Prohibiting Airline Pilots From Working After The Age of 60 Constitutes Age Discrimination

The EU Court of Justice has declared that total prohibition on the right to act as an airline pilot after reaching the age of 60 constitutes age discrimination. The ruling comes in response to a complaint brought by three veteran Lufthansa pilots who were each terminated from employment once they reached 60 years of age.

According to the Court, the terminations by Lufthansa, although supported by a union contract, were contrary to established international and German legislation. The Court held that existing age discrimination standards allow pilots to remain employed as members of multi-pilot crews until at least the age of 65.

European regulations have long permitted airline pilots to fly to the age of 65, but American law limited airline pilots to the age of 60 until just a few years ago.  Following a 2006 change in the ICAO standard concerning commercial pilot age limits, the United States passed the Fair Treatment of Experienced Pilots Act, Public Law 110-135, which was signed into law on December 13, 2007. This law increased the maximum age for airline pilots in the United States to 65, which harmonized to the European standard.  The Lufthansa limit followed the prior ICAO standard which had previously been law in the United States (age 60 limit).

The age limit was compared to Council Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Occupation (27 November 2000). This EC law prohibits a variety of employment discriminations, including age discrimination. The law explains that “differences in treatment in connection with age may be justified under certain circumstances,” but imposes a burden to provide such a justification.

Lufthansa argued that the goal of the age 60 limit in the collective bargaining agreement was to promote air safety by implementing an age-limit for pilots. They argued that this justification was compatible with EU law, which promoted safety and which did not explicitly prohibit greater levels of aviation safety. The Court replied that all collective bargaining agreements must comply with the anti-discrimination principles of the European Council Directive 2000/78/EC, which prohibits unjustified age-based discrimination in the work place. The Court did stress however that Member States, when implementing the Directive, may exercise differential treatment in those limited circumstances where age plays a genuine and determining role in performing professional activities.

Although Lufthansa’s collective bargaining agreement was legitimately created in an effort to promote safety and health, the Court found it unnecessary and contradictory to the 65 year age limit that had already been fixed by EU law. The Court suggested that placing limitations on the activities of pilots under the age of 65, as opposed to a total ban on their activities, could be an appropriate means of promoting public safety and compliance to EU law.

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About Jason Dickstein
Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. He represents several aviation trade associations, including the Aviation Suppliers Association, the Aircraft Electronics Association, the Aircraft Fleet Recycling Association and the Modification and Replacement Parts Association.

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