Age 65 No Barrier to Work For St. Paul District Chief
In an age discrimination case of interest to fire departments throughout the nation, a United States District Court has ruled that St. Paul, Minn., district fire chiefs cannot be forced to retire at age 65. However, Judge Donald Alsop also found that age is a bona fide occupational qualification for fire fighters and captains, and said it is “reasonably necessary” for them to retire at 65. His decision does not apply to the positions of fire chief, assistant chief and deputy chief.
The United States Equal Employment Opportunity Commission, acting on behalf of District Fire Chief George Schmidt, 66, filed suit against the City of St. Paul, charging that an October 1979 ordinance requiring mandatory retirement for all uniformed fire department employees at age 65 violated the federal Age Discrimination in Employment Act. The act prohibits discrimination in the employment of persons who are between 40 and 70 years old.
Evidence relating to validity of the city’s mandatory age retirement ordinance was presented during May and June 1980 in Minnesota federal district court (Third Division) at St. Paul, with the decision filed on September 9. The evidence included an examination of the duties of uniformed fire personnel, fire conditions, the effects of age on the ability to perform and fire department organization.
This evidence indicated that by age 65 substantially all captains and fire fighters have lost so much strength and endurance that they no longer can safely and efficiently perform the arduous tasks required of them over several hours at a fire scene.
“If a bona fide occupational qualification ever is to be invoked because of the inability of substantially all members of a group to adequately perform their duties, it should be invoked here,” Judge Alsop wrote in a memorandum accompanying his decision.
But it doesn’t follow that district fire chiefs also must retire at age 65, Judge Alsop concluded. Listing the following points, he said the evidence didn’t show that most district chiefs are unable to perform their duties safely and efficiently after the age of 64:
There was no burden of proof that older district chiefs possess traits, such as susceptibility to heart attack and loss of strength, that would preclude safe and efficient job performance other than through knowledge of age.
No incidents were shown where the lives and safety of others were jeopardized because of the performance of older chiefs.
There was no indication that chiefs over 64 are more likely than other chiefs to be injured at fire scenes.
The city admitted that Schmidt could perform his duties adequately.
In addition, the evidence indicated that older district chiefs retain sufficient strength and endurance to perform their duties, and generally are better able than younger, less experienced district chiefs to determine the hazards at a fire scene and direct fire fighting activities so as to avoid fire fighter injuries and fatalities.
The importance of a district chief’s experience and judgment is highlighted by the fact that the promotional examination for district chief is a written exam testing what he would do in various situations at a fire scene, Judge Alsop noted.
“There is no inconsistency in the court’s findings that captains and fire fighters over the age of 64 cannot adequately perform their functions while district chiefs over the age of 64 can,” Judge Alsop wrote.
“The duties of district chiefs are very different from those of captains and fire fighters, being mostly supervisory and involving infrequent physical activity for short periods of time. Loss of endurance is much less significant to a district chief than to a captain or fire fighter, and would not preclude a district chief from safely and efficiently performing his job.”
Judge Alsop said that in the Age Discrimination in Employment Act, Congress apparently intended that bona fide occupational qualifications be very narrowly construed. He also cited two previous cases in support of his findings.
One is a 1977 interpretation of the Age Discrimination Act by the Eighth U.S. Circuit Court of Appeals, which said an employer’s decision to retire employees solely on the basis of age is invalid.
The second case is a 1976 federal court decision in Arkansas involving an occupational qualification of under age 62 for district fire chiefs. The court said that while future scientific/medical information may provide a statistical showing that most of this age group cannot adequately perform their duties, there is nothing on the present record to show the special relevance of 62 as a mandatory age requirement.
Judge Alsop’s decision is not binding on fire departments in other cities, but attorneys involved in the case said the ruling would be “persuasive” if a similar situation is litigated in another court.
For this reason, Terry Sullivan, attorney for the City of St. Paul, said an appeal to the U.S. Eighth Circuit Court of Appeals is possible.