Group based discrimination occurs when the rights of an individual are compromised as the individual fits into a group, whose performance and failure rate is high. Though the individual might have the mindset, intention and ability to perform to the expected standards, he or she is subjected to unfair and discriminatory treatment, due to their compatibility with the failing group.
Thus, higher life insurance premium for women, higher vehicle insurance premium for youth etc. are instances of such discriminations. Public pressure, political and legal activity in the US have regularly confronted such discrimination, based on groups. Perhaps a similar issue but with more implications and debate is the age-based discrimination associated with retirement.
Age has been for long, an important and perhaps the primary consideration factor, when it came to determining employment suitability. The logic behind fixing an age criteria was that after a particular age, one’s physical attributes would begin to decline. This would result in a decline of services and can even affect public safety. This also has a bearing on the interests of the employees too, as the employee is guaranteed employment up to this age. The debate on age and employment suitability came to the fore of public participation when in 1979, pilots and flight engineers of United Airlines initiated an age discrimination proceeding against the airlines and the Airline Pilots Association. They challenged the policy of United Airlines to retire all flight engineers at 60.
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The case of the pilots was supported by the Equal Employment Opportunity Commission. The contention of the plaintiffs was that the airlines policy of forced retirement at 60 was against the Age Discrimination in Employment Act of 1967. (ADEA). They asserted that age cannot be shown here as a bona fide occupational qualification (BFOQ), necessary for adequate job performance. The stand of United Airlines was that the age of the flight engineer was indeed a crucial aspect in determining operational safety of the airline. It also asserted that it was not possible to screen out incapable officers between two consecutive medical examinations.
Hiring and retiring people based on age seriously affects an individual’s right. Age as a deciding factor for job suitability should be enforced only when the age of an individual negatively affects the job performance and results. The implications of age are, for example more relevant in jobs that are associated with public safety like pilots. However when age hinders the continuity of employment for non-critical jobs, particularly those which can be evaluated like a clerk, plumber etc., then such discriminations are not in public interest.
When the US agreed upon a retirement age of 65, through the Social Security Act of 1935, the move was more considered an arbitrary one, with less relevance to the job ability factor. The move was more intended to provide opportunities for the younger generation and to offer a financed retirement system. In safety related businesses, employers raise the BFOQ to defend their decision as being crucial for normal operations. Their stand is that employees below a certain age are more result oriented and effective, and they do agree that there could be capable people among the ones asked to retire, however they have to generalize them all, because it is not possible to identify them.
The safety related businesses has several legal implications associated with their age policies. Abandoning age criteria has important legal considerations, particularly when such actions result in increased risk to others. An employer who forces retirement on an employee on the grounds of FOA (factor of age), needs to justify this action, on any other factor other than age. The employers counter age discrimination charges citing economic and non-economic factors.
The non-economic factors might be poor performance of employee, lack of confidence on the employee, policy violations or employee being uncooperative. The economic factors can be cost cutting or reduction in workforce, like termination of all employees who are above a particular pay scale, which is allowed by ADEA. ADEA uses research evidence to resolve cases having a bearing on age and safety relationship. It relies on scientific grounds to examine age and its effect on organizational variables. These developments are very relevant in the case of United Airlines, where a desirable solution could be achieved by taking all the interests involved and balancing them.
An important point here is that the stand adopted need not be permanent or irreversible. With time, the older group perception has been being highly transformed to individual specific assessments. The nature of job and responsibilities have changed due to technology, the healthcare and treatments have changed and more dependable evaluation techniques for job proficiency have been developed, which favors age consideration at an individual level.
Issues of public safety are paramount when the ability of the people dealing with them are considered. Apart from airline pilots there are a host of other professions, mainly in the public domain, where the age, health and mental fitness of the employees are important. In the airline these include even the flight engineers, captains, copilots, flight instructors and flight management pilots of the aircraft. The other professions where age and fitness are important are defense, space and nuclear programs etc. Much is at stake for the public, on the performances and lapses of such employees.
Retirement of older employees may be justified when wages are an issue, where use of younger employees can affect savings without any adverse effects. Younger employees are in a more vulnerable position, as they would not be able to survive increased periods of unemployment. The recruitment of younger employees and replacement of the older ones are more welcome during turbulent times like severe competition in the market, business failure or pressure to cut costs etc.
Subsequent to the January 31, 1979 suit by three flight engineers (Monroe plaintiffs) claiming violation of ADEA by asking them to retire on 60, another case was filed by United’s pilots (Higman plaintiffs) against the airline’s refusal to transfer pilots to flight engineers, when they reached 60. Several flight engineers and pilots joined the case as it proceeded. The Equal Employment Opportunity Commission (EEOC) also joined the issue and sought an injunction to stop United from pursuing such age-based policies.
The EEOC contended that United had violated the ADEA by denying opportunities based solely on age. There was no Federal Aviation Administration (FAA) rule requiring pilots to be below 60. In 1978, the ADEA was amended by the Congress and stopped involuntary retirement based on age. United had to prove that its policy of barring everyone over the age of 60 was necessary from the point of safe transportation and in line with the requirements of BFOQ. On September 29, 1982, the jury in a district court provided a verdict for the plaintiffs.
The court ruled that United had intentionally violated the ADEA. In 1983, the district issued four subsequent decisions to ensure compliance by the defendants. United appealed to the seventh Circuit of the United States Court of Appeals, claiming that the district court had erred and had not provided its right to proper defense. The proceedings which went up to 1984 saw the Appeals Court reverse the lower court verdict.. The Appeals Court agreed that United was denied a lawful defense. The Supreme Court had on February 25, 1985 refused to hear a further appeal. Thus the age 60 rule remains, although vaguely.
Although the Appeals Court gave a verdict in favor of United, it was more relevant on the legal aspects like not being given a reasonable defense. The closest it came to the case was when, perhaps as United claims, the district court had denied it an opportunity to defend its BFOQ determination methods. The core question of loss of competencies at 60 remained unjudged.
When age criteria are important, people on safety related jobs can be encouraged to downgrade, when they reach retirement age. They can be absorbed at those positions where their skills and knowledge are compatible and useful, while at the same time there is lesser risk in terms of safety. As growing old would definitely impair an individual’s abilities, there should be an appropriate downgrading of responsibilities such that risks are eliminated or appropriately reduced. This way justice can be done for the employee and the society.
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