[Congressional Record Volume 144, Number 92 (Monday, July 13, 1998)]
[Senate]
[Pages S8054-S8055]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  HIGHER EDUCATION REAUTHORIZATION ACT

  Mr. GRASSLEY. Mr. President, I would like to discuss an important 
issue that should be addressed by House and Senate conferees meeting to 
resolve differences regarding the Higher Education Reauthorization Act.
  Various institutions of higher education have tried for a number of 
years to have the Age Discrimination in Employment Act amended to allow 
certain types of early retirement plans for tenured faculty. Various 
Members of

[[Page S8055]]

this Body have traditionally viewed such an amendment with concern.
  At the same time, some Members of this Body are concerned that 
potentially meritorious ADEA claims have faced statute of limitations 
problems based on the application of the Supreme Court decision in 
Lorance versus AT&T Technologies.
  I understand there have been efforts to address these concerns, and I 
would like to pose a question to my colleague from Massachusetts, 
Senator Kennedy. Senator Kennedy, is it your understanding that the 
House of Representatives has addressed one or both of these issues in 
its version of this bill?
  Mr. KENNEDY. The House of Representatives has addressed only one of 
these issues. It has proposed a limited exception to the Age 
Discrimination in Employment Act for tenured faculty. But you are 
correct that there is an additional concern regarding older workers and 
their ability to pursue claims under the Age Discrimination in 
Employment Act, and that has to do, as you noted, with the application 
of the Supreme Court case, Lorance versus AT&T Technologies.
  In 1991, Congress passed legislation that partially overturned 
Lorance. Today, Lorance does not apply to claims brought under Title 
VII of the Civil Rights Act. Unfortunately, Congress did not consider 
the effect of the Lorance decision on other statutes, in particular, 
the Age Discrimination in Employment Act.
  Mr. GRASSLEY. Yes, it is unfortunate. Lorance established an 
unworkable system for filing claims under the employment discrimination 
laws. It held that when a seniority system was allegedly adopted with a 
discriminatory purpose, the time limit for challenging that system 
begins to run on the date the system is first adopted--not the date it 
begins to apply to the individual employee. This could be a ``catch-
22'': by the time an employee is harmed and has standing to bring a 
claim, the statutory time period for challenging the policy will often 
have expired. Indeed, in some cases, no current employee would ever be 
able to challenge a long-standing, but discriminatory employment policy 
or system.
  This is clearly contrary to the purposes of the age discrimination 
laws. There is no justification for unfairly closing the doors of 
justice to victims of age discrimination.
  Mr. KENNEDY. I concur with my colleague from Iowa. Before the Senate 
accedes to the House's provision on tenured faculty, this issue should 
be discussed and hopefully resolved during the conference.

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