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[?]venience of the public. This excep-[?]n would apply, for example, to airline [?]ots within the jurisdiction of the Fed-[?]l Aviation Agency. Federal Aviation [?]ency regulations do not permit air-[?]e pilots to engage in carrier opera-[?]ns, as pilots, after they reach age 60. [?]e) A bona fide occupational qualifica-[?]n will also be recognized in certain [?]ecial, individual occupational circum-[?]nces, e.g., actors required for youthful [?]elderly characterizations or roles, and persons used to advertise or promote the (?) of products designed for, and (?) to appeal exclusively to, either youthful or elderly consumers.

(?).103 Differentiations based on rea-sonable factors other than age.

(a) Section 4(f) (1) of the Act provides that "It shall not be unlawful for an employer, employment agency, or labor organization *** to take any action otherwise prohibited under subsections (?), (b), (c), or (e) of this section *** (?) the differentiation is based on reasonable factors other than age; ***" (b) No precise and unequivocal de-terminationcan can be made as to the scope (?) the phrase "differentiation based on reasonable factors other than age." (?) such differentiations exist must decide on the basis of all the par-ticular facts and circumstances sur-ounding each individual situation.
(c) It should be kept in mind that it is not the purpose or intent of Congress enacting this Act to require the em-(?) of anyone, regardless of age, (?) is disqualified on grounds other than (?) from performing a particular job. (?) clear purpose is to insure that age, (?) the limits prescribed by the Act, (?) a determining factor in making any decision regarding hiring, dismissal, (?) or any other term, condition (?) privilege of employment of an indi-vidual. 

(d) The reasonableness of a differenti-ation will be determined on an individual, case by case basis, not on the basis of any general or class concept, with unusual working conditions given weight acccording to their individual merit.

(e) Further, in accord with a long chain of decisions of the Supreme Court of the United States with respect to other remedial labor legislation, all exceptions such as this must be constructed narrowly, and the burden of proof in establishing the applicability of the exception will rest upon the employer, employment agency or labor union which seeks to invoke it.
(f) Where the particular facts and circumstances in individual situations warrant such a conclusion, the follow-ing factors are among those which may be recognized as supporting a differenti-ation based on reasonable factors other than age.
(1)(1) Physical fitness requirements based upon preemployment or periodic physical examinations relating to mini-mum standards for employment: Provided, however, That such standards are reasonably necessary for the specific work to be performed and are uniformly and equally applied to all applicants for the particular job category, regardless of age.
(ii) Thus, a differentiation based on a physical examination, but not one based on age, may be recognized as reasonable in certain job situations which necessitate stringent physical requirements due to inherent occupational factors such as the safety of the individual employees or of other persons in their charge, or those occupations which by nature are particularly hazardous: For example, iron workers, bridge builders, sandhogs, underwater demolition men, and other similar job classifications which require rapid reflexes or a high degree of speed, coordination, dexterity, endurance, or strength.

(iii) However, a claim for a differentia-tion will not be permitted on the basis of an employer's assumption that every employee over a certain age in a par-ticular type of job usually becomes phys-ically unable to perform the duties of that job. There is medical evidence, for example, to support the contention that such is generally not the case. In many instances, an individual at age 60 may be physically capable of performing heavy-lifting on a job, whereas another individual of age 30 may be physially incapable of doing so.
(2) Evaluation factors such as quantity or quality of production, or educational level, would be acceptable bases for differentiation when, in the individ-ual case, such factors are shown to have a valid relationship to job requirements and where the criteria or personnel pol-icy establishing such factors are applied uniformly to all employees, regardless of age.
(g) The foregoing are intended only as examples of differentiations based on reasonable factors other than age, and do not constitute a complete or exhaus-tive list or limitation. It should always be kept in mind that even in situations where experience has shown that most elderly persons do not have certain qual-ifications which are essential to those who hold certain jobs, some may have them even though they have attained the age of 60 or 64, and thus discrimina-tion based on age is forbidden.
(h) It should also be made clear that a general assertion that the average cost of employing older workers as a group is higher than the average cost of em-ploying younger workers as a group will not be recognized as a differentiation under the terms and provisions of the Act, unless one of the other statutory exceptions applies. To classify or group employees solely on the basis of age for the purpose of comparing costs, or for any other purpose, necessarily rests on the assumption that the age factor alone may be used to justify a differentiation - an assumption plainly contrary to the terms of the Act and the purpose of Congress in enacting it. Differentials so based would serve only to perpetuate and promote the very discrimination at which the Act is directed.
Signed at Washington, D.C., this 18th day of June 1968.
Ben P. Robertson,
Acting Administrator
[F.R. Doc. 68-7404; Filed, June 20, 1968; 8:51 a.m.]

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