By Bryan Stillwagon
In EEOC v. Exxon Mobil Corp., No. 13-10164 (5th Cir. Mar. 25, 2014), the EEOC challenged Exxon’s policy requiring pilots of the company’s private aircraft fleet to retire at age 60. The FAA’s “Age-60 Rule”—which was in effect until Congress passed the Fair Treatment for Experienced Pilots Act in 2007—prohibited over-age-60 pilots from flying large commercial passenger aircraft, smaller propeller aircraft, and some all-cargo aircraft; corporate pilots have never been subject to the Age 60 Rule. Nonetheless, Exxon implemented its own Age-60 Rule because of safety concerns.
The EEOC argued that the rule for commercial pilots did not apply to corporate pilots. The court disagreed and found that the employer demonstrated its pilots fly similar planes, in similar conditions, and in the same airspace and airports as commercial pilots. Additionally, its pilots must obtain some of their own pre-flight information, fly with little advance warning, allow passengers to change itineraries mid-flight, and occasionally fly into and out of unfamiliar and remote airports. The employer was also able to show that older pilots were at increased risk of “sudden incapacitation” and the EEOC failed to show that individualized testing of the pilots would reveal the increased risk. The court concluded that, in this case, the employer’s mandatory retirement rule is a bona fide occupational qualification (“BFOQ”) for its corporate pilots.