Age of Exclusion
I graduated from law school, and attempted to re-enter the wildland firefighting profession shortly after turning 40, having previously served with the U.S. Forest Service and Bureau of Indian Affairs as a wildland firefighter. I left the BIA after suffering a serious injury while on a fire in the Payette National Forest.
For several years immediately preceding law school, I fought wildland fires and attained the following qualifications: Strike Team/Task Force Leader, ICT4, Crew Boss, Single Engine Resource Boss and Safety Officer. I maintained an arduous physical fitness score ranging between 58 and 68, and every performance appraisal reflected exceptional service.
But beginning in 2005, I was denied a wildland firefighting position in the federal service solely because of the maximum age restriction imposed on the occupation. In fact, several of my applications were rejected without review just based on my age.
On Feb. 11, 2002, the Department of the Interior director of personnel policy issued the maximum entry age restriction rule as it applied to wildland firefighting. That rule states that the date immediately preceding an individual's 37th birthday is the maximum entry date at which an applicant initially can be hired into a primary firefighting position. In an attempt to link health and safety concerns of the profession with the mandatory separation issue, the DOI stated that the special retirement provisions were enacted because of the rigorous physical requirements of certain positions.
In the wake of the Thirty Mile Fire, many agencies cinched up training requirements; more importantly, hiring and selection processes automatically were targeted as a risk-management device. Yet the DOI outlined permissible exceptions for its age restrictions to infrequent situations where an individual has “unique experience and skills that are critical to the accomplishment of the mission … to maintain a young and vigorous work force.” Thus the DOI rule in question outlines the procedures and justifications that form the basis for its enactment, even though a narrow exception simultaneously was created irrespective of that exception's built-in age-biased goal.
The DOI and the Office of Personnel Management share concurrent authority, under 5 U.S.C. 3307, regarding the establishment of minimum and maximum age restrictions for certain employment positions. Because 5 U.S.C. 3307 provides the sole authority to permit the age restrictions in question, the remaining retirement statutes only will receive cursory reference.
Pursuant to the federal Administrative Procedures Act, the personnel bulletin constitutes a rule. However, a problem emerged during the analysis of the age restriction issue: Did the rule, as expressed in the bulletin, undergo the informal or formal process, and depending on which, did the DOI follow the legal requirements throughout that process?
Because of the exceptions included in the APA regarding agency management or personnel, an agency is permitted to bypass certain provisions of the rule-making process. Arguably, decisions regarding pre-selection or pre-employment may permit an agency to bypass both the informal process and also the cost-versus-benefit analysis requirements, including publication in the Federal Register.
What remains unclear is whether the DOI was required to follow the formal rule-making aspects of the APA and if so, whether the DOI followed those requirements. If required to do so, and the agency failed in that regard, then that bulletin would be considered void or at least unenforceable. This results in continued age-based discrimination without limitation or internal regulation under 5 U.S.C. 3307.
Regardless if required to implement the APA provisions or whether the DOI followed those requirements, an individual such as myself could normally seek relief under the APA. Despite the waiver provision included in the bulletin, because of the finite and complex procedure of that process, that provision will not be addressed here.
More than likely, the bulletin constitutes a rule, but that rule probably applies to the agency's internal personnel matters, and therefore is excluded from most of the rule-making procedures of the APA. However, because the bulletin specifically applies to a protected class, its validity as a legal authority should be forced to stand muster under various constitutional and other legislative directives. This remains true not only for the bulletin, but also for any conduct stemming from that bulletin and any legal authority it purports to ground itself in as a lawful authority.
Insofar as any regulation, agency rule or personnel decision remains in opposition to constitutional authorities, then that regulation, agency rule or personnel decision is subservient or unlawful. Similarly, just because an agency claims that the enactment of a rule is based on superior legal authority does not by itself make the rule lawful, either as applied or as enacted.
Initially, the provisions of the Age Discrimination in Employment Act of 1967 only applied to private employers, then subsequent revisions included its application to the federal government. Although Title 29 refers to an exemption for employers setting age restrictions for a firefighter, those provisions are applicable only to state governments and their subdivisions.
Originally the firefighter exception included in the 1986 version of the ADEA expired on Dec. 31, 1993. It is reasonable to conclude from this lapse and its duration that Congress and various federal agencies briefly accepted the fact that the ADEA applied to firefighters. Arguing that the bona fide occupational qualification exception is synonymous with the firefighter exception, in 1996 Congress introduced and President Clinton permanently reinstated the exception.
Therefore, the secretary of the interior is permitted to establish a minimum and maximum age limitation for firefighter positions, but only for an original appointment into the position. Nothing in the language permits the expansion of authority beyond an original appointment.
Normally, when an employer refuses or fails to hire a candidate based on age, that conduct is unlawful. This prohibition also includes pre-employment practices related to the publication of any notice or advertisement that contains arbitrary age restrictions. Yet every advertisement for select wildland firefighting positions within the federal service includes a statement containing an age restriction.
Unless separate legal authority permits the DOI to expand the permissible area of legislation, the agency lacks the authority to set age limitations in the pre-employment selection context. In fact, the DOI may be expressly prohibited from setting age restrictions in the examination or pre-employment process that applies to anything other than an initial appointment to firefighter positions.
Entrance into certain employment positions that contain age restrictions should be based on actual, empirically based, legitimate health and safety concerns, not merely as an arbitrary measure to justify the mandatory separation provisions related to retirement.
Age discrimination legislation has the underlying purpose to promote employment of older persons based on their ability rather than age. The establishment of arbitrary age limitations, regardless of potential for job performance, serves as the basis for legislation prohibiting discrimination based solely on age. By prohibiting the stereotypical mind-set that productivity and competency decrease with old age, Congress enacted the ADEA to outline impermissible forms of age discrimination and set forth remedies for disparate impact and disparate treatment liability. But age restrictions that apply to employment within wildland firefighting positions have little genuine health and safety concerns, but seem to reflect the stereotypical competency mindset often born out of tragedies such as the Thirty Mile Fire.
Employers and potential employers are permitted to impose age restrictions that are otherwise unlawful under the ADEA only when:
Age is a bona fide occupational qualification, or BFOQ, reasonably necessary to the normal operation of the business;
The differentiation is based on reasonable factors other than age, or RFOA; or
The restriction is limited to an employee pension benefit plan.
The bulletin's justification is not limited to any pension plan. But it suggests a causal link between retirement and certain health and safety policies. The DOI states that the special retirement provisions were enacted because of the rigorous physical requirement of certain positions. Hence, the DOI's age restriction does not fit into the ADEA pension plan exception since the limitation expands beyond just the pension plan.
Of the two remaining ADEA grounds that permit age restrictions, BFOQ is almost as easily dismissed since rigorous wildland firefighting, as a profession within multiple agencies, contains firefighters who are older than 37. Any justification on this grounds would fail to meet the reasonableness condition. If all rigorous firefighting activities required individuals under the age of 37, then all currently employed individuals in those positions would be 37 and younger. It is neither reasonable nor necessary to restrict rigorous wildland firefighting activities to individuals who are 37 or younger.
Last, the ADEA's RFOA exception may pose a valid threat to individuals seeking employment. If asserted, an agency-employer retains the burden of showing that it's action was based on reasonable factors other than age. However, because neither the DOI nor any other agency has offered any such factors as of the date of this memoranda, the discussion is limited to alternative legal standards.
Under state equal protection cases, age classifications are evaluated under a presumed rational basis test to overcome the presumption. And the party challenging the classification must show that the facts the government based its classification on could not reasonably be conceived as true. By extension, reliance on the BFOQ defense is not synonymous with the rational basis test as applied in age discrimination cases under equal protection cases.
Simply put, the BFOQ defense requires a reasonable necessity showing rather than just reasonableness.
However, since the U.S. Supreme Court held that employment classifications based on age may remain valid (even if there is a likelihood that the underlying facts a government agency may assert are not true), the ADEA bars substantially more than the equal protection line of cases. And once the issue is removed to determine whether a federal agency acted lawfully when imposing or enforcing an age limitation during the hiring and selection process, the rationality test becomes one of strict scrutiny under the ADEA.
Without question, employing agencies within the government are permitted to discriminate on the basis of age in narrowly defined instances. Primarily, these instances are limited to situations involving an individual's qualifications and the government's age restrictions based on generalized safety concerns across an entire profession.
Strikingly, cases falling under the ADEA start with the presumption that age classifications are unlawful. Next, the employer must show individual determinations were based on merit, unless an exception/defense such as BFOQ is asserted.
This does not mean that the complaining party lacks any responsibility. That individual must show, as an initial matter, that he or she:
Was at least 40 years old;
Applied for and was otherwise qualified for the position sought;
Despite the qualifications shown, was rejected from the available pool or position; and
Continued to seek employment.
The aggrieved individual also must show that the employer engaged in willful violations of the ADEA. An employee's disparate treatment claim will fail unless the employer actually rendered a decision based on the employee's protected trait.
Here we are addressing a situation where the federal government has established a classification system that deprives only a certain portion or group of people a fundamental right. At this point in our hypothetical challenge, the burden shifts to the government to prove not just a compelling reason for the ends sought, but that the means to reach its goal under the law are narrowly tailored to achieve that goal.
So either the wildland firefighting age limitation is limited to retirement alone; the defense of BFOQ, differentiation, business necessity applies; or the age limitation lacks a lawfully acceptable basis. For instance, if the limitation is linked directly to firefighting, then the asserted basis — employing a “young and physically vigorous work force in all … firefighting positions” — should be tested under the appropriate legal authorities.
Congress never mandated nor established a policy of employing a “young and physically vigorous” work force as claimed in the bulletin. Rather, Congress expressed its concern that the occupation should be limited to young and physically vigorous individuals as an optional justification, not a mandate. Thus, Congress provided discretionary advice, not mandatory compliance.
Even Congress understood the tenuous ground that this law stood on. In an effort to thwart future legal challenges, Congress directed the National Institute of Occupational Safety and Health to prepare reports regarding the fitness of firefighters based on age.
All currently employed firefighters age 40 or older are neither young nor vigorous if the Congressional opinion were viewed as a mandatory employment condition. By extension, the basis for the separation provisions fails to show either a reasonable or compelling basis linking health and safety with pre-employment age restrictions. Simply put, mandatory separation and pre-hiring criterion, although related, are mutually exclusive in this context.
If the firefighting age restriction is based solely on retirement benefits, with an underlying health and safety issue after reaching a maximum age, then the imposition of an age limitation should be restricted to the retirement system, not the hiring/selection process. Yet if the pre-employment age restriction is based on broad generalizations with respect to age, then either an exception applies or the restriction should be considered unlawful under the ADEA.
The ADEA prohibits all age discrimination in the employment context, noting several exceptions. But even if, for example, the BFOQ defense applies, age limitations remain prima facie unlawful because employers are required to determine a person's merits, excluding age as an initial factor.
Whenever an agency asserts the BFOQ defense, the defense is construed narrowly and the employer must show that the need for the age limitation has either a substantial basis for believing that all or nearly all employees above an age lack the qualifications required; or that it is highly impractical for the employer to ensure by individual testing that its employees will have the necessary qualifications for the job.
It would be ridiculous to claim that nearly every wildland firefighter older than 37 lacks the qualifications needed to further the agency's wildland firefighting mission. Hence, the agency-employer would be left with a situation where it could not prove that the age-related job qualifications are reasonably necessary to the essence of the employer's business.
Alternatively, equal protection law requires the employer to then show that the qualification is more than just convenient or reasonable, but that it is compelled to rely on age as a proxy for safety-related qualifications. A hiring agency can satisfy this prong only if it proves that it had a factual basis to believe all or substantially all people over the age of the restriction would be unable to safely and efficiently perform the duties of the job. As an alternate method, the employer can show that age was a legitimate proxy for the safety-related job qualifications because it was impossible or highly impractical to deal with older employees on an individual basis.
Since all wildland firefighters are subjected to extensive testing, including the annual Work Capacity Test, and must keep their qualifications current, the second BFOQ condition is eliminated. Thus, neither of the conditions apply, and by necessity any agency assertion of the BFOQ defense in the age restriction context may be dismissed.
The relevant considerations for resolving a BFOQ defense to an age-based qualification purportedly justified by safety interests are whether the job qualification is “reasonably necessary” to the overriding interest in public safety, and whether the employer is compelled to rely on age as a proxy for the safety-related job qualification validated in the first inquiry. The latter showing may be made by the employer's establishing either that it:
Had reasonable cause to believe that all or substantially all persons over the age qualification would be unable to safely perform the duties of the job, or
Is highly impractical to deal with the older employees on an individual basis.
Another defense available to an employer attempting to justify age restrictions in the employment context is called business necessity. Rarely asserted, this defense usually arises under disparate impact cases where employment practices are facially neutral in their treatment of different groups, but in fact fall more harshly on one group than another. In a case involving the disparate treatment to an adverse group, such as older workers, this conduct must be justified by business necessity and therefore, proof of discriminatory motive is not required.
Whereas the ADEA and Title VII share the common goal to eliminate discrimination in the workplace, many of the Title VII jurisprudence applies when deciding cases involving the ADEA. Thus, under a disparate impact theory of liability, unless justified by business necessity, employment practices with an adverse effect regarding employment opportunities of a member of a protected class constitute unlawful discrimination.
By extension, if business necessity defense is applicable in both Title VII and ADEA cases, then the enunciated standard for the defense would transfer as well. If the aggrieved could not show evidence of an alternative business practice that would serve the business' mission equally, then the employer has the burden of proving a business necessity. This imposes a burden of proof onto the employer that its qualification tests are actually job related.
Employers must also use a professionally acceptable method to validate the employer's discriminatory test so that the tests are determined to actually predict successful job performance based on qualification criterion. In summary, employers using discriminatory-qualifications criterion must offer professionally accepted proof that measures the identifiable characteristics that are held out as vital to successful job performance.
The ADEA extends beyond the requirements of the Equal Protection Clause, and the ADEA's exceptions establish that employers are prohibited from using a person's age as a substitute for other employee characteristics but for very narrow fact-specific cases.
One of the unintended consequences of 5 U.S.C.A. 3307 is that federal agencies that apply it marginalize the firefighting profession, thereby creating new safety concerns, and negatively impacting the federal government's integrity. Without 3307, the ADEA would apply and federal agencies that were granted the permit to discriminate would not be allowed to discriminate on the basis of age as the sole qualification for firefighting positions.
So long as candidates are appraised of the fact that they will not receive full benefits under an employee retirement plan, the government's cost concerns evaporate. By extension, then the government's legitimate health and safety objective is simultaneously thwarted because the legitimacy would be limited to retirement due to the fact that the employee would still face lawful mandatory separation at age 57. An employer does not violate the ADEA just by interfering with an older employee's pension benefits, if the employer's motives are wholly distinct from age.
Any evaluation concerning legitimacy should be based on the government's objective in precluding anyone between the ages of 40 and 57 from wildland firefighting positions that are defined as rigorous. This process also should recognize that the closer a person is to 57 the need for greater justification by the government decreases. During the period of time before age 57, the government would be required to show not a generalized concern, but whether any individual created any actual increased health or safety risk. Individual evaluations are preferred over blanket en masse criterion and exclusions.
By extension, then the government's legitimate health and safety objective is thwarted simultaneously because the legitimacy would be limited to retirement since the employee would still face lawful mandatory separation at age 57. In contrast, middle-aged and older workers are injured with nearly the same frequency as the remaining relevant, younger age groups, and depending on the criterion, in some instances less frequent.
Workers between the ages of 20 and 24 average about four days per year away from work due to injury or illness, while 25 to 34 lose five days, and 35 to 44 lose seven. The correlation or skew fails to account for the reason, perhaps because of the increased number of days missed, older workers simply lose more family members or incur significant life changing events with natural frequency, such as births, more often than younger workers.
In direct relation, the number of hours worked, regardless of age, (although younger workers often work fewer hours per week/year), indicates that workers between the ages of 20 and 44 have the greatest number of injuries and illnesses more than their older counterparts.
Accordingly, the distribution rate of non-fatal injuries/illnesses requiring time away from work is nearly the same for workers between the ages of 25 and 54. In fact, workers between the ages of 25 and 35 accounted for more lost time under this criterion than those between 45 and 54. Interestingly, workers who were older than 54 were responsible for only 10.5% of the injuries/illnesses resulting in lost days from work.
Because of the serious nature involved with wildland firefighting, the number and rate of fatalities in relation to age must be examined. Without consideration to specific professions, workers aged 25 to 54 accounted for 66.5% of the fatal injuries in 2002. Fatalities among workers aged 65 and older accounted for 9% of all fatal occupational injuries. Although the percentage of fatalities for workers between 20 and 34 totaled 5.5% per 100,000, the rate remained at 4% for those between 35 and 44, and 4% again for those between 45 and 54.
In summary, workers older than age 44:
Will make up more of the civilian work force than those younger than 44 by 2010,
Lose two more days of work per year on average because of injury/illness on the median,
Lose fewer days than younger workers per year, however, in relation to the number of hours worked,
Have a lower percentage of fatalities attributed to them as they age from 44 to 65, and
Have a constantly decreasing number of lost days of work resulting from illness/injury.
Age limitations that currently are affixed to certain wildland firefighting positions fail to reach the threshold for legitimate, non-discriminatory means to provide for the health and safety of firefighters and the public. Moreover, because of the increased training requirements and timely monitoring of those requirements since the Thirty Mile Fire, the ability to determine meritorious reasons for exclusion on an individual basis override the necessity for blanket age limitations applicable to entire groups within wildland firefighting.
There is a clear demarcation between age restrictions in relation to pre-employment and employment versus mandatory separation requirements for retirement benefits. Federal agency-employers are permitted to place age restrictions on employees based purely on pension plans. Arguably, crossing over into the pre-employment arena and limiting potential employees by using the same criteria may constitute unlawful employment practices under the ADEA, if it were to apply to firefighting.
Despite the legal authorities cited herein, or the various legal defenses available to an agency-employer, the goal is to balance countervailing interests while protecting the public and preserving natural resources. From a careful examination of the authorities cited, the government cannot rest its hat on the legal authorities as though those authorities constitute a legitimate basis for blanket age-based exclusions. Federal agencies should take a prospective problem-solving position and select the most qualified candidates by scrutinizing their individual accomplishments, and make selections based on individual merits. It seems plausible to retain the age-defining limitation for pension benefits and requiring an acknowledgment or notice from any potential candidate that if they do not have 20 years of public service, they are ineligible for full benefits.
From a cost-based perspective, an adverse candidate could argue that the limitation would jeopardize the health and safety of the public and other firefighters simply because additional funding would go to litigation, rather than training, education or equipment. On the practical side of the coin, because the work force is rapidly aging, having age restrictions such as the 37 or younger one at issue here, also increases the risk of harm to the public and other firefighters. Shortages in necessary personnel, especially in a profession already strained, will result in increased fatalities, injuries and destruction of public resources and private property.
Common sense, supported by the data collected by the U.S. Department of Labor, seems to indicate that older workers lose fewer days because of injury and illness as they grow older, in comparison to the “ideal” age set for firefighters, but the markedly decreased rate of fatalities attributed to older workers should be every hiring agency's focus. Lead the world by example, exclude age as an initial factor or as a substitute for individual qualifications, and simultaneously uphold the intent of the law, if not the actual law apart from 5 U.S.C.A. 3307.
Serious questions exist and remain unanswered as to whether the underlying legal authorities that outline age restrictions in the firefighting context are valid or lawful. From a cursory review it appears that the U.S. Supreme Court has never touched this issue. Since several legal authorities conflict with each other, deference should be given to existing constitutional provisions, federal case law, statutes, then agency rules and regulations.
S.L. Biers has supervised and coordinated the wildland fire suppression program for state of Utah while providing ancillary support to other state, federal and local districts. He also has served as a single-engine resource boss, incident commander, strike team/task force leader, and company safety officer. Biers also is the supervising office manager on Larry Long, Lawyers Inc.. As criminal paralegal, he has assisted lawyers drafting motions and stipulations, scheduled hearings, interviewed witnesses and clients, managed case files, and worked with prosecutorial agencies in Utah, Wyoming, and Idaho regarding scheduling and discovery.
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