibit B to Defendant’s Motion for Summary Judg-

ment, Vol. III p. 166).

Third, because the Plaintiffs have not presented any

evidence that weight is correlated to age, the Plaintiffs

carmnot show that United’s height/weight criteria caused

a significant disparate impact on the protected age group.

There is no evidence before the court of any inevitable

impact of aging on a person's ability to maintain a given

weight. There is no evidence in the record that advancing

age causes weight gain. The Plaintiffs have not shown

any connection between United's height/weight require-

ments and age. The ADEA prohibits discrimination on

the basis of age; it does not prohibit differential treatment

on the basis of any other characteristics. Biggins, 113 S.Ct.

at 1707. An employer may treat employees or applicants

differently for many reasons, but the ADEA is only impli-

cated where age is the reason. See Faulkner, 3 F.3d at

1433-34.

Fourth, United has produced evidence demonstrating

a legitimate business justification for its relaxation of the

height/weight standards for incumbent employees.

4la

United has presented evidence that the height/weight

requirements were relaxed for incumbent employees as a

result of collective bargaining between United and the

flight attendants’ union. (Affidavit of Judith Hart, Exhibit

C to Defendant’s Motion for Summary Judgment). Before

they are hired, new applicants are not covered by the

collective bargaining agreement between the flight attcn-

dants’ union and United. If they are hired, new

employees may join the union and be covered by the

collective bargaining agreement. The mandates of the

collective bargaining agreement provide a legitimate non-

discriminatory business reason for the different height/

weight requirements for incumbent employees and new

applicants. See Mann v. Frank, 795 F.Supp. 1438, 1455

(W.D. Mo. 1992), jdgmt. aff'd., 7 F.3d 1365 (8th Cir. 1993);

Robinson v. American Airlines, Inc., 722 F.Supp. 757, 766

(D.D.C. 1989), jdgmt. aff'd., 908 F.2d 1020 (D.C. Cir. 1990);

Air Line Pilots Ass'n. v. United, 26 F.E.P. at 607.

Finally, the Plaintiffs have not shown that United’s

proffered justification is a pretext for age discrimination.

See Rea v. Martin Marietta Corp., No. 93-1101, slip op. at 6

(10th Cir. June 26, 1994) (citations omitted). Even if they

could show that United's articulated business justifica-

tion is not worthy of credence, Plaintiffs must still prove

that the differentiation between incumbent employees

and new applicants violates the ADEA. See Faulkner, 3

F.3d at 1428-29. If no facts relating to the pretextuality of

the defendant's action remain in dispute, summary judg-

ment is appropriate. Hooks v. Diamond Crystal Specialty

Foods, Inc., 997 F.2d 793, 798 (10th Cir. 1993). Plaintiffs

have not offered any statistical, anecdotal, or any other

kind of evidence upon which a finder of fact could infer

42a

that United’s requirements and justification for those

requirements constituted a pretext for age discrimination.

The court concludes that Plaintiffs cannot meet their bur-

den on summary judgment of discrediting United’s legiti-

mate, nondiscriminatory reason for the two separate

height/weight standards. United is entitled to summary

judgment on the Plaintiffs’ ADEA claim.

Plaintiffs’ ADA claim

In their original ADA claim, Plaintiffs asserted that

United violated their first-hire rights under § 1552. In

their response to United’s motion for summary judgment

and at the June 1, 1994 hearing, the Plaintiffs argued that

United's use of “arbitrary age barriers” violated 29 C.F.R.

§ 200.21(a)(1). Because the Plaintiffs’ evidence failed to

show that United’s requirements are unlawful barriers to

the protected age group under the ADEA, it follows that

the Plaintiffs’ proof is likewise lacking under both ver-

sions of their ADA claim. It is undisputed that, at the

times the Plaintiffs applied for employment at United, the

Plaintiffs did not meet United’s height/weight require-

ments for new applicants. Therefore, the Plaintiffs did not

meet United’s hiring prerequisites and were not eligible

for employment or entitled to first-hire rights. United is

entitled to summary judgment on the Plaintiffs’ ADA

claim.

Accordingly, IT IS ORDERED:

1. The Defendant’s Motion for Summary Judgment

is GRANTED.

43a

2. Summary judgment is hereby entered in favor of

Defendant United and against Plaintiffs on the First

Claim for Relief under the ADEA and on the consolidated

claim under the ADA.

3. No claims remaining, this civil action is dis-

missed.

DATED at Denver, Colorado, this 30th day of June,

1994.

BY THE COURT:

/s/ Daniel B. Sparr

Daniel B. Sparr

United States District Judge

Case No. 90-S-1085

CERTIFICATE OF MAILING

I hereby certify that a copy of the MEMORANDUM

OPINION AND ORDER signed by Judge Daniel B. Sparr

and filed on June 30, 1994, was mailed on July 1, 1994, to

the following:

Elisa J. Moran, Esq.

8451 East Oregon Place

Denver, CO 80231

John Mosby, Esq.

730 — 17th Street, Suite 750

Denver, CO 80202

Michael D. Nosler, Esq.

Kris J. Kostolansky, Esq.

Rothgerber, Appel, Powers & Johnson

DC Box 11

Magistrate Judge O. Edward Schlatter

/s/ Judy L. Poor

Secretary/Deputy Clerk

4

re

bx

F

;

i

.

§

i,

;

;

4

;

.

:

45a

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CRIST ELLIS and

NORMA WONG-LARKIN,

Plaintiffs - Appellants, No. 94-1351

v. (D.C. No. 90-S-1085)

UNITED AIRLINES, INC.,

a Delaware corporation,

Defendant - Appellee.

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Amicus Curiae.

Nm mee ee ee ee ee ee ee ee”

ORDER

Entered February 9, 1996

Before EBEL and McKAY, Circuit Judges, and COOK",

Senior District Judge.

“Honorable H. Dale Cook, Senior District Judge, United

States District Court for the Northern District of Okla-

homa, sitting by designation.

46a

This matter comes on for consideration of appellants’

petition for rehearing and suggestion for rehearing in

banc.

Upon consideration whereof, the petition for rehear-

ing is denied by the panel that rendered the decision.

In accordance with Rule 35(b), Federal Rules of

Appellate Procedure, the suggestion for rehearing in banc

was transmitted to all of the judges of the court who are

in regular active service. No member of the panel and no

judge in regular active service on the court having

requested that the court be polled on rehearing in banc,

Rule 35, Federal Rules of Appellate Procedure, the sug-

gestion for rehearing in banc is denied.

Entered for the Court

PATRICK FISHER, Clerk

By: /s/ Barbara Schumaker

Deputy Clerk

47a

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 90-S-1085 (consolidated with 88-S-1997)

CRIST ELLIS and NORMA WONG-LARKIN,

Plaintiffs,

v.

UNITED AIR LINES, INC.,

Defendant.

JUDGMENT

(Filed Jul. 05, 1994)

Pursuant to and in accordance with the Memoran-

dum Opinion and Order signed June 30, 1994 by the

Honorable Daniel B. Sparr, United States District Judge,

and incorporated herein by reference as if fully set forth,

it is

ORDERED that judgment is hereby entered in favor

of the defendant, United Air Lines, Inc., and against the

plaintiffs, Crist Ellis and Norma Wong-Larkin, on plain-

tiffs’ First Claim for Relief under the Age Discrimination

in Employment Act (ADEA), 29 U.S.C. § 621, et seq. and

on plaintiffs’ consolidated claim under the Airline Dereg-

ulation Act (ADA), 49 U.S.C. § 1552. it is

FURTHER ORDERED that piaintiffs’ First Claim for

Relief under the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. § 621, et seq. and plaintiffs’ consoli-

dated claim under the Airline Deregulation Act (ADA),

49 U.S.C. § 1552 are hereby dismissed with prejudice. It is

48a

FURTHER ORDERED that this action is hereby dis-

missed.

FURTHER ORDERED that the parties shall bear their

own costs.

DATED at Denver, Colorado this 5th day of July,

1994.

FOR THE COURT:

JAMES R. MANSPEAKER, CLERK

By: /s/ Stephen P. Ehrlich

Stephen P. Ehrlich,

Chief Deputy Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Case No. 90-S-1085

CERTIFICATE OF MAILING

I hereby certify that a copy of the Judgment was

mailed to the following on July 5, 1994.

Elisa J. Moran, Esq.

8451 East Oregon Place

Denver, CO 80231

John Mosby, Esq.

730 17th Street, Suite 750

Denver, CO 80202

Michael D. Nosler, Esq.

Kris J. Kostolansky, Esq.

Rothgerber, Appel, Powers & Johnson

DC Box 11

49a

Magistrate Judge O. Edward Schlatter

/s/ Carol Hand

Deputy Clerk

50a

EEOC U.S. Equal Employment

Opportunity Commission

Laws Enforced

by the

U.S. Equal Employment

Opportunity Commission

an Re AE el a! Oe th

Title VII of the Civil Rights Act of 1964

Equal Pay Act

Age Discrimination in Employment Act

Rehabilitation Act of 1973

Title I of the Americans with Disabilities Act

Civil Rights Act of 1991

EDITOR'S NOTE: The following is the text of the Age Dis-

crimination in Employment Act of 1967 (Pub. L. 90-202)

(ADEA), as amended, as it appears in volume 29 of the United

States Code, beginning at section 621. The ADEA prohibits

employment discrimination against persons 40 years of age or

older. The Older Workers Benefit Protection Act (Pub. L.

101-433) amends several sections of the ADEA. In addition,

section 115 of the Civil Rights Act of 1991 (P.L. 102-166)

5la

amends section 7(e) of the ADEA (29 U.S.C. 626(e)). These

amendments appear in boldface iype. Cross references to the

APT 4 as enacted appear in italics following each section

heauing. Editor's notes also appear in italics.

An Act

To prohibit age discrimination in employment.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

that this Act may be cited as the “Age Discrimination in

Employment Act of 1967”.

* * *

Statement of Findings and Purpose

SEC. 621 [Section 2]

(a) The Congress hereby finds and declares that -

(1) in the face of rising productivity and afflu-

ence, older workers find themselves disadvan-

taged in their efforts to retain employment, and

especially to regain employment when dis-

placed from jobs;

(2) the setting of arbitrary age limits regardless

of potential for job performance has become a

common practice, and certain otherwise desir-

able practices may work to the disadvantage of

older persons;

52a

(3) the incidence of unemployment, especially

long-term unemployment with resultant deteri-

oration of skill, morale, and employer accep-

tability is, relative to the younger ages, high

among older workers; their numbers are great

and growing; and their employment problems

grave;

(4) the existence in industries affecting com-

merce, of arbitrary discrimination in employ-

ment because of age, burdens commerce and the

free flow of goods in commerce.

(b) It is therefore the purpose of this chapter to promote

employment of older persons based on their ability rather

than age; to prohibit arbitrary age discrimination in

employment; to help employers and workers find ways of

meeting problems arising from the impact of age on

employment.

Education and Research Program

SEC. 622 [Section 3]

(a) The Secretary of Labor [EEOC] shall undertake

studies and provide information to labor unions, manage-

ment, and the general public concerning the needs and

abilities of older workers, and their potentials for contin-

ued employment and contribution to the economy. In

order to achieve the purposes of this chapter, the Secre-

tary of Labor [EEOC] shall carry on a continuing program

of education and information, under which he may,

among other measures -

PERCE ELLE IIE ag 0 Ri SAINT” EF

gta

53a

(1) undertake research, and promote research,

with a view to reducing barriers to the employ-

ment of older persons, and the promotion of

measures for utilizing their skills;

(2) publish and otherwise make available to

employers, professional societies, the various

media of communication, and other interested

persons the findings of studies and other mate-

rials for the promotion of employment;

(3) foster through the public employment ser-

vice system and through cooperative effort the

development of facilities of public and private

agencies for expanding the opportunities and

potentials of older persons;

(4) sponsor and assist State and community

informational and educational programs.

(b) Not later than six months after the effective date of

this chapter, the Secretary shall recommend to the Con-

gress any measures he may deem desirable to change the

lower or upper age limits set forth in section 631 of this

title [section 12].

Prohibition of Age Discrimination

SEC. 623 [Section 4]

(a) It shall be unlawful for an employer -

(1) to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any

| individual with respect to his compensation,

terms, conditions, or privileges of employment,

because of such individual's age;

54a

(2) to limit, segregate, or classify his

employees in any way which would deprive or

tend tu deprive any individual of employment

opportunities or otherwise adversely affect his

status as an employee, because of such individ-

ual’s age; or

(3) to reduce the wage rate of any employee in

order to comply with this chapter.

(b) It shall be unlawful for an employment agency to

fail or refuse to refer for employment, or otherwise to

discriminate against, any individual because of such indi-

vidual’s age, or to classify or refer for employment any

individual] on the basis of such individual’s age.

(c) It shall be unlawful for a labor organization -

(1) to exclude or to expel from its membership,

or otherwise to discriminate against, any indi-

vidual because of his age;

(2) to limit, segregate, or classify its member-

ship, or to classify or fail or refuse to refer for

employment any individual, in any way which

would deprive or tend to deprive any individual

of employment opportunities, or would limit

such employment opportunities or otherwise

adversely affect his status as an employee or as

an applicant for employment, because of such

individual’s age;

(3) to cause or attempt to cause an employer to

discriminate against an individual in violation

of this section.

(d) It shall be unlawful for an employer to discriminate

against any of his employees or applicants for employ-

ment, for an employment agency to discriminate against

any individual, or for a labor organization to discriminate

55a

against member thereof or applicant for membership,

because such individual, member or applicant for mem-

bership has opposed any practice made unlawful by this

section, or because such individual, member or applicant

for membership has made a charge, testified, assisted, or

participated in any manner in an investigation, proceed-

ing, or litigation under this chapter.

(e) It shall be unlawful for an employer, labor organiza-

tion, or employment agency to print or publish, or cause

to be printed or published, any notice or advertisement

relating to employment by such an employer of member-

ship in or any classification or referral for employment by

such a labor organization, or relating to any classification

or referral for employment by such an employment

agency, indicating any preference, limitation, specifica-

tion, or discrimination, based on age.

(f) It shall not be unlawful for an employer, employment

agency, or labor organization -

(1) to take any action otherwise prohibited

under subsections (a), (b), (c), or (e) of this

section where age is a bona fide occupational!

qualification reasonably necessary to the normal

operation of the particular business, or where

the differentiation is based on reasonable factors

other than age, or where such practices involve

an employee in a workplace in a foreign coun-

try, and compliance with such subsections

would cause such employer, or a corporation

controlled by such employer to violate the laws

of the country in which such workplace is

located;

56a

(2) to take any action otherwise prohibited

under subsection (a), (b), (c), or (e) of this sec-

tion -

(A) to observe the terms of a bona fide

seniority system that is not intended to evade

the purposes of this chapter, except that no such

seniority system shall require or permit the

involuntary retirement of any individual speci-

fied by section 631(a) of this title because of the

age of such individual; or

(B) to observe the terms of a bona fide

employee benefit plan -

(i) where, for each benefit or benefit package,

the actual amount of payment made or cost

incurred on behalf of an older worker is no less

than that made or incurred on behalf of a youn-

ger worker, as permissible under section

1625.10, title 29, Code of Federal Regulations (as

in effect on June 22, 1989); or

(ii) that is a voluntary early retirement incen-

tive plan consistent with the relevant purpose or

purposes of this chapter.

Notwithstanding clause (i) or (ii) of subpara-

graph (B), no such employee benefit plan or

voluntary early retirement incentive plan shall

excuse the failure to hire any individual, and no

such employee benefit plan shall require or per-

mit the involuntary retirement of any individual

specified by section 631(a) of this title, because

of the age of such individual. An employer,

employment agency, or labor organization act-

ing under subparagraph (A), or under clause (i)

or (ii) of subparagraph (B), shall have the bur-

den of proving that such actions are lawful in

57a

any civil enforcement proceeding brought under

this chapter; or

(3) to discharge or otherwise discipline an

individual for good cause.

(g) [Repealed]

(h)(1) If an employer controls a corporation whose place

of incorporation is in a foreign country, any practice by

such corporation prohibited under this section shall be

presumed to be such practice by such employer.

(2) The prohibitions of this section shall not

apply where the employer is a foreign person

not controlled by an American employer.

(3) For the purpose of this subsection the

determination of whether an employer controls

a corporation shall be based upon the -

(A) interrelation of operations,

(B) common management,

(C) centralized control of labor relations, and

(D) common ownership or financial control of

the employer and the corporation.

(i) It shall not be unlawful for an employer which is a

State, a political subdivision of a State, an agency or

instrumentality of a State or a political subdivision of a

State, or an interstate agency to fail or refuse to hire or to

discharge any individual because of such individual’s age

if such action is taken -

(1) with respect to the employment of an indi-

vidual as a firefighter or as a law enforcement

officer and the individual has attained the age of

hiring or retirement in effect under applicable

State or local law on March 3, 1983, and

58a

(2) pursuant to a bona fide hiring or retirement

plan that is not a subterfuge to evade the pur-

poses of this chapter.

(j)(1) Except as otherwise provided in this subsection, it

shall be unlawful for an employer, an employment

agency, a labor organization, or any combination thereof

to establish or maintain an employee pension benefit plan

which requires or permits -

(A) in the case of a defined benefit plan, the

cessation of an employee’s benefit accrual, or

the reduction of the rate of an employee's bene-

fit accrual, because of age, or

(B) in the case of a defined contribution plan,

the cessation of allocations to an employee's

account, or the reduction of the rate at which

amounts are allocated to an employee’s account,

of age.

(2) Nothing in this section shall be construed

to prohibit an employer, employr ent agency, or

labor organization from observing any provision

of an employee pension benefit plan to the

extent that such provision imposes (without

regard to age) a limitation on the amount of

benefits that the plan provides or a limitation on

the number of years of service or years of partic-

ipation which are taken into account for pur-

poses of determining benefit accrual under the

plan.

(3) In the case of any employee who, as of the

end of any plan year under a defined benefit

plan, has attained normal retirement age under

such pian -

(A) if distribution of benefits under such plan

with respect to such employee has commenced

59a

as of the end of such plan year, then any

requirement of this subsection for continued

accrual of benefits under such plan with respect

to such employee during such plan year shall be

treated as satisfied to the extent of the actuarial

equivalent of in-service distribution of benefits,

and

(B) if distribution of benefits under such plan

with respect to such employee has not com-

menced as of the end of such year in accordance

with section 1056(a)(3) of this title [section

206(a)(3) of the Employee Retirement Income Secu-

rity Act of 1974] and section 401(a)(14)(C) of title

26 [the Internal Revenue Code of 1986], and the

payment of benefits under such plan with

respect to such employee is not suspended dur-

ing such plan year pursuant to section

1053(a)(3)(B) of this title of [section 203(a)(3)(B)

of the Employee Retirement Income Security Act of

1974] or section 411(a)(3)(B) of title 26 [the Inter-

nal Revenue Code of 1986], then any requirement

of this subsection for continued accrual of bene-

fits under such plan with respect to such

employee during such plan year shall be treated

as satisfied to the extent of any adjustment in

the benefit payable under the plan during such

plan year attributable to the delay in the distri-

bution of benefits after the attainment of normal

retirement age. |

The provisions of this paragraph shall apply in

accordance with regulations of the Secretary of

the Treasury. Such regulations shall provide for

the application of the preceding provisions of

this paragraph to all employee pension benefit

plans subject to this subsection and may provide

for the application of such provisions, in the

60a

case of any such employee, with respect to any

period of time within a plan year.

(4) Compliance with the requirements of this

subsection with respect to an employee pension

benefit plan shall constitute compliance with the

requirements of this section relating to benefit

accrual under such plan.

(S) Paragraph (1) shall not apply with respect

to any employee who is a highly compensated

employee (within the meaning of section 414(q)

of title 26 [the Internal Revenue Code of 1986]) to

the extent provided in regulations prescribed by

the Secretary of the Treasury for purposes of

precluding discrimination in favor of highly

compensated employees within the meaning of

subchapter D of chapter 1 of title 26 [the Internal

Revenue Code of 1986].

(6) A plan shall not be treated as failing to

meet the requirements of paragraph (1) solely

because the subsidized portion of any early

retirement benefit is disregarded in determining

benefit accruals.

(7) Any regulations prescribed by the Secre-

tary of the Treasury pursuant to clause (v) of

section 411(b)(1)(H) of title 26 [the Internal Reve-

nue Code of 1986] and subparagraphs (C) and (D)

of section 411(b)(2) of title 26 [the Internal Reve-

nue Code of 1986] shall apply with respect to the

requirements of this subsection in the same

manner and to the same extent as such regula-

tions apply with respect to the requirements of

such sections 411(b)(1)(H) and 411(b)(2).

(8) A plan shall not be treated as failing to

meet the requirements of this section solely

because such plan provides a normal retirement

61a

age described in section 1002(24)(B) of this title

[section 3(24)(B) of the Employee Retirement Income

Security Act of 1974] and section 411(a)(8)(B) of

title 26 [the Internal Revenue Code of 1986].

(9) For purposes of this subsection -

(A) The terms “employee pension benefit

plan”, “defined benefit plan”, “defined contri-

bution plan”, and “normal retirement age” have

the meanings provided such terms in section

1002 of this title [section 3 of the Employee Retire-

ment Income Security Act of 1974].

(B) The term “compensation” has the meaning

provided by section 414(s) of title 26 [the Internal

Revenue Code of 1986].

(k) A seniority system or employee benefit plan shall

comply with this chapter regardless of the date of adop-

tion of such system or plan.

(1) Notwithstanding clause (i) of (ii) of subsection

(f)(2)(B) of tnis section -

(1) It shall not be a violation of subsection (a),

(b), (c), or (e) of this section solely because -

(A) an employee pension benefit plan (as

defined in section 1002(2) of this title |section

3(2) of the Employee Retirement Income Security

Act of 1974]) provides for the attainment of a

minimum age as a condition of eligibility for

normal or early retirement benefits; or

(B) a defined benefit plan (as defined in sec-

tion 1002(35) of this title [section 3(35) of such

Act]) provides for -

(i) payments that constitute the subsidized

portion of an early retirement benefit; or

62a

(ii) social security supplements for plan partic-

ipants that commence before the age and termi-

nate at the age (specified by the plan) when

participants are eligible to receive reduced or

unreduced old-age insurance benefits under

title II of the Social Security Act (42 U.S.C. 401 et

seq.), and that do not exceed such old-age insur-

ance benefits.

(2) (A) It shall not be a violation of subsection

(a), (b), (c), or (e) of this section solely because

following a contingent event unrelated to age

(i) the value of any retiree health benefits

received by an individual eligible for an imme-

diate pension;

(ii) the value of any additional pension benefits

that are made available solely as a result of the

contingent event unrelated to age and following

which the individual is eligible for not less than

an immediate and unreduced pension; or

(iii) the values describea in both clauses (i)

and (ii); are deducted from severance pay made

available as a result of the contingent event

unrelated to age.

(B) For an individual who receives immediate

pension benefits that are actuarially reduced

under subparagraph (A)(i), the amount of the

deduction available pursuant to subparagraph

(A)(i) shall be reduced by the same percentage

as the reduction in the pension benefits.

(C) For purposes of this paragraph, severance

pay shall include that portion of supplemental

unemployment compensation benefits (as

described in section 501(c)(17) of title 26 [the

Internal Revenue Code of 1986]) that -

63a

(i) constitutes additional benefits of up to 52

weeks;

(ii) has the primary purpose and effect of con-

tinuing benefits until an individual becomes eli-

gible for an immediate and unreduced pension;

and

(iii) is discontinued once the individual

becomes eligible for an immediate and unre-

duced pension.

(D) For purposes of this paragraph and solely

in order to make the deduction authorized

under this paragraph, the term “retiree health

benefits” means benefits provided pursuant to a

group health plan covering retirees, for which

(determined as of the contingent event unre-

lated to age) -

(i) the package of benefits provided by the

employer for the retirees who are below age 65

is at least comparable to benefits provided

under title XVIII of the Social Security Act (42

U.S.C. 1395 et seq.);

(ii) the package of benefits provided by the ©

employer for the retirees who are age 65 and

above is at least comparable to that offered

under a plan that provides a benefit package

with one-fourth the value of benefits provided

under title XVIII of such Act; or

(iii) the package of benefits provided by the

employer is as described in clauses (i) and (ii).

(E)(i) If the obligation of the employer to pro-

vide retiree health benefits is of limited dura-

tion, the value for each individual shall be

calculated at a rate of $3,000 per year for benefit

64a

years before age 65, and $750 per year for bene-

fit years beginning at age 65 and above.

(ii) If the obligation of the employer to provide

retiree health benefits is of unlimited duration,

the value for each individual shall be calculated

at a rate of $48,000 for individuals below age 65,

and $24,000 for individuals age 65 and above.

(iii) The values described in clauses (i) and (ii)

shall be calculated based on the age of the indi-

vidual as of the date of the contingent event

unrelated to age. The values are effective on

October 16, 1990, and shall be adjusted on an

annual basis, with respect to a contingent event

that occurs subsequent to the first year after

October 16, 1990, based on the medical compo-

nent of the Consumer Price Index for all-urban

consumers published by the Department of

Labor.

(iv) If an individual is required to pay a pre-

mium for retiree health benefits, the value calcu-

lated pursuant to this subparagraph shall be

reduced by whatever percentage of the overall

premium the individual is required to pay.

. (F) If an employer that has implemented a >

deduction pursuant to subparagraph (A) fails to

fulfill the obligation described in subparagraph

(E), any aggrieved individual may bring an

action for specific performance of the obligation

described in subparagraph (E). The relief shall

be in addition to any other remedies provided

under Federal or State law.

(3) It shall not be a violation of subsection (a),

(b), (c), or (e) of this section solely because an

employer provides a bona fide employee benefit

plan or plans under which long-term disability

65a

benefits received by an individual are reduced

by any pension benefits (other than those attrib-

utable to employee contributions) -

(A) paid to the individual that the individual

voluntarily elects to receive; or

(B) for which an individual who has attained

the later of age 62 or normal retirement age is

eligible.

Study by Secretary of Labor

SEC. 624 [Section 5]

(a)(1) The Secretary of Labor [EEOC] is directed to

undertake an appropriate study of institutional and other

arrangements giving rise to involuntary retirement, and

report his findings and any appropriate legislative recom-

mendations to the President and to the Congress. Such

study shall include -

(A) an examination of the effect of the amend-

ment made by section 3(a) of the Age Discrimi-

nation in Employment Act Amendments of 1978

in raising the upper age limitation established

by section 631(a) of this title [section 12(a)] to 70

years of age;

(B) a determination of the feasibility of elim-

inating such limitation;

(C) a determination of the feasibility of raising

such limitation above 70 years of age; and

(D) an examination of the effect of the exemp-

tion contained in section 631(c) of this title [sec-

tion 12(c)}], relating to certain executive

66a

employees, and the exemption contained in sec-

tion 631(d) of this title [section 12(d)], relating to

tenured teaching personnel.

(2) The Secretary [EEOC] may undertake the

study required by paragraph (1) of this subsec-

tion directly or by contract or other arrange-

ment.

(b) The report required by subsection (a) of this section

shall be transmitted to the President and to the Congress

as an interim report not later than January 1, 1981, and in

final form not later than January 1, 1982.

Transfer of Functions

[All functions relating to age discrimination administration

and enforcement vested by Section 6 in the Secretary of Labor

or the Civil Service Commission were transferred to the Equal

Employment Opportunity Commission effective January 1,

1979 under the President's Reorganization Plan No. 1.]

Administration

SEC. 625 [Section 6]

The Secretary [EEOC] shall have the power -

(a) to make delegations, to appoint such agents and

employees, and to pay for technical assistance on a fee for

service basis, as he deems necessary to assist him in the

performance of his functions under this chapter;

(b) to cooperate with regional, State, local, and other

agencies, and to cooperate with and furnish technical

67a

assistance to employers, labor organizations, and employ-

ment agencies to aid in effectuating the purposes of this

chapter.

Recordkeeping, Investigation,

and Enforcement

SEC. 626 [Section 7]

(a) The Equal Employment Opportunity Commission

shall have the power to make investigations and require

the keeping of records necessary or appropriate for the

administration of this chapter in accordance with the

powers and procedures provided in sections 209 and 211

of this title [sections 9 and 11 of the Fair Labor Standards Act

of 1938, as amended].

(b) The provisions of this chapter shall be enforced in

accordance with the powers, remedies, and procedures

provided in sections 211(b), 216 (except for subsection (a)

thereof), and 217 of this title [sections 11(b), 16 (except for

subsection (a) thereof), and 17 of the Fair Labor Standards Act

of 1938, as amended], and subsection (c) of this section.

Any act prohibited under section 623 of this title [section

4] shall be deemed to be a prohibited act under section

215 of this title [section 15 of the Fair Labor Standards Act of

1938, as amended]. Amounts owing to a person as a result

of a violation of this chapter shall be deemed to be

unpaid minimum wages or unpaid overtime compensa-

tion for purposes of sections 216 and 217 of this title

[sections 16 and 17 of the Fair Labor Standards Act of 1938, as

amended]: Provided, That liquidated damages shall be

payable only in cases of willful violations of this chapter.

In any action brought to enforce this chapter the court

68a

shall have jurisdiction to grant such legal or equitable

relief as may be appropriate to effectuate the purposes of

this chapter, including without limitation judgments com-

pelling employment, reinstatement or promotion, or

enforcing the liability for amounts deemed to be unpaid

minimum wages or unpaid overtime compensation under

this section. Before instituting any action under this sec-

tion, the Equal Employment Opportunity Commission

shall attempt to eliminate the discriminatory practice or

practices alleged, and to effect voluntary compliance with

the requirements of this chapter through informal

methods of conciliation, conference, and persuasion.

(c)(1) Any person aggrieved may bring a civil action in

any court of competent jurisdiction for such legal or

equitable relief as will effectuate the purposes of this

chapter: Provided, That the right of any person to bring

such action shall terminate upon the commencement of

an action by the Equal Employment Opportunity Com-

mission to enforce the right of such employee under this

chapter.

(2) In an action brought under paragraph (1), a

person shall be entitled to a trial by jury of any

issue of fact in any such action for recovery of

amounts owing as a result of a violation of this

chapter, regardless of whether equitable relief is

sought by any party in such action.

(d) No civil action may be commenced by an individual

under this section until 60 days after a charge alleging

unlawful discrimination has been filed with the Equal

Employment Opportunity Commission. Such a charge

sNall be filed -

69a

(1) within 180 days after the alleged unlawful

practice occurred; or

(2) ina case to which section 633(b) of this title

applies, within 300 days after the alleged unlaw-

ful practice occurred, or within 30 days after

receipt by the individual of notice of termina-

tion of proceedings under State law, whichever

is earlier.

Upon receiving such a charge, the Commission shall

promptly notify ail persons named in such charge as

prospective defendants in the action and shall promptly

seek to eliminate any alleged unlawful practice by infor-

mal methods of conciliation, conference, and persuasion.

(e) Section 259 of this title [section 10 of the Portal-to-

Portal Act of 1947] shall apply to actions under this chap-

ter. If a charge filed with the Commission under this

chapter is dismissed or the proceedings of the Commis-

sion are otherwise terminated by the Commission, the

Commission shall notify the person aggrieved. A civil

action may be brought under this section by a person

defined in section 630(a) of this title [section 11(a)] against

the respondent named in the charge within 90 days after

the date of the receipt of such notice.

(f)(1) An individual may not waive any right or claim

under this chapter unless the waiver is knowing and

voluntary. Except as provided in paragraph (2), a waiver

may not be considered knowing and voluntary unless at a

minimum -

(A) the waiver is part of an agreement between

the individual and the employer that is written

in a manner calculated to be understood by such

70a

individual, or by the average individual eligible

to participate;

(B) the waiver specifically refers to rights or

claims arising under this chapter;

(C) the individual does not waive rights or

claims that may arise after the date the waiver is

executed;

(D) the individual waives rights or claims only -

in exchange for consideration in addition to

anything of value to which the individual

already is entitled;

(E) the individual is advised in writing to con-

sult with an attorney prior to executing the

agreement;

(F)(i) the individual is given a period of at

least 21 days within which to consider the

agreement; or

(ii) if a waiver is requested in connection with

an exit incentive or other employment termina-

tion program offered to a group or class of

employees, the individual is given a period of at

least 45 days within which to consider the

agreement; Ws ae eS Agee

(G) the agreement provides that for a period of

at least 7 days following the execution of such

agreement, the individual may revoke the agree-

ment, and the agreement shall not become effec-

tive or enforceable until the revocation period

has expired;

(H) if a waiver is requested in connection with

an exit incentive or other employment termina-

tion program offered to a group or class of

employees, the employer (at the commencement

7la

of the period specified in subparagraph (F))

informs the individual in wviting in a manner

calculated to be understood by the average indi-

vidual eligible to participate, as to -

(i) any class, unit, or group of individuals cov-

ered by such program, any eligibility factors for

such program, and any time limits applicable to

such program; and

(ii) the job titles and ages of all individuals

eligible or selected for the program, and the

ages of all individuals in the same job classifica-

tion or organizational unit who are not eligible

or selected for the program.

(2) A waiver in settlement of a charge filed

with the Equal Employment Opportunity Com-

mission, or an action filed in court by the indi-

vidual or the individual’s representative,

alleging age discrimination of a kind prohibited

under section 623 or 633a of this title [section 4 or

15] may not be considered knowing and volun-

tary unless at a minimum -

(A) subparagraphs (A) through (E) of para-

graph (1) have been met; and

(B) the individual is given a reasonable period

of time within which to consider the settlement

agreement.

(3) In any dispute that may arise over whether

any of the requirements, conditions, and circum-

stances set forth in subparagraph (A), (B), (C),

(D), (E), (F), (G), or (H) of paragraph (1) or

subparagraph (A) or (B) of paragraph (2), have

been met, the party asserting the validity of a

waiver shall have the burden of proving in a

court of competent jurisdiction that a waiver

72a

was knowing and voluntary pursuant to para-

graph (1) or (2).

(4) No waiver agreement may affect the Com-

mission’s rights and responsibilities to enforce

this chapter. No waiver may be used to iustify

interfering with the protected right of an

employee to file a charge or participate in an

investigation or proceeding conducted by the

Commission.

Notice to be Posted

SEC.627 [Section 8]

Every employer, employment agency, and labor organiza-

tion shall post and keep posted in conspicuous places

upon its premises a notice to be prepared or approved by

the Equal Employment Opportunity Commission setting

forth information as the Commission deems appropriate

to effectuate the purposes of this chapter.

Rules and Regulations

SEC.628 [Section 9]

In accordance with the provisions of subchapter II of

chapter 5 of title 5 [United States Code], the Equal Employ-

ment Opportunity Commission may issue such rules and

regulations as it may consider necessary or appropriate

for carrying out this chapter, and may establish such

reasonable exemptions to and from any or all provisions

73a

of this chapter as it may find necessary and proper in the

public interest.

Criminal Penalties

SEC.629 [Section 10]

Whoever shall forcibly resist, oppose, impede, intimidate

or interfere with a duly authorized representative of the

Equal Employment Opportunity Commission while it is

engaged in the performance of duties under this chapter

shall be punished by a fine of not more than $500 or by

imprisonment for not more than one year, or by both:

Provided, however, That no person shall be imprisoned

under this section except when there has been a prior

conviction hereunder.

Definitions

SEC.630 [Section 11]

For the purposes of this chapter — -

(a) The term “person” means one or more individuals,

partnerships, associations, labor organizations, corpora-

tions, business trust, legal representatives, or any orga-

nized groups or persons.

(b) The term “employer” means a person engaged in an

industry affecting commerce who has twenty or more

employees for each working day in each of twenty or

more calendar weeks in the current or preceding calendar

74a

year. Provided, That prior to June 30, 1968, employers

having fewer than fifty employers shall not be considered

employers. The term also means (1) any agent of such a

person, and (2) a State or political subdivision of a State

and any agency or instrumentality of a State or a political

subdivision of a State, and any interstate agency, but such

term does not include the United States, or a corporation

wholly owned by the Government of the United States.

(c) The term “employment agency” means any person

regularly undertaking with or without compensation to

procure employees for an employer and includes an

agent of such a person; but shali not include an agency of

the United States.

(d) The term “labor organization” means a labor organi-

zation engaged in an industry affecting commerce, and

any agent of such an organization,, and includes any

organization of any kind, any agency, or employee repre-

sentation committee, group, association, or plan so

engaged in which employees participate and which exists

for the purpose, in whole or in part, of dealing with

employers concerning grievances, labor disputes, wages,

rates of pay, hours, or: other terms or conditions of

employment, and any conference, general committee,

joint or system board, or joint council so engaged which

is subordinate to a national or international labor organi-

zation.

(e) A labor organization shall be deemed to be engaged

in an industry affecting commerce if (1) it maintains or

operates a hiring hall or hiring office which procures

employees for an employer or procures for employees

opportunities tc work for an employer, or (2) the number

75a

of its members (or, where it is a labor organization com-

posed of other labor organizations or their representa-

tives, if the aggregate number of the members of such

other labor organization) is fifty or more prior to July 1,

1968, or twenty-five or more on or after July 1, 1968, and

such labor organization -

(1) is the certified representative of employees

under the provisions of the National Labor Rela-

tions Act, as amended [29 U.S.C. 151 et seq.], or

the Railway Labor Act, as amended [45 U.S.C.

151 et seq.]; or

(2) although not certified, is a national or inter-

national labor organization or a local labor orga-

nization recognized or acting as the

representative of employees of an employer or

employers engaged in an industry affecting

commerce; or

(3) has chartered a local labor organization or

subsidiary body which is representing or

actively seeking to represent employees of

employers within the meaning of paragraph (1)

or (2); or

(4) has been chartéred by a labor organization °

representing or actively seeking to represent

employees within the meaning of paragraph (1)

or (2) as the local or subordinate body through

which such employees may enjoy membership

or become affiliated with such labor organiza-

tion; or

(5) is a conference, general committee, joint or

system board, or joint council subordinate to a

national or international labor organization,

which includes a labor organization engaged in

an industry affecting commerce within the

76a

meaning of any of the preceding paragraphs of

this subsection.

(f) The term “employee” means an individual employed

by any employer except that the term “employee” shall

not include any person elected to public office in any

State or political subdivision of any State by the qualified

voters thereof, or any person chosen by such officer to be

om such officer’s personal staff, or an appointee on the

policymaking level or an immediate adviser with respect

to the exercise of the constitutional or legal powers of the

office. The exemption set forth in the preceding sentence

shall not include employees subject to the civil service

laws of a State government, governmental agency, or

political subdivision. The term “employee” includes any

individual who is a citizen of the United States employed

by an employer in a workplace in a foreign country.

[The exclusion from the term “employee” of any person chosen

by an elected official “to be on such official's personal staff, or

an appointee on the policymaking level or an immediate advi-

sor with respect to the exercise of the constitutional or legal

powers of the office,” remains in section 11(f). However, the

Civil Rights Act of 1991 now provides special procedures for

such persons who feel they are victims of age and other types of

discrimination prohibited by EEOC enforced statutes. See sec-

tion 321 of the Civil Rights Act of 1991.]

(g) The term “commerce” means trade, traffic, com-

merce, transportation, transmission, or communication

among the several States; or between a State and any

place outside thereof; or within the District of Columbia,

or a possession of the United States; or between points in

the same State but through a point outside thereof.

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(h) The term “industry affecting commerce” means any

activity, business, or industry in commerce or in which a

labor dispute would hinder or obstruct commerce or the

free flow of commerce and includes any activity or indus-

try “affecting commerce” within the meaning of the

Labor-Management Reporting and Disclosure Act of 1959

[29 U.S.C. 401 et seq.].

(i) The term “State” includes a State of the United

States, the District of Columbia, Puerto Rico, the Virgin

Islands, American Samoa, Guam, Wake Island, the Canal

Zone, and Outer Continental Shelf lands defined in the

Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq.].

(j) The term “firefighter” means an employee, the duties

of whose position are primarily to perform work directly

connected with the control and extinguishment of fires or

the maintenance and use of firefighting apparatus and

equipment, including an employee engaged in this activ-

ity who is transferred to a supervisory or administrative

position.

(k) The term “law enforcement officer” means 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 a State, including an employee engaged in this

activity who is transferred to a supervisory or adminis-

trative position. For the purpose of this subsection,

“detention” includes the duties of employees assigned to

guard individuals incarcerated in any penal institution.

(1) The term “compensation, terms, conditions, or privi-

leges of employment” encompasses all employee benefits,

78a

including such benefits provided pursuant to a bona fide

employee benefit plan.

Age Limitation

SEC.631 [Section 12]

(a) The prohibitions in this chapter [except the provisions

of section 4(g)] shall be limited to individuals who are at

least 40 years of age.

(b) In the case of any personnel action affecting

employees or applicants for employment which is subject

to the provisions of section 633a of this title [section 15],

the prohibitions established in section 633a of this title

[section 15] shall be limited to individuals who are at least

40 years of age.

(c)(1) Nothing in this chapter shall be construed to pro-

hibit compulsory retirement of any employee who has

attained 65 years of age and who, for the 2-year period

immediately before retirement, is employed in a bona

fide executive or a high policymaking position, if such

employee is entitled to an immediate nonforfeitable

annual retirement benefit from a pension, profit-sharing,

savings, or deferred compensation plan, or any combina-

tion of such plans, of the employer of such employee,

which equals, in the aggregate, at least $44,000.

(2) In applying the retirement benefit test of

paragraph (1) of this subsection, if any such

retirement benefit is in a form other than a

straight life annuity (with no ancillary benefits),

or if employees contribute to any such plan or

a oe

79a

make rollover contributions, such benefit shall

be adjusted in accordance with regulations pre-

scribed by the Equal Employment Opportunity

Commission, after consultation with the Secre-

tary of the Treasury, so that the benefit is the

equivalent of a straight life annuity (with no

ancillary benefits) under a plan to which

employees do not contribute and under which

no rollover contributions are made.

(d) Nothing in this chapter shall be construed to pro-

hibit compulsory retirement of any employee who has

attained 70 years of age, and who is serving under a

contract of unlimited tenure (or similar arrangement pro-

viding for unlimited tenure) at an institution of higher

education (as defined by section 1141(a) of title 20 [section

1201(a) of the Higher Education Act of 1965])

Annual Report

SEC.632 [Section 13]

The Equal Employment Opportunity Commission shall

submit annually in January a report to the Congress

covering its activities for the preceding year and includ-

ing such information, data and recommendations for fur-

ther legislation in connection with the matters covered by

this chapter as it may find advisable. Such report shall

contain an evaluation and appraisal by the Commission

of the effect of the minimum and maximum ages estab-

lished by this chapter, together with its recommendations

to the Congress. In making such evaluation and

appraisal, the Commission shall take into consideration

any changes which may have occurred in the general age

80a

level of the population, the effect of the chapter upon

workers not covered by its provisions, and such other

factors as it may deem pertinent.

Federal-State Relationship

SEC.633 [Section 14]

(a) Nothing in this chapter shall affect the jurisdiction of

any agency of any State performing like functions with

regard to discriminatory employment practices on

account of age except that upon commencement of action

under this chapter such action shall supersede any State

action.

(b) In the case of an alleged unlawful practice occurring

in a State which has a law prohibiting discrimination in

employment because of age and establishing or authoriz-

ing a State authority to grant or seek relief from such

discriminatory practice, no suit may be brought under

section 626 of this title [section 7] before the expiration of

sixty days after proceedings have been commenced under

the State law, unless such proceedings have been earlier

terminated: Provided, That such sixty-day period shall be

extended to one hundred and twenty days during the

first year after the effective date of such State law. If any

requirement for the commencement of such proceedings

is imposed by a State authority other than a requirement

of the filing of a written and signed statement of the facts

upon which the proceeding is based, the proceeding shall

be deemed to have been commenced for the purposes of

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this subsection at the time such statement is sent by

registered mail to the appropriate State authority.

Nondiscrimination on Account of Age in Federal Gov-

ernment Employment

SEC.633a [Section 15]

(a) All personnel actions affecting employees or appli-

cants for employment who are at least 40 years of age

(except personnel actions with regard to aliens employed

outside the limits of the United States) in military depart-

ments as defined in section 102 of title 5 [United States

Code], in executive agencies as defined in section 105 of

title 5 [United States Code] (including employees and

applicants for employment who are paid from nonap-

propriated funds), in the United States Postal Service and

the Postal Rate Commission, in those units in the govern-

ment of the District of Columbia having positions in the

competitive service, and in those units of the legislative

and judicial branches of the Federal Government having

positions in the competitive service, and in the Library of

Congress shall be made free from any discrimination

based on age.

(b) Except as otherwise provided in this subsection, the

Equal Employment Opportunity Commission is autho-

rized to enforce the provisions of subsection (a) of this

section through appropriate remedies, including rein-

statement or hiring of employees with or without back-

pay, as will effectuate the policies of this section. The

Equal Employment Opportunity Commission shall issue

82a

such rules, regulations, orders, and instructions as it

deems necessary and appropriate to carry out its respon-

sibilities under this section. The Equal Employment

Opportunity Commission shall -

(1) be responsible for the review and evalua-

tion of the operation of all agency programs

designed to carry out the policy of this section,

periodically obtaining and publishing (on at

least a semiannual basis) progress reports from

each department, agency, or unit referred to in

subsection (a) of this section;

(2) consult with and solicit the recommenda-

tions of interested individuals, groups, and

organizations relating to nondiscrimination in

employment on account of age; and

(3) provide for the acceptance and processing

of complaints of discrimination in Federal

employment on account of age.

The head of each such department, agency, or unit shall

comply with such rules, regulations, orders, and instruc-

tions of the Equal Employment Opportunity Commission

which shall include a provision that an employee or

applicant for employment shall be notified of any final

action taken on any complaint of discrimination filed by

him thereunder. Reasonable exemptions to the provisions

of this section 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

performance of the duties of the position. With respect to

employment in the Library of Congress, authorities

granted in this subsection to the Equal Employment

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83a

Opportunity Commission shall be exercised by the

Librarian of Congress.

(c) Any person aggrieved may bring a civil action in any

Federal district court of competent jurisdiction for such

legal or equitable relief as will effectuate the purposes of

this chapter.

(d) When an individual has not filed a complaint con-

cerning age discrimination with the Commission, no civil

action may be commenced by any individual under this

section until the individual has given the Commission not

less than thirty days’ notice of an intent to file such

action. Such notice shall be filed within one hundred and

eighty days after the alleged unlawful practice occurred.

Upon receiving a notice of intent to sue, the Commission

shall promptly notify all persons named therein as pro-

spective defendants in the action and take any appropri-

ate action to assure the elimination of any unlawful

practice.

(e) Nothing contained in this section shall relieve any

Government agency or official of the responsibility to

assure nondiscrimination on account of age in employ-

ment as required under any provision of Federal law.

(f) Any personnel action of any department, agency, or

other entity referred to in subsection (a) of this section

shall not be subject to, or affected by, any provision of

this chapter, other than the provisions of section 631(b) of

this title [section 12(b)] and the provisions of this section.

(g)(1) The Equal Employment Opportunity Commission

shall undertake a study relating to the effects of the

84a

amendments made to this section by the Age Discrimina-

tion in Employment Act Amendments of 1978, and the

effects of section 631(b) of this title [section 12(b)], as

added by the Age Discrimination in Employment Act

Amendments of 1978.

(2) The Equal Employment Opportunity Com-

mission shall transmit a report to the President

and to the Congress containing the findings of

the Commission resulting from the study of the

Commission under paragraph (1) of this subsec-

tion. Such report shall be transmitted no later

than January 1, 1980.

EFFECTIVE DATE

[Section 16 of the ADEA (not reproduced in the U.S. Code)]

This Act shall become effective one hundred and eighty days

after enactment, except (a) that the Secretary of Labor may

extend the delay in effective date of any provision of this Act

up to an additional ninety days thereafter if he finds that such

time is necessary in permitting adjustments to the provisions

hereof, and (b) that on or after the date of enactment the

Secretary of Labor [EEOC] is authorized to issue such rules

and regulations as may be necessary to carry out its provision.]

Appropriations

SEC.634 [Section 17]

There are hereby authorized to be appropriated such

sums as may be necessary to carry out this chapter.

[Approved December 15, 1967]

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85a

STATUTES

49 U.S.C. app. § 1552 (1988). Employee protection pro-

gram.

(a) General rule

(1) The Secretary of Labor shall, subject to such

amounts as are provided in appropriation Acts, make

monthly assistance payments, or reimbursement pay-

ments, in amounts computed according to the provisions

of this section, to each individual who the Secretary finds,

upon application, to be an eligible protected employee.

An eligible protected employee shall be a protected

employee who on account of a qualifying dislocation (A)

has been deprived of employment, or (B) has been

adversely affected with respect to his compensation.

(2) No employee who is terminated for cause shall

receive any assistance under this section.

(b) Monthly assistance computation

(1) An eligible protected employee shall, subject to

such amounts as are provided in appropriation Acts,

receive a monthly assistance payment, for each month in

which he is an eligible protected employee, in an amount

computed by the Secretary. The Secretary, after consulta-

tion with the Secretary of Transportation, shall, by ruie,

promulgate guidelines to be used by him in determining

the amount of each monthly assistance payment to be

made to a member of each craft and class of protected

employees, and what percentage of salary such payment

shall constitute for each applicable class or craft of

86a

employees. In computing such amounts for any individ-

ual protected employee, the Secretary shall deduct from

such amounts the full amount of any unemployment

compensation received by the protected employee.

(2) If an eligible protected employee is offered rea-

sonably comparable employment and such employee

does not accept such employment, then such employee's

monthly assistance payment under this section shall be

reduced to an amount which such employee would have

been entitled to receive if such employee had accepted

such employment. If the acceptance of such comparable

employment would require relocation, such employee

may elect not to relocate and, in lieu of all other benefits

provided herein, to receive the monthly assistance pay-

ments to which he would be entitled if this paragraph

were not in effect, except that the total number of such

payments shall be the lesser of three or the number

remaining pursuant to the maximum provided in subsec-

tion (e) of this section.

(c) Assistance for relocation.

If an eligible protected employee relocates in order to

obtain other employment, such employee shall, subject to

such amounts as are provided in appropriation Acts,

receive reasonable moving expenses (as determined by

the Secretary) for himself and his immediate family. In

addition, such employee shall, subject to such amounts as

are provided in appropriation Acts, receive reimburse-

ment payments for any loss resulting from selling his

principal place of residence at a price below its fair

market value (as determined by the Secretary) or any loss

87a

incurred in cancelling such employee's lease agreement

or contract of purchase relating to his principal place of

residence.

(d) Duty to hire protected employees

(1) Each person who is a protected employee of an

air carrier which is subject to regulation by the Civil

Aeronautics Board who is furloughed or otherwise termi-

nated by such an air carrier (other than for cause) prior to

the last day of the 10-year period beginning on October

24, 1978, shall have first right of hire, regardless of age, in

his occupational specialty, by any other air carrier hiring

additional employees which held a certificate issued

under section 1371 of this Appendix prior to October 24,

1978. Each such air carrier hiring additional employees

shall have a duty to hire such a person before they hire

any other person, except that such air carrier may recall

any of its own furloughed employees before hiring such a

person. Any employee who is furloughed or otherwise

terminated (other than for cause), and who is hired by

another air carrier under the provisions of this subsec-

tion, shall retain his rights of seniority and right of recall

with the air carrier that furloughed or terminated him.

(2) The Secretary shall establish, maintain, and peri-

odically publish a comprehensive list of jobs available

with air carriers certificated under section 1371 of this

Appendix. Such list shall include that information and

detail, such as job descriptions and required skills, the

Secretary deems relevant and necessary. In addition to

publishing the list, the Secretary shall make every effort

to assist an eligible protected employe in finding other

88a

employment. Any individual receiving monthly assis-

tance payments, moving expenses, or reimbursement

payments under this section shall, as a condition to

receiving such expenses or payments, cooperate fully

with the Secretary in seeking other employment. In order

to carry out his responsibilities under this subsection, the

Secretary may require each such air carrier to file with the

Secretary the reports, data, and other information neces-

sary to fulfill his duties under this subsection.

(3) In addition to making monthly assistance or

reimbursement payments under this section, the Secre-

tary shall encourage negotiations between air carriers

and representatives of eligible protected employees with

respect to rehiring practices and seniority.

(e) Period of monthly assistance payments

(1) Monthly assistance payments computed under

subsection (b) of this section for a protected employee

who has been deprived of employment shall be made

each month until the recipient obtains other employment,

or until the end of the 72 months occurring immediately

after the month such payments were first made to such

recipient, whichever first occurs.

(2) Monthly assistance payments computed under

subsection (b) of this section for a protected employee

who has been adversely affected relating to his compen-

sation shall be paid for no longer than 72 months, so long

as the total number of monthly assistance payments made

under this section for any reason do not exceed 72.

89a

(f) Rules and regulations

(1) The Secretary may issue, amend, and repeal

such rules and regulations as may be necessary for the

administration of this section.

(2) The rule containing the guidelines which is

required to be promulgated pursuant to subsection (b) of

this section and any other rules or regulations which the

Secretary deems necessary to carry out this section shall

be promulgated within six months after October 24, 1978.

(3) The Secretary shall not issue any rule or regula-

tion as a final rule or regulation under this section until

30 legislative days after it has been submitted to the

Committee on Commerce, Science, and Transportation of

the Senate and the Committee on Public Works and

Transportation of the House of Representatives. Any rule

or regulation issued by the Secretary under this section as

a final rule or regulation shall be submitted to the Con-

gress and shall become effective 60 legislative days after

the date of such submission, unless during that 60-day

period either House adopts a resolution stating that that

House disapproves such rules or regulations, except that

such rules or regulations may become effective on the

date, during such 60-day period, that a resolution has

been adopted by both Houses stating that the Congress

approves of them.

(4) For purposes of this subsection, the term “legis-

lative day” means a calendar day on which both Houses

of Congress are in session.

90a

(g) Airline employees protective account

All payments under this section shall be made by the

Secretary from a separate account maintained in the Trea-

sury of the United States to be known as the Airline

Employees Protective Account. There are authorized to

be appropriated to such account annually, beginning with

the fiscal year ending September 30, 1979, such sums as

are necessary to carry out the purposes of this section,

including amounts necessary for the administrative

expenses of the Secretary related to carrying out the

provisions of this section.

(h) Definitions

For the purposes of this section -

(1) The term “protected employee” means

a person who, on October 24, 1978, has been

employed for at least 4 years by an air carrier

holding a certificate issued under section 1371

of this Appendix. Such term shall not include

any members of the board of directors or offi-

cers of a corporation.

(2) The term “qualifying dislocation”

means a bankruptcy or major contraction of an

air carrier holding a certificate under section

1371 of this Appendix, occurring during the first

10 complete calendar years occurring after Octo-

ber 24, 1978, the major cause of which is the

change in regulatory structure provided by the

Airline Deregulation Act of 1978, as determined

by the Civil Aeronautics Board.

(3) The term “Secretary” means the Secre-

tary of Labor.

9la

(4) The term “major contraction” means a

reduction by at least 7'/2 percent of the total

number of full-time employees of an air carrier

within a 12-month period. Any particular reduc-

tion of less than 7'/2 percent may be found by

the Board to be part of a major contraction of an

air carrier if the Board determines that other

reductions are likely to occur such that within a

12-month period in which such particular reduc-

tion occurs the total reduction will exceed 7'/2

percent. In computing a 7'/2-percent reduction

under this paragraph, the Board shall not

include employees who are deprived of employ-

ment because of a strike or who are terminated

for cause.

(i) Transfer of authority of Board

The authority of the Board under this section is trans-

ferred to the Department of Transportation on January 1,

1985.

(j) Termination

The provisions of this section shall terminate on the

last day the Secretary is required to make a payment

under this section.

(Pub. L. 95-504, § 43, Oct. 24, 1978, 92 Stat. 1750.)

REFERENCES IN TEXT

The Airline Deregulation Act of 1978, referred to in

subsec. (h)(2), is Pub. L. 95-504, Oct. 24, 1978, 92 Stat.

1705, as amended. For compiete classification of this Act

92a

to the Code, see Short Title of 1978 Amendment note set

out under Section 1301 of this Appendix and Tables.

CODIFICATION

Section was enacted as part of the Airline Deregula-

tion Act of 1978, and not as part of the Federal Aviation

Act of 1958 which comprises this chapter.

TRANSFER OF FUNCTIONS

All functions, powers, and duties of the Civil Aero-

nautics Board were terminated or transferred by section

1551 of this Appendix, effective in part on Dec. 31, 1981,

in part on Jan. 1, 1983, and in part on Jan. 1, 1985.

For transfer of certain enforcement functions of the

Secretary or other official of the Department of Transpor-

tation relating to compliance with this chapter and the

authorizations and regulations issued thereunder to the

Federal Inspector, Office of F

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