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Federal Court: Mandatory Retirement Age for Pilots Is Not Age Discrimination

May 2, 2014

By Gregory P. Ripple, Esq., Miller Johnson

Disclaimer: This article was not prepared by or under the direction of NBAA. It is being provided to NBAA Members for their general information and should not be construed as legal advice or legal opinion on any specific facts or circumstances. You are urged to consult your attorney or other advisor concerning your own situation and for any specific legal questions you may have.

Since 1959, the FAA has set an age limit for pilots in FAR Part 121 operations. First known as the “Age 60 rule,” Congress raised the limit to 65 in the Fair Treatment for Experienced Pilots Act in 2007. These limits, however, have only applied to Part 121 operations, leaving open the important question of whether a Part 91 operator or Part 135 carrier could legally require pilots to retire or cease their piloting duties upon reaching a certain age. The United States Court of Appeals for the Fifth Circuit recently issued a decision that allowed a Part 91 operator to continue to apply the “Age 65 rule” to its operations.

The Equal Employment Opportunity Commission (EEOC), the federal agency tasked with investigating and litigating employment discrimination claims, had long taken the position that age is not an appropriate measure of a pilot’s qualifications, and that a mandatory retirement age not required by law violated the federal Age Discrimination and Employment Act (ADEA). In 2006, the EEOC sued ExxonMobil, alleging that the company discriminated against pilots when it forced them to stop flying for the company when they turned 60.

The litigation took nearly eight years to conclude, but in March 2014 the Fifth Circuit affirmed the decision of the trial court to dismiss the EEOC’s lawsuit. The court concluded that age was a bona fide occupational qualification (BFOQ) of being a corporate pilot at ExxonMobil. To establish a BFOQ, ExxonMobil had to demonstrate that its rule was “reasonably necessary to the normal operation of the particular business” and that either it had reasonable cause to believe that substantially all persons over the particular age would be unable to perform the job safely and efficiently, or it is “impossible or highly impracticable to deal with the older employees on an individualized basis.”

The court found that ExxonMobil had put forth significant evidence demonstrating that its pilots fly similar airplanes under similar conditions and in the same airspace as Part 121 carriers. The court also concluded that ExxonMobil had established, through the testimony of several medical experts, that the risk of sudden incapacitation in flight significantly increased with age, and that there are no adequate means of individually testing each pilot to determine whether a pilot was at risk to suffer such an incapacitation. The EEOC failed to provide any evidence that explained why the FAA declined to apply its rule to Part 91 and Part 135 operations, and the court found that the safety concerns behind the FAA’s rule likewise applied to ExxonMobil’s operations.

The Fifth Circuit’s decision is significant. Many Part 91 operators and Part 135 carriers have wondered whether they could safely impose a mandatory retirement age on its pilots without risking a federal lawsuit. Although the Fifth Circuit’s decision creates mandatory precedent only in the states that comprise the circuit (Texas, Louisiana and Mississippi), other federal courts faced with this issue will undoubtedly consider the ExxonMobil decision.

Part 91 operators and Part 135 carriers should not assume that a mandatory age-based retirement policy would be legal for them, however. Whether or not age is a BFOQ for any particular operator or carrier will require a case-by-case analysis of that company’s operations. Carriers considering implementing a mandatory retirement policy should consult with their local aviation and employment counsel to determine whether a policy is a feasible and prudent option for addressing their particular company’s challenges.

About the Author

Gregory P. Ripple is a member of NBAA's Regulatory Issues Advisory Group. His employment and labor practice spans varied industries, including aviation, manufacturing, construction and health care.