United States District Court, Northern District of Illinois, E.D
February 5, 1973
JAMES D. HODGSON, SECRETARY OF LABOR, PLAINTIFF,
GREYHOUND LINES, INC., DEFENDANT.
The opinion of the court was delivered by: Parsons, District Judge.
MEMORANDUM OPINION AND ORDER
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
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
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
"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
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;
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 required by Federal
Regulations at two-year intervals up to age 50 and annually
thereafter until age 65. (Pltf. ex's. 1 and 2 req. 28).
Thus, it may be seen, a fortiori, that defendant does exercise
a high degree of care in the hiring of its bus drivers.
Defendant's next contention is that the required physical
examination "is incapable of discovering those physical and
sensory changes common to all men" that would cause an interstate
bus driver to be less safe while in the operation of defendant's
business. This premise is not as easily dealt with as was
defendant's first contention. The expert testimony tendered at
trial and in exhibits differs greatly and so I feel constrained
to review certain portions of that material.
Defendant's witness, Dr. Harold Brandaleone, a physician
specializing in internal medicine and a medical consultant to bus
and trucking companies, testified that he did not believe a man
past 40 should be employed in a new job of driving an inter city
bus. (tr. 352). Dr. Brandaleone testified that in general after
a certain age, usually about 40, degenerative changes occur in
the individual such as arteriosclerotic changes in the blood
vessels, the heart, the blood vessels in the brain, the kidneys,
the lungs, his lower extremities and his visual capacity or
sensory changes including a decrease in his ability to see at
night (tr. 351; 318). In response to questions concerning
physical examinations Dr. Brandaleone testified as follows:
"Well, physical examination can find many of them
but there are many things that cannot be detected by
physical examination, or even those that may be
detected at a periodic examination that could occur
every year or every two years in the interim, and
this is the thing that concerns me.
"An individual, as he becomes older, can develop
any one of these disabilities or infirmities that
would make him an unsafe driver, and unless he had
been having a physical examination to have these
things detected, they would go undetected." (tr.
Further in the testimony the witness testified that the
undetectable effects of aging in persons over age 40 are equally
as likely to occur in defendant's present bus drivers over age 40
yet he did not consider them unsafe nor did he recommend that
defendant retire its drivers at age 40. (tr. 384; 394).
Plaintiff's witness, Dr. Abraham J. Mirkin, a physician and
surgeon and the first president of the American Association of
Automotive Medicine, testified that defendant's policy of
excluding bus driver applicants solely due to chronological age
is not based on medical statistics or medical facts since
chronological age is not of itself a measurement of an
individual's physiological capabilities nor an impairing factor
in the ability to drive safely. (tr. 739-40; 749-52; 759; 760).
Dr. Mirkin stated the following in relation to physical
"* * * I feel that although a physical examination
for a driver candidate is an important part of the
screening process, it is by no means the only factor
nor, in my judgment, the most important factor, in
determining whether a driver will be good or will not
"I think a physical examination such as DOT gives
or such as the
average good internist gives, will screen out certain
coarse and gross physical and pathological states and
that is all; it will not of itself determine whether
an individual is going to be a good driver.
"But all the other things we have to do,
investigate the background of an individual, his
relationship to police, his relationship to the motor
vehicle administrator's office, his relationship to
the welfare department, his relationship to
Alcoholics Anonymous, his relationship to his
indebtedness and his financial control, all of these
factors —" (tr. 760-61).
Professor Ross A. McFarland, Ph.D., a physiological
psychologist and specialist in the field of aging was tendered as
a witness by the plaintiff. Dr. McFarland testified that
chronological age is not a reliable index of a person's physical
or psychological condition and cannot be a basis to determine the
ability of a person to drive. (tr. 1832; 1834; 1854). He
emphasized that chronological age is not an accurate index of a
person's physical condition, (tr. 1816; 1819), and stated that
many physiological and emotional alterations which result from
the aging process are not necessarily a cause for driver
limitation or impairment. (tr. 1834).
Dr. McFarland testified as follows:
"* * * I think the Greyhound data would show very
little evidence that accidents have occurred because
of physical defects. I think their medical screening
is good and that they would pick up the physically
ill or the markedly physically defective person, that
would come out.
"There is very little evidence that medical
conditions cause many accidents in public
transportation. In fact, there are very few — there
is less evidence that heart disease and advanced
illness cause automobile accidents. I have had two
physician friends die recently and they have drawn up
to the side of the road. They have become aware of
their illness and they are not apt to have the sudden
and acute heart failure while driving.
"This rarely, if ever, occurs in the bus or truck
industry —" (tr. 1836).
Later in the trial in response to cross-examination, Dr.
McFarland stated the following:
"* * * I am saying that the physical examinations
are poor and do not test functional ability, and I
want a man judged on the basis of his functional
ability, his capacity to do the work, and whenever
you employ a man, you immediately put him through all
of the functional tests of driving." (tr. 1914).
In an article*fn1
Dr. McFarland wrote:
"Research has not yet furnished definitive answers
to many questions of minimal physical standards for
driving and of medical fitness to drive safely. There
is great diversity in the requirements of the various
states in this connection and in the prevailing
professional opinions and practices. Thus far there
have only been a few objective studies to establish
cut-off points on an experimental basis, and to
provide criteria to aid in advising persons with
certain physical conditions or the safety of
driving." pg. 78.
On page 75 of the same article the author made the following
"The role of the medical profession in appraising
fitness to drive an automobile has been based on
clinical judgment and experience, rather than on
experimental data involving the application of
"* * * The use of clinical judgment may be
effective in extreme cases, but limited information
has been developed for minimum standards relating
to physical and mental fitness. Furthermore, until
very recently, no empirical findings have been
reported which indicate that persons suffering from
any disease, with the exception of alcoholism, have
higher accident rates than persons free from
Dr. McFarland goes on to write of a series of studies begun in
1963 in California in which accident rates per mile were compared
for drivers known to the California Department of Motor Vehicles
to have medical defects and drivers known not to have medical
defects. The drivers with organic medical conditions fell into
three categories; those with epilepsy, diabetes and
cardio-vascular diseases. However, I should like to note that a
thorough medical examination including the use of an
electroencephalograph, an electrocardiogram and other diagnostic
tests would immediately make any of these illnesses apparent.
Thus, having read and listened to the various witnesses and
drawn upon my own experience and knowledge I find one common
thread throughout; there is no agreement as to the reliability or
the proper weight that ought to be placed on physical
examinations. I find, that a physical examination is no more
valid a test of driving ability for a 25 year old than for a 45
year old. Therefore, I cannot utilize defendant's second reason
as a criterion for deciding that a man of 25 would, merely by
virtue of being 25, be a safer driver than the man of 45. I
cannot state with definitive certainty that such physical
examinations as are given would be capable or incapable of
discovering the physical and sensory changes common to all men
nor that those changes are necessarily caused only by the aging
process nor that such changes in and of themselves make an
interstate bus operator less safe in the normal operation of
The third argument tendered by defendant in defense of its
policy concerns itself with the "extra board" system. Within
Greyhound's organization there are two general classifications of
drivers; those who perform `regular runs' and those who perform
`extra board'. A regular run is one which is performed regularly
and is a scheduled service between two given points. On the other
hand, `extra board' runs vary and are performed on the basis of
passenger demand and consist of special operations, towns,
charters and extra sections of regular runs if there is a call
for more than one bus on a regular run. Extra board drivers do
not have scheduled routes and work off of the board on a first
in, first out basis. On the average an extra board driver is
called to perform about four driving runs in a seven day period.
(pltf.ex. 29, pp. 43, 55).
Extra board work and regular runs are assigned on the basis of
seniority. A driver may go from a regular run to the extra board
and back to a regular run (tr. 1176-77) or if he has the
necessary seniority, a driver may select a regular run in the
winter months which are not as busy as the summer months and then
work the extra board in the summer in order to make more money.
(tr. 1417-19; 1433).
Neither regular run drivers nor extra board drivers are
permitted to drive more than ten hours and cannot be on duty,
including driving, for more than fifteen hours, without at least
eight consecutive hours off. (pltf.ex. 29, pp. 334; Fed.Reg.
pltf.ex. 4, 5A, 5B).
It is defendant's strong contention that the rigors of the
extra board are such as to necessitate the imposition of an age
limitation. Defendant asserts that persons between the ages of 40
and 65 simply do not have the stamina for the irregular work
schedule of the extra board. Five of defendant's drivers appeared
as witnesses and each testified that being an extra board driver
is demanding and physically exhausting work.
However, after listening to the testimony concerning extra
board vis a vis regular run driving, I am not convinced
that the irregular hours and possible adverse driving conditions
are any more difficult for those applicants over 40 years of age
than for those under 40. I cannot accede to a contention which
flatly states that all applicants over 40 are inflexible,
unadaptable and untrainable and, in effect, that is what I am
called upon to do. The defendant has not tendered the necessary
statistical evidence to allow for such a finding. The defendant's
policy is not based on personal experience or observations of new
applicants age 40 or over.
"Speculation cannot supply the place of proof."
Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 87
L.Ed. 1458; Moore v. Chesapeake Ry. Co., 340 U.S. 573, 578, 71
S.Ct. 428, 430, 95 L.Ed. 547.
In Weeks v. Southern Bell Telephone and Telegraph Co.,
408 F.2d 228, 235 (5th Cir. 1969), plaintiff's application for the
position of switchman was refused consideration solely because of
her sex. The court held in refusing to accept defendant's
contention that the job was too strenuous for women:
"We conclude that the principle of
nondiscrimination requires that we hold that in order
to rely on the bona fide occupational qualification
exception an employer has the burden of proving that
he had reasonable cause to believe, that is, a
factual basis for believing, that all or
substantially all women would be unable to perform
safely and efficiently the duties of the job
The question thus arises as to whether or not Greyhound has
established a "factual basis" for its belief that applicants
between the ages of 40 and 65 would be unable to perform safely
the duties of an extra board driver. I find it has not
established such a basis. It is true as the plaintiff has
asserted that "the defendant is in a position to obtain the
pertinent objective data simply by comparing the accident records
of its extra board drivers who are over 39 years of age with the
accident records of its extra board drivers who are under that
age. (pltf.post tr.brief, pg. 34). Nor has the defendant compared
the relationship between age and applicant failures at the
training stages. (tr. 491). It is also true as plaintiff states
that the defendant instead combined its statistics for extra
board drivers and regular run drivers. These statistics actually
show that its drivers over age 40 have a better safety record
than those under 40. (deft.exs. 7, 8). Thus it may be assumed
that the better safety record of Greyhound drivers over age 40
applies to those on the extra board as well as to those on the
There is no requirement that older drivers may not bid for
extra board work (tr. 546) and there are drivers, as in
Indianapolis, Indiana who after 20 years on the extra board still
do not hold regular runs. (tr. 1283-4). Plaintiff submits and I
agree that such practices belie any claim that the extra board
work is so `rigorous' that a 40 year old age limit is necessary.
Defendant's fourth argument for continuation of its policy is
that an interstate bus driver is most safe after acquiring 16
years of interstate bus driving experience and such experience
could not be acquired by newly-employed drivers between age 40
and 65. Numerous charts tendered by the defendant as evidence
purported to show statistics which would support defendant's
contention. For instance, during 1968-71 drivers between the ages
of 24-40 had the highest number of accidents per driver, whereas
drivers 41-60 had about the same low accident experience (the
drivers between 56-60 showed a slight increase in accidents over
the safest age group of 51-55 but substantially below the age
group 24-40). Defendant also purported to show that during the
same period drivers with up to 5 years' experience had higher
accident rates than those with more than 5 years' experience.
Defendant asserted that the safest period for drivers occurs from
11 to 25 years after initial employment and that this safe period
would be lost if applicants were hired after age 40. (Deft.exs.
Dr. John Eberhardt, a research psychologist with the National
Highway Traffic Safety Administration, United States Department
of Transportation, stated that he had tested the significance of
the points on defendant's exhibits 7 and 8 and had found that the
alleged "upswings" for the age group 56-60 and for the group with
26-30 years of experience were not significantly different from
chance and were insignificant. (tr. 1754-55).
It is most important to note that exhibits 7 and 8 do not take
into consideration the number of miles driven by drivers in each
age group. (tr. 624). Defendant has stated that older drivers
usually hold regular runs. Defendant's exhibit 5 is a chart
showing that the average regular run driver drives more than
twice as many miles monthly than does the average extra board
driver. Since there is no way to know how many miles were driven
per driver in each age and experience group in defendant's
exhibits 7 and 8 it is not possible to duly compare accidents per
mile driven in relation to the age of the driver. In other words,
the question is unanswered as to whether a person over age 40 is
less safe than one under 40 per mile driven.
One might even conjecture that it is not the fact of experience
so much as the maturity of the individual that allows for the
safety record of those with 11-25 years of experience. Defendant
has admitted that certain causes of accidents, such as emotional
immaturity and lack of stability are found more frequently in
those under age 35. (tr. 1187). However, we are not in the realm
of conjecture and I find that defendant has not satisfactorily
proved that the safety record of those drivers with 16 years of
interstate bus driving experience is due to the fact that these
individuals were hired before reaching the age of 40.
Nor has defendant impressed me with a cogent reason for its
refusal to hire drivers over the age of 40 even though those
drivers have had other interstate bus driving experience
including driving extra board runs for other companies. Defendant
contends that applicants over the age of 40 cannot be "untrained"
if they have had prior experience and that
"it has been our experience that it is easier to take
someone who has never driven a large vehicle and
teach him to drive it than to take someone who has
learned to drive a large vehicle some place else and
then teach him to drive the way we want and expect
him to drive our large vehicle." (tr. 645).
Yet, all five of defendant's driver-witnesses had previous
commercial driving experience driving buses or large trucks
before being employed by Greyhound. (tr. 1290-1; 1296-1300; 1342;
It is, I believe, inconsistent to maintain that those who have
driven large vehicles and are under age 40 are able to be
"untrained" whereas those over age 40 cannot be "untrained".
Defendant has offered no evidence that would satisfactorily prove
such a contention.
Unable to find merit in defendant's four arguments for its age
limitation policy, I should, at this juncture, like to mention a
number of other factors, that I have also borne in mind in
reaching my final decision.
During certain peak periods the defendant leases equipment and
drivers from other bus companies and during those periods the
drivers become part of defendant's operations. Such drivers,
however, are not subjected to defendant's screening process and
they are permitted to drive regardless of the age at which they
were hired. (Pltf.ex. 29, pp. 55-9; tr. 1475). However, if any of
these drivers over age 40 were to seek permanent employment with
the defendant they would not be considered due to the age
limitation policy for hiring.
Defendant, in addition to the above mentioned leasing
arrangements, operates regular through service in which its buses
travel through territory in which
it has no operational authority. In other words, although
Greyhound passengers start and end their trip with a Greyhound
driver another driver (not one employed by Greyhound) will drive
that part of the journey through the territory in which Greyhound
does not have operational authority. Once again, defendant does
not screen these drivers nor is it aware of whether or not they
were hired prior to age 40. (tr. 1471-5; 1127-8; 1185).
Defendant employs certain seasonal drivers known within the
industry as "school teacher drivers" who are generally teachers
on vacation and are only employed during defendant's peak
seasons. Each year defendant recalls and rehires these drivers as
new employees up to age 50. Thus, it may be seen that defendant's
age limitation policy is not applied although these drivers must
meet all the qualifications required of other drivers.
It should be noted that since 1928 when defendant's policy was
formulated, there have been a great many changes within and
without the motor bus industry that have had great impact on that
industry. There has been a significant improvement in the
technology of motor buses. For instances, all buses are diesel
powered today and far easier to manipulate than in 1928. The
roads of this nation are vastly improved over conditions of
forty-five years ago. The safety practices and programs and
in-depth training by interstate bus companies are far more
sophisticated than in 1928. I have placed great weight upon the
fact that defendant's officers admitted that they do not know why
age 35 was originally chosen as a cutoff date for hiring new bus
drivers; defendant has admitted that the age limitation policy
was not based upon any "surveys, inquiries, research studies,
statistical studies or any other study to our knowledge." (tr.
The following exchange between counsel for plaintiff and Mr.
Forman, an officer of defendant, serves to buttress my decision
that the defendant's policy is not founded on the "factual basis"
for its belief that "all or substantially all (members of the
protected class) would be unable to perform safely and
efficiently the duties of the job involved" that is required
under Weeks, supra, 408 F.2d pg. 235.
Q. "Is that right, you have in fact no personal
experience in initially employing anyone 40 or
over as a Greyhound driver?"
A. "That is correct."
Q. "Then you in fact cannot state, based on your own
personal knowledge, that the consideration in
employment of otherwise qualified individuals 40
or over for initial employment as a bus driver
with Greyhound would adversely affect safety,
isn't that right?"
A. "You have to take into consideration the problem
of the extra board, the rigors that it demands and
what this man's life style will be at that time.
Good basic common sense tells us that to begin his
career as a Greyhound bus driver over age 40, go
through the portion of his apprenticeship, when he
has the highest number of accidents, and about the
time he is getting to his stride the aging process
catches up with him and he is right back into the
upswing again without having a flattening out."
I must disagree. "Good basic common sense" does not suffice as
"objective data" to satisfy the "factual basis" of the Weeks
decision. Nor has defendant had any experience with applicants
above age 40 so that it could factually state that such drivers
would have the highest number of accidents during their
Defendant need not hire all applicants; the rigid requirements
and qualifications now in effect for those applicants under age
40 will continue to be in effect.
Employers are required to "consider" individuals on the basis
of what they can contribute, not on the basis of chronological
age (113 Cong.Daily Rec. 34744). If ever there were an
opportunity for "individual consideration" surely this is one for
through its screening process defendant has ample opportunity to
exclude those individuals it finds unsuitable for interstate bus
Safety is the foremost concern involved herein not only for
defendant but for plaintiff and this Court as well, but I cannot
accept the contention that persons over 40 cannot become safe bus
drivers. I believe strongly that functional capacity and not
chronological age ought be the most important factor as to
whether or not an individual can do a job safely. This
determination must be made repeatedly throughout the employee's
employment experience. The human variances involved are myriad;
there is no way to generalize as to the physical capability and
physiological makeup of an individual. Nor is there a way to
project how an individual will be affected by the aging process.
I thereby conclude that the data prepared by the defendant and
the evidence it has presented has not met the burden of
demonstrating that its policy of age limitation is reasonably
necessary to the normal and safe operation of its business nor
that age is a bona fide occupational qualification within the
meaning of the Act. Therefore, it is adjudged, ordered and
decreed that judgment for the plaintiff and against the defendant
be and the same hereby is entered.
Judgment having been entered for the plaintiff and against the
defendant as to all issues raised in the Complaint and the
pleadings herein, and in implementation of said judgment, the
Court hereby enters its injunctive order against the defendant as
Wherefore cause having been shown, judgment is hereby entered
permanently enjoining and restraining defendant, its officers,
agents, servants, employees, and those persons in active concert
or participation with them from violating the provisions of
Sections 4(a)(1), 4(a)(2), and 4(e) of the Age Discrimination in
Employment Act of 1967, and restraining any further refusal by
defendant to employ persons merely on the basis of chronological