The opinion of the court was delivered by: HERMAN
Pennsylvania law currently provides that any member of the Pennsylvania State Police, regardless of rank, who reaches the age of sixty, must resign from the force,
unless at that age he has attained less than twenty years of service. 71 P.S. § 65(d)(Purdon's Supp. 1984-85). The Equal Employment Opportunity Commission (EEOC) and various State Police officers have attacked the validity of this law as a violation of the federal Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634.
The Commonwealth has countered that the mandatory retirement age is a bona fide occupation qualification reasonably necessary to the operation of the Pennsylvania State Police. 29 U.S.C. § 623(f)(1).
On March 11, 1983, we granted a temporary restraining order enjoining the State Police from mandatorily retiring individuals who reached the age of sixty. On June 23, 1983, following eight days of testimony, we granted a preliminary injunction in favor of Plaintiffs and continued to enjoin enforcement of the mandatory retirement age. Thereafter, further hearings and oral arguments were held to determine if a permanent injunction should be entered. The issue is ripe for decision.
In CHADHA, the United States Supreme Court struck down the legislative veto provision contained in the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1). This provision permitted either branch of Congress, by resolution, to invalidate the decision of the Executive Branch in permitting a deportable alien to remain in the United States. The legislative veto was held unconstitutional as violating the doctrine of separation of powers through misapplication of legislative power and procedure.
In their brief in support of their motion to dismiss, Defendants observed that the Reorganization Plan No. 1 of 1978, 92 Stat. 3781, which transferred the authority to enforce the ADEA from the Secretary of Labor to the EEOC, was enacted pursuant to the Reorganization Act of 1977, 5 U.S.C. § 901. The 1977 Reorganization Act permitted the Executive Branch to transfer enforcement authority by either House of Congress vetoing the reorganization plan. Defendants persuasively argue, thus, that the EEOC's authority to enforce the ADEA is void due to the violation of the bicameralism and presentment requirements of the Constitution. See EEOC v. ALLSTATE INSURANCE CO., 570 F. Supp. 1224 (S.D. Miss. 1983), appeal docketed, No. 83-4652 (5th Cir. October 19, 1983).
While the legislative veto provision in the 1977 Reorganization Act may be invalid under CHADHA, we find that the EEOC continues to have authority to enforce the ADEA. We believe the legislative veto provision is severable from the remainder of the 1977 Reorganization Act and that Congress has subsequently ratified the Reorganization Plan No. 1 of 1978. Moreover, we do not believe the CHADHA decision should be applied retroactively to invalidate the transfer of enforcement authority. Retroactive application would create chaos. In support of our position, we rely upon the following cases and the analyses contained therein: E.E.O.C. v. HERNANDO BANK, INC., 724 F.2d 1188 (5th Cir. 1984); MULLER OPTICAL CO. v. E.E.O.C., 574 F Supp. 946 (W.D. Tenn. 1983), appeal docketed, No. 83-5889 (6th Cir. Nov. 29, 1983); E.E.O.C. v. INTERNATIONAL MILL SERVICE, INC., No. 83-0749 (E.D. Pa. Feb. 22, 1984); E.E.O.C. v. STATE OF NEW YORK, 590 F. Supp. 37 (N.D. N.Y. 1984); E.E.O.C. v. CHRYSLER CORP., 595 F. Supp. 344 (E.D. Mich. 1984); E.E.O.C. v. EL PASO NATURAL GAS CO., No. EP-83-CA-108 (W.D. Tex. Jan 16, 1984); E.E.O.C. v. CBS, INC., No. 81-Civ.-2781-JES (S.D. N.Y. Jan. 13, 1984); E.E.O.C. v. PAN AMERICAN WORLD AIRWAYS, 576 F. Supp. 1530, 33 Fair Empl. Prac. Cas. 1232(S.D. N.Y. 1984) (BNA); E.E.O.C. v. CITY OF MEMPHIS, 581 F. Supp. 179, 33 Fair Empl. Prac. Cas. 1089(W.D. Tenn. 1983) (BNA); E.E.O.C. v. CUDAHY FOODS CO., 588 F. Supp. 13 (W.D. Wash. 1983); E.E.O.C. v. JACKSON COUNTY, MISSOURI, 4 E.B.C. 2655, 33 Fair Empl. Prac. Cas. 963 (BNA)(W.D. Mo. Dec. 13, 1983).
Under the ADEA, it is unlawful for any employer to discharge or to discriminate against any individual within the protected age class of forty to seventy because of that individual's age.
29 U.S.C. §§ 623(a)(1), 631. Nevertheless, such otherwise prohibited action is lawful "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, . . . ." Id. § 623(f)(1). The ADEA's provisions apply equally to private employers and to the State, its subdivisions, and its agencies. Id. § 630(b). See also EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WYOMING, 460 U.S. 226, 75 L. Ed. 2d 18, 103 S. Ct. 1054 (1983)(extension of ADEA to encompass state and local governments held constitutional).
Congress enacted the ADEA with the purpose "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment." 29 U.S.C. § 621(b); USERY v. TAMIAMI TRIAL TOURS, INC., 531 F.2d 224, 229 (5th Cir. 1976). In other words, the ADEA permits capable older workers to decide when to retire if they are physically and psychologically able to perform their jobs satisfactorily. E.E.O.C. v. CITY OF ALTOONA, PENNSYLVANIA, 723 F.2d 4, 6 (3d Cir. 1983), cert. denied, 467 U.S. 1204, 104 S. Ct. 2386, 81 L. Ed. 2d 344 (1984).
"The ADEA is remedial and humanitarian legislation which should be liberally interpreted to effectuate the congressional purpose of ending age discrimination in employment." BONHAM 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); BECK v. BOROUGH OF MANHEIM, 505 F. Supp. 923, 925 (E.D. Pa. 1981). To effectuate this purpose and to stop the very age stereotyping that the Act was designed to prevent, the bona fide occupational qualification (BFOQ) exception to the ADEA's prohibition against age discrimination is to be strictly and narrowly construed, ORZEL v. CITY OF WAUWATOSA FIRE DEPARTMENT, 697 F.2d 743, 748 (7th Cir.), cert. denied, 464 U.S. 992, 104 S. Ct. 484, 78 L. Ed. 2d 680 (1983); E.E.O.C. v. COUNTY OF SANTA BARBARA, 666 F.2d 373, 376 (9th Cir. 1982); SMALLWOOD v. UNITED AIR LINES, INC., 661 F.2d 303, 307 (4th Cir. 1981), cert. denied, 456 U.S. 1007, 73 L. Ed. 2d 1302, 102 S. Ct. 2299 (1982); TAMIAMI, 531 F.2d at 230. Moreover, the court should examine only the particular facts of the case before it. COUNTY OF SANTA BARBARA, 666 F.2d 373; STEWART v. SMITH, 218 U.S. App. D.C. 94, 673 F.2d 485, 491 n. 26 (D.C. Cir. 1982); TAMIAMI TRIAL TOURS, 531 F.2d at 230; 29 C.F.R. § 860.102(b)(1983).
Defendants assert that the standard we should apply in considering the BFOQ defense should be one of reasonableness: whether the retirement age is a reasonable necessity to the normal operation of the particular business. See Defendant's Post-Trial Brief, at 1-4. Defendants, however, merely parrot the statute, ignoring or misconstruing the overwhelming case law that enunciates a more strict, two-prong standard of review. See HEIAR v. CRAWFORD COUNTY WISCONSIN, 746 F.2d 1190 (7th Cir. 1984) (rejecting employer's argument that its age policy should be upheld "as long as that policy is 'not the result of an arbitrary belief lacking in objective reason or rationale' . . ."). Without doubt, Congress, in making a policy decision to prevent age discrimination, has created a standard that is not as deferential as that applied in equal protection analysis. ORZEL v. CITY OF WAUWATOSA FIRE DEPT., 697 F.2d 743, 749 (7th Cir.), cert. denied, 464 U.S. 992, 104 S. Ct. 484, 78 L. Ed. 2d 680 (1983); E.E.O.C. v. COUNTY OF SANTA BARBARA, 666 F.2d 373, 376 n.8 (9th Cir. 1982). See also TUOHY v. FORD MOTOR CO., 675 F.2d 842 (6th Cir. 1982)(rejecting test of whether mandatory retirement age is reasonable); ARRITT v. GRISELL, 567 F.2d 1267 (4th Cir. 1977) (minimal increase in harm standard rejected).
Accordingly, in determining whether a BFOQ exists, the employer must establish (1) that the age limit he invokes is reasonably necessary to the essence of the business, and (2) that he has reasonable cause, i.e., a factual basis, for believing either (a) that all or substantially all individuals within the excluded group are unable to perform their job duties safely and efficiently, or (b) that it is impossible or impractical to determine the disqualifying trait on an individual basis. E.E.O.C. v. COUNTY OF ALLEGHENY, 705 F.2d 679 (3d Cir. 1983); E.E.O.C. v. UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER, 710 F.2d 1091 (5th Cir. 1983); ORZEL v. CITY OF WAUWATOSA FIRE DEPT., 697 F.2d 743 (7th Cir.), cert. denied, 464 U.S. 992, 104 S. Ct. 484, 78 L. Ed. 2d 680 (1983); TOUHY v. FORD MOTOR CO., 675 F.2d 842 (6th Cir. 1982); E.E.O.C. v. CITY OF ST. PAUL, 671 F.2d 1162 (8th Cir. 1982); E.E.O.C. v. COUNTY OF SANTA BARBARA, 666 F.2d 373 (9th Cir. 1982); STEWART v. SMITH, 218 U.S. App. D.C. 94, 673 F.2d 485 (D.C. Cir. 1982); ARRITT v. GRISELL, 567 F.2d 1267 (4th Cir. 1977). Once the employee establishes that he/she has been discriminated against on the basis of his/her age, the burden shifts to the employer to establish both prongs of the test. TUOHY, 675 F.2d at 844; CITY OF ST. PAUL, 671 F.2d at 1166; SMALLWOOD v. UNITED AIR LINES, INC., 661 F.2d 303, 307 (4th Cir. 1981), cert. denied, 456 U.S. 1007, 73 L. Ed. 2d 1302, 102 S. Ct. 2299 (1982); TAMIAMI TRAIL TOURS, INC., 531 F.2d at 227.
B. Underlying Considerations
1. Statutory age provisions
In an analysis of the ADEA and of the application of the BFOQ defense, various underlying considerations have been addressed by the courts. One aspect is that the general truism that physical capabilities decrease as age increases is not sufficient evidence by itself to establish a BFOQ. The subjective opinions or stereotypical hunches of an employer regarding the effect of age on an employee's ability to perform particular job skills also are not sufficient. Rather, the employer "must demonstrate a specific, objective, or factual basis for its hiring qualifications based on age."
UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER, 710 F.2d at 1094; ORZEL, 697 F.2d at 755; BECK v. BOROUGH OF MANHEIM, 505 F. Supp. 923, 925 (E.D. Pa. 1981). See also HOUGHTON v. McDONNELL DOUGLAS CORP., 553 F.2d 561 (8th Cir. 1977)(company's "intuitive judgment" of when test pilot too old to fly rejected absent factual basis).
Moreover, the mere fact that a mandatory retirement scheme is compelled by a state or local statute does not entitle the legislatively determined retirement age to a statutory presumption of correctness. ORZEL, 697 F.2d at 751; CITY OF ST. PAUL, 671 F.2d at 1167. As the Court of Appeals for the Eighth Circuit has articulated, "we believe that in situations where age could be a BFOQ, Congress did not intend that mandatory retirement statutes be presumed valid. Rather, a case should be made when establishing that age is a BFOQ instead of relying on a legislative fiat." CITY OF ST. PAUL, 671 F.2d at 1167.
Accord COUNTY OF ALLEGHENY, 705 F.2d at 681-82; ORZEL, 697 F.2d at 751.
Two strong reasons exist for this policy. First, to permit an automatic presumption of validity or legislative deference would switch the burden of proof to the employee from the employer. Additionally, such a stance would unfairly place state and local governments in a better position than private employers. ORZEL, 697 F.2d at 751-52; CITY OF ST. PAUL, 671 F.2d at 1167.
2. Effect of federal mandatory retirement policies
Another consideration under the BFOQ defense is the effect, if any, of the existence of a federal mandatory retirement age as to a similar state or local government occupation. In JOHNSON v. MAYOR AND CITY COUNCIL OF BALTIMORE, 731 F.2d 209 (4th Cir. 1984), the Fourth Circuit concluded that Congress' 55-year old retirement age for federal firefighters established a BFOQ for Baltimore's 55-year old mandatory retirement age for its firefighters. The Seventh Circuit rejected this argument, however, in ORZEL v. CITY OF WAUWATOSA FIRE DEPARTMENT, 697 F.2d 743 (7th Cir.), cert. denied, 464 U.S. 992, 104 S. Ct. 484, 78 L. Ed. 2d 680 (1983). We find the ORZEL opinion to be more soundly reasoned and the correct statement of the law.
It is clear that for a small class of federal public safety employees, Congress has chosen not to be bound by the strict requirements of the ADEA. MAHONEY v. TRABUCCO, No. 83-1862, slip op. at 15-16 (1st Cir. July 2, 1984); ORZEL, 697 F.2d at 749; STEWART v. SMITH, 218 U.S. App. D.C. 94, 673 F.2d 485 (D.C. Cir. 1982). As a legal matter, the federal retirement schemes need only pass the rational relation test. VANCE v. BRADLEY, 440 U.S. 93, 97, 59 L. Ed. 2d 171, 99 S. Ct. 939 (1979); ORZEL, 697 F.2d at 749. See also STARR v. FEDERAL AVIATION ADMINISTRATION, 589 F.2d 307, 313-14 (7th Cir. 1978)(distinguishing between abuse of discretion analysis regarding FAA rule and the BFOQ analysis under ADEA). Under the ADEA, a mandatory retirement age must not only be rational, but it must be reasonably necessary to the operation of the particular business. ORZEL, 697 F.2d at 749.
"More important, the fact that Congress has determined that [a certain age] is an appropriate retirement age for one group of [public safety employees] does not automatically establish that the same retirement age is a valid BFOQ, under section 623(f) of the ADEA, for a wholly different group of employees, operating under different working conditions and performing significantly different job functions." Id. at 749. See also HEIAR v. CRAWFORD COUNTY, WISCONSIN, 746 F.2d 1190, Daily Labor Report (BNA)(No. 83-1872)(7th Cir. Aug. 20, 1984)(rejecting BFOQ argument based upon mandatory retirement age for federal law enforcement officers); TUOHY v. FORD MOTOR CO., 675 F.2d 842 (6th Cir. 1982)(FAA age 60 rule held not to establish a valid BFOQ for noncommercial pilots). Indeed, even the Supreme Court has noted that the strength of the federal government's interest in preventing age discrimination by state government and private employers is not negated by the existence of a mandatory retirement age for a small class of federal workers. E.E.O.C. v. WYOMING, 460 U.S. 226, 103 S. Ct. 1054, 1064, n. 17, 75 L. Ed. 2d 18 (1983).
In JOHNSON, supra, the court misconstrued WYOMING and took the phrase "reasonable federal standard", 103 S. Ct. at 1062, out of context. In WYOMING the Court held that the states' discretion to achieve its goals in the way they thought best was not being overridden entirely, but rather was being tested against a "reasonable federal standard", i.e., the ADEA. In the same paragraph, the Supreme Court held that the states still had to demonstrate that age was a BFOQ. To apply JOHNSON and uphold any state age statute merely because of the existence of a federal statute concerning similar-occupation employees would render the Supreme Court's opinion meaningless. We concur with the dissent in JOHNSON that whatever action Congress had undertaken with federal employees has little, if any, relevancy to reaching a correct decision regarding a state mandatory retirement age. JOHNSON, 731 F.2d at 216-18.
In reaching our conclusion, we are not unaware that some jurists consider that result unfair. See, e.g., HEIAR v. CRAWFORD COUNTY, WISCONSIN, 746 F.2d 1190, Daily Labor Report, at D-7-8 (BNA)(No. 83-1872) (7th Cir. Aug. 20, 1984)(Gibson dissenting). Senior Circuit Judge Gibson observed in his dissent in HEIAR, "as a matter of fundamental fairness, I think that if Congress legislates that age 55 is a bona fide requirement for retirement for federal personnel in the field of law enforcement and firefighters, it ought not and should not under our constitutional system enact different and more stringent restrictions on the state and local units of government, . . . ." Id. at D-7. Nevertheless, Congress has set different standards, applying a "rationally related" standard to federal mandatory retirement schemes and a "reasonably necessary" standard under the ADEA to state and local mandatory retirement schemes. Id.; ORZEL, 697 F.2d at 749. As the Supreme Court has stated, "Once Congress has asserted a federal interest, and once it has asserted the strength of that interest, we have no warrant for reading ...