EEOC v. Com. of Pa.

Decision Date24 October 1984
Docket NumberCiv. A. No. 83-0321.
Citation596 F. Supp. 1333
PartiesEQUAL EMPLOYMENT OPPORTUNITY COMMISSION; and Lieutenant Otto J. Binker, Plaintiffs, v. COMMONWEALTH OF PENNSYLVANIA; Pennsylvania State Police; and Daniel F. Dunn, Commissioner of the Pennsylvania State Police, Defendants.
CourtU.S. District Court — Middle District of Pennsylvania


Robert P. Casey, Dilworth, Paxson, Kalish & Kauffman, Scranton, Pa., John L. Heaton, Dilworth, Paxson, Kalish & Kauffman, Harrisburg, Pa., for plaintiffs.

Reginald L. Sydnor, Susan DeLarm, Philadelphia, Pa., and Barbara L. Kosik, Asst. U.S. Atty., Harrisburg, Pa., for plaintiff E.E.O.C.

Francis X. O'Brien, Jr., Pa. State Police, Joseph S. Rengert, Pa. State Police, Harrisburg, Pa., for defendants.


HERMAN, District Judge.


Pennsylvania law currently provides that any member of the Pennsylvania State Police, regardless of rank, who reaches the age of sixty, must resign from the force,1 unless at that age he has attained less than twenty years of service. 71 P.S. § 65(d) (Purdon's Supp.1984-85). The Equal Employment Opportunity Commission (EEOC) and various State Police officers have attacked the validity of this law as a violation of the federal Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634.2 The Commonwealth has countered that the mandatory retirement age is a bona fide occupation qualification reasonably necessary to the operation of the Pennsylvania State Police. 29 U.S.C. § 623(f)(1).

On March 11, 1983, we granted a temporary restraining order enjoining the State Police from mandatorily retiring individuals who reached the age of sixty. On June 23, 1983, following eight days of testimony, we granted a preliminary injunction in favor of Plaintiffs and continued to enjoin enforcement of the mandatory retirement age. Thereafter, further hearings and oral arguments were held to determine if a permanent injunction should be entered. The issue is ripe for decision.


Before proceeding, we must address Defendants' motion to dismiss the EEOC's complaint pursuant to Fed.R.Civ.P. 12(b)(6). Defendants argue that the EEOC is without authority to maintain the present action to enforce the ADEA, citing Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983).

In Chadha, the United States Supreme Court struck down the legislative veto provision contained in the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1). This provision permitted either branch of Congress, by resolution, to invalidate the decision of the Executive Branch in permitting a deportable alien to remain in the United States. The legislative veto was held unconstitutional as violating the doctrine of separation of powers through misapplication of legislative power and procedure.

In their brief in support of their motion to dismiss, Defendants observed that the Reorganization Plan No. 1 of 1978, 92 Stat. 3781, which transferred the authority to enforce the ADEA from the Secretary of Labor to the EEOC, was enacted pursuant to the Reorganization Act of 1977, 5 U.S.C. § 901. The 1977 Reorganization Act permitted the Executive Branch to transfer enforcement authority by either House of Congress vetoing the reorganization plan. Defendants persuasively argue, thus, that the EEOC's authority to enforce the ADEA is void due to the violation of the bicameralism and presentment requirements of the Constitution. See E.E.O.C. v. Allstate Insurance Co., 570 F.Supp. 1224 (S.D.Miss. 1983), appeal docketed, No. 83-4652 (5th Cir. October 19, 1983).

While the legislative veto provision in the 1977 Reorganization Act may be invalid under Chadha, we find that the EEOC continues to have authority to enforce the ADEA. We believe the legislative veto provision is severable from the remainder of the 1977 Reorganization Act and that Congress has subsequently ratified the Reorganization Plan No. 1 of 1978. Moreover, we do not believe the Chadha decision should be applied retroactively to invalidate the transfer of enforcement authority. Retroactive application would create chaos. In support of our position, we rely upon the following cases and the analyses contained therein: E.E.O.C. v. Hernando Bank, Inc., 724 F.2d 1188 (5th Cir.1984); Muller Optical Co. v. E.E.O.C., 574 F.Supp. 946 (W.D.Tenn.1983), appeal docketed, No. 83-5889 (6th Cir. Nov. 29, 1983); E.E.O.C. v. International Mill Service, Inc., No. 83-0749 (E.D.Pa. Feb. 22, 1984); E.E.O.C. v. State of New York, 590 F.Supp. 37 (N.D.N.Y.1984); E.E.O.C. v. Chrysler Corp., 595 F.Supp. 344 (E.D.Mich. 1984); E.E.O.C. v. El Paso Natural Gas Co., No. EP-83-CA-108, (W.D.Tex. Jan. 16, 1984); E.E.O.C. v. CBS, Inc., No. 81-Civ.-2871-JES (S.D.N.Y. Jan. 13, 1984); E.E.O.C. v. Pan American World Airways, 576 F.Supp. 1530 (S.D.N.Y.1984); E.E.O.C. v. City of Memphis, 581 F.Supp. 179 (W.D.Tenn.1983); E.E.O.C. v. Cudahy Foods Co., 588 F.Supp. 13 (W.D.Wash. 1983); E.E.O.C. v. Jackson County, Missouri, 33 Fair Empl.Prac.Cas. 963 (BNA) (W.D.Mo. Dec. 13, 1983).3


Under the ADEA, it is unlawful for any employer to discharge or to discriminate against any individual within the protected age class of forty to seventy because of that individual's age.4 29 U.S.C. §§ 623(a)(1), 631. Nevertheless, such otherwise prohibited action is lawful "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, ...." Id. § 623(f)(1). The ADEA's provisions apply equally to private employers and to the State, its subdivisions, and its agencies. Id. § 630(b). See also Equal Employment Opportunity Commission v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983) (extension of ADEA to encompass state and local governments held constitutional).

Congress enacted the ADEA with the purpose "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; and to help employers and workers find ways of meeting problems arising from the impact of age on employment." 29 U.S.C. § 621(b); Usery v. Tamiami Trial Tours, Inc., 531 F.2d 224, 229 (5th Cir.1976). In other words, the ADEA permits capable older workers to decide when to retire if they are physically and psychologically able to perform their jobs satisfactorily. E.E.O.C. v. City of Altoona, Pennsylvania, 723 F.2d 4, 6 (3d Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 2386, 81 L.Ed.2d 344 (1984).

"The ADEA is remedial and humanitarian legislation which should be liberally interpreted to effectuate the congressional purpose of ending age discrimination in employment." Bonham v. Dresser Industries, Inc., 569 F.2d 187, 193 (3d Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1979); Beck v. Borough of Manheim, 505 F.Supp. 923, 925 (E.D.Pa.1981). To effectuate this purpose and to stop the very age stereotyping that the Act was designed to prevent, the bona fide occupational qualification (BFOQ) exception to the ADEA's prohibition against age discrimination is to be strictly and narrowly construed, Orzel v. City of Wauwatosa Fire Department, 697 F.2d 743, 748 (7th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 484, 78 L.Ed.2d 680 (1983); E.E.O.C. v. County of Santa Barbara, 666 F.2d 373, 376 (9th Cir.1982); Smallwood v. United Air Lines, Inc., 661 F.2d 303, 307 (4th Cir.1981), cert. denied, 456 U.S. 1007, 102 S.Ct. 2299, 73 L.Ed.2d 1302 (1982); Tamiami, 531 F.2d at 230. Moreover, the court should examine only the particular facts of the case before it. County of Santa Barbara, 666 F.2d 373; Stewart v. Smith, 673 F.2d 485, 491 n. 26 (D.C.Cir. 1982); Tamiami Trial Tours, 531 F.2d at 230; 29 C.F.R. § 860.102(b) (1983).5

Defendants assert that the standard we should apply in considering the BFOQ defense should be one of reasonableness: whether the retirement age is a reasonable necessity to the normal operation of the particular business. See Defendant's Post-Trial Brief, at 1-4. Defendants, however, merely parrot the statute, ignoring or misconstruing the overwhelming case law that enunciates a more strict, two-prong standard of review. See Heiar v. Crawford County Wisconsin, 746 F.2d 1190 (7th Cir. Aug. 20, 1984) (rejecting employer's argument that its age policy should be upheld "as long as that policy is `not the result of an arbitrary belief lacking in objective reason or rationale'...."). Without doubt, Congress, in making a policy decision to prevent age discrimination, has created a standard that is not as deferential as that applied in equal protection analysis. Orzel v. City of Wauwatosa Fire Dept., 697 F.2d 743, 749 (7th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 484, 78 L.Ed.2d 680 (1983); E.E.O.C. v. County of Santa Barbara, 666 F.2d 373, 376 n. 8 (9th Cir.1982). See also Tuohy v. Ford Motor Co., 675 F.2d 842 (6th Cir.1982) (rejecting test of whether mandatory retirement age is reasonable); Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977) (minimal increase in harm standard rejected).

Accordingly, in determining whether a BFOQ exists, the employer must establish (1) that the age limit he invokes is reasonably necessary to the essence of the business, and (2) that he has reasonable cause, i.e., a factual basis, for believing either (a) that all or substantially all individuals within the excluded group are unable to perform their job duties safely and efficiently, or (b) that it is impossible or impractical to determine the disqualifying trait on an individual basis. E.E.O.C. v. County of Allegheny, 705 F.2d 679 (3d Cir.1983); E.E.O.C. v. University of Texas Health Science Center, 710 F.2d 1091 (5th Cir.1983); Orzel v. City of Wauwatosa Fire Dept., 697 F.2d 743 (7th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 484, 78 L.Ed.2d 680 (1983); Tuohy v. Ford Motor Co., 675 F.2d 842 (6th Cir.1982); E.E.O.C. v. City of St. Paul, 671 F.2d 1162 (...

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