dissenting.
The question we are called upon to decide, which the majority treats as one of law, as I am content to do as well, is whether in 1983 “special agents” in the Illinois Department of Criminal Investigation were required to retire at the age of 60. If so, Illinois can require them to retire at that age today notwithstanding the abolition of mandatory retirement by the Age Discrimination in Employment Act. I would have thought that if special agents had been subject to mandatory retirement since the reorganization of the department in 1977, as the court today holds, there would be some documentary trace of the fact. There is none. Or some evidence that some special agents had squawked when they found out that as a result of an executive reorganization they were subject to mandatory retirement at an early age. There is no evidence of that either. I would also have thought that some special agents would have been forced to retire at *191age 60; there is no evidence that any were, until the forced retirements in 1987 that precipitated this suit and several others like it. Certain regulatory and statutory changes in 1985 and 1988 may or may not have subjected special agents to mandatory retirement at age 60. That is irrelevant. The only question is whether they were subject to it in 1983. I find no indication that they were.
Before 1977, what is now called the Department of Criminal Investigation comprised, so far as relevant to this case, the State Police and the Bureau of Investigation. The State Police had some plainclothes investigators as well as the uniformed state troopers. All were subject to the mandatory retirement law, which had been enacted in 1974. The law enforcement officers in the Bureau of Investigation were called “special agents” and, the state concedes, were not covered by the mandatory retirement law. The 1977 reorganization which the state claims brought the special agents under the mandatory retirement law placed the uniformed troopers in a division of state police and the plainclothes state policemen along with the special agents in a division of investigation. The only indication that this reorganization might have affected the retirement of special agents is that the order states that it “establishes a unified personnel system for sworn law enforcement officers.” But it gives no particulars, and it does not rename special agents “state policemen” so as to bring them within the terms of the mandatory retirement law. Nor was that law amended to bring special agents within its scope. And the persons forced to retire in this case had always been special agents; they had not been plainclothes state policemen before the reorganization.
In 1979 the Illinois legislature provided that every law enforcement officer “shall be classified as a State Police officer as follows: trooper, sergeant, lieutenant, captain, or major, or as a Special Agent I through VI.” This can be read to make a special agent a type of state policeman but equally it can be read to divide law enforcement officers into state policemen and special agents, each with its own system of ranks, as in the army and the navy.
According to an uncontradicted affidavit by a state official, ever since 1977 the statutory entitlements of “state policemen” to longevity increases in salary and to public liability insurance have been accorded to special agents. Standing by itself, this extension would be evidence that special agents became state policemen by virtue of the reorganization. But it does not stand by itself. It stands beside the state’s failure to extend mandatory retirement to special agents. The state either thought that “state policemen” meant something different in different statutes, or decided to confer the benefits of being a state policeman on the special agents but not the burdens. On either interpretation, the “unified personnel system for sworn law enforcement officers” contemplated by the 1977 reorganization was not understood to subject special agents to the mandatory retirement provision applicable to state policemen.
I repeat: a profound change in the terms of employment of a substantial class of employees could be expected to be recorded somewhere, or at least noticed and protested by those adversely affected by it. The silence is deafening. The inference is to me inescapable that special agents were not in fact subject to mandatory retirement at age 60 in 1983. The decision of the district court, dismissing the EEOC’s suit, should therefore be reversed.