U. S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Apr 21, 2003
Author:

U. S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507

Jun 12, 1995

Federal Aviation Administration
Office of the Chief Counsel
Room 915B
800 Independence Avenue, S.W.
Washington, D.C. 20591

Re: Rules Docket AGC-200

Docket No. 28154

To Whom It May Concern:

[edited for brevity and currency, complete original on file FOIA or facsimile copy at PAAD Hq]

The Equal Employment Opportunity Commission [EEOC or Commission] has long been concerned about the impact of the Age 60 rule on pilots and copilots. {footnote} The Commissions’ longstanding interest in the Age 60 Rule is demonstrated in public testimony, comments, and statements including: Testimony of Constance L. Dupre, Associate General Counsel, EEOC, Panel on the Experienced Pilots Study, National Institute on Aging, National Institutes of Health, May 27, 1981; EEOC’s Final Interpretations of the Age Discrimination in Employment Act of 1967, 49 Fed. Reg. 47,724 [1981]; EEOC Comments on the FAA’s Advance Notice of Proposed Rulemaking at 47 Fed. Reg. 29,784 [1982]; Testimony of EEOC Chairman Clarence Thomas before the House Select Committee on Aging, October 1985; August 12, 1986 letter from EEOC Chairman Clarence Thomas to FAA Administrator Donald Engen urging the FAA to grant a petition by 39 pilots for exemptions from the Age 60 Rule so they could participate in a controlled study envisioned by the National Institute of Aging panel; October 14, 1993 letter from EEOC Chairman Tony E. Gallegos to the FAA urging initiation of a rulemaking about the Age 60 rule and lifting of the age 60 limit for commercial pilots and co-pilots.

The ADEA prohibits employment discrimination against individuals…unless the employer can establish that the age limitation is a bona fide occupational qualification [BFOQ]. The FAA does not provide evidence to demonstrate that age is a BFOQ for…pilots…subject to part 121 rule. …the law requires an age limit to be justified.

As a general proposition, the EEOC does not believe that a chronological age limitation is a BFOQ for any pilot. Pilot skills and health can be assessed accurately on an individual basis, regardless of age. Indeed, the FAA itself relies on individualized testing as a basis for issuing medical certificates to people of all age, including those age 60 and above, who now serve as pilots in non-port 121 flight operations. Additionally…many experts have testified that Class I medical testing is fully sufficient to identify health or performance problems for pilots regardless of age. These experts also have stated that, to the extent further testing may be desirable, cardiac stress tests, enhanced blood work-ups, and neuropsychological screening could be added to the standard battery of Class I tests for all pilots.

As you know, the report titled “Age 60 Project, Consolidated Database Experiments, Final Report” [Hilton Report], prepared for the Civil Aeromedical Institute of the FAA, supports the conclusion that an age 60 limit for pilots is not defensible as a BFOQ under the ADEA. Based on careful statistical analysis, this report found “no hint of an increase in accident rate for pilots of scheduled air carriers as they neared their 60th birthday.” This conclusion is especially significant in light of the report’s avowedly conservative interpretation of the data.

Finally, we again urge the FAA to vigorously pursue its reconsideration of the Age 60- rule and ultimately to change that rule. The practical experience of older pilots has great value in a professional calling for complex and split-second judgments. Moreover…medical and proficiency tests are effective and non-discriminatory ways to assure that commercial pilots maintain the highest standards of safety at all ages.

Elizabeth M. Thornton

Deputy Legal Counsel

majors themselves. That leaves an assortment of unrelated civilian training programs, from the single instructor in farm country to large schools such as Embry- Riddle. It won't be enough. Indeed, stripping the regional carriers means the next level is being stripped by the regionals. Flight Instructors, corporate pilots, etc. are all moving up ... and leaving a void behind them. Said Jim Moran, head of flight technology for Embry-Riddle flight school in Florida, "I lose my best people first." Who then, is training the pilots of the future?