Appeal From the United States District Court For the Middle District of Pennsylvania-Scranton; D.C. Civil No. 83-0321.
Before: ADAMS, HUNTER, Circuit Judges, and FISHER,*fn* District Judge
1. Pennsylvania law requires all state police officers to retire at age sixty. See 71 Pa. Cons. Stat. Ann. § 65(d) (Purdeon Supp. 1984). In March 1983, Lieutenand Otto Binker, whose mandatory retirement from the Pennsylvania State Police ("PSP") under this provision was imminent, brought suit in the United States District Court for the Middle District of Pennsylvania, seeking to enjoin enforcement of the age requirement on the ground that it violated both the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (1982), and the Fourteenth Amendment. Shortly thereafter, the Equal Employment Opportunity Commission ("EEOC") brought an action in the same court, challenging the age requirement under the ADEA, and seeking both injunctive relief and back-pay for all persons adversely affected by the law. The Binker and EEOC actions were consolidated in May 1983. In October 1984, the district court entered judgment in favor of the defendants, PSP and the Commonwealth of Pennsylvania, holding that the age limitation is a bona fide occupational qualification ("BFOQ") that is lawful under the ADEA. Relying principally upon that holding, the district court also concluded that the age limitation does not violate the Fourteenth Amendment. These consolidated appeals by Binker, EEOC, and PSP ensued.*fn1 The district court therefore granted an injunction pending the appeals, which prevented the mandatory retirement of any PSP officers who reached age sixty. Shortly thereafter, a group of younger PSP troopers scheduled for promotions petitioned to intervene of right in the EEOC-Binker case, asking the district court to modify its injunction pending appeal to prevent PSP from rescinding its then-current Promotion eligibility list. The district court found the petition untimely and denied it. The petitioners appeal from that order.
2. On the eve of oral argument for the court, the Supreme Court announced its decisions in two ADEA cases, Johnson v. Mayor of Baltimore, 472 U.S. 353, 105 S. Ct. 2717, 86 L. Ed. 2d 286 (U.S. 1985), which have clarified the test for determining whether age-related employment criteria are valid under the ADEA. We will therefore vacate district court's judgment and remand this case for reconsideration in light of Johnson and Criswell.*fn2
3. The ADEA provides that age may be a lawful criteria for employment decisions if it "is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business ....." 29 U.S.C. § 623(f)(1). In Criswell, the Supreme Court adopted the two-pronged BFOQ test first articulated in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976). Under this test, to establish a BFOQ test in an ADEA case an employer must first prove the existence of a job qualification "reasonably necessary to the essence of [its] business." Criswell, slip op. at 12. Second, the employer must prove that it is "compelled to rely on age as a proxy for the . . . qualifications validated in the first inquiry." Id. The employer may satisfy this second prong of the Tamiami Trail test by showing either that it has "reasonable cause, that is, a factual basis, for believing that all or substantially all persons (in excluded age group) would be unable to perform safely and efficiently the duties of the job involved," or that it is "impossible or impractical" to make individualized determinations of the capabilities of persons in the excluded group. Id. See Tamiami Trail, 531 F.2d at 236.
4. The appellants' primary contention here is that the district court misapplied the Tamiami Trail test by focusing on the wrong occupation. The majority of PSP officers at age sixty holds ranks higher than Tropper, and are assigned to primarily administrative positions that require infrequent physical activity. The appellants therefore argue here, as they did below, that the district court ought to have considered only whether age is a BFOQ for the relatively sedentary administrative assignments held by most older PSP officers. In rejecting this argument, the district court adopted the First Circuit's standard for defining "occupation" where a BFOQ defense is raised in an ADEA case involving state police jobs with similar requirements:
When . . . 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."
5. The district court found the PSP is paramilitary organization, based on undisputed evidence that all PSP officers, regardless of rank, are required to carry guns and to respond with appropriate police action in emergency situation, even when off-duty, and are subject to reassignment to street duties when necessary. The district court therefore equated the "occupation" of PSP officer generally with that of PSP Trooper. Accordingly, in determining whether age is a BFOQ for PSP officers, the district court considered only evidence of the extent to which the capacity to perform street police duties declines with age. Given the undisputed evidence of the traditional police duties incumbent upon all PSP officers, we believe that the district court was correct in finding that PSP is a paramilitary organization as defined by the First Circuit in Mahoney. We believe, moreover, that the Mahoney formulation is correct for defining "occupations" in paramilitary police organizations where all relevant personnel are required to be ready for emergency action, regardless of rank and general duties. We hold, therefore, that the district court applied the proper legal standard in determining whether the age limitation is a BFOQ.
6. We think, nevertheless, that the district court's application of the Tamiami Trail test does not fully satisfy the standards just announced in Criswell and Johnson. These cases make clear that "The BFOQ exception 'was in fact meant to be an extremely narrow exception to the general prohibition' of age discrimination contained in the ADEA." Criswell, slip. op. at 11 (quoting Dothard v. Rawlinson, 433 U.S. 321, 329, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977)). Hence, employers are ...