Usery v. Tamiami Trail Tours, Inc.
| Decision Date | 05 May 1976 |
| Docket Number | No. 72--2373,72--2373 |
| Parties | 12 Fair Empl.Prac.Cas. 1233, 11 Empl. Prac. Dec. P 10,916 W. J. USERY, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. TAMIAMI TRAIL TOURS, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard F. Schubert, Sol. of Labor, Dept. of Labor, Washington, D.C., Beverley R. Worrell, Regional Sol., Daniel M. Williams, Jr., Dept. of Labor, Atlanta, Ga., Carin Ann Clauss, Donald S. Shire, Dept. of Labor, Washington, D.C., for plaintiff-appellant.
Gregory A. Presnell, Thomas G. Garwood, Jr., Orlando, Fla., for defendant-appellee.
Robert J. Corber, Washington, D.C., for NAMBO.
Appeal from the United States District Court for the Southern District of Florida.
Before BROWN, Chief Judge, WISDOM and AINSWORTH, Circuit Judges.
We are asked to review the lower court's determination that appellee's (Tamiami) policy of refusing to consider applications of individuals between the ages of 40 and 65 for initial employment as intercity bus drivers is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of its business. Typically statutory, the words 'reasonably necessary to the normal operation of its business,' are not normally of the variety that suggest hand-wringing, earth-shaking, heart-rendering decisions of great moment. Words can be deceiving though, and we readily perceive and admit that our task in this controversy is not a simple one. Inextricably involved here, on the one hand, is perpetuation of the stated legislative purpose to promote employment of older persons based on their ability rather than age, undeniably a laudable one, which must be somehow balanced against the unquestionably sincere claims of the nationwide busing industry which, as expressed by some of its most eminent spokesmen, has amassed a safety record unsurpassed by any other transportation industry so that the public interest--here a term directly translatable into the safety of millions of intercity bus passengers per year--demands that the non-hiring of intercity bus drivers over 40 years of age be sanctioned as a necessary exception. After reviewing the record at length we are convinced that the concluions of the District Judge were not clearly erroneous. F.R.Civ.P. 52(a). We affirm.
This action was brought by the Secretary of Labor, United States Department of Labor under the provisions of Section 4 1 of the Age Discrimination in Employment Act of 1967, 29 U.S.C.A. § 621, et seq., seeking to permanently enjoin Tamiami Trail Tours, Inc. from allegedly denying employment to individuals within the age group protected by the Act 2 and from withholding payment for unpaid wages allegedly due eight individuals (the complaining witnesses herein) because of discrimination against them. In its answer Tamiami admitted that it refused to consider two of the eight complaining witnesses solely on account of their age. 3 With respect to the other six complaining witnesses the defendant contended that it would not have employed them in any event because of reasons other than age. 4 It asserted, however, that such refusal was done pursuant to the BFOQ exemptions provided in § 4(f)(1) of the Age Discrimination in Employment Act of 1967. 5
Thus, the issues for the liability portion of the trial, 6 as reflected by a pre-trial stipulation entered into by the parties, became (i) whether Tamiami's refusal to hire each of the six complaining witnesses listed in the complaint to which their answer indicated a denial was, in actuality, because of the age of each such person, (ii) respecting the two complaining witnesses to which Tamiami's answer admitted denial of employment based upon age, whether age with respect to the position of bus driver is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of defendant's business within the meaning of § 4(f)(1) of the Age Discrimination in Employment Act, and (iii) if so, whether Tamiami's violations were such that injunction would be warranted.
The trial court found that with respect to complaining witnesses Wons and Poole (see note 3, supra) a prima facie case of age discrimination had been made. This, the Court recognized, served to shift the burden of proof to the defendant to justify its hiring policy. From there the trial judge reasoned that whether Tamiami's reliance on § 4(f)(1) of the Act could be a valid defense depended essentially on questions of Tamiami's safety obligations, safe transportation of passengers being the essence of the motor carrier's operations as this Court held in Diaz v. Pan American World Airways, Inc., 5 Cir., 1971, 442 F.2d 385, cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267. Thus, in the District Court's view, Tamiami could sustain its burden of justifying its application of the general rule (i) by showing that it had a factual basis for believing that otherwise its business operations (safety obligations) would be undermined 7 and (ii) by demonstrating that dealing with each applicant over 40 years of age on an individual basis by considering his particular functional ability to perform safely the duties of a driver notwithstanding his age, would be impractical. 8
In support of its defense, Tamiami produced numerous witnesses who testified that, in their opinion, age was a reasonable and necessary employment qualification for the position of intercity bus driver. Representatives of other bus companies testified that their practice (see note 2, supra) was similar to that of Tamiami and was grounded upon reasons of safety. This testimony set out with painstaking clarity the great lengths to which bus companies go to promote safety. Many of Tamiami's witnesses emphasized its strong contention that the rigors of extra board (the meaning of this term to be discussed in detail infra) are such as to necessitate the imposition of an age limitation. So testifying were bus company executives as well as bus drivers themselves, both junior and senior in terms of past service.
Introduced also was conflicting expert testimony regarding the effects of the aging process upon the ability to safely perform the duties of bus driver and upon the reliability of an annual or recurringly scheduled full physical examination used as a screening process to detect those physical and sensory changes common to all persons which result from the aging process.
In his findings of fact and conclusions of law, the trial judge characterized the dispute as not being such a case of 'arbitrary' age discrimination as contemplated under the Act. The court concluded that the extraordinarily high degree of care required of bus companies in hiring drivers coupled with the fact that the seniority system imposes roughly a 10-year period on the extra board, justified the industry's utilization of an age limitation as the best available tool for screening out unsuitable driver applicants. The Court concluded from the evidence that functional age, as distinguished from the chronological age, of a driver applicant over 40 cannot be determined with sufficient reliability to meet the special safety obligations of motor carriers of passengers. Finding (i) that the defendant had demonstrated a factual basis for its belief that all or substantially all men over 40 would be unable to perform safely and efficiently the duties of the job of intercity bus driver and (ii) that the weight of the evidence introduced supported the view that recurring physical examinations and other testing methods are unreliable in detecting certain of the mental and psychological changes inherent with aging such that individual consideration of applicants over 40 would be highly impractical, i.e. untrustworthy, the court entered its judgment for Tamiami. The court further found that its ruling upholding the 40 year age limitation with regard to the two complaining witnesses for whom the defendant had admitted age was the sole reason for non-hiring 9 made it unnecessary to reach the issues relative to the three remaining complaining witnesses. 10
President Johnson, in his Older American Message of January 23, 1967, recommended the Age Discrimination in Employment Act of 1967, which was transmitted to the Congress by the Secretary of Labor in February of that year. The President's message, in the section on job opportunities, stated--
Hundreds of thousands, not yet old, not yet voluntarily retired, find themselves jobless because of arbitrary age discrimination. Despite our present low rate of unemployment, there has been a persistent average of 850,000 people age 45 and over who are unemployed. Today more than 3/4 of the billion dollars in unemployment insurance is paid each year to workers who are 45 and over. They comprise 27% of all the unemployed * * * In economic terms, this is a serious--and senseless--loss to a nation on the move. But the greater loss is the cruel sacrifice in happiness and well-being, which joblessness imposes on these citizens and their families. Opportunity must be opened to the many Americans over 45 who are qualified and willing to work. We must end arbitrary age limit on hiring. (113 Cong.Rec. pp. 34743--34744, Dec. 4, 1967.)
Recognizing the seriousness of the problem, 11 Congress enacted the Age Discrimination in Employment Act in 1967 for the express purpose of promoting 'employment of older persons based on their ability rather than age' and prohibiting 'arbitrary age discrimination.' The Act makes it unlawful for employers, employment agencies, and labor organizations to discriminate on the basis of age, 12 against persons between the ages of 40 and 65. 13
Section 4(f)(1) provides the BFOQ statutory defense to actions brought for violation of the Act under certain restrictive circumstances. 14 Pursuant to its usual practice, the Department of Labor promulgated an...
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