EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADEA: Mandatory Retirement/FAA Age 60 Rule
December 4, 2006
Your letter to the Equal Employment Opportunity Commission’s (EEOC) Inspector General has been referred to this office for a response. Specifically, you note that new rules implemented by the International Civil Aviation Organization (ICAO) allow foreign pilots to operate certain airplanes until age 65 and you ask that EEOC urge the Federal Aviation Administration (FAA) to adopt a similar increase in the retirement age for U.S. pilots.
As you know, the Commission has long been concerned about the Age 60 Rule, as indicated by its public comments, testimony and statements made over the past twenty-six years. 1 Thus, on November 16, 2006, the EEOC responded to FAA’s request for comments, published in the Federal Register, about whether the United States should increase the “upper age limit” of airline pilots to age 65 provided another crewmember pilot is under age 60. 71 Fed. Reg. 62399. The EEOC urged the FAA to raise the mandatory retirement age for commercial pilots to age 65 and opposed requiring pilots over age 60 to be paired with pilots under age 60. That comment is attached and sets forth the rationale for EEOC’s position.
Note, however, Congress has vested the FAA with the authority to insure the safety of air transportation operations and its decision on this issue is likely to control for the foreseeable future. See Yetman v. Garvey, 261 F.3d 664, 672 (7th Cir. 2001) holding, inter alia, that FAA did not act arbitrarily and capriciously or abuse its discretion by adhering to Age 60 Rule despite adoption of different standard in other countries.
Thank you for bringing this matter to our attention. We wish you success in your efforts. Please note, however, that this letter does not constitute an opinion or interpretation of the Commission within the meaning of Section 10 of the Portal-to-Portal Act of 1947, incorporated by § 7(e)(1) of the ADEA.
We hope this information is helpful to you.
Dianna B. Johnston
Assistant Legal Counsel
Title VII/ADEA/EPA Division
1 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. 47724 (1981); EEOC comments on the FAA’s Advanced Notice of Proposed Rulemaking at 47 Fed. Reg. 14692 (1982); Testimony of former EEOC Chair Clarence Thomas before the House Select Committee on Aging, October 1985; August 12, 1986 letter from former Chair Clarence Thomas to former FAA Administrator Donald Engen urging the FAA to grant a petition by 39 pilots for exemptions from the Age 60 Rule so that they could participate in a controlled study envisioned by the National Institute of Aging panel; EEOC comments in response to the FAA’s request for comments at 58 Fed. Reg. 21336 and 33316 (1993); and EEOC comments on the FAA’s Notice of Proposed Rulemaking at 60 Fed. Reg. 16230 (1995). As recently as 2005, in response to the Office of Management and Budget’s request for comments concerning the planned testimony of John L. Jordan, Federal Air Surgeon, before the Senate Committee on Commerce, Science and Transportation, Subcommittee on Aviation, on the Age 60 Rule, the EEOC reiterated its longstanding opposition to any rule on pilots or co-pilots that limits an individual’s ability to operate aircraft due solely to age and without regard to ability to safely pilot aircraft.
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