EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER V. MAYOR AND CITY COUNCIL OF BALTIMORE, ET AL. No. 84-710 In the Supreme Court of the United States October Term, 1984 The Solicitor General, on behalf of the United States, petitions for a writ of Certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit in this case. Petition For a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit PARTIES TO THE PROCEEDING Robert W. Johnson, August T. Stern, Jr., Thomas C. Doyle, Mitchell Paris, Robert L. Robey, and James Lee Porter were plaintiffs in the trial court and are respondents here. Hyman A. Pressman, Donald D. Pomerleau, Calhoun Bond, Edward C. Heckrotte, Sr., Charles Daugherty, Paul C. Wolman, Jr. and Curt Heinfelden are Members of the Board of Trustees of the Fire and Police Employees Retirement System of the City of Baltimore. They were defendants in the court below and have separately petitioned from the judgment below, No. 84-518. TABLE OF CONTENTS QUESTION PRESENTED PARTIES TO THE PROCEEDING Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-20a) is reported at 731 F.2d 209. The opinion of the district court (App., infra, 22a-53a) is reported at 515 F. Supp. 1287. JURISDICTION The judgment of the court of appeals was entered on April 4, 1984. A petition for rehearing was denied on June 29, 1984 (App., infra, 21a). On September 20, 1984, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including November 26, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Section 4 of the Age Discrimination in Employment Act of 1967, 29 U.S.C. 623, provides in pertinent part: (a) Employer Practices It shall be unlawful for an employer -- (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; * * * * * (f) Lawful practices; age an occupational qualification; other reasonable factors; seniority system employee benefit plans; discharge or discipline for good cause It shall not be unlawful for an employer, employment agency, or labor organization -- (1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age; (2) to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no such employee benefit plan shall excuse the failure to hire any individual, and no such seniority system or employee benefit plan shall require or permit the involuntary retirement of any individual specified by section 631(a) of this title because of the age of such individual; or (3) to discharge or otherwise discipline an individual for good cause. 5 U.S.C. 8335(b) provides: A law enforcement officer or a firefighter who is otherwise eligible for immediate retirement under section 8336(c) of this title shall be separated from the service on the last day of the month in which he becomes 55 years of age or completes 20 years of service if then over that age. The head of the agency, when in his judgment the public interest so requires, may exempt such an employee from automatic separation under this subsection until that employee becomes 60 years of age. The employing office shall notify the employee in writing of the date of separation at least 60 days in advance thereof. Action to separate the employee is not effective, without the consent of the employee, until the last day of the month in which the 60-day notice expires. QUESTION PRESENTED Whether the City of Baltimore's plan requiring involuntary retirement of its firefighters at age 55 satisfies the Age Discrimination In Employment Act, 29 U.S.C. 621 et seq., in the absence of a showing that age is a bona fide occupational qualification for the job, solely because 5 U.S.C. 8335(b) requires the retirement of federal firefighters at age 55. STATEMENT 1. Six firefighters brought this action in the United States District Court for the District of Maryland to challenge the City of Baltimore's municipal code provisions that establish an involuntary retirement age. The plaintiffs claimed that those provisions violate the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq. The Equal Employment Opportunity Commission (EEOC) subsequently intervened in support of the plaintiffs. In 1962, the City of Baltimore established the current Fire and Police Employee Retirement System (F & PERS) (Baltimore, Md., Code art 22, Sec. 34 (1983)) to cover uniformed personnel who previously had been covered by the overall retirement system for all City employees. The system generally requires all firefighters below the rank of lieutenant to retire at age 55; lieutenants may work until 65. The system makes special provision for firefighters who were hired before 1962. Such firefighters below the rank of lieutenant who are presently covered by the F & PERS system may work until age 60. App., infra, 24a-25a. In addition, a firefighter hired before 1962 who chose to remain in the preexisting retirement program for nonuniformed employees may work until age 70 (id. at 32a). The plaintiffs here include both firefighters covered by the grandfather clause subject to retirement at age 60 and one firefighter hired after 1962 who is subject to retirement at age 55 (id. at 25a-26a). Involuntary retirement prior to age 70 is specifically prohibited by Section 4(f)(2) of the ADEA, 29 U.S.C. 623(f)(2), but the defendants (the City) asserted as an affirmative defense that age is a bona fide occupational qualification (BFOQ) for the firefighter position within the meaning of Section 4(f)(1) of the ADEA, 29 U.S.C. 623(f)(1). Following a full trial at which most of the evidence focused on the validity of the BFOQ defense, the district court held that the City had failed to show that age was a BFOQ for firefighters. Applying the test developed in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 236 (5th Cir. 1976), and later adopted by the Fourth Circuit (see App., infra, 36a-37a), the court found that the City had not carried its burden of proving: (1) that its retirement policy was reasonably necessary to the essence of its business of operating a fire department; and (2) that there was a factual basis for believing that either all or substantially all persons over the retirement ages could not perform safely and efficiently, or that it was impossible or impractical to deal with its employees on the basis of individual ability. The district court supported this conclusion with detailed factual findings that the City's firefighters could safely and efficiently perform their jobs beyond age 60 and that the City could use a testing program to identify any individuals unable to perform adequately. Id. at 38a-49a. /1/ 2. A divided panel of the court of appeals reversed (App., infra, 1a-20a). /2/ The court did not take issue with the district court's factual findings that the City had failed to prove that age was a BFOQ for firefighters, /3/ but the court held that the City was entitled to the BFOQ defense as a matter of law. The court of appeals stated that in EEOC v. Wyoming, 460 U.S. 226, 240 (1983), this Court had characterized the BFOQ exception as not overriding entirely a state's discretion to impose a mandatory retirement age, but rather merely testing that discretion "against a reasonable federal standard" (App., infra, 5a-6a). The court of appeals found such a federal standard in a federal civil service statute, 5 U.S.C. 8335(b), which requires 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. The court of appeals held that since Congress had selected age 55 as the retirement date for most federal firefighters, it followed that Congress recognized age 55 as a BFOQ for firefighters. Hence, the court concluded, age 55 necessarily constituted a BFOQ for all state and local firefighters as well, and therefore in this case the City was not required to make any showing at trial as to the need for a mandatory retirement age of 55. App., infra, 6a-8a. The court added that its statutory interpretation establishing age as a per se BFOQ for firefighters was "compelled further" by the desire to avoid "serious constitutional questions" (App., infra, 9a). The court identified three such questions: (1) whether Section 5 of the Fourteenth Amendment authorized the extension of the ADEA to state and local governments (App., infra, 8a-10a); (2) whether the Commerce Clause authorized the application of the ADEA to Baltimore firefighters (id. at 11a-12a); and (3) whether judicial factfinding concerning the validity of age as a BFOQ would violate the separation of powers doctrine where "Congress has, in 5 U.S.C. Sec. 8335(b), adopted a legislative answer" to that question (id. at 13a). Chief Judge Winter dissented (App., infra, 16a-20a). He rejected the majority's conclusion that 5 U.S.C. 8335(b) demonstrated a congressional determination that age 55 is a BFOQ for federal firefighters, stating that the language and legislative history of that statute "belie() the existence of congressional intent * * * to fix age fifty-five as a BFOQ" (App., infra, 18a). Moreover, Judge Winter stated, whether or not age 55 was established as a BFOQ for federal firefighters is irrelevant to interpreting the ADEA. He pointed out that this Court had already rejected in EEOC v. Wyoming, supra, the argument that Congress's treatment of federal civil service employees could construct the broad requirements of the ADEA (App., infra, 19a-20a). Judge Winter concluded that "the fact that Congress may require some federal firefighters to retire at age fifty-five does not excuse Baltimore from providing the facts necessary to satisfy" the BFOQ defense (id. at 20a). REASONS FOR GRANTING THE PETITION The decision of the court of appeals seriously undermines effectuation of the purposes and policies of the ADEA with respect to a significant segment of public employees by frustrating Congress's intent that involuntary retirement ages prior to age 70 not be established without a specific, individualized showing of a bona fide necessity for the age requirement. The decision also leads to inconsistent interpretation of the ADEA nationwide because it directly conflicts with decisions in other circuits. Moreover, the interpretation below is contrary to both the language and the legislative history of the statute, and, indeed, rests on a theory that has already been rejected by this Court. Accordingly, this Court should grant certiorari to restore the heretofore uniform -- and correct -- interpretation of the ADEA and the statutory rights of numerous public employees intended to be protected by the statute. 1. a. In EEOC v. Wyoming, supra, this Court rejected the assumption that lies at the heart of the decision below, namely, that the ADEA is to be interpreted by resort to Congress's treatment of federal civil service employees under other statutes. The Court held in Wyoming that the ADEA could be applied constitutionally to employment practices of state and local governments (in that case, to the job of game warden) because it did not interfere with "integral government functions." The Court explained that the ADEA did not require employers to retain unfit employees, but at most required them to make individualized judgments concerning fitness for duty. 460 U.S. at 239. The Court added that the BFOQ defense provides an adequate safeguard against impermissible federal interference, stating (id. at 240 (emphasis in original)): Perhaps more important, appellees remain free under the ADEA to continue to do precisely what they are doing now, if they can demonstrate that age is a "bona fide occupational qualification" for the job of game warden. * * * Thus, * * * even the State's discretion to achieve its goals in the way it thinks best is not being overridden entirely, but is merely being tested against a reasonable federal standard. Accordingly, the Court remanded the case, giving the State of Wyoming the opportunity to prove at trial that the age limit was a BFOQ for the job of game warden. The court of appeals completely misunderstood the import of this Court's discussion of the BFOQ defense. This Court stated simply that the State could maintain a mandatory retirement age system if that system satisfied a "reasonable federal standard," i.e., if the State demonstrated that age was a BFOQ within the meaning of Section 4(f)(1). The federal standard referred to by this Court is nothing more or less than the BFOQ standard established in the ADEA. The court of appeals, however, erroneously interpreted Wyoming to mean that it should search other federal statutes to find a BFOQ standard for individual occupations. This type of search, which in this case settled on 5 U.S.C. 8335(b), substitutes chaos for the uniform standard set forth by Congress in the ADEA. The "reasonable federal standard" to be used in applying the ADEA is that found in the ADEA itself -- whether "age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business" (29 U.S.C. 623(f)(1)) -- not in other federal statutes. Indeed, this Court in Wyoming explicitly repudiated using the treatment of federal employees as a means of divining Congress's intent with respect to the ADEA. The State argued in Wyoming that the statutes imposing mandatory retirement on federal civil service workers, notably 5 U.S.C. 8335(b), demonstrated that there was not a sufficient federal interest in the ADEA to satisfy the constitutional standards for imposing different restrictions on state and local governments. The Court rejected that suggestion, explaining (460 U.S. at 243 n.17): "Once Congress has asserted a federal interest, and once it has asserted the strength of that interest, we have no warrant for reading into the ebbs and flows of political decisionmaking a conclusion that Congress was insincere in that declaration * * * ." In other words, the ADEA stands on its own; its terms are not to be restricted by examining other federal statutes. Thus, as Judge Winter correctly stated in his dissent (App., infra, 20a), Wyoming completely undercuts the linchpin of the decision below, namely, the notion that a preexisting statute relating solely to federal employees alters the definition of the BFOQ defense in the ADEA itself. /4/ b. The line drawn by this Court separating the treatment of federal workers from the standards established in the ADEA is strongly supported by the legislative history of the ADEA. The decision to maintain mandatory retirement provisions for certain federal employees clearly did not reflect a congressional finding that mandatory retirement was appropriate for non-federal employees in similar occupations. Rather, retention of the statutory exemptions for these federal employees resulted from an agreement to provide the congressional committees with jurisdiction over the retirement programs at issue the opportunity to review the mandatory retirement provisions. During consideration of the ADEA amendments of 1978, which first made mandatory retirement unlawful, Representative Spellman offered an amendment, on behalf of the House Post Office and Civil Service Committee, to retain mandatory retirement provisions for certain federal employees, including law enforcement officers. In introducing the amendment, Representative Spellman stated (123 Cong. Rec. 30556 (1977), reprinted in Office of the General Counsel, EEOC, Legislative History of the Age Discrimination in Employment Act 415 (1981) (hereinafter cited as Leg. Hist. ADEA): I hasten to point out that this amendment does not indicate opposition perse (sic) to elimination of mandatory retirement for air traffic controllers, firefighters, and other specific occupations. However, since most of these mandatory retirement provisions are part of liberalized retirement programs, our committee believes that such provisions should not be repealed until the individual retirement programs have been reexamined. The amendment will provide the opportunity for review of these retirement programs and their mandatory retirement provisions. Representative Hawkins, Chairman of the Subcommittee on Employment Opportunities of the House Committee on Education and Labor, stated in agreeing to the amendment (ibid.): By this action we are not reaffirming the mandatory retirement ages in the statutes applicable to these positions. The sole purpose of this agreement is to afford the committees the opportunity to review their statutes. See also Vance v. Bradley, 440 U.S. 93, 97 n.12 (1979). Thus, Congress plainly did not intend that retirement provisions for federal employees be used as a guide to interpreting the ADEA; to the contrary, it recognized that those civil service provisions might well be at odds with the ADEA, and it determined to reconsider whether they should be perpetuated. /5/ In short, retention of the federal retirement provisions resulted from congressional caution and the division of jurisdiction between House committees, not from any factual determination that the standards for a BFOQ had been met. /6/ c. Moreover, the decision of the court of appeals is flatly inconsistent with the fundamental policies of the ADEA. Section 2(b) of the Act states that its purpose is "to promote employment of older persons based on their ability rather than age." 29 U.S.C. 621(b). The Act was designed to permit older employees to be judged on the basis of their actual individual abilities, rather than stereotypes. As stated in the House report on the ADEA: The case-by-case basis should serve as the underlying rule in the administration of the legislation. Too many different types of situations in employment occur for the strict application of general prohibitions and provisions. H.R. Rep. 805, 90th Cong., 1st Sess. 7 (1967); Leg. Hist. ADEA 80. Similarly, the House report on the 1978 amendments stated with respect to BFOQ's and employment in hazardous occupations: In most cases, more important than the possible decline of capabilities experienced with age is the fact that this decline varies with individuals as to age and intensity, varies in importance (as) to particular jobs, and may be compensated for by other attributes which often increase with age, for example, experience and judgment. H.R. Rep. 95-527, 95th Cong., 1st Sess. Pt. 1 at 12 (1977); Leg. Hist. ADEA 372. While the BFOQ defense permits the use of a mandatory retirement age in certain cases, it does not alter the congressional mandate for fact-based decision making. The employer must show a "factual foundation" to establish a BFOQ in order correctly to balance the employee's right to fair treatment against the employer's interest in safety and efficiency. See EEOC v. County of Santa Barbara, 666 F.2d 373, 376 (9th Cir. 1982). The district court found here that the City failed to demonstrate such a factual foundation, and those findings are unchallenged. The court of appeals' holding that these factual findings are irrelevant, which is based on a plainly erroneous view of congressional intent derived from another statute, seriously undermines the overriding policy of the ADEA to eliminate the use of age limits to deny employees the right to have employment determinations made on the basis of facts and individual abilities. /7/ 2. The decision below also creates a clear conflict in the courts of appeals. In Orzel v. City of Wauwatosa Fire Dep't, 697 F.2d 743 (7th Cir.), cert. denied, No. 83-205 (Nov. 28, 1983), an assistant fire chief challenged his involuntary retirement at age 55, the mandatory retirement age for all "protective service" employees. The City raised the exact BFOQ defense relied upon below, arguing that Congress could not have intended to prohibit state and municipal employers from retiring local firefighters at age 55 while, at the same time, authorizing compulsory retirement of federal firefighters at the same age. 697 F.2d at 748-749. The Seventh Circuit flatly rejected this argument, explaining that Congress's decision that "age 55 is an appropriate retirement age for one group of firefighters does not automatically establish that the same retirement age is a valid BFOQ, under * * * the ADEA, for a wholly different group of employees." Id. at 749. The court held that, despite the existence of 5 U.S.C. 8335(b), the City could establish its BFOQ defense only by means of "objective and credible evidence" at trial. 697 F.2d at 750. See also Heiar v. Crawford County, No. 83-1872 (7th Cir. Aug. 20, 1984), slip op. 12 (noting and rejecting the decision below). The decision in Orzel accords with the prevailing view on this issue. In EEOC v. County of Los Angeles, 706 F.2d 1039 (9th Cir. 1983), cert, denied, No. 83-332 (Jan. 16, 1984), the county defined its maximum hiring age of 35 for helicopter pilots and deputy sheriffs as a BFOQ, arguing that restrictions authorized for certain federal occupations by 5 U.S.C. 3307(d) should apply equally to similar state and local occupations. The Ninth Circuit disagreed, finding that this argument had been considered and rejected in EEOC v. Wyoming, 460 U.S. at 243 n.17. 706 F.2d at 1041-1042. In Tuohy v. Ford Motor Co., 675 F.2d 842 (6th Cir. 1982), the court ruled that the existence of an FAA regulation establishing age 59 as the maximum for commercial airline pilots did not establish that age as a BFOQ for private pilot employees not covered by the regulation. See also Mahoney v. Trabucco, 738 F.2d 35, 41 (1st Cir. 1984) (noting that Congress need not adhere to ADEA standards in setting mandatory retirement ages for federal personnel). And other courts have specifically rejected the contention that age is a per se BFOQ for firefighters, without specifically addressing the relevance of the federal statute. See EEOC v. City of St. Paul, 671 F.2d 1162, 1166-1167 (8th Cir. 1982); Aaron v. Davis, 414 F. Supp. 453, 460-463 (E.D. Ark. 1976). Thus, the decision below creates a situation in which employees protected by the ADEA will be subjected to disparate treatment depending on their place of employment. Employees in most circuits will retain the protections established for them in the ADEA and will be entitled to have their fitness to work be determined on a case-by-case basis unless an employer can demonstrate with evidence that age is a BFOQ for a job. However, firefighters and law enforcement personnel throughout the Fourth Circuit will be subject to the imposition of arbitrary age limits without any showing that the rigid limits are necessary. In view of this inequality in treatment of large numbers of persons and the error of the decision below, review by this Court is warranted. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. Rex E. Lee Solicitor General Alan I. Horowitz Assistant to the Solicitor General Johnny J. Butler General Counsel (Acting) Philip B. Sklover Associate General Counsel Jeffrey C. Bannon Attorney Equal Employment Opportunity Commission November 1984 /1/ The court also rejected the City's contentions that application of the ADEA to it was unconstitutional (App., infra, 29a-31a) and that the plaintiffs had waived any future ADEA claim when they elected to be covered by the F & PERS (id. at 31a-34a). /2/ The City filed a petition for certiorari before judgment, which was denied. 455 U.S. 944 (1982). /3/ Indeed, the court of appeals characterized the district court's decision as a "thorough, impeccably reasoned opinion" (App., infra, 8a). /4/ While the litigation in Wyoming did not focus on the BFOQ defense, the possibility of a BFOQ defense as a matter of law based on 5 U.S.C. 8335(b) was adverted to in questioning at oral argument in this Court (Tr. of Oral Argument 7-8, 30-32). Under the decision below, the State of Wyoming should have been entitled to a BFOQ defense as a matter of law because of 5 U.S.C. 8335(b). That Section applies not only to firefighters, but also to federal law enforcement officers. Game wardens in Wyoming are considered law enforcement officers authorized to enforce the criminal provisions of Wyoming's fish and game laws. See Wyo. Stat. Sec. 7-2-101 (Supp. 1984); id. Sec. 23-6-101 (1977). Similarly, federal game wardens are "law enforcement officers" within the meaning of 5 U.S.C. 8335(b). See 5 U.S.C. 8331(20); Letter from Warren B. Irons, Chief, Retirement Division, U.S. Civil Service Commission to J. Atwood Maulding, Director of Personnel, U.S. Dep't of Interior (Feb. 2, 1949) (appended to the EEOC's petition for rehearing). The Court in Wyoming was well aware of the existence of 5 U.S.C. 8335(b) (see 460 U.S. at 243 n.17; id. at 263 (Burger, C.J., dissenting), but it nevertheless remanded the case with the manifest expectation that the State would have to demonstrate at trial that age 55 was a BFOQ for game wardens. See 460 U.S. at 240. /5/ There is no merit to the court of appeals' suggestion (App., infra, 7a-8a) that there is something inherently wrong about this disparate treatment of federal and local firefighters. It is clear that Congress may take one step at a time in implementing necessary reform, attacking a problem in one area without acting in all related areas. See, e.g., Cleland v. National College of Business, 435 U.S. 213, 220 (1978); Katzenbach v. Morgan, 384 U.S. 641, 657 (1966). See also Mahoney v. Trabucco, 738 F.2d 35, 41 (1st Cir. 1984). /6/ Indeed, the very terms of Section 8335(b) make clear that it cannot represent a congressional finding that age 55 is a BFOQ for firefighters. Under the statute, a firefighter is not retired until he or she has 20 years of service regardless of age, and the agency head may exempt the employee from separation until age 60. Thus, Congress recognized that firefighters can continue to perform effectively and safely after 55, and that individualized determinations of fitness are possible. /7/ The court of appeals' explanation that its strained interpretation of the ADEA was compelled by the need to avoid "serious constitutional questions" (see App., infra, 9a-14a) is seriously mistaken; this case presents no constitutional question that has not already been settled by this Court. Wyoming clearly establishes that application of the ADEA to employment practices of state and local governments is constitutional under the Commerce Clause, which makes it unnecessary to decide whether it could be authorized by Congress's power under the Fourteenth Amendment. The court of appeals' suggestion that Wyoming's Commerce Clause holding is limited to state game wardens (App., infra, 11a-12a) is wholly without foundation. The decision in Wyoming did not turn on the nature or degree of importance of the game warden's duties. The Court stated that wardens performed "a traditional state function" and assumed that the State's regulation of the terms and conditions of their employment was an attribute of state sovereignty; it held that the ADEA did not impair that sovereignty because compliance with the Act did not threaten the state's legitimate interest in retaining only physically fit wardens. 460 U.S. at 239-240. The identical analysis applies here in the case of firefighters; the ADEA does not impair the City's interest in ensuring that its firefighters are able to perform their job functions effectively. Finally, the court's statement that its decision avoids a difficult separation of powers question (App., infra, 13a-14a) is misconceived. This case merely presents an ordinary question of interpreting a federal statute in order to comply with Congress's intent. If Congress actually intended that age 55 for firefighters be established as a per se BFOQ under the ADEA, then the court of appeals' statutory holding would be correct. But if Congress did not so intend, as we believe to be manifest, then the decision below does not protect separation of powers at all; to the contrary, it frustrates the intent of Congress in enacting the ADEA and unjustifiably curtails the protections established by the legislature. APPENDIX