dissenting:
My problem with the majority’s opinion is with its summary disposition of the evidentiary issues, with its resolution of the disparate impact instruction claim, and with its refusal to afford relief based upon the instructions given by the trial court on the bona fide occupational qualification question.
Evidentiary Issues:
Generally a trial court’s rulings on admissibility of evidence will be disturbed on appeal only for abuse of discretion. United States v. Russell, 703 F.2d 1243, 1249 (11th Cir.1983). The trial court’s decisions on the relevance of proffered evidence is also subject to an abuse of discretion standard. United States v. Veal, 703 F.2d 1224, 1230 (11th Cir.1983). Fed.R.Civ.P. 61 permits setting aside a verdict on grounds of error in admitting or excluding evidence if required by “substantial justice.” I would hold that Iervolino has stated a valid allegation of error as to three of the trial court’s evidentiary rulings and that substantial justice requires a new trial.
First, the trial court refused to admit the identities of those airlines that permit captains to make two-step downbids so as to continue flying after age 60. Iervolino’s *1422concern is that by not revealing that these were major airlines (Alaska, American, Braniff, Flying Tiger, Northwest, Pan Am, TWA, United, USAir, Western) the jury might speculate that the appellant was talking about small carriers not comparable to Delta. The airline appellee claims that the exclusion was proper on grounds of prejudice because the jury “would have recognized the names of the carriers permitting such a practice and would have, based upon their personal experiences with those carriers, attributed poor judgment to Delta.”
This is precisely why the evidence was improperly excluded. The issue is whether age is a valid proxy for a given job qualification — namely the ability safely to function as a flight engineer. Assuming arguendo that individualized determinations of fitness are not feasible, the best evidence one could offer to prove or disprove age-based discrimination is the general practice and experience of the industry as a whole. Thus the Supreme Court held that, in resolving a challenge to an airline’s mandatory retirement policy for flight engineers and in weighing conflicting testimony, the practice of competitors is highly probative and would sustain the jury’s verdict on appeal. “When an employee covered by the Act is able to point to reputable businesses in the same industry that choose to eschew reliance on mandatory retirement earlier than age 70 ... the employer’s attempt to justify its decision on the basis of the contrary opinion of experts — solicited for the purposes of litigation — is hardly convincing on any objective standard short of complete deference.” Western Air Lines v. Criswell, — U.S. —, —, 105 S.Ct. 2743, 2756, 86 L.Ed.2d 321 (1985). The Court found such evidence probative and important because it assisted the jury in determining whether the company’s reliance upon age as a proxy was based upon a reasonable necessity, the operative standard. By qualifying the word “businesses” with “reputable” the Court obviously anticipated that the names of these businesses would be admitted. It was an abuse of discretion to keep them out and the result of prejudice. Upon a proper comparison between the practice of Delta and that of its major competitors the jurors might well have reached a contrary conclusion on Iervolino’s age claim.
Second, the trial court permitted Delta to play for the jury a tape recording of an actual in-flight emergency. Iervolino claims it was inadmissible, pointing out that in the incident in question the flight engineer played no role in the resolution of the crisis and hence the probativeness was outweighed by prejudice and should have been excluded under Fed.R.Evid. 403. Delta does not contest that in this taped incident the flight engineer was not involved but argues that it was generally probative. The admission of this evidence was clear error. The relevance was nil. It was mere theatrics designed to inflame the jury; again the result was to inject into the minds of the jurors inaccurate, prejudicial information that in all likelihood skewed their deliberations.
The appellant complains third that the trial court permitted the introduction of the medical history and condition of Mr. A.B. Paul, another captain who earlier had been a party to this suit but who withdrew prior to trial. The court permitted Delta to read 177 pages of deposition into the record to show the serious health problems of this over-60 pilot as relevant to the BFOQ defense. The appellee argues that this evidence was highly probative as anecdotal evidence of “the decrements which can accompany age.” Any prejudice, Delta claims, was harmless.
I believe it was clear error. Paul was not a party to this suit and there was no foundation laid to show that he was in any way representative of over-60 pilots. Western and the ADEA both require that employment decisions be made on an individual basis unless substantially all persons over 60 could not perform the job or there is no effective means of screening the various employees. — U.S. at — & n. 16, —, 105 S.Ct. at 2750 & n. 16, 2756. Neither is the case here, at least on the evi*1423dence on this record. The prejudice far outweighed any probative value.
The majority today disposes of these questions summarily. I believe that they represent serious error at the trial level, especially the first allegation of error involving the identity of other airlines that permit two-step downbids. Thus I dissent and would instead remand this case for a new trial and a new verdict untainted by such clear error.
Erroneous Instructions:
The trial court refused to give the jury an instruction on appellant’s right of recovery under the theory of disparate impact, basing that denial on the fact that the appellant had not clearly set this forth as a theory of liability at the pretrial conference.1 Finding that the appellant failed to raise this matter at the appropriate time, the majority would refuse to hear the claim by invoking the abuse of discretion rule. I believe that the trial court was clearly erroneous and I would reverse on this ground as well.
At the first day of trial, appellant argues, he informed the court that he intended to pursue this line in his summary of contentions and the court received evidence under this theory. Iervolino argues that when, at pretrial, his counsel informed the court that he intended to pursue his remedies under the ADEA, §§ 623(a)(1) and (2), this of necessity incorporated his intent to rely on the two theories of recovery available under the statute.
Delta did not object to introduction of evidence of disparate impact at trial nor did it object to the requested instruction on grounds of surprise or prejudice. On appeal it argues that this avenue is blocked by Fed.R.Civ.P. 16(e), which rule requires that a pretrial order “shall control the subsequent course of the action unless modified by a subsequent order.” Delta argues that, because the statute does not provide in words for a “disparate impact” remedy, mere reference to the statute does not incorporate this theory. This, of course, proves too much. The statute does not provide in words for the disparate treatment theory of recovery either. Both have been imported from analogous statutes. Delta’s argument in a nutshell is that telling the court that' one intends to present a case under the ADEA does not inform the court or the defendant that one intends to seek a remedy. This is clearly wrong.
It is clear from the transcription of the discussions at the pretrial conference that all actors below were aware that Iervolino planned to argue disparate impact. The majority overlooks the fact that at the pretrial conference, when the parties and the judge engaged in a lengthy colloquy to set forth the theories of recovery, remedy sought, and defenses offered, Iervolino’s attorney clearly noted that he planned to pursue a disparate impact argument. That he planned to do so was so obvious to all parties that Iervolino’s lawyer twice stated •his desire not to be misunderstood as relying solely upon that theory: “I don’t want the court to ... misunderstand that ours is only a disparate impact claim, it’s [also] a disparate treatment claim ...” R.11-147.
Even if Rule 16(e) is implicated by the failure to include in the pretrial order the express election of the disparate impact theory, that Rule also provides that a defect may be remedied by modifying the pretrial order to “prevent manifest injustice.” I would do so here. Regardless of any putative deficiencies in the pretrial order, I think it clear from the record that both the trial court and Delta knew from the beginning that this was one theory of recovery. Delta never objected to the introduction of evidence in support of this theory and failed to show that prejudice would follow from such instruction. Under these circumstances, I think the trial judge clearly erred in refusing Iervolino’s re*1424quest. Given the differences in the standard of proof for this theory, prejudice to Iervolino was inevitable.
I am likewise unable to accept the majority’s determination that the trial court’s instruction on the BFOQ issue was both proper and unassailable due to the operation of the plain error rule. I believe that the instructions were demonstrably improper when compared with the operative legal standard and that Iervolino should not be foreclosed from advancing this argument today because the error below was so manifest as to constitute plain error.
Appellant challenges the jury instructions because the trial court stated that the proper standard for determining whether the Delta policy constituted a BFOQ was “reasonableness” rather than “reasonable necessity.” Our proper task is to review the instructions as a whole.2 From that perspective there was plain error.
In our now seminal opinion in Usery v. Tamiami Trail Tours, 531 F.2d 224, 236 (5th Cir.1976), we articulated a two-step standard of review for evaluating safety-related BFOQ defenses: 1) the age-related BFOQ must be “reasonably necessary” to the “essence” of the business operation; and 2) the employer must show a) that he had a “reasonable cause” to believe that all or substantially all of a given age-based class of employees “would be unable to perform safely and efficiently the duties of the job involved” or b) that “it is impossible or impractical” to screen individual employees for age-related health problems affecting work performance. 531 F.2d 235-36.
—The “essence” prong:
In Western the airline directly challenged the “reasonably necessary” Tamiami instruction for the essence prong, arguing that more deference was due airlines to insure the essence of their business — the safety of their passengers. Western argued that it should be able to succeed on a BFOQ defense if it could show a “rational basis in fact” for its belief that flight engineers over age sixty posed a safety hazard. The Supreme Court squarely rejected this, finding that the 1978 amendments to the ADEA implicitly adopted the instruction we articulated in Tamiami. Congress sought “to subject such management decisions to a test of objective justification in a court of law.” — U.S. at —, 105 S.Ct. at 2754.
The only question, then, is whether the trial court’s instructions were improper because they might have led the jury to believe that the legal standard for finding a BFOQ was reasonableness.3 Contrary to the majority, I believe that, viewed as a whole, the instructions were misleading. The trial court did use the words “reasonable necessity” in its essence instruction. But it summarized the instruction by using the words “reasonable in light of considerations of safety” — a characterization to the same effect as that requested and rejected in Western. — U.S. at —-—, 105 S.Ct. at 2753-54. A few paragraphs later the trial judge did precisely the same thing again.4 This significantly diluted the force *1425of the instruction, especially when one realizes that the words “reasonable necessity” were buried in a mass of verbiage extending over three typed pages.
Our case law has held that an argument waived in the trial court may be reviewed on appeal only for “plain error,” which we have defined as error that is “both obvious and substantial.” United States v. Smith, 700 F.2d 627, 633 (11th Cir.1983). In light of the clear holdings of the former Fifth Circuit in Tamiami, and of the Supreme Court in Western, there is no question but that the error in the trial court’s instruction ought to have been obvious to all. Further, that error was substantial because it expanded the extremely narrow BFOQ exception contrary to the clear intent of Congress and the holding of the Supreme Court.5 Thus, I believe we can and should reach this allegation of error and grant relief in the form of a new trial.
—The second prong:
The second prong requires showing either of two possible justifications for age-based discrimination — that all or nearly all people over sixty would be unable to perform safely the task of flight engineer, or that while some would not be able to perform it there is no feasible way to separate the wheat from the chaff.6 The appellant argues that the court’s instructions on the second prong incorporated irrelevant issues that again diluted the force of the legal standard by suggesting that the jury should be unduly deferential to Delta’s safety concerns.7
*1426Here there is plain error in two respects. First, the language in the third paragraph quoted in footnote 7 of this dissent is the so-called “adjusts to the safety factor” clause that belongs as a modifier of the essence prong. Western, — U.S. at —, 105 S.Ct. at 2751. Instead the trial court buried it in the discussion of the second prong. Placement is important because this sliding scale determines only the extent to which safety is the essence of the business. It permits a “looser fit” in defining “essence,” thus introducing subjective factors into the analysis. By placing the safety instruction where it did, the trial court permitted the jury to consider the need for flight safety in considering the second prong’s job fitness inquiry. This subjectivity is reinforced by the last, “all other evidence” paragraph in footnote 7 that invites an open-ended incorporation of whatever other factors suit the jury’s fancy-
On the other hand, the second prong should function as a strictly objective test. The employer must show that nearly all those over sixty are unable to do the job, as defined by objective factors, or that there is no valid scientific measure that permits determining who is or is not capable. The first prong focuses on business safety factors that are independent of age; the second prong focuses on those cases where age is a permissible proxy for these safety factors. By placing this clause in the instruction after the second prong’s discussion of the effects of age on the employee, the trial court impermissibly redirected the focus, permitting looser fit for age-based generalities not tailored to the individual traits of employees.
Again, I would find this plain error. The effect was to conflate the two prongs, making it impermissibly easier for the employer to show a BFOQ by means of aggregate characteristics “inconsistent with the preference for individual evaluation expressed in the language and legislative history of the ADEA.” Western, — U.S. at —, 105 S.Ct. at 2756. The potential for jury confusion was obvious. Even if placement were not a problem, the trial court again summarized the standard as reasonableness instead of reasonable necessity. Either way it was error that justifies relief.
Second, the instructions stated in the fourth and fifth paragraphs of footnote 7 that this “adjust to the safety factor” requires the jury to defer to the particular safety standards that Delta itself has chosen to adopt — rather than to compare them with general industry standards. This is squarely at odds with Western. There too the airline argued that the jury should be instructed to “defer to ‘Western’s selection of job qualifications for the position of [flight engineer] that are reasonable in light of the safety risks.’ ... This proposal is plainly at odds with Congress’ decision, in adopting the ADEA, to subject such management decisions to a test of objective justification in a court of law. The BFOQ standard adopted in the statute is one of ‘reasonable necessity,’ not reasonableness.” — U.S. at —, 105 S.Ct. at 2754 (emphasis supplied, brackets in original). Demonstration of an objective justification for a mandatory retirement and no downbid policy, of necessity, required that the jury be directed to the standards of the industry, not merely to those enunciated by the defendant. The Supreme Court expressly held such evidence relevant and probative, though not necessarily dispositive, of this question. Id. The fact that so many allow what Delta denies suggests that the policy is not a BFOQ because it does not go to the essence of the business. It was both obvious and substantial error for the trial court to exclude this evidence from the jury’s consideration, and I believe it constitutes grounds for reversal.
I would reverse the judgment below and remand this case for a new trial untainted by the various errors noted.
. Appellant argues that had he been allowed to pursue this line he might have prevailed because recovery under the disparate impact theory does not require proof of intent, which must be shown in a disparate treatment case. Nash v. Consolidated City of Jacksonville, 763 F.2d 1393, 1397 (11th Cir.1985).
. On appeal we must examine the instructions "in the ‘context of the overall charge’ and the circumstances of the case — [We must be] satisfied that the jury's attention was adequately focused" on the proper legal standards. Western, — U.S. at —, 105 S.Ct. at 2755. Thus the standard is plenary; there is no suggestion of deference or presumption as to the trial court’s instructions.
. In relevant part the instructions were as follows:
[I]t is Delta’s burden to establish the existence of a bona fide occupational qualification, and they must establish that by a preponderance of the evidence.
Now, a bona fide occupational qualification is one which is reasonably necessary to the employer’s business. It is reasonably necessary if it relates to the essence of the business, which in this case is the safe transportation of passengers.
Thus, to be justified as a bona fide occupational qualification, Delta’s policy must be related to the safe transportation of its passengers, or stated another way, must be reasonable in light of considerations of safety.
R. 25-2830 (emphasis supplied).
. The trial judge instructed as follows:
In this connection, I charge you that the greater the need for the exercise of safety brought about by the likelihood of harm and the probable severity of that harm in case of an accident, the more discretion the employer *1425may lawfully exercise in establishing job qualifications. Where the risks are high and the requirements for the exercise of safety are great, the law permits an employer to establish more stringent employee standards, if it can show that such standards are reasonably necessary to reduce the risks of harm to any significant degree.
The standard by which the reasonableness of Delta’s safety precautions is to be judged is not the standard of other bodies or other airlines.
R. 25-2832 (emphasis supplied).
. While the Supreme Court said clearly that the BFOQ standard is "reasonable necessity,” Western, 105 S.Ct. at 2754, it two weeks later denied certiorari on a Fifth Circuit case that had jury instructions virtually identical to those in this case. Johnson v. American Airlines, Inc., 745 F.2d 988, 993-94 (5th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 3500, 87 L.Ed.2d 631 (1985). Of course denial of certiorari is not properly taken to be a statement as to the merits of the case, Maryland v. Baltimore Radio Show, 338 U.S. 912, 919, 70 S.Ct. 252, 255, 94 L.Ed. 562 (1950) (Opinion of Frankfurter, J., respecting denial of certiorari). The instructions in Western and Johnson cannot be reconciled; accordingly, we must follow the Western standards, which suggest that the instructions here were incorrect.
. Our opinion in Tamiami suggests that the required showing is one of "reasonable cause." While the Supreme Court relied upon Tamiami as the controlling standard it sotto voce modified Tamiami so that the second prong is also governed by the reasonably necessary standard. — U.S. at —, 105 S.Ct. at 2756.
. The judge first stated the proper two-part inquiry on the second prong, then went on, in relevant part, to modify the instructions as follows:
[Y]ou may consider more than simply the individual plaintiffs ability to perform the duties of the second officer job.
You may also consider the effect that allowing the plaintiff or others situated to serve as second officer would have on the safety of Delta’s operations because of its effect on crew command structure, crew communication and crew concentration or any other similar reasons related to safety.
In this connection, I charge you that the greater the need for the exercise of safety brought about by the likelihood of harm and the probable severity of that harm in case of an accident, the more discretion the employer may lawfully exercise in establishing job qualifications. Where the risks are high and thé requirements for the exercise of safety are great, the law permits an employer to establish more stringent employee standards, if it can show that such standards are reasonably necessary to reduce the risks of harm to any significant degree.
The standard by which the reasonableness of Delta's safety precautions is to be judged is not the standard of other bodies or other airlines.
Instead, its policy must be assessed against Delta’s own commitment to safety as demonstrated by what it actually does in the promotion of safety in comparable areas.
And also, your assessment will be based on and considered by you in light of all of the other evidence in the case, on the risks involved, and the tendencies, if any, of Delta’s policy to reduce those risks.
R. 25-2831-32.