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.”

Cicilline Hopes Dems Take Senate

Published in Pawtucket Times on November 9, 2020

On Saturday, November 7, at 11:45 a.m. (eastern Standard Time), as the Trump campaign called for legal challenges looming over ballot counting, CNBC projected Joe Biden to win the U.S. Election, making him president-elect.  As the dust settles over this very divisive election, Pennsylvania’s 20 electoral votes propelled Biden over the 273 electoral votes needed to win.

With the Democrats now taking control of the White House and maintaining control of the House, even with a loss of seats, the battle for control of the Senate now turns to Georgia with one regular and one special election scheduled to fill a vacancy take place on January 5.  

With garnering less than 50 percent of the vote, in accordance with Georgia law, GOP Sen. David Perdue and Democratic challenger Jon Ossoff meet again at a January 5 runoff election.  Rev. Raphael Warnock, the democratic challenger, and governor-appointed Republican Sen. Kelly Loeffler, who replaced Sen. Johnny Isakson when he retired last year, battle in the Peach State for a Senate seat in special-election runoff.

Democrats now have a long-shot of taking control of the Senate with Kamala Harris being elected vice president and if they win the two Senate races in Georgia’s upcoming election. By winning the Senate, both parties will each have 50 seats, Harris tipping the balance of power to the Democrats. 

McConnell, Oversees “Least Productive” Congress in its History

Rep. David Cicilline (D-RI) says that the Democratic-controlled House has had one of the most productive Congresses in the institution’s history. “We’ve passed more than 600 bills in the House, but there are more than 375 of them stuck on Mitch McConnell’s desk, many of them bipartisan,” notes Cicilline, who serves as Co-Chair of the House Democratic Policy and Communications Committee.

“Obviously, both Georgia senate races are hanging in balance and it’s important we win them.  A Democratic majority in the Senate will allow for the passage of the “For the People” agenda which creates jobs, raises wages, lowers health care costs and increases access to affordable prescription drugs.  These bills are good for Rhode Islanders and all Americans,” states Cicilline.

“I look foward to working with the Biden Administration to put together a robust agenda for the first 100 days and get to work passing bills that will help Rhode Island’s economy, workers and seniors,” adds Cicilline.

With the release of its 2020 Democracy Scorecard in September, Aaron Sherb, director of legislative affairs for the Washington, DC based Common Cause, documents how a Republican-controlled Senate has resulted in legislative gridlock.  “What the 2020 Democracy Scorecard makes plain is the blatant disregard for democracy reforms in the Senate. “The House of Representatives passed nearly 10 democracy reform bills, often with bipartisan support, this session, but Majority Leader Mitch McConnell (R-KY) blocked debate and mark-ups on all of these bills and refused to allow a vote,” he said.

In fact, the Senate’s inaction has the 116th Congress on tract to be the least productive in history, with just one percent of the bills becoming law,” charges Sherb. author of the 2020 Democracy Scorecard,

The National Committee to Preserve Social Security and Medicare (NCPSSM) strongly agrees with Sherb’s assessment of McConnell’s successful efforts to block Democratic and bipartisan-sponsored common-sense legislation critical to protecting the health and well-being of Americans.  Seniors will not be better off with a GOP-controlled Senate, warns NCPSSM, calling for the Democrats to win the Georgia Senate special elections to take over the control of the Senate.

According to NCPSSM, a Washington, DC-based advocacy group with a mission to protect Social Security and Medicare, “Since 2019, the Democratic-controlled House has served as a firewall against Trump’s efforts to defund, cut and privatize Security and Medicare.  But as long as Republicans control the Senate, legislation to protect and expand seniors’ earned benefits will remain in limbo. Under a Democratic majority, though, seniors would likely see real progress where their financial and health security are concerned.”

NCPSSM charges Senate majority leader McConnell, who gave himself the nickname, the “Grim Reaper,” has buried hundreds of House-passed bills during the 116th Congress that would have benefitted America’s seniors.  He even refused to take up last May’s House-passed COVID-passed relief bill, and the lower chambers recently passed COVID-19 legislation, as the nation’s public health officials battled the spread and spiking of the deadly virus. 

McConnell also blocked consideration of H.R. 3, the Lower Drug Costs Now Act, which the House passed almost a year ago, says NCPSSM. 

H.R. 3 would allow Medicare to negotiate prescription prices with Big Pharma, which would save the government and seniors nearly $350 billion in drug costs. The bill would also expand traditional Medicare by adding dental, vision, and hearing benefits.

NCPSSM says that the GOP Senate Leader will not even allow a bipartisan crafted bill, the S 2543, the “Prescription Drug Pricing Reduction Act, introduced by Senators Chuck Grassley (R-Iowa), and Ron Wyden (D-OR), to be considered on the Senate floor.  According to the Congressional Budget Office, this legislation would save taxpayers $95 billion, reduce out-of-pocket spending by $72 billion and finally reduce premiums by $1 billion.

The eyes are now on the Supreme Court, where three Trump-appointed Justices will rule on legal issues coming before the nation’s highest court. “If the Supreme Court strikes down the Affordable Care Act, which strengthens Medicare’s finances and included enhanced benefits for seniors (not to mention protecting older patients with pre-existing conditions), a Democratic House and Senate could replace or revise it,” notes NCPSSM. 

House Democrats are considering HR 860, The Social Security 2100 Act, to strengthen and expand Social Security.  The landmark legislation, introduced by Rep. John Larson (D-CT), referred to the Subcommittee on Social Security would keep the program financially healthy through the end of the century, while boosting benefits for all retirees. NCPSSM notes that president-elect Joe Biden has incorporated many of the proposals in this bill into his own plan. 

NCPSSM adds that a Democratic-controlled House and Senate could reduce the financial impact on COVID-19 on current and future retirees’ Social Security benefits.  Under Democratic Senate leadership, notes the Washington, DC-based advocacy group, the upper chamber could work with the House to increase the tiny 1.3 percent cost-of-living adjustment (COLA) to 3 percent for 2021.  which would be welcome news for older Americans who were laid off during the COVID-19 pandemic that sweep the nation, forcing many into early retirement

Finally, NCPSSM says that a Democratic-controlled House and Senate could prevent aging Baby Boomers born in 1960 (and possibly 1961, as well) from suffering a lifetime reduction in their future benefits caused by a COVID-related drop in average wages.

A Final Note:  Let’s Bring Back House Aging Committee

During the last two Congresses, Cicilline introduced a resolution three times to re-establish a House Permanent Select Committee on Aging. Two of the times a GOP-controlled Congress blocked consideration.  Democrat House efforts to impeach President Donald Trump and a continual battle over policy issues with the Trump Administration and the Republican-controlled Senate put Cicilline’s resolution on hold the third time.  

The previous House Aging Committee was active from 1974 to 1993 (until it was disbanded because of budgetary issues) put the spot light on an array of senior issues including elder abuse, helped increase home care benefits for older adults and helped establish research and care centers for Alzheimer’s disease.  

After introducing his resolution this Congress, Cicilline says that a reestablished House Aging Committee could initiate comprehensive studies on aging policy issues, funding priorities, and trends.  Like its predecessor, its efforts would not be limited by narrow jurisdictional boundaries of the standing committee but broadly at targeted aging policy issues, he notes.

According to Cicilline, the House can easily create an ad hoc (temporary) select committee by approving a simple resolution that contains language establishing the committee—giving a purpose, defining membership, and detailing other aspects.  Funding would be up to the Appropriations Committee. Salaries and expenses of standing committees, special and select, are authorized through the Legislative Branch Appropriations bill.

During the 117th Congress, as the House begins its debates on Social Security, Medicare and Medicaid, the Older Americans Act, and other issues of importance to older adults, it will be important to have a House Aging Committee that once again puts the spotlight and attention on America’s aging issues. 

Attacking Rising Prescription Drug Costs

Published in the Woonsocket Call on April 7, 2019

The Washington, DC-based AARP timed the release of its latest Rx Price Watch report as the House Energy Commerce Committee marked up and passed a dozen bills just days ago, six that would lower prescription drug costs. The legislative proposals now go to the House floor for consideration.

AARP’s new report, a continuation of a series that has been tracking price changes for widely used prescription drugs since 2004, was circulated to House Committee members before their markup and vote and its findings sent a message to the lawmakers that they hear from their older constituents, that is the costs of pharmaceutical drugs is skyrocketing, making it difficult to fill needed prescriptions.

Poll after poll findings reflect the concerns of seniors about their ability to pay for prescribed medications. According to a Kaiser Family Foundation poll released last month, 79 percent of survey respondents view drug prices to be “unreasonable,” while just 17 percent found the costs to be “reasonable.” Twenty-four percent of these respondents found it difficult to pay the costs of their prescription drugs.

Generic Drugs Can Save Dollars

According to the new AARP Public Policy Institute (PPI) report, by Leigh Purvis and Dr. Stephen W. Schondelmeyer, the average annual cost of therapy for one widely used brand-name prescription drug in 2017 was over 18 times higher than the cost of therapy for one generic drug. The cost for a generic medication used on a chronic basis averaged $365 per year. In contrast, the average annual cost for a brand-name prescription drug was $6,798. But, four years earlier the price differential between these same market baskets was substantially smaller ($4,308 verses $751 respectively).

“Generics account for nearly nine out of every 10 prescriptions filled in the U.S. but represent less than a quarter of the country’s drug spending,” said Debra Whitman, Executive Vice President and Chief Public Policy Officer at AARP, in a statement released with the PPI’s 28 page report “These results highlight the importance of eliminating anticompetitive behavior by brand-name drug companies so that we get more lower-priced generic drugs on the market,” says Whitman.

AARP’s PPI report, entitled “Trends in Retail Prices of Generic Prescription Drugs Widely Used by Older Americans,” found that retail prices for 390 generic prescription drugs commonly used by older adults, including Medicare beneficiaries, decreased by an average of 9.3 percent in 2017, compared to the general inflation rate of 2.1 percent. The decline follows two consecutive years of substantial generic drug price decreases; the previous two consecutive years saw increases in generic drug prices. All but three of the 390 generic prescription drugs analyzed in AARP’s report had a retail price change in 2017. While prices for 297 (76 percent) drug products decreased, 90 (23 percent) products had price increases.
Six commonly used generic drug products had retail price increases of greater than 70 percent, including a nearly 200 percent increase for sertraline HCL, an antidepressant, finds the AARP.

AARP’s PPI report found that with older adults taking an average of 4.5 prescription drugs every month, those using generic prescription drugs were likely to have an average annual retail cost of $1,642 in 2017.

“The gap between average annual brand-name and generic drug prices has increased dramatically—brand name drug prices were six times higher than generic drug prices in 2013 but more than 18 times higher in 2017,” said Leigh Purvis, Director of Health Services Research, AARP Policy Institute, and co-author of the report. “As long as brand name drug prices continue to skyrocket, the value of prohibiting brand name drug company practices that slow or prevent competition from generic and biosimilar drugs cannot be overstated.”

AARP Pushes for Passage of Bills to Lower Drug Costs

Before the Committee on Energy and Commerce vote on April 3, in correspondence AARP urged Chairman Frank Pallone, Jr. (D-N.J.) and Ranking Member Greg Walden (R-Ore) to enact two bills (along with four other proposals) being considered at the morning markup session. These legislative proposals would lower prescription drug costs and had previously been approved by the Energy and Commerce Health Subcommittee.

In the correspondence, AARP’s Nancy A. LeaMond, Executive Vice President and Chief Advocacy and Engagement Officer, pushed for passage of H.R., 1499. the “Protecting Consumer Access to Generic Drugs Act of 2019.” introduced by Rep. Bobby Rush (D-IL). This proposal would make it illegal for brand-name and generic drug manufacturers to enter into agreements in which the brand-name drug manufacturer pays the generic manufacturer to keep a generic equivalent off the market. The bill was passed by voice vote.

LeaMond also supported H.R., 965, the “Creating and Restoring Equal Access to Equivalent Samples (CREATES) Act of 2019,” introduced by Reps. David Cicilline (D-RI), Jim Sensenbrenner (R-WI), Jerrold Nadler (D-NY), Doug Collins (R-GA), Peter Welch (D-VT), and David McKinley (R-WV). The proposal would establish a process by which generic manufacturers could obtain sufficient quantities of brand drug samples for testing thereby deterring gaming of safety protocols that brand manufacturers use to delay or impede generic entry. The bill passed by a bipartisan vote of 51-0.

At the markup, Pallone and Walden were able to work out philosophical differences on H.R. 1499 and H.R. 965. The two lawmakers also hammered out a compromise on H.R. 1503, the “Organize Book Transparency Act of 2019,” that would ensure that the Orange book, which identifies drug products approved on the basis of safety and effectiveness by the Food and Drug Administration, is accurate and up-to-date.

Washington Insiders say that Democratic control of the House will ensure the passage of these legislative proposals on the House floor and the bipartisan vote on the CREATES Act in the lower chamber creates an opportunity for Senate Finance Committee Chairman Chuck Grassley (R-Iowa) to successfully push his CREATES Act companion measure in the Senate.

Grassley says the broad, bipartisan action by the House Energy and Commerce Committee to advance the CREATES Act is a major win for consumers. “I look forward to advancing this bill because it will cut down on abuses in the system that keep prices high for patients. I’m also pleased that the committee advanced a bill to address pay-for-delay schemes. Although that bill is not identical to the bill I’ve sponsored in the Senate, the bill’s movement shows that the committee is serious about addressing the pay-for-delay problem,” says the Senator.

As They See It…

AARP’s LeaMond, says “Brand-name drug companies want to stifle generic competition to protect their monopolies and profits. AARP believes that eliminating these deliberate anticompetitive behaviors will result in a more robust generic drug market and greater savings for both patients and taxpayers. The Congressional Budget Office estimated that legislation such as the CREATES Act could save taxpayers more than $3 billion over a decade, and the Federal Trade Commission estimated pay-for-delay deals cost consumers and taxpayers $3.5 billion a year.

“We have long supported the CREATES Act and banning pay-for-delay agreements, and are heartened that Congress is acting to improve access to generic drugs. These bills will promote competition driving down costs for seniors,” says Lisa Swirsky, Senior Policy Analyst, at the National Committee to Preserve Social Security and Medicare.

“Congressman Cicilline has been a leader in our caucus for putting prescription drug prices at the front of our agenda. Moving generics to market faster is an important step to lower prescription drug costs for every American,” said House Speaker Nancy Pelosi. “House Democrats have made it a top priority to lower Americans’ health costs by reducing the price of prescription drugs, and these bipartisan bills show we mean to deliver,” she says.