E.E.O.C. v. Mississippi State Tax Com'n
| Decision Date | 21 June 1988 |
| Docket Number | No. 87-4659,87-4659 |
| Citation | 848 F.2d 526 |
| Parties | 47 Fair Empl.Prac.Cas. 382, 47 Empl. Prac. Dec. P 38,118 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. MISSISSIPPI STATE TAX COMMISSION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Peggy R. Mastroianni, Charles A. Shanor, Gen. Counsel, E.E.O.C., Washington, D.C., for plaintiff-appellant.
John T. Kitchens, Asst. Atty. Gen., Edwin Lloyd Pittman, Atty. Gen., Bobby R. Long, Chief Atty., Miss. State Tax Comm., Jackson, Miss., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before GOLDBERG, RUBIN, and JONES, Circuit Judges.
The Equal Employment Opportunity Commission appeals a district court decision that the Mississippi State Tax Commission established "physical stamina and the ability to withstand stressful working conditions" as bona fide occupational qualifications under the Age Discrimination in Employment Act, 1 justifying the retirement at age 60 of officers charged with enforcing the State's highway tax laws. Because the Tax Commission did not develop, implement, and enforce minimum health and fitness standards for the retention of officers on the force, the Commission failed to establish physical stamina and the ability to manage stress as BFOQs. We therefore reverse the decision of the district court and remand for a determination of the backpay due to officers who were involuntarily retired.
The Mississippi State Tax Commission (MSTC) is responsible for general revenue collection. In 1980, the Mississippi legislature abolished an agency known as the Motor Vehicle Comptroller's Office and transferred responsibility for the collection of highway taxes to the MSTC. A.C. Lambert, Sr., then chairperson of the MSTC, undertook to overhaul the highway tax collection department because, in his words, "It was determined to be ineffective, no leadership, eaten up to some extent with fraud."
Assisted by Wood Stringer, a career law enforcement officer, Lambert sought to clarify and to redefine the responsibilities of the highway tax collection department. With the ultimate approval of the state legislature, Lambert and Stringer divided the workforce into three levels of scales-enforcement officers and delineated their duties for enforcing laws pertaining to the registration, licensing, and taxation of commercial trucks using the state highways. 2 The officers were authorized to search vehicles for contraband 3 and to pursue and arrest truckers who resisted or attempted to avoid the weighing and inspection of their vehicles. To enable the officers to perform these duties, Stringer and Lambert required them to wear uniforms, to drive patrol cars, and to bear weapons. 4 Job applicants had to complete Law Enforcement Academy training, 5 and all officers had to take semiannual weapons-qualification tests. Finally, Stringer and Lambert recommended and the legislature enacted a mandatory retirement age of 60 for all scales-enforcement officers. 6
The EEOC challenged the mandatory retirement age as violative of the Age Discrimination in Employment Act (ADEA). 7 After a bench trial, the district court found that scales-enforcement officers face dangers and physical rigors in their work. The court recounted testimony showing that confrontations with truckers may become violent. Chases in pursuit of truckers who attempt to bypass the scales may reach speeds of 80 or 90 m.p.h. Portable scales officers may lift from 40 to 100 pounds of scales out of their vehicles several times a day to weigh trucks at the roadside. Yet "the majority of the officers who testified agreed that most situations were routine and uneventful."
The court also recounted the testimony of Dr. Charles Marx who succeeded Lambert as chairperson of the MSTC in 1985. Dr. Marx testified that the law enforcement division had made significant progress since the days when it was part of the Motor Vehicle Comptroller's Office, but that much still needed to be done. He expressed particular concern about the qualifications of officers who had been employed by the old agency and remained on the force. Marx said that many of them could not meet the physical standards required of newly hired officers at the Law Enforcement Training Academy, although he admitted on cross-examination that, even after the demise of the Motor Vehicle Comptroller's Office, the MSTC had hired officers who failed physical training at the Academy. He dismissed the possibility of firing officers on the ground that they fell short of the Academy's physical standards because the termination procedures promulgated by the State Personnel Board were too lengthy and costly to be feasible for a struggling new agency division.
Finally, the district court reviewed the expert testimony. Experts called by the MSTC testified that persons decline in physical and aerobic capacity as they get older and that medical testing cannot reliably reveal all kinds of heart disease. The MSTC also offered a study by the industrial psychology firm of Morris & McDaniel concluding that the scales-enforcement officer's job is a law enforcement position involving occasional confrontations with life-threatening situations. Dr. Morris testified that no occupational test can accurately measure reactions to life-threatening situations. The EEOC's experts testified, on the contrary, that aging is an individual process and that a uniform mandatory retirement age at 60 fails to take account of personal fitness. They maintained that fitness and reaction-time testing were reliable indicators of ability to perform most of the tasks in question.
The district court correctly stated the test for determining whether an employer, including a state agency, 8 has established a BFOQ: Under Western Air Lines v. Criswell 9 and Usery v. Tamiami Trail Tours, 10 employers asserting a BFOQ defense must prove (1) that particular job qualifications are reasonably necessary to the essence of the business and (2) that age is a necessary proxy for these qualifications either because all or substantially all older people cannot perform the job or because individual testing for the qualifications would be highly impractical. Showing appropriate deference to the MSTC's determination, 11 the court identified the essence of the business of scales-enforcement officers as "the enforcement of the laws of the State" and found that the tasks critical to this mission included pursuit driving, dealing with hostile and aggressive individuals, sometimes restraining truckers by use of force, and observing trucks for violations. Relying on the expert testimony offered by the MSTC, the district court concluded, "physical stamina and the ability to withstand stressful working conditions are essential to the safe and efficient execution of the duties of a Scales Enforcement Officer." The court found further that most people over 60 lacked these qualifications or could not be tested for them on an individual basis. The court held therefore that the MSTC had established a BFOQ.
In reaching this decision, the district court rejected the EEOC's argument that an employer could not prove a BFOQ without first establishing minimum health and fitness standards and somehow monitoring employees for compliance with these standards. Relying on two cases decided in the Eighth and First Circuits, the district court held, as a matter of law, that the " 'failure ... to monitor physical standards ... is not necessarily inconsistent with ... recognizing that certain levels of strength, aerobic capacity, coronary fitness, etc., are necessary for effective police work.' " 12 Having concluded that the implementation and enforcement of minimum health and fitness standards was unnecessary to establishing a BFOQ, the district court made no explicit finding of fact concerning whether or not the MSTC maintained such standards.
The federal circuits are split on the question whether an employer must implement and enforce minimum standards of "physical stamina" and "the ability to withstand stressful working conditions" in order to prove such qualifications reasonably necessary to the essence of the business and to defend age discrimination on this basis. The First and Eighth Circuits hold that testing and monitoring employees for compliance with minimum standards is unnecessary so long as the employer provides "objective evidence on whether the older employees can perform their duties." 13 Those courts accept as adequate evidence, similar to that adduced in this case, showing that the job involves law enforcement activities requiring physical rigor and fitness for safe performance. The Third Circuit, on the contrary, interprets a BFOQ defense based on health and fitness to require a showing that the employer maintains minimum standards throughout the workforce:
While the ADEA does not require perfect monitoring and maintenance of a particular qualification at all age levels, it does bar selective enforcement of health and fitness requirements.... Until minimum standards are developed, implemented and enforced, the PSP [Pennsylvania State Police] cannot justify its mandatory retirement law by relying on good health and physical conditioning as BFOQs reasonably necessary to PSP business. 14
Our decision in EEOC v. Mississippi, 15 issued after the district court's decision in this case, borrows from the Third Circuit's analysis. In that case, conservation officers in the Department of Wildlife Conservation challenged the State's policy of retiring them at age 60. 16 State law required these officers to attend the Law Enforcement Academy and charged them with enforcement of the fish and game laws as well as the laws proscribing cattle theft. 17 Moreover, the State argued to this court that conservation officers faced life-threatening situations in the pursuit and arrest of armed, illegal...
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E.E.O.C. v. Mississippi State Tax Com'n, 87-4659
...was an occupational qualification in the absence of any minimum standards or any attempt to monitor employees' health and fitness. 848 F.2d 526, 530. The en banc court declines to hold that physical fitness can never be held to be reasonably necessary for job performance unless the employer......
- E.E.O.C. v. Mississippi State Tax Com'n