author: Justice Stevens

text:
    WESTERN AIR LINES, INC. v. CRISWELL et al.
    No. 83-1545.
    Argued January 14, 1985
    Decided June 17, 1985

      Stevens, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the decision of the case.

      Gordon Dean Booth, Jr., argued the cause for petitioner. With him on the briefs were William H. Boice, Joseph W. Dorn, and Wm. John Kennedy.

      Raymond C. Fay argued the cause for respondents. With him on the brief were Alan M. Serwer and Susan D. Goland.

      Deputy Solicitor General Wallace argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Solicitor General Lee, Harriet S. Shapiro, Johnny J. Butler, and Philip B. Sklover

       Briefs of amici curiae urging reversal were filed for the Air Line Pilots Association, International, by Michael E. Abram and Jay P. Levy-Warren; for American Airlines, Inc., by Richard A. Malahowski; for Delta Air Lines, Inc., by James W. Callison, Robert S. Harkey, and Thomas J. Kassin; for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, and Thomas R. Bagby; for Pan American World Airways, Inc., by Robert S. Venning; and for Trans World Airlines, Inc., by Henry J. Oechler, Jr., Donald I. Strauber, and Peter N. Hillman.

      Briefs of amici curiae urging affirmance were filed for the American Association of Retired Persons by Alfred Miller and Harry P. Cohen; for the American Civil Liberties Union et al. by Susan Deller Ross; and for the Flight Engineers International Association, American Airlines Chapter, AFL-CIO, by Asher Schwartz and David Rosen.

        Howard C. Eglit filed a brief for the National Council on the Aging, Inc., et al. as amici curiae.

   Justice Stevens

delivered the opinion of the Court.

The petitioner, Western Air Lines, Inc., requires that its flight engineers retire at age 60. Although the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §§621-634, generally prohibits mandatory retirement before age 70, the Act provides an exception “where age is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business.” A jury concluded that Western’s mandatory retirement rule did not qualify as a BFOQ even though it purportedly was adopted for safety reasons. The question here is whether the jury was properly instructed on the elements of the BFOQ defense.

I

In its commercial airline operations, Western operates a variety of aircraft, including the Boeing 727 and the McDonnell-Douglas DC-10. These aircraft require three crew members in the cockpit: a captain, a first officer, and a flight engineer. “The ‘captain’ is the pilot and controls the aircraft. He is responsible for all phases of its operation. The ‘first officer’ is the copilot and assists the captain. The ‘flight engineer’ usually monitors a side-facing instrument panel. He does not operate the flight controls unless the captain and the first officer become incapacitated.” Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 114 (1985).

A regulation of the Federal Aviation Administration (FAA) prohibits any person from serving as a pilot or first officer on a commercial flight “if that person has reached his 60th birthday.” 14 CFR § 121.383(c) (1985). The FAA has justified the retention of mandatory retirement for pilots on the theory that “incapacitating medical events” and “adverse psychological, emotional, and physicial changes” occur as a consequence of aging. “The inability to detect or predict with precision an individual’s risk of sudden or subtle incapacitation, in the face of known age-related risks, counsels against relaxation of the rule.” 49 Fed. Reg. 14695 (1984). See also 24 Fed. Reg. 9776 (1959).

At the same time, the FAA has refused to establish a mandatory retirement age for flight engineers. “While a flight engineer has important duties which contribute to the safe operation of the airplane, he or she may not assume the responsibilities of the pilot in command.” 49 Fed. Reg., at 14694. Moreover, available statistics establish that flight engineers have rarely been a contributing cause or factor in commercial aircraft “accidents” or “incidents.” Ibid.

In 1978, respondents Criswell and Starley were captains operating DC-10s for Western. Both men celebrated their 60th birthdays in July 1978. Under the collective-bargaining agreement in effect between Western and the union, cockpit crew members could obtain open positions by bidding in order of seniority. In order to avoid mandatory retirement under the FAA’s under-age-60 rule for pilots, Criswell and Starley applied for reassignment as flight engineers. Western denied both requests, ostensibly on the ground that both employees were members of the company’s retirement plan which required all crew members to retire at age 60. For the same reason, respondent Ron, a career flight engineer, was also retired in 1978 after his 60th birthday.

Mandatory retirement provisions similar to those contained in Western’s pension plan had previously been upheld under the ADEA. United Air Lines, Inc. v. McMann, 434 U. S. 192 (1977). As originally enacted in 1967, the Act provided an exception to its general proscription of age discrimination for any actions undertaken “to observe the terms of a. . . bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this Act.” In April 1978, however, Congress amended the statute to prohibit employee benefit plans from requiring the involuntary retirement of any employee because of age.

Criswell, Starley, and Ron brought this action against Western contending that the under-age-60 qualification for the position of flight engineer violated the ADEA. In the District Court, Western defended, in part, on the theory that the age-60 rule is a BFOQ “reasonably necessary” to the safe operation of the airline. All parties submitted evidence concerning the nature of the flight engineer’s tasks, the physiological and psychological traits required to perform them, and the availability of those traits among persons over age 60.

As the District Court summarized, the evidence at trial established that the flight engineer’s “normal duties are less critical to the safety of flight than those of a pilot.” 514 F. Supp. 384, 390 (CD Cal. 1981). The flight engineer, however, does have critical functions in emergency situations and, of course, might cause considerable disruption in the event of his own medical emergency.

The actual capabilities of persons over age 60, and the ability to detect disease or a precipitous decline in their faculties, were the subject of conflicting medical testimony. Western’s expert witness, a former FAA Deputy Federal Air Surgeon, was especially concerned about the possibility of a “cardiovascular event” such as a heart attack. He testified that “with advancing age the likelihood of onset of disease increases and that in persons over age 60 it could not be predicted whether and when such diseases would occur.” Id., at 389.

The plaintiffs’ experts, on the other hand, testified that physiological deterioration is caused by disease, not aging, and that “it was feasible to determine on the basis of individual medical examinations whether flight deck crew members, including those over age 60, were physically qualified to continue to fly.” Ibid. These conclusions were corroborated by the nonmedical evidence:

“The record also reveals that both the FAA and the airlines have been able to deal with the health problems of pilots on an individualized basis. Pilots who have been grounded because of alcoholism or cardiovascular disease have been recertified by the FAA and allowed to resume flying. Pilots who were unable to pass the necessary examination to maintain their FAA first class medical certificates, but who continued to qualify for second class medical certificates were allowed to ‘downgrade’ from pilot to [flight engineer]. There is nothing in the record to indicate that these flight deck crew members are physically better able to perform their duties than flight engineers over age 60 who have not experienced such events or that they are less likely to become incapacitated.” Id., at 390.

Moreover, several large commercial airlines have flight engineers over age 60 “flying the line” without any reduction in their safety record. Ibid.

The jury was instructed that the “BFOQ defense is available only if it is reasonably necessary to the normal operation or essence of defendant’s business.” Tr. 2626. The jury was informed that “the essence of Western’s business is the safe transportation of their passengers.” Ibid. The jury was also instructed:

“One method by which defendant Western may establish a BFOQ in this case is to prove:
“(1) That in 1978, when these plaintiffs were retired, it was highly impractical for Western to deal with each second officer over age 60 on an individualized basis to determine his particular ability to perform his job safely; and
“(2) That some second officers over age 60 possess traits of a physiological, psychological or other nature which preclude safe and efficient job performance that cannot be ascertained by means other than knowing their age.
“In evaluating the practicability to defendant Western of dealing with second officers over age 60 on an individualized basis, with respect to the medical testimony, you should consider the state of the medical art as it existed in July 1978.” Id., at 2627.

The jury rendered a verdict for the plaintiffs, and awarded damages. After trial, the District Court granted equitable relief, explaining in a written opinion why it found no merit in Western’s BFOQ defense to the mandatory retirement rule. 514 F. Supp., at 389-391.

On appeal, Western made various arguments attacking the verdict and judgment below, but the Court of Appeals affirmed in all respects. 709 F. 2d 544 (CA9 1983). In particular, the Court of Appeals rejected Western’s contention that the instruction on the BFOQ defense was insufficiently deferential to the airline’s legitimate concern for the safety of its passengers. Id., at 549-551. We granted certiorari to consider the merits of this question. 469 U. S. 815 (1984).

h-i hH

Throughout the legislative history of the ADEA, one empirical fact is repeatedly emphasized: the process of psychological and physiological degeneration caused by aging varies with each individual. “The basic research in the field of aging has established that there is a wide range of individual physical ability regardless of age.” As a result, many older American workers perform at levels equal or superior to their younger colleagues.

In 1965, the Secretary of Labor reported to Congress that despite these well-established medical facts there “is persistent and widespread use of age limits in hiring that in a great many cases can be attributed only to arbitrary discrimination against older workers on the basis of age and regardless of ability.” Two years later, the President recommended that Congress enact legislation to abolish arbitrary age limits on hiring. Such limits, the President declared, have a devastating effect on the dignity of the individual and result in a staggering loss of human resources vital to the national economy.

After further study, Congress responded with the enactment of the ADEA. The preamble declares that the purpose of the ADEA is “to promote employment of older persons based on their ability rather than age [and] to prohibit arbitrary age discrimination in employment.” 81 Stat. 602, 29 U. S. C. § 621(b). Section 4(a)(1) makes it “unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 81 Stat. 603, 29 U. S. C. § 623(a)(1). This proscription presently applies to all persons between the ages of 40 and 70. 29 U. S. C. § 631(a).

The legislative history of the 1978 Amendments to the ADEA makes quite clear that the policies and substantive provisions of the Act apply with especial force in the case of mandatory retirement provisions. The House Committee on Education and Labor reported:

“Increasingly, it is being recognized that mandatory retirement based solely upon age is arbitrary and that chronological age alone is a poor indicator of ability to perform a job. Mandatory retirement does not take into consideration actual differing abilities and capacities. Such forced retirement can cause hardships for older persons through loss of roles and loss of income. Those older persons who wish to be re-employed have a much more difficult time finding a new job than younger persons.
“Society, as a whole, suffers from mandatory retirement as well. As a result of mandatory retirement, skills and experience are lost from the work force resulting in reduced GNP. Such practices also add a burden to Government income maintenance programs such as social security.”

In the 1978 Amendments, Congress narrowed an exception to the ADEA which had previously authorized involuntary retirement under limited circumstances. See supra, at 405.

In both 1967 and 1978, however, Congress recognized that classifications based on age, like classifications based on religion, sex, or national origin, may sometimes serve as a necessary proxy for neutral employment qualifications essential to the employer’s business. The diverse employment situations in various industries, however, forced Congress to adopt a “case-by-case basis ... as the underlying rule in the administration of the legislation.” H. R. Rep. No. 805, 90th Cong., 1st Sess., 7 (1967), Legislative History 80. Congress offered only general guidance on when an age classification might be permissible by borrowing a concept and statutory language from Title VII of the Civil Rights Act of 1964 and providing that such a classification is lawful “where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” 29 U. S. C. § 623(f)(1).

Shortly after the passage of the Act, the Secretary of Labor, who was at that time charged with its enforcement, adopted regulations declaring that the BFOQ exception to the ADEA has only “limited scope and application” and “must be construed narrowly.” 33 Fed. Reg. 9172 (1968), 29 CFR §860.102(b) (1984). The Equal Employment Opportunity Commission (EEOC) adopted the same narrow construction of the BFOQ exception after it was assigned authority for enforcing the statute. 46 Fed. Reg. 47727 (1981), 29 CFR § 1625.6 (1984). The restrictive language of the statute and the consistent interpretation of the administrative agencies charged with enforcing the statute convince us that, like its Title VII counterpart, the BFOQ exception “was in fact meant to be an extremely narrow exception to the general prohibition” of age discrimination contained in the ADEA. Dothard v. Rawlinson, 433 U. S. 321, 334 (1977).

HH 1 — 1 H-1

In Usery v. Tamiami Trail Tours, Inc., 531 F. 2d 224 (1976), the Court of Appeals for the Fifth Circuit was called upon to evaluate the merits of a BFOQ defense to a claim of age discrimination. Tamiami Trail Tours, Inc., had a policy of refusing to hire persons over age 40 as intercity bus drivers. At trial, the bus company introduced testimony supporting its theory that the hiring policy was a BFOQ based upon safety considerations — the need to employ persons who have a low risk of accidents. In evaluating this contention, the Court of Appeals drew on its Title VII precedents, and concluded that two inquiries were relevant.

First, the court recognized that some job qualifications may be so peripheral to the central mission of the employer’s business that no age discrimination can be “reasonably necessary to the normal operation of the particular business.” 29 U. S. C. § 623(f)(1). The bus company justified the age qualification for hiring its drivers on safety considerations, but the court concluded that this claim was to be evaluated under an objective standard:

“[T]he job qualifications which the employer invokes to justify his discrimination must be reasonably necessary to the essence of his business — here, the safe transportation of bus passengers from one point to another. The greater the safety factor, measured by the likelihood of harm and the probable severity of that harm in case of an accident, the more stringent may be the job qualifications designed to insure safe driving.” 531 F. 2d, at 236.

This inquiry “adjusts to the safety factor” by ensuring that the employer’s restrictive job qualifications are “reasonably necessary” to further the overriding interest in public safety. Ibid. In Tamiami, the court noted that no one had seriously challenged the bus company’s safety justification for hiring drivers with a low risk of having accidents.

Second, the court recognized that the ADEA requires that age qualifications be something more than “convenient” or “reasonable”; they must be “reasonably necessary ... to the particular business,” and this is only so when the employer is compelled to rely on age as a proxy for the safety-related job qualifications validated in the first inquiry. This showing could be made in two ways. The employer could establish that it “‘had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all [persons over the age qualifications] would be unable to perform safely and efficiently the duties of the job involved.’” In Tamiami, the employer did not seek to justify its hiring qualification under this standard.

Alternatively, the employer could establish that age was a legitimate proxy for the safety-related job qualifications by proving that it is “ ‘impossible or highly impractical’ ” to deal with the older employees on an individualized basis. “One method by which the employer can carry this burden is to establish that some members of the discriminated-against class possess a trait precluding safe and efficient job performance that cannot be ascertained by means other than knowledge of the applicant’s membership in the class.” Id., at 235. In Tamiami, the medical evidence on this point was conflicting, but the District Court had found that individual examinations could not determine which individuals over the age of 40 would be unable to operate the buses safely. The Court of Appeals found that this finding of fact was not “clearly erroneous,” and affirmed the District Court’s judgment for the bus company on the BFOQ defense. Id., at 238.

Congress, in considering the 1978 Amendments, implicitly endorsed the two-part inquiry identified by the Fifth Circuit in the Tamiami case. The Senate Committee Report expressed concern that the amendment prohibiting mandatory retirement in accordance with pension plans might imply that mandatory retirement could not be a BFOQ:

“For example, in certain types of particularly arduous law enforcement activity, there may be a factual basis for believing that substantially all employees above a specified age would be unable to continue to perform safely and efficiently the duties of their particular jobs, and it may be impossible or impractical to determine through medical examinations, periodic reviews of current job performance and other objective tests the employees’ capacity or ability to continue to perform the jobs safely and efficiently.
“Accordingly, the committee adopted an amendment to make it clear that where these two conditions are satisfied and where such a bona fide occupational qualification has therefore been established, an employer may lawfully require mandatory retirement at that specified age.” S. Rep. No. 95-493, pp. 10-11 (1977), Legislative History 443-444.

The amendment was adopted by the Senate, but deleted by the Conference Committee because it “neither added to nor worked any change upon present law.” H. R. Conf. Rep. No. 95-950, p. 7 (1978), Legislative History 518.

Every Court of Appeals that has confronted a BFOQ defense based on safety considerations has analyzed the problem consistently with the Tamiami standard. An EEOC regulation embraces the same criteria. Considering the narrow language of the BFOQ exception, the parallel treatment of such questions under Title VII, and the uniform application of the standard by the federal courts, the EEOC, and Congress, we conclude that this two-part inquiry properly identifies the relevant considerations for resolving a BFOQ defense to an age-based qualification purportedly justified by considerations of safety.

hH

In the trial court, Western preserved an objection to any instruction in the Tamiami mold, claiming that “any instruction pertaining to the statutory phrase ‘reasonably necessary to the normal operation of [defendant’s] business’... is irrelevant to and confusing for the deliberations of the jury.” Western proposed an instruction that would have allowed it to succeed on the BFOQ defense by proving that “in 1978, when these plaintiffs were retired, there existed a rational basis in fact for defendant to believe that use of [flight engineers] over age 60 on its DC-10 airliners would increase the likelihood of risk to its passengers.” The proposed instruction went on to note that the jury might rely on the FAA’s age-60 rule for pilots to establish a BFOQ under this standard “without considering any other evidence.” It also noted that the medical evidence submitted by the parties might provide a “rational basis in fact.”

On appeal, Western defended its proposed instruction, and the Court of Appeals soundly rejected it. 709 F. 2d, at • 549-551. In this Court, Western slightly changes its course. The airline now acknowledges that the Tamiami standard identifies the relevant general inquiries that must be made in evaluating the BFOQ defense. However, Western claims that in several respects the instructions given below were insufficiently protective of public safety. Western urges that we interpret or modify the Tamiami standard to weigh these concerns in the balance.

Reasonably Necessary Job Qualifications

Western relied on two different kinds of job qualifications to justify its mandatory retirement policy. First, it argued that flight engineers should have a low risk of incapacitation or psychological and physiological deterioration. At this vague level of analysis respondents have not seriously disputed — nor could they — that the qualification of good health for a vital crew member is reasonably necessary to the essence of the airline’s operations. Instead, they have argued that age is not a necessary proxy for that qualification.

On a more specific level, Western argues that flight engineers must meet the same stringent qualifications as pilots, and that it was therefore quite logical to extend to flight engineers the FAA’s age-60 retirement rule for pilots. Although the FAA’s rule for pilots, adopted for safety reasons, is relevant evidence in the airline’s BFOQ defense, it is not to be accorded conclusive weight. Johnson v. Mayor and City Council of Baltimore, ante, at 370-371. The extent to which the rule is probative varies with the weight of the evidence supporting its safety rationale and “the congruity between the . . . occupations at issue.” Ante, at 371. In this case, the evidence clearly established that the FA A, Western, and other airlines all recognized that the qualifications for a flight engineer were less rigorous than those required for a pilot.

In the absence of persuasive evidence supporting its position, Western nevertheless argues that the jury should have been instructed to defer to “Western’s selection of job qualifications for the position of [flight engineer] that are reasonable in light of the safety risks.” Brief for Petitioner 30. This proposal is plainly at odds with Congress’ decision, in adopting the ADEA, to subject such management decisions to a test of objective justification in a court of law. The BFOQ standard adopted in the statute is one of “reasonable necessity,” not reasonableness.

In adopting that standard, Congress did not ignore the public interest in safety. That interest is adequately reflected in instructions that track the language of the statute. When an employer establishes that a job qualification has been carefully formulated to respond to documented concerns for public safety, it will not be overly burdensome to persuade a trier of fact that the qualification is “reasonably necessary” to safe operation of the business. The uncertainty implicit in the concept of managing safety risks always makes it “reasonably necessary” to err on the side of caution in a close case. The employer cannot be expected to establish the risk of an airline accident “to a certainty, for certainty would require running the risk until a tragic accident would prove that the judgment was sound.” Usery v. Tamiami Trail Tours, Inc., 531 F. 2d, at 238. When the employer’s argument has a credible basis in the record, it is difficult to believe that a jury of laypersons — many of whom no doubt have flown or could expect to fly on commercial air carriers— would not defer in a close case to the airline’s judgment. Since the instructions in this case would not have prevented the airline from raising this contention to the jury in closing argument, we are satisfied that the verdict is a consequence of a defect in Western’s proof rather than a defect in the trial court’s instructions.

Western’s Statutory Safety Obligation

The instructions defined the essence of Western’s business as “the safe transportation of their passengers.” Tr. 2626. Western complains that this instruction was defective because it failed to inform the jury that an airline must conduct its operations “with the highest possible degree of safety.”

Jury instructions, of course, “may not be judged in artificial isolation,” but must be judged in the “context of the overall charge” and the circumstances of the case. See Cupp v. Naughten, 414 U. S. 141, 147 (1973). In this case, the instructions characterized safe transportation as the “essence” of Western’s business and specifically referred to the importance of “safe and efficient job performance” by flight engineers. Tr. 2627. Moreover, in closing argument counsel pointed out that because “safety is the essence of Western’s business,” the airline strives for “the highest degree possible of safety.” Viewing the record as a whole, we are satisfied that the jury’s attention was adequately focused on the importance of safety to the operation of Western’s business. Cf. United States v. Park, 421 U. S. 658, 674 (1975).

Age as a Proxy for Job Qualifications

Western contended below that the ADEA only requires that the employer establish “a rational basis in fact” for believing that identification of those persons lacking suitable qualifications cannot occur on an individualized basis. This “rational basis in fact” standard would have been tantamount to an instruction to return a verdict in the defendant’s favor. Because that standard conveys a meaning that is significantly different from that conveyed by the statutory phrase “reasonably necessary,” it was correctly rejected by the trial court.

Western argues that a “rational basis” standard should be adopted because medical disputes can never be proved “to a certainty” and because juries should not be permitted “to resolve bona fide conflicts among medical experts respecting the adequacy of individualized testing.” Reply Brief for Petitioner 9, n. 10. The jury, however, need not be convinced beyond all doubt that medical testing is impossible, but only that the proposition is true “on a preponderance of the evidence.” Moreover, Western’s attack on the wisdom of assigning the resolution of complex questions to 12 laypersons is inconsistent with the structure of the ADEA. Congress expressly decided that problems involving age discrimination in employment should be resolved on a “case-by-case basis” by proof to a jury.

The “rational basis” standard is also inconsistent with the preference for individual evaluation expressed in the language and legislative history of the ADEA. Under the Act, employers are to evaluate employees between the ages of 40 and 70 on their merits and not their age. In the BFOQ defense, Congress provided a limited exception to this general principle, but required that employers validate any discrimination as “reasonably necessary to the normal operation of the particular business.” It might well be “rational” to require mandatory retirement at any age less than 70, but that result would not comply with Congress’ direction that employers must justify the rationale for the age chosen. Unless an employer can establish a substantial basis for believing that all or nearly all employees above an age lack the qualifications required for the position, the age selected for mandatory retirement less than 70 must be an age at which it is highly impractical for the employer to insure by individual testing that its employees will have the necessary qualifications for the job.

Western argues that its lenient standard is necessary because “where qualified experts disagree as to whether persons over a certain age can be dealt with on an individual basis, an employer must be allowed to resolve that controversy in a conservative manner.” Reply Brief for Petitioner 8-9. This argument incorrectly assumes that all expert opinion is entitled to equal weight, and virtually ignores the function of the trier of fact in evaluating conflicting testimony. In this case, the jury may well have attached little weight to the testimony of Western’s expert witness. See supra, at 406, and n. 8. A rule that would require the jury to defer to the judgment of any expert witness testifying for the employer, no matter how unpersuasive, would allow some employers to give free reign to the stereotype of older workers that Congress decried in the legislative history of the ADEA.

When an employee covered by the Act is able to point to reputable businesses in the same industry that choose to eschew reliance on mandatory retirement earlier than age 70, when the employer itself relies on individualized testing in similar circumstances, and when the administrative agency with primary responsibility for maintaining airline safety has determined that individualized testing is not impractical for the relevant position, the employer’s attempt to justify its decision on the basis of the contrary opinion of experts— solicited for the purposes of litigation — is hardly convincing on any objective standard short of complete deference. Even in cases involving public safety, the ADEA plainly does not permit the trier of fact to give complete deference to the employer’s decision.

The judgment of the Court of Appeals is

Affirmed.

Justice Powell took no part in the decision of this case.

       Section 4(f)(1) of the ADEA provides:
      “It shall not be unlawful for an employer . . .
      “(1) to take any action otherwise prohibited . . . where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business . . . 81 Stat. 603, 29 U. S. C. § 623(f)(1).

       In Trans World Airlines, Inc. v. Thurston, 469 U. S. 111 (1985), decided earlier this Term, TWA allowed flight engineers to continue working past age 60, and allowed pilots to downbid to flight engineer positions provided that they were able to find an open position prior to their 60th birthdays. See id., at 115-116. Pilots who were displaced for any reason besides the Federal Aviation Administration’s age-60 rule, however, were permitted to “bump” less senior persons occupying flight engineer positions without waiting for vacancies to occur. We held that this transfer policy discriminated among pilots on the basis of age, and violated the ADEA. Since TWA did not impose an under-age-60 qualification for flight engineers, however, it had no occasion to rely on the same BFOQ theory presented here by Western.

       While this lawsuit was proceeding to trial, Criswell and Starley also pursued their remedies under the collective-bargaining agreement. The System Wide Board of Adjustment, over a dissent, ultimately ruled that the contract provision that appeared to authorize the pilots’ downbidding was only intended to allow senior pilots operating narrow-body equipment to bid for first officer or flight engineer positions on wide-body aircraft. App. to Pet. for Cert. A84-A90. Since Criswell and Starley were already serving on wide-body aircraft, the provision did not apply to them. The Board also concluded that the provision would not support a transfer “for the obvious purpose of evading the application of [the] agreed retirement plan.” Id., at A89. Western relied on this ground in its motion for summary judgment, but the District Court concluded that material questions of fact remained on the question of whether age was a substantial and determinative factor in the denial of the downbids. Id., at A81.

       The Western official who was responsible for the decision to retire the plaintiffs conceded that “the sole basis” for the denial of the applications of Criswell, Starley, and Ron was the same: “the provision in the pension plan regarding retirement at age 60.” Tr. 1163. In addition, he admitted that he had “no personal knowledge” of any safety rationale for the under-age-60 rule for flight engineers, id., at 2059, nor had it played any significant role in his decision to retire them. See id., at 61, 2027-2033, 2056-2057. The airline sent Starley and Ron form letters informing them of its “considered judgment after examining all of the applicable statutory law that since you have been a member of our Pilot retirement plan, that we cannot continue your employment beyond the normal retirement date of age 60.” See App. 89, 91.

       § 4(f)(2), 81 Stat. 603, 29 U. S. C. § 623(f)(2).

       92 Stat. 189, 29 U. S. C. § 623(f)(2).

       Western also contended that its denials of the downbids by pilots Starley and Criswell were based on “reasonable factors other than age.” 29 U. S. C. § 623(f)(1); see n. 10, infra.

       Although the witness had served with the FAA for seven years ending in 1979, he conceded that throughout his tenure at the FAA he never had advocated that the agency extend the age-60 rule to flight engineers. Tr. 1521.

       After the judgment in the Criswell action, eight other pilots and one career flight officer filed a separate action seeking similar relief. A preliminary injunction was granted on behalf of the flight engineer, and Western appealed. The Court of Appeals consolidated the appeal with Western’s appeal in Criswell, and affirmed the preliminary injunction. 709 F. 2d 544, 558-559 (CA9 1983). The plaintiffs in the collateral action are respondents here.

       One of Western’s claims in the trial court was that its refusal to allow pilots to serve as flight engineers after they reached age 60 was based on “reasonable factors other than age” (RFOA), namely, a facially neutral policy embodied in its collective-bargaining agreement which prohibited downbidding. See nn. 3 and 7, supra. The jury rejected this defense in its verdict. On appeal, Western claimed that the instructions had improperly required it to bear the burden of proof on the RFOA issue inasmuch as the burden of persuasion on the issue of age discrimination is at all times on the plaintiff. Cf. Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981); Furnco Construction Co. v. Waters, 438 U. S. 567 (1978). The Court of Appeals rejected this claim on the merits. 709 F. 2d, at 552-553. We granted certiorari to consider the merits of this question, 469 U. S. 815 (1984), but as we read the instructions the burden was placed on the plaintiffs on the RFOA issue. The general instruction on the question of discrimination provided that the “burden of proof is on the plaintiffs to show discriminatory treatment on the basis of age.” App. 58. The instructions expressly informed the jury when the burden shifted to the defendant to prove various issues, e. g., id., at 60 (business necessity); id., at 61 (BFOQ), but did not so inform the jury in the RFOA instruction, id., at 62-63. Because the plaintiffs were assigned the burden of proof, we need not consider whether it would have been error to assign it to the defendant.

       Report of the Secretary of Labor, The Older American Worker: Age Discrimination in Employment 9 (1965) (hereinafter Report), EEOC, Legislative History of the Age Discrimination in Employment Act 26 (1981) (hereinafter Legislative History). See also S. Rep. No. 95-493, p. 2 (1977), Legislative History 435 (“Scientific research . . . indicates that chronological age alone is a poor indicator of ability to perform a job”).

       Report, at 21, Legislative History 37.

       “Hundreds of thousands not yet old, not yet voluntarily retired, find themselves jobless because of arbitrary age discrimination. Despite our present low rate of unemployment, there has been a persistent average of 850,000 people age 45 and over who are unemployed.
      “In economic terms, this is a serious — and senseless — loss to a nation on the move. But the greater loss is the cruel sacrifice in happiness and well-being which joblessness imposes on these citizens and their families.” H. R. Doc. No. 40, 90th Cong., 1st Sess., 7 (1967), Legislative History 61.

       See EEOC v. Wyoming, 460 U. S. 226, 230 (1983).

       H. R. Rep. No. 95-527, pt. 1, p. 2 (1977), Legislative History 362. Cf. S. Rep. No. 95-493, p. 4 (1977), Legislative History 437 (“The committee believes that the arguments for retaining existing mandatory retirement policies are largely based on misconceptions rather than upon a careful analysis of the facts”).

       “Many different types of employment situations prevail. Administration of this law must place emphasis on case-by-case basis, with unusual working conditions weighed on their own merits. The purpose of this legislation, simply stated, is to insure that age, within the limits prescribed herein, is not a determining factor in a refusal to hire.” S. Rep. No. 723, 90th Cong., 1st Sess., 7 (1967), Legislative History 111.

       Section 703(e) of Title VII permits classifications based on religion, sex or national origin in those certain instances “where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” 42 U. S. C. §2000e-2(e)(l).

         Diaz v. Pan American World Airways, Inc., 442 F. 2d 385 (CA5), cert. denied, 404 U. S. 950 (1971), provided authority for this proposition. In Diaz the court had rejected Pan American’s claim that a female-only qualification for the position of in-flight cabin attendant was a BFOQ under Title VII. The District Court had upheld the qualification as a BFOQ finding that the airline’s passengers preferred the “pleasant environment” and the “cosmetic effect” provided by female attendants, and that most men were unable to perform effectively the “non-mechanical functions” of the job. The Court of Appeals rejected the BFOQ defense concluding that these considerations “are tangential to the essence of the business involved.” 442 F. 2d, at 388.

        Weeks v. Southern Bell Telephone & Telegraph Co., 408 F. 2d 228 (CA5 1969), provided authority for this proposition. In Weeks the court rejected Southern Bell’s claim that a male-only qualification for the position of switchman was a BFOQ under Title VII. Southern Bell argued, and the District Court had found, that the job was “strenuous,” but the court observed that that “finding is extremely vague.” Id,., at 234. The court rejected the BFOQ defense concluding that “using these class stereotypes denies desirable positions to a great many women perfectly capable of performing the duties involved.” Id., at 236. Moreover, the employer had made no showing that it was “impossible or highly impractical to deal with women on an individualized basis.” Id., at 235, n. 5.

       531 F. 2d, at 235 (quoting Weeks v. Southern Bell Telephone & Telegraph Co., 408 F. 2d, at 235).

       531 F. 2d, at 235 (quoting Weeks v. Southern Bell Telephone & Telegraph Co., 408 F. 2d, at 235, n. 5).

       Senator Javits, an active proponent of the legislation, obviously viewed the BFOQ defense as a narrow one when he explained that it could be proved when “the employer can demonstrate that there is an objective, factual basis for believing that virtually all employees above a certain age are unable to safely perform the duties of their jobs and where, in addition, there is no practical medical or performance test to determine capacity.” 123 Cong. Rec. 34319 (1977), Legislative History 506. See also H. R. Rep. No. 95-527, pt. 1, p. 12, Legislative History 372.

       See, e. g., Monroe v. United Air Lines, Inc., 736 F. 2d 394 (CA7 1984), cert. denied, 470 U. S. 1004 (1985); Johnson v. American Airlines, Inc., 745 F. 2d 988, 993-994 (CA5 1984), cert. pending, No. 84-1271; 709 F. 2d, at 550 (case below); Orzel v. City of Wauwatosa Fire Dept., 697 F. 2d 743, 752-753 (CA7), cert. denied, 464 U. S. 992 (1983); Tuohy v. Ford Motor Co., 675 F. 2d 842, 844-845 (CA6 1982); Smallwood v. United Air Lines, Inc., 661 F. 2d 303, 307 (CA4 1981), cert. denied, 456 U. S. 1007 (1982); Arritt v. Grisell, 567 F. 2d 1267, 1271 (CA4 1977). Cf. Harriss v. Pan American World Airways, Inc., 649 F. 2d 670, 676-677 (CA9 1980) (Title VII).

       46 Fed. Reg. 47727 (1981), 29 CFR § 1625.6(b) (1984):
      “An employer asserting a BFOQ defense has the burden of proving that (1) the age limit is reasonably necessary to the essence of the business, and either (2) that all or substantially all individuals excluded from the job involved are in fact disqualified, or (3) that some of the individuals so excluded possess a disqualifying trait that cannot be ascertained except by reference to age. If the employer’s objective in asserting a BFOQ is the goal of public safety, the employer must prove that the challenged practice does indeed effectuate that goal and that there is no acceptable alternative which would better advance it or equally advance it with less discriminatory impact.”

       Record, Doc. No. 164 (objections to plaintiffs proposed BFOQ instruction).

         Ibid. (Defendant’s Proposed Instruction No. 19) (emphasis added). In support of the “rational basis in fact” language in the proposed instruction Western cited language in the Seventh Circuit’s opinion in Hodgson v. Greyhound Lines, Inc., 499 F. 2d 859 (1974), cert. denied, 419 U. S. 1122 (1975), which had been criticized by the Fifth Circuit panel in Tamiami and which the Seventh Circuit later repudiated. Orzel v. City of Wauwatosa Fire Dept., 697 F. 2d, at 752-753. Western also relied on the District Court’s opinion in Tuohy v. Ford Motor Co., 490 F. Supp. 258 (ED Mich. 1980), which was reversed on appeal, 675 F. 2d 842 (CA6 1982).

       Record, Doe. No. 164 (Defendant’s Proposed Instruction No. 19.1).

       As the Court of Appeals noted, the “jury heard testimony that Western itself allows a captain under the age of sixty who cannot, for health reasons, continue to fly as a captain or co-pilot to downbid to a position as second officer. [In addition,] half the pilots flying in the United States are flying for major airlines which do not require second officers to retire at the age of sixty, and . . . there are over 200 such second officers currently flying on wide-bodied aircraft.” 709 F. 2d, at 552. See also supra, at 406-407.

       Several Courts of Appeals have recognized that safety considerations are relevant in making or reviewing findings of fact. See, e. g., Levin v. Delta Air Lines, Inc., 730 F. 2d 994, 998 (CA5 1984); Orzel v. City of Wauwatosa Fire Dept., 697 F. 2d, at 755; Tuohy v. Ford Motor Co., 675 F. 2d, at 845; Murnane v. American Airlines, Inc., 215 U. S. App. D. C. 55, 58, 667 F. 2d 98, 101 (1981), cert. denied, 456 U. S. 915 (1982); Hodgson v. Greyhound Lines, Inc., 499 F. 2d, at 863. Such considerations, of course, are only relevant at the margin of a close case, and do not relieve the employer from its burden of establishing the BFOQ by the preponderance of credible evidence.

       Moreover, we do not find that petitioner’s proposed instructions made any reference to the notion of deference to the expertise of the employer, except insofar as that concept was implicit in the “rational basis in fact” standard reflected in its proposed instructions. As we reject that standard as inconsistent with the statute, infra, at 421-423, we are somewhat reluctant to fault the trial judge for not giving an instruction that was not requested.

       This standard is set forth in the Federal Aviation Act, which provides, in part:
      “In prescribing standards, rules, and regulations, and in issuing certificates under this subchapter, the Secretary of Transportation shall give full consideration to the duty resting upon air carriers to perform their services with the highest possible degree of safety in the public interest . . . .” 49 U. S. C. App. § 1421(b) (emphasis added).

       ‘We have tried to present, throughout the case, our view that safety is the essence of Western’s business. It is the core, it is what the air passenger service business is all about. We have a duty to our passengers, which we consider to be the most important duty of all the business operations that we engage in, including making money. Our first duty is that the passengers and the crews on all our aircraft are safe. And we attempt to render to them the highest degree possible of safety.” Tr. 2514.

       In this Court Western proposes a “factual basis” standard. We do not perceive any substantial difference between this standard and the instruction that it sought below, and we discuss the question as it was raised in the proposed instructions, and discussed in the Court of Appeals.

       This standard has been rejected by nearly every court to consider it. 709 F. 2d, at 550-551 (case below); Orzel v. City of Wauwatosa Fire Dept., 697 F. 2d, at 755-756; Tuohy v. Ford Motor Co., 675 F. 2d, at 845; Harriss v. Pan American World Airways, Inc., 649 F. 2d, at 677; Arritt v. Grisell, 567 F. 2d, at 1271; Usery v. Tamiami Trail Tours, Inc., 531 F. 2d, at 235-236.

        Supra, at 411, and n. 16; 29 U. S. C. § 626(c)(2); Lorillard v. Pons, 434 U. S. 575 (1978).

       Indeed, under a “rational basis” standard a jury might well consider that its “inquiry is at an end” with an expert witness’ articulation of any “plausible reaso[n]” for the employer’s decision. Cf. United States Railroad Retirement Board v. Fritz, 449 U. S. 166, 179 (1980).


source: Caselaw Access Project

author: Justice O’Connor Justice Brennan, Justice Stevens,

license: Public Domain

text:
    RICHARDSON-MERRELL INC. v. KOLLER, an infant, by and through KOLLER et ux., her natural guardians, et al.
    No. 84-127.
    Argued February 26, 1985
    Decided June 17, 1985

      O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Blackmun, and Rehnquist, JJ., joined. Brennan, J., filed a concurring opinion, post, p. 441. Stevens, J., filed a dissenting opinion, post, p. 442. Powell, J., took no part in the decision of the case.

      Lawrence E. Walsh argued the cause for petitioner. With him on the briefs were Guy Miller Struve, Ogden N. Lewis, Whitney L. Schmidt, Vincent H. Cohen, Robert B. Cave, and Richard C. Ford.

      Michael H. Gottesman argued the cause for respondents. With him on the brief were Robert M. Weinberg, Jacob A. Stein, and Robert F. Muse.

         Jonathan D. Blake, Charles S. Sims, Burt Neubome, and Arthur B. Spitzer filed a brief for the Washington Post et al. as amici curiae urging affirmance.

   Justice O’Connor

delivered the opinion of the Court.

Last Term, in Flanagan v. United States, 465 U. S. 259 (1984), the Court unanimously held that pretrial orders disqualifying counsel in criminal cases are not subject to immediate appeal under 28 U. S. C. § 1291. In this case, the Court of Appeals for the District of Columbia Circuit held that § 1291 confers jurisdiction over interlocutory appeals of orders disqualifying counsel in a civil case. 237 U. S. App. D. C. 333, 737 F. 2d 1038 (1984). Because we conclude that orders disqualifying counsel in a civil case are not collateral orders subject to immediate appeal, we reverse.

I

Respondent Anne Roller (hereafter respondent) was born without normal arms or legs in a District of Columbia hospital in 1979. She filed suit in the United States District Court for the District of Columbia, alleging that petitioner Richardson-Merrell, Inc., is liable for her birth defects. The complaint alleged that respondent’s mother, Cynthia Roller, had taken the antinausea drug Bendectin during the early stages of her pregnancy, and that the drug had caused Anne Roller’s injuries. Petitioner is the manufacturer of Bendectin.

Respondent was initially represented by Cohen & Rokus, a Miami law firm, and by local counsel in Washington. As discovery progressed into 1981, however, a Los Angeles law firm, Butler, Jefferson, Dan & Allis, took the lead in trial preparation. James G. Butler entered an appearance pro hac vice for respondent on January 26, 1981; his partner Nicholas Allis was admitted pro hac vice on October 19,1982. As the case neared trial in early 1983, respondent’s counsel of record included at least eight lawyers from the Cohen firm, the Butler firm, and two Washington firms.

On December 22,1982, Nicholas Allis’ secretary, Rrystyna Janowski, twice called the offices of Davis, Polk & Wardwell, Richardson-Merrell’s attorneys. Janowski left messages indicating that Roller’s suit was fraudulent and that Cynthia Roller had not taken Bendectin during the crucial early weeks of her pregnancy. App. 19-20. Janowski subsequently regretted her actions, and on December 26 she told a paralegal at her firm that investigators for Richardson-Merrell had been attempting to persuade her to sign a statement indicating that Roller’s case was fraudulent.

The next day, Allis twice went to see Janowski, first at a hospital where the secretary was visiting her child, and later at the secretary’s apartment. During the second visit, Allis was accompanied by a private investigator who surreptitiously taped the conversation on a concealed tape recorder. Allis presented Janowski a typed statement indicating that “[a]t no time did I ever hear Cynthia Roller or anyone else say that Cynthia Roller did not take Bendectin.” Id., at 26-27. Janowski signed the statement. The following day, December 28, 1982, Allis received a copy of a letter that Davis, Polk & Wardwell had sent to the District Court. The letter recounted Janowski’s telephone calls, informed the court that petitioner had engaged independent counsel for Janowski, and requested a hearing. Id., at 21-22. Allis’ firm responded with its own letter to the court. The letter recounted the story Janowski had told Allis. A copy of the statement obtained from Janowski was attached. Id., at 23-25. During subsequent discovery into the matter, Janowski recanted the signed statement.

While the District Court and counsel were struggling with these unusual revelations, they were also preparing for an imminent trial. A pretrial hearing was scheduled to commence on January 31,1983, and trial was to commence immediately upon the conclusion of the hearing. On January 17, 1983, the trial judge issued a pretrial ruling excluding collateral evidence related to two children who had birth defects like those of the respondent. The court ruled that it would not “grant plaintiffs a license to submit the birth defects of children whose only demonstrable relationship to Anne Roller is that they have suffered birth defects that are superficially similar.” Id., at 60-61. On January 28, 1983, James Butler submitted to the Food and Drug Administration a set of “Drug Experience Reports” prepared by his firm. The reports described the birth defects of a number of children whose mothers had taken Bendectin, including the two children covered by the District Court’s order of January 17. In an accompanying letter, Butler urged the FDA to take Ben-dectin off the market. Butler sent copies of the reports and his letter to a reporter for the Washington Post.

On January 31, 1983, the District Court ruled that it would not admit any “Drug Experience Reports” that were submitted to the FDA more than one year after the birth of the children involved. Id., at 84-91. The 14 reports Butler had submitted to the FDA fell within this category. The following day, a Washington Post reporter interviewed Butler at the attorney’s invitation. Id., at 341. Butler discussed the Roller case and the materials he had sent to the FDA. On February 7, 1983, after the court had already called the February jury pool from which the Roller jury panel would likely be drawn, the Washington Post published a lengthy article discussing the Roller case and the Drug Experience Reports which the trial court had excluded from evidence.

In the wake of these events, the District Court postponed the trial and allowed further discovery concerning Janowski’s allegations. In February 1983, petitioner moved to disqualify Butler, Allis, and their firm from the Roller case on the ground of their alleged misconduct. After a 4-day eviden-tiary hearing on the issue of whether respondent’s law firm had improperly obtained Janowski’s statement, the District Judge issued an order requiring Butler and Allis to show cause why they and their firm should not be disqualified. The show cause order identified two “alleged incidents of misconduct” as possible grounds for disqualification: Butler’s release of information to the Washington Post in an effort to “prejudice the jury” and to “bring inadmissible evidence before the jury pool,” and Allis’ preparing and obtaining a statement from Janowski “without regard for the truth” of the statement in an effort to protect his firm’s financial interest and to thwart an investigation. Id., at 246-248.

Butler and Allis opposed disqualification and defended their conduct in testimony at a lengthy hearing. Nevertheless, on January 6, 1984, the District Judge found that Allis had attempted “to thwart a true investigation of a crucial witness” and that Butler’s release of information to the media “was calculated to prejudice the defendant’s case and circumvent the Court’s prior rulings.” App. to Pet. for Cert. 77a-78a. Noting that respondent’s other counsel of record could provide competent representation, the court revoked the pro hac vice admissions of Butler and Allis and the appearance of their law firm. Id., at 80a.

Respondent appealed the disqualification to the Court of Appeals for the District of Columbia Circuit, which stayed all proceedings in the trial court pending the outcome of the appeal. App. 339. The Court of Appeals subsequently held that it had jurisdiction to entertain the appeal pursuant to 28 U. S. C. § 1291. On the merits, the panel held that the District Court’s disqualification order was invalid and that the appearances of Allis, Butler, and their firm should be reinstated. 237 U. S. App. D. C. 333, 737 F. 2d 1038 (1984). We granted certiorari to review the Court of Appeals’ jurisdictional ruling as well as its decision on the merits of the disqualification. 469 U. S. 915 (1984).

HH HH

Title 28 U. S. C. § 1291 grants the courts of appeals jurisdiction of appeals from all “final decisions of the district courts,” except where a direct appeal lies to this Court. The statutory requirement of a “final decision” means that “a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits.” Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981). As the Court noted in Firestone, the final judgment rule promotes efficient judicial adminstration while at the same time emphasizing the deference appellate courts owe to the district judge’s decisions on the many questions of law and fact that arise before judgment. Ibid.; Flanagan v. United States, 465 U. S., at 263-264. Immediate review of every trial court ruling, while permitting more prompt correction of erroneous decisions, would impose unreasonable disruption, delay, and expense. It would also undermine the ability of district judges to supervise litigation. In § 1291 Congress has expressed a preference that some erroneous trial court rulings go uncorrected until the appeal of a final judgment, rather than having litigation punctuated by “piecemeal appellate review of trial court decisions which do not terminate the litigation.” United States v. Hollywood Motor Car Co., 458 U. S. 263, 265 (1982).

An order disqualifying counsel in a civil case is not a final judgment on the merits of the litigation. There has been no trial or final judgment in this case, and indeed the stay imposed by the Court of Appeals assures that there can be none pending the outcome of these interlocutory proceedings. Section 1291 accordingly provides jurisdiction for this appeal only if orders disqualifying counsel in civil cases fall within the “collateral order” exception to the final judgment rule. In Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949), the Court recognized an exception to the final judgment rule for a “small class” of prejudgment orders which “finally determine claims of right separable from, and collateral to, rights asserted in the action, [and are] too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”

The collateral order doctrine is a “narrow exception,” Firestone, supra, at 374, whose reach is limited to trial court orders affecting rights that will be irretrievably lost in the absence of an immediate appeal. See Helstoski v. Meanor, 442 U. S. 500, 506-508 (1979); Abney v. United States, 431 U. S. 651, 660-662 (1977). To fall within the exception, an order must at a minimum satisfy three conditions: It must “conclusively determine the disputed question,” “resolve an important issue completely separate from the merits of the action,” and “be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978). Our recent decisions have strictly applied this test when parties pursued immediate appeal of trial court rulings on motions to disqualify counsel.

In Firestone, supra, the Court held that a trial court order denying a motion to disqualify counsel in a civil case was not subject to immediate appeal. The Court assumed without deciding that such a ruling resolves an important issue completely separate from the merits, and thus meets the second part of the Coopers & Lybrand test. 449 U. S., at 376. Nevertheless, the Court refused to permit an interlocutory appeal because it found an order denying disqualification to be reviewable on appeal after a final judgment. Justice Marshall’s opinion for the Court observed:

“An order refusing to disqualify counsel plainly falls within the large class of orders that are indeed reviewable on appeal after final judgment, and not within the much smaller class of those that are not. The propriety of the district court’s denial of a disqualification motion will often be difficult to assess until its impact on the underlying litigation may be evaluated, which is normally only after final judgment. The decision whether to disqualify an attorney ordinarily turns on the particular factual situation of the case then at hand, and the order embodying such a decision will rarely, if ever, represent a final rejection of a claim of fundamental right that cannot effectively be reviewed following judgment on the merits.” Id., at 377 (emphasis added).

Firestone expressly left open the issue of whether orders granting disqualification are subject to immediate appeal, as well as the issue of whether orders denying disqualification in a criminal case fall within the collateral order exception. Id,., at 372, n. 8.

Flanagan v. United States, supra, decided one of the issues left open in Firestone. There the Court held that a district court’s pretrial order granting disqualification of defense counsel in a criminal case was not immediately appealable under § 1291. The unanimous opinion in Flanagan emphasized the strong interest of both the parties and society as a whole in speedy resolution of criminal cases. This important interest counsels application of the final judgment rule with “utmost strictness.” 465 U. S., at 265. The Court then applied the standards enunciated in Coopers & Lybrand and concluded that criminal disqualification orders do not qualify for immediate appeal.

Since Flanagan was decided, the Courts of Appeals have divided on the appealability of orders disqualifying counsel in a civil case. Compare Gibbs v. Paluk, 742 F. 2d 181, 184 (CA5 1984) (rejecting appeal pursuant to § 1291 in reliance on Flanagan), and Kahle v. Oppenheimer & Co., 748 F. 2d 337 (CA6 1984) (rejecting appeal of order disqualifying counsel who was needed as witness), with Banque de Rive, S.A. v. Highland Beach Development Corp., 758 F. 2d 559 (CA11 1985) (distinguishing Flanagan and accepting appeal pursuant to § 1291); Interco Systems, Inc. v. Omni Corporate Services, Inc., 733 F. 2d 253, 255 (CA2 1984) (same); and Panduit Corp. v. All States Plastics Manufacturing Co., 744 F. 2d 1564 (CA Fed. 1984) (same). We granted certiorari to resolve the conflict.

Ill

The decision below allowing immediate appeal of the disqualification order rests primarily on two lines of reasoning. First, the Court of Appeals identifies policy considerations that suggest civil disqualification orders should fall within the collateral order doctrine even though criminal disqualification orders do not. Second, the court attempts to distinguish Flanagan’s application of the Coopers & Lybrand test.

A

At least four policy considerations are articulated in the course of the appellate opinion. First, the panel suggests that the societal interest in prompt adjudication of disputes is weaker in civil cases than in criminal cases, and that the “extraordinary limits on the collateral order doctrine” in the criminal context have not been carried over to civil cases. 237 U. S. App. D. C., at 345-346, 737 F. 2d, at 1050-1051. The appellate court further reasons that “disruption and delay of proceedings on the merits are unhappily foreseeable byproducts of the injudicious use of disqualification motions,” and that this disruption “would be exacerbated were orders disqualifying counsel not immediately appealable.” Id., at 359, 737 F. 2d, at 1064. Third, the panel concludes that immediate appeal should be available not only to vindicate the client’s choice of counsel, but also to vindicate “the interest of the attorneys, who are parties to this appeal, in correcting what they claim is an erroneous finding of misconduct.” Id., at 348-349, 737 F. 2d, at 1053-1054. The panel notes that “[i]n the event that plaintiffs were satisfied with the final verdict obtained by substitute counsel, the disqualified attorneys could be left with no means whatsoever of vindicating their own important interests on appeal from a final judgment.” Ibid. Finally, the Court of Appeals expresses concern that the use of motions to disqualify counsel in order to delay civil proceedings and to harass opponents has become prevalent in recent years. “To insulate from prompt review an erroneous order granting a motion to disqualify counsel,” the Court of Appeals concluded, “would only raise the stakes in this dangerous game.” Id., at 346, 737 F. 2d, at 1051.

We do not find these policy arguments persuasive. Although delay is anathema in criminal cases, it is also undesirable in civil disputes, as the Court of Appeals itself recognized. One purpose of the final judgment rule embodied in § 1291 is to avoid the delay that inherently accompanies time-consuming interlocutory appeals. Flanagan, 465 U. S., at 264. When an appellate court accepts jurisdiction of an order disqualifying counsel, the practical effect is to delay proceedings on the merits until the appeal is decided. As in this case, the appellate court may stay all proceedings during appellate review. Even where the appellate court fails to impose a stay, it would take an intrepid District Judge to proceed to trial with alternate counsel while her decision disqualifying an attorney is being examined in the Court of Appeals.

The delay accompanying an appeal results not only when counsel appeals “injudicious use of disqualification motions,” but also when counsel appeals an entirely proper disqualification order. Most pretrial orders of district judges are ultimately affirmed by appellate courts. 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3907, p. 433 (1976). Given an attorney’s personal and financial interest in the disqualification decision, orders disqualifying counsel may be more likely to lead to an interlocutory appeal than other pretrial rulings, whether those rulings are correct or otherwise. To be sure, an order granting disqualification itself leads to delay. Alternate counsel must often be retained. Even in cases like this one where competent alternate counsel had already entered appearances and participated in the litigation, such counsel will need time to gain the knowledge of the disqualified attorneys. But where the disqualification decision of the trial court is correct, this delay is unavoidable. We do not think that the delay resulting from the occasionally erroneous disqualification outweighs the delay that would result from allowing piecemeal appeal of every order disqualifying counsel.

We also decline to view the disqualified attorney’s personal desire for vindication as an independent ground for interlocutory appeal. An attorney who is disqualified for misconduct may well have a personal interest in pursuing an immediate appeal, an interest which need not coincide with the interests of the client. As a matter of professional ethics, however, the decision to appeal should turn entirely on the client’s interest. See ABA Model Rules of Professional Conduct 1.7(b), 2.1 (1985). In neither Firestone nor Flanagan did the Court regard the attorney’s personal interest in a disqualification ruling as relevant or dispositive. Moreover, a rule precluding appeal pursuant to § 1291 would not necessarily leave the client or the disqualified attorney without a remedy. As we noted in Firestone, “a party may seek to have the question certified for interlocutory appellate review pursuant to 28 U. S. C. § 1292(b), . . . and, in the exceptional circumstances for which it was designed, a writ of mandamus from the court of appeals might be available.” 449 U. S., at 378-379, n. 13. Alternatively, if the client obtains an unsatisfactory judgment with substitute counsel, the disqualification ruling may be challenged on appeal of a final judgment. Even when the client is satisfied with the judgment obtained by substitute counsel, an attorney whose reputation has been egregiously injured by the trial court’s disqualification decision might be able to obtain relief from the Circuit Judicial Council pursuant to 28 U. S. C. § 332(d)(1).

Finally, we share the Court of Appeals’ concern about “tactical use of disqualification motions” to harass opposing counsel. Nevertheless, we do not believe that this “dangerous game” constitutes an independent justification for immediate appeal of an order disqualifying an attorney. Implicit in § 1291 is Congress’ judgment that the district judge has primary responsibility to police the prejudgment tactics of litigants, and that the district judge can better exercise that responsibility if the appellate courts do not repeatedly intervene to second-guess prejudgment rulings. Cf. Cohen v. Beneficial Loan Corp., 337 U. S., at 546 (“Appeal gives the upper court a power of review, not one of intervention”). Like any referee, the district judge will occasionally make mistakes. A mistaken ruling disqualifying counsel imposes financial hardship on both the disqualified lawyer and the client. But the possibility that a ruling may be erroneous and may impose additional litigation expense is not sufficient to set aside the finality requirement imposed by Congress. Coopers & Lybrand, 437 U. S., at 476, and n. 28; Will v. United States, 389 U. S. 90, 98, n. 6 (1967). “If the expense of litigation were a sufficient reason for granting an exception to the final judgment rule, the exception might well swallow the rule.” Lusardi v. Xerox Corp., 747 F. 2d 174, 178 (CA3 1984). The Coopers & Lybrand test looks not to the litigation expense imposed by a possibly erroneous ruling, but rather to whether the right affected by the ruling can and should be protected by appeal prior to judgment. To that inquiry we now turn.

B

In Flanagan, the Court held that orders disqualifying counsel in criminal cases cannot satisfy either the second or the third parts of the Coopers & Lybrand test: If a showing of prejudice is a prerequisite to reversal, then the ruling is not “completely separate” from the merits because it cannot be assessed until a final judgment has been entered; on the other hand, if a showing of prejudice is not required, then the ruling can be effectively reviewed on appeal of the final judgment. 465 U. S., at 267-269. Apart from its policy discussion, the Court of Appeals held that Flanagan’s analysis is inapplicable in the civil context.

First, the appellate panel asserted that a showing of prejudice would be required in civil cases: “Only an erroneous disqualification combined with prejudice at trial could conceivably result in outright reversal of a civil judgment.” 237 U. S. App. D. C., at 347, 737 F. 2d, at 1052. Nevertheless, the panel concluded that the ruling is both incapable of review on appeal of a final judgment and completely separate from the merits. The panel concluded that a disqualification order is unreviewable on appeal of a final judgment because:

“[I]t would appear virtually impossible to show prejudice resulting from the absence of one counsel and the substitution of another. In a criminal case, a reviewing court could at least draw from the extensive body of law concerning effective assistance of counsel as a first step in determining whether substitute counsel’s performance prejudiced the defense so as to require reversal. In the civil context, however, the court would be without a starting point; because there is no sixth amendment right involved, there is no body of law to help a court evaluate whether a civil judgment should be overturned because of the quality of counsel’s representation.” Ibid, (footnote omitted).

The panel finally concluded that the disqualification ruling was completely separate from the merits, even though prejudice is a prerequisite to reversal of a judgment, because (1) it would be difficult to show that prejudice resulted from an erroneous disqualification; (2) the extensive record in this particular case “presents an entirely adequate basis for determining whether the district court’s order was proper”; and (3) the “validity” of a disqualification order in a civil case does not depend on either prejudice or the Sixth Amendment right to counsel. Id., at 347-348, 737 F. 2d, at 1052-1053.

We find these efforts to distinguish Flanagan unavailing. To a large extent, the Court of Appeals’ analysis rests on a conundrum of its own making. This Court has never held that prejudice is a prerequisite to reversal of a judgment following erroneous disqualification of counsel in either criminal or civil cases. As in Flanagan, we need not today decide this question. But we note that the difficulties in proving prejudice identified by the Court of Appeals go more to the issue of the showing required to reverse a final judgment than to whether a disqualification order should be subject to immediate appeal.

The Court of Appeals relies on a requirement of prejudice to overcome the third Coopers & Lybrand requirement that the ruling “be effectively unreviewable on appeal from a final judgment.” 437 U. S., at 468. Yet by reversing the decision of the District Court on the interlocutory appeal, the Court of Appeals implicitly held that a showing of prejudice is not required on interlocutory appeal. We are unpersuaded by this analysis. As in Flanagan, we conclude that, if establishing a violation of one’s right to counsel of choice in civil cases requires no showing of prejudice, then “a pretrial order violating the right does not meet the third condition for coverage by the collateral-order exception: it is not ‘effectively unreviewable on appeal from a final judgment.’ ” 465 U. S., at 268. Absent a requirement of prejudice, the propriety of the trial court’s disqualification order can be reviewed as effectively on appeal of a final judgment as on an interlocutory appeal.

We must likewise reject the Court of Appeals’ suggestion that civil orders disqualifying counsel satisfy the second condition of the collateral order exception. To do so it is enough to rely on Flanagan. If the nature of the right to representation by counsel of one’s choice is that “[it] is not violated absent some specifically demonstrated prejudice,” ibid., then a disqualification order, though “final,” is not independent of the issues to be tried. Only after assessing the effect of the ruling on the final judgment could an appellate court decide whether the client’s rights had been prejudiced. If respondent were to proceed to trial and there receive as effective or better assistance from substitute counsel than the disqualified attorney could provide, any subsequent appeal of the disqualification ruling would fail. For the same reasons as in Flanagan, the disqualification ruling would be inextricably tied up in the merits.

Even apart from Flanagan’s analysis, we would conclude that orders disqualifying counsel in civil cases are not “completely separate from the merits of the action.” Coopers & Lybrand, 437 U. S., at 468. The Court of Appeals asserts that, in this particular case, the extensive record “presents an entirely adequate basis for determining whether the district court’s order was proper.” 237 U. S. App. D. C., at 348, 737 F. 2d, at 1053. This Court, however, has expressly rejected efforts to reduce the finality requirement of § 1291 to a case-by-case determination of whether a particular ruling should be subject to appeal. Coopers & Lybrand, supra, at 473-475. Even if some orders disqualifying counsel are separable from the merits of the litigation, many are not. Orders disqualifying attorneys on the ground that they should testify at trial, for example, are inextricable from the merits because they involve an assessment of the likely course of the trial and the effect of the attorney’s testimony on the judgment. Kahle v. Oppenheimer & Co., 748 F. 2d, at 339. Appellate review of orders disqualifying counsel for misconduct may be entwined with the merits of the litigation as well. If reversal hinges on whether the alleged misconduct is “likely to infect future proceedings,” 237 U. S. App. D. C., at 351, 737 F. 2d, at 1056, courts of appeals will often have to review the nature and content of those proceedings to determine whether the standard is met. In this case, for example, the Court of Appeals opinion exhaustively discusses respondent’s claim on the merits, the relevance of the alleged instances of misconduct to the attorney’s zealous pursuit of that claim, the pretrial proceedings in the trial court, and the danger that it will be difficult for the trial judge “to act with complete impartiality in future proceedings.” Id., at 359, 737 F. 2d, at 1064. In light of these factors, we conclude that orders disqualifying counsel in civil cases, as a class, are not sufficiently separable from the merits to qualify for interlocutory appeal.

IV

We acknowledge that an order disqualifying counsel may impose significant hardship on litigants. Particularly where the grounds for disqualification are troubling, this hardship may tempt courts of appeals to assert jurisdiction pursuant to § 1291. But in the words of Judge Adams:

“[I]t would seem to us to be a disservice to the Court, to litigants in general and to the idea of speedy justice if we were to succumb to enticing suggestions to abandon th 3 deeply-held distaste for piecemeal litigation in every instance of temptation. Moreover, to find appealability in those close cases where the merits of the dispute may attract the deep interest of the court would lead, eventually, to a lack of principled adjudication or perhaps the ultimate devitalization of the finality rule as enacted by Congress.” Bachowski v. Usery, 545 F. 2d 363, 373-374 (CA3 1976).

As in Firestone, we decline to “transform the limited exception carved out in Cohen into a license for broad disregard of the finality rule imposed by Congress in § 1291.” 449 U. S., at 378.

We hold that orders disqualifying counsel in civil cases, like orders disqualifying counsel in criminal cases and orders denying a motion to disqualify in civil cases, are not collateral orders subject to appeal as “final judgments” within the meaning of 28 U. S. C. § 1291. The Court of Appeals lacked jurisdiction to entertain respondent’s appeal and should not have reached the merits. Firestone, 449 U. S., at 379. We accordingly do not address the additional issues on which we granted certiorari, and we do not intimate any view on the merits of the District Court’s disqualification decision.

The judgment of the Court of Appeals is vacated, and the case is remanded with instructions to dismiss the appeal for want of jurisdiction.

It is so ordered.

Justice Powell took no part in the decision of this case.

Justice Brennan,

concurring.

A fundamental premise of the adversary system is that individuals have the right to retain the attorney of their choice to represent their interests in judicial proceedings. To be sure, that right is qualified. A court need not, for example, permit an individual to retain anyone at all, regardless of qualifications, to represent him in open court. Nor must a court continue to permit an individual to be represented by an attorney who by his misconduct in open court has threatened the integrity of the proceedings. Nonetheless, if an attorney is adequately qualified and has not otherwise acted so as to justify disqualification, the client need not obtain the permission of the court or of his adversary to retain the attorney of his choice.

I share the view of the Court and the Court of Appeals below that the tactical use of attorney-misconduct disqualification motions is a deeply disturbing phenomenon in modern civil litigation. When a trial court mistakenly disqualifies a party’s counsel as the result of an abusive disqualification motion, the court in essence permits the party’s opponent to dictate his choice of counsel. As the court below recognized, this result is in serious tension with the premises of our adversary system, see 237 U. S. App. D. C. 333, 352, 737 F. 2d 1038, 1057 (1984), and some remedy must therefore be available to correct the error. The question before the Court today is whether that remedy is an automatic interlocutory appeal or whether instead the remedy is simply a stringent review of the disqualification decision on review of the final judgment in the case.

The Court holds that the plaintiff in this case must undergo the burdens of trial without the counsel of her choice before being permitted to obtain appellate review of what may well be an erroneous disqualification. As the Court points out, this result is in accord with our recent decisions in Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368 (1981), and Flanagan v. United States, 465 U. S. 259 (1984). Today’s case, however, is somewhat different from both of those cases. Respondent’s attempt to vindicate her right to the attorney of her choice is substantially more compelling than the claim in Firestone of a “right” not to have one’s opponent represented by counsel who has misbehaved. And permitting an interlocutory appeal here would not implicate the strong public interest in speedy disposition of criminal trials that influenced the decision in Flanagan. Nonetheless, a litigant’s right to retain an attorney of choice can be protected on review of final judgment if appellate courts are willing when necessary to set aside verdicts — even when they result from lengthy civil proceedings. Moreover, today’s result could well give pause to a party considering an abusive disqualification motion, for an improper grant of such a motion could jeopardize an ultimate jury verdict in his favor. On the understanding that the courts of appeals will develop standards for reviewing final judgments that will effectively protect each litigant’s right to retain the attorney of choice, I join the Court’s opinion.

Justice Stevens,

dissenting.

Everyone must agree that the litigant’s freedom to choose his own lawyer in a civil case is a fundamental right. The difficult question presented by this case is whether the denial of that right by a district court’s disqualification order can effectively be reviewed following a judgment on the merits.

In my opinion, Flanagan v. United States, 465 U. S. 259 (1984), does not control the decision in this case. The strong public interest in the prompt disposition of criminal charges — an interest shared by both the prosecutor and the defendant — is not present to the same extent in the civil context where the defendant’s interest in delay may motivate a motion to disqualify in a borderline case. Moreover, in a criminal case an erroneous order disqualifying the lawyer chosen by the defendant should result in a virtually automatic reversal; review after trial on the merits is therefore “effective” to protect the right.

In the civil context, I do not believe a pretrial disqualification order would similarly be effectively re viewable after the entry of a final judgment. Prejudice to a litigant’s right to go to trial with the advocate of his choice is suffered the moment a disqualification order is granted. Nevertheless, after a trial with substitute counsel has been held, I would be most reluctant to subscribe to a rule requiring reversal without a showing of some impact on the outcome. Yet I believe it would be virtually impossible to demonstrate that an outcome has been affected by the change of counsel as opposed to the other myriad variables present in civil litigation. Both prejudice to the litigant’s freedom of choice and the substantive basis of attorney disqualifications based on pretrial actions are “completely separate” from the underlying merits. I am therefore persuaded that a disqualification order fits squarely within the classic formulation of an appealable collateral order:

“This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Loan Corp., 337 U. S. 541, 546 (1949).

This was the unanimous conclusion of the Courts of Appeals that addressed attorney disqualification orders prior to Flanagan, and remained the conclusion of four of the five Courts of Appeals that addressed the issue of attorney disqualifications for pretrial misconduct following that decision. I am more confident of the ability of the various Courts of Appeals to evaluate the problem of disqualification motions and supervise the local bench and bar than I am of the accuracy of our own more distant perspective.

On the merits of the disqualification of respondent Roller’s counsel here, I agree with the Court of Appeals’ explanation of why the District Court’s decision was erroneous as a matter of law. See 237 U. S. App. D. C. 333, 349-359, 737 F. 2d 1038, 1054-1064 (1984). Accordingly, I would affirm the judgment of the Court of Appeals.

       In their response to the District Court’s order to show cause, Butler and Allis suggested that the court should certify any ruling disqualifying them for appeal pursuant to 28 U. S. C. § 1292(b). App. 253. Respondent apparently never moved for certification after the disqualification order of January 4, 1984. The sole basis for appellate jurisdiction asserted by respondent and by the Court of Appeals is 28 U. S. C. § 1291.

       Although it is well established that Judicial Councils do not exist to review claims that a particular trial judge’s rulings were erroneous, In re Charge of Judicial Misconduct, 613 F. 2d 768 (CA9 1980), they do exist “to provide an administrative remedy for misconduct of a judge for which no judicial remedy is available.” In re Charge of Judicial Misconduct, 595 F. 2d 517 (CA9 1979). Cf. In re Complaint of A. H. Robins Co., JCP 84-001 (CA8 Judicial Council, Dec. 26, 1984) (noting that Judicial Council conducted hearings, received briefs, and heard oral arguments on complaint that Federal District Judge improperly accused counsel of misconduct, and then dismissed complaint as moot only because a Circuit panel found separate grounds to permit an appeal in Gardiner v. A. H. Robins Co., 747 F. 2d 1180 (CA8 1984)).

       See Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978) (matters “effectively reviewable” after final judgment not subject to interlocutory appeal).

       See 237 U. S. App. D. C. 333, 346, 737 F. 2d 1038, 1051 (1984) (while “tactical use of motions to disqualify counsel” recently have become prevalent in civil cases, “[w]e are aware of no comparable phenomenon in criminal cases”).

        Coopers & Lybrand, supra, at 468.