IV. EMPLOYMENT AND LABOR PRACTICES

B. Employment Discrimination

1. Age Discrimination
   1. General Considerations

      1. The Age Discrimination in Employment Act prohibits employers from discriminating against persons ages forty or more. Generally, the ADEA prohibits an employer from basing an employment decision (e.g. hiring, firing, and promoting) on an individual's age. The ADEA permits an employer to use age as a legitimate factor in making employment decision if and only if age is a bona fide occupation qualification (BFOQ) or is justified by a business necessity.

      2. A BFOQ is a extremely narrow exception to the general prohibition of age discrimination. An age requirement or limitation qualifies as a BFOQ if the employer can prove that substantially all members of a particular class (e.g., people over age 60) could not perform the duties of the job or presented a safety risk to others.

      3. Age criteria for a position may also be justified under the business necessity doctrine. That doctrine provides that a practice or procedure is "job related" and consistent with a "business necessity." To show a business necessity, the employer must present objective evidence that particular work rules or employment eligibility criteria demonstrate and further a legitimate employment goal.

   2. Airline Pilot Challenges
      1. Professional Pilot Federation Challenge to Age 60 Rule

         1. Coupe v. Federal Express, US Dist CT., W.D. Tenn, Civil Docket No: 95-CV-2851 (Order entered, June 5, 1996) is a case that could affect the careers of all professional pilots in commercial operations. A FedEx pilot has appealed the loss of his suit against FedEx for terminating him as a pilot after he turned 60. Coupe is a member of the Professional Pilots Federation ("PPF").

         2. PPF is also seeking repeal of the age 60 rule in a federal court appeal of its case against the FAA. Professional Pilots Federation v. FAA, U.S. App. D.C., Docket No. 95-1604 (Argued Oct. 3, 1996). There the PPF has argued that a corporation, not bound by the same rules as commercial carriers, can have two pilots over age 60 flying a football team of more than 50 passengers, but the same pilots cannot carry FedEx documents. The age 60 rule was based initially on the premise that pilots lose their skills as they age. But, the PPF argues that the FAA has not developed objective criteria to assess the ability of older. The FAA has argued that the rule is necessary because the probability that pilots will become incapacitated increases as they age. The PPF counters that there has never been an accident in a two-person crew attributed to the incapacitation of one of the pilots.

      2. Two Step Down Bidding

         Pilots and flight engineers sued Delta because of Delta's refusal to allow pilots to extend their employment after age sixty as second officers (flight engineers), a process known as "two-step down bidding." In Baker v. Delta Airlines, Inc., 6 F.3d 632 (9th Cir. 1993), Delta defended, contending that it had relied on Iervolino v. Delta Airlines, Inc., 796 F.2d 1408, 1419 (11th Cir. 1986), wherein the Eleventh Circuit had affirmed a jury's finding that Delta's age sixty rule was lawful. The Ninth circuit agreed that Delta's reliance on Iervolino constituted good faith as a matter of law. See also IV.B.1(d) above.

      3. Corporate Downsizing

         Recent downsizing and reorganizations in the airline industry have spawned a series of age and race discrimination suits. One theory asserted by displaced workers is that the airline committed discrimination by refusing to offer lower echelon, poorer paying jobs to displaced workers. The First Circuit Court of Appeals rejected this theory, ruling that the ADEA does not create a right for older employees to take the jobs of less senior employees. Pages-Cahue v. Iberia Lineas Aereas de Espana, 82 F.3d 533 (1st Cir. 1996).

2. American With Disabilities Act

   The Americans with Disabilities Act prohibits an employer from discriminating against an individual on the basis that he or she is disabled, perceived to be disabled or associated with a person with a disability. The Act's protections extend only to persons who are capable of performing the essential functions of their job with or without reasonable accommodation. Recently, a court held that an airline employee who applied for long-term disability benefits and asserted that he was totally disabled, could not assert a claim against the employer under the Americans with Disabilities Act. Harden v. Delta Airlines, Inc., 900 F. Supp. 493 (S.D. Ga 1995).