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Chapter 2: Discrimination Law in the Recruitment and Selection Context | 73
that “age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” Most ADEA cases that involve the BFOQ defense involve mandatory retirement ages, but the same principles apply equally to hiring cases. The BFOQ defense has been primarily used to justify age limits on positions that affect public safety.
In the case Western Airlines v. Criswell, the U.S. Supreme Court approved the criteria developed by the lower courts and the EEOC for analyzing whether an employer has proved that an age limitation is a bona fide occupational qualification.108 An age limitation is only a BFOQ where it is reasonably necessary to the essence of the business. The Court made clear that the reasonably necessary standard is a much higher standard than a “reasonable” or a “reasonable basis for believing” standard.109 It is one that requires an employer to show that there are no alternative means for safe operation of its business. In evaluating what is reasonably necessary, an employer must focus on the core mission of its business, not on peripheral job tasks and qualifications.110 The employer must also be able to show that either (1) all or substantially all individuals excluded from the position involved could not safely and efficiently perform its job duties,111 or (2) some of the individuals so excluded possess a trait precluding safe and efficient job performance that it is impossible or highly impractical to identify on an individualized basis or that cannot be ascertained except by reference to age.112
2.2.1.3 The ADEA’s Exception Allowing Maximum Hiring and Mandatory Retirement for Law Enforcement Officers and Firefighters
Under Section 623(j), the ADEA allows state and local governments to set age restrictions on law enforcement officers and firefighters without establishing that age is a BFOQ for those positions:It shall not be unlawful for an employer which is a State [or] a political subdivision of a State . . . to fail or refuse to hire or to discharge any individual because of such individual’s age if such action is taken-
108. See Western Airlines v. Criswell, 472 U.S. 400, 416–17 and n.24 (1985).
109. See Western Airlines, 472 U.S. at 417–23.
110. See Western Airlines, 472 U.S. at 413. See also 29 C.F.R. § 1625.6(b).
111. See Western Airlines, 472 U.S. at 414, 422–23. See also 29 C.F.R. § 1625.6(b).
112. See Western Airlines, 472 U.S. at 414–15, 421–22. See also 29 C.F.R. § 1625.6(b).
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| Title | Recruitment and selection law for local government employers - Page 89 |
| Full Text | Chapter 2: Discrimination Law in the Recruitment and Selection Context | 73 that “age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” Most ADEA cases that involve the BFOQ defense involve mandatory retirement ages, but the same principles apply equally to hiring cases. The BFOQ defense has been primarily used to justify age limits on positions that affect public safety. In the case Western Airlines v. Criswell, the U.S. Supreme Court approved the criteria developed by the lower courts and the EEOC for analyzing whether an employer has proved that an age limitation is a bona fide occupational qualification.108 An age limitation is only a BFOQ where it is reasonably necessary to the essence of the business. The Court made clear that the reasonably necessary standard is a much higher standard than a “reasonable” or a “reasonable basis for believing” standard.109 It is one that requires an employer to show that there are no alternative means for safe operation of its business. In evaluating what is reasonably necessary, an employer must focus on the core mission of its business, not on peripheral job tasks and qualifications.110 The employer must also be able to show that either (1) all or substantially all individuals excluded from the position involved could not safely and efficiently perform its job duties,111 or (2) some of the individuals so excluded possess a trait precluding safe and efficient job performance that it is impossible or highly impractical to identify on an individualized basis or that cannot be ascertained except by reference to age.112 2.2.1.3 The ADEA’s Exception Allowing Maximum Hiring and Mandatory Retirement for Law Enforcement Officers and Firefighters Under Section 623(j), the ADEA allows state and local governments to set age restrictions on law enforcement officers and firefighters without establishing that age is a BFOQ for those positions:It shall not be unlawful for an employer which is a State [or] a political subdivision of a State . . . to fail or refuse to hire or to discharge any individual because of such individual’s age if such action is taken- 108. See Western Airlines v. Criswell, 472 U.S. 400, 416–17 and n.24 (1985). 109. See Western Airlines, 472 U.S. at 417–23. 110. See Western Airlines, 472 U.S. at 413. See also 29 C.F.R. § 1625.6(b). 111. See Western Airlines, 472 U.S. at 414, 422–23. See also 29 C.F.R. § 1625.6(b). 112. See Western Airlines, 472 U.S. at 414–15, 421–22. See also 29 C.F.R. § 1625.6(b). |
