[Congressional Record Volume 167, Number 193 (Wednesday, November 3, 2021)]
[House]
[Pages H6158-H6167]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROTECT OLDER JOB APPLICANTS ACT OF 2021
Ms. BONAMICI. Mr. Speaker, pursuant to House Resolution 716, I call
up the bill (H.R. 3992) to amend the Age Discrimination in Employment
Act of 1967 to prohibit employers from limiting, segregating, or
classifying applicants for employment, and ask for its immediate
consideration.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Pursuant to House Resolution 716, 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 117-14 is adopted and the bill, as amended, is considered read.
The text of the bill, as amended, is as follows:
H.R. 3992
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 ``Protect Older Job Applicants
Act of 2021'' or ``POJA Act of 2021''.
SEC. 2. PROHIBITION AGAINST LIMITING, SEGREGATING, OR
CLASSIFYING APPLICANTS FOR EMPLOYMENT.
Section 4(a)(2) of the Age Discrimination in Employment Act
of 1967 (29 U.S.C. 623(a)(2)) is amended--
(1) by inserting ``or applicants for employment'' after
``employees'', and
(2) by inserting ``or as an applicant for employment''
after ``employee''.
The SPEAKER pro tempore. The bill, as amended, is debatable for 1
hour equally divided and controlled by the chair and ranking minority
member of the Committee on Education and Labor or their respective
designees.
The gentlewoman from Oregon (Ms. Bonamici) and the gentleman from
Virginia (Mr. Good) each will control 30 minutes.
The Chair recognizes the gentlewoman from Oregon.
General Leave
Ms. BONAMICI. Mr. Speaker, I ask unanimous consent that all Members
have 5 legislative days in which to revise and extend their remarks and
insert extraneous material on H.R. 3992, the Protect Older Job
Applicants Act of 2021.
The SPEAKER pro tempore. Is there objection to the request of the
gentlewoman from Oregon?
There was no objection.
Ms. BONAMICI. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in support of the Protect Older Job Applicants
Act of 2021.
Protecting all workers from workplace discrimination is of the utmost
importance. Unfortunately, older workers have disproportionately been
affected by the COVID-19 pandemic with more workers over the age of 65
leaving the workforce in 2020 than in any year over the last six
decades.
The Protect Older Job Applicants Act of 2021 would help address
discrimination older workers face in the hiring process, and it is an
especially important step toward helping older workers reenter the
workforce as the Nation recovers from the COVID-19 pandemic.
Currently, the disparate impact provision in the Age Discrimination
in Employment Act, the ADEA, covers older employees seeking relief from
age discrimination, but not older job applicants. The bill we are
considering today would clarify the disparate impact provision and make
clear that older job applicants, not just older employees, are
protected.
This bill is a commonsense fix to the ADEA that would help protect
workers from ageist hiring practices. I urge my colleagues to support
this bill.
Mr. Speaker, I include in the Record a Statement of Administrative
Policy in support of H.R. 3992, the Protect Older Job Applicants Act of
2021.
Statement of Administration Policy
H.R. 3992--Protect Older Job Applicants Act of 2021--Rep. Garcia, D-TX,
and 62 cosponsors
The Administration supports House passage of the Protect
Older Job Applicants (POJA) Act of 2021. The legislation
would amend the Age Discrimination in Employment Act (ADEA)
of 1967, which prohibits, among other actions, age-based
discrimination in hiring, to specifically prohibit employers
from limiting, segregating, or classifying job applicants on
the basis of age.
The POJA Act of 2021 provides a critical clarification to
support older Americans during recruitment and hiring,
ensuring the ADEA's nondiscrimination protections extend
fully to older job applicants.
Workplace age discrimination, including at the application
stage, prevents people from fully accessing the American
dream and limits the contributions that they can make to our
shared prosperity. Ensuring equitable access to employment is
a priority for the Administration. The Administration
supports this legislation that protects older job applicants.
Ms. BONAMICI. Mr. Speaker, I reserve the balance of my time.
Mr. GOOD of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise today in opposition to H.R. 3992, the more
appropriately named profiting off of older job applicants act.
This, like so many other Democrat proposals, is a trial lawyer payout
disguised as a win for older workers. Democrats are addicted to
inventing problems that fit their slanted narrative of American life.
To liberal Democrats, older workers are vulnerable employees who can't
cut it in the modern economy, and that could not be further from the
truth. In fact, employment for workers ages 65 and older tripled from
1988 to 2018, the last 30 years, while employment for younger workers
only grew by a third.
During that same time, the number of workers aged 75 and older nearly
quadrupled. Despite what Democrats may have you believe, there are
several existing laws already protecting Americans of all ages against
discrimination in the workplace.
One of those legal protections which today's bill would amend is the
Age Discrimination and Employment Act of 1967, or the ADEA. It
prohibits employment discrimination based on age for job applicants and
employees at least 40 years old and up, as it should. Discrimination is
wrong. It is immoral, and it must be vigilantly addressed.
But this bill radically expands the definition of discrimination
against
[[Page H6159]]
older job applicants by authorizing claims against a disparate impact
theory; again, what happens, not what is intended by the employers.
This needlessly interferes with employers' routine recruitment and
hiring practices.
The ADEA already prohibits discrimination against job applicants, but
the ADEA does not authorize disparate impact claims by job applicants.
Congress has long recognized that addressing different forms of
discrimination require different laws. For example, Congress did not
include age in the Civil Rights Act of 1964 but passed a separate and
distinct law in 1967 prohibiting age discrimination; once again, the
ADEA.
Yet, H.R. 3992, this bill, abandons congressional precedence and
imprudently allows disparate impact claims by job applicants under the
ADEA. The most destructive impact of this bill would be the assault on
existing programs that employers are using all across the country which
creates job opportunities for workers, students, and prospective
employees.
{time} 1645
Under this bill, routine recruiting efforts at high schools, Job
Corps centers, and colleges, including job fairs, would be legally
suspect because these students are typically younger, on average.
In addition, simply posting a job opening on a job search website
could land an employer in a world of trouble because users of those
websites tend to be younger.
Apprenticeship and internship programs would also be threatened
because the participants tend to be younger, and employers tend to hire
full-time employees from these programs.
These examples are not mere speculation. The AARP, one of the
Democrats' favorite big donors, has already backed class action
litigation challenging college recruitment as violating the ADEA.
If this bill is enacted into law, a tsunami of lawsuits attacking
these valuable and effective programs would follow, putting millions of
job opportunities in jeopardy and forcing employers into court to
defend them. But that is what our friends across the aisle seem to
want.
Endangering hiring practices, when there are over 10 million unfilled
jobs, flies in the face of common sense and good governance. Surely, my
Democrat colleagues know better.
They should also be aware of their own hypocrisy, as I can assure you
that every Member of Congress has recruited from colleges,
universities, or on job search sites to fill staff and intern
positions, the vast majority of which have been hires of younger age.
By failing to hold even a single hearing on this bill and refusing to
adopt any commonsense Republican amendments, Democrats exposed their
true intentions, to rush through yet another piece of misguided
legislation to appease the left.
Additionally, Democrats refused to allow floor debate on commonsense
amendments offered by Republicans to protect job opportunities for
workers and determine whether the bill is even necessary.
For example, Representative Miller-Meeks submitted an amendment to
make sure the bill does not prohibit an employer from recruiting or
interviewing students attending high schools, Job Corps centers,
colleges, or universities.
Representative Allen submitted an amendment to ensure the bill does
not prohibit employers from operating apprenticeship or internship
programs, and Representative Letlow submitted an amendment to protect
employers' ability to post job openings on job search websites.
If this were truly about crafting high-quality legislation that
protects older job applicants, then this bill's sponsors should have
been clamoring for a thorough and bipartisan analysis of this bill.
This legislation was first introduced in June of this year and
considered by the committee only a month later. Now, we are here
debating it on the floor without any meaningful review.
Because H.R. 3992 was rushed through the legislative process, we
cannot even begin to understand its sweeping and unintended
consequences. But what we do know about this bill should concern every
Member of this body.
The profiting off older job applicants act will jeopardize job
opportunities for millions of Americans, both young and old, and will
make the Democrats' trial lawyer friends yet richer, once again.
Congress and the Supreme Court have long recognized that different
forms of discrimination require different legal solutions. This bill
abandons that precedent and will not only set off a slew of legal
challenges, but it will also hamstring our job creators attempting to
rebuild during a once-in-a-century pandemic and inflation crisis.
Mr. Speaker, I strongly urge a ``no'' vote on this misguided
legislation, and I reserve the balance of my time.
Ms. BONAMICI. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I would like to correct the record on a couple of
points. In fact, the committee did have a hearing on this subject on
March 18, 2021, in the Subcommittee of Civil Rights and Human Services.
It was a hearing called ``Fighting for Fairness: Examining Legislation
to Confront Workplace Discrimination.''
Additionally, my colleague's argument simply misstates the law with
regard to places like college campuses or online recruitment. For
example, employers will always have the freedom to choose the time,
place, and manner in which they recruit. Whether it be on a college
campus or LinkedIn, employers face no risk of liability if they can
show it was based on reasonable factors other than age, such as a
larger pool of highly trained individuals from which to recruit.
The argument that anyone who wasn't available to be recruited on
LinkedIn or enrolled in college would be able to sue an employer for
age discrimination is a misunderstanding of this law, Mr. Speaker.
Finally, Title VII has outlawed disparate impact discrimination since
1972. If there are any doubts that these sorts of laws would wipe out
recruiting practices, we would have seen those consequences. In fact,
this law is to correct a couple of circuits that have gone a different
way from the rest of the country. In 9 out of 11 circuits, it is
already the law. So any parade of horribles that my colleague is
suggesting, we would have seen that already and we have not.
Mr. Speaker, I yield 5 minutes to the gentlewoman from Texas (Ms.
Garcia), the sponsor of the bill.
Ms. GARCIA of Texas. Mr. Speaker, I rise in support of my bill, H.R.
3992, the Protecting Older Job Applicants Act of 2021.
I want to start by thanking my Republican co-lead on this bill, the
dean of the House, Congressman Don Young of Alaska. I also want to
thank Chairman Bobby Scott, my Democratic co-lead, for his tireless
leadership to protect all workers, but especially older workers and
older jobseekers.
Mr. Speaker, this bill will fix a loophole in current law that fails
to protect older job applicants during the hiring process.
Despite what many people assume, older job applicants are not
protected under the current Age Discrimination in Employment Act
protections, commonly called ADEA.
Mr. Speaker, my bill seeks to fix this. This bill would allow older
job applicants to bring claims for disparate impact discrimination
hiring against employers.
While that may sound like legal technicalities and legal mumbo-jumbo
to some people watching back home, Mr. Speaker, disparate impact claims
are very, very important. They are important because some hiring
practices might seem age-neutral on their face, but they actually
impact job applicants that are older disproportionately.
The bill would clarify the Age Discrimination in Employment Act to
give job applicants the right to bring these claims forward. Three-
fourths of workers age 45 and older blame age discrimination for their
lack of confidence in finding a new job.
But it is not just simple statistics. It is about real people and
real stories.
It is like one of my neighbors, an engineer who can't find meaningful
work after losing his job. He is about 60, but he is always told he is
too experienced and overqualified. But he says it is all about his age.
It is about Rebecca in California, who is age 75, forced to provide
her birth
[[Page H6160]]
date on a web-based job application where the year of her birth isn't
even an option on a drop-down menu for the birth year. So she can't
even apply, because the options don't include the year of her birth.
It is like Carolyn in Tennessee, age 52. She was let go from her job
in March of last year. She has filed 65 job applications but gotten
zero interviews. She has a BS in business finance and an MA in
educational administration. She says people half her age are getting
those jobs instead. She was told she needed more recent, relevant
experience.
Mr. Speaker, I include in the Record an article sharing Carolyn's
story entitled ``Older job seekers find experience, education may not
be enough in pandemic.''
[From NewsChannel5 Nashville, Jan. 12, 2021]
Older Job Seekers Find Experience, Education May Not Be Enough in
Pandemic
(By Levi Ismail)
Nashville, Tenn. (WTVF).--Older workers are having trouble
making it back into the workforce and studies show it's part
of a trend we haven't seen in nearly 50 years.
In the first six months of the pandemic, older workers (55
and older) were 17 percent more likely to become unemployed
than their slightly younger peers.
Carolyn McKeown is 52 years old, but says she hasn't had
much luck finding a job in the nearly one year it's been
since she was let go back in March 2020. She first reached
out to us in September and since then, she's filed 65
applications with zero interviews. It's just finding the
right time and the right place,'' McKeown said.
McKeown has a Bachelor's degree in business and finance, as
well as a Master's degree in educational administration. For
decades she's worked in HR, insurance, and mortgage lending,
which she thought could be a valuable experience to any
prospective employer.
When jobs continued to turn her down, she began surveying
anyone who made the time to listen. McKeown asked how these
people half her age were getting jobs and many of them
explained that it was simply an option right out of school.
``I feel as though we're being scrutinized more heavily and
told that we need recent relevant experience, as though we've
never worked before,'' McKeown said:
The US Census Bureau found that for the first time in
nearly 50 years, jobseekers (55 and older) are facing higher
rates of unemployment than those a few years younger. They
also found that older workers stayed unemployed longer.
Tennessee Dept. of Labor & Workforce Development explains how
it works.
``This program right here can help a senior make themselves
more marketable or maybe upgrade an existing skill or teach
them an entirely new skill,'' Cannon said.
Cannon explains that these may not all be full-time jobs,
but they are jobs capable of helping someone earn an income
at a time where the money is tight.
McKeown is at the point where she's barely managing to pay
her bills. She's tapped out her savings and can no longer
afford health insurance. Not unlike the many other older
workers who now can't imagine the idea of voluntary
retirement.
That said, she's not looking for anything part-time or
without benefits. She acknowledges that some of her
qualifiers may keep her from getting certain jobs, but
McKeown says she knows her worth. Under a much different
time, her credentials could have landed her a high-paying job
with benefits. She's not expecting the same pay as before,
but McKeown says she should be afforded similar opportunities
she knows are out there.
For McKeown, she knows some employers think it's too
expensive to train an older worker in this more virtual
workforce. She says she's learning every day how to keep up,
so this stigma that older workers are somehow less capable is
the only thing outdated.
``How do they determine what the job applicant is lacking.
A job gap doesn't mean you lack the skills. It just means
you're lacking time,'' McKeown said.
What is the rebound?
As Middle Tennessee works to rebound from the impact of the
Coronavirus, we want to help. Whether it's getting back to
work, making ends meet during this uncertain time, or
managing the pressure, we're committed to finding solution.
In addition, we want to tell your stories of hope,
inspiration, and creativity as Middle Tennessee starts to
rebound.
Ms. GARCIA of Texas. Mr. Speaker, another story. Diana, age 53, was
forced to take early retirement after her company downsized. She wasn't
ready to quit working, but she hasn't found a job.
The loaded question in the application, she says, is always: When did
you graduate from high school? This question tells her age. Because of
that, she has gotten no interviews.
These folks are not alone. I want to read some comments from other
jobseekers in their 50s about their experience job hunting:
``No jobs for older people.''
``Jobs for seniors 60 plus who still want to work are not so
plentiful in rural communities.''
``Age discrimination is alive and well in the job market.''
``No one hires old people.''
``I am 63 with no job . . . still trying to find work.''
Mr. Speaker, I include in the Record an article entitled: ``I'm not
dead: Inside the struggle of finding work after 50 in North Texas.''
[From the Dallas Business Journal, Feb. 11, 2019]
`I'm Not Dead': Inside the Struggle of Finding Work After 50 in North
Texas
(By Jason Wheeler)
The good news first: Diana Hinton's dog Maxwell has been on
a lot of walks lately. The bad news: She's had time for that.
Hinton's employer of almost three decades downsized, and
she had to take early retirement long before she was ready.
A recent data analysis by Pro Publica and the Urban
Institute found that early retirements are often not as
voluntary as they sound. The analysis also found that
shockingly high percentages of workers over 50 are forced out
of their jobs before they can reach retirement age.
On one of those frequent walks with Maxwell, Diana Hinton
told us she and her dog thought their outings would be for a
limited time only.
``I think the first few weeks he was looking at me like
aren't you going somewhere?'' Hinton said.
Those few weeks became a few years.
When we talked to her in September 2018, Diana was busy
going about her usual routine of filling out applications
online and sending out resumes. Often, she found herself
paining over that dreaded question on the application form.
``Here we go . . . `when did you graduate high school?'
Which I hate because I know they start adding in their
heads--she's gotta be in her 50s,'' Hinton said.
She was 53 at the time. When we talked to her, we had just
begun a series of reports on the middle class called ``Stuck
in the Middle.''
On social media, we heard from so many people in the 50-
plus age group talking about the difficulty of finding
employment. A sampling of the messages:
``. . . No jobs for older people.''
``Jobs for seniors 60+ who still want to work are not so
plentiful in the rural communities.''
``Age discrimination is alive and well in the job market.''
``No one hires old people.''
``I am 63 with no job . . . still trying to find work . .
.''
Many respondents also bolstered another of the findings
made by Pro Publica and the Urban Institute--that being
derailed so close to retirement age is devastating to
retirement plans. A sampling of the messages about how long
people will have to work:
``I'm still working at 78.''
``. . . gonna die working.''
``Looks like I'm working full time until dead, and leaving
nothing behind.''
``Foreverrrrrrrrrrrrr . . .''
``Till the end.''
``We don't even talk about retirement age anymore,'' said
Claire Turner, deputy director of the Elder Financial Safety
Center at The Senior Source. ``People are wanting to work as
long as they can. So they get the question in the interview
where do you see yourself in five years? I see myself
working.''
The Senior Source specifically helps people 50 and over to
search for jobs. They offer free resume workshops, conduct
mock job interviews, and teach software and social media
classes, among other things.
Each year, the center helps as many as 2,000 older workers,
and Turner said, unequivocally, ``There is age
discrimination. It is true. The average duration of
unemployment nationwide is 22.7 weeks, but for older adults,
it is 32 weeks.''
``I think seniors bring a lot to the table,'' said 64-year-
old Michael Dade, who took classes at The Senior Source after
he had to take early retirement from an accounting job at an
oil company that downsized. ``I felt like I had to be twice
as good as some young person.''
Dade cautioned others in his age group who still have jobs
to stay hungry.
``I have seen people who basically put it in cruise control
at (age) 55,'' Dade said. ``No one has paid enough dues to
have a guaranteed job now. Any day you go to work you have to
think it could be your last day and plan that way.''
Dade now drives the van and coordinates volunteers at The
Senior Source. He advised younger people to pay attention to
the plight of older workers who lose, or are forced out of,
their jobs. He warned those younger workers that they, too,
will be older workers someday. He also said the older worker
being forced out of a job could be their parents.
Dade suggested that younger people reduce their debt load,
save as much as they can, maximize contributions to their
retirement plans, and learn as many marketable skills as
possible. That's something he took advantage of in his former
job.
``I tried to make myself learn as much as I could,'' Dade
said.
Hinton also told us she took every training her former
company offered, and she advises others to do the same,
because it beats paying for those classes on your own
someday.
[[Page H6161]]
Pro Tip: Claire Turner said it's not enough to simply
acquire knowledge and skills--you have to be able to
communicate those assets to potential employers, while still
sounding humble. For instance, if you have always been a
dependable worker, you would say something like, ``Past
employers say my attendance is perfect . . . you want to say
people `say' I am good at this. That's always a great way to
deliver that message,'' Turner said.
A bright spot: Turner said she is seeing evidence that the
tight job market created by a low unemployment rate is
helping older workers who are unemployed.
``Employers are very open to older workers that they may
not have been before,'' Turner said.
We checked back with Hinton four months after our first
visit. She has seen no sign of that new openness to older
workers. Hinton's situation had become more desperate.
A few temporary gigs had come and gone, but she had yet to
land a permanent job, despite decades of customer service
experience, much of it in management.
The lack of employment was impacting most aspects of her
life:
Housing: ``Of course, the house, we don't want to lose it.
It may get to that point--not maybe soon--but maybe in the
next six (months) to a year.''
Health: ``I have medication I can't afford so I don't take
it.''
Retirement funds (which have depleted some): ``I don't even
want to check my Fidelity account.''
We asked her how many jobs she has applied for since she
lost permanent employment two years ago.
``Oh my God!'' she said. ``I would say . . . over 250. I
got out of that . . . maybe 10 interviews.''
That lines up with a 2017 study done by the Federal Reserve
Bank of San Francisco, in which researchers sent out tens of
thousands of fictitious applications from different aged
artificial applicants who had similar backgrounds. They found
that younger workers were significantly more likely to get a
call back from prospective employers than older workers were.
``I'm articulate,'' she said. ``I have an energy. I'm not
dead. Whatever the curse is . . . whatever it is it needs to
go away.''
Worried that her expansive resume might make her look
overqualified (and over age), she shortened it from four
pages to two.
Pro Tip: Claire Turner at The Senior Source said, ``When I
was looking, I had 25 resumes. Every single word was true,
but I had three different careers. We see all the time people
walk in with a resume that is very impressive, with all these
years of experience. They present that for a customer service
position and there is no correlation. The employer doesn't
even understand why you applied. So it is a matter of
tailoring your resume. It is definitely honest and factual;
it is just showing things that are relevant. The industry
standard is that people only show the last ten years.''
As we wrapped up our second visit with Hinton, she was
still filling out applications. But she had also just
received another rejection email.
``It says, `Dear Diana, thanks for your interest in our
customer service position. Unfortunately you have not been
selected to continue in our process for this position.' ''
Her dog, Maxwell, rests at her feet.
``Maybe he is my calm,'' Hinton said. ``He's calming me.''
Hinton wonders if she will ever leave him again to go back
to work.
``I am pretty strong, but I am almost sliding down, and I
have to keep telling myself, `Come on, Diana, you can do
this.' I didn't think it was going to be this hard.''
Ms. GARCIA of Texas. Mr. Speaker, this bill will help people trying
to recover from this pandemic, including people who lost their job in
the middle of their career who now fear they will never work again
because of discriminatory hiring practices.
This is not about trial lawyers. It is not anything about what some
of my colleagues across the aisle have talked about. It is just a
simple clarification bill. It clarifies that job protections for older
Americans begin at the time of the application.
I want to thank the AARP, the National Council on Aging, the
Leadership Council of Aging Organizations, the American Federation of
Government Employees, and the White House for supporting efforts and
this bill.
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Ms. BONAMICI. Mr. Speaker, I yield an additional 2 minutes to the
gentlewoman from Texas.
Ms. GARCIA of Texas. Mr. Speaker, I include in the Record the letters
of endorsement for this bill from the AARP and the National Council on
Aging that I just mentioned.
AARP,
September 27, 2021.
Hon. Nancy Pelosi,
Speaker of the House,
House of Representatives, Washington, DC.
Hon. Kevin McCarthy.
Republican Leader,
House of Representatives, Washington, DC.
Dear Speaker Pelosi and Leader McCarthy: On behalf of our
nearly 38 million members and all older Americans nationwide,
AARP writes in support of H.R. 3992, the Protect Older Job
Applicants Act (POJA), important legislation sponsored by
Rep. Sylvia Garcia (D-TX) to protect older job applicants
against age discrimination.
Older workers are valuable assets to their employers and
the economy, and additional protections are needed as the
country recovers from COVID-19. Despite their value, 78
percent of older workers reported having seen or experienced
age discrimination in the workplace in 2020, up markedly from
61 percent in 2018. The pandemic has significantly diminished
the job prospects and future retirement security of older
workers. Americans age 55 and up experience long-term
unemployment at a higher rate compared to younger job seekers
and age discrimination makes it harder for them to return to
the workforce.
We are pleased that this bill extends Age Discrimination in
Employment Act (ADEA) protections to job applicants so
everyone will have an equal opportunity when applying for a
job. H.R. 3992 complements the Protecting Older Workers
Against Discrimination Act (H.R. 2062), a bipartisan,
commonsense bill that the House of Representatives passed on
June 23. POJA goes a step further to ensure the legal rights
of applicants for jobs are protected as well.
AARP strongly supports POJA and urges you to enact it as
soon as possible:
Sincerely,
Bill Sweeney,
Senior Vice President,
Government Affairs.
____
NCOA,
National Council on Aging,
July 23, 2021.
Hon. Sylvia R. Garcia,
Washington, DC.
Dear Congresswoman Garcia: On behalf of the National
Council on Aging, I am pleased to endorse your legislation to
strengthen protections for older workers under the Protect
Older Job Applicants Act of 2021 (H.R. 3992).
Ageism is one of the last socially acceptable forms of
discrimination in our society--and it remains stubbornly
ingrained in too many workplaces. AARP research shows that in
2020, nearly 80 percent of older workers reported having seen
or experienced age discrimination at work.
As age discrimination has increased during the pandemic, so
have job losses among older workers. Nearly 2 million workers
aged 55 and older were unemployed in June, and 55.3 percent
were long-term unemployed (27 weeks or longer), a rate that
exceeds that of their younger counterparts. Research from The
New School Schwartz Center for Economic Policy Analysis
reveals that another 1.7 million older adults abandoned the
job search and retired earlier than anticipated, setting many
of them up for financial insecurity in their later years.
As Congress takes steps to promote economic recovery and
job creation and placement, Age Discrimination in Employment
(ADEA) protections must be restored and strengthened. In
2019, the 7th U.S. Circuit Court of Public Appeals (Kleber v.
CareFusion Corp., No. 17-1206) ruled that ADEA protections
apply only to current employees and do not extend to external
applicants. The Protect Older Job Applicants Act will restore
the original ADEA intent and clarify and codify these crucial
protections for older workers seeking new employment.
It's time to treat age discrimination the same as every
other unlawful bias in the workplace. We applaud your
leadership on behalf of older workers and urge Congress to
pass your legislation quickly to ensure they have equal
access to employment opportunities as the economy recovers
and into the future.
Sincerely,
Ramsey Alwin,
President and CEO.
Ms. GARCIA of Texas. Mr. Speaker, together we can and will protect
older workers during the hiring phase of employment with this bill.
Everyone deserves a shot at the American Dream, regardless of their
age. This is common sense. I urge my colleagues to vote ``yes'' on this
bipartisan bill, protecting our older workers.
Mr. GOOD of Virginia. Mr. Speaker, I yield 2 minutes to the gentleman
from Pennsylvania (Mr. Keller).
Mr. KELLER. Mr. Speaker, we heard about the justification for this
legislation, and we are discussing older job applicants. Just some
context that I would like to add about how well older job applicants
and workers have been faring in recent decades.
According to the Bureau of Labor Statistics, for workers age 65 and
older, employment tripled from 1988 to 2018, while employment among
younger workers only grew by about one-third.
Among people age 75 and older, the number of employed people nearly
quadrupled, increasing from 461,000 in 1998 to 1.8 million in 2018.
[[Page H6162]]
The labor force participation rate for older workers has been
steadily increasing since the late 1990s, while participation rates for
younger age groups either declined or flattened during the same 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.
Full-time employees are now a majority of older workers. They were 61
percent in 2018, up from 46 percent in 1998.
These statistics paint a picture of rising full-time employment among
older workers, and they do not portray rampant discrimination against
older job applicants.
As the economy recovers from the pandemic, older workers will
continue to prosper.
H.R. 3992 is yet another Democrat bill in search of a problem. It
will result in an avalanche of class action litigation against
employers for using standard, reasonable recruiting methods, and I
encourage a ``no'' vote on the bill.
Ms. BONAMICI. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I want to note that the reality is that there is
substantial evidence that older workers are routinely harmed by
plausibly neutral but age-discriminate hiring practices.
For example, in 2017, the Federal Reserve Bank of San Francisco
conducted a study on age discrimination and hiring by sending similar
resumes to 13,000 job openings in 12 cities, totaling 40,000
applicants. For all five job position types they studied, the callback
rate was higher for younger applicants and lower for older applicants,
consistent with age discrimination in hiring.
Mr. Speaker, I yield 5 minutes to the gentlewoman from Texas (Ms.
Jackson Lee).
{time} 1700
Ms. JACKSON LEE. Mr. Speaker, I thank the Speaker and I thank the
manager very much, and I thank Congresswoman Garcia of Texas for her
leadership and sponsorship of H.R. 3992, Protect Older Job Applicants
Act. It is long overdue and an important initiative.
Words from Patti Temple Rocks, communications professional, really
capture what this bill is about: ``I was still on my game, but I was
being moved . . . to make room for someone younger.''
Let me be very clear. There is a great opportunity for all of us to
be employed, and that is what this legislation says. It is specifically
making sure that every American worker is protected. Specifically, this
bill will make it unlawful to limit, segregate, or classify job
applicants in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect
his or her status as a job applicant because of such individual's age.
This bill will include the job application process in ADEA's
antidiscrimination provisions and, again, disallow anyone from
classifying you and discriminating because of age.
H.R. 3992 would give external candidates the express right under
Federal law to bring these types of claims against employers. What I
would simply say to my friends, this is to prohibit but it is also to
prevent or intervene so that employers can know the right things to do.
According to AARP, one in four workers age 45 and older have been
subjected to negative comments about their age from supervisors or
coworkers, and 76 percent age discrimination find that as a hurdle in
helping to find a new job.
We also recognize that there is a lot of talent with older workers.
Paradoxically, what most companies do not seem to understand is that
older workers possess a depth of knowledge and experience that is worth
paying for and is not easily replaced and can be tapped in from many
different ways; and, as well, having a mix of people of all
generations, able and ready, and disabled, if you will, to work
alongside of each other.
``People walk out of companies now with an enormous amount of
intellectual property in their heads,'' says Paul Rupert, the founder
and CEO of Respectful Exits, a nonprofit consulting firm that is
raising corporate awareness about age discrimination. ``They know
things that are essential to the company's success, and if that
knowledge is not captured and transmitted to the next generation, that
company is losing a tremendous chunk of capital, and it will eventually
pay a price.''
So what is the point? The point is to recognize how important it is
to ensure that we don't discriminate. In fact, women age 40 are finding
that if they lose a job they, too, are being discriminated against in
terms of getting a job.
I want to, again, salute the sponsor of this legislation, the manager
of this legislation, and of course, the chairman of the Education and
Labor Committee, Chairman Scott, along with all of those who supported
this to ensure this is about fairness.
As a member of the Judiciary Committee, we always promote equal
justice. We partner with the Education and Labor Committee in its work
on equal justice. So this is legislation that provides opportunities
for equal justice, and I would ask my colleagues to support this bill,
H.R. 3992, Protect Older Job Applicants Act. But more importantly,
let's protect the intellectual capital of all Americans, every job
applicant.
Let there not be discrimination against you for race or color or
creed or disability or gender or anything else, and certainly have
respect for that intellectual capital that older American workers bring
to the workforce. Let's celebrate it; let's have a good time with it;
and let's build our companies on all of this genius that happens to be
the American workers now today.
Mr. Speaker, I ask for support of the legislation.
Mr. Speaker, I rise today in support of H.R. 3992, the ``Protect
Older Job Applicants Act,'' which will amend the Age Discrimination in
Employment Act of 1967, which prohibits age-based discrimination in
hiring, to specifically prohibit employers from limiting, segregating,
or classifying job applicants on the basis of age.
People of all ages, but especially older applicants, must be
protected from discriminatory practices and loopholes that hurt their
chances to get a job, especially as we have seen that older American
workers have disproportionately experienced long-term unemployment in
the COVID economy.
The federal Age Discrimination in Employment Act (ADEA) of 1967 was
passed to prohibit age-based discrimination for current employees and
job applicants.
However, two federal circuit court decisions over the last five years
have ruled that some provisions of the ADEA's federal anti-age
discrimination protections only applied to current employees, not job
applicants.
In 2016, the 11th Circuit case Villarreal v. R.J. Reynolds Tobacco
Company held that the ADEA disparate impact statute only covers
employees, but not older applicants, and in 2019, the 7th Circuit
adopted the same interpretation in Kleber v. CareFusion Corporation.
The U.S. Supreme Court has declined to review the appellate court
decisions.
Currently, employers, especially those within the 7th and 11th
Circuits, have a valid defense to claims under the ADEA where external
job applicants allege they have been negatively impacted by hiring
practices on the basis of their age.
H.R. 3992 would give external candidates the express right under
federal law to bring these types of claims against employers.
This bill will include the job application process in ADEA's
antidiscrimination provisions.
Specifically, this bill will make it unlawful ``to limit, segregate,
or classify . . . [job applicants] in any way which would deprive or
tend to deprive any individual of employment opportunities or otherwise
adversely affect his status as . . . [a job applicant], because of such
individual's age.''
According to the AARP, 1 in 4 workers age 45 and older have been
subjected to negative comments about their age from supervisors or
coworkers, and 76 percent see age discrimination as a hurdle to finding
a new job.
In one University of California, Irvine, study, resumes were sent out
on behalf of more than 40,000 fictitious applicants of different ages
for thousands of low-skill jobs like janitors, administrative
assistants and retail sales clerks in 12 cities.
This study found that the older the applicant was, the fewer
callbacks the applicant received.
This study also found that age discrimination has the highest impact
on women, who suffer more age discrimination then men starting in their
40s.
According to David Neumark, a professor of economics who oversaw the
study, ``[t]he evidence of age discrimination against women . . . pops
out in every study'' conducted on age discrimination.
[[Page H6163]]
Ageism is still very much present in our society, and it is important
we acknowledge that we still have much work to do to correct this bias
and give every job applicant a fair and equal opportunity when applying
for a job.
Ms. BONAMICI. Mr. Speaker, I have no further speakers on the
underlying bill, and I continue to reserve the balance of my time.
Mr. GOOD of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I have been a recruiter for a for-profit corporation. I
did that for 15 years where I had the responsibility of recruiting on
college campuses and hiring and making those decisions for a company
for which I was depended on to find the absolute best workers, and that
was not during a time when we had 10 million open jobs in the country
and companies so desperate to find quality workers and fill those
positions. I did this for a company that was vulnerable to the very
consequences that we want to bring in greater capacity here today on
this House floor.
Once again, we have got House Democrats trying to solve a nonexistent
crisis instead of the many that they have created; massive spending,
rising crime, gas prices going through the roof, increased inflation
for groceries and other things, surging illegals across the border,
firing cops and nurses and first responders because they don't get a
vaccine that we are forcing upon them.
Instead of dealing with those, this majority is here focused instead
on yet another manufactured problem with yet another leftist solution
that has the added benefit from their perspective of paying off their
trial lawyer donors.
They miss the point about disparate impact. As an example, a job
recruiter goes to a college campus, spends several days recruiting,
happens to only have typical younger, college-age workers apply, hires
some of those workers, and now their trial lawyer friends would sue
them because they didn't hire any older workers when no older workers
applied because they used a typical standard practice for hiring entry-
level workers. That is a real example.
They don't understand the difference between impact and treatment. We
already have laws prohibiting the practice of disparate treatment on
age discrimination basis.
This misnamed piece of legislation does nothing to truly protect
older job applicants. Again, older job applicants are already protected
by the law, and age discrimination is already illegal. Democrats just
want to raise the stakes for their lawyer friends, making it easier to
sue and the penalties more severe perhaps so that they can then donate
more to Democrat campaigns.
Democrats don't want to acknowledge that sound economic policy, if
they could recognize it, is what is good for older Americans; low
taxes, less regulation. That benefits older American job applicants
just like everybody else, not more regulation, penalization of
employees, and unnecessary victimization.
It has already been said, according to the Bureau of Labor
Statistics, these are the facts. Don't let the facts get involved with
bad legislation. I know, don't interfere. But the facts show, and I
would like my colleagues across the aisle to explain the problem with
the facts, that the number of workers age 75 and older in the workforce
has quadrupled in the last 30 years, rising from 461,000 in 1988 to 1.8
million in 2018.
But, again, this legislation is about trial lawyers, not older
Americans, and this bill would serve as yet another burden on small
business owners.
In the age of online job postings and digital recruiting, this
legislation would make employers vulnerable for any form of recruiting
that brings in younger applicants. Online job boards, social media,
even the simple act of posting a position online could be challenged
under this bill simply because younger applicants tend to apply through
those processes and search for jobs through those mechanisms.
The unintended--or, I suspect, the truly intended--consequence of
this bill would be countless class action lawsuits against employers
who are already struggling under Democrat efforts to cripple our
economy.
Democrats have spent 2 years closing businesses with lockdowns,
firing employees with their vaccine mandates, and paying more people to
stay home. Here's another way: Let them benefit from a trial lawyer who
sues on their behalf under this bill. Heck, even Members of this very
body are staying home rather than attending committee hearings or
voting in this Chamber. And now that America is trying to reopen in
spite of them, Democrats want to have their trial lawyer friends sue
more business employers and job creators.
What we do on this floor has consequences that reach into every
corner of this great Nation; a sad and dangerous reality under this
majority this year. But Democrats are relentless in their determination
to pass legislation with a compassionate title--it sounds good--for a
manufactured crisis and a policy that hurts small businesses and kills
jobs. It is what they do.
As I said before, the Democrat majority has unveiled contempt for
employers, businesses, and job creators, and they continue to
perpetuate this ``us against them'' mind set between employees and
employers or employers and job applicants. They truly believe that
employers are hostile to and exploitive of their employees, and they
need more regulation, again, when we have 10 million job openings and
employers desperate to fill those positions so they can stay open.
The socialist America that the left clearly wants is not the America
that our constituents and millions of Americans know and love; as the
results in Virginia and New Jersey clearly showed last night,
bipartisan results, because there are not that many Republicans in
Virginia or New Jersey to deliver those results.
Mr. Speaker, I reserve the balance of my time.
Ms. BONAMICI. Mr. Speaker, I have no further speakers, and I am
prepared to close. I do want to note with regard to my colleague's
remarks, I believe there is a House rule about not impugning the
motives of people who are here on this distinguished floor of the House
of Representatives.
Older workers are suffering from a higher rate of long-term
unemployment versus their younger peers. According to AARP, this has
produced devastating consequences during the COVID-19 pandemic, as 74
percent of workers aged 40 to 65 who have lost a job in 2020 reported
being unemployed for more than 6 months.
Again, Mr. Speaker, this is already the law of the land except for
people in two Federal circuits here in the United States. This bill is
intended to make a uniform law across the country.
Mr. Speaker, I reserve the balance of my time.
Mr. GOOD of Virginia. Mr. Speaker, I yield myself the balance of my
time to close.
Discrimination is wrong, and it has been illegal in the United States
for decades, as it should be.
Older workers are faring well in the workforce without the help from
us in Congress, and they don't need a trial lawyer payoff--disguised as
a win for older workers--that will threaten routine hiring practices,
limit job opportunities, and create a tsunami of parasitic litigation.
We should ensure that our legislation does not have unintended
consequences that are negative and harmful, but H.R. 3992 fails
miserably in this regard when it comes to protecting older workers and
ensuring job opportunities for current and future workers.
I strongly encourage my colleagues to vote ``no'' on H.R. 3992, and I
yield back the balance of my time.
Ms. BONAMICI. Mr. Speaker, I yield myself the balance of my time to
close.
Passing the bipartisan Protect Older Job Applicants Act should be a
priority of every Member of Congress. Republicans and Democrats worked
together just a few months ago to advance the Protecting Older Workers
Against Discrimination Act. This bipartisan effort was a major step
toward ensuring older workers can assert legal claims to hold employers
accountable for disparate treatment that results in age discrimination.
However, we cannot defeat age discrimination in employment if we
leave older job applicants behind. Without equal protections, older
workers are still being denied job opportunities because of hiring
practices that, while not intentionally discriminatory, ultimately
exclude workers based on their age.
[[Page H6164]]
Providing job applicants with the tools to seek justice for
discriminatory hiring practices is not just the right thing to do, it
is the smart thing to do. In 2018 our economy missed out on as much as
$850 billion in gross domestic product because older workers who wished
to switch jobs, grow in their jobs, or reenter the workforce were
denied that opportunity.
The Protect Older Job Applicants Act addresses this gap in an
important ADEA protection and helps older workers eliminate barriers
that prevent them from fully contributing to our economy.
More broadly, this legislation will deliver on the promise of the
ADEA and help ensure that all older workers, regardless of whether they
are looking for a job or already have one, are equally protected
against age discrimination under the law in every part of the country.
I want to again thank Ms. Garcia for her leadership. I urge my
colleagues to vote ``yes,'' and I yield back the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, thank you today, the House has an
opportunity to support older workers by passing H.R. 3992, the Protect
Older Job Applicants Act, introduced by Representative Garcia of Texas.
While Americans are working later in life than ever before, many
older workers are finding that their experience can count against them
when applying for new jobs. Research shows that three-fourths of
workers age 45 and older say age discrimination has eroded their
confidence in finding a new job, and more than 40 percent of older job
applicants have been asked for age-related information in the hiring
process.
For more than half a century, older workers and older job applicants
who face age discrimination were equally protected under the Age
Discrimination in Employment Act, or A-D-E-A.
Earlier this year, House Republicans and Democrats came together to
pass the Protecting Older Workers Against Discrimination Act, which
strengthens protections for workers who allege disparate treatment
based on age under the A-D-E-A.
Unfortunately, recent decisions in the Seventh and Eleventh Federal
Circuit Courts have excluded job applicants from seeking recourse under
the disparate impact provision of the A-D-E-A, even while maintaining
that same protection for current employees.
This means older job applicants in the Seventh and Eleventh Circuits
can only challenge age discrimination in hiring when they prove that an
employer intended to discriminate based on age. They are unable to
challenge hiring practices that appear neutral, but, in fact, result in
a disproportionate, harmful impact on older workers.
Unfortunately, the Supreme Court declined to grant review of this
matter. Therefore, it is up to Congress to clarify what has otherwise
been the law of the land with regard to the coverage of job applicants
under the A-D-E-A.
Current law provides recourse for job applicants in most
jurisdictions, but not all. By amending the A-D-E-A, this legislation
clarifies that older job applicants across the country can effectively
seek justice when they are harmed by age discrimination in hiring.
The Administration issued a Statement of Administration Policy in
support of this legislation. It states in part:
``Workplace age discrimination, including at the application stage,
prevents people from fully accessing the American dream and limits the
contributions that they can make to our shared prosperity. Ensuring
equitable access to employment is a priority for the Administration.
The Administration supports this legislation that protects older job
applicants.''
The SPEAKER pro tempore. All time for debate has expired.
Each further amendment printed in part E of House Report 117-137
shall be considered only in the order printed in the report, may be
offered only by a Member designated in the report, shall be considered
as read, shall be debatable for the time specified in the report
equally divided and controlled by the proponent and an opponent, may be
withdrawn by the proponent at any time before the question is put
thereon, shall not be subject to amendment, and shall not be subject to
a demand for division of the question.
{time} 1715
Amendment No. 1 Offered by Mr. Pappas
The SPEAKER pro tempore. It is now in order to consider amendment No.
1 printed in part E of House Report 117-137.
Mr. PAPPAS. Mr. Speaker, I have an amendment at the desk.
The SPEAKER pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:
Page 1, after line 12, insert the following:
SEC. 3. STUDY.
Not later than 1 year after the date of the enactment of
this Act, the Equal Employment Opportunity Commission shall
conduct a study to determine the number of claims pending or
filed with the Commission since 2015 under the Age
Discrimination in Employment Act of 1967 (29 U.S.C. 621 et
seq.), including claims in closed cases, by job applicants
who may have been adversely impacted by age discrimination in
the job application process. The Chairman of the 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, and shall make
available to the public, a report that contains the results
of the study, including recommendations for best practices to
prevent, combat, and address age discrimination in the hiring
process.
The SPEAKER pro tempore. Pursuant to House Resolution 716, the
gentleman from New Hampshire (Mr. Pappas) and a Member opposed each
will control 5 minutes.
The Chair recognizes the gentleman from New Hampshire.
Mr. PAPPAS. Mr. Speaker, I rise in support of my amendment to require
the Equal Employment Opportunity Commission to conduct a study on the
number of job applicants impacted by age discrimination and issue
recommendations on addressing age discrimination in the job application
process.
Nearly half of older job applicants report being asked for age-
related information when applying for a job, and three-quarters of
workers over the age of 45 lack confidence in their ability to find a
new job due to age discrimination.
This poses a significant challenge for workers in my home State of
New Hampshire. As a State with an aging workforce, New Hampshire
businesses are concerned about both how to attract talent and how to
ensure that the institutional knowledge and experience of workers
reaching retirement age is passed down. When workers are pushed out of
our labor force by age discrimination or by the concern that they may
face discrimination, our businesses and communities lose the benefit of
their knowledge and experience.
Strengthening age discrimination laws is the right thing to do
because it will both protect workers and also serve to help keep them
in our labor force at a time when businesses are already struggling to
attract talent. In our changing economy, we need to ensure that older
workers continue to have opportunities available to them.
We must pass the Protect Older Job Applicants Act to clarify that job
applicants can challenge discriminatory hiring practices under the Age
Discrimination in Employment Act, and I urge my colleagues to support
this commonsense amendment and help us gain a better understanding of
the issues that older job applicants face when applying for jobs and
the solutions that are needed to stop discriminatory practices.
Mr. Speaker, I include in the Record two letters in support of the
underlying legislation, one from the American Federation of Government
Employees and one from the Leadership Council of Aging Organizations.
American Federation of
Government Employees, AFL-CIO,
Washington, DC, September 28, 2021.
Dear Representative: On behalf of the American Federation
of Government Employees, AFL-CIO (AFGE), which represents
more than 700,000 federal and District of Columbia employees,
I urge you to vote for H.R. 3992, the ``Protect Older Job
Applicants (POJA) Act of 2021.''
Under existing law, the Age Discrimination in Employment
Act (ADEA) only applies to currently employed people seeking
recourse in the face of employment discrimination based on
age. The ADEA does not cover job applicants who experience
age discrimination in hiring, including applicants for
federal government positions.
H.R. 3992 extends the protections of the ADEA to external
job applicants in addition to employees. Specifically, this
legislation would allow job applicants to be able to bring
disparate impact discrimination claims under the ADEA. The
bill would protect older Americans against employment
discrimination that prevent them from even getting a foot in
the door. Considering the heightened long-term unemployment
struggles older Americans have experienced during the COVID-
19 pandemic, this bill is critically important.
Building on our support for H.R. 1230, the ``Protecting
Older Workers Against Discrimination Act,'' AFGE is proud to
be a
[[Page H6165]]
leader in the fight against all forms of employment
discrimination including those affecting older Americans.
Please support H.R. 3992, the ``Protect Older Job Applicants
(POJA) Act of 2021.''
Sincerely,
Julie N. Tippens,
Director, Legislative Department.
____
Leadership Council
of Aging Organizations,
Washington, DC, September 28, 2021.
Dear Member of Congress: 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 urge you to
strengthen protections for older workers by voting for H.R.
3992, the Protect Older Job Applicants Act (POJA) of 2021.
POJA would clarify that the Age Discrimination in Employment
Act's (ADEA) prohibition against all forms of employment
discrimination based on age covers individuals during the
hiring phase of employment.
Age discrimination is pervasive and stubbornly entrenched.
It often starts in the hiring process when employers
circumvent anti-age discrimination laws by using such tactics
as setting a maximum number of years of experience that a
prospective employer will consider or setting up screening
processes that exclude older applicants. In 2020, 78 percent
of older workers reported having seen or experienced age
discrimination in the workplace--a significant increase from
61 percent in 2018. Age discrimination is also 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 discrimination. The
COVID-19 pandemic has wreaked havoc on employment for
everyone, with older workers taking a harder hit. Those aged
55+ continue to experience long-term unemployment in greater
numbers, with 55.3 percent of older jobseekers unemployed for
27 weeks or more as of June 2021, compared to 36 percent of
younger workers. The rates were worse for older workers who
were black, female, or who did not have a college degree.
Although the ADEA was meant to apply to all forms of age
discrimination in hiring, recent court decisions have
narrowly interpreted the applicability of ADEA's protections
and have excluded job applicants who are subjected to hiring
practices that have a discriminatory impact based on age,
such as specifying a maximum number of years of experience.
The Protect Older Job Applicants Act would clarify that older
workers seeking employment should be protected from all forms
of age discrimination in hiring.
We urge Congress to swiftly pass the Protect Older Job
Applicants Act and clarify the ADEA's prohibition against
hiring practices that have a discriminatory impact on older
workers.
Sincerely,
Katie Smith Sloan,
Chair.
Mr. PAPPAS. Mr. Speaker, I reserve the balance of my time.
Mr. GOOD of Virginia. Mr. Speaker, I rise in opposition to the
amendment.
The SPEAKER pro tempore. The gentleman is recognized for 5 minutes.
Mr. GOOD of Virginia. Mr. Speaker, unfortunately this amendment is a
day late and a dollar short. It requires the Equal Employment
Opportunity Commission to study the extent of discrimination against
job applicants based on age and make recommendations of best practices
to prevent discrimination. This study could possibly yield useful
information, but it is information we should have obtained before we
vote on H.R. 3992.
Further, the amendment tacitly acknowledges that we need more
information before we vote on this bill. This is classic ready, fire,
aim.
The Committee on Education and Labor rushed to mark up H.R. 3992 only
a month after it was introduced without holding a single hearing on the
bill, a measure which is sorely lacking the examination that it
deserves.
However, the information we do have more than suggests that this bill
is unnecessary. The Age Discrimination in Employment Act already
prohibits discrimination against job applicants because of age.
Moreover, older workers have done well in the job market in recent
decades. Again, according to the Bureau of Labor Statistics, for
workers age 65 and older, employment tripled from 1988 to 2018, while
employment among younger workers only grew by about a third.
This amendment, which requires a study after the underlying bill has
already been signed into law, does nothing to address the problems in
the bill.
H.R. 3992 will threaten routine recruitment and hiring practices,
such as participating in college job fairs and posting to online job
boards, at a time when nearly 8 million Americans are unemployed and
employers are struggling to find workers to fill the more than 10
million available jobs.
I oppose this amendment, which is a day late and a dollar short, and
I strongly oppose the underlying bill.
Mr. Speaker, I yield back the balance of my time.
Mr. PAPPAS. Mr. Speaker, I will correct the record again on the fact
that the committee did hold a hearing on this subject on March 18,
2021.
At that hearing, Laurie McCann, a senior attorney at AARP Foundation,
testified about the erosion of protections for older workers in
judicial decisions under the ADEA, including specific mention in her
testimony of the Seventh Circuit's Kleber decision and its harmful
impact on applicants. So, that is well-documented.
This particular amendment seeks to give us additional information
going forward that would be valuable in understanding the plight of
older job applicants.
Mr. Speaker, I yield such time as she may consume to the gentlewoman
from Illinois (Ms. Newman).
Ms. NEWMAN. Mr. Speaker, I thank the gentleman for yielding.
I rise today, Mr. Speaker, on behalf of the millions of older workers
who desperately need our help.
Last year, we saw older Americans leave the workforce more than we
ever have before, in fact, more than in the last seven decades.
We are seeing tens of thousands of workers with the right
qualifications for a job being turned away all because they are 50,
maybe even 40, and considered too old. In fact, 76 percent of older
American workers reported seeing age discrimination when trying to
obtain a job.
Mr. Speaker, 76 percent. That is clearly unacceptable.
We need to pass the Protect Older Job Applicants Act to ensure
America's older workers are finally protected from discrimination. But
before we can solve that problem, we have to fully understand it.
That is why included in this bill is an amendment I put forth to
ensure the Federal Government has the resources it needs to study just
how many job applicants have been discriminated against based on age.
By doing so, we can better provide recommendations and best practices
to further prevent this issue because when we lift up all of our older
workers, we lift up our entire economy.
Mr. PAPPAS. Mr. Speaker, I yield such time as she may consume to the
gentlewoman from Texas (Ms. Garcia), the cosponsor of the underlying
legislation.
Ms. GARCIA of Texas. Mr. Speaker, I rise in support of the Pappas and
Newman amendment. This amendment from my colleagues just enhances this
bill.
As a former administrative law judge for the Equal Employment
Opportunity Commission in the Houston region, I can tell you personally
that the type of information that would be gathered by the EEOC on the
number of job applicants impacted by age discrimination on the job and
all the issues that they have related to their applications would be
very helpful.
It would not only be helpful to the administrative law judges at the
EEOC; it would be helpful for judges that would finally hear the cases
in court if they go to court. It would be helpful for research. It
would be helpful for advocacy groups. This information would be vital,
again, to help us in Congress to seek better ways to improve and work
best on prevention and combating and addressing age discrimination in
the hiring process.
Mr. Speaker, there is some discussion on the other side of the aisle
that this is a remedy for a problem that doesn't exist. Let me tell
you, if you talk to advocacy groups, discrimination is alive and well.
We need this legislation. We need this amendment. I urge adoption.
Mr. PAPPAS. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the amendment.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. GOOD of Virginia. Mr. Speaker, on that I demand the yeas and
nays.
The SPEAKER pro tempore. Pursuant to section 3(s) of House Resolution
8, the yeas and nays are ordered.
Pursuant to clause 8 of rule XX, further proceedings on this question
are postponed.
[[Page H6166]]
Amendment No. 2 Offered by Mr. Keller
The SPEAKER pro tempore. It is now in order to consider amendment No.
2 printed in part E of House Report 117-137.
Mr. KELLER. Mr. Speaker, I have an amendment at the desk.
The SPEAKER pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:
Page 1, after line 12, insert the following:
SEC. 3. DELAYED EFFECTIVE DATE OF AMENDMENTS.
(a) Study Required.--Subject to subsection (b), the
amendments made by this Act shall not take effect until the
date the Government Accountability Office reports to Congress
the results of a study such Office carries out to determine
whether not allowing claims of disparate impact
discrimination by applicants for employment under the Age
Discrimination in Employment Act of 1967 (20 U.S.C. 621 et
seq.) has a significant negative impact on such applicants.
(b) Study Results.--If the results of the study carried out
under subsection (a) show there is not a significant negative
impact of the kind described in such subsection on applicants
for employment, then the amendments made by this Act shall
not take effect.
The SPEAKER pro tempore. Pursuant to House Resolution 716, the
gentleman from Pennsylvania (Mr. Keller) and a Member opposed each will
control 5 minutes.
The Chair recognizes the gentleman from Pennsylvania.
Mr. KELLER. Mr. Speaker, before considering any legislation, the
House should first make a determination about whether the proposal is
actually needed and then should always carefully study the pending
legislation to determine whether it will adequately and positively
address the issue it purports to address. Unfortunately, Democrats have
failed on both counts with H.R. 3992.
The bill was introduced only 8 legislative days before the Committee
on Education and Labor markup, and the committee did not hold a hearing
on the legislation.
As such, we are flying blind as we consider H.R. 3992 today.
H.R. 3992 authorizes disparate impact claims for job applicants under
the Age Discrimination in Employment Act, and it has wide-ranging and
damaging implications that need thorough examination.
Significantly, we have had no data on whether excluding job
applicants from disparate impact coverage under the ADEA has a
significant negative impact on older job applicants. Indeed, to date,
there have been zero circuit court decisions ruling that the ADEA
authorizes job applicants to sue under a disparate impact theory.
Further, we have no information about the numerous effects this
sweeping bill would have on job seekers and businessowners. As we have
heard during this debate, H.R. 3992 could needlessly interfere with
routine recruitment practices, such as college recruiting,
apprenticeship programs, and online job postings.
Given the appalling lack of data on the issue and the rush by
Democrats to pass the bill, this amendment simply requires the GAO to
conduct a needed study on whether excluding job applicants from
disparate impact coverage under the ADEA has a significant negative
impact on older job applicants. If the study finds no such negative
impact, the bill would not go into effect.
This House should not legislate in the dark. Unfortunately, this is
exactly what we are doing here today.
This amendment will shed some much-needed light on a far-reaching
bill that has not received proper examination.
Mr. Speaker, I reserve the balance of my time.
Ms. GARCIA of Texas. Mr. Speaker, I rise in opposition to the
amendment.
The SPEAKER pro tempore. The gentlewoman is recognized for 5 minutes.
Ms. GARCIA of Texas. Mr. Speaker, before I begin, let me say again
for the third time that, in fact, the committee did have a hearing on
this subject. On March 18, 2021, the Subcommittees on Civil Rights and
Human Services and Workforce Protections held a hearing titled
``Fighting for Fairness: Examining Legislation to Confront Workplace
Discrimination.''
At that hearing, Laurie McCann, a senior attorney at AARP Foundation,
testified about the erosion of protections for older workers in
judicial decisions under the ADA, including specific mention in her
testimony of the Seventh Circuit's Kleber decision and its harmful
impact on older applicants.
Mr. Speaker, this amendment prevents the legislation from going into
effect unless the GAO finds that there have been negative impacts. This
is simply a delay tactic with no end date in sight.
The reason we are here today is precisely because we do have a
problem due to the circuit court decisions which cut off access to the
courts for job applicants seeking relief under the ADEA.
{time} 1730
The Supreme Court has denied cert to review this matter.
We have heard from AARP, one of the Nation's preeminent authorities
on age discrimination, which has advised Congress that these court
decisions in the 7th and 11th Circuits are not only at odds with the
intent of the ADEA, but that the courthouse doors have been unfairly
slammed shut to deserving individuals seeking relief.
Testimony before the Subcommittee on Civil Rights and Human Services
earlier this year noted that barring older applicants from seeking
relief for disparate impact discrimination is a problem, and that
without clarifying the ADEA, similar plaintiffs will not be able to
seek justice under the law.
For example, in the 7th Circuit case, Kleber v. CareFusion
Corporation, Mr. Kleber, a 58-year-old attorney with considerable
corporate law experience applied for an in-house counsel position.
The position required applicants to have no more than 7 years of
relevant legal experience, which effectively means that it freezes out
job applicants that were over age 40. Again, on its face it may look
neutral, but if you say, ``no one with more than 7 years' experience,''
that cuts out a lot of people.
Despite his significant prior experience in corporate law, Kleber was
denied the opportunity to even interview for the job, since the
experience limit was effectively a proxy for age.
The 7th Circuit held that because Mr. Kleber was an outside job
applicant rather than an employee seeking a new position from within
the company, he was barred from bringing a disparate impact claim. This
turns the entire purpose of the ADEA on its head, which is to remedy
age discrimination for both jobseekers and employees. Furthermore, we
know generalized age discrimination is not isolated.
In 2017, researchers for the Federal Reserve Bank of San Francisco
sent 40,000 resumes of applicants of all ages to 13,000 job openings
across 12 cities. They found that older workers received substantially
fewer callbacks from employers for job interviews and showed particular
harm for older women applicants.
We do not need another study to tell us what we already know. Older
job applicants are subjected to age discrimination when seeking
employment and that an effective remedy is needed when that conduct
lacks justification.
Madam Speaker, finally, this amendment would indefinitely delay
implementation of this bill because there is no deadline for GAO to
conduct a study and report back to Congress.
Would we even see the results of this study and when? Again, this is
simply a delay tactic. We already have all the evidence we need to know
that it is timely for Congress to act and to pass this legislation to
protect our older job applicants.
Madam Speaker, I urge my colleagues to vote ``no'' on this amendment
and ``yes'' on the underlying bill.
Madam Speaker, I yield back the balance of my time.
Mr. KELLER. Madam Speaker, I heard my colleague from Texas say that
they have had a hearing on the subject. Well, our contention is not the
subject, but the bill. There have been zero hearings on this bill,
which was introduced 8 legislative days ago.
So I don't know why there is a rush to judgment on whether we should
vote on this or not without making sure we understand all the issues.
And since the Democrats are unwilling to do that, this amendment makes
perfect sense, if you don't want to examine it and do that beforehand
and do the proper work up front. Let's make sure before this takes
effect and could harm older Americans or job creators, we should
understand the impacts and what it means.
[[Page H6167]]
So you can sit here and correct the Record all you want. What you
think you are doing when you talk about the subject, we are talking
about the legislation. And we need to know exactly what this
legislation is going to do and how it is going to impact older
Americans and our job creators.
Madam Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Ms. Bourdeaux). Pursuant to House Resolution
716, the previous question is ordered on the amendment offered by the
gentleman from Pennsylvania (Mr. Keller).
The question is on the amendment.
The question was taken; and the Speaker pro tempore announced that
the noes appear to have it.
Mr. KELLER. Madam Speaker, on that I demand the yeas and nays.
The SPEAKER pro tempore. Pursuant to section 3(s) of House Resolution
8, the yeas and nays are ordered.
Pursuant to clause 8 of rule XX, further proceedings on this question
are postponed.
Pursuant to clause 1(c) of rule XIX, further consideration on H.R.
3992 is postponed.
____________________