KENTUCKY STATE POLICE DEPARTMENT, ET AL., PETITIONERS V. EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION

   No. 88-1543

   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. 2a-9a) is reported
at 860 F.2d 665.  The opinion of the district court (Pet. App.
10a-16a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 1,
1988.  A petition for rehearing was denied on January 13, 1989 (Pet.
App. 1a).  The petition for a writ of certiorari was filed on March
11, 1988.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

   Whether the court of appeals properly concluded that the Kentucky
State Police Department failed to show that the mandatory retirement
age of 55 for police 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 Kentucky State Police Department, is responsible
for enforcing state criminal and traffic laws.  Under Kentucky law,
Ky. Rev. Stat. Ann. Section 16.505(15) (Michie/Bobbs-Merrill 1985),
all Kentucky State Police officers must retire at age 55.  On August
29, 1984, the Equal Employment Opportunity Commission (EEOC) filed
this action against petitioner under the Age Discrimination in
Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq.. The complaint
alleged that petitioner's retirement rule violated Section 4(a)(1) of
the ADEA, 29 U.S.C. 623(a)(1).  That Section makes it unlawful for an
employer "to discharge any individual * * * because of such
individual's age." Petitioner defended its retirement rule 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)).

   2. Following a trial, the district court concluded that
petitioner's mandatory-retirement rule was justified as a "bona fide
occupational qualification" under Section 4(f)(1) of the ADEA (Pet.
App. 16a).  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):  that the employer
show that (1) the job qualifications at issue -- here, adequate
aerobic capacity and the absence of heart disease -- are reasonably
necessary to its particular business, and (2) that "substantially all
people over the mandatory retirement age cannot safely perform the
duties of the job or that it would be highly impractical to deal with
class members on an individual basis" (Pet. App. 11a).  The district
court noted that "(t)his is a close case," but found that
"cardiovascular fitness and aerobic capacity are traits reasonably
necessary to the performance" of an officer's job "(e)ven though * * *
the Department here has no in-service fitness screening * * *" (Id. at
11a-12a).  Turning to the second part of the test, the court found
that "there is a significant increase in coronary risk with age" and
that "non-intrusive testing for cardiovascular disease is not
sufficiently advanced to be a reliable substitute for the mandatory
retirement age" (id. at 12a-13a).  By contrast, the court found that
the requisite aerobic capacity "can be accurately tested" on an
individual basis (id. at 13a).

   3. The court of appeals reversed (Pet. App. 2a-9a).  It held that
the district court's findings were clearly erroneous because the lower
court did "not take into account the total and the crucial facts of
this case" (id. at 3a).  In particular, the court held that petitioner
had not shown that the absence of heart disease was a necessary
characteristic of a Kentucky state officer.  Reviewing the record, the
court of appeals found that petitioner "repeatedly permitted officers
under the age of 55 who had known health problems including heart
conditions to remain on the job with no diminution of duties" (id. at
4a-5a).  And the court observed that petitioner "has no program for
testing the fitness of its officers either as to aerobic or
cardiovascular health" (id. at 4a).  Accordingly, the court held that
petitioner failed to show that the 55-year age limit is a BFOQ.

   Judge Engel dissented because, in his view, this case "discloses no
* * * lack of good faith by the Kentucky State Police" (Pet. App. 9a).

                               ARGUMENT

   The decision of the court of appeals is correct and it does not
conflict with the decision of any other court.  Thus, no further
review is warranted.

   1. In Western Air Lines, Inc. v. Criswell, supra, this Court
adopted a two-part test that an employer must satisfy in order to
justify its use of a mandatory retirement age (472 U.S. at 414-416).
The employer must show:  (1) that a certain trait is a bona fide and
reasonably necessary qualification for the position;  and (2) that all
or substantially all employees above the age limit lack the required
qualification, or that it is impracticable for the employer to
identify those who lack the required trait by individual testing.

   Contrary to petitioner's assertion (Pet. 11), the court of appeals
did not distort the first part of the Criswell test.  The court simply
held that petitioner failed to prove that the absence of heart disease
is a necessary qualification for officers.  That holding is well
supported by the record.  The former director of the Kentucky State
Police testified that the initial selection of age 55 as the mandatory
retirement age had nothing to do with health, fitness, or an officer's
ability to do the job (EEOC C.A. Br. 22).  The evidence also showed
that petitioner permitted officers under age 55 who had known health
problems, including heart disease, to remain on the job with no
reduction in duties (Pet. App. 4a-5a).  Moreover, petitioner allowed
officers who had heart attacks and heart by-pass surgery to remain on
the job (id. at 5a).  One officer was retained even after he had three
heart attacks (ibid.).  Finally, petitioner made no effort to test the
cardiovascular fitness of most of its officers (id. at 4a).  Thus, by
its own actions, petitioner has shown that the lack of heart disease
in its officers is not "reasonably necessary to the normal operation
of (its) business" (29 U.S.C. 623(f)(1) (1982 & Supp. IV 1986)).
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.

   Petitioner argues (Pet. 14-15) that the decision below will require
it to establish an elaborate testing program to evaluate the fitness
of officers.  That is not correct.  The court of appeals only held
that a characteristic used to justify mandatory retirement "'must be a
trait that the employer at least attempts to require of employees of
all ages'" (Pet. App. 8a, quoting EEOC v. Pennsylvania, 829 F.2d 392,
396 (3d Cir. 1987), cert. denied, No. 87-958 (Mar. 7, 1988)).  The
court did not impose any particular rules of testing on petitioner.
And, in any event, petitioner's claim that a testing program would be
unduly burdensome is belied by the record, which shows that petitioner
gives regular physical fitness tests to its "special response teams"
(Pet. App. 4a).

   2. Petitioner further contends (Pet. 11-17) 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. 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)nlight 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
standard than a "rationale basis in fact." See Criswell, 472 U.S. at
421;  see also EEOC v. Pennsylvania, 829 F.2d 392, 396 (3d Cir. 1987)
("Before a characteristic can be a reasonably necessary
(qualification), it must be a trait that the employer at least
attempts to require of employees of all ages."), cert. denied, No.
87-958 (Mar. 7, 1988).  Accordingly, any apparent tension between the
court of appeals' decision and the Missouri State Highway Patrol
opinion does not warrant this Court's review.

   In East Providence, which also involved a challenge to a mandatory
retirement age of 60 for police officers, the EEOC contended that the
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 a proxy" (798 F.2d at 528-529).  The court of appeals
rejected that argument because the district court had 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 reinforced the argument that physical
strength and stamina are a necessary requirement, it does not follow
that physical abilities are proved 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).

   The court of appeals in this case, however, did not rely solely on
the absence of fitness tests for younger officers in support of its
conclusion that petitioner had failed to establish that the lack of
heart disease was a bona fide job qualification (Pet. App. 4a-5a).  It
also relied on the fact that younger officers who were known to lack
the asserted qualification (i.e., absence of heart disease) were
allowed to continue working and that they performed competently.  See
also EEOC v. Tennessee Wildlife Resources Agency, 859 F.2d 24 (6th
Cir. 1988) (employer that made exceptions to its mandatory retirement
policy failed to establish BFOQ), cert. denied. No. 88-1100 (Mar. 6,
1989).

   In any event, the issue presented by this case is of diminishing
importance.  In 1986, Congress amended the statute to permit state or
local government employers to use mandatory-retirement rules for
law-enforcement officers pending the results of a congressionally
mandated study.  That amendment, which became effective on January 1,
1987, and remains in effect through 1993, does not apply to actions
such as this one, which were brought under the ADEA before the
amendment's effective date.  See Age Discrimination in Employment
Amendments of 1986, Pub. L. No. 99-592, Section 7(a) and (b), 100
Stat. 3344-3345, 29 U.S.C. 623 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.  Thus, any tension among the
opinions of the courts of appeals 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

   VELLA M. FINK

      Assistant General Counsel

   GALE BARRON BLACK

      Attorney Equal Employment Opportunity Commission

   APRIL 1989