March 12, 1993
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIRST CIRCUIT
                                              

     No. 92-1696

               EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                         Plaintiff, Appellant,

                                  v.

                COMMONWEALTH OF MASSACHUSETTS, ET AL.,

                        Defendants, Appellees.
                                              

                             ERRATA SHEET

          Please make the following corrections in the opinion in
     the above case released on March 4, 1993:

     Page 11, 3 lines from bottom:

          change "consitutional" to "constitutional"

     Page 13, line 15:   

          change "Massachusetts's" to "Massachusetts'"

     Page 22, line 4:

          delete "in".

     March 4, 1993
                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 92-1696

             EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                      Plaintiff, Appellant,

                                v.

              COMMONWEALTH OF MASSACHUSETTS, ET AL.,

                      Defendants, Appellees.
                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Edward F. Harrington, U.S. District Judge]
                                                        

                                           

                              Before

                       Breyer, Chief Judge,
                                          
               Higginbotham,* Senior Circuit Judge,
                                                  
                    and Boudin, Circuit Judge.
                                             
                                           

  Lamont N. White, Attorney, with whom Donald R. Livingston,
                                                           
General Counsel, Gwendolyn Young Reams, Associate General Counsel, and
                                    
Vincent J. Blackwood, Assistant General Counsel, were on brief for
                  
appellant Equal Employment Opportunity Commission.
  Steven S. Zaleznick, Cathy Ventrell-Monsees, and Thomas W.
                                                            
Osborne on brief for American Association of Retired Persons, amicus
     
curiae.
  Pierce O. Cray, Assistant Attorney General, with whom Scott
                                                             
Harshbarger, Attorney General, was on brief for appellee Commonwealth
         
of Massachusetts.
  James H. Quirk, Jr. for appellee The Barnstable County Retirement
                     
Association.
                                           

                           March , 1993
                                           

                   

*Of the Third Circuit, sitting by designation.

          Higginbotham,  Senior  Circuit  Judge.    Massachusetts
          Higginbotham,  Senior  Circuit  Judge
                                               

requires  state and local officials and general employees who are

seventy years old or older to take and pass a medical examination

as  a  condition of  continued employment.     The issue  on this

appeal   is  whether   such  a   requirement  violates   the  Age

Discrimination  in  Employment  Act  (ADEA),  81  Stat.  602,  as

amended, 29 U.S.C.   621 et seq. (1990).  We hold that it does.
                                

                                I.

          In   1977,   Massachusetts   enacted  Chapter   32   of

Massachusetts General Laws to regulate its retirement systems and

pensions.    One component  of Chapter 32,  Section 90F, requires

Group  1   employees  of  the  Commonwealth   and  its  political

subdivisions who are  seventy years of  age or older  to pass  an

annual   medical  examination   as   a  condition   of  continued

employment.1 

                       

   1Section 90F provides in its entirety:

          Any member in service classified in Group 1, or any
          other person who would be classified in Group 1
          except for the fact that he is not a member, shall
          continue in service, at his option, notwithstanding
          the fact that he has attained age seventy; provided,
          however, that he is mentally and physically capable
          of performing the duties of his office or position. 
          Such member or other person shall annually, at his
          own expense, be examined by an impartial physician
          designated by the retirement authority to determine
          such capability.  No deductions shall be made from
          the regular compensation of such member or other
          person under the provisions of this chapter for

                               -2-
                                2

Group  1  employees   are  "[o]fficials  and   general  employees

including   clerical,   administrative  and   technical  workers,

laborers,  mechanics and  all others  not otherwise  classified."

Mass. Gen. L.  ch. 32,   3(2)(g)  (1992).  Under the  regulations

enacted  pursuant to section 90F,  no later than  120 days before

the last day of  the month when a Group 1 employee will reach the

age  of seventy,  the retirement board  of which  he or  she is a

member notifies him or her of the retirement benefits to which he

or she would  be entitled  if he  or she  retired at  the age  of

seventy.   In  order  to remain  in employment  after the  age of

seventy,  the employee must complete an application and submit to

a medical  examination by  a physician  designated by  the board.

Upon receipt of the report of the physician, the retirement board

votes to decide  whether to grant the  application for permission

to  continue  in service.   If  the  application is  granted, the

employee must repeat the  process each year.  If  the application

is denied, the employee is  retired on the last day of  the month

of his  or her birth.   Mass. Regs. Code tit.  840,   11.01-11.02

(1992).

                       

          service after he has attained age seventy and upon
          retirement such member or other person shall receive
          a superannuation retirement allowance equal to that
          which he would have been entitled had he retired at
          age seventy.

   Mass. Gen. L. ch. 32,   90F.

                               -3-
                                3

          Barnstable  County Retirement Association (BCRA) is one

of the  106 public retirement systems governed by   90F.  In 1988

the BCRA required Mary  Cavender, a librarian employed by  a town

in  Massachusetts,  to pass  a  medical examination  in  order to

continue  her employment with the  town.  She  passed the medical

examination  and was  allowed  to continue  her  employment.   No

employees  have been forced  to retire  since    90F has  been in

effect.  

          On September  9, 1989, the Equal Employment Opportunity

Commission  (EEOC) brought  suit  against  Massachusetts and  the

BCRA.   The  EEOC alleged  that the  requirements  of    90F that

Massachusetts  state and  local employees  aged seventy  or older

take and pass  an annual  medical examination as  a condition  of

continued employment was violative of,  and hence preempted by,  

4(a)  of the  Age  Discrimination in  Employment  Act (ADEA),  29

U.S.C.   623(a).  Section 4(a) provides: 

          It shall be  unlawful for  an employer (1)  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; (2) to limit, segregate, or classify his employees
          in any way which  would deprive or tend to  deprive any
          individual  of  employment  opportunities or  otherwise
          adversely affect his status  as an employee, because of
          such individual's age; or (3)  to reduce the wage  rate
          of any employee in order to comply with this chapter.

                               -4-
                                4

            Following  discovery, all  parties moved  for summary

judgment.    The  EEOC  argued  in  its  motion  that    90F  was

discriminatory  on   its  face   and  that  defendants   had  not

established  a  justification  for  using  age  as  a  factor  in

determining  who would  be required  to take  and pass  a medical

examination   as    a   condition   of    continued   employment.

Massachusetts'  answer in  its  motion for  summary judgment  was

twofold: first,  it  argued  that    4(a)  of the  ADEA  was  not

applicable to the dispute because    90F was not preempted by the

ADEA; second, and in the alternative, Massachusetts argued that  

90F did not violate the ADEA because concerns over the fitness of

employees, rather than age, was the basis of the statute.  

          On   April  17,  1992,   the  district   court  granted

defendants'  motions for  summary  judgment, denying  the  EEOC's

motion.   The court reasoned that the regulation of its employees

has traditionally been one  of the historic powers of  the state.

According  to the  court, the  Supreme Court  held in  Gregory v.
                                                                 

Ashcroft, 111 S.Ct. 2395,  115 L.Ed.2d 410 (1991), that  Congress
        

should make its intention  clear and manifest when it  intends to

preempt  the historic powers  of the state.   In the  view of the

court, Congress, in enacting the ADEA, did not make  it clear and

manifest that  it intended to "limit  employer-states' ability to

assess  the fitness  of their  employees."   Moreover, the  court

                               -5-
                                5

continued, the  practice of requiring employees  seventy years of

age  or  older to  undergo an  annual  medical examination  "is a

practice very conducive  to the  health and well  being of  those

employed by state  government as  well as by  society at  large."

Thus, the  court concluded,   90F is not preempted by, and is not

violative of, the ADEA, and for the court to hold otherwise would

be "to indulge in judicial legislation to override the balance of

federal and state powers."

          The  EEOC now  appeals  the district  court's grant  of

summary judgment.  The EEOC requests that we reverse the grant of

summary judgment  in  favor  of  appellees  and  that  we  remand

directing the  district court  to enter  summary judgment  in its

favor.  The  EEOC makes three  main arguments in  support of  its

appeal.  First,  the EEOC reiterates that   90F violates the ADEA

on  its  face.   Second,  the EEOC  maintains that  age,  and not

concerns over employee fitness, is the basis for   90F.  Finally,

the  EEOC argues that    90F does  not qualify for  the bona fide

employee benefit exception of the ADEA.  

                               II.

          Rule  56(c) of  the  Federal Rules  of Civil  Procedure

provides that  summary judgment  "shall be rendered  forthwith if

the  pleadings,  depositions,  answers  to  interrogatories,  and

                               -6-
                                6

admissions on file,  together with the  affidavits, if any,  show

that there is no genuine  issue as to any material fact  and that

the moving party  is entitled to a judgment as  a matter of law."

Fed. R.  Civ. P. 56(c).    We exercise plenary  review of summary

judgment dispositions.  Olivera v.  Nestle Puerto Rico, Inc., 922
                                                            

F.2d  43, 44-45  (1st Cir.  1990).   The facts  of this  case, as

recounted above,  are not in dispute.   So, we turn  first to the

issue of whether   90F is preempted by the ADEA.

                                A.

            Congress has  the power to preempt  state legislation

under the  Supremacy Clause  of Article VI  of the  Constitution.

Federal  preemption  law  recognizes  two  types  of  preemption,

express  and implied.  Schneidewind v. ANR Pipeline Co., 485 U.S.
                                                       

293,  300, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988); Wisconsin Publ.
                                                                 

Intervenor,  et al. v. Mortier, 111 S.Ct. 2476, 2482, 115 L.Ed.2d
                              

532 (1991); see  also Wood v. General Motors  Corp., 865 F.2d 395
                                                   

(1st Cir. 1988).  Express preemption occurs  when Congress states

in  the  text of  legislation that  it  intends to  preempt state

legislation in  the area.   In  the  absence of  such a  specific

statement,  a federal statute  may also preempt  by implication a

state statute.   The United  States Supreme Court  has identified

the circumstances under which such implied preemption may occur: 

          In the absence of explicit statutory language, however,
          Congress implicitly may indicate  an intent to occupy a

                               -7-
                                7

          given  field to  the exclusion  of state  law.   Such a
          purpose may be inferred  where the pervasiveness of the
          federal  regulation  precludes  supplementation by  the
          States,  where the  federal  interest in  the field  is
          sufficiently dominant,  or where the "object  sought to
          be  obtained by the  federal law  and the  character of
          obligations  imposed  by  it  .  .  .  reveal  the same
          purpose."     Finally,  even  where  Congress  has  not
                                                                 
          entirely displaced  state  regulation in  a  particular
                                                                 
          field,  state   law  is  pre-empted  when  it  actually
                                                                 
          conflicts with  federal law.   Such a conflict  will be
                                     
          found "'when it is impossible to comply with both state
          and  federal law, or where  the state law  stands as an
          obstacle to the accomplishment of the full purposes and
          objectives of Congress.'"

Schneidewind, 485 U.S. at  299-300 (citations omitted)  (emphasis
            

added).  

          Before  the  district court  the  EEOC  argued, and  on

appeal it reiterates, that    90F actually conflicts with    4(a)

due  to  the  impossibility  of  complying  with  both  statutes.

Specifically, the  EEOC maintains that, since  only employees who

are seventy  years of age or  older are required to  take and are

forced  to retire if they  fail an annual  medical examination,  

90F  conflicts  with    4(a) of  the  ADEA providing  that  it is

unlawful  for  an  employer "to  discharge  .  .  . or  otherwise

discriminate against any  individual with  respect to his  . .  .

terms, conditions,  or privileges  of employment because  of such

individual's age." 29 U.S.C.  623(a)(1).   

          The   district  court  rejected  the  EEOC's  argument,

finding  that in  ADEA cases,  Congress must  expressly state  an

                               -8-
                                8

intention in order  for courts to find federal preemption.    The

court  determined  that  the  recent Supreme  Court  decision  in

Gregory  v.  Ashcroft had  changed  the  standards for  resolving
                     

conflicts  between local  and  federal  government, deferring  to

state  sovereignty.   According to  the court,  "in an  effort to

preserve our federal system of government, the Supreme  Court has

indicated  that  Congress should  make  its  intention clear  and

manifest  if it  intends to  preempt the  historic powers  of the

states." quoting Gregory v.  Ashcroft, 111 S.Ct. at 2401.   Under
                                     

this  new standard, the district court concluded that the ADEA is

ambiguous as to whether the statute was intended to apply to such

state legislation  as    90F: "[I]t  appears ambiguous,  and even

unlikely, that Congress intended to outlaw a method of assessment

utilized  by a  state  government which  requires annual  medical

examinations for its employees at the age of seventy." 

          It is true that the Gregory Court was unwavering in its
                                     

desire to protect state sovereignty and principles of federalism.

Id.  at 2399.   However, its reasoning and  holding were far more
   

narrow  and limited  than the  broad and  sweeping interpretation

made  by the  district  court.   In  Gregory, the  United  States
                                            

Supreme  Court rendered a decision on  the effects of the ADEA on

the  Missouri Constitution which required mandatory retirement of

                               -9-
                                9

judges.2  Mo.  Const. art. V,    26.  The relevant  clause of the

ADEA provided: 

          The term "employee" means an individual employed by any
          employer  except that  the  term "employee"  shall  not
          include  any person  elected  to public  office in  any
          State  or political  subdivision  of any  State by  the
          qualified voters thereof, or  any person chosen by such
          officer to be on  such officer's personal staff,  or an
          appointee on  the policy  making level or  an immediate
          adviser   with  respect   to   the   exercise  of   the
          constitutional or legal powers of the office. 

29 U.S.C.    630(f).   Due to  the method of  selection of  state

judges in  Missouri, it was  unclear whether they  were employees

within the meaning of   630(f).  

          It was  ultimately the ambiguity of  the judges' status

as employees or policymakers which the Court found fatal to their

capacity  to be protected by  the ADEA.   Because Missouri judges

                       

   2Three years before the Supreme Court decided Gregory, the
                                                        
   First Circuit adjudicated precisely the same issue.  EEOC v.
                                                               
   Massachusetts, 858 F.2d 52 (1st Cir. 1988).  In that case,
                
   the court had to determine the effect of the 1987 amendments
   to the ADEA on a provision of the Massachusetts Constitution
   which made age 70 the mandatory retirement age for all state
   judges.  The court affirmed the district court's
   determination that the Act did not override the state
   constitutional provision, finding that the state's judges
   fell within the policy-making exception to employees
   protected by the ADEA, 29 U.S.C.   630(f).  The court even
   relied on the same rationale of respect for principles of
   sovereignty, as did the Court in Gregory: "Without question,
                                           
   the tenure of state judges is a question of exceeding
   importance to each state, and a question traditionally left
   to be answered by each state.  Any federal encroachment on a
   state's freedom of choice in this area, therefore, strikes
   very close to the heart of state sovereignty."  EEOC, 858
                                                       
   F.2d at 54.

                               -10-
                                10

were subject to retention  elections, they could be  construed as

elected  officials, thus excluded from the ADEA.  It was unclear,

however, whether state  court judges were state  officials on the

"policy-making level."  The Gregory Court aptly held that,  where
                                   

provisions  are  ambiguous and  state  sovereignty  is at  issue,
                              

courts should  reason carefully when making  determinations as to

preemption.  Gregory,   111  S.Ct.  at   2401.     "Congressional
                    

interference  with  this  decision  of the  people  of  Missouri,

defining  their constitutional  officers, would  upset  the usual

constitutional balance of  federal and  state powers.   For  this

reason, 'it is incumbent upon the federal courts to be certain of

Congress' intent before finding  that federal law overrides' this

balance."  Id.  (quoting Atascadero State  Hosp. v. Scanlon,  473
                                                           

U.S. 234, 243, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (determining

whether  federal statute  abrogated sovereign immunity  of states

under the 11th Amendment)).  Based on that reasoning, the Gregory
                                                                 

Court  concluded  that  the  ADEA did  not  preempt  the Missouri

Constitution's mandatory requirement for judges. Id. at 2408.
                                                    

          Here,   the   district    court   misinterpreted    the

significance of the Court's  reliance on principles of federalism

and respect  for state sovereignty.   The Missouri constitutional

provision  was concerned,  not with  regulating health  care, but

with ensuring the qualifications  of the highest state officials.

                               -11-
                                11

"The[] cases [cited] stand in recognition of the authority of the

people of  the States  to determine the  qualifications of  their

most  important government  officials."   Gregory,  111 S.Ct.  at
                                                 

2402;  see also  EEOC v.  Massachusetts., 858  F.2d 52  (1st Cir.
                                        

1988), discussed supra note  3.  Relying on Sugarman  v. Dougall,
                                                                

413 U.S. 634,  93 S.Ct.  2842, 37 L.Ed.2d  853 (1973), the  Court

recognized that Gregory was  part of the body of  decisions which
                       

involve  the Court in  adjudicating "the  unique nature  of state

decisions that  'go to the heart  of representative government.'"

Gregory,  111 S.Ct.  2401.   The  Court  made it  clear that  its
       

deference  arises not from  a disdain for  preemption doctrine in

the context of the ADEA, but rather because: 

          the  case concerns  a  state  constitutional  provision
          through  which  the  people  of  Missouri  establish  a
          qualification for those who sit  as their judges.  This
                                                                 
          provision goes beyond  an area traditionally  regulated
                                                                 
          by the States; it is a decision of the most fundamental
                                                                 
          sort  for a sovereign entity.  Through the structure of
                                       
          its government, and the character of those who exercise
          government  authority,  a  State  defines  itself as  a
          sovereign.  

Id. at 2400 (emphasis added).  
   

          Thus,  while  Gregory   refused  to   find  the   state
                               

Constitution preempted by the ADEA, the opinion was unequivocally

clear in  the narrowness  of its  holding.  At  no point  did the

Court suggest that all state regulations of public employees  are

questions at the heart of state  sovereignty.  Nor did it suggest

                               -12-
                                12

that  Gregory  would be  controlling  on  the federal  preemption
             

doctrine where there was not any ambiguity in the language of the

statute.   The Court stated:  "The ADEA plainly covers all  state

employees  except those excluded by one of the exceptions.  Where

it is unambiguous that  an employee does  not fall within one  of

the exceptions, the Act states plainly and unequivocally that the

employee is included."  Id. at 2404.
                           

          The   district   court   erred,   not   only   in   its

interpretation as to the breadth of the Gregory holding, but also
                                               

in its  applicability to the  instant case.   Here, there  are no

ambiguities in  the terms or provisions of   90F that should give

us  pause as to whether  those affected are  employees within the

meaning of   4(a).  The district court determined that the effect

of  the 1986 congressional amendment to the ADEA on statutes such

as  Massachusetts'  is  de  facto  ambiguous.    Such  reasoning,

however, begs the  threshold question of preemption.  In Gregory,
                                                                

the text of the ADEA itself is unclear as to its applicability to

judges, giving  rise to  ambiguity which  the  Court resolved  in

Missouri's favor.  Here, there is no textual uncertainty, and the

proper method of resolving  the issue is to analyze  the conflict

under  the  standards  of  preemption  doctrine,  something   the

district court never did.  

                                B.

                               -13-
                                13

            To  recapitulate,  "in  the  absence  of  an  express

congressional  command,  state  law  is  preempted  if  that  law

actually conflicts with federal law." Cipollone v. Liggett Group,
                                                                 

Inc., 112 S.Ct.  2608, 2617, 120 L.Ed.2d  407 (1992).  State  law
    

conflicts  with  federal  law  when compliance  with  both  is  a

physical  impossibility.    See,  e.g., Greenwood  Trust  Co.  v.
                                                                 

Massachusetts, 971 F.2d 818 (1st Cir. 1992); Pedraza v. Shell Oil
                                                                 

Co., 942 F.2d 48 (1st Cir. 1991). 3 
   

          Under    90F,  retirement boards  are required  to take

specific action upon the  seventieth birthday of state employees.

The  possible result of this action is the involuntary retirement

of state employees who fail to pass the requisite tests.    

Such action is not reconcilable with the plain purpose of    4(a)

which   prohibits  employers  from   discrimination  against  any

individual with respect  to his compensation,  terms, conditions,

or privileges of employment, because of such individual's age.   

                       

   3The district court's opinion focuses on the reasonableness
   of the state's method of implementing the dual goals of
   enabling state employees to continue working and ensuring
   their competency.  This is not, however, an equal protection
   analysis in which rational and legitimate state interests
   are to be respected by the courts.  Under preemption
   analysis, the focus is not on the purposes of the
   Commonwealth's statute, but on the interaction between the
   state statute and the federal statute in question.  In the
   context of the ADEA, reasonableness only enters into
   judicial analysis in assessments of affirmative defenses
   available under   4(f).

                               -14-
                                14

          For  example,  in EEOC  v. Wyoming,  460 U.S.  226, 103
                                            

S.Ct.  1054, 75 L.Ed.2d  18 (1983), the  Supreme Court considered

whether a Wyoming  statute, which required game  and fish wardens

who had reached age 55 to seek the approval of  their employer in

order   to  remain  employed,  violated  the  ADEA.      Much  as

Massachusetts  does  here, Wyoming  argued  that  the statute  in

question did not violate the ADEA on its face because the statute

served  in assuring  the  physical preparedness  of Wyoming  game

wardens to perform their duties.  The Court rejected the argument

and  concluded that Wyoming could continue the statute only if it

could demonstrate age was  a bona fide occupational qualification

for the job of game warden.  Id. at 239. Significantly, the Court
                                

wrote:

          Under the ADEA,  [] the  State may still,  at the  very
          least,  assess  the fitness  of  its  game wardens  and
          dismiss those  wardens whom  it reasonably finds  to be
          unfit.   Put another way, the Act requires the State to
          achieve its goals in  a more individualized and careful
          manner than  would otherwise be  the case, but  it does
          not  require the State  to abandon  those goals,  or to
          abandon the public policy decisions underlying them.

Id. 
   
          Similarly,  here Massachusetts  may  still  assess  the

fitness  of its  employees and  dismiss  those employees  whom it

reasonably  finds to  be unfit.   But it  must do  so "in  a more

individualized and careful manner"  than the scheme envisioned by

   90F.   In other  words, Massachusetts  is not  being asked  to

                               -15-
                                15

abandon  the  public policy  of  determining the  fitness  of its

employees, just as  Wyoming was  not being asked  to abandon  the

public  policy of  determining the  physical preparedness  of its

game wardens.   Instead, pursuant  to the ADEA,  just as  Wyoming

could not  arbitrarily pick 55 years of age as the point at which

to  measure  the  physical  preparedness  of  its  game  wardens,

Massachusetts  may not arbitrarily set up seventy years of age as

the point at which to determine the fitness of its employees. 

          The Supreme Court concluded in EEOC v. Wyoming:
                                                        

          [Wyoming] remain[s] free under  the ADEA to continue to
          do precisely  what  [it  is]  doing now,  if  [it]  can
          demonstrate  that  age  is a  "bona  fide  occupational
          qualification"  for the job of game warden. . ..  [T]he
          state's discretion to  achieve its goals in  the way it
          thinks best is not being overridden entirely, but it is
          merely   being  tested  against  a  reasonable  federal
          standard.

Id. at 240.  Here, Massachusetts' discretion to achieve its goals
   

of determining  the  fitness of  its  employees is  being  tested

against a reasonable federal standard.  And, in the absence of an

affirmative defense,  we must conclude that  compliance with both

the  state  and federal  statutes  is  a physical  impossibility,

meaning that the ADEA must preempt the Massachusetts law.

          The two  statutes are  also in actual  conflict because

enforcement of the Massachusetts law creates an  obstacle for the

implementation  of the goals of  the ADEA.   Congress enacted the

ADEA  to   prevent   the  arbitrary   and  socially   destructive

                               -16-
                                16

discrimination  on  the  basis of  age.    Western  Air Lines  v.
                                                                 

Criswell,  472  U.S. 400,  409, 105  S.Ct.  2743, 86  L.Ed.2d 321
        

(1985); Trans World Air Lines v. Thurston, 469 U.S. 111, 120, 105
                                         

S.Ct.  613, 83  L.Ed.2d 523  (1985).   The United  States Supreme

Court has explained  that the  ADEA is of  particular force  when

mandatory  retirement is at issue, as it  is here.  Criswell, 472
                                                            

U.S. at  410.   In  the words  of the  Court, "[t]he  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."

Id.  Moreover, "[t]hroughout 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."  Id. at 409.   Thus, the  ADEA was
                                   

enacted in  large part to  prevent mandatory retirement  based on

"innocent" misperceptions as to the abilities of older employees,

as well as more insidious "business" judgments as to their cost. 

          Here, the  Commonwealth of Massachusetts allows  age to

be the determinant as to when an employee's deterioration will be

so  significant  that it  requires  special  treatment.   Such  a

conception  of and  use  of age  as  a criteria  for decline  and

unfitness for employment strikes at  the heart of the ADEA.   The

entire  point of  the statute  is to  force employers  to abandon

                               -17-
                                17

previous stereotypes about the  abilities and capacities of older

workers.  Employers may  still regulate and condition employment,

but they may no longer immediately  turn to age as a  convenient,

simple criterion.  They must be prepared  to justify their use of

age rather than individualized factors.    

          In finding that  the ADEA  did not preempt    90F,  the

district  court reasoned that    90F is  "an Act  relating to the

qualifications  of  state  employees  which  was  lawful  and  an

eminently  reasonable expression  of state  power  when enacted."

Thus, the Court concluded, to hold   90F as preempted by the ADEA

would  be "to  indulge in  judicial  legislation to  override the

balance  of federal  and  state powers."    No one  disputes  the

proposition  that  the  historic  functions  of   regulating  the

relationship  between the  public  employer and  public employees

have traditionally been  left to the states.  But  it is also far

too  late in  the day to  argue that  Congress does  not have the

power to  require states  to regulate the  public employer\public

employee relationship in a non-discriminatory fashion. 4  

          Because the district court  rested its grant of summary

judgment  for  the defendants  solely  on  its interpretation  of

                       

   4Case law supports the application of other federal anti-
   discrimination statutes to state employment relationships. 
   See EEOC v. County of Allegheny, 705 F.2d 679, 682 (3d Cir.
                                  
   1983); Rosenfeld v. Southern Pacific Co., 444 F.2d 1219,
                                           
   1225 (9th Cir. 1971).

                               -18-
                                18

whether the ADEA preempted facially the Massachusetts law, it did

not  reach  the other  defenses made  by  the Commonwealth.   The

appellees,  however, reassert  those  defenses on  appeal and  we

address them next.  

                               III.

            Appellees   argue  that, even  if the  annual medical

examination requirement is found  to conflict with   4(a)  of the

ADEA,    90F is still  exempt from the  prohibitory provisions of

the  ADEA under exceptions denoted in    4(f)(1) and   4(f)(2) of

the ADEA.  

                                A.

          Section 4(f)(1) provides that "It shall not be unlawful

for an employer, employment agency,  or labor organization (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,  or  where  the
                                                                 

differentiation is based on reasonable factors other than age . .
                                                             

. ." (emphasis added).

          According to appellees, there is a possibility that the

physical examinations could be based on a reasonable factor other

than  age.   They argue  that in  interpreting    90F,  our focus

should be not on the age requirement which triggers the condition

                               -19-
                                19

of  continuing  employment,   but  rather,  on   the  examination

requirement  itself.     Employees  over  seventy   will  not  be

involuntarily retired because they  are over seventy, but because

their mental and or physical faculties are failing.  

          We cannot accept this argument. In Los Angeles Dep't of
                                                                 

Water &amp; Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d
                        

657  (1978), the Supreme Court  confronted and rejected a similar

argument.    Manhart  involved  a  policy  of   the  Los  Angeles
                    

Department of Water and Power requiring larger contributions from

women  than men to the Department's pension fund because women as

a group live longer than do men as  a group.  A class made up  of

women employed or formerly  employed by the department challenged

the policy as a violation of Title VII of the Civil Rights Act of

1964.  Plaintiffs  claimed  that  the  contribution  differential

constituted  discrimination on the basis of  sex.  The Department

answered that sex was not the factor on which the distinction was

being  drawn;  it  was  longevity.    The   Court  rejected  this

contention,  holding that but for  their sex, women  would not be

required  to pay more for  their retirement benefits.   The Court

acknowledged that as a class women  tend to live longer than men.

Manhart,  435 U.S. at 707.  But the  Court found it to be equally
       

true  that all individuals in the respective classes do not share

the   characteristics  that   differentiate  the   average  class

                               -20-
                                20

representatives.  Id. at 708.  Thus, the Court reasoned that even
                     

where  characteristics  may  be class-based,  Title  VII requires

fairness to individuals rather than to classes. Id.   In response
                                                   

to  the   Department's  specific  argument  that   the  different

contributions exacted from men and women were based on the factor

of longevity rather than sex, the Court wrote: 

          It is plain [] that any individual's life expectancy is
          based on a number of factors, of which sex is only one.
          The record  contains no evidence that  any factor other
          than  the  employee's sex  was  taken  into account  in
          calculating the []  differential between the respective
          contributions by men  and women. . ..  [O]ne cannot say
          that an actuarial distinction  based entirely on sex is
          "based  on any other factor  than sex.   Sex is exactly
          what it is based on."

Id.
   

          Similarly,  here appellees  argue that  the requirement

that  employees aged  seventy  or older  pass  an annual  medical

examination is based  on fitness rather  than age.   But, as  the

Supreme  Court found in Manhart, it is clear that an individual's
                               

fitness to work is based on a number of factors,  of which age is

only  one.  And,  as in Manhart, the  record contains no evidence
                               

that  any factor  other than  the employee's  age was  taken into

account  in requiring an annual medical examination.  Thus, as in

Manhart, we are forced to conclude that age is exactly what   90F
       

is  based on.   The reasonable  factor other than  age defense is

simply not applicable to   90F. 

                               -21-
                                21

           Appellees  argue  that   Manhart  gave  only   cursory
                                           

treatment  to this issue and that because it predated Gregory, it
                                                             

has less weight.  Both assertions  are incorrect.  As an  initial

matter,  Manhart   is  clear   in  holding  that   the  sex-based
                

differentiation in question   could not be  justified.  Moreover,

in  Gregory  the  reasonable  factor defense  was  never  raised.
           

Finally,  while Manhart does arise out of  Title VII  and not out
                       

of the ADEA,   the First Circuit, like the  United States Supreme

Court, has made clear that the  ADEA tracks the law of Title VII.

Thurston, 469 U.S.  at 121; Rivas  v. Federacion de  Asociaciones
                                                                 

Pecuarias de  Puerto Rico, 929 F.2d 814, 820 n.15 (1st Cir. 1991)
                         

("As  the substantive provisions of the ADEA were derived in haec
                                                                 

verba from Title VII .  . . we may  look to constructions of  the
     

term [employer] in  the Title VII .  . . context  for guidance.")

(citing Lorillard  v. Pons, 434 U.S.  575, 584 &amp; n.  12, 98 S.Ct.
                          

866, 55 L.Ed.2d 40  (1978); Zipes v. Trans World  Airlines, Inc.,
                                                                

455 U.S.  385, 395 n. 11, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1989));

Loeb v. Textron, Inc., 600 F.2d 1003, 1014, 1015 (1st Cir. 1979).
                     

          The alternative defense in    4(f)(1) -- the  bona fide

occupational qualification -- is an affirmative defense which the

Commonwealth does not  raise.   In EEOC v.  East Providence,  798
                                                           

F.2d 524, 528 (1st Cir. 1986), the First Circuit adopted the two-

                               -22-
                                22

pronged test articulated  by the United  States Supreme Court  in

Criswell.  Under the Criswell test, in assessing a BFOQ defense, 
                             

          an  employer   must  first   establish  that   the  job
          qualifications which  the  employer invokes  to justify
          his  discrimination are  "'reasonably necessary  to the
                                                         
          essence of his business.'"  If the employer succeeds in
          making this showing, it must then establish that it "is
          compelled to rely  on age  as a proxy  for the  safety-
          related  job  qualifications  validated  in  the  first
          inquiry."  

East  Providence, 798 F.2d at  528 (citing Criswell,  472 U.S. at
                                                   

413-414.) (emphasis in original)).  In East Providence the  Court
                                                      

found  that  the  city  had  successfully established  reasonable

necessity and its  reliance on  age as the  ordinance related  to

mandatory retirement of police  officers over age 60.   Here, the

Commonwealth has not tailored the statute to particular jobs, but

rather  to all.  See also Thurston, 469 U.S. at 122 ("In order to
                                  

be   permissible  under      4(f)(1),   however,  the   age-based

discrimination must relate to a 'particular business.'").

                                B.

          We now  turn to  appellees'  argument that    90F  fits

under  the  4(f)(2) exemption of the ADEA.  That section provides

in relevant part:

          It shall  not be  unlawful for an  employer, employment
          agency,  or labor organization . . . to take any action
          otherwise prohibited under subsection (a), (b), (c), or
          (e) of this section--
          . . . .
          (B)  to  observe the  terms  of  a bona  fide  employee
          benefit plan--

                               -23-
                                23

          (i)  where, for  each benefit  or benefit  package, the
          actual  amount  of payment  made  or  cost incurred  on
          behalf of an older worker is no less than that  made or
          incurred on behalf of a younger worker . . .
          (ii)  that is  a voluntary  early retirement  incentive
          plan consistent  with the relevant  purpose or purposes
          of this chapter.
          Notwithstanding clause (i) or (ii) of subparagraph (B),
          no  such  employee  benefit  plan  or  voluntary  early
                                                                 
          retirement incentive plan shall  excuse the failure  to
                                                                 
          hire any individual, and  no such employee benefit plan
                                                                 
          shall []  require or permit the  involuntary retirement
                                                                 
          of any  individual specified by section  631(a) of this
                            
          title, because of the age of such individual.  

29 U.S.C.   623 (4)(f)(2) (1992) (emphasis added). 

          In  order  to  be  exempt pursuant  to     4(f)(2),  an

employment plan  must be a bona  fide plan which is  covered by  

4(f)(2),  the employer's  actions must  be in  observance  of the

plan, and the plan must not be a subterfuge to evade the purposes

of  the ADEA.  Public  Employees Retirement System  v. Betts, 492
                                                            

U.S. 158, 109 S.Ct. 2854, 106  L.Ed.2d 134 (1989); EEOC v. Boeing
                                                                 

Svcs. Int'l, 968 F.2d 549 (5th Cir. 1992); EEOC v. Orange County,
                                                                

837 F.2d 420, 421 (9th  Cir. 1988).  The plan envisioned in   90F

facially violates the qualification that the plan may not require

or  permit involuntary  retirement.   The  United States  Supreme

Court  in Betts  concluded that  in order  for a benefit  plan to
               

qualify  for the   4(f)(2) exemption, it  must not be a method of

discriminating  in  the  "nonfringe" aspects  of  the  employment

relationship.  Betts, 492 U.S. at 177.  The Court elaborated that
                    

   4(a)(1) and    4(f)(2) could  both be  given effect  only if  

                               -24-
                                24

4(f)(2)  exempts bona  fide  plans  that  are  not  a  method  of

discriminating in other  nonfringe benefit areas.  Id.;  see also
                                                                 

EEOC  v. Westinghouse  Elec. Corp.,  925 F.2d  619, 623  (3d Cir.
                                  

1991) ("The  Court did not define 'nonfringe  benefit' [in Betts]
                                                                

but  its use of  the term makes  clear that the  terms 'bona fide

employee  benefit  plan'  and  'nonfringe  benefit' are  mutually

exclusive.").     Although  the  Court  remanded   the  case  for

resolution of  this issue,  it held:  "As  a result  of the  1978

amendments,   4(f)(2) cannot be used to justify forced retirement

on account  of age."  Betts, 492 U.S.  at 166 n.2.  Similarly, in
                           

Thurston, 469 U.S. at 124,  the Court stated that in  the context
        

of   4(f)(2), "any seniority  system that includes the challenged
                                                                 

practice is  not 'bona fide' under the  statute."  See also Betts
                                                                 

v.  Hamilton  County, 897  F.2d 1380,  1381  (6th Cir.  1990) (on
                    

remand  from  the   Supreme  Court,  determining   plan  required

involuntary retirement based on  age when disability choices were

restricted upon reaching age of sixty).

          Section 90F cannot qualify for the   4(f)(2) exemption.

Section 90F acts as a conditional involuntary retirement program,

which  some employees may escape through satisfaction of a burden

imposed  on  them  by the  statute.    It  regulates not  "fringe

benefits," but  the heart of the  employment relationship itself.

Section  90F clearly  forces retirement  in precisely  the manner

                               -25-
                                25

which the Supreme Court  explicitly found to be beyond  the scope

of the exemption.5

                               IV.

           In conclusion, we hold that   90F is violative of, and

is  preempted by, the ADEA  because it stands  in direct conflict

with    4(a)  of the  ADEA.   Specifically,  Massachusetts cannot

comply   with  the   ADEA  prohibition   that  no   employer  may

discriminate against  any individual because of  age with respect

to compensation,  terms, conditions or privileges  of employment,

while at the same  time requiring employees seventy years  of age

or older to pass an annual  medical examination as a condition of

continued employment pursuant to   90F.  We also hold  that   90F

is not exempt from the requirements  of the ADEA based on  either

of the two  exemptions provided in   4(f)(1) or    4(f)(2) of the

ADEA.  Under    4(f)(1),  we cannot  rationally conclude that the

distinction among employees for the purpose of implementing   90F

is  based on  any reasonable  factor other  than age.     Under  

4(f)(2),  we cannot rationally find that   90F satisfies the bona

fide employee  benefit plan exemption.   In order for   a plan to

                       

   5As is argued in the amicus brief, "Since   90F permits . .
                                                          
   . only those employees age seventy and older who pass the
   annual examination to continue employment, the only
   conclusion to be drawn is that those who do not pass the
   examination are not permitted to continue employment."
                      

                               -26-
                                26

qualify  under this exception, there may not be a provision which

requires  mandatory retirement.    Mandatory  retirement  is,  of

course, the point of   90F.  

           For the  foregoing reasons, we will  reverse the order

of   the  district   granting  summary   judgment  in   favor  of

Massachusetts  and the BCRA, and  we will remand  to the district

court  for entry of  summary judgment  in favor  of EEOC  and for

further proceedings consistent with this opinion.

Reversed and Remanded. 
                      

                               -27-
                                27
