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EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

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: Physical Exams

December 20, 2004

Dear :

This is in reply to your letter to Commissioner Stuart J. Ishimaru of the Equal Employment Opportunity Commission (EEOC) concerning the implications under the Age Discrimination in Employment Act of 1967 (ADEA) of applying the standard for "first class airmen" to drivers of commercial motor vehicles. Commissioner Ishimaru has asked this office to reply to your inquiry.

You state that because you believe that Department of Transportation (DOT) regulations concerning medical qualifications for commercial drivers (49 C.F.R. § 391.41) are "vague about the circumstances in which an  . . . EKG should be done," you have adopted the standards set forth, at 14 C.F.R. §67.111(b), for first class airmen. The airman standard requires individuals to have an EKG "(1) at the first application after reaching the 35th birthday; and (2) on an annual basis after reaching the 40th birthday."

The determination of what tests to require for motor vehicle operators in interstate transit is within the province of DOT, not the EEOC. However, DOT evidently does not require use of the above referenced age-based standards for commercial drivers and, because the EEOC enforces the ADEA, we can provide guidance on the implications of using age based tests that could exclude an individual from being able to operate a motor vehicle in interstate commerce.

Section 4(a)(1) of the ADEA prohibits an employer from discriminating against any individual age 40 or older with regard to age in any portion of the employment relationship, including physical qualifications for employment. The Department of Transportation rules for testing commercial drivers are age neutral, simply requiring every driver to be tested every two years. In contrast, your clinic requires no testing of persons under age 35 and annual testing of people age 40 and above. This age based difference clearly implicates the ADEA and is lawful only if a statutory defense applies.

Section 4(f)(1) of the ADEA, permits employers to refuse to hire or continue to employ an individual on the basis of age where age is a bona fide occupational qualification [BFOQ]. In Western Air Lines, Inc., v. Criswell, 472 U.S. 400, 419 (1985), the Supreme Court ruled that to qualify as a BFOQ, an employer's age-based employment standard must be "reasonably necessary to the normal operation of the particular business." Generally, treating older employees differently from younger employees with regard to physical standards will not meet the requirements of the ADEA. See EEOC v. Massachusetts, 987 F.2d 64, 70 (1st Cir. 1993), in which the court ruled that requiring employees over the age of 70 to pass annual physical examinations in order to continue to work, while younger employees did not have to pass such examinations, violated the ADEA, even though the class of older employees might be more likely to be unfit. The court held that the ADEA requires fairness to individuals rather than to classes of individuals.

Courts have upheld the Federal Aviation Administration's regulations requiring the retirement of commercial airline pilots at age 60. However, the EEOC takes the position that only pilots specifically covered by that regulation can be excluded because of age. For example, test pilots, who are not specifically covered by the regulations, cannot be mandatorily retired unless the employer can establish a specific BFOQ. EEOC v. Boeing Co., 843 F.2d 1213 (9th Cir. 1988). See also Criswell, 472 U.S. 400 (FAA rule does not create a BFOQ for flight engineers). Because DOT does not mandate the use of the more stringent "first class airmen" standard for commercial drivers, it is not likely that the use of such a standard would constitute a BFOQ.

We hope this information has been useful. This letter does not constitute a formal opinion of EEOC under 29 C.F.R. § 1626.18.


Paul E. Boymel
Senior Attorney Advisor

cc: Commissioner Stuart Ishimaru
The Honorable Norman Mineta
Secretary of Transportation

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