McCann v. City of Chicago

• Citation: 968 F.2d 635
• Decision Date: 08 July 1992
• Docket Number: 91-3267,Nos. 91-3261,s. 91-3261
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 391, 59 Empl. Prac. Dec. P 41,669 William A. McCANN, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 635

968 F.2d 635

59 Fair Empl.Prac.Cas. (BNA) 391,

59 Empl. Prac. Dec. P 41,669

William A. McCANN, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellees.

Nos. 91-3261, 91-3267.

United States Court of Appeals Seventh Circuit.

Argued May 29, 1992.

Decided July 8, 1992.

Mark L. LeFevour (argued), Callahan, Fitzpatrick, Lakoma & McGlynn, Oak Brook, Ill., John L. Gabbins, Michael L. Blumenthal, Blumenthal & Associates, Chicago, Ill., for plaintiffs-appellants.

Lawrence Rosenthal, Deputy Corp. Counsel, Office of the Corp. Counsel, Mardell Nereim, Kelly R. Welsh, Asst. Corp. Counsel, Benna R. Solomon, Joan Flynn, Asst. Corp. Counsel (argued), Office of the Corp. Counsel, Appeals Div., Chicago, Ill., for defendant-appellee City of Chicago.

Michael G. Cleveland, Vedder, Price, Kaufman & Kammholz, Lawrence Rosenthal, Deputy Corp. Counsel, Office of the Corp. Counsel, Mardell Nereim, Kelly R. Welsh, Asst. Corp. Counsel, Benna R. Solomon, Joan Flynn, Asst. Corp. Counsel, Office of Corp. Counsel, Appeals Div., Chicago, Ill., for defendant-appellee Policeman's Annuity & Ben. Fund of the City of Chicago.

Barbara Smith and Jennifer Naber, Asst. Corp. Counsel, Office of the Corp. Counsel, Kelly R. Welsh, Asst. Corp. Counsel, Joan Flynn, Asst. Corp. Counsel (argued), Office of the Corp. Counsel, Appeals Div., Chicago, Ill., for defendant-appellee Leroy Martin.

Before CUDAHY, EASTERBROOK, and RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge.

For many years, Chicago retired members of its police force at 63. That changed when the Supreme Court held, in EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), that the Age Discrimination in Employment Act applies to state law enforcement officials. Chicago's retirement age rose from 63 to 70, and city halls throughout the nation rose in protest. Eventually they procured a change in the law.

In 1986 Congress amended the ADEA to permit state and local governments to restore the mandatory retirement ages that had been in place on March 3, 1983, the day after the Supreme Court handed down EEOC v. Wyoming:

It shall not be unlawful for an employer which is a State [or] a political subdivision of a State ... to discharge any individual because of such individual's age if such action is taken (1) with respect to the employment of an individual as a firefighter or as a law enforcement officer and the individual has attained the age of hiring or retirement in effect under applicable State or local law on March 3, 1983, and (2) pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter.

29 U.S.C. § 623(j). This legislation shows the signs of compromise. Any law enforcement officer covered by a collective-bargaining agreement in effect on June 30, 1986, that specified a higher retirement age could stick around until that age, "the termination of such collective bargaining agreement or January 1, 1990, whichever occurs first." Section 7 of Pub.L. 99-592, 100 Stat. 3344-45 (1986). Section 623(j) faces a sunset in 1993.

Section 623(j) moved the locus of the battle from Washington, D.C., to state and city governments. Illinois enacted a statute permitting cities to restore the rules that were in effect on March 3, 1983. Ill.Rev.Stat. ch. 68 p 2-104(A)(7). In January 1988, after still another political contest, Chicago enacted an ordinance taking advantage of its renewed control over retirement ages. It reinstituted the mandatory retirement age of 63 for all members of the police force. Early in 1986, however, Chicago and the Fraternal Order of Police reached a collective bargaining agreement covering all officers below the rank of sergeant. This agreement barred mandatory retirement before 70. Under the proviso to the 1986 amendment, Chicago could not reduce the retirement age of these officers until January 1, 1990. Thus during 1988 and 1989 only sergeants and higher ranks had to leave at age 63. In this class action the police officers contend that the difference in retirement ages for these two years violates both the ADEA and the equal protection clause of the fourteenth amendment. The district court disagreed and granted summary judgment to the defendants. Plaintiffs have abandoned in this court any argument that the restoration of a retirement age that predated the ADEA is a "subterfuge" for purposes of § 623(j)(2). See Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158, 168, 109 S.Ct. 2854, 2861, 106 L.Ed.2d 134 (1989); United Air Lines, Inc. v. McMann, 434 U.S. 192, 203, 98 S.Ct. 444, 450, 54 L.Ed.2d 402 (1977).

Between 1980 and 1987 the Illinois Human Rights Act, which applies to private and public employers, forbade mandatory retirement before the age of 70. Ill.Rev.Stat. ch. 68 p 2-102(A). (An amendment in 1987 apparently forbids mandatory retirement at any age.) Plaintiffs submit that the "age of ... retirement in effect under applicable State or local law on March 3, 1983" was accordingly 70. One district judge has agreed. Jirus v. Berwyn, 712 F.Supp. 672 (N.D.Ill.1989). Chicago replies that the Human Rights Act does not govern because the Illinois Municipal Code, Ill.Rev.Stat. ch. 24 p 10-1-18(c), authorizes cities to compel law enforcement officials to retire at age 63. Yet State v. Mikusch, 138 Ill.2d 242, 149 Ill.Dec. 704, 562 N.E.2d 168 (1990), casts substantial doubt on this approach, for it holds that the Human Rights Act displaces part of the state's Vehicle Code separating state vehicle investigators from office at age 60. Ill.Rev.Stat. ch. 95 1/2 p 2-115. We called for supplemental briefs after argument on the effect of Mikusch, which neither party had discussed.

Chicago contends that youth is a bona fide occupational qualification for police, permitting retirement at 63 even if the Human Rights Act applies. If this is so, however, then Chicago could have maintained its retirement system without change after EEOC v. Wyoming, for the federal statute also has a BFOQ exception. 29 U.S.C. § 623(f)(1). In both federal and state law, however, this defense "is written narrowly, and [the Supreme] Court has read it narrowly." United Auto Workers v. Johnson Controls, Inc., --- U.S. ----, 111 S.Ct. 1196, 1204, 113 L.Ed.2d 158 (1991). In its current state, the record does not support summary judgment for the City on this ground. So we must consider Chicago's alternative argument that the language of the Municipal Code, in conjunction with another statute providing that no state law enacted after January 12, 1977, regulates home-rule jurisdictions (of which Chicago is one) unless the state legislature expressly so provides, Ill.Rev.Stat. ch. 1 p 1106, permits the City to disregard p 2-102(A).

The Municipal Code does not set 63 as a mandatory age of retirement. Instead it delegates to municipalities the power to set a retirement age, provided they choose 63 or older. The Human Rights Act does not "conflict" with delegation in the same direct way it superseded the retirement age in the Vehicle Code. Does p 2-102(A) undo the delegation of power? It does not address the question. Two considerations lead us to conclude that it does not. First is the rule of construction in p 1106 that only express impingements on home-rule jurisdictions affect cities' powers. The Human Rights Act withdraws home-rule powers concerning housing discrimination, Ill.Rev.Stat. ch. 68 p 7-108(D), but contains nothing comparable concerning age discrimination. Second is the statute Illinois enacted in 1987, Ill.Rev.Stat. ch. 68 p 2-104(A)(7), permitting cities to take advantage of § 623(j). The 1987 legislation would be hollow if the rules in force in 1983 forbade mandatory retirement earlier than 70. Chicago's ordinance restoring the mandatory retirement age of 63 therefore is consistent with the ADEA.

Age is neither a suspect classification nor otherwise a basis for requiring states to supply an enhanced justification for their laws. Gregory v. Ashcroft, --- U.S. ----, 111 S.Ct. 2395, 2406-08, 115 L.Ed.2d 410 (1991); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 441, 105 S.Ct. 3249, 3255, 87 L.Ed.2d 313 (1985); Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). After Murgia, which held that a state may compel police to retire at 50, there can be no doubt that the Constitution permits Chicago to select 63 as a cap. Plaintiffs challenge not the particular age of retirement but treating sergeants (and above) differently from patrol officers.

Chicago has a rational basis for the difference. It did what it could to set a low age for everyone, but the proviso to § 623(j) delayed its implementation for officers covered by the collective bargaining agreement. True enough, Chicago could have waited until 1990 to move the...