1. What is the basis for the determination that an employer should or should not be required to test applicants on an individual basis?

2. Should an employer have available as a defense that the cost of the tests would impose a great burden on the employer? Why or why not?

3. What is the distinction the Criswell opinion makes between “reasonable necessity” and “reasonableness?”

Issue: Whether age is a BFOQ for the position of flight engineer.

Facts: Western Air Lines requires that its flight engineers, who are members of the cockpit crew but do not operate flight controls unless both the pilot and co-pilot become incapacitated, retire at age 60. The Federal Aviation Administration prohibits anyone form acting as a pilot or copilot after they have reached the age of 60. The respondents in this case include both pilots who were denied reassignment to the position of flight engineers at age 60 and flight engineers who were forced to retire at that age. The airline argued that the age 60 retirement requirement is a BFOQ reasonably necessary to the safe operation of the business. The lower court instructed the jury as follows: the airline could only establish age as a BFOQ if “it was highly impractical for [petitioner] 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 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 Supreme Court evaluated whether this instruction was appropriate and determined that it correctly stated the law.

Decision: The actual capabilities of persons over age 60, and the ability to detect diseases or a precipitous decline in their faculties, were the subject of conflicting medical testimony. Throughout the legislative history of the ADEA, one empirical fact is repeatedly emphasized: the process of psychological and physiological degeneration caused by aging varies with each individual. As a result, many older workers perform at levels equal or superior to their younger colleagues. In fact, in 1965, the Secretary of Labor reported to Congress that despite these well-established medical facts, “there is persistent and widespread use of age limits in hiring that in a great many cases can be attributed only to arbitrary discrimination against older workers on the basis of age and regardless of ability.” The court discusses Usery v. Tamiami Trail Tours where the Fifth Circuit held that “the job qualifications which the employer invokes to justify his discrimination must be reasonably necessary to the essence of his business—here, the safe transportation of bus passengers from one point to another. The greater the safety factor, measured by the likelihood of harm and the probably severity of that harm in case of an accident, the more stringent may be the job qualifications designed to insure safe driving.”

The BFOQ standard adopted in the statute is one of “reasonable necessity,” not reasonableness. When an employer establishes that a job qualification has been carefully formulated to respond to documented concerns for public safety, it will not be overly burdensome to persuade a trier of fact that the qualification is “reasonably necessary” to safe operation of the business. Thus, the court held that the instructions to the trial court were correct.