Usery v. Tamiami Trail Tours, Inc.

(a)(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;

(a)(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age;

(e) * * * to print or publish, or cause to be printed or published, any notice or advertisement relating to employment by such an employer * * *, indicating any preference, limitation, specification, or discrimination, based on age.

(1) to take any action otherwise prohibited under subsection[s] (a) * * * of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age;

It may be that where an employer sustains its burden in demonstrating that it is impossible or highly impractical to deal with women on an individualized basis, it may apply a reasonable general rule.

We conclude that the principle of nondiscrimination requires that we hold that in order to rely on the bona fide occupational qualification exception an employer has the burden of proving that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved.

(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;

(4) the existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce.

. . . It is one of the anomalies, that every time we go in an employer and we say to him, "Tell us who are your most valuable employees," he will almost invariably name his older employees, the people who have been with the company for many years. But if for some reason or another, because of automation or because of change in techniques, those people are thrown out of work, the older person finds the greater difficulty in being employed. (88 Cong., Part I, Dec. 19, 1963, p. 21).

(1) To regulate common carriers by motor vehicle as provided in this part, and to that end the Commission may establish reasonable requirements with respect to continuous and adequate service, transportation of baggage and express, uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment.

. . . First and foremost in the problem of motor-vehicle safety is the driver, the man at the wheel, (Motor Carriers Safety Regulations, 1 M.C.C. 1, 7 (1936).

Safety Education.In any regulatory program, a key desired objective iswilling participation andvoluntary complianceon the part of those who are regulated. Accordingly, the Bureau of Motor Carrier Safety BMCS engages in activities designed to inform concerned parties of the intent and benefits of the safe practices required by regulation. During the year such activities as the following are regularly undertaken to acquaint all concerned with new developments:

Each known interstate motor carrier is served with a copy of the regulations. "Service" of the Motor Carrier Safety Regulations is a fundamental step in obtainingvoluntary complianceby the carriers. In FY 1971 over 7,400 carriers were provided with this "service."

Approximately 700 driver clinics were conducted throughout the country, attended by over 45,000 drivers and other carrier personnel, at which the new driver qualifications regulation was explained.

Inspection.Several activities are conducted continuously throughout the year to determine how well the safety regulations are being carried out. Information obtained from these activities is used to assist in evaluating the effect of the motor carrier safety program and, when unsafe equipment or operating conditions are found, to take remedial action. During the year the Bureau conducted the following activities:

In analyzing the standard of proof required of Pan American to establish a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise," the Fifth Circuit construed the word "necessary" in the Act to require:

[T]hat we apply a businessnecessitytest, not a businessconveniencetest. That is to say, discrimination based on sex is valid only when theessenceof the business operation would be undermined by not hiring members of one sex exclusively. (Emphasis in original.)442 F.2d at 388.

The court proceeded to characterize the essence of the normal operation of an airline stating that: "The primary function of an airline is to transport passengers safely from one point to another."442 F.2d at 388. In the court's view Pan American could not establish that the employment of male cabin attendants would have any impact on its ability to provide safe transportation and accordingly the court rejected Pan American's defense of bona fide occupational qualification. Pan American's basis for excluding male applicants, that they could not cater to the psychological needs of the passengers as adequately as females, was found to be merely "tangential to the essence of the business involved."442 F.2d at 388.

While a pleasant environment, enhanced by the obvious cosmetic effect that female stewardesses provide as well as, according to the finding of the trial court, their apparent ability to perform the non-mechanical functions of the job in a more effective manner than most men, may all be important, they are tangential to the essence of the business involved. No one has suggested that having male stewards will so seriously affect the operation of an airline as to jeopardize or even minimize its ability to provide safe transportation from one place to another.

We may assume that the question whether a clause of this kind offends against public policy is one appropriate ultimately for judicial rather than administrative resolution. But that does not mean that the courts must therefore deny themselves the enlightenment which may be had from a consideration of the relevant economic and other facts which the administrative agency charged with regulation of the transaction here involved is peculiarly well equipped to marshal and initially to evaluate.

At the outset we recognize that this is a new application of the doctrine of primary jurisdiction. But considering the broad aim of this device and the consequent flexibility of it[20] there is really nothing startling about submitting to an agency for initial decision the question of its own jurisdiction. That this ultimately is a question of law, probably one of statutory construction, is not fatal. This Court with the express approval of the Supreme Court has ordered primary jurisdiction reference of a pure question of law — the legal validity of exculpatory tariffs.[21] More recently, we have ordered reference of far-reaching legal questions of the Transportation Act and the Agricultural Marketing Act and the interplay of each,[22] just as we have done in having an initial administrative determination of the validity of a tariff as justification for action claimed to violate the antitrust laws.[23]

That that question of law happens to be one of jurisdiction does not force a different result. To the contrary, justification for judicial deferral of the jurisdictional question for initial resolution by an agency is even stronger than for a non-jurisdictional question. This is demonstrated by the many cases upholding the jurisdiction of administrative agencies to determine the coverage of their respective statutes and barring all attempts through judicial proceedings to avoid such determination.[24]

On this score, we think the case as it now comes to us calls for the exercise of primary jurisdiction by the ICC as a condition precedent to any future relief. That this leaves to the ICC initial responsibility for making fact findings and perhaps the even more decisive task of fashioning a policy which it articulates in terms of a legal standard, is no longer an argument against the power to invoke decision by the administrative agency.SouthwesternSugar and Molasses Co. v. River Terminals Corp.,1959,360 U.S. 411,79 S.Ct. 1210,3 L.Ed.2d 1334,1959AMC 1631;Far Eastern Conference v. UnitedStates,1952,342 U.S. 570,72 S.Ct. 492,96 L.Ed. 576;United States v. Western Pacific R.,1956,352 U.S. 59,77 S.Ct. 161,1 L.Ed.2d 126;United Statesv. Chesapeake and Ohio Ry.,1956,352 U.S. 77,77 S.Ct. 172,1 L.Ed.2d 140. And see our recent decision,Louisville Nashville R. v. Knox HomesCorp.,5 Cir., 1965,343 F.2d 887, which points out that in several of these cases the reference to the ICC was of a question of transportation law, not just the interpretation of obscure tariffs.

this Court has given full voice to this device. And in nearly every instance where we order it, it ought first to have been ordered by the trial Court. Thus, contrary to the suggestion of appellants that as Judges we are in as good a position to read Tariff No. 132 as the FCC, we sent a tariff construction problem to the ICC inLouisville N.R.R. v. KnoxHomes Corp.,5 Cir., 1965,343 F.2d 887. There it was tariffese which created the problem. Here it is largely technological consideration as to the equipment, apparatus, etc., reasonably within the tariff's description. InRiver Terminals Corp. v.Southwestern Sugar Molasses Co.,5 Cir., 1958,253 F.2d 922, aff'd, 1959,360 U.S. 411,79 S.Ct. 1210,3 L.Ed.2d 1334, we ordered reference to the ICC of a serious problem of law under published tariffs. And inAgricultural Transp. Ass'n v. King,5 Cir., 1965,349 F.2d 873, we sent to the ICC for initial determination the serious and far-reaching question of law concerning the interpretation and application of the Transportation Act and the interplay of the Agricultural Marketing Act,12 U.S.C.A. § 1141et seq.

To administer, execute, and enforce all provisions of this chapter (Part II of the Interstate Commerce Act relating to Motor Carriers), to make all necessary orders in connection therewith, and to prescribe rules, regulations, and procedure for such administration;

For the purpose of carrying out the provisions pertaining to safety, the Commission may avail itself of the assistance of any of the several research agencies of the Federal Government having special knowledge of any such matter, to conduct such scientific and technical researches, investigations, and tests as may be necessary to promote the safety of operation and equipment of motor vehicles as provided in this chapter; the Commission may transfer to such agency or agencies such funds as may be necessary and available to make this provision effective.

"[A]djudicative facts are the facts about the parties and their activities, businesses, and properties. Adjudicative facts usually answer the questions of who did what, where, when, how, why, with what motive or intent; adjudicative facts are roughly the kind of facts that go to a jury in a jury case. Legislative facts do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion."

Facts pertaining to the parties and their businesses and activities, that is, adjudicative facts, are intrinsically the kind of facts that ordinarily ought not to be determined without giving the parties a chance to know and to meet any evidence that may be unfavorable to them, that is, without providing the parties an opportunity for trial. The reason is that the parties know more about the facts concerning themselves and their activities than anyone else is likely to know, and the parties are therefore in an especially good position to rebut or explain evidence that bears upon adjudicative facts. Yet people who are not necessarily parties, frequently the agencies and their staffs, may often be the masters of legislative facts. Because the parties may often have little or nothing to contribute to the development of legislative facts, the method of trial often is not required for the determination of disputed issues about legislative facts. Davis, Administrative Law, 3rd Ed., 1972, p. 160.

"A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

"As proposed, Article II was restricted by subdivision (a) to "adjudicative" facts, as contrasted with "legislative" facts. The import of both terms was discussed in the Advisory Committee's note, but the Subcommittee nonetheless felt that the distinction was not clear and would breed litigation. The Subcommittee also felt that differing treatment for the two types of facts was unjustified. Accordingly, subdivision (a) was deleted."

Clearly, in all aspects of the agency's activities, including the decision of particular cases, we want the advantages of specialization and expertness to the extent that the agency and its staff are able to supply them. We want the appraisal of the evidence to be guided by experience, not limited to literal words of witnesses. We want both understanding and knowledge to influence the exercise of judgment or discretion. To the maximum extent that the agency is able to do so within its proper budgetary restrictions, we want the agency to make its policy choices on the basis of facts, facts, and more facts. The wisdom we seek is made up of multifarious ingredients that often defy identification and usually defy separation from other ingredients — knowledge of specific facts, understanding of general facts, prior experience in trying to solve similar problems, scientific information, mental processes such as logic or reasoning, mental processes such as appraising or estimating or guessing, formulation and application of notions about policy, imagination or inventiveness, intuition, controlled emotional reactions. Davis, Administrative Law Treatise, Ch. 15, p. 341-342 (1958).