for evaluating the prospective risk of such critical cardiac failures in the absence of mandatory retirement. Indeed, it supports the conclusion that the prior long-standing policy of mandatory retirement assisted in preventing the occurrence of such unfortunate events.
Critical in this regard was the fact that Dr. Pryor did not address the significance with reference to cardiac risk presented by the performance of the demonstrably arduous duties commonly performed by sworn members of the New Jersey State Police in particular, or the effect of physically demanding activities in general. Dr. Pryor had no background in public safety functions and, thus, could not express an opinion as to the former factor and did not offer an opinion from a cardiological point of view as to the latter factor. However, Dr. Ferguson noted that 25% of persons who die of sudden cardiac death have no prior symptoms -- as stated by him, "the first onset is sudden death" (T. 527). Moreover, Dr. Ferguson noted that peak exercise increases the risk of experiencing a coronary event 55 times in a person with significant disease.
The danger presented to the public safety by the possibility of such sudden fatal cardiac episodes was further emphasized in the context of the usefulness of the exercise stress test. This court has concluded -- and plaintiff has now agreed -- that such exercise stress tests cannot reliably identify the specific individuals suffering from significant coronary artery disease. However, it is noteworthy that sudden cardiac death or myocardial infarction ("heart attack") is much more likely to occur in persons with a "normal" stress test result.
For example, in a study of 900 Indiana State Police officers, 94% of the persons suffering sudden cardiac death or acute myocardial infarction had a "normal" exercise test result. The clear and substantial risk which would be presented by permitting individuals with significant but asymptomatic heart disease to perform arduous protective service functions was further emphasized by studies of fire fighters, which indicate that 44% of all deaths of fire fighters resulted from heart disease, and that half of those deaths occurred while the officers were fighting fires. Moreover, half of the cardiac deaths suffered by the fire fighters were thought to be exercise related and sudden death and myocardial infarction is much more likely to occur at levels of peak activity. This clearly suggests that the risk of such cardiac events is a significant problem and is directly associated with the arduous functions for which all members of a para-military organization such as the New Jersey State Police are required to be ready.
In conclusion, defendants have shown by overwhelming evidence that a significant number of New Jersey State Police officers aged 55 and older would suffer significant but asymptomatic coronary artery disease. They have also shown that the risk of sudden death or disability presented by disease of this magnitude would prevent those officers from safely and effectively performing the arduous physical tasks which they are charged with being able to perform as part of their job duties. Defendants have proven as well -- and plaintiff has now stipulated -- that it is impossible and impracticable to screen for the presence of silent heart disease of this magnitude on an individualized basis. Moreover, as set forth in the findings of this court in its earlier opinion, it is clear that age, the single greatest risk factor, is an appropriate "proxy" in assessing the continued cardiac fitness of New Jersey State Police officers in light of the exponential increase in heart disease at ages 50-55. 620 F. Supp. at 994-95.
* * * *
The law under which this evidence must be judged is fully set forth in my earlier opinion. Suffice it to say that the ADEA generally prohibits discrimination against individuals with respect to the terms or conditions of employment on the basis of an individual's age unless it can be shown that such age-based restrictions constitute a BFOQ which is reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age. 29 U.S.C. § 623(a)(1) & (f)(1). The BFOQ exception is construed narrowly; however,
In certain times of particularly arduous law enforcement activity, there may be a factual basis for believing that substantially all employees above a specific age would be unable to continue to perform safely and efficiently the duties of their particular jobs, and 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.
Western Airlines, Inc. v. Criswell, supra, U.S. , 105 S. Ct. at 2752. Moreover, "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. at 2754 (footnote omitted).
The validity of a BFOQ is evaluated under the two-part test first articulated by the Fifth Circuit in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976). That test requires a defendant to demonstrate that (1) the job qualification sought to be furthered by the age restriction is reasonably necessary to the essence of the business, and that (2)(a) there is a reasonable factual basis for believing that all or substantially all persons over the age at issue would be unable to safely and efficiently perform the duties of the job involved, or (b) it is impossible or highly impractical to evaluate the continued fitness of older employees on an individualized basis. Western Airlines, Inc. v. Criswell, supra, U.S. , 105 S. Ct. at 2751-52.
Here, as should by now be clear, defendants have demonstrated by overwhelming evidence that the continued health and fitness of all sworn police officers -- the goal sought to be furthered by the mandatory retirement age -- is essential to the normal operation of its law enforcement functions. The New Jersey State Police has an established policy of providing comprehensive medical care at no cost to all sworn officers. This program has recently been supplemented by what is known as the Well Trooper Program, under which all sworn officers receive a complete medical examination every year. With the current implementation of a revised physical standards program and the implementation of what the Superintendent has called "hard decisions" with respect to the duty status (and in some cases forced retirement) of sworn officers with significant known health problems, there is no question as to the resolve and commitment of defendants to the maintenance of the continued health and fitness of all sworn officers. Compare EEOC v. Commonwealth of Pennsylvania, 768 F.2d 514, 518 (3d Cir. 1985); Hahn v. City of Buffalo, 770 F.2d 12, 15 (2d Cir. 1985).
As more fully discussed in my earlier opinion, there is also no question that the continued health and fitness of sworn members of the New Jersey State Police is, indeed, essential to the safe and efficient performance of the protective service function performed by them. New Jersey State Police officers are commonly called upon to perform law enforcement duties which are physically arduous in the extreme in circumstances in which the inability to safely and efficiently perform those physical duties could endanger the officer involved, his or her colleague, or members of the public which the State Police is charged with protecting. Accordingly, this court finds and determines as a matter of law that the continued health and fitness of sworn New Jersey State Police officers is essential to the performance of the business of protecting the public.
Defendants have proven as well that all or substantially all officers do not possess the level of aerobic fitness which is required to safely and efficiently perform those State Police duties. Defendants have demonstrated beyond any doubt that a minimum level of aerobic fitness of 41 ml/kg/min. is required to perform those duties, and all of the experts who testified in this area -- including those of plaintiff -- agree that at least 95% of officers aged 55 and older would not possess this level of aerobic fitness. Accordingly, the court finds and determines as a matter of law that the mandatory retirement age at issue in these cases is valid as a BFOQ on this basis.
The court also finds and determines as a matter of law that a significant number of sworn New Jersey State Police officers aged 55 and older would possess significant, but asymptomatic, coronary artery disease which would have a high likelihood of adversely affecting the safe and efficient performance of their job duties if that disease could not be diagnosed in advance on an individualized basis. As my prior opinion notes, there is some dispute as to the precise extent of the prevalence of significant coronary artery disease among persons of this age group and there is some dispute as to the precise level of coronary artery occlusion constituting "significant" coronary artery disease. However, there is no dispute whatsoever that the incidence of significant coronary artery disease increases exponentially in this age group and that the likelihood of a serious or fatal coronary event is similarly exponentially increased when individuals suffering such asymptomatic heart disease are required to perform duties at peak exertion. All experts agree that age is the single most important conventional risk factor and that an individual aged 55-64 is 80 times more likely to die of heart disease as an individual 25 to 34.
Moreover, this court finds and concludes (and, indeed, the parties have now stipulated) that while the presence of such disease can be ascertained on an individualized basis by the use of cardiac catheterization, the use of this invasive and dangerous procedure is simply not practicable and no other diagnostic technique is sufficiently reliable. Indeed, the presence of asymptomatic heart disease of itself precludes testing individuals aged 55 and over for the presence of the aerobic capacity necessary to perform New Jersey State Police duties. Accordingly, it is not possible to ascertain on an individualized basis which officers aged 55 and older possess a level of coronary artery disease which would preclude the safe and efficient performance of their duties and, thus, the risk involved in permitting them to continue to fulfill those duties cannot be identified. These factors, together with the marked increase of significant coronary artery disease in this age group, establish age as an appropriate "proxy" for the job qualification of continued health and fitness. See Western Airlines, Inc. v. Criswell, supra, U.S. , 105 S. Ct. at 2751-52.
Judgment will be entered in favor of defendants in Civil No's. 84-2733 and 85-2905. Counsel for defendants are to submit an order reflecting this opinion within ten days.