Thought leadership from our experts

Age-based restrictions for pilots and crew gender equality – overview of recent discrimination issues in the aviation sector

On 13 April 2021 the Italian Supreme Court issued the Judgment No. 9662/2021 on a case concerning the legitimacy of an Italian national measure setting special age restrictions for aircraft pilots involved in national intelligence operations.

In particular, the case was brought to the attention of the Italian Supreme Court by a pilot employed by an aviation company operating in the field of national intelligence, whose employment contract was automatically terminated upon reaching the age of 60 years pursuant to the provisions of the Presidential Decree dated 9 September 2008. The reason for the dispute is that the retirement age for commercial airline pilots in Italy is set at 65 years (under Regulation 1178/2011) and accordingly the applicant, given that the company in question is formally registered as a civil aviation company, considered the above Regulation also applicable to his case while the age limit set for national intelligence pilots as an age-based discrimination incompatible with the EU law.

On this last point, the Italian Supreme Court made a request for a preliminary ruling to the Court of Justice of the European Union, pursuant to Article 267 of the Treaty on the Functioning of the European Union, asking if the national measure was compatible with the EU anti-discrimination legislation or otherwise.

The European Court of Justice ruled on the point with the Judgment No. C-396/18 dated 7 November 2019, concluding that the Italian Presidential Decree dated 9 September 2008 complied with the provisions set out by the anti-discrimination Directive 2000/78/EC, both with reference to Article 5.2, considering the measure to be compatible with the need for public security (“[…] measures aimed at avoiding aviation accidents by verifying the pilot’s physical fitness so that human error cannot be the cause of such accidents, undeniably constitute measures suitable for ensuring public safety”, paragraph 47), and with Article 4.1, being the age requirement a determining occupational requirement (“[…] a difference of treatment based on a particular characteristic shall not constitute discrimination where, by reason of the nature of the work or the context in which it is carried out, such a characteristic constitutes an essential and determining occupational requirement, provided that the aim is legitimate and the requirement is proportionate”, paragraph 10).

Once determined the measure introduced by the Italian Presidential Decree dated 9 September 2008 to be in compliance with the anti-discrimination Directive 2000/78/EC “provided that the aim is legitimate and the requirement is proportionate”, the EU Court of Justice left the decision on whether the measure was necessary and proportionate to the Italian Supreme Court. The latter ruled in favor of the proportionality of the measure, given that reaching the age of 60 years is the strict limit for the performance of flight activities by aircraft pilots involved in national intelligence operations under the Italian legal framework. The Court also relied on its own case law to reject the applicant’s theory according to which the normal rules governing the retirement age of airline pilots were applicable, in particular by referring to its Judgments No. 7297/1998, No. 10882/2001 and No. 15366/2002 in which it was largely established that, having passed the age of 60 years, even commercial airline pilots can continue to serve as pilots only if they are part of a crew made up of younger colleagues (a circumstance which, obviously, does not suit national intelligence operations).

Having ascertained that there has been no discrimination in this case, it should be noted that in the civil aviation sector there are other types of discrimination, first of all an atavic foreclosure against women. International authorities and institutions have been deeply reflecting for a long time on the need to ensure personnel gender equality in the global air transport and aviation industry.

According the Society of Women Engineers (SWE), a group that focuses on supporting women in engineering and technology, only about 13% of engineers are females, which is still higher than the percentage of women in commercial pilot roles (5% according to the US Federal Aviation Administration). As it is clear, the above is nowhere near the parity to which the industry aspires.

The two main reasons which led to the above scenario are the lack of incentive in the school environment which do not effectively guide female students toward pursuing engineering and aviation ambitions and, mostly, the often-hostile corporate culture full of bias and gender stereotypes.

A first important step was taken with the Resolution No. A39-30 adopted at the 39th session of the ICAO Assembly in autumn 2016 (“ICAO Gender Equality Programme promoting the participation of women in the global aviation sector”) which committed “to enhancing gender equality and the advancement of women’s development by supporting UN Sustainable Development Goal 5 (Achieve gender equality and empower all women and girls) including by aiming to achieve an aspirational goal of 50-50 (women-men) by 2030 at all professional and higher levels of employment in the global aviation sector”.

In its Resolution No. A39-30, the Assembly urged States, regional and international aviation organizations and the international aviation industry “to demonstrate strong, determined leadership and commitment to advance women’s rights and to take the necessary measures to strengthen gender equality” by supporting policies, as well as the establishment and improvement of programmes and projects, to support women’s careers within ICAO’s governing and technical bodies, the ICAO Secretariat and the global aviation sector.

Within the framework of the above Resolution, ICAO recently announced that a new initiative on “Air Transport Gender Equality” will be developed. This initiative includes a cooperation between ICAO, the International Labour Organization (ILO) and the UNESCO and will include the establishment of air transport gender indicators through the collection of workforce statistics (to be provided on a voluntary basis from States).

It is an initiative focusing on short, medium and long-term goals. In the short term, ICAO aims to the progressive creation of an online platform for sharing data on workforce statistics, necessary to get the full picture of the situation and to better identify gaps in personnel planning and training and gender inequality. In the medium-long term, thanks to the information and statistics collected, through regularly updated studies and publications it will be possible to provide guidelines for decision makers to create and to invest in more opportunities for gender equal employment and training in the global aviation industry.

To date, also thanks to the joint effort of ICAO, ILO and several UN agencies, something is moving forward: some of the most important worldwide airlines are taking action to reduce gender inequalities in their business activity (for instance, British Airways are ensuring that gender equality is one of their central aims in promoting diversity among leadership positions). Nevertheless, much remains to be done in order to achieve as soon as possible what is, to all intents and purposes, one of the most important and urgent challenges in our sector.