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October 7, 1985

STATE OF NEW JERSEY, et al., Defendants

The opinion of the court was delivered by: BARRY

 The Division of State Police of the State of New Jersey is charged with the basic statutory mission of enforcing the laws of the State of New Jersey and providing services to municipal, county, and federal agencies. Under the leadership of Colonel Clinton L. Pagano, Superintendent of the State Police and, in that capacity, its chief administrative official, 2200 "sworn members" fulfill that mission. Because of its record of accomplishment, this widely diversified state level policing organization has achieved a nationwide reputation.

 For more than thirty years, sworn members of the Division of State Police were required to retire at age 55. In 1983, however, the Supreme Court held in E.E.O.C. v. Wyoming, 460 U.S. 226, 75 L. Ed. 2d 18, 103 S. Ct. 1054 (1983), that the Age Discrimination in Employment Act of 1967 ("ADEA"), 81 Stat. 602, as amended, 29 U.S.C. §§ 621-634, with its ban on age discrimination against individuals between the ages of 40 and 70, could be constitutionally applied to the states. Consequently, the Attorney General of the State of New Jersey declared the mandatory retirement statute unenforceable as of the March 2, 1983 Wyoming decision because no facts had yet been developed to support the conclusion that the mandatory retirement of sworn members at age 55 was valid under the bona fide occupational qualification (BFOQ) exception to the ADEA. That exception provides that:

It shall not be unlawful for an employer . . . to take any action otherwise prohibited . . . where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business. . . .

 81 Stat. 603, 29 U.S.C. § 623(f)(1). The New Jersey State Legislature subsequently repealed the mandatory retirement statute.

 Thereupon the Division of State Police, with the legal assistance of the Attorney General, initiated a study to determine whether a factual basis existed to establish an age-specific retirement provision for the State Police under the BFOQ exception. As Colonel Pagano candidly observed, "I didn't even know what a BFOQ was, and very few of my peers knew what a BFOQ was. We were trying to determine whether the age-old standards that had been administered by law enforcement agencies across the country were in fact valid, and were they defensible under the statute."

 As part of that study, two cardiologists, two physiologists, and a cardiologist who is also a physiologist were consulted to evaluate the job duties, statutory responsibilities and operational policies of the State Police and determine whether the continued fitness to perform those functions could be determined without reference to age. On the basis of the professional opinions provided to the Division, on December 19, 1984 the Division of State Police issued a Report on the Establishment of a Mandatory Retirement Age as a Bona Fide Occupational Qualification (hereinafter referred to as "BFOQ Report"). That Report concluded that a compelling factual basis exists to believe that all or substantially all persons aged 55 and over are unable to safely and efficiently perform State Police duties, and that it is impossible or impractical to determine the continued fitness of individuals over that age on an individualized basis. As one of the highest ranking members of the Division testified before me, a man, I note, who at 54 years of age would be eligible to replace the 56-year old second highest ranking member of the Division were I to accept the Report's conclusion, this is a "young man's operation".

 Following the issuance of the Report, the New Jersey State Legislature held hearings, considered, and subsequently passed a statute establishing the requirement that all members of the State Police, other than the Superintendent, retire as of age 55. *fn1" The legislation specifically found and declared that retirement at age 55 constituted a BFOQ reasonably necessary to the continued health and fitness of the members of the State Police, and that such ongoing health and fitness was required for the safe and efficient protection of the public. *fn2" The Governor signed this legislation into law on May 31, 1985, and it will become effective on September 1, 1985. On that date, 62 members of the Division who will have reached the age of 55 will be required to retire absent relief from this court.

 The Equal Employment Opportunity Commission ("EEOC") *fn3" has brought this action naming the State of New Jersey, the State Police, and Colonel Clinton L. Pagano as defendants and alleging that the mandatory retirement statute violates the ADEA. Currently before the court is plaintiff's application for a preliminary injunction which, if granted, would prevent defendants from retiring state police officers at age 55.

 It is clear that injunctive relief at a preliminary stage is only appropriate if it has been demonstrated that there exists a reasonable likelihood of eventual success on the merits as well the probability of irreparable injury if equitable relief is not immediately granted. Freixenet, S.A. v. Admiral Wine & Liquor Co., 731 F.2d 148, 150-51 (3d Cir. 1984); Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982) (en banc); Kennecott Corporation v. Smith, 637 F.2d 181, 187 (3d Cir. 1980). A preliminary injunction must be denied if the moving party fails to satisfy both of these prerequisites. In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982); Eli Lilly & Company v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir.), cert. denied, 449 U.S. 1014, 66 L. Ed. 2d 473, 101 S. Ct. 573 (1980). It is also necessary to consider the effect, if any, the requested relief will have on the public interest, as well as the harm, if any, that relief will cause third parties. Oburn v. Shapp, 521 F.2d 142, 151 (3d Cir. 1975). Thus, even with the mandatory nature of the likelihood of success and irreparable harm proof requirements, the court must consider whether the "delicate balancing" of all of the factors justifies the entry of interim relief. Glasco v. Hills, 558 F.2d 179, 180 (3d Cir. 1977); Kershner v. Mazurkiewicz, supra, 670 F.2d at 443.

 This court has heard 30 witnesses presented and cross examined by skilled advocates over the course of twelve full days of testimony. Numerous exhibits were admitted into evidence and have been carefully reviewed. This court has had the benefit, as well, of the recent clarification by the Supreme Court of the appropriate test for determining whether age-related employment criteria are valid under the ADEA. Western Airlines v. Criswell, 472 U.S. 400, 105 S. Ct. 2743, 86 L. Ed. 2d 321 (1985); Johnson v. Mayor of Baltimore, 472 U.S. 353, 105 S. Ct. 2717, 86 L. Ed. 2d 286 (1985). It has also had the benefit of an even more recent decision of the Court of Appeals for the Third Circuit. EEOC v. Commonwealth of Pennsylvania, 768 F.2d 514 (3d Cir. 1985). Based on all that is before it, it is the determination of this court that the application for a preliminary injunction should be denied.



Throughout the legislative history of the ADEA, one empirical fact is repeatedly emphasized: the process of psychological and physiological degeneration caused by aging varies with each individual. 'The basic research in the field of aging has established that there is a wide range of individual physical ability regardless of age.' As a result, many older American workers perform at levels equal or superior to their younger colleagues. (footnote omitted)

 And, thus, the tone was set in Criswell, supra, 105 S. Ct. at 2749.

 Noting that "chronological age alone is a poor indicator of ability to perform a job," Id., at 2750 quoting H.R. Rep. No. 95-527, pt. 1, p. 2 (1977), Legislative History 362, the Court observed that "in both 1967 and 1978, however, Congress recognized that classifications based on age, like classifications based on religion, sex, or national origin, may sometimes serve as a necessary proxy for neutral employment qualifications essential to the employer's business." Id. That recognition is reflected, of course, in the BFOQ exception to the ADEA.

 Having acknowledged the need for such an exception, the Court was quick to point out the limited scope and application ascribed to it first by the Secretary of Labor, 33 Fed. Reg. 9172 (1968), 29 C.F.R. § 860.102(b) (1984), and later by the EEOC, 46 Fed. Reg. 47727 (1981), 29 C.F.R. § 1625.6 (1984). Id. at 2750-51. Such consistently narrow interpretations, together with the restrictive wording of the statute itself, "convince us that, like its Title VII counterpart, the BFOQ exception 'was in fact meant to be an extremely narrow exception to the general prohibition' of age discrimination contained in the ADEA." Id. at 2751, quoting Dothard v. Rawlinson, 433 U.S. 321, 334, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977). However, the Court noted that the relevant legislative history indicated that the BFOQ exception was specifically intended to apply

in certain types of particularly arduous law enforcement activity [where] there may be a factual basis for believing that substantially all employees above a specified age would be unable to continue to perform safely and efficiently the duties of their particular jobs, and [where] it may be impossible or impractical to determine through medical examinations, periodic reviews of current job performance and other objective tests the employees' capacity or ability to continue to perform the jobs safely and efficiently. Id. at 2752, quoting S. Rep. No. 95-493 (1977) at 10-11 (1977), Legislative History 443-333. (emphasis added)

 The Court further held that when an alleged BFOQ concerns the public safety, "the uncertainty implicit in the concept of managing safety risks always makes it 'reasonably necessary' to err on the side of caution in a close case." Id. 105 S. Ct. at 2754. (footnote omitted).

 With that introduction, the Court proceeded to adopt the two prong test for evaluating the BFOQ defense first set forth in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976). The first inquiry, said the Court, is directed to the reasonable necessity of the employer's job qualifications to the essence of its business. The qualification of good health for a vital flight crew member was deemed to be reasonably necessary to the safe transportation of passengers, as the need to hire individuals under age 40 who have a low risk of accidents was deemed, in Tamiami, to be essential to the safe intercity transportation of bus passengers. The second inquiry is directed toward whether "the employer is compelled to rely on age as a proxy for the safety-related job qualifications validated in the first inquiry." Id. 105 S. Ct. at 2751 (footnote omitted). The Court continued:

This showing could be made in two ways. The employer could establish that it 'had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all [persons over the age qualifications] would be unable to perform safely and efficiently the duties of the job involved . . . . '
Alternatively, the employer could establish that age was a legitimate proxy for the safety-related job qualifications by proving that it is 'impossible or highly impractical ' to deal with the older employees on an individualized basis. 'One method by which the employer can carry this burden is to establish that some members of the discriminated-against class possess a trait precluding safe and efficient job performance that cannot be ascertained by means other than knowledge of the applicant's membership in the class. '

 Id. at 2751-52 (footnotes omitted).

 The Court offered additional guidance highlighting the relevant inquiries under both prongs. With reference to the first prong of the test - reasonably necessary job qualifications - the Court made clear that

The BFOQ standard adopted in the statute is one of 'reasonable necessity,' not reasonableness. In adopting that standard, Congress did not ignore the interest in public safety . . . . When an employer establishes that a job qualification has been carefully formulated to respond to documented concerns for public safety, it will not be overly burdensome to persuade a trier of fact that the qualification is 'reasonably necessary' to safe operation of the business.

 Id. at 2754.

 As to the second prong - whether age is a permissible proxy for a particular job qualification - the Court repeated the appropriate standard:

 Id. at 2756.

 With the benefit of the guidance provided in Criswell, the Court of Appeals for the Third Circuit recently considered an ADEA challenge to Pennsylvania's mandatory retirement age of 60 for its state police officers. EEOC v. Commonwealth of Pennsylvania, supra. The district court had determined that Pennsylvania's mandatory retirement age was justified under the BFOQ defense. EEOC v. Commonwealth of Pennsylvania, 596 F. Supp. 1333 (E.D.Pa. 1984). While the appeal of that decision was pending before the Court of Appeals, the Supreme Court decided Criswell and Johnson. Accordingly, the court vacated the district court's judgment and remanded the case for reconsideration in light of those cases and, more specifically, for additional factual findings.

 If it was unclear before, there is now no doubt that employers seeking to bring their age-based classifications within the "extremely narrow [BFOQ] exception to the general prohibition of age discrimination contained in the ADEA, Criswell, slip op. at 11 (quoting Dothard v. Rawlinson, 433 U.S. 321, 329, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977)) . . . are required to make a 'particularized factual showing' with respect to each element of the BFOQ defense. Johnson, slip op. at 8." EEOC v. Commonwealth of Pennsylvania, supra, 768 F.2d at 518. See also Orzel v. City of Wauwatosa Fire Dept., 697 F.2d 743, 755 (7th Cir.), cert. denied 464 U.S. 992, 104 S. Ct. 484, 78 L. Ed. 2d 680 (1983); Tuohy v. Ford Motor Co., 675 F.2d 842, 844 (6th Cir. 1982); EEOC v. County of Santa Barbara, 666 F.2d 373, 376 (9th Cir. 1982).

 Noting that "the truism that the ability to perform strenuous physical tasks declines with age" is insufficient to satisfy the second prong of the Tamiami test, *fn4" the Court of Appeals also highlighted the need for a particularized factual finding as to the first prong of the Tamiami test. The court indicated that the district court's apparent assumption "that good health and physical strength are job qualifications reasonably necessary to the essence of the PSP's business" lacked the necessary factual support to establish the first element of the BFOQ defense. EEOC v. Commonwealth of Pennsylvania, supra, 768 F.2d at 518. Thus, even where the essence of an employer's business is safeguarding the public, as here there is no dispute that it is, the reasonable necessity of employing only individuals in top physical condition may not be presumed.

 In numerous cases, employers have attempted to meet their burden of proving both elements of asserted BFOQ defenses with varying degrees of success. Decisions are being rendered on applications for preliminary and permanent injunctive relief, on motions for summary judgment, following bench and jury trials, and by reviewing courts after having applied the appropriate standards of review. The decisions are, in a phrase, "all over the lot" with little consistency seen even between cases in which the "essence of the business" appears to be identical. In large measure, of course, this result emanates from the fact-dependent nature of each case with BFOQ's being sustained or rejected because of sufficient or insufficient evidence as to one or both prongs of the Tamiami test.

 And yet

 Hahn v. City of Buffalo, 770 F.2d 12, 15 (2d Cir. 1985). *fn5"

 That there exists the exceptional person who can leap tall buildings in a single bound and run marathons that a person half his or her age cannot contemplate as being within the realm of possibility does not call into question the "truism" that the ability to perform strenuous physical tasks declines with age and one wonders why in each case that common wisdom must be proved. Professional athletes, as a group, are superbly conditioned individuals. Yet has there been a professional baseball player who, in his mid-forties, batted 300 or won 20 games in a season? Has there been a professional boxer who, in those years, won a crown at any weight? Has there been a professional tennis player who won a Wimbledon or a U. S. Open even assuming he or she was not required to be relegated to a "Seniors" category? Allowing for those who did not try because they knew they could not achieve those heights, the names of those who tried and failed - who waited too long before they left - are legion.

 And if it did not disturb the Supreme Court that the hiring of bus drivers only under age 40 in Tamiami was essential to safety, should not the retirement of State Police officers age 55 and over be deemed, without more, to be essential to the enforcement of the laws and, therefore, the safety of the public? Somewhere, I suggest, principles akin to stare decisis must set in. But not yet. EEOC v. Commonwealth of Pennsylvania, supra, 768 F.2d at 518 and n.3.



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