[Congressional Record Volume 166, Number 9 (Wednesday, January 15, 2020)]
[House]
[Pages H258-H270]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROTECTING OLDER WORKERS AGAINST DISCRIMINATION ACT
General Leave
Mr. SCOTT of Virginia. Madam Speaker, I ask unanimous consent that
all Members may have 5 legislative days to revise and extend their
remarks and insert extraneous material on H.R. 1230, the Protecting
Older Workers Against Discrimination Act.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Virginia?
There was no objection.
The SPEAKER pro tempore. Pursuant to House Resolution 790 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the state of the Union for the consideration of the bill, H.R. 1230.
The Chair appoints the gentleman from Texas (Mr. Cuellar) to preside
over the Committee of the Whole.
{time} 1339
In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the state of the Union for the consideration of the bill
(H.R. 1230) to amend the Age Discrimination in Employment Act of 1967
and other laws to clarify appropriate standards for Federal employment
discrimination and retaliation claims, and for other purposes, with Mr.
Cuellar in the chair.
The Clerk read the title of the bill.
The CHAIR. Pursuant to the rule, the bill is considered read for the
first time.
General debate shall be confined to the bill and shall not exceed 1
hour equally divided and controlled by the chair and ranking minority
member of the Committee on Education and Labor.
The gentleman from Virginia (Mr. Scott), and the gentlewoman from
North Carolina (Ms. Foxx) each will control 30 minutes.
The Chair recognizes the gentleman from Virginia.
Mr. SCOTT of Virginia. Mr. Chair, I yield myself such time as I may
consume.
Mr. Chair, I rise today in support of H.R. 1230, the Protecting Older
Workers Against Discrimination Act, or POWADA.
I want to thank my colleagues, particularly the gentleman from
Wisconsin (Mr. Sensenbrenner), for working to pass this bipartisan
proposal to restore workplace protections for older workers.
In 1967, Congress passed the Age Discrimination in Employment Act, or
ADEA, which recognizes the Federal Government's role in preventing
older workers from being forced out of jobs or denied work
opportunities because of their age.
Importantly, the ADEA was enforced using an evidentiary standard that
gave older workers a fair shot at holding employers accountable for age
discrimination. Under this standard, workers seeking to challenge age
discrimination in employment only had to prove that age was a
motivating factor or one of many motivating factors behind an
employer's discriminatory action.
For decades, this mixed-motive standard was consistent with the
evidentiary standard in title VII of the Civil Rights Act of 1964,
which covers claims of unlawful discrimination on the basis of race,
sex, national origin, or religion.
Unfortunately, in 2009, in the Gross v. FBL Financial Services case,
the Supreme Court upended decades of precedent, significantly raising
the burden of proof for older workers.
In its 5-to-4 decision, the Court held that plaintiffs must prove
that age was the decisive and determinative motivating factor for the
employer's conduct. Under this altered framework, older workers cannot
prevail unless they can show that the adverse action would not have
occurred but for the employee's age.
This higher threshold not only makes it harder for workers who have
suffered
[[Page H259]]
discrimination to achieve redress, it also sends a message to employers
that they need not treat age discrimination as seriously as other forms
of discrimination.
By amending the ADEA to clarify that the mixed-motive standard is the
evidentiary standard for evaluating claims, the Protecting Older
Workers Against Discrimination Act would restore workers' protections
and reestablish a consistent burden of proof for claims alleging
discrimination on the basis of age.
The 2009 Gross decision also opened the door for the courts to apply
the but-for standard to other civil rights laws, including the
Americans with Disabilities Act, the Rehabilitation Act of 1973, and
the antiretaliation provisions of the Civil Rights Act of 1964. The
bill before us clarifies that the mixed-motive standard also applies to
those three civil rights acts as well.
Despite the bipartisan support in both Chambers for this bill, I am
disappointed that the White House has already threatened to veto this
legislation. In reality, the administration has a troubling pattern of
blocking legislation to help the very forgotten workers it promised to
support.
In addition to this legislation, the administration has placed veto
threats on the Raise the Wage Act, which would gradually increase the
minimum wage to $15 an hour by 2025, and the Workplace Violence
Prevention for Healthcare and Social Service Workers Act, which would
support the safety of healthcare and social service workers.
{time} 1345
Mr. Chairman, today the House has a chance to be on record and stand
up for the average American worker. I urge a ``yes'' vote on the
Protecting Older Workers Against Discrimination Act, and I reserve the
balance of my time.
Ms. FOXX of North Carolina. Mr. Chairman, I yield myself such time as
I may consume.
Mr. Chairman, I rise today in opposition to H.R. 1230, the Protecting
Older Workers Against Discrimination Act.
Let me be clear: every worker, including older workers, should be
protected from workplace discrimination at his or her job. This is why
Congress has passed a number of laws to protect Americans of all ages
against discrimination in the workplace. The Civil Rights Act of 1964,
CRA; the Age Discrimination in Employment Act of 1967, ADEA; the
Rehabilitation Act of 1973, the Rehab Act; and the Americans with
Disabilities Act of 1990, ADA, makes employment discrimination because
of an individual's race, color, religion, sex, national origin, age, or
disability unlawful.
Although I appreciate the stated purpose behind H.R. 1230, the rushed
approach taken by committee Democrats and the lack of evidence and data
to prove that this legislation is needed have led to a seriously flawed
bill. Careful examination and scrutiny of any legislative proposal is
necessary to determine whether it is needed and whether it
appropriately and effectively addresses the relevant issues.
Unfortunately, in developing H.R. 1230, the committee majority failed
miserably in this regard.
Committee Democrats chose not to hold a single hearing solely
dedicated to examining either age discrimination or H.R. 1230; rather,
they examined this bill during a hearing that covered multiple topics
and several other pieces of legislation completely unrelated to the
bill.
As we have seen many times during the 116th Congress with other
legislation, H.R. 1230 was rushed through the Education and Labor
Committee without necessary examination, discussion, or consideration.
As a result, we are here debating yet another one-size-fits-all
``government knows best'' mandate that rewards special interests and
disregards real-world workplace experience and decades of Supreme Court
precedent.
However, the flawed process is far from the only issue with this
legislation. The committee also has no evidence or data indicating this
bill is necessary. In fact, the lone Democrat-invited witness who
testified on H.R. 1230 at a committee hearing covering many bills and
topics admitted the impact of the Supreme Court's 2009 decision in
Gross v. FBL Financial Services, Inc. is unknown. She also admitted
there is no data indicating workers have been discouraged from filing
age discrimination charges with the EEOC or bringing cases.
The data simply does not indicate workers have been discouraged from
filing discrimination or retaliation charges with the EEOC.
Additionally, according to the Bureau of Labor Statistics, employment
numbers for older workers have trended upwards in recent decades.
In 2018 older workers earned 7 percent more than the median for all
workers, a large increase from 20 years ago. For workers age 65 and
older, employment tripled from 1988 to 2018, while employment among
younger workers grew by about one-third. Likewise, over the past 20
years, the number of older workers on full-time work schedules grew
2\1/2\ times faster than the number working part-time.
Rather than considering misguided proposals such as H.R. 1230 which
furthers government intervention, we ought to be empowering all
workers, including older workers, to continue participating and
thriving in America's workforce to build upon, not stifle, these
impressive trends. Unfortunately, H.R. 1230 does the opposite. This
legislation will actually harm older workers while simultaneously
enriching trial lawyers.
H.R. 1230 overturns Supreme Court precedent by allowing a plaintiff
to argue that age was only a motivating, not decisive, factor that led
to an employer's unfavorable employment action, and it allows these
kinds of mixed-motive claims across four completely different
nondiscrimination laws. Moreover, allowing mixed-motive claims in cases
alleging retaliation puts employers in an untenable position of trying
to prove that a legitimate employment decision was not in response to a
prior complaint. The only party who will be paid in nearly all mixed-
motive cases is the plaintiffs' attorneys because most employers will
be able to demonstrate that they would have taken the same action in
the absence of the impermissible motivating factor. So the very people
this legislation is intended to help will not receive any monetary
damages under H.R. 1230.
H.R. 1230 will also increase frivolous legal claims against
businessowners. Such undeserving claims will take valuable resources
away from efforts to prevent workplace harassment and discrimination.
Finally, committee Republicans offered amendments to advance
important priorities and practical solutions for older workers and
highlight fundamental flaws in H.R. 1230. Unfortunately, our
commonsense amendments were defeated on a party-line vote in committee.
Mr. Chairman, all workers should be protected from workplace
discrimination, but by rushing today's legislation to the House floor
in an attempt to make up for an abysmal first year in the majority,
Democrats have failed older workers.
I encourage my colleagues to vote ``no'' on H.R. 1230, and I reserve
the balance of my time.
Mr. SCOTT of Virginia. Mr. Chairman, I yield myself such time as I
may consume just to respond to the idea that this has been rushed.
There have been several committee hearings over the last 10 years in
the House and one of the Senate, and that information is recorded in
the committee report.
I also would like to point out that the burden of but for that the
Gross decision has saddled older workers with now requires them to show
not only that they have been discriminated against but also that they
would have gotten the job or wouldn't have been fired but for the fact
that they are old. All the older person knows is that when they applied
for the job they were told: We don't hire old people.
Well, that is not enough, because now you also have to show that you
would have gotten the job anyway. You don't know who got hired, and you
don't know what their qualifications were, and it is an almost
impossible burden to prove that not only were you discriminated against
but you know the action would not have been taken but for that action.
Mr. Chairman, I yield 2 minutes to the gentlewoman from Oregon (Ms.
Bonamici), who is the chair of the Subcommittee on Civil Rights and
Human Services on the Education and Labor Committee.
[[Page H260]]
Ms. BONAMICI. Mr. Chairman, I thank Chairman Scott for yielding.
Mr. Chairman, today, by supporting the bipartisan Protecting Older
Workers Against Discrimination Act, we can protect the civil rights of
older workers who are striving to provide for themselves and their
families.
According to recent data from the Census Bureau and the Bureau of
Labor Statistics, the percentage of retirement-age Americans in the
labor force has doubled since 1985. Unfortunately, age discrimination
in the workplace remains disturbingly pervasive. According to the AARP,
three in five workers over the age of 45 reported seeing or
experiencing age discrimination on the job. Americans are living and
working longer, and we must do all we can to protect them from
discrimination.
My home State of Oregon has one of the most rapidly aging populations
in this country. I have heard from workers, many in the technology
industry, who believe they have been dismissed or denied employment
because of their age. My office has helped older workers who have filed
age discrimination complaints at the Equal Employment Opportunity
Commission, but the burden and the outcomes are very uncertain.
In 1967 Congress passed the Age Discrimination in Employment Act, or
ADEA, to prohibit age discrimination in the workplace and to promote
the employment of older workers. Then in 2009 the Supreme Court in the
Gross case changed the burden of proof for workers and made it much
harder for workers to prove age discrimination. This bipartisan bill
simply returns the burden of proof to what it was for decades before
the Gross case.
I joined Chairman Scott and Congressman Sensenbrenner in
reintroducing the bipartisan Protecting Older Workers Against
Discrimination Act to amend the ADEA and our other core civil rights
laws: the anti-retaliation provision of Title VII of the Civil Rights
Act, the Americans with Disabilities Act, and the Rehabilitation Act of
1973. We need to make our laws clear. Unlawful discrimination in the
workplace is unacceptable.
Mr. Chairman, I thank Chairman Scott and Congressman Sensenbrenner
for their work on this important issue, and I urge all of my colleagues
to support this bill.
Ms. FOXX of North Carolina. Mr. Chair, I yield 2 minutes to the
gentleman from Michigan (Mr. Walberg).
Mr. WALBERG. Mr. Chair, I rise today in opposition to H.R. 1230.
Let's be clear. All of us are against workplace discrimination of any
kind, and, Mr. Chairman, at my age I am certainly against age
discrimination.
All of us want to protect all American workers from discrimination,
but contrary to the bill's title, this legislation will end up harming
workers. It is a payout to trial lawyers by muddying legal standards
under the guise of a nice-sounding bill. Any plaintiff who files a
discrimination lawsuit under this bill is extremely unlikely to receive
any monetary awards, but the trial lawyers will still get paid for
their time.
Right now we have an economy that is booming. More than 7 million
jobs are unfilled across this country--that is 7 million jobs going
wanting right now. The pro-growth policies we put in place are working.
Our focus should be on protecting workers and encouraging greater
workforce participation and not rewarding lawyers through increased
opportunities to garner legal fees.
Sadly, this legislation was rushed through the Education and Labor
Committee for partisan purposes. It did not receive a thoughtful
consideration of bipartisan ideas. We can do better but, once again, we
are using precious time to debate political messaging bills instead of
solving problems.
Mr. Chairman, protecting our older workers and encouraging
appropriate job training are outcomes we can all agree on. But the crux
of this bill is designed to help attorneys, not workers.
I urge my colleagues to look beyond the title and vote ``no'' on this
payout to trial lawyers. We can do better, and we can protect all
workers, including those of age, from age discrimination.
{time} 1400
Mr. SCOTT of Virginia. Mr. Chairman, I yield 2 minutes to the
gentleman from Rhode Island (Mr. Langevin), who is the co-chair of the
Bipartisan Disabilities Caucus.
Mr. LANGEVIN. Mr. Chair, I thank the gentleman for yielding and for
his exceptional leadership in bringing this bill to the floor.
Mr. Chair, I rise in support of Protecting Older Workers Against
Discrimination Act.
Age is just a number. We hear that all the time, and there is so much
truth to it. Yet, each year, too many Americans over the age of 40 face
discrimination at the office. In fact, AARP reports that over half of
older workers have seen or experienced age discrimination.
Congress outlawed workplace discrimination against older Americans
over 50 years ago in the Age Discrimination in Employment Act. However,
due to a misguided 2009 Supreme Court ruling, older Americans still
face negative employment actions.
As the U.S. Equal Employment Opportunity Commission acknowledged in
2018, ``Age discrimination remains a significant and costly problem for
workers, their families, and our economy.'' This is simply
unacceptable, and it is wrong.
Employees over the age of 40 bring talent, experience, and wisdom to
an office. Additionally, these workers are more likely to stay at their
companies.
On average, Americans between the ages of 55 and 64 stick with their
employers three times as long as employees aged 25 to 34. Even more
disheartening is the effect age discrimination has on disabled workers.
Mr. Chairman, I include in the Record a letter from the Consortium
for Citizens with Disabilities in support of the bill.
Consortium for Citizens
With Disabilities,
Jan. 15, 2020.
Dear Member of Congress: As co-chairs of the Consortium for
Citizens with Disabilities (CCD) Rights Task Force, we write
to urge you to support passage of H.R. 1230, the Protecting
Older Workers Against Discrimination Act. We attach our
letter of June 10, 2019 in support of the bill. CCD is the
largest coalition of national organizations working together
to advocate for federal public policy that ensures the self-
determination, independence, integration, and inclusion of
children and adults with disabilities in all aspects of
society.
Sincerely,
Jennifer Mathis,
Bazelon Center for Mental Health Law.
Samantha Crane,
Autistic Self-Advocacy Network.
Co-Chairs,
CCD Rights Task Force.
Heather Ansley,
Paralyzed Veterans of America.
Kelly Buckland,
National Council on Independent Living.
____
Consortium for Citizens
With Disabilities,
June 10, 2019.
Hon. Bobby Scott,
Chair, Education and Labor Committee,
Washington, DC.
Hon. Virginia Foxx,
Ranking Member, Education and Labor Committee,
Washington, DC.
Dear Chairman Scott and Ranking Member Foxx: As co-chairs
of the Consortium for Citizens with Disabilities (CCD) Rights
Task Force, we write to express our strong support for the
Protecting Older Workers Against Discrimination Act (POWADA)
(H.R. 1230) and the Transformation to Competitive Employment
Act (H.R. 873). CCD is the largest coalition of national
organizations working together to advocate for federal public
policy that ensures the self-determination, independence,
integration, and inclusion of children and adults with
disabilities in all aspects of society.
POWADA would correct a Supreme Court decision, Gross v. FBL
Financial Services, Inc., that narrowly interpreted the Age
Discrimination in Employment Act to require that unlawful
discrimination be the ``but-for'' cause of an employer's
conduct in order to be actionable. Some courts have also
applied this but-for cause requirement to claims of
disability-based employment discrimination under the
Americans with Disabilities Act (ADA), making it harder for
people with disabilities to prevail on workplace
discrimination claims.
POWADA is an important opportunity to restore workplace
rights for people with disabilities. People with disabilities
have the lowest employment rates of any group tracked by the
Bureau of Labor Statistics, and their labor force
participation rate has consistently been less than half of
that of people without disabilities. Attitudinal barriers
among employers are among the top reasons for these low
rates. It is critically important to address barriers to
employment for people with disabilities, and POWADA would
help do that.
[[Page H261]]
We also support the Transformation to Competitive
Employment Act, which was discussed along with POWADA in your
May 21, 2019 hearing on Eliminating Barriers to Employment.
This bill would provide incentives to assist providers of
subminimum wage employment for people with disabilities to
transform the services that they provide to focus instead on
competitive integrated employment, and would make grants
available to state agencies to collaborate in developing the
services needed to support the individuals served by these
providers to secure and maintain competitive integrated
employment.
The Transformation to Competitive Employment Act represents
an important step toward ending the practice of paying
subminimum wages to employees with disabilities under Section
14(c) of the Fair Labor Standards Act and expanding the
supported employment services needed to ensure that people
with disabilities who are served in subminimum wage sheltered
workshops to receive the services they need to secure and
maintain competitive integrated employment. This bill is
another important measure that would bring needed expansion
of real employment opportunities for people with
disabilities.
We stand ready to work with you to help secure passage of
H.R. 1230 and H.R. 873, both of which are important steps to
address barriers to full and meaningful employment of people
with disabilities.
Sincerely,
Jennifer Mathis,
Bazelon Center for Mental Health Law.
Samantha Crane,
Autistic Self-Advocacy Network.
Kelly Buckland,
National Council on Independent Living.
Co-Chairs,
CCD Rights Task Force.
Mark Richert,
National Disability Institute.
Heather Ansley,
Paralyzed Veterans of America.
Mr. LANGEVIN. Mr. Chair, as it outlines, people with disabilities
already face significant barriers to competitive, integrated
employment, and we cannot allow another barrier to remain in their way.
Mr. Chair, I am proud to vote in favor of strengthening the Age
Discrimination in Employment Act, and I thank my good friend, Chairman
Scott, for championing this effort.
Mr. Chair, I urge my colleagues to join me in restoring justice for
American workers and voting in favor of final passage.
Mr. SCOTT of Virginia. Mr. Chair, I yield 2 minutes to the
gentlewoman from Pennsylvania (Ms. Wild), a distinguished member of the
Committee on Education and Labor.
Ms. WILD. Mr. Chair, I thank the gentleman from Virginia for
yielding.
Mr. Chair, I rise in support of this bill, the Protecting Older
Workers Against Discrimination Act.
Older workers who bring suit for age discrimination are often
ostracized at their workplace. They open their lives to invasive probes
by defense counsel through written discovery, by deposition, and,
ultimately, testifying at a trial.
These probes are often meant to embarrass rather than seek the truth.
When our older workers finally reach the courthouse door, it is often
almost closed before they even get to the courtroom.
As a former civil litigator, I have brought and defended multiple age
discrimination cases. These are very emotional and difficult claims.
No one likes getting older, but when one has to put one's age in full
view of all because of perceived discrimination at work, an older
worker then has to experience the scrutiny of lawyers, judges, and
juries to prove that he or she was discriminated against because of
age.
But worse, our older workers are, again, discriminated against when
they seek redress from the courts. That is because the Supreme Court,
in the 2009 case of Gross v. FBL Financial Services, ruled that an
older worker bringing an ADEA claim must prove that age was the ``but
for'' cause, the sole determining cause of an adverse employment
decision.
That Supreme Court decision sent a message of impunity to employers
looking to discriminate on the basis of age, and it set a precedent for
denying justice to older workers across our country. That is not the
standard used in other discrimination claims.
We must condemn employment discrimination in every form it takes.
Yet, our employment laws treat age discrimination claims under the Age
Discrimination in Employment Act differently, more harshly, than other
employment discrimination claims.
We have an opportunity to restore fairness in our legal system.
The CHAIR. The time of the gentlewoman has expired.
Mr. SCOTT of Virginia. Mr. Chair, I yield an additional 1 minute to
the gentlewoman from Pennsylvania.
Ms. WILD. Mr. Chair, H.R. 1230, the Protecting Older Workers Against
Discrimination Act, will ensure equal access to justice for those who
have suffered age discrimination. It will create uniformity in our laws
that a worker need prove only that age discrimination was one of any
number of motivating factors for an employer's action.
Older workers like Mr. Gross, the victim of workplace discrimination
and a misguided Supreme Court decision, deserve this bill.
Mr. Chair, I urge a ``yes'' vote on this bill.
Ms. FOXX of North Carolina. Mr. Chair, I yield myself such time as I
may consume.
Mr. Chair, my colleagues on the other side of the aisle contend that
the 2009 Supreme Court decision in Gross v. FBL Financial Services has
weakened age discrimination protections. They also contend the decision
had deterred workers from seeking relief from age bias. Let's look at
the data.
In the 9 years preceding the 2009 Supreme Court decision in Gross,
the Equal Employment Opportunity Commission, the EEOC, the primary
agency that enforces Federal laws that make it illegal to discriminate,
received an average of 19,320 charges of discrimination per year
relating to age discrimination--19,320.
An EEOC charge is a signed statement asserting employment
discrimination. In the 9 years following Gross, the EEOC received an
average 20,973 charges per year relating to age discrimination, a
slight uptick from the previous 9 years.
There is clearly no evidence workers have been discouraged from
filing age discrimination charges with the EEOC since the 2009 Supreme
Court decision.
We also found that age discrimination charges as a percentage of all
charges filed with the EEOC are approximately the same for the 9 years
before and after the Gross decision, 23.2 percent before and 22.8
percent afterward.
Again, this does not indicate workers are discouraged from filing age
discrimination charges. Congress should make fact-based decisions. In
this case, the facts do not support what H.R. 1230's proponents have
asserted.
Mr. Chair, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Chair, I yield 3 minutes to the
gentlewoman from Illinois (Ms. Schakowsky), the co-chair of the
Democratic Caucus Task Force on Aging and Families.
Ms. SCHAKOWSKY. Mr. Chair, I thank Chairman Scott for yielding to me,
and I rise in strong support of H.R. 1230, the Protecting Older Workers
Against Discrimination Act.
This month, House Democrats are taking historic action to fight for
our older Americans across the country. As cofounder and co-chair of
the Democratic Caucus Task Force on Aging and Families, I am proud to
announce that our Older Americans Bill of Rights, which we will
introduce in the coming weeks, already has over 100 cosponsors.
That resolution reflects a covenant with senior citizens and urges
the Congress to uphold the dignity of older Americans and their
families.
Through that resolution, House Democrats are affirming that seniors
have the right to live with dignity and with independence, including
the right to high-quality healthcare, the right to age in place, and
the right to financial security, including protecting against age
discrimination in the workplace.
The bill that we are voting on today signals that we are taking those
rights so seriously that we are not just making statements about it,
but we are taking bold action. The bill before us ensures that senior
citizens who have been victims of age discrimination can have their
claims adjudicated fairly without having to jump through all kinds of
arbitrary hoops created by a misguided court decision.
Protecting older workers is about more than just adjudicating claims
of discrimination. It is about ensuring
[[Page H262]]
older workers have the dignity that they deserve.
Mr. Chair, I urge all of my colleagues to support this measure.
Ms. FOXX of North Carolina. Mr. Chair, I yield myself such time as I
may consume.
Mr. Chair, older workers are doing quite well in today's modern
economy. According to the Bureau of Labor Statistics, BLS, employment
for workers age 65 and older tripled from 1988 to 2018, while
employment for younger workers grew by a third. The number of employed
people age 75 and older nearly quadrupled from 461,000 in 1988 to 1.8
million in 2018.
My colleagues on the other side of the aisle paint a bleak picture of
these valued workers standing in the workforce, when, in fact,
employment trends for older workers are positive in recent decades.
According to BLS, in 1998, the median weekly earnings of older full-
time employees was 77 percent of the median for workers age 16 and up.
In 2018, older workers earned 7 percent more than the median for all
workers.
The labor force participation rate for older workers has been rising
steadily since the late 1990s. Participation rates for younger age
groups either declined or flattened over this period.
Over the past 20 years, the number of older workers on full-time work
schedules grew 2\1/2\ times faster than the number working part time.
As I said, the picture is bright.
Mr. Chair, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Chair, I yield 2 minutes to the
gentlewoman from Florida (Ms. Frankel).
Ms. FRANKEL. Mr. Chair, I thank the gentleman from Virginia and my
colleagues for their work on this bill.
Mr. Chair, Ben Franklin signed the Declaration of Independence at age
70. Grandma Moses started painting at age 76. We should never, ever put
an age limit on our dreams or the ability to make a living.
But here is the thing, Mr. Chair: You can be a dedicated employee,
having spent decades building a career that you are proud of, taking
care of your family, putting your kids through college, saving for your
future. You need and want to work and, one day, when you are ready,
retire with dignity. But then, out of nowhere, your life is shattered.
Your bosses say: ``You are fired.''
They list their reasons. However, you know the truth. You have been
let go to make way for a younger employee. Now you are without a
salary, without your health insurance. You know your odds of getting a
new job are slim when you are competing with 20-year-olds and 30-year-
olds who are willing to work for lower wages and fewer benefits.
For too many seniors, Mr. Chair, this is a reality.
Nearly three in five workers have experienced age-based
discrimination, not only unfairly depriving the worker of a paycheck
but taking valuable workers out of the workforce.
Now, a Supreme Court decision has made it even harder to prove age
discrimination.
Mr. Chair, the Protecting Older Workers Against Discrimination Act
would give senior workers the protection they deserve and society the
workers that we need.
The poet Robert Browning said: ``Grow old with me, the best is yet to
be.''
Mr. Chair, I urge my colleagues to support this very, very good bill.
Ms. FOXX of North Carolina. Mr. Chair, I yield myself such time as I
may consume.
Mr. Chair, I really find it puzzling that our colleagues paint such a
dismal picture of employers. We hear this over and over and over again
from the other side of the aisle.
As my colleague from Michigan said a little while ago, we have 7
million unfilled jobs in the country right now. Every employer I know,
before I came to Congress and since I have been in Congress, cherishes
his or her employees. They don't dismiss employees out of hand just
because of their age. They just don't do that. They value their
employees.
{time} 1415
But the other side of the aisle has a real distorted picture of what
happens in the private sector.
I want to say that H.R. 1230 doesn't achieve the goals espoused by
the bill's sponsors, and let me provide much-needed truth in
advertising about this bill.
Under the bill as written, most plaintiffs, even if they are
successful, will not be entitled to receive any monetary damages,
payments, or reinstatement. Here is why.
Generally, a victim of discrimination is entitled to be made whole,
to be put in the position the individual would have been in without the
discrimination. This can include monetary damages, back pay,
reinstatement, attorney's fees, and court costs.
The Supreme Court, in the 2009 Gross case, eliminated the defense
that allows an employer to demonstrate it would have taken the same
employment action regardless of age. H.R. 1230 restores this employer
defense.
An overwhelming majority of employers will be able to make this
demonstration to the court, and when they make that demonstration,
under H.R. 1230, the plaintiff will not be entitled to receive any
monetary damages, payments, or reinstatement, although the plaintiffs'
attorneys will be entitled to fees. So the only party who wins in these
cases are the trial lawyers.
In addition, H.R. 1230 is specifically written to allow plaintiffs to
survive a summary judgment motion that would end their case. But the
plaintiff is in for a surprise later when, after going to court, he or
she receives no monetary damages, and the only one getting paid is his
or her attorney. To add insult to injury, the employee may have to pay
income taxes on the fees that are awarded to his or her attorney.
The bill's sponsors never explain how adding the provisions that
include mixed-motive claims and restoring the employer defense allowing
employers to demonstrate they would have taken the same action
regardless of the impermissible factor, such as age, will benefit
employees. In fact, these provisions will only help trial lawyers.
H.R. 1230's title and provisions are yet another case of false
advertising and empty promises for older workers.
Mr. Chair, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Chair, I yield 2 minutes to the
gentlewoman from New York (Ms. Stefanik), a distinguished member of the
Committee on Education and Labor.
Ms. STEFANIK. Mr. Chair, in my district, older Americans are staying
in the workforce longer than previous generations, making significant
contributions to our growing economy; yet these later years of a
worker's career are becoming increasingly unstable.
Over half of the workers over the age of 50 are pushed out of
longtime jobs before they are ready to retire.
The consequences of age discrimination are particularly harmful
because, once older workers are removed from the workforce, they are
more likely to remain unemployed. The economic strain that this can
cause for them and their families is significant.
But losing a career is bigger than just financial security.
Separating adults from the dignity of work has a broader impact on the
well-being of communities like my district, where I serve one of the
largest constituencies of older Americans in the entire country.
This bill strengthens the ADEA by reaffirming the pre-2009 standard,
simply, that age discrimination cannot be a motivating factor in
employment decisions.
I am proud to support H.R. 1230 on behalf of the many constituents of
the 21st District who have advocated for this bill for over a decade.
Ms. FOXX of North Carolina. Mr. Chair, I yield myself such time as I
may consume.
It is encouraging to see more and more older Americans continue to
make invaluable contributions in the workplace, and committee
Republicans are committed to eliminating discrimination in the
workplace to ensure a productive and competitive workforce.
Unfortunately, H.R. 1230 is an unnecessary and misleading bill that
does not ``protect older workers'' and is yet another case of false
advertising and empty promises.
Committee Democrats failed to allow a proper examination of H.R.
1230, depriving Members of the opportunity to review the legislation
appropriately before it was considered by the committee, and, as a
result, we are left
[[Page H263]]
with the ill-advised bill before us today.
This one-size-fits-all, government-knows-best approach is not the
answer and will significantly benefit trial lawyers at the cost of
older American workers.
I strongly encourage a ``no'' vote on H.R. 1230, and I yield back the
balance of my time.
Mr. SCOTT of Virginia. Mr. Chair, I yield myself the balance of my
time.
Mr. Chair, it has been more than a decade since the Supreme Court
heightened the burden of proof for workers seeking to legally challenge
age discrimination in the workplace; however, our responsibility to
ensure that no older Americans are forced out of a job or denied a work
opportunity because of age has not changed.
At a time when Americans are working longer into their lives, we need
policy solutions that empower older workers to challenge workplace
discrimination. We know that a 2018 survey by the AARP showed that
three out of five workers age 45 or older had seen or experienced age
discrimination in the workplace.
Some of my colleagues contend that this bill was rushed to the floor;
however, we must remember that this is a bipartisan proposal that has
undergone substantial debate since it was first introduced in 2009.
Over the past 10 years, Congress has deliberated on this legislation
through four hearings, including two hearings in the Committee on
Education and Labor.
Both the House and Senate have introduced and gradually improved this
legislation in the 111th, 112th, 113th, 114th, 115th, and the current
116th Congress. It is long overdue.
The Protecting Older Workers Against Discrimination Act is a
bipartisan, bicameral solution that restores protections for older
workers and ensures that we treat all workers facing discrimination,
whether it is on the basis of sex, race, religion, national origin, or
age, with consistency and fairness.
I want to thank Congressman Sensenbrenner for working with us to
bring this important legislation to the floor.
I want to remind everyone exactly what this bill does.
Under the bill and before 2009, if a person could prove
discrimination, that was the beginning of the case. The defendant would
be able to show that they would have been fired or not hired anyway,
but that is on the defendant to show. If they don't show that, then it
is proven discrimination, entitling the plaintiff to damages. If the
defendant can show that it would have done it anyway, discrimination is
already proved, and, as the gentlewoman from North Carolina pointed
out, attorney's fees would be available.
Under the new law, after 2009, not only do you have to prove that you
were discriminated against, told we don't higher old people, you also
have to prove that you would have gotten the job anyway.
Well, you don't have that information. You can't show that you would
have gotten the job. You don't know the qualifications of the person
who was hired.
So, Mr. Chair, we know that this legislation is extremely important.
Older workers want this legislation, as evidenced by a letter of
support from the Leadership Council of Aging Organizations, over two
dozen organizations representing senior citizens; another letter,
joined by 26 advocacy organizations supporting the bill; and, finally,
a letter of support from AARP.
Mr. Chair, I include these letters in the Record.
Leadership Council
of Aging Organizations,
December 9, 2019.
Hon. Mitch McConnell,
Majority Leader,
Hon. Chuck Schumer,
Minority Leader,
U.S. Senate, Washington, DC.
Hon. Nancy Pelosi,
Speaker,
Hon. Kevin McCarthy,
Minority Leader, House of Representatives,
Washington, DC.
Dear Majority Leader McConnell, Minority Leader Schumer,
Speaker Pelosi, and Minority Leader McCarthy: The Leadership
Council of Aging Organizations (LCAO) is a coalition of 69
national nonprofit organizations concerned with the well-
being of America's older population and committed to
representing their interests in the policy-making arena.
We are writing to urge you to vote for passage of the
Protecting Older Workers Against Discrimination Act (S. 485,
H.R. 1230). The Protecting Older Workers Against
Discrimination Act (POWADA) is bipartisan and bicameral
legislation sponsored in the Senate by Senators Bob Casey (D-
PA) and Chuck Grassley (R-IA). The House version is sponsored
by Representatives Bobby Scott (D-VA) and Jim Sensenbrenner
(R-Wl). The House Education and Labor Committee voted on June
11, 2019 to approve POWADA.
Age discrimination is pervasive and stubbornly entrenched.
Six in 10 older workers have experienced age discrimination
and 90% of them say it is common. It is even more pervasive
among older women and African American workers; nearly two
thirds of women and three-fourths of African Americans say
they have seen or experienced workplace age discrimination.
Courts have not taken age discrimination as seriously as
other forms of discrimination and older workers have fewer
protections as a result. Ten years ago, in Gross v. FBL
Financial Services Inc., the Supreme Court set a higher
standard of proof for age discrimination than previously
applied and much higher than for other forms of
discrimination. Since Gross, court decisions have continued
to chip away at protections. As a result, plaintiffs now have
to prove that age was a determinative, ``but-for'' cause for
their employers' adverse treatment of them. Before the Gross
case, it was enough for plaintiffs to prove that age was one
of the motivating factors. POWADA would restore the standard
of proof in age discrimination cases to the pre-2009 level,
and treat age discrimination as just as wrong as other forms
of employment discrimination. Moreover, because courts have
applied Gross' higher burden of proof to retaliation charges
and to disability discrimination, it would also amend the Age
Discrimination in Employment Act, Title VII's provision on
retaliation, the Americans with Disabilities Act, and the
Rehabilitation Act of 1973.
Please vote to restore fairness for older workers by
passing the Protecting Older Workers Against Discrimination
Act (S. 485, H.R. 1230).
Sincerely,
The Undersigned Groups of the Leadership Council of Aging
Organizations:
AARP; AFL-CIO; AFSCME; Aging Life Care Association;
Alliance for Retired Americans; American Association of
Service Coordinators; American Society on Aging; AMDA--The
Society for Post-Acute and Long-Term Care Medicine;
Association of Gerontology and Human Development in
Historically Black Colleges and Universities; B'nai B'rith;
Consumer Voice; International Association for Indigenous
Aging; Justice in Aging; Leading Age; National Adult
Protective Services Association; National Asian Pacific
Center on Aging (NAPCA); National Association for Hispanic
Elderly; National Association of Area Agencies on Aging
(n4a).
National Association of Nutrition and Aging Services
Programs (NANASP); National Association of Social Workers;
National Center and Caucus on Black Aging; National Committee
to Preserve Social Security and Medicare; National Council on
Aging; National Hispanic Council on Aging; National Senior
Corps Association; Pension Rights Center; PHI; Social
Security Works; The Gerontological Society of America; The
Jewish Federations of North America; Women's Institute for a
Secure Retirement (WISER).
June 10, 2019.
Hon. Bobby Scott,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
Hon. Virginia Foxx,
Ranking Member, Committee on Education and Labor, House of
Representatives, Washington, DC.
Dear Chairman Scott and Ranking Member Foxx: On behalf of
the undersigned organizations and the millions of workers we
represent, we urge all Committee Members to vote to support
H.R. 1230, the Protecting Older Workers Against
Discrimination Act (POWADA), sponsored by Chairman Scott and
Rep. Jim Sensenbrenner (R-WI). POWADA is bipartisan, limited
legislation to restore fairness and well-established legal
standards on workplace discrimination that were undermined by
certain court decisions.
To ensure equal treatment and equal opportunity in
employment, the civil rights laws make clear that
discrimination in the workplace ``because of'' a protected
characteristic or activity is unlawful. For decades, this
meant that discrimination may not play any role in employment
practices.
Yet, 10 years ago this month, the Supreme Court erected a
new and substantial legal barrier in the path of equal
opportunity for older workers. In Gross v. FBL Financial
Services, Inc. (2009), the Court imposed a much higher burden
of proof on workers who allege age discrimination than is
required of those who allege discrimination based on race,
sex, national origin, or religion. Proving that
discrimination tainted the employer's conduct was no longer
enough; after Gross, older workers must prove that
discrimination played a decisive role in the employer's
action.
Since the Gross decision, the Supreme Court and lower
courts have extended this same unreasonably difficult burden
of proof to other types of civil rights complaints:
Retaliation--In Title VII cases in which an employer
retaliates against a worker who challenges workplace
discrimination based on race, sex, or other grounds, the
worker
[[Page H264]]
must now prove that retaliation was the decisive cause for
their adverse treatment. University of Texas Southwestern
Medical Center v. Nassar (2013).
Disability discrimination--The Supreme Court has not yet
ruled on whether workers subjected to disability
discrimination must also meet this much higher standard of
causation, but four federal circuit courts of appeal have
ruled that disability-based employment discrimination must be
established under the higher, ``but-for'' causation standard.
This line of court decisions has made it exponentially more
difficult for workers who have experienced discrimination to
have their day in court and prove their case. These decisions
have also sent a terrible message to employers and the courts
that some types of discrimination are not as wrong, or as
unlawful, as other forms of discrimination.
POWADA would restore the causation standard that was in
effect and consistently applied by the courts before 2009,
and make Congress' intent clear that discrimination in the
workplace is never acceptable. Please support H.R. 1230 and
swiftly pass this bipartisan legislation.
Sincerely,
AARP, American Association of People with Disabilities
(AAPD), American Association of University Women (AAUW),
American Civil Liberties Union (ACLU), American Federation of
State, County, and Municipal Employees (AFSCME), Bazelon
Center for Mental Health Law, Disability Rights Education &
Defense Fund (DREDF), Easterseals, Equal Rights Advocates,
Justice for Migrant Women, Justice in Aging, Leadership
Conference on Civil and Human Rights.
National Council on Aging, National Disability Institute,
National Domestic Workers Alliance, National Education
Association (NEA), National Employment Law Project, National
Employment Lawyers Association, National Partnership for
Women & Families, National Women's Law Center, NETWORK Lobby
for Catholic Social Justice, Paralyzed Veterans of America,
The Arc, The Gerontological Society of America, Women
Employed, Women's Institute for a Secure Retirement (WISER).
____
AARP,
June 10, 2019.
Hon. Robert C. Scott,
Chairman, Education and Labor Committee,
House of Representatives, Washington, DC.
Dear Chairman Scott: On behalf of AARP's nearly 38 million
members, including the approximately 91,000 AARP members in
Virginia's Third Congressional District, I extend our sincere
thanks for leading efforts to introduce and move the
Protecting Older Workers Against Discrimination Act.
Older workers are a valuable asset to their employers and
to the nation's economy. Yet, AARP polling shows that over
60% of older workers believe they have seen or experienced
age discrimination in the workplace. Discrimination is
especially devastating when workers are terminated from long-
time jobs, and face entrenched age bias in hiring.
H.R. 1230 will correct the 2009 Supreme Court decision in
Gross v. FBL Financial Services, Inc. (and subsequent
discrimination cases that followed its reasoning) that made
it much more difficult to prove job discrimination, and will
clarify that proven discrimination may not play any role in
employment decisions. We think the Committee's May hearing
helped to highlight the need for POWADA, and thank you for
drawing attention to Jack Gross' presence there.
We look forward to the June 11th mark-up--as you may know,
this will be the first time that POWADA has been marked up
and voted on in committee--and to working with you and your
staff to shepherd this legislation through the House of
Representatives before the August recess. Thank you again for
your leadership and support.
Sincerely,
Nancy LeaMond,
Executive Vice President,
Chief Advocacy & Engagement Officer.
Mr. SCOTT of Virginia. Mr. Chair, I yield back the balance of my
time.
Ms. JOHNSON of Texas. Mr. Chair, today, I rise in support of H.R.
1230, the Protecting Older Workers Against Discrimination Act, which
will restore protections for older Americans against age discrimination
in the workplace. This legislation will ensure that older workers will
once again have the same legal protections against age discrimination
as those that exist for discrimination based on race, religion, sex, or
national origin.
As the cost of living rises and retirement savings shrink, Americans
now more than ever before are faced with the necessity of working later
into their lives. It is critical that we, as members of this body,
enact protections for older workers because if older workers lose their
jobs, they are far more likely to face long-term unemployment. We must
guarantee that age discrimination should be treated just as seriously
as any other form of workplace discrimination.
This bill amends four laws--the Age Discrimination in Employment Act,
Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, and the Rehabilitation Act. It ensures that the
higher burden of proof for age discrimination claims are lowered to
include mixed-motive claims. This equates to standard practices for
workplace discrimination claims based on race, religion, sex, or
national origin.
As a member of the House Democratic Caucus Task Force on Aging &
Families, I am proud to support our seniors and their families in
communities across our country through the Protecting Older Workers
Against Discrimination Act.
The CHAIR. All time for general debate has expired.
Pursuant to rule, the bill shall be considered for amendment under
the 5-minute rule.
In lieu of the amendment in the nature of a substitute recommended by
the Committee on Education and Labor, printed in the bill, an amendment
in the nature of a substitute consisting of the text of Rules Committee
Print 116-46, shall be considered as adopted.
The bill, as amended, shall be considered as the original bill for
the purpose of further amendment under the 5-minute rule and shall be
considered as read.
The text of the bill, as amended, is as follows:
H.R. 1230
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 ``Protecting Older Workers
Against Discrimination Act''.
SEC. 2. STANDARDS OF PROOF.
(a) Age Discrimination in Employment Act of 1967.--
(1) Clarifying prohibition against impermissible
consideration of age in employment practices.--Section 4 of
the Age Discrimination in Employment Act of 1967 (29 U.S.C.
623) is amended by inserting after subsection (f) the
following:
``(g)(1) Except as otherwise provided in this Act, an
unlawful practice is established under this Act when the
complaining party demonstrates that age or an activity
protected by subsection (d) was a motivating factor for any
practice, even though other factors also motivated the
practice.
``(2) In establishing an unlawful practice under this Act,
including under paragraph (1) or by any other method of
proof, a complaining party--
``(A) may rely on any type or form of admissible evidence
and need only produce evidence sufficient for a reasonable
trier of fact to find that an unlawful practice occurred
under this Act; and
``(B) shall not be required to demonstrate that age or an
activity protected by subsection (d) was the sole cause of a
practice.''.
(2) Remedies.--Section 7 of such Act (29 U.S.C. 626) is
amended--
(A) in subsection (b)--
(i) in the first sentence, by striking ``The'' and
inserting ``(1) The'';
(ii) in the third sentence, by striking ``Amounts'' and
inserting the following:
``(2) Amounts'';
(iii) in the fifth sentence, by striking ``Before'' and
inserting the following:
``(4) Before''; and
(iv) by inserting before paragraph (4), as designated by
clause (iii) of this subparagraph, the following:
``(3) On a claim in which an individual demonstrates that
age was a motivating factor for any employment practice,
under section 4(g)(1), and a respondent demonstrates that the
respondent would have taken the same action in the absence of
the impermissible motivating factor, the court--
``(A) may grant declaratory relief, injunctive relief
(except as provided in subparagraph (B)), and attorney's fees
and costs demonstrated to be directly attributable only to
the pursuit of a claim under section 4(g)(1); and
``(B) shall not award damages or issue an order requiring
any admission, reinstatement, hiring, promotion, or
payment.''; and
(B) in subsection (c)(1), by striking ``Any'' and inserting
``Subject to subsection (b)(3), any''.
(3) Definitions.--Section 11 of such Act (29 U.S.C. 630) is
amended by adding at the end the following:
``(m) The term `demonstrates' means meets the burdens of
production and persuasion.''.
(4) Federal employees.--Section 15 of such Act (29 U.S.C.
633a) is amended by adding at the end the following:
``(h) Sections 4(g) and 7(b)(3) shall apply to mixed motive
claims (involving practices described in section 4(g)(1))
under this section.''.
(b) Title VII of the Civil Rights Act of 1964.--
(1) Clarifying prohibition against impermissible
consideration of race, color, religion, sex, or national
origin in employment practices.--Section 703 of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-2) is amended by striking
subsection (m) and inserting the following:
``(m) Except as otherwise provided in this title, an
unlawful employment practice is established when the
complaining party demonstrates that race, color, religion,
sex, or national origin or an activity protected by section
704(a) was a motivating factor for any employment practice,
even though other factors also motivated the practice.''.
(2) Federal employees.--Section 717 of such Act (42 U.S.C.
2000e-16) is amended by adding at the end the following:
``(g) Sections 703(m) and 706(g)(2)(B) shall apply to mixed
motive cases (involving practices described in section
703(m)) under this section.''.
[[Page H265]]
(c) Americans With Disabilities Act of 1990.--
(1) Definitions.--Section 101 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12111) is amended by
adding at the end the following:
``(11) Demonstrates.--The term `demonstrates' means meets
the burdens of production and persuasion.''.
(2) Clarifying prohibition against impermissible
consideration of disability in employment practices.--Section
102 of such Act (42 U.S.C. 12112) is amended by adding at the
end the following:
``(e) Proof.--
``(1) Establishment.--Except as otherwise provided in this
Act, a discriminatory practice is established under this Act
when the complaining party demonstrates that disability or an
activity protected by subsection (a) or (b) of section 503
was a motivating factor for any employment practice, even
though other factors also motivated the practice.
``(2) Demonstration.--In establishing a discriminatory
practice under paragraph (1) or by any other method of proof,
a complaining party--
``(A) may rely on any type or form of admissible evidence
and need only produce evidence sufficient for a reasonable
trier of fact to find that a discriminatory practice occurred
under this Act; and
``(B) shall not be required to demonstrate that disability
or an activity protected by subsection (a) or (b) of section
503 was the sole cause of an employment practice.''.
(3) Certain anti-retaliation claims.--Section 503(c) of
such Act (42 U.S.C. 12203(c)) is amended--
(A) by striking ``The remedies'' and inserting the
following:
``(1) In general.--Except as provided in paragraph (2), the
remedies''; and
(B) by adding at the end the following:
``(2) Certain anti-retaliation claims.--Section 107(c)
shall apply to claims under section 102(e)(1) with respect to
title I.''.
(4) Remedies.--Section 107 of such Act (42 U.S.C. 12117) is
amended by adding at the end the following:
``(c) Discriminatory Motivating Factor.--On a claim in
which an individual demonstrates that disability was a
motivating factor for any employment practice, under section
102(e)(1), and a respondent demonstrates that the respondent
would have taken the same action in the absence of the
impermissible motivating factor, the court--
``(1) may grant declaratory relief, injunctive relief
(except as provided in paragraph (2)), and attorney's fees
and costs demonstrated to be directly attributable only to
the pursuit of a claim under section 102(e)(1); and
``(2) shall not award damages or issue an order requiring
any admission, reinstatement, hiring, promotion, or
payment.''.
(d) Rehabilitation Act of 1973.--
(1) In general.--Sections 501(f), 503(d), and 504(d) of the
Rehabilitation Act of 1973 (29 U.S.C. 791(f), 793(d), and
794(d)), are each amended by adding after ``title I of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et
seq.)'' the following: ``, including the standards of
causation or methods of proof applied under section 102(e) of
that Act (42 U.S.C. 12112(e)),''.
(2) Federal employees.--The amendment made by paragraph (1)
to section 501(f) shall be construed to apply to all
employees covered by section 501.
SEC. 3. APPLICATION.
This Act, and the amendments made by this Act, shall apply
to all claims pending on or after the date of enactment of
this Act.
SEC. 4. SEVERABILITY.
If any provision or portion of a provision of this Act, an
amendment or portion of an amendment made by this Act, or the
application of any provision or portion thereof or amendment
or portion thereof to particular persons or circumstances is
held invalid or found to be unconstitutional, the remainder
of this Act, the amendments made by this Act, or the
application of that provision or portion thereof or amendment
or portion thereof to other persons or circumstances shall
not be affected.
The CHAIR. No further amendment to the bill, as amended, shall be in
order except those printed in House Report 116-377. Each such further
amendment may be offered only in the order printed in the report, by a
Member designated in the report, shall be considered read, shall
debatable for the time specified in the report equally divided and
controlled by the proponent and an opponent, shall not be subject to
amendment, and shall not be subject to a demand for division of the
question.
Amendment No. 1 Offered by Mr. DeSaulnier
The CHAIR. It is now in order to consider amendment No. 1 printed in
House Report 116-377.
Mr. DeSAULNIER. Mr. Chair, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
At the end, add the following:
SEC. 5. REPORT BY GOVERNMENT ACCOUNTABILITY OFFICE.
Not later than 2 years after the date of the enactment of
this Act, the Government Accountability Office shall submit
to the Congress a report analyzing how the Equal Employment
Opportunity Commission investigates mixed motive age
discrimination claims arising under the Acts amended by this
Act, focusing on--
(1) the ability of the Commission to meet the demands of
its workload under such Acts;
(2) the plans of the Commission for investigating systemic
age discrimination in violation of such Acts;
(3) the plans of the Commission for litigation under such
Acts; and
(4) the options for improving the ability of the Commission
to respond to allegations of age discrimination in violation
of such Acts.
The CHAIR. Pursuant to House Resolution 790, the gentleman from
California (Mr. DeSaulnier) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from California.
Mr. DeSAULNIER. Mr. Chair, the American workforce is getting older
and working longer than ever before. In fact, by 2024, the Bureau of
Labor Statistics estimated that 25 percent of the U.S. workforce will
be composed of workers over the age of 55, and a third of those workers
will be older than 65.
At the same time, complaints of age discrimination are on the rise.
According to enforcement statistics, the EEOC received over 20,000
complaints of age discrimination in 2017, accounting for 23 percent of
all discrimination charges filed that year. That is a jump of 4,000
charges of age discrimination since the year 2000 and is likely a
severe underestimate, as cases of age discrimination often go
unreported.
More so, a 2018 study published by the AARP found that more than 60
percent of workers age 45 and older have seen or experienced age
discrimination, and 76 percent say that they consider age
discrimination to be a major obstacle to finding a new job.
The Protecting Older Workers Against Discrimination Act would help
address this problem by making the burden of proof for age
discrimination claims more equitable and more in line with other forms
of discrimination.
This has important implications for older workers. Fewer cases could
be thrown out or settled before trial, meaning long overdue justice for
older Americans. It would also have important implications for the
EEOC, ushering in a significant increase to the number of age
discrimination claims and, therefore, EEOC's workload.
My amendment goes one step further and ensures that Congress has a
full picture of the scope of age discrimination in the American
workforce and a better understanding of existing gaps in the EEOC's
ability to address and prevent workplace age discrimination. This would
allow Congress to better support the EEOC in its work, meaningfully
address age discrimination in the American workforce, and empower
millions of older Americans.
I would like to thank my colleague, Congressman Davis, for his
bipartisan partnership, and I urge support for this amendment.
Mr. Chairman, I reserve the balance of my time.
Ms. FOXX of North Carolina. Mr. Chair, I rise in opposition to the
amendment.
The CHAIR. The gentlewoman is recognized for 5 minutes.
Ms. FOXX of North Carolina. Mr. Chair, as my colleague from
California and my colleague from Illinois know, I respect both of them
greatly, and I would have thought that they would have come up with an
amendment that would have helped us understand this issue before we
pass such a bill instead of after we pass it.
As I understand it, this amendment requires the GAO to report on the
Equal Employment Opportunity Commission's ability to investigate and
process age discrimination cases after H.R. 1230 unnecessarily reduces
the burden of proof in these cases and nullifies decades of Supreme
Court precedent.
This amendment is not needed. The EEOC already reports on its
workload management and ability to respond to age discrimination
charges in the agency's annual budget request and recurring strategic
plans. We should not mandate that GAO waste resources on an
unnecessary, redundant report.
{time} 1430
In addition, assuming this GAO report discovers new information, such
information would be useful before the House votes to expand liability
in four employment statutes. The new law will be in place, and the
horse will have already left the barn by the time we receive the
information.
[[Page H266]]
We all agree, American workers should be protected from
discrimination in the workplace in every form possible. It is already
against the law to discriminate based on a workers' age, as it should
be. Congress has enacted separate nondiscrimination statutes, including
the Age Discrimination in Employment Act because age discrimination
includes issues that are different from other forms of discrimination
addressed in other statutes.
Under H.R. 1230, a plaintiff can argue that age was only a
motivating, not a decisive factor that led to an employer's unfavorable
employment action. Allowing such mixed-motive claims will lead to more
frivolous litigation and upset the careful balance Congress enacted in
the Age Discrimination in Employment Act.
Unfortunately, H.R. 1230 will not help workers. Under the bill, a
plaintiff is very unlikely to receive any monetary damages from a
defendant because most employers would be able to show to the Court
that they would have taken the same employment action, regardless of
the worker's age. The only parties who will win in nearly all cases in
H.R. 1230 are trial lawyers.
Disappointingly, Democrats have chosen to further their pro-trial-
lawyer agenda by bringing H.R. 1230 up for consideration, a bill
falsely advertised as a protection for workers. H.R. 1230 is yet
another one-size-fits-all mandate that fails to address the purported
problem, ignores real world experiences, and disregards decades of
Supreme Court decisions.
This amendment does nothing to address the fundamental flaws in H.R.
1230, is redundant with other government reports, and will not provide
the House with timely information. I urge my colleagues to oppose it.
Mr. Chairman, I reserve the balance of my time.
Mr. DeSAULNIER. Mr. Chairman, I yield 2 minutes to the gentleman from
Illinois (Mr. Rodney Davis), my friend.
Mr. RODNEY DAVIS of Illinois. Mr. Chairman, I thank my good friend
Mr. DeSaulnier from California for yielding. I also thank my good
friend Ms. Foxx, the ranking member of the Education and Labor
Committee and also Chairman Scott for your work on this.
I rise in support of Mr. DeSaulnier's amendment of which I am a
cosponsor. This amendment will require the GAO to report on the Equal
Employment Opportunity Commission's ability to meet the demands of its
workload in terms of the number of cases they receive.
If this important bill is enacted, the EEOC will inevitably be
required to review an increasing number of mixed-motive age
discrimination claims, which are worthy of review. This amendment is
important because to adequately address workplace discrimination that
relates to age or any other factor, we must have the resources to
address and correct the problem.
Mr. Chairman, I encourage my colleagues to vote ``yes'' on this
amendment.
Ms. FOXX of North Carolina. Mr. Chairman, I simply will say again
that I think we should vote ``no'' on this amendment. I think it is
redundant and unnecessary.
Mr. Chairman, I yield back the balance of my time.
Mr. DeSAULNIER. Mr. Chairman, I appreciate the comments by the
ranking member, and I hope we will continue our respect and friendship
even though we are in disagreement on this.
I urge support of this amendment, and I yield back the balance of my
time.
The CHAIR. The question is on the amendment offered by the gentleman
from California (Mr. DeSaulnier).
The amendment was agreed to.
Amendment No. 2 Offered by Mr. Rodney Davis of Illinois
The CHAIR. It is now in order to consider amendment No. 2 printed in
House Report 116-377.
Mr. RODNEY DAVIS of Illinois. Mr. Chairman, I have an amendment at
the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
At the end, add the following:
SEC. 5. STUDY AND REPORT TO CONGRESS.
Not later than 1 year after the date of the enactment of
this Act, the Secretary of Labor and the Equal Opportunity
Employment Commission shall jointly conduct a study to
determine the number of claims pending or filed, in addition
to cases closed, by women who may have been adversely
impacted by age discrimination as a motivating factor in
workplace discrimination or employment termination. The
Secretary of Labor and Chairman of the Commission shall
jointly submit to the Congress, and make available to the
public, a report that contains the results of the study,
including recommendations for best practices to prevent and
to combat gender and age discrimination as it relates to
women in the workplace.
The CHAIR. Pursuant to House Resolution 790, the gentleman from
Illinois (Mr. Rodney Davis) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from Illinois.
Mr. RODNEY DAVIS of Illinois. Mr. Chairman, I yield myself such time
as I may consume.
I rise in support of my bipartisan amendment to H.R. 1230, the
Protecting Older Workers Against Discrimination Act.
I would like to thank my friends on both sides of the aisle for their
cosponsorship of my amendment, including Representatives Chellie
Pingree, Elise Stefanik, Haley Stevens, Jennifer Gonzalez-Colon, Marcy
Kaptur, Abigail Spanberger, Betty McCollum, Mark DeSaulnier, David
Trone, Chris Smith, Pete Stauber, Will Hurd, and my colleague from the
great State of Illinois, Mike Bost. I also thank Chairman Scott for
his support for this amendment.
I was proud to cosponsor this bill, which provides an important fix
caused by the 2009 Gross v. FBL Financial Services, Inc. Supreme Court
decision. This bill will ensure that older workers can seek the justice
they deserve when they face age discrimination in the workplace on a
level playing field.
My amendment highlights the discrimination that women face in the
workplace based not only on gender but on age, as well.
According to a 2018 report from the EEOC, women, especially older
women, but also those at middle age, were subjected to more age
discrimination than most older men. In fact, some research suggests
that ageism at work begins at age 40 for women, 5 years earlier than
men. This is unacceptable, and we must find ways to correct the
problem.
This amendment would require the Department of Labor and the Equal
Employment Opportunity Commission to conduct a comprehensive study on
these age discrimination cases. DOL and the EEOC would then be required
to make recommendations for best practices to combat age discrimination
of women in the workplace.
The challenges that women face are not partisan issues, and together
we can and should, Mr. Chairman, make every effort to address them.
Employers should make, and have the right tools to make, conscious
efforts to ensure that women have equal rights and opportunities in the
workplace regardless of their age.
I encourage my colleagues to support my amendment to protect older
adults from age discrimination.
Mr. Chairman, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Chairman, I claim the time in opposition
to the amendment, even though I am not opposed to it.
The CHAIR. Without objection, the gentleman from Virginia is
recognized for 5 minutes.
There was no objection.
Mr. SCOTT of Virginia. Mr. Chairman, I yield 2 minutes to the
gentlewoman from Maine (Ms. Pingree), who worked hard with the sponsor
of this amendment.
Ms. PINGREE. Mr. Chairman, I thank Mr. Scott for yielding and also
his leadership on the bill we are considering this afternoon, the
Protecting Older Workers Against Discrimination Act.
Maine is the oldest State in the union by median age, and older
Mainers are an important part of our workforce. As we experience a
tight labor market with low unemployment, it is natural to think that
this workforce would have more opportunities available to them, and yet
we often hear about constituents who struggle to find and keep work
that supports themselves and their families.
When age discrimination is a factor, these workers deserve fair
treatment under the law. I am proud to be a cosponsor of the underlying
bill and urge my colleagues to vote ``yes.''
[[Page H267]]
I am also proud to offer this important amendment with my colleague,
Congressman Davis, that addresses the connection between age and gender
discrimination. Countless studies have shown that women are hired less
and paid less in many fields. Compounded by the real effects of age
discrimination, that means older women are disproportionately impacted
by bias in the workplace.
The National Bureau of Economic Research backs this up. In a 2015
field experiment, resumes from older women got substantially fewer call
backs from employers than those from older men, younger men, and
younger women. Our amendment would direct the Department of Labor and
the Equal Employment Opportunity Commission to collect data on the
disproportionate impact of age discrimination on older women and make
recommendations for how to address that impact.
Women are deeply, materially harmed by inequities in our economy. On
average, they take home lower salaries, are able to save less for
retirement, and receive less in Social Security benefits.
In tandem with age discrimination, all this means that we are leaving
older women vulnerable. Addressing this intersection is about economic
security, making sure that older women have the chance to work in fair
environments for equitable pay.
I ask my colleagues to support this amendment.
Mr. RODNEY DAVIS of Illinois. Mr. Chairman, may I inquire how much
time I have remaining.
The SPEAKER pro tempore. The gentleman from Illinois has 3 minutes
remaining.
Mr. RODNEY DAVIS of Illinois. Mr. Chairman, I yield as much time as
she may consume to the gentlewoman from Puerto Rico (Miss Gonzalez-
Colon), my good friend.
Miss GONZALEZ-COLON. Mr. Chairman, I thank Congressman Davis for
yielding to allow me to speak on this bipartisan amendment. And thank
you for allowing me to be a cosponsor of this amendment.
The Age Discrimination in Employment Act of 1967 was signed into law
more than 52 years ago. Yet, according to the American Association of
Retired Persons, AARP, three in five older workers have seen or
experienced age discrimination. Between 1997 and 2018, 423,000 workers
filed an age discrimination complaint averaging 20,142 claims per year.
This figure is 22 percent of all workplace discrimination claims
Furthermore, AARP reports that 76 percent see age discrimination as a
barrier to finding a new job. The Puerto Rico Department of Labor and
Human Resources states that there are more than 300,000 women age 35 or
older in the labor force on the island. This population represents 28.8
percent of all workers in an economy that has experienced a structured
downturn for more than a decade.
This amendment simply requires the labor secretary and the chair of
the Equal Employment Opportunity Commission to submit a report
determining the number of women who may have been discriminated against
because of their age.
As vice chair of the Congressional Caucus for Women's Issues, I am
proud to support this measure to assist aging women in the workforce.
Mr. SCOTT of Virginia. Mr. Chairman, I yield 2 minutes to the
gentlewoman from Texas (Ms. Jackson Lee).
Ms. JACKSON LEE. Mr. Chairman, I thank the gentleman from Virginia
for yielding. And I thank the sponsors of this very important
amendment, Mr. Davis and Ms. Pingree.
I rise to support the underlying bill, the Protecting Older Workers
Against Discrimination Act that I am very proud to have been a
cosponsor of.
What kind of thanks are we giving to hardworking Americans who,
because of the growth of this population senior citizens, older
Americans, they are ready to work in the workforce and provide their
experience, their thoughtfulness, and their leadership.
Unfortunately, a Supreme Court decision in the 2000s turned this
upside down by requiring those older Americans to be burdened by the
responsibility of saying, it is only the fact that we are old or that
there are not multiple reasons why I could have been fired. How
dangerous that is when an older American feels vulnerable?
The underlying amendment is also very important, dealing with women
who may have had to get out of the workforce to raise their children or
to not get promotions so they can tend to their children or other
matters or be a caretaker for other family members.
This is an important initiative to equalize the playing field, to
value those older Americans with experience who are ready to work, who
have been giving their best, and who are ready to be the kind of
experienced mentors in the workplace that really make America great.
I rise to support this legislation. It is vital to both impact and
correct a very bad decision by the United States Supreme Court, and I
believe that this will give the kind of affirmation to the value of all
Americans, and particularly our older Americans.
Mr. RODNEY DAVIS of Illinois. Mr. Chairman, I urge a ``yes'' vote on
this bipartisan amendment, and I yield back the balance of my time.
Mr. SCOTT of Virginia. Mr. Chairman, I yield myself the balance of my
time.
I want to thank the gentleman for his amendment and hope it passes.
I yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the gentleman
from Illinois (Mr. Rodney Davis).
The amendment was agreed to.
Amendment No. 3 Offered by Mr. Allen
The CHAIR. It is now in order to consider amendment No. 3 printed in
House Report 116-377.
Mr. ALLEN. Mr. Chairman, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Page 8, beginning on line 3, strike ``date of enactment''
and insert ``effective date''.
Add the following at the end:
SEC. 5. EFFECTIVE DATE.
(a) GAO Study.--Subject to subsection (b), this Act and the
amendments made by this Act shall not take effect until the
date the Government Accountability Office reports to the
Congress the results of a study such Office carries out to
determine whether--
(1) the Supreme Court's decisions in Gross v. FBL Financial
Services, Inc., 557 U.S. 167 (2009), and Texas Southwestern
Medical Center v. Nassar, 570 U.S. 338 (2013), have
discouraged individuals from filing age discrimination
charges and title VII retaliation charges with the Equal
Employment Opportunity Commission,
(2) such decisions have discouraged individuals from filing
age discrimination cases and title VII cases, and
(3) the success rates of age discrimination cases and title
VII cases brought has decreased.
(b) Limitation.--If the results of the study carried out
under subsection (a) show that individuals have not been
discouraged as described in such subsection and that the
success rate of cases described in such subsection has not
decreased, then this Act and the amendments made by this Act
shall not take effect.
The CHAIR. Pursuant to House Resolution 790, the gentleman from
Georgia (Mr. Allen) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Georgia.
{time} 1445
Mr. ALLEN. Mr. Chair, I yield myself such time as I may consume.
When considering any legislation, the House should first determine
whether the legislation is needed and, next, whether the bill under
consideration will adequately address or improve the situation.
The Committee on Education and Labor, unfortunately, did not have a
full hearing on H.R. 1230 and heard from only one witness, invited by
the Democrats, about the bill at a general hearing on multiple topics.
This legislation, at the very least, deserved a standalone hearing so
that committee members and the House could get more information to make
a considered decision regarding this legislation.
Publicly available data does not show the Supreme Court decisions in
Gross v. FBL Financial Services or Nassar v. University of Texas
Southwestern Medical Center have discouraged individuals from filing
discrimination charges with the EEOC, which is the primary agency that
enforces Federal laws that make it illegal to discriminate. A
discrimination charge is a signed statement asserting employment
discrimination.
The lone Democrat-invited witness who testified in favor of H.R. 1230
at the Committee on Education and Labor's hearing in May, which covered
[[Page H268]]
several topics and bills, acknowledged that it is difficult to quantify
the impact that the Gross decision has had on the number of older
workers who bring cases and the number of those who win them.
This witness also acknowledged that when we might have expected a
drop in charges due to Gross-inspired discouragement from employment
attorneys, there was a sizeable jump in the number of ADEA charges
filed at EEOC.
EEOC data shows that the rate of EEOC age discrimination charges as a
percentage of all charges filed is approximately the same for the 9
years before and after the Gross decision.
There has been a slight uptick in Title VII of the Civil Rights Act
retaliation charges as a percentage of all charges filed in the 4 years
following the Nassar decision, which does not indicate individuals have
been discouraged from filing these charges.
Court decisions show that the plaintiffs have continued to win age
discrimination and Title VII retaliation cases in the wake of the
Supreme Court's decisions in Gross and Nassar.
This amendment will provide Congress much-needed data on the impact
of the two Supreme Court cases at issue in H.R. 1230.
If the GAO report indicates Gross and Nassar have not discouraged
individuals from seeking relief or from achieving it, the bill would
not go into effect.
The House should look before it leaps, and Members should vote in
favor of this amendment to ensure this happens.
Mr. Chair, I reserve the balance of my time.
Mr. LEVIN of Michigan. Mr. Chairman, I rise in opposition to the
amendment.
The CHAIR. The gentleman is recognized for 5 minutes.
Mr. LEVIN of Michigan. Mr. Chairman, I rise today to speak in
opposition to Mr. Allen's amendment to delay the effects of this bill.
We do not need a study to tell us that a substantially higher burden
of proof for some forms of discrimination makes it far more difficult
for workers to get their day in court and to prevail. People may be
winning cases, but they are not going to court in the first place in
huge numbers.
When cases become materially more difficult to win, attorneys become
much less willing and able to represent workers in those cases.
We have already had a 10-year delay in restoring justice. No more
delays are necessary or warranted.
Age discrimination in the workplace is disturbingly pervasive.
According to an AARP study released last year, three in five older
workers report that they have seen or experienced age discrimination on
the job. That is 60 percent.
Nearly two-thirds of women and more than three-fourths of African
American workers age 45 and older say they have seen or experienced age
discrimination in the workplace. Three-fourths of workers age 45 and
older blame age discrimination for their own lack of confidence in
finding a job.
Mr. Chairman, I ran the workforce system in the State of Michigan for
4 years. Over and over again, I met workers who had lost their jobs
because of age discrimination. Most of them weren't even contemplating
taking legal action. They were just seeking help to find a new job.
I remember a gentleman from Bay City in Michigan who had been in
college years earlier when his dad died of a heart attack suddenly. His
mom said to him: ``Sorry, son. You know everybody has to help keep the
family afloat.'' So he dropped out of college, and he went to work in
retail.
I met him 30 years later. He had been a manager at a sporting goods
store, and the corporation looked at him and said: ``We can get
somebody way younger than that to run this store for half the money,''
and they fired him.
Thankfully, we had the No Worker Left Behind program in the State of
Michigan, and he was able to go back and finish his bachelor's degree.
But he wasn't even contemplating taking legal action under this
statute.
I ran into those cases over and over, Mr. Chairman.
The enactment of the Age Discrimination in Employment Act, or ADEA,
in 1967 was an important part of Congress' work to define and protect
civil rights in the 1960s. Over the years, the courts have failed to
interpret the ADEA as a civil rights statute and, instead, have
narrowly interpreted these protections and broadly construed the
statute's exceptions, compounding the barriers facing older workers.
The Protecting Older Workers Against Discrimination Act is a
bipartisan proposal that realigns the legal standard for proving age
discrimination, to simplify the requirement so employees have a genuine
mechanism to fight back under the law, just like with the standards for
proving discrimination based on sex, race, or national origin. It is
that simple.
This amendment is designed to keep this bill from going into effect
indefinitely. There is no deadline for GAO to conduct the study this
amendment requires and report back to Congress. It is a delay tactic
when we already have mountains of evidence telling us that older
workers are facing discrimination at work. They need protection now.
Finally, this Congress has been holding hearings on this issue for
years. We have had four hearings over the last 9 years. It is time to
act.
Mr. Chair, I urge my colleagues to join me in opposing this
amendment, and I reserve the balance of my time.
Mr. ALLEN. Mr. Chairman, again I repeat, the lone witness, a
Democratic witness at the Committee of Education and Labor's hearing in
May on H.R. 1230, acknowledged that it is difficult to quantify the
impact that the Gross decision had on the number of older workers who
bring cases and the numbers of those who win them.
This witness also acknowledged that we might have expected a drop in
charges due to the Gross-inspired discouragement from employment
attorneys, but that there was a sizeable jump in ADEA charges filed
with the EEOC.
I merely present this amendment to make sure that the committee and
this House look at the data before we have some law here that is going
to create, really, fewer opportunities for people to file these
charges.
Mr. Chair, I urge a ``yes'' vote on my amendment, and I yield back
the balance of my time.
Mr. LEVIN of Michigan. Mr. Chairman, I remind everybody that this is
a bipartisan proposal, and it has undergone substantial debate since it
was first introduced over a decade ago.
Over the past 10 years, Congress has deliberated on this bill through
four legislative hearings, including two hearings in the Education and
Labor Committee. Both the House and the Senate have introduced and
gradually improved this legislation in the 111th, 112th, 113th, 114th,
115th, and now the 116th Congress. It is long overdue that we take
action.
Mr. Chair, I urge all colleagues to oppose this amendment, and I
yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the gentleman
from Georgia (Mr. Allen).
The question was taken; and the Chair announced that the noes
appeared to have it.
Mr. ALLEN. Mr. Chair, I demand a recorded vote.
The CHAIR. Pursuant to clause 6 of rule XVIII, further proceedings on
the amendment offered by the gentleman from Georgia will be postponed.
Amendment No. 4 Offered by Mr. Brown of Maryland
The CHAIR. It is now in order to consider amendment No. 4 printed in
House Report 116-377.
Mr. BROWN of Maryland. Mr. Chair, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
At the end, add the following:
SEC. 5. REPORTS.
For the 5-year period beginning on the date of the
enactment of this Act, the Chairman of Equal Employment
Opportunity Commission shall submit to the Committee on
Education and Labor of the House of Representatives and the
Committee on Health, Education, Labor, and Pensions of the
Senate a report at 1-year intervals on the number of age
discrimination in employment claims brought under this Act
with the Equal Employment Opportunity Commission in the
period for which such report is submitted.
The CHAIR. Pursuant to House Resolution 790, the gentleman from
Maryland (Mr. Brown) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Maryland.
[[Page H269]]
Mr. BROWN of Maryland. Mr. Chair, I yield myself as much time as I
may consume.
I would like first to recognize the leadership of Chairman Bobby
Scott, my Potomac partner from Virginia, chairman of the Committee on
Education and Labor, and the hard work and the bipartisan work done in
that committee to bring this important bill to the floor.
Mr. Chair, older workers are critical to our economy and workplaces.
However, 6 in 10 older Americans report seeing or experiencing age
discrimination on the job. More than half of older workers are fired
from their jobs before they retire. If they find a new job, 9 in 10
never match their prior earnings.
A 2009 Supreme Court decision created a higher burden of proof for
workers claiming age discrimination than any other form of
discrimination.
Enforcement statistics from the Equal Employment Opportunity
Commission show the number of age discrimination complaints has been
rising.
In the year 2000, the EEOC received roughly 16,000 age discrimination
complaints. That number climbed to over 20,000 complaints in 2017, or
23 percent of all discrimination claims filed.
Mr. Chairman, my amendment would require the EEOC to submit an annual
report to Congress on the number of age discrimination claims under
this act.
It is important that Congress receives this information in a timely
and transparent way to ensure our older workers are being properly
protected and heard.
Discrimination is discrimination, whether it is age, race, gender,
faith, gender identity, or sexual orientation, and all should be
treated fairly under the law.
My amendment and the underlying bill are commonsense pieces of
legislation that would restore fairness for all workers.
Mr. Chair, I strongly encourage my colleagues to support my amendment
and the underlying proposed legislation.
Mr. Chairman, I yield back the balance of my time.
Ms. FOXX of North Carolina. Mr. Chair, I rise in opposition to the
amendment.
The CHAIR. The gentlewoman is recognized for 5 minutes.
Ms. FOXX of North Carolina. Mr. Chair, as I understand it, this
amendment requires the Chair of the EEOC, the primary agency that
enforces Federal laws that make it illegal to discriminate, to submit
five annual reports to congressional committees on the number of age
discrimination claims brought to the EEOC under this act.
These reports will come after H.R. 1230 unnecessarily reduces the
burden of proof in these cases and nullifies decades of Supreme Court
precedent.
Before discussing my concerns with this amendment, I admit I am
puzzled that it requires a study on how this legislation will affect
future age discrimination claims when evidence is sorely lacking that
there is a need for H.R. 1230 in the first place.
The lone witness who testified on H.R. 1230 before the Committee on
Education and Labor acknowledged that EEOC data has not shown workers
are discouraged from filing age discrimination charges with the EEOC
following the Supreme Court's 2009 decision in Gross v. FBL Financial
Services.
{time} 1500
This witness testified that: ``It is difficult to quantify the impact
that the Gross decision has had on the number of older workers who
bring cases and the number of those who win them.''
More information on whether H.R. 1230 is needed would have been
useful, but Democrats were unable to provide it.
With respect to this amendment, I have concerns about the feasibility
of the mandated reports. The amendment requires the EEOC to report each
year for 5 years on charges filed with the EEOC under H.R. 1230.
H.R. 1230 expands liability by allowing mixed-motive claims in cases
involving the Age Discrimination in Employment Act, ADEA, and three
other statutes. However, when a worker files charges with the EEOC, the
worker will likely not indicate whether the charge involves mixed
motives, nor is the EEOC likely to be able to classify charges as mixed
motive or not. The EEOC, therefore, will be unable to determine whether
charges have been filed pursuant to H.R. 1230.
I am very doubtful the EEOC would be able to comply with this
amendment's requirements, and Congress should not include an
unrealistic mandate on an agency.
As I said before, we don't need to be doing studies after the bill is
passed, Mr. Chair. We need to know whether this bill is necessary. We
don't think it is necessary, and doing the studies afterward seems a
little ridiculous.
The amendment does nothing to address the fundamental flaws in H.R.
1230 and places an unrealistic mandate on the EEOC. Therefore, I urge
my colleagues to oppose it.
Since the gentleman has yielded back, I believe, I will yield back
the balance of my time.
The CHAIR. The question is on the amendment offered by the gentleman
from Maryland (Mr. Brown).
The amendment was agreed to.
Amendment No. 5 Offered by Ms. Tlaib
The CHAIR. It is now in order to consider amendment No. 5 printed in
House Report 116-377.
Ms. TLAIB. Mr. Chair, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
At the end, add the following:
SEC. 5. REPORT BY THE UNITED STATES COMMISSION ON CIVIL
RIGHTS.
(a) Report.--With funds appropriated in advance to carry
out this section, and consistent with the operational and
procedural requirements of the United States Commission on
Civil Rights, the Commission shall submit to the appropriate
committees of the Congress a report containing an analysis of
the status of Federal mixed motive age discrimination in
employment claims made against Federal agencies, including--
(1) the number of such claims, specified by the Federal
agency against which such claims are made; and
(2) other related information the Commission determines to
be appropriate.
(b) Submission of Report.--The report required by
subsection (a) shall be submitted not later that 5 years
after the date of the enactment of this Act.
The CHAIR. Pursuant to House Resolution 790, the gentlewoman from
Michigan (Ms. Tlaib) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentlewoman from Michigan.
Ms. TLAIB. Mr. Chair, I would like to begin by thanking our chairman,
Chairman Bobby Scott, and his staff for working with me on this and
for their bipartisan leadership on this bill. I appreciate the
chairman's help in allowing me to better serve what I lovingly call
Michigan's 13th District strong.
Before us is an amendment that requires, within 5 years, the United
States Commission on Civil Rights to submit a comprehensive analysis
and review of Federal mixed-motive age discrimination in employment
claims made against Federal agencies.
Unfortunately, the Supreme Court has made it harder for older workers
to prove that they were discriminated against at their job based on
age.
This bill will strengthen protections against age discrimination for
our residents by placing greater accountability on the hiring practices
of large corporations rather than placing it on the shoulders of our
older working-class residents.
We know that when an older resident and worker loses their job, they
are far more likely to join the ranks of the long-term unemployed
community and that their age plays a significant role in this. I heard
countless stories back in my district of older residents who had
significant struggles landing other jobs after they were laid off
during the auto bailout in Michigan.
One of my residents, Lena, was laid off at 55 years old after 22
years with Ford Motor Company. She tried for 6 months to get a similar
position, to no avail. She told me: ``When they see 22 years with a
company, they know how old you are.'' Since then, she had to relocate
her family after her 9 months of severance pay ran out.
Passing this bill means that we will be safeguarding our older
Federal workers from having to go through similar challenges.
My amendment is a protection measure that requires the U.S.
Commission on Civil Rights to submit an analysis
[[Page H270]]
of mixed-motive age discrimination in Federal employment claims. We
have to fight back against these motivating factors that have nothing
to do with a person's experience or ability.
It is important that when we pass legislation, we ensure that it has
public data on the outcome in order to be transparent and accountable
to the residents who we serve back home.
For the sake of our residents and to protect our older workforce,
Congress must ensure that age is not again a motivating factor in
employment decisions.
Mr. Chair, I urge my colleagues to support this amendment, and I
reserve the balance of my time.
Ms. FOXX of North Carolina. Mr. Chair, I claim time in opposition to
the amendment.
The CHAIR. The gentlewoman is recognized for 5 minutes.
Ms. FOXX of North Carolina. Mr. Chair, I yield myself such time as I
may consume.
Mr. Chairman, as I understand it, this amendment requires the U.S.
Commission on Civil Rights to produce a report on mixed-motive claims
in age discrimination cases filed by Federal employees against their
Federal agency employers. I have several concerns with this amendment.
First, the U.S. Commission on Civil Rights is a small agency that is
not well equipped to undertake such a study. This amendment requires
``funds appropriated in advance,'' otherwise known as taxpayer dollars,
to be spent to do the report, which means the agency doesn't have the
resources to take on this mandate.
Second, while H.R. 1230 was only referred to the Committee on
Education and Labor, this amendment involves the interests of two other
committees that are not represented in this debate. The Judiciary
Committee has jurisdiction over the U.S. Commission on Civil Rights,
which is tasked with doing the report directed by the amendment, and
the Oversight and Reform Committee has jurisdiction over the employment
relationships between Federal agencies and their employees.
Third, this report will be submitted to Congress no later than 5
years after the bill goes into effect. I am not sure what good a report
published 5 years from now will do for us who are being asked to vote
on H.R. 1230 now.
Fourth, perhaps most importantly, there is a lack of evidence that a
report is needed on age discrimination claims in Federal agencies. The
Committee on Education and Labor received no evidence on this matter.
With H.R. 1230, Democrats have chosen to further their pro-trial
lawyer agenda with legislation that masquerades as a protection for
workers.
H.R. 1230 is yet another one-size-fits-all approach that fails to
address the purported problem, neglects the experience of workers and
employers, and disregards decades of Supreme Court precedent.
This amendment does nothing to address the fundamental flaws in H.R.
1230, and it directs a small agency to conduct a study without a clear
basis of the need for that study.
Mr. Chair, I urge my colleagues to oppose the amendment, and I
reserve the balance of my time.
Ms. TLAIB. Mr. Chairman, I think it is really important to note that
this came about because the last report that we could find on age
discrimination in this particular area is from the 1970s. It is about
time that we bring this forward.
We could not find anything anywhere that specifically looked at this
particular Federal mixed-motive age discrimination kind of study,
again, since the 1970s.
The burden of proof is just too high on Federal employees. We need to
go back and be very centered around making sure that there is equal
access to proving a discrimination case of this type.
Mr. Chair, I urge my colleagues to support this amendment, and I
yield back the balance of my time.
Ms. FOXX of North Carolina. Mr. Chair, this is a solution in search
of a problem.
We all know that it is almost impossible to fire a Federal employee.
In fact, I think the number is less than 1 percent who are fired each
year.
Maybe the reason we haven't had an updated report is because there
hasn't been the need for an updated report. I think, again, this is a
totally unnecessary amendment, and I am totally opposed to it.
Mr. Chair, I yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the
gentlewoman from Michigan (Ms. Tlaib).
The amendment was agreed to.
Mr. SCOTT of Virginia. Mr. Chairman, I move that the Committee do now
rise.
The motion was agreed to.
Accordingly, the Committee rose; and the Speaker pro tempore (Ms.
Tlaib) having assumed the chair, Mr. Cuellar, Chair of the Committee of
the Whole House on the state of the Union, reported that that
Committee, having had under consideration the bill (H.R. 1230) to amend
the Age Discrimination in Employment Act of 1967 and other laws to
clarify appropriate standards for Federal employment discrimination and
retaliation claims, and for other purposes, had come to no resolution
thereon.
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