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.”

In re-establishing House Aging Committee, hopefully the third time is indeed the charm

Published in the Woonsocket Call on February 2, 2020

Twenty-six years after the House Democratic Leadership’s belt-tightening efforts to save $1.5 million resulted in the termination of the House Permanent Select Committee on Aging, U.S. Congressman David N. Cicilline reintroduces legislation to reestablish the House Aging panel, active from 1974 until 1993. Initially the House panel had 35 members but would later grow to 65 members.

According to Cicilline, the House can readily authorize the establishment of a temporary ad hoc select committee by just approving a simple resolution that contains language establishing the committee – describing the purpose, defining members and detailing other issues that need to be addressed. Salaries and expenses of standing committees, special and select, are authorized through the Legislative Branch Appropriations bill.

At press time, for the third time, Cicilline’s resolution (House Resolution 821; introduced Jan. 30, 2020) to re-establish the House Aging Committee has been introduced and referred to the House Committee on Rules for mark up and if passed will be considered by the full House.

The Nuts and Bolts

The House Resolution (just over 245 words) reestablishes a Permanent House Select Committee on Aging, noting that the panel shall not have legislative jurisdiction, but it’s authorized to conduct a continuing comprehensive study and review of the aging issues, such as income maintenance, poverty, housing, health (including medical research), welfare, employment, education, recreation, and long-term care.

Cicilline’s House Resolution would have authorized the House Aging Committee to study the use of all practicable means and methods of encouraging the development of public and private programs and policies which will assist seniors in taking a full part in national life and which will encourage the utilization of the knowledge, skills, special aptitudes, and abilities of seniors to contribute to a better quality of life for all Americans.

Finally, the House Resolution would also allow the House Aging Committee to develop policies that would encourage the coordination of both governmental and private programs designed to deal with problems of aging and to review any recommendations made by the President or by the White House Conference on aging in relation to programs or policies affecting seniors.’

Initial Resolution Blocked by the House GOP

On March 1, 2016, Cicilline had introduced House Resolution 758 during the 114th Congress (2015-2016) to reestablish the House Aging Committee. It attracted Rhode Island Congressman James R. Langevin (D-RI) and 27 other cosigners (no Republicans) out of 435 lawmakers. Seniors Task Force Co-Chairs, U.S. Congress Women Doris Matsui (D-CA) and Jan Schakowsky (D-IL) also signed onto supporting this resolution.

However, it was extremely obvious to Cicilline and the Democratic cosigners that it was important to reestablish the House Aging Committee. Correspondence penned by the Rhode Island Congressman urged House Speaker Paul Ryan (R-WI) and the House Republican leadership to support House Resolution 758. But, ultimately no action was taken because Ryan had blocked the proposal from being considered.

At that time, Cicilline remembers that many of his Democratic House colleagues didn’t think House Resolution 758 would gain much legislative traction with a Republican-controlled House. However, things are different today with Democratic House Speaker Nancy Pelosi (D-California) controlling the legislative agenda in the chamber.

During the 115th Congress (2017-2018), Cicilline continued his efforts to bring the House Select Committee on Aging back to life. On March 01, 2017, he threw House Resolution 160 into the legislative hopper. Twenty-Four Democratic lawmakers became cosponsors and but no Republicans came on board. House Speaker Ryan again derailed the Rhode Island Congressman’s attempts to see his proposal passed.

Third Times the Charm

Since a Republican-controlled Congress successfully blocked Cicilline’s simple resolution from reaching the floor for a vote in 2017, the Democratic lawmaker has reintroduced his resolution in the current Congress with the Democrats controlling the chamber’s legislative agenda.

Cicilline is working to get support from both Democratic and Republican lawmakers and has approached the House leadership for support. He plans to again reach out to aging advocacy groups for support, including the Leadership Council on Aging Organizations, consisting of some 70 national organizations, whose leadership includes the AARP, the National Council on Aging, the Alliance for Retired Americans, and the National Committee to Preserve Social Security and Medicare.

“Our nation’s seniors deserve dedicated attention by lawmakers to consider the legislative priorities that affect them, including Social Security and Medicare, the rising cost of prescription drugs, poverty, housing issues, long-term care, and other important issues,” said Cicilline in a statement announcing the reintroduction of his House resolution to bring back the House Aging Committee. “I’m proud to introduce this legislation today on behalf of seniors in Rhode Island and all across America,” says the Rhode Island Congressman who serves on the House Democratic leadership team as Chairman of the Democratic Policy and Communications Committee.

According to Cicilline, for nearly two decades, the U.S. House Permanent Select Committee on Aging was tasked with “advising Congress and the American people on how to meet the challenge of growing old in America.” The Select Committee did not have legislative authority, but conducted investigations, held hearings, and issued reports to inform Congress on issues related to aging.

“The re-establishment of the Permanent Select Committee will emphasize Congress’s commitment to current and future seniors. It will also help ensure older Americans can live their lives with dignity and economic security,” says Cicilline.

Looking Back in Time

In 1973, the House Permanent Select Committee on Aging was authorized by a vote of 323 to 84. While lacking legislative authority to introduce legislation (although its members often did in their standing committees), the House Aging panel would begin to put the spotlight on specific-aging issues, by broadly examining federal policies and trends. Its review of legislative issues was not limited by narrow jurisdictional boundaries set for the House standing committees.

In 1993, Congressional belt-tightening to match President Clinton’s White House staff cuts and efforts to streamline its operations would seal the fate of the House Aging Committee. House Democratic leadership cut $1.5 million in funding to the House Aging Committee forcing it to close its doors (during the 103rd Congress) because they considered it to be wasteful spending because the chamber already had 12 standing committee with jurisdiction over aging issues.

Even the intense lobbying efforts of a coalition of Washington, DC-based aging advocacy groups including AARP, National Council on Aging, National Council of Senior Citizens, and Older Woman’s League could not save the House Aging Committee. These groups warned that staff of the 12 standing committees did not have time to broadly examine aging issues as the select committee did.

Aging groups rallying in the support of maintaining funding for the House Aging Committee clearly knew its value and impact. In a March 31, 1993 article published in the St. Petersburg Times, reporter Rebecca H. Patterson reported that Staff Director Brian Lutz, of the Committee’s Subcommittee on Retirement Income and Employment, stated that “during its 18 years of existence the House Aging Committee had been responsible for about 1,000 hearings and reports.”

As an advocate for the nation’s seniors, the House panel prodded Congress to act in abolishing forced retirement, investigating nursing home abuses, monitoring breast screening for older woman, improving elderly housing and bringing attention to elder abuse by publishing a number reports, including Elder Abuse: An Examination of a Hidden Problem and Elder Abuse: A National Disgrace, and Elder Abuse: A Decade of Shame and Inaction. The Committee’s work would also lead to increased home care benefits for the aging, and establishing research and care centers for Alzheimer’s Disease.

Aging Advocates Give Thumbs Up

“The Senate has had the wisdom to keep its Special Committee on Aging in business which has meant a laser-like attention on major issues affecting seniors including elder abuse, especially scams and other forms of financial exploitation,” says Bill Benson, former staff director of the Committee’s Subcommittee on Housing and Consumer Interests. The House has been without a similar body now for decades, he notes.

Benson adds, “With ten thousand Americans turning 65 each day we are witnessing the greatest demographic change in human history. It is unconscionable to not have a legislative body in the House of Representatives focused on the implications of the aging of America.”

Max Richtman, president and CEO of the National Committee to Preserve Social Security and Medicare, served as staff director for the Senate Special Committee on Aging from 1987 to 1989. He agrees that it’s time once again for the House to have its own committee dedicated to older Americans’ issues.

With the graying of America it is more important now than ever that seniors’ interests are represented as prominently as possible on Capitol Hill, says Richtman. “There is so much at stake for older Americans today, including the future of Social Security and Medicare, potential cuts to Medicaid, and the myriad federal programs that lower income seniors rely upon for everything from food to home heating assistance. We fully support Rep. Cicilline’s efforts to re-establish the House Permanent Select Committee on Aging,” he states.

“We enter 2020 in the midst of the predicted aging of America including the fact that all boomers are now over age 55, says Robert Blancato, president of Matz, Blancato and Associates, who was the longest serving staff person on the original House Aging Committee, from 1978 to 1993.

“We need the specific focus that only a select committee can offer to the myriad of issues related to aging in America,” adds Blancato, noting that it would be a coveted Committee to be named to from both a policy and political perspective.

Four years after the death of Congressman Claude Pepper, (D-Florida) in 1989, the former Chairman of the House Select Committee on Aging, serving as its chair for six years, would have turned in his grave with the House eliminating his beloved select committee. House Speaker Nancy Pelosi might honor the late Congressman who was the nation’s most visible spokesperson for seniors, by bringing the House Select Committee on Aging back this Congressional session.

Trump Signs Legislation to Undo Nation’s Banking Rules

Published in the Woonsocket Call on May 27, 2017

On May 22, 2018, The Senior Safe Act, a bipartisan bill authored by U.S. Senators Susan Collins (R-ME) and Claire McCaskill (D-MO) to help protect older American’s from financial exploitation and fraud, passed the House of Representatives by a vote of 258-159 as part of a bipartisan banking reform package after previously passing the Senate in March by a vote of 67-31. President Donald J. Trump’s signed the bill into law rolling back regulatory oversight of the nation’s financial industry.

The Senior Safety Act is part of S. 2155, the “Economic Growth, Regulatory Relief and Consumer Protection Act,” a bill that modified the provisions of the Dodd-Frank Act, which was passed by Congress in 2010 to oversee the financial industry after the financial crash and recession of 2008-09.

Protecting Older Investors from Financial Exploitation

Through the watchdog efforts of the Senate Aging Committee, financial exploitation of seniors was identified as a top senior issue to combat. According to the Government Accountability Office, financial fraud targeting older Americans is a growing epidemic that costs seniors an estimated $2.9 billion annually. These frauds range from the “Jamaican Lottery Scam,” to the IRS impersonation scam, to the financial exploitation of seniors through guardianships. Earlier this year a hearing was held to update the public about the committee’s efforts to combat scams targeting older Americans as well as unveil its 2018.

As the Chairman and former Ranking Member of the Senate Special Committee on Aging, Senators Collins and McCaskill introduced the Senior $afe Act last year. Existing bank privacy laws can make it difficult for financial institutions to report suspected fraud to the proper authorities. The Senior $afe Act address this problem by encouraging banks, credit unions, investment advisors, broker-dealers, insurance companies and insurance agencies to report suspected senor financial fraud. It also protects these institutions from being sued for making reports so long as they have trained their employees and make reports in good faith and on a reasonable basis to the proper authorities.

“As Chairman of the Senate Aging Committee, I have been committed to fighting fraud and financial exploitation targeted at older Americans,” said Senator Collins. “The Senior $afe Act, based on Maine’s innovative program, will empower and encourage our financial service representatives to identify warning signs of common scams and help prevent seniors from becoming victims.”

Judith M. Shaw, Maine Securities Administrator and chair of the North American Securities Administrators Association’s Committee on Senior Issues and Diminished Capacity, says that this legislation incentivizes financial service institutions, including those in the securities industry, to train key employees on the identification and reporting of suspected financial exploitation of seniors. “This is a significant and important tool in the ongoing efforts to protect senior investors,” she adds.

Adds Jaye L. Martin, Executive Director of Legal Services for the Elderly, “We know from our proven success with Senior Safe in Maine that education of financial services professionals is a key component to identifying and stopping financial exploitation of seniors. There is no doubt this bill will help prevent seniors all over the country from becoming victims.”

With the passage of S. 2155, Keith Gillies, President of the National Association of Insurance and Financial Advisors (NAIFA), said, “The Senior Safe Act provides “much needed protection for older investors and will allow advisors to better protect their clients’ interests.”

“Advisors are often the first line of defense for scammers looking to take advantage of investors,” says Gillies, noting that studies have found older Americans are often a prime target.

The Pros and Cons of S. 2155

Since the Dodd-Frank legislation’s passage eight years ago, 20 percent of small banks have been put out of business, said President Trump and a ceremony where he signed S. 2155 into law. He predicted that the roll back of the costly banking reform regulations, both “crippling” and “crushing” to community banks and credit unions, would stimulate the banking industry to increase lending to businesses.

Banking regulations made it virtually impossible for new banks to be established to replace those that had closed their doors, said Trump, denying small businesses with access to capital. “By liberating small banks from excessive bureaucracy — and that’s what it was: bureaucracy — we are unleashing the economic potential of our people,” said Trump.

Senator Jon Tester (D-Montana) calls the Economic Growth, Regulatory Relief, and Consumer Protection Act a jobs bill, saying “it is a much-needed solution for the folks who power our local economies.”

In an op-ed in the Greater Fort Wayne Business Weekly, Senator Joe Donnelly (D-Indiana) said, “This banking package is reasonable, balanced, and the result of thoughtful negotiation and compromise. It would take measured steps to encourage community financial institutions to boost lending and provide new protections for consumers. And it’s an example of what we can achieve when we work together to break the gridlock in Washington.”

But others strongly oppose passage of S. 2155.

Although S. 2155 has a provision to protect seniors from financial exploitation, Democratic Policy and Communications Committee Co-Chair David N. Cicilline, expressed strong concerns when the Houses passed S. 2155, he jokingly refers to as “the Bank Lobbyist Act.”

“Ten years ago, Wall Street’s recklessness brought our economy to the brink of collapse. It has taken Rhode Island years to recover. In many ways, we are still recovering.,” noted Rhode Island’s Congressman representing District 1. “The Dodd-Frank financial reform law ended the worst of the Big Banks’ excesses. It established the Consumer Financial Protection Bureau and gave working people a voice against the most powerful corporations in our country,” he said, noting that the passing of S. 2155 has reversed this progress.

It’s a massive giveaway to the wealthy and the middle class is getting screwed. This is a raw deal for working men and women. The American people deserve A Better Deal,” Cicilline said.

Max Richtman, president and CEO of the National Committee to Preserve Social Security and Medicare, warns that with the deregulation of banks, the GOP “are still gunning for Social Security under the guise of entitlement reform.”

Richtman predicts the passage of S. 2155 and it’s signing into law “makes another financial crisis more likely.”” He asks, “How fair is it to ask workers to be responsible and save when the government strips away protections intended to keep our savings secure?”

“Retirees’ Social Security benefits must be preserved because, at least for now, they are the only thing workers can depend on after the next financial crash,” says Richtman.

The Senior $afe Act was endorsed by organizations, including AARP, the North American Securities Administrators Association (NASAA), the Conference of State Bank Supervisors (CSBS), the Credit Union National Association (CUNA), the National Association of Federally-Insured Credit Unions (NAFCU), the National Association of Insurance Commissioners (NAIC), the National Association of Insurance and Financial Advisors (NAIFA), the Securities Industry and Financial Markets Association (SIFMA), the Insured Retirement Institute (IRI), Transamerica, and LPL Financial.