JAMES A. MONTZ, Complainant, and IOWA CIVIL RIGHTS COMMISSION,


VS.

CIVIL SERVICE COMMISSION and CITY OF ESTHERVILLE, IOWA, Respondents.


43. The Respondents' position is not tenable for several reasons. First, as noted in the Findings of Fact, the Respondents realized that this section does not encourage early retirement of police officers. See Finding of Fact No. 46 (citing the testimony of Commission Chairman Huntzinger at 1206).

44. Second, even if it were conceded that this statute did encourage early retirement of police officers, it does not expressly or impliedly mandate, permit or encourage cities to enact maximum age hiring limits. This statute cannot, therefore, be reasonably compared to the statute in Janesville which expressly allowed cities in Wisconsin to impose mandatory retirement plans. See Conclusion of Law No. 20.

45. Third, this section allows police officers, initially hired at age 33 or over, to receive full retirement after 22 years of service. Iowa Code Section 411.6(l)(a). An officer entering at age 40, for example, would be eligible to receive full retirement at age 63.

46. Fourth, this chapter allows police officers, who have been members of their retirement system for four or more years and whose employment terminated before retirement, for reasons other than death or disability, to receive a pro-rated service retirement allowance upon attaining retirement age. Iowa Code § 411.6(a)(2). It also permits police officers who have terminated their employment with one city and accepted employment with another city to "transfer membership service earned under the first system to the system under which the member is employed." Id. at 411.19.

47. These provisions are not consistent with any legislative encouragement of maximum age hiring limits. Section 411.6(a)(2) anticipates that some officers will leave employment prior to the end of their 22 years, an option which officers initially employed after the age of 33 might find attractive. Iowa Code § 411.6(a)(2). Section § 411.19 clearly anticipates that more experienced police officers, who will likely be older police officers, may choose to advance their careers by accepting new employment with other cities. Iowa Code § 411.19. Under this provision, they are not penalized by losing retirement credits when they make such a move Id.

48. Iowa Code Section 411.6(l)(a) does not embody any legislative policy encouraging the enactment of maximum age hiring limits by cities for police officer positions.

Respondents' Reliance on a 1980 Attorney General's Opinion Does Not Justify the Maximum Age Hiring Limit:

49. When discussing Attorney General opinions, it should be remembered that these opinions have never been held by any appellate court in Iowa to constitute controlling authority. They are only relied upon as persuasive authority by this Commission to the extent they are congruent with controlling authority and the factors set forth in the last sentence of Conclusion of Law No. 4 above.

50. The July 10, 1980 Attorney General's opinion referred to by Respondent is set forth in Respondents' Exhibit GG. The opinion was issued in response to a request by a legislator as to the legality of certain provisions utilized by the Mason City Civil Service Commission, including a minimum age limit of 21 years and a maximum age hiring limit of 30 years. 1980 Op. Att'y Gen. 751, 752. The opinion initially states that "the imposition of specified age limitations as employment criteria would not only contravene Chapter 601A, but also other provisions of the Iowa Code (1979)." Id.

51. The opinion applies the prohibitions against age discrimination set forth in the Iowa Civil Rights Act and the chapter on Civil Service. Id.. (quoting Iowa Code §§ 601 A.6(l) (a); 400.17 (1979). While discussing the maximum age hiring limit, this opinion makes reference to a prior 1973 opinion addressing this issue:

That opinion concluded that such limitations are permissible only if the nature of the particular position sought by the job applicant required an age limitation.

Id. at 753 (citing 1973 Op. Att'y Gen. 116).

52. The 1980 opinion continues:

Inasmuch as some positions in law enforcement agencies are essentially civilian in nature and would not require an age qualification, a rule automatically prohibiting older persons from applying for positions would be illegal. If the position cannot justify an age qualification by its very nature, it cannot be subjected to such a qualification without violating § 601A.6, The Code 1979.

Id. (emphasis added).

53. Respondents rely on the underlined sentence to support the proposition that "the Attorney General foresaw and countenanced that cities would be able to establish a maximum hiring cap as a bona fide occupational qualification necessitated by the business and occupation involved for its patrol officers, but not for those in its administrative positions." Respondents' Brief at 33. To the extent that this statement implies that merely showing that a position is a patrol officer position is sufficient to establish an age BFOQ, it is erroneous and is not consistent with either the attorney general's opinions or, as shall be seen, with current law on this issue. Such civilian positions are merely offered in the 1980 opinion as examples of positions where age would not be a BFOQ.

54. The 1973 attorney general's opinion concluded that "the Iowa Civil Rights Act... does not permit age limits for entry into law enforcement positions unless the limit is based on the nature of the occupation."1973 0p. Att'y Gen.116,117.The opinion noted that this qualification may be likened to the BFOQ exception. Id. at 118. The 1973 opinion went on to state:

This essentially means that the Department of Public Safety must review the job description for each position under their authority and analyze whether the nature of that particular occupation requires a person under a certain age. Assumptions about the general abilities and physical qualifications of persons over a certain age are not permitted. Thus, if a particular position requires an employee of great agility, the department may not assume, for example, that persons over 50 lack this kind of agility. Further examples of this "nature of the occupation" exception are extremely difficult to conceive of when faced with . . . the prohibition against assumptions and generalizations.

Each applicant must normally be given the opportunity to prove that he or she possesses the qualities necessary for performance of the particular job, regardless of his or her age.

Id.

55. The 1973 opinion makes it clear that each position, not just administrative positions, must be analyzed to determine whether age is a BFOQ. Id. Under this opinion, precisely the kinds of stereotypical assumptions about the general abilities and physical qualifications of older officers relied on by Respondents in this case are prohibited. Id. See Findings of Fact Nos. 29-30. Finally, the opinion endorses testing ("the opportunity to prove that [one] possesses the qualities necessary for performance of the job") over maximum age hiring limits. Id.

1980 Op. Att'y Gen. 751, 754.

57. The 1980 opinion also discussed the retirement system statute, Iowa Code section 411.6:

[In 1979], the legislature enacted an amendment to § 400.17, The Code 1979, establishing 65 years as the maximum age for..... police officers. . . . Further, § 411.6, The Code 1979, allows police officers and firefighters who have attained 55 years of age to retire if they have served 22 years in their respective departments. Under this statute, it can be inferred that the collection of retirement benefits is dependent upon one's entry into the service at, at most 33 years of age, in order to serve 22 years in the department and retire at the minimum age of 55 years. However, because this provision is not a hard and fast rule and is dependent upon both years of service and years of age, it appears this age delineation would pass muster under challenge.

Id. (emphasis added).

58. Respondents argue that the underlined phrase would pass muster under challenge" refers to an age hiring cap such as the one it has established. Respondents' Brief at 34. However, examination of the remainder of that sentence, which is set forth in bold type, demonstrates that the "age delineation" referred to is a "provision [which] is not a hard and fast rule and is dependent upon both years of service and years of age." 1980 Op. Att'y Gen. 751, 754. The provision referred to is the one set forth in italics above, which summarizes the voluntary retirement provisions of Iowa Code section 411.6(l)(a) (1979), and not any maximum age hiring cap.

59. It should be noted that the inference set forth in this portion of the Attorney General's 1980 opinion is either incorrect or, at best, poorly stated. Collection of retirement benefits was not dependent upon entry into the police service at the age of 33 years at the latest. It is clear that, while age 55 is the earliest a police officer could collect full retirement benefits after 22 years of service, he or she could still draw full retirement benefits if 22 years of service were completed at a later age, such as 56 or 60. See Iowa Code § 411.6(l)(a) (1979). In 1979, a police officer could also collect pro-rated retirement benefits upon attaining retirement age if he or she had been a member of the retirement system for 15 or more years prior to termination of his or her employment. Id. Under the 1979 system, one could still be hired at age 49, terminate at the end of 15 years of employment, prior to mandatory retirement at age 65, and still be eligible to collect 15/22 of the retirement allowance. Iowa Code §§ 400.17, 411.6(l) (c) (1 979).

60. Under the 1989 code, one could still be hired at age 60, terminate at the end of 4 years of employment, prior to mandatory retirement at age 65, and still be eligible to collect 4/22 of the retirement allowance. Iowa Code §§ 400.17, 411.6(a)(2) (1989).

61. The 1980 Attorney General's Opinion concludes that:

The use of a maximum age limitation of 30 years as a device to sift out applicants for police officer ... positions will be subjected to close scrutiny. The department will be required to justify the use of that criterion by demonstrating a reasonable relationship exists between such an age limitation and the duties of the position of . . . police officer. However, because of the Legislature's inferential determination of an older age (i.e. 33 years) as sufficient to trigger the retention of retirement benefits, it may be argued that establishment of the lesser age as a selection criterion is in violation of the Legislature's intent.

1980 Op. Att'y Gen. 751, 754. (emphasis added).

62. Retirement benefits were and are retained under Chapter 411 for police officers newly hired at ages 33 and above. See Conclusions of Law Nos. 59-60. Under the inference drawn by the Attorney General, i.e. that the legislature's allowance of the retention of retirement benefits by newly hired police officers of a certain age demonstrates a legislative intent which is hostile to a prohibition against hiring police officers below that age, Respondents' maximum age hiring limit violates that intent. See 1980 Op. Att'y Gen. at 754. Also, linkage of an age hiring limit with entry into a retirement plan renders the plan, as implemented, a subterfuge for discrimination.See 1973 Op. Att'y Gen. 116,117.

63. Neither the 1973 nor the 1980 Attorney General Opinions support the Respondents' maximum age hiring limit.

Respondents Reliance on the "Silence" or Failure of the Iowa Civil Rights Commission to Reply to Their January 1986 Letter Provides No Justification for Their Maximum Age Hiring Limit:

Respondents Failed to Prove An Inference or Presumption that Their Letter Was Received by the Commission or by Kevin Pokorny.

64. As noted in the findings of fact, Respondents prepared a letter setting forth their position on the legality of the maximum age hiring limit. See Finding of Fact No. 49. On brief, Respondents argued, without citation of any supporting legal authority, that the failure of the Iowa Civil Rights Commission to respond to its letter constituted a "silence" which the Respondents were justified in relying on in maintaining its maximum age hiring limit. Respondents' Brief at 35-36.

65. "Proof of mailing a statement or letter properly addressed and otherwise conforming to postal laws and regulations concerning postage raises a presumption [or inference] of fact that it was received." Roshek Realty Company v. Roshek Brothers Company, 249 Iowa 349, 356, 87 N.W.2d 8 (1957). Respondents have not, however, presented evidence sufficient to support an inference or presumption that their letter was ever received either by the Commission or by Mr. Pokorny.

66. In order to establish such an inference, "it must be clearly shown" that each of the following facts actually exist:

(1) the necessary evidence of the contents and execution of the paper; (2) evidence that it was enclosed in a wrapper, or otherwise prepared for transmission through the mail; (3) evidence of the correct post-office address of the person to be charged with receiving it; (4) evidence that the package containing the document was properly addressed; (5) evidence that postage was prepaid; and (6) evidence that it was deposited in the mail for transmission.

Reserve Insurance Company v. Johnson, 260 Iowa 740, 744, 150 N.W.2d 632 (1967). These facts cannot be established thorough conclusory testimony to the effect that the letter was mailed from an office. See Forrest v Sovereign Camp W.O.W., 220 Iowa 478, 481, 261 N.W. 802 (1935); Central Trust Co. v. City of Des Moines, 205 Iowa 742, 746-47 (1928). As noted in the Findings of Fact, factors "(2)," "(4)," and "(5)," listed above have not been established. See Finding of Fact No. 51.

Even if Respondents' Letter Had Been Received, the Iowa Civil Rights Commission's Failure to Reply Would Not Constitute Evidence of Acquiescence In or Agreement With Respondents' Legal Position:

67. Respondents have failed to prove that their letter was received. Even if it had been, however, the Iowa Supreme Court has rejected the proposition that failure of an addressee to respond to a letter constitutes evidence of acquiescence in or agreement with the contents of the letter. Seevers v. Cleveland Coal Company, 158 Iowa 574, 594-95, 138 N.W. 793 (1913). "The mere fact that letters were received and unanswered has no tendency to show an acquiescence of the party in the facts stated in them. A party is not to be driven into a correspondence of that character to protect himself from such consequences." Id., 158 Iowa at 594. In some circumstances, such acquiescence may be inferred from silence in the face of verbal statements in the physical presence of the one who fails to respond, but not from a failure to respond to written communications. Id. at 594-95.

The Statements In Respondents' Letter Were Not of a Nature Which Would Ordinarily Call For a Denial

68. Even if Respondents' statements had been made verbally, and not in writing, the failure to respond would not constitute an admission or acquiescence by silence by the Commission with respect to Respondents' legal position, as stated in the letter, because these statements were not "of such a character and made under such conditions that a denial would have been natural had the statements been untrue or incorrect." Doherty v. Edwards, 227 Iowa 1264, 1272, 290 N.W. 672 (1940). Such statements would include, for example, allegations of wrong doing which would impose civil liability on the listener. Se Id. These are not the kind of statements found in respondents' letter.

Even if Respondents Had Proven Acquiescence by the Iowa Civil Rights Commission in Respondents Legal Position, This Would Constitute No Defense to An Allegation of Discrimination:

69. While Respondents have not proven any acquiescence by the Iowa Civil Rights Commission with respect to the legal positions stated in Respondents letter, even if they had done so, proof of such acquiescence would be no defense to a charge of discrimination. To -argue otherwise is to argue, in effect, that the state is equitably estopped by such acquiescence. The law is well established that there is no equitable estoppel against the state or public agencies. Sievertsen v. Employment Appeal Board, 483 N.W.2d 818, 819 (1992)(Dept. of Employment Services not estopped from recovering unemployment insurance benefits mistakenly paid claimant who followed erroneous advice of agency); City of Lamoni v. Livingston, 392 N.W.2d 506, 511 (Iowa 1986)(city which issued permit certifying property is zoned for intended use may later assert permit is invalid); Drainage District No. 119 v. City of Spencer, 268 N.W.2d 493, 504 (Iowa 1978)(City could not rely on I.D.O.T.'s assurances that it would help pay for culvert when there was no legal basis for I.D.O.T.'s liability-"[the city is] charged with knowledge of the law and could not ignore the plain meaning of the law."); Sullivan v. Iowa Departmental_ Hearing Board, 325 N.W.2d 923 (Iowa Ct. App. 1982)(suspension of liquor license upheld although license holder established casino after relying on advice of Dept. of Revenue). See also Schwartz, Administrative Law § 3.18 (1984).

70. It is arguably possible that a declaratory ruling by this agency with respect to an age limit would be binding on the agency with respect to litigation between it and the party requesting the ruling because such rulings have the same final effect as "agency decisions or orders in contested cases." Iowa Code § 17A.9 (1991). Since no such declaratory ruling was sought in this case, it is not necessary to set forth the parameters of this possible defense. See Finding of Fact No. 54.

71. For the reasons set forth above, the alleged failure of the Iowa Civil Rights Commission to reply to City Attorney Forsyth's letter of January 16, 1986 does not constitute any defense to the allegations of discrimination in this case.

Respondents' Reliance on the Iowa Law Enforcement Academy (ILEA) Regulation at 501 IAC 2.3 (1988) Is No Defense to Any Allegation of Age Discrimination:

72. While there is no evidence that Respondents ever actually relied on the regulation set forth at 501 IAC 2.3 (1988), see Finding of Fact No. 55, they nonetheless assert, on brief, that such reliance justifies the maximum age hiring limit. The regulation states:

501-2.3 (80B) Higher standards not prohibited. While no law enforcement officer can be selected who does not meet requisite minimum requirements, they shall not limit or restrict law enforcement agencies in establishing additional recruitment standards.

501 IAC 2.3 (1988).

73. By its own terms, this rule merely allows law enforcement agencies to impose recruitment standards other those specifically listed in the "Minimum Standards For Iowa Law Enforcement Officers" set forth in detail in Chapter 2 of the ILEA rules. Id. This rule, which is simply an interpretation of ILEA standards, neither expressly nor impliedly authorizes nor even purports to authorize age discrimination, or any other form of discrimination, violative of the Iowa Civil Rights Act or Iowa Code section 400.17. While this administrative rule may not prohibit age discriminatory standards in the employment of police officers, the legislative enactments set forth in the Iowa Civil Rights Act and the Civil Service statute certainly do. Iowa Code SS 400.17, 601A.6 (1991). This rule is no defense to any allegation of age discrimination.

The Wide Discretion Allowed Civil Service Commissions In the Performance of their Lawful Duties Does Not Permit Them to Violate the Law Against Discrimination:

74. On brief, Respondents characterize this case as "an attack on the system of localized civil service which has been created by the Iowa legislature" and emphasize the wide discretion allowed civil service commissions in performing their duties. Respondents' Brief at 57-58. This complaint of age discrimination is not an attack on the system of localized civil service, but is entirely consistent with the legislature's express intent to prohibit age discrimination in the civil service appointment process, Iowa Code § 400.17, and with its general prohibition against age discrimination in employment by, among others, political subdivisions of the State of Iowa. Iowa Code §§ 601A.2(6); 601A.2(10); 601A.6(l)(a)(c).

75. While it is true that civil service commissions have wide discretion in the performance of their duties, "agency action to be valid or legally permissible, must be within the legislative grant of authority." Patch v. Civil Service Commission of Des Moines, 295 N.W.2d 460, 464 (Iowa 1980). As previously discussed throughout this decision, none of the statutes, cited by Respondents as authorizing them to establish this maximum age hiring cap, actually provide such authority.

Respondents Have Not Proven Their "Based on the Nature of the Occupation" or "Bona Fide Occupational Qualification" (BFOQ) Affirmative Defense:

76. "[T]he 'unless based on the nature of the occupation' language of section 601A.6 is 'akin to the bona fide occupational qualification [BFOQ] exception present in the federal fair employment legislation.' " Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 168 (Iowa 1982)(quoting Cedar Rapids Community School District v. Parr, 227 N.W.2d 486, 492 (Iowa 1975)).

77. As with all their other affirmative defenses, see Conclusion of Law No. 6, the Respondents bear the burden of persuasion with respect to the BFOQ defense, i.e. they must persuade the finder of fact by the greater weight of the evidence that their maximum age hiring limit is based upon the nature of the occupation. See Cedar Rapids Community School District v. Parr, 227 N.W.2d 486, 492 (Iowa 1975); 2 H. Eglit, Age Discrimination, § 16.25 & n. 6 (1992). See also 161 IAC 8.15 (5)("[t]he burden shall be on the employer . . . to demonstrate that [a] direct . . . pre employment [age] inquiry is based upon a bona fide occupational qualification.").

8.15(8) Bona fide occupational qualifications.

a. An employer . . . may take any action otherwise prohibited under commission rules where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.

b. The concept of bona fide occupational qualification is narrow in scope and will not be applied to include the mere preference or convenience of the employer.

161 IAC 8.15(8)(emphasis added).

79. The language in subsection (a) of this rule parallels the language describing the BFOQ exception in the Age Discrimination in Employment Act and Title VI I of the Civil Rights Act of 1964. 29 U.S.C. § 623(f) (1); 42 U.S.C. § 20OOe-2(e). The United States Supreme Court has held that "the BFOQ exception [in both of these Acts] 'was in fact meant to be an extremely narrow exception to the general prohibition of age [and other prohibited] discrimination... in employment. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 412, 86 L.Ed. 2d 321, 332,105 S.Ct. 2743 (1985)(quoting Dothard v. Rawlinson, 433 U.S. 321, 334 (1 977)) (emphasis added).

80. "Since the BFOQ exception is contrary to the premise of the Iowa Civil Rights Act, it must be strictly construed." Polk County Juvenile Home v. Iowa Civil Rights Commission, 322 N.W.2d 913, 916 (Iowa Ct. App. 1982). "in order to justify the BFOQ exception, there must be no less restrictive alternative reasonably available to the employer." Id.

81. After noting that the BFOQ exception is read equally narrowly in both sex and age discrimination cases, the United States Supreme Court held that "[t]he wording of the BFOQ defense contains several terms of restriction that indicate that the exception reaches only special situations. . . . where . . . discrimination is 'reasonably necessary' to the 'normal operation' of the 'particular' business." Auto Workers v. Johnson Controls, __ U.S. __ 55 Fair Empl. Prac. Cas. 365, 372 (1991). Each of these terms:

prevents the use of general subjective standards and favors an objective verifiable requirement. But the most telling term is "occupational"; this indicates that these objective verifiable requirements must concern job-related skills and aptitudes.... By modifying "qualification" with "occupational," Congress narrowed the term to qualifications that affect an employee's ability to do the job.

Id. (emphasis added).

82. Even in cases where the safety of third persons is part of the essence or central mission of the business, "the safety exception is limited to instances in which [age] actually interferes with the employees ability to perform the job." Id. at 373. As noted in the Findings of Fact, there were repeated admissions by Respondents' city attorney that establishment of the maximum age hiring limit was not tied to ability to do the job, but was instead based on Respondents' misinterpretations of Iowa Code section 400.8 and chapter 41 1. See Findings of Fact Nos. 57-58.

The "Rational Basis" and "Reasonableness" Standards Are Erroneous Standards For Determining Whether a Maximum Age Hiring Limit is a Bona Fide Occupational Qualification:

83. Respondents have relied on some cases applying legal standards which are inapplicable to BFOQ cases. Respondents suggested that:

In a case strikingly on point to the instant one, the U.S. District Court . . . in Arritt v. Grisell, 421 F. Supp. 800 (N.D. W. Va. 1976), granted the defendant-municipality's motion for summary judgment in an age discrimination action brought by an applicant for the municipal police force who was not permitted to test for the position because he was older than the city's age hiring cap of 35 years for police officers. The defendants were three members of the local police civil service commission.... The court was persuaded that the defendants had established that age was a [BFOQ] for the position of police officer . . . based entirely on the affidavit testimony of the chief of police who stated that he believed that the skills necessary for the job declined with Age, including the ability to engage in high speed chases, the ability to respond quickly and wisely in emergency situations, and the ability to apprehend criminals by force. Id. at 802. Chief Paul Farber of the Estherville Police Department provided testimony which exactly duplicated that relied upon by the court in Arritt.

Respondents Brief at 26-27.

84. Respondents neglected to mention, however, that the District Court's BFOQ decision in Arritt v. Grisell was reversed by the Fourth Circuit Court of Appeals. Arritt v. Grisell, 567 F.2d 1267, 1271, 1272 (4th Cir. 1977). The district court was reversed because it relied on the incorrect standard set forth by the Seventh Circuit in Hodgson v. Greyhound Lines, 499 F.2d 859 (7th Cir. 1974). Arritt, 567 F.2d at 1272. The Hodgson decision held that the employer must demonstrate only "that it has a rational basis in fact to believe that elimination of its minimum hiring age will increase the likelihood of harm to its passengers. [The employer] need only demonstrate ... a minimal increase in risk of harm for it is enough to show that elimination of the hiring policy, might jeopardize the life of one more person than might otherwise occur under the present hiring practice." Hodgson at 863 (emphasis added).

85. The Fourth Circuit remanded the case back to the district court so it could apply the two pronged BFOQ standard set forth in Usery v. Tamiami Trail Tours, 531 F.2d 224 (5th Cir. 1976). It may safely be said that the Hodgson "rational basis in fact" standard began to die the day Tamiami Trails was decided, expired when it was repudiated by the Seventh Circuit, and received final interment when the Tamiami Trails standard was adopted by the United States Supreme Court in 1985. Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 416-17 & n.26 (1985). The "rational basis in fact" standard is not the correct legal standard for determining whether a BFOQ exists. See Id.

86. Similarly, the Supreme Court rejected the suggestion that an employer's job qualifications are to be accepted when found to be "reasonable in light of safety risks." Id. at 419. Such management decisions are to be subjected to a test of objective justification. Id. "The BFOQ standard adopted in the statute is one of 'reasonable necessity,' not reasonableness." Id. (emphasis added).

87. Two cases cited by Respondents, which applied the "rational basis" test as a constitutional standard when mandatory retirement programs were attacked as being violative of the Equal Protection Clause of the Fourteenth Amendment, are inapposite. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976)(Respondents' Brief at 39-40); EEOC v. Michigan, 1988 WL 159174 at p. 10, 51 Fair Empl. Prac. Cas. 294 (W.D. Mich. 1988)(Respondents Brief at 2930, 34)(equal protection analysis of mandatory retirement statute and ADEA amendments under attack by intervenors).

88.

Murgia's equal protection analysis does not control our consideration of a statutory claim under the ADEA [or the Iowa Civil Rights Act]. Congress [and the Iowa state legislature] ha(ve) made a policy decision in protecting the rights of the aged. That policy may not be defeated by the deferential standard applied in an equal protection analysis.

EEOC v. County of Santa Barbara, 666 F.2d 373, 27 Fair Empl. Prac. Cas. 1481, 1484 n.8 (9th Cir. 1982).

The Legal Standards Suggested on Brief by Respondents When Discussing Mandatory Retirement Law Cases Are Neither the Correct Standards For Determining Whether a Maximum Age Hiring Limit is a Bona Fide Occupational Qualification Nor a Lawful Substitute for Bona Fide Occupational Qualification:

89. It should be noted that there are two key factual distinctions between this case and any case actually upholding a maximum age retirement limit which seriously degrade the persuasive value of such cases. First, under a mandatory retirement law, it can reasonably be anticipated that the employer will retain no patrol officers over the retirement age. Therefore, any safety-related problems which are anticipated from the retention of patrol officers over the mandatory retirement age will not occur due to the absence of those employees in the employer's workforce. With an age hiring cap, however, patrol officers will inevitably continue to age and the cap will provide no lasting protection against any anticipated safety problems thought to be related to age. Second, in this case Respondents relied on a voluntary retirement statute, Iowa Code Chapter 41 1, and their peculiar construction of that statute, and not on any mandatory retirement statute.

90. Respondents relied primarily on two mandatory retirement law cases, EEOC v. Michigan, 1988 WL 159174 at p. 10, 51 Fair-Empl. Prac. Cas. 294 (W.D. Mich. 1988) and EEOC v. City of Janesville, 630 F.2d 1254 (7th Cir. 1980) for its position that "Respondents' use of an age criterion for hiring is supported by Federal case law upholding the use of mandatory age based retirement laws for law enforcement officers." (Respondents Brief at 28). Several deficiencies of reliance on the Janesville case have already been noted. See Conclusions of Law Nos. 20-21, 44. Some Federal courts have concluded, contrary to Janesville, that Federal anti-discrimination laws prevail over conflicting state laws. E.g. EEOC v. County of Santa Barbara, 666 F.2d 373, 27 Fair Empl. Prac. Cas. 1481, 1485 & n.15 (9th Cir. 1982).

91. In EEOC v. Michigan, the District Court did not uphold the use of mandatory age-based retirement laws for law enforcement officers." The EEOC and the State of Michigan had entered into a consent decree barring enforcement of Michigan's mandatory retirement law for police officers. EEOC v. Michigan, 1988 WL 159174 at p. 1. The decree provided that, in the event the EEOC created an exemption for such plan under the ADEA, the State of Michigan would be free to apply to the court for revision of the decree. Id. at 1-2. After enactment of a new mandatory retirement law, and the ADEA 1986 amendments, the State of Michigan applied for a revision of the decree to allow it to implement the new mandatory retirement law. Id. at 2-4. A number of police officers intervened to oppose revision of the decree and reinstitution of mandatory retirement requirements by contending that these requirements and the ADEA amendments violated the Equal Protection Clause. Id. at 1, 10. The State of Michigan's motion to modify the decree and reimpose mandatory retirement was ' denied. Id. at 10. The intervenors' Equal Protection challenge was also denied under the rational basis standard which, as previously noted, has no relevance to the BFOQ inquiry. Id. at 11.

92. Respondents, relying on the 1986 amendments to the ADEA, which are quoted in EEOC v. Michigan, stated, on brief, that "[s]aid language can correctly be interpreted as requiring of cities less of a showing of a BFOQ if their age based hiring is pursuant to a legitimate retirement plan." Respondents' Brief at 32. This is precisely the opposite of what the court actually held. The court, relying on EEOC regulations, ,held that, under the 1986 amendments, "the BFOQ standards have not been dropped vis-a-vis firefighters and law enforcement officers." EEOC v. Michigan, 1988 WL 159174 at p. 9. Also, the ADEA 1986 amendments, being contrary to Iowa Civil Rights Act, which offers greater protection than the ADEA, have no persuasive or controlling authority with respect to the Act. See paragraphs 13 and 14 - Rulings on Objections to Evidence.

The Correct Legal Standards for Determining Whether Respondents Have Established A Bona Fide Occupational Qualification for Its Maximum Age Hiring Limit Are Those Set Forth in the Polk County Juvenile Home and Criswell Cases:

93. The Iowa Supreme Court has has not set forth an extensive discussion of the analytical framework applicable to the determination of whether an employer has established a bona fide Occupational qualification for an employment requirement. The essential principle, however, is that a BFOQ cannot be established unless there is "no less restrictive alternative reasonably available to the employer." Polk County Juvenile Home v. Iowa Civil Rights Commission, 322 N.W.2d 913, 916 (Iowa Ct. App. 1982)(child care worker in county juvenile home). The employer must "demonstrate that there are no reasonably available alternative practices with less discriminatory impact that would satisfy the legitimate needs of the [employer]." Gunther v. Iowa State Men's Reformatory, 612 F.2d 1079, 1087 (8th Cir. 1980)(cited in Polk County Juvenile Home at 916)(corrections officer position in prison).

94. This requirement is congruent with that set forth in an EEOC regulation quoted with approval by the United States Supreme Court in Western Air Lines, Inc. v. Criswell:

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.

Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 416 & n-24 (1985) (quoting 29 C.F.R. S 1625.6(b)). See also EEOC v. Michigan, 1988 WL 159174 at p. 9, 51 Fair Empl. Prac. Cas. 294 (W.D. Mich. 1988).

95. The analytical framework for determining whether an employment requirement is a BFOQ is explicated in the Criswell decision. This analytical framework is a refinement of that given in Usery v. Tamiami Trail Tours, 531 F.2d 224 (5th Cir. 1976). Criswell at 412-417. Given the close relationship between treatment of the BFOQ defense under both Iowa and federal law, e.g. Foods, Inc. 318 N.W.2d at 168, this framework, as set forth in Criswell, is persuasive and is applicable to BFOQ analysis under the Iowa Civil Rights Act. See Hulme v. Barreft, 449 N.W.2d 629, 631 (Iowa 1989)(lowa courts may rely on analytical framework set forth in federal cases); Quaker Oats Co. v. Cedar Rapids Human Rights Commission, 268 N.W.2d 862,866-67 (Iowa 1978)(United States Supreme Court decisions often entitled to great deference). It must, however, be applied in a manner consistent with the controlling authority requiring that the employer establish there is no reasonably available, less restrictive alternative to the employer's age requirement. Polk County Juvenile Home v. Iowa Civil Rights Commission, 322 N.W.2d 913,916 (Iowa Ct. App. 1982).

96. The Criswell analytical framework is a two part test, which is based on the principle that, while age "may sometimes serve as a necessary proxy for neutral employment qualifications essential to the employer's business," the ultimate determination of whether age is a BFOQ must be made on an individual "case-by-case" basis due to "[t]he diverse employment situations in various industries." Criswell at 411, 416-17, 422. The evidentiary record in each case must be analyzed to ascertain whether the employer has made the necessary " 'particularized factual showing' with respect to each element of the BFOQ defense." EEOC v. Pennslyvania, 768 F.2d 514, 39 Fair Empl. Prac. Cas. 591 (3rd Cir. 1985)(citing Johnson v. Mayor of Baltimore, 472 U.S. 353, 37 Fair Empl. Prac. Cas. 1839, 1842 (1985)).

97. Under the first test, the finder of fact must determine whether the job qualifications, for which the employer is using age as a proxy, are essential to the central mission of the employer. Criswell at 413 & n.18. This inquiry is made because these "qualifications may be so peripheral to the central mission of the employer's business that no discrimination can be 'reasonably necessary to the normal operation of the particular business.' " Id.

98. In the Diaz case, for example, the Fifth Circuit considered the employer's argument that being a member of the female sex was a BFOQ for the position of flight attendant because females could provide a "cosmetic effect" and "pleasant environment" which males could not. Id. at n.18 (discussing Diaz v. Pan American World Airways, Inc. 442 F.2d 385 (5th Cir. 1971)). This argument was properly rejected because these functions were not essential to the business of providing safe transportation for passengers. Id.

99. In the instant case, Respondents established that the abilities necessary to perform certain functions were job qualifications which were reasonably necessary to the normal operation of the police department because these functions were shown to be essential to the central mission of the Estherville Police Department. See Finding of Fact No. 59.

Conclusions of Law Continued