HOUSTON, March 27, 2014 -- On March 25, 2014, the United States Court of Appeals for the Fifth Circuit affirmed summary judgment for Exxon Mobil against an EEOC age-discrimination challenge to ExxonMobil’s practice of removing its corporate pilots from flight duty at the same age that the FAA requires commercial airliners to remove their pilots from flight duty. EEOC v. Exxon Mobil Corp., No. 13-10164. Baker Botts represented ExxonMobil in both the trial and appellate courts.
For decades, the FAA has applied a mandatory retirement age to pilots of commercial airliners and large cargo carriers. Although not directly covered by the FAA’s rule, ExxonMobil implemented an identical age-60 rule for its corporate pilots to ensure the safe operation of ExxonMobil jets. ExxonMobil later revised its rule to age 65 when the FAA revised its rule.
In only the second federal appellate decision to consider the issue, the Fifth Circuit held that ExxonMobil’s pilot age rule is a “bona fide occupational qualification” (BFOQ) permitted under the Age Discrimination in Employment Act. The court held that ExxonMobil established its BFOQ defense because its piloting is “congruent” with the commercial piloting covered by the FAA rule and the safety rationale underlying the FAA rule remains valid. ExxonMobil “pilots fly similar planes, in similar conditions, and in the same airspace and airports as commercial pilots,” the court concluded, and some “aspects of Exxon’s piloting are more onerous.” Moreover, the court reasoned, the “continuing validity” of the rationale underlying the FAA age rule—“namely, that the risk of sudden incapacitation increases with age and this cannot be accurately tested or predicted on an individualized basis”—demonstrated that ExxonMobil was compelled to adopt its age rule in the absence of accurate individualized tests. The court rejected the EEOC’s contention that ExxonMobil piloting is not congruent with commercial piloting because ExxonMobil piloting differs in certain ways and is covered by separate FAA regulations that do not have an age rule. The court also held that the EEOC’s claim that current testing is adequate is not sufficient to create a fact issue as to the validity of the FAA’s safety rationale.
The Fifth Circuit’s decision brings to an end the EEOC’s eight-year dispute with ExxonMobil, which had already resulted in one previous appeal to the Fifth Circuit and multiple summary-judgment proceedings before the district court.
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