WESTERN AIR LINES, INC., PETITIONER V. CHARLES G. CHRISWELL, ET AL. No. 83-1545 In the Supreme Court of the United States October Term, 1984 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae Supporting Respondents TABLE OF CONTENTS Interest of the United States Statement Summary of argument Argument I. The BFOQ standards applied below are those required by the ADEA and are consistent with the safety responsibilities of public carriers II. Where, as here, the plaintiffs have proved a pattern of age-based differential treatment, the employer bears the burden of proving its entitlement to the statutory affirmative defense that the disparity is due to a reasonable factor other than age Conclusion QUESTIONS PRESENTED 1. Whether the standards for a bona fide occupational qualification applied below properly reflect the requirements of the Age Discrimination in Employment Act and are consistent with the safety responsibilities of public carriers. 2. Whether, when plaintiff employees have deomonstrated a company policy of differences in treatment between older and younger workers, the employer has the burden of proving that those differences are due to reasonable factors other than age. INTEREST OF THE UNITED STATES The Equal Employment Opportunity Commission is responsible for the interpretation and enforcement of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq. 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 ADEA. /3/ 2. Each of the respondents sought to continue working beyond his sixtieth birthday -- respondent Ron to remain employed as a second officer; respondents Starley and Criswell, who were captains, to be transferred to the second officer position. Petitioner denied all three requests on the sole ground that the company's pension plan mandated retirement at age 60 (Pet. App. A3, A34; Tr. 61, 1161; PX 8, 14). William Newell, the company official responsible for the decision to terminate respondents' employment, stated that he did not consider safety in making that decision (Tr. 61, 2056). In fact, he had no opinion and no knowledge concerning whether it was unsafe to employ flight engineers over 60 (Tr. 2027, 2059). No other official of petitioner testified that the company had either adopted the retirement age in the pension plan, or continued it in effect, due to considerations of safety. Nor did petitioner rely on the seniority provisions relating to downbidding in the collective bargaining agreement in denying the captains' requests to work past age 60 (PX 14). /4/ Newell testified that all three respondents were terminated for the same reason: the mandatory retirement age in the pension plan (Tr. 1161-1162). 3. At trial, petitioner argued that age less than 60 is a bona fide occupational qualification (BFOQ) for the flight engineer job (Pet. App. A34). Alternatively, petitioner claimed its refusal to permit captains and copilots to transfer to second officer positions is based on reasonable factors other than age (RFOA) -- i.e., a facially neutral policy against downbidding, embodied in its collective bargaining agreement (id. at A39). After a fifteen-day trial, the jury returned a verdict in favor of all three respondents (id. at A31-A32). 4. The court of appeals affirmed, holding the instructions proper and the verdict supported by substantial evidence. It rejected petitioner's argument that the instructions concerning the BFOQ defense did not ensure adequate consideration of its safety obligations. The court noted that the instructions conformed to the BFOQ 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 the Tamiami test, as well as the language of the ADEA, requires proof that any age qualification is "reasonably necessary" to the essence of the employer's business, not merely that the employer has a rational basis for it (id. at A11). The court concluded that 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 (id. at A12). The court also held the instructions proper under the second prong of the Tamiami test, which requires a showing that either all or substantially all persons over the age limit would be unable to perform the duties on the job safely or efficiently, or that it is impossible or impractical to ascertain fitness on an individualized basis (id. at A12-A13). In upholding the jury's findings, the court relied on evidence that the flight engineer position is not as critical to safety as the other cockpit positions. The court noted: that pilots under age 60 who become medically incapacitated to serve as captains or co-pilots are permitted to downbid to the second officer position (Pet. App. A14); 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.); and that expert testimony showed that current diagnostic techniques can screen out those individuals over age 60 who are physically unfit to perform as flight engineers (ibid.). In light of this evidence, and the fact that other airlines employ more than 200 second officers over the age of 60 for service on wide-bodied aircraft, the court concluded that there was substantial evidence that petitioner's age 60 policy was not necessary to assure safety (ibid.). The court also held the instructions proper on the RFOA defense -- an affirmative defense, applicable only after the plaintiff has established the existence of disparate treatment (Pet. App. A16, A22). Relying on administrative interpretations of the RFOA defense and this Court's construction of a similar provision in the Equal Pay Act, the court held that the burden of proof of the RFOA defense was with the employer. The court concluded that the jury's verdict rejecting petitioner's RFOA defense 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). /5/ SUMMARY OF ARGUMENT I. The ADEA was designed precisely to overcome the sincerely held, but stereotypical, beliefs of many employers concerning the effects of aging on a person's ability to perform effectively. Age-based employment decisions were accordingly permitted only when age is in fact reasonably necessary to the job involved. As with the substantially identically worded Title VII BFOQ, the focus is on the objective requirements of the job, not the employer's beliefs about those requirements. The test formulated in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976), provides an appropriate method for analyzing a BFOQ defense: the employer must show first that its established job qualifications are reasonably necessary to the job involved; and second, that it is necessary to use age in determining which individuals satisfy those qualifications. The evidence at trial showed that in fact petitioner employs younger second officers who cannot satisfy the standards required of pilots. Its age 60 policy is thus flat age-based discrimination rather than a proxy for any other employment qualification. There is accordingly no need on this record to consider the second prong of the Tamiami test. There is, in any event, no merit to petitioner's argument that the second prong is satisfied by a mere showing that there is some rational basis for an employer's conclusion that individualized testing will not screen out employees who do not possess the qualifications it requires. II. Petitioner confuses the principles for proof of discriminatory employment practices by circumstantial evidence outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), with the proof of an RFOA. The RFOA applies when the employer asserts some uniform, age-neutral employment criterion to justify a proven differentiation among its employees, rather than when it presents an explanation of a merely prima facie showing of age bias as in the McDonnell Douglas type of case. The employer is properly assigned the burden of establishing the existence of the uniform employment criterion it asserts. Respondent captains demonstrated an express company policy that deprived all pilots at the age of 60 of the opportunity to transfer to second officer positions, although younger pilots were permitted to do so. Rather than simply presenting a prima facie case, they thus proved express age-based disparate treatment. The only evidence petitioner offered to establish an RFOA was the arbitration award holding that the denials of the respondent pilots' downbids were proper under the collective bargaining agreement. But the collective bargaining agreement's failure to provide downbidding opportunities to older pilots on an equal basis with younger ones is not a defense under the ADEA, particularly when that failure implements a compulsory retirement policy that is itself illegal under the Act. ARGUMENT I. THE BFOQ STANDARDS APPLIED BELOW ARE THOSE REQUIRED BY THE ADEA AND ARE CONSISTENT WITH THE SAFETY RESPONSIBILITIES OF PUBLIC CARRIERS A. One of Congress's primary objectives in enacting the ADEA was to end the then prevalent practice of establishing arbitrary age limitations for jobs, in order to ensure that older workers would be evaluated based on their individual ability rather than their age. 29 U.S.C. 621(a)(2), (b); U.S. Dep't of Labor, The Older American Worker, Report of the Secretary of Labor 5-7 (1965) (Labor Report). /6/ The ADEA was preceded by extensive fact finding, which showed that age limits in industry were generally adopted without study and based on unfounded assumptions. Labor Report 6-10; 113 Cong. Rec. 34742, 34746 (1967); Leg. Hist. 23-37, 153, 157; Senate Hearings 34, 38. Congress enacted the broad prohibition in Section 4(a) of the ADEA (29 U.S. 623(a)) on the use of age in making employment decisions precisely because it found that, contrary to these assumptions, age is not a good predictor of ability; aging affects individuals at very different rates and increasing experience and judgment generally compensate for any diminutions in functions. Labor Report 8-9; 110 Cong. Rec. 9913 (1964); Leg. Hist. 11, 25-26; Senate Hearings 38 (testimony of Secretary of Labor Wirtz). See EEOC v. Wyoming, 460 U.S. 226, 231 (1983). /7/ Thus, the sincerity of an employer's belief in stereotypical views of the value of older workers, far from providing a defense to the ADEA, was viewed as a significant part of the problem; a primary focus of the Act is on research and education to correct just such honest misconceptions (29 U.S.C. 622; Senate Hearings 37-38 (statement of Secretary of Labor Wirtz); House Hearings 8-9 (same); S. Rep. 723, 90th Cong., 1st Sess. 1, 3 (1967)). Nonetheless, Congress did recognize that there are some instances in which age is relevant to job performance. Labor Report 2; 113 Cong. Rec. 2467 (1967); Leg. Hist. 20, 66; House Hearings 10; Senate Hearings 37. /8/ It therefore created an exception to permit age distinctions where "age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." 29 U.S.C. 623(f)(1). The language of this BFOQ in the ADEA closely tracks that of the BFOQ in Title VII. See 42 U.S.C. 2000e-2(e)(1). In using similar language in the ADEA, Congress evidently intended it to be similarly interpreted. /9/ As this Court recognized in Dothard v. Rawlinson, 433 U.S. 321, 334 (1977), the Title VII BFOQ is an "extremely narrow exception." See H.R. Rep. 914, 88th Cong., 1st Sess. 27 (1963); Interpretative Memo of Senators Clark and Case, 110 Cong. Rec. 7213 (1964). Moreover, it is clear that it turns on an objective showing of business necessity, and is not established by the employer's good faith belief, even when that belief is based on substantial evidence. /10/ Nothing in the rather sparse legislative history of the BFOQ provision in the ADEA suggests that Congress intended a broader exemption than the BFOQ defense under Title VII. /11/ Instead, in considering the ADEA, Congress apparently assumed that the BFOQ exception must be based on objective facts. /12/ Indeed, in considering the ADEA Amendments of 1978, Congress explained how the BFOQ was to be established: * * * in certain types of particularly arduous law enforcement activity, there may be a factual basis for believing that substantially all employees above a specified age would be unable to continue to perform safely and efficiently the duties of their particular jobs, and it may be impossible or impractical to determine through medical examinations, periodic reviews of current job performance and other objective tests the employees' capacity or ability to continue to perform the jobs safely and efficiently. Accordingly, the committee adopted an amendment to make it clear that where these two conditions are satisfied and where such a bona fide occupational qualification has therefore been established, an employer may lawfully require mandatory retirement at that specified age. S. Rep. 95-493, 95th Cong., 1st Sess. 10-11(1977). /13/ B. The courts and the administrative agencies responsible for enforcing the ADEA have recognized that the BFOQ, which carves out an exception permitting the very conduct the Act generally prohibits, must be construed narrowly, and that the burden is on the employer to establish its applicability. Orzel v. City of Wauwatosa Fire Dep't, 697 F.2d 743, 748 (7th Cir. 1983), cert. denied 83-205 (Nov. 28, 1983); Smallwood v. United Air Lines, Inc., 661 F.2d 303, 307 (4th Cir. 1981), cert. denied, 456 U.S. 1007 (1982). See also A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945); Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960). In guidelines adopted shortly after the ADEA's enactment, the Department of Labor, which initially enforced the Act, stated: It is anticipated that this concept of a bona fide occupational qualification will have limited scope and application. Further, as this is an exception it must be construed narrowly, and the burden of proof in establishing that it applies is the responsibility of the employer, employment agency, or labor organization which relies upon it. 29 C.F.R. 860.102(b), 33 Fed. Reg. 9172 (1968). /14/ When EEOC assumed the authority for enforcing the ADEA, it adopted this interpretation (29 C.F.R. 1625.6, 46 Fed. Reg. 47727 (1981)). This consistent long-standing administrative interpretation is entitled to great deference. Griggs v. Duke Power Co., 401 U.S. 424, 433-434 (1971); Dothard v. Rawlinson, 433 U.S. at 334. The method of analyzing an employer's BFOQ claim established in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976), gives proper effect to the congressional policies expressed in the ADEA. /15/ It has been followed by every circuit that has addressed the issue. /16/ The ultimate showing required is that the use of age as a criterion is "reasonably necessary" to the employer's business. To assist the trier of fact, Tamiami breaks this into two components. The first prong requires the employer to show that it has set certain job qualifications for the position in question which are "reasonably necessary" to the essence of the employer's business. 531 F.2d at 236. If this is established, then the employer must show that it is necessary to use age in determining which individuals meet these qualifications. This second prong can be met by demonstrating either that everyone above the age limit lacks the qualification, or that some individuals over the age limit lack the qualification and that those individuals cannot be identified through individualized testing. Id. at 235-236. Petitioner concedes that the Tamiami test identifies the correct elements for a BFOQ (Br. 28). /17/ It urges, however, that employers in industries with public safety responsibilities should have a very low burden of proof of these elements; that courts should defer to such an employer's decision to use rigid age limitations provided it is "reasonable." But Congress has never chosen to enact a special exemption from the ADEA for industries that have an impact on public safety. Its judgment was that such industries could meet their responsibilities through the means provided by the ADEA: either by setting stringent age-neutral qualifications and testing employees on an individual basis, or by using explicit age criteria if they could be shown to be "reasonably necessary" to the safe operation of the business. Indeed, the language of Section 4(f)(1) is flatly inconsistent with petitioner's argument. It carves out an exception only where age is a bona fide occupational qualification for the job, not where an employer acts with a good faith or rational belief that it is. Accordingly, every court of appeals that has considered this argument has squarely rejected a "rational basis" test for the BFOQ. Heiar v. Crawford County, 746 F.2d 1190 (7th Cir. 1984); Orzel, 697 F.2d at 749, 752-753; Tuohy 675 F.2d at 845; Harriss v. Pan American World Airways, Inc., 649 F.2d 670, 677 (9th Cir. 1980). 1. Petitioner argues that courts should defer to an employer's selection of job qualifications whenever they are reasonable. This standard is simply inadequate to effectuate the Act's requirement that age limits be used only where older workers lack qualifications "reasonably necessary to the normal operation of the particular business." 29 U.S.C. 623(f)(1). An employer nevertheless is accorded flexibility in establishing qualifications necessary to ensure safety. No court has ever questioned that protection of passengers is the "essence" of a public carrier's business (see Tamiami, 531 F.2d at 236; Tuohy, 675 F.2d at 844; Harriss, 649 F.2d at 677); such an employer can impose any job qualifications it wishes provided only that they are "reasonably necessary" to safety. This does not invite the trier of fact to substitute its judgment for that of the airlines, or to decide what is absolutely necessary to safety. It simply provides a basis for review of the chosen qualifications to ensure that they meet the statutory standards. /18/ It generally will not be difficult to persuade the trier of fact that stringent qualifications are "reasonably necessary" where inadequate performance by the employee could create a risk of harm to many people. See, e.g., Orzel, 697 F.2d at 755; EEOC v. County of Santa Barbara, 666 F.2d at 377. Petitioner argues that it made a reasonable judgment to apply the same physical fitness qualifications to both pilots and second officers, in order to eliminate every possible risk of incapacitation of the second officer. Regardless of whether such a choice would, in a proper case, be sufficient to satisfy the first prong of the Tamiami test, petitioner's argument is simply without factual support in this record. The evidence showed that petitioner did not require the same level of medical qualifications for pilots and second officers. While pilots are required to pass a physical examination for a first class medical certificate every six months and have an electrocardiogram (EKG) annually, second officers need only a second class certificate based on a yearly examination that does not include an EKG (Tr. 67, 68, 592-593). Indeed, pilots who can no longer meet the high medical qualifications for pilots are permitted, under FAA regulations and petitioner's policies, to transfer to the second officer position, including pilots who have recovered from heart attacks, coronary bypass surgery, alcoholism and other medical problems (Pet. App. A14, A38; Tr. 411-413, 653, 663, 1591-1592; PX 169). Hence, petitioner's own judgment was that the position of second officer is one of lower risk and responsibility for which lesser qualifications and a somewhat higher risk of incapacitation are acceptable. /19/ The deference encompassed in the first part of the BFOQ test must obviously be to petitioner's actual practice in setting qualifications, rather than to its arguments at trial. Here, while the evidence showed that a high degree of fitness was required for flight engineers, it did not show -- indeed, it refuted -- that the same extremely low risk of incapacitation was necessary as is the case with pilots. /20/ Indeed, the evidence here showed that safety concerns were not in fact a motivating factor in petitioner's exclusion of persons age 60 and over from employment as second officers (see p. 2, supra). This would not in itself preclude a BFOQ defense. Significantly, however, this was coupled with the facts that petitioner actually applied to younger employees in this position standards of health or fitness that many older persons obviously could meet, and that petitioner never claimed it could verify compliance with those standards by older employees only by using age as a proxy. Thus, petitioner wholly failed to establish that its age criterion was being used as a proxy for some other qualification that, arguably, is reasonably necessary to the second officer position. On this record, petitioner's discrimination against respondents was on the basis of age simpliciter. Accordingly, there is no need in this case to proceed with the second prong of the Tamiami analysis, involving the justifiability of using age as a proxy for another employment criterion. 2. In any event, petitioner has failed to make the requisite showing under the second prong as well. Petitioner argues that it should have to show only that it had a factual basis for believing that individualized testing (for its asserted non-age qualification) is not practicable and should not have to persuade the trier of fact by a preponderance of the evidence that the latter proposition is so (Br. 26-28). /21/ In essence, petitioner asks that it be permitted to continue its mandatory retirement policy, even though the evidence at trial showed that it could deal with flight engineers on an individualized basis, simply because it assertedly acted with a rational belief that age was a BFOQ. Such a result would be contrary to the entire purpose of the ADEA, which was to require that older workers be accorded individual treamtment to qualify for employment whenever possible. There is no indication that Congress wished to defer to employers' judgments about the need for age limits. Instead, Congress was concerned that employers were generally excluding older persons from employment without an adequate basis (pp. 6-8, supra). Its intent was to correct that situation, and to permit age limits only when their legitimacy could be objectively demonstrated. See, e.g., Labor Report 7-9; 123 Cong. Rec. 34319 (1977 (Sen. Javits); H.R. Rep. 805, 90th Cong., 1st Sess. 14 (1967) (supplemental views); Leg. Hist. 24-26, 506. In our legal system, such a demonstration is made by proof by a preponderance of the evidence. Contrary to petitioner's assertions (Br. 27), this does not require it "to prove medical science issues to a certainty." The instructions to the jury clearly negated any such requirement (Tr. 2618). Instead, petitioner had to persuade the jury only that "it was more likely true than not true" that the company could not assure sufficient qualifications without use of an age limit (Tr. 2618, 2617). This standard leaves room for an employer to make to the trier of fact many of the arguments petitioner makes in its brief. /22/ If the evidence shows that credible expert testimony is divided on the efficacy of individualized testing, an employer can argue that the judge or jury should be conservative in evaluating the evidence, so as to ensure that high safety standards are met. There is no reason to believe that judges and juries, who are after all members of the traveling public, will be unsympathetic to such concerns. /23/ And the trier of fact can also be urged to weigh, along with other relevant concerns, the risk of making a wrong judgment for the particular job involved. /24/ Petitioner proposes, by contrast, a standard that would mean the employer must prevail if the jury finds any reasonable basis for its policy -- essentially, if it presents any expert testimony or factual evidence to support its policy, even if that evidence is far less credible or persuasive than plaintiff's evidence. Such an approach is inconsistent with the legislative history discussed above; /25/ it is not necessary to ensure safety and certainly is inadequate to protect the older worker's right to be judged as an individual except where age is a BFOQ. /26/ That petitioner failed to persuade the jury that it was necessary to use an age limit rather than an individualized approach in employing flight engineers reflects not onerousness in the standard of proof, but rather the unpersuasiveness of petitioner's evidence. The overwhelming evidence at trial showed that the qualifications for the flight engineer position could be ascertained through individualized testing. The basic health and fitness of all flight engineers is assured through an annual physical examination conducted under FAA guidelines (Tr. 613-614). Moreover, petitioner assesses the continued competence of its flight engineers through periodic inflight proficiency reviews, and tests conducted in sophisticated computerized flight simulators (Tr. 38-39, 45, 614). While these tests serve to assure individual fitness at any age (Tr. 44, 450, 452, 532, 614), further tests are available which petitioner could use to test for specific disabilities sometimes associated with aging. Use of tests such as a risk factor analysis and a stress EKG are effective in eliminating those flight engineers who are at risk of suffering a heart attack or stroke in this next year (Tr. 621, 625, 628, 654-655). Similarly, mental impairments, such as a slowed reaction time, can be identified through individual testing (Tr. 637, 651, 998, 1039, 1417). We do not dispute, of course, that these tests cannot identify every flight engineer who might become incapacitated. The margin of error is, however, quite low. /27/ Petitioner's practices show that this margin of error is tolerable in the flight engineer position. If it were not, petitioner could continue to employ middle-aged flight engineers during the high risk years for cardiovascular illness without even administering an EKG (Tr. 593, 679). /28/ Nor could it re-employ individuals in this position following a prior heart attack, an event that substantially increases the risk of future incapacitation (Tr. 667, 707, 1586, 1589-1590). /29/ Thus, the evidence clearly showed that the level of qualifications needed for the flight engineer posisiton could be ascertained on an individual basis, and the jury therefore properly concluded that age below 60 is not a "bona fide occupational qualification" for the job. This conclusion is buttressed by the facts that the FAA has never considered it necessary to extend its "age 60 rule" to flight engineers, 49 Fed. Reg. 14692, 14694-14695 (1984), and that other airlines employ flight engineers over 60 without any demonstrated reduction in safety (Tr. 266, 273, 955). /30/ Permitting an employer to escape liability if it merely can produce some evidence at trial to support its age-based policy would severely undermine the congressional intent to require employers thoughtfully to re-examine their use of age limitations and continue only those where age is a necessary qualification for the job. It is the prospect of liability under the Act that serves as a "spur or catalyst" for such self-examination. Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417, 418 (1975). Moreover, requiring proof that an age limit is "reasonably necessary" to safety will cause employers to evaluate seriously both the needs of safety and their obligations to eliminate unnecessary age discrimination, with the possibility of a net gain to the public on both counts. Cf. EEOC v. Wyoming, 460 U.S. at 239. /31/ II. WHERE, AS HERE, THE PLAINTIFFS HAVE PROVED A PATTERN OF AGE-BASED DIFFERENTIAL TREATMENT, THE EMPLOYER BEARS THE BURDEN OF PROVING ITS ENTITLEMENT TO THE STATUTORY AFFIRMATIVE DEFENSE THAT THE DISPARITY IS DUE TO A REASONABLE FACTOR OTHER THAN AGE A. Section 4(a)-(e) of the ADEA sets forth a broad proscription of employment decisions based on age. Section 4(f) then carves out certain exceptions from the Act's prohibitions. /32/ Section 4(f)(1) states that it shall not be unlawful for any employer: 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. Here, respondents alleged and proved a pattern of age-based differential treatment -- thus showing that petitioner's conduct was "otherwise prohibited" by the Act. Once such a showing has been made, the exceptions from liability specified in Section 4(f)(1) obviously operate as affirmative defenses which permit the conduct despite its discriminatory nature. Under the RFOA exception, an employer can continue a practice that favors younger employees if the practice is shown to be based on "reasonable factors other than age." See Laugesen v. Anaconda Co., 510 F.2d 307, 314-315 (6th Cir. 1975); Massarsky v. General Motors Corp., 706 F.2d 111, 117 n.11, 123 n.20 (3d Cir. 1983). Although the ADEA's legislative history does not contain extensive discussion of the RFOA exception, Congress did emphasize that the Act did not invalidate the use of legitimate job criteria such as reasonable physical qualifications or tests for speed, and that an employer need not hire an older worker who could not meet these qualifications. H.R. Rep. 805, 90th Cong., 1st Sess. 7 (1967); S. Rep. 723, 90th Cong., 1st Sess. 7 (1967); 113 Cong. Rec. 31253 (1967) (remarks of Sen. Yarborough, floor manager); Leg. Hist. 80, 111, 144. Congress did, however, expressly limit the justification for differences in treatment to "reasonable" factors. Thus, the RFOA defense is available only where there is a business justification for the factor relied upon. See Laugesen v. Anaconda Co., 510 F.2d at 314-315; EEOC Guidelines, 29 C.F.R. 860.103(f), 33 Fed. Reg. 9173 (1968). /33/ Since the RFOA provision creates an exception to the ADEA, it should be narrowly applied and, as with any affirmative defense, the employer bears the burden of proving its entitlement to the exemption. /34/ This is precisely how this Court has treated an almost identical exception in the Equal Pay Act for differentiations based on "any other factor other than sex." 29 U.S.C. 206(d). See Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974). There is no logical reason for treating the very similar exemption in the ADEA any differently. Indeed, other exemptions in Section 4(f) of the ADEA have uniformly been interpreted as affirmative defenses upon which the employer has the burden of proof. See EEOC v. City of St. Paul, 671 F.2d at 1166 (BFOQ defense); Smallwood v. United Air Lines, Inc., 661 F.2d at 307 (same); Sexton v. Beatrice Foods Co., 630 F.2d 478, 486 (7th Cir. 1980) (bona fide employee benefit plan or seniority system defense under Section 4(f)(2) of the ADEA). In the present case, the only "reasonable factor" identified by petitioner was its seniority system. Since it clearly would have had the burden of proving this defense had it been pleaded under Section 4(f)(2), there is no reason why it should escape this burden merely because it chose to proceed under Section 4(f)(1). In contending that an employer does not have the burden of proof of an RFOA defense, petitioner cites cases that have extended the order of proof devised by this Court for individual claims of discrimination under Title VII of the Civil Rights Act to comparable claims under the ADEA. Those cases, while properly decided, simply do not involve an RFOA defense. They involve alleged discrimination against an individual, where the dispositive issue was whether a particular employment action detrimental to the plaintiff was taken "because of (his) age." 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 properly applied the principles established in McDonnell Douglas Corp. v. Green, supra, and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under this method of proof, a plaintiff may make out a prima facie case without any direct evidence of discrimination if he can present evidence from which an inference of discrimination can properly be drawn. McDonnell Douglas, 411 U.S. at 802; International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977). This is usually done by eliminating the most obvious reasons for the challenged personnel action, such as absence of vacancies or plaintiff's failure to meet the qualifications for the job. Once the plaintiff has made this showing, the employer is required to "articulate some legitimate, nondiscriminatory reason" for its action. McDonnell Douglas, 411 U.S. at 802. This does not shift the burden of persuasion to the employer; it serves merely to narrow the focus of plaintiff's case to rebutting the specific reasons alleged for his rejection. Burdine, 450 U.S. at 254-256. The plaintiff can then discharge the ultimate burden of proving discriminatory motivation by demonstrating that the employer's proffered reasons are a pretext. This can be shown by evidence that discrimination more likely motivated the employer or by evidence that the employer's explanation is unworthy of belief. Id. at 256. The statutory RFOA defense is not equivalent to the employer's interim burden at the second stage of a McDonnell Douglas type case. At the second stage of such a case, discrimination has not yet been established. The plaintiff has merely made a prima facie showing from which, if unexplained, an inference of discrimination will be drawn. See Burdine, 450 U.S. at 254 n.7. The employer's burden is not to prove a defense but merely to sharpen the inquiry into motivation by focusing the remainder of plaintiff's case on the asserted reasons for his rejection. The RFOA defense, by contrast, comes into play only after the plaintiff has proven its case-in-chief of discrimination -- for example by showing a pattern of rejecting older candidates, or a policy that operates to deny employment opportunities to older individuals. The employer then must justify this discriminatory pattern or policy by showing that it resulted from the use of reasonable selection criteria. Considerable confusion has arisen because employers have referred to their rebuttal of a plaintiff's prima facie showing under McDonnell Douglas as a defense of "reasonable factors other than age" under Section 4(f)(1). Courts have sometimes adopted this terminology in resolving these individual claims of discrimination, by describing the RFOA defense as nothing more than the articulation of legitimate nondiscriminatory reasons under McDonnell Douglas. See, e.g., Krieg v. Paul Revere Life Insurance Co., 718 F.2d 998 (11th Cir. 1983), cert. denied, No. 83-1383 (Apr. 2, 1984); Schwager v. Sun Oil Co., 591 F.2d 58 (10th Cir. 1979); Marshall v. Westinghouse Electric Corp., supra. While we have no quarrel with the disposition of those cases, we believe the term "reasonable factors other than age" is best reserved for a true affirmative defense following proof of plaintiff's case-in-chief. As the Third Circuit has observed, equating the RFOA defense with an employer's mere denial of discriminatory motivation robs Section 4(f)(1) of any meaning -- there is no need for an exception to the statute where age did not play a role in the personnel action to begin with. Massarsky v. General Motors, 706 F.2d at 117 n.11. Our submission that the RFOA exception is an affirmative defense is also supported by the administrative interpretations of the ADEA. Initially, the ADEA was enforced by the Department of Labor. In guidelines published just six months after the passage of the Act, that agency identified the RFOA provision as a narrow exception to the Act concerning which the employer would bear the burden of proof. 29 C.F.R. 860.103(e), 33 Fed. Reg. 9173 (1968). Moreover, the guidelines identified the exception as applying to across-the-board selection or performance criteria (such as physical fitness tests or educational qualifications), which could be shown to be reasonably related to the demands of the job. 29 C.F.R. 860.103(f). This contemporaneous interpretation is entitled to great weight. Dothard v. Rawlinson, 433 U.S. 321, 334 n.19 (1977). Moreover, the fact that Congress gave thorough consideration to the Section 4(f) exceptions in 1978 when it amended the ADEA, /35/ and yet did not alter their administrative interpretation, further strengthens the presumption that the interpretation accords with congressional intent. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969); Zemel v. Rusk, 381 U.S. 1, 11 (1965). When the EEOC assumed responsibility for ADEA enforcement, it continued to view the RFOA exception as applicable to general selection criteria used by an employer that disfavor older workers. 29 C.F.R. 1625.7, 46 Fed. Reg. 47727 (1981). It also continued to require the employer to present a business justification for these criteria (ibid.), and continued to view the RFOA as an affirmative defense applicable after discrimination has been established. See preamble to final agency interpretations, 46 Fed. Reg. 47725 (1981) (interpretation not intended to apply to employer's burden of rebutting prima facie case). /36/ B. Petitioner raised the RFOA defense in response to respondent's claim that Captains Criswell and Starley had been denied transfers to the second officer position due to their age. Petitioner did not deny that it had a policy of requiring all 60-year-old pilots to retire rather than transfer to a lower position in the cockpit. Instead, it argued that this policy was due to "reasonable factors other than age" in that it had a general policy, reflected in its collective bargaining agreement, of prohibiting downward transfers by pilots. /37/ The issues concerning downbidding were not appropriate for analysis under the method outlined in McDonnell Douglas. Respondents were not challenging isolated terminations alleged to have been motivated by age bias. Rather they challenged an express, facially age-based company policy, which deprived all pilots at age 60 of the opportunity to transfer to second officer positions. In support of their claim, respondents did not merely show, as in a McDonnell Douglas type case, that they met the minimum qualifications for a vacant position. Instead, they produced direct evidence of disparate treatment. While all age 60 pilots were denied the opportunity to transfer to positions not covered by the FAA rule, petitioner had permitted more than 400 younger pilots to downgrade (Pet. App. A42; PX 28) in order to preserve their employment when displaced from their pilot positions for such reasons as reduction in force, medical disability, incompetence, personal hardship, or even for disciplinary reasons (Tr. 401, 406-416, 437-438, 1910-1913). These transfers occurred both pursuant to provisions of the collective bargaining agreement and in the absence of any applicable provision (Tr. 413, 1852, 1912, 1916-1917). The only displaced pilots who were not given such transfer opportunities were pilots affected by the FAA age 60 rule (Pet. App. A42). The district court squarely paced upon respondents the burden of proving age discrimination by a preponderance of the evidence (Tr. 2621, 2630). No burden shifted to petitioner unless respondents persuaded the jury that their claim was true. /38/ If the jury believed respondents' evidence showing a broad pattern of discrimination in transfer opportunities, then petitioner could not rebut this showing by merely articulating a non-discriminatory reason for its actions. /39/ Rather, under Section 4(f)(1), it had to prove that this pattern was attributable to some reasonable factor other than age. Thus, the district court correctly assigned petitioner the burden of proof as to this affirmative defense. /40/ The only evidence petitioner presented to discharge this burden was the arbitration award issued by the System Board of Adjustment. The Board concluded that respondents' downbids had properly been denied under the collective bargaining agreement. This did not establish an RFOA. The Board determined only that there was no specific mechanism in the collective agreement to permit age 60 pilots to downbid. Respondents' claim at trial, however, was that the transfer policies incorporated in the agreement (and otherwise practiced by petitioner) were discriminatory, since they did enable similarly situated younger pilots to downbid when displaced from pilot positions. That a discriminatory policy is enshrined in a collective bargaining agreement is no defense to an ADEA claim. Levine v. Fairleigh Dickinson University, 646 F.2d 825, 832 (3d Cir. 1981). Indeed, the Board clearly considered age in its interpretation of the contract, by relying on its conclusion that the parties had not meant to authorize downbidding "for the obvious purposes of evading the application of (the) agreed mandatory retirement plan" (Pet. App. A89). Contract provisions on downbidding that are thus designed or applied to maintain an involuntary retirement policy for employees less than age 70, a policy which is itself unlawful under the ADEA as amended, /41/ cannot be a "reasonable factor() other than age" within the meaning of Section 4(f)(1). Accordingly, the jury properly rejected petitioner's RFOA defense. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. REX E. LEE Solicitor General LAWRENCE G. WALLACE Deputy Solicitor General HARRIET S. SHAPIRO Assistant to the Solicitor General JOHNNY J. BUTLER General Counsel (Acting) PHILIP B. SKLOVER Associate General Counsel VINCENT BLACKWOOD Assistant General Counsel BARBARA LIPSKY Attorney Equal Employment Opportunity Commission DECEMBER 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, individuals past the age of 60 may not serve as either captains or copilots (14 C.F.R. 121.383(c)). Neither this nor any other FAA regulation restricts the employment of flight engineers after the age of 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/ A subsequent class action by other captains and second officers of petitioner (Stone v. Western Airlines, D.C. No. 81-5521), in which the district court gave collateral estoppel effect to its decision in Criswell, was consolidated with that case in the court below. The petition here seeks review of both judgments. /4/ Respondents Criswell and Starley, who were near the head of the seniority list for flight officers, submitted bids for second officer vacancies. Starley's bid was initially granted, but the grant was rescinded shortly after petitioner rejected his request to continue working after his sixtieth birthday (Pet. App. A3, A33; PX 14, 15). Criswell's bid was also rejected (Pet. App. A3). Criswell and Starley challenged the denial of their bids under the grievance procedures provided by their union's collective bargaining agreement. The arbitration panel held that the denial of respondents' bids did not violate the agreement (id. at A84-A94). The panel concluded that, although the contract's language appeared to permit any captain to downbid on the basis of seniority to any second officer vacancy in wide-body planes, the parties had not meant to permit this where the downbid was filed "for the obvious purposes of evading the application of (the) agreed mandatory retirement plan" (id. at A89). In dissent, one panel member stated that the express language of the provision permitting the requested downbid was fully consistent with the collective agreement's seniority system, which established the right to "freedom of choice in bidding permanent vacancies" in accordance with a pilot's seniority (id. at A93). /5/ In its opinion, the court of appeals also affirmed a preliminary injunction reinstating second officer Albert White, which was entered in Stone v. Western Air Lines (Pet. App. A95). See n.3, supra. In a subsequent decision, the district court also issued a preliminary injunction reinstating the captains in the Stone case to second officer positions pending trial (Pet. App. A112). That order was not involved in the court below, and is not at issue here. /6/ In the Civil Rights Act of 1964, Congress directed the Secretary of Labor to study age discrimination in employment and make recommendations for legislation to cure this problem. 42 U.S.C. 2000e-14. The report cited in the text resulted from this study and served as a prime impetus for the enactment of the ADEA. See EEOC v. Wyoming, 460 U.S. 226, 230-231 (1983). The report is reprinted along with other documents comprising the legislative history of the ADEA, in EEOC, Legislative History of the Age Discrimination in Employment Act (1981) (Leg. Hist.). The hearings conducted on the ADEA by congressional committees are printed separately: Age Discrimination in Employment: Hearings on H.R. 3651, H.R. 3768, and H.R. 4221 Before the General Subcomm. on Labor of the House Comm. on Education and Labor, 90th Cong., 1st Sess. (1967) (House Hearings); Age Discrimination in Employment: Hearings on S. 830 and S. 788 Before the Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 90th Cong., 1st Sess. (1967) (Senate Hearings). /7/ These findings were reaffirmed by Congress in the mid-1970's when it considered ways to strengthen the ADEA. Leg. Hist. 227, 343-344, 372, 412, 427, 435, 481. /8/ The Secretary of Labor advised Congress that those instances would occur rarely, and that in almost all occupations individual assessment of ability could be made. Senate Hearings 38, 51-52; House Hearings 9. /9/ Indeed, the sponsor of an earlier bill to prohibit age discrimination that contained similar language referred to it as "the basic bona fide occupational qualification provision (consisting of) * * * words of art to take care of any valid employment problem because of age." 112 Cong. Rec. 20820 (1966); Leg. Hist. 51 (remarks of Senator Javits). /10/ On June 15, 1964, the Senate rejected, by a vote of 61 to 30, a proposed amendment that would have made the BFOQ exception available if "the employer involved believes, on the basis of substantial evidence, that the hiring of * * * an individual of a particular race, color, religion, sex, or national origin will be more beneficial to the normal operation of the particular business or enterprise involved or to the good will thereof than the hiring of an individual without consideration (of such characteristics)." Senator Case, a manager of the bill, asserted in the brief debate on the proposed amendment that it would "destroy the bill." 110 Cong. Rec. 13825-13826 (1964). /11/ Petitioner relies (Br. 16 n.9) on a passing remark by Secretary Wirtz that the exceptions in Section 4(f), which includes the BFOQ, are "obviously broad" (Senate Hearings 39). But the Secretary's testimony as a whole emphasized that individual ability, rather than age, should normally be the criterion for employment decisions. See, e.g., Senate Hearings 51-52; cf. EEOC v. Wyoming, 460 U.S. at 230-233. Of course, the BFOQ exemption applies broadly in the sense that it is available for any category of positions in any business, so long as the requisite standard is met. And it may well be that age will more frequently be a BFOQ than religion, national origin or even sex. That, however, does not mean that the two Acts contemplate the use of different standards. /12/ For example, in urging that the Act should outlaw the practice of many airlines of refusing to permit stewardesses to serve after they reached age 32 or 35, a number of Representatives rejected the airlines' claim of a BFOQ as unpersuasive. "A bona fide occupational qualification which one airline can insist upon and another ignore, and which the same airline can use or drop to meet its own scheduling convenience, seems to us to lack something in the way of objective justification." H.R. Rep. 805, 90th Cong., 1st Sess. 14 (1967) (supplemental views). /13/ The committee amendment referred to was eventually eliminated in conference, because it "neither added to nor worked any change upon present law." H.R. Rep. 95-950, 95th Cong., 2d Sess. 7 (1978); Leg. Hist. 518. See also 123 Cong. Rec. 34319 (1977); Leg. Hist. 506 (Senator Javits, explaining that the BFOQ "can be proved * * * (when) the employer can demonstrate that there is an objective, factual basis for believing that virtually all employees above a certain age are unable to safely perform the duties of their jobs and where, in addition, there is no practical medical or performance test to determine capacity."). Moreover, Representative Pepper, one of the principal authors of the bill that became the 1978 Amendments, emphasized that "(t)he exception under Section 4(f)(2) of the act is just that -- an exception -- and as such must be viewed in the narrowest sense" (124 Cong. Rec. 7886 (1978); Leg. Hist. 533). This same principle applies to the parallel exception in 4(f)(1), the BFOQ. /14/ This guideline is reprinted in a working paper on Improving the Age Discrimination Law prepared for use by the Senate Special Committee on Aging in 1973 (Leg. Hist. 215, 241). It was accordingly part of the record on which Congress acted in considering amendments to the ADEA. Those amendments indicate no disagreement with the agency interpretation of the BFOQ. /15/ Indeed, the explanations in the legislative history of the 1978 ADEA Amendments of the showing an employer must make to establish a BFOQ (see pp. 9-10, supra) essentially paraphrase the Tamiami analysis. /16/ Orzel v. City of Wauwatosa Fire Dep't, 697 F.2d 743, 753 (7th Cir.), cert. denied, No. 83-205 (Nov. 28, 1983); Tuohy v. Ford Motor Co., 675 F.2d 842, 844-846 (6th Cir. 1982); Stewart v. Smith, 673 F.2d 485, 491 n.26 (D.C. Cir. 1982); EEOC v. County of Santa Barbara, 666 F.2d 373, 376 (9th Cir. 1982); Arritt v. Grisell, 567 F.2d 1267, 1271 (4th Cir. 1977); Hougton v. McDonnell Douglas Corp., 553 F.2d 561, 564 (8th Cir.), cert. denied, 434 U.S. 966 (1977). /17/ Petitioner nevertheless appears to suggest that it is sufficient if it shows a correlation between age and performance and that the age limit is "effective" in eliminating unqualified workers (Br. 19 n.15, 24 n.19). This is not sufficient under the Tamiami analysis, and is not consistent with the emphasis in the ADEA on requiring employers to base employment decisions on the actual abilities of individuals, not on group norms. Cf. Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 708 (1978) (even a true generalization about a protected class is an insufficient reason for disqualifying individuals to whom the generalization does not apply). It is only when age is the only practical method of eliminating unqualified workers that it is a BFOQ. /18/ Petitioner incorrectly asserts (Br. 36) that the jury instructions here encouraged the jury to substitute its own judgment for that of petitioner as to what job qualifications would ensure safe operations. While the instructions did not track the Tamiami two-prong analysis as clearly as they might have, all the essential elements of that analysis were included. The jury was told that petitioner could establish a BFOQ by showing that some second officers over age 60 possess "traits of a physiological, psychological or other nature which preclude safe and efficient job performance" and that it was "highly impractical" to make individualized retirement decisions (Tr. 2627). This combines all the basic features of both prongs of the Tamiami test: it permits use of age if there are qualifications (the absence of negative "traits") needed for safe performance that cannot practicably be determined through individualized testing. Moreover, the jury was told that the general standard by which it should judge petitioner's asserted BFOQ was whether it was "reasonably necessary" to the safe transportation of passengers (Tr. 2626). This standard obviously would have been applied by the jury in evaluating both the qualifications relied upon by petitioner and its use of age rather than individualized assessments. /19/ The flight engineer is not responsible for flying the plane (Pet. App. 38A; Tr. 7, 2261). His duties are limited to monitoring the electrical and mechanical systems of the aircraft (Pet. App. A38; Tr. 2262), and are performed under the direct supervision of the captain (Tr. 47, 377, 2044). In the event of incapacitation of the flight engineer, the captain and copilot are trained to perform his duties in addition to their own so that the flight can be completed safely (Pet. App. A14, A38; Tr. 329, 397, 504, 680-681, 957-958). Incapacitation of a flight engineer has never been a case of or a factor in an accident (Pet. App. A14, A38; Tr. 696). /20/ Nor is there merit to petitioner's contention that the instructions were deficient because they did not specifically inform the jury that petitioner is obligated to provide "the highest possible degree of safety" (Br. 42-43). The jury was carefully instructed that safety was the essence of petitioner's business, and that flight engineers had to be able to perform their duties both safely and efficiently (Tr. 2626-2627). Petitioner, in its closing argument, reminded the jury of its duty to provide the "highest degree of safety" (Tr. 2514). From the evidence and their common experience, the jurors clearly understood the importance of prevention of airline accidents. Thus, petitioner's contentions were fully before the jury. The precise wording of the jury charge must be left to the discretion of the district court, provided that the instructions and record as a whole make clear that the jury's attention was focused on the proper issues and standards. 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). /21/ In support of this contention, petitioner cites a number of cases which, in stating the second prong of the BFOQ test, have said that an employer must show "reasonable cause, i.e., a factual basis for believing" that either all older workers are unqualified or that individual testing is not possible. See, e.g., Tamiami, 531 F.2d at 236; Arritt v. Grisell, 567 F.2d at 1271. This "reasonable cause" language has been used without consistency or explanation. Some courts use it only in reference to the first alternative showing that all older workers are disqualified; others use it to refer to the individualized testing showing as well. Compare EEOC v. City of St. Paul, 671 F.2d 1162, 1168 (8th Cir. 1982), with EEOC v. University of Texas, 710 F.2d 1091, 1093 (5th Cir. 1983). Moreover, the same court will include this phrase in some statements of the BFOQ test and omit it in others within the same opinion. See University of Texas, 710 F.2d at 1093, 1096; Orzel, 697 F.2d at 753, 755-756. Despite this semantic variation, no court has suggested that it is imposing a lighter burden on the employer than proof by a preponderance of the evidence that the BFOQ is justified. Rather, the courts have uniformly stressed that the employer has the burden of proving the existence of a BFOQ by objective evidence, and that a "reasonable basis" for the policy is insufficient. Heiar v. Crawford County, 35 Fair Empl. Prac. Cas. at 1463; University of Texas, 710 F.2d at 1093, 1094, 1096; Orzel, 697 F.2d at 748-749, 752, 755. /22/ As explained pp. 14-15, supra, it is doubtful that the evidence at the trial here would have supported them. /23/ Congress specifically chose to entrust juries with the resolution of age discrimination claims, including those where a BFOQ defense is asserted. Section 7(c)(2) of the ADEA, 29 U.S.C. 626(c)(2); Lorillard v. Pons, 434 U.S. 575 (1978). /24/ Contrary to petitioner's assertions, the present case was not simply one where the jury was asked to credit one expert rather than another. Petitioner's expert agreed that medical tests could assure fitness of flight engineers on an individualized basis beyond age 60 (Tr. 1675-1678). He endorsed the age 60 policy primarily because he believed the FAA examination for flight engineers insufficient to assure cardiovascular and psychophysiological health (Tr. 1503, 1527, 1691). Petitioner presented no evidence that it would be impractical to use further tests. Such additional testing is, in fact, used by other airlines (Tr. 621-622, 1657-1658). /25/ Indeed, petitioner's proposed standard is the one contained in the Title VII BFOQ amendment rejected after Senator Case observed that it would "destroy the bill". See n.10, supra. /26/ Nor can petitioner rely on the FAA Age 60 rule to establish its BFOQ for flight engineers. The FAA rule does not apply to flight engineers, and the FAA has specifically announced that it does not regard the retirement of the flight engineer at age 60 as necessary to safety. 49 Fed. Reg. 14694 (1984). Similarly, the FAA findings as to the inability to test for pilot fitness on an individual basis did not relieve petitioner of its burden of proving that the lesser medical qualifications it required for flight engineers could not be tested on an individualized basis. Thus, testimony concerning the FAA findings was appropriately introduced, but not given conclusive weight on the issues in this case. /27/ For example, the risk that a healthy 60 year old, who has none of the established cardiovascular risk factors, will develop coronary heart disease (not necessarily including a heart attack) in the next six years is only about six percent (Tr. 1586; PX 118). The risk of the same individual's suffering a stroke is less than one percent (Tr. 1587; PX 117). Use of a stress EKG could further screen out those with a risk of heart disease (Tr. 1585). /28/ The evidence at trial showed that of the eight in-flight deaths of flight officers on U.S. and foreign air carriers from January 1961 to April 1968, six occurred between age 41 and 50, one between age 30 and 40, and one between 51 and 60 (Tr. 679, PX 161a). Dr. Mohler, respondents' expert witness, explained that this was because individuals who are susceptible to heart disease generally develop it in the mid-40's (Tr. 679). /29/ The re-employment of individuals as flight engineers following heart attacks illustrates the efficacy of individual testing. Even with this high risk group, assessments can be made to determine which individuals are healthy enough and have a sufficiently low risk of recurrence to return to work as the third crewmember in the cockpit (Tr. 653-656, 663, 1590). Petitioner's own expert witness conceded that the statistics do not support the risk of heart attack as a major concern in this case (Tr. 1667). /30/ At trial, petitioner presented no evidence that safety had been considered in continuing its "age 60 policy" after the 1978 amendments to the ADEA eliminated the pension plan exemption in Section 4(f)(2) of the Act. (See Crosland v. Charlotte Eye, Ear & Throat Hospital, 686 F.2d 208, 213 (4th Cir. 1982)). Its director of employee benefits merely testified that he had continued the age 60 policy in the pension plan in the mistaken belief that the FAA age 60 rule applied to flight engineers (Tr. 1759, 1795-1797). After trial, during proceedings on injunctive relief, a company attorney testified that petitioner had held a two-hour meeting concerning plaintiffs' charges of discrimination and had, at that time, decided to continue the age 60 retirement for flight engineers, in part because it was a safety measure (Tr. 2823-2825). He did not indicate what facts, if any, this conclusion was based upon. He merely said that petitioner reasoned by analogy from the FAA rule because it "could not afford to go out and do a lot of research on its own" (Tr. 2827). In reaching this decision, petitioner never consulted either its own medical director of the medical expert called at trial concerning the necessity of age 60 retirement for flight engineers (Tr. 597, 1515). /31/ Petitioner also complains that requiring proof by a preponderance of the evidence of the BFOQ will lead to inconsistent results in different cases, because some juries will accept while others will reject the use of age. Giving controlling weight to the employer's judgment, however, would result in inconsistent treatment of employees of different airlines. Congress could have ensured uniform practices if it had chosen to enact a schedule of appropriate age limitations for different occupations. Instead, it decided to adopt a case-by-case approach. H.R. Rep. 805, 90th Cong., 1st Sess. 7 (1967); S. Rep. 723, 90th Cong., 1st Sess. 7 (1967); Leg. Hist. 80, 111. This approach gives the employer considerable discretion, requiring only that it be able to produce 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. /32/ The legislative history clearly identifies the provisions of Section 4(f), included the RFOA defense, as "exceptions" to the Act. H.R. Rep. 805, 90th Cong., 1st Sess. 4 (1967); S. Rep. 723, 90th Cong., 1st Sess. 9 (1967); Leg. Hist. 77, 113. /33/ In describing the RFOA provision, Senator Yarborough noted that a reasonable factor is one that is related to the requirements of the job. 113 Cong. 31253 (1967); Leg. Hist. 144. Evidence before Congress showed, for example, that some facially neutral policies, such as rigid education requirements, could unfairly and unnecessarily disadvantage older workers. Labor Report 3, 15; Leg. Hist. 21, 32. See also Improving the Age Discrimination Law, prepared for use by the Sen. Spec. Comm. on Aging, 93d Cong., 1st Sess. 6 (1973); Leg. Hist. 224. /34/ A showing of entitlement to the RFOA defense would ordinarily consist of proof of both the existence of a uniformly applied selection criterion that disqualified plaintiffs and of its reasonableness in the business context. See EEOC v. Goodyear Tire & Rubber Co., 22 Fair Empl. Prac. Cas. 786, 787 (W.D. Tenn. 1980). /35/ See n.14, supra. /36/ The EEOC guidelines did, however, add a clarification to address the confusion that had arisen between individual McDonnell Douglas type cases and cases involving classwide practices. In individual cases, the guidelines specified that the employer would bear "the burden of showing that the 'reasonable factor other than age' exists factually." The preamble to the interpretations cites Loeb v. Textron, supra, for this proposition (46 Fed. Reg. 47725 (1981)), indicating that in individual cases the EEOC had no intention to depart from the McDonnell Douglas approach. The guidelines, however, clearly distinguish these individual claims from those involving uniform classwide selection criteria. In our Brief as Amicus Curiae opposing certiorari in this case, we did not clearly distinguish between the subsection of the EEOC guidelines which addresses only individual claims of discrimination (Section 1625.7(e)) and those which address classwide selection criteria (Br. 11). /37/ This was an alternative defense, applicable only if the jury rejected petitioner's primary defense that age was a BFOQ justifying the exclusion of anyone over age 60 from the second officer position. Since this alternative defense concerned only downbidding, it did not apply to respondent Ron, who was already a second officer. /38/ The court of appeals interpreted the jury instruction as shifting the burden of proof of the RFOA defense to petitioner following the proof of respondents' case-in-chief of discrimination. If this is what the jury instruction did, it is correct, for the reasons discussed above. In fact, the instructions may have placed a far lighter burden on petitioner. Although the jury was fold that petitioner had the burden of proof as to its affirmative defenses, the RFOA was not identified as such an affirmative defense (Tr. 2617). In sharp contrast to the treatment of the BFOQ and business necessity defenses, the specific charge on RFOA does not tell the jury that the burden of proof on this defense is on the employer (Tr. 2625, 2626-2627, 2628); see also Tr. 2628-2629). /39/ Even where a specific statutory defense is not involved, if the plaintiff presents, not merely a minimal prima facie case, but highly probative evidence showing a pattern of discrimination, the employer will risk an adverse decision by the trier of fact if it does not present persuasive evidence that the pattern is really due to a factor other than discrimination. See Teamsters, 431 U.S. at 358-360. /40/ Petitioner also objects (Br. 47) to a separate instruction that permitted the jury to analyze this aspect of the case under the disparate impact theory. See Teamsters, 431 U.S. at 335-336 n.15. The RFOA defense, however, was raised only in response to respondents' disparate treatment claim. The petition for a writ of certiorari did not seek to raise any issues concerning the alternative disparate impact instruction. We do not, however, that the courts of appeals have applied disparate impact analysis to invalidate practices which, while fair in form, act arbitrarily to deny employment opportunities to older workers. Leftwich v. Harris-Stowe State College, 702 F.2d 686 (8th Cir. 1983); Geller v. Markham, 635 F.2d 1027 (2d Cir. 1980), cert. denied, 451 U.S. 945 (1981); see also Monroe v. United Air Lines, Inc., 736 F.2d 394, 404 n.3 (7th Cir. 1984) petition for cert. pending, No. 84-774; EEOC v. Borden's, Inc., 724 F.2d 1390, 1392, 1394 (9th Cir. 1984). This is consistent with the language of the statute and its legislative history. See 29 U.S.C. 621(a)(2); Labor Report 3, 5, 15; Leg. Hist. 21, 22, 32. /41/ See 29 U.S.C. 623(f)(2): "(N)o * * * seniority system or employee benefit plan shall require or permit the involuntary retirement of any individual (between the ages of 40 and 70) because of the age of such individual * * * ."