LOCATION: Elstad's Residence
DOCKET NO.: 83-1545
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 472 US 400 (1985)
ARGUED: Jan 14, 1985
DECIDED: Jun 17, 1985
Gordon Dean Booth, Jr. - on behalf of Petitioner
Lawrence G. Wallace - on behalf of the United States and the EEOC as amici curiae supporting Respondents
Raymond C. Fay - on behalf of Respondent
Facts of the case
Media for Western Air Lines, Inc. v. Criswell
Audio Transcription for Oral Argument - January 14, 1985 in Western Air Lines, Inc. v. Criswell
Warren E. Burger:
Mr. Booth, I think you may proceed whenever you're ready.
Gordon Dean Booth, Jr.:
Mr. Chief Justice and may it please the Court:
According to the order granting certiorari in this case, this matter is before the Court for you to decide the proper burden of proof in connection with a defense of reasonable factors other than age arising under the Age Discrimination in Employment Act, as well as the appropriate standard for establishing a bona fide occupational qualification, a BFOQ, under the same Act in a situation where the safety of third parties is involved.
Petitioner will limit its comments to those legal issues.
Petitioner understands that this case is not before the Court on any issue involving the sufficiency of the evidence below or the nature, quality or quantity of such evidence, and therefore will not comment on the evidence except where necessary to clarify its positions or concepts.
Of course, Petitioner relies on the record and the briefs, and does not concede any evidentiary questions--
The Federal Aviation Administration sets minimum safety standards for air carriers.
It does not in any way attempt to set safety standards as such, but leaves to the carriers the methods, approaches, procedures and techniques that allow them in each of their own judgments to maximize safety.
The carriers do in fact operate with substantially different approaches and philosophies.
The flight engineer's job, for example, is different from carrier to carrier, particularly in the training aspects and emergency procedures and in the airlines' approach to the management of flight, whether the carrier utilizes a coordinated crew approach to flying.
Some carriers treat their flight engineer's job as a lifetime position.
Others, among them Western, hire only pilots and do not hire those only qualified to be flight engineers, and treat the flight engineer or second officer slot as an entry level job on a line of progression leading to pilot.
Of course, all common carriers own their passengers a duty of extraordinary care.
This is not a new concept, but rather has been the standard for many, if not hundreds, of years.
It is viewed as fair and reasonable.
The carrier is in control of the situation.
The carrier has superior knowledge and experience by virtue of being in the business, and therefore is in the best position to know and to assess the risk involved.
The carrier delivers this care through hundreds, if not thousands, of small decisions, decisions regarding the manner of operation, the type of equipment to be used, the manner of repair, maintenance and replacement of equipment, schedules and the speeds required to be utilized to meet those schedules, as well as decisions regarding the competence level required of employees, the training required, the proficiency required, and other personnel decisions, all involving human skills, human weaknesses, and human abilities... decisions which, taken together, allow the carrier to predict a safe operation.
All of these decisions are made subject to the requirement that the carrier operate to an extraordinary level of care.
The airline common carriers are charged by statute with the duty to make their decisions so as to maximize safety, to operate in the highest degree of safety in the public interest.
In practice, all common carriers probably strive to meet that standard.
All try to make decisions in such a way that a safe operation is predictable.
It is also a federal law that employment and other personnel decisions shall not be made in such a way as to arbitrarily discriminate among people based on their age.
And it is also the common experience of mankind that certain abilities and capacities diminish with age.
The difficulty is with adequately measuring or predicting such diminution in an appropriate way.
And this case involves those questions.
There are two sets of Plaintiffs.
Some were captains who sought to become second officers as they approached age 60.
The second officer is the most junior person in the cockpit.
He occupies the flight engineer position.