BEFORE THE IOWA CIVIL RIGHTS COMMISSION

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


VS.

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

Reliance on Iowa Code Sections 400.8, 411.6(l)(a):

46. There is no question that Respondents relied on Iowa Code sections 400.8 and 411.6(l) (a) as legal authorities which, in their view, justified the establishment, and maintenance of the maximum hiring age limit. (R. EX. U, CC, 11, JJ; Tr. at 479, 529, 786, 78890, 795-96, 926-28, 1138- 41, 1157). See Finding of Fact No. 21. Because the retirement system established by Iowa Code section 411.6(l)(a) permits an officer to receive full retirement benefits at age 55 after 22 years of service, the Respondents subtracted 22 from 55 and used the result, 33, to establish a maximum hiring age whereby a candidate cannot have reached his thirty-third birthday at the time of his appointment. (Tr. at 529, 535, 927, 787, 1139). The Respondents were aware that section 411.6(l)(a) neither required police officers to retire at age 55 nor prohibited them from retiring or resigning before that age. (Tr. at 917-18, 928, 1203). They were also aware that there was not any requirement that only permitted a police officer to be hired if he would be fully vested in the retirement system at age 55. (Tr. at 928). Respondents also understood that the Iowa legislature did not intend to encourage police officers to retire at age 55. The age was a target date by which police officers could be fully vested in their pension. (Tr. at 1206).

Reliance on a 1980 Opinion of the Iowa Attorney General and on Federal Court Decisions:

47. In the course of relying on the opinions of the City Attorney, the Civil Service Commission relied on his interpretations of a 1980 opinion of the Iowa Attorney General and of Federal court decisions. (R. EX. G G; Tr. at 793-95, 799, 801, 820, 1144, 1156).

Reliance on the "Silence" or Failure of the Iowa Civil Rights Commission to Respond to a January 16,1986 Letter from the City of Estherville, Which Answered an Iowa Civil Rights Commission Inquiry on its Maximum Hiring Limit;

48. In either December of 1985 or early January of 1986, Kevin Pokorny, a Training Officer employed in the Iowa Civil Rights Commission's educational resources unit, wrote the City of Estherville a letter asking whether the Respondent had a maximum age limitation for entry level police positions and what the maximum age was based upon. (R. EX. QQ; Tr. at 802). Mr. Pokorny's letter was not entered into evidence. There is no evidence in the record to indicate the underlying reason for Mr.Pokorny's letter. There is no evidence to indicate that the letter was part of an investigation of any complaint.

49. City Attorney Gordon Forsyth composed a response, consisting of a letter dated January l6, 1986. (R. EX. KK; Tr. at 802). The letter indicated that, based on Iowa Code section 400.8, the Civil Service Commission believed it had the legal authority to set maximum age hiring limits for police officer positions. It also invited Mr. Pokorny to contact Mr. Forsyth if he had any further questions on this matter. (R. EX. KK). When Forsyth received no response from Mr. Pokorny or any other Commission representative, he and the Civil Service Commission chose to assume that this failure to respond signified the Iowa Civil Rights Commission's agreement with or acquiescence in Respondents' position. (Tr. at 803, 1151). They relied on this assumption in maintaining their maximum age hiring requirement. (Tr. at 803, 1151).

50. Forsyth's letter was addressed to "Iowa Civil Rights Commission, 2nd Floor, 211 East Maple Street, Des Moines, IA 50319." Official notice is taken that this has been the correct address of the Commission since December of 1984. See 1985 Iowa Civil Rights Commission Annual Report at 1. Fairness to the parties does not require that they be given the opportunity to contest this fact.

51. There is no evidence in 'the record to clearly show that: (1) the letter was enclosed in an envelope or wrapper or otherwise prepared for transmission through the mail; (2) the package containing the letter was properly addressed; or (3) postage was prepaid. There is also not sufficient evidence in the record to clearly show that this letter was deposited in the mail for transmission. At most, there is the conclusory testimony of Mr. Forsyth that this letter was mailed from his office. (Tr. at 802). Therefore, no presumption has been established to the effect that the letter was delivered to Mr. Pokorny or to the Iowa Civil Rights Commission. See Conclusions of Law 64-66.

52. Since it has not been established that the letter was delivered to either Mr. Pokorny or any other representative of the Iowa Civil Rights Commission, it has not been established that the statements contained therein were made in the presence of Mr. Pokorny or any such representative or read by them in the presence of others. There is also no evidence that the statements made in the letter, which are essentially a legal argument concerning why Respondents believe they are entitled to set minimum and maximum age limits, are the kind of statements which, if untrue, would ordinarily call for a written denial. Under these circumstances, and for reasons stated in the Conclusions of Law, Forsyth's letter does not and cannot constitute an admission by silence of the Iowa Civil Rights Commission whereby its failure to respond reflects agreement with or acquiescence in the statements of the Respondents' legal position set forth therein.

53. Even if the Iowa Civil Rights Commission had responded to Forsyth's letter and informed him that the Respondents' maximum age hiring limit was in violation of the Act, he would have still advised the Respondents to continue the limitation as it would still be his legal interpretation that the limit was legal. (Tr. at 31 0).

54. At the time of the hearing, City Attorney Forsyth was not familiar with the phrase "declaratory ruling" as it is used in administrative law. There is no evidence in the record which would indicate any reason which would have precluded a request by Respondents City of Estherville and Civil Service Commission for a declaratory ruling from the Iowa Civil Rights Commission concerning whether a maximum age hiring limit would violate the Iowa Civil Rights Act.

Reliance on the ILEA Regulation at 501 IAC2.3(1988):

55. Although the ILEA regulations were admitted into evidence through the testimony of Sheriff Lamack, and there is evidence that Ben Yarrington was aware of this particular regulation, there is no evidence in the record to support the proposition that anyone involved with the Respondents actually relied on this regulation in formulating or maintaining the Maximum age hiring limit. (R. EX. DD; R. EX. CC interview with Ben Yarrington at 6.) Nonetheless, this regulation will be discussed in the Conclusions of Law.

Reliance on the "Based on the Nature of the Occupation" or Bona Fide Occupational Qualification(BFOQ) Exception. Set Forth at Iowa Code Subsections 601A.6(l)(a) and (c):

56. A major emphasis of the Respondents' defense is that the maximum age qualification is "based on the nature of the occupation" or is a "bona fide occupational qualification" (BFOQ). It is more likely than not, however, that, in comparison to the other factors previously shown to have been relied upon, the BFOQ exception per se had only a peripheral role in the establishment and maintenance of the requirement that a candidate for a police officer position "has not reached his or her thirty-third birthday at the time of his or her appointment" . (CP. EX. # 55).

57. The earliest indication of an interest in reducing the maximum age hiring limit was former police chief Robert Seylar's letter of March 31, 1975 to the Civil Service Commission requesting that the age be lowered from 39 to 33. (R. EX. EE). Gordon Forsyth, who has been city attorney since 1973, noted that this age was "exactly that contained in the retirement act [i.e. Chapter 411]." (Tr. at 784, 813- 14). When, in 1986, Forsyth provided legal authority to Kevin Pokorny for the City's maximum age hiring limit, he relied solely on Iowa Code section 400.8 which he interpreted as authorizing the establishment of maximum age limits. The BFOQ exception is not mentioned. (R. EX. KK). At the time of Vaughn Brua's conversation with Complainant Montz, Brua mentioned only Chapter 4ll as justification for the age limit. See Finding of Fact No. 21. When he explained the .City's rationale for enacting and retaining the age limit during the course of the investigation, Forsyth repeatedly emphasized the provisions of Chapters 400 and 411 and (for the period after its issuance) a 1980 attorney general's opinion. In that same interview, he repeatedly denied that establishment of the age limit was linked to ability to do the job, a position diametrically opposed to the BFOQ defense:

You're doing it for the pension. Not simply because you think people who are older couldn't do the job.

. . .

We gotta comply with the Statute, which still says to this day, we gotta set a minimum and maximum age and the only just criteria I can see, isn't to fix an age based on the job but to fix an age based upon legislative intent to give them a full pension right at 55 at 22 years of service.

 

. . .

 

Very specific in the Code. And that is not tied to their ability to do the job, it's based upon the fact that the legislature says, "You can retire at 55 if you have 22 years benefits. . ."

 

. . .

 

But the one we set was the one we felt would not be discriminatory because it was tied not to their ability to do the job for their age specifically, but tied to the provision dealing with police pension and retirement provisions.

 

. . .

 

[T]he age requirement that we fixed was tied not to the idea that if you're over 33 you can't do the job.

(R. EX. CC-Interview with Brua, Forsyth and Farber at 5, 6, 7, 25, 26; Tr. at 822).

58. At hearing, Forsyth reaffirmed that:

[T] he..... maximum age limit that's justified is tied to police pension benefits. That is not tied to their ability to do the job. What I'm referring to there is simply the fact that the age of...33..... was not put in there because we didn't feel someone 34 couldn't do the job. It was put in there because--the specific age of 33, because of the 22-year, 55-age requirement of the retirement-- Police Pension Retirement Act. That's all it is referring to in that.

(Tr. at 836).

BFOQ: First Inquiry: Whether Job Requirements for the Position of Police Officer, Which Respondents Rely On to Justify Their Age Criteria, Are Essential to the Central Mission of the Police Department:

59. The job requirements relied upon by Respondents as justifying their maximum age hiring standard for patrol officers are the abilities to perform the following tasks: run to aid a victim; administer cardiopulmonary resuscitation (CPR); lift and carry persons either on backboards or stretchers or without them; to pursue, physically fight and/or restrain, and apprehend criminal suspects or persons under the influence of drugs or alcohol. (Tr. at 558-60, 847, 99597, 999-1002, 1006-007, 1017-19). All of these functions are essential to the central mission of the Estherville Police Department which is to enforce the law and protect the safety of the public. (Tr. at 562, 845, 847, 854, 997, 999,1007,1017,1019,1022).

BFOQ: Second Inquiry: Whether Respondents Had A Substantial Basis In Fact for Believing That All or Substantially All Persons At the Age of 33 or Over Cannot Perform Safely and Efficiently the Duties of the Police Officer Position:

60. Respondents have not proven a substantial factual basis for believing that all or substantially all persons at the age of 33 or over cannot perform safely and efficiently the duties of the Estherville police officer position. At no point did anyone testify or offer evidence indicating that such was the case. The preponderance of the evidence, as set forth below, is to the contrary.

61. As admitted by Dr. Robert S. Hranac, Respondents' medical expert, there is no known, sound, medically scientific reason to believe that every applicant who has reached his thirty-third birthday is unfit to be a police officer. The same would be true for the ages of 36, 40, 44, and 46. (Tr. at 596). As an example of the physical demands placed on police officers, Dr. Hranac testified about a man who was in a alcoholic rage and had to be subdued by three law enforcement officers. (Tr. at 558-59). One of the three officers was 38 or 39 years old. The other two were in their mid to late twenties. (Tr. at 561).

62. As stated by Dr. Paul Muchinsky, an industrial psychologist who testified on behalf of Respondents, as a matter of industrial psychology (which is the application of the scientific principles of psychology to the world of work), a chronological age limit of 35 or younger is not essential to the patrolman job on an individual by individual basis. The same is true for the ages of 40, 50, and 55. (Tr. at 840, 901-903). He denied that it was the burden of his testimony that there is a single age beyond which no one should be allowed to commence a career as a police officer. (Tr. at 890).

63. As acknowledged by Police Chief Farber, the Estherville police department does not terminate police officers when they reach the age of 33 on the basis that persons age 33 or over cannot do the job. They are, in fact, retained on the job past that age. (Tr. at 1111). It cannot be said that all persons of age 33 or over are incapable of performing the duties of police officer or of having an appropriate physical response as a policeman. (Tr. at 1109,1112). Persons of 43 years of age or over are capable of performing the tasks of police officer in Estherville. The same is true for persons of 50 or 54 if they are physically fit and mentally sound. Persons of those ages will differ from one another in their physical fitness due to their lifestyle and exercise. (Tr. at 1084, 1113-14). For example, Chief Farber could, as a 43 year old man, have better physical responses than suspects who smoke, drink and don't exercise even though they may be 20 years old or younger. (Tr. at 1109).

64. The establishment of the maximum age hiring limit was not tied to ability to do the job. See Findings of Facts Nos. 57-58.

65. As confirmed by the testimony of Respondents' witness, Emmet County Sheriff Larry Lamack, there is no rule at the Emmett County Sheriff's Department that required Deputy Sheriffs be under the age of 33 when hired. (Tr. at 704-05). Although deputies' duties were different than those of a police officer, they are at least as important and physically demanding as the duties required of police officers. (Tr. at 707-08).

66. The opinion of Dr. Richard Moe, Complainant's medical expert, supports the conclusion that excluding individuals who have reached their thirty-third birthday "doesn't make good sense simply because of the wide, wide, wide variation in individuals at any given age that progressively widens as we get older." (Tr. at 366). A person ought to be able to perform the rigorous activities required by a police officer up to end of the normal occupational life span, i.e. up to age 65. (Tr. at 365-66, 423).

Dr. Moe relied on an article, which was admitted into evidence, from the authoritative medical journal Medicine and Science in Sports and Exercise, (Tr. at 437-38), a part of which is adopted as a Finding of Fact below.

67.

There exists ample evidence that older professionals in physically demanding jobs can successfully execute their duties. It follows that, as a group, older individuals who are otherwise healthy can modify their life styles,with particular emphasis given to physical activity, to develop and maintain the necessary physiological profile to successfully execute the duties of physically demanding jobs.

 

. . .

 

[T]hrough physical activity, avoidance of excesses, and controlling stress and tension, a conservative estimate of the upper limit for age on the physically demanding job would be 70. [T]his is a conservative estimate and the true upper limit may be higher. [E]mployers of older individuals, whatever their ages, [should] not judge the abilities of those individuals on the basis of age but rather on the basis of criterion job performance and physiological profile.

Davis & Dotson, Job Performance Testing: An Alternative to Age Discrimination, 19 Medicine and Science in Sports and Exercise, No. 2, pp. 179, 183 (1987). (CP. EX. # 78). The professional "physically demanding job[s]" referred to above include police officers and firefighters. Id. at 180-81.

BFOQ: Third Inquiry: Whether Respondents Have Proven That It Is Highly Impractical to Select Qualified Candidates Over the Age of 33 Through Individual Testing.

68. Respondents have not proven that it is highly impractical to select qualified candidates over the age of 33 through individual testing. It must be borne in mind that the "based on the nature of the occupation" or BFOQ defense must concern qualifications that affect an employee's ability to do the job. See Conclusion of Law No. 81. It is possible to discern two arguments being made by Respondents with respect to age and the job requirements for which Respondents seek to use age as a surrogate. (These requirements were set forth in Finding of Fact No. 59.) First, that there are individuals over the age of 33 who are unable to meet such requirements due to the general effects of aging. Second, that there is an increased risk that individuals over the age of 40 would sustain a heart attack or other disability while attempting to perform such requirements. For Respondents' to establish a Bona Fide Occupational Qualification, they must also prove that it would be highly impractical for such inability or risk to be adequately detected or controlled through testing. See Conclusion of Law No. 102.

Respondents Have Not Proven That It Would Be Highly Impractical To Adequately Detect, Through Testing, Individuals Over the Age of 33 Who Are Unable, Due to the General Effects of Aging, to Meet the Requirements. For Which the Respondents Seek to Use Age as a Surrogate:

69. There are two flaws in the proposition that it would be highly impractical to adequately detect, through testing, individuals over the age of 33 who are unable, due to the general effects of aging, to meet the requirements for which the Respondents seek to use age as a surrogate. First, many of the declines in performance thought to be due to aging are actually due to other causes. Second, it is possible to adequately test and determine which individuals over the age of 33 are unable to perform the job.

70. Although there are general deleterious effects of aging on the human body, the physical impact of aging will vary widely from person to person. (R. EX. MM; Tr. at 443, 549). See Findings of Fact Nos. 63, 66. Official notice is taken of the following empirical facts which are emphasized in the legislative history of the Age Discrimination in Employment Act (and which are thus capable of certain verification): "[T]he process of psychological and physiological degeneration caused by aging varies with each individual. 'The basic research in the field of aging has established that there is a wide range of individual physical ability regardless of age."' Western Air Lines, Inc. v. Criswell, 472 U.S. 400,105 S. Ct. 2743,86 L.Ed. 2d 321, 330 & n. 11 (1985)(citing and quoting Report of the Secretary of Labor, the Older American Worker: Age Discrimination in Employment 9 (1965); and citing EEOC, Legislative History of the Age Discrimination in Employment Act 26 (1981). S. Rep. No. 95-493, p. 2 (1977), Legislative History 435). Fairness to the parties does not require that they be given an opportunity to contest these facts.

71. These variances among individuals grow wider as people age. Davis & Dotson, Job Performance Testing: An Alternative to Age Discrimination at 181 (hereinafter referred to as "Davis" or "Davis & Dotson"). (CP. EX. 78). One way of expressing the concept that an individual's physical performance may vary from what would be expected given his or her chronological age is to refer to an individual's "functional age." Id. at 179. An individual's functional age relates to the amount of work an individual can perform, whether measured through strength, endurance or another factor, and comparing that to other people. (Tr. at 394). Therefore, an individual with the chronological age of 40 could be referred to as having a functional age of 25 given that he had the physical ability to perform the work expected of an individual with a chronological age of 25. (Tr. at 852). One's functional age may be quite different from one's chronological age. (Tr. at 445).

72. The evidence demonstrates that decreases in individual muscular strength, reaction time, endurance and other deterioration once thought to be due to aging have been shown, through relatively recent research, to actually result from disuse of the body, i.e. a lack of physical activity. (Tr. at 370-71, 377). In fact, muscular strength "shows no significant change over the employment years of adult males." Davis & Dotson at 181. (CP. EX. # 78). Studies have shown that there are no significant differences in the mean reaction times of older males (average age o" 50) and younger males (average age of 20). Id. Eve individuals who are not physically active "can maintain relative muscular endurance up to age 65." lo Although the greater weight of the evidence does not support Respondents' thesis that declines in these areas of physical ability are primarily due to the general effects of aging, these areas are identified by both the Davis article and by Respondents as being pertinent to the performance of the requirements set forth in Finding of Fact No. 59. Id. (Tr. at 1017, 1083, 1108=09, 1155, 1160, 1200, i2-O2). Furthermore, whatever decreases are attributable to aging are not sufficient to disqualify anyone in the normal occupational life span (to age 65) from police work. (Tr. at 366, 371).

73. Evidence was introduced on two alternative forms of testing which could serve as substitutes for age discrimination in hiring and retention. One alternative is to individually test applicants and incumbents in order to ascertain their functional age. (R. EX. MM; Tr. at 404, 409, 860-61). Another alternative was to develop testing criteria which would accurately measure intrinsic individual attributes .related to the job, such as specific physical abilities required to do the job, and thereby test both applicants and incumbents to measure their ability to perform the job. (R. EX. MM; CP. EX. 78; Tr. at 876). Davis & Dotson at 180. Under each alternative, tests are initially administered to applicants to determine if they are qualified and periodically administered to police officers on the force to ascertain their continuing ability to perform the work. (R. EX. MM; Tr. at 409, 860). There is a relationship between the two in the sense that both concepts recognize that the functional ability of an applicant may not be accurately reflected solely by reliance on his or her age. Davis & Dotson at 179. (R. EX. MM). The first alternative, however, utilizes functional age as the qualification for hiring or retention, i.e. one must be shown to be able to perform at a particular functional age level. (Tr. at 404, 861). The second alternative utilizes criteria specifically related to job performance as the qualification, i.e. one must be shown to be able to meet the specified criteria. Davis & Dotson at 180.

74. The first alternative was attacked by Dr. Muchinsky's testimony in which he relied on a 1984 article, introduced by the Respondent as Exhibit MM, from the journal Experimental Aging Research.Avolio, Alternatives to Age for Assessing Occupational Performance Capacity, 10 Experimental Aging Research No. 2 pp. 101-05 (1984)(hereinafter and previously referred to as R. EX. MM). (Tr. at 867-68). One difficulty with determining an individual's functional age is that there is no professionally agreed on measure for determining functional age. (Tr. at 863). One might, for example, find that an individual has the vision of a 25 year old, the lung capacity of a 38 year old, and the physical strength of a 35 year old. While a person's functional age could be estimated by averaging these values, the average can be grossly deceptive due to variability among components. (R. EX. MM; Tr. at 863-64). Another problem is the failure to empirically validate functional age measures, i.e. failure to show that they are predictive of job performance. (R. EX. MM).