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Six Baltimore Firefighters Charge Age Discrimination : Court to Rule on Forced Early Retirement

Times Staff Writer

Until 1962, Baltimore permitted its firefighters to stay on the job until age 70, even with a 66-hour workweek. Then the city, concerned over the stressful demands of the job on older workers, began requiring most firefighters and other public safety employees to retire at age 55.

Although the new plan had the approval of the affected unions, six firefighters eventually brought suit, charging that the city was violating a federal law that bars discrimination because of age.

“Their basic feeling was, ‘If we’re physically fit and have our mental faculties, why shouldn’t we be permitted to do the job?’ ” their attorney, Paul D. Bekman, said. “They said: ‘If we can’t cut the mustard, we should be out. But nobody should be able to tell us we can’t work just because we hit a certain age.’ ”

Policies Being Attacked

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The Baltimore case has reached the Supreme Court as mandatory retirement policies are being attacked across the country. Although many age barriers to employment have fallen in recent years, mandatory early retirement for safety reasons remains widespread. Now the court, which intends to rule by July, may change all of that.

Ironically, the case will be decided by a court without a single member young enough to be a Baltimore firefighter. Five of the nine justices are 76 or older, and the youngest, Sandra Day O’Connor, turned 55 in March. There is no mandatory retirement at any age for Supreme Court justices and all other federal judges.

State and municipal authorities are paying particularly close attention to the Baltimore case. They defend early retirement policies on the grounds that, when it comes to public safety, it is better to force workers to leave their jobs too early rather than too late.

Prone to Heart Attacks

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Firefighters, those officials say, are inordinately prone to coronary disease and heart attacks as they grow older, risking not only their own lives but those of their colleagues and the public. Keeping those employees after they reach 55, they add, could mean significantly higher death and disability benefit costs for cities.

Don Benninghoven, executive director of the League of California Cities, said the outcome of the Baltimore case--coupled with a Supreme Court decision earlier this year opening the way for application of federal wage standards to state and local workers--could have a “major financial impact” on municipalities.

“This may require cities to take a whole new look at how they provide public safety services,” Benninghoven said. “Remember, about 50% of an average city budget goes for fire and police costs, so we’re talking about major expenditures.”

The assault on mandatory retirement has intensified as Americans have grown collectively older. The 65-and-older population has jumped from 8% in 1950 to nearly 12% now, and the Census Bureau estimates that it will grow to more than 15% in the next three decades.

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Responding to that pressure, Congress barred discrimination against most privately employed workers between 40 and 65 in the 1967 Age Discrimination in Employment Act. Congress extended the act to federal, state and local governments in 1974 and, four years later, raised the age limit from 65 to 70. Pending before this year’s Congress is a bill, sponsored by 70-year-old Sen. Alan Cranston (D-Calif.) and 84-year-old Rep. Claude Pepper (D-Fla.), that would ban most mandatory retirement at any age.

Under the federal law, the U.S. Equal Employment Opportunity Commission received 18,087 complaints of age discrimination in 1983, nearly double the number filed in 1981 and more than the number of racial or sex discrimination complaints. In response, the EEOC, actively pursuing the issue, filed more than 30 lawsuits in the specific area of age discrimination by state and local governments against public safety personnel.

Many large cities, easing their retirement policies in recent years, now permit firefighters and police officers to serve until at least age 65 or, as in the case of Los Angeles, allow them to stay on after age 70, subject to physical and mental examinations. But countless cities and states, including California, still have laws mandating early retirement for their public safety workers.

A group of California state agencies has entered into an agreement with the EEOC not to enforce early retirement for state Highway Patrol officers, correctional officers and other public safety workers until the validity of such policies is clarified by the courts or new legislation is enacted, said Gerald Ross Adams, chief counsel for the state Public Employees Retirement System. The agreement does not cover local governmental policies.

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Even Congress, despite the age discrimination act, requires most federal firefighters and law enforcement officers to retire at age 55. Baltimore is relying heavily on that fact in its own defense before the Supreme Court.

Baltimore contends that age is a bona fide occupational qualification for firefighters. It won its case before the U.S. 4th Circuit Court of Appeals in Richmond, Va., which held that Congress recognized 55 as a proper mandatory retirement age for state and local firefighters when it set that age for most federal firefighters.

Supporting Baltimore are the National League of Cities and 12 states with similar laws. The league notes, for example, that studies show heart attacks are responsible for 40% of all firefighters’ deaths in the line of duty.

“The stress begins when the bell goes off in the firehouse--and the risk of heart attack starts right there,” Frederick Simpich, the league’s attorney in the case, said. “Sometime before age 70, people become just too old to fight fires.”

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On the other side, the six Baltimore firefighters have been joined by the EEOC, which contends that cities should be required to prove that older firefighters cannot do the job--not merely to declare that being older in itself is a disqualification.

The EEOC warns that the federal appeals court ruling in favor of Baltimore’s 55-year age limit could “seriously undermine” the age discrimination act’s aim of ensuring that employment decisions are based on individual abilities, not stereotypes. The congressional limit on the age of federal firefighters and law enforcement officers, it argues, is irrelevant to Congress’ intentions to include states and municipalities under the age discrimination act.

Accompanying the firefighters’ case (Johnson vs. Mayor of Baltimore, 84-518) is another mandatory retirement dispute awaiting a Supreme Court decision by this summer. In that case, Western Airlines is also citing public safety in defending its policy of requiring flight engineers to retire at age 60.

Although the Federal Aviation Administration mandates retirement at 60 for pilots and co-pilots, it imposes no such limit on flight engineers. The airline says that, although engineers do not actually man flight controls, they sit in the cockpits with the pilots and “actively participate” in operating the plane.

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The U.S. 9th Circuit Court of Appeals in San Francisco, ruling that the airline had failed to prove that the policy was “reasonably necessary” to the safety of its flights, held that Western’s refusal to allow flight engineers to serve beyond age 60 was illegal.

In its appeal to the Supreme Court (Western vs. Criswell, 83-1545), the airline, citing the “staggering death tolls” in major aircraft accidents, said it has a duty to employ only the most highly qualified persons in key positions. In light of disagreements over the abilities of older flight personnel, Western argued that it was justified in “erring, if at all, on the side of safety.”


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