Section 632 of the Foreign Service Act of 1946, which requires
persons covered by the Foreign Service retirement system to retire
at age 60, though no mandatory retirement age is established for
Civil Service employees, including those who serve abroad, held not
to violate the equal protection component of the Due Process Clause
of the Fifth Amendment. Pp.
440 U. S.
95-112.
(a) The standard of rationality, rather than strict scrutiny, is
to be used in determining whether this statute violates equal
protection.
Massachusetts Board of Retirement v. Murgia,
427 U. S. 307. Pp.
440 U. S.
96-97.
(b) Congress has recognized the distinctive requirements
associated with the conduct of the country's foreign relations and
has provided personnel policies for the Foreign Service, a
relatively small, homogeneous, and particularly able corps,
separate and apart from the Civil Service system. One of the
differences, the earlier retirement age for Foreign Service
officers specified in § 632, operates in conjunction with statutory
"selection out" provisions as part of an integral plan to
create
"a correctly balanced [Foreign] Service that [was] constructed
so that the size of the various classes would correspond with the
distribution of the work load of the Service,"
selection out operating primarily at the lower, and compulsory
retirement at the higher, Foreign Service levels. Pp.
440 U. S.
98-102.
(c) Section 632 also furthers the congressional purpose of
removing from the Foreign Service those who are sufficiently old
that they may be less dependable than younger persons in facing the
rigors of overseas duty. Since Congress attached special importance
to the high performance in the conduct of our foreign relations, it
was rational to avoid the risks of having older employee in the
Foreign Service engaged in such activity, while tolerating those
risks involved when older Civil Service employees work abroad. Pp.
440 U. S.
103-106.
(d) Another reason for not equating the situation with respect
to Civil Service employees serving overseas with that of the
Foreign Service is that about 60% of the relatively small group in
the latter category serve in overseas posts at any one time,
whereas only about 5% of Civil
Page 440 U. S. 94
Service employees are in overseas service at any one time, and
such service is mainly on a voluntary basis. Pp.
440 U. S.
106-108.
(e) Even if the classification at issue here is to some extent
both underinclusive and overinclusive, perfection is not required
to satisfy equal protection standards, and such imperfection as
exists can be rationally related to the secondary objective of
legislative convenience. Pp.
440 U. S.
108-109.
(f) Appellees have not satisfied the burden of demonstrating
that Congress had no reasonable basis for believing that conditions
overseas generally are more demanding than those in this country
and that, at age 60 or before, many persons begin to decline. Pp.
440 U. S.
109-112.
436 F.
Supp. 134, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART, BLACKMUN, POWELL, REHNQUIST, and
STEVENS, JJ., joined. MARSHALL, J., filed a dissenting opinion,
post, p.
440 U. S.
112.
MR. JUSTICE WHITE delivered the opinion of the Court.
The issue presented is whether Congress violates the equal
protection component of the Fifth Amendment's Due Process Clause
[
Footnote 1] by requiring
retirement at age 60 of federal employees
Page 440 U. S. 95
covered by the Foreign Service retirement and disability system,
but not those covered by the Civil Service retirement and
disability system. A three-judge District Court was convened to
hear this challenge to the constitutionality of a federal statute
by appellees, a group of former and present participants in the
Foreign Service retirement system. Treating the case as submitted
on cross-motions for summary judgment, the District Court examined
the affidavits and allegations presented by both sides, held the
distinction invalid, and gave judgment for appellee.
436 F.
Supp. 134 (D.C. 1977). [
Footnote 2] We noted probable jurisdiction, 436 U.S. 903
(1978), and now reverse.
I
The statutory provision under attack, § 632 of the Foreign
Service Act of 1946, 60 Stat. 1015, as amended, 22 U.S.C. § 1002,
mandates the retirement at age 60 of participants in the Foreign
Service retirement system. [
Footnote 3] That system originally
Page 440 U. S. 96
covered only Foreign Service officers in the State Department,
but it has been expanded to include Foreign Service Reserve
officers with unlimited tenure, [
Footnote 4] career Foreign Service Staff officers and
employees, [
Footnote 5] Foreign
Service Information officers and career staff in the International
Communication Agency, [
Footnote
6] and certain employees of the Agency for International
Development. [
Footnote 7]
Unlike these employees, personnel covered by the Civil Service
retirement system presently face no mandatory retirement age,
[
Footnote 8] and, when this
suit was brought, were not required to retire until age 70.
[
Footnote 9]
Appellees have not suggested that the statutory distinction
between Foreign Service personnel over age 60 and other federal
employees over that age [
Footnote 10] burdens a suspect group or
Page 440 U. S. 97
a fundamental interest; and in cases where these considerations
are absent, courts are quite reluctant to overturn governmental
action on the ground that it denies equal protection of the laws.
[
Footnote 11] The
Constitution presumes that, absent some reason to infer antipathy,
even improvident decisions will eventually be rectified by the
democratic process, [
Footnote
12] and that judicial intervention is generally unwarranted no
matter how unwisely we may think a political branch has acted.
Thus, we will not overturn such a statute unless the varying
treatment of different groups or persons is so unrelated to the
achievement of any combination of legitimate purposes that we can
only conclude that the legislature's actions were irrational. The
District Court and the parties are in agreement that whether § 632
violates equal protection should be determined under the standard
stated in
Massachusetts Board of Retirement v. Murgia,
427 U. S. 307
(1976), and similar cases; and thus that the section is valid if it
is "rationally related to furthering a legitimate state interest."
Id. at
427 U. S.
312.
In arguing that § 632 easily satisfies this standard, the
appellants submit that one of their legitimate and substantial
goals is to recruit and train and to assure the professional
competence, as well as the mental and physical reliability, of the
corps of public servants who hold positions critical to our foreign
relations, who more often than not serve overseas, frequently under
difficult and demanding conditions, and who must be ready for such
assignments at any time. Neither the District Court nor appellees
dispute the validity of this goal.
Page 440 U. S. 98
The appellants also submit that compulsory retirement at age 60
furthers this end in two principal ways: first, as an integral part
of the personnel policies of the Service designed to create
predictable promotion opportunities and, thus spur morale and
stimulate superior performance in the ranks; second, by removing
from the Service those who are sufficiently old that they may be
less equipped or less ready than younger persons to face the rigors
of overseas duty in the Foreign Service. The District Court
rejected each of these latter submissions, and, in our view, erred
in each instance.
II
At least since the enactment of the Rogers Act in 1924, which
created the Foreign Service by reorganizing the diplomatic and
consular services into a single entity, Congress has recognized the
distinctive requirements associated with the conduct of the
country's foreign relations, and has provided personnel policies
for the Foreign Service separate and apart from the general Civil
Service system. Among other differences, Foreign Service officers
have been subject to an earlier retirement age than is true in the
Civil Service.
Congress continued to give special attention to the Foreign
Service when it passed the Foreign Service Act of 1946, 60 Stat.
999, which, with amendments, is still in effect. That Act
reorganized the Foreign Service, provided it with a new personnel
structure, and revised its retirement system. The intention was to
produce a
"disciplined and mobile corps of trained men . . . through entry
at the bottom on the basis of competitive examination and
advancement by merit to positions of command."
H.R.Rep. No. 2508, 79th Cong., 2d Sess., 1 (1946). [
Footnote 13] In furtherance of "the
fundamental career
Page 440 U. S. 99
principle" [
Footnote 14]
that had earlier been established for the Service,
id. at
5, Congress found that
"[t]he promotion system must insure the rapid advancement of men
of ability to positions of responsibility and the elimination of
men who have reached their ceilings of performance."
Id. at 2-3. Thus, not only was initial selection to be
on the basis of merit, but Foreign Service officers were also to be
classified based on their individual abilities, and to be regularly
examined for promotion by selection boards. Those officers failing
to measure up to the performance expected for their class or who
had failed to win promotion within an allotted time were "selected
out." The aim was to stimulate superior performance and to retain
only those capable of conducting themselves in this manner in
widely different assignments around the world.
It was also in 1946 that the compulsory retirement age for most
classes of Foreign Service officers was lowered from 65 to 60. This
provision, § 632, was grouped with the selection-out sections of
the Act. [
Footnote 15]
Together, these sections "prescribe the
Page 440 U. S. 100
criteria as to length of service in classes which will determine
whether officers are selected out or retired," H.R.Rep. No. 2508,
supra at 90, and were designed "to assure a reasonable
pyramid of promotion."
Ibid. The retirement and
selection-out provisions are part of an integral plan to create
"a correctly balanced Service that [was] constructed so that the
size of the various classes would correspond with the distribution
of the work load of the Service."
Ibid. Selection out operates primarily at the lower
levels of the Service; compulsory retirement operates at the top of
the pyramid. Congress in 1946 required officers in the then-highest
category, [
Footnote 16]
career ministers, and in the next-highest, class 1, to retire at
ages 65 and 60, respectively. These officers were not subject to
selection out by the 1946 Act, [
Footnote 17] but, as Congress expressly noted with
respect to class 1, "the mandatory provisions of the retirement for
age . . . accomplish the desired result of insuring turn-over in
this class."
Id. at 91. [
Footnote 18] The District Court nevertheless rejected
this justification for § 632, stating in conclusory fashion
that
"recruiting and promoting younger people solely because of their
youth is inherently discriminatory, and cannot provide a legitimate
basis for the statutory scheme."
436 F. Supp. at 136. Whether or not this is a sound legal
proposition, we think that the
Page 440 U. S. 101
District Court mischaracterized the purpose of § 632 and the
manner in which it operates. Congress was intent not on rewarding
youth
qua youth, but on stimulating the highest
performance in the ranks of the Foreign Service by assuring that
opportunities for promotion would be available despite limits on
the number of personnel classes and on the number of positions in
the Service. Aiming at superior achievement can hardly be
characterized as illegitimate, and it is equally untenable to
suggest that providing promotion opportunities through the
selection-out process and through early retirement does not play an
acceptable role in the process. As this Court has previously
observed with respect to the selection-out structure provided by
Congress for naval officers, which was the model for the Foreign
Service Act of 1946, the scheme
"results in a flow of promotions commensurate with the Navy's
current needs and serves to motivate qualified commissioned
officers to so conduct themselves that they may realistically look
forward to higher levels of command."
Schlesinger v. Ballard, 419 U.
S. 498,
419 U. S. 510
(1975).
The District Court also rejected this justification for § 632
because "there is no obvious reason why [it] would not equally
apply to the Civil Service." 436 F. Supp. at 136. But this
criticism ignores the evident congressional conviction that the
country should be at great pains to assure the high quality of
those occupying positions critical to the conduct of our foreign
relations in the post-war world. [
Footnote 19] Congress plainly intended
Page 440 U. S. 102
to create a relatively small, homogeneous, and particularly able
corps of Foreign Service officers. It was thought that the tasks
performed by this corps were sufficiently demanding and important
to the Nation that it was necessary to pursue more rigorous
policies to ensure excellence than those generally applicable in
the Government. There is no selection-out system in the Civil
Service, for example; the competitive examination process is not
generally as rigorous; and there are far wider variations in the
nature of the various Civil Service positions and personnel.
Perhaps Congress will someday attempt to devise a regime such as
this one for all federal employees, but for now it has determined
to employ it only in connection with what it deems to be a few
distinctive groups such as the Foreign Service.
See also
Civil Service Reform Act of 1978, Pub.L. 9564, §§ 3(6), 401-415, 92
Stat. 1113, 1154-1179 (creating Senior Executive Service). The
judgment that the Foreign Service needs such a system more than do
many other departments is one of policy, and this kind of policy,
under our constitutional system, ordinarily is to be "fixed only by
the people acting through their elected representatives."
Firemen v. Chicago, R.I. & P. R. Co., 393 U.
S. 129,
393 U. S. 138
(1968). Since the congressional judgment to place a high value on
the proper conduct of our foreign affairs can hardly be said to be
constitutionally impermissible, it was not for the District Court
to refuse to accept it. [
Footnote 20]
Page 440 U. S. 103
III
The appellants also submit that the Foreign Service involves
extended overseas duty under difficult and often hazardous
conditions, and that the wear and tear on members of this corps is
such that there comes a time when these posts should be filled by
younger persons. Mandatory retirement, it is said, minimizes the
risk of less than superior performance
Page 440 U. S. 104
by reason of poor health or loss of vitality. In this respect,
the appellants accurately reflect the legislative record, which
without doubt articulates both the purpose of maintaining a
competent Foreign Service and the relationship of required
retirement to that goal.
As we have indicated, under the Rogers Act, retirement of
Foreign Service officers was required at 65, whereas, under the
relevant statute, the retirement age for most Civil Service
employees with sufficient length of service was 70 years of age.
Choosing the lower age for the Foreign Service was a considered
choice. [
Footnote 21] The
principal sponsor of the legislation identified the reason for
retiring Foreign Service and military officers earlier than Civil
Service employees:
"I think the analogy of the foreign service officer to the Army
officer and to the naval officer is much more complete than to the
civil service employee in Washington."
The foreign service officer is going hither and yon about the
world, giving up fixed places of abode, often rendering difficult
and hazardous service of prime importance to the United States.
"
* * * *"
"I call to the attention of the gentleman the fact that the kind
of service which these men must render involves going to the
Tropics; it involves very difficult and unsettling changes in the
mode of life. The consensus of opinion was that the country was
better off to retire them, as a general rule, at 65."
65 Cong.Rec. 7564-7565 (1924) (Rep. Rogers).
In the intervening years, the Federal Government has often
repeated the concern first raised in 1924. [
Footnote 22] Congress not only
Page 440 U. S. 105
retained the lower retirement age for Foreign Service officers
when it reorganized the Foreign Service in 1946, but it also
lowered the age to 60. In expanding the coverage of the Foreign
Service retirement system to reach others than Foreign Service
officers, Congress obviously reaffirmed its own judgment that the
system should provide a lower retirement age than in the Civil
Service system, just as it did in 1978 when it repealed the
mandatory age for the retirement of Civil Service employees but
left intact the rule for those under the Foreign Service system.
[
Footnote 23]
The District Court did not deny the legitimacy of the
Page 440 U. S. 106
legislative purpose to assure a vigorous and competent Foreign
Service, nor did it reject the proposition that the mandatory
retirement provision could rationally be deemed to serve that end.
It thus assumed that overseas duty is more demanding than stateside
duty, and that those over age 60 often are less able to face the
rigors of the Foreign Service. The District Court nevertheless
invalidated § 632 because it was deemed to discriminate against
older Foreign Service employees
vis-a-vis those older
employees in the Civil Service who serve overseas in comparable
positions for nearly as long as do Foreign Service personnel, and
yet are not forced to retire at age 60. Only a small percentage of
all United States civilians working in foreign countries for this
Government are within the scope of § 632, and, according to the
District Court, it is "patently arbitrary and irrational" to impose
the disadvantage of early retirement upon only those relatively
few.
436 F.
Supp. at 138.
Our first difficulty with this conclusion is that it ignores
what we have already pointed out -- namely, that Congress has
legislated separately for the Foreign Service and has gone to great
lengths to assure that those conducting our foreign relations will
be sufficiently competent and reliable in all respects. If Congress
attached special importance to high performance in these positions,
which it seems to us that it did, it was quite rational to avoid
the risks connected with having older employees in the Foreign
Service, but to tolerate those risks in the Civil Service. Whether
or not individual judges may agree with this assessment, it is not
for the courts to reject it.
Putting aside this rational basis for sustaining § 632, however,
the District Court was in error for other reasons in invalidating
the statute on the ground that Civil Service employees serving
overseas under similar conditions and facing comparable hardships
were not also subject to the burden of early retirement. Those
subject to § 632 compose a relatively
Page 440 U. S. 107
small group of public servants furnishing the required
professionalism in the Foreign Service. Approximately 60% of them
are serving in overseas posts at any one time. Almost all of them
are subject to assignment to such posts at any time as a condition
of their employment. [
Footnote
24] Each such person is assigned and reassigned with some
regularity, and each spends a substantial portion of his career
overseas. Even accepting the District Court's judgment that some
Civil Service employees serve in foreign posts under conditions as
trying as those faced by Foreign Service officers, the latter are
trained for and experienced at performing tasks in the Foreign
Service; they are not freely interchangeable with Civil Service
employees. It would thus appear sensible that the Government would
take steps to assure itself that not just some, but all, members of
the Service have the capability of rendering superior performance
and satisfying all of the conditions of the Service.
The same is not true of the Civil Service. Only approximately 5%
of these employees serve overseas at any one time, and foreign duty
is in the main a voluntary matter. [
Footnote 25] We
Page 440 U. S. 108
are unwilling to hold that, if Congress deems early retirement a
useful device to maintain the quality of the Foreign Service, it
may nevertheless not adopt it without insisting on the same
retirement age for all Civil Service employees, or at least for
those Civil Service employees who choose to seek a career in
overseas service. In order to staff the overseas Civil Service
positions with sufficiently competent persons, Congress obviously
has not thought it useful to provide for retirement at age 60. At
least to date, its judgment has been otherwise with respect to the
Foreign Service, and that judgment is not invalid as a denial of
equal protection.
Even if the classification involved here is to some extent both
underinclusive and overinclusive, and hence the line drawn by
Congress imperfect, it is nevertheless the rule that, in a case
like this, "perfection is by no means required."
Phillips
Chemical Co. v. Dumas School Dist., 361 U.
S. 376,
361 U. S. 385
(1960);
accord, San Antonio School Dist. v. Rodriguez,
411 U. S. 1,
411 U. S. 51
(1973). The provision "does not offend the Constitution simply
because the classification
is not made with mathematical
nicety. . . .'" Dandridge v. Williams, 397 U.
S. 471, 397 U. S. 485
(1970), quoting Lindsley v. Natural Carbonic Gas Co.,
220 U. S. 61,
220 U. S. 78
(1911). [Footnote 26] If
increasing age brings with it increasing susceptibility to physical
difficulties, as the District Court was apparently willing to
assume, the fact that individual Foreign Service employees may be
able to perform past age 60 does not invalidate § 632 any more than
did the similar truth undercut compulsory retirement at age 50 for
uniformed state police in Murgia. Because Congress desired
to maintain the competence of the Foreign Service, the mandatory
retirement age of 60 rationally furthers
Page 440 U. S. 109
its legitimate objective, and it makes no difference that some
Foreign Service personnel may not be subject to the rigors of
overseas service or that some Civil Service employees serve in
various hardship positions in foreign lands.
We accept such imperfection because it is, in turn, rationally
related to the secondary objective of legislative convenience. The
Foreign Service retirement system and the Civil Service retirement
system are packages of benefits, requirements, and restrictions
serving many different purposes. When Congress decided to include
groups of employees within one system or the other, it made its
judgments in light of those amalgamations of factors. Congress was
entitled to conclude that certain groups of employees share more
characteristics with Foreign Service officers than with Civil
Service personnel, even though not serving for as long in as
important overseas posts, and that other employees share more
characteristics with Civil Service personnel than with Foreign
Service officers, even though serving some time in some overseas
positions. Congress chose not to examine exactly which individual
employees are likely to serve long enough in important enough
positions in demanding enough locales to warrant mandatory early
retirement. Rather than abandoning its primary end completely, or
unnecessarily including all federal employees within the means, it
drew a line around those groups of employees it thought most
generally pertinent to its objective. Whether we, or the District
Court, think Congress was unwise in not choosing a means more
precisely related to its primary purpose is irrelevant.
Califano v. Jobst, 434 U. S. 47,
434 U. S. 56-58
(177);
New Orleans v. Dukes, 427 U.
S. 297,
427 U. S. 303
(1976).
IV
Despite all this, appellees urge us to affirm the judgment on a
basis not relied upon by the District Court: that the mandatory
retirement age of 60 has no relation to the objective of reliable
service in important foreign posts, because
Page 440 U. S. 110
overseas conditions often are not, in fact, more taxing than
those in the United States, and because arriving at 60 has an
insufficient relationship to reduced physical and mental potential.
[
Footnote 27]
Appellees rely in particular on the posture of the case --
cross-motions for summary judgment. They point out that their
affidavits state that many overseas posts are as comfortable and
safe as any in the United States; that many Foreign Service
personnel under 60 have health problems; that employees just under
the mandatory retirement age fill their fair share of hardship
posts; and that age is not related to susceptibility to certain
diseases and ailments commonly linked to life overseas.
Appellees seem to believe that appellants had to have current
empirical proof that health and energy tend to decline somewhat by
age 60, and had to offer such proof for the District Court's
perusal before the statute could be sustained. [
Footnote 28] Such evidence, of course,
would argue powerfully for sustaining the statute,
see
Murgia, 427 U.S. at
427 U. S.
314-315, n. 7. But this case, as equal protection cases
recurringly do, involves a legislative classification contained in
a statute. In ordinary civil litigation, the question frequently is
which party has
Page 440 U. S. 111
shown that a disputed historical fact is more likely than not to
be true. In an equal protection case of this type, however, those
challenging the legislative judgment must convince the court that
the legislative facts on which the classification is apparently
based could not reasonably be conceived to be true by the
governmental decisionmaker.
Lindsley v. Natural Carbonic Gas
Co., 220 U.S. at
220 U. S. 78-79;
accord, Schilb v. Kuebel, 404 U.
S. 357,
404 U. S. 364
(1971);
United States v. Maryland Savings-Share Ins.
Corp., 400 U. S. 4,
400 U. S. 6
(1970);
see McGinnis v. Royster, 410 U.
S. 263,
410 U. S. 274
(1973) (finding that the legislature "could have concluded
rationally that" certain facts were true);
Williamson v. Lee
Optical Co., 348 U. S. 483,
348 U. S. 487
(1955). As we have said in a slightly different context:
"The District Court's responsibility for making 'findings of
fact' certainly does not authorize it to resolve conflicts in the
evidence against the legislature's conclusion, or even to reject
the legislative judgment on the basis that without convincing
statistics in the record to support it, the legislative viewpoint
constitutes nothing more than what the District Court in this case
said was 'pure speculation.'"
Firemen v. Chicago, R. I. & P. R. Co., 393 U.S. at
393 U. S.
138-139.
Consequently, appellees were required to demonstrate that
Congress has no reasonable basis for believing that conditions
overseas generally are more demanding than conditions in the United
States and that, at age 60 or before, many persons begin something
of a decline in mental and physical reliability. Appellees have not
satisfied these requirements. They say that many overseas posts are
as pleasant as those in the United States, and that many people
over age 60 are healthy, and many younger people are not. [
Footnote 29] But they admit that
age
Page 440 U. S. 112
does, in fact, take its toll, and that Congress could perhaps
have rationally chosen age 70 as the cutoff. Brief for Appellees
76-77;
see Tr. of Oral Arg. 21-24, 27. And we have noted
the common sense proposition that aging -- almost by definition --
inevitably wears us all down. [
Footnote 30]
Murgia, supra at
427 U. S. 315.
All appellees can say to this is that "[i]t can be reasonably
argued that, given modern societal facts," those between age 60 and
70 are as reliable as those under age 60. Brief for Appellees 76.
But it is the very admission that the facts are arguable that
immunizes from constitutional attack the congressional judgment
represented by this statute:
"It makes no difference that the facts may be disputed or their
effect opposed by argument and opinion of serious strength. It is
not within the competency of the courts to arbitrate in such
contrariety."
Rast v. Van Deman & Lewis Co., 240 U.
S. 342,
240 U. S. 357
(1916).
For these reasons, the judgment appealed from must be
reversed.
So ordered.
[
Footnote 1]
Concern with assuring equal protection was part of the fabric of
our Constitution even before the Fourteenth Amendment expressed it
most directly in applying it to the States.
See
Cong.Globe, 39th Cong., 1st Sess., 2510 (1866) (Rep. Miller) (all
of § 1 of the Fourteenth Amendment is already within the spirit of
the Declaration of Independence);
id. at 2459 (Rep.
Stevens) (requirement of equal protection is part of Constitution,
but is not applicable to the States);
id. at 1034 (Rep.
Bingham, speaking of his original proposal for an equal protection
clause) ("[e]very word of the proposed amendment is today in the
Constitution"). Accordingly, the Court has held that the Due
Process Clause of the Fifth Amendment forbids the Federal
Government to deny equal protection of the laws.
E.g., Hampton
v. Mow Sun Wong, 426 U. S. 88 100
(1976);
Buckley v. Valeo, 424 U. S.
1,
424 U. S. 93
(1976);
Weinberger v. Wiesenfeld, 420 U.
S. 636,
420 U. S. 638
n. 2 (1975);
Bolling v. Sharpe, 347 U.
S. 497,
347 U. S. 500
(1954)
[
Footnote 2]
Appellees also urged in the District Court that the mandatory
retirement age violated the Age Discrimination in Employment Act of
1967, 29 U.S.C. § 633a, an Executive Order, and Civil Service
regulations. A single District Judge rejected these
nonconstitutional claims,
Bradley v.
Kissinger, 418 F. Supp.
64 (DC 1976), and no appeal was taken. Appellees abandoned
their other nonconstitutional claims.
See 436 F. Supp. at
135 n. 1.
[
Footnote 3]
Participation in the system is defined by 22 U.S.C. § 1063.
Recently, an average of 44 employees per year have been mandatorily
retired.
[
Footnote 4]
§ 16, 82 Stat. 814.
[
Footnote 5]
§§ 501(a), 522(a)-(c), 90 Stat. 834, 846-847.
See also
§ 31(b), 74 Stat. 838 (including those with 10 years of continuous
service).
[
Footnote 6]
82 Stat. 812.
[
Footnote 7]
§ 16, 87 Stat. 722-723.
[
Footnote 8]
Age Discrimination in Employment Act Amendments of 1978, § 5(c),
92 Stat.191.
[
Footnote 9]
5 U.S.C. § 8335, which was repealed by the Age Discrimination in
Employment Act Amendments of 1978, § 5(c), 92 Stat.191.
[
Footnote 10]
Since the age factor is present in both groups, the gravamen of
appellees' claim, as it developed, was that § 632 discriminates on
the basis of job classification. The District Court originally
stated in a footnote that, besides the distinction between Foreign
Service and Civil Service personnel, appellees "also claim section
632 discriminates between those who have reached age sixty and
those who are younger." In response to appellants' complaint that
no such issue was in the case, appellees
"stressed that [they were] eschewing any such claim in this case
and claiming only that Foreign Service employees were being forced
to retire without a rational basis at an earlier age than
government employees generally."
Plaintiffs' Memorandum of Points and Authorities in Response to
Defendants' Motion for Reconsideration 4 (July 21, 1977). The
District Court accepted appellees' invitation to remove from its
opinion the sentence and accompanying discussion, expressly finding
that the contention had been abandoned. Order of July 28, 1977.
See also Plaintiffs' Memorandum of Points and Authorities
in Opposition to Defendants' Motion to Dismiss or, in the
Alternative, for Summary Judgment 4 (Nov. 24, 1976); Brief for
Appellees 77; Tr. of Oral Arg. 20-22, 24.
[
Footnote 11]
E.g., San Antonio School Dist. v. Rodriguez,
411 U. S. 1,
411 U. S. 40
(1973).
[
Footnote 12]
Congress' recent action with respect to mandatory retirement
ages shows that the political system is working.
See
440 U. S. 8,
supra, and accompanying text. Indeed, the House preserved
the Foreign Service provision, at least for the time being, to
allow the appropriate international relations committee to study
the issue. 123 Cong.Rec. 30556 (1977).
[
Footnote 13]
The Senate Report's general discussion of the Act is identical
to that of the House Report.
Cf. S.Rep. No. 1731, 79th
Cong., 2d Sess., 1-10 (1946).
[
Footnote 14]
Accord, H.R.Rep. No. 229, 84th Cong., 1st Sess., 2
(1955) (emphasizing the career concept); 101 Cong.Rec. 3554 (1955)
(Rep. Richards) ("The Foreign Service is a career service that a
man enters at the bottom and works his way up. When the Committee
on Foreign Affairs wrote the Foreign Service Act of 1946 which the
Congress adopted, that principle was stressed"). Even when it
occasionally found it necessary to make lateral entry easier,
Congress emphasized that it still preferred to have "expansion take
place over a period of years by the admission to the Foreign
Service of applicants in the lower classifications." S.Rep. No.
127, 84th Cong., 1st Sess., 8 (1955);
accord, id. at 10
(statement of Deputy Under Secretary of State Henderson) (State
Department would also prefer to have entrance be through the junior
level); Hearings before the House Committee on Foreign Affairs on
H.R. 4941, 84th Cong., 1st Sess., 45 (1955) (Rep. Williams)
(recognizing policy of "entry at the bottom and working up on the
merit basis").
[
Footnote 15]
Of those now subject to § 632, only Foreign Service Staff
officers and employees are not also subject to selection out. Staff
personnel covered by § 632, however, are expected to be career
employees, and thus it is rational to presume for them as well that
mandatory retirement would create room at the top and have the
resulting ripple effect down through the ranks.
[
Footnote 16]
Congress later created an even higher category of "career
ambassadors." Pub.L. 250, §§ 9, 69 Stat. 537.
[
Footnote 17]
Congress, in 1955, made class 1 officers subject to the
selection-out process as well, § 7, 69 Stat. 25-26, but nothing in
the legislative history of that amendment indicates any reversal of
the position that most of the involuntary vacancies in the higher
ranks would have to be through mandatory retirement.
[
Footnote 18]
As Congress described the system,
"[m]ost separations should occur near the top (for age or
through voluntary retirement) or at the bottom, while the number of
men selected out in the middle classes and at middle ages would be
limited."
H.R.Rep. No. 2508, 79th Cong., 2d Sess., 90 (1946).
[
Footnote 19]
See 65 Cong.Rec. 7567565 (1924) (remarks of Rep. Rogers
quoted in text,
infra at
440 U. S. 104)
(Foreign Service positions are often "of prime importance to the
United States"); 101 Cong.Rec. 3562 (1955) (Rep. Judd) ("The first
responsibility of a good government is to safeguard the security of
the nation. The first line of defense in achieving this first
objective . . . is our diplomatic corps and those who direct and
back it up in the Department of State");
id. at 3560 (Rep.
Bentley) ("Because of the duties and responsibilities they
undertake, because of the services they render to American
individuals and American business interests, because of their vital
role in the conduct of our foreign policy, we in the Congress
should demand that the service be attractive enough to get the
highest type of American men and women into its ranks");
id. at 3559 (Rep. Vorys) (Foreign Service must compete
successfully with other Government agencies and private businesses
to get the best persons to serve overseas). When Congress added to
the Foreign Service retirement system certain personnel in what is
now the International Communication Agency, it found that those
employees are involved in a "vital activity," and should be subject
"to the same stringent judgment of performance as Foreign Service
officers." 22 U.S.C. §§ 1223(a) and (e).
[
Footnote 20]
Appellees also argue that, however desirable it is to create
promotion opportunities, it is arbitrary to impose the burden only
on those over age 60. It would be better, they say, to make the
selection-out standards more demanding or in some other way to
avoid the retirement of those who are over 60 but quite able to
perform. Even were it not irrelevant to the equal protection
analysis appropriate here that other alternatives might achieve
approximately the same results, the compulsory retirement age
assures room at the top at a predictable time; those in the ranks
know that it will not be an intolerable time before they will have
the opportunity to compete for maximum responsibility.
In designing this unified personnel scheme in 1946, Congress
presumed that those in the highest classes would be close to or
over age 60, H.R.Rep. No. 2508,
supra, n 18, at 91, that those in the next two
highest categories would be between 45 and 55,
id. at 92,
and that those in the next two ranks down would be quite young.
Id. at 93. These presumptions are hardly irrational in a
system designed with the intention that most personnel would begin
their professional careers at the bottom of the Service and move
upward with time.
See id. at 5;
n 14,
supra. Thus, those who have reached age
60 are likely to have achieved the top ranks of the Service, and
their departures usually will have a domino effect creating
opportunities at each lower level.
Moreover, appellees have not shown that their alternative would
be any less arbitrary than they think the present system is. As
Congress recognized, selection out works best at the lower ranks
where differences in merit are the greatest.
See H.R.Rep.
No. 229,
supra, n
14, at 12. At the top ranks, where the officers have all been
selected up a number of times, it is increasingly difficult to try
to draw fine distinctions between persons who may all be extremely
competent. And because Congress decided to grant annuities to those
in the upper categories who are selected out after having dedicated
much of their lives to the service, it found that
"the system should be administered to reduce to a minimum the
number of separations of middle-aged men, not only because of the
hardship on them, but because of the expense to the
Government."
H.R.Rep. No. 2508,
supra, n 18, at 92.
[
Footnote 21]
Congress expressly rejected setting the Foreign Service
retirement age at the same level as for Civil Service personnel. 65
Cong.Rec. 7586 (1924).
[
Footnote 22]
E.g., S.Rep. No. 168, 77th Cong., 1st Sess., 2 (1941),
and H.R.Rep. No. 389, 77th Cong., 1st Sess., 3 (1941) (reprinting
letter from Secretary of State Hull) ("experience has shown that
the continued strain of 30 years or more of service representing
this Government in foreign countries in widely different climates
and environments makes it desirable both from the standpoint of the
Government and of officers that retirements should be authorized by
law, commencing at a minimum of 50 years of age"); Fifth Report of
the Committee on Retirement Policy for Federal Personnel, S.Doc.
No. 89, 83d Cong., 2d Sess., pt. 5, pp. 280-281 (1954) (employees
consider that "Foreign Service as compared with service in the
United States has many disadvantages"); Appendix to the Report to
the President by the Cabinet Committee on Federal Staff Retirement
Systems, S.Doc. No. 14, 90th Cong., 1st Sess., 112 (1967) ("The
mandatory retirement age of 60 is set in recognition of the need to
maintain the Foreign Service as a corps of highly qualified
individuals with the necessary physical stamina and intellectual
vitality to perform effectively at any of some 300 posts throughout
the world including those in isolated, primitive, or dangerous
areas").
When Congress included career staff in the retirement system, it
found that the same concern applies to them:
"The Foreign Service retirement system is designed to give
recognition to the need for earlier retirement age for career
Foreign Service personnel who spend the majority of their working
years outside the United States adjusting to new working and living
conditions every few years. Staff personnel who serve for any
length of time are subject to the same conditions."
H.R.Rep. No. 2104, 86th Cong., 2d Sess., 31 (1960).
[
Footnote 23]
Of course, nothing in the Constitution, or in this opinion,
limits Congress in reversing its judgment on this score or in
determining that other competing policies are more important.
[
Footnote 24]
Not only must these employees constantly be available for
foreign duty, but also Foreign Service officers are required by law
to spend most of their careers overseas. 22 U.S.C. § 961(a). Most,
but not all, of the employees subject to mandatory retirement at
age 60 are subject to this latter requirement. The reason for the
incomplete correlation is that not all those who are participants
in the Foreign Service retirement system, 22 U.S.C. § 1063, are
also defined as "officer[s] or employee[s] of the Service" by §
961(a).
See also 22 U.S.C. § 937 (assignment of staff
officers and employees). When Congress first provided for the
integration of certain Civil Service employees of the State
Department into the Foreign Service, it did so specifically to
increase "the number of officers available for assignment overseas.
. . ." S.Rep. No. 127,
supra, n 14, at 2.
[
Footnote 25]
The District Court was able to state with assurance only that a
relative handful of these Civil Service personnel -- employees of
the Foreign Agricultural Service -- remain overseas for nearly as
long as do Foreign Service officers. 436 F. Supp. at 137. Many of
the overseas Civil Service employees work for the military and have
a statutorily guaranteed right of return to posts in the United
States. 10 U.S.C. § 1586.
[
Footnote 26]
"[T]he demand for perfection must inevitably compromise with the
hard facts of political life." Tussman & tenBroek, The Equal
Protection of the Laws, 37 Calif.L.Rev. 341, 350 (1949).
[
Footnote 27]
This latter ground amounts to a contention that there is no
justification for discriminating between Foreign Service employees
over 60 and those under that age. Indeed, when pressed in oral
argument, appellees stated that as an entirely separate theory. Tr.
of Oral Arg. 27-29. But as noted earlier,
n 10,
supra, the District Court found that
appellees had abandoned any claim of this kind. Appellees have not
informed us of any reason to believe that the District Court erred
in that regard, and we are unable to discern one. In any event, as
indicated in the text, we find no merit in the contention that
Congress could not conclude that age involves increased risks of
less than superior performance in overseas assignments. We note
also that the argument is unresponsive to the justification for §
632 canvassed in
440 U. S.
[
Footnote 28]
"The State is not compelled to verify logical assumptions with
statistical evidence."
Hughes v. Alexandria Scrap Corp.,
426 U. S. 794,
426 U. S. 812
(1976).
[
Footnote 29]
Congress allows appellants to retain individual employees for up
to five years beyond retirement age if that is determined "to be in
the public interest," 22 U.S.C. § 1002, thus eliminating some of
the overinclusiveness. It also has provided for mandatory early
retirement due to medical disability, which mitigates
underinclusiveness.
[
Footnote 30]
The biennial physical examinations relied upon by the dissent,
post, at
440 U. S. 122,
do not remove the risk of unexpected health problems undercutting
reliability in the interim.
MR JUSTICE MARSHALL, dissenting.
The Court today finds a rational basis for the forced retirement
of Foreign Service personnel at age 60, on a record devoid of
evidence that persons of that age or older are less capable of
performing their jobs than younger employees. I adhere to my view
in
Massachusetts Bd. of Retirement v. Murgia, 427 U.
S. 307,
427 U. S.
317-327 (1976) (MARSHALL, J., dissenting), that
mandatory retirement provisions warrant more than this minimal
level of equal protection review. Because
Page 440 U. S. 113
I believe that the statute at issue here cannot withstand closer
scrutiny, I respectfully dissent.
I
A person's interest in continued Government employment, although
not "fundamental" as the law now stands, certainly ranks among the
most important of his personal concerns that Government action
would be likely to affect.
Id. at
427 U. S.
322-323;
cf. Arnett v. Kennedy, 416 U.
S. 134 (1974);
Board of Regents v. Roth,
408 U. S. 564,
408 U. S. 572
(1972);
Smith v. Texas, 233 U. S. 630,
233 U. S. 636,
641 (1914). This interest is of special significance to older
employees, because
"[o]nce terminated, the elderly cannot readily find alternative
employment. The lack of work is not only economically damaging, but
emotionally and physically draining. Deprived of his status in the
community and of the opportunity for meaningful activity, fearful
of becoming dependent on others for his support, and lonely in his
new-found isolation, the involuntarily retired person is
susceptible to physical and emotional ailments as a direct
consequence of his enforced idleness. Ample clinical evidence
supports the conclusion that mandatory retirement poses a direct
threat to the health and life expectancy of the retired person. . .
."
Massachusetts Bd. of Retirement v. Murgia, supra at
427 U. S. 323
(footnote omitted). When legislative action affects individual
interests of such dimension, a heightened level of judicial
scrutiny is appropriate.
In addition, mandatory retirement provisions warrant careful
judicial attention because of the class on which the deprivation is
imposed. To be sure, the elderly are not a "discrete and insular
minorit[y],"
United States v. Carolene Products Co.,
304 U. S. 144,
304 U. S. 153
n. 4 (1938) [
Footnote 2/1] in need
of
Page 440 U. S. 114
"extraordinary protection from the majoritarian political
process."
San Antonio School Dist. v. Rodriguez,
411 U. S. 1,
411 U. S. 28
(1973). But they have suffered from discrimination based upon
generalizations that are inaccurate for many, if not most, of the
age group affected.
See Report of the Secretary of Labor
to the Congress on Age Discrimination in Employment Under Section
715 of the Civil Rights Act of 1964, The Older American Worker 8
(1965) (hereinafter Labor Report); 113 Cong.Rec. 34742 (1967)
(remarks of Rep. Burke); H.R.Rep. No. 95-527, pt. 1, p. 2 (1977);
Note, The Cost of Growing Old: Business Necessity and the Age
Discrimination in Employment Act, 88 Yale L.J. 565, 576-577 (1979),
and sources cited therein. Such generalizations stigmatize the aged
as physically and mentally deficient, regardless of their
individual capabilities.
Cf. House Select Committee on
Aging, Mandatory Retirement: The Social and Human Cot of Enforced
Idleness, 95th Cong., 1st Sess., 35, 37 (Comm. Print 1977)
(hereafter House Select Committee on Aging); C. Edelman & I.
Siegler, Federal Age Discrimination in Employment Law 15-17 (1978)
(hereafter Edelman & Siegler). Particularly in the area of
employment, significant deprivations have been imposed on the basis
of these stereotypes,
see 29 U.S.C. § 621(a); Labor Report
18-19; Note, The Age Discrimination in Employment Act of 1967, 90
Harv.L.Rev. 380, 380-381, 383 (1976). [
Footnote 2/2]
Page 440 U. S. 115
Considering the importance of the interests at stake and the
prevalence of discrimination against the aged, I cannot agree that
the glancing oversight of the rational basis test fulfills our
obligation to ensure that all persons receive the equal protection
of the laws. I would require proof that the Foreign Service's
mandatory retirement scheme "serves important governmental
objectives and [is] substantially related to achievement of those
objectives."
Califano v. Webster, 430 U.
S. 313,
430 U. S.
316-317 (1977);
Craig v. Boren, 429 U.
S. 190,
429 U. S. 197
(1976);
Massachusetts Bd. of Retirement v. Murgia, 427
U.S. at 325 (MARSHALL, J., dissenting). Measured by this standard,
the Foreign Service's mandatory retirement provisions must
fall.
II
Before applying this intermediate standard, it is first
necessary to determine the nature of the classifications that the
statute delimits. In this case, there are two. The statutory scheme
distinguishes between civil servants and Foreign Service personnel,
and between Foreign Service employees under 60 and those 60 or
over. Appellees unequivocally claimed in this Court that the latter
distinction was unconstitutional,
see Brief for Appellees
76-78; Tr. of Oral Arg. 26-28, as the Court seems to concede,
ante at
440 U. S.
109-110, and n. 27. Nonetheless the Court summarily
dismisses this claim, finding that appellees
Page 440 U. S. 116
abandoned it below after the judgment of the District Court had
issued.
By limiting its consideration of the classifications at issue,
the majority has evaded the more difficult question in this case.
This Court has repeatedly held that a
"prevailing party may . . . assert in a reviewing court any
ground in support of his judgment, whether or not that ground was
relied upon or even considered by the trial court."
Dandridge v. Williams, 397 U.
S. 471,
397 U. S. 475
n. 6 (1970);
accord, California Bankers Assn. v. Shultz,
416 U. S. 21,
416 U. S. 71
(1974);
Langnes v. Green, 282 U.
S. 531,
282 U. S.
538-539 (1931);
United States v. American Railway
Express Co., 265 U. S. 425,
265 U. S. 435
(1924). [
Footnote 2/3] The judgment
of the District Court was that § 632 of the Foreign Service Act of
1946, 22 U.S.C. § 1002, "violates the equal protection guarantees
embodied in the Fifth Amendment." App. to Juris.Statement 9A.
Appellees' contention that the statute discriminates against
persons aged 60 and over patently is a ground for affirming that
judgment. Whether appellees previously abandoned the issue is
irrelevant, since the purported abandonment came after the District
Court had granted summary judgment. Because the Government had the
opportunity to present evidence on the issue, it could in no way be
prejudiced by its resurrection here. Thus, the claim is properly
before us.
III
Undoubtedly, an important objective of the Foreign Service
retirement system is to assure the "professional competence"
Page 440 U. S. 117
of the Foreign Service corps.
See ante at
440 U. S. 97.
The Court finds that mandatory retirement at age 60 is rationally
related to this objective in two ways. In the Court's view, the
physical and psychological difficulties that Foreign Service
personnel face as a result of frequent overseas assignments impair
their performance at an earlier age than most persons including, it
seems, civil servants exposed to much the same conditions. Hence,
the majority concludes, Congress could reasonably have determined
that 60-year-olds would lack the vitality necessary to perform
their jobs competently. The Court also finds that the early
retirement age creates "room at the top," thereby ensuring a
predictable supply of promotion opportunities for younger
employees. Such opportunities, it is said, are necessary to "spur
morale and stimulate superior performance in the ranks."
Ante at
440 U. S. 98. A
fair reading of the record before us, however, reveals no
substantial relationship between the mandatory retirement system
and the articulated objective of the statutory scheme.
A
In my judgment, appellees have successfully challenged the
Government's central premise that the pressures of transient
Foreign Service life diminish the capacity of older employees to
perform their jobs. There is nothing inherent in any of the
positions that appellees hold to indicate that early retirement is
necessary to ensure excellence. Foreign Service officers in the
State Department engage in economic and political research, visa or
other consular work, negotiations with representatives of foreign
governments, personnel recruitment and management, and other
administrative functions.
See United States Dept. of State
and International Communication Agency, Foreign Service Officer
Careers 4-8 (1978). Officers in the International Communication
Agency lecture and perform cultural and other informational duties,
as well as administrative and personnel management functions.
Id.
Page 440 U. S. 118
at 10. The Agency for International Development (AID) employs
economists, financial analysts, staff attorneys, auditors, and
accountants in providing economic and technical assistance to other
countries. U.S. Civil Service Comm'n, Federal Jobs Overseas 10-11
(1975). The mandatory retirement provisions in addition cover
Foreign Service staff personnel who perform technical,
administrative, clerical, or custodial work.
See H.R.Rep.
No. 2104, 86th Cong.,2d Sess., 15 (1960). [
Footnote 2/4]
That older workers could effectively perform such Foreign
Service jobs is also suggested by the lack of an early mandatory
retirement provision for civil servants who spend much of their
careers abroad doing work similar to that of Foreign Service
personnel. Of the over 58,000 American civilians in Government
positions overseas in 1976, only the 4,787 Foreign Service
personnel faced mandatory retirement at age 60.
436 F.
Supp. 134, 136 (DC 1977). Moreover, discrete segments of this
workforce, such as the Agriculture Department's Foreign Service,
spend almost as much of their tenure overseas as do members of the
State Department's Foreign Service.
Id. at 137. The Court
discounts these figures because it finds that the need for
excellence in the Foreign Service may be more compelling than in
the Civil Service.
Ante at
440 U. S. 106.
However, almost 40% of the Americans working overseas for Foreign
Service agencies are civil servants who are not subject to forced
retirement, and AID often has its work performed on a contract
basis by other agencies that do not have mandatory retirement
provisions. 436 F.Supp. at 136-137;
see § 5, 92 Stat.191.
Despite this broad experience with older workers in
Page 440 U. S. 119
analogous situations, the Government submitted no evidence that
it has encountered age-related problems in connection with these or
other civil servants aged 60 and over.
Appellees, on the other hand, introduced a substantial amount of
medical testimony dispelling any adverse correlation between job
performance and advancing age, and offered to introduce more. For
example, the former chief psychiatrist for the Peace Corps stated
flatly that "inability to perform work satisfactorily under
stressful conditions in overseas cultures has no relationship to
advancing age." Affidavit of Dr. J. English 2.
See also
Affidavit of Dr. D. Kessler; Affidavit of T. Fox. [
Footnote 2/5] Similarly, appellees have pointed to
a variety of studies indicating that older workers may be
more competent than younger ones in the types of jobs
involved in this case. The House Report accompanying the recent
amendments to the Age Discrimination in Employment Act, H.R.Rep.
No. 927, pt. 1, p. 4 (1977), noted:
"Testimony to the committee cited the results of various
research findings which indicate that older workers were as good or
better than their younger coworkers with regard to dependability,
judgment, work quality, work volume, human relations, and
absenteeism; and older workers were shown to have fewer accidents
on the job. As Congressman Pepper stated before our committee:"
"The Labor Department's finding that there is more variation in
work ability within the same age group than between age groups
justifies judging workers on competency, not age."
(Footnote omitted.)
Page 440 U. S. 120
The House Select Committee on Aging 34 also observed:
"Studies by the Department of Labor, the late Ross McFarland of
the Harvard School of Public Health, the National Council on the
Aging, and many other experts in the field indicate that older
workers can produce a quality and quantity of work equal or
superior to younger workers, that they have as good, and usually
better, attendance records as younger workers, that they are as
capable of learning new skills and adapting to changing
circumstances when properly presented as younger workers, and that
they are generally more satisfied with their jobs than younger
workers."
See also Report of the Secretary of Labor to the
Congress Under Section 715 of the Civil Rights Act of 1964:
Research Materials 86 (1965); Edelman & Siegler 27-31; Note, 88
Yale L.J. at 576-577, and sources cited therein.
The Court closes its eyes to appellees' evidence against the
mandatory retirement provision and excuses the Government from
producing evidence in support of it because Congress determined
that the nomadic life of Foreign Service personnel would take its
toll by the age of 60. This determination, the Court concludes,
rested on the "common sense proposition that aging -- almost by
definition -- inevitably wears us all down."
Ante at
440 U. S. 112.
[
Footnote 2/6] The issue, however,
is not whether persons
Page 440 U. S. 121
between age 60 and 70 "wear down," but whether they are
competent Foreign Service personnel. Absent any concrete evidence
in the record that they are less able, or, indeed, any indication
that Congress even considered such information when it enacted the
statute,
see n 6,
supra, the Court is remitted to unsubstantiated
assumptions concerning the competency of older workers for
white-collar jobs.
With respect to sex discrimination, we have refused to accept
"
overbroad' generalizations" about the characteristics of a
particular class as substantial support for a legislative
classification. See Califano v. Goldfarb, 430 U.
S. 199, 430 U. S. 211
(1977) (plurality opinion); Craig v. Boren, 429 U.S. at
429 U. S.
198-199; Stanton v. Stanton, 421 U. S.
7 (1975); Frontiero v. Richardson, 411 U.
S. 677 (173). I believe the same rule should apply here.
See supra at 440 U. S.
113-115. While age, unlike sex, is at some point likely
to bear a relationship to ability, I would require a showing that a
substantial relationship does, in fact, exist. Thus, to the extent
that Congress in § 632 viewed age as predictive of a decline in
competence, this Court should not simply assume the correlation,
but should inquire whether age is a sufficiently accurate predictor
to justify the significant deprivations imposed by forced
retirement. See Craig v. Boren, supra at 429 U. S.
201-202. [Footnote 2/7]
Since appellees
Page 440 U. S. 122
have adduced considerable evidence demonstrating the absence of
any correlation, and the Government has presented no evidence to
the contrary, the record simply does not support the Court's
result.
Not only is mandatory retirement an insufficiently accurate
predictor of competence, it is also an unnecessary one. As the
Foreign Service personnel system now operates, persons who do not
measure up to Service standards are selected out, or terminated,
after an annual review.
Ante at
440 U. S. 99.
Further, all Foreign Service employees are given biennial medical
examinations, as well as special examinations when necessary, and
are subject to medical selection out if they are not fit for duty.
See Record 20. Under this scheme, then, the continued
competence of appellants' personnel is periodically assessed. With
such individualized procedures already in effect, the Government
cannot realistically claim that prohibiting resort to age-based
generalizations would jeopardize the quality of the Foreign
Service.
Cf. United States Dept. of Agriculture v. Murry,
413 U. S. 508,
413 U. S.
518-519 (1973) (MARSHALL, J., concurring);
Craig v.
Boren, supra at
429 U. S.
199.
B
The other ground on which the Court upholds mandatory retirement
is its function of
"stimulating the highest performance in the ranks of the Foreign
Service by assuring that opportunities for promotion would be
available despite limits on the number of personnel classes and on
the number of positions in the
Page 440 U. S. 123
Service. Aiming at superior achievement can hardly be
characterized as illegitimate, and it is equally untenable to
suggest that providing promotion opportunities through the
selection-out process and through early retirement does not play an
acceptable role in the process."
Ante at
440 U. S. 101.
This justification, it seems to me, would legitimate any retirement
system in which there are a limited number of high-level positions.
Indeed, the Court acknowledges as much when it deems the rationale
equally applicable to Foreign Service staff personnel, who were not
designated by Congress as an elite cadre, but who are nonetheless
subject to the mandatory retirement provisions.
Ante at
440 U. S.
99-100, n. 15. The fundamental flaw in this analysis is
that the Court ends, rather than begins, its inquiry by
articulating the legislative goal of a competent Foreign Service.
See Trimble v. Gordon, 430 U. S. 762,
430 U. S. 769
(1977). The question that the majority fails to pursue is whether,
on balance, mandatory retirement at 60 substantially furthers this
goal.
The answer is not readily apparent, for even if mandatory
retirement does ensure promotional opportunities for younger
employees, it also deprives the Service of the talents of persons
who it has admitted are, at least at the time of their retirement,
"its best officers." S.Doc. No. 14, 90th Cong., 1st Sess., 118
(1967). In the absence of any evidence that employees aged 60 and
over are less able, or that forced retirement does, in fact, boost
productivity by enhancing recruitment and promotional
opportunities, this proffered justification does not withstand
analysis.
Moreover, appellees note that most Foreign Service officers,
prompted by the generous pension benefits offered by the Service,
retire well before the age of 60.
See Record 20. The
experience of the Civil Service and private employers suggests that
this pattern would not change significantly were the mandatory
retirement age raised.
See U.S. Civil Service
Page 440 U. S. 124
Comm'n, Federal Fringe Benefit Facts 117, 22 (1977); Retirement
Age Policies: Hearing before the House Select Committee on Aging,
9th Cong., 1st Sess., pt. 1, p. 30 (1977). [
Footnote 2/8] Thus, it cannot be assumed that, absent §
632, many Foreign Service personnel would stay on to "clog the
promotional stream" for younger persons, particularly since those
who remain would still be subject to selection out for health
reasons, poor performance, or nonpromotion.
IV
I do not disagree, of course, that Congress could legitimately
take "great pains to assure the high quality of those occupying
positions critical to the conduct of our foreign relations in the
post-war world."
Ante at
440 U. S. 101.
Nor do I contend that this Court should substitute its judgment for
that of the Congress or the Foreign Service on the appropriate
retirement system for Foreign Service personnel. I submit, however,
that it is the function of this Court to assess constitutional
challenges to that system on the record before us. Appellees
presented substantial evidence that the mandatory retirement
provision has not accomplished the purposes for which it was
designed. The Government failed to establish otherwise. Where
individuals' livelihood, self-esteem, and dignity are so critically
affected, I do not believe the Government should be relieved of
that responsibility.
Accordingly, I dissent.
[
Footnote 2/1]
The class is not "discrete and insular," because all of us may
someday belong to it, and voters may be reluctant to impose
deprivations that they themselves could eventually have to bear.
However, the time lag between when the deprivations are imposed and
when their effects are felt may diminish the efficacy of this
political safeguard.
See L. Tribe, American Constitutional
Law 1077 n. 3 (1978). The safeguard is also inadequate where, as
here, the deprivation affects only a small and distinct segment of
the workforce, of which few legislators or voters will ever be a
part. Thus, the elderly should receive an extra measure of judicial
protection from majoritarian political processes in circumstances
such as those presented here.
[
Footnote 2/2]
In its statement of findings and purpose for the Age
Discrimination in Employment Act of 1967, 81 Stat. 602, 29 U.S.C. §
621(a), Congress noted that:
"(1) in the face of rising productivity and affluence, older
workers find themselves disadvantaged in their efforts to retain
employment, and especially to regain employment when displaced from
jobs;"
"(2) the setting of arbitrary age limits regardless of potential
for job performance has become a common practice, and certain
otherwise desirable practices may work to the disadvantage of older
persons;"
"(3) the incidence of unemployment, especially long-term
unemployment with resultant deterioration of skill, morale, and
employer acceptability is, relative to the younger ages, high among
older workers; their numbers are great and growing; and their
employment problems grave. . . ."
[
Footnote 2/3]
This rule does not apply where accepting the ground advanced for
affirmance would result in greater relief than was granted below.
See FEA v. Algonquin SNG, Inc., 426 U.
S. 548,
426 U. S. 560
n. 11 (1976);
United States v. Raines, 362 U. S.
17,
362 U. S. 27 n.
7 (1960). The Court quite correctly does not rely on such a
possibility here, as appellees claim only that their evidence
establishes the impermissibility of mandatory retirement before age
70, and seek no greater relief than was granted below. Brief for
Appellees 76; Tr. of Oral Arg. 23-24.
[
Footnote 2/4]
The jobs at issue in this case certainly involve nothing
equivalent to the "stress functions" performed by the police
officers in
Massachusetts Bd. of Retirement v. Murgia,
427 U. S. 307,
427 U. S. 3
(1976). The officers there were required,
inter alia, to
control prison and civil disorders, respond to emergencies and
natural disasters, and apprehend criminal suspects.
Id. at
427 U. S.
310.
[
Footnote 2/5]
In addition, a pulmonary specialist testified for appellees:
"While some loss of pulmonary function occurs with age, such
loss does not ordinarily advance to the pathological stage where it
interferes with the ability to work and otherwise function.
Certainly, such normal loss would not impair the ability of an
individual to work effectively between the ages of sixty and
seventy."
Affidavit of Dr. A. Munzer 2.
[
Footnote 2/6]
It may in fact be overstatement to refer to a "[c]ongressional
determination" on this issue. The only express evidence that
Congress predicated early mandatory retirement on this theory came
during the 1924 debates on the Foreign Service Act, when one
Congressman noted the hardships of the transient life and of
service in the Tropics. 65 Cong.Rec. 7565. The focus of the debate,
however, was on the need for better salaries and retirement
provisions in order to attract qualified persons into the Service.
And since modes of travel as well as conditions in the Tropics and
elsewhere overseas obviously have changed considerably since 1924,
reliance on this legislative justification is misplaced.
Cf.
United States v. Carolene Products Co., 304 U.
S. 144,
304 U. S. 153
(1938).
When Congress extended the Foreign Service retirement system to
staff personnel, it cited the frequent adjustments that the jobs
required. However, it did so in the context of recommending that
staff personnel be able to enjoy the "advantages" of the retirement
system, H.R. Rep. No. 2104, 86th Cong., 2d Sess., 31 (1960), that
is, that they be
permitted to retire at an early age if
they so desired. Thus, the 1960 legislative history nowhere
reflects an assessment of the competence of these personnel to
perform their jobs.
Given the staleness of the only express congressional
"determination" before us, and Congress' failure subsequently to
focus on the issue, one may question the appropriateness of the
extraordinary deference the Court here affords to congressional
factfinding.
See ante at
440 U. S.
109-112.
[
Footnote 2/7]
The Court implies that there is a "close fit" here because it
appears
"sensible that the Government would take steps to assure itself
that not just some, but
all, members of the Service have
the capability of rendering superior performance and satisfying all
of the conditions of the Service."
Ante at
440 U. S. 107.
Significantly, however, the majority adverts to no evidence
suggesting that Congress intended mandatory retirement to serve
that objective. In any event, as the Court concedes,
ante
at
440 U. S. 108,
the statute is both overinclusive and underinclusive with respect
to this goal. And, as demonstrated
infra this page, the
Government has available other more precise means to assure
professional competence and physical ability.
[
Footnote 2/8]
In fact, the Chairman of the Civil Service Commission testified
recently:
"Insofar as the general Federal workforce is concerned, the
removal of the mandatory age 70 provision should have little effect
on recruiting younger people. Our experience in recent years has
been one of high turnover at the senior levels due to early
retirement."
H.R. Rep. No. 95-527, pt. 1, p. 3 (1977).