[House Report 117-127]
[From the U.S. Government Publishing Office]


117th Congress   }                                    {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                    {       117-127

======================================================================



 
                PROTECT OLDER JOB APPLICANTS ACT OF 2021

                                _______
                                

 September 23, 2021.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

   Mr. Scott of Virginia, from the Committee on Education and Labor, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 3992]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and Labor, to whom was referred 
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, having 
considered the same, reports favorably thereon with amendments 
and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Committee Action.................................................     2
Committee Views..................................................     4
Section-by-Section Analysis......................................    12
Explanation of Amendments........................................    12
Application of Law to the Legislative Branch.....................    12
Unfunded Mandate Statement.......................................    13
Earmark Statement................................................    13
Roll Call Votes..................................................    13
Statement of Performance Goals and Objectives....................    19
Duplication of Federal Programs..................................    19
Hearings.........................................................    19
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................    19
New Budget Authority and CBO Cost Estimate.......................    19
Committee Cost Estimate..........................................    21
Changes in Existing Law Made by the Bill, as Reported............    21
Minority Views...................................................    32

    The amendments are as follows:
  Strike all after the enacting clause and insert the 
following:

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''.
  Amend the title so as to read: ``A bill to amend the Age 
Discrimination in Employment Act of 1967 to prohibit employers 
from limiting, segregating, or classifying applicants for 
employment.''.

                          Purpose and Summary

    Approximately 3.8 million Americans age 40-and-over are 
currently unemployed.\1\ Ideally, the Age Discrimination in 
Employment Act of 1967 (ADEA)\2\ should protect these older 
workers from age discriminate hiring practices as they seek new 
employment. However, recent decisions in the Seventh and 
Eleventh Circuit Courts of Appeals have eroded one of the 
central tools older job applicants use to counteract age 
discrimination--the ADEA disparate impact provision. In these 
two jurisdictions, employers can now use facially neutral 
hiring practices that discriminate against older job applicants 
on the basis of their age without fear of legal repercussion 
under federal law.
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    \1\Table A-13 Employment status of the civilian noninstitutional 
population by age, sex, and race, Bureau of Lab. Stat., https://
www.bls.gov/web/empsit/cpseea13.pdf (last visited Aug. 18, 2021).
    \2\Age Discrimination in Employment Act of 1967 Sec. 4(a), 29 
U.S.C. Sec. 623(a).
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    H.R. 3992, the Protect Older Job Applicants Act (POJA), 
amends the ADEA to make clear that the disparate impact 
provision in the statute protects older ``applicants for 
employment'' and not just those already employed. By adding the 
term ``applicants'' to the ADEA, POJA cures the problem created 
by the two federal circuit court holdings, aligns the ADEA with 
the parallel statute under Title VII of the Civil Rights Act of 
1964 (Title VII),\3\ and gives force to the Equal Employment 
Opportunity Commission's (EEOC) long-held interpretation that 
the ADEA disparate impact provision protects job applicants. 
This legislation complements the amendments to the ADEA that 
were passed by the U.S. House of Representatives in the 
Protecting Older Workers Against Discrimination Act of 2021 
(H.R. 2062) on June 23, 2021, which clarifies that the mixed 
motive evidentiary standard applies to disparate treatment 
claims under the ADEA.
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    \3\Civil Rights Act of 1964 Sec. 703, 42 U.S.C. Sec. 2000e-2.
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                            Committee Action


                             116TH CONGRESS

    On September 9, 2020, Representative Sylvia Garcia (D-TX-
29) introduced H.R. 8381, the Protect Older Job Applicants Act. 
The bill was referred to the Committee on Education and Labor 
(Committee). No further action was taken on the bill.

                             117TH CONGRESS

    On March 18, 2021, the Committee's Subcommittee on Civil 
Rights and Human Services and Subcommittee on Workforce 
Protections held a joint hearing entitled ``Fighting for 
Fairness: Examining Legislation to Confront Workplace 
Discrimination.'' During this hearing, Laurie McCann, Senior 
Attorney representing AARP Foundation, testified on the impact 
of age discrimination on the workforce and offered 
recommendations for improving legal protections under the ADEA 
for older workers. Additionally, Ms. McCann discussed the 
Seventh Circuit's Kleber v. CareFusion Corporation decision,\4\ 
which held older job applicants cannot sue under the ADEA, and 
the trend of judicial holdings reducing the ADEA's legal 
protections for older job applicants under its disparate impact 
provision.\5\
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    \4\Kleber v. CareFusion Corp., 914 F.3d 480 (7th Cir. 2019) (en 
banc) (adopting the interpretation of the Eleventh Circuit in 
Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11th Cir. 
2016)).
    \5\Id. at 484-88.
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    On June 17, 2021, Representative Garcia (TX) introduced 
H.R. 3992, the Protect Older Job Applicants Act. H.R. 3992 was 
referred to the Committee.
    On July 15, 2021, the Committee held a full committee 
markup of H.R. 3992. The Committee adopted an Amendment in the 
Nature of a Substitute (ANS) offered by Representative Susan 
Wild (D-PA-7).
    The ANS incorporated the provisions of H.R. 3992, as 
introduced, with the following modification:
           Changed the title of the bill from ``Protect 
        Older Job Applicants Act'' to ``Protect Older Job 
        Applicants Act of 2021.''
    Four amendments to the ANS were offered:
           Representative Mariannette Miller-Meeks (R-
        IA-2) offered an amendment to prevent the bill from 
        prohibiting or limiting an employer from recruiting or 
        interviewing for employment students attending high 
        schools, Job Corps centers, colleges, or universities, 
        provided such recruiting or interviewing is not 
        intended to discriminate because of age. The amendment 
        failed by a vote of 20 Yeas and 26 Nays.
           Representative Rick Allen (R-GA-12) offered 
        an amendment to prevent the bill from prohibiting or 
        limiting an employer from operating an apprenticeship 
        or internship program, provided such program is not 
        intended to discriminate because of age. The amendment 
        failed by a vote of 20 Yeas and 26 Nays.
           Representative Julia Letlow (R-LA-5) offered 
        an amendment to prevent an employer from being 
        prohibited or limited from posting job openings on job 
        search websites and on online job boards, provided such 
        posting is not intended to discriminate because of age. 
        The amendment failed by a vote of 19 Yeas and 26 Nays.
           Representative Fred Keller (R-PA-12) offered 
        an amendment requiring a Government Accountability 
        Office (GAO) study to determine whether disallowing 
        disparate impact discrimination claims by applicants 
        for employment under the ADEA has a significant 
        negative impact on such applicants. The Act would only 
        go into effect if the GAO study found there is no 
        significant negative impact from disallowing such 
        claims. The amendment failed by a vote of 19 Yeas and 
        26 Nays.
    H.R. 3992 was reported favorably, as amended, to the House 
of Representatives by a vote of 26 Yeas and 19 Nays.

                            Committee Views


                              INTRODUCTION

    In 1967, Congress passed the ADEA to prohibit age 
discrimination in employment. Because age discrimination harms 
both employed and job-seeking older workers, the ADEA prohibits 
all forms of age discrimination, including age discrimination 
in hiring, and protects ``any individual'' regardless of their 
employment status.\6\ The ADEA provides two methods of seeking 
relief for an age discrimination claim. The first method is the 
disparate treatment provision under section (4)(a)(1) 
prohibiting intentional age discrimination.\7\ The second 
method is the disparate impact provision under section 4(a)(2) 
prohibiting practices that are facially neutral with regard to 
age but have the effect of harming older workers more than 
younger workers, unless the employer can show reasonable 
factors other than age caused the disparity.\8\ Proof of intent 
to discriminate is not a requirement in a disparate impact 
claim.\9\
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    \6\Age Discrimination in Employment Act Sec. 4(a).
    \7\Age Discrimination in Employment Act Sec. 4(a)(1), ``It shall be 
unlawful for an employer to fail or refuse to hire or to discharge any 
individual or otherwise discriminate against any individual with 
respect to his compensation, terms, conditions, or privileges of 
employment, because of such individual's age.''
    \8\Age Discrimination in Employment Act Sec. 4(a)(2), ``It shall be 
unlawful for an employer to limit, segregate, or classify his employees 
in any way which would deprive or tend to deprive any individual of 
employment opportunities or otherwise adversely affect his status as an 
employee, because of such individual's age''; see also Smith v. City of 
Jackson, Miss., 544 U.S. 228, 241 (2005) (holding ADEA Sec. 623(a)(2) 
supports a disparate impact theory of suit).
    \9\Smith, 544 U.S. at 234-35.
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    Job applicants who are denied a job because of their age 
have sought protection under either or both the disparate 
treatment and disparate impact provisions of the ADEA. However, 
a job applicant can only rely on the disparate impact provision 
when an employer uses a hiring practice that statistically 
harms older applicants but lacks any intent to do so. For 
example, an employer might cap the number of years of prior 
working experience an applicant is allowed to have to apply for 
a job. A hiring policy such as this disparately harms older 
workers based on their age even though the employer may not 
intend to discriminate against any individual applicant. These 
neutral seeming but harmful hiring practices can only be 
addressed with a disparate impact theory of age 
discrimination.\10\
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    \10\Kleber, 914 F.3d at 507 (Hamilton, J. dissenting).
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    In 2016, the Eleventh Circuit in Villarreal v. R.J. 
Reynolds Tobacco Company read the disparate impact provision of 
the ADEA more narrowly so as to not cover older job 
applicants.\11\ Just three years later in 2019, the Seventh 
Circuit adopted the same interpretation in Kleber v. CareFusion 
Corporation.\12\ These circuit decisions misinterpret the ADEA, 
overturn decades of EEOC guidance, and contradict the Supreme 
Court's own interpretation of parallel disparate impact 
language in Title VII; still, the Supreme Court denied 
certiorari to review either decision.\13\ Therefore, it is 
incumbent upon Congress to act to fully restore this 
provision's protections.
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    \11\Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11th 
Cir. 2016) (en banc) (holding older job applicants may not sue for 
disparate impact age discrimination).
    \12\Kleber, 914 F.3d at 480.
    \13\See Villarreal v. R.J. Reynolds Tobacco Co., 137 S. Ct. 2292 
(2017) (denying petition for writ of certiorari); Kleber v. CareFusion 
Corp., 140 S. Ct. 306 (2019) (denying petition for writ of certiorari).
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    POJA is supported by AARP and the National Council on 
Aging.

   THE HISTORY, TEXT, AND AUTHORITATIVE INTERPRETATIONS OF THE ADEA 
   CONFIRM OLDER JOB APPLICANTS ARE COVERED BY ITS DISPARATE IMPACT 
                               PROVISION

    One of the central goals of the disparate impact provision 
of the ADEA is to prevent age discrimination in hiring.\14\ 
This goal formed out of the long history of congressional 
action to prohibit age discrimination in employment. After 
amendments to the Equal Employment Opportunity Act of 1962\15\ 
and Title VII to include age as a protected class failed, 
Congress directed then-Secretary of Labor Willard Wirtz to make 
a ``full and complete study of the factors which may tend to 
result in discrimination in employment because of age.''\16\ 
This resulted in the Department of Labor's 1965 report, The 
Older American Worker: Age Discrimination in Employment, 
otherwise known as the Wirtz Report, regarded as the most 
influential source material used by Congress in crafting the 
ADEA.\17\
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    \14\See Kleber, 914 F.3d at 507 (Hamilton, J., dissenting).
    \15\H.R. 10144, 87th Cong. (1962).
    \16\Report of the Secretary of Labor, The Older American Worker: 
Age Discrimination in Employment 1 (1965) [hereinafter Wirtz Report].
    \17\See generally id.; see also Gen. Dynamics Land Sys. v. Cline, 
540 U.S. 581, 587-91 (2004) (discussing the strong influence of the 
Wirtz Report on the ADEA's text).
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    Hiring discrimination was a central issue discussed in the 
Wirtz Report, which found managers made ``negative decisions 
regarding older applicants in advance of any review of 
individual qualifications by setting upper age limits as a 
matter of formal or informal hiring policy.''\18\ The report 
also found these age discriminate hiring practices were 
widespread; approximately half of all private job openings were 
barred to individuals over age 55, and a quarter barred to 
those age 45 and over.\19\ The Wirtz Report recommended: ``To 
eliminate discrimination in the employment of older workers, it 
will be necessary not only to deal with overt acts of 
discrimination, but also to adjust those present employment 
practices which quite unintentionally lead to age limits in 
hiring.''\20\
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    \18\Report of the Secretary of Labor, The Older American Worker: 
Age Discrimination in Employment: Research Materials 7 (1965).
    \19\Id. at 6.
    \20\Wirtz Report, supra note 16, at 22 (emphasis added).
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    Lawmakers in the 90th Congress incorporated the Wirtz 
Report's call to action as they crafted the ADEA. The chief 
sponsor of the ADEA in the Senate, Sen. Ralph Yarborough (D-
TX), advocated in specific terms the law would protect older 
job applicants. He stated: ``It is time that we turn our 
attention to the older worker who is not ready for retirement--
but who cannot find a job because of his age, despite the fact 
that he is able, capable, and efficient.''\21\ Manager of the 
House bill, Rep. Carl Perkins (D-KY), added that in his ``own 
district in Kentucky . . . thousands of former coal miners'' 
learned ``age is a great handicap in finding a job'' but the 
proposed ADEA would redress ``this longstanding misconception 
about the employability of older workers.''\22\
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    \21\Age Discrimination in Employment: Hearing on S. 830 and S. 788 
Before the S. Subcomm. On Labor, Comm. On Labor and Public Welfare, 
90th Cong. 22 (1967).
    \22\113 Cong. Rec. 34738, 34740 (1967).
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    These conclusions are also cemented in the text of the 
ADEA, both in the congressional statement of findings and 
purpose and the disparate impact provision itself. The 
statement of findings and purpose specifically refers to 
unemployment and hiring: ``older workers find themselves 
disadvantaged in their efforts to retain employment, and 
especially to regain employment when displaced from jobs'' and 
``the incidence of unemployment, especially long-term 
unemployment . . . is, relative to the younger ages . . . great 
and growing; and their employment problems grave.''\23\
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    \23\29 U.S.C. Sec. 621(a) (emphasis added).
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    The text of the disparate impact provision also reflects a 
concern for protecting all workers, including applicants. 
Section 4(a)(2) broadly includes ``any individual'' from being 
deprived of ``employment opportunities . . . because of such 
individual's age.''\24\ This language does not limit legal 
claims only to the employed, and it is illogical to suggest 
`any individual' who seeks `employment opportunities' does not 
include older job applicants. The simplest interpretation of 
this text is that the disparate impact provision ``easily 
reaches employment practices that hurt older job applicants as 
well as current older employees.''\25\
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    \24\29 U.S.C. Sec. 623(a)(2) (emphasis added).
    \25\Kleber, 914 F.3d at 491 (Hamilton, J. dissenting); see also 
Villarreal, 839 F.3d at 984 (Martin, J. dissenting) (``[N]o one 
disputes that `any individual' in Sec. 4(a)(1) refers to job 
applicants. And a word or phrase is presumed to bear the same meaning 
throughout the text.''); and see Rabin, 236 F.Supp.3d at 1128 (``The 
plain language of the statute supports the more inclusive 
interpretation.'').
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    In fact, the Supreme Court already agreed with this 
interpretation in the context of disparate impact claims under 
Title VII. Title VII is an authoritative source for 
interpreting the ADEA because, in the words of the Court, the 
ADEA was ```derived in haec verba from Title VII.'''\26\ As 
enacted in 1967, the ADEA's disparate impact language was 
identical to the disparate impact language in section 703(a)(2) 
of Title VII.\27\ Interpreting this shared language in their 
1971 decision, Griggs v. Duke Power, the Supreme Court held job 
applicants can in fact sue for disparate impact discrimination 
on the basis of race.\28\
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    \26\See Smith, 544 U.S. at 233-34 (citing Lorillard v. Pons, 434 
U.S. 575, 584 (1978)).
    \27\Civil Rights Act of 1964, Pub. L. No. 88-352, Sec. 703, 78 
Stat. 241.
    \28\Griggs v. Duke Power, 401 U.S. 424, 430-31 (1971) (holding 
employer was prohibited from requiring a high school education or 
passing of a standardized general intelligence test as a condition of 
employment in or transfer to jobs). The Supreme Court's ``unanimous 
interpretation of Sec. 703(a)(2) of Title VII in Griggs is therefore a 
precedent of compelling importance'' in interpretating the ADEA 
Sec. 623(a)(2). See Smith, 544 U.S. at 234.
---------------------------------------------------------------------------
    Griggs is the foundational case for interpreting disparate 
impact in civil rights cases and a ``precedent of compelling 
importance.''\29\ Therein, African American jobseekers and 
employees who were seeking promotions were harmed by long-
standing practices that invidiously discriminated on the basis 
of race.\30\ Writing for the majority, Chief Justice Burger 
identified job applicants as a class of workers capable of 
suing under the disparate impact language: ``Congress has now 
required that the posture and condition of the job-seeker be 
taken into account.''\31\ Justice Burger's use of the term 
`job-seeker' without specifying the particular protected class 
in Griggs, also underscores the shared purpose of the disparate 
impact language in these civil rights laws: discriminatory 
practices that disparately harm workers on the basis of race 
should be equally resisted on the basis of all protected 
categories like sex, religion, ability, and age.
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    \29\Smith, 544 U.S. at 233-34.
    \30\Griggs, 401 U.S. at 430-31.
    \31\Id. at 431 (emphasis added).
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    Subsequent to the Griggs decision, Congress amended the 
Title VII disparate impact provision to adopt the common law 
interpretation of that statute, adding `applicants for 
employment' in the Equal Employment Opportunity Act of 
1972.\32\ It should be noted, this amendment was not intended 
to distinguish Title VII from disparate impact provisions in 
other civil rights laws, rather, the Congressional Record 
states the amendment was ``merely declaratory of present laws'' 
and meant to ``make it clear that discrimination against 
applicants for employment . . . is an unlawful employment 
practice.''\33\
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    \32\Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 
Sec. 7, 86 Stat. 103.
    \33\Kleber, 914 F.3d 501 (Hamilton, J. dissenting) (citing 118 
Cong. Rec. 7,169 (1972)). The Senate report reiterated the amendment 
would ``merely be declaratory of present law.'' Id.
---------------------------------------------------------------------------
    Federal courts also did not read this amendment to Title 
VII as a substantive change. Instead of distinguishing Title 
VII from the ADEA, federal circuit courts continued to 
recognize that civil rights laws, and the ADEA in particular, 
protect job applicants from disparate impact discrimination. 
This is evident in federal circuit cases in the decades 
following Griggs, wherein no fewer than five federal circuit 
courts allowed disparate impact claims made by job applicants 
under the ADEA.\34\ During this period, neither the courts nor 
employer-defendants questioned whether applicants had the 
ability to pursue a claim under the disparate impact provision 
of the ADEA. Although it was uncertain in these federal circuit 
decisions whether the ADEA authorized a disparate impact claim 
under the particular text of section 4(a)(1) or (2) (unclear 
until the Supreme Court's 2005 decision in Smith v. City of 
Jackson, Miss.),\35\ what is certain is that so long as a job 
applicant-plaintiff was a member of the 40-and-over protected 
class defined by section 12 of the ADEA, the applicant could 
file a suit relying on a disparate impact theory of the 
law.\36\
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    \34\See Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1423-24 
(10th Cir. 1993) (laid-off warehouse workers applying for jobs with new 
buyer of warehouse; summary judgment affirmed on separate issue); 
Wooden v. Board of Educ. of Jefferson Cty., 931 F.2d 376, 377 (6th Cir. 
1991) (applicant for full-time teaching position; summary judgment 
affirmed on separate issue); Lowe v. Commack Union Free Sch. Dist., 886 
F.2d 1364, 1365-70 (2d Cir. 1989) (laid-off teachers later re-applied 
but were not hired; motion to dismiss affirmed on other grounds); 
Geller v. Markham, 635 F.2d 1027, 1030 (2d Cir. 1980) (upholding jury 
award for teacher applicant temporarily hired, then passed over in 
favor of younger applicant due to `cost-cutting policy'); and see 
Leftwich v. Harris-Stowe State Coll., 702 F.2d 686, 689-90 (8th Cir. 
1983) (faculty member forced to re-apply for job and not hired).
    \35\Smith, 544 U.S. at 540 (clarifying that 29 U.S.C. 623(a)(2) 
supports a disparate impact theory of a claim).
    \36\See Smith, 544 U.S. at 228 (2005) (affirming ADEA disparate 
impact theory of a suit under Sec. 623(a)(2)).
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    For example, in the Second Circuit Court's 1980 decision 
Geller v. Markham, a teacher who applied for a school position, 
but was rejected in lieu of a younger applicant, successfully 
asserted a prima facie disparate impact claim by ``showing that 
an employer's facially neutral practice has a disparate impact 
upon members of plaintiff's class, in this case teachers over 
40 years of age.''\37\ There was no dispute or question about 
whether the plaintiff-teacher could sue for disparate impact as 
an outside applicant. The Supreme Court in Griggs already 
answered that question, and the purpose of the law itself was 
obvious: the ADEA prohibits age discrimination by employers 
against any individual. As the Eighth Circuit noted just three 
years later in their 1983 Leftwich decision:
---------------------------------------------------------------------------
    \37\Geller, 635 F.2d at 1032 (citing Griggs, 401 U.S. at 429-30).

          In enacting the ADEA, Congress was plainly concerned 
        about unemployment among older workers and the 
        difficulty they encounter in obtaining or retaining 
        employment. The express purpose of the Act is `to 
        promote employment of older persons based on their 
        ability rather than age' and `to prohibit arbitrary age 
        discrimination in employment.'\38\
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    \38\See Leftwich, 702 F.2d at 691.

    In addition to these federal circuit decisions, agency 
interpretations have always agreed that the ADEA disparate 
impact provision covers applicants. Originally, the Department 
of Labor (DOL) was tasked with administering the ADEA. In 1968, 
the DOL issued regulations for interpreting the Reasonable 
Factors Other than Age (RFOA) defense, which eventually became 
the affirmative RFOA defense to disparate impact claims as it 
is known today. The DOL explained therein that hiring policies 
are also subject to disparate impact coverage: ``The clear 
purpose is to insure [sic] that age, within the limits 
prescribed by the Act, is not a determining factor in making 
any decision regarding hiring, dismissal, promotion or any 
other term, condition or privilege of employment of an 
individual.''\39\
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    \39\33 Fed. Reg. 9173 (1968).
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    The EEOC, tasked with enforcing the ADEA since 1978, has 
also ``long interpreted the ADEA as permitting disparate impact 
claims by job-seekers.''\40\ As the EEOC argued in a 1995 ADEA 
disparate impact case, ``By its express terms, section 4(a)(2) 
is not limited to protecting incumbent employees . . . the 
employer may not engage in such conduct `in any way which would 
deprive or tend to deprive any individual of employment 
opportunities.'''\41\ It is particularly confounding that the 
Seventh and Eleventh Circuit decisions barring ADEA disparate 
impact claims to applicants largely ignored these consistent 
agency interpretations of the statute, particularly given the 
Supreme Court has provided wide deference to the EEOC's 
interpretations of section 4(a)(2) in the past.\42\
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    \40\Rabin, 236 F.Supp.3d at 1132. See also Villarreal, 839 F.3d at 
989 (Martin, J. dissenting).
    \41\Brief for the Petitioner, Equal Emp. Opportunity Comm'n v. 
Francis W. Parker Sch., 1995 WL 17047545, 13 (1995) (No. 94-1558) 
(Appellate Petition, Motion and Filing), cert. denied, 515 U.S. 1142 
(1995).
    \42\See Smith, 544 U.S. at 239-40.
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    For forty-five consecutive years, the history, text, and 
authoritative interpretations of the ADEA disparate impact 
provision indicated that it protected older job applicants from 
age discriminate hiring practices.

  THE SEVENTH AND ELEVENTH FEDERAL CIRCUIT COURT DECISIONS DISREGARD 
 HISTORY AND ELIMINATE AN IMPORTANT LEGAL TOOL FOR OLDER JOB APPLICANTS

    The factual records of the Villarreal and Kleber decisions 
reflect the sort of widespread, endemic hiring discrimination 
originally criticized by the Wirtz Report, and which still 
harms older workers to this day. These cases underscore the 
need for Congress to clarify the disparate impact provision of 
the ADEA for older job applicants.
    On November 8, 2007, 49-year-old Richard Villarreal applied 
for a manager position at R.J. Reynolds Tobacco Company 
(RJR).\43\ RJR hiring guidelines described the target candidate 
as someone who was ``2-3 years out of college'' and to exclude 
applicants with ``8-10 years'' of experience in sales.\44\ 
Villarreal had over 8 years of sales experience and graduated 
from college well over 3 years prior to applying for the job at 
RJR.\45\ His application was rejected, presumptively for 
exceeding these experience requirements. Villarreal filed suit 
in federal court for age discrimination based on a hiring 
practice with an age discriminate disparate impact on older 
workers.\46\
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    \43\Villarreal, 839 F.3d at 961.
    \44\Id.
    \45\Villarreal v. R.J. Reynolds Tobacco Co., No. 2:12-CV-0138-RWS, 
2013 WL 823055, at *1 (N.D. Ga. Mar. 6, 2013).
    \46\Villarreal, 839 F.3d at 961.
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    Although Villarreal's suit was dismissed by the district 
court, Villarreal won his appeal before a panel of the Eleventh 
Circuit Court of Appeals. The majority opinion deferred to the 
expertise of the EEOC, concluding that ``the agency charged 
with enforcing the ADEA, has reasonably and consistently 
interpreted the statute to cover claims like Mr. 
Villarreal's.''\47\ After RJR appealed for a rehearing in front 
of the entire Eleventh Circuit sitting en banc, the panel 
decision was reversed, and the court held that 29 U.S.C. 
Sec. 623(a)(2) does not allow job applicant disparate impact 
claims.\48\
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    \47\Villarreal v. R.J. Reynolds Tobacco Co., 806 F.3d 1288, 1290 
(11th Cir. 2015), reh'g en banc granted, opinion vacated, No. 15-10602, 
2016 WL 635800 (11th Cir. Feb. 10, 2016).
    \48\Villarreal, 839 F.3d at 958.
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    The Seventh Circuit's Kleber decision was similarly 
contentious. In 2014, 59-year-old Dale Kleber applied for a 
senior in-house counsel position with CareFusion 
Corporation.\49\ Kleber had significant prior legal and 
corporate management experience as the CEO of a national dairy 
trade association, general counsel to a Fortune 500 
corporation, and Chairman and interim CEO of a medical device 
manufacturer.\50\ Although the open position was titled 
``Senior Counsel,'' the job description also included that 
applicants should have ``3 to 7 years (no more than 7 years) of 
relevant legal experience.''\51\ CareFusion did not select 
Kleber for an interview and ultimately hired an applicant who 
was twenty-nine years old.\52\
---------------------------------------------------------------------------
    \49\Kleber v. CareFusion Corp., No. 15-CV-1994, 2015 WL 7423778, at 
*1 (N.D. Ill. Nov. 23, 2015).
    \50\Id.
    \51\Id.
    \52\Id.
---------------------------------------------------------------------------
    As with Villarreal, Kleber originally prevailed before a 
panel of the Seventh Circuit Court of Appeals. In addition to 
deferring to the history and congressional intent behind the 
ADEA disparate impact provision, the court pointed out the 
``improbable view that the Act outlawed employment practices 
with disparate impact on older workers, but limited the 
protection to those already employed by the employer in 
question.''\53\ In other words, it is illogical to suggest 
Kleber could not sue for age discrimination because he was an 
outside applicant, but a lawyer of the same age and having the 
same qualifications as Kleber already employed by CareFusion 
would be able to sue for age discrimination as an inside 
applicant. Essentially, barring Kleber from making a disparate 
impact claim would mean ``the ADEA prohibits hiring 
discrimination, but not for job applicants!''\54\
---------------------------------------------------------------------------
    \53\Kleber v. CareFusion Corp., 888 F.3d 868, 879 (7th Cir. 2018); 
see also Kleber, 914 F.3d at 505 (Hamilton, J. dissenting).
    \54\Fighting for Fairness: Examining Legislation to Confront 
Workplace Discrimination: Hearing Before the Joint Subcomm's on Civil 
Rights and Human Services and Workforce Protections of the H. Comm. on 
Educ. and Labor, 117th Cong. (2021) (written statement of Laurie 
McCann, Senior Attorney, AARP Foundation).
---------------------------------------------------------------------------
    This irony was lost on a rehearing before the entire 
Seventh Circuit sitting en banc. The Seventh Circuit ignored 
the long history of giving the ADEA similar treatment to Title 
VII and the EEOC's own legal interpretation supporting 
applicant disparate impact coverage.\55\ Instead, the Seventh 
Circuit distinguished the ADEA from the declaratory amendment 
that added applicant language to Title VII in 1972, despite the 
evidence of the Congressional Record weighing against this 
interpretation.\56\
---------------------------------------------------------------------------
    \55\``The language of section 4(a)(2) of the ADEA, the Griggs 
Court's interpretation of identical statutory language in Title VII as 
encompassing disparate impact claims by applicants, and the ADEA's 
underlying purposes all support the conclusion that the ADEA authorizes 
disparate impact claims by applicants who are harmed by hiring criteria 
that are facially neutral but, in practice, deny employment 
opportunities to individuals on the basis of their age. Moreover, the 
longstanding agency interpretation of the ADEA recognizes that 
applicants may pursue ADEA disparate impact claims, making this `an 
absolutely classic case for deference to agency interpretation.''' 
Brief of the U.S. Equal Emp. Opportunity Comm'n as Amici Curiae 
Supporting Plaintiff-Appellant, Villarreal v. R.J. Reynolds Co., et 
al., 806 F.3d 1288 (2015) (No. 15-10602), 2015 WL 1508771 (citing 
Smith, 544 U.S. at 243).
    \56\Kleber, 914 F.3d at 485-86; see also Cong. Rec. supra note 33.
---------------------------------------------------------------------------
    As a matter of practical application, Villarreal and Kleber 
create a problematic loophole in the ADEA, opening the door for 
employers to engage in invidious age discrimination in hiring. 
It is not enough to suggest older applicants are still 
protected under a disparate treatment claim (intentional 
discrimination); the most salient problem older workers face in 
hiring is not plainly visible, intentional age discrimination, 
but neutral practices which disparately harm older workers.\57\ 
These practices, like the experience caps and college 
graduation year requirements exhibited in Villarreal and 
Kleber, can only be counteracted by relying on a disparate 
impact theory of a legal claim. By passing POJA, Congress can 
ensure future older individuals who are seeking new employment, 
harmed as Villarreal and Kleber were, are at least given an 
opportunity to file a federal claim in court and challenge 
these discriminatory practices.
---------------------------------------------------------------------------
    \57\See Lindsey A. Viscomi, Note, ``Over-the-Hill'' Yet Still 
Fighting Uphill Battles to Find Jobs: The Plight of Older Job 
Applicants Under the ADEA, 52 Conn. L. Rev. 505, 532 (2020).
---------------------------------------------------------------------------
    The Villarreal and Kleber decisions also draw an arbitrary 
and problematic legal line for determining who is an outside or 
inside applicant and allowed to bring a disparate impact claim 
under the ADEA. For example, are employers allowed to use age 
or years-of-experience hiring requirements against furloughed 
employees who attempt to return to their former jobs?\58\ This 
is now uncertain within the boundaries of the Seventh and 
Eleventh Circuits. Of course, this question should never be 
asked at all; age discrimination is wrong in any context.
---------------------------------------------------------------------------
    \58\Kleber, 914 F.3d at 506.
---------------------------------------------------------------------------
    Additionally, Villarreal and Kleber will create a federal 
circuit split in the ADEA if other federal circuits choose to 
adopt the more persuasive interpretation that older job 
applicants are covered by the disparate impact provision. 
Indeed, two district courts have already chosen not to follow 
the Villarreal decision,\59\ indicating that a circuit split is 
in fact likely to occur. Circuit splits are an undesirable 
outcome; they turn federal laws into a patchwork of different 
rules, leading to confusion and disparities in the treatment of 
workers between states. Congress has an obligation to ensure 
federal laws, including the ADEA, can be applied consistently 
on a nationwide basis whenever it is possible to do so.
---------------------------------------------------------------------------
    \59\See Rabin v. PricewaterhouseCoopers LLP, 236 F.Supp.3d 1126 
(N.D. Cal. 2017); Champlin v. Manpower Inc., No. 4:16-CV-00421, 2018 WL 
572997 (S.D. Tex. Jan. 24, 2018).
---------------------------------------------------------------------------
    Finally, there is growing criticism of Villarreal and 
Kleber in the wider legal community. Both the Northern District 
of California and the Southern District of Texas specifically 
declined to follow the Villarreal holding.\60\ In the Northern 
District of California's 2018 Rabin v. PricewaterhouseCoopers 
LLP holding, United States District Judge Jon S. Tigar 
contemplated Villarreal at length, concluding: ``The text of 
the statute therefore contradicts the Villarreal majority's 
conclusion that `4(a)(2) protects an individual only if he has 
a status as an employee.'''\61\ In a recent law review article, 
former Deputy Secretary of Labor Seth D. Harris argues that 
Villarreal and Kleber ``Exacerbat[e] th[e] result'' of 
disparate impact claim failures in the courts for older workers 
and recommends that ``Congress also should amend the ADEA to 
allow disparate impact claims by job applicants'' to ``ensure 
that seemingly age-neutral policies or practices adversely 
impacting older job applicants . . . may be challenged 
successfully in court.''\62\
---------------------------------------------------------------------------
    \60\See id. 
    \61\Rabin, 236 F.Supp.3d at 1129.
    \62\Seth D. Harris, Increasing Employment for Older Workers with 
Effective Protections Against Employment Discrimination, 30 Cornell 
J.L. & Pub. Pol'y 199, 209, 224 (2020).
---------------------------------------------------------------------------

         DISPARATE IMPACT AGE DISCRIMINATION AFFECTS MILLIONS 
                            OF OLDER WORKERS

    Age discriminate practices are still widely embedded in 
employer hiring decision processes. In 2017, the Federal 
Reserve Bank of San Francisco conducted a study to assess age 
discrimination in hiring, sending similar resumes to over 
``13,000 positions in 12 cities across 11 states, totaling more 
than 40,000 applicants,'' to determine if employers were less 
likely to respond to the resumes of older applicants compared 
to the resumes of younger applicants.\63\ The results showed 
that for all five job position types studied, ``the callback 
rate was higher for younger applicants and lower for older 
applicants, consistent with age discrimination in hiring.''\64\ 
This study also indicates age discrimination intersects with 
other forms of hiring discrimination such as gender 
discrimination, as older women applicants ``face worse age 
discrimination than men.''\65\
---------------------------------------------------------------------------
    \63\David Neumark, et. al., Age Discrimination and Hiring of Older 
Workers, Fed. Reserve Bank of San Francisco (Feb. 27, 2017), https://
www.frbsf.org/economic-research/publications/economic-letter/2017/
february/age-discrimination-and-hiring-older-workers/.
    \64\Id.
    \65\Id.
---------------------------------------------------------------------------
    Tolerating this sort of age discrimination imposes needless 
consequences for older Americans and ripples into a drag on the 
overall economy. As of July 2021, over 3.8 million workers age 
40-and-over are unemployed.\66\ When older workers lose their 
jobs, they are more likely to endure long-term unemployment 
(defined as 27 weeks or longer).\67\ Among workers ages 40 to 
65 who reported that they lost a job in 2020, 74 percent said 
they have been unemployed for more than six months.\68\ 
Discouraged older workers who are forced into an early 
retirement must accept permanently lower Social Security 
benefits and possibly rely on insufficient retirement 
savings.\69\
---------------------------------------------------------------------------
    \66\Bureau of Lab. Stat., supra note 1.
    \67\Jennifer Schramm, Many Older Jobseekers are not Long-Term 
Unemployed, AARP (Jan. 12, 2021), https://blog.aarp.org/thinking-
policy/many-jobseekers-long-term-unemployed.
    \68\Id.
    \69\Christian Weller, Working Longer Was A Retirement Plan Until It 
Wasn't, Forbes (Aug. 4, 2020), https://www.forbes.com/sites/
christianweller/2020/08/04/working-longer-was-a-retirement-plan-until-
it-wasnt/?sh=5736871e3e70.
---------------------------------------------------------------------------
    These costs place enormous weight on the economy at large. 
A study by AARP Foundation and the Economist Intelligence Unit 
estimates that age discrimination costs the U.S. economy a 
potential $850 billion in gross domestic product (GDP) each 
year.\70\ In particular, this substantial cost arises from the 
lost earnings of workers 50 and over who are unable to remain 
in or re-enter the labor force, switch jobs, or be promoted 
within their existing company.\71\
---------------------------------------------------------------------------
    \70\AARP & The Economist, The Economic Impact of Age Discrimination 
6 (2020), https://www.aarp.org/content/dam/aarp/research/surveys--
statistics/econ/2020/impact-of-age-discrimination.doi.10.26419-
2Fint.00042.003.pdf.
    \71\Id.
---------------------------------------------------------------------------

                               CONCLUSION

    Without the ADEA disparate impact provision, millions of 
older job-seeking workers are defenseless against covert and 
invidious age discriminate hiring practices identified by the 
Wirtz Report over a half-century ago and that persist today. 
Congress must pass POJA to restore full application of this 
vital legal tool and protect older workers applying for jobs.

                      Section-By-Section Analysis


Sec. 1. Short title

    This section specifies that the title of the bill may be 
cited as the Protect Older Job Applicants Act of 2021 or POJA 
Act of 2021.

Sec. 2. Prohibition against limited, segregating, or classifying 
        applicants for employment

    This section amends the Age Discrimination in Employment 
Act of 1967 disparate impact provision, Sec. 623(a)(2), by 
adding a reference to ``applicants for employment'' for the 
purpose of including older job applicants as a group of workers 
who can bring an ADEA disparate impact claim in court.

                       Explanation of Amendments

    The amendments, including the amendment in the nature of a 
substitute, are explained in the descriptive portions of this 
report.

              Application of Law to the Legislative Branch

    Pursuant to section 102(b)(3) of the Congressional 
Accountability Act of 1995, Pub. L. No. 104-1, H.R. 3992, as 
amended, applies to terms and conditions of employment within 
the legislative branch because the law amended by H.R. 3992 
(ADEA) is included within the list of laws applicable to the 
legislative branch enumerated in section 102(a) of the 
Congressional Accountability Act of 1995.

                       Unfunded Mandate Statement

    Pursuant to section 423 of the Congressional Budget and 
Impoundment Control Act of 1974, Pub. L. No. 93-344 (as amended 
by section 101(a)(2) of the Unfunded Mandates Reform Act, Pub. 
L. 104-4), H.R. 3992, as amended, contains no intergovernmental 
or private-sector mandates as defined by the Unfunded Mandates 
Reform Act. Section 4 of the Unfunded Mandates Reform Act 
excludes from the application of that act any legislative 
provisions that would establish or enforce statutory rights 
prohibiting discrimination ``on the basis of race, color, 
religion, sex, national origin, age, handicap, or disability.'' 
CBO has determined that this legislation falls within that 
exclusion because it would extend protections against 
discrimination based on age in the workplace.

                           Earmark Statement

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 3992 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as described in clauses 9(e), 9(f), and 9(g) of rule 
XXI.

                            Roll Call Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following roll call votes occurred during the Committee's 
consideration of H.R. 3992:


		[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

             Statement of Performance Goals and Objectives

    Pursuant to clause (3)(c)(4) of rule XIII of the Rules of 
the House of Representatives, the goal of H.R. 3992 is to 
improve the lives of American workers and job seekers by 
clarifying protections against age discrimination in hiring. 
The legislation achieves this by clarifying that the ADEA 
disparate impact provision includes job applicants.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of rule XIII of the Rules of the 
House of Representatives, the Committee states that no 
provision of H.R. 3992 is known to be duplicative of another 
federal program, including any program that was included in a 
report to Congress pursuant to section 21 of Public Law 111-139 
or the most recent Catalog of Federal Domestic Assistance.

                                Hearings

    On March 18, 2021, pursuant to clause 3(c)(6) of rule XIII 
of the Rules of the House of Representatives, the Committee's 
Subcommittee on Civil Rights and Human Services and 
Subcommittee on Workforce Protections held a joint hearing 
entitled ``Fighting for Fairness: Examining Legislation to 
Confront Workplace Discrimination,'' which was used to develop 
H.R. 3992. Relevant to H.R. 3992, the Committee heard testimony 
from Laurie McCann, Senior Attorney representing AARP 
Foundation, who testified about the impact of age 
discrimination on the workforce and offered recommendations for 
improving legal protections under the ADEA for older workers. 
Ms. McCann also discussed the Seventh Circuit's Kleber decision 
and the trend of judicial holdings reducing the ADEA's legal 
protections for older job applicants.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the descriptive portions of this report.

               New Budget Authority and CBO Cost Estimate

    Pursuant to clause 3(c)(2) of rule XIII of the Rules of the 
House of Representatives and section 308(a) of the 
Congressional Budget and Impoundment Control Act of 1974, and 
pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives and section 402 of the Congressional 
Budget and Impoundment Control Act of 1974, the Committee has 
received the following estimate for H.R. 3992 from the Director 
of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, September 1, 2021.
Hon. Robert C. ``Bobby'' Scott,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3992, the Protect 
Older Job Applicants Act of 2021.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Meredith 
Decker.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

    	[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

    H.R. 3992 would 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. 
Clarifying the law to include job applicants could increase the 
number of age discrimination claims filed with the Equal 
Employment Opportunity Commission (EEOC). Based on current 
practice, CBO expects that enacting the bill would not 
significantly increase the number of claims filed with the EEOC 
or the agency's workload and would thus not have any 
significant costs; any spending would be subject to the 
availability of appropriated funds.
    CBO has not reviewed H.R. 3992 for intergovernmental or 
private-sector mandates. Section 4 of the Unfunded Mandates 
Reform Act excludes from the application of that act any 
legislative provisions that would establish or enforce 
statutory rights prohibiting discrimination. CBO has determined 
that this legislation falls within that exclusion because it 
would extend protections against discrimination in the 
workplace based on age.
    The CBO staff contact for this estimate is Meredith Decker. 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Director of Budget Analysis.

                        Committee Cost Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 3992. 
However, clause 3(d)(2)(B) of that rule provides that this 
requirement does not apply when the committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget and Impoundment 
Control Act of 1974.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, H.R. 3992, as reported, are shown as follows:

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

              AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967




           *       *       *       *       *       *       *
                   prohibition of age discrimination

  Sec. 4. (a) It shall be unlawful for an employer--
          (1) to fail or refuse to hire or to discharge any 
        individual or otherwise discriminate against any 
        individual with respect to his compensation, terms, 
        conditions, or privileges of employment, because of 
        such individual's age;
          (2) to limit, segregate, or classify his employees or 
        applicants for employment in any way which would 
        deprive or tend to deprive any individual of employment 
        opportunities or otherwise adversely affect his status 
        as an employee or as an applicant for employment, 
        because of such individual's age; or
          (3) to reduce the wage rate of any employee in order 
        to comply with this Act.
  (b) It shall be unlawful for an employment agency to fail or 
refuse to refer for employment, or otherwise to discriminate 
against, any individual because of such individual's age, or to 
classify or refer for employment any individual on the basis of 
such individual's age.
  (c) It shall be unlawful for a labor organization--
          (1) to exclude or to expel from its membership, or 
        otherwise to discriminate against, any individual 
        because of his age;
          (2) to limit, segregate, or classify its membership, 
        or to classify or fail or refuse to refer for 
        employment any individual, in any way which would 
        deprive or tend to deprive any individual of employment 
        opportunities, or would limit such employment 
        opportunities or otherwise adversely affect his status 
        as an employee or as an applicant for employment, 
        because of such individual's age;
          (3) to cause or attempt to cause an employer to 
        discriminate against an individual in violation of this 
        section.
  (d) It shall be unlawful for an employer to discriminate 
against any of his employees or applicants for employment, for 
an employment agency to discriminate against any individual, or 
for a labor organization to discriminate against any member 
thereof or applicant for membership, because such individual, 
member or applicant for membership has opposed any practice 
made unlawful by this section, or because such individual, 
member or applicant for membership has made a charge, 
testified, assisted, or participated in any manner in an 
investigation, proceeding, or litigation under this Act.
  (e) It shall be unlawful for an employer, labor organization, 
or employment agency to print or publish, or cause to be 
printed or published, any notice or advertisement relating to 
employment by such an employer or membership in or any 
classification or referral for employment by such a labor 
organization, or relating to any classification or referral for 
employment by such an employment agency, indicating any 
preference, limitation, specification, or discrimination, based 
on age.
  (f) It shall not be unlawful for an employer, employment 
agency, or labor organization--
          (1) to take any action otherwise prohibited under 
        subsections (a), (b), (c), or (e) of this section where 
        age is a bona fide occupational qualification 
        reasonably necessary to the normal operation of the 
        particular business, or where the differentiation is 
        based on reasonable factors other than age, or where 
        such practices involve an employee in a workplace in a 
        foreign country, and compliance with such subsections 
        would cause such employer, or a corporation controlled 
        by such employer, to violate the laws of the country in 
        which such workplace is located;
          (2) to take any action otherwise prohibited under 
        subsection (a), (b), (c), or (e) of this section--
                  (A) to observe the terms of a bona fide 
                seniority system that is not intended to evade 
                the purposes of this Act, except that no such 
                seniority system shall require or permit the 
                involuntary retirement of any individual 
                specified by section 12(a) because of the age 
                of such individual; or
                  (B) to observe the terms of a bona fide 
                employee benefit plan--
                          (i) where, for each benefit or 
                        benefit package, the actual amount of 
                        payment made or cost incurred on behalf 
                        of an older worker is no less than that 
                        made or incurred on behalf of a younger 
                        worker, as permissible under section 
                        1625.10, title 29, Code of Federal 
                        Regulations (as in effect on June 22, 
                        1989); or
                          (ii) that is a voluntary early 
                        retirement incentive plan consistent 
                        with the relevant purpose or purposes 
                        of this Act.
        Notwithstanding clause (i) or (ii) of subparagraph (B), 
        no such employee benefit plan or voluntary early 
        retirement incentive plan shall excuse the failure to 
        hire any individual, and no such employee benefit plan 
        shall require or permit the involuntary retirement of 
        any individual specified by section 12(a), because of 
        the age of such individual. An employer, employment 
        agency, or labor organization acting under subparagraph 
        (A), or under clause (i) or (ii) of subparagraph (B), 
        shall have the burden of proving that such actions are 
        lawful in any civil enforcement proceeding brought 
        under this Act; or
          (3) to discharge or otherwise discipline an 
        individual for good cause.
  (h)(1) If an employer controls a corporation whose place of 
incorporation is in a foreign country, any practice by such 
corporation prohibited under this section shall be presumed to 
be such practice by such employer.
  (2) The prohibitions of this section shall not apply where 
the employer is a foreign person not controlled by an American 
employer.
  (3) For the purpose of this subsection the determination of 
whether an employer controls a corporation shall be based upon 
the--
          (A) interrelation of operations,
          (B) common management,
          (C) centralized control of labor relations, and
          (D) common ownership or financial control,
of the employer and the corporation.
  (i)(1) Except as otherwise provided in this subsection, it 
shall be unlawful for an employer, an employment agency, a 
labor organization, or any combination thereof to establish or 
maintain an employee pension benefit plan which requires or 
permits--
          (A) in the case of a defined benefit plan, the 
        cessation of an employee's benefit accrual, or the 
        reduction of the rate of an employee's benefit accrual, 
        because of age, or
          (B) in the case of a defined contribution plan, the 
        cessation of allocations to an employee's account, or 
        the reduction of the rate at which amounts are 
        allocated to an employee's account, because of age.
  (2) Nothing in this section shall be construed to prohibit an 
employer, employment agency, or labor organization from 
observing any provision of an employee pension benefit plan to 
the extent that such provision imposes (without regard to age) 
a limitation on the amount of benefits that the plan provides 
or a limitation on the number of years of service or years of 
participation which are taken into account for purposes of 
determining benefit accrual under the plan.
  (3) In the case of any employee who, as of the end of any 
plan year under a defined benefit plan, has attained normal 
retirement age under such plan--
          (A) if distribution of benefits under such plan with 
        respect to such employee has commenced as of the end of 
        such plan year, then any requirement of this subsection 
        for continued accrual of benefits under such plan with 
        respect to such employee during such plan year shall be 
        treated as satisfied to the extent of the actuarial 
        equivalent of in-service distribution of benefits, and
          (B) if distribution of benefits under such plan with 
        respect to such employee has not commenced as of the 
        end of such year in accordance with section 206(a)(3) 
        of the Employee Retirement Income Security Act of 1974 
        and section 401(a)(14)(C) of the Internal Revenue Code 
        of 1986, and the payment of benefits under such plan 
        with respect to such employee is not suspended during 
        such plan year pursuant to section 203(a)(3)(B) of the 
        Employee Retirement Income Security Act of 1974 or 
        section 411(a)(3)(B) of the Internal Revenue Code of 
        1986, then any requirement of this subsection for 
        continued accrual of benefits under such plan with 
        respect to such employee during such plan year shall be 
        treated as satisfied to the extent of any adjustment in 
        the benefit payable under the plan during such plan 
        year attributable to the delay in the distribution of 
        benefits after the attainment of normal retirement age.
The provisions of this paragraph shall apply in accordance with 
regulations of the Secretary of the Treasury. Such regulations 
shall provide for the application of the preceding provisions 
of this paragraph to all employee pension benefit plans subject 
to this subsection and may provide for the application of such 
provisions, in the case of any such employee, with respect to 
any period of time within a plan year.
  (4) Compliance with the requirements of this subsection with 
respect to an employee pension benefit plan shall constitute 
compliance with the requirements of this section relating to 
benefit accrual under such plan.
  (5) Paragraph (1) shall not apply with respect to any 
employee who is a highly compensated employee (within the 
meaning of section 414(q) of the International Revenue Code of 
1986) to the extent provided in regulations prescribed by the 
Secretary of the Treasury for purposes of precluding 
discrimination in favor of highly compensated employees within 
the meaning of subchapter D of chapter 1 of the Internal 
Revenue Code of 1986.
  (6) A plan shall not be treated as failing to meet the 
requirements of paragraph (1) solely because the subsidized 
portion of any early retirement benefit is disregarded in 
determining benefit accruals or it is a plan permitted by 
subsection (m)..
  (7) Any regulations prescribed by the Secretary of the 
Treasury pursuant to clause (v) of section 411(b)(1)(H) of the 
Internal Revenue Code of 1986 and subparagraphs (C) and (D) of 
section 411(b)(2) of such Code shall apply with respect to the 
requirements of this subsection in the same manner and to the 
same extent as such regulations apply with respect to the 
requirements of such sections 411(b)(1)(H) and 411(b)(2).
  (8) A plan shall not be treated as failing to meet the 
requirements of this section solely because such plan provides 
a normal retirement age described in section 3(24)(B) of the 
Employee Retirement Income Security Act of 1974 and section 
411(a)(8)(B) of the Internal Revenue Code of 1986.
  (9) For purposes of this subsection--
          (A) The terms ``employee pension benefit plan'', 
        ``defined benefit plan'', ``defined contribution 
        plan'', and ``normal retirement age'' have the meanings 
        provided such terms in section 3 of the Employee 
        Retirement Income Security Act of 1974 (29 U.S.C. 
        1002).
          (B) The term ``compensation'' has the meaning 
        provided by section 414(s) of the Internal Revenue Code 
        of 1986.
          (10) Special rules relating to age.--
                  (A) Comparison to similarly situated younger 
                individual.--
                          (i) In general.--A plan shall not be 
                        treated as failing to meet the 
                        requirements of paragraph (1) if a 
                        participant's accrued benefit, as 
                        determined as of any date under the 
                        terms of the plan, would be equal to or 
                        greater than that of any similarly 
                        situated, younger individual who is or 
                        could be a participant.
                          (ii) Similarly situated.--For 
                        purposes of this subparagraph, a 
                        participant is similarly situated to 
                        any other individual if such 
                        participant is identical to such other 
                        individual in every respect (including 
                        period of service, compensation, 
                        position, date of hire, work history, 
                        and any other respect) except for age.
                          (iii) Disregard of subsidized early 
                        retirement benefits.--In determining 
                        the accrued benefit as of any date for 
                        purposes of this clause, the subsidized 
                        portion of any early retirement benefit 
                        or retirement-type subsidy shall be 
                        disregarded.
                          (iv) Accrued benefit.--For purposes 
                        of this subparagraph, the accrued 
                        benefit may, under the terms of the 
                        plan, be expressed as an annuity 
                        payable at normal retirement age, the 
                        balance of a hypothetical account, or 
                        the current value of the accumulated 
                        percentage of the employee's final 
                        average compensation.
                  (B) Applicable defined benefit plans.--
                          (i) Interest credits.--
                                  (I) In general.--An 
                                applicable defined benefit plan 
                                shall be treated as failing to 
                                meet the requirements of 
                                paragraph (1) unless the terms 
                                of the plan provide that any 
                                interest credit (or an 
                                equivalent amount) for any plan 
                                year shall be at a rate which 
                                is not greater than a market 
                                rate of return. A plan shall 
                                not be treated as failing to 
                                meet the requirements of this 
                                subclause merely because the 
                                plan provides for a reasonable 
                                minimum guaranteed rate of 
                                return or for a rate of return 
                                that is equal to the greater of 
                                a fixed or variable rate of 
                                return.
                                  (II) Preservation of 
                                capital.--An interest credit 
                                (or an equivalent amount) of 
                                less than zero shall in no 
                                event result in the account 
                                balance or similar amount being 
                                less than the aggregate amount 
                                of contributions credited to 
                                the account.
                                  (III) Market rate of 
                                return.--The Secretary of the 
                                Treasury may provide by 
                                regulation for rules governing 
                                the calculation of a market 
                                rate of return for purposes of 
                                subclause (I) and for 
                                permissible methods of 
                                crediting interest to the 
                                account (including fixed or 
                                variable interest rates) 
                                resulting in effective rates of 
                                return meeting the requirements 
                                of subclause (I). In the case 
                                of a governmental plan (as 
                                defined in the first sentence 
                                of section 414(d) of the 
                                Internal Revenue Code of 1986), 
                                a rate of return or a method of 
                                crediting interest established 
                                pursuant to any provision of 
                                Federal, State, or local law 
                                (including any administrative 
                                rule or policy adopted in 
                                accordance with any such law) 
                                shall be treated as a market 
                                rate of return for purposes of 
                                subclause (I) and a permissible 
                                method of crediting interest 
                                for purposes of meeting the 
                                requirements of subclause (I), 
                                except that this sentence shall 
                                only apply to a rate of return 
                                or method of crediting interest 
                                if such rate or method does not 
                                violate any other requirement 
                                of this Act.
                          (ii) Special rule for plan 
                        conversions.--If, after June 29, 2005, 
                        an applicable plan amendment is 
                        adopted, the plan shall be treated as 
                        failing to meet the requirements of 
                        paragraph (1)(H) unless the 
                        requirements of clause (iii) are met 
                        with respect to each individual who was 
                        a participant in the plan immediately 
                        before the adoption of the amendment.
                          (iii) Rate of benefit accrual.--
                        Subject to clause (iv), the 
                        requirements of this clause are met 
                        with respect to any participant if the 
                        accrued benefit of the participant 
                        under the terms of the plan as in 
                        effect after the amendment is not less 
                        than the sum of--
                                  (I) the participant's accrued 
                                benefit for years of service 
                                before the effective date of 
                                the amendment, determined under 
                                the terms of the plan as in 
                                effect before the amendment, 
                                plus
                                  (II) the participant's 
                                accrued benefit for years of 
                                service after the effective 
                                date of the amendment, 
                                determined under the terms of 
                                the plan as in effect after the 
                                amendment.
                          (iv) Special rules for early 
                        retirement subsidies.--For purposes of 
                        clause (iii)(I), the plan shall credit 
                        the accumulation account or similar 
                        amount with the amount of any early 
                        retirement benefit or retirement-type 
                        subsidy for the plan year in which the 
                        participant retires if, as of such 
                        time, the participant has met the age, 
                        years of service, and other 
                        requirements under the plan for 
                        entitlement to such benefit or subsidy.
                          (v) Applicable plan amendment.--For 
                        purposes of this subparagraph--
                                  (I) In general.--The term 
                                ``applicable plan amendment'' 
                                means an amendment to a defined 
                                benefit plan which has the 
                                effect of converting the plan 
                                to an applicable defined 
                                benefit plan.
                                  (II) Special rule for 
                                coordinated benefits.--If the 
                                benefits of 2 or more defined 
                                benefit plans established or 
                                maintained by an employer are 
                                coordinated in such a manner as 
                                to have the effect of the 
                                adoption of an amendment 
                                described in subclause (I), the 
                                sponsor of the defined benefit 
                                plan or plans providing for 
                                such coordination shall be 
                                treated as having adopted such 
                                a plan amendment as of the date 
                                such coordination begins.
                                  (III) Multiple amendments.--
                                The Secretary of the Treasury 
                                shall issue regulations to 
                                prevent the avoidance of the 
                                purposes of this subparagraph 
                                through the use of 2 or more 
                                plan amendments rather than a 
                                single amendment.
                                  (IV) Applicable defined 
                                benefit plan.--For purposes of 
                                this subparagraph, the term 
                                ``applicable defined benefit 
                                plan'' has the meaning given 
                                such term by section 203(f)(3) 
                                of the Employee Retirement 
                                Income Security Act of 1974.
                          (vi) Termination requirements.--An 
                        applicable defined benefit plan shall 
                        not be treated as meeting the 
                        requirements of clause (i) unless the 
                        plan provides that, upon the 
                        termination of the plan--
                                  (I) if the interest credit 
                                rate (or an equivalent amount) 
                                under the plan is a variable 
                                rate, the rate of interest used 
                                to determine accrued benefits 
                                under the plan shall be equal 
                                to the average of the rates of 
                                interest used under the plan 
                                during the 5-year period ending 
                                on the termination date, and
                                  (II) the interest rate and 
                                mortality table used to 
                                determine the amount of any 
                                benefit under the plan payable 
                                in the form of an annuity 
                                payable at normal retirement 
                                age shall be the rate and table 
                                specified under the plan for 
                                such purpose as of the 
                                termination date, except that 
                                if such interest rate is a 
                                variable rate, the interest 
                                rate shall be determined under 
                                the rules of subclause (I).
                  (C) Certain offsets permitted.--A plan shall 
                not be treated as failing to meet the 
                requirements of paragraph (1) solely because 
                the plan provides offsets against benefits 
                under the plan to the extent such offsets are 
                allowable in applying the requirements of 
                section 401(a) of the Internal Revenue Code of 
                1986.
                  (D) Permitted disparities in plan 
                contributions or benefits.--A plan shall not be 
                treated as failing to meet the requirements of 
                paragraph (1) solely because the plan provides 
                a disparity in contributions or benefits with 
                respect to which the requirements of section 
                401(l) of the Internal Revenue Code of 1986 are 
                met.
                  (E) Indexing permitted.--
                          (i) In general.--A plan shall not be 
                        treated as failing to meet the 
                        requirements of paragraph (1) solely 
                        because the plan provides for indexing 
                        of accrued benefits under the plan.
                          (ii) Protection against loss.--Except 
                        in the case of any benefit provided in 
                        the form of a variable annuity, clause 
                        (i) shall not apply with respect to any 
                        indexing which results in an accrued 
                        benefit less than the accrued benefit 
                        determined without regard to such 
                        indexing.
                          (iii) Indexing.--For purposes of this 
                        subparagraph, the term ``indexing'' 
                        means, in connection with an accrued 
                        benefit, the periodic adjustment of the 
                        accrued benefit by means of the 
                        application of a recognized investment 
                        index or methodology.
                  (F) Early retirement benefit or retirement-
                type subsidy.--For purposes of this paragraph, 
                the terms ``early retirement benefit'' and 
                ``retirement-type subsidy'' have the meaning 
                given such terms in section 203(g)(2)(A) of the 
                Employee Retirement Income Security Act of 
                1974.
                  (G) Benefit accrued to date.--For purposes of 
                this paragraph, any reference to the accrued 
                benefit shall be a reference to such benefit 
                accrued to date.
  (j) It shall not be unlawful for an employer which is a 
State, a political subdivision of a State, an agency or 
instrumentality of a State or a political subdivision of a 
State, or an interstate agency to fail or refuse to hire or to 
discharge any individual because of such individual's age if 
such action is taken--
          (1) with respect to the employment of an individual 
        as a firefighter or as a law enforcement officer, the 
        employer has complied with section 3(d)(2) of the Age 
        Discrimination in Employment Amendments of 1996 if the 
        individual was discharged after the date described in 
        such section, and the individual has attained--
                  (A) the age of hiring or retirement, 
                respectively, in effect under applicable State 
                or local law on March 3, 1983; or
                  (B)(i) if the individual was not hired, the 
                age of hiring in effect on the date of such 
                failure or refusal to hire under applicable 
                State or local law enacted after the date of 
                enactment of the Age Discrimination in 
                Employment Amendments of 1996; or
                  (ii) if applicable State or local law was 
                enacted after the date of enactment of the Age 
                Discrimination in Employment Amendments of 1996 
                and the individual was discharged, the higher 
                of--
                          (I) the age of retirement in effect 
                        on the date of such discharge under 
                        such law; and
                          (II) age 55; and
          (2) pursuant to a bona fide hiring or retirement plan 
        that is not a subterfuge to evade the purposes of this 
        Act.
  (k) A seniority system or employee benefit plan shall comply 
with this Act regardless of the date of adoption of such system 
or plan.
  (l) Notwithstanding clause (i) or (ii) of subsection 
(f)(2)(B)--
  (1)(A) It shall not be a violation of subsection (a), (b), 
(c), or (e) solely because--
          (i) an employee pension benefit plan (as defined in 
        section 3(2) of the Employee Retirement Income Security 
        Act of 1974 (29 U.S.C. 1002(2))) provides for the 
        attainment of a minimum age as a condition of 
        eligibility for normal or early retirement benefits; or
          (ii) a defined benefit plan (as defined in section 
        3(35) of such Act) provides for--
                  (I) payments that constitute the subsidized 
                portion of an early retirement benefit; or
                  (II) social security supplements for plan 
                participants that commence before the age and 
                terminate at the age (specified by the plan) 
                when participants are eligible to receive 
                reduced or unreduced old-age insurance benefits 
                under title II of the Social Security Act (42 
                U.S.C. 401 et seq.), and that do not exceed 
                such old-age insurance benefits.
          (B) A voluntary early retirement incentive plan 
        that--
                  (i) is maintained by--
                          (I) a local educational agency (as 
                        defined in section 8101 of the 
                        Elementary and Secondary Education Act 
                        of 1965), or
                          (II) an education association which 
                        principally represents employees of 1 
                        or more agencies described in subclause 
                        (I) and which is described in section 
                        501(c) (5) or (6) of the Internal 
                        Revenue Code of 1986 and exempt from 
                        taxation under section 501(a) of such 
                        Code, and
                  (ii) makes payments or supplements described 
                in subclauses (I) and (II) of subparagraph 
                (A)(ii) in coordination with a defined benefit 
                plan (as so defined) maintained by an eligible 
                employer described in section 457(e)(1)(A) of 
                such Code or by an education association 
                described in clause (i)(II),
        shall be treated solely for purposes of subparagraph 
        (A)(ii) as if it were a part of the defined benefit 
        plan with respect to such payments or supplements. 
        Payments or supplements under such a voluntary early 
        retirement incentive plan shall not constitute 
        severance pay for purposes of paragraph (2).
  (2)(A) It shall not be a violation of subsection (a), (b), 
(c), or (e) solely because following a contingent event 
unrelated to age--
          (i) the value of any retiree health benefits received 
        by an individual eligible for an immediate pension;
          (ii) the value of any additional pension benefits 
        that are made available solely as a result of the 
        contingent event unrelated to age and following which 
        the individual is eligible for not less than an 
        immediate and unreduced pension; or
          (iii) the values described in both clauses (i) and 
        (ii),
are deducted from severance pay made available as a result of 
the contingent event unrelated to age.
  (B) For an individual who receives immediate pension benefits 
that are actuarially reduced under subparagraph (A)(i), the 
amount of the deduction available pursuant to subparagraph 
(A)(i) shall be reduced by the same percentage as the reduction 
in the pension benefits.
  (C) For purposes of this paragraph, severance pay shall 
include that portion of supplemental unemployment compensation 
benefits (as described in section 501(c)(17) of the Internal 
Revenue Code of 1986) that--
          (i) constitutes additional benefits of up to 52 
        weeks;
          (ii) has the primary purpose and effect of continuing 
        benefits until an individual becomes eligible for an 
        immediate and unreduced pension; and
          (iii) is discontinued once the individual becomes 
        eligible for an immediate and unreduced pension.
  (D) For purposes of this paragraph and solely in order to 
make the deduction authorized under this paragraph, the term 
``retiree health benefits'' means benefits provided pursuant to 
a group health plan covering retirees, for which (determined as 
of the contingent event unrelated to age)--
          (i) the package of benefits provided by the employer 
        for the retirees who are below age 65 is at least 
        comparable to benefits provided under title XVIII of 
        the Social Security Act (42 U.S.C. 1395 et seq.);
          (ii) the package of benefits provided by the employer 
        for the retirees who are age 65 and above is at least 
        comparable to that offered under a plan that provides a 
        benefit package with one-fourth the value of benefits 
        provided under title XVIII of such Act; or
          (iii) the package of benefits provided by the 
        employer is as described in clauses (i) and (ii).
  (E)(i) If the obligation of the employer to provide retiree 
health benefits is of limited duration, the value for each 
individual shall be calculated at a rate of $3,000 per year for 
benefit years before age 65, and $750 per year for benefit 
years beginning at age 65 and above.
  (ii) If the obligation of the employer to provide retiree 
health benefits is of unlimited duration, the value for each 
individual shall be calculated at a rate of $48,000 for 
individuals below age 65, and $24,000 for individuals age 65 
and above.
  (iii) The values described in clauses (i) and (ii) shall be 
calculated based on the age of the individual as of the date of 
the contingent event unrelated to age. The values are effective 
on the date of enactment of this subsection, and shall be 
adjusted on an annual basis, with respect to a contingent event 
that occurs subsequent to the first year after the date of 
enactment of this subsection, based on the medical component of 
the Consumer Price Index for all-urban consumers published by 
the Department of Labor.
  (iv) If an individual is required to pay a premium for 
retiree health benefits, the value calculated pursuant to this 
subparagraph shall be reduced by whatever percentage of the 
overall premium the individual is required to pay.
  (F) If an employer that has implemented a deduction pursuant 
to subparagraph (A) fails to fulfill the obligation described 
in subparagraph (E), any aggrieved individual may bring an 
action for specific performance of the obligation described in 
subparagraph (E). The relief shall be in addition to any other 
remedies provided under Federal or State law.
  (3) It shall not be a violation of subsection (a), (b), (c), 
or (e) solely because an employer provides a bona fide employee 
benefit plan or plans under which long-term disability benefits 
received by an individual are reduced by any pension benefits 
(other than those attributable to employee contributions)--
          (A) paid to the individual that the individual 
        voluntarily elects to receive; or
          (B) for which an individual who has attained the 
        later of age 62 or normal retirement age is eligible.
  (m) Notwithstanding subsection (f)(2)(B), it shall not be a 
violation of subsection (a), (b), (c), or (e) solely because a 
plan of an institution of higher education (as defined in 
section 101 of the Higher Education Act of 1965) offers 
employees who are serving under a contract of unlimited tenure 
(or similar arrangement providing for unlimited tenure) 
supplemental benefits upon voluntary retirement that are 
reduced or eliminated on the basis of age, if--
          (1) such institution does not implement with respect 
        to such employees any age-based reduction or cessation 
        of benefits that are not such supplemental benefits, 
        except as permitted by other provisions of this Act;
          (2) such supplemental benefits are in addition to any 
        retirement or severance benefits which have been 
        offered generally to employees serving under a contract 
        of unlimited tenure (or similar arrangement providing 
        for unlimited tenure), independent of any early 
        retirement or exit-incentive plan, within the preceding 
        365 days; and
          (3) any employee who attains the minimum age and 
        satisfies all non-age-based conditions for receiving a 
        benefit under the plan has an opportunity lasting not 
        less than 180 days to elect to retire and to receive 
        the maximum benefit that could then be elected by a 
        younger but otherwise similarly situated employee, and 
        the plan does not require retirement to occur sooner 
        than 180 days after such election.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

                              INTRODUCTION

    Every job applicant should be protected from 
discrimination. It is already against the law, as it should be, 
to discriminate against job applicants. For 54 years, the Age 
Discrimination in Employment Act of 1967 (ADEA) has prohibited 
employment discrimination against job applicants and employees 
because of age.\1\ Older Americans are thriving in the 
workplace, and Committee Republicans are committed to ensuring 
a fair, productive, and competitive workforce.
---------------------------------------------------------------------------
    \1\29 U.S.C. Sec. 623(a)(1) (unlawful for employer ``to fail or 
refuse to hire or to discharge any individual or otherwise discriminate 
against any individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of such individual's 
age'').
---------------------------------------------------------------------------
    Unfortunately, Committee Democrats are again rushing 
forward with ill-advised legislation that promotes their pro-
trial lawyer agenda and harms job seekers. H.R. 3992, the 
Protect Older Job Applicants Act, is yet another example of a 
federal mandate that ignores the real-world job market and that 
will make it harder for Americans to find jobs.
    Like other legislation in the 117th Congress, H.R. 3992 was 
rushed through this Committee without proper examination, 
discussion, or consideration. Careful Committee review and 
scrutiny of any legislation is necessary to determine whether a 
bill appropriately and effectively addresses an issue that 
warrants congressional action. The Committee majority's H.R. 
3992 fails miserably to meet these standards. Despite the 
bill's sweeping consequences and expansive legal implications, 
Committee Democrats chose not to hold a hearing examining H.R. 
3992, which was introduced just a month before the Committee 
markup. This lack of due diligence is irresponsible and not how 
the Committee should process expansive legislation affecting 
job seekers and employers.
    Committee Democrats voted in lockstep to pass a bill 
without sufficient data, compelling evidence, thoughtful 
deliberation, or genuine consideration. Congress must ensure 
that nondiscrimination statutes will not harm job seekers, 
especially at a time when there are 8.4 million unemployed 
Americans.\2\ H.R. 3992 does just the opposite, making it 
harder for job seekers to connect with employers. For these 
reasons, and as set forth below, the House should not consider 
or pass H.R. 3992.
---------------------------------------------------------------------------
    \2\U.S. Bureau of Lab. Stat., Employment Situation Summary (Sept. 
3, 2021), https://www.bls.gov/news.release/empsit.nr0.htm.
---------------------------------------------------------------------------

                        CONCERNS WITH H.R. 3992

Age Discrimination Against Job Applicants is Already Illegal
    There is no dispute that ADEA Section 4(a)(1) prohibits 
disparate treatment discrimination against both job applicants 
and employees because of age.\3\ It is thus already illegal for 
an employer to discriminate against applicants for employment 
because of their age. Democrat assertions that two circuit 
court decisions have made it lawful to discriminate against job 
applicants because of age are false.
---------------------------------------------------------------------------
    \3\29 U.S.C. Sec. 623(a)(1); see, e.g., Kleber v. CareFusion Corp., 
914 F.3d 480, 484 (7th Cir. 2019) (``All agree that Sec. 4(a)(1), by 
its terms, covers both employees and applicants.''). In the ADEA 
context, disparate treatment discrimination occurs where the employer 
intentionally treats a job applicant or employee less favorably than 
other job applicants or employees because of age. Proof of intent can 
sometimes be inferred from the mere fact of differences in treatment. 
See 1 Barbara T. Lindemann et al., Employment Discrimination Law ch. 
2.I (5th ed. 2012).
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Decades of ADEA Case Law Do Not Support a Need for H.R. 3992
    In 2005, the U.S. Supreme Court held in Smith v. City of 
Jackson that ADEA Section 4(a)(2) prohibits disparate impact 
discrimination against employees because of age.\4\ However, in 
2016, the U.S. Court of Appeals for the 11th Circuit ruled in 
Villareal v. R.J. Reynolds Tobacco Company that Section 4(a)(2) 
does not authorize job applicants to claim disparate impact 
discrimination because of age.\5\ In 2019, the U.S. Court of 
Appeals for the 7th Circuit in Kleber v. CareFusion Corporation 
agreed with the 11th Circuit and held that ADEA disparate 
impact coverage does not extend to job applicants.\6\ Both 
circuit court decisions noted that ADEA Section 4(a)(2), which 
authorizes disparate impact claims by employees because of age, 
does not include the language from ADEA Section 4(a)(1) 
applying coverage to job applicants.
---------------------------------------------------------------------------
    \4\4 544 U.S. 228 (2005); 29 U.S.C. Sec. 623(a)(2) (unlawful for 
employer ``to limit, segregate, or classify his employees in any way 
which would deprive or tend to deprive any individual of employment 
opportunities or otherwise adversely affect his status as an employee, 
because of such individual's age.''). Disparate impact discrimination 
claims ``involve employment practices that are facially neutral in 
their treatment of different groups but that in fact fall more harshly 
on one group than another.'' City of Jackson, 544 U.S. at 239 
(quotation marks omitted).
    \5\839 F.3d 958 (11th Cir. 2016).
    \6\914 F.3d 480 (7th Cir. 2019).
---------------------------------------------------------------------------
    Democrats assert that, from the time of the ADEA's 
enactment in 1967 until the 11th Circuit's 2016 decision in 
Villareal, disparate impact claims were universally available 
to job applicants. Therefore, they claim, the Villareal and 
Kleber decisions constitute a sea change that is contrary to 
prior settled law. This is false.
    Prior to the Supreme Court's 2005 decision in City of 
Jackson, many circuits did not interpret the ADEA to include 
disparate impact coverage for employees, much less for job 
applicants. For example, in City of Jackson, the Supreme Court 
reversed a 2003 decision by the U.S. Court of Appeals for the 
5th Circuit that disparate impact claims are not available for 
employees under the ADEA.\7\ In 1996, the U.S. Court of Appeals 
for the 10th Circuit ruled, in a case involving job applicants, 
that the ADEA does not authorize disparate impact claims for 
any workers.\8\ In 1995, the U.S. Court of Appeals for the 3rd 
Circuit wrote, ``it is doubtful that traditional disparate 
impact theory is a viable theory under the ADEA.''\9\ In 1998, 
the U.S. District Court for the District of Puerto Rico, which 
is in the 1st Circuit, held that the ADEA does not authorize 
disparate impact claims.\10\
---------------------------------------------------------------------------
    \7\See Smith v. City of Jackson, 351 F.3d 183 (5th Cir. 2003), 
affirmed on other grounds, 544 U.S. 228 (2005).
    \8\Ellis v. United Airlines, Inc., 73 F.3d 999 (10th Cir. 1996).
    \9\DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 732 (3rd Cir. 
1995).
    \10\10 Febres Morales v. Challenger Caribbean Corp., 8 F.Supp.2d 
126 (D. Puerto Rico 1998).
---------------------------------------------------------------------------
    Moreover, no federal circuit court of appeals has ever 
ruled that job applicants are authorized to bring disparate 
impact claims under the ADEA. The Democrats' contention that 
Villareal and Kleber reversed well-settled law and took away 
well-recognized rights from job applicants is a false 
description of decades of ADEA case law.
Evidence and Data Are Sorely Lacking
    The Committee lacks evidence or data indicating this bill 
is necessary to ensure older job applicants are protected. The 
Democrat majority unfortunately proceeded directly to a 
Committee markup only one month after H.R. 3992 was introduced 
without examining the bill in a hearing. Before this bill is 
considered by the House, additional information is sorely 
needed so that Members can thoroughly understand the numerous 
implications of applying disparate impact theory to job 
applicants under the ADEA.
    As noted previously, in the history of the ADEA since 1967, 
no circuit court has ever ruled that the statute extends 
disparate impact coverage to job applicants. It is not 
convincing to claim that the Villareal and Kleber decisions 
have harmed the nation's older job applicants when the 
disparate impact cause of action for job applicants has never 
been available in many of the nation's federal circuits and 
district courts.
    More broadly, job trends for older workers are positive in 
recent decades, according to the Bureau of Labor 
Statistics:\11\
---------------------------------------------------------------------------
    \11\11 U.S. Bureau of Lab. Stat., How Are Our Older Workers Doing? 
(May 20, 2019), https://blogs.bls.gov/blog/2019/05/20/how-are-our-
older-workers-doing/.
---------------------------------------------------------------------------
           ``For workers age 65 and older, employment 
        tripled from 1988 to 2018, while employment among 
        younger workers grew by about a third.''
           ``Among people age 75 and older, the number 
        of employed people nearly quadrupled, increasing from 
        461,000 in 1988 to 1.8 million in 2018.''
           ``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 two and 
        a half times faster than the number working part 
        time.''
           ``Full-timers now account for a majority 
        among older workers--61 percent in 2018, up from 46 
        percent in 1998.''
H.R. 3992 Harms Job Seekers While Benefitting Trial Lawyers
    By allowing job applicants to file age discrimination 
lawsuits against employers under a disparate impact theory, 
H.R. 3992 will needlessly interfere with employers' routine 
recruitment and hiring processes. The legislation applies to 
all job applicants who are at least 40 years old in all 
circumstances, not only the specific circumstances in the 
Villareal and Kleber cases. The bill could thus result in 
massive class action litigation using the disparate impact 
theory.
    Under the bill, current, reasonable recruiting practices of 
employers that focus on new entrants to the workforce will 
become suspect. For example, students in high school, colleges, 
and universities are young on average. Job Corps center 
students are 16-24 years old.\12\ If H.R. 3992 becomes law, 
when employers conduct recruiting activities at these 
institutions and interview potential hires drawn from these 
student populations, trial lawyers will be able to claim that 
these recruiting practices have a disparate impact on older 
potential job applicants. This is not mere speculation. 
Attorneys from the AARP Foundation have claimed in class action 
litigation that college recruiting violates the ADEA.\13\
---------------------------------------------------------------------------
    \12\U.S. Dep't of Lab., Job Corps, https://www.dol.gov/general/
topic/training/jobcorps.
    \13\13 See Erin Mulvaney, PwC Deal Targets Recruiting That Can Weed 
Out Older Workers, Daily Lab. report, Mar. 4, 2020.
---------------------------------------------------------------------------
    Likewise, internship and apprenticeship programs tend to 
have younger participants. Implementing and operating such 
programs could be alleged to have a disparate impact on older 
workers who are not as likely to participate in these programs. 
Moreover, to the extent employers recruit and hire full-time 
employees from participants in internship and apprenticeship 
programs, such recruitment could also be alleged to have a 
disparate impact on older workers who are not as likely to 
participate in these programs.
    In addition, posting job openings on common online job 
sites could be alleged to have a disparate impact on older 
applicants because the users of these websites tend to be 
younger on average.\14\ Furthermore, job websites often include 
information that is correlated with age, such as when an 
individual attended college. H.R. 3992 will lead to costly and 
troubling litigation as trial lawyers will claim that an 
employer's use of such online job sites provided the employer 
with information on applicants' ages, resulting in a disparate 
impact on older applicants.\15\
---------------------------------------------------------------------------
    \14\See, e.g., Statista, Distribution of LinkedIn users worldwide 
as of April 2021, by age group, https://www.statista.com/statistics/
273505/global-linkedin-age-group/.
    \15\See Mulvaney, supra note 13 (settlement included agreement by 
employer to stop asking job seekers when they graduated college).
---------------------------------------------------------------------------
    H.R. 3992 may also impede the use of background checks or 
the ability of background checks to produce usable information. 
Background checks on job applicants routinely provide age or 
date of birth to the employer. Under the bill, a trial lawyer 
could claim the information provided in the background check 
influenced the employer's decision-making and had a disparate 
impact on older job applicants. Employers may be subject to 
needless and costly litigation even in jobs and industries 
where using background checks is well-advised.
Age Discrimination is Different from Other Forms of Discrimination
    Democrats claim that H.R. 3992 will merely conform the ADEA 
with other federal nondiscrimination laws. However, Congress 
and the U.S. Supreme Court have long-recognized that age 
discrimination is different from other forms of discrimination, 
and the scope of the ADEA is not the same as Title VII of the 
Civil Rights Act of 1964. When debating the Civil Rights Act of 
1964, the House and Senate voted against amendments to add age 
to Title VII.\16\ Moreover, in 1972, Congress amended Title VII 
to cover ``applicants for employment'' expressly in the 
provision prohibiting disparate impact discrimination but has 
never modified ADEA Section 4(a)(2) in this way.\17\
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    \16\Eliminating Barriers to Employment: Opening Doors to 
Opportunity: Hearing Before the H. Comm. on Educ. & Lab., 116th Cong. 
128 (2019) (statement of Lawrence Z. Lorber, Couns., Seyfarth Shaw 
LLP).
    \17\See Kleber, 914 F.3d at 487.
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    Both Title VII, which makes it unlawful to discriminate in 
employment because of race, color, religion, sex, or national 
origin, and the Americans with Disabilities Act (ADA) prohibit 
disparate treatment and disparate impact discrimination against 
employees and job applicants.\18\ However, in disparate impact 
cases under Title VII and the ADA, the employer is not liable 
if it demonstrates the challenged employment policy or practice 
is job related and consistent with business necessity.\19\ The 
ADEA does not include such a provision.
---------------------------------------------------------------------------
    \18\See 42 U.S.C. Sec. 2000e-2(a)(1), (2) (Title VII makes it 
unlawful to ``limit, segregate, or classify his employees or applicants 
for employment in any way which would deprive or tend to deprive any 
individual of employment opportunities''); id. Sec. 2000e-2(k) (burden 
of proof in Title VII disparate impact cases); id. Sec. 12112(a), 
(b)(1) (ADA makes unlawful ``limiting, segregating, or classifying a 
job applicant or employee in a way that adversely affects the 
opportunities or status of such applicant or employee''); id. 
Sec. 12112(b)(6) (ADA makes unlawful ``using qualification standards, 
employment tests or other selection criteria that screen out or tend to 
screen out an individual with a disability'').
    \19\See 42 U.S.C. Sec. 2000e-2(k)(1)(A)(i); id. Sec. 12112(6).
---------------------------------------------------------------------------
    The ADEA states that it is lawful for an employer to take 
an otherwise prohibited action under the Act if ``the 
differentiation is based on reasonable factors other than age'' 
(RFOA).\20\ Title VII and the ADA do not include a similar 
provision. In 2008, the U.S. Supreme Court noted, ``Congress 
took account of the distinctive nature of age discrimination, 
and the need to preserve a fair degree of leeway for employment 
decisions with effects that correlate with age, when it put the 
RFOA clause into the ADEA, significantly narrowing its 
coverage.'' Moreover, the Court wrote, ``it is not surprising 
that certain employment criteria that are routinely used may be 
reasonable despite their adverse impact on older workers as a 
group.''\21\ The Court recognized that Congress did not intend 
the ADEA's scope to be the same as Title VII because age 
discrimination has different features compared to 
discrimination because of race, color, religion, sex, or 
national origin.
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    \20\29 U.S.C. Sec. 623(f)(1).
    \21\Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 102 (2008) 
(quotation marks omitted).
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                         REPUBLICAN AMENDMENTS

    Committee Republicans offered several amendments during the 
Committee markup to highlight the fundamental policy flaws in 
H.R. 3992 and to advance important protections and practical 
solutions for all job applicants.
    To protect job opportunities for students, Rep. Mariannette 
Miller-Meeks (R-IA) offered an amendment to ensure H.R. 3992 
does not prohibit or limit employers from recruiting students 
attending high school, a Job Corps Center, college, or a 
university, provided such recruiting is not intended to 
discriminate because of age. If enacted, H.R. 3992 will 
discourage employers from sponsoring or participating in job 
fairs and from recruiting and interviewing students at high 
schools, Job Corps centers, colleges, and universities because 
of the high risk of facing disparate impact lawsuits. Under the 
bill, an employer's facially neutral practice, such as focusing 
recruiting efforts on a college, could be unlawful because 
these efforts could allegedly have a disparate negative impact 
on older workers since students at these institutions are 
younger in age on average. In fact, even without the changes 
proposed by H.R. 3992, trial lawyers are already targeting 
employers who recruit job applicants on college campuses. Rep. 
Miller-Meeks' practical amendment ensures the bill will not 
jeopardize common, yet vital, recruiting practices that help 
students find jobs and pursue careers. Committee Democrats 
nevertheless defeated her amendment on a party-line vote.
    To preserve apprenticeship and internship programs, Rep. 
Rick Allen (R-GA) offered an amendment to ensure H.R. 3992 does 
not prohibit or limit employers from operating apprenticeship 
or internship programs, provided these programs are not 
intended to discriminate because of age. Under the sweeping 
scope of the bill, an employer's facially neutral practice, 
such as operating an apprenticeship or internship program, 
could be unlawful because the program would allegedly have a 
disparate negative impact on older workers. Participants in 
internship and apprenticeship programs tend to be younger, and 
employers often hire participants in these programs as full-
time employees. Trial lawyers could claim under the bill that 
older workers are less likely to participate in internship and 
apprenticeship programs and are therefore further disadvantaged 
by employers tending to hire full-time employees from the pool 
of participants in these programs.
    Under the threat of disparate impact lawsuits created by 
H.R. 3992, employers will be discouraged or impeded from 
setting up and operating apprenticeship and internship 
programs. This will be devastating for workers and will limit 
important opportunities for job seekers to reenter the labor 
market and for our economy to recover from the damage done 
during the pandemic. Apprenticeships provide valuable skills 
for workers and a pathway to career success. Employers around 
the country have been leading the way in creating new, 
innovative apprenticeship programs in nursing, advanced 
manufacturing, and other growing fields. The last thing 
Congress should do is pass a law that prevents employers from 
implementing these highly valued and successful programs. Even 
though Rep. Allen's amendment ensures employers can continue 
offering and expanding important and valued programs that help 
new entrants to the workforce acquire the skills and experience 
they need, Committee Democrats defeated his amendment on a 
party-line vote.
    To safeguard job opportunities for workers, Rep. Julia 
Letlow (R-LA) offered an amendment to ensure H.R. 3992 does not 
prohibit or limit employers from posting job openings on job 
search websites and online job boards, provided such posting is 
not intended to discriminate because of age. The bill will 
unfortunately discourage employers from posting job openings on 
popular websites used by workers to find job opportunities such 
as LinkedIn or Indeed, harming millions of workers who seek and 
find employment on these online job search sites. According to 
the Bureau of Labor Statistics, there are currently 10.9 
million job openings in the United States, and there are 8.4 
million unemployed Americans.\22\ Especially in this time of 
economic recovery, Congress should protect every avenue 
available to connect job seekers with their preferred job. The 
last thing Congress should do is jeopardize job opportunities 
for millions of Americans by making it more difficult for 
employers to communicate job openings online.
---------------------------------------------------------------------------
    \22\U.S. Bureau of Lab. Stat., Job Openings and Labor Turnover 
Summary (Sept. 8, 2021), https://www.bls.gov/news.release/
jolts.nr0.htm; U.S. Bureau of Lab. Stat., supra note 2.
---------------------------------------------------------------------------
    Unfortunately, under H.R. 3992, an employer's facially 
neutral practice, such as posting a job opening on a job search 
website, could be unlawful because this posting would allegedly 
have a disparate negative impact on older workers. For example, 
approximately 80 percent of LinkedIn users are estimated to be 
between the ages of 18 and 34.\23\ Under the bill, posting a 
job opening on LinkedIn could be unlawful because this would 
disadvantage older job seekers who are less likely to use this 
website, and therefore employers will have to think twice 
before posting job openings on these widely used platforms. 
This is exactly what Congress should not be doing. Job seekers 
should be able to find out about every potential job available 
during times of economic uncertainty. Rep. Letlow's amendment 
ensures all Americans will continue to have as many avenues as 
possible to find jobs, but Committee Democrats defeated her 
amendment on a party-line vote.
---------------------------------------------------------------------------
    \23\Statista, supra note 14.
---------------------------------------------------------------------------
    To determine whether H.R. 3992 is actually needed, Rep. 
Fred Keller (R-PA) offered an amendment to require the 
Government Accountability Office to conduct a study on whether 
not allowing job applicants to bring disparate impact claims 
under the ADEA has a significant negative impact on these 
applicants. If the study does not find a significant negative 
impact, the bill's amendments to the ADEA will not go into 
effect. Before considering any legislation, the Committee 
should make a determination about whether the proposal is in 
fact needed and whether it will positively address the issue. 
Unfortunately, Committee Democrats failed in this regard. The 
Committee never held a hearing on H.R. 3992. The bill has wide-
ranging implications that need thorough examination. The 
Committee has no data on whether excluding job applicants from 
ADEA disparate impact coverage has a significant negative 
impact on older job applicants. Indeed, to date, there have 
been no circuit court decisions ruling the ADEA authorizes job 
applicants to sue under a disparate impact theory. Even though 
the Committee is flying blind and in considerable need of 
additional data, Committee Democrats defeated Rep. Keller's 
amendment on a party-line vote.

                               CONCLUSION

    H.R. 3992 is a far-reaching bill that was not given a 
hearing or adequate consideration in Committee. Committee 
Democrats also failed to demonstrate that the legislation is 
needed to protect older job applicants. Instead, H.R. 3992 will 
likely result in a surge of class action litigation against 
employers. This tsunami of litigation will challenge reasonable 
recruitment and hiring practices, which will deter or eliminate 
effective and valued recruitment opportunities for job seekers 
at a time when 8.4 million Americans are looking for work. For 
these reasons, and the reasons described above, we oppose the 
enactment of H.R. 3992 as reported by the Committee on 
Education and Labor.
                                   Virginia Foxx,
                                           Ranking Member.
                                   Joe Wilson.
                                   Glenn ``GT'' Thompson.
                                   Tim Walberg.
                                   Elise M. Stefanik.
                                   Rick W. Allen.
                                   Jim Banks.
                                   James Comer.
                                   Fred Keller.
                                   Mariannette Miller Meeks, M.D.
                                   Burgess Owens.
                                   Bob Good.
                                   Lisa C. McClain.
                                   Mary E. Miller.
                                   Victoria Spartz.
                                   Scott Fitzgerald.
                                   Madison Cawthorn.
                                   Julia Letlow.

                                  
                                  
                                  [all]