EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADEA: BFOQ – Mandatory Retirement/FAA Age 65 Rule – Corporate Pilots

December 18, 2017

Dear_____:

Your November 22, 2017, e-mail to former Legal Counsel Peggy Mastroianni (now retired) and Associate Legal Counsel Carol Miaskoff has been referred to me for a response. Specifically, you ask for the Commission's support in challenging, under the Age Discrimination in Employment Act (ADEA or Act) of 1967, as amended, "age limiting" policies/practices (age 65) applied to pilots by certain airline charter operators and the "certification" companies that audit their charter operations. You state that policies/practices requiring mandatory retirement of charter pilots at the age of 65 are not required by the Federal Aviation Administration (FAA), are unlawful under U.S. law, and have worked to discriminate against your wife, a pilot with a charter operator, on the basis of her age.

The U.S. Equal Employment Opportunity Commission (EEOC) enforces, among other laws, the ADEA, which protects employees and applicants for employment forty years of age and older from discrimination based on age unless one of the exceptions to the Act applies. One such exception is the bona fide occupational qualification (BFOQ) defense, which provides that it is not unlawful for an employer to have a maximum age limitation if age is "reasonably necessary to the normal operation of the particular business." 29 U.S.C. § 623(f)(1). EEOC regulations found at 29 C.F.R. § 1625.6(b) set forth what an employer must prove to establish that age is a BFOQ for a particular position. This exception is very narrow in scope. See Western Air Lines, v. Criswell, 472 U.S. 400, 416-417 (1985) (affirming lower court ruling that an airline defending a mandatory retirement age as a BFOQ had to show that the stated age is a legitimate proxy for appropriate job qualifications either because no persons over that age are qualified or because it is impossible or highly impractical to assess the fitness of employees over that age on an individual basis).

As your letter accurately acknowledges, the EEOC has long been concerned about rules and policies/practices that limit a pilot's employment opportunities based solely on his/her age. As you point out, for example, in November 2006 an EEOC public comment letter urged the FAA to consider revising its "Age 60 Rule," which imposed a mandatory age limit on commercial (passenger) airline pilots.

On December13, 2007, the Fair Treatment of Experienced Pilots Act was signed into law by President George W. Bush. This law permitted United States commercial airline pilots to stay on the job until age 65. The FAA, in turn, issued a Final Rule on July 15, 2009, conforming its regulation to the 2007 law.

The age-65 limitation that you state your wife is subject to would be analyzed under the BFOQ standard. Although the EEOC has not changed its opposition to rigid mandatory age limitations for pilots as expressed in its 2006 comment letter, a recent court decision demonstrates the difficulty in challenging pilot age limitations endorsed by the FAA. In EEOC v. Exxon Mobile Corp., 560 F. App'x 282 (5th Cir. 2014), the U.S. Court of Appeals for the Fifth Circuit affirmed dismissal of the EEOC's suit challenging Exxon's policy that forced a corporate pilot to retire at age 60. Exxon's policy for corporate pilots emulated the FAA's Age 60 Rule that existed when the litigation began. The Court rejected EEOC's position that individualized testing was required to determine the fitness of Exxon's pilots and to establish the BFOQ defense. The Court reasoned that while the FAA's regulation applicable to commercial pilots should not be accorded "conclusive weight," it was highly relevant because the tasks of Exxon's corporate pilots and those of commercial pilots were highly congruent. 560 F. App'x at 289.

Specific disputes such as the one you raise on behalf of your wife are best addressed by EEOC through its charge process. A charge must be filed within 180 days of the alleged discrimination, or 300 days if the charge also is covered by a qualifying state or local anti-discrimination law. Charging parties are free to file suit under the ADEA 60 days after a charge has been filed with the Commission. You may reach the EEOC field office nearest you by calling 1-800-669-4000 (voice) or 1-800-669-6820 (TTY).

We hope this information is helpful. Please note that this is an informal discussion of the issues you raised and does not constitute an official opinion of the EEOC.

Sincerely,

Corbett L. Anderson
Assistant Legal Counsel
Title VII/ADEA/EPA

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