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65-year-old lawsuit
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justmeinmsp
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I found one law suit. There are more out there. A fractional is trying to do the same thing.
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.
RELATED LINKS
NBAA’s ‘Age 60’ Reference Page
Join NBAARenew Your MembershipContact NBAAStaff DirectoryCareers With NBAAAdvertising at NBAASite MapPrivacy Policy? 2017 National Business Aviation Association
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.
RELATED LINKS
NBAA’s ‘Age 60’ Reference Page
Join NBAARenew Your MembershipContact NBAAStaff DirectoryCareers With NBAAAdvertising at NBAASite MapPrivacy Policy? 2017 National Business Aviation Association
CALRepublic
Well-known member
- Joined
- Jan 11, 2008
- Posts
- 577
We can b***ch and b**ch all we want, but the old timers are not going anywhere
1- At NjA, they have it so so freaking good
2- right now, he is Joe, International Global captain. If he retires, he'd be just an old guy that lives next door. They can't accept that time has come
3- aviation is their identity
1- At NjA, they have it so so freaking good
2- right now, he is Joe, International Global captain. If he retires, he'd be just an old guy that lives next door. They can't accept that time has come
3- aviation is their identity
Last edited:
Imissmypilot
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- Jan 13, 2006
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- 536
If they can fly and are healthy I have no problem flying with a "geezer".
My issue is flying with "cowboys" and they come at all ages. Cowboys are even worse than the bipolars (and aviation has their fair share.) Cowboys are convinced their stupudity/stubbornness is entertainment.
Between the cowboys, the biploars and the sycophants, FlexOptions are so overdue for tragedy it's nerve-wracking to fly with peole you don't know and sometimes when you do. I'm not ashamed to say I've excercised some carefully selected PTO when I've gotten a pairing I didnt want to babysit.
I'll even throw a bet it the culprits will be far below the "geezer" number too.
Not to be cold but I hope a contract comes first because it might be the only thing that averts it and if it doesn't, te decimation it will cause will be personally mitigated.
GlorifiedCabbie
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gutshotdraw
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The legal hurdles for ANY company trying to impose a mandatory retirement age on their own are just too high.
Exxon succeeded because the age had ALWAYS been company policy. It was originally age 60 to reflect Part 121 requirements and then modified to 65 when the Fed raised the age.
The Fed MISSED THEIR CHANCE when they raised the age to 65. It should have applied to ALL compensated flying. As I have written before, it makes ZERO sense that a pilot is unsafe to fly a Southwest 737 the day he turns 65 but he can go blasting around the planet in a BBJ the next day for Acme Widget Company until he croaks.
Either it's safe or it isn't. PICK ONE. Across the board mandatory retirement or none at all.
Exxon succeeded because the age had ALWAYS been company policy. It was originally age 60 to reflect Part 121 requirements and then modified to 65 when the Fed raised the age.
The Fed MISSED THEIR CHANCE when they raised the age to 65. It should have applied to ALL compensated flying. As I have written before, it makes ZERO sense that a pilot is unsafe to fly a Southwest 737 the day he turns 65 but he can go blasting around the planet in a BBJ the next day for Acme Widget Company until he croaks.
Either it's safe or it isn't. PICK ONE. Across the board mandatory retirement or none at all.
tomgoodman
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- Mar 13, 2006
- Posts
- 2,356
I'm shocked, shocked to hear that safety is not and never has been the sole basis of FARs. Could it be that money and politics are involved too?
You will NEVER get lost if you follow the money.
The Fed MISSED THEIR CHANCE when they raised the age to 65. It should have applied to ALL compensated flying. As I have written before, it makes ZERO sense that a pilot is unsafe to fly a Southwest 737 the day he turns 65 but he can go blasting around the planet in a BBJ the next day for Acme Widget Company until he croaks.
And yet if you are 135 and park on the ramp with your door open and leave your plane you are subject to a potentially hefty fine! BUT if you are part 91 flying corporate you don't have to worry about it!!!! The same inherent danger is there for the public in both instances!!!! It is all about the money!!!!
And yet if you are 135 and park on the ramp with your door open and leave your plane you are subject to a potentially hefty fine! BUT if you are part 91 flying corporate you don't have to worry about it!!!! The same inherent danger is there for the public in both instances!!!! It is all about the money!!!!
GlorifiedCabbie
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NachoMamma
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- Jul 8, 2004
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Actually, Exxon succeeded because they did their homework regarding the safety implications of letting people fly until they choose to stop (news flash, they'll always choose to stay just a little bit longer). They brought one medical expert after another to court showing a repeatable, medical correlation between age and the risk of sudden incapacitation - something the FAA also backed (despite the sob stories some here will tell you about its early political motivations).
In the end, Exxon won and it was ultimately deemed NOT age discrimination. There are many good summaries out there online about the case. But it had nothing to do with an employee's previous knowledge of a mandatory age cap or whether it was company policy or not. It was ruled that the increased risk of sudden incapacitation was a medical certainty and therefore an unacceptable risk for Exxon.
This will play out in similar fashion at NJ and Flex/Options in the coming years. Just wait.
Hopefully not until I retire at my one hundred and eleventh birthday!!!!!!!!
Retired in 2010 at age 68.
Don't miss the 180-190 hotel nights. Don't miss the airline hassles. Don't miss the long duty days and constantly changing show times.
Still miss the Flight Levels. :crying:
GlorifiedCabbie
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