After eight years of litigation, a legal battle between ExxonMobil and the Equal Employment Opportunity Commission (EEOC) over mandatory pilot retirement age has concluded with a ruling by the Fifth Circuit U.S. Court of Appeals. The appeals panel upheld the previous ruling that the energy company’s policy on mandatory retirement for its corporate pilots at age 60 (later 65) does not violate the Age Discrimination in Employment Act (ADEA). According to the court, the defendant proved that its retirement requirement is a bona fide occupational qualification (BFOQ), reasonably necessary to the normal operation of the particular business.

In 2006, two pilots facing forced retirement from ExxonMobil’s flight department filed charges with the EEOC, which then brought suit against the company in the U.S. District Court for the Northern District of Texas. The EEOC’s suit alleged that the company’s policy violated the ADEA, which makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of an individual’s age.”

ExxonMobil based its policy on the FAA’s Age 60 Rule, which had been in effect since 1959 for Part 121 pilots. At the time the rule was adopted, the agency stated, “There is a progressive deterioration of certain important physiological and psychological functions with age…significant medical defects attributable to this degenerative process occur at an increasing rate as age increases, and…sudden incapacity due to such medical defects becomes significantly more frequent in any group reaching age 60.”

Part 91 pilots were never included in the Age 60 Rule. That rule was amended in 2007 under the Fair Treatment for Experienced Pilots Act (FTEPA), which generally permits Part 121 pilots to fly until age 65 under certain conditions. When Congress passed the FTEPA, ExxonMobil changed its policy and required its pilots to retire at age 65.

Long Legal Battle

In 2008 ExxonMobil was awarded a summary judgment by the district court, but the EEOC protested the ruling, arguing that the piloting duties, aircraft and operations of the company’s pilots are materially different from those of a commercial pilot, despite sharing the same airspace, weather conditions and congested airports, and that Part 121 operations should not be considered a valid comparison for the application of any such policies. ExxonMobil countered by asserting that the EEOC’s narrow interpretation of Part 121 considered only large commercial aircraft, whereas Part 121 also regulates cargo and smaller commuter airplanes. The matter was remanded to trial court, which in 2012 again sided with the defendant, ruling the mandatory age limit was indeed a BFOQ.

The appeal brought the case to the Fifth Circuit Appeals Court, which sided with ExxonMobil, stating that some aspects of the company’s piloting duties–such as obtaining their own pre-flight information, flying with little notice or flying into and out of unfamiliar remote airports–are even more onerous than Part 121 operations.

In its ruling, the court found that ExxonMobil proved it was compelled to adopt the policy because there are no adequate means of testing each pilot individually, and that the EEOC “has not demonstrated that there is a specific means of individualized testing that would account for every risk of sudden incapacitation, a risk that Exxon has shown increases with age.” A spokesman for the EEOC told AIN that the organization is not seeking a higher review of the case.

While the ruling is considered binding law in the Fifth Circuit, which includes Texas, Louisiana and Mississippi and will likely establish precedent in other areas, it is not a blank check for the imposition of a mandatory age restriction for all Part 91 and Part 135 operators, according to aviation attorney Eileen Gleimer of Washington, D.C.-based legal firm Crowell & Moring. Speaking at the National Air Transportation Association’s annual Air Charter Summit, she noted each instance must be considered case by case, and if a company loses a legal case under ADEA it could be liable not only for lost wages but also for liquidated and compensatory damages. Even if a client of a Part 135 operator/aircraft management firm demands that a pilot be fired because of his age, the company needs to consider that it might still be viewed as a joint employer and even the existence of a contractual obligation to comply with the aircraft owner’s request is not a defense against a lawsuit from a pilot dismissed under those circumstances.

In lieu of mandatory age restrictions, Gleimer suggests the use of non-discriminatory assessment practices such as regularly scheduled medical examinations and check rides for the operator’s entire pilot roster, to shield the employer from possible legal action.