In order to avoid liability for intentional discrimination on the basis of this contention, [defendant] must prove both of the following elements by a preponderance of the evidence:
Second: That [defendant] either had reasonable cause to believe that all or substantially all persons over the age qualification would be unable to perform the job safely and efficiently, or that it was impossible or highly impractical to consider the necessary qualifications of each older employee. [Defendant’s] belief should be evaluated in light of all the circumstances in the case, to determine whether it has a reasonable basis in fact.
COMMENT
Section 4(f)(1) of the ADEA provides that it is not unlawful for an employer to take an action otherwise prohibited by the Act if “age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” 29 U.S.C. § 629(f)(1). This language is identical to that provided in Title VII. Accordingly, the instruction is substantively identical to Instruction 5.3.1, which covers the BFOQ defense in Title VII cases.In Western Airlines v. Criswell, 472 U.S. 400, 410 (1985), the Court declared that the BFOQ defense is an “extremely narrow” exception; it held that the defense did not justify the employer’s plan to retire members of commercial airline flight crews when they reached 60 years of age. The Criswell Court described the BFOQ defense applicable in ADEA actions in the following passage: An employer asserting a BFOQ defense has the burden of proving that (1) the age limit is reasonably necessary to the essence of the business, and either (2) that all or substantially all individuals excluded from the job involved are in fact disqualified, or (3) that some of the individuals so excluded possess a disqualifying trait that cannot be ascertained except by reference to age. If the employer's objective in asserting a BFOQ is the goal of public safety, the employer must prove that the challenged practice does indeed effectuate that goal and that there is no acceptable alternative which would better advance it or equally advance it with less discriminatory impact.
The Criswell Court made it clear that the BFOQ defense is an affirmative defense; the burden of establishing its elements is on the defendant.
