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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

Prudential Financial study: Gen Xers stumbling into retirement

Published in RINewsToday on July 10, 2023

While aging baby boomers ease into retirement, a new research study finds that Generation X, born between 1965 and 1979, are now facing the harsh reality of not being financially prepared for their looming retirement.

This demographic cohort group follows the baby boomers (1946 to 1964) and proceeds the millennials (1980 to 1994).

America’s 65 million Generation Xers are confronted with a new set of financial challenges that are redefining their plans to ease into retirement, just as they enter their final working years, according to Prudential Financial, Inc.’s latest Pulse research survey, “Gen X: Retirement Revised.”

According to the study’s findings, more than one third (35%) of the Gen Xers have less than $10,000 in retirement savings, and 18% have nothing saved. This cohort group has missed out on “Great Wealth Transfer,” from boomers to millennials.  And 46% say that they won’t have enough savings to live comfortably in their twilight years. This generation will be forced to work much longer and will forgo “snowbird lifestyles.”

“Gen X faces one of the most complex landscapes for retirement readiness in decades, including the decline of defined benefit pension plans which supported prior generations’ retirement, as well as significant uncertainty about the economy and long-term Social Security benefits,” said Prudential Vice Chair Rob Falzon, in a statement announcing the survey results released on June 7, 2023. “This data underscores how important it is for Gen X to adopt a new set of retirement strategies designed to protect and grow their savings, and when possible, translate their assets into reliable sources of future income.” he said.

Cracked-Egg Nest

Researchers found that almost 46% (up to 30 million) Generation Xers do not think they’ll have an adequate nest egg to live comfortably in their retirement years. This fear is reinforced by the reality of their accumulated retirement savings. 

The study findings indicate that most Gen Xers are considering delaying their retirement. While 19% of Gen Xers plan to fully retire, 82% say they plan to work part-time or are unsure they will be able to fully retire.  

As to home ownership, Gen Xers “won’t bet the house, say the researchers.” Only 16% of Gen X plan to use their home value to help fund retirement. Most of Gen X are not planning to follow in the footsteps of baby boomers, who are tapping into record home equity and currently make up the highest share of buyers and sellers nationwide,” say the researchers citing National Association of REALTORS report.  

As winters approach, don’t expect Gen Xers to go South, either. Approximately two-thirds (65%) of Gen X plan to stay in one city or town in retirement. Only 15% plan to split time between locations, note the study’s findings.

Gen Xers don’t expect inheritances (the transferring of wealth from one generation to another) to give them a financial cushion they hope for during their retirement. The study found that a measly 12% say an inheritance will be a source of retirement income, even as boomers are expected to pass down over $70 trillion (total wealth figure according to Federal Reserve data). What’s more, 84% of Gen Xers are not planning to leave an inheritance. Only 16% say they are factoring a family inheritance to fund their own retirement.

Gen Xers must face retirement obstacles

The Prudential Financial, Inc.’s latest Pulse research survey also identified additional retirement obstacles that Gen Xers must confront. The findings indicate that this generation is facing complicated problems not seen in the generations that proceeded them. At the same time, the researchers say, Gen Xers are not currently following a retirement strategy, saving enough for their later years, or accounting for long-term expenses and situations.

Gen Xers closely watch the partisan bickering over how to fix an ailing Social Security program. Despite projections that Social Security trust fund reserves could be depleted by 2033 (reported by the Trustees of the Social Security and Medicare Trust Funds report), 58% of Gen Xers say that can’t expect to rely on it as a source of their retirement income. Among those who plan on receiving Social Security, 54% are worried about the program’s funds being depleted.

As to pensions, the study found that only 20% of Gen Xers plan to use pensions as a source of their retirement income, and only 11% will mostly rely on a pension. This reflects the known steep decline in the number of pension plans, which fell by 73% between 1985 and 2020 (Department of Labor data).

While 33% of Gen Xers say they have a retirement strategy, 67% do not. Almost half (48%) are saving, but don’t have a plan as to how to accumulate the savings.

With inflation slowing down, the study found that more than two-thirds (68%) of working Gen Xers are concerned about reaching their savings goals due to inflation, and nearly three-quarters (72%) of all Gen Xers say the current environment makes it hard to plan beyond day-to-day living.

The study found that Gen Xers worry about job insecurity. While an economic downturn still ranks as the biggest threat to this generation’s job security among working Gen Xers (35%), expressed fears of being replaced by younger workers (29%), and less expensive (26%) workers, are close behind.

Finally, the researchers say that Gen Xers are not accurately factoring in critical costs that they may face during retirement. Nearly two-fifths (38%) are not factoring in healthcare costs, and three-quarters (75%) are not accounting for assisted living expenses.

While the average retiree is expected to receive an average monthly Social Security benefit, it was noted that the average monthly cost of retirement expenses in the U.S is $ 4,350 (Bureau of Labor Statistics). The average retirement living gap is $2,520.

“Gen Xers are contemplating significantly different approaches than prior generations to achieve retirement security,” said Dylan Tyson, president, Prudential Retirement Strategies in response to the release of this retirement study. “Together, we must find ways to incorporate the fundamental best practices of traditional pensions into today’s defined contribution–based retirement system. Strategies like protected accumulation and protected income planning are required to help Gen Xers avoid the potential hazards of longevity risk and market volatility on otherwise well-balanced financial plans,” he said.

The Prudential Pulse Survey on Gen X retirement was conducted from March 31 to April 6, 2023. Using a national sample of 2,000 Gen X adults, ages 43 to 48 and not yet retired. Interviews were  conducted online, and quotas were set to reflect a nationally representative population sample based on age, gender/ethnicity, educational attainment, and region.