Cockpit Gray

By Michael S. Serrill

For 37 years Western Air Lines Pilot Charles Criswell had loved flying. So he was glumly anticipating his 60th birthday, the age at which Federal Aviation Administration rules required that he relinquish the flight controls. Unwilling to be knocked out of the sky so abruptly, the pilot put in to be a flight engineer, the second officer on many commercial flights who flies the plane only if the pilot and copilot are incapacitated. But Western had an age- 60 retirement rule for flight engineers too, and Criswell was grounded. Seven years ago, he and two others sued, charging that Western's rule violated the federal Age Discrimination in Employment Act, which generally forbids forced retirement before the age of 70.

In a decision that has broad implications for older workers in many occupations, the U.S. Supreme Court last week upheld the claim of Criswell and the others, ruling unanimously that employers must meet a stringent legal standard before they can institute blanket retirement rules. Being younger than 60 is not a "bona fide occupational qualification," wrote Justice John Paul Stevens, unless it can be shown that all flight engineers over that age present a safety risk or that it is "highly impractical" to make individual judgments about their health.

Western failed to pass either of those tough tests. Nearly all the major airlines have successfully employed flight engineers over 60, among them Western, which was forced to do so during Criswell's suit. And many airlines have demonstrated their ability to recertify pilots on an individual basis by continuing to employ hundreds of victims of alcoholism, heart attack and stroke. One of Western's lawyers, William John Kennedy, had argued that the age-60 rule was based on safety considerations. Predicting passengers will be at greater risk, he said bitterly, "We've been kicked in the teeth for our concerns. It will be a cold day in hell before any airlines concern themselves with senility risks."

Justice Stevens, 65, a sometime private pilot, firmly rejected the contention that the aging process made all flight engineers over 60 a hazard. "Many older American workers perform at levels equal or superior to their younger colleagues," he wrote in an unsubtle rejoinder from a member of the second oldest Supreme Court in history. Said Criswell, who at 66 is still a Western flight engineer: "By ruling unanimously, the court made very clear what it thinks of age discrimination. People constantly tell me, 'We like to see some gray hair in the cockpit.' "

Pilots, who are still bound by the FAA's age-60 rule, may now have a case to make. "If I'm safe one day before I'm 60," asks Jack Young, an involuntarily retired Eastern pilot, "how can I be unsafe one day later?" Others may ask the same question. Mandatory early-retirement rules for police, prison guards and fire fighters are now apparently subject to challenge. In fact, the high court unanimously ruled in a companion case last week that the city of Baltimore must provide new, more specific reasons for its rule that fire fighters retire at 55.

The Western and Baltimore decisions were two of a dozen handed down by the Supreme Court last week. In another significant case, the court reaffirmed that high government officials have only a qualified immunity from lawsuits; it nonetheless threw out a suit against Nixon Attorney General John Mitchell for illegal wiretapping in 1970 because the applicable law concerning national security wiretaps was not clear at the time. In a case involving two letters to the President that were brutally critical of a candidate for U.S. Attorney in North Carolina, the court held unanimously that the Constitution's guarantee of the right to "petition the Government" does not block a libel suit when such petitions are maliciously defamatory. Finally, a 6 to 2 majority upheld most of Washington State's tough 1982 antipornography law, ruling that it could ban distribution of "lascivious" material. But the state went too far when it included material that merely "incites . . . lust," wrote Justice Byron White, because lust implies only "normal, healthy sexual desires." Last week's spate of decisions left the Justices with 31 more cases to resolve as they near adjournment for the summer vacation.

With reporting by Anne Constable/Washington