WESTERN AIR LINES, INC., PETITIONER V. CHARLES G. CRISWELL, ET AL. No. 83-1545 In the Supreme Court of the United States OCTOBER TERM, 1984 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States as Amicus Curiae TABLE OF CONTENTS Statement Discussion Conclusion QUESTIONS PRESENTED 1. Whether an arbitration award, which decided plaintiffs' contractual entitlement to transfers under a provision of the collective bargaining agreement, should be given conclusive effect in a suit to determine whether plaintiffs had been denied transfer opportunities due to their age in violation of their statutory rights under the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq. 2. Whether, under the facts of this case, the employer was properly assigned the burden of proving its entitlement to the affirmative defense that the differences in transfer opportunities for older and younger workers were due to "reasonable factors other than age". 3. Whether the standards for proving a "bona fide occupational qualification" provide for adequate consideration of the safety needs of the airline industry. 4. Whether the jury instructions concerning pretext were harmless error. This brief is submitted in response to the Court's invitation to the Solicitor General to express the views of the United States. STATEMENT 1. Petitioner refuses to employ any second officers /1/ beyond age 60. This policy requires the involuntary retirement of incumbent second officers at age 60, and also requires senior captains and copilots to retire on their sixtieth birthdays even though there are vacant second officer positions (Pet. App. A2-A3, A32-A33). /2/ Respondents, who are two captains and a second officer involuntarily retired at age 60, brought this suit challenging petitioner's "age 60 policy" as a violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq. 2. Petitioner defended its mandatory retirement policy by arguing that age less than 60 is a bona fide occupational qualification (BFOQ) for the job of flight engineer (Pet. App. A34). Alternatively, petitioner claimed that its refusal to permit captains and copilots to transfer to the position of second officer is based on reasonable factors other than age (RFOA) (ibid.). /3/ Specifically, petitioner claimed that a facially neutral policy against downbidding resulted in the denial of such transfer requests (Pet. App. A39). Upon appeal to the Ninth Circuit, petitioner for the first time also claimed that its actions were in conformity with a bona fide seniority system and thus protected under Section 4(f)(2) of the ADEA, 29 U.S.C. 623(f)(2). /4/ 3. After a fifteen-day trial, the jury returned a verdict in favor of all three respondents (Pet. App. A31-A32). The court of appeals affirmed, holding that the jury had been properly instructed and the verdict was supported by substantial evidence. The court of appeals rejected petitioner's argument that the jury instructions concerning the BFOQ defense did not ensure adequate consideration of its safety obligations. The court noted that the instructions conformed to the BFQQ standard first enunciated in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976), and uniformly applied in the Ninth and other circuits (Pet. App. A10). The court held that this standard, as well as the express language of the ADEA, requires proof that any age limitation is "reasonably necessary" to the essence of the employer's business, and not merely that the employer has a rational basis for it (id. at A11). Rejecting petitioner's claim that the district court was required to instruct the jury that petitioner had a duty to operate its business with the highest degree of safety, the court of appeals concluded that these precise words were not necessary where the district court gave ample emphasis to the importance of safety in other ways (Pet. App. A12). It was sufficient that the jury had been told that the essence of petitioner's business is the safe transportation of passengers, and that second officers have to be able to perform their jobs both safely and efficiently (ibid.). In upholding the factual finding of the jury, the court relied heavily on evidence that the flight engineer position is not critical to safety. The court noted that pilots under age 60 who become medically incapacitated to serve as captains or copilots are permitted to downbid to the position of second officer (Pet. App. A14, A38). The court also pointed to evidence that there had never been an accident caused by the disability of a second officer, and that the other crew members are fully trained to perform the flight engineer's duties in the event of his incapacity (ibid.). The court noted that plaintiffs had presented expert testimony showing that current diagnostic techniques are capable of screening out those individuals over age 60 who are physically unfit to perform as flight engineers (Pet. App. A14). The court of appeals also rejected petitioner's contention that the district court should have given conclusive weight to an arbitration award upholding petitioner's rejection of respondent captains' bids to fill second officer positions. /5/ Relying on decisions of this Court, the court of appeals held that a decision of an arbitrator, who is concerned only with interpreting the collective bargaining agreement and enforcing the intent of the parties, cannot be dispositive of plaintiffs' statutory claims under the ADEA (Pet. App. A7). /6/ The court held that sufficient weight had been accorded this decision by admitting it into evidence, permitting the trier of fact to give it such weight as it considered appropriate (id. at A41 n.14), and instructing the jury that compliance with the terms of a collective bargaining agreement could be a reasonable factor other than age (id. at A8). The court found it unnecessary to reach petitioner's arguments concerning the bona fide seniority system defense under Section 4(f)(2), because it concluded that "the question of the meaning of the collective bargaining agreement's provisions with regard to what forms of downbidding were permitted was in effect submitted to the jury" (Pet. App. A8 n.3) /7/ The court concluded that the jury's verdict, finding discrimination against captains seeking to downbid, was supported by "a great deal of evidence tending to show that Western did not administer its downbidding system in an age-neutral fashion, but rather that it routinely granted exceptions for younger pilots" (Pet. App. A8). As to petitioner's remaining complaints about the instructions, the court held that the burden of proving reasonable factors other than age had properly been placed on the petitioner and that the pretext instruction, although incorrect, was harmless error (Pet. App. A17, A19-A23). DISCUSSION 1. Petitioner argues that because an arbitration board held that its rejection of respondent pilots' bids for second officer positions did not violate the collective bargaining agreement, respondents' statutory claim of age discrimination is barred. /8/ The arbitration award was introduced into evidence for consideration by the jury; however, relying on prior decisions of this Court, the court below properly refused to give that decision conclusive weight on any of the issues in this case. Since this Court has already fully addressed the weight to be accorded to arbitration decisions in discrimination cases, and petitioner has identified no conflict in the circuits on this issue, review by this Court is not warranted. /9/ Respondent pilots' claim is that they were denied the opportunity to transfer to second officer positions when they were displaced from their pilot jobs by the FAA age 60 rule, whereas younger pilots were permitted to exercise such transfer rights when removed from their jobs for non-age-related reasons. /10/ They therefore asserted that they had been discriminated against because of their age, in violation of the ADEA. As this Court has repeatedly recognized, such claims of violations of federal statutory rights must be decided by the courts, which are to apply the standards mandated by Congress; an arbitration award, which merely enforces contract rights, cannot be given conclusive weight. McDonald v. City of West Branch, No. 83-219 (Apr. 18, 1984); Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981); Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). As petitioner notes, deference to an arbitration award will generally be appropriate where the plaintiff is attempting to enforce rights that stem from the collective bargaining agreement. See Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. at 734 n.19 (where statute adopts standards provided in collective bargaining agreement, Court assumes that deference to arbitral construction of contract would be appropriate); Andrews v. Louisville & N. R.R., 406 U.S. 320 (1972) (where employee's claim for continued employment is based on collective bargaining agreement, court should defer to grievance procedure). This line of cases is not helpful to petitioner, however, since respondents' claim does not depend on whether the collective bargaining agreement guaranteed them a right to downbid, but rather on whether petitioner's practices as a whole (whether or not required by the agreement) treated age 60 pilots differently than younger pilots. That discriminatory practices are permitted by, or even enshrined in, a collective bargaining agreement is no defense to a charge of age discrimination. Levine v. Fairleigh Dickinson University, 646 F.2d 825, 832 (3d Cir. 1981). /11/ In any event, the issue decided by the arbitration board was different from any issue submitted to the jury. The system board considered only the issue of whether the complaining pilots were entitled to downbids under the widebody downbid provision (see note 5, supra). /12/ This was not, however, the only avenue available for transfers to the second officer position. Transfers were available under other provisions of the collective bargaining agreement, and had even been permitted by petitioner where no particular provision of the contract was applicable (Pet. App. A42-A43). Thus, even accepting the finding of the system board, a jury could still find that petitioner had exercised its discretion to make transfers in a discriminatory manner. /13/ The arbitration award simply does not answer the question whether petitioner routinely allowed younger pilots who were displaced from their pilot jobs to use their seniority to secure second officer positions, but unlawfully required age 60 pilots to retire when similarly displaced from their pilot positions. At trial, petitioner asserted that its refusal to permit respondent pilots to downbid reflected a practice based on "reasonable factors other than age." The arbitration award could not be determinative of this defense, since, as we have shown, the board simply did not consider whether age was a factor in petitioner's policies. The court of appeals did not address petitioner's related claim of entitlement to a bona fide seniority system defense, raised for the first time on appeal, because it determined that this issue had in effect been submitted to and decided by the jury (Pet. App. A8 n.3). This was proper in the circumstances of this case. Petitioner's "seniority system" defense was essentially a reformulation of its RFOA ("reasonable factors other than age") defense: in both, the claim was that the refusal to transfer respondent pilots was due to age-neutral provisions of its collective bargaining agreement, and was not based on respondents' age. This claim was submitted to the jury, which was instructed that complying with a neutral collective bargaining agreement is a defense, and that the issue of fact for its determination, based on all the evidence, was whether petitioner's actions were due to such an agreement or were based on age (Tr. 2628). The jury's verdict thus reflected its conclusion that age was a determining factor in the denial of transfers to respondents. That factual finding is fatal not only to petitioner's RFOA defense, but also to its "seniority system" defense. Accordingly, this is an inappropriate case in which to consider more general contentions concerning the proper interpretation of Section 4(f)(2) of the ADEA. /14/ 2. The court of appeals correctly held that petitioner had the burden of proving that its employment practices were the result of "reasonable factors other than age" (Pet. App. A15-A17). This "RFOA" defense is based on one of the specific statutory exceptions, contained in Section 4(f) of the ADEA, 29 U.S.C. 623(f), to the otherwise broad prohibition of employment discrimination based upon age. As exceptions to a remedial statute, the Section 4(f) defenses have been narrowly construed, and the burden of proving their applicability has been placed upon the employer. See EEOC v. City of St. Paul, 671 F.2d 1162, 1166 (8th Cir. 1982) (employer has burden of proving BFOQ defense under Section 4(f)(1) of ADEA); Smallwood v. United Air Lines Inc., 661 F.2d 303, 307 (4th Cir. 1981), cert. denied, 456 U.S. 1007 (1982) (same); Sexton v. Beatrice Foods Co., 630 F.2d 478, 486 (7th Cir. 1980) (employer has burden of proving bona fide employee benefit plan defense under Section 4(f)(2) of the ADEA). In treating the RFOA defense similarly to other affirmative defenses under Section 4(f), the court of appeals acted in accordance with the EEOC's interpretations of the ADEA, which require an employer to prove the existence of any reasonable factor other than age alleged to be responsible for a differentiation between older and younger workers. 29 C.F.R. 1625.7(e). See Griggs v. Duke Power Co., 401 U.S. 424, 433-434 (1971) (interpretations of agency charged with enforcing the Act entitled to great weight). /15/ Moreover, this Court has held that, under an almost identical exception in the Equal Pay Act of 1963, 29 U.S.C. 206(d)(1), the employer bears the burden of proving that a pay differential was based on a "factor other than sex." Corning Glass Works v. Brennan, 417 U.S. 188, 196-197 (1974); see also Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982). Contrary to petitioner's argument, the holding of the court of appeals on this issue is not in conflict with that of any other circuit. The cases relied upon by petitioner involve individual claims of discrimination, where the employer merely denies that a particular personnel action was taken for a discriminatory reason. Loeb v. Textron Inc., 600 F.2d 1003 (1st Cir. 1979); Marshall v. Westinghouse Electric Corp. 576 F.2d 588 (5th Cir. 1978). In such cases, the courts have adopted the method used under Title VII of the Civil Rights Act of 1964, 42 U.S.C. (& Supp. V) 2000e et seq., for determining whether discriminatory animus played a role in an employment decision. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248(1981). Accordingly, they have held that, following the fairly minimal showing required for plaintiff to create an initial inference of discrimination, the employer is obligated only to articulate a legitimate nondiscriminatory reason for its action, /16/ while the ultimate burden of proving intentional discrimination remains always with the plaintiff. Texas Department of Community Affairs v. Burdine, supra. Courts have properly distinguished this simple "denial" defense from situations where a RFOA is asserted after there has been a showing of disparate treatment between employees of different ages and the employer asserts that such differences are permissible because they are due to RFOA, that is, specific reasonable criteria which are uniformly applied to all employees. See Massarsky v. General Motors Corp., 706 F.2d 111, 117 n.11, 123 n.20 (3d Cir. 1983); Laugesen v. Anaconda Co., 510 F.2d 307, 315 (6th Cir. 1975); EEOC v. Goodyear Tire & Rubber Co., 22 Fair Empl. Prac. Cas. (BNA) 786, 787 (W.D. Tenn. 1980). /17/ This is clearly an affirmative defense; it becomes relevant only after the plaintiff has shown an age-related disparity. In such circumstances, it is fully appropriate to require that the employer prove that this observed difference in treatment is actually due to a non-age factor. See Hodgson v. First Federal Savings & Loan Ass'n, 455 F.2d 818 (5th Cir. 1972) (once government establishes pattern of rejecting older applicants as tellers, Bank has burden of showing that this differentiation due to factor other than age). The present case similarly involves an affirmative RFOA defense, rather than a mere "denial" defense. Here, respondents did more than simply create an inference of discrimination by showing that they were discharged from jobs for which they were qualified. They showed a classwide pattern of requiring all age 60 pilots to retire, rather than permitting them to preserve their employment by transferring to lower level positions as is done with younger displaced workers. /18/ Petitioner attempted to prove that this observed difference in treatment between older and younger workers was actually due to the uniformly applied terms of its collective bargaining agreement. It was thus proper for the courts below to require petitioner to prove the existence of the alleged uniform no downbidding policy. 3. The standards for a BFOQ defense adopted by the Ninth Circuit are fully consistent with those used by every other court of appeals that has considered the issue. These standards ensure that full considerations will be given to the safety needs of the airline industry. In almost identical language, every court of appeals that has addressed the BFOQ defense has required the employer to prove: (1) that the BFOQ which it invokves is reasonably necessary to the essence of (the employer's business;) and (2) that the employer has * * * a factual basis for believing that all or substantially all persons (above the age limit) would be unable to perform safely and efficiently the duties of the job involved or that it is impossible or impractical to (determine fitness on an) individualized basis. Arritt v. Grisell, 567 F.2d 1267, 1271 (4th Cir. 1977); Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976); Tuohy v. Ford Motor Co., 675 F.2d 842 (6th Cir. 1982); Orzel v. City of Wauwatosa Fire Dep't, 697 F.2d 743 (7th Cir. 1983), cert. denied, No. 83-205 (Nov. 28, 1983); Houghton v. McDonnell Douglas Corp., 553 F.2d 561 (8th Cir.), cert. denied, 434 U.S. 966 (1977); EEOC v. County of Santa Barbara, 666 F.2d 373 (9th Cir. 1982); Stewart v. Smith, 673 F.2d 485, 491 n.26 (D.C. Cir. 1982). See also, EEOC Interpretations, 29 C.F.R. 1625.6. A careful consideration of the demands of public safety is built into this standard. The essence of a public carrier's business has invariably been defined as the safe transportation of passengers. See Usery v. Tamiami Trail Tours, Inc., 531 F.2d at 235; Tuohy v. Ford Motor Co., 675 F.2d at 844. In addition an employer is entitled to require safe job performance and can use an age limitation where ability to perform safely cannot be ascertained on an individualized basis (ibid.). Contrary to petitioner's assertions, the employer is not required to prove either of these elements to an absolute certainty. Rather, an employer is required to show only that its use of age is "reasonably necessary" to safe transportation, and that there is a factual basis for its claim that individualized testing is not possible or practical. /19/ Petitioner urges this Court to overrule the unanimous interpretation of the courts of appeals and substitute a standard that mandates acceptance of a BFOQ defense whenever an employer has some rational basis for its age limitation, even if the preponderance of the evidence at trial fails to support the need for such a policy. Adopting such a standard would undermine the policies of the ADEA while doing nothing to increase public safety. The ADEA was intended to eliminate stereotypical thinking about aging and to ensure that employment decisions are based on the actual abilities of older workers. Report of the Secretary of Labor, The Older American Worker 2, 7, 8 (1965); H.R. Rep. 805, 90th Cong., 1st Sess. 1-2 (1967). While recognizing that employers must be able to use age limitations where they are "reasonably necessary" to the essential business of the employer, Congress intended this exception to be given narrow scope so that it would not undercut the essential purposes of the Act. Orzel v. City of Wauwatosa Fire Dep't., supra; Smallwood v. United Air Lines, Inc., supra; cf. Dothard v. Rawlinson, 433 U.S. 321 (1977) (Title VII). The BFOQ standard fashioned by the courts of appeals balances these objectives in a harmonious fashion: BFOQ's are upheld wherever an employer presents adequate proof that they are "reasonably necessary" and its objectives cannot be met by individualized assessment of ability. Petitioner insists that an employer should be permitted to continue using age limitations if it had a good faith belief in the need for such a limitation, even though it could not produce sufficient evidence to convince the trier of fact of this need. Petitioner's proposed "rational basis in fact" standard would mean that an employer would need only to present some supporting evidence for its rule in order to prevail, even if that evidence were entirely overborne by plaintiffs' evidence. Such a subjective standard would be entirely inconsistent with the congressional intent that older workers not be eliminated from the work place due to unsupported fears about their abilities. Under that standard, the Act would be ineffective to prevent the needless retirement of experienced employees when the evidence demonstrates that their ability to perform their particular jobs safely can be evaluated on an individualized basis. Petitioner criticizes the approach taken by the courts of appeals because it can yield different results in different cases. Congress could have prevented this if it had chosen to enact a schedule of appropriate age limitations for different occupations. Instead, it decided to leave the determination of BFOQ's to the individual employer, subject to review by the courts. H.R. Rep. 805, 90th Cong., 1st Sess. 7 (1967). This approach gives the employer considerable discretion, requiring only that it had adequate evidence to back up any choice it makes. An employer who performs a thoughtful study before adopting an age limitation will be in a good position if its policy is challenged in court. See 29 C.F.R. 1625.6. Petitioner never performed such a study, either when it adopted an age 60 limitation for flight engineers or when the 1978 ADEA amendments eliminated the pension plan as a justification for this policy. 4. Although petitioner agrees with the court of appeals' ruling that a pretext instruction is erroneous in a BFOQ case, it argues that the court should not have found this error to be harmless. Whether a particular instruction is prejudicial depends on a careful review of the evidence and argument presented to the jury, and the instructions taken as a whole. United States v. Park, 421 U.S. 658, 674-676 (1975); Alloy International Co. v. Hoover-NSK Bearing Co., 635 F.2d 1222, 1226 (7th Cir. 1980). The court of appeals exercised its discretion on this question in an appropriate manner. No special circumstances are presented which necessitate further review by this Court. A charge to the jury need not be a model statement of the law to be upheld. Even where it contains errors, inaccuracies, or ambiguities, it may be upheld if, taken as a whole, the charge directs the jury's attention to the correct legal issues and standards. Blackwell v. Sun Electric Corp., 696 F.2d 1176 (6th Cir. 1983); Haring v. CPC International, Inc., 664 F.2d 1234 (5th Cir. 1981); Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir. 1981). Here, the jury was told that it is not unlawful for an employer to take action otherwise prohibited by the ADEA where age is a BFOQ (Tr. 2619). The court gave thorough instructions concerning the requirements for a BFOQ defense and emphasized that "(i)f defendant establishes such a BFOQ by preponderance of the evidence, then its age discrimination is lawful under the ADEA" (Tr. 2627). Thus, contrary to petitioner's suggestion, the jury clearly knew that if it found that an age 60 limitation was reasonably necessary to safe air transportation and that individualized testing was not practicable then it must find for petitioner. The jury was also given a general instruction, applicable to all of petitioner's defenses, that it could find for plaintiffs if they proved that petitioner's asserted reasons were a mere pretext or cover-up for age discrimination (Tr. 2630). The court of appeals concluded that, based on the specific facts of this case, this instruction would merely have reinforced the BFOQ instruction by ensuring that the jury considered plaintiffs' rebuttal evidence concerning the BFOQ issue as well as defendant's evidence (Pet. App. A22-A23). The only evidence of "pretext" referred to by either the court or petitioner is plaintiffs' proof that, although petitioner asserted that all crew members must be held to the same medical standards, petitioner in fact treated the flight engineer position as less critical and permitted pilots who could not meet the medical requirements of the pilot classification to downbid to flight engineer. This type of evidence, although it casts some doubt on the genuineness of petitioner's contentions, is also directly relevant to the main issue in the BFOQ case: whether the age limitation imposed is reasonably necessary for safety. That petitioner and the FAA treated the flight engineer position as a lower risk position, in which those recovering from heart attacks and other ailments could be accommodated, is some evidence that the age 60 rule was not needed, and that individual assessments of fitness for this job could be made. Thus, there was no evidence before the jury suggesting that some hidden animus toward older workers contaminated an otherwise legitimate BFOQ defense. Instead the "pretext" evidence was nothing more than evidence tending to rebut the existence of a factual basis for petitioner's BFOQ defense. On this record, the court of appeals was correct in finding that the pretext instruction did not divert the jury from proper consideration of the BFOQ defense. CONCLUSION The petition for a writ of certiorari should be denied. /20/ Respectfully submitted. REX E. LEE Solicitor General JOHNNY J. BUTLER General Counsel (Acting) Equal Employment Opportunity Commission AUGUST 1984 /1/ Second officers (also called flight engineers under Federal Aviation Administration (FAA) regulations) are the third ranking crew members in the cockpit of certain of petitioner's aircraft (Pet. App. A2). The second officer monitors and adjusts a number of the mechanical systems on the plane, but is not involved in the flying of the plane (id. at A37-A38). /2/ Under FAA regulations, crew members cannot serve as either captains or copilots past age 60 (14 C.F.R. 121.383(c)). Neither this nor any other FAA regulation restricts the employment of flight engineers after age 60 (Pet. App. A2, A35). The FAA recently rejected a proposal to extend its "age 60 rule" to flight engineers, basing its decision on the significantly less critical nature of the job. 49 Fed. Reg. 14692 (1984). /3/ The statutory defenses of BFOQ and RFOA are contained in Section 4(f)(1) of the ADEA, 29 U.S.C. 623(f)(1), which states: 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 (.) /4/ Section 4(f)(2) of the ADEA, 29 U.S.C. 623(f)(2), provides that it is not unlawful for an employer: 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 seniority system or employee benefit plan shall require or permit the involuntary retirement of any individual (between ages 40 and 70) because of the age of such individual(.) /5/ The award, rendered by a system board of adjustment composed of a neutral Chairman, two of petitioner's representatives and two representatives of the pilots' union (Pet. App. A3, A90-A91; see 45 U.S.C. 184), determined that petitioner's denial of respondents' bids did not violate the provision of the collective bargaining agreement concerning "widebody downbids" (Pet. App. A84-A94). The board concluded that although the language of the contract provision appeared to permit any captain to downbid on the basis of seniority to any second officer vacancy in wide-body planes, the parties had intended only to permit captains on narrow-body planes to transfer to wide-body equipment (Pet. App. A86-A88). The board described the contract as being opposed in principle to downbidding, and permitting it only in "rare and carefully defined circumstances" (Pet. App. A88). The board concluded that the contracting parties had not meant to recognize an exception where sought by a captain "for the obvious purpose of evading the application of (the) agreed mandatory retirement plan" (Pet. App. A89). In dissent, one board member stated that the express language of the provision permitting the requested downbid was fully consistent with the seniority system, contained in the collective bargaining agreement, which established the right to "freedom of choice in bidding permanent vacancies" in accordance with a pilot's seniority (Pet. App. A93). /6/ The court observed that the evidence before the arbitration board had been "minuscule" with regard to the degree and kind of downbidding permitted by petitioner (Pet. App. A7). /7/ The Section 4(f)(2) defense was addressed by the district court in Stone v. Western Air Lines Inc., 544 F. Supp. 33 (C.D. Cal. 1982). In Stone, petitioner had argued that plaintiffs' mandatory retirements were justified by the absence of second officer vacancies at the time they reached age 60. Noting that "age 60 captains seeking to downbid are the only individuals who are severed from the company rather than allowed to maintain their employee status until such time as a vacancy occurs" (Pet. App. A106), the court rejected Western's defense that its action was the result of a "bona fide seniority system." The court concluded: "it is apparent that plaintiffs' alleged injury stems not from the application of particular seniority rules, but rather from a policy, nowhere embodied in the Pilot Agreement, which equates retirement as a captain at age 60 with a complete severance from the company" (Pet. App. A107 (emphasis in original)). Although the Stone decision was consolidated on appeal with the instant decision, this portion of the Stone decision was not part of the appeal to the Ninth Circuit, and is accordingly not before this Court on this petition. /8/ The arbitration award would not, in any event, relate to the claim of respondent Ron, the career second officer. /9/ Petitioner asserts that its petition raises issues similar to those involved in TWA v. Thurston, cert. granted, No. 83-997 (Feb. 27, 1984), cross petition granted, No. 83-1325 (Apr. 2, 1984). That case, which is scheduled for oral argument on October 9, 1984, involves no question of the weight to be accorded arbitration decisions in ADEA cases. Moreover, neither TWA's petition for certiorari nor ALPA's cross-petition presents any question concerning the proper interpretation of the Section 4(f)(2) bona fide seniority system defense, although that subject is discussed in the briefs in that case. The other issues raised by the present petition are not involved in Thurston. We therefore do not believe it necessary for the Court to hold the present petition pending its decision in Thurston. /10/ The evidence presented at trial showed that between 1972 and 1979, petitioner permitted 400 transfers to lower grade positions in a wide variety of circumstances (Pet. App. A42). In addition to the wide-body downbid provision discussed in the system board's arbitration award (see note 5, supra), pilots under age 60 were permitted to transfer to second officer positions when they were unable to meet the medical standards for a pilot position but could still meet the lesser standards for second officers, or when displaced due to a reduction in force (ibid.). Moreover, even though not sanctioned by any specific provision of the contract, downgrades were permitted for disciplinary reasons or to accommodate a personal hardship (Pet. App. A42-A43). The district court observed that it was only in the case of pilots approaching age 60 that petitioner consistently denied downbids (ibid.). /11/ This is so even where an employer asserts a defense under Section 4(f)(2) based on alleged compliance with a "bona fide seniority system." A seniority system is "bona fide" only if it is facially neutral and accords like treatment to older and younger workers. Morelock v. NCR Corp., 586 F.2d 1096, 1106 (6th Cir. 1978), cert. denied, 441 U.S. 906 (1979). Cf. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 353-356 (1977). /12/ Because the arbitration board specifically states that the basis of its decision is to prevent evasion of petitioner's mandatory retirement policy, even its decision on the narrow issue cannot be accorded substantial deference, as it implements a policy unlawful under the Act. /13/ The arbitration award contained general language that downbidding was disfavored and only permitted in "rare and carefully described circumstances." Respondents and the court disagreed with this characterization of the extent of downbids -- there was apparently no dispute that 400 downbids had occurred -- but the critical point is that even the board recognized that there were exceptions permitting downbids. Respondents' claim is that these exceptions were defined or administered in an age-biased manner. The arbitration award does not address this issue. /14/ The lower courts that have addressed this defense have uniformly concluded that it is unavailable as a matter of law in a case such as this, where senior pilots are merely attempting to exercise their seniority rights in the same fashion that younger pilots do. See Air Line Pilots Ass'n v. Trans World Airlines, Inc., 713 F.2d 940, 953 (2d Cir. 1983), cert. granted, No. 83-997 (Feb. 27, 1984), cross petition granted, No. 83-1325 (Apr. 2, 1984); Johnson v. American Airlines, 32 Fair Empl. Prac. Cas. (BNA) 1236 (N.D. Tex. 1983). Nor is the defense available, where, as here, plaintiffs' severance from the company results, not from any provision of the seniority system, but instead from a separate policy requiring mandatory retirement when age 60 crewmembers cease being eligible to serve as pilots. Air Line Pilots Ass'n v. Trans World Airlines, Inc., 713 F.2d at 953; Stone v. Western Air Lines, Inc., 544 F. Supp. 33, 37-38 (C.D. Cal. 1982) (see note 7, supra). Finally, even accepting petitioner's contention that it is the seniority system that is responsible for the mandatory retirement of age 60 pilots, a bona fide seniority system defense would no longer be available, because Congress specifically amended the ADEA in 1978 to make clear that a bona fide seniority system cannot require or permit mandatory retirement. Crosland v. Charlotte Eye, Ear & Throat Hospital, 686 F.2d 208, 213 (4th Cir. 1982). /15/ Authority for enforcing the ADEA initially resided in the Department of Labor and was transferred to the EEOC in July 1979. Reorg. Plan. No. 1 of 1978, 43 Fed. Reg. 19807 (1978); Exec. Order No. 12144, 44 Fed. Reg. 37193 (1979). EEOC's current position is in accord with that taken by the Department of Labor since 1968. 29 C.F.R. 860.103(e), 33 Fed. Reg. 9173 (1968) ("burden of proof in establishing the applicability of the (reasonable factors other than age) exception will rest upon the employer, employment agency or labor union which seeks to invoke it"). Where an administrative interpretation is promulgated soon after the enactment of the statute and thereafter remains the consistent position of the agency, it is particularly worthy of deference. Dothard v. Rawlinson, 433 U.S. 321, 334 n.19 (1977). /16/ Loeb and Westinghouse refer to this as a "reasonable factors other than age" defense under Section 4(f)(1) of the ADEA. Whether that characterization is appropriate is not presented by this case, in which the RFOA defense is asserted to justify, rather than to deny, disparate treatment. /17/ Examples of possible reasonable factors other than age are physical examinations, educational requirements, or quality or quantity standards. See Laugesen v. Anaconda, 510 F.2d at 315; EEOC v. Goodyear Tire & Rubber Co., 22 Fair Empl. Prac. Cas. (BNA) at 787; former regulations of Department of Labor, 29 C.F.R. 860.103(f) (1978). Cf. Kouba v. Allstate Insurance Co., supra (factor closely associated with sex must have reasonable business justification to be a "factor other than sex"). /18/ Contrary to its assertions (Pet. 15), petitioner was never required to prove the absence of discrimination. The burden of proving discriminatory treatment was placed firmly on the plaintiffs (Tr. 2621) and the jury was specifically instructed that it was not petitioner's burden "to prove a contrary freedom from illegal motivation" (Tr. 2630). /19/ This is precisely the standard enunciated by the Ninth Circuit in this case (Pet. App. A10-A13). The district court's jury instructions also followed this standard and only required "reasonable" necessity (Tr. 2626). Although the district court did not use the precise words "factual basis" in stating the second prong of the BFOQ, the thrust of the instructions was the same: the jury was asked to evaluate whether the employer presented evidence showing that individualized treatment was not possible (Tr. 2627). This is the only way in which an employer can prove a factual basis for its policy. No absolute certainty was required (Tr. 2618). The court of appeals therefore correctly concluded that the instructions adequately advised the jury on the standards for the BFOQ defense. /20/ See note 9, supra.