A coalition of the U.S. senior airline pilots are challenging the new federal law that allows veteran pilots to continue flying commercial transports until they reach 65.
The Senior Pilots Coalition charges that the Fair Treatment for Experienced Pilots Act, enacted in late 2007, discriminates on age, and they want the federal legislation repealed.
While the Fair Treatment for Experienced Pilots Act allows pilots and flight officers to remain in the cockpit beyond their 60th birthdays, the legislation, as a concession to the Air Line Pilots Association (ALPA), was crafted to discourage pilots already forced to retire, but not yet 65, from returning to the airline workforce.
While not barring their re-employment, the law stipulates that they would have to return stripped of their seniority, meaning lower pay and a drop in schedule, route and vacation bidding as compared to where they were before being grounded. The law says commercial transport pilots who turned 60 prior to Dec. 13, 2007 must be treated as a new hire.
Aside from that provision, the Senior Pilots Coalition takes issue with other aspects of the act, including a requirement that at least one pilot on the flight deck be less than 60 years old.
Jonathan Turley, a law professor at the George Washington University Law School, who is representing the Senior Pilots Coalition, says “The Fair Treatment for Experienced Pilots Act will be challenged on a variety of grounds. Due to poor drafting and clearly unconstitutional components, the law, signed into law on December 13, 2007, presents something of a target-rich environment. Pilots will seek declaratory and injunctive relief. If successful, the law will be declared null and void.
“It denies meaningful relief to our clients. The new law is poorly written and expressly denies carriers the right to treat older pilots fairly, even countermanding prior contractual positions between pilots and their companies
“In my view, the law can be challenged in federal court on a number of grounds, including but not limited to the violation of the Equal Protection Clause, the Due Process Clause, Bill of Attainder Clause, the Takings Clause, and the interference with the right to contract.
“While the Congress is increasingly bestowing immunity on favored parties, this bill is different. It effectively destroys the past seniority of pilots, negates their contractual understandings, and even binds companies in their ability to deal fairly with pilots … Obviously, the best outcome would be a legislative fix.
“The first step, however, is to seek judicial relief. If legislative relief comes, it would be welcomed. Otherwise, we can seek our remedies from the courts,” he stated.
U.S. President Bush signed the bill to raise the mandatory retirement age for commercial pilots to 65, allowing senior pilots to fly an additional five years. The U.S. Senate and House of Representatives had unanimously approved the measure.
The Fair Treatment for Experienced Pilots Act lets pilots fly until they reach 65, provided they pass medical tests taken twice a year. It also mandates that air carriers perform additional proficiency checks on pilots over 60, such as line checks every six months. The pilots must also continue to take training and qualification programs.
Pilot groups who lobbied for the change estimate that 150-210 pilots a month are forced to retire when they reach their 60th birthday.
Although grounded commercial transport pilots have fought over the past decade to regain access to the flight deck, it was not until after the International Civil Aviation Organization (ICAO) two year ago allowed pilots to fly until they reach 65 that momentum built quickly to change the rule in the United States. Following ICAO’s lead, international flights would require at least one pilot under age 60. Since 1959, the FAA had required that all U.S. pilots stop flying commercial airplanes at age 60.
Canada is also wrestling with age discrimination charges as related to commercial airline pilots. This past August, The Canadian Human Rights Tribunal (CHRT) recognized the right for Air Canada pilots to negotiate a fixed age of retirement for its members.
“The vast majority of our members support, and benefit from, this provision in our collective agreement,” says Air Canada Pilots’ Association (ACPA) President Capt. Andy Wilson. “We are pleased that the Tribunal has recognized the right of Air Canada pilots to freely negotiate a fixed retirement age.”
In its decision, CHRT stated that 60 is the normal retirement age for pilots who fly regularly scheduled, international flights with a major international airlines .The decision also stated that retirement at age 60 is neither discriminatory nor contrary to the Charter of Rights and Freedoms.
The tribunal’s decision was in response to a complaint filed by two former Air Canada pilots who claimed that retirement at 60 was discriminatory. At a hearings in early 2007, the ACPA and Air Canada argued in favor of maintaining the current retirement age, which is strongly favored by the majority of pilots. Air Canada pilots voted by a 3:1 margin in April 2006 to uphold the retirement age at 60.