No Bias in Exxon’s Ban on Letting Older Pilots Fly

     DALLAS (CN) – Exxon Mobil does not discriminate in banning pilots from flying corporate aircraft after they turn 60, a federal judge ruled.
     This marks the second time U.S. District Judge Ed Kinkeade has granted Exxon summary judgment. The 5th Circuit had determined that the first award of summary judgment had not involved enough discovery for the court to rule on issues of “continuing validity” regarding bona fide occupational qualifications.
     After refusing to open discovery beyond the issue of continuing validity, Kinkeade ruled Wednesday that Exxon had since “established a bona fide occupational qualification as a matter of law.”
     The judge notes that Exxon’s policy mirrors a Federal Aviation Administration directive to ground commercial airline pilots at 60.
     “Exxon employs 27 pilots who fly all over the world with job responsibilities similar to those of commercial pilots,” he wrote. “Exxon’s fleet includes nine jet aircraft, including four Bombardier Global Express jets and five Bombardier Challenger 300 jets. Operating these jets requires similar safety concerns as those of commercial airlines. This court found that the work performed by Exxon’s pilots is congruent with the work performed by commercial airline pilots in all material ways.”
     The Equal Opportunity Employment Commission sued the oil company on behalf of three pilots were were forced to retire under the policy in 2006.
     Kinkeade had ordered Exxon to show that it mirrored the FAA policy by not conducting tests to predict when a pilot older than 60 might experience a medical event that puts the plane in danger.
     “Exxon has provided conclusive evidence that the FAA’s safety rationale supporting the age-based rule was valid in 2006 and 2007 and continues to be valid today,” the 24-page opinion states. “Because Exxon has presented conclusive evidence that the risk of sudden incapacitating events increases with age and no test can identify if or when that event may occur, and because the EEOC has failed to set forth any evidence to the contrary, Exxon has proved the continuing validity of its age-based rule as a matter of law.”
     The commission had the burden to present evidence that raises a fact question regarding continuing validity, but it failed because of scientific evidence is limited in the area, according to the ruling.
     Kinkeade put little stock in testimony from a commission expert who said that accidents resulting from incapacitated pilots are rare, that age limits are useless because of FAA medical exams and flight-simulator testing screen pilots reliably, and that the FAA’s rule had been called into question at the time of the Exxon pilot firings.
     “The bottom line in this case is that conclusive evidence has been presented by Exxon that risk of sudden incapacitation and health deterioration increases with age,” Kinkeade wrote. “The EEOC does not contest this fact. Beyond this, Exxon has provided expert testimony that establishes no test can predict whether that risk will become a reality.”
     He added: “Whether the risk is rare is not the point. Whether the medical field has advanced significantly in the last few years is not enough to raise a fact issue about the BFOQ in this case. Sudden incapacitation is a risk that jeopardizes the safety of Exxon’s passengers. Because Exxon cannot test for this risk on an individual basis, they have established a BFOQ as a matter of law.”

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