Your gray-haired pilot

Alone, in their 50-seat commercial jet, the two young pilots decided to see what [the Bombardier CRJ200] could do," reported The New York Times in an article titled, "Just Before Dying, a Thrill at 41,000 Feet." The article described how the pilots took the aircraft up to its altitude limit of 41,000 feet. Then, quoting from a transcript of their conversation, it reported that as the jet neared the limit, the 23-year-old second-in-command said, "Oh, look at that. Pretty cool," to which the 31-year-old captain responded, "Man, we can do it." A short time later, both engines stalled and cut out, the pilots couldn't restart them and the airplane crashed.

By emphasizing the pilots' ages, the article raised an interesting question. If you're boarding an airplane, who would you rather see entering the flight deck: a gray-haired 60-ish pilot with a military bearing (just like the guys in the airline commercials) or a 20-something pilot who looks as if he just graduated from flight school? As the newspaper article suggested, passengers probably believe that younger pilots are more likely to take risks and are less experienced at dealing with emergencies-both possible contributors to the CRJ200 crash-than their more seasoned counterparts.

But older pilots have their own problems. Everyone agrees that age, and the experience that goes with it, are good things-up to a point. Most passengers would not be delighted to hear that their pilots are, say, 100 years old. In fact, FAA regulations require that pilots who reach age 60 cannot operate aircraft under Federal Aviation Regulations Part 121, the regulatory statute governing the airlines. The airlines can still employ over-60 folks, but not as pilots on Part 121 flights.

Should business jet operators follow suit? First, most business jets operate under Federal Aviation Regulations Part 91 and/ or Part 135. Neither of those regulatory statutes contains an "age-60" rule. Second, an appeal to the rule for airline pilots may not be much help in fending off a charge of age discrimination as a result of terminating an over-60 pilot or relieving him or her of flight duties.

That's what ExxonMobil did recently. Last September, pursuant to a long-standing corporate policy, the company relieved a pilot of his flight duties when he turned 60. ExxonMobil based the action on the pilot's age, not on an assessment of his ability to perform his job. Shortly after he was terminated, the U.S. Equal Employment Opportunity Commission filed an age discrimination suit against ExxonMobil. In response, the company, which operates flights under Part 91, invoked the Part 121 rule that applies to airline pilots.

The Safety Issue
The issue is safety, according to an ExxonMobil spokesman, who commented, "We feel, for safety reasons, that our pilots face the same challenges in flight that commercial pilots do." Arguably, the challenges could be greater, given that the pilot flight time limitations and rest requirements of Part 121 (and Part 135) do not apply to Part 91 operations. The case is still pending.

Nor are government enforcement actions the only concern. In a private lawsuit against management company PrivatAir and three employees, a Los Angeles jury recently found that the termination of a 63-year-old pilot involved unlawful discrimination. The jury awarded nearly $64 million in damages, including more than $2.5 million for age discrimination.

How to handle aging pilots is a difficult and sometimes contentious issue. After years of experience on the flight deck, a great many corporate pilots over age 60 remain eminently qualified to fly airplanes. To terminate their duties arbitrarily at age 60 seems unfair both to them and to their passengers. As a result, many people in business aviation advocate, in addition to the annual pilot physical mandated by the FAA, additional testing of pilots to determine whether they remain qualified after age 60.

But determining a pilot's qualifications to continue flying isn't easy. The FAA annual physicals are certainly not sufficient. As one pilot said to me recently, "If you can hear and you can see and your heart's beating, you can pass." In any case, while a doctor's physical examination can determine whether a pilot needs glasses, it's hardly ideal for assessing his attention span or ability to stay awake on long flights. Here the observations of fellow crew members, employers and passengers are critical.

Some pilots appreciate the virtues of the age-60 rule. Undoubtedly, it indiscriminately sweeps away many perfectly qualified pilots, but it also relieves many unqualified pilots without the need to prove they are unqualified. Moreover, no aspersions are cast on a pilot's flight abilities when he is terminated by application of such a hard-and-fast rule.

Dangerous Course
What's a business aviation employer to do? The ExxonMobil case, which as noted above remains undecided, shows it is a dangerous course to import the age-60 rule from the airline regulations and make it company policy. Employers are no doubt better off evaluating each pilot's qualifications on an individual basis. But, as the PrivatAir case helps demonstrate, this is a risky course, too-a terminated pilot can challenge the basis of the decision on grounds of age discrimination.

The safest course may not be to fire pilots at all, but to provide them incentives to quit. Many companies offer early-retirement packages to pilots over age 60 that essentially eliminate the need to evaluate their qualifications. If a pilot refuses to accept such a package, employers should exercise caution in evaluating his ability to continuing flying.

Meanwhile, the FAA is considering changing the age-60 rule along the lines of the International Civil Aviation Organization standards, which permit pilots to continue flying up to age 65 under certain circumstances. Stay tuned.