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Questions have also been raised with respect to the legality of imposing upper age limits below age 65 when a safety factor is involved. This problem had been raised, at the time the legislation was enacted, with respect to rules set by regulatory agencies for public safety. Since the Act became effective, a question was raised with respect to regulations of the Federal Aviation Administration which do not permit airline pilots to engage in carrier operations, as pilots, after they reach age 60. The Department of Labor has taken the position that Federal regulatory requirements which provide for compulsory retirement without reference to an individual's actual physical condition will be recognized as constituting a bona fide occupational qualification when such conditions or qualifications are clearly imposed for the safety and convenience of the public and therefore not a violation of the spirit of letter of the ADEA.

Consideration was also given to the desirability of eliminating age limits. Of the 26 States and Puerto Rico which have laws relating to age discrimination, five set no age limits - Alaska, Hawaii, Illinois, Nebraska, and Maine. An examination of the legislative history makes clear, however, that the Federal statute was designed to do more than just bar discrimination because of age. It was designed to make clear that the hiring and promotion of the older worker must be based on ability and not on age. As Congressman Carl Perkins, Chairman of the House Committee on Education and Labor, stated: 

"H.R. 13054, a bill to bar arbirary discrimination in employment based on age, in fact is more than a bill to bar age discrimination. It is a bill to promote employment of middle aged and older persons based on their ability. We do not undertake to tackle the whole problem of age discrimination in employment in this bill, but we feel that we strike at the heart of the situtation, that is, attacking discriminatory practices between ages 40 and 65 where discrimination is most prevalent. In this bill wee require a clear and unequivocal statement of public policy supported by an extensive research and educational effort and backed up by civil enforcement procedures."
(Congressional Record, December 4, 1967, P. H16164.)

The age limits presently included in the statute encompass approximately half of all persons 25 years of age or older and almost three-fifths of the labor force 25 years of age or older. Any broadening of the age span might limit the effectiveness of the statute in promoting the interests of the older worker. Changes in the age limits would therefore seem to be inappropriate.