MR. JUSTICE WHITE delivered the opinion of the Court.
The issue presented is whether Congress violates the equal protection component of the Fifth Amendment's Due Process Clause
The statutory provision under attack, § 632 of the Foreign Service Act of 1946, 60 Stat. 1015, as amended, 22 U. S. C. § 1002, mandates the retirement at age 60 of participants in the Foreign Service retirement system.
Appellees have not suggested that the statutory distinction between Foreign Service personnel over age 60 and other federal employees over that age
In arguing that § 632 easily satisfies this standard, the appellants submit that one of their legitimate and substantial goals is to recruit and train and to assure the professional competence, as well as the mental and physical reliability, of the corps of public servants who hold positions critical to our foreign relations, who more often than not serve overseas, frequently under difficult and demanding conditions, and who must be ready for such assignments at any time. Neither the District Court nor appellees dispute the validity of this goal.
At least since the enactment of the Rogers Act in 1924, which created the Foreign Service by reorganizing the diplomatic and consular services into a single entity, Congress has recognized the distinctive requirements associated with the conduct of the country's foreign relations and has provided personnel policies for the Foreign Service separate and apart from the general Civil Service system. Among other differences, Foreign Service officers have been subject to an earlier retirement age than is true in the Civil Service.
Congress continued to give special attention to the Foreign Service when it passed the Foreign Service Act of 1946, 60 Stat. 999, which, with amendments, is still in effect. That Act reorganized the Foreign Service, provided it with a new personnel structure, and revised its retirement system. The intention was to produce a "disciplined and mobile corps of trained men . . . through entry at the bottom on the basis of competitive examination and advancement by merit to positions of command." H. R. Rep. No. 2508, 79th Cong., 2d Sess., 1 (1946).
It was also in 1946 that the compulsory retirement age for most classes of Foreign Service officers was lowered from 65 to 60. This provision, § 632, was grouped with the selection-out sections of the Act.
The District Court nevertheless rejected this justification for § 632, stating in conclusory fashion that "recruiting and promoting younger people solely because of their youth is inherently discriminatory and cannot provide a legitimate basis for the statutory scheme." 436 F. Supp., at 136. Whether or not this is a sound legal proposition, we think that the
The District Court also rejected this justification for § 632 because "there is no obvious reason why [it] would not equally apply to the Civil Service." 436 F. Supp., at 136. But this criticism ignores the evident congressional conviction that the country should be at great pains to assure the high quality of those occupying positions critical to the conduct of our foreign relations in the post-war world.
The appellants also submit that the Foreign Service involves extended overseas duty under difficult and often hazardous conditions and that the wear and tear on members of this corps is such that there comes a time when these posts should be filled by younger persons. Mandatory retirement, it is said, minimizes the risk of less than superior performance
As we have indicated, under the Rogers Act retirement of Foreign Service officers was required at 65, whereas under the relevant statute the retirement age for most Civil Service employees with sufficient length of service was 70 years of age. Choosing the lower age for the Foreign Service was a considered choice.
In the intervening years, the Federal Government has often repeated the concern first raised in 1924.
The District Court did not deny the legitimacy of the
Our first difficulty with this conclusion is that it ignores what we have already pointed out—namely, that Congress has legislated separately for the Foreign Service and has gone to great lengths to assure that those conducting our foreign relations will be sufficiently competent and reliable in all respects. If Congress attached special importance to high performance in these positions, which it seems to us that it did, it was quite rational to avoid the risks connected with having older employees in the Foreign Service but to tolerate those risks in the Civil Service. Whether or not individual judges may agree with this assessment, it is not for the courts to reject it.
Putting aside this rational basis for sustaining § 632, however, the District Court was in error for other reasons in invalidating the statute on the ground that Civil Service employees serving overseas under similar conditions and facing comparable hardships were not also subject to the burden of early retirement. Those subject to § 632 compose a relatively
The same is not true of the Civil Service. Only approximately 5% of these employees serve overseas at any one time, and foreign duty is in the main a voluntary matter.
Even if the classification involved here is to some extent both underinclusive and overinclusive, and hence the line drawn by Congress imperfect, it is nevertheless the rule that in a case like this "perfection is by no means required." Phillips Chemical Co. v. Dumas School Dist., 361 U.S. 376, 385 (1960); accord, San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 51 (1973). The provision "does not offend the Constitution simply because the classification `is not made with mathematical nicety . . . .' " Dandridge v. Williams, 397 U.S. 471, 485 (1970), quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911).
We accept such imperfection because it is in turn rationally related to the secondary objective of legislative convenience. The Foreign Service retirement system and the Civil Service retirement system are packages of benefits, requirements, and restrictions serving many different purposes. When Congress decided to include groups of employees within one system or the other, it made its judgments in light of those amalgamations of factors. Congress was entitled to conclude that certain groups of employees share more characteristics with Foreign Service officers than with Civil Service personnel even though not serving for as long in as important overseas posts, and that other employees share more characteristics with Civil Service personnel than with Foreign Service officers even though serving some time in some overseas positions. Congress chose not to examine exactly which individual employees are likely to serve long enough in important enough positions in demanding enough locales to warrant mandatory early retirement. Rather than abandoning its primary end completely, or unnecessarily including all federal employees within the means, it drew a line around those groups of employees it thought most generally pertinent to its objective. Whether we, or the District Court, think Congress was unwise in not choosing a means more precisely related to its primary purpose is irrelevant. Califano v. Jobst, 434 U.S. 47, 56-58 (1977); New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
Despite all this, appellees urge us to affirm the judgment on a basis not relied upon by the District Court: that the mandatory retirement age of 60 has no relation to the objective of reliable service in important foreign posts because
Appellees rely in particular on the posture of the case— cross motions for summary judgment. They point out that their affidavits state that many overseas posts are as comfortable and safe as any in the United States; that many Foreign Service personnel under 60 have health problems; that employees just under the mandatory retirement age fill their fair share of hardship posts; and that age is not related to susceptibility to certain diseases and ailments commonly linked to life overseas.
Appellees seem to believe that appellants had to have current empirical proof that health and energy tend to decline somewhat by age 60 and had to offer such proof for the District Court's perusal before the statute could be sustained.
Consequently, appellees were required to demonstrate that Congress has no reasonable basis for believing that conditions overseas generally are more demanding than conditions in the United States and that at age 60 or before many persons begin something of a decline in mental and physical reliability. Appellees have not satisfied these requirements. They say that many overseas posts are as pleasant as those in the United States and that many people over age 60 are healthy and many younger people are not.
For these reasons, the judgment appealed from must be reversed.
MR. JUSTICE MARSHALL, dissenting.
The Court today finds a rational basis for the forced retirement of Foreign Service personnel at age 60, on a record devoid of evidence that persons of that age or older are less capable of performing their jobs than younger employees. I adhere to my view in Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 317-327 (1976) (MARSHALL, J., dissenting), that mandatory retirement provisions warrant more than this minimal level of equal protection review. Because
A person's interest in continued Government employment, although not "fundamental" as the law now stands, certainly ranks among the most important of his personal concerns that Government action would be likely to affect. Id., at 322-323; cf. Arnett v. Kennedy, 416 U.S. 134 (1974); Board of Regents v. Roth, 408 U.S. 564, 572 (1972); Smith v. Texas, 233 U.S. 630, 636, 641 (1914). This interest is of special significance to older employees, because
When legislative action affects individual interests of such dimension, a heightened level of judicial scrutiny is appropriate.
In addition, mandatory retirement provisions warrant careful judicial attention because of the class on which the deprivation is imposed. To be sure, the elderly are not a "discrete and insular minorit[y]," United States v. Carolene Products Co., 304 U.S. 144, 153 n. 4 (1938),
Before applying this intermediate standard, it is first necessary to determine the nature of the classifications that the statute delimits. In this case, there are two. The statutory scheme distinguishes between civil servants and Foreign Service personnel and between Foreign Service employees under 60 and those 60 or over. Appellees unequivocally claimed in this Court that the latter distinction was unconstitutional, see Brief for Appellees 76-78; Tr. of Oral Arg. 26-28, as the Court seems to concede, ante, at 109-110, and n. 27. Nonetheless the Court summarily dismisses this claim, finding that appellees
By limiting its consideration of the classifications at issue, the majority has evaded the more difficult question in this case. This Court has repeatedly held that a "prevailing party may . . . assert in a reviewing court any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court." Dandridge v. Williams, 397 U.S. 471, 475 n. 6 (1970); accord, California Bankers Assn. v. Shultz, 416 U.S. 21, 71 (1974); Langnes v. Green, 282 U.S. 531, 538-539 (1931); United States v. American Railway Express Co., 265 U.S. 425, 435 (1924).
Undoubtedly, an important objective of the Foreign Service retirement system is to assure the "professional competence"
In my judgment, appellees have successfully challenged the Government's central premise that the pressures of transient Foreign Service life diminish the capacity of older employees to perform their jobs. There is nothing inherent in any of the positions that appellees hold to indicate that early retirement is necessary to ensure excellence. Foreign Service officers in the State Department engage in economic and political research, visa or other consular work, negotiations with representatives of foreign governments, personnel recruitment and management, and other administrative functions. See United States Dept. of State and International Communication Agency, Foreign Service Officer Careers 4-8 (1978). Officers in the International Communication Agency lecture and perform cultural and other informational duties, as well as administrative and personnel management functions. Id.,
That older workers could effectively perform such Foreign Service jobs is also suggested by the lack of an early mandatory retirement provision for civil servants who spend much of their careers abroad doing work similar to that of Foreign Service personnel. Of the over 58,000 American civilians in Government positions overseas in 1976, only the 4,787 Foreign Service personnel faced mandatory retirement at age 60. 436 F.Supp. 134, 136 (DC 1977). Moreover, discrete segments of this work force, such as the Agriculture Department's Foreign Service, spend almost as much of their tenure overseas as do members of the State Department's Foreign Service. Id., at 137. The Court discounts these figures because it finds that the need for excellence in the Foreign Service may be more compelling than in the Civil Service. Ante, at 106. However, almost 40% of the Americans working overseas for Foreign Service agencies are civil servants who are not subject to forced retirement, and AID often has its work performed on a contract basis by other agencies that do not have mandatory retirement provisions. 436 F. Supp., at 136-137; see § 5, 92 Stat. 191. Despite this broad experience with older workers in
Appellees, on the other hand, introduced a substantial amount of medical testimony dispelling any adverse correlation between job performance and advancing age, and offered to introduce more. For example, the former chief psychiatrist for the Peace Corps stated flatly that "inability to perform work satisfactorily under stressful conditions in overseas cultures has no relationship to advancing age." Affidavit of Dr. J. English 2. See also Affidavit of Dr. D. Kessler; Affidavit of T. Fox.
See also Report of the Secretary of Labor to the Congress Under Section 715 of the Civil Rights Act of 1964: Research Materials 86 (1965); Edelman & Siegler 27-31; Note, 88 Yale L. J., at 576-577, and sources cited therein.
The Court closes its eyes to appellees' evidence against the mandatory retirement provision and excuses the Government from producing evidence in support of it because Congress determined that the nomadic life of Foreign Service personnel would take its toll by the age of 60. This determination, the Court concludes, rested on the "common-sense proposition that aging—almost by definition—inevitably wears us all down." Ante, at 112.
With respect to sex discrimination, we have refused to accept " `overbroad' generalizations" about the characteristics of a particular class as substantial support for a legislative classification. See Califano v. Goldfarb, 430 U.S. 199, 211 (1977) (plurality opinion); Craig v. Boren, 429 U. S., at 198-199; Stanton v. Stanton, 421 U.S. 7 (1975); Frontiero v. Richardson, 411 U.S. 677 (1973). I believe the same rule should apply here. See supra, at 113-115. While age, unlike sex, is at some point likely to bear a relationship to ability, I would require a showing that a substantial relationship does in fact exist. Thus, to the extent that Congress in § 632 viewed age as predictive of a decline in competence, this Court should not simply assume the correlation, but should inquire whether age is a sufficiently accurate predictor to justify the significant deprivations imposed by forced retirement. See Craig v. Boren, supra, at 201-202.
Not only is mandatory retirement an insufficiently accurate predictor of competence, it is also an unnecessary one. As the Foreign Service personnel system now operates, persons who do not measure up to Service standards are selected out, or terminated, after an annual review. Ante, at 99. Further, all Foreign Service employees are given biennial medical examinations, as well as special examinations when necessary, and are subject to medical selection out if they are not fit for duty. See Record 20. Under this scheme, then, the continued competence of appellants' personnel is periodically assessed. With such individualized procedures already in effect, the Government cannot realistically claim that prohibiting resort to age-based generalizations would jeopardize the quality of the Foreign Service. Cf. United States Dept. of Agriculture v. Murry, 413 U.S. 508, 518-519 (1973) (MARSHALL, J., concurring); Craig v. Boren, supra, at 199.
The other ground on which the Court upholds mandatory retirement is its function of
This justification, it seems to me, would legitimate any retirement system in which there are a limited number of highlevel positions. Indeed, the Court acknowledges as much when it deems the rationale equally applicable to Foreign Service staff personnel, who were not designated by Congress as an elite cadre but who are nonetheless subject to the mandatory retirement provisions. Ante, at 99-100, n. 15. The fundamental flaw in this analysis is that the Court ends rather than begins its inquiry by articulating the legislative goal of a competent Foreign Service. See Trimble v. Gordon, 430 U.S. 762, 769 (1977). The question that the majority fails to pursue is whether, on balance, mandatory retirement at 60 substantially furthers this goal.
The answer is not readily apparent, for even if mandatory retirement does ensure promotional opportunities for younger employees, it also deprives the Service of the talents of persons who it has admitted are, at least at the time of their retirement, "its best officers." S. Doc. No. 14, 90th Cong., 1st Sess., 118 (1967). In the absence of any evidence that employees aged 60 and over are less able, or that forced retirement does in fact boost productivity by enhancing recruitment and promotional opportunities, this proffered justification does not withstand analysis.
Moreover, appellees note that most Foreign Service officers, prompted by the generous pension benefits offered by the Service, retire well before the age of 60. See Record 20. The experience of the Civil Service and private employers suggests that this pattern would not change significantly were the mandatory retirement age raised. See U. S. Civil Service
I do not disagree, of course, that Congress could legitimately take "great pains to assure the high quality of those occupying positions critical to the conduct of our foreign relations in the post-war world." Ante, at 101. Nor do I contend that this Court should substitute its judgment for that of the Congress or the Foreign Service on the appropriate retirement system for Foreign Service personnel. I submit, however, that it is the function of this Court to assess constitutional challenges to that system on the record before us. Appellees presented substantial evidence that the mandatory retirement provision has not accomplished the purposes for which it was designed. The Government failed to establish otherwise. Where individuals' livelihood, self-esteem, and dignity are so critically affected, I do not believe the Government should be relieved of that responsibility.
Accordingly, I dissent.
In designing this unified personnel scheme in 1946, Congress presumed that those in the highest classes would be close to or over age 60, H. R. Rep. No. 2508, supra n. 18, at 91, that those in the next two highest categories would be between 45 and 55, id., at 92, and that those in the next two ranks down would be quite young. Id., at 93. These presumptions are hardly irrational in a system designed with the intention that most personnel would begin their professional careers at the bottom of the Service and move upward with time. See id., at 5; n. 14, supra. Thus, those who have reached age 60 are likely to have achieved the top ranks of the Service, and their departures usually will have a domino effect creating opportunities at each lower level.
Moreover, appellees have not shown that their alternative would be any less arbitrary than they think the present system is. As Congress recognized, selection out works best at the lower ranks where differences in merit are the greatest. See H. R. Rep. No. 229, supra n. 14, at 12. At the top ranks, where the officers have all been selected up a number of times, it is increasingly difficult to try to draw fine distinctions between persons who may all be extremely competent. And because Congress decided to grant annuities to those in the upper categories who are selected out after having dedicated much of their lives to the service, it found that "the system should be administered to reduce to a minimum the number of separations of middle-aged men, not only because of the hardship on them, but because of the expense to the Government." H. R. Rep. No. 2508, supra n. 18, at 92.
When Congress included career staff in the retirement system, it found that the same concern applies to them:
"The Foreign Service retirement system is designed to give recognition to the need for earlier retirement age for career Foreign Service personnel who spend the majority of their working years outside the United States adjusting to new working and living conditions every few years. Staff personnel who serve for any length of time are subject to the same conditions." H. R. Rep. No. 2104, 86th Cong., 2d Sess., 31 (1960).
"(1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs;
"(2) the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons;
"(3) the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave . . . ."
"While some loss of pulmonary function occurs with age, such loss does not ordinarily advance to the pathological stage where it interferes with the ability to work and otherwise function. Certainly, such normal loss would not impair the ability of an individual to work effectively between the ages of sixty and seventy." Affidavit of Dr. A. Munzer 2.
When Congress extended the Foreign Service retirement system to staff personnel, it cited the frequent adjustments that the jobs required. However, it did so in the context of recommending that staff personnel be able to enjoy the "advantages" of the retirement system, H. R. Rep. No. 2104, 86th Cong., 2d Sess., 31 (1960), that is, that they be permitted to retire at an early age if they so desired. Thus, the 1960 legislative history nowhere reflects an assessment of the competence of these personnel to perform their jobs.
Given the staleness of the only express congressional "determination" before us, and Congress' failure subsequently to focus on the issue, one may question the appropriateness of the extraordinary deference the Court here affords to congressional factfinding. See ante, at 109-112.
"Insofar as the general Federal work force is concerned, the removal of the mandatory age 70 provision should have little effect on recruiting younger people. Our experience in recent years has been one of high turnover at the senior levels due to early retirement." H. R. Rep. No. 95-527, pt. 1, p. 3 (1977).