Johnson v. Mayor and City Council of Baltimore Equal Employment Opportunity Commission v. Mayor and City Council of Baltimore

• Decision Date: 17 June 1985
• Docket Number: Nos. 84-518,84-710,s. 84-518
• Citation: 472 U.S. 353,105 S.Ct. 2717,86 L.Ed.2d 286
• Parties: Robert W. JOHNSON, et al., Petitioners, v. MAYOR AND CITY COUNCIL OF BALTIMORE et al. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner, v. MAYOR AND CITY COUNCIL OF BALTIMORE et al
• Court: U.S. Supreme Court

472 U.S. 353

105 S.Ct. 2717

86 L.Ed.2d 286

Robert W. JOHNSON, et al., Petitioners,

v MAYOR AND CITY COUNCIL OF BALTIMORE et al.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner,

v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.

Nos. 84-518, 84-710.

Argued April 22, 1985.

Decided June 17, 1985.

Syllabus

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits employers from discriminating on the basis of age against employees who are between the ages of 40 and 70 by, inter alia, discharging them or requiring them to retire involuntarily, except when age is shown to be "a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business." When the ADEA was amended in 1974 and 1978 to extend it to federal employees and to eliminate substantially all federal age limits on employment, the provision of the federal civil service statute, 5 U.S.C. § 8335(b), which requires most federal firefighters to retire at age 55, was left untouched. Petitioners, firefighters employed by the city of Baltimore, brought an action in Federal District Court, challenging, on the ground that they violated the ADEA, the city's code provisions that establish for firefighters a mandatory retirement age lower than 70. The city defended on the ground that age is a BFOQ for the position of firefighters. After a trial, the District Court, holding that the city had failed to produce sufficient evidence to make out this defense, invalidated the challenged provisions. The Court of Appeals reversed. Relying on EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18, in which this Court observed that the ADEA tests a State's discretion to impose a mandatory retirement age "against a reasonable federal standard," the Court of Appeals held that 5 U.S.C. § 8335(b) furnished such a standard, that, since Congress had selected age 55 as the retirement age for most federal firefighters, as a matter of law the same age constitutes a BFOQ for all state and local firefighters as well, and that therefore the city was not required to make any factual showing as to the need for the mandatory retirement age.

Held: Title 5 U.S.C. § 8335(b) does not, as a matter of law, establish that age 55 is a BFOQ for nonfederal firefighters within the meaning of the ADEA. Pp. 360-371.

(a) The "reasonable federal standard" to which this Court referred in EEOC v. Wyoming, supra, is the standard supplied by the ADEA itself, i.e., whether the age limit is a BFOQ. Nothing in the ADEA or the decision in EEOC v. Wyoming warrants the conclusion that a federal rule, not found in the ADEA, and by its terms applicable only to federal employees, necessarily authorizes a state or local government to maintain a mandatory retirement age as a matter of law. The mere fact that some federal firefighters are required to cease work at age 55 does not provide an absolute defense to an ADEA action challenging state and local age limits for firefighters. Pp. 360-362.

(b) Neither the language nor the legislative history of the civil service provision indicates that the retirement age for federal firefighters is based on a congressional determination that age 55 is a BFOQ for firefighters within the meaning of the ADEA. Instead, the provision represents nothing more than a congressional decision that federal firefighters must retire, as a general matter, at age 55. The history of § 8335(b) makes clear that the decision to retire certain federal employees, including firefighters, at an early age was not based on actual occupational qualifications for the covered employment, but rather, in significant part, on an attempt to maintain the image of a youthful work force by making early retirement attractive and financially rewarding. Accordingly, it would be error for a court, faced with a challenge under the ADEA to an age limit for nonfederal firefighters, to give any weight to § 8335(b). Pp. 362-370.

731 F.2d 209 (CA 4 1984), reversed and remanded.

Sol. Gen. Rex E. Lee, Washington, D.C., for petitioners in both cases.

L. William Gawlik, Baltimore, Md., for respondents in both cases.

Justice MARSHALL delivered the opinion of the Court.

The issue is whether a federal statute generally requiring federal firefighters to retire at age 55 establishes, as a matter of law, that age 55 is a bona fide occupational qualification (BFOQ) for nonfederal firefighters within the meaning of the Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq. (ADEA or Act).

I

Congress enacted the ADEA "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). To this end, the Act today prohibits virtually all employers from discriminating on the basis of age against employees or applicants for employment who are between the ages of 40 and 70 by, for example, discharging them or requiring them to retire involuntarily. §§ 623(a), 631(a). The Act contains one general exception to this prohibition: when age is shown to be "a bona fide occupational qualification reasonably necessary to the normal operation of the par- ticular business," § 623(f)(1), an employee may be terminated on the basis of his age before reaching age 70.¹

Since enacting the ADEA in 1967, Congress has amended its provisions several times. The ADEA originally did not apply to the Federal Government, to the States or their political subdivisions, or to employers with fewer than 25 employees, but in 1974 Congress extended coverage to Federal, State, and local Governments, and to employers with at least 20 workers. §§ 630(b), 633a.² Also, while the Act initially covered employees only up to age 65, in 1978 Congress raised the maximum age to 70 for state, local, and private employees and eliminated the cap entirely for federal workers. Age Discrimination in Employment Act Amendments of 1978, § 3(a), 92 Stat. 189, 29 U.S.C. § 631(b) (hereinafter 1978 Amendments).

The 1978 Amendments eliminated substantially all federal age limits on employment, but they left untouched several mandatory retirement provisions of the federal civil service statute applicable to specific federal occupations, including firefighters, air traffic controllers, and law enforcement officers, as well as mandatory retirement provisions applicable to the Foreign Service and the Central Intelligence Agency. Among the provisions that were left unaffected by the 1978 Amendments is 5 U.S.C. § 8335(b), which requires certain federal law enforcement officers and firefighters to retire at age 55 if they have sufficient years of service to qualify for a pension and their agency does not find that it is in the public interest to continue their employment.³ As a result, most federal firefighters must retire at age 55, despite the provisions of the ADEA. At issue here is the effect of this age limit for federal firefighters on the ADEA's application to state and local firefighters.

Six firefighters brought this action in the District Court for the District of Maryland challenging the city of Baltimore's municipal code provisions that establish for firefighters and police personnel a mandatory retirement age lower than 70. They claimed that these provisions violate the ADEA. The Equal Employment Opportunity Commission (EEOC) subsequently intervened to support the six plaintiffs.

Until 1962, all Baltimore employees, including firefighters, were covered by the Employees Retirement System (ERS), which provided for mandatory retirement at age 70. App. 4. In 1962, the city established the Fire and Police Employee Retirement System (FPERS), which generally requires that all firefighting personnel below the rank of lieutenant retire at age 55. See FPERS, Baltimore City Code, Art. 22, § 34(a)1-4 (1983); App. 3. Lieutenants and other higher ranking officers may work until age 65. Ibid. When the FPERS was implemented in 1962, special provision was made for personnel hired before 1962, who were given the option of remaining in the ERS or transferring to the FPERS under a special grandfather provision. Firefighters hired before 1962 who chose to remain in the ERS may continue to work until age 70 even today. See 515 F.Supp. 1287, 1297, n. 10 (Md.1981). Firefighters hired before 1962 who are covered by the newer FPERS may work until age 60 or, in some limited circumstances, until age 65. Ibid. The plaintiffs here include five firefighters covered by this grandfather clause who are subject to retirement at age 60, and one firefighter hired after 1962, who is subject to retirement at age 55.

The city ⁴ asserted as an affirmative defense that age is a BFOQ for the position of firefighter and that the mandatory retirement provision therefore was permissible under the ADEA. After a 6-day bench trial, at which each side presented expert and nonexpert testimony on the validity of the BFOQ defense, the District Court held that the city had failed to produce sufficient evidence to make out its BFOQ defense.⁵ The court considered both the particular condi- tion of the plaintiff firefighters and the general operation of the Baltimore Fire Department, noting that "historically Baltimore firemen have always worked past [age 60] and even up to age seventy," 515 F.Supp., at 1297. It then applied the two-pronged test developed by the Court of Appeals for the Fifth Circuit in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (1976), and adopted by the Fourth Circuit.⁶ The trial court concluded that the city had shown neither that "there is a factual basis for [it] to believe that all or substantially all Baltimore City firefighters between the ages of sixty and sixty-five, other than officers, would be unable to perform their job safely and efficiently," 515 F.Supp., at 1296, nor that "it is impossible or...