LOCATION: United States Courthouse
DOCKET NO.: 83-997
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Second Circuit
CITATION: 469 US 111 (1985)
ARGUED: Oct 09, 1984
DECIDED: Jan 08, 1985
Henry J. Oechler, Jr. - on behalf of TWA
Lawrence G. Wallace - on behalf of the EEOC
Michael E. Abram - on behalf of ALPA
Raymond C. Fay - on behalf of Thurston, et al
Facts of the case
Media for Trans World Airlines, Inc. v. Thurston
Audio Transcription for Oral Argument - October 09, 1984 in Trans World Airlines, Inc. v. Thurston
Warren E. Burger:
We will hear arguments next in Trans World Airlines against Thurston.
Mr. Oechler, you may proceed whenever you are ready.
Henry J. Oechler, Jr.:
Mr. Chief Justice, and may it please the Court, this Court granted certiorari to the second circuit to consider three issues under the Age Discrimination and Employment Act: one, a standard of liability under the ADEA; two, a standard for wilfullness under the ADEA; and three, whether a union can be monetarily liable under the ADEA.
Now, TWA, like all major airlines, must adhere to the safety regulations of the Federal Aviation Administration.
One of these safety regulations requires that a captain cannot serve as a captain beyond the age of 60, and the issue before this Court is, to what extent, if any, the ADEA requires an employer to find another job for that captain nor anyone else unable to perform in his former position because of age.
Now, in an effort to make just such an accommodation, TWA took the lead amongst the airline industry and adopted a policy of relying on the existing neutral bidding procedures of its working agreement.
Over a four-year period, this policy resulted in an 83 percent success rate for those captains seeking to serve as flight engineers... for those captains seeking to serve beyond age 60 in a position not subject to the FAA rule, namely, that of flight engineer, which is the third seat in the cockpit.
And while TWA was experiencing an 83 percent success rate, the rest of the airline industry during this four-year period had a zero percent success rate.
Nevertheless, despite this 83 percent success rate, that was not sufficient for what the EEOC itself admits is a handful of plaintiffs who were retired as captains because they had been unable or unwilling to obtain a flight engineer bid.
Now, the court below said that the plaintiffs were entitled to a virtual guarantee to a flight engineer position, because in certain limited and admittedly non-age-related circumstances, there is an automatic right for a captain to go to flight engineer.
For example, under the contract, a captain must maintain an FAA first class medical certificate.
If for medical reasons he cannot maintain that FAA medical certificate, and can only maintain a second class medical certificate, he is entitled under the contract to revert to flight engineer.
Now, the court said, because you did that for what was admittedly a non-age reason, you must do a similar type of accommodation with respect to the plaintiffs here.
Harry A. Blackmun:
Of course, that is some discrimination, isn't it?
Henry J. Oechler, Jr.:
Well, we submit it is not based on age.
What they are seeking here, the fact that they want a reversion right to flight engineer is strictly because of the fact that you have an age 60 rule which prohibits Captain Thurston and similarly situated plaintiffs from continuing as a captain.
If Captain Thurston had had his way, he would have wanted to fly long past age 60 as a captain.
That was impossible because of the FAA rule, so what he is seeking here is a reversionary right based on the fact that he reached age 60, and the court described that... the dissent described that below as apples versus oranges, because the fact that this reversionary right is available to everyone on the TWA pilot work force, including Captain Thurston, if at age 55 he had a medical problem, he had lost his first class medical certificate, he could have downbid, he could have reverted to flight engineer at age 55.
But we submit that the ADEA and the legislative history of the ADEA says you do not now have to create that right based on age.
Page 12 of the House of Representatives report which accompanied the 1978 amendments which are at issue here specifically said, you do not have to provide special working conditions, and specifically said, based on age, and specifically said, you do not have to retrain and transfer.
And what we are talking about here is retraining Captain Thurston and transferring him from a captain to flight engineer.
Now, the question of how much an employer must accommodate its employees was a subject of concern to this Court in another case involving TWA, in another case involving the TWA collective bargaining agreement.
That case was TWA v. Hardisan, at 432 US 63, and in that case, Mr. Hardisan contended that because of his religious beliefs, he was entitled not to work on a Saturday, despite the fact that the seniority provisions and the working agreement were going to require him to work on a Saturday.
That case arose under Title 7, where there actually is a specific provision about accommodation, while... a religious accommodation, while here it can only be... such a claim for accommodation can only be implied, and the Court said that you do not have to go that far... Pages 79 to 81 in particular, they discussed this question... that the employer does not have to go that far to accommodate the employee.
And we submit that has equal applicability here, and it is also important to remember how the posture of this case arose.
When TWA announced its policy in August of 1978, it was immediately faced with a lawsuit from the union contending that what we had done by allowing anyone to fly beyond 60, and today we have over 150 people flying beyond 60, violated the Railway Labor Act, because we had unilaterally changed our wages, rates, and working conditions.
And they also contended that what we had done was not mandated by the ADEA.
Soon thereafter the plaintiffs came in and said that we hadn't gone far enough.
The union said we had gone too far.
The plaintiffs came in several months later, brought suit saying we hadn't gone far enough to accommodate them.