[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 [email protected].
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]