EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER V. MISSOURI STATE HIGHWAY PATROL, ET AL. No. 84-2004 In the Supreme Court of the United States October Term, 1984 The Solicitor General, on behalf of the Equal Opportunity Commission, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-26a) is reported at 748 F.2d 447. The opinion of the district court (App., infra, 27a-48a) is reported at 555 F.Supp. 97. JURISDICTION The judgment of the court of appeals was entered on November 12, 1984 (App. infra, 49a). A petition for rehearing was denied on January 28, 1985 (App., infra, 50a), and on April 16, 1985, Justice Blackmun extended the time for filing a petition for a writ of certiorari to and including June 27, 1985. 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 (ADEA), 29 U.S.C. 623, provides in pertinent part: (a) * * * 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) * * * It shall not be unlawful for an employer * * * (1) to take any action otherwise prohibited under subsection () (a) * * * 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. Mo. Rev. Stat. Sections 43.060, 104.010, 104.080 (Vernon Supp. 1985) provide in pertinent part: Section 43.060 Qualifications of patrolmen and radio personnel and limits on activities 1. Patrolmen and radio personnel shall not be less than twenty-one years of age and shall not have reached their thirty-third birthday at the time of their appointment * * *. Section 104.010 Definitions Whenever in sections 104.010 to 104.270 * * * the following words or terms are used, unless the context clearly indicates that a different meaning is intended, they shall have the following meanings: * * * * * (21) "Member", a member of the highways and transportation employees' and highway patrol retirement system, without regard to whether or not he has been retired: (23) "Normal retirement age", the later to occur of the attainment of sixty years of age for patrolmen and sixty-five years of age for all other members, or the completion of four years of creditable service; (24) "Patrol", the Missouri state highway patrol; (25) "Patrolmen", or "members of the patrol", the superintendent, lieutenant colonel, majors, captains, director of radio, lieutenants, sergeants, corporals, and patrolmen of the Missouri state highway patrol who normally appear in uniform * * *. Section 104.080 Members to retire, when -- compulsory retirement Each member shall retire at the end of the month during which such member shall reach normal retirement age with a normal annuity except that any patrolman may retire at age fifty-five with a normal annuity, and except that any employee of the state highways and transportation department, upon written request and with * * * written approval * * * may be retained for successive periods of one year until age seventy, when retirement shall be compulsory. QUESTION PRESENTED Whether the respondent established that its age limitations for hiring and compulsorily retiring law enforcement personnel were bona fide occupational qualifications. STATEMENT 1. The Equal Employment Opportunity Commission (EEOC) brought this action in the United States District Court for the Western District of Missouri to challenge the Missouri Highway Patrol's policies of mandatorily retiring all patrolmen /1/ at age 60, and refusing to hire patrolmen or radio operators over age 32. /2/ The Commission alleged that these policies violated the Age Discriminatiin in Employment Act of 1967, 29 U.S.C. 621 et seq. Since June 1982, Mo. Rev. Stat. Section 104.080 (Vernon Supp. 1985) has required all uniformed members of the Patrol to retire at age 60. Prior to that time the mandatory retirement age was 65, but, from ages 55 to 65, continued employment rested in the discretion of the superintendent of the Patrol (App., infra, 29a-30a). The hiring limitation of age 32 for both patrolmen and radio operators was established by Section 43.060. The Patrol has not hired anyone over age 32 since 1945 (App., infra, 35a). Section 4(a)(1) of the ADEA, 29 U.S.C. 623(a)(1), prohibits employers from refusing to hire or discharging persons because of their age; Section 4(f)(2), 29 U.S.C. 623(f)(2), specifically prohibits involuntary retirement prior to age 70. The Patrol, however, defended the Missouri statutory limitations as "bona fide occupational qualifications" (BFOQ) under Section 4(f)(1) of the Act, 29 U.S.C. 623(f)(1). The district court heard 40 witnesses over five days of trial on the issue of the BFOQ defense. Applying the test enunciated in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224, 236 (5th Cir. 1976), /3/ it made detailed factual findings and concluded (App., infra, 42a): The defendants have failed to prove that their mandatory retirement age of 60 is a BFOQ for members of the patrol. Their evidence does not show that substantially all persons over age 60 are unable to safely and efficiently perform the duties of a patrolman, or that some persons over age 60 possess traits precluding safe and efficient performance unascertainable other than through knowledge fo the patrolman's age. The testimony of their experts was not persuasive and was often contradictory. The court also found that respondents "failed to prove that their maximum hiring age of 32 is a BFOQ for radio operators" (id; at 46a), but upheld the maximum hiring age for patrolmen (id. at 47a), 2. On cross appeals, a divided panel reversed the district court's findings that the mandatory retirement age for patrolmen and the maximum hiring age for radio operators were not BFOQ's (App., infra, 23a). Judge McMillian dissented from these rulings, but concurred with the majority in affirming the lower court's acceptance of a maximum age 32 as a BFOQ for patrolmen applicants (App. infra, 23a-26a). The panel majority undertook in detail to apply the Tamiami test to the factual record in this case. /4/ In so doing, it found "persuasive" the fact that 5 U.S.C. 8335(b) authorizes mandatory retiremenet at age 55 for federal law enforcement and firefighting personnel (App., infra, 19a-20a), citing with approval Johnson v. Mayor of Baltimore, 731 F.2d 209 (4th Cir. 1984), rev'd, No. 84-518 (June 17, 1985). /5/ The panel majority also disagreed with the district court's evaluation of the testimony of respondents' expert witnesses (App., infra. 14a-18a, 22a): Although the District Court discounted the Patrol's expert evidence as "not persuasive" and "often contradictory," * * * we find this conclusion wholly unsupported by the record * * *. * * * * * In summary, the Patrol has established that there is a factual basis for believing that substantially all Patrol members over the age of sixty lack sufficient aerobic capacity to perform their duties safely and efficiently. The Patrol also has established the inefficacy of testing as an alternative to age, as a means of distinguishing among individuals over sixty. * * * * * We find the Patrol's evidence highly persuasive. Further, from our review of the record we are unfavorably impressed by the plaintiffs' efforts, which at best can be described as minimal, to rebut the Patrol's convincing showing that the age thirty-two hiring cap (for radio operators) is a BFOQ. Judge McMillian in dissent maintained that neither the state nor federal statutes providing for early retirement relaxed the burden that Congress has placed upon respondent to justify its age-based employment restrictions as reasonably necessary (App., infra, 23a-25a); he also concluded that the district court's findings of fact based on the conflicting expert testimony were not clearly erroneous. REASONS FOR GRANITNG THE PETITION This case directly involves several legal issues that have recently been decided by this Court. In Western Air Lines, Inc. v. Criswell, No. 83-1545 (June 17, 1985), this Court elaborated on the standard to be applied in establishing a BFOQ for employment in which public safety is a critical factor, /6/ emphasizing (slip op. 20-22) that Congress left the evaluation of conflicting expert testimony to the trier of fact. The court of appeals' decision was also issued before this Court, in Anderson v. City of Bessemer City, No. 83-1623 (Mar. 19, 1985), re-emphasized and claried, in the context of employment discrimination litigation, the deference due by appellate courts to the district court's factual findings (slip op. 8-10). /7/ And in Johnson v. Mayor of Baltimore, No. 84-518 (June 17, 1985), this Court held that the legislative history of 5 U.S.C. 8335(b), precisely the same statute that the court below found persuasive, "establish(es) that Congress at no time has indicated that the federal retirement age * * * is based on a determination that age 55 is a bona fide occupational qualification within the meaning of the ADEA. * * * We therefore conclude that this civil service provision does not articulate a BFOQ for (state and local employees), that its presence in the United States Code is not relevant to the question of a BFOQ for (state and local employees), and that it would be error for a court, faced with a challenge under the ADEA to an age limit for (state and local employees) to give any weight * * * to the federal retirements provision" (Johnson, slip op. 15-16). The court of appeals should be given the opportunity to reconsider this case in light of this Court's clarification of the applicable standards. CONCLUSION The petition for a writ of certiorari should be granted, the judgment of the court of appeals should be vacated, and the case should be remanded to that court for reconsideration in light of Criswell, Johnson, and Anderson. Respectfully submitted. CHARLES FRIED Acting Solicitor General JOHNNY J. BUTLER General Counsel (Acting) GWENDOLYN YOUNG REAMS Associate General Counsel (Acting) SUSAN BUCKINGHAM REILLY Assistant General Counsel (Acting) DIANNA B. JOHNSTON Attorney Equal Employment Opportunity Commission JUNE 1985 /1/ "Patrolmen" is used herein to describe uniformed members of the Patrol of all ranks, i.e., trooper through colonel. /2/ EEOC's action was consolidated with a prior suit by Calvin Price contesting application of the mandatory retirement age to him. /3/ As this Court explained in Western Air Lines, Inc. V. Criswell, No. 83-1545 (June 17, 1985), slip op. 12-13 (footnotes omitted, brackets in original), the Tamiami test requires the employer to show, first, that its "restrictive job qualifications are 'reasonably necessary' to further the overriding interest in public safety," and second, that: the employer is compelled to rely on age as a proxy for the safety-related job qualifications validated in the first inquiry. This showing could be made in two ways. The employer could establish that it "'had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all (persons over the age qualifications) would be unable to perform safely and efficiently the duties of the job involved'" * * *. Alternatively, the employer could establish that age was a legitimate proxy for the safety-related job qualifications by proving that it is "'impossible or highly impractical'" to deal with the older employees on an individualized basis. /4/ Having found that respondent satisfied the first prong of the Tamiami test (see note 3, supra) by showing that "physical ability and ability to withstand stress" are reasonably necessary job qualifications, the court asserted "that in these terms there is a correlation between the mandatory retirement age of sixty and the safe and efficient performance of the Patrol's functions" (App., infra, 8a). /5/ The court analogized the state mandatory retirement provisions to Section 8335(b): "We believe that it is no less valid for the State of Missouri to be concerned with the youth and vigor of its law enforcement personnel" (App., infra, 19a). It therefore accorded "some" or "considerable" deference to the state legislative judgment (App., infra, 5a). /6/ It is not at all clear that the court of appeals applied the legal standard that this Court has now established. In concluding that the Patrol had satisfied the first part of the Tamiami test (see note 3, supra), the court of appeals stated (App., infra, 8a) that there was "a correlation between" the mandatory retirement age and the safe and efficient performance of the Patrol's duties. But, as this Court explained in Criswell, the first part of the Tamiami test relates solely to the validation of the qualifications involved -- here, the ability to perform arduous duty under stressful conditions (slip op. 11-12). The relationship between these qualifications and age is addressed only in the second part of the Tamiami test, which requires not merely a correlation, but a showing that "the employer is compelled to rely on age as a proxy for the * * * job qualifications validated in the first inquiry" (slip op. 12 (footnote omitted). /7/ Although the Court noted that various courts of appeals -- including the Eighth Circuit in Swanson v. Baker Industries, Inc., 615 F.2d 479, 483 (1980) -- had asserted authority to review de novo findings not based on credibility determinations, the Court expressly disavowed any such exception to the principle that deference is due to the trial court's factual findings (Anderson, slip op. 9). APPENDIX