Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 69 C 2227 JAMES B. PARSONS, Judge.
Swygert, Chief Judge, Pell, Circuit Judge, and Eschbach, District Judge.*fn1
Defendant-appellant, Greyhound Lines, Inc., appeals from a finding that its maximum hiring age policy for applicants for the position of driver of intercity passenger buses violates the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. Pursuant to that policy Greyhound declines to consider applications for intercity bus drivers from those individuals thirty-five years of age or older.*fn2
The Government contends that Greyhound's hiring policy violates section 4(a) (1) of the Act, 29 U.S.C. § 623(a) (1), which makes it unlawful "to fail or refuse to hire . . . any individual . . . because of such individual's age." In addition the Government charges that Greyhound's maximum hiring age violates section 4(a) (2) of the Act, 29 U.S.C. § 623(a) (2), which prohibits efforts "to limit, segregate, or classify . . . employees in any way which would deprive . . . any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." Also the Government claims that Greyhound's advertisements indicating age differentiation in employment is forbidden by section 4(e) of the Act, 29 U.S.C. § 623(e).
Greyhound, although admitting the employment and advertising practices charged by the Government, denies that such practices violate the Act in that it is contended that Greyhound's actions are exempted from the Act's proscriptions. Under section 4(f) (1) of the Act, 29 U.S.C. § 623(f) (1), an employer may differentiate as to age without violating the Act if age is shown to be a "bona fide occupational qualification reasonably necessary to the normal operation of the particular business. . . ." Greyhound contends that its maximum age hiring policy is premised on considerations of public safety and as such constitutes a "bona fide occupational qualification."
At trial Greyhound urged that abolition of its maximum age hiring policy with respect to intercity bus drivers would increase the likelihood of risk of harm due to driver failure and thereby concomitantly impede Greyhound's efforts for safety. The trial judge held that Greyhound had failed to meet its "burden of demonstrating that its policy of age limitation is reasonably necessary to the normal and safe operation of its business." In making this determination the trial judge stated:
The defendant's policy is not founded on the "factual basis" for its belief that "all or substantially all [applicants over age 40] . . . would be unable to perform safely and efficiently the duties of the job involved."
In appealing from this holding Greyhound presents two issues for our review. Greyhound contends: (1) that the district court imposed an improper burden of proof on it; and (2) that as a matter of law the evidence demonstrates that Greyhound's hiring policy is a bona fide occupational qualification reasonably necessary to the normal operation of its business. We agree.
The standard for the burden of proof placed on Greyhound by the trial judge was taken from the Fifth Circuit's decision in Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969). In that case the telephone company was faced with a charge of sex discrimination for refusing to consider the application of a woman for the position of switchman. As an affirmative defense the telephone company claimed that the sex of an applicant for the position of switchman was a bona fide occupational qualification because of the allegedly strenuous activity of lifting of weights in excess of thirty pounds occasionally required in fulfilling the job of switchman. In discussing the burden of proof cast upon the telephone company the court stated:
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 involved. 408 F.2d at 235.
The court denied the telephone company a bona fide occupational qualification exemption, holding that the company had failed to meet its burden of proof. The court declined to indulge in an assumption, "on the basis of a 'stereotyped characterization ' that few or no women can safely lift thirty pounds, while all men are treated as if they can." 408 F.2d at 235, 236.
Although the standard for the burden of proof annunciated in Weeks may properly be applicable to the circumstances of that sex discrimination case, we find its application inappropriate in the instant action. Unlike Weeks, our concern goes beyond that of the welfare of the job applicant and must include consideration of the well-being and safety of bus passengers and other highway motorists. In fashioning the standard of proof in Weeks, the Fifth Circuit was not confronted with a situation where the lives of numerous persons are completely dependant on the capabilities ...