Al Shaver hated being forced to retire. A friendly, physically fit and educated man, he felt as qualified as ever to perform the job he had enjoyed for years.
But the question of whether age had taken the edge off his abilities was critically important. Shaver was a commercial airline captain, shuttling passengers between Chicago and Honolulu in a Boeing 747. Potentially, the lives of hundreds depended on his health and reflexes each time he reported for duty.
Despite his wishes, federal policy forced him to quit on his 60th birthday in 1981.
Today, Shaver is one of 50 retired or soon-to-be-retired airline pilots who, armed with medical evidence, are preparing to ask the Federal Aviation Administration to let them continue in command. "It's crazy to make people retire when they're ready, willing, able and qualified to work," the former United Airlines captain declared.
Exempt From Protection
For many people, forced retirement is no longer a reality in light of federal age-discrimination protections that cover most types of workers between 40 and 70. But airline pilots, police officers, firefighters and certain others have been purposely excluded from such protections. The theory: mandatory retirement makes sense for jobs in which public safety may demand speed, strength or other traits associated with youth.
Now this once widely accepted notion is under attack. Critics say that workers should be judged on individual merit rather than dealt with as part of a broad group. And just as barriers to employing women and minorities have been overruled in the past, retirement policies that treat aging workers as a stereotypical class are giving way.
At the heart of the debate is the mystery of what it means to grow older and the toll that the years take on various mental and physical skills. Although the deterioration that accompanies advancing years is of course unstoppable, the process varies remarkably. Some people are mentally sharp and physically healthy in their 80s, while others have failing hearts and other signs of decline in their 60s, say specialists on aging.
Supreme Court Criteria
In June, the Supreme Court ruled that mandatory retirement policies for those under 70 may be justified only when "all or nearly all employees above an age" are unqualified, or where it is not practical to test individual workers. The court did not question that a job may require the ability to run swiftly, haul a heavy load or perform complex tasks under stress. But it made it clear that employers must meet a stiff burden of proof, likely to include the findings of experts, to justify claims that a whole age group is unfit.
While the three Western Airlines employees who launched the case several years ago--to protest mandatory retirement of flight engineers--had already returned to the cockpit under rulings by lower courts, the Supreme Court decision will have an impact far beyond their particular circumstances. Legal observers say that employers will find it harder than ever to justify mandatory retirement if a worker mounts a challenge.
"The courts, the state and a lot of municipalities are becoming less willing to make arbitrary judgments about classes of people based on their age, and are willing to give individuals a chance to succeed or fail," said Judith A. Keeler, a regional attorney in Los Angeles with the U.S. Equal Employment Opportunity Commission.
The EEOC currently has about 70 lawsuits nationally against mandatory retirement, many on behalf of employees who have risen to management jobs that do not require youthful strength. In Southern California alone, EEOC attorneys are suing Los Angeles and Orange counties and the cities of Glendale, Oxnard, Burbank and Ontario for retirement policies affecting fire and police departments and school security.
Law Overrides Policies
Meanwhile, a state law enacted in September effectively repealed mandatory retirement for police and firefighters in more than 350 California cities.
To be sure, most police, fire and airline personnel voluntarily depart at retirement age, if not earlier. And despite the wave of challenges, many mandatory retirement policies remain in effect. Federal safety officers, such as those in the Secret Service and FBI, are not protected by the age-discrimination law and typically must retire at 55. Los Angeles County has stuck with an age-60 retirement policy for police and fire personnel, even in the face of EEOC opposition.
"It's still our position that age is a bona fide occupational qualification, at least for those firefighters and police officers who are performing arduous jobs," said William Stewart, executive county counsel.
In defense of mandatory retirement, some cite not only safety factors, but also the need to move workers up and out so that career pipelines remain open for the young.
"If those in the upper echelons are retiring at 50 or 55, the younger officer will see it as an opportunity to move into those jobs eventually," said Sterling B. Epps, a federal agent and co-chairman of the Federal Law Enforcement Officers Assn.'s legislative committee. "If you eliminate those opportunities, he'll just get out of law enforcement when he's offered a job on the outside that pays more."
Disagreement on Policy
But employers disagree on the wisdom of what amounts to kicking out the oldest workers. The International Assn. of Chiefs of Police, for example, takes no direct stand except to support legislation that would give states and localities more freedom to set their own policies.
In the city of Los Angeles, police and firefighters may stay on the job as long as they are physically able, in contrast with their county counterparts.
"We feel there is an expertise drain and brain drain posing a larger problem by far to the department than people staying around too long," said Cmdr. William Booth, a spokesman for the Los Angeles Police Department.
Booth said the department has several members who are in their 60s--including a 67-year-old detective--and that he had heard of no situations in which their ages had jeopardized public safety.
"You have to be very careful about (generalizing about) age 60," said Robert W. Elliott, a Manhattan Beach neuropsychologist who studies brain-behavior relationships and is helping the older pilots prepare medical evidence for the FAA. "Some people will perform very slow, and some people will have lost nothing at all."
Pilots See Discrepancies
The pilots are trying to prove that medical science now allows such distinctions to be made in a way that would protect the public, while allowing qualified captains to stay on board. They point out, for example, that many younger airline pilots who have been treated for stroke, heart disease, alcoholism, drug abuse or vision loss have been reinstated and entrusted with the safety of passengers.
"I flew the month of October with a captain who has absolutely zero hearing in one ear and a powerful hearing aid in the other," said Shaver, now 64, who was allowed in 1983 to return to United as a flight engineer, a post typically ranked third in the cockpit. " . . . If the FAA is willing to go to the trouble to help those people preserve their careers, why isn't it just as willing to take someone who is past his 60th birthday and--if he can pass all the tests--let him fly?"
Idus A. Inglis, 64, a former TWA captain who says he was forced to retire at the height of his career, complained that younger captains are allowed to risk their health by smoking, for example, "But they're not age 60, so they can go on."
Shaver, Inglis and the other pilots have taken tests to assess, among other things, the health of their brains, hearts, eyes and ears. Those found to be in first-rate condition plan to petition the FAA for exceptions to the age-60 rule sometime this month or shortly afterward.
Individuals Vary Widely
Neuropsychologist Elliott said he had examined data on the pilots' attention spans, reasoning abilities and other mental characteristics, and found that 35 of the applicants appeared extremely sound. Another 15 needed to be examined further, he said.
Meanwhile, others are trying to eliminate the FAA's mandatory retirement rule altogether. In October, Rep. Edward R. Roybal (D-Los Angeles), chairman of the House Select Committee on Aging, conducted a hearing to dramatize the case of the airline pilots.
He declared: "We must consider public safety, but we cannot allow those words to become a catch-all phrase to eliminate all workers over a specific age if they are otherwise qualified and physically fit to continue."
A 1981 National Institute on Aging study found no special medical justification for age-60 retirement, but recommended against an FAA policy change, partly due to the lack of a performance appraisal system for screening out unreliable older pilots.
The institute's current director said in an interview, however, that such a system could indeed be set up. "Qualification should be on the basis of job requirements and not age," said T. Franklin Williams, a physician.
Heart Attack Risk Weighed
Williams said there is only an "extremely low" risk that a person whose heart was checked periodically with advanced techniques would suffer a sudden, debilitating heart attack while in the air. Williams and two other physicians are preparing a program of medical evaluation that they will offer the FAA as an alternative to mandatory retirements.
But Williams and other opponents of the retirement rule have a lot of convincing to do.
Anthony J. Broderick, an FAA associate administrator, testified at the House hearing that current medical knowledge "still does not permit us to identify those pilots who can safely perform" past age 60.
Broderick also cited findings of a 1983 FAA study of non-commercial pilots that airplane accidents increase with pilot age, although he acknowledged that the findings may not apply to professionally trained airline captains. The age-60 restriction does not apply to non-commercial fliers.
FAA spokesman John Leyden said he could not predict how the agency would react to the pilots' impending request, but he reiterated the agency's longtime support for the rule.
The airline industry supports the FAA position, but opinion is hardly unanimous.
"I have long believed that the FAA's age-60 rule should not apply to pilots who are healthy and capable of continuing airline service," R. J. Shipner, an Eastern Airlines vice president, wrote the FAA in August on behalf of an older pilot. Officially, however, Eastern continues to support the retirement policy, along with other members of the Air Transport Assn., which represents the commercial airlines.
Union Changed Its Stand
The FAA position is also backed by the Air Line Pilots Assn., the union of 34,000 commercial pilots. But some ask whether safety is the only motivation of the union, which opposed forced retirement for 20 years, only to change its view in 1980.
Jack Young, 65, a former Eastern captain who has advised the House aging committee's staff on the issue, said that the pilots' union reversed gears on mandatory retirement because "the younger guys saw the age-60 rule as a stepping stone, a way to get promoted faster."
Inglis, of San Juan Capistrano, agreed: "They wanted to get rid of us. They wanted our jobs."
John Mazor, a union spokesman, said the policy switch arose from a recognition of safety questions, as well as the fact that contracts then current assumed retirements at age 60.
Pilots Most Upset by Rule
Whatever the reason, some pilots consider mandatory retirement to be manifestly unfair. Shaver, who attended the University of Chicago between flights in the 1970s, recalled that his doctoral study found that pilots, of all airline employees, were the most disturbed by the notion of being forced to quit.
"The results I saw led me to know that I was not unique," said Shaver, who now keeps a busy schedule as a stockbroker in Chicago in between his duties as a flight engineer and a new hobby, scuba diving.
An attraction of the captain's job for many pilots is its high salary. The pay averages more than $100,000 yearly on major airlines. But Shaver says, "My main motive in this is to crack it open and set a precedent so future people can have free choice."