Germany enacted the General Equal Treatment Act more than six months ago, but the feared onslaught of discrimination lawsuits has not occurred. Nor have there been many cases of “Equal Treatment Act hopping,” where persons actively look for employment ads that are not in line with the new law solely for the purpose of collecting damages from that company, with no real intent to work for that company. The fact that neither came to fruition is the direct result of employers having for the most part quickly adapted themselves to the requirements of the General Equal Treatment Act.

One case that did gain a fair amount of publicity was a decision rendered by the Frankfurt Labor Court on March 15, 2007. n Lufthansa Pilots File a Discr imination Lawsuit Three pilots at Germany’s national airline, Lufthansa, filed an action arguing that the provision of the collective bargaining agreement prohibiting pilots from flying once they turn 60 was illegal, as this was age discrimination. The Frankfurt Labor Court dismissed the pilots’ action. The court ruled that the provision in the collective bargaining agreement was reasonable. According to the court, the age limit of 60 was established for a legitimate purpose, i.e., to ensure that pilots could withstand the rigors of flying commercial planes; this could no longer be guaranteed once a pilot turned 60. Though the complete court opinion has not yet been published, there has been plenty of discussion as to whether the court’s holding was correct.

 Critical Views

The General Equal Treatment Act does permit different treatment of employees, but only as long as such different treatment is the result of reasonable job requirements and the means to reach the end are reasonable. The General Equal Treatment Act specifically sets forth when different treatment based on age is permissible: first, if such different treatment is reasonable from an objective point of view and, second, the end to be achieved is justified. As discussed in the article “Principles of Age Discrimination” in this issue of German Labor and Employment News, the statute includes a nonexhaustive list of situations that could satisfy these requirements.

The classic example is an actor’s role – a child’s part cannot be played by a 70-year-old. As evidenced by the Lufthansa case, most cases are, unfortunately, not that clear.

To analyze the Lufthansa decision, it is necessary to determine whether a pilot’s age alone is an appropriate criterion for determining whether someone is qualified to be a pilot. To answer this in the affirmative would mean that no other criteria would be appropriate or that there are no other means to reach the goal of ensuring safety in the air.

The Lufthansa pilots have already announced that they plan to appeal the case. Using the above analysis, it would seem that the pilots have a reasonably good chance of winning on appeal. Why is this so? Very simply, it is not accurate to say that a pilot automatically loses his ability to fly safely once he turns 60. There are 65-year-old pilots who can fly extremely well and safely and satisfy all of the other rigors of being a commercial pilot, just as there are 55-year-old pilots who can no longer ensure the necessary level of safety. Whether a pilot is still qualified to fly a commercial plane needs to be determined on a case-by-case basis. Age alone is not an appropriate test.

Under the General Equal Treatment Act, only objective criteria – which are not based purely on age – may be considered to determine whether a pilot may be required to retire.

For example, requiring pilots to undergo regular physical and mental tests serves as a suitable basis for determining whether a pilot is still qualified to fly.

Not only does the collective bargaining agreement clause seem to be in violation of the General Equal Treatment Act, but it is also overreaching in that it does not permit any exceptions. A pilot does not have the opportunity to rebut the “presumption” that he is no longer qualified to fly. It would be preferable for the collective bargaining agreement to include a provision that would permit a pilot to demonstrate that he is, in fact, still qualified to fly despite having turned 60. Another alternative would be to require senior pilots to undergo physical and mental tests at shorter intervals than their younger counterparts, to ensure that they still have the requisite skills and stamina to fly a commercial airline safel