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 into the ebbs and flows of political decisionmaking a conclusion that Congress was insincere in that declaration, and must from that point on evaluate the sufficiency of the federal interest as a matter of law rather than of psychological analysis." WYOMING, 103 S. Ct. at 1064 n.17.
3. The BFOQ and occupations involving public safety
In the case at bar, the mandatory retirement statute is applied to all Pennsylvania state police officers. None of the parties dispute that this occupation of law enforcement involves public safety. Because of society's concern for safety, the question arises as to the effect of a safety factor in establishing age as a BFOQ.
The first circuit court to address this issue initially held that where a business involved a high degree of skill and where the economic and human risks were great, the burden of establishing a BFOQ was lighter. The court thus eased the two-prong test by requiring the employer to show only a rational basis in fact of the employer's belief that increased age increased the risk of harm. HODGSON v. GREYHOUND LINES, INC., 499 F.2d 859, 863 (7th Cir. 1974), cert. denied sub nom., BRENNAN v. G.L., INC., 419 U.S. 1122, 42 L. Ed. 2d 822, 95 S. Ct. 805 (1975).
HODGSON appears to have been modified or overruled sub silencio by ORZEL v. CITY OF WAUWATOSA FIRE DEPT., 697 F.2d 743 (7th Cir. 1983). In ORZEL, the Seventh Circuit held that while public safety may be a valid local goal, the ADEA required a "particularized inquiry" into age limitations. Id. at 755. The court recognized that with safety as a factor, employers most likely would have less difficulty in demonstrating a BFOQ. Nevertheless, the employer still had to satisfy both prongs of the BFOQ test. Id.
In USERY v. TAMIAMI TRAILWAYS TOURS, INC., 531 F.2d 224 (5th Cir. 1976), where the two-prong test was first enunciated, the court addressed the question whether the presence of a safety factor should require courts to drop or to modify a component of the BFOQ test. The court decided that safety was important but that this aspect already was appropriately highlighted in the framework of the test through the first prong: safety was considered in determining if an age limit was reasonably necessary to the operation or essence of the business. The greater the likelihood of severity of harm, the more stringent the job requirements could be. Id. at 234-36. See also ARRITT, 567 F.2d at 1271 (considering whether the claimed BFOQ was reasonably necessary to the essence of the business, that being the operation of an efficient police department for the protection of the public).
Thus, the six circuits that have addressed the issue of public safety have not altered the BFOQ test to account for this aspect. ORZEL, 697 F.2d at 755-56; TUOHY, 675 F.2d at 844-45; COUNTY OF SANTA BARBARA, 666 F.2d at 377-78; MURNANE, 667 F.2d at 101; ARRITT, 567 F.2d at 1271; TAMIAMI TRIAL TOURS, INC., 531 F.2d at 235-36. Rather, public safety's role has been recognized as a competing policy concern calling for a "particular inquiry into the effect of aging on the ability to perform safely. . . ." TUOHY, 675 F.2d 842, 844 (6th Cir. 1982). An employer remains compelled to show that a mandatory retirement age is reasonably necessary to the operation of its business.
4. " Business" versus "occupation" differentiation
A serious consideration under the BFOQ analysis, which deeply affects this case, is the interpretation to be given to the word "business" in the ADEA's requirement that a BFOQ be "reasonably necessary to the normal operation of the particular business. . . ." 29 U.S.C. § 623(f)(1). Three circuits have addressed this point specifically, with three varying opinions.
In E.E.O.C. v. CITY OF JANESVILLE, 480 F. Supp. 1375 (W.D. Wis. 1979), the district court considered the Chief of Police's attack on the city's fifty-five year old mandatory retirement policy for "protective service" employees. The court rejected the city's contention that the "particular business" was the police department as a whole. Rather, in applying the ADEA and the BFOQ test, the court looked towards the particular activities of the particular employee or category of employees. Id. at 1378-79. Thus, the court construed "particular business" as being synonymous with "particular occupation."
The appellate court reversed the lower court's construction as being excessively narrow. E.E.O.C. v. CITY OF JANESVILLE, 630 F.2d 1254, 1258 (7th Cir. 1980). The Seventh Circuit panel refused to look beyond the plain meaning of the term "particular business", finding that Congress could have used the word "occupation" for "business" if it had so intended. The court concluded in the case before it that "the City had the burden of establishing that its mandatory retirement program, as applied to the generic class of law enforcement personnel employed by the City to operate the 'business' of its police department, falls within the terms of the BFOQ exemption provided under the ADEA." Id.
In E.E.O.C. v. CITY OF ST. PAUL, 671 F.2d 1162 (8th Cir. 1982), the Court of Appeals for the Eighth Circuit disagreed with the JANESVILLE opinion and reasoning. The court affirmed the district court's consideration of different subclasses of firefighting personnel and the lower court's finding that age was not a BFOQ for the city's fire chief.
The court stated that the plain meaning of the phrase "bona fide occupational qualification reasonably necessary to the normal operation of the particular business " did not preclude consideration of a particular occupation within a particular business. Id. at 1165.
The ST. PAUL court also examined the legislative history, finding Congress' intent to be to require employment decisions based on ability versus age. The court decided that the ADEA's goal would be frustrated if employment decisions were based on a generic class as a whole rather than giving separate consideration to the different occupations within a business. Id. at 1165-66. It would not be difficult to determine these occupations, the circuit found, because a court merely would have to look at the parties before it. The Eighth Circuit concluded, "We cannot believe that the ADEA was intended to allow a city to retire a police dispatcher because that person is too old to serve on a SWAT team." Id. at 1166.
The First Circuit, after reviewing the ST. PAUL and JANESVILLE decisions, chose to take a middle of the road approach. MAHONEY v. TRABUCCO, No. 83-1862, slip op. at 7-8 (1st Cir. July 2, 1984). The court accepted the concept that within any particular business, specific occupations may exist that require their own separate training, career progressions, and age limitations. Id. slip op. at 8. With the Massachusetts State Police, however, the First Circuit did not find such distinct occupations to exist but, rather, found officers to have only varying assignments. The court observed the following:
When, however, a person signs up on a paramilitary uniformed force, where one is subject to generally unrestricted reassignment and performance of the most strenuous duties in any emergency, and undergoes the military training required of all recruits, with the expectation of receiving special pension and disability benefits, we would be loath to equate particular "assignments", even if of long duration, to "occupations".
Id at 39.
In reversing the lower court's decision that the ADEA was best implemented by examining the specific duties of a state police officer, the appellate court observed that under the district court's analysis, any administrative or supervisory position in a strenuous occupation would never be subject to a BFOQ. Id. slip op. at 6. In a paramilitary organization, thus, various problems could arise. Poor-risk personnel could be compelled to perform demanding tasks or desk-bound personnel would not be able to be reassigned or called out on emergencies. Furthermore, duty assignments could be affected, interfering with the smooth operation of the system. Additionally, "this approach may also tempt some to seek a 'safe harbor' assignment, penalize the dutiful, discourage promotion, encourage litigation, and necessitate judicial determinations that turn on quality judgments, such as how sedentary is the assignment, . . . ." Id. at 38.
The MAHONEY court continued as follows:
The Eighth Circuit case [ CITY OF ST. PAUL ] is susceptible of two interpretations. It dealt with the position of fire chief; arguably this position was sufficiently distinct to be considered an occupation separate from that of the rest of the department. But the court in ST. PAUL went on to say, "we cannot believe that the ADEA was intended to allow a city to retire a police dispatcher because that person is too old to serve on a SWAT team." 671 F.2d at 1166. If this nicety of distinction were to govern, we would have to say that an age limit geared to those performing at critical times the most strenuous function of a unit could not be applied to those performing somewhat less strenuous functions. If such were the law, state troopers engaged in tracking down and apprehending car thieves and drug runners could be subjected to an age 50 retirement requirement, but those who merely had to chase speeders, to attend truck weighing stations, and to apprehend drivers under the influence of alcohol or without proper licenses would not be so subjected. This, we think, would atomize the general concept of "occupation".