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February 5, 1973


The opinion of the court was delivered by: Parsons, District Judge.


The proceedings upon which the following opinion is rendered are based upon a Complaint filed by the Secretary of Labor of the United States Department of Labor, requesting the restraining of alleged violations of Sections 4(a)(1), 4(a)(2) and 4(e) of the Age Discrimination in Employment Act of 1967 and for such further relief as is deemed appropriate, including the restraint of any further refusal by defendant to employ persons denied employment in the past because of their ages.

During the course of trial, I have had the benefit of the testimony of eminent witnesses, the arguments of counsel, written memoranda and a multitude of exhibits. This is a case of great moment and my decision has come only after deep deliberation and study.

The issue, herein, is whether defendant's policy of refusing to consider applications of individuals between the ages of 40 and 65 for initial employment as bus drivers is a bona fide occupational qualification reasonably necessary to the normal operation of its business. Section 4(f)(1) of the Act states as follows:

    "It shall not be unlawful for an employer,
  employment agency, or labor organization —
    (1) to take any action otherwise prohibited under
    subsections (a), (b), (c), or (e) of this section
    where age is a bona fide occupational qualification
    reasonably necessary to the normal operation of the
    particular business, or where the differentiation
    is based on reasonable factors other than age;"

The plaintiff alleges that the defendant has failed to meet its burden of proving that its age limitation policy for bus driver position is a bona fide occupational qualification reasonably necessary to the normal operation of its business.

The defendant has admitted that it does not consider applicants for the position of interstate bus drivers persons who are between the age of 40 to 65 years and contends that it is entitled to an exception because of Section (f)(1), supra, of the Act.

Defendant contends that if it were required to hire beginning interstate bus operators up to the age of 65 an unacceptable risk to the safety of its passengers and other members of the motoring public would ensue.

The defendant has offered the following arguments for its allegation.

    "1. The defendant is required by law and by the
  nature of its business to exercise the highest degree
  of care, not only in the operation of its buses but
  in the hiring of bus drivers.
    "2. Although individuals up to the age of 65 may be
  able to pass the required physical examination and be
  otherwise qualified, such physical examination is
  incapable of discovering the physical and sensory
  changes common to all man., [sic], caused by aging,
  that make an interstate bus operator less safe in the
  normal operation of the defendant's business.
    "3. That the normal operation of the defendant's
  business requires that a beginning interstate bus
  operator serve from 10 to 20 years on the `extra
  board' which service requires the highest degree of
  physical ability and use of the senses.
    "4. That its experience of over 40 years proves
  that an interstate bus driver is most safe after
  acquiring 16 years of interstate bus driving
  experience which experience could not be acquired by
  newly-employed drivers up to the age of 65 years."

Through the centuries volumes have been written on the subject of aging. It is a process that intrigues not only the scientific and philosophic mind but the less learned one as well. Aging is a phenomenon in which all humanity shares. The volumes that have been written are doubtless merely a fraction of what is yet to be studied. There will be inquiry and research as long as man exists for there will be the fascination with himself that leads to such study. For the moment, however, I must rely for my decision on that which exists in the realm of learning and on what I believe is both justiciable and correct under the existing law.

Defendant's policy of not considering applicants over the age of 35 has been in effect since approximately 1929. This is true regardless of an applicant's prior experience. At least two of defendant's officers, Mr. Forman and Mr. Gocke testified that they did not know why age 35 was originally selected nor why other ages were not selected. However, they and defendant's other witnesses vigorously support the age limitation policy and maintain that since the policy has produced results from a safety standpoint it has never been deemed necessary to change the rule. The National Association of Motor Bus Owners (hereinafter referred to as NAMBO) was granted leave to participate as amicus curiae for the defendant. In its trial brief it stated the issue at bar succinctly:

    "It is submitted that the essence of the motor
  carriage of passengers is safety and that if the
  employment of drivers over age 35 would undermine
  that safety, the maximum age standard utilized by
  defendant is "reasonably necessary" within the
  meaning of the bona fide occupational qualification
  exception to the Act."

Thus, the battle lines have been drawn. The plaintiff contends that the Age Discrimination in Employment Act of 1967 was enacted for the express purpose of "promoting `employment of older persons based on their ability rather than age'" and prohibiting "arbitrary age discrimination." Hodgson v. First Federal Savings and Loan Ass'n. of Broward County, Fla., 455 F.2d 818, 820 (5th Cir. 1972). The defendant contends that it has established a "valid justification" for its hiring practices. Hodgson v. First Federal, supra, pg. 822.

    "In discrimination cases the law with respect to
  burden of proof is well-settled. The plaintiff is
  required only to make out a prima facie case of
  unlawful discrimination at which point the burden
  shifts to the defendant to justify the existence of
  any disparities. See e.g., Norris v. Alabama,
  294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Muniz
  v. Beto, 434 F.2d 697 (CA5, 1970); Weeks v. Southern
  Bell Telephone and Telegraph Company, 408 F.2d 228
  (CA5, 1969); Gates v. Georgia-Pacific Corporation,
  326 F. Supp. 397 (D.C.D.Or. 1970). Once the plaintiff
  has made out his prima facie case we look to the
  defendant for an explanation since he is in a
  position to know whether he failed to hire a person
  for reasons which would exonerate him." Hodgson v.
  First Fed. Sav.& L. Ass'n., supra, 455 F.2d
  pg. 822.

I find that the plaintiff has made a prima facie case of refusal by the defendant to hire on the basis of age. Thus, it is incumbent upon me to carefully examine defendant's position and each of its contentions in order to arrive at a decision as to whether or not the defendant's reasons do indeed `exonerate' it.

Defendant, Greyhound Lines, Inc., is the nation's largest inter city bus carrier with 105,000 route miles within the continental United States. The defendant employs approximately 9,500 bus drivers all of whom must meet certain requirements that are set by the defendant in accordance with Federal Regulations, State Statutes and the defendant's own policies. The above mentioned requirements relate to an individual's character, age (minimum age is 24, maximum is 35), height, weight, education, health, driver training school and probationary period.

The purpose of the health examination is to detect the presence of any physical or mental defect that would affect the applicant's ability safely to operate a motor vehicle. Included in the instructions from the Department of Transportation and the defendant that the examining physicians receive is the following:

    "The examining physician should be aware of the
  vigorous physical demands and mental and emotional
  responsibilities placed on the driver of a commercial
  motor vehicle. In the interest of public safety the
  examining physician is required to certify that the
  driver does not have any physical, mental, or organic
  defect of such a nature as to affect the driver's
  ability to operate safely a commercial motor
  vehicle. * * * History of certain defects may be
  cause for rejection or indicate the need for making
  certain laboratory tests or a further, and more
  stringent, examination. * * * (Pltf.ex. 6 pg. 1;
  pltf.ex. 7)."

It is axiomatic that common carriers are held to an extremely high degree of care. Thus, it is the defendant's obligation to exercise the highest degree of care possible in all aspects of its business including, of course, the hiring of bus drivers.

When successfully completed the aforementioned qualifications and requirements merely constitute an entry into defendant's organization. Greyhound bus drivers must continue to meet standards set by the defendant in accordance with Federal Regulations. Those standards include a low accident rate, safe driving habits, good health, good driver attitude and courtesy to customers (Pltf.ex. 1 req. 27). Each driver's reaction time is checked periodically as is his driving ability under all weather conditions. A physical examination is ...

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