[Congressional Record Volume 141, Number 57 (Tuesday, March 28, 1995)]
[House]
[Pages H3822-H3824]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


         AGE DISCRIMINATION IN EMPLOY- MENT AMENDMENTS OF 1995

  Mr. FAWELL. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 849) to amend the Age Discrimination in Employment Act of 
1967 to reinstate an exemption for certain bona fide hiring and 
retirement plans applicable to State and local firefighters and law 
enforcement officers, and for other purposes.
  The Clerk read as follows:

                                H.R. 849

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Age Discrimination in 
     Employment Amendments of 1995''.

     SEC. 2. REINSTATEMENT OF EXEMPTION.

       (a) Repeal of Repealer.--Section 3(b) of the Age 
     Discrimination in Employment Amendments of 1986 (29 U.S.C. 
     623 note; Public Law 99-592) is repealed.
       (b) Exemption.--Section 4(j) of the Age Discrimination in 
     Employment Act of 1967 (29 U.S.C. 623), as in effect 
     immediately before December 31, 1993--
       (1) is hereby reenacted as such, and
       (2) as so reenacted, is amended by striking ``attained the 
     age'' and all that follows through ``1983, and'', and 
     inserting the following:
     ``attained--
       ``(A) the age of hiring or retirement in effect under 
     applicable State or local law on March 3, 1983; or
       ``(B) if the age of retirement was not in effect under 
     applicable State or local law on March 3, 1983, 55 years of 
     age; and''.

     SEC. 3. STUDY AND GUIDELINES FOR PERFORMANCE TESTS.

       (a) Study.--Not later than 3 years after the date of 
     enactment of this Act, the Chairman of the Equal Employment 
     Opportunity Commission (in this section referred to as ``the 
     Chairman'') shall conduct, directly or by contract, a study 
     that will include--
       (1) a list and description of all tests available for the 
     assessment of abilities important for completion of public 
     safety tasks performed by law enforcement officers and 
     firefighters,
       (2) a list of such public safety tasks for which adequate 
     tests do not exist,
       (3) a description of the technical characteristics that 
     performance tests must meet to be compatible with applicable 
     Federal civil rights Acts and policies,
       (4) a description of the alternative methods available for 
     determining minimally acceptable performance standards on the 
     tests described in paragraph (1),
       (5) a description of the administrative standards that 
     should be met in the administration, scoring, and score 
     interpretation of the tests described in paragraph (1), and
       (6) an examination of the extent to which the tests 
     described in paragraph (1) are cost effective, safe, and 
     comply with Federal civil rights Acts and regulations.
       (b) Advisory Guidelines.--Not later than 4 years after the 
     date of enactment of this Act, the Chairman shall develop and 
     issue, based on the results of the study required by 
     subsection (a), advisory guidelines for the administration 
     and use of physical and mental fitness tests to measure the 
     ability and competency of law enforcement officers and 
     firefighters to perform the requirements of their jobs.
       (c) Consultation Requirement; Opportunity for Public 
     Comment.--(1) The Chairman shall, during the conduct of the 
     study required by subsection (a), consult with--
       (A) the United States Fire Administration,
       (B) the Federal Emergency Management Agency,
       (C) organizations that represent law enforcement officers, 
     firefighters, and their employers, and
       (D) organizations that represent older individuals.
       (2) Before issuing the advisory guidelines required in 
     subsection (b), the Chairman shall allow for public comment 
     on the proposed guidelines.
       (d) Development of Standards for Wellness Programs.--Not 
     later than 2 years after the date of the enactment of this 
     Act, the Chairman shall proposed advisory standards for 
     wellness programs for law enforcement officers and 
     firefighters.
       (e) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out this section $5,000,000.

     SEC. 4. EFFECTIVE DATES.

       (a) General Effective Date.--Except as provided in 
     subsection (b), this Act shall take effect on the date of the 
     enactment of this Act.
       (b) Special Effective Date.--Section 2(b)(1) shall take 
     effect on December 31, 1993.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Illinois [Mr. Fawell] will be recognized for 20 minutes, and the 
gentleman from California [Mr. Martinez] will be recognized for 20 
minutes.
  The Chair recognizes the gentleman from Illinois [Mr. Fawell].
  Mr. FAWELL. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, the bill we are considering today, the Age 
Discrimination in Employment Amendments of 1995, would restore the 
public safety exemption under the Age Discrimination in Employment Act 
[ADEA] and permit police and fire departments to use maximum hiring and 
mandatory retirement ages as part of their overall personnel policies. 
When the upper age limit for coverage under the ADEA was removed in 
1986, the use of such age criteria was made generally impermissible 
under the act. Legislation to restore the public safety exemption was 
twice considered and passed by the House during the last Congress, but 
failed to clear the Senate.
  H.R. 849 amends section 4 of the ADEA to allow, but not require, 
State and local governments that used age-based hiring and retirement 
policies for law enforcement officers and firefighters as part of a 
bona fide hiring or retirement plan as of March 3, 1983, to continue to 
use such policies. It also amends section 4 to allow States and local 
governments that either did not use or stopped using age-based hiring 
or retirement policies to adopt such policies with the proviso that the 
mandatory retirement age be not less than 55 years of age. In addition, 
H.R. 849 directs the EEOC to identify particular types of physical and 
mental fitness tests that are valid measures of the ability and 
competency of public safety officers to perform their jobs and to 
promulgate guidelines to assist State and local governments in the 
administration and the use of such tests.
  The flexibility to use age-based criteria as part of an overall 
personnel policy is being sought by both management and labor in the 
public safety field. The Subcommittee on Employer-Employee Relations 
received compelling testimony from organizations representing rank-and-
file firefighters and police officers, as well as local government, 
arguing that age was an effective proxy for job fitness in these 
extremely dangerous and physically demanding occupations. These 
organizations contend that tests of physical and mental fitness have 
not proven a feasible alternative to an age proxy because such tests do 
not replicate the stress inherent in an actual emergency. Testing also 
places these organizations in the bind that many private sector 
employers find themselves in--namely, that they must use tests to avoid 
the use of arbritary selection criteria, but every test they select is 
subject to challenge for its other discriminatory effects and for its 
job relatedness.
  I find persuasive the arguments of these law enforcement and 
firefighting organizations which, after all, represent those on the 
frontlines of public safety. I do not feel that we can discount their 
judgment and there is obviously a commonsense recognition that there is 
some decline in physical ability with age. The potential threat to 
public safety posed by the expiration of the exemption demands that the 
Congress act to allow State and local governments closest to the needs 
of law enforcement and firefighting to make their own decisions about 
hiring and retirement policies.
  I might add that I strongly support the protections against arbitrary 
age discrimination inherent in the ADEA. The public safety field is one 
of the rare exceptions where one's age is relevant to one's ability to 
perform effectively as a firefighter or law enforcement officer. 
Perhaps at some point, the age proxy will no longer be necessary and 
effective tests will be available. As I mentioned, to that end, the 
bill we are considering today directs the Equal Employment Opportunity 
Commission [EEOC] to develop and to issue advisory guidelines for the 
administration and use of physical and mental fitness tests to measure 
the ability and competency of law enforcement officers and firefighters 
to perform the requirements of their jobs. Until the point that 
adequate tests are in place however, I feel that the public safety 
exemption to the ADEA is necessary and that H.R. 849 should be quickly 
enacted. I urge the support of the legislation.
  Mr. Speaker, I would also very much like to thank the gentleman from 
New York [Mr. Owens], who did quite a lot of work on this bill last 
year, and the gentleman from California [Mr. Martinez] for their 
longstanding support 
[[Page H3823]] and outstanding leadership regarding this legislation. 
During the last Congress, Mr. Owens twice shepherded a similar bill to 
passage on the House floor only to see it languish and die in the other 
body. My hope is that our colleagues on the other side will now move on 
the bill and that this important legislation will indeed finally be 
enacted.
  Mr. Speaker, I reserve the balance of my time.
  Mr. MARTINEZ. Mr. Speaker, I yield myself such time as I may consume.
  (Mr. MARTINEZ asked and was given permission to revise and extend his 
remarks.)
  Mr. MARTINEZ. Mr. Speaker, I rise in support of H.R. 849. As the 
Honorable Member, the gentleman from Illinois [Mr. Fawell], chairman of 
the Subcommittee on Employer-Employee relations has said, this bill has 
been before us in previous Congresses. In the 103d Congress, Mr. Owens 
of New York was the chief author of the bill, and as the gentleman from 
Illinois [Mr. Fawell] has said, it passed with the widest of margins.

                              {time}  1445

  But it failed in the Senate, and, although there may be some who are 
still not in total support of this bill, this bill is a good bill, and 
this bill solves the problem raised by the municipalities who have 
demonstrated that the provision allowing them to implement an age-based 
retirement system, but not mandating that they do so, will provide them 
with the flexibility they need to continue to ensure the public safety 
and their residents and citizens.
  This responds to the needs of the employees--those police and 
firefighters who feel so strongly that the public and their fellow 
public safety workers will be best served by the flexibility this 
change to the ADEA will allow. And, because it is not mandatory, but 
provides the authority to base a mandatory retirement program on age; 
city managers, fire chiefs, police chiefs, and their own elected 
officials can develop their own policies based on what works best for 
them.
  I am proud to support this bill, and I ask my colleagues to do the 
same.
  Mr. Speaker, I had intended to yield to the gentleman from New York 
[Mr. Owens] who is not here, and I would ask if the gentleman from 
Illinois [Mr. Fawell] is going to ask for the 5 legislative days for 
comment by our colleagues.
  Mr. FAWELL. Mr. Speaker, will the gentleman yield?
  Mr. MARTINEZ. I yield to the gentleman from Illinois.
  Mr. FAWELL. Yes, I will.
  Mr. HOYER. Mr. Speaker, I rise today in support of H.R. 849, to amend 
the Age and Discrimination in Employment Act of 1967. This bill will 
reinstate an exemption for certain bona fide hiring and retirement 
rules applicable to firefighters and law enforcement officials. The 
bill also instructs the Equal Employment Opportunity Commission 
Chairman to conduct a study as to whether there should be mandatory 
retirement ages for these public employees. Ultimately, this bill seeks 
to clear up the confusion which has come about due to differing court 
decisions throughout the country on this issue over the past several 
years.
  In 1986, the Congress passed a law which exempted fire and police 
departments from the ADEA for a period of 7 years. This exemption 
expired on January 1, 1994. It has long since been time to act and with 
this bill today we are fulfilling our responsibility to those who put 
their lives on the line for each American every day.
  All of us know how physically demanding firefighting is. We also 
recognize the importance of protecting our communities. Mr. Speaker, 
the ability for firefighters and law enforcement officials to perform 
their duties at peak level is literally a matter of life and death for 
each and every American. Clearly age affects and individuals ability to 
perform the duties associated with these jobs.
  Mr. Speaker, the study which followed the passage of this legislation 
in 1986 clearly concluded that age has a direct impact on a person's 
ability to work as a police officer or firefighter. We took this 
measure up twice last year and both times if passed unanimously in the 
House. The inaction of the Senate in the last Congress is no excuse for 
us not to act favorably on this measure again in the 104th Congress and 
I urge its adoption here today.
  For all of the hard and dedicated work that these public employees 
perform each and every day it is our responsibility to ensure that the 
rules governing their employment and retirement are adequate and fair. 
This is exactly what H.R. 849 seeks to achieve. Let us today 
demonstrate our support of firefighters and law enforcement officials 
throughout the country with the speedy, unanimous passage of this bill. 
Thank you.
  Mr. OWENS. Mr. Speaker, I rise in strong support of H.R. 849, the Age 
Discrimination in Employment Act Amendments of 1995. This legislation 
would permanently exempt State and local public safety agencies from 
the Age Discrimination in Employment Act in order to permit them to 
consider age in their hiring and retirement policies. This exemption is 
urgently needed to provide State and local agencies the flexibility 
they need to ensure that all public safety employees are fit and able 
to carry out their very demanding jobs. Comparable legislation passed 
the House unanimously on two occasions last year but was prevented from 
even being considered by the Senate by the threat of a filibuster. It 
is imperative that there be no further delay.
  As a rule, Congress must avoid exempting whole classes of employees 
from the protection of civil rights laws unless it is absolutely 
necessary. We should not carve out exemptions merely because an 
employer finds civil rights compliance to be costly or inconvenient. 
Exemptions must be made only when there is a strong compelling need to 
do so and there is no other reasonable alternative. This is one of 
those rare instances.
  State and local fire and police agencies must be exempted from the 
ADEA in order to protect and promote the safety of the public. This is 
literally a life or death matter. If a police officer or firefighter 
cannot adequately perform their duties, people die and people get hurt.
  Age does indeed affect an individual's ability to perform the duties 
of a public safety officer. This is not a stereotype. This is not 
ageism. This is a medical fact. Physical ability declines with age. For 
example, aerobic capacity declines at a rate of 1 percent per year 
after age 30. Strength declines at a rate of 10-13 percent every 
decade. The risk of sudden incapacitation also clearly increases with 
age, increasing sixfold between the age of 40 and 60 years of age. 
These physical effects are not experienced by all people to the same 
degree or at the same precise time. But they pose a significant problem 
to public safety agencies in their efforts to maintain a fit and 
effective work force.
  A public safety agency can respond to age-related declines in ability 
in 1 of 2 ways. It can establish an age-based mandatory retirement 
policy. This will reduce the risks to public safety, but it may result 
in some capable individuals being forcibly retired.
  Alternatively, an agency can try to use performance and physical 
ability testing to try to screen out employees who might pose a threat 
to public safety. Unfortunately, there are numerous problems with 
trying to use tests as an alternative to age which makes this option 
untenable.
  It is simply not possible to devise a test for all tasks carried out 
by a public safety employee. For example, no test could have
 possibly simulated the kinds of physical conditions public safety 
employees in California have faced over the past few weeks of severe 
flooding. No test, no matter how comprehensive, can measure all of the 
skills and abilities a public safety employee must possess.

  Moreover, there is no current test that can effectively screen for 
the risk of sudden incapacitation among asymptomatic individuals. A 
mandatory retirement age, used in conjunction with screening for other 
risk factors, continues to be the most effective way of reducing the 
risk of sudden incapacitation by public safety officers.
  Testing can also have a very serious negative impact on other 
individuals and groups that historically have been discriminated 
against in employment. Tests have been proven to have an adverse impact 
on women and minorities. Women on average are less strong than men. 
Written tests may underpredict the on-the-job performance of 
minorities. To assure that such factors did not prevent women and 
minorities from serving in public safety positions, many agencies 
within-group normed the results of certain tests. Unfortunately, a 
provision of the Civil Rights Act of 1991 now prohibits that practice. 
As a result, any increase in the use of physical and mental testing of 
public safety employees will jeopardize employment opportunities for 
women and minorities.
  Another, but lesser concern is that it is enormously expensive to 
administer performance and ability tests on a periodic basis to all 
public safety employees, consuming scarce resources that are needed to 
keep police on the streets. In addition, testing often entails 
considerable litigation over the content of the tests. In Tennessee, 
for example, there were several years of litigation over the State 
wildlife officer's entrance exam which focused on the question of 
whether the fences recruits had to scale should be 8 or 10 feet tall.
  For these reasons, testing does not today represent a viable 
alternative to age-based 
[[Page H3824]] mandatory retirement policies for public safety 
agencies. If public safety agencies are exempted from the ADEA, those 
agencies who wish to experiment with testing in lieu of retirement ages 
will be able to do so. But given the uncertainty about the 
effectiveness, effects and implications of using tests as a substitute 
for age, the Congress must not force every public safety agency to 
implement them. This would be the effect if we did not enact an 
exemption.
  I urge my colleagues to join me in supporting passage of H.R. 849. 
All public safety employees must be fit, effective, and fully capable 
of fulfilling their duties. An ADEA exemption will assure that State 
and local police and fire agencies will be able to pursue that goal 
using the same age-based employment criteria which is now used by the 
FBI, the Secret Service and other Federal public safety agencies.
  Mr. WELDON of Pennsylvania. Mr. Speaker, I rise today to express my 
strong support for H.R. 849, the Age Discrimination in Employment 
Safety Exemption Act. As the founder of the congressional fire services 
caucus, I have worked tirelessly to promote fire safety at the national 
level. For this reason, I am a cosponsor of H.R. 849 and am grateful 
that my colleague from Illinois has brought this issue to the floor 
today.
  The ability of all public safety officers to perform their duties at 
peak level is literally a matter of life or death for millions of 
Americans. I can tell you first hand that the physical demands of 
firefighting are overwhelming. For this reason, in 1986, Congress 
agreed to exempt fire and police departments from ADEA while an 
official study was conducted regarding the validity of age criteria for 
public safety occupations. The study verified what I have been saying 
for years, that the ability to work as a fire or police officer 
declines with age.
  Fitness tests are not a valid alternative to age limits. I've been 
surrounded by a 6-foot wall of fire, and I'm telling you there is no 
adequate simulation. In addition, fitness tests have been consistently 
struck down by courts as discriminatory. In absence of a valid fitness 
test, age limits ensure our public safety teams are in peak condition.
  In addition, this bill will continue to protect State and local 
governments who in the past have been threatened with costly litigation 
in their efforts to defend age policies. Lives are at stake; we cannot 
let this issue become another litigation nightmare played out in our 
Nation's courts.
  H.R. 849 is supported by those who are directly affected by its 
passage, the fire and police officers who rely on the ability of their 
colleagues to perform each and every day. In addition, the measure 
enjoys a broad and diverse range of support from organizations such as 
the AFL-CIO, the International Association of Fire Chiefs, the Fire 
Department Safety Officers Association, the International Association 
of Chiefs of Police, and the National Association of Counties to name 
but a few.
  Mr. Speaker, I support passage of H.R. 849 and urge my colleagues to 
support Congressman Fawell's efforts to strengthen our emergency 
service teams.
  Mr. MARTINEZ. Mr. Speaker, I have no further requests for time.
  Mr. FAWELL. Mr. Speaker, I, too, have no further requests for time, 
and I yield back the balance of my time.
  Mr. MARTINEZ. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. McInnis). The question is on the motion 
offered by the gentleman from Illinois [Mr. Fawell] that the House 
suspend the rules and pass the bill, H.R. 849.
  The question was taken; and--two-thirds having voted in favor 
thereof--the rules were suspended, and the bill was passed.
  A motion to reconsider was laid on the table.

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