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BFOQ Defense Trumps The EEOC – Summary Judgment Entered Against The Commission

Posted in EEOC Litigation

On September 13, 2012, Judge Ed Kinkeade of the U.S. District Court for the Northern District of Texas granted the Defendant’s motion for summary judgment in EEOC v. Exxon Mobil Corp., No. 06-CV-1732 (N.D. Tex. Sept. 13, 2012), on the EEOC’s allegations of age discrimination in violation of the ADEA. Judge Kinkeade considered a plethora of motions, including motions to strike expert witnesses, a motion to extend a deadline, and summary judgment motions from both the EEOC and the Defendant. Perhaps most significant to readers of this blog, however, is Judge Kinkade’s reasoning in rejecting the EEOC’s allegations of age discrimination.

Factual Background

The Defendant employs 27 pilots who fly all over the world with job responsibilities similar to those of commercial pilots. Id. at 14. The pilots fly nine different types of jets, including Bombardier Global express jets and Bombardier Challenger jets.  The Defendant’s company wide-policy requires pilots to involuntarily retire when they reach their 60th birthday. Id. at 2-3. Based on this policy, the EEOC filed a complaint against the Defendant alleging that it discriminated against its employees in violation of the ADEA. Id. at 13. The Defendant contested the EEOC’s charges, and relied on a FAA rule that prohibits a pilot from flying after they reach a particular age. The Defendant argued that the FAA rule is sufficient evidence that its policy was a bona fide occupational qualification (“BFOQ”) reasonably necessary for the normal operation of its business. Although it sounds a bit like alphabet soup, under the ADEA, if a Defendant can establish that its policy (which has a discriminatory effect) is also a BFOQ, then the Defendant is released from liability under the ADEA. Relying on this exception, the Defendant asserted that it was not unlawful for it to require pilots to retire when they reached the age of 60.

On August 31, 2007, the Defendant filed a motion for summary judgment. The District of Texas granted the Defendant’s motion and dismissed the case with prejudice. Id. at 3. The EEOC appealed the case to the U.S. Court of Appeals for the Fifth Circuit, which vacated the District Court’s judgment and remanded the case on the grounds that the District Court did not allow sufficient discovery on the issue of BFOQ’s. Id. at 3-4.

The Court’s Ruling

On remand, the District Court considered whether the Defendant could conclusively establish a continuing validity of the rationale supporting its policy that required employees to retire at the age of 60. Judge Kinkade noted that to “conclusively establish continuing validity, [the Defendant] must set forth evidence that shows that no testing existed to predict when or if an over-age-60 pilot might experience a medical event that could jeopardize aviation safety.” Id. at 15. Based on the fact that “the risk of sudden incapacitating evens increases with age and no test can identify if or when that event may occur, and because the EEOC has failed to set forth any evidence to the contrary,” the Court reasoned that the Defendant presented sufficient evidence to establish that its age-based rule is continually valid. Id.

The Court opined that the burden then rested with the EEOC to present evidence to raise a question of fact regarding the continuing validity of the Defendant’s policy. The Court found that the EEOC failed to do so because it did not present “any evidence that medical testing exists that could identify those individuals over a specified age that are at risk of sudden incapacitation.” Id. at 17. Thus, because the “weight of the evidence” supported the Defendant’s age-based rule, the Court granted the Defendant’s motion for summary judgment and dismissed the EEOC’s lawsuit. Id. at 20.

Implications For Employers

The Defendant in EEOC v. Exxon Mobil Corp. won the case based on the evidence it entered to the record. The EEOC was unable to rebut or challenge the BFOQ defense. Persistence pays off, as the defense ultimately a hard fought battle against the Commission.

Readers can also find this post on our Workplace Class Action blog here.