Sunday, April 5, 2020

Can someone be too old to be a professional driver or pilot?

A few days ago, the EEOC filed a lawsuit alleging that a job applicant was denied a position as an airport shuttle driver because of his age. As reported by media sources, the applicant was 79 years old and met the general job requirements but was denied the job because the employer's insurance policy did not cover drivers 75 and older. The EEOC's suit raises the obvious question of whether -- and if so, when -- someone can be too old to be a professional driver.

Under the federal Age Discrimination in Employment Act, it is generally unlawful to discriminate against a worker based on age. If age is a "bona fide occupational qualification" for a particular position, however, then taking a decision based on an individual's age is not unlawful. Although older age is not a perfect predictor of whether an individual can perform a particular job safely, older age correlates with various physical and neurological conditions that can affect the ability to drive and perform other tasks.

The correlation between a driver's age and risk to public safety will naturally be reflected in insurance costs. As a result, insurance companies may charge exorbitant rates or even refuse to insure drivers who exceed a certain age. In Enlow v. Salem Keiser Yellow Cab, 389 F.3d 802 (9th Cir. 2004), a 73-year-old cab driver was fired after his employer learned that its new insurance policy, which it had not reviewed before purchasing, did not cover drivers over the age of 70. As recognized by the court, given the employer's need to insure its drivers, the employer might be able to show that it was permissible to fire drivers over a certain age if insuring them was prohibitively expensive.

The public safety question also arises where an employer claims that an individual is too old to be qualified to work as a professional pilot. In 2006, the EEOC filed a suit against Exxon Mobil, challenging the company's policy of requiring corporate pilots to retire at age 60 (later revised to require retirement at age 65), which was patterned on FAA regulations.

As the court explained in the Exxon case in ruling for the defendant:

Exxon has established that it was compelled to adopt the rule because there are no adequate means of individually testing each pilot. 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.
Although the EEO laws are meant to protect workers from discrimination unrelated to job performance, they should not override public safety and reasonable business practices. An EEOC representative is quoted in the EEOC's press release involving the airport shuttle driver as stating that "job seekers should be evaluated based on their qualifications, not their age." The issue in this case, however, is whether the applicant's age rendered him unqualified. 

There is, of course, no safety exception to the prohibitions against age discrimination. On the other hand, risks to safety can be weighted more heavily than many other risks. Thus, a small risk might be unacceptable if it could lead to serious injury or death, even if a similar risk might be acceptable in other contexts that do not involve comparable injuries. 

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.