The bona fide occupational qualification (BFOQ) exception to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.S. §§ 621-634, has only limited scope and application and must be construed narrowly. 29 C.F.R. § 860.102(b) (1984). The BFOQ exception is meant to be an extremely narrow exception to the general prohibition of age discrimination contained in the ADEA.
Two airline pilots were denied reassignment as flight engineers upon reaching the age of 60, and a flight engineer was forced to retire at age 60. They brought an action against the airline in the United States District Court for the Central District of California, alleging that the age-60 retirement for flight engineers violated the Age Discrimination in Employment Act of 1967 (ADEA) because the law generally prohibits mandatory retirement before age 70. The airline defended in part on the theory that the age-60 requirement was a bona fide occupational qualification reasonably necessary to the safe operation of the airline and was thus excepted from the general prohibition against age discrimination pursuant to 4(f)(1) of the Act, which provides an exception "where age is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the particular business." The jury instructions included statements that the BFOQ defense was available only if it was reasonably necessary to the normal operation or essence of the airline's business, that the essence of the airline's business was the safe transportation of its passengers, that the airline could establish a BFOQ by proving both that it was highly impractical for the airline to deal with each flight engineer over age 60 on an individualized basis to determine his particular ability to perform his job safely, and that some flight engineers over age 60 possess traits of a physiological, psychological, or other nature which preclude safe and efficient job performance that cannot be ascertained by means other than knowing their age. The District Court entered judgment based on the jury's verdict for the plaintiffs. On appeal, the United States Court of Appeals for the Ninth Circuit affirmed, rejecting the airline's contention that the instruction on the BFOQ defense was insufficiently deferential to the airline's legitimate concern for the safety of its passengers.
Is the airline liable for discriminating on its employees because of their age?
The court affirmed and held that it was unlawful for an employer to fail or 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. In addition, the court held that the age qualifications must have been reasonably necessary to the particular business, and that the bona fide occupational qualification exception was meant to be an extremely narrow exception to the general prohibition of age discrimination contained in the ADEA. Finally, the court held that the job qualifications which the employer invoked to justify age discrimination must have been reasonably necessary to the essence of the employer's business.