Tag Archives for Heritage Foundation

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

Congressional Panel Looks Over Medicare

Published in Woonsocket Call on March 20, 2016

Last Wednesday’s hearing of House Ways and Means Health Subcommittee signals the panel’s interest to bring Medicare, a federal health insurance program for people age 65 and over, into the 21st century to meet the needs of its current 55.3 million beneficiaries.

At the March 16 hearing, Chairman Pat Tiberi (R-OH), stated that “Today’s seniors [are] inundated with an array of confusing deductibles, coinsurance and copayments with no protection from high health care costs unless they enroll in a private plan. Despite major improvements and innovations in the health care sector that have transformed how care is delivered, traditional Medicare has barreled through the last 50 years on the same trajectory of increased costs and little innovation.”

In addition to the structural challenges facing the program, critical parts of Medicare are expected to run out of money by 2026. In other words, the benefits Americans were promised stand to disappear if policymakers don’t act soon, says Tiberi.

Putting the Spotlight on Medicare

Tiberi’s March 16 Health Panel hearing, entitled “Preserving and Strengthening Medicare,” held in room 1100 of the Longworth House Office Building, brought together three witnesses to discuss ways to sustain the nation’s Medicare program and to keep it from going bankrupt. From both sides of the aisle and expert witnesses all agreed that the federal government’s current approach to delivering high-quality health care is not working. As a result of an outdated Medicare program and harmful Obamacare policies, today’s seniors “must navigate a disjointed program, face rising health care costs, and have fewer healthcare choices,” says the GOP panel chairman.

“Of federal entitlements, Medicare presents the most difficult challenges,” says Heritage Foundation Senior Fellow Robert Moffit, warning that the Trust Fund “faces insolvency in 2026.”

At the hearing, Moffit gave his fix for revamping Medicare that have bipartisan support and promise to shore up the ailing entitlement program. He called for the Medicare program to be simplified by combining Parts A and B – including catastrophic coverage, an out-of-pocket cap, a single deductible, and uniform coinsurance in a single plan along with bringing reforms to Medigap coverage. Also, retargeting Medicare benefits to low-income enrollees can provide assistance to lower-income enrollees. Increasing Medicare’s eligibility age to 67 (the same eligibility age for Social Security) along with encouraging innovation and cultivating competition through Premium Support can put the brakes to rising program costs.

When it comes to simplifying Medicare and incorporating catastrophic coverage, Tiberi had called the need for reform a “no-brainer.” Moffitt overwhelmingly agreed, stating, “It is a no-brainer. It is absolutely a no-brainer … [seniors] do not have protection from the most important thing that health insurance should deliver, which is that ultimate protection.”

As Moffit explained, the lack of catastrophic coverage in Medicare not only puts financial strain on the beneficiary, but it also causes a significant increase in unnecessary health care spending.

Coming Up with a Commonsense Approach

In her testimony, Katherine Baicker, Harvard University Professor of Health Economic and serves on the Medicare Payment Advisory Commission, also called for commonsense solutions, specifically focused on the need for increased competition. She heighten the role that Medicare Advantage program plays in promoting innovation, as well as providing more seniors flexibility, choice, and quality at an affordable cost.

Baicker emphasized, “A thriving and competitive Medicare Advantage program can be a vital contributor to high quality beneficiary care in a sustainable health care system.”

When Baicker was asked which Obamacare provisions Congress should work to immediately repeal in an effort to protect Medicare Advantage, she replied, “I would like to see the cap on quality bonuses removed … and removing the double bonus for quality so that you’re appropriately rewarding plans for delivering the high-quality care that beneficiaries are seeking out.”

Finally, Stuart Guterman, senior scholar in residence at
AcademyHealth, told the panel that he believes the nation’s largest purchaser of health care can do more to ratchet up quality, enhance quality and coordinate care and control costs. “Because of Medicare’s unique position, it can be an important testing ground for cost and quality innovations. Policies have been put in place that encourage such development, including the expanding the power of the Secretary of Health and Human Services to put pilot programs on a ‘fast track’ and to work with private payers and providers to establish multi-payer initiatives.”

At the conclusion of the two hour hearing, like Baicker, Tiberi stressed the importance of bolstering support for Medicare Advantage, which serves approximately one-third of seniors today. Obamacare cut billions of dollars from Medicare Advantage and redirected those resources toward a one-size-fits-all, Washington-run entitlement, he says.

Tiberi also noted, “If we continue to berate a system that has been widely successful…I don’t think that’s a really good way to try to figure out how we bester serve patients, seniors, in a more cost-effective value-added, comprehensive way.”

Watching from the Sidelines

But, one aging group expressed strong concerns about the Health Panel’s look at Medicare. In his released statement, Max Richtman, President/CEO of the Washington, D.C.-based National Committee to Preserve Social Security Medicare (NCPSSM), viewed the Health Panel hearing as “an Orwellian political exercise in which politicians say preserve when they actually mean privatize, and strengthen when they mean slash.”

“Republicans in the House envision a future in which millions of seniors will lose their guaranteed Medicare benefits in favor of a privatized CouponCare system in which they receive a government coupon to try and buy private insurance. Millions of seniors in Medicaid will lose their benefits due to block-granting to states without providing the resources to pay for it. The repeal of the Affordable Care Act will leave tens of millions without insurance and strip benefits from seniors in Medicare,” says Richtman in NCPSSM’s statement.

Furthermore, “The Republican leadership has offered no plans to improve benefits in Medicare or make reforms to reign in the skyrocketing price of drugs and healthcare costs system wide. Instead, the GOP vision for seniors in Medicare is they must just do more with less. Stagnant wages are grinding away at the middle class’s ability to save for retirement. Many employers have significantly scaled back or eliminated the traditional retirement benefits offered to their employees. As a result, current and future retirees simply cannot afford proposals to cut benefits, raise the eligibility age or privatize the program,” says in the NCPSSM statement.

Finally, the aging advocate warns that the GOP majority on the House Ways and Means Health Subcommittee majority is moving to replace the nation’s traditional Medicare program in favor of a fully privatized system, and the GOP controlled House is in the process of producing a budget that would do just that.

A Democratic or Republican President? Which political party controls the House and Senate? When the dust settles these answered questions may result in a restructuring of the Medicare program, that may either be strengthened and expanded or put on the budgetary chopping block by the new incoming President or Congress. It’s a no brainer…Sitting on the political sideline will ultimately be detrimental to your pocketbook and coverage you receive for your health care.