The U.S. Equal Employment Opportunity Commission

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: Age 60 Rule

February 5, 2003

Dear:

This responds to your January 15, 2003, letter to Chair Cari M. Dominguez concerning the Federal Aviation Administration's (FAA's) Age 60 Rule. The Chair has asked this office to respond directly to you.

As you know, the Equal Employment Opportunity Commission (EEOC) enforces the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et. seq., which prohibits employment discrimination against persons age 40 and over on the basis of their age. An employer may not limit employment opportunities because of age unless it can show that age is a bona fide occupational qualification (BFOQ). 29 U.S.C. § 623(f)(1).

Commission regulations provide that an employer can establish the BFOQ defense with proof that:

(1) the age limit is reasonably necessary to the essence of the business and either (2) that all or substantially all individuals excluded from the job involved are in fact disqualified, or (3) that some of the individuals so excluded possess a disqualifying trait that cannot be ascertained except by reference to age. If the employer's objective in asserting a BFOQ is the goal of public safety, the employer must prove that the challenged practice does indeed effectuate that goal and that there is no acceptable alternative which would better advance it or equally advance it with less discriminatory impact.

29 C.F.R. § 1625.6(b). Thus, the ADEA does not allow employers to use age as a proxy for ability except in extraordinarily narrow circumstances.

As you noted in the document you submitted to the FAA, the EEOC has taken the position that pilot skills and health can be assessed individually. In litigation involving non-commercial passenger flights, the EEOC has challenged employer policies of removing pilots from flight status at age 60. See, e.g., EEOC v. Boeing, 843 F.2d 1213 (9th Cir. 1988); EEOC v. Grumman Corp., C.A. No. 92-11034 (E.D.N.Y.). These cases were resolved by consent decrees in which the companies agreed to raise or eliminate the age limitations.

The FAA continues to prohibit airlines from employing persons age 60 and over as passenger airline pilots. 14 C.F.R. § 121.383(c). Although the EEOC has taken the position that a chronological age limitation is not an appropriate proxy for the qualification of a pilot, Congress has vested the FAA with the authority to insure the safety of air transportation operations.

Thank you for sending us a copy of your FAA submission. We will review the information you provided and keep it in mind when addressing this issue in the future.

We hope this information is useful to you.

Sincerely,

Dianna B. Johnston
Assistant Legal Counsel


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