Western Air Lines, Inc. v. Criswell
Decided on June 17, 1985; 472 US 400


A. Issues Discussed: Civil Rights (federal), employment discrimination

B. Legal Question Presented:

Was the jury properly instructed on the elements of the Bona Fide Occupational Qualification (BFOQ) defense as an exception to the Age Discrimination in Employment Act of 1967 (ADEA)?


A. Background:

In 1978, Respondents Criswell and Starley (Respondents) were captains operating aircrafts for Western Air Lines, Inc. (Petitioner).  Both men celebrated their 60th birthdays in July 1978. To avoid mandatory retirement orders under the Federal Aviation Administration's (FAA) under-age-60 rule for pilots, Respondents applied for reassignment as flight engineers. Petitioner denied both requests, on the ground that both employees were members of the company's retirement plan which required all crew members to retire at age 60. Ron (3rd Respondent), a career flight engineer, also retired in 1978 under the same standards.

Criswell, Starley, and Ron brought this action in district court against Western Airlines contending that the under-age-60 qualification for the position of flight engineer violated the Age Discrimination in Employment Act (ADEA) of 1967.  The jury was instructed that the "BFOQ [bona fide occupational qualification] defense is available only if it is reasonably necessary to the normal operation or essence of defendant's business." The jury was informed that 'the essence of Western's business is the safe transportation of their passengers.' The jury was also instructed methods in which Petitioner may establish a BFOQ. 

The District Court entered judgment based on the jury's verdict in favor of Respondents, and the Court of Appeals affirmed, rejecting petitioner's contention that the BFOQ instruction was insufficiently deferential to petitioner's legitimate concern for the safety of its passengers.

Petitioners appealed again and the United States Supreme Court granted certiorari to review the case.

B. Counsel of Record:
Opposing Side
Raymond C. Fay argued the cause for respondents. With him on the brief were Alan M. Serwer and Susan D. Goland.
Gordon Dean Booth, Jr., argued the cause for petitioner. With him on the briefs were William H. Boice, Joseph W. Dorn, and William John Kennedy.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging affirmance were filed for the American Association of Retired Persons by Alfred Miller and Harry P. Cohen; for the American Civil Liberties Union et al. by Susan Deller Ross; and for the Flight Engineers International Association, American Airlines Chapter,  and the AFL-CIO, by Asher Schwartz and David Rosen.

Deputy Solicitor General Wallace argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Solicitor General Lee, Harriet S. Shapiro, Johnny J. Butler, and Philip B. Sklover.

Howard C. Eglit also filed a brief for the National Council on the Aging, Inc., et al. as amici curiae.
Briefs of amici curiae urging reversal were filed for the Air Line Pilots Association International, by Michael E. Abram and Jay P. Levy-Warren; for American Airlines, Inc., by Richard A. Malahowski; for Delta Air Lines, Inc., by James W. Callison, Robert S. Harkey, and Thomas J. Kassin; for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, and Thomas R. Bagby; for Pan American World Airways, Inc., by Robert S. Venning; and for Trans World Airlines, Inc., by Henry J. Oechler, Jr., Donald I. Strauber, and Peter N. Hillman.

"The ADEA's [Age Discrimination Employment Act] restrictive language, its legislative history, and the consistent interpretation of the administrative agencies charged with enforcing the statute establish that the BFOQ [bona fide occupational qualification] exception was meant to be an extremely narrow exception to the general prohibition of age discrimination contained in the ADEA.

The relevant considerations for resolving a BFOQ defense to an age-based qualification purportedly justified by safety interests are whether the job qualification is 'reasonably necessary' to the overriding interest in public safety, and whether the employer is compelled to rely on age as a proxy for the safety-related job qualification validated in the first inquiry. The latter showing may be made by the employer's establishing either (a) that it had reasonable cause to believe that all or substantially all persons over the age qualification would be unable to perform safely the duties of the job, or (b) that it is highly impractical to deal with the older employees on an individualized basis.

The jury here was properly instructed on the elements of the BFOQ defense under the above standard, and the instructions were sufficiently protective of public safety.

Petitioner's contention that the jury should have been instructed to defer to petitioner's selection of job qualifications for flight engineers "that are reasonable in light of the safety risks" is at odds with Congress' decision, in adopting the ADEA, to subject such decisions to a test of objective justification in a court of law. The BFOQ standard adopted in the statute is one of 'reasonable necessity,' not reasonableness. The public interest in safety is adequately reflected in instructions that track the statute's language.

The instructions were not defective for failing to inform the jury that an airline must conduct its operations 'with the highest possible degree of safety.'  Viewing the record as a whole, the jury's attention was adequately focused on the importance of safety to the operation of petitioner's business.

There is no merit to petitioner's contention that the jury should have been instructed under the standard that the ADEA only requires that the employer establish 'a rational basis in fact' for believing that identification of those persons lacking suitable qualifications cannot be made on an individualized basis. Such standard conveys a meaning that is significantly different from that conveyed by the statutory phrase 'reasonably necessary,' and is inconsistent with the preference for individual evaluation expressed in the language and legislative history of the ADEA. Nor can such standard be justified on the ground that an employer must be allowed to resolve the controversy in a conservative manner when qualified experts disagree as to whether persons over a certain age can be dealt with on an individual basis. Such argument incorrectly assumes that all expert opinion is entitled to equal weight, and virtually ignores the function of the trier of fact in evaluating conflicting testimony."

Held: The judgment of the Court of Appeals for the Ninth Circuit is affirmed.
Justice Vote: 8 Pro vs. 0 Con

  • Stevens, J. Pro (Wrote the majority opinion)
  • Brennan, W. Pro (Joined the majority)
  • Marshall, T. Pro (Joined the majority)
  • Blackmun, H. Pro (Joined the majority)
  • O'Connor, S. Pro (Joined the majority)
  • White, B. Pro (Joined the majority)
  • Burger, E. Pro (Joined the majority)
  • Rehnquist, W. Pro (Joined the majority)
  • Powell, L. - Took no part in the decision making process of the case

    The ACLU filed as amicus curiae urging affirmance. The United States Supreme Court affirmed the Court of Appeals for the Ninth Circuit's decision by an 8-0 vote, giving the ACLU an apparent win.