[Congressional Record Volume 158, Number 65 (Wednesday, May 9, 2012)]
[Extensions of Remarks]
[Pages E748-E749]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS ACT, 
                                  2013

                                 ______
                                 

                               speech of

                           HON. GEORGE MILLER

                             of california

                    in the house of representatives

                          Tuesday, May 8, 2012

       The House in Committee of the Whole House on the state of 
     the Union had under consideration the bill (H.R. 5326) making 
     appropriations for the Departments of Commerce and Justice, 
     Science, and Related Agencies for the fiscal year ending 
     September 30, 2013, and for other purposes:

  Mr. GEORGE MILLER of California. Mr. Chair, I oppose H.R. 5326, the 
FY13 Commerce, Justice, Science and Related Agencies Appropriations and 
am deeply concerned about provisions included in the bill that will 
roll back important civil rights protections and undermine key 
protections for youth in the juvenile justice system.


Section 540: Equal Employment Opportunity Commission Rider to Undermine 
                the Age Discrimination in Employment Act

  Despite passage of the Age Discrimination in Employment Act, ADEA, 
forty-five years ago, older workers continue to face discrimination in 
the workplace. They are demoted, denied promotions and fired simply 
because of their age. While the ADEA provides important protections, 
older workers continue to be hard hit during these difficult economic 
times. The challenges they face are substantial. As compared to their 
younger colleagues, older workers have greater difficulty finding new 
employment and are twice as likely to be out of work for 99 weeks or 
longer. The EEOC reports that the number of age discrimination charges 
filed increased by over 70 percent between 2006 and 2011. And according 
to the AARP, 60 percent of workers interviewed report experiencing or 
witnessing age discrimination in the workplace.
  The protections afforded older workers have been under assault in 
recent years. In 2009, the Supreme Court rolled back workplace 
protections for older workers in Gross v. FBL Financial decision. In 
this case, the Supreme Court held that victims of age discrimination 
must meet a higher burden than other forms of workplace discrimination 
when bringing a claim. Rather than having to prove age was a motivating 
factor for an adverse employment action, older workers are now required 
to show age was the decisive factor when raising an ADEA claim.
  The bill before us today would be another significant setback for 
older workers in this country. H.R. 5326 would prohibit funds made 
available by the Act to be used to implement, administer, or enforce 
the Equal Employment Opportunity Commission's, EEOC, final regulations 
on Disparate Impact and Reasonable Factors Other than Age under the 
ADEA published in March 2012. According to the EEOC, the rider in H.R. 
5326 ``would undermine vigorous enforcement of the nation's age 
discrimination laws at a time when older workers are particularly 
vulnerable.''
  The EEOC regulation at issue should not be controversial. It gives 
employers greater clarity on how to avoid unlawful disparate impacts 
under the ADEA. This clarity should be welcomed not rejected. EEOC's 
intent behind the regulation is straightforward, ``to bring . . . 
existing [EEOC] regulation into conformance with . . . Supreme Court 
precedent and to explain the meaning of RFOA [Reasonable Factor Other 
than Age] defense to employees, employers, and courts.''
  Eliminating this regulation would create new confusion on what 
standards--even outdated ones--might apply in its stead. As a result, 
H.R. 5326 would create legal uncertainty and uneven results in these 
cases and would also eliminate important tools for EEOC to use to help 
employers comply with their obligations under the law.
  Instead of spending time rolling back the rights of older workers and 
creating more legal uncertainty for those who are victims of age 
discrimination, Congress should be fighting for the rights of older 
workers in the workplace and working together on a bipartisan basis to 
reverse the Supreme Court's decision in Gross v. FBL Financial Group.
  I am also deeply concerned that H.R. 5326 would fund the EEOC at a 
level which is $7 million less than the President's request. Last year, 
the agency received nearly one-million discrimination charge filings--
the fourth straight year of record filings. The EEOC must have the 
resources necessary to combat workplace discrimination and retaliation. 
Without it, workers will see longer waits as case backlogs increase and 
the agency's ability to enforce nondiscrimination protections will be 
undermined.

[[Page E749]]

   Section 218: Department of Justice Rider to Weaken Americans with 
                      Disabilities Act Protections

  The Americans with Disabilities Act of 1990, ADA, is intended ``to 
provide a clear and comprehensive national mandate for the elimination 
of discrimination against individuals with disabilities.'' The ADA 
provides nondiscrimination protection to ensure that individuals with 
disabilities have access to and can participate in all aspects of 
society.
  A component of these protections requires that public accommodations 
construct facilities to be accessible and that existing facilities 
become accessible when it is ``readily achievable.'' The ``readily 
achievable'' expectation is defined as ``easily accomplishable and able 
to be carried out without much difficulty or expense.'' There is 
considerable flexibility to determine what is achievable based on a 
business' particular circumstances.
  The Department of Justice has the authority to carry out the mandate 
to eliminate discrimination against individuals with disabilities under 
the ADA. In doing so, the Department of Justice finalized regulations 
in September 2010 which included regulations regarding accessibility of 
swimming pools. These regulations are based on accessibility standards 
established by the Access Board that takes into consideration the needs 
of individuals with disabilities as well as the needs of business.
  To comply with the regulation, businesses would need to make an 
assessment and take steps to accomplish what is ``readily achievable'' 
for swimming pool accessibility for that business. For some businesses 
that may require fixed or portable lifts, while for other business if 
may not require doing anything until increasing accessibility is 
``readily achievable'' for that business. H.R. 5326 rolls back 
protections within the ADA by prohibiting the Department of Justice to 
use funds to implement the standards for swimming pool accessibility. 
This bill would establish an extremely dangerous precedent weakening 
the Department of Justice's authority to enforce the ADA weakening 
critical civil rights protections.
  Regardless of whether a person has a disability or not, that person 
should have the right to access swimming pools. To enable individuals 
with disabilities to participate fully in their communities, their 
communities must be accessible to them. Congress should focus on 
increasing access to community life rather than establishing dangerous 
precedents which prevent individuals from accessing their communities.


                                Title II

  I am strongly opposed to the funding cuts for Title II of the 
Juvenile Justice Delinquency and Prevention Act, JJDPA. The JJDPA was 
first written in 1974 with the goal of supporting states' actions to 
prevent youth crime and provide certain core protections for children. 
The law rightfully recognized that clear biological differences between 
teenagers and adults meant that youth should not be treated in the same 
manner as adults. Without question, youth must be held accountable for 
their actions. But justice should not be driven by fads or politics. 
The juvenile justice system in this country currently affects thousands 
of children and youth, and the core protections in JJDPA are critical 
to efforts that help reduce youth crime, keep our communities safe, and 
ensure our juvenile justice system preserves basic rights for the 
children it serves. The juvenile justice system can be a place of 
redemption and rehabilitation or a place where children are thrown 
away. The funding cuts to Title II of JJDPA threaten the existence of 
these protections, and if this appropriation were enacted, our nation's 
children, families, and communities would undoubtedly suffer.

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