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.

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Photo of Christopher J. DeGroff Christopher J. DeGroff

Christopher is a partner in the Labor and Employment Department in the Firm’s Chicago office, with a practice largely focused on multi-plaintiff and class/collective actions. Mr. DeGroff’s class action experience spans the scope of employment law theories. Mr. DeGroff also has extensive experience…

Christopher is a partner in the Labor and Employment Department in the Firm’s Chicago office, with a practice largely focused on multi-plaintiff and class/collective actions. Mr. DeGroff’s class action experience spans the scope of employment law theories. Mr. DeGroff also has extensive experience litigating against the Equal Employment Opportunity Commission (EEOC), both at the early charge stage and in large-scale EEOC pattern-and-practice litigation. Mr. DeGroff has developed innovative strategies for addressing wide-ranging governmental requests for information and has handled complex regional and national EEOC investigations, typially resulting in no action being taken against our clients at all. When the EEOC has resorted to litigation, Mr. DeGroff has been instrumental in defending our clients against these often high-profile systemic cases, working with any number of class action teams to achieve efficient and effective case resolution. Mr. DeGroff’s class experience also includes a significant understanding of emerging electronic discovery issues, and has conducted speeches and published articles on electronic discovery and other high-technology issues.

Photo of Gerald Maatman, Jr. Gerald Maatman, Jr.

Gerald is a partner in the Wage & Hour Litigation Practice Group in Seyfarth Shaw’s Chicago office. Mr. Maatman has a primary emphasis in his practice on defending employers sued in employment-related class actions and EEOC pattern and practice lawsuits brought in federal…

Gerald is a partner in the Wage & Hour Litigation Practice Group in Seyfarth Shaw’s Chicago office. Mr. Maatman has a primary emphasis in his practice on defending employers sued in employment-related class actions and EEOC pattern and practice lawsuits brought in federal and state courts throughout the United States. Mr. Maatman also pioneered the process of conducting employment practices audits to assist employers in structuring effective and practical personnel policies and protocols. These audits are designed to minimize the incidence of employment-related class action litigation and to maximize management discretion and workplace productivity. Mr. Maatman’s work in this area has been profiled in the Wall Street Journal and Time Magazine.