Tag Archives 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.”

Supreme Court Jumps into Age Discrimination Debate

Published in Pawtucket Times on March 25, 2002

In 1983, my 70-year-old father expressed his concerns about job hunting in his senior years.

Like many at his age, he was not considering retirement but was seeking a new professional challenge. He began to put out feelers for new employment while still being employed by a Dallas, Texas-based retail chain after m ore than 40 years of service.

They won’t hire me if they find out my age,” my father staid, adding that he believed that job experience gleaned from years of employment is not valued by many in corporate America.

Sadly, my father’s fears of age discrimination expressed to me years ago is still documented today by the federal government.

Last year, more than 20 percent of the 80,840 discrimination complaints filed with the Equal Employment Opportunity Commission against private-sector employers were related to age discrimination.

Last week, the Supreme Court jumped into the age discrimination debate and will determine whether seniors have the same legal rights as other types of discrimination claim suits do.

Layoffs at the Florida Power Corporation during a series of reorganizations led to the termination of Wanda Adams and 116 older workers.

More than 70 precent of these persons were at least 40 years old or older. A lawsuit, Adams vs. Florida Power Corp. was filed, claiming the Florida-based corporation discriminated against older workers based on their age in violation of the Federal Age Discrimination in Employment Act.

Under the 1967 federal statute, older workers must not be treated differently than younger workers because of their age.

The 11th U.S. Circuit Court of Appeals in Atlanta affirmed the trial court’s decision that older workers could challenge their termination by proving that their employer’s action had a discriminatory motive or intent (disparate treatment) rather than a disproportionate impact (disparate impact) on older workers.  AARP believes that this court ruling would make age bias suits tougher to prove, giving employers a greater ability to trim their payrolls of older workers.

Now the U.S. Supreme Court is posed to consider a hot judicial issue, especially one that will impact millions of employed aging baby boomers.

AARP, a Washington, DC-based aging advocacy group that represents more than 35 million members, has filed a “friend of the court brief” showing that its support of disproportionate impact, for use in proving age discrimination suits.

The nonprofit group says that the U.S. Supreme Court has already ruled that these types of suits are allowed under the 1964 Civil Rights Act, to prove discrimination based on an employee’s gender, religion or race.

AARP official Laurie McCann states that if the U.S. Supreme Court supports AARP’s legal position, then older workers can win suits by not having to show employer’s intent to discriminate.

“Older employees will always find it hard to prove intent, because it’s difficult to get inside the employer’s head to get evidence as to what they are thinking.”

McCann says oral arguments were heard on March 20, and the justices ruling should be expected to the end of June.

“We will explore  the possibility of a legislative fix,” she adds, “to allow older workers to prove age bias if they’ll company’s practices and policies has a disproportionate impact on older workers.”

Adds AARP State Director Kathleen Connell, “Once unemployed older workers face sharply limited employment opportunities, re-employment after job loss declines dramatically at older ages.

“Older workers have a fundamental right to work in an environment free of age discrimination,” she says. “Age discrimination can be blatant or subtle and can include such practices as refusing to hire or promote older workers, encouraging their retirement, targeting them in reductions in force, curtailing their employee benefits on liming their training opportunities job responsibilities and duties.”

If the U.S. Supreme Court rules to make age bias suits tougher to prove, then aging baby boomers will continue to face the same concerns of my father’s generation – that age discrimination runs rampant throughout corporate America.

When reviewing the merits of the Adams case, it is hope that the justices will see the wisdom of giving older workers the same legal clout as women, minorities, gays and religious persons. Courts have allowed these groups to legally challenge racial, sexual or religious discrimination on the grounds that an employer’s actions had a disproportionate impact on them.

It’s time to protect older workers, too. It’s only fair.