TENNESSEE WILDLIFE RESOURCES AGENCY, PETITIONER V. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION

   No. 88-1100

   In The Supreme Court Of The United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Sixth Circuit

   Brief For The Respondent In Opposition

            TABLE OF CONTENTS
   QUESTION PRESENTED
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1-6) is reported at
859 F.2d 24.  The opinion of the district court (Pet. App. 9-56) is
reported at 696 F. Supp. 1163.

                             JURISDICTION

   The judgment of the court of appeals was entered on October 4,
1988.  The petition for a writ of certiorari was filed on December 31,
1988.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the court of appeals properly concluded that the Tennessee
Wildlife Resources Agency failed to show that its mandatory retirement
age of 55 for wildlife officers was justified as a "bona fide
occupational qualification" under Section 4(f)(1) of the Age
Discrimination in Employment Act of 1967, 29 U.S.C. 623(f)(1) (1982 &
Supp. IV 1986).

                               STATEMENT

   1. Petitioner, the Tennessee Wildlife Resources Agency, is
responsible for enforcing all hunting, fishing, and other laws
relating to wildlife in the State of Tennessee.  Petitioner hires and
supervises all wildlife officers charged with carrying out its law
enforcement responsibilities.  /1/ Under Tennessee law, all wildlife
officers with 25 years of service must retire at age 55.  See Tenn.
Code Ann. Section 8-36-205(2) (1988).  In July 1981, the Equal
Employment Opportunity Commission (EEOC) filed an action under the Age
Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621 et
seq., against petitioner in the United States District Court for the
Middle District of Tennessee.  That action challenged petitioner's
forced retirement of 26 wildlife officers who had reached 55 as a
violation of Section 4(a)(1) of the ADEA, 29 U.S.C. 623(a)(1), which
makes it unlawful for an employer "to discharge any individual * * *
because of such individual's age." Petitioner defended its mandatory
retirement age of 55 as a lawful "bona fide occupational qualification
(BFOQ) reasonably necessary to the normal operation of (its)
particular business" (Section 4(f)(1) of the ADEA, 29 U.S.C. 623(f)(1)
(1982 & Supp. IV 1986)).  Pet. App. 1-2, 9-13.

   2. Following a trial, the district court concluded that petitioner
had established that its mandatory retirement age for wildlife
officers was justified as a "bona fide occupational qualification"
under Section 4(f)(1) of the ADEA (Pet. App. 9-10, 46-54).  /2/ In
evaluating petitioner's BFOQ defense, the court purported to apply the
two-part test approved in Western Air Lines, Inc. v. Criswell, 472
U.S. 400, 414-416 (1985), namely, the requirements that the employer
show that the job qualification is reasonably necessary to the
particular business, and that "all or substantially all persons over
the age limit would be unable to perform safely and efficiently the
duties of the job involved" (Pet. App. 44-45 (internal quotation marks
and citations omitted)).

   The court first concluded that the "primary essence of
(petitioner's) business as it relates to wildlife officers * * * is
that of law enforcement and the safety of the public" (Pet. App. 47),
and that wildlife officers over 55 "could not adequately perform,
without excessive tiring, such tasks as pursuing hunting violators up
steep grades on foot, * * * and working long hours in adverse weather"
(id. at 49).  Turning to the second step of the inquiry, the court
reviewed the evidence, which included testimony of wildlife officers
themselves and expert witnesses, and concluded that "substantially all
persons over age 55 would be unable to perform safely and efficiently
the duties of wildlife officers * * *" (id at 51), principally because
"coronary artery disease is a significant health factor in persons
over age 55" (id at 52).  The court also concluded that available
medical tests "cannot at this time reliably determine those who can
effectively and safely perform as wildlife officers and that age is
the only means to ascertain those persons who can" (id. at 53).
Accordingly, the court concluded that petitioner had shown that age 55
is a valid BFOQ for the mandatory retirement of its wildlife officers.

   3. The court of appeals unanimously reversed and remanded (Pet.
App. 1-6).  It concluded that the district court had misapplied the
first part of the Criswell test because petitioner "has not treated
physical and coronary fitness as reasonably necessary to the position
of wildlife officer" (id. at 4).  Reviewing the record, the court
found that petitioner has "no provision for testing, evaluating, or
improving the aerobic and coronary fitness of officers either under or
over the 55-year limitation," and that petitioner offered "no evidence
that officers over 55 who have been allowed to continue work have
proved to be unsatisfactory" (id. at 6).  In addition, the court
observed that petitioner "permitted exceptions to the mandatory
retirement age, not on the basis of health and fitness, but instead on
the basis of the economic status of individual officers," and that
petitioner admitted "that some officers were retained beyond 55 for
political reasons" (ibid.).  In sum, the court concluded that all
those as reasonably necessary to the job of serving as a Tennessee
Wildlife Officer" and that petitioner's BFOQ defense failed (ibid.).

                               ARGUMENT

   1. Petitioner contends (Pet. 10-17) that the court of appeals'
decision misapplied the standard for evaluating an employer's BFOQ
defense approved in Western Air Lines, Inc. v. Criswell, 472 U.S. 400
(1985), and effectively required petitioner to overcome an insuperable
burden.  Section 4(f)(1) of the ADEA, 29 U.S.C. 623(f)(1) (1982 &
Supp. IV 1986), provides that an employer may take age into account in
making employment decisions "where age is a bona fide occupational
qualification reasonably necessary to the normal operation of the
particular business." In Criswell, this Court endorsed a two-part
standard that an employer must satisfy in order to justify its use of
an age limit for employment in a certain position (472 U.S. at
414-416):  (1) the employer must show that a certain trait is a bona
fide and reasonably necessary qualification for the position;  and (2)
the employer must show that all or substantially all employees above
the age limit lack the qualification required, or that it is
impracticable or impossible for the employer to identify those who
lack the required trait by individual testing.

   Contrary to petitioner's assertion (Pet. 14), the court of appeals
hardly "distorted" the first part of the Criswell test.  The court
simply required petitioner to show that it imposes the same standards
of physical fitness, the alleged basis of its BFOQ, on its wildlife
officers.  As the court of appeals observed (Pet. App. 5-6),
petitioner permitted exceptions to its age limit, but based those
exceptions on economic hardship or political considerations, not on
health and fitness.  And petitioner made no effort to test, evaluate,
or improve the aerobic and coronary fitness of officers either under
or over the 55-year limitation.  Thus, by its actions, petitioner has
shown that the high levels of physical fitness asserted as the basis
for its BFOQ were not considered as "reasonably necessary to the
normal operation of (its) business." Without such a showing, as the
court of appeals correctly held, petitioner's asserted qualification
may not be considered either "bona fide" or "reasonably necessary" for
petitioner's normal operations, as the statute expressly requires.
Accordingly, the court of appeals' decision is consistent with
Criswell and imposed no higher burden on petitioner than the plain
language of the statute mandates.

   2. Petitioner further contends (Pet. 17-20) that the court of
appeals' decision conflicts with EEOC v. Missouri State Highway
Patrol, 748 F.2d 447 (8th Cir. 1984), cert. denied, 474 U.S. 828
(1985), and EEOC v. City of East Providence, 798 F.2d 524 (1st Cir.
1986).  In Missouri State Highway Patrol, which involved a challenge
to the state's mandatory retirement age of 60 for police officers, the
Eighth Circuit reviewed the routine duties of police officers and
concluded that "(i)n light of these obligations and demands * * *,
(the state) has clearly established that physical ability and ability
to withstand stress are job qualifications which are reasonably
necessary to the performance of (the jobs)" (748 F.2d at 451).  To be
sure, contrary to the court of appeals' decision here, the Eighth
Circuit appears to have applied a less demanding level of scrutiny to
an employer's asserted BFOQ defense.  That decision, however, predates
Criswell, where the Court made clear that the ADEA requires a more
exacting EEOC v. Pennslyvania, 829 F.2d 392, 396 (3d Cir. 1987)
("Before a characteristic can be reasonably necessary (qualification),
it must be a trait that the employer at least attempts to require of
employees of all ages."), cert. denied, No. 87-5781 (Feb. 29, 1988).
Accordingly, any apparent tension between the court of appeals'
decision and the Missouri State Highway Patrol does not call for this
Court's review.

   In City of East Providence, which also involved a challenge to a
mandatory retirement age of 60 for police officers, the EEOC contended
that the defendant city failed to satisfy the first part of the
Criswell standard because the city "does virtually nothing to ensure
that members of the force below age 60 meet the physical fitness
standards for which it seeks to use age 60 as proxy" (798 F.2d at
528-529).  The court of appeals rejected that argument, concluding
that the district court has made a "particularized factual finding
that physical strength and stamina and the ability to withstand stress
are reasonably necessary to the operation of the police department"
(id. at 529-530).  In addition, the court of appeals observed that
"(w)hile the existence of such (physical fitness) tests reinforce the
argument that physical strength and stamina are a necessary
requirement, it does not follow that physical abilities are proven to
be unnecessary by the mere fact that a police department is slipshod
in monitoring the health and fitness of its younger officers" (id. at
530).

   Although the First Circuit in City of East Providence stressed that
regular physical fitness testing is not required in order to show that
an employer has established a bona fide physical fitness requirement
which is reasonably necessary for a position, the court below did not
impose such a requirement.  To the contrary, the court of appeals in
this case stressed several factors besides the absence of physical
fitness tests for younger officers in support of its conclusions that
petitioner had failed to establish that a high level of physical
fitness was a bona fide job qualification (Pet. App. 5-6).

   In any event, even if there were a clear conflict between the
decisions of the Eighth and First Circuits and the decision below,
that conflict would not call for this Court's review in light of a
significant amendment to the ADEA.  In 1986, Congress amended the
statute effectively to permit state or local government employers to
apply prospectively the type of mandatory retirement provision at
issue in this case pending the results of a congressionally mandated
study.  Section 3(a)(1) of the Age Discrimination in Employment
Amendments of 1986, Pub. L. No. 99-592, 100 Stat. 3342, 29 U.S.C.
623(i) (Supp. IV 1986) provides:

         It shall not be unlawful for (state and local government
      employers) * * * to discharge any individual because of such
      individual's age if such action is taken --

         (1) with respect to the employment of an individual as a
      firefighter or as a law enforcement officer and the individual
      has attained the age of * * * retirement in effect under
      applicable State or local law on March 3, 1983, and

         (2) pursuant to a bona fide * * * retirement plan that is not
      a subterfuge to evade the purposes of (the ADEA).

   This amendment, which became effective on January 1, 1987, and
remains in effect through 1993, /3/ does not apply to actions such as
this one, which were brought under the ADEA before the amendment's
effective date.  See Pub. L. No. 99-592, Section 7(a) and (b), 100
Stat. 3344-3345, 29 U.S.C. 621 note (Supp. IV 1986).  The amendment,
however, confines the significance of the question presented here to
those few actions for retrospective relief filed against state and
local governments before January 1, 1987.  /4/ Accordingly, the
amendment renders any apparent conflict among the courts of appeals
over the question presented in this case a matter of diminishing
importance that does not call for this Court's review.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   CHARLES A. SHANOR

      General Counsel

   GWENDOLYN YOUNG REAMS

      Associate General Counsel

   VINCENT J. BLACKWOOD

      Assistant General Counsel

   GALE BARRON BLACK

      Attorney Equal Employment Opportunity Commission

   FEBRUARY 1989

   /1/ Wildlife officers employed by petitioner fall into four
separate classifications:  wildlife officer I (entry class), wildlife
officer II (assistant supervisor), wildlife officer supervisor, and
wildlife enforcement coordinator (chief of law enforcement).  See Pet.
App. 11.

   /2/ The district court concluded, however, that the mandatory
retirement age of 55 was not a valid BFOQ for one classification of
wildlife officers -- chief and assistant chief of law enforcement
(Pet. App. 9-10, 54-55).  Petitioner sought no further review of that
aspect of the district court's decision and thus it is no longer at
issue.

   /3/ Unless reenacted by Congress, the amendment will expire on
December 31, 1993.  See Pub. L. No. 99-592, Section 3(b), 100 Stat.
3342, 29 U.S.C. 623 & note (Supp. IV 1986).

   /4/ Contrary to petitioner's representation based on the
information available to it (Pet. 9), the EEOC, as of January 31,
1989, has only 12 ongoing ADEA actions involving similar BFOQ defenses
against some six states or municipalities.