E.E.O.C. v. Boeing Co., 86-3754

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation843 F.2d 1213
Docket NumberNo. 86-3754,86-3754
Parties46 Fair Empl.Prac.Cas. 922, 46 Empl. Prac. Dec. P 37,907, 56 USLW 2646, 9 Employee Benefits Ca 1953 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. The BOEING COMPANY, Defendant-Appellee.
Decision Date06 April 1988

Susan Elizabeth Rees, Atty., E.E.O.C., Washington, D.C., for plaintiff-appellant.

John F. Aslin, Perkins Coie, Michael C. Hallerud, Seattle, Wash., for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before BROWNING, Chief Judge, WRIGHT and HALL, Circuit Judges.


The Equal Employment Opportunity Commission brought suit under the Age Discrimination in Employment Act of 1976 (ADEA), 29 U.S.C. Secs. 621-634, challenging the Boeing Company's practice of removing pilots from active flight duty at age 60. Boeing admitted discriminating on the basis of age but defended on the ground that being less than 60 is a bona fide occupational qualification (BFOQ) for Boeing pilots. 1 Boeing moved for summary judgment, relying entirely upon the argument that a Federal Aviation Administration (FAA) regulation prohibiting commercial airline pilots from flying after reaching age 60 2 provided a BFOQ for Boeing pilots as a matter of law. The district court agreed. EEOC v. Boeing Co., 40 Fair Empl. Prac. Cas. (BNA) 292 (W.D.Wash.1986).

We believe the evidence offered by EEOC raised genuine issues of fact that required trial, particularly in light of Congress's expressed preference for jury determination of factual issues arising under ADEA. We therefore reverse.


The district court correctly concluded (id. at 293) that to establish a BFOQ for Boeing pilots, the burden rested upon Boeing to prove by a preponderance of the evidence:

1) that the job qualification justifying the discrimination is reasonably necessary to the essence of its business; and

2) that age is a legitimate proxy for the qualification because (a) it has a "substantial basis for believing that all or nearly all employees over an age lack the qualification," or (the alternative chosen by Boeing) (b) it is impossible or "highly impractical for [it] to insure by individual testing that its employees will have the necessary qualifications for the job."

See Western Air Lines v. Criswell, 472 U.S. 400, 416-17, 422-23, 105 S.Ct. 2743, 2752-53, 2755-56, 86 L.Ed.2d 321 (1985); Williams v. Hughes Helicopters, Inc., 806 F.2d 1387, 1391 (1986); 29 C.F.R. Sec. 1625.6(b) (1987).

The district court noted that FAA's Age-60 Rule may be relevant evidence of a BFOQ for Boeing pilots if the regulation is based on the same considerations that would support determination of a BFOQ under ADEA. The court observed that the probative weight of the FAA rule depends upon "the degree to which the job performed by Boeing pilots is congruent to that performed by commercial airline pilots." Id. at 294 (citing Johnson v. Mayor and City Council of Baltimore, 472 U.S. 353, 371, 105 S.Ct. 2717, 2727, 86 L.Ed.2d 286 (1985), and Western Air Lines, 472 U.S. at 418, 105 S.Ct. at 2753-54.

In granting summary judgment, the court focused on (1) the relevance and (2) the probativeness of FAA's Age-60 Rule. To determine the relevancy of FAA's Age-60 Rule, the court examined the findings by FAA upon which the rule was based: namely, that progressive deterioration occurs with age; that sudden incapacity becomes significantly more frequent after age 60; that the risk of such incapacity could not be gauged adequately except by reference to age; and therefore that the Age-60 Rule was necessary for safety of air carriers. Id. at 294. The district court noted that FAA had reexamined and reaffirmed the Age-60 Rule in 1972 and 1984 on the basis of renewed findings that advanced age may adversely affect pilot safety, and that tests were not yet available that would reliably predict such adverse effects in individual cases. Id. at 295. The court concluded that "because the FAA regulation is based on considerations that would support a BFOQ, the regulation may establish a BFOQ for jobs similar to that of an airline pilot." Id. Whether the regulation does establish a BFOQ for such jobs, the court said, would depend on the probativeness of the regulation. Id.

In assessing the probativeness of FAA's Age-60 Rule in determining a BFOQ for Boeing pilots, the district court considered the strength of the evidence upon which the Rule was based, the expertise of FAA, the standards applied by FAA in adopting the Age-60 Rule, and how current the FAA regulation was. Id. at 295. The court found that the evidence FAA considered was "more than sufficient to establish prima facie evidence of a factual basis for a BFOQ" (id. at 296); that the "specialized knowledge and resources" of FAA and the National Institute on Aging (which concurred in FAA's Age-60 Rule) "render[ed] efforts by a court to reexamine the identical issues an unwarranted duplication of expert testimony" (id.); that the standard applied by FAA--that the age limitation be reasonable and necessary for safety--was consistent with the standard required to establish a BFOQ for pilots (id. at 296-97); and that FAA had reaffirmed the rule less than two years earlier. Id. at 297. Finally, the court compared the functions of commercial airline and Boeing pilots and concluded:

that for purposes of establishing a BFOQ the job performed by Boeing pilots is almost perfectly congruent with that performed by airline pilots. The FAA age limitation is based on safety concerns, and the flying done by Boeing pilots raises the same safety concerns as that done by airline pilots. Specifically, Boeing pilots fly large, fast aircraft in crowded air space. The significant peculiarities of Boeing flights entail even greater demands on a pilot's cognitive and psychomotor abilities than he would experience on commercial flights.

Id. at 297-98.

The court concluded that the FAA Rule "is essentially conclusive evidence" that being less than 60 is a BFOQ for Boeing pilots. Id. at 294. The court explained: "[T]he FAA regulation, 14 CFR Sec. 121.383(c), coupled with the background of the regulation and the congruity of the relevant pilot positions, establishes a BFOQ defense for Boeing as a matter of law.... Boeing is entitled to rely on the conclusions of the FAA.... Boeing need not re-prove these same conclusions.... [A]ny inquiry by a court into the issues already addressed by the FAA would be redundant and wasteful." Id. at 298.

In sum, the district court read Johnson and Western Air Lines to mean that if the considerations upon which FAA based the Age-60 Rule for commercial airline pilots would also support an age-60 limitation as a BFOQ for Boeing pilots, if the evidence before FAA supporting the Age-60 Rule for commercial airline pilots was substantial, and if the occupations of commercial airline pilots and Boeing pilots were sufficiently alike, the court could treat FAA's Age-60 Rule as conclusive as a matter of law of the existence of an age-60 BFOQ for Boeing pilots. Having found the underlying considerations the same, the evidence before FAA substantial, and the occupations congruent, the district court did not consider the Commission's extensive evidentiary showing that disqualifying impairments in persons over 60 can be determined on an individual basis by scientific testing. Instead, because FAA's Age-60 Rule met the court's tests for relevancy and probativeness, the court held that Boeing was entitled to summary judgment and "[a]ny issues of fact raised by [the Commission] are not material." 40 FEP at 298. On the same ground, the court denied the Commission's motion for further discovery on several subjects clearly relevant to the merits of Boeing's age-60 Rule as a BFOQ for its pilots.


The validity of a BFOQ turns upon factual findings, preferably ones by a jury. It was "Congress' indisputable intent to permit deviations from the mandate of the ADEA only in light of a particularized, factual showing...." Johnson, 472 U.S. at 362, 105 S.Ct. at 2722 (citations omitted). Congress coupled its preference for individualized examination of proffered justifications for age discrimination with a preference for resolution of such issues by a jury: "Congress expressly decided that problems involving age discrimination in employment should be resolved on a 'case-by-case basis' by proof to a jury." Western Air Lines, 472 U.S. at 422, 105 S.Ct. at 2756 (citing H.R.Rep. No. 805, 90th Cong., 1st Sess. 7 (1967), U.S.Code Cong. & Admin.News 1967, 2213, reprinted in EEOC, Legislative History of the Age Discrimination in Employment Act 80 (1981)).

The critical issue of fact in this case was the detectability on an individual basis of deterioration in a Boeing pilot aged 60 or over that might diminish that pilot's capacity to discharge safely his or her duties. This was an issue for the jury to decide if the facts were disputed, or for the court to decide if they were not.

Since the matter was before the district court on Boeing's motion for summary judgment, the court was required to deny the motion unless in view of the whole record--including FAA's Age-60 Rule, the evidence considered by FAA, and the expert opinions and other evidence offered by the Commission--no reasonable jury could have decided that it was practical to test pilots age 60 and over for disabling conditions. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

As we have noted, Boeing did not offer independent proof that it was "highly impractical" to determine by testing whether particular individuals aged 60 or over possessed traits precluding safe and efficient performance as pilots. Instead Boeing relied upon FAA's Age-60 Rule and the evidence upon which FAA based that rule. This evidence included expert opinions on both sides of the...

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