The Age Discrimination in Employment Act (ADEA) was amended in
1978 to prohibit the mandatory retirement of a protected employee
because of his age. Concerned that its retirement policy, at least
as it applied to flight engineers, violated the ADEA, petitioner
Trans World Airlines (TWA) adopted a plan permitting any employee
in "flight engineer status" at age 60 to continue working in that
capacity. The plan, however, does not give 60-year-old captains
(pilots) the right automatically to begin training as flight
engineers. Instead, a captain may remain with the airline only if
he has been able to obtain "flight engineer status" through the
bidding procedures outlined in the collective bargaining agreement
between TWA and petitioner Air Line Pilots Association (ALPA).
These procedures require a captain, prior to his 60th birthday, to
submit a "standing bid" for the position of flight engineer. When a
vacancy occurs, it is assigned to the most senior captain with a
standing bid. If no vacancy occurs prior to his 60th birthday, or
if he lacks sufficient seniority to bid successfully for those
vacancies that do occur, the captain is retired. Under the
collective bargaining agreement, a captain displaced for any reason
besides age need not resort to the bidding procedure. For example,
a captain who is medically disabled or whose position is eliminated
due to reduced manpower may displace automatically, or "bump," a
less senior flight engineer. Respondent former TWA captains
(hereafter respondents) were retired upon reaching age 60. Each was
denied an opportunity to "bump" a less senior flight engineer. Two
of them were forced to retire before TWA adopted its new plan and
thus were denied an opportunity to become flight engineers through
the bidding procedures. The third filed a standing bid for the
position of flight engineer but no vacancies occurred prior to his
60th birthday, and he too was forced to retire. Respondents filed
an action against TWA and ALPA in Federal District Court, claiming
that TWA's transfer policy violated § 4(a)(1) of the ADEA -- which
proscribes differential treatment of older workers "with respect to
. . . [a] privileg[e] of employment" -- because, while it allowed
captains displaced for reasons
Page 469 U. S. 112
other than age to "bump" less senior flight engineers, it did
not allow the same "privilege of employment" to captains compelled
to vacate their positions upon reaching age 60. The District Court
entered summary judgment in favor of TWA and ALPA, holding that
respondents had failed to establish a
prima facie case of
age discrimination under the test set forth in
McDonnell
Douglas Corp. v. Green, 411 U. S. 792, and
that the affirmative defenses provided by § 4(f)(1) -- an employer
may take "any action otherwise prohibited" where age is a "bona
fide occupational qualification [BFOQ]" -- and § 4(f)(2) -- it is
not unlawful for an employer to adopt a "bona fide seniority
system" -- of the ADEA justified TWA's transfer policy. The Court
of Appeals reversed, holding that the
McDonnell Douglas
test was inapposite because respondents had adduced direct proof of
age discrimination; that TWA was required by § 4(a)(1) to afford
60-year-old captains the same "privilege of employment,"
i.e., "bumping" less senior flight engineers, allowed
captains disqualified for reasons other than age; that the
affirmative defenses of the ADEA did not justify TWA's
discriminatory transfer policy; and that TWA was liable for
"liquidated" or double damages under § 7(b) of the ADEA, because
its violation of the ADEA was "willful" within the meaning of that
section.
Held:
1. TWA's transfer policy denies 60-year-old captains a
"privilege of employment" on the basis of age in violation of §
4(a)(1) of the ADEA. Captains disqualified because of age are not
afforded the same "bumping" privilege as captains disqualified for
reasons other than age, but instead must resort to the bidding
procedures. While the ADEA does not require TWA to grant transfer
privileges to disqualified captains, nevertheless, if it does grant
some disqualified captains the "privilege" of "bumping" less senior
flight engineers, it may not deny the opportunity to others because
of their age. The
McDonnell Douglas test is inapplicable
where the plaintiff presents direct evidence of discrimination.
Here, there is direct evidence that the transfer method available
to a captain depends on his age. Since it allows captains
disqualified for any reason other than age to "bump" less senior
flight engineers, TWA's transfer policy is discriminatory on its
face. Pp.
469 U. S.
120-122.
2. The affirmative defenses provided by §§ 4(f)(1) and (2) do
not support the argument that TWA's discriminatory transfer policy
is justified. The BFOQ defense is meritless because age is not a
BFOQ for the position of flight engineer. Nor can TWA's policy be
viewed as part of a bona fide seniority system. A system that
includes this discriminatory transfer policy permits the forced
retirement of captains on the basis of age. Pp.
469 U. S.
122-125.
Page 469 U. S. 113
3. TWA's violation of the ADEA was not willful within the
meaning of § 7(b), and therefore respondents are not entitled to
"liquidated" or double damages. A violation is "willful" within the
meaning of § 7(b) if the employer knew its conduct was prohibited
by the ADEA or showed a "reckless disregard" for whether it was
prohibited, but not if the employer simply knew of the potential
applicability of the ADEA or that ADEA was "in the picture." The
latter broad standard would result in an award of double damages in
almost every case. TWA certainly did not "know" that its conduct
violated the ADEA. Nor can it fairly be said that the TWA adopted
its transfer policy in "reckless disregard" of the ADEA's
requirements. The record makes clear that TWA officials acted
reasonably and in good faith in attempting to determine whether
their policy would violate the ADEA. Pp.
469 U. S.
125-130.
713 F.2d 940, affirmed in part and reversed in part.
POWELL, J., delivered the opinion for a unanimous Court.
Page 469 U. S. 114
JUSTICE POWELL delivered the opinion of the Court.
Trans World Airlines, Inc. (TWA), a commercial airline, permits
captains disqualified from serving in that capacity for reasons
other than age to transfer automatically to the position of flight
engineer. In this case, we must decide whether the Age
Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as
amended, 29 U.S.C. § 621
et seq., requires the airline to
afford this same "privilege of employment" to those captains
disqualified by their age. We also must decide what constitutes a
"willful" violation of the ADEA, entitling a plaintiff to
"liquidated" or double damages.
I
A
TWA has approximately 3,000 employees who fill the three cockpit
positions on most of its flights. [
Footnote 1] The "captain" is the pilot and controls the
aircraft. He is responsible for all phases of its operation. The
"first officer" is the copilot and assists the captain. The "flight
engineer" usually monitors a side-facing instrument panel. He does
not operate the flight controls unless the captain and the first
officer become incapacitated.
In 1977, TWA and the Airline Pilots Association (ALPA) entered
into a collective bargaining agreement, under which every employee
in a cockpit position was required to retire when he reached the
age of 60. This provision for mandatory retirement was lawful under
the ADEA, as part of a "bona fide seniority system."
See United
Air Lines, Inc. v. McMann, 434 U. S. 192
(1977). On April 6, 1978, however, the Act was amended to prohibit
the mandatory retirement of a protected individual because of his
age. [
Footnote 2] TWA
officials
Page 469 U. S. 115
became concerned that the company's retirement policy, at least
as it applied to flight engineers, violated the amended ADEA.
[
Footnote 3]
On July 19, 1978, TWA announced that the amended ADEA prohibited
the forced retirement of flight engineers at age 60. The company
thus proposed a new policy, under which employees in all three
cockpit positions, upon reaching age 60, would be allowed to
continue working as flight engineers. TWA stated that it would not
implement its new policy until it "had the benefit of [ALPA's]
views." [
Footnote 4] ALPA's
views were not long in coming. The Union contended that the
collective bargaining agreement prohibited the employment of a
flight engineer after his 60th birthday, and that the proposed
change was not required by the recently amended ADEA.
Despite opposition from the Union, TWA adopted a modified
version of its proposal. [
Footnote
5] Under this plan, any employee in "flight engineer status" at
age 60 is entitled to continue
Page 469 U. S. 116
working in that capacity. The new plan, unlike the initial
proposal, does not give 60-year-old captains [
Footnote 6] the right automatically to begin
training as flight engineers. Instead, a captain may remain with
the airline only if he has been able to obtain "flight engineer
status" through the bidding procedures outlined in the collective
bargaining agreement. These procedures require a captain, prior to
his 60th birthday, to submit a "standing bid" for the position of
flight engineer. When a vacancy occurs, it is assigned to the most
senior captain with a standing bid. If no vacancy occurs prior to
his 60th birthday, or if he lacks sufficient seniority to bid
successfully for those vacancies that do occur, the captain is
retired. [
Footnote 7]
Under the collective bargaining agreement, a captain displaced
for any reason besides age need not resort to the bidding
procedures. For example, a captain unable to maintain the requisite
first-class medical certificate,
see 14 CFR § 67.13
(1984), may displace automatically, or "bump," a less senior flight
engineer. [
Footnote 8] The
medically disabled captain's ability to bump does not depend upon
the availability of a vacancy. [
Footnote 9] Similarly, a captain whose position is
eliminated due to reduced manpower needs can "bump" a less
senior
Page 469 U. S. 117
flight engineer. [
Footnote
10] Even if a captain is found to be incompetent to serve in
that capacity, he is not discharged, [
Footnote 11] but is allowed to transfer to a position as
flight engineer without resort to the bidding procedures. [
Footnote 12]
Respondents Harold Thurston, Christopher J. Clark, and Clifton
A. Parkhill, former captains for TWA, were retired upon reaching
the age of 60. Each was denied an opportunity to "bump" a less
senior flight engineer. Thurston was forced to retire on May 26,
1978, before the company adopted its new policy. Clark did not
attempt to bid because TWA had advised him that bidding would not
affect his chances of obtaining a transfer. These two captains thus
effectively were denied an opportunity to become flight engineers
through the bidding procedures. The third captain, Parkhill, did
file a standing bid for the position of flight engineer. No
vacancies occurred prior to Parkhill's 60th birthday, however, and
he too was forced to retire.
B
Thurston, Clark, and Parkhill filed this action against TWA and
ALPA in the United States District Court for the Southern District
of New York. They argued that the company's transfer policy
violated ADEA § 4(a)(1), 81 Stat. 603,
Page 469 U. S. 118
29 U.S.C. § 623(a)(1). The airline allowed captains displaced
for reasons other than age to "bump" less senior flight engineers.
Captains compelled to vacate their positions upon reaching age 60,
they claimed, should be afforded this same "privilege of
employment." The Equal Employment Opportunity Commission intervened
on behalf of 10 other age-disqualified captains who had been
discharged as a result of their inability to displace less senior
flight engineers. [
Footnote
13]
The District Court entered a summary judgment in favor of
defendants TWA and ALPA.
Air Line Pilots Assn. v. Trans World
Air Lines, 547 F.
Supp. 1221 (1982). The court held that the plaintiffs had
failed to establish a
prima facie case of age
discrimination under the test set forth in
McDonnell Douglas
Corp. v. Green, 411 U. S. 792
(1973). None could show that at the time of his transfer request a
vacancy existed for the position of flight engineer.
See
id. at
411 U. S. 802.
Furthermore, the court found that two affirmative defenses
justified the company's transfer policy. 29 U.S.C. §§ 623(f)(1) and
(f)(2). The United States Court of Appeals for the Second Circuit
reversed the District Court's judgment. 713 F.2d 940 (1983). It
found the
McDonnell Douglas formula inapposite because the
plaintiffs had adduced
direct proof of age discrimination.
Captains
Page 469 U. S. 119
disqualified for reasons other than age were allowed to "bump"
less senior flight engineers. Therefore, the company was required
by ADEA § 4(a)(1), 29 U.S.C. § 623(a)(1), to afford 60-year-old
captains this same "privilege of employment." The Court of Appeals
also held that the affirmative defenses of the ADEA did not justify
the company's discriminatory transfer policy. [
Footnote 14] 713 F.2d at 949-951. TWA was held
liable for "liquidated" or double damages because its violation of
the ADEA was found to be "willful." According to the court, an
employer's conduct is "willful" if it "knows or shows reckless
disregard for the matter of whether it conduct is prohibited by the
ADEA."
Id. at 956. Because "TWA was clearly aware of the
1978 ADEA amendments," the Court of Appeals found the respondents
entitled to double damages.
Id. at 956-957.
Page 469 U. S. 120
TWA filed a petition for a writ of certiorari in which it
challenged the Court of Appeals' holding that the transfer policy
violated the ADEA and that TWA's violation was "willful." The Union
filed a cross-petition raising only the liability issue. We granted
certiorari in both cases, and consolidated them for argument. 466
U.S. 926 (1984). We now affirm as to the violation of the ADEA, and
reverse as to the claim for double damages.
II
A
The ADEA "broadly prohibits arbitrary discrimination in the
workplace based on age."
Lorillard v. Pons, 434 U.
S. 575,
434 U. S. 577
(1978). Section 4(a)(1) of the Act proscribes differential
treatment of older workers "with respect to . . . [a] privileg[e]
of employment." 29 U.S.C. § 623(a). Under TWA's transfer policy,
60-year-old captains are denied a "privilege of employment" on the
basis of age. Captains who become disqualified from serving in that
position for reasons other than age automatically are able to
displace less senior flight engineers. Captains disqualified
because of age are not afforded this same "bumping" privilege.
Instead, they are forced to resort to the bidding procedures set
forth in the collective bargaining agreement. If there is no
vacancy prior to a bidding captain's 60th birthday, he must retire.
[
Footnote 15]
The Act does not require TWA to grant transfer privileges to
disqualified captains. Nevertheless, if TWA does grant
Page 469 U. S. 121
some disqualified captains the "privilege" of "bumping" less
senior flight engineers, it may not deny this opportunity to others
because of their age. In
Hishon v. King & Spalding,
467 U. S. 69
(1984), we held that
"[a] benefit that is part and parcel of the employment
relationship may not be doled out in a discriminatory fashion, even
if the employer would be free . . . not to provide the benefit at
all."
Id. at
467 U. S. 75.
This interpretation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000(e)
et seq., applies with equal force in
the context of age discrimination, for the substantive provisions
of the ADEA "were derived
in haec verba from Title VII."
Lorillard v. Pons, supra, at
434 U. S. 584.
[
Footnote 16]
TWA contends that the respondents failed to make out a
prima
facie case of age discrimination under
McDonnell Douglas
v. Green, 411 U. S. 792
(1973), because at the time they were retired, no flight engineer
vacancies existed. This argument fails, for the
McDonnell
Douglas test is inapplicable where the plaintiff presents
direct evidence of discrimination.
See Teamsters v. United
States, 431 U. S. 324,
431 U. S. 358,
n. 44 (1977). The shifting burdens of proof set forth in
McDonnell Douglas are designed to assure that the
"plaintiff [has] his day in court despite the unavailability of
direct evidence."
Loeb v. Textron, Inc., 600 F.2d 1003,
1014 (CA1 1979). In this case there is direct evidence that the
method of transfer available to a disqualified captain depends upon
his age. Since it allows captains who become disqualified for any
reason other than age to "bump" less senior flight engineers, TWA's
transfer policy is discriminatory on its face.
Cf. Los Angeles
Dept. of Water & Power v. Manhart, 435 U.
S. 702 (1978) (employer's policy requiring
Page 469 U. S. 122
female employees to make larger contribution to pension fund
than male employees is discriminatory on its face).
B
Although we find that TWA's transfer policy discriminates
against disqualified captains on the basis of age, our inquiry
cannot end here. Petitioners contend that the age-based transfer
policy is justified by two of the ADEA's five affirmative defenses.
Petitioners first argue that the discharge of respondents was
lawful because age is a "bona fide occupational qualification"
(BFOQ) for the position of captain. 29 U.S.C. § 623(f)(1).
Furthermore, TWA claims that its retirement policy is part of a
"bona fide seniority system," and thus exempt from the Act's
coverage. 29 U.S.C. § 623(f)(2).
Section 4(f)(1) of the ADEA provides that an employer may take
"any action otherwise prohibited" where age is a "bona fide
occupational qualification." 29 U.S.C. § 623(f)(1). In order to be
permissible under § 4(f)(1), however, the age-based discrimination
must relate to a "particular business."
Ibid. Every court
to consider the issue has assumed that the "particular business" to
which the statute refers is the job from which the protected
individual is excluded. In
Weeks v. Southern Bell Tel. &
Tel. Co., 408 F.2d 228 (CA5 1969), for example, the court
considered the Title VII claim of a female employee who, because of
her sex, had not been allowed to transfer to the position of
switchman. In deciding that the BFOQ defense was not available to
the defendant, the court considered only the job of switchman.
TWA's discriminatory transfer policy is not permissible under §
4(f)(1) because age is not a BFOQ for the "particular" position of
flight engineer. It is necessary to recognize that the airline has
two age-based policies: (i) captains are not allowed to serve in
that capacity after reaching the age of 60; and (ii)
age-disqualified captains are not given the transfer privileges
afforded captains disqualified for other reasons.
Page 469 U. S. 123
The first policy, which precludes individuals from serving as
captains, is not challenged by respondents. [
Footnote 17] The second practice does not
operate to exclude protected individuals from the position of
captain; rather it prevents qualified 60-year-olds from working as
flight engineers. Thus, it is the "particular" job of flight
engineer from which the respondents were excluded by the
discriminatory transfer policy. Because age under 60 is not a BFOQ
for the position of flight engineer, [
Footnote 18] the age-based discrimination at issue in
this case cannot be justified by § 4(f)(1).
TWA nevertheless contends that its BFOQ argument is supported by
the legislative history of the amendments to the ADEA. In 1978,
Congress amended ADEA § 4(f)(2), 29 U.S.C. § 623(f)(2), to prohibit
the involuntary retirement of protected individuals on the basis of
age. Some Members of Congress were concerned that this amendment
might be construed as limiting the employer's ability to terminate
workers subject to a valid BFOQ. The Senate proposed an amendment
to § 4(f)(1) providing that an employer could establish a mandatory
retirement age where age is a BFOQ. S.Rep. No. 95-493, pp. 11, 24
(1977). In the Conference Committee, however, the proposed
amendment was withdrawn because "the [Senate] conferees agreed that
. . . [it] neither added to nor worked any change upon present
law." H.R.Conf.Rep. No. 95-950, p. 7 (1978). The House Committee
Report also indicated that an individual could be compelled to
retire from a position for which age was a BFOQ. H.R.Rep. No.
95-527, pt. 1, p. 12 (1977).
Page 469 U. S. 124
The legislative history of the 1978 Amendments does not support
petitioners' position. The history shows only that the ADEA does
not prohibit TWA from retiring all disqualified captains, including
those who are incapacitated because of age. This does not mean,
however, that TWA can make dependent upon the age of the individual
the availability of a transfer to a position for which age is not a
BFOQ. Nothing in the legislative history cited by petitioners
indicates a congressional intention to allow an employer to
discriminate against an older worker seeking to transfer to another
position, on the ground that age was a BFOQ for his former job.
TWA also contends that its discriminatory transfer policy is
lawful under the Act because it is part of a "bona fide seniority
system." 29 U.S.C. § 623(f)(2). The Court of Appeals held that the
airline's retirement policy is not mandated by the negotiated
seniority plan. We need not address this finding; any seniority
system that includes the challenged practice is not "bona fide"
under the statute. The Act provides that a seniority system may not
"require or permit" the involuntary retirement of a protected
individual because of his age.
Ibid. Although the FAA "age
60 rule" may have caused respondents' retirement, TWA's seniority
plan certainly "permitted" it within the meaning of the ADEA.
Ibid. Moreover, because captains disqualified for reasons
other than age are allowed to "bump" less senior flight engineers,
the mandatory retirement was age-based. Therefore, the "bona fide
seniority system" defense is unavailable to the petitioners.
In summary, TWA's transfer policy discriminates against
protected individuals on the basis of age, and thereby violates the
Act. The two statutory defenses raised by petitioners do not
support the argument that this discrimination is justified. The
BFOQ defense is meritless because age is not a bona fide
occupational qualification for the position of flight engineer, the
job from which the respondents were excluded. Nor can TWA's policy
be viewed as part of a bona
Page 469 U. S. 125
fide seniority system. A system that includes this
discriminatory transfer policy permits the forced retirement of
captains on the basis of age.
III
A
Section 7(b) of the ADEA, 81 Stat. 604, 29 U.S.C. § 626(b),
provides that the rights created by the Act are to be "enforced in
accordance with the powers, remedies, and procedures" of the Fair
Labor Standards Act.
See Lorillard v. Pons, 434 U.S. at
434 U. S. 579.
But the remedial provisions of the two statutes are not identical.
Congress declined to incorporate into the ADEA several FLSA
sections. Moreover, § 16(b) of the FLSA, which makes the award of
liquidated damages mandatory, is significantly qualified in ADEA §
7(b) by a proviso that a prevailing plaintiff is entitled to double
damages "only in cases of willful violations." 29 U.S.C. § 626(b).
In this case, the Court of Appeals held that TWA's violation of the
ADEA was "willful," and that the respondents therefore were
entitled to double damages. 713 F.2d at 957. We granted certiorari
to review this holding.
The legislative history of the ADEA indicates that Congress
intended for liquidated damages to be punitive in nature. The
original bill proposed by the administration incorporated § 16(a)
of the FLSA, which imposes criminal liability for a willful
violation.
See 113 Cong.Rec. 2199 (1967). Senator Javits
found "certain serious defects" in the administration bill. He
stated that "difficult problems of proof . . . would arise under a
criminal provision," and that the employer's invocation of the
Fifth Amendment might impede investigation, conciliation, and
enforcement.
Id. at 7076. Therefore, he proposed that "the
[FLSA's] criminal penalty in cases of willful violation . . . [be]
eliminated and a double damage liability substituted."
Ibid. Senator Javits argued that his proposed amendment
would "furnish an effective deterrent to willful violations [of the
ADEA],"
ibid.,
Page 469 U. S. 126
and it was incorporated into the ADEA with only minor
modification, S. 788, 90th Cong., 1st Sess. (1967).
This Court has recognized that in enacting the ADEA, "Congress
exhibited . . . a detailed knowledge of the FLSA provisions and
their judicial interpretation. . . . "
Lorillard v. Pons,
supra, at
434 U. S. 581.
The manner in which FLSA § 16(a) has been interpreted therefore is
relevant. In general, courts have found that an employer is subject
to criminal penalties under the FLSA when he
"wholly disregards the law . . . without making any reasonable
effort to determine whether the plan he is following would
constitute a violation of the law."
Nabob Oil Co. v. United States, 190 F.2d 478, 479
(CA10),
cert. denied, 342 U.S. 876 (1951);
see also
Darby v. United States, 132 F.2d 928 (CA5 1943). [
Footnote 19] This standard is
substantially in accord with the interpretation of "willful"
adopted by the Court of Appeals in interpreting the liquidated
damages provision of the ADEA. The court below stated that a
violation of the Act was "willful" if "the employer . . . knew or
showed reckless disregard for the matter of whether its conduct was
prohibited by the ADEA." 713 F.2d at 956. Given the legislative
history of the liquidated damages provision, we think the "reckless
disregard" standard is reasonable.
The definition of "willful" adopted by the above cited courts is
consistent with the manner in which this Court has interpreted the
term in other criminal and civil statutes. In
United States v.
Murdock, 290 U. S. 389
(1933), the defendant was prosecuted under the Revenue Acts of 1926
and 1928, which made it a misdemeanor for a person "willfully"
to
Page 469 U. S. 127
fail to pay the required tax. The
Murdock Court stated
that conduct was "willful" within the meaning of this criminal
statute if it was "marked by careless disregard [for] whether or
not one has the right so to act."
Id. at
290 U. S. 395.
In
United States v. Illinois Central R. Co., 303 U.
S. 239 (1938), the Court applied the
Murdock
definition of "willful" in a civil case. There, the defendant's
failure to unload a cattle car was "willful," because it showed a
disregard for the governing statute and an indifference to its
requirements. 303 U.S. at
303 U. S.
242-243. [
Footnote
20]
The respondents argue that an employer's conduct is willful if
he is "cognizant of an appreciable possibility that the employees
involved were covered by the [ADEA]." In support of their position,
the respondents cite § 6 of the Portal-to-Portal Act of 1947 (PPA),
29 U.S.C. § 255(a), which is incorporated in both the ADEA and the
FLSA. Section 6 of the PPA provides for a 2-year statute of
limitations period unless the violation is willful, in which case
the limitations period is extended to three years. 29 U.S.C. §
255(a). Several courts have held that a violation is willful within
the meaning of § 6 if the employer knew that the ADEA was "in the
picture."
See, e.g., Coleman v. Jiffy June Farms, Inc.,
458 F.2d 1139, 1142 (CA5 1971),
cert. denied, 409 U.S. 948
(1972);
EEOC v. Central Kansas Medical Center, 705 F.2d
1270, 1274 (CA10 1983). Respondents contend that the term "willful"
should be interpreted in a similar manner in applying the
liquidated damages provision of the ADEA.
We are unpersuaded by respondents' argument that a violation of
the Act is "willful" if the employer simply knew of the potential
applicability of the ADEA. Even if the "in
Page 469 U. S. 128
the picture" standard were appropriate for the statute of
limitations, the same standard should not govern a provision
dealing with liquidated damages. [
Footnote 21] More importantly, the broad standard
proposed by the respondents would result in an award of double
damages in almost every case. As employers are required to post
ADEA notices, it would be virtually impossible for an employer to
show that he was unaware of the Act and its potential
applicability. Both the legislative history and the structure of
the statute show that Congress intended a two-tiered liability
scheme. We decline to interpret the liquidated damages provision of
ADEA § 7(b) in a manner that frustrates this intent. [
Footnote 22]
B
As noted above, the Court of Appeals stated that a violation is
"willful" if "the employer either knew or showed reckless disregard
for the matter of whether its conduct was prohibited by the ADEA."
713 F.2d at 956. Although we
Page 469 U. S. 129
hold that this is an acceptable way to articulate a definition
of "willful," the court below misapplied this standard. TWA
certainly did not "know" that its conduct violated the Act. Nor can
it fairly be said that TWA adopted its transfer policy in "reckless
disregard" of the Act's requirements. The record makes clear that
TWA officials acted reasonably and in good faith in attempting to
determine whether their plan would violate the ADEA.
See Nabob
Oil Co. v. United States, supra.
Shortly after the ADEA was amended, TWA officials met with their
lawyers to determine whether the mandatory retirement policy
violated the Act. Concluding that the company's existing plan was
inconsistent with the ADEA, David Crombie, the airline's Senior
Vice President for Administration, proposed a new policy. Despite
opposition from the Union, the company adopted a modified version
of this initial proposal. Under the plan adopted on August 10,
1978, any pilot in "flight engineer status" on his 60th birthday
could continue to work for the airline. On the day the plan was
adopted, the Union filed suit against the airline claiming that the
new retirement policy constituted a "major" change in the
collective bargaining agreement, and thus was barred by § 6 of the
Railway Labor Act, 45 U.S.C. § 156. Nevertheless, TWA adhered to
its new policy.
As evidence of "willfulness," respondents point to comments made
by J. E. Frankum, the Vice President of Flight Operations. After
Crombie was hospitalized in August 1978, Frankum assumed
responsibility for bringing TWA's retirement policy into
conformance with the ADEA. Despite legal advice to the contrary,
Frankum initially believed that the company was not required to
allow any pilot over 60 to work. Frankum later abandoned this
position in favor of the plan approved on August 10, 1978. Frankum
apparently had been concerned only about whether flight engineers
could work after reaching the age of 60. There is no indication
that TWA was ever advised by counsel that its new transfer policy
discriminated against captains on the basis of age.
Page 469 U. S. 130
There simply is no evidence that TWA acted in "reckless
disregard" of the requirements of the ADEA. The airline had
obligations under the collective bargaining agreement with the
Airline Pilots Association. In an attempt to bring its retirement
policy into compliance with the ADEA, while at the same time
observing the terms of the collective bargaining agreement, TWA
sought legal advice and consulted with the Union. Despite
opposition from the Union, a plan was adopted that permitted
cockpit employees to work as "flight engineers" after reaching age
60. Apparently TWA officials and the airline's attorneys failed to
focus specifically on the effect of each aspect of the new
retirement policy for cockpit personnel. It is reasonable to
believe that the parties involved, in focusing on the larger
overall problem, simply overlooked the challenged aspect of the new
plan. [
Footnote 23] We
conclude that TWA's violation of the Act was not willful within the
meaning of § 7(b), and that respondents therefore are not entitled
to liquidated damages.
IV
The ADEA requires TWA to afford 60-year-old captains the same
transfer privileges that it gives to captains disqualified for
reasons other than age. Therefore, we affirm the Court of Appeals
on this issue. We do not agree with its holding that TWA's
violation of the Act was willful. We accordingly reverse its
judgment that respondents are entitled to liquidated or double
damages.
It is so ordered.
* Together with No. 83-1325,
Air Line Pilots Association,
International v. Thurston et al., also on certiorari to the
same court.
[
Footnote 1]
On certain long-distance flights, a fourth crew member, the
"international relief officer," is in the cockpit. On some types of
aircraft, there are only two cockpit positions.
[
Footnote 2]
Section 2(a) of the Age Discrimination in Employment Act
Amendments of 1978, Pub.L. 95-256, 92 Stat. 189, 29 U.S.C. §
623(f)(2).
[
Footnote 3]
A regulation promulgated by the Federal Aviation Administration
prohibits anyone from serving after age 60 as a pilot on a
commercial carrier. 14 CFR § 121.383(c)(1984). Captains and first
officers are considered "pilots" subject to this regulation; flight
engineers are not. Therefore, TWA officials were concerned
primarily with the effect that the 1978 amendments had on the
company's policy of mandatory retirement of flight engineers.
[
Footnote 4]
The proposal was announced in a letter to ALPA from David
Crombie, TWA's Senior Vice President for Administration.
[
Footnote 5]
On the same date that TWA implemented its new policy, ALPA filed
suit against the company. ALPA contended that TWA's action
constituted a "unilateral change in working conditions," and hence
was violative of the Railway Labor Act, 45 U.S.C. §§ 156-188. This
action,
ALPA v. Trans World Airlines, was consolidated
with the present action in the United States District Court for the
Southern District of New York. That court granted summary judgment
in favor of TWA, and the Court of Appeals for the Second Circuit
affirmed. It held that the new retirement policy did not constitute
a "major" change in the existing terms and conditions of
employment, and that the Union therefore was without a remedy in
the federal courts.
See 45 U.S.C. § 156.
[
Footnote 6]
The term "captain" will hereinafter be used to refer to both the
positions of captain and first officer.
[
Footnote 7]
In 1980, TWA imposed an additional restriction on captains
bidding for flight engineer positions. Successful bidders were
required to "fulfill their bids in a timely manner." Under this
amended practice, captains who bid successfully for positions as
flight engineers were required to "activate" their bids
immediately. As a result, many captains under age 60 were trained
for and assumed flight engineer positions, with resulting lower pay
and responsibility.
[
Footnote 8]
The pilot must be able to obtain the second-class medical
certificate that is required for the position of flight engineer.
See 14 CFR § 67.15 (1984).
[
Footnote 9]
If the disabled captain lacks sufficient seniority to displace,
he is not discharged. Rather, he is entitled to go on unpaid
medical leave for up to five years, during which time he retains
and continues to accrue seniority.
[
Footnote 10]
Only those flight engineers in the current and last former
domiciles of the displaced captain may be "bumped." If a captain
has insufficient seniority to displace a flight engineer at either
of these domiciles, he is not discharged. Instead, he is placed in
furlough status for a period of up to 10 years, during which time
he continues to accrue seniority for purposes of a recall.
[
Footnote 11]
Although the collective bargaining agreement does not address
disciplinary downgrades, TWA's Vice President of Flight Operations,
J. E. Frankum, stated that such downgrades had occurred "many times
over many years."
[
Footnote 12]
Captains disqualified for other reasons also are allowed to
"bump" less senior flight engineers. For example, the collective
bargaining agreement provides that a captain who fails to
"requalify" in that position will not be discharged.
[
Footnote 13]
Three of the EEOC claimants have settled with TWA. The remaining
seven claimants are Lusk, Bobzin, Gowling, Widmayer, Humbles,
Roquemore, and Lewis. Lusk and Bobzin were retired prior to August
10, 1978. Thus, like Harold Thurston, they had no way of knowing
that the bidding procedures of the collective bargaining agreement
would represent a possible means of transferring to the position of
flight engineer.
Gowling, Widmayer, Humbles, and Roquemore submitted standing
bids for the position of flight engineer. Because no vacancies
occurred prior to the time that they reached the age of 60, each
was discharged.
Lewis submitted a bid and was awarded a position as flight
engineer on October 31, 1979. On January 15, 1980, he was told that
he would have to "fulfill his bid in a timely manner."
See
n.
7 supra. Because
this would have required Lewis to assume his new position almost a
year prior to his 60th birthday, he refused to appear for training.
Therefore, his bid was canceled by TWA.
[
Footnote 14]
The Court of Appeals also found that ALPA had violated ADEA §
4(c), 29 U.S.C. § 623(c), which prohibits unions from causing or
attempting to cause an employer to engage in unlawful
discrimination. The court found, however, that ALPA was not liable
for damages. It held that the ADEA does not permit the recovery of
monetary damages, including backpay, against a labor organization.
It noted that the ADEA incorporates the remedial scheme of the Fair
Labor Standards Act, which does not allow actions against unions to
recover damages. 713 F.2d at 957.
In its petition for a writ of certiorari, TWA raised the issue
of a union's liability for damages under the ADEA. Although we
granted the petition in full, we now conclude that the Court is
without jurisdiction to consider this question. TWA was not the
proper party to present this question. The airline cannot assert
the right of others to recover damages against the Union.
Both the individual respondents and the EEOC argue that the
issue of union liability is properly before the Court. But the
respondents failed to file a cross-petition raising this question.
A prevailing party may advance any ground in support of a judgment
in his favor.
Dandridge v. Williams, 397 U.
S. 471,
397 U. S. 475,
n. 6 (1970). An argument that would modify the judgment, however,
cannot be presented unless a cross-petition has been filed.
FEA
v. Algonquin SNG, Inc., 126 U. S. 548,
126 U. S. 560,
n. 11 (1976). In this case, the judgment of the Court of Appeals
would be modified by the arguments advanced by the EEOC and the
individual plaintiffs, as they are contending that the Union should
be liable to them for monetary damages.
[
Footnote 15]
The discriminatory transfer policy may violate the Act even
though 83% of the 60-year-old captains were able to obtain
positions as flight engineers through the bidding procedures.
See Phillips v. Martin Marietta Corp., 400 U.
S. 542 (1971) (per curiam).
It also should be noted that many of the captains who obtained
positions as flight engineers were forced to assume that position
prior to reaching age 60.
See n.
7 supra. They were adversely affected b the
discriminatory transfer policy despite the fact that they obtained
positions as flight engineers.
[
Footnote 16]
Several Courts of Appeals have recognized the similarity between
the two statutes. In
Hodgson v. First Federal Savings &
Loan Assn., 455 F.2d 818, 820 (1972), for example, the United
States Court of Appeals for the Fifth Circuit stated that with "a
few minor exceptions the prohibitions of [the ADEA] are in terms
identical to those of Title VII of the Civil Rights Act of
1964."
[
Footnote 17]
In this litigation, the respondents have not challenged TWA's
claim that the FAA regulation establishes a BFOQ for the position
of captain. The EEOC guidelines, however, do not list the FAA's
age-60 rule as an example of a BFOQ because the EEOC wishes to
avoid any appearance that it endorses the rule. 29 CFR § 11325
(1984).
[
Footnote 18]
The petitioners do not contend that age is a BFOQ for the
position of flight engineer. Indeed, he airline has employed at
least 148 flight engineers who are over 60 years old.
[
Footnote 19]
Courts below have held that an employer's action may be
"willful," within the meaning of § 16(a) of the FLSA, even though
he did not have an evil motive or bad purpose.
See Nabob Oil
Co. v. United States. We do not agree with TWA's argument that
unless it intended to violate the Act double damages are
inappropriate under § 7(b) of the ADEA. Only one Court of Appeals
has expressed approval of this position.
See Loeb v. Textron,
Inc., 600 F.2d 1003, 1020, n. 27 (CA1 1979).
[
Footnote 20]
The definition of "willful" set forth in
Murdock and
Illinois Central has been applied by courts interpreting
numerous other criminal and civil statutes.
See, e.g., Alabama
Power Co. v. FERC, 584 F.2d 750 (CA5 1978),
F.X. Messina
Construction Corp. v. Occupational Safety & Health Review
Comm'n, 505 F.2d 701 (CA1 1974).
[
Footnote 21]
The Courts of Appeals are divided over whether Congress intended
the "willfulness" standard to be identical for determining
liquidated damages and for purposes of the limitations period.
Compare Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1113
(CA4) (standards are identical),
cert. denied, 454 U.S.
860 (1981),
with Kelly v. American Standard, Inc., 640
F.2d 974, 979 (CA9 1981) (standards are different).
[
Footnote 22]
The "in the picture" standard proposed by the respondents would
allow the recovery of liquidated damages even if the employer acted
reasonably and in complete "good faith." Congress hardly intended
such a result.
The Court interpreted the FLSA, as originally enacted, as
allowing the recovery of liquidated damages any time that there was
a violation of the Act.
See Overnight Motor Transportation Co.
v. Missel, 316 U. S. 572
(1942). In response to its dissatisfaction with that harsh
interpretation of the provision, Congress enacted the
Portal-to-Portal Act of 1947.
See Lorillard v. Pons,
434 U. S. 575,
434 U. S.
581-582, n. 8 (1978). Section 11 of the PPA, 29 U.S.C. §
260, provides the employer with a defense to a mandatory award of
liquidated damages when it can show good faith and reasonable
grounds for believing it was not in violation of the FLSA. Section
7(b) of the ADEA does not incorporate § 11 of the PPA, contra,
Hays v. Republic Steel Corp., 531 F.2d 1307 (CA5 1976).
Nevertheless, we think that the same concerns are reflected in the
proviso to § 7(b) of the ADEA.
[
Footnote 23]
In his dissent, Judge Van Graafeiland also focused on the larger
problem, rather than on the discriminatory transfer policy. Judge
Van Graafeiland stated:
"TWA is the only trunk airline that voluntarily has permitted
[persons] . . . over 60 to continue working as flight engineers.
Instead of receiving commendation for what it has done, TWA is held
liable as a matter of law for age discrimination,"
713 F.2d at 957.