    [Senate Hearing 119-165]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 119-165

                          PROTECTING OLDER AMERICANS:
                           LEVELING THE PLAYING FIELD
                               FOR OLDER WORKERS

    =======================================================================

                                    HEARING

                                   BEFORE THE

                           SPECIAL COMMITTEE ON AGING

                              UNITED STATES SENATE

                        ONE HUNDRED NINETEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 WASHINGTON, DC

                                   __________

                               SEPTEMBER 3, 2025

                                   __________

                               Serial No. 119-13

             Printed for the use of the Special Committee on Aging

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

            Available via the World Wide Web: http://www.govinfo.gov

                                    __________

                       U.S. GOVERNMENT PUBLISHING OFFICE
    61-633 PDF                  WASHINGTON : 2025

    -----------------------------------------------------------------------------------

                           SPECIAL COMMITTEE ON AGING

                         RICK SCOTT, Florida, Chairman

    DAVE McCORMICK, Pennsylvania         KIRSTEN E. GILLIBRAND, New York
    JIM JUSTICE, West Virginia           ELIZABETH WARREN, Massachusetts
    TOMMY TUBERVILLE, Alabama            MARK KELLY, Arizona
    RON JOHNSON, Wisconsin               RAPHAEL WARNOCK, Georgia
    ASHLEY MOODY, Florida                ANDY KIM, New Jersey
    JON HUSTED, Ohio                     ANGELA ALSOBROOKS, Maryland
                                  ----------
                    McKinley Lewis, Majority Staff Director
                    Claire Descamps, Minority Staff Director

                            C  O  N  T  E  N  T  S

                                  ----------

                                                                       Page

    Opening Statement of Senator Rick Scott, Chairman................     1
    Opening Statement of Senator Kirsten E. Gillibrand, Ranking
      Member.........................................................     1

                               PANEL OF WITNESSES

    Nancy LeaMond, Chief Advocacy and Engagement Officer, AARP,
      Washington, DC.................................................     4
    David Horton, Fair Business Practices and Investor Advocacy,
      Endowed Chair, Martin Luther King, Jr., Professor of Law,
      University of California, Davis School of Law, Davis,
      California.....................................................     5
    Gretchen Carlson, Journalist and Co-Founder, Lift our Voices,
      Greenwich, Connecticut.........................................     7
    Rachel Greszler, Senior Research Fellow Workforce and Public
      Finance, the Heritage Foundation, Washington, DC...............     9

                                    APPENDIX
                          Prepared Witness Statements

    Nancy LeaMond, Chief Advocacy and Engagement Officer, AARP,
      Washington, DC.................................................    26
    David Horton, Fair Business Practices and Investor Advocacy,
      Endowed Chair, Martin Luther King, Jr., Professor of Law,
      University of California, Davis School of Law, Davis,
      California.....................................................    29
    Gretchen Carlson, Journalist and Co-Founder, Lift our Voices,
      Greenwich, Connecticut.........................................    32
    Rachel Greszler, Senior Research Fellow Workforce and Public
      Finance, the Heritage Foundation, Washington, DC...............    34

                            Questions for the Record

    Nancy LeaMond, Chief Advocacy and Engagement Officer, AARP,
      Washington, DC.................................................    48

                           Statements for the Record

    American Association for Justice Statement.......................    57
    Defense Credit Union Council Statement...........................    61
    Mary Ann (Miki) Herman Statement.................................    65
    Ed Henselder Statement...........................................    66

                          PROTECTING OLDER AMERICANS:
                           LEVELING THE PLAYING FIELD
                               FOR OLDER WORKERS

                                  ----------

                          Wednesday, September 3, 2025

                                            U.S. Senate
                                     Special Committee on Aging
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:36 a.m., Room
    106, Dirksen Senate Office Building, Hon. Rick Scott, Chairman
    of the Committee, presiding.
        Present: Senator Scott, McCormick, Johnson, Gillibrand,
    Warren, and Kim.

                     OPENING STATEMENT OF SENATOR
                          RICK SCOTT, CHAIRMAN

        The Chairman. The Senate Special Committee on Aging will
    now come to order. We are proud of the bipartisan history of
    the Special Committee on Aging and to maintain that tradition
    in this Congress, today's hearing will be led by Ranking Member
    Gillibrand. Let me turn it over to the Ranking Member.

                     OPENING STATEMENT OF SENATOR
                 KIRSTEN E. GILLIBRAND, RANKING MEMBER

        Senator Gillibrand. Chairman Scott, thank you so much for
    providing me with the opportunity to discuss this incredibly
    important topic: age discrimination. Thank you to our witnesses
    for being here today, for fighting for the rights of older
    Americans and their families. You all know what it is like to
    spend a lifetime working hard, building your career, and
    contributing to our economy. You can imagine how devastating it
    is to experience discrimination because of how old you are.
        Nobody wants to feel like their contributions don't matter,
    especially not because of some arbitrary characteristic like
    age. Far too often older workers are denied employment, passed
    over for promotions, or even fired because of their age.
    According to research conducted by AARP, 64 percent of workers
    over the age of 50 have seen or experienced some form of age
    discrimination at work, and of that population, 90 percent
    believe that age discrimination against older workers is common
    in the workplace.
        In that same report, more than one in five older Americans
    said that they worried about being pushed out of their job
    because of their age. This comes as Americans have started
    working later in life. With employees over 75 years old, are
    becoming the fastest growing age group in the economy, just ask
    the U.S. Senate.
        The population of older Americans is growing, and many are
    returning to the workforce; We need to ensure that those who
    face age discrimination can have their day in court. Victims of
    age discrimination often can't seek justice or accountability
    in court because of a forced arbitration clause they signed
    when they were hired. Many employees are not even aware that
    their employment contract contained a forced arbitration
    clause.
        It traps those who experience workplace discrimination in a
    system that benefits their employer, preventing them from
    seeking information that could prove their case. Victims are
    left at the hands of an extrajudicial arbitrator who is often
    selected by the employer and not always a trained lawyer. It's
    no surprise that employees are often less likely to win an
    arbitration than they are in court.
        Building on our successful effort to ban forced arbitration
    in cases of sexual harassment and sexual assault, Senator
    Lindsey Graham and I introduced the Protecting Older Americans
    Act, which would invalidate forced arbitration clauses in cases
    of age discrimination as well. It would also allow those who
    have experienced age discrimination the option to file their
    case in court if they choose, even if they previously signed a
    forced arbitration clause. It gives them a voice and a process
    and the ability to seek justice. If employees decide that they
    would like to pursue arbitration when they have faced age
    discrimination, they can. The point is that employees will now
    have this fundamental choice.
        The crux of the issue is that despite how workplace age
    discrimination is categorically illegal, and how Congress has
    already passed laws to protect older Americans from it, forced
    arbitration clauses subvert justice. They take away your
    constitutional right to a jury without you knowing about it.
    They allow employers to hide illegal conduct behind closed
    doors, and they shield those who have committed serious
    misconduct from the public eye.
        Now we have an opportunity for broad bipartisanship at a
    time when many Americans feel Congress is too divided to get
    things done. I look forward to hearing from our witnesses today
    as well as discussing these critical issues. Thank you, Mr.
    Chairman.
        The Chairman. Thank you. Thank you, Ranking Member. First
    off, thanks everybody for being here. We've gathered to discuss
    a very important topic, not just for our aging community, but
    also for generations planning for retirement, and for those who
    won't be retiring for several decades. Today's hearing, we'll
    focus on the value of our older Americans in the workplace,
    what we can do as elected officials to help protect and foster
    a purpose-filled life for our aging constituents.
        I look forward to a discussion today on how we fight
    against age discrimination by highlighting the positive impact
    of older Americans' engagement in their communities, and how
    aging Americans who remain engaged create benefits for
    themselves in our economy. I want to be clear about something.
    Age discrimination is clearly wrong. It's stupid. I built
    businesses. I can tell you that looking at someone's age
    instead of the value they bring to an organization absolutely
    makes zero sense. You can't run a business or government that
    way, and we need to make sure it's not happening to any
    American senior.
        Work provides purpose and fulfillment. These are powerful
    forces that enrich families, strengthen communities, and
    support the health and longevity of our Nation and its people.
    Having a purpose is an essential part of the American dream and
    has long been an indicator of both mental and physical well-
    being across all age groups. Research shows that older adults
    who remain engaged experience greater physical health, mental
    resilience, and life satisfaction, and appointing older
    Americans is good for business too because these folks have
    years of wisdom, the ability to mentor the next generation of
    leaders, and a valuable perspective on issues leaders in
    business and government face each and every day.
        To be clear, not every older American wants to stay the
    workforce. Finding purpose will be different for each person.
    For some, it will be taking a class or a course to explore an
    area of interest, volunteering in the community, or dedicating
    time to pursue a new hobby, but for many seniors, purpose will
    be found to continuing to work in some capacity. This could be
    in their previous business as a new part-time employee, at a
    place they enjoy frequently, or even branching out and starting
    something new. We need to make sure Americans of all ages have
    the opportunity to work and pursue their dreams by stopping age
    discrimination and removing the red tape and barriers that
    hamper or discourage older Americans from continuing to work or
    starting a new business or career.
        We did this in Florida when I was Governor. We cut taxes.
    By cutting taxes and costly and unnecessary regulations, we
    managed to turn the economy around making a beacon for
    businesses and those wanting a full and purposeful life. During
    my years as Governor, we cut taxes more than 100 times and
    sliced more than 5,000 burdens from regulations. We cut the
    time it took to get your license or permit from the State of
    Florida from weeks to days. Florida businesses added 1.7
    million jobs. We paid down over $10 billion of debt. We
    increased the efficiency of government to provide additional
    services for our citizens and our state, including for our
    seniors, and as a result, many seniors moved to Florida because
    there's clearly better business opportunities there.
        Because of these policies, Florida is well known as the
    place that thousands of retirees' flock to each and every year,
    escaping less financially hospitable climates, some to retire,
    some to start businesses. In Florida, their dollars go farther,
    and they have communities and opportunities to experience
    connection and fulfillment without the fear of age
    discrimination. I want to thank my colleague, Ranking Member
    Gillibrand for her focus on this important topic and look
    forward to a productive and meaningful conversation. I think
    you're going to go now.
        Senator Gillibrand. Thank you, Chairman Scott. I want to
    introduce our first witness, Nancy LeaMond. Ms. LeaMond serves
    as the chief advocacy and engagement officer for AARP, and she
    has the responsibility of driving the organization's social
    mission on behalf of the Americans 50 plus and their families.
    In this capacity, she leads AARP's legislative campaigns,
    manages public education, volunteerism, multicultural outreach,
    and engagement. Thank you, Ms. LeaMond, you may begin.

              STATEMENT OF NANCY LEAMOND, CHIEF ADVOCACY
              AND ENGAGEMENT OFFICER, AARP, WASHINGTON, DC

        Ms. LeaMond. Thank you, Chairman Scott, Ranking Member
    Gillibrand, members of the Committee. Thank you for the
    opportunity to testify today. As you said, my name is Nancy
    LeaMond and I serve as AARP's Executive Vice President and
    Chief Advocacy and Engagement Officer.
        On behalf of the 100 million Americans age 50 and over, I
    also want to thank you for working in a bipartisan way to
    highlight so many issues important to older adults. Hearings
    like this as well as others, including Senator Scott's recent
    field hearing on fighting fraud, help move us toward solutions
    that will allow Americans to age with dignity.
        Today's topic of age discrimination is critically
    important. It is an under-discussed and under-recognized issue
    that is real implications for the growing population of older
    Americans who are working longer than ever before, many because
    they need to make ends meet. According to the Federal Reserve
    Survey of Consumer Finances, 54 percent of households have no
    retirement savings. Among those who do the median savings for
    folks, 55 to 64 is $185,000, and it's worth noting that the
    number for older women, particularly those who are divorced,
    widowed, or never married, is significantly lower.
        As we all know, this number is well below what's needed for
    a secure retirement, even factoring in social security and
    likely one reason that folks 75 and older are the fastest
    growing segment of the workforce. At the same time, nearly two
    thirds of workers age 50 plus tell us they've seen or
    experienced age discrimination, and 40 percent of job seekers
    over 45 say they've faced it looking for work.
        Research shows that half of workers in their early 50's
    experience involuntary job loss, and older Americans are more
    likely than their younger peers to be unemployed for six months
    or longer. More than half of older job seekers report being
    asked to provide age related information during the application
    process, and the algorithms used to scan resumes and
    applications can accelerate bias using graduation dates or
    years of experience as proxies for age to screen out otherwise
    qualified candidates.
        Talk to older job seekers and they'll tell you they hear
    things in interviews like, "You're overqualified, we're looking
    for a digital native, or a more energetic candidate." This is
    undermining the financial stability of too many capable
    Americans. It's also economically damaging to our country. AARP
    research shows that age discrimination costs the U.S. economy
    $850 billion every year. Simply put, sidelining experienced
    workers is also a loss we cannot afford, and Congress has the
    power to help fix this problem.
        I want to commend Senator Gillibrand, who along with
    Senator Graham has introduced the Protecting Older Americans
    Act to end mandatory arbitration in age discrimination claims,
    a practice that silences workers and denies them the full
    protection of law. AARP is proud to support this common-sense
    law. Other bipartisan bills that we think should be considered
    by the Congress include the Protecting Older Workers Against
    Discrimination Act and the Protect Older Job Applicants Act.
        AARP is also working at the state level, promoting policies
    to ban age-related inquiries in the initial hiring process and
    to secure funding to help retrain older workers. We're
    partnering with employers to build more age inclusive
    workplaces through initiatives like our Employer Pledge
    Program, which has over 2000 businesses, and we help older
    Americans sharpen their skills to stay competitive.
        It's going to take an all of the above approach to really
    make progress. Again, thank you so much for holding this
    important hearing and for the opportunity to testify on behalf
    of older Americans who ask only for fairness and respect in the
    workplace.
        Senator Gillibrand. Thank you very much, Ms. LeaMond. I
    want to now introduce our next witness, David Horton. Professor
    Horton is the Fair Business Practices and Investor Advocacy
    Professor of Law at the University of California, Davis School
    of Law. Professor Horton's teaching and published works are
    focused on wills and trusts, arbitration, law, and contracts.
    You may begin.

           STATEMENT OF DAVID HORTON, FAIR BUSINESS PRACTICES

              AND INVESTOR ADVOCACY, ENDOWED CHAIR, MARTIN

           LUTHER KING, JR., PROFESSOR OF LAW, UNIVERSITY OF

           CALIFORNIA, DAVIS SCHOOL OF LAW, DAVIS, CALIFORNIA

        Mr. Horton. Thank you, Chairman Scott, Ranking Member
    Gillibrand, distinguished members of the Committee for the
    opportunity to speak today. My name is David Horton. I teach at
    UC Davis, and one of my areas of specialty is forced
    arbitration.
        We just heard from Nancy about how age discrimination harms
    older workers, and I'm going to talk about how forced
    arbitration compounds those harms. At the outset, I should say
    that I believe that arbitration could be socially valuable. For
    example, it would allow two businesses in a particular industry
    to submit a dispute to a specialist in their field rather than
    a generalist judge.
        For two reasons, I oppose the forced arbitration of claims
    that are as pernicious and as pervasive as age discrimination.
    First, although arbitration derives its legitimacy from the
    parties consent to bypass the court system, forced employment
    arbitration is not consensual. Think of some of the ways that
    employers force employees to arbitrate.
        Sometimes they put arbitration provisions in onboarding
    paperwork, but studies confirm what our common sense tells us.
    At that time, workers are bombarded with information, they
    don't read or understand the fine print, and they have no idea
    that they've waived their seventh amendment right to a jury
    trial. Moreover, even if workers did read and understand forced
    arbitration provisions, they would have little choice. Who has
    the luxury to say no to a job because they don't like the fine
    print? And it would make no sense to leave a position for
    another position hoping that it wouldn't be subject to
    arbitration because statistics show that forced arbitration is
    so pervasive that the odds are any other job would also be
    subject to the process.
        Employers often also impose arbitration on people who have
    been on their payroll for years and even decades, so consider
    an example from a recent age discrimination case. There was a
    woman named Joanne Grace. She started as a nurse in 1976. It
    wasn't until 2019 that she took an online training that
    culminated with her clicking a button saying she agreed to
    arbitrate to any dispute with her employer. A year later, a new
    supervisor was assigned to her who made derogatory comments
    about her age and ended up firing her and replacing her with a
    younger worker.
        She sued for age discrimination, but a federal court in
    Ohio compelled arbitration of her claim. It's not true that her
    consent to arbitration in that context is meaningful. Was she
    really going to leave a job that she loved, that she'd been
    working at for 50 years over something like forced arbitration?
        The second reason that employees should not be compelled to
    arbitrate age discrimination claims, is that there are systemic
    differences between litigation and arbitration that make it
    harder for plaintiffs to vindicate their rights. For example,
    employment discrimination often arises out of company-wide
    policies, which calls out for class or collective proceedings,
    but you can't bring class or collective proceedings in
    arbitration.
        Forced employment arbitration also has a repeat player
    problem, so unlike judges, arbitrators are selected by the
    parties and paid by the hour, so they have an economic
    incentive to rule in favor of the only party who's going to be
    in a position to select or veto them again in a future case,
    and this concern about arbitral bias is especially pressing,
    given the rising phenomenon of employers paradoxically
    assigning arbitrators the task of determining whether or not
    the arbitral process is fair.
        For years, courts applied the contract doctrine of
    unconscionability to invalidate arbitration clauses that tried
    to tilt the scales of justice, but in a 2010 decision called
    Rent-A-Center West v. Jackson, the U.S. Supreme Court gave its
    blessing to delegation clauses which allow arbitrators to
    decide that issue. If an arbitrator holds that the arbitral
    process is rigged, they're taking money out of their own
    wallets by denying themselves the power to hear the merits of
    the case.
        There is growing empirical evidence that arbitrations
    differences: it's lack of class and collective proceedings, its
    risk of biased decisionmakers, its limited discovery, are
    deterring plaintiffs from pursuing claims. Scholars estimate
    based on filing levels in federal and state court and the
    percentage of employees who are subject to arbitration clauses,
    that you would expect to see between 323,000 and 727,000
    employment arbitrations every year. How many arbitrations are
    actually filed by employees? In the leading arbitration
    providers, the AAA and JAMS, the number is 2,000 to 3000.
        What we know about the prevalence of age discrimination,
    many of these missing abandoned claims have to be seeking
    redress under the ADEA or its state analogs. For these reasons,
    although we describe arbitration as alternative dispute
    resolution, forced employment arbitration is not alternative
    dispute resolution. It's not an alternative because employees
    have no choice. It's also not an alternative to anything
    because it's increasingly the norm, and it's not dispute
    resolution because its purpose isn't to resolve disputes, it's
    to suppress them.
        One step in the right direction would be for Congress to
    pass the Protecting Older Americans Act. This bill gives
    workers with age discrimination claims, what they've been
    sorely lacking for decades, the freedom to choose a forum in
    which to seek justice. Thank you again for the opportunity to
    testify.
        Senator Gillibrand. Thank you so much, Professor Horton.
    Appreciate it. I want to move now to our next witness, Gretchen
    Carlson. Ms. Carlson is a former Fox News journalist and co-
    founder of a not-for-profit, Lift Our Voices, which works to
    end the silencing of harassment victims through forced
    arbitration and non-disclosure agreements.
        A champion for workplace equality, Ms. Carlson was named
    the Time Magazine's 100 most influential people in the world
    after her bold actions against Fox News, which not only helped
    to pave the way for the global Me Too movement, but was the
    leading advocate to change the law, to eliminate forced
    arbitration in the workplace for sexual assault and sexual
    harassment. You may begin.

             STATEMENT OF GRETCHEN CARLSON, JOURNALIST AND
          CO-FOUNDER, LIFT OUR VOICES, GREENWICH, CONNECTICUT

        Ms. Carlson. I should know how to do that by now. Thank you
    so much, Chairman Scott. I think I have not seen you since we
    were on Fox and Friends together years ago at the Villages and
    we were wrestling a baby alligator together, so it's great to
    see you again.
        Chairman Scott. Both survived.
        Ms. Carlson. We both survived. We did. It was tiny. Ranking
    Member Gillibrand, thank you so much for your support on these
    issues, and to the other members of this Committee, thank you
    for the opportunity to be here. I'm so encouraged to be able to
    talk to you about my advocacy with forced arbitration and the
    work that I've done to make Americans so much safer in the
    workplace.
        In 2016, I somehow found the courage to come forward
    against then chairman and CEO of Fox News, Roger Ailes for
    sexual harassment. It was the toughest decision of my life, but
    after my career that I had killed myself for was taken away
    from me, I thought to myself, "If I don't do this, who will?"
    My story made headlines around the world, but you know, it
    could have easily been swept under the carpet because of a
    forced arbitration clause in my own employment contract.
        No one starts a new job expecting something bad to happen
    to them. I know I didn't. In the face of a new opportunity, few
    people can walk away from a job opportunity because of the fine
    print. I don't care who you are, you don't understand what
    forced arbitration means. In my case, it showed up in my last
    contract with Fox, and while I asked a lot of questions, I was
    told not to worry about it because, "It was becoming the way of
    the world."
        Eerily, I had no idea at the time how true that was. Today,
    more than 60 million American workers are subject to forced
    arbitration. Most have no idea that signing on the dotted line
    means they've accepted forced arbitration as their only remedy
    for justice.
        After my story, I started walking the halls of Congress and
    in 2022, thanks to members of this Committee and other
    champions in Congress from both sides of the aisle, the Ending
    Forced Arbitration of Sexual Assault and Sexual Harassment Act
    was signed into law, one of the proudest moments of my life.
    That meant that Kirsten Tiger, a bartender at a prestigious
    country club facing harassment, she was able to bring lawsuits
    since that law passed against her employer last year, and even
    though her employer still tried to compel the forced
    arbitration clause, the request was denied because of that law.
        A federal judge in Texas also declined to grant Blaze
    Media's motion to dismiss after one of its employees, Sydney
    Watson, she also claimed harassment. Watson's case can now also
    continue in the court of law thanks to the new law, but there's
    still much more work to do.
        Last year in one of the most outrageous stories that you
    probably heard of, a wife and mom died of an allergic reaction
    at a Disney restaurant after staff confirmed to her that the
    food was safe. Disney tried to force her husband into
    arbitration because get this, he had previously signed a Disney
    plus streaming subscription confirmation email, which included
    a forced arbitration clause. Only after enormous public outcry
    did Disney waive the arbitration clause and allowed the case to
    proceed in court.
        How about our kids? Parents of a 14-year-old girl in
    California claimed she was coerced into sharing graphic images
    online with two companies. Both companies tried to force the
    family into arbitration, into secrecy, meaning other families
    of this alleged predator with at least 20 other child victims
    would never be able to know about him.
        Pertinent to why we're here today, Sam Cassel was promoted
    seven times as a top sales rep throughout his 24-year career,
    despite a better sales record than his younger peers, he was
    forced out and terminated, and due to a forced arbitration
    clause, he had no ability to seek justice in the court system.
    These personal stories are why I'm a champion as well of the
    Protecting Older Americans Act.
        Reintroduced today by Ranking Member Gillibrand and Senator
    Graham, also co-sponsored by the Chair and Ranking Member of
    the Senate Judiciary Committee, Senator Grassley and Senator
    Durbin. Too many people are still not getting the simple
    freedom of choice when something bad happens to them at work.
        Now, just for a minute about the naysayers out there, we
    haven't seen what the chamber claimed was going to happen after
    we passed the EFAA that all hell would break loose and if you
    let women file their assault and harassment cases in court,
    there would be a slew of new cases everywhere and companies
    would go out of business, but none of that has happened.
    Instead, we're just cleaning up the workplace and getting rid
    of a few bad apples. I believe the same thing could happen with
    this bill.
        A close friend said to me after my lawsuit at Fox News,
    "Something good is going to happen from this Gretchen." And I
    didn't really see it at the time, but something great has
    happened from this. I thank you for holding this hearing. I
    hope you'll agree this is a bill we can all get behind
    regardless of politics. Maybe we can all start by agreeing that
    all of us here today are part of the age category. Let's take
    this on together, and I thank you for your time.
        The Chairman. First off, thanks. Thanks to all of you for
    your testimony. I now like to introduce Rachel Greszler. Rachel
    is a nationally recognized expert on workforce, retirement, and
    fiscal policy. As a senior research fellow at the Heritage
    Foundation, she has spent over a decade analyzing and advising
    on issues such as fiscal policy, pensions, and labor policy.
    Before joining Heritage in 2013, she served as a senior
    economist for the Joint Economic Committee on of Congress for
    seven years.
        Her research is marked by commitment to promoting economic
    growth, individual freedom, and fiscal responsibility. Her
    expertise and passion for practical people-focused solutions
    make her an invaluable resource for today's discussion on the
    role of purpose, responsibility, and engagement in later life.
    Thank you. Please begin your testimony.

             STATEMENT OF RACHEL GRESZLER, SENIOR RESEARCH

                  FELLOW WORKFORCE AND PUBLIC FINANCE,

                THE HERITAGE FOUNDATION, WASHINGTON, DC

        Ms. Greszler. Chairman Scott, Ranking Member Gillibrand,
    and members of the Committee. Good morning and thank you for
    the opportunity to be here today. In my remarks, I would like
    to cover three points.
        First, is that older Americans are an increasingly vital
    contributors to our economy and the fabric of society. Second,
    their continued engagement and productive activities provide
    huge benefits across generations, and third, policymakers can
    and should remove barriers that make it harder for older
    Americans to stay engaged in ways that are meaningful to them
    and beneficial to society.
        Today about one in four Americans are ages 55 and older,
    and this share is steadily rising due to longer life
    expectancies, a declining fertility rate, and the aging of the
    baby boomers. Moreover, almost a quarter of the labor force is
    55 and older, and that has also been rising alongside
    improvements in health and also more flexible work
    opportunities, and this continued work is not just about
    necessity, but because people find purpose and meaning in it.
        While retirement is often considered a one-time event,
    we're seeing more older Americans choose a transitional
    retirement, often giving up their full-time job and pursuing
    part-time employment or independent contracting that provides
    more flexibility. A recent survey found that 26 percent of baby
    boomer professionals and 38 percent of silent generation of
    professionals engaged in independent work, and beyond paid
    employment, older Americans make enormous contributions in
    caregiving and volunteering.
        For example, 20 percent of grandparents care for their
    grandchildren at least once a week, and older Americans have
    the highest volunteer rates in America. Community mentors,
    church volunteers, and hospice companions. These activities
    foster strong families and strong communities, and moreover,
    continued engagement, whether paid or unpaid improves older
    Americans' happiness, their financial well-being, and also
    their health. That includes reducing the risk of chronic
    disease, cognitive decline, and depression.
        I've seen the benefits of aging with purpose firsthand. My
    grandfather, after retiring from a long career in the Marines,
    started a small accounting business in his home. My father
    spent decades practicing medicine and then partly retired and
    spent another decade doing independent medical exams. My mother
    left her full-time job but still serves as a law guardian for
    children and also offers her legal services pro bono, and it
    was because my grandmother cared for me and my older sister
    that my mother was able to attend law school.
        Despite all the benefits of older Americans staying
    engaged, certain public policies impose obstacles instead of
    opportunities. One example is social security's retirement
    earnings test. This great depression era policy was meant to
    push older Americans out of the workforce to free up jobs for
    younger workers. Today we need more workers, not fewer. This
    outdated test functions like an additional 50 percent tax on
    the social security benefits of workers who are under age 67.
    That leads to marginal tax rates as high as 84 percent on
    middle income older workers. Not surprisingly, this prevents
    many of them from working as much as they otherwise would.
        I estimate that eliminating the earnings test could bring
    up to one million older Americans into the workforce that would
    reduce poverty, increase incomes and output, improve health
    outcomes, and boost federal revenues all by simply allowing
    Americans to work as much as they would like without a penalty.
        Other barriers come through regulations that restrict work
    opportunities and they make it harder to start a business. For
    example, the Biden Administration's rule on independent
    contractors limits flexible job options. In California, a
    similar rule was found to reduce self-employment by 10.5
    percent. Two bills the 21st Century Worker Act and the Modern
    Worker Empowerment Act would free up flexible job opportunities
    and enable more Americans to be their own bosses.
        For older Americans who want to start a business, franchise
    ownership offers a proven business model with less risk and
    often lower startup costs, but a Biden Administration rule
    could upend that model. The Save Local Business Act would make
    it easier for Americans to start and grow small businesses, and
    a package of proposals recently introduced in the HELP
    Committee would help make it easier for independent workers to
    access traditional workplace benefits like retirement savings
    plans and health insurance.
        In conclusion, everyone benefits when older Americans have
    equal and ample opportunities to stay engaged in work and in
    society. By removing barriers to work, policymakers can free up
    opportunities for older Americans to contribute to stronger
    families, stronger communities, and a stronger economy. Thank
    you.
        Senator Gillibrand. Thank you all for your testimony. Ms.
    Carlson, you noted in your testimony that the Protecting Older
    Americans Act has bipartisan support. The bipartisan support of
    this bill reflects the coalition that you have been working on
    in building to give workers a choice in how they address their
    discrimination claims. Your organization Lift Our Voices
    includes both Democrats and Republicans as supporters of its
    goal.
        What reasons have your allies in the movement, whether
    Democrat or Republican or independent, given to justify
    opposing forced arbitration? Anecdotally, what have you seen in
    terms of a momentum for why we should pass this bill now?
        Ms. Carlson. Thank you so much, Senator. I think it's a
    variety of different things. I always describe this movement as
    a perfect storm. When I came forward, luckily because my
    lawyers found a way to make my case public, even with my forced
    arbitration clause, or we wouldn't even be having this
    discussion, you know, that happened and then a tidal wave of
    other women came forward, but really what was also essential
    was that the media started covering these stories.
        I can say this as a member of media that had it been
    pitched before 2016 as an idea, it probably would not have been
    covered. The media became interested in covering these stories.
    Social media actually helped because it allowed people to come
    forward either anonymously or with their face on their story in
    droves, and suddenly it became a worldwide issue, but the third
    thing that really helped this perfect storm happen where people
    became more educated on these issues, is that the American
    public got mad, because they thought we had come a lot further
    along in this process of protecting people at work, whether
    it's age discrimination, sexual harassment, or any other kind
    of discrimination.
        Why did they think that? They didn't hear about these
    stories, and why were they not hearing about these stories?
    They were all going to the secrecy of forced arbitration.
    There's been an explosion of the use of forced arbitration. In
    1991, two percent of all employees were under it. This year
    more than 80 percent will be under it. It's been an explosion.
    The American public got mad and they were like, wait a minute.
    I thought we were more equal and fair to all of our workers
    across this country.
        I think that the education behind this has been crucial,
    where more people are starting to understand what forced
    arbitration is, and actually when they find out what it is,
    they don't like it. Last year, Lift Our Voices commissioned to
    study with The Morning Consult, and more than 70 percent of all
    Americans, when they understand what forced arbitration is, and
    it takes away their choice and their seventh amendment right,
    they're against it, and what the study actually found was that
    the percentages are higher in southern states and higher
    amongst the most conservative of those surveyed. When they
    understand what it is, right?
        Senator Gillibrand. Because you're taking away someone's
    constitutional right to a jury trial, a jury of their peers to
    judge an issue and not be shuttered behind closed doors, and as
    you know well, Gretchen, a lot of these forced arbitration
    clauses are paired with non-disclosure agreements, and so,
    you're forced into silence regardless.
        Ms. LeaMond, in your testimony you cite an AARP report that
    found age discrimination is draining $850 billion from the U.S.
    economy every year. This is a shockingly high number. You also
    cited an Urban Institute study that found 50 percent of workers
    in their early 50's are experiencing involuntary job loss. Can
    you please go into more detail on the emotional and economic
    impacts that age discrimination has on the older workforce?
    What is the workforce losing due to age discrimination?
        Ms. LeaMond. Well, Senator, both you and the Chairman spoke
    a little bit about it in your opening remarks. This is
    devastating for individuals and also can be overall for the
    workforce if we lose this valuable resource that I think
    everybody on the panel has spoken about. When you talk about
    individuals and their families, it has tremendous, tremendous
    impact. Rachel mentioned of volunteers, and no organization is
    prouder of their volunteers than the AARP, many of whom are
    here today.
        When I met with them in the cafeteria at the office before
    walking over, one of them said to me, "Thank you for testifying
    to this. I have my own story." That's what I hear everywhere,
    and I'm sure you do as well. The emotional toll of losing your
    job. Much of it is your identity, so much of it is your social
    group, and so much of it obviously is your income, the ability
    to be able to have health insurance and protect your family.
    It's all woven and there are stories everywhere.
        What we hope and are encouraged by sessions like this is
    that we can look at all we can do to help the individual
    workers and also to help businesses in the country.
        Senator Gillibrand. Mr. Chairman, thank you.
        Chairman Scott. Let me defer to Senator Johnson.
        Senator Johnson. Thank you, Mr. Chairman. I'll start by
    saying this is probably a lose proposition from me even asking
    these questions, but I do think somebody has to bring in
    perspective of smaller employers. I mean, nobody wants to see
    people discriminated against. You know, we're talking about
    cases against Disney and against you know, Fox News, big
    corporations. They've got plenty of money to do this. I'm
    talking about the little guy.
        I think we should acknowledge that all people who claim
    discrimination are not equal. There are plenty of situations in
    smaller businesses where somebody claims discrimination
    falsely. You know, I certainly as opposed to--and again, I
    don't know all the laws on arbitration, forced arbitration
    versus voluntary arbitration. What I would not want to see is
    just the Wild Wild West.
        You know, Ms. Carlson, you said, you know, we didn't see an
    explosion in lawsuits, but I'll tell you, as a small employer,
    you fear lawsuits. The only people who win generally are the
    lawyers. Not the claimant, not the company. I guess I'd be
    looking more for a middle ground in terms of can we make
    arbitration work? Can we protect those who have--and again, how
    do you, how do you adjudicate whether it's a valid
    discrimination suit?
        Again, I'm just bringing the perspective of small employers
    who are just screwed by the legal system. I mean, it's awful,
    and again, there are plenty of people that take advantage of
    it. I mean, not all whistleblowers are created equal, not all
    people claiming discrimination.
        I'll start with you, Mr. Horton. Can you comment on that?
    Can you allay some of my concerns about some of these bills
    that are being proposed?
        Mr. Horton. Sure. Thank you, Senator. That's a very
    legitimate concern. One of the things I was most heartened at
    when I looked at how the Ending Forced Arbitration of Sexual
    Assault and Sexual Harassment Act has been playing out in the
    courts over the last three and a half years, is that there
    actually does not seem to have been a deluge of lawsuits and
    certainly not of frivolous lawsuits.
        Although it's not in the text of the statute, courts have
    imposed a common-sense limitation in requiring sexual
    harassment claimants' claim to be plausible, which is the
    general standard for pleading in federal court, and I know that
    sounds like a low standard, but in the case of many
    discrimination claims, it's actually quite a high standard
    where the court is inquiring whether or not these facts would
    actually meet the legal test and entitled the plaintiff to be--
    --
        Senator Johnson. Well, but it starts as a lawsuit, correct?
    I mean, is there any middle ground first that it goes to
    arbitration then get kicked up? I mean, what are the steps
    here?
        Mr. Horton. Right, so in the case of the Ending Forced
    Arbitration of Sexual Assault and Sexual Harassment Act, what
    usually happens is, a plaintiff files a complaint in court and
    then the employer moves to compel arbitration, and then there
    is some sort of court hearing in which either the court decides
    whether or not the Ending Forced Arbitration of Sexual Assault
    and Sexual Harassment Act--which I'm just going to call the
    EFAA--applies or not, and that's what happens.
        In these cases, courts are evaluating, are these frivolous
    claims or not? And there are about 200 accessible decisions
    interpreting the EFAA. By my knowledge, a very small number of
    claims have been dismissed as frivolous. Although I completely
    agree that small businesses are a legitimate concern, there
    really is absolutely no evidence that giving workers the right
    to sue in court is producing a flood of claims that are
    unmeritorious or should not be brought in the first place.
        Senator Johnson. Well, again, I'm 70 years old, so I'm one
    of these guys that'd be concerned about being discriminated
    against, but again, employers also have a legitimate concern
    about their own liability. An older worker who's maybe losing
    something in terms of being able to drive. How do you address
    that within this process?
        Mr. Horton. Right. Absolutely. It's a delicate and
    important question. I think what we really need is something
    that we don't have because of forced arbitration, which is a
    sense of how these cases actually play out on the merits. I
    tried to research age discrimination claims in court to prepare
    for this hearing, it was so hard to find any because they're
    all sent to arbitration. I can't tell you whether or not the
    age discrimination laws should be changed or modified. We just
    don't know.
        Senator Johnson. Okay. Fair enough. Thank you, Mr.
    Chairman.
        Senator Kim. Thank you. Thank you all for coming together
    here. Ms. Greszler, something you said that really stuck out to
    me. You were talking about though, labor workforce, and I
    believe you said something to the effect that there are stats
    here that participation rates in the labor workforce of
    individuals aged 55 to 64 increased by 12.8 percent.
    Participation rates for those ages 65 and older increased by
    8.3 percent.
        Is that increasing? Are we going to be seeing that trend
    growing even further as more time passes?
        Ms. Greszler. I think we will continue to see that
    increasing trend there, and a lot of that has to do with both
    the increased health as we've seen improvements in healthcare,
    and also the reduced physical demands of a lot of the jobs that
    we have, and also, deaging the population. Some of it is also
    policy related, but there have been some studies that have
    shown that there is additional work capacity beyond what we've
    already seen. We have seen these positive improvements.
        Senator Kim. Thank you, and Ms. LeaMond, you had something
    in your opening statement that said 54 percent of households
    have no savings, and you know, I think that was of all
    households, but more specifically when it comes to seniors, I
    saw something that AARP put out from a survey last year saying
    that 20 percent of adults aged 50 plus have no retirement
    savings, and more than half, I think it was 61 percent, said
    that they were worried that they don't have enough to be able
    to support them.
        I guess I just want to ask you if there's anything further
    you want to unpack on that, and also is that getting worse as
    well over time?
        Ms. LeaMond. There are additional challenges. People are
    trying to save in many situations, and we find that because of
    caregiving needs in particular, older workers are taking a
    little bit more time out of the workforce. We are concerned
    about that. One reason we're so focused on social security
    obviously is so people have that earned benefit when they
    retire.
        Senator Kim. Yes. I really wanted to just put those two
    stats together because I think it really tells a story of what,
    you know, this Committee and what we here in Congress need to
    focus in on, that we have a rising workforce in terms of an
    aging workforce, but we also have a larger growing level of the
    workforce that feels significant financial insecurity, and, you
    know, my mom and my dad, they retired, but you know, they are
    dependent upon social security for almost all of their income
    right now.
        It causes so much challenge in terms of the decisions that
    are being made, and so that's something that I just really hope
    we hone in on here in this Committee and in Congress to
    address, and Ms. LeaMond, you raised it just in your last
    answer here, about the effects that caregiving can play, you
    know, when it comes to, you know, these issues. I think we're
    seeing this a lot when it comes to combating age discrimination
    challenges when it comes to the growing number of workers who
    are also caregivers need to be able to take some of their time.
        Also recognizing the need for businesses to be able to
    offer benefits and flexibilities that can help with caregiving.
    I guess I wanted to just ask you if you can talk a little bit
    more about the intersection between caregiving and age
    discrimination.
        Ms. LeaMond. Sure. Well, we know there are, based on a
    report we released last week, 63 million family caregivers, and
    60 percent of those are in the workforce. We know this is an
    issue, not just for the caregiver, but for the employer, and we
    hear anecdotally from workers who are caregivers that they're a
    little worried about taking time out of work to say they're
    doing caregiving. They think that that might jeopardize their
    status in the company. We don't have any direct statistics on
    that.
        On the other hand, I mentioned our Employer Pledge Program.
    This is a voluntary program where employers say they are
    committed to leveling the playing field and work with us on
    things they can do, and one of the areas we hear about the most
    from employers right now is, how do I manage the increased
    number of workers I have and not just older workers, workers of
    all ages who are caregivers, part-time family caregivers? How
    do I create a flexible workforce where they can be productive
    at work and also continue to be the backbone of the long-term
    care system in this country?
        I think this is a growing issue, and one we'll continue to
    look at as we encourage more companies to hire older workers,
    and we encourage more older workers to stay in their jobs----
        Senator Kim. Great. Thank you.
        Ms. LeaMond [continuing]. both for their financial support
    and for their good health and for their family.
        Senator Kim. Mr. Chairman, if you don't mind, I'd like to
    ask one more question if that's okay.
        Ms. Carlson, we just heard Mr. Horton talking about sort of
    the economic implications of this, you know, in terms of
    businesses and how, at least from what we've seen so far, we
    haven't seen a deluge of problems that have facing businesses
    when it comes to some of the legislation that we passed
    regarding forced arbitration.
        You got a little bit to this in your opening remarks, but I
    just wanted to offer you another opportunity to delve in a
    little deeper. You know, some of my colleagues have raised
    concerns about whether or not some of these actions that were
    taken of forced arbitration to stopping it would have negative
    impacts on businesses. I, for one, am very compelled by some of
    the responses you've given. I was proud to be able to support
    the efforts to work alongside you to end forced arbitration for
    sexual harassment, sexual assault.
        I wanted to see if there's some further lessons that you've
    learned from that to help us as we're having these discussions
    here on the hill.
        Ms. Carlson. Thank you so much, Senator. I think everything
    we've discussed today with regard to the problems of Americans
    aging longer and be needing to be in the workforce financially,
    the underlying message in all of that is we can improve all of
    those things, everything that's been discussed, but if you keep
    the barrier of forced arbitration, you're still going to have
    the biggest problem, right.
        We talked a lot about removing the barriers today. The
    biggest barrier is the idea that arbitration is being forced on
    these workers. All we're asking for is the choice to make it
    voluntary, and if forced arbitration is so wonderful, why do we
    use the word forced? Right? We're not saying it's voluntary.
        The other thing I would just add is that it ain't fun to
    come forward, and so that's another reason why we haven't seen
    this deluge of cases, and to add to that, what Professor said,
    is that it's very hard to prove these cases at the state level
    or the federal level, and so just offering Americans choice is
    what we're asking for. They may still choose arbitration, but
    they will know that they have the ability to use their seventh
    amendment right.
        Senator Kim. Great. Thank you. Thank you, Ranking Member
    for pushing forward this legislation, and thank you for giving
    us the opportunity to speak here.
        Senator Gillibrand. Thank you. Mr. Horton, I liked that you
    said when you were trying to do your research about this
    hearing, it was very hard to find those cases because they are
    stuck behind the wall of forced arbitration. I think that is a
    huge impact to the legal community, to workers' rights, and
    just to our knowledge base as a committee. I want to ask the
    panel for their examples of what you've seen with age
    discrimination. Sometimes it can be very subtle. Ms. LeaMond
    has noticed, you know, I need a high energy candidate. It's
    just a, you know, cloaked word to say, I don't want somebody
    old. Or you know, in your industry, Ms. Carlson you don't see
    many you know, news anchors that are in their fifties and
    sixties. You see plenty in their twenties and thirties.
        There's a preference for youth in many industries and
    particularly among women, that there's always a joke in
    Hollywood that as soon as you hit 40, you are no longer
    castable because nobody wants to see you. I'd like to hear from
    each of you, what are the examples that you've heard or seen of
    age discrimination? What does it look like?
        When I travel in New York, and I talk to workers, I talk to
    a lot of men who are engineers who say, yes, as soon as they
    hit 50, they were there for a high cost worker. Whereas they
    would try to hire a 25-year-old with the same degree because
    they could pay them half the wage, even though they're
    providing so much value and benefit because of their years of
    experience.
        I really want to hear more about what age discrimination
    looks like and what are the impacts ultimately? Mr. Horton, you
    might have some thoughts on this, on the economy and also on
    the on the jurisprudence. Ms. LeaMond, why don't we start with
    you.
        Ms. LeaMond. Sure. Well, as I mentioned, what we hear the
    most is people are told they're overqualified. Yes, they just
    have too much experience for this job. Even if they are saying,
    "Look, I'm interested in this. I think I can do it. I want to
    be there for it." We also see in the job application process
    some companies that recruit only on college campuses, where the
    likelihood of finding older workers is not as great, obviously.
        Some descriptions talk about no more than five years of
    experience, questions sometimes about different social media
    sites or podcasts in an effort to see how able somebody might
    be with new media. We tend to see all of those kinds of subtle
    comments. Digital native is very common. We hear that all the
    time from folks.
        Then, in preparation for the hearing, I googled cartoons
    ageist discrimination, and it was interesting. There was one
    that said, you know, we really can't say anything too direct,
    but we can put it in really tiny print so an older job
    applicant can't read it, and I think, you know, you kind of get
    a sense of the subtlety jokes about, are you going to retire?
    Are you going to still be able to do this? All of them comprise
    a picture that is discrimination.
        Senator Gillibrand. Yes. Mr. Horton.
        Mr. Horton. Thank you, Senator. As I was preparing for the
    hearing and doing research, I was reminded of the fact that one
    of the most egregious facts in any forced arbitration case that
    I've come across for a long time involved the claim of age
    discrimination, and I would just like to highlight it, if
    that's okay because I think it really shows why forced
    arbitration is a barrier to justice.
        There was a woman who worked, she had a Ph.D. She was a
    doctor, Dr. Anderson, and I believe her employer was called
    Inter Pro. She signed an employment arbitration agreement that
    said that the arbitrator would decide whether or not the case
    should go to arbitration, and she suffered age discrimination
    on the job, and she sued, and so the issue facing the court was
    whether or not to allow the arbitrator to decide whether the
    arbitration should proceed.
        She proved that it would cost $8,000 just to decide the
    issue of whether to arbitrate the merits of her case, and so
    she introduced evidence that showed that she simply could not
    afford access, not to actually try her case, but to try the
    issue of does she have to arbitrate her case, and that really
    made an impression on me because it really highlighted to me
    the fact that there are people with valid age discrimination
    claims who are being blocked by forced arbitration from
    pursuing them.
        Senator Gillibrand. Ms. Carlson.
        Ms. Carlson. I would just dovetail off of the Professor's
    comments that there was a woman in the financial services
    industry in New York City who was telling me about her story.
    Arbitration is supposed to be quicker and cheaper, although the
    company can always outspend the actual individual. She had
    spent $500,000 of her own money and arbitration hadn't even
    started yet.
        Senator Gillibrand. Wow.
        Ms. Carlson. That is another barrier. It's not always true
    that it's cheaper and quicker. The other thing I would just say
    is that of course, age discrimination is rampant in the media
    industry. Men get, you know, salt and pepper hair, and they're
    assessed as being wiser. Women get one wrinkle and they're out,
    but the problem is we're not necessarily hearing about these
    cases, nor are the women getting justice because they're being
    forced into arbitration.
        I think that this once again would bring a fairer system to
    millions of Americans and specifically today about age
    discrimination. I think that one other important note to make
    is that in my unscientific study, of all the women that I've
    spoken to and other workers over the last nine and a half
    years, the vast majority when they're forced into arbitration,
    never work in their chosen profession ever again.
        We can spend all day long talking about the fact that
    people are not hiring older workers. They certainly are not
    hiring them if they've gone through a forced arbitration
    situation because they most likely signed an NDA and then they
    can't explain to their future employer what happened to them at
    their previous job. There's a myriad of problems here, but to
    me, forced arbitration is the evil.
        Senator Gillibrand. Ms. Greszler.
        Ms. Greszler. Thank you. I would just comment that I have
    been fortunate not to experience or to see my peers experience
    age discrimination, but rather the latter, and my employer
    currently has taken a stance to say we really value older
    workers in the workforce because of what they bring, the
    experience and the wisdom that they can share with the younger
    generation has been in increasingly valuable.
        I would love to see more employers actually understand that
    and see what that brings when you can help younger workers in
    sharing things like conscientiousness and just establishing
    good work habits and helping them to build their careers.
        Senator Gillibrand. Thank you. Mr. Chairman.
        Chairman Scott. Thank you. Ms. Greszler, can you go back to
    the comments you made on social security allowing people to,
    you know, not be a cap and still get it? Number one is how
    would that work? Number two, how would it infect the viability
    of social security? We are all worried about, you know, its
    viability in just a few years.
        Ms. Greszler. Yes. The retirement earnings test that I
    described is a misunderstood part of the program. It functions,
    people see it as a 50 percent additional tax on top of their
    federal taxes, their payroll taxes, their state and local
    taxes. As I mentioned, this is like an 84 percent tax on any
    dollar above about $23,000 per year that an older worker earns,
    and this affects people who are between the ages of 62 and 66.
        Actually, the majority of workers do claim benefits early
    in that window of years, and so multiple studies have shown
    that this significantly reduces the willingness to work when
    you have an 84 percent tax on that. People don't realize the
    benefits actually get added back in later on once they reach
    their normal retirement age, but it's perceived as a pure tax,
    and so, it simply reduces work options.
        Just by eliminating that and saying, we're not going to
    take away Social Security benefits, you can continue to claim
    early if you want to and to continue working, and your benefit
    will just stay the same. There won't be that adjustment later
    on, and this would actually improve social security's finances,
    because when people work longer, they're paying more Social
    Security taxes, they're paying all of the additional taxes,
    they're earning income that they get to keep. Across the board,
    this is just a common-sense good policy I see.
        Chairman Scott. Why was this set up this way in the first
    place?
        Ms. Greszler. When Social Security first started in the
    late 1930's depression era program, they wanted older workers
    to get out of the workforce so that they would free up the jobs
    for the younger workers. It wasn't a 50 percent tax, then it
    was 100 percent tax. You could not collect a social security
    check unless you stopped working entirely, and it's been
    modified over the years, but as it stands today, it's like this
    additional 50 percent tax.
        Chairman Scott. Has there ever been a CBO score if you
    changed it?
        Ms. Greszler. I don't know of one, but I estimated an
    additional $18 billion in total tax revenues and an extra eight
    billion in Social Security revenues per year if you were to
    eliminate this.
        Chairman Scott. Ms. Carlson, besides the legislative
    solution, what else do you think employers ought to be doing to
    be respectful of older workers?
        Ms. Carlson. Well, if they want to voluntarily take away
    the word forced from arbitration, then we don't have to pass
    the law, but as I said, there's been an explosion of forced
    arbitration where we now have more than 60 million Americans
    underneath it. In 1991, we had two percent. You know, I believe
    that passing the law is the best way to handle this because it
    simply gives the worker a choice, and just taking out the word
    forced would make all the difference in the world.
        Chairman Scott. Thank you. Mr. Horton, do you think that
    the Protecting Older Americans Act, if it was the law tomorrow,
    does it strike the right balance between the interest of the
    employer and the interest of the employee and making sure that
    everybody's respected?
        Mr. Horton. I do think so, Senator. One of the things that
    I really admire about both the EFAA and the Protecting Older
    Americans Act is the fact that it allows employees to choose.
    They get to choose whether they want to arbitrate, they get to
    choose whether they want to litigate. I think that takes away
    one of the most pernicious parts of forced arbitration, which
    is the fact that it is essentially unilaterally imposed by
    employers on employees.
        Chairman Scott. Right. Thank you.
        Senator Warren. Thank you. Older workers are the fastest
    growing share of the workforce, and one big reason for that is
    because it's gotten a whole lot harder for Americans to retire
    because high costs and low wages squeeze families. Here we are
    in the richest country in the world, where I think workers
    ought to be able to work for fair pay and fair conditions, and
    then retire with security.
        Many workers post-retirement are back in the workforce in
    part-time jobs, and one of the things they encounter there are
    what are called just-in-time scheduling practices. This is when
    employers give workers their schedules at the very last minute,
    sometimes as little as a day or two before their scheduled
    shift, and while that might be just-in-time working for an AI
    algorithm, looking at the latest foot traffic, for example, in
    a grocery store, it is great for the algorithm, but not so
    great for the workers.
        Do you go to the doctor's appointment, you know, or do you
    skip the shift and not get paid? Will you be able to pay your
    electric bill if your shift this week gets canceled? Older
    workers are more likely to be part-time where just-in-time
    scheduling practices are far more common. Ms. LeaMond, you're
    the Chief Advocacy and Engagement Officer at AARP. Why are last
    minute schedule changes particularly difficult for older
    workers?
        Ms. LeaMond. Well, Senator, I think last minute schedule
    changes are difficult for all workers. I will say, I think you
    all know AARP has offices in every state. I oversee a staff of
    700 multi-generational workers, and my experience has been on
    all issues related to flexibility. It is just as much a concern
    of younger workers as it is older workers.
        I would say older workers may be juggling a few more
    caregiving duties and medical appointments. Mothers and fathers
    in their 40's and 50's are the sandwich generation dealing with
    children and those responsibilities along with caregiving, and
    our younger staff, I find are the busiest because many of them
    are in school at night and juggling lots of other duties. I
    think flexibility is something that doesn't just affect older
    workers, but all workers.
        You've raised something important though, which is when
    we've talked a lot about workforce flexibility, it's been
    framed in terms of working at home or working in the office,
    and really what I find most of the discussion to be about is
    not so much that, but work hours. Can it be flexible? Maybe I
    can drop my kids off at school in the morning and then work a
    little later. Can I adjust my hours in some other ways? I think
    employers that are committed to multi-generational workforces
    are beginning to adapt and understand how important flexibility
    is. I think we all benefit from knowing our schedule in
    advance. I was joking with the team that that I think we all
    appreciated being invited last week to testify rather than last
    night, and those are the kinds of things I think we can all
    benefit from.
        Senator Warren. Can you just say a word about what happens
    to workers when last minute work schedule changes, conflict
    with their obligations outside work? I've kind of given my own
    summary, but you're the expert. You're running a staff of 700.
        Ms. LeaMond. Well, when schedules change one of two things
    happen. You will either have to arrange something in your
    personal life often with some cost, or you miss something at
    work, and that depending on your employer, can be a matter for
    discussion or a matter for serious confrontation, and I think
    it really depends, and it's incumbent on all of us, I think, to
    talk much more about what are the labor force needs. We are
    going to have to engage more older workers in jobs across this
    country, and what does that mean also for our multi-
    generational workforces?
        Senator Warren. It seems to me that we need some guidance
    around this. As you say, some employers are changing but many
    are not, and so, the question becomes what is the right way?
    What should be the workplace rules? I've got a bill called
    Schedules That Work, and it would give employees just a couple
    of rights. One is the right to request a schedule that works
    for them without getting fired for making the request. I know
    that seems like common sense, but for a lot of people, that's
    not happening for them in the workforce.
        The second thing is to say, if schedules are going to be
    changed at the last minute, then there needs to be some
    compensation for the worker. You can't hold people in effect,
    on call. That is, you are going to come in next Thursday, you
    agree you're coming in next Thursday, you will be there next
    Thursday, and then on Thursday morning you get a call that
    says, don't come in and don't get paid for the day. If you held
    your Thursday open, then there needs to be some compensation in
    return for that.
        I think your point is right, Ms. LeaMond, that it would be
    helpful for workers of all ages, but it is particularly helpful
    for workers who are part-time workers, because they face this
    so much more than full-time workers do, and particularly
    helpful for workers who have obligations outside the workforce.
        I'm going to continue to work on this. I'm going to
    encourage other members of the Aging Committee to take a look
    at it, just to try to get some guidelines in place that will be
    helpful for all of our workers but I think will have a special
    benefit for our older workers. Thank you, Mr. Chairman.
        Chairman Scott. Senator Warren, just as a business person,
    let me just tell you the issue that we're dealing with. I agree
    with you. I mean, we all want to know our schedules, right? I
    mean, but if you think about it from the standpoint of
    employer, here's what goes on. Let's say you take a restaurant.
    Everybody gets their reservations through OpenTable, and you
    find that day that your reservations are down 50 percent,
    right? You say, well, how many people should I have come in?
    You say, well, I don't need as many workers today.
        Is it good for the worker? No, right? If you tell the
    worker to come in, then the employer probably, you know, it
    costs them money, right? Can they keep that restaurant open if
    they did have something?
        I think in almost every industry, what my experience in the
    businesses I was in is, you know, everybody always joked, you
    know, this would be a great job except for the customers. The
    customer dictates all this, and how many people are going to
    show up that day and in so many businesses, not all businesses,
    it's more stable, but there's a lot of them that the revenue
    that you'll get that day is completely dependent on who's going
    to show up.
        Sometimes you, you have a good idea, and sometimes, you
    know, my first business was a donut shop, and I could tell you
    my revenues were 100 percent tied to the weather, but I think
    you got a legitimate point because it's frustrating to somebody
    if they think they're going to get paid and think they're going
    to have not, and they save their time, and then they'd lose
    that income.
        Senator Warren. You know, I would just say in response
    because I appreciate the point you make. The question is not
    the customers. I get it. Customers can come or not come, and
    that's going to change how many workers are needed at any given
    time. The question is, who bears the burden of that risk? And
    the idea that the employer says, "I want you to be available. I
    want you to block out your Thursday no matter what, and don't
    take a class that meets on Thursday, don't agree to take care
    of your grandchildren on Thursday. Pay the caregiver who's
    going to show up and watch your husband who can't be left
    alone." That the employee takes on all of that cost and risk,
    and the employer takes on none of it in many industries.
        I think that's the part we're trying to figure out is who
    is it that should be responsible for that, and I think
    employees need a little more help on their side and some rules
    that give some guidance around that.
        Senator Gillibrand. Thank you all for coming. This was an
    excellent hearing. I think we learned a lot about this issue. I
    really appreciate the time and expertise that you've offered to
    help inform the Senate panel. Thank you so much. Thank you, Mr.
    Chairman.
        Chairman Scott. If any Senators have additional questions
    for the witnesses or statements to be added, the hearing record
    will remain open until next Wednesday at 5:00 p.m. Thanks.
        [Whereupon, at 11:44 a.m., the hearing was adjourned.]

    =======================================================================

                                    APPENDIX

    =======================================================================

                          Prepared Witness Statements

    =======================================================================

                     U.S. Senate Special Committee on Aging

       "Protecting Older Americans: Leveling the Playing Field for Older
                                    Workers"

                               September 3, 2025

                          Prepared Witness Statements

                                 Nancy LeaMond

        Chair Scott, Ranking Member Gillibrand, and Members of the
    Committee:

        My name is Nancy LeaMond, and I serve as the Executive Vice
    President and Chief Advocacy and Engagement Officer for AARP. I
    am honored to testify on behalf of more than 100 million
    Americans age 50 and older. I have dedicated much of my career
    to ensuring every older American has the opportunity to age
    with dignity and respect. Yet today, far too many hardworking,
    capable, and committed older workers face a barrier that
    undermines both their livelihoods and their families' financial
    well-being: age discrimination.
        I want to begin by saying how much I appreciate Chairman
    Scott, Ranking Member Gillibrand, and the entire committee for
    working in a bipartisan way to put a spotlight on issues
    important to older adults. Hearings like this, as well as
    others you have done, including Senator Scott's recent field
    hearing on fighting fraud, and prior hearings focused on
    fighting isolation, exploitation, disaster preparation, and
    improving the wellness of older Americans, help move us toward
    solutions that will allow all of us to age with dignity.
    Solutions like Senators Gillibrand and Graham's Protecting
    Older Americans Act, which I discuss later in my testimony,
    will give older workers a choice in how they want their age
    discrimination claims resolved. My hope is that today's hearing
    will put us on a path towards ending pernicious age
    discrimination that is holding too many people back from
    fulfilling their dreams and achieving their financial security.
        This hearing is vitally important as the impact of age
    discrimination is not only felt at the personal level - it's
    economically damaging to our country. AARP has found that age
    discrimination drains $850 billion from the U.S. economy every
    year, a figure projected to reach nearly $4 trillion by 2050.
    At a time of labor shortages, sidelining skilled and eager
    workers is a loss we simply cannot afford.
        The effects are profound. An Urban Institute study found
    that about half of workers in their early 50s experience
    involuntary job loss that sharply reduces earnings or forces
    them into long-term unemployment - something older workers face
    at higher rates than younger peers. For example, in July 2025,
    the percentage of jobseekers ages 16 to 54 who were long-term
    unemployed was 23.1 percent, but it was 26.5 percent for
    jobseekers ages 55 and older.
        This comes at a time when many older Americans are working
    later into life than ever before- some by choice, often by
    necessity. According to the Federal Reserve's Survey of
    Consumer Finances, 54 percent of households have no retirement
    savings, and among those who do, the median savings for folks
    age 55 - 64 is $185,000. For those age 65 - 74, it is $200,000.
    That is well below what is needed for a secure retirement -
    even factoring in Social Security - and likely one reason that
    folks 75 and older are the fastest growing segment of the
    workforce.
        Whether for personal fulfilment, financial reasons, or a
    combination of both, older adults deserve a level playing field
    as they compete for, obtain, and retain jobs. Older workers
    are, and will continue to be, the key component to our economic
    success. Unfortunately, it's far too common that age
    discrimination proves to be a pervasive barrier in the
    workplace. That is why holding this hearing is vital.
        According to AARP research, 90 percent of workers age 50-
    plus believe that age discrimination is common in the workplace
    today, and 64 percent of older workers have seen or experienced
    age discrimination. These numbers are even higher for Black
    workers (74 percent) and women age 50-plus (67 percent). Age
    discrimination in hiring is also pervasive. Our research tells
    us that 40 percent of job seekers aged 45 and older have
    experienced age discrimination in their job search. In
    addition, 53 percent of workers aged 40 and older were asked by
    an employer to provide their birth date, graduation date(s), or
    other age-related information during the application or
    interview process.
        Sometimes the discrimination is not overt, but cloaked in
    seemingly harmless terms that send a clear signal about who
    employers are really looking for. For example, recruiters might
    use phrases such as "digital native" in their job ads,
    referring to the younger generation of people born into modern
    technological culture, particularly social media. Other
    phrases, such as "high energy level," are used as a euphemism
    for "young," playing off the biased and inaccurate assumption
    that older employees lack energy. An employer also might
    discard applications if the candidates do not have email
    accounts ending in ".edu," which are university accounts
    commonly used by students and recent college grads but are less
    common among older alumni.
        Older workers bring expertise, leadership, perspective, and
    resilience. They have critical skills employers need. Yet
    outdated stereotypes persist, leading to unfair treatment that
    undermines both workers and businesses. Addressing age
    discrimination strengthens not only the financial security of
    individuals but also the health of our communities and economy.

    Artificial Intelligence and Older Workers

        Emerging technologies add urgency to the challenges we
    face. Older workers are encountering artificial intelligence
    (AI) in the workplace with both interest and concern. Nearly
    half express a desire to gain AI-related skills, and many
    already use AI tools to improve productivity. According to an
    AARP survey, the top uses of AI include finding information,
    creating content, and analyzing data-functions that can enhance
    productivity and decision-making.
        But it also poses risks. Algorithms can replicate and even
    accelerate bias. Data points such as graduation dates or years
    of experience can serve as proxies for age, leading to older
    applicants being screened out automatically. Policymakers must
    ensure AI is used to expand opportunity, not entrench age
    discrimination, by supporting upskilling programs and enforcing
    protections against algorithmic bias.

    Bipartisan Legislative Solutions

        Given the vital role older workers can play in meeting the
    demands of our economy, paired with increasing longevity, it is
    vital that Congress pass policies to ensure every older
    American has the opportunity to obtain and retain employment,
    and this isn't just AARP's view. The vast majority of older
    workers support strengthening age discrimination laws.
    According to a recent AARP survey, 90 percent of workers age
    40-plus support efforts to strengthen the nation's age
    discrimination laws and 89 percent of workers age 40-plus agree
    that older Americans should be protected from age
    discrimination just like they are protected from discrimination
    on the basis of race, sex, national origin, or religion.
        Several bipartisan, commonsense bills would do just that.
    One bill in particular that I noted at the beginning of my
    testimony is the AARP endorsed Protecting Older Americans Act
    (POAA), led by Ranking Member Gillibrand and Senator Graham.
    This bill would prohibit forced arbitration in age
    discrimination claims, ensuring workers can seek justice in
    court with full legal protection. This bill is not only needed,
    but it is just common sense. If we want true change, we must
    not force workers into agreements where their options are
    limited, and their stories are never shared or heard. Instead,
    Congress should pass legislation like the POAA and make sure
    every older American who is sidelined due to age discrimination
    has an opportunity to rectify the situation and have the
    opportunity to work. We applaud Senator Gillibrand, Senator
    Graham and others for their support of these important
    initiatives.
        Other important pieces of legislation that have been
    proposed by leaders of both parties and should be passed by
    this Congress include:
        The Protecting Older Workers Against Discrimination Act
    (POWADA) Led by Senators Baldwin and Grassley, this bill would
    restore long-standing protections weakened by the Supreme
    Court's 2009 Gross decision, ensuring age discrimination is
    treated as seriously as other forms of workplace
    discrimination.

    The Protect Older Job Applicants Act (POJA)

         by Representatives Garcia and Salazar, this measure would
    extend ADEA protections to job applicants-closing a gap that
    leaves many vulnerable at the hiring stage.
        AARP also supports efforts to prohibit employers from
    seeking age-related information during hiring, unless required
    by law or directly tied to job performance.

    Addressing Age Discrimination in the States

        While AARP is pushing several pieces of federal
    legislation, states across the country are already taking
    action. Recent AARP-backed laws in Oregon, Colorado,
    Connecticut, and other states ban age-related inquiries in
    initial job applications, ensuring older workers are not
    discriminated against early in the hiring process. Other
    efforts include Massachusetts and the U.S. Virgin Islands
    securing funding for older worker retraining programs, and
    Nebraska declaring an Ageism Awareness Month. These efforts
    demonstrate bipartisan recognition that fairness in hiring is
    essential to a strong and thriving economy.

    Employers' Role

        Employers also have a critical role to play in combating
    age discrimination. AARP research highlights four key
    priorities:
          Employers can benefit from promoting flexibility in the
    workplace. Many older workers are not settling for stressful
    working conditions or fully in-person jobs. Promoting
    flexibility can help increase productivity as well as job
    satisfaction. According to the National Bureau of Economic
    Research, flexible work arrangements also provide more work
    accessibility for people with disabilities, many of whom are
    older, and have increased their labor force participation rate.
          Employers need to recognize the growing number of
    workers who are also caregivers and embrace ways to mitigate
    burnout. Offering caregiving benefits (e.g., paid leave for
    caregivers) can help workers maintain productivity and help
    employers stay competitive in the marketplace. In addition,
    offering flexible work options can help workers balance work
    and life responsibilities - including caring for themselves and
    their families - ultimately preventing family caregivers from
    leaving the workforce.
          Employers can benefit from placing greater emphasis on
    training to reskill and upskill. Training opportunities can
    help to meet older workers' desires to continue learning,
    helping to enhance their job satisfaction, and given the
    skilled labor shortages, job-related skills training can help
    employers close their skills gap and avoid recruitment costs to
    fill positions.

    AARP's Work with Employers

        AARP is working to provide tools and resources that meet
    the needs of the 50-plus wherever they are on their career
    journey, enabling them to embark on new careers, stay
    competitive in their current job, or find work that offers them
    flexibility and fulfillment. This includes resources to help
    older workers searching for a job by providing resume help,
    interview prep, career coaching through our job search toolkit,
    and AARP's Skills Builder for Work resource.
        On the employer side, we are trying to increase economic
    security through expanded access to quality employment
    opportunities. Both the AARP Employer Pledge Program and our
    job search collaboration with Indeed, offer practical resources
    with actionable steps employers can take to build and leverage
    age-inclusive workplaces. Other employers include AARP's Future
    of Skills online resource, Age-Inclusion training for HR
    professionals, our Intergenerational ERG Toolkit, and the Guide
    to Managing Mixed-Age Teams.

    Conclusion

        Older workers want a fair shot. They are updating resumes,
    applying for jobs, learning new technologies, and taking
    training to keep their skills sharp. They bring experience,
    commitment, and a growth mindset that employers need -
    especially in today's labor market.
        Every day we hear about job openings going unfilled and the
    impact it has on our economy. At the same time older Americans
    experience age discrimination at alarming rates. This is a
    problem that Congress can and should work to address. Congress
    has an opportunity to act. Passing bipartisan reforms to
    strengthen age discrimination protections, promoting inclusive
    use of AI, and supporting age-diverse workplaces will allow
    older Americans to continue to contribute to, and meet the
    demands of, our economy.
        Thank you for holding this important hearing and for the
    opportunity to testify on behalf of millions of older
    Americans, who play a critical role in helping our economy
    thrive and who ask only for fairness and respect in the
    workplace.

                     U.S. Senate Special Committee on Aging

       "Protecting Older Americans: Leveling the Playing Field for Older
                                    Workers"

                               September 3, 2025

                          Prepared Witness Statements

                                  David Horton

        Thank you Chairman Scott, Ranking Member Gillibrand, and
    Distinguished Members of the Committee for the opportunity to
    speak today.
        My name is David Horton. I hold the Fair Business Practices
    & Investor Advocacy Endowed Chair at UC Davis School of Law.
    One of my areas of focus is forced arbitration. For example, I
    have written papers that analyze outcomes of forced
    arbitrations based on data published by leading arbitration
    providers\1\ and the prevalence and content of forced
    arbitration clauses used by Fortune 500 companies.\2\ Today, we
    heard from Nancy about how age discrimination adversely impacts
    older workers. I will discuss how forced arbitration compounds
    those harms.
    ---------------------------------------------------------------------------
        \1\ See, e.g., David Horton, Do Arbitrators Follow the Law?
    Evidence From Clause Construction, 126 COLUM. L. REV. FORUM --
    (forthcoming 2026); Andrea Cann Chandrasekher & David Horton,
    Arbitration Nation: Data from Four Providers, 107 CALIF. L. REV. 1
    (2019); David Horton & Andrea Cann Chandrasekher, Employment
    Arbitration After the Revolution, 65 DEPAUL L. REV. 45 (2016); David
    Horton & Andrea Cann Chandrasekher, After the Revolution: An Empirical
    Study of Consumer Arbitration, 104 GEO. L.J. 57 (2015).
        \2\ See David Horton, Forced Arbitration in the Fortune 500, 109
    MINN. L. REV. 2165 (2025).
    ---------------------------------------------------------------------------
        At the outset, I should clarify that I believe that
    arbitration can be valuable in certain contexts. For example,
    two businesses in the same industry might prefer to submit a
    dispute to a specialist in their field rather than a generalist
    judge. Similarly, an arbitration provision in a collective
    bargaining agreement between a union and an employer can be a
    fair and efficient way to settle labor grievances.
        However, for two main reasons, I oppose the forced
    arbitration of cases involving pernicious and pervasive
    wrongdoing such as age discrimination. First, although
    arbitration derives its legitimacy from the parties' agreement
    to bypass the court system,\3\ forced arbitration in the
    employment setting is not consensual. Consider the various ways
    in which workers "agree" to arbitrate. Sometimes employers
    place arbitration provisions in their onboarding paperwork.
    Studies confirm what our intuition tells us: workers are
    bombarded with information, their eyes glaze over at the
    legalese, and very few realize that they are surrendering their
    right to access the courts.\4\
    ---------------------------------------------------------------------------
        \3\ See, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U.S.
    938, 943 (1995) ("arbitration is simply a matter of contract between
    the parties; it is a way to resolve those disputes-but only those
    disputes-that the parties have agreed to submit to arbitration").
        \4\ See, e.g., Zev J. Eigen, The Devil in the Details: The
    Interrelationship Among Citizenship, Rule of Law and Form-Adhesive
    Contracts, 41 CONN. L. REV. 381, 401 (2008) (finding that just 8% of
    sales associates at an electronics dealership understand that they had
    signed a forced arbitration clause when they were hired).
    ---------------------------------------------------------------------------
        But even workers who read and understand arbitration
    mandates have little meaningful choice. For starters, as one
    court put it: "the arbitration agreement stands between the
    employee and necessary employment, and few employees are in a
    position to refuse a job because of an arbitration
    requirement."\5\ Moreover, declining a position due to forced
    arbitration makes no sense because the odds are that other jobs
    will also be subject to the process. Indeed, forced arbitration
    provisions govern more than half of non-unionized private
    sector workers-a staggering 60,000,000 individuals\6\-and at
    least 53% of the employment contracts used by Fortune 500
    companies.\7\ It would be irrational to say no to an offer
    because of a condition of employment that is becoming
    increasingly unavoidable.
    ---------------------------------------------------------------------------
        \5\ Armendariz v. Found. Health Psychcare Servs., Inc., 6 P.3d 669,
    690 (Cal. 2000).
        \6\ See Alexander J.S. Colvin, The Growing Use of Mandatory
    Arbitration 1-2, ECON. POL'Y INST. (Sept. 27, 2017).
        \7\ See Horton, supra note 2, at 2208.
    ---------------------------------------------------------------------------
        Similarly, companies often impose arbitration on people who
    have already been on their payroll for years or even decades.
    Here is an example from a recent age discrimination case:
    Joanne Grace started as a nurse at ValleyCare Health System of
    Ohio in 1976 and worked at a facility that Steward Health Care
    System acquired in 2017.\8\ Steward claims that, in 2019, Grace
    completed an online training that culminated with her
    electronically agreeing to arbitrate (although Grace denies
    this).\9\ A year later, Steward hired a new director of nursing
    who, according to Grace, made inappropriate comments about the
    fact that Grace was in her late sixties, suggested that Grace
    retire, and eventually fired Grace and replaced her with
    someone in their twenties.\10\ In 2023, Grace sued.\11\ A
    federal judge in Ohio enforced the arbitration clause and
    Grace's age discrimination lawsuit, like countless others,
    disappeared into the arbitral forum.\12\ Yet calling Grace's
    acceptance of arbitration "consensual" stretches that word past
    the breaking point. Was she really going to leave her job of
    fifty years over fine print?
    ---------------------------------------------------------------------------
        \8\ See Grace v. Steward Health Care Sys., LLC, No. 4:23CV2178,
    2024 WL 3992257, at *1 (N.D. Ohio Aug. 29, 2024).
        \9\ See id. at *2.
        \10\ See id.
        \11\ See Complaint for Damages, Grace v. Steward Health Care Sys.,
    LLC, No. 4:23CV2178 (N.D. Ohio Nov. 7, 2023).
        \12\ See id. at *3-4.
    ---------------------------------------------------------------------------
        The second reason employees should not be compelled to
    arbitrate age discrimination claims is that arbitration is less
    hospitable to them than the judicial system. Admittedly, in
    1991, the U.S. Supreme Court held in Gilmer v. Interstate/
    Johnson Lane Corp. that workers can effectively prosecute
    alleged violations of the Age Discrimination in Employment Act
    (ADEA) in the arbitral forum.\13\ But arbitration (and what we
    know about the process) has evolved dramatically since then.
    For example, age discrimination often stems from company-wide
    policies which call for class or collective proceedings. When
    the Court decided Gilmer, plaintiffs could pursue aggregate
    relief in arbitration; in fact, the Justices observed that the
    arbitration provider in that case expressly "provide[d] for
    collective proceedings."\14\ Nevertheless, between 2010 and
    2019, the Court decided a rash of cases that held that the mere
    existence of an arbitration agreement functions as a waiver of
    an employee's ability to bring a class or collective
    action.\15\ Today, age discrimination victims can band together
    in the courts but not in arbitration.
    ---------------------------------------------------------------------------
        \13\ See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 30
    (1991).
        \14\ Id. at 32.
        \15\ See, e.g., Lamps Plus, Inc. v. Varela, 587 U.S. 176, 189
    (2019) (interpreting an arbitration clause that does not mention
    whether it allows class actions to bar such procedures).
    ---------------------------------------------------------------------------
        Forced employment arbitration also suffers from a "repeat
    player" problem. Unlike judges, arbitrators are paid and chosen
    by the parties. This gives them a monetary incentive to rule in
    favor of frequently arbitrating employers that may select or
    veto them in future cases. To be sure, Gilmer "`decline[d] to
    indulge the presumption that the parties and arbitral body
    conducting a proceeding will be unable or unwilling to retain
    competent, conscientious and impartial arbitrators.'"\16\ More
    recently, though, scholars have conducted econometric analyses
    of arbitration results and discovered "strong evidence of a
    repeat player effect."\17\ Some of these studies find that the
    companies that arbitrate the most-"extreme repeat players"-have
    a higher win probability than firms that only arbitrate
    once.\18\ Others determine that there is a "repeat pairing"
    phenomenon in which employers fare better when they arbitrate
    before the same arbitrator more than once.\19\ In 2015, The New
    York Times recounted the story of an arbitrator who "ruled in
    favor of an employee in an age discrimination suit, awarding
    him $1.7 million, and was never hired to hear another
    employment case."\20\
    ---------------------------------------------------------------------------
        \16\ Id. at 30 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-
    Plymouth, Inc., 473 U.S. 614, 634 (1985)).
        \17\ Alexander J. S. Colvin & Mark D. Gough, Individual Employment
    Rights Arbitration in the United States: Actors and Outcomes, 68 INDUS.
    & LAB. REL. REV. 1019, 1026-35 (2015) (reviewing 10,335 cases and 2,802
    awards in AAA employer-promulgated arbitrations between 2003 and 2013).
        \18\ See Chandrasekher & Horton, supra note 1, at 58 (analyzing
    roughly 16,000 forced employment arbitrations from the AAA, JAMS, and
    ADR Services, Inc. and concluding that "arbitration favors repeat-
    playing defendants").
        \19\ Colvin & Gough, supra note 17, at 1037; Alexander J.S. Colvin,
    An Empirical Study of Employment Arbitration: Case Outcomes and
    Processes, 8 J. EMPIRICAL LEGAL STUD. 1, 17-17 (2011) (evaluating the
    outcomes of 1,213 AAA forced employment arbitrations between January 1,
    2003 and December 31, 2007 and concluding that the chances of an
    employee win fell by 49% against repeat players and 40% in repeat
    pairings).
        \20\ Jessica Silver-Greenberg & Michael Corkery, In Arbitration, a
    "Privatization of the Justice System", N.Y. TIMES (Nov. 1, 2015),
    https://www.nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-
    privatization-of-the-justice-system.html.
    ---------------------------------------------------------------------------
        Concerns about arbitrator bias are especially pressing
    because of another sea change since Gilmer: the practice of
    arbitrators-not judges-evaluating whether an arbitration clause
    is fair enough to enforce. For decades, courts have used the
    contract doctrine of unconscionability to invalidate
    arbitration provisions that tilt the scales of justice by
    saddling plaintiffs with fees, eliminating certain remedies,
    selecting a distant forum, and shortening the statute of
    limitations.\21\ However, in 2010, the Court decided Rent-A-
    Ctr., W., Inc. v. Jackson, which gave its blessing to
    "delegation clauses," which assign questions about whether the
    arbitration should proceed to arbitrators.\22\ More than 80% of
    forced arbitration clauses in the employment contracts of
    Fortune 500 companies contain delegation clauses.\23\ If an
    arbitrator finds that the arbitration clause is unfair, they
    deprive themselves of the ability to preside over the merits of
    the case. As even some arbitrators have admitted, the
    "financial conflict of interest when arbitrators are vested
    with the jurisdiction to determine their own jurisdiction is a
    serious problem."\24\
    ---------------------------------------------------------------------------
        \21\ See, e.g., David Horton, Unconscionability Wars, 106 NW. U. L.
    REV. 387, 388 (2012).
        \22\ See Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 72 (2010).
        \23\ See Horton, supra note 2, at 2241.
        \24\ David Horton, Clause Construction: A Glimpse into Judicial and
    Arbitral Decision-Making, 68 DUKE L.J. 1323, 1374 (2019) Partial Final
    Clause Construction Award at 6 n.1, Schofield v. Delilah's Den. of
    Phila., Inc., Case No. 03-15-0003-4601 (Am. Arb. Ass'n Commercial &
    Class Arbitration Tribunal 2016) (Matthews, Arb.)).
    ---------------------------------------------------------------------------
        Finally, there is growing evidence that arbitration's
    inherent differences-its lack of class and collective actions,
    risk of biased decision-makers, limited discovery,\25\ and
    privacy and confidentiality\26\-deter plaintiffs from pursuing
    claims. Based on federal and state court filing levels and the
    percentage of employees covered by forced arbitration clauses,
    scholars "expect to see between 320,000 and 727,000 employment
    claims in arbitration" every year.\27\ Yet the American
    Arbitration Association, the leading arbitration provider,
    typically handles a paltry 2,000-3,000 cases stemming from
    forced employment arbitration annually.\28\ Of course, given
    the fact that age discrimination is rampant, many of these
    "missing" lawsuits involve violations of the ADEA or its state
    analogues.\29\
    ---------------------------------------------------------------------------
        \25\ See, e.g., Martinez v. Master Prot. Corp., 118 Cal. App. 4th
    107, 118, 12 Cal. Rptr. 3d 663, 672 (2004) ("discovery limitations are
    an integral part of the arbitration process").
        \26\ See, e.g., E. Gary Spitko, Arbitration Secrecy, 108 CORNELL L.
    REV. 1729, 1733 (2023).
        \27\ Cynthia Estlund, The Black Hole of Mandatory Arbitration, 96
    N.C.L. Rev. 679, 696 (2018).
        \28\ Id. at 691.
        \29\ See id. at 690; Chandrasekher & Horton, supra note 1, at 32.
    ---------------------------------------------------------------------------
        For these reasons, the phrase "alternative dispute
    resolution" is a misnomer when applied to the forced
    arbitration of allegations of age discrimination. Arbitration
    is not a true "alternative" because employees have no real
    choice. It is also not "alternative" because it is the norm,
    and it is not "dispute resolution" because it is designed not
    to resolve claims, but to suppress them.
        An elegant way to remedy these issues would be to pass the
    Protecting Older Americans Act.\30\ This bill allows "the
    person alleging conduct constituting an age discrimination
    dispute" the option of invalidating a forced arbitration clause
    or "joint action waiver . . . with respect to a case which is
    filed under Federal, Tribal, or State law and relates to the
    age discrimination dispute."\31\ The Protecting Older Americans
    Act also gives courts, not arbitrators, the exclusive power to
    decide whether its protections apply.\32\ These interventions
    would give workers with age discrimination claims what they
    have been sorely lacking: the freedom to pick a forum in which
    to seek relief.
    ---------------------------------------------------------------------------
        \30\ See S.1979 - Protecting Older Americans Act of 2023, https://
    www.congress.gov/bill/118th-congress/senate-bill/1979.
        \31\ Id.
        \32\ See id.
    ---------------------------------------------------------------------------
        Thank you again for the opportunity to testify.

                     U.S. Senate Special Committee on Aging

       "Protecting Older Americans: Leveling the Playing Field for Older
                                    Workers"

                               September 3, 2025

                          Prepared Witness Statements

                                Gretchen Carlson

        Chairman Scott, I don't think I've seen you since I was on
    Fox and Friends and we both tried to wrestle a baby alligator
    at the Villages in Florida. Great to see you. Ranking Member
    Gillibrand, and other distinguished members of the Committee,
    thank you for the opportunity to testify about my experience
    with forced arbitration and the work I've done to make American
    workplaces safer for millions.
        In 2016, I found the courage to sue the most powerful man
    in media, former Fox News Chair and CEO Roger Ailes, for sexual
    harassment. It was the toughest decision of my life, but after
    Fox fired me and tried to take away my career, I said, "If I
    don't do this, who will". My story made headlines around the
    world, but it could have easily been swept under the rug like
    countless others, simply because of a forced arbitration clause
    in my employment contract.
        No one starts a new job expecting something bad to happen
    to them. I know I didn't, and, in the face of a new
    opportunity, few people can walk away from a job because of the
    fine print. I don't care who you are. Most people have no idea
    what forced arbitration means. In my case, it showed up in my
    last contract with Fox, and while I asked questions, I was told
    not to worry because it was quote "becoming the way of the
    world". Eerily, I had no idea at the time how true that was.
    Today, more than 60 million American workers are subject to
    forced arbitration. Most have no idea that signing on the
    dotted line means they've accepted forced arbitration as their
    only remedy for justice.
        So, after my story I started walking the halls of Congress,
    and in 2022, thanks to members of this Committee and other
    champions in Congress from both sides of the aisle - the
    "Ending Forced Arbitration of Sexual Assault and Sexual
    Harassment Act" was signed into law -- one of the proudest
    moments of my life.
        That meant, Kirsten Tiger, a bartender at a prestigious
    country club facing harassment, was able to bring a lawsuit
    against her employer last year, and even though her employer
    tried to silence her by filing a motion to compel arbitration-
    the request was denied because of the new law.
        A federal judge in Texas also declined to grant Blaze
    Media's Motion to Dismiss, after one of its employees, Sydney
    Watson, alleged harassment. Watson's case can also continue in
    open court thanks to the new law.
        But there's still more work to do.
        Last year, a wife and mom died of an allergic reaction at a
    Disney restaurant after staff confirmed the food was safe for
    her. Disney tried to force her husband into arbitration because
    he'd previously signed up for a Disney+ account which included
    a forced arbitration clause. Only after enormous public outcry
    did Disney waive the arbitration clause and allow the case to
    proceed in court.
        How about our kids? Parents of a 14-year-old girl in
    California claim she was coerced into sharing graphic images
    with a man she interacted with on Roblox and Discord online.
    Both companies are trying to force the family into secret
    arbitration meaning other families will never know the dangers
    of a predator who had at least 20 other victims.
        Pertinent to why we're here today, Sam Casale was promoted
    seven times as a top sales representative throughout his 24-
    year career and despite a better sales record than his younger
    peers, he was suddenly terminated at age 52 for poor sales
    reasons that were false. Due to a forced arbitration clause, he
    had no ability to seek justice in the court system.
        Nurse Joanne Grace rose through the ranks to Director of
    Nursing Services at her company, but when new owners came in,
    older nurses, like herself, started being replaced with younger
    ones and Joanne says she was repeatedly harassed about
    retiring. Joanne says her complaints were dismissed and then
    she was fired and forced into arbitration.
        These personal stories are why I'm a champion of the latest
    bipartisan bill to protect Americans from forced arbitration -
    the Protecting Older Americans Act -introduced today by Ranking
    Member Gillibrand and Senator Graham and also cosponsored by
    the Chair and Ranking Member of the Senate Judiciary Committee,
    Senators Grassley and Durbin.
        Too many peoplee still not getting the freedom of
    choicewhen something bad happens at work.
        If the fine print of forced arbitration severely restricts
    or eliminates any path towards justice and accountability, then
    something must be terribly wrong with our system.[DH1] [GC2]
        For the naysayers out there, we haven't seen what groups
    like the Chamber claimed would happen. They said all hell would
    break loose if you let women file their assault and harassment
    claims in court. There'd be a slew of new cases and companies
    would go out of business, but none of that has happened.
    Instead, we're just cleaning up workplaces and getting rid of a
    few bad apples. I believe the same thing would be true with
    giving workers a choice with forced arbitration and age
    discrimination.
        A close friend said to me after my story at Fox News,
    "Something good is going to come of this Gretchen". At the time
    I couldn't see it, but I'm here today to tell you something
    great has come of this.
        I thank you for holding this hearing and I hope you'll
    agree this is a bill we can all get behind regardless of
    politics. Maybe we can start by agreeing that each of us here
    today are part of the age category we're talking about. Let's
    take this on together. Thank you.

                     U.S. Senate Special Committee on Aging

       "Protecting Older Americans: Leveling the Playing Field for Older
                                    Workers"

                               September 3, 2025

                          Prepared Witness Statements

                                Rachel Greszler

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    =======================================================================

                            Questions for the Record

    =======================================================================

                     U.S. Senate Special Committee on Aging

       "Protecting Older Americans: Leveling the Playing Field for Older
                                    Workers"

                               September 3, 2025

                            Questions for the Record

                                 Nancy LeaMond

                       Ranking Member Kirsten Gillibrand

        Question:

        In your testimony, you discuss how older workers are
    increasingly affected by emerging technologies, such as AI. On
    the one hand, older workers are interested in learning how to
    use AI. On the other hand, AI algorithms, if implemented
    poorly, can accelerate bias.
        Have any AI developers reached out to AARP about how to
    implement AI in a way that both helps older workers while also
    reducing harm? What are some key points that AARP would like AI
    developers to keep in mind as they work on new AI advances?

        Response:

        AARP has been engaged in high-level, broad conversations
    with AI developers about how to help people understand AI and
    utilize it safely, including at work. However, we have not
    delved into specific implementation details. Several members of
    the AgeTech Collaborative from AARP, which connects startups,
    investors, enterprises, and testbeds to accelerate technology
    solutions that improve people's lives as they age, have been
    building AI products to serve the aging population and
    caregivers supporting them.
        Additionally, we know that older workers are interested in
    learning new skills, including those related to AI. Employers
    have an opportunity to leverage the deep business expertise of
    older employees when integrating AI into existing workflows. We
    have heard from a large IT services firm that what their
    clients tend to need most is the strategic lens on where, when,
    and why to implement AI - rather than the how, which they can
    solve more easily.
        AARP's approach to AI is that policymakers and the private
    sector should harness the potential benefits of AI while
    actively protecting against its potential harms. Some key
    points that AARP would like AI developers to keep in mind as
    they work on new AI advances are:

              AI tools should be fair, reliable, and accurate,
    without disparate impacts on people protected by civil rights
    statutes.
              There should be transparency when an AI tool is
    used, including an explanation about the results.
              A fair and meaningful process should allow
    individuals to challenge adverse outcomes to ensure
    accountability.
              A qualified third party should be required to
    evaluate AI tools used to inform employment decisions for
    reliability, accuracy, and fairness before their deployment and
    routinely thereafter. The results of these evaluations should
    be made public without revealing personal or proprietary
    information.

                            Senator Elizabeth Warren

        Question:

        During his first administration, President Trump proposed
    numerous regulatory changes to the analysis the Social Security
    Administration uses to determine if an individual is eligible
    for disability benefits, including its Medical Vocational
    Guideline "Grids." All of the proposed changes would have made
    it harder for individuals to qualify for disability. Last week,
    President Trump appears to have taken steps to resume these
    efforts to implement these regulatory changes-which advocates
    have dubbed the "mega-reg"-again during his second term.
        On September 4, 2025, the Office of Management and Budget
    announced its plans to publish a rule titled "Improvements to
    the Disability Adjudication Process: Sequential Evaluation
    Process Abstract," which claims to propose "improvements to the
    disability adjudication process to ensure [the] disability
    program remains current and can be more efficiently
    administered." This announcement also states that the rule will
    "include[] proposing policy updates to occupational data
    sources and optimizing their use to serve our customers and
    preserve the trust funds."
        Is AARP concerned with potential regulatory changes to
    Social Security to the disability review process?

        Response:

        The Social Security Disability Insurance (SSDI) and
    Supplemental Security Income (SSI) programs administered by SSA
    provide much-needed lifelines for millions of older Americans
    and those with disabilities who struggle to make ends meet due
    to severe medical impairments and/or a lack of substantial
    resources. In December 2023, nearly 80 percent of SSDI disabled
    workers and 57 percent of SSI recipients were ages 50 and older
    - the ages AARP represents.
        Because these programs are so important to millions of
    older Americans, SSA should therefore take great care and err
    on the side of caution when making significant changes to them.
    We will carefully review any proposed regulation or other
    change when it is released.

        Question:

        If so, are there any specific regulatory changes that you
    are tracking, and which changes are you finding to be most
    concerning?

        Response:

        Given how important Social Security and SSI are to millions
    of older adults, we track all of SSA's regulatory proposals -
    including those listed in the Spring 2025 Unified Agenda\1\ -
    in order to evaluate their potential effects on older adults.
    We would be particularly concerned if any change would have the
    effect of unduly limiting benefit eligibility or customer
    service options available for older adults.
    ---------------------------------------------------------------------------
        \1\ Social Security Administration, "Spring 2025 Unified Agenda of
    Regulatory and Deregulatory Actions," September 2025. Available at
    https://www.reginfo.gov/public/do/eAgendaMain.

    ---------------------------------------------------------------------------
        Question:

        Have any of your members, or groups of older Americans that
    you serve, raised concern over the impacts of such regulatory
    changes?

        Response:

        At the moment, our members have contacted us predominantly
    about general customer service issues, and we have not seen any
    outreach about specific regulations.

        Question:

        If so, what changes are these groups most concerned with,
    and are there any changes that these groups would be interested
    in further exploring?

        Response:

        As noted above, we will carefully review any new regulatory
    changes from SSA, and we would be particularly concerned if any
    change would have the effect of limiting benefit eligibility or
    customer service options available for older adults.

        Question:

        Does AARP have any analysis or data on how changes to the
    "Grids" could impact its members?

        Response:

        A recent analysis by the Urban Institute analyzed how SSA's
    forthcoming proposed rule on "Improvements to the Disability
    Adjudication Process: Sequential Evaluation Process" could
    affect older workers, among others.\2\ The Urban paper found
    that changes to the grids, along with switching from the
    Dictionary of Occupational Titles to the Occupational
    Requirements Survey, could have adverse impacts on the number
    of disability beneficiaries - reducing eligibility for new SSDI
    applicants by up to 20 percent, and by up to 30 percent among
    older workers.
    ---------------------------------------------------------------------------
        \2\ Jack Smalligan, "Updating Social Security Disability Regulatory
    Changes Could Significantly Reduce Eligibility for Benefits,
    Particularly among Older Workers," Urban Institute, September 2025.
    https://www.urban.org/sites/default/files/2025-09/Updating-Social-
    Security-Disability.pdf.
    ---------------------------------------------------------------------------
        Question:

        Many advocates agree that the Grids are due for an update,
    but disagree with the Trump administration's historic approach
    to these updates-which amount to a benefit cut.
        How, if at all, would you recommend the "Grids" be updated
    to more accurately reflect the state of the economy and
    workforce?

        Response:

        We believe that any changes to the disability determination
    process should take into consideration how such changes would
    affect older workers with disabilities. The changes should also
    be based on clear justifications and sound, publicly available
    evidence.

        Question:

        I am also concerned that the Trump Administration will
    attempt to reduce or eliminate thousands of Supplemental
    Security Income (SSI) beneficiaries-which includes over 7.4
    million low-income Americans and dependents who rely on them-by
    limiting the definition of a "public assistance household."
    Currently, an SSI recipient's benefits can be reduced by up to
    one-third if they receive in-kind assistance-such as food or
    housing-from another member of their household-including family
    members or roommates. However, if other members of the
    household also receive public assistance-which historically
    included SSI, Temporary Assistance for Needy Families (TANF),
    and General Assistance (GA)-the household is deemed a "public
    assistance household," and the SSI recipient is exempt from
    these benefit reductions. This exemption was based on the idea
    that such households have "limited means and cannot provide
    significant financial support to SSI beneficiaries." In 2024,
    the Biden Administration expanded the number of households that
    qualify as "public assistance households" by: (1) adding SNAP
    to the list of qualifying programs; and (2) requiring only one
    other household member to receive public assistance. According
    to Center on Budget and Policy Priority estimates, reversing
    the Biden Administration policy would cause 100,000 recipients
    to lose SSI eligibility altogether and 275,000 more to face
    benefit reductions. According to disability advocates, this
    change would "hit low-income, multigenerational households the
    hardest."
        How would this change impact AARP members and the broader
    population of older Americans?

        Response:

        We do not have research on how this change would
    specifically impact AARP members or older Americans. However,
    as noted, one estimate found that "removing SNAP as a
    qualifying form of public assistance would likely result in
    benefit cuts for over 275,000 people and loss of eligibility
    for over 100,000 more."\3\ Given that 57 percent of SSI
    recipients are ages 50 or older, it is likely that many of
    these older adults would be among the recipients affected by
    such a change.
    ---------------------------------------------------------------------------
        \3\ Kathleen Romig and Devin O'Connor, "Trump Administration Poised
    to Cut SSI Benefits for Nearly 400,000 Low-Income Disabled and Older
    People," Center on Budget and Policy Priorities, August 2025. https://
    www.cbpp.org/research/social-security/trump-administration-poised-to-
    cut-ssi-benefits-for-nearly-400000-low.

    ---------------------------------------------------------------------------
        Questions:

        What populations of older Americans' will be most impacted
    by this proposed rule?

        Response:

        We do not have specific analysis of the populations most
    affected by this proposed rule. However, we note that the ISM
    rules can create financial hardship for caregivers. For
    example, SSI benefits may be reduced by one-third if a
    beneficiary lives in another person's household and does not
    pay for their shelter, because such assistance is considered
    in-kind support and maintenance.

        Question:

        How would the elimination of or reduction in an
    individual's SSI impact your members and the broader population
    of older Americans?

        Response:

        SSI payments are a critical safety net for older Americans
    who have limited income and resources. More than half - 57
    percent - of SSI recipients are ages 50 and older, the
    population that AARP represents, including 32 percent who are
    ages 65 and older.
        The maximum and average SSI payments ($967 and $718,
    respectively) are already below the poverty level, and any
    reduction or elimination of SSI payments could pose financial
    hardships for older adults who are affected.

        Question:

        What would this change mean for SSI beneficiaries who
    receive other forms of public assistance benefits, given that
    SSI recipients in some states are automatically enrolled into
    Medicaid?

        Response:

        Access to health care is critically important for all older
    adults, and especially those receiving SSI, many of whom have
    significant disabilities or health conditions. In most cases,
    SSI eligibility automatically confers Medicaid eligibility -
    meaning that any loss of SSI eligibility could mean a loss of
    health care coverage.

        Question:

        How do you anticipate this change to impact an individual's
    ability or willingness to provide support for an SSI recipient
    in their household?

        Response:

        SSI's ISM rules can create a financial burden for
    caregivers. For example, SSI benefits may be reduced by one-
    third if a beneficiary lives in another person's household and
    does not pay for their shelter, because such assistance is
    considered in-kind support and maintenance. Any changes that
    apply the ISM rules to more people could serve to
    disincentivize SSI recipients, including older adults, from
    sharing a household with others in order to either provide or
    receive caregiving.

        Question:

        Do you anticipate this change to discourage household
    members from providing care for an SSI beneficiary in their
    household?

        Response:

        As noted above, a change like this could serve to
    disincentivize older SSI recipients from sharing a household
    with others in order to either provide or receive care.

        Question:

        Another concern is whether the Trump Administration will
    abide by the typical formal rule proposal process-including the
    90-day window for public comment-or invoke the "good cause"
    exception under the Administrative Procedure Act (APA) to
    shorten this window, effectively bypassing public comment.
        How do organizations like AARP-as well as the populations
    the organization serves-utilize public comment periods?

        Response:

        AARP, which advocates for the more than 100 million
    Americans aged 50 and over, frequently submits public comments
    on proposed regulations that would affect older Americans. For
    instance, in recent years we have submitted comments on SSA
    regulatory proposals such as a proposed rule on Payroll
    Information Exchange (PIE) data exchange and a proposed rule to
    omit food from SSI's In-Kind Support and Maintenance (ISM)
    calculations. Public comment periods allow us to share the
    unique perspectives, needs, and concerns of older Americans, so
    that policymakers can consider these perspectives as they
    evaluate potential regulatory and other changes. We appreciate
    these opportunities to help inform policies and regulations
    that will better serve Americans aged 50 and older.

        Question:

        Why is preserving the entire 90-day public comment period
    critical for groups like AARP to express their reactions
    towards federal rules and large-scale regulatory changes?

        Response:

        While public comment periods are open, AARP and many other
    organizations have a valuable window of opportunity to directly
    inform regulatory policies. We rely on these comment periods in
    order to effectively advocate for the more than 100 million
    Americans aged 50 and over. These are valuable opportunities
    because they allow us to share the unique perspectives, needs,
    and concerns of older Americans as a direct part of the
    policymaking process. It takes time to assess proposals, listen
    to the concerns of our members, and translate them into
    detailed regulatory comments, so we often use the full comment
    windows that are available.

        Question:

        What would bypassing the typical public comment period for
    this mega-reg mean for groups like AARP and older Americans?

        Response:

        As noted in the prior two answers, public comment periods
    are critical to AARP's ability to help shape policies and
    regulations that will better serve Americans aged 50 and older.
    We appreciate the opportunity during comment periods to share
    the unique perspectives, needs, and concerns of older
    Americans, so that policymakers can consider these perspectives
    as they evaluate potential regulatory and other changes. Our
    ability to comment is particularly important for any potential
    changes that would primarily affect older workers, as the so-
    called "mega-reg" is expected to do.

        Question:

        Changes to Social Security regulations could also increase
    the greater administrative burden placed on Social Security
    recipients by requiring additional paperwork and
    authorizations. These leave recipients vulnerable to disrupted
    benefits and improper payments. Increased paperwork and
    administrative costs are also burdensome for Social Security
    Agency (SSA) staff, who are already facing a myriad of issues
    at the agency-including unprecedented staff layoffs. As SSA
    faces an uptick in claims, their staffing and customer service
    crises continue to worsen, which "threatens access to crucial
    benefits," especially for older Americans and people with
    disabilities.
        How is the staffing crisis at SSA-including staff layoffs,
    involuntary reassignments, and increased reliance on automation
    instead of live representatives-and the agency's lack of
    transparency around this crisis impacting older Americans?

        Response:

        Older Americans need to be able to get timely and accurate
    customer service from SSA, whether they are applying for
    benefits for the first time or updating their information in
    order to continue receiving benefits. AARP has consistently
    advocated for increased SSA funding to improve customer
    service. Without additional resources and staffing, SSA's
    customer service is likely to deteriorate further.

        Question:

        Are your members-and the broader population of older
    Americans-concerned that this crisis will disrupt their Social
    Security benefits?

        Response:

        Our members continue to be concerned about customer service
    at SSA, including long wait times by phone or to get an
    appointment, and not always receiving accurate information.
    AARP has worked for years to improve SSA's customer service.
    After a lifetime of hard work and paying into the program,
    older Americans deserve a level of customer service that
    provides them with timely, accurate and accessible information.

        Question:

        Have your members-and the broader population of older
    Americans-experienced delays in their benefits as a result of
    the agency's degrading customer service and staffing levels?

        Response:

        We hear frequently from AARP members who call us for help
    navigating SSA's systems. Largely, we hear about frustrations
    with phone times, delays in getting an appointment, and delays
    in disability decisions. Two examples from recent months
    illustrate the kinds of anecdotes we have heard for several
    years:
              In June, a caller said: "I do not know what is going
    on, I'm calling you [AARP] because I am eligible for a
    retirement benefit, and I got a letter from the Social
    Security, but I have been leaving messages, at least two
    already, and I have not got a call back."
              In August, a client at AARP's Legal Counsel for the
    Elderly (LCE)\4\ had a scheduled phone appointment with an SSA
    field office in Washington, D.C., to get his SSI restored. SSA
    never called during or after the appointment time.
    ---------------------------------------------------------------------------
        \4\ or more than 40 years, AARP's Legal Counsel for the Elderly
    (LCE) has championed the dignity and rights of Washington, D.C.,
    seniors by providing free legal and social work services to empower,
    defend and protect those in need. LCE's staff attorneys and volunteers
    assist more than 6,000 seniors each year, including many who seek help
    navigating the complex processes underlying the SSDI and SSI programs.
    ---------------------------------------------------------------------------
        SSA's customer service also affects older adults' ability
    to access Medicare, because SSA handles Medicare enrollments on
    behalf of CMS. For example, we have heard that it takes much
    longer to get an appointment with SSA to enroll in Medicare, in
    cases where the person cannot or prefers not to apply online.
        AARP has consistently advocated for increased SSA funding
    to improve customer service. Without additional resources and
    staffing, SSA's customer service is likely to deteriorate
    further.

        Question:

        Why is overreliance on automation instead of live customer
    service representatives especially harmful for older Americans
    and people with disabilities?

        Response:

        Being able to access services and benefits by phone, in a
    way that is not overly burdensome, is critically important for
    the millions of hard-working and retired Americans who have
    earned their Social Security.
        When used responsibly, technology can often be a useful
    tool for improving operational efficiency and innovation. At
    the same time, it is critical that older Americans have the
    ability to reach a human at SSA for assistance if they so
    choose.
        There are many reasons older Americans - including
    retirees, people with disabilities, and others - need to speak
    with a live SSA customer service agent. Often the questions
    that they need answers to are complicated enough and specific
    enough that they require live assistance. Callers also need to
    be able to trust that the information they receive from SSA is
    accurate and complete.

        Question:

        How do staff reassignments and potential further staff cuts
    impact your members'-and the broader population of older
    Americans'-benefits?

        Response:

        Adequate funding and staffing are critical to SSA's ability
    to provide timely and accurate customer service to older
    Americans. As a result, AARP has consistently advocated for
    increased SSA funding to improve customer service. Without
    additional resources and staffing, SSA's customer service is
    likely to deteriorate further.
        After a lifetime of hard work and paying into the program,
    older Americans deserve a level of customer service that
    provides them with prompt access to their earned benefits and
    with timely, accurate and accessible information. That is
    difficult to accomplish without adequate and appropriate
    staffing.

        Question:

        Why are increased administrative burdens-such as more
    paperwork for beneficiaries to complete in order to maintain
    their benefits-especially harmful for older Americans and
    people with disabilities?

        Response:

        It is critical that older adults who rely on SSDI and SSI
    be able to access and maintain their benefits without
    needlessly complex processes. Currently, SSDI and SSI
    beneficiaries face many processes - to apply for and maintain
    their benefits - that are complex, costly and difficult to
    navigate, especially for those with reduced capacities due to
    physical, intellectual or mental health disabilities.

        Question:

        How would the increased paperwork and administrative costs
    brought about by this potential mega-reg impact your members'-
    and the broader population of older Americans'-benefits,
    especially given "the continuous degradation" of staffing and
    customer service at SSA?

        Response:

        Because older adults with disabilities already face such
    complex processes to apply for and maintain benefits, we
    believe that SSA should take particular care that any proposed
    changes be evidence-based and carefully evaluated in order to
    avoid placing unnecessary burdens on vulnerable Americans. We
    will carefully review any proposed changes as they are
    released.

                            Senator Raphael Warnock

        Question:

        Georgia's aging workforce is facing rising inflation rates,
    leading these workers to make challenging decisions about
    whether to buy groceries or pay for medical needs.
        How can Congress help ensure our aging population is
    equipped with the necessary tools to succeed in their daily
    lives?

        Response:

        Congress can play a vital role by reauthorizing and
    modernizing the Older Americans Act (OAA). This legislation is
    crucial for expanding access to essential services such as
    nutrition programs, job assistance, transportation, caregiver
    support, and home-based care. By strengthening these
    provisions, Congress ensures that older adults receive the
    assistance they need to maintain their independence and quality
    of life.
        In addition, Congress can assist by expanding Long-Term
    Services and Supports (LTSS). Increasing access to home- and
    community-based services allows older adults to age in place
    rather than being forced into institutional care. To meet the
    growing demand, it is important to fund training programs that
    grow the caregiving workforce and improve the quality of care
    available to older adults. This investment helps address both
    current and future needs, creating a more robust support system
    for aging Americans.
        Another critical area is supporting family caregivers.
    Congress can pass legislation offering caregiver tax credits or
    ensuring paid leave to family members who provide care. These
    measures recognize the invaluable role that family caregivers
    play and help alleviate some of the financial and emotional
    burdens they face.
        Lastly, reauthorizing the Workforce Innovation and
    Opportunity Act (WIOA) is essential. This act supports
    workforce development and job training programs, which can
    include training opportunities for older workers. Reauthorizing
    WIOA will ensure older workers have access to the skills and
    resources needed to stay connected to the workforce.

        Question:

        A report from the U.S. Equal Employment Opportunity
    Commission's on the Age Discrimination in Employment Act of
    1967 describes how courts interpret age discrimination
    differently from other forms of discrimination.
        With rapid advancements in technology and artificial
    intelligence, are there gaps in laws like the Age
    Discrimination in Employment Act, and if so, how can Congress
    bolster these federal protections to protect aging workers?

        Response:

        There are notable gaps in the Age Discrimination in
    Employment Act (ADEA), and Congress has introduced several
    bipartisan bills aimed at addressing these gaps. For instance,
    AARP supports the Protecting Older Workers Against
    Discrimination Act, which seeks to restore the long-standing
    mixed-motives standard of proof that was removed from the ADEA
    by the Supreme Court's 2009 Gross decision. The Gross decision
    made it harder for older workers to establish unlawful
    discrimination under the ADEA. This change would simply make
    the ADEA's proof standard the same as other civil rights laws.
    Additionally, the Protect Older Job Applicants Act would extend
    ADEA protections to job applicants, again like other civil
    rights laws, closing a critical gap that currently leaves many
    vulnerable during the hiring process.
        Algorithms used in hiring can unintentionally replicate-and
    even amplify-bias. Data points like graduation dates or years
    of experience often act as proxies for age, causing older
    applicants to be screened out automatically when AI-driven
    tools are used in hiring and employment decisions. While the
    ADEA prohibits discrimination against workers based on age, it
    does not prevent employers from asking job applicants their
    age. Given the widespread use of online job applications and
    algorithmic screening, it is crucial to eliminate age-related
    questions from these applications.
        Recognizing this, seven states-Connecticut, Colorado,
    Delaware, Oregon, California, Pennsylvania, and Minnesota-have
    enacted laws or regulations banning employers from asking about
    age, birth date, or graduation dates on job applications,
    except where a minimum age is legally required for the job
    (such as serving alcohol). Efforts are underway to introduce
    similar legislation at the federal level, aiming to eradicate
    age discrimination during the hiring process altogether.
    =======================================================================

                           Statements for the Record

    =======================================================================

                     U.S. Senate Special Committee on Aging

       "Protecting Older Americans: Leveling the Playing Field for Older
                                    Workers"

                               September 3, 2025

                           Statements for the Record

                   American Association for Justice Statement

        Dear Chairman Scot and Ranking Member Gillibrand:

        The American Association for Justice (AAJ) submits these
    comments for the record to the Senate Special Committee on
    Aging on the hearing held on September 3rd, 2025, entitled
    "Protecting Older Americans: Leveling the Playing Field for
    Older Workers". AAJ is grateful to the Chairman and Ranking
    Member for holding this important hearing on the prevalence of
    age discrimination in the workforce and the impact that forced
    arbitration has on American's ability to hold bad actors
    accountable when such discrimination occurs.
        AAJ, the world's largest trial bar with members in the
    U.S., Canada, and abroad, was established to strengthen the
    civil justice system, promote injury prevention, and safeguard
    victims' rights. However, since the early 2000's, corporations,
    banks, and employers have been quietly stripping away
    Constitutional and statutory rights from Americans, including
    workers facing age discrimination, through the use of a
    phenomenon that allows bad actors to break state and federal
    laws and escape all public accountability: forced arbitration.
    In 2022 Congress passed on an overwhelmingly bipartisan basis,
    the Ending Forced Arbitration of Sexual Assault and Sexual
    Harassment Act, which gives survivors of sexual assault or
    harassment the choice to bring their case to court should they
    wish to. Paradoxically, if an older American is sexually
    assaulted or harassed in the workplace, they have the right to
    choose whether to take their case to arbitration or court, but
    if that same person is discriminated against in the workplace
    based on their age, or they suffer from negligent care or abuse
    in a nursing home, they do not have the same rights to decide
    how to pursue justice and accountability. Congress now has an
    opportunity to also protect older Americans from the perils of
    forced arbitration. AAJ submits these comments for the record
    to highlight the role that forced arbitration plays in harming
    older Americans, including by contributing to the prevalence of
    age discrimination.

    I. The Perils of Forced Arbitration

        Forced arbitration is a secretive and rigged process
    designed to insulate corporations from accountability for
    wrongdoing, by silencing Americans by taking away their right
    to hold corporations publicly accountable in a court of law.
    Forced arbitration lacks many of the procedural rights that
    would otherwise be available to an individual in court, such as
    the right to seek information through discovery that is
    necessary to prove a case, or the right to appeal a decision.
    Arbitrators are not bound by judicial precedent or any set of
    laws and in fact arbitrators do not even have to be attorneys.
        Forcing Americans into arbitration denies them the ability
    to access America's civil justice system when seeking to
    enforce the rights Congress granted them. The Seventh Amendment
    of the United States Constitution provides that "the right of
    trial by jury shall be preserved."\1\ Forced arbitration
    deprives every American of this Seventh Amendment right and
    forecloses any meaningful opportunity to hold bad actors
    accountable for any violation of the law.
    ---------------------------------------------------------------------------
        \1\ U.S. Const. amend. VII.
    ---------------------------------------------------------------------------
        The secretive nature of forced arbitration allows the
    perpetuation of injustice by protecting corporations from
    public scrutiny as arbitrators decide cases behind closed
    doors. The civil justice system has a long history of exposing
    injustices, bringing public awareness, and encouraging
    corporations and entities to follow the law and treat people
    fairly and safely. In contrast, the confidentiality of forced
    arbitration helps keep fraud, abuse, and serious civil rights
    violations secret. It is precisely because of these injustices
    that in 2022 Congress passed on an overwhelmingly bipartisan
    basis, the Ending Forced Arbitration of Sexual Assault and
    Sexual Harassment Act, which gives survivors of sexual assault
    or harassment the choice to bring their claims to the courts
    should they wish to. Congress now has an opportunity to also
    protect older Americans from the perils of forced arbitration.

    II. Forced Arbitration Reaches Older Americans in Every Aspect
    of their Lives

        Because of the pervasiveness of forced arbitration clauses
    within employment and consumer contracts, forced arbitration
    impacts older Americans in all areas of their life, by
    stripping them of their ability to access the courts whenever
    their rights are violated. Whether they become a victim of
    financial fraud, age discrimination, or suffer abuse or neglect
    in a nursing home, or otherwise have their rights violated,
    forced arbitration denies older Americans of their ability to
    obtain justice in a court of law.

          a. Forced Arbitration Allows Age Discrimination to
    Perpetuate

        Age discrimination in the workplace is not merely a mater
    of interpersonal bias; it is a systemic failure of corporate
    society. Older American workers are regularly excluded from
    professional opportunities, not because they aren't capable,
    but because of the implicit and explicit bias that exists in
    corporate America in favoring young workers. In fact, age
    discrimination impacts nearly two out of every three American
    workers ages 45 and older.\2\
    ---------------------------------------------------------------------------
        \2\ Kenneth Terrell, Age Discrimination Common in Workplace, Survey
    Says, AARP, Aug. 2, 2018, https://www.aarp.org/work/agediscrimination/
    common-at-work/.
    ---------------------------------------------------------------------------
        Employers often condition getting or keeping a job on an
    individual's "agreement" to be subject to forced arbitration.
    In fact, over 60 million Americans in the private sector are
    subject to a forced arbitration clause in their employment
    contracts\3\. The result is that American workers experiencing
    age discrimination, or other illegal conduct, are being
    funneled into a secretive, one-sided process where the worker
    holds little chance of achieving justice or bringing an end to
    widespread and systemic age discrimination. Forced arbitration
    denies American workers the right to decide for themselves
    whether and how to hold accountable those who illegally
    discriminate against older Americans. Take, for example, the
    following examples of Americans who experienced age
    discrimination:
    ---------------------------------------------------------------------------
        \3\ Colvin, Alexander J. S. The Growing Use of Mandatory
    Arbitration: Access to the Courts Is Now Barred for More than 60
    Million American Workers. Economic Policy Institute, 6 Apr. 2018,
    htps://www.epi.org/publica.on/the-growing-use-of-mandatory-arbitra.on-
    access-to-the-courts-is-now-barred-for-more-than-60-million-american-
    workers/
    ---------------------------------------------------------------------------
        Joanne Grace, a nurse who testified before the Senate
    Committee on the Judiciary in 2024, worked for ValleyCare
    Health System of Ohio before it was acquired by a private
    equity firm and became the Steward Health Care System. Over the
    course of her nursing career, Joanne rose through the ranks
    from floor nurse to Director of Nursing Services. In 2017,
    after her hospital was acquired by Steward Health System, she
    was met with a hostile work environment. In August of 2020,
    Joanne's newly hired supervisor entered the picture and began
    culling older nurses and replacing them with substantially
    younger ones. Afterwards she was constantly harassed weekly
    about her retirement plans. This peaked in December 2021, when
    Joanne's supervisor insinuated that 2022 would be "a great year
    to retire." When Joanne flagged these age-based comments, her
    complaints were dismissed, and when she needed to take time off
    due to contracting covid, her employer began searching for
    Joanne's replacement while she was out on FMLA leave. She was
    terminated approximately five days after returning from her
    sick leave. Her supervisor continued to push Joanne's case into
    arbitration despite no evidence of a signed arbitration clause,
    leaving Joanne having to spend significant time and resources
    fighting forced arbitration, just for an opportunity to hold
    Steward and her supervisor accountable for illegal age
    discrimination.\4\
    ---------------------------------------------------------------------------
        \4\ Complaint, Grace v. Steward Health Care System, LCC et al.,
    (N.D. Ohio Nov. 7, 2023).
    ---------------------------------------------------------------------------
        Sam Casale was a top sales representative throughout his
    24-year career, getting promoted seven times, winning multiple
    sales awards, and managing a $60 million+ portfolio. He
    consistently exceeded all performance benchmarks and became the
    only non-executive employee to receive a $100,000 stock award
    for outstanding performance. Despite an excellent track record
    and better sales than similarly situated younger peers, Sam was
    suddenly terminated at age 52 for false pretextual reasons of
    poor sales compared to his peers. Had he been able to stay
    until age 55, Sam would have been considered a "Legacy Nalco"
    employee, entitling him to significantly more retirement
    benefits. Nalco seems to have a history of illegally
    eliminating workers aged 50 and older through "Project Blue
    Wave." This company initiative targets older employees for
    termination, as they have higher salaries and long-term
    incentives starting at age 55. Due to a forced arbitration
    clause, which he does not even remember agreeing to, Sam has no
    ability to seek justice or legal accountability through the
    court system.\5\
    ---------------------------------------------------------------------------
        \5\ Casale v. Ecolab Inc., No. 2:21-CV-00126-NT, 2022 WL 1910126
    (D. Me. June 3, 2022).
    ---------------------------------------------------------------------------
        These stories contrast with cases where workers were able
    to seek justice through the courts. For example, in March 2024,
    a federal judge approved a $18 million class action settlement
    that resolved an age discrimination case against HP Inc.
    (formerly Hewlet-Packard Company) where older workers - those
    aged 40 and older - were allegedly systematically discriminated
    against as part of a workforce reduction plan, with the intent
    of firing the older employees and filling those vacancies with
    younger employees. According to the complaint, the company shed
    thousands of older workers, while aggressively recruiting and
    hiring younger employees to replace them, implementing a
    company-wide policy that required 75% of new hires to be recent
    college graduates or `early career' employees. This settlement,
    where each employee received approximately $50,000 due to the
    alleged discriminatory conduct, shows how access to our courts
    can provide meaningful accountability.\6\
    ---------------------------------------------------------------------------
        \6\ Notice of Age-Discrimination Collective Action Against HP Inc.
    & Hewlett Packard Enterprise Company. Andrus Anderson LLP, 3 Nov 2021,
    htps://andrusanderson.com/judge-approves-18-million-setlement-in-hp-
    age-discrimination-case/
    ---------------------------------------------------------------------------
        Forced arbitration hides the pattern, practices and true
    extent of age discrimination in the workplace from the public.
    Congress passed laws to protect Americans from age
    discrimination, and yet, forced arbitration makes it almost
    impossible to enforce these laws. As American workers continue
    to age, we cannot allow a community of experienced workers to
    be marginalized, discriminated against and then silenced when
    they attempt to vindicate their rights but are instead forced
    into arbitration.

          b. Nursing Home Residents Suffer Immensely from Forced
    Arbitration

        Forced arbitration clauses are widely used by the nursing
    home industry as a form of corporate immunity for injuries and
    deaths related to negligent care of older Americans. Nursing
    home residents and their families unknowingly sign away their
    Seventh Amendment rights when forced arbitration clauses are
    buried inside the facilities' admission papers. Because forced
    arbitration clauses are generally offered on a "take it or
    leave it basis", individuals and families often feel they have
    no choice but to sign the clause and often have little actual
    choice of nursing facilities due to their geographic location,
    specific needs, or the necessity of immediate placement when
    facing imminent hospital discharge. The sheer prevalence of
    forced arbitration clauses in nursing home contracts means
    American families have essentially no choice in giving up their
    right to seek justice when their loved one is hurt or worse,
    killed.
        Take for example, the 2016 case of Bonnie Walker, who was a
    resident in an assisted living facility in Charleston, South
    Carolina. Bonnie had a history of wandering and sleepwalking
    and as a result, required constant monitoring and supervision.
    Yet one evening around 12:15 am, Bonnie managed to wander off
    the Brookdale facility, with no staff realizing she was even
    missing until 7:15 am the following morning. The facility
    informed her granddaughter about Bonnie's disappearance, and in
    fact it was Bonnie's granddaughter who eventually discovered
    her grandmother's remains floating in the pond behind the
    facility - remains, which had been dismembered by an alligator.
    Instead of immediately being able to hold Brookdale accountable
    in court for their negligence in caring for Bonnie, Bonnie's
    family spent the next three years, from 2017 to 2020, fighting
    the facility's attempts to force them into arbitration.

    III. The Solution: The Protecting Older Americans Act (S. 2703,
    H.R. 5115)

        Because of a spate of recent Supreme Court decisions6
    interpreting a 1924 law, the Federal Arbitration Act, only
    Congress can end the practice of forcing individuals who have
    experienced age discrimination into forced arbitration, and it
    can do so for older American workers by enacting the Protecting
    Older Americans Act of 2025 (S. 2703, H.R. 5115).
        The bipartisan Protecting Older Americans Act, introduced
    by Senators Gillibrand (D-NY), Grassley (R-IA), Graham (R-SC),
    Durbin (D-IL) and Representative Lawler (R-NY-17), would simply
    make arbitration voluntary for individuals who have experienced
    age discrimination. The bill does not prohibit arbitration;
    rather, it allows individuals who have experienced age
    discrimination the option of filing a case in court. Age
    discrimination disputes would no longer be forced into the
    rigged, secretive process of forced arbitration, which permits
    systemic discrimination and hostile work environments to
    continue in perpetuity. The bill would allow American workers
    facing age discrimination to hold these wrongdoers publicly
    accountable and help end the culture of age discrimination. The
    Protecting Older Americans Act, and the transparency it creates
    will serve as a deterrent to corporations and executives from
    engaging in discriminatory practices against older Americans.

        IV. Conclusion

        Congress has historically been a champion of protecting the
    rights of older Americans and has already taken action to end
    the practice against forced arbitration for cases of sexual
    assault and sexual harassment and now has the opportunity to
    the same for cases of age discrimination. Passing the
    Protecting Older Americans Act would allow age discrimination
    victims to be heard and access our civil justice system to
    enforce the legal protections against age discrimination that
    Congress passed to protect older Americans. AAJ supports
    legislative efforts that will end the use of forced arbitration
    against not only older Americans but all workers, consumers and
    veterans who have had their rights violated. AAJ stands ready
    to work with Congress to protect the rights of all Americans
    and will continue to advocate for fairer and more transparent
    workplaces across the country.

                     U.S. Senate Special Committee on Aging

       "Protecting Older Americans: Leveling the Playing Field for Older
                                    Workers"

                               September 3, 2025

                           Statements for the Record

                     Defense Credit Union Council Statement

        Dear Chairman Scott and Ranking Member Gillibrand:

        On behalf of America's defense and veteran credit unions
    and our nearly 40 million members, I am writing to provide our
    views and recommendations for the Special Committee on Aging's
    hearing titled "Protecting Older Americans: Leveling the
    Playing Field for Older Workers." The Defense Credit Union
    Council (DCUC) is dedicated to ensuring that our nation's
    seniors - particularly military veterans, retirees, and their
    families - enjoy financial security, fair opportunities in the
    workplace, and protection from exploitation. As older Americans
    become a fast-growing segment of our population - with seniors
    expected to outnumber children by 2035 - it is more critical
    than ever to empower and safeguard these citizens. Notably, a
    rising share of older adults are remaining in or re-entering
    the workforce (about 19% of Americans over 65 are employed
    today, nearly double the rate in the late 1980s). We commend
    the Committee for focusing on "leveling the playing field" for
    these older workers. They face unique challenges - from age
    discrimination and caregiving responsibilities to the ever-
    present threat of financial scams - and they merit our
    concerted support. Defense credit unions see these challenges
    firsthand in the communities we serve, and we have developed a
    range of programs to help older members and their families
    thrive. We appreciate the opportunity to share our perspective
    on how credit unions are "serving those who served" and all
    older Americans, and to offer policy ideas to further
    strengthen the financial well-being of seniors.

    Financial Education and Fraud Prevention for Seniors

        A cornerstone of credit unions' support for older Americans
    is financial education and fraud prevention. Credit unions
    across the country have instituted robust financial literacy
    programs tailored to seniors and their families, helping inform
    them about modern fraud tactics and how to spot scams. DCUC's
    member credit unions routinely host workshops, provide one-on-
    one counseling, and distribute educational materials covering
    topics like retirement planning, budgeting on fixed incomes,
    and fraud awareness. By continuously developing and
    disseminating up-to-date resources, we ensure older members
    (and their caregivers) stay informed about the latest scam
    schemes - from bogus investment "opportunities" to phishing
    attempts - and know how to protect themselves.
        This focus on education is part of the very DNA of credit
    unions. "Consumer protection and financial education are key
    parts of NCUA's mission and part of the credit union model," as
    the NCUA (our federal regulator) has emphasized. We take that
    mission to heart, especially for our senior members who may be
    more vulnerable to fraud. Unfortunately, the threat is growing:
    one in two adults over 50 has been targeted by financial
    exploitation, and elder financial abuse is estimated to cost
    older Americans over $28 billion each year. These crimes can
    devastate seniors' life savings and undermine their retirement
    security. That is why defense credit unions are proactive in
    fraud prevention - from helping members set account alerts and
    monitor transactions, to publishing scam alerts on our websites
    and in branch lobbies. Many credit unions have trained their
    frontline staff to recognize "red flags" of elder financial
    abuse, such as unusual large withdrawals or a senior member
    appearing distressed or coerced. We have embraced training
    programs (for example, AARP's BankSafe initiative) to ensure
    our employees can detect and stop scams before money is lost,
    because over 90% of older adults want their financial
    institutions to be vigilant in protecting them. Moreover,
    credit unions maintain strong fraud reporting systems and work
    closely with law enforcement and Adult Protective Services when
    we suspect a member is being victimized. We believe that
    educating seniors and stopping fraud go hand-in-hand: informed
    members plus alert, well-trained credit union staff make a
    powerful defense against scammers. DCUC member credit unions
    are proud to provide that defense every day, "empowering [older
    members] to monitor their accounts and make informed financial
    decisions to protect themselves from fraud".
        In addition to education and internal safeguards, DCUC
    actively advocates for stronger public policies to combat fraud
    targeting older Americans. We have supported legislation at
    both the state and federal level to toughen penalties for those
    who prey on seniors and to equip regulators with better tools
    to fight fraud. For example, America's credit unions have urged
    Congress to pass the Stop Senior Scams Act and similar
    measures, and to support bipartisan proposals like the TRAPS
    Act. The TRAPS Act would establish a federal task force to
    examine payment scams and include a credit union representative
    - a common-sense step that we believe will improve coordination
    in stopping scams that often target the elderly. We likewise
    caution against any policies that might shift undue fraud
    liability onto credit unions (who are victims of fraud schemes
    themselves) because doing so could drain resources from member
    services and limit our ability to collaborate on innovative
    fraud solutions. Instead, we encourage a focus on going after
    the perpetrators of fraud and bolstering prevention. We are
    encouraged that the Committee's work shines a spotlight on
    protecting older Americans, and we stand ready to work with you
    on measures to thwart scams, punish bad actors, and keep our
    seniors safe from financial harm. Every senior deserves to
    enjoy their golden years without fear that a lifetime of
    savings could be stolen by a con artist. Credit unions are
    committed to making that a reality through both education and
    advocacy.

        Tailored Financial Services and Protections for Older
    Members

        Beyond education, defense credit unions provide a wide
    range of tailored financial services to meet the needs of older
    members and level the playing field for them financially.
    Credit unions are unique, member-owned institutions with a
    community focus - "people helping people" is our guiding
    philosophy - which means we design products not for profit, but
    for the real-life needs of our members. For seniors (including
    many military retirees and veterans in our field of
    membership), this translates into low-cost, age-friendly
    financial products and personalized support. For example, many
    DCUC-affiliated credit unions offer fee-free or discounted
    checking accounts for seniors, often with no minimum balance
    requirements, recognizing that older members on fixed incomes
    shouldn't have to worry about bank fees eroding their funds. In
    fact, defense credit unions helped launch the Veterans
        Benefits Banking Program (VBBP) - a partnership with the VA
    - to provide veterans (especially unbanked or underbanked ones)
    with free, reliable accounts for receiving their VA benefits
    via direct deposit. This initiative ensures that older veterans
    can safely access their earned benefits without paying
    exorbitant check-cashing fees or falling prey to predatory
    lenders. Participating credit unions in VBBP commit to offering
    no-cost checking accounts to any veteran receiving VA payments,
    as well as financial counseling to help those who may not
    initially qualify for an account. We are proud that this
    program not only connects veterans to mainstream financial
    services, but also improves their financial stability by
    reducing fees and encouraging saving. It is one example of how
    credit unions tailor solutions for the military senior
    community, but the same spirit guides our service to all older
    Americans.
        Credit unions also provide affordable credit options that
    can be a lifeline for older adults. Where many for-profit
    lenders might see an older borrower as "high risk" or not
    lucrative, credit unions see a member of our community in need.
    We offer products like small-dollar emergency loans with low
    interest, so that a senior facing an unexpected medical bill or
    home repair can avoid high-cost payday loans or credit card
    debt. We offer auto loans and home equity loans with flexible
    terms that consider an older borrower's circumstances.
    Importantly, credit unions often will work one-on-one with
    senior members to find solutions if they encounter financial
    difficulties - for instance, creating modified payment plans or
    offering skip-a-payment options during hardship. This
    personalized, mission-driven approach helps older members
    maintain good credit and financial dignity.
        We also recognize that as people age, their accessibility
    needs evolve. Credit unions are making banking more accessible
    for seniors through measures big and small: branch layouts
    designed for ease of mobility, readily available staff
    assistance (instead of forcing everyone into self-service
    digital channels), and technologies like large-font, high-
    contrast ATMs and websites for those with visual impairments.
    Many defense credit unions have senior call hours or dedicated
    member service representatives who specialize in assisting
    older members patiently with online banking or account
    questions. We know that not all seniors are tech-savvy, so
    while we embrace digital innovation, we also preserve the
    personal touch - ensuring that an older member can always reach
    a helpful human being who knows them by name.
        This dual approach of high-tech and high-touch banking is
    something credit unions excel at, and it's essential for
    building trust with older Americans. A recent AARP survey
    confirmed that age-friendly banking principles are valued by
    consumers - including preventing exploitation, helping those
    with cognitive impairments, empowering caregivers, and making
    the banking experience easier to access. Defense credit unions
    strive to embody these principles. For example, if an elderly
    member is coping with dementia or memory issues, our credit
    unions can offer solutions like placing account alerts,
    requiring a trusted caregiver's co-signature for large
    transactions, or helping set up a legal power of attorney on
    the account so that a family member can manage their finances
    responsibly. We also engage directly with financial caregivers
    - often the adult children or spouses of our senior members -
    to ensure they have the information and support needed to
    manage their loved one's finances. In short, we view the
    member's whole family as part of our community. By empowering
    caregivers and being attentive to signs of cognitive decline,
    credit unions add a crucial layer of protection for seniors,
    beyond what any one regulation or product alone can achieve.
        Another key aspect of leveling the field for older workers
    and retirees is shielding them from predatory practices. DCUC
    and its member credit unions have long focused on fighting
    predatory lending and financial predators that target military
    and senior communities. We actively educate our members about
    the risks of payday lenders, high-fee investment schemes, and
    dubious "pension advance" companies that often zero in on older
    adults. At the same time, we advocate for policies that curb
    these predators. For instance, DCUC has supported strong
    enforcement of the Military Lending Act's 36% interest rate
    cap, which helps many young service members but also protects
    older veterans from payday and auto-title loans charging
    triple-digit rates. We also back efforts to improve disclosures
    and crack down on financial advisors who prey on seniors with
    unsuitable annuities or scams. Financial inclusion is at the
    heart of our mission - we want every senior to have access to
    fair, affordable financial services and to be protected from
    those who would exploit their vulnerabilities. By keeping our
    fees low, our yields competitive, and our underwriting
    compassionate, credit unions are helping older Americans keep
    more of their money and achieve long-term financial stability.
    As Mr. Anthony Hernandez, DCUC's President/CEO, has noted,
    "Veterans have sacrificed so much for our Nation. it is
    critical that we ensure they are best protected from financial
    exploitation". We believe that holds true for all older
    Americans - they have contributed greatly to our society and
    economy, and they deserve financial services that serve them,
    not take advantage of them.

        Supporting Older Workers and Caregivers in the Community

        The theme of this hearing - leveling the playing field for
    older workers - goes beyond banking, and we want to voice our
    strong support for making the labor market fair and accessible
    to older Americans. Many of our credit union members continue
    to work well into their 60s, 70s, or later, whether out of
    financial necessity, a desire to stay active, or both. We know
    that these older workers bring a wealth of experience and
    skills to the table, yet they often face barriers such as age
    discrimination in hiring or retraining. While DCUC's primary
    expertise is in financial services, we join others in urging
    policies that eliminate bias against older workers and that
    encourage employers to tap the talent of experienced employees.
    We support strengthening and enforcing laws like the Age
    Discrimination in Employment Act to ensure no worker is
    unfairly pushed out or passed over simply due to age.
    Additionally, we encourage initiatives for lifelong learning
    and re-skilling - for example, federal or state programs that
    provide training in new technologies to workers over 50, so
    they can continue to advance in their careers. Such efforts
    would directly benefit many credit union members who want to
    remain productive and self-sufficient.
        It is also important to recognize the interplay between
    caregiving and the workforce. Many older Americans find
    themselves in the "sandwich generation," still working while
    also caring for aging parents, an ailing spouse, or helping
    with grandchildren. This dual role can strain their finances
    and time. Credit unions try to help these members by offering
    financial counseling for caregivers - for instance, advising
    them on how to budget for medical expenses or navigate
    insurance and benefits for their loved ones. We often refer
    members to reputable resources (such as the local Aging and
    Disability Resource Centers or the VA Caregiver Support program
    for veteran families) and in some cases partner with community
    organizations to host seminars on caregiving and estate
    planning. Some credit unions have even introduced "caregiver
    accounts" or read-only account access, which allow a designated
    caregiver to monitor an older member's account activity for
    unusual transactions (with the member's consent). These tools
    empower caregivers to help prevent fraud and manage day-to-day
    finances, reducing stress on working seniors who have
    caregiving duties. We applaud Congressional efforts to support
    family caregivers - for example, proposals to provide caregiver
    tax credits or expand respite care programs - because easing
    the burden on caregivers will in turn help many older workers
    remain in their jobs. In the financial sphere, we believe
    credit unions can be valuable partners in any federal
    initiative to educate and assist caregivers in managing an
    elder's finances safely and efficiently.
        Finally, we want to highlight that defense credit unions
    themselves are often large employers, and we benefit greatly
    from the contributions of older employees and volunteers. Many
    credit union boards of directors are composed of retired
    military personnel and civilians, often seniors who volunteer
    their time to govern our institutions. Their wisdom and
    perspective are tremendous assets. We strive to lead by example
    by embracing age diversity in our workforce and governance, and
    we encourage other industries to do the same. When workplaces
    value older workers, provide flexible schedules or phased
    retirement options, and accommodate health needs, it enables
    those workers to continue contributing to their communities
    (and contributing to their retirement savings). That in turn
    strengthens their financial resilience and reduces the
    likelihood they'll face hardship or exploitation. In short,
    treating older workers fairly is not just a moral imperative -
    it's sound economic and social policy that benefits everyone.
    We thank the Committee for recognizing this through today's
    hearing.

        Conclusion: Partnering to Serve and Protect Older Americans

        In conclusion, the Defense Credit Union Council and our
    member credit unions are deeply committed to the financial
    well-being of older Americans. Every day, we see seniors in our
    branches or online - longtime members, veterans, and new
    members alike - who rely on us not just for transactions, but
    for guidance, trust, and a safe harbor for their finances. We
    take that responsibility very seriously. Our defense credit
    unions remain dedicated to helping seniors achieve long-term
    financial stability and stand ready to partner with
    policymakers in advancing this goal. We sincerely thank the
    Committee for highlighting the needs of older workers and
    retirees, and for recognizing the vital role community-based
    financial institutions can play in meeting those needs.
        Moving forward, we encourage Congress to continue
    supporting and working with credit unions as part of the
    solution. Whether it's disseminating fraud alerts, facilitating
    access to affordable financial services, or delivering
    financial education in the community, credit unions are on the
    front lines making a difference for seniors. We can amplify
    these successes through collaboration. We invite members of the
    Committee and your staff to visit a local defense credit union
    to see our senior-focused programs in action - from fraud
    prevention training sessions to veteran benefit counseling -
    and to discuss further how we might expand these efforts with
    federal support.
        Above all, we share a common purpose: to ensure that every
    older American can enjoy their later years with financial
    independence, security, and dignity. Those who spent a lifetime
    defending our country or building our communities should not
    face unfair disadvantages in the workplace or exploitation in
    the marketplace. By leveling the playing field for older
    workers and empowering credit unions and other community
    partners, Congress can uphold that principle. DCUC and our
    member credit unions are eager to work alongside you in this
    mission.
        Thank you for the opportunity to submit this testimony
    letter for the hearing record. We appreciate your leadership in
    protecting older Americans. Should you have any questions or
    require additional information, please do not hesitate to
    contact me at (202) 557-8528 or via email at jstverak@dcuc.org.
    We look forward to continuing to work with you to better serve
    our nation's seniors and their families.
        If you have any questions, please do not hesitate to
    contact me.

        /s/
        Jason Stverak
        Chief Advocacy Officer
        DCUC
        CC: Members of the United States Senate

                     U.S. Senate Special Committee on Aging

       "Protecting Older Americans: Leveling the Playing Field for Older
                                    Workers"

                               September 3, 2025

                           Statements for the Record

                        Mary Ann (Miki) Herman Statement

        My name is Mary Ann (Miki) Herman, and I am from Portland,
    Oregon. I am 76 years and retired after a 30+ year career
    working in diverse companies. During my career, I lead teams
    and companies across many national and global industries
    holding senior executive positions in $10M to $20B
    organizations. Currently I advocate for equity for older adults
    with local and national organizations in volunteer and Board
    Member roles.
        I'm pleased to strongly support the bipartisan Protecting
    Older Americans Act which allow victims of age discrimination
    to seek justice and accountability. My two very different
    stories show that I've both experienced workplace age
    discrimination but also been on a management team that engaged
    in age discrimination. In both cases, there was little to no
    recourse for an older worker to seek accountability or obtain
    justice.
        In 2008 I was recruited by a well-known Oregon company. I
    had several phone interviews, and my skill set was a perfect
    match for senior management. But when I had the high-level, in-
    person interview, most of the questions and comments were
    focused on my current fitness and lifestyle - not my
    qualifications. I was asked probing questions about how my
    athleticism had changed over the years and how I maintain my
    fitness. Several questions were about what type of running I
    still did, the amount of miles that I logged daily compared to
    earlier years - and my stamina for competitive sports now.
        My experience was exactly what they needed, but they said
    my look did not align with their lifestyle, athletic brands or
    their culture. I knew they were talking about my age, and I was
    not surprised when I was not invited back for the final
    interview with the CEO.
        I did think about taking legal action, but I know how hard
    it is to prove, and I needed to focus on finding another job.
    And fortunately, I was successful, and I continued to have a
    very rewarding professional career.
        Jumping forward in time, I want to share my second
    experience. A little more than twelve years ago, I served as a
    high level executive for a major national company at which time
    I found myself part of a management team engaged in blatant age
    discrimination.
        Because of company financial losses, we were told there
    would need to be a restructure of our $6B business unit with a
    focus on a lower salaries to improve profitability, so we would
    be looking at the highest salaries as the basis for this
    restructuring approach.
        I, along with other executive level colleagues met. On a
    whiteboard, we listed everyone's duties and salaries but also
    their age and expected retirement. It didn't matter if you had
    a star performer or their actual salary, the conversation and
    decision-making focused on the employee's age and how long we
    thought they would stay before they would retire. We then
    targeted just the older workers under the guise that they were
    the highest paid employees. In some cases that was true but in
    other cases it was not. It was clear to me that we were using
    the subterfuge of "high salary" as a proxy to engage in age
    discrimination.
        To cover our tracks, we didn't just lay them off because
    that might be too obvious. Instead, these older workers were
    told they could stay but they'd have to re-apply for their job
    in this new structure or they could consider another lesser
    paying job. Except the reality was we restructured the new jobs
    in a way that they would not qualify and if they applied for a
    lesser position, they were not actually considered for those
    positions.
        The reality is workplace age discrimination is far too
    prevalent, and we need to update the laws so that older workers
    are protected.
        Thank you for letting me share my stories.

                     U.S. Senate Special Committee on Aging

       "Protecting Older Americans: Leveling the Playing Field for Older
                                    Workers"

                               September 3, 2025

                           Statements for the Record

                             Ed Henselder Statement

        My name is Ed Henselder. I live in Melville, NY, which is
    part of Huntington Township on Long Island, and I am currently
    63 years old. In my mid-twenties, I developed a condition
    called uveitis, which caused a gradual loss of my vision. At
    age 28, as a married father of two young children, my
    decreasing vision forced me to find a new path to support my
    family. The application process for Social Security Disability
    took 18 months to be approved, causing tremendous financial
    hardship for our family that took many years to overcome.
        I received training with assistance from the New York State
    Commission for the Blind, where I learned how to use a computer
    and adaptive technology. The continuous decline of my vision
    has required me to adapt to new assistive software over the
    years-from using magnification software, combining
    magnification with speech assistance, and relying solely on
    speech technology.
        Securing and maintaining employment has become increasingly
    challenging as my vision deteriorated. Some websites and CRM
    systems became less accessible, with features that were not
    compatible with screen readers or had improperly labeled
    elements, making navigation difficult. Additionally, I have
    encountered hesitancy from employers due to my age or a lack of
    understanding about how a blind individual can use a computer.
    This is often compounded by limited awareness of ADA laws,
    including requirements for accessibility, reasonable
    accommodations, and the ambiguities in these regulations.
        Despite the numerous challenges I have faced over the
    years-whether it be employers' reluctance to hire individuals
    with visual impairments, the need to find workarounds for
    inaccessible websites and computer software, or difficulties
    reaching locations via paratransit-I have managed to secure
    employment on several occasions. Unfortunately, I lost a
    position I held for 13 years due to the COVID-19 pandemic and
    have only been able to work for three months since March 2020.
    During this period, I have continued to expand my knowledge of
    adaptive software and earned certifications in Salesforce but
    have not yet been able to obtain new employment.
        Widespread reductions across various federal departments
    have resulted in many programs for the aged and disabled
    becoming collateral damage, making the prospect of finding
    employment even more difficult. As I persist in my efforts to
    become more employable and actively search for opportunities, I
    often spend hours reflecting on the sacrifices my wife and I
    will need to make to survive. Our goal is to maintain a quality
    of life that allows us to enjoy time with our children and
    grandchildren, even as we navigate increased costs and
    reductions to essential resources such as housing, medical
    needs, and other necessities.
        I simply request the next time you are looking to cut costs
    look to see what exactly does that department do, how will the
    people be effected by the cuts, and what opportunities are
    there for these people to maintain the basics in their lives.

                                  [all]