Appeal from the United States District Court for the Middle District of Pennsylvania (SCRANTON), D.C. Civ. No. 83-0321.
Lieutenant Otto J. Binker and the Equal Employment Opportunity Commission (EEOC) appeal from the final order of the district court denying their motion for a permanent injunction. This court has jurisdiction under 28 U.S.C. § 1291 (1982).
Pennsylvania law requires all state police officers to retire at age sixty. 71 P.S. § 65(d) (Purdon Supp. 1987). Lieutenant Binker filed this action to prevent his imminent retirement from the Pennsylvania State Police (PSP) pursuant to the mandatory retirement law. Binker claimed that the law violated the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1982) (ADEA),*fn1 and the equal protection clause of the United States Constitution. U.S. Const. Amend. XIV. Shortly thereafter, the EEOC brought an action seeking injunctive relief and backpay for all persons adversely affected by the law. The actions were consolidated in May 1983.
In their defense, the Commonwealth and the PSP argued that the age limitation was a lawful bona fide occupational qualification (BFOQ).
In October 1984, the district court entered final judgment in favor of defendants. EEOC v. Pennsylvania, 596 F. Supp. 1333 (M.D. Pa. 1984). The district court determined that "the PSP is a paramilitary organization where the mandatory retirement age is reasonably necessary to the operation of a safe and efficient law enforcement organization." Id. at 1343. Further, the court fond that substantially all PSP officers over age 60 cannot safely and efficiently perform the necessary physical duties of the job and that it would be impractical to determine which officers could perform the job of PSP trooper.
Binker and the EEOC appealed the decision. Prior to oral argument, the Supreme Court decided Johnson v. City of Baltimore, 472 U.S. 353, 105 S. Ct. 2717, 86 L. Ed. 2d 286 (1985), and Western Air Lines v. Criswell, 472 U.S. 400, 105 S. Ct. 2743, 86 L. Ed. 2d 321 (1985). Criswell, in particular, explained the parameters of the BFOQ defense and adopted the standard developed by the Fifth Circuit in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976). Because it appeared that the district court had assumed that good health and physical fitness are reasonably necessary job qualifications, we remanded this action for reconsideration and additional particularized factual findings in light of the Supreme Court's then recent pronouncements. EEOC v. Pennsylvania, 768 F.2d 514 (3d Cir. 1985).
On remand, the district court allowed the parties to present additional testimony and evidence. The district court again ruled in favor of defendants. EEOC v. Pennsylvania, 645 F. Supp. 1545 (M.D. Pa. 1986). It found that good health, physical fitness, strength, and dexterity are reasonably necessary to the essence of PSP business. The court determined that eleven physical dimensions are required to perform the job of state police officer: eye-hand coordination, manual dexterity, finger dexterity, reaction time, absolute strength, relative strength, absolute power, relative power, aerobic endurance, anaerobic-aerobic endurance, and absolute muscular endurance. The district court further found that there is a dramatic age-related effect on these capacities, and that there must be extensive and expensive medical screening for hidden coronary problems in officers over 60 before they can be tested for these capacities.
The district court held, therefore, that age was a legitimate proxy for the BFOQs of good health, physical strength, endurance and dexterity because substantially all officers over age 60 had a moderately high or higher risk of developing cardiovascular disease, the absence of which is a reasonably necessary BFOQ. In the alternative, the district court held that it would be impossible or impractical to treat officers over 60 on an individualized basis because they must pass initial screening before being tested for certain physical capacities and officers should not be physically tested if they have even mild hypertension or poor cardiac function, conditions that are common in people over 60. In any event, the court found that the costs of screening and testing officer in the highest age category would be prohibitive. This appeal followed.
Appellants contend that the district court erred in finding that good health, physical fitness, strength and dexterity are bona fide occupational qualifications reasonably necessary to the essence of PSP business. We review factual findings under the clearly erroneous standard.*fn2
Section 4(a)(1) of the Age Discrimination in Employment Act makes it unlawful for a covered employer "to fail to refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1) (1982). A state or a political subdivision or agency thereof is a covered employer under ADEA. 29 U.S.C. § 630(b) (1982). The proscription ...