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EEOC v. PENNSYLVANIA

May 12, 1983

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, J.

 Plaintiff, Equal Employment Opportunity Commission (EEOC), moving for partial summary judgment, argues that defendant, Pennsylvania Liquor Control Board's (PaLCB), mandatory retirement policy, which resulted in the discharge of four employees, *fn1" violates the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., (ADEA). Cross moving for summary judgment, the PaLCB asserts that the discharged workers, former Liquor Law Enforcement Officers, were properly retired and that the challenged policy, which compels retirement at age sixty-five, is a bona fide occupational qualification (BFOQ) within the meaning of 29 U.S.C. § 623(f)(1). We consider these contentions below.

 Passage of the ADEA represented a long-held desire to prohibit arbitrary age discrimination, Equal Employment Opportunity Commission v. Wyoming, 460 U.S. 226, 103 S. Ct. 1054, 75 L. Ed. 2d 18, 51 U.S.L.W. 4219, 4220 (1983), and to eliminate its presence in the workplace. Oscar Mayer Co. v. Evans, 441 U.S. 750, 756, 60 L. Ed. 2d 609, 99 S. Ct. 2066 (1979). The ADEA does not, however, necessarily prohibit employers from using age as a determinative employment criteria. Specifically, employers may engage in conduct which would otherwise violate the strictures of the ADEA so long as age represents 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.

 29 U.S.C. § 623(f)(1).

 The "remedial and humanitarian" nature of the ADEA warrants a broad, liberal construction of the Act which suffices to effectuate the Congressional purpose, Bonhan v. Dresser Industries, Inc., 569 F.2d 187, 193 (3d Cir. 1977), cert. denied, 439 U.S. 821, 58 L. Ed. 2d 113, 99 S. Ct. 87 (1979); this counsel against an expansive interpretation of the BFOQ defense. Orzel v. City of Wauwatosa Fire Dep't., 697 F.2d 743, 748 (7th Cir. 1983). To successfully invoke the BFOQ defense, an employer must demonstrate that the challenged policy is related to the duties of the particular job. McMann v. United Air Lines, Inc., 542 F.2d 217 (4th Cir. 1976); Equal Employment Opportunity Commission v. City of Janesville, 480 F. Supp. 1375 (W.D. Wisc. 1979). In making this showing, an employer may not rely upon "stereo-typical notions or hunches"; rather, it must adduce an "empirical justification" for its age limit. Beck v. Borough of Manheim, 505 F. Supp. 923, 925 (E.D. Pa. 1981).

 In the case at bar, Edgar D. Free, the Director of the Bureau of Personnel of the PaLCB attested to the fact that the policy under scrutiny springs from the "generally recognized diminution of an individual's physical capabilities brought upon as a normal effect of the aging process". Additionally, John T. Hale, Director of the defendant's Bureau of Enforcement, swears that Enforcement Officers must remain in top physical condition and that the job frequently involves late night and lengthy hours, high speed chases, consumption of alcohol and that visual and aural acuity are essential to the successful performance of the job. Continuing, Hale attests that each Enforcement Officer must be capable of performing all of the demanding duties which the job entails because no one officer has purely administrative duties. Hence, defendants argue that each Enforcement Officer must be in top physical condition and that the challenged policy, properly effectuating this goal, represents a BFOQ.

 Defendants further support their position by reference to the affidavit of Dr. Elsworth R. Buskirk, the recipient of a Ph.D. in physiology. He swears that the aging process "diminishes the capabilities of individuals to perform many of the necessary tasks of Enforcement Officers". Critically, however, defendants did not rely upon Dr. Buskirk's generalized findings when they formulated the mandatory retirement policy. *fn2" More importantly, the Buskirk affidavit simply attests to the fact that some capabilities are diminished with age; it does not claim that Enforcement Officers lose their abilities to perform their jobs upon reaching age sixty-five. Simply stated, the Buskirk affidavit could be used to support a mandatory retirement policy at virtually any so-called advanced age. It utterly fails to demonstrate that Enforcement Officers are incapable of performing their duties upon attainment of the particular age selected for retirement. See, Orzel v. City of Wauwatosa Fire Dep't., 679 F.2d at 755-56 (In order to assert the BFOQ defense, employers must demonstrate that the " particular age limitation adopted" justifies compulsory retirement solely on the basis of chronological age.)

 Defendants' affidavits only establish that Enforcement Officers have physically demanding jobs and that the aging process brings about certain physiological changes which generally result in the diminution of specified physical abilities. With this in mind, defendants promulgated the retirement policy at bar.

 This argument places undue weight upon Beck3 and overlooks the applicable regulation which provides that in order to properly invoke the BFOQ defense, the employer must prove that

 
(1) the age limit is reasonably necessary to the essence of the business, and either (2) that all or substantially all individuals excluded from the job involved are in fact disqualified, or (3) that some of the individuals so excluded possess a disqualifying trait that cannot be ascertained except by reference to age. If the employer's objective in asserting a BFOQ is the goal of public safety, the employer must prove that the challenged practice does indeed effectuate that goal and ...

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