Category Archives for Employment

Senate Aging Committee: Mandatory Arbitration in Age Bias Cases

Published in RINewsToday on September 8, 2025

Chairman Rick Scott (R-FL) and Ranking Member Kirsten Gillibrand (D-NY) of the U.S. Senate Special Committee on Aging recently held a full committee hearing titled ‘Protecting Older Americans: Leveling the Playing Field for Older Workers’ in SD-106 at 10:30 a.m., shining a spotlight on the harmful impact of age discrimination which is viewed as pervasive and damaging to the nation’s economy.  The intent of this hearing was to raise public awareness about how it results in the potential loss of legal rights of older workers through the legalese in employment contracts, requiring mandating arbitration.

According to a 2024 AARP survey, the vast majority of older workers have reported witnessing age discrimination. The survey found that 64% of older workers have either seen or experienced age discrimination in the workplace.  Additionally, the findings indicated that, more than 1 in 5 older Americans said that they worried that they were being pushed out of their job because of their age. This comes as Americans have started working later in life, with workers who are over 75 years old becoming the fastest growing age group in the workforce

After calling the hearing to order, Chairman Scott stated, “Age discrimination isn’t just wrong, it’s stupid. I’m a business guy, and I can tell you that looking at someone’s age instead of the value they bring to an organization makes no sense. You can’t run a business or government that way and we need to make sure it’s not happening to American seniors.”

Opening the hearing, Chairman Scott stressed that work provides purpose and fulfillment. “Having a purpose is an essential part of the American Dream, and it has long been an indicator of both mental and physical well-being across all age groups,” he said, noting that research findings indicate that “older workers who remain engaged, experience greater physical health, mental resilience, and life satisfaction.”

“We need to make sure Americans of all ages have the opportunity to work and pursue their dreams by stopping age discrimination and removing the red tape and barriers that hamper or discourage older Americans from continuing work or starting new businesses or careers,” Chairman Scott told the Senate Panel.

The economic and overall well-being of older Americans was at the center of the Sept. 3 hearing, which brought the issue of age discrimination in the workplace to the forefront with a growing number of older workers being denied employment, being passed over for promotions, or just being fired because of their age. The discussion, led by Ranking Member Gillibrand, took a close look at a major legal barrier for victims of age discrimination, the forcing of mandatory arbitration clauses in employment contracts.

“In a time when the population of older Americans is growing and many are returning to the workforce, we need to make sure that those who face age discrimination can have their day in court,” says Ranking Member Gillibrand in an opening statement. “Victims of age discrimination often can’t seek justice or accountability in court because of a forced arbitration clause that they signed when they were hired,” she said, noting that many of these individuals are not even aware that their employment contract contains  a forced arbitration clause.

According to Gillibrand, the contract “traps those who experience workplace discrimination in a system that advantages their employer — preventing them from seeking information that could help to prove their case. And victims are left in the hands of an extrajudicial arbitrator who is often selected by their employer and not always a trained lawyer,” she says.

At this hearing, witnesses also called this practice “fundamentally unfair” that suppresses age discrimination claims, favors employers and hides misconduct from the public, effecting blocking older workers from their seventh Amendment constitutional rights to a jury trial without their full consent.

Bill Restores Right to Sue for Discrimination

During the Senate panel hearing, Ranking Member Gillibrand called for the passage of a bipartisan legislative proposal, S. 2703, entitled the Protecting Older Americans Act, which she introduced alongside Sens. Lindsey Graham (R-SC), Dick Durbin (D-IL), and Chuck Grassley (R-IA) to protect seniors facing age discrimination at work. This common-sense legislation, introduced the day of the hearing and referred to the Senate Judiciary Committee, would invalidate forced arbitration clauses that prevent age discrimination victims from seeking justice and public accountability, ensuring that seniors can file their cases in court.

According to a statement released by Gillibrand, the bipartisan proposal would allow those who have experienced age discrimination the option to file their case in court if they choose, even if they previously signed a forced arbitration clause. It gives them a voice in the process and the ability to seek justice.

But, if employees decide, though, that they would like to pursue arbitration when they have faced age discrimination, they can. The point is that employees will now have a choice. The crux of the issue is that despite the fact that workplace age discrimination is categorically illegal, and that Congress has already passed laws to protect older Americans from it, forced arbitration clauses subvert justice, noted the statement.

Meanwhile, several witnesses drew parallels to the successful Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, signed into law in 2022 by President Joe Biden, which ended forced arbitration in cases of sexual harassment and assault. They argued that fears of excessive litigation following its passage were unfounded. The discussion also identified other policy barriers facing older workers, pointing to the Social Security’s retirement earnings test, that was identified as a disincentive that discouraged older workers from remaining in the workforce.

Targeting Hidden Job Contract Barriers

The hearing, featuring testimony from expert witnesses, including representatives from the Washington, D.C. based AARP—the nation’s largest aging advocacy group with 35 million members—a former Fox News journalist, an academic, and a conservative policy foundation, emphasized the importance of creating equal opportunities for older workers, especially as the nation’s population continues to age and many choose to continue working later in life.

Witnesses at this hearing shared insights on the specific challenges faced by seniors in the workplace and discussed how employers, communities, and lawmakers can take action to protect older workers.

Throughout the hearing, lasting over an hour, these witnesses warned that age discrimination has become widespread and an economically damaging problem that financially and emotionally harms older Americans.  Older workers contributed positively to America’s businesses and to the economy by bringing their life-long work experience, and mentorship to younger workers to the workplace, they stressed.

“Talk to older job seekers and they’ll tell you they hear things in interviews like you’re overqualified. We’re looking for a digital native or a more energetic candidate. This is undermining the financial stability of too many capable Americans,” said Nancy LeaMond, Chief Advocacy and Engagement Officer for AARP.

LeaMond stressed that age discrimination was a pervasive issue, with nearly two-thirds of workers over 50 having seen or experienced it. She highlighted the severe economic consequences, noting it cost the U.S. economy $850 billion annually (a figure projected to reach nearly $4 trillion by 2050) and was particularly damaging for the many older Americans who lacked adequate retirement savings and needed to continue working.

Often because of necessity or choice, older Americans need to work, says LeaMond. Federal Reserve data indicated that 54% of households had no retirement savings, underscoring the financial need for many older Americans to work longer, she said.

The impact on losing a job for an older worker can be profound, notes LeaMond. She cited an Urban Institute Study that found that about half of workers in their early 50s experience involuntary job loss that sharply reduces earnings forcing them into long-term unemployment – something that older workers face at higher rates than younger peers.

While AARP endorses Ranking Member Gillibrand’s bipartisan proposal, S. 2703, she also called for passage of Senators Tammy Baldwin (D-WI) and Grassley bill (R-IA),  S. 1820, The Protecting Older Workers Against Discrimination Act. Representative Robert C. “Bobby” Scott  (D-VA) has introduced H. 3522, the House companion measure.

Witness David Horton, Professor of Law at the University of California, Davis, with a specialty in arbitration law and contracts, argued that forced employment arbitration in wrong doings, such as age discrimination, was not consensual, as employees had no real choice when accepting a job. “Studies confirm what our intuition tells us: workers are bombarded with information, their eyes glaze over at the legalese, and very few realize that they are surrendering their right to access the courts,” he testified.

Horton further explained that arbitration had systemic flaws that disadvantaged employees, such as the “repeat player” problem where arbitrators have a financial incentive to favor employers, and the inability to bring class-action claims. Horton, who holds the Fair Business Practices & Investor Advocacy Endowed Chair, concluded that forced arbitration’s purpose was not to resolve disputes, but to suppress them.

Meanwhile, witness Gretchen Carlson, a former Fox News journalist who is co-founder of the non-profit Lift Our Voices, shared her personal experience and her successful advocacy to pass the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. She argued that the fears of a “slew” of lawsuits following that bill’s passage did not happen, and she believed the same would be true for the Protecting Older Americans Act. She framed the issue as a fundamental matter of the ”freedom of choice” and restoring workers’ Seventh Amendment right to a jury trial.

“In my unscientific study…over nine and a half years, “the vast majority say that when they’re forced into arbitration, never work in their chosen profession ever again… there’s a myriad of problems here, but to me, forced arbitration is the evil,” said Carlson.

Speaking Out Against Outdated Policies

Witness Rachel U. Greszler, Senior Research Fellow at the Heritage Foundation, focused on the older worker’s value and impact on the economy and society.  She identified public policies, primarily Social Security’s retirement earning test, calling it an outdated policy that would discourage work for older workers.  She also criticized regulations on independent contractors that limited flexible part-time work opportunities for older workers.

The testimony at this hearing, combining expert observations with personal stories, is intended to raise public awareness and increase political pressure on a divided Congress to act in protecting the legal rights of older workers from age discrimination hidden in the very fine print of employment contracts.

To watch the hearing, go to https://www.aging.senate.gov/hearings/protecting-older-americans-leveling-the-playing-field-for-older-workers

Age Discrimination, Workplace Issues at House Hearing

Published in RINewsToday.com on March 22, 2021

Just days ago, Rep. Robert C. “Bobby” Scott (D-VA), chairperson of the House Committee on Education and Labor and Rep. Rodney Davis (R-IL) introduced, H.R. 2062, the bipartisan “Protection Older Workers Against Discrimination Act” (POWADA), a bill that would strengthen federal anti-discrimination protections for older workers. The legislation was introduced March 18, 2021, the same day of a joint House Education and Labor Subcommittee hearing, held to address a variety of workplace issues.  POWADA has been referred to the House Committee on Education and Labor for consideration.

The reintroduction of POWADA is timely.  As the COVID-19 pandemic continues, older workers are attempting to keep their jobs, working more and longer than they ever have. When seniors lose their jobs, they are far more likely than younger workers to join the ranks of the long-term unemployed. And unfortunately, discrimination appears to be a significant factor in older workers’ long-term unemployment.

A 2018 survey conducted by the Washington, DC-based AARP found that 3 in 5 workers age 45 and older had seen or experienced age discrimination in the workplace. The 2018 survey also found that three-quarters of older workers blame age discrimination for their lack of confidence in being able to find a new job.

Congress Gears Up to Again Fight Age Discrimination

Reps. Scott and Davis were joined by seven Republicans and 14 Democrats, including Civil Rights and Human Services Subcommittee Chair Suzanne Bonamici (D-OR) and Workforce Protections Subcommittee Chair Alma Adams (D-NC) to support H.R. 2062.

Rhode Island Rep. David Cicilline has also requested to be a co-sponsor of this legislation.

POWADA was first introduced in Congress after an adverse 2009 Supreme Court decision, Gross v. FBL Financial Services, made it much more difficult for older workers to prove claims of illegal bias based on age. Under Gross, plaintiffs seeking to prove age discrimination in employment are required to demonstrate that age was the sole motivating factor for the employer’s adverse action.  The Supreme Court ruling upends decades of precedent that had allowed individuals to prove discrimination by showing that a discriminatory motive was one of the factors on which an employer’s adverse action was based.

Scott’s reintroduced POWADA returns the legal standard for age discrimination claims to the pre-2009 evidentiary threshold, aligning the burden of proof with the same standards for proving discrimination based on race and national origin.

“Everyone– regardless of their age – should be able to go to work every day knowing that they are protected from discrimination. Unfortunately, age discrimination in the workplace is depriving older workers of opportunities and exposing them to long-term unemployment and severe financial hardship, says chairperson Scott, noting that the reintroduced bipartisan bill would finally restore the legal rights under the Age Discrimination in Employment Act, which covers workers age 40 and over.

Republican Rep. Rodney Davis puts aside political differences and has stepped up to the plate with a handful of GOP lawmakers to co-sponsor Scott’s POWADA legislation. “Every American, including older Americans, deserves to work in a workplace or jobsite that is free from discrimination. That’s why I’m proud to team up with chairperson Bobby Scott and a bipartisan group of lawmakers in introducing the Protecting Older Workers Against Discrimination Act. Our bipartisan bill provides workplace protections for older workers by removing barriers they have to filing discrimination claims, ensuring their workplace rights can be enforced, says Davis, pledging to work with colleagues on both sides of the aisle to finally get the bill passed,” he says.    

Oregon Rep. Bonamici, who chairs the Subcommittee on Civil Rights and Human Services, notes that her state has a rapidly aging population, and age discrimination in the workplace remains disturbingly pervasive.  She joins Scott in cosponsoring POWADA.

“I’ve heard from Oregonians who were denied or lost a job because of their age, but the bar for proving discrimination is very high and the outcomes are uncertain. The bipartisan Protecting Older Workers Against Discrimination Act makes it clear that unlawful discrimination in the workplace is unacceptable and holds employers accountable for discriminatory actions,” says Bonamici.

Adams, who chairs the Subcommittee on Workforce Protections, joins Bonamici in cosponsoring POWADA.  The North Carolina Congresswoman states: “Labor law must protect the dignity of all workers and it must recognize that discrimination against older Americans is discrimination all the same,” says Adams, who chairs the Subcommittee on Workforce Protections. The North Carolina Congresswoman notes that POWADA ensures that older workers will be fairly treated in the job market, returning the legal standard for proving discrimination back to its original intent. There is no place for disparate treatment based on age in the workforce.”

“Labor law must protect the dignity of all workers and it must recognize that discrimination against older Americans is discrimination all the same,” says Adams, who chairs the Subcommittee on Workforce. The North Carolina House Lawmaker says that POWADA ensures that older workers will be fairly treated in the job market, returning the legal standard for proving discrimination back to its original intent. There is no place for disparate treatment based on age in the workforce.

“The introduction of this bill is a crucial step to strengthening the law and restoring fairness for older workers who experience age discrimination,” said Nancy LeaMond, AARP Executive vice president and Chief Advocacy & Engagement Officer. “It sends a clear message that discrimination in the workplace – against older workers or others – is never acceptable.

“Age discrimination in the workplace, like any other kind of discrimination, is wrong.,” said AARP Rhode Island State Director Kathleen Connell. That’s why AARP is fighting all forms of age discrimination in the hiring process and on the job, including an unfair court decision that makes age discrimination more difficult to prove than race- or sex-based discrimination. “Rhode Islanders are living and working longer and experienced workers bring expertise, maturity, and perspective,” Connell added. “Yet negative stereotypes and mistaken assumptions mean that older people are often treated unfairly in the workplace. We need bipartisan Congressional action to address this stubborn and persistent problem.”

Tackling Workforce Issues

Over two-hours, four witnesses testified at a joint Zoom hearing, “Fighting for Fairness: Examining Legislation to Confront Workplace Discrimination,” held before the House Education and Labor Subcommittee on Civil Rights and Human Services and the Subcommittee on Workforce Protections. The morning hearing addressed an array of workforce issues including race and longstanding gender inequities and barriers and pregnancy discrimination at the workplace. A spotlight was also put on the rampant increase of age discrimination that older workers are now facing in the job market and the need to pass POWADA to reverse the detrimental impact of a 2009 Supreme Court decision.

Lauren McCann, senior attorney at AARP Foundation, pointed out to the attending House lawmakers that age discrimination in the workplace remains “stubbornly persistent” and urged a House Education and Labor hearing to “re-level the playing field” by passing strong anti-bias legislation.

McCann told the committee that the ongoing COVID-19 pandemic has exacerbated the problems faced by older workers, who have left the labor force in the last year at twice the rate during the Great Recession.

McCann testified that passage of POWADA, sponsored by Scott, the Chair of the House Committee of Education and Labor, is crucial to reverse the 2009 Supreme Court decision in the Gross v. FBL Financial Services, Inc. case. McCann said that the high court’s 2009 decision abruptly changed the standard — from the longstanding requirement under the ADEA that a worker prove that age is just one motivating factor in adverse treatment on the job — to a much higher and tougher to prove standard: that age is the standard motive.

“Older workers now always bear the burden of persuasion in ADEA cases,” McCann emphasized.

According to McCann, House hearing comes at a time when older workers have been battered by the economic downturn caused by the pandemic. Unemployment for workers age 55 and older more than doubled between Feb. 2020, just before the pandemic began, and last month, based on AARP Public Policy Institute (PPI) analysis of federal data.

The number of age 55 and over unemployed has also doubled, up from one million in February 2020, to 2 million last month, according to PPI.

Turning to the Senate…

At press time, a senior Senate aide for Sen. Bob Casey (D-PA), who chairs the Senate Special Committee on Aging, says the Senator is posed to follow the House by throwing the Senate’s POWADA Senate companion measure into the legislative hopper Monday. 

The Pennsylvania Senator clearly understands why he again must push for the passage and enactment of POWADA.  “As more Americans are remaining in the workforce longer, we must recognize and address the challenges that aging workers face. We must make it clear to employers that age discrimination is unacceptable, and we must strengthen antidiscrimination protections that are being eroded,” says Sen. Casey. “POWADA would level the playing field for older workers and ensure they are able to fight back against age discrimination in the workplace.”

AARP Takes A Look at ‘Value of Experience’ of Older Workers

Published in the Woonsocket call on August 12, 2018

Given employers’ need for talent and experience, Oak Hill resident Henry Rosenthal, 67, with five decades in the workforce, readily agrees with AARP views that it’s a sound business decision to hire experienced workers, as supported by the findings of AARP’s recently released survey, The Value of Experience: AARP Multicultural Work and Jobs Study. The AARP report includes insights on workers, employers, and age bias, a hurtle Rosenthal had to overcome in finding reemployment after being unemployed for two years in his sixties.

AARP’s in-depth survey was conducted online in September 2017 to a national sample of 3,900 adults ages 45+ who were working full-time, part-time, or looking for work.

According to the results of AARP’s survey of experienced workers released on August 2, 2018, nearly 9 in 10 continue to work for financial reasons, but approximately 8 in 10 either enjoy or feel useful doing their job. And among those who plan to retire, over 1 in 4 plans to start a business or earn money in some independent way, including freelancing and contract work, teaching others, selling hand-made goods, and providing home services such as house cleaning and cooking.

“With rich work histories, varied experiences and expertise, older workers want to work, they’re ready to work, and they need to work,” said AARP Vice President of Financial Resilience Susan Weinstock. “More employers are looking for qualified candidates and experienced workers should have the opportunity to be judged on their merits, rather than their age,” says Weinstock.

To highlight job opportunities among 50-plus workers, AARP launched an employer pledge for companies who hire workers based on ability, regardless of age. Since 2013, 650 employers have signed AARP’s pledge. AARP also continues to educate employers about the value of older workforce and the positives of having multigenerational employees.

“According to government data [from the U.S Department of Labor Statistics,] workforce participation rates for older workers exceed participation before the Great Recession, while younger worker participation is below pre-recession numbers,” added Weinstock. “While employment trends for older workers are favorable, with 27.9% of 55-plus workers suffering long-term unemployment compared to 18.1 percent of 16-54 workers, the long-term unemployment disparity suggests that entrenched age-bias still exist too often in the workplace,” she says.

Age discrimination Still Around

Findings from AARP’s survey, The Value of Experience, show that many experienced workers still face the barrier of age discrimination in their job hunt or at their place of employment. More than 9 in 10 workers see age discrimination as somewhat or a very common occurrence.

Specifically, the AARP survey found that at work, more than 6 in 10 older workers (61 percent) report they’ve seen or experienced age discrimination in the workplace, and of those concerned about losing their job in the next year, one-third (34 percent) list age discrimination as either a major or minor reason. But only 3 percent of the survey respondents say that they had made a formal complaint to their supervisor, to Human Resources or a government agency

Age discrimination becomes more noticeable to those turning age 50 and over. Fifty four percent of those surveyed believe that age discrimination starts on that major age milestone, 28 percent at age 60. Ageist comments from either a boss or coworker are the most visibly frequent type of discrimination reported by the survey respondents.

According to the AARP survey, both employed workers and those who were unemployed looking for work viewed age discrimination as the key reason why they did not think they could find employment within three months.

On the job hunt, almost half (44 percent) of older job applicants say they have been asked for age-related information, such as birth date and graduation date, from a potential employer.

Over 90% of older Americans surveyed by AARP supported strengthening the nation’s age discrimination laws— nearly 6 in 10 (59 percent) strongly support a change and 32 percent somewhat agree they should be improved.

With 2017 marking the 50th Anniversary of the nation’s Age Discrimination Act of 1967, AARP’s new survey findings are timely as America’s workforce is aging and an increasing number of older workers report their age keeps them from becoming gainfully employed or underemployed.

A Personal Note:

Looking back, Rosenthal, says of his two-year job search, in 2015 after being laid off, he experienced age discrimination. “Having been interviewed by numerous Human Resource professionals, they just seem incapable of understanding that the years of experience someone has gained is an asset. They seem unable to appreciate that knowledge, experience, and even skills acquired over a lifetime can be transferred and used in virtually any organization or business,” he says.

Rosenthal says, “there is a higher probability of age discrimination occurring when company management, human resource professionals, and recruiters interview applicants older than themselves.” Like many older job seekers, he believes that decision-making executives are uncomfortable with overseeing older workers and rather than deal with them, they don’t just hire them.

Rosenthal, now gainfully “under employed,” views his older contemporaries as being “more stable, reliable, have better work ethics and generally make great employees, in line with AARP’s philosophy that Corporate America should value the experience of older workers. With the difficulty in finding employment Rosenthal believes that companies have not figured this out yet. “What a terrible waste of human capital,” he says.

AARP says its survey findings reveal that “older workers believe that age discrimination should be taken just a seriously as other forms of discrimination, and support strengthening the laws to ensure that it is.”

But, Rosenthal says that while combating age discrimination by strengthening the laws, real change can only occur by changing “our cultural attitudes.” Other cultures value their elders but here in America’s we don’t,” he says.

For a copy of AARP survey findings, go to http://www.aarp.org/content/dam/aarp/research/surveys_statistics/econ/2018/value-of-experience-chartbook.doi.10.26419-2Fres.00177.003.pdf.