Court Upholds Ban on Older Pilots at Exxon

(CN) - Exxon Mobil does not discriminate against older pilots in banning the 60-plus crowd from flying its corporate aircraft, the 5th Circuit ruled.

On behalf of three implicated workers, the Equal Employment Opportunity Commission sued the oil giant in 2006, calling the mandatory retirement of pilots at age 60 a violation of the Age Discrimination in Employment Act.

Irving, Texas-based Exxon countered that the policy was a bona fide occupational qualification, of BFAQ, similar to a ban by the Federal Aviation Administration against older commercial pilots.

U.S. District Judge Ed Kinkeade in Dallas granted Exxon summary judgment, but the New Orleans-based 5th Circuit deemed that ruling premature and called for further discovery to ascertain whether the policy is a BFAQ.

The trial court reached the same conclusion after that inquiry, however, and this time did not face a reversal from the federal appeals court.

"We conclude that Exxon has established its mandatory age retirement rule is BFOQ and the EEOC has not demonstrated a genuine issue of material fact," the unsigned Tuesday opinion states. "Therefore, we affirm the District Court."

The appeals court shot down the EEOC's attempt to distinguish the jobs of the Exxon pilots from those of commercial pilots under the FAA rule.

"Exxon has put forth significant evidence demonstrating that its pilots fly similar planes, in similar conditions, and in the same airspace and airports as commercial pilots," the 13-page opinion states. "Exxon's 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 remote airports. Although Exxon's pilots may face different regulations, certifications, and testing, the essence of their occupation - piloting Exxon's corporate aircraft - is congruent to the essence of commercial piloting."

Likewise, the EEOC failed to show that evidence supporting the FAA's rule was inapplicable to Exxon's operations.

"Although the FAA has not applied the Age 60 Rule to corporate pilots, that alone is insufficient to demonstrate a genuine issue of material fact concerning the applicability of the FAA's safety rationale," the opinion states. "To imply such an automatic conclusion ignores the relevancy of federal regulations or statutes in a private employer's ability to establish a BFOQ."

Exxon had also not failed to prove it was compelled to establish and keep the policy. The EEOC contended that age is not an adequate gauge of fitness, and that individual testing is practical and possible.

"Exxon has established that it was compelled to adopt the rule because there are no adequate means of individually testing each pilot," the opinion states. "Exxon presented the testimony of several medical professionals - including a cardiologist and neurologist-and the reports of multiple organizations on the issue. Each affirmed the notion that there are no adequate medical tests that would help Exxon predict whether a pilot was at risk for suffering sudden and subtle incapacitation while in flight. Further, the evidence confirmed that the risk for this incapacitation increased significantly with age and no individualized testing could account for this increased risk."

Exxon has not returned a request for comment.

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