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'check' pilots, test pilots and ferry pilots must fly on-line revenue flights one month out of every four, supposedly to keep their proficiency current. Since under the Federal Aviation Administration regulation a pilot over sixty, although otherwise qualified, cannot fly on-line revenue passenger flights, the extension of this policy into other pilot categories deprives a pilot over a sixty from any and all pilot positions with Respondent airline. Complainant is presently sixty-one years of age, otherwise qualified and has been so deprived solely because of his age. This policy of Respondent and the provision of the agreement incorporating the policy is in direct violation of Section 296 (3a) of the New York Human Rights Law, and are invalid therefore, unless they fall within the 'savings clause' requiring that the retirement policy or system of an employer are not merely a subterfuge to evade the purposes of said subdivisions.

The pertinent portions of Section 296 of the New York Human Rights Law provide as follows:

"Sec. 296.  Unlawful Discriminatory Practices.--1.  It shall be an unlawful discriminatory practice:

"(a) For an employer, because of age, race, creed, color, national origin or sex of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.
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"3a.  It shall be an unlawful discriminatory practice (a) For an employer or licensing agency, because an individual is between the ages of forty and sixty-five, to refuse to hire or employ or license or to bar or to terminate from employment such individual, or to discriminate against such individual in promotions, compensation or in terms, conditions or privileges of employment.
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