Protecting Older Workers Against Discrimination Act of 2021

Floor Speech

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Mr. SCOTT of Virginia. Mr. Speaker, pursuant to House Resolution 486, I call up the bill (H.R. 2062) to amend the Age Discrimination in Employment Act of 1967 and other laws to clarify appropriate standards for Federal employment discrimination and retaliation claims, and for other purposes, and ask for its immediate consideration.

The Clerk read the title of the bill.

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Mr. SCOTT of Virginia. 2062, the Protecting Older Workers Against Discrimination Act of 2021.

Mr. Speaker, I rise in support of H.R. 2062, the Protecting Older Workers Against Discrimination Act, which I reintroduced this year with our colleague, the gentleman from Illinois (Mr. Rodney Davis).

For decades, the Federal Government has recognized the need to protect older workers against discrimination on the basis of age. Unfortunately, in 2009, the Supreme Court severely eroded protections for older workers in the case of Gross v. FBL Financial Services, Inc.

In its decision, the Court set a significantly higher burden of proof for workers alleging age discrimination. Under this standard, workers must prove that age discrimination was the decisive cause of an employer's action rather than just one of the motivating factors, as was the case before the Gross decision.

Mr. Speaker, I include in the Record a letter from the NAACP supporting the bill and discussing the Gross decision. NAACP, Washington, DC, June 19, 2021. Re NAACP Support for H.R. 2062, the Protecting Older Workers Against Discrimination Act of 2021 (POWADA) Urges a ``Yea' Vote on Final Passage. Hon. Robert (Bobby) Scott, House of Representatives, Washington, DC.

Dear Representative Scott: On behalf of the National Association for the Advancement of Colored People (NAACP), our nation's oldest, largest and most widely recognized grassroots based civil rights organization, I thank you for your leadership and work for the passage of H.R. 2062, the Protecting Older Workers Against Discrimination Act of 2021 (POWADA). This bill is a crucial component of the NAACP's vision for ensuring a society in which all individuals have equal rights and equal protection under the law as a key measure to ensure that illegal workplace discrimination is ended for all. To that end, we are convinced that POWADA takes a critical steps forward to ensure older workers, especially those who are persons of color and women, are protected from age discrimination in the workplace.

The Supreme Court's 2009 decision Gross v. FBL Financial Services, Inc., significantly reduced the ability for employees to challenge an employer's age discriminatory employment practices in court. The decision forces employees to prove that age is a `but-for' cause of an age discrimination employment action. Worse, some circuit courts extended the Gross but-for standard into other civil rights statutes as well. The NAACP urges full Congressional support for, and passage of POWADA, a bill that restores the ability of plaintiffs to challenge age and other forms of discrimination in court by returning the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Rehabilitation Act of 1973 and the retaliation provisions of Title VII to the mixed-motive standard of proof used under Title VII of the Civil Rights Act for decades.

The importance of countering age discrimination cannot be understated, especially since age discrimination often intersects with other forms of discrimination based on race and gender. The evidence for this is clear: Nearly two-thirds of women and more than three-fourths of African American workers age 45 and older say they've seen or experienced age discrimination in the workplace. Over 9 percent of African Americans felt pressured into early retirement because of their age, compared to 6.7 percent for other races. During the COVID-19 pandemic, the decline in employment for older African American, Hispanic, and Asian worker was twice that of older white workers. The ability for workers to confront age discrimination is an integral part of confronting discrimination generally in our Country.

For the preceding reasons, the NAACP strongly urges Congress to pass POWADA (H.R. 2062) and protect our nation's older workers as soon as possible.

Thank you again for your leadership and attention to this crucial issue of civil rights and equal protection under law. If you have any questions or other concerns with the NAACP's position on this matter, please do not hesitate to contact me. Sincerely, Hilary O. Shelton,

Director, NAACP Washington Bureau & Senior Vice President for Policy and Advocacy.

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Mr. SCOTT of Virginia. Mr. Speaker, making cases more difficult to prove contradicts our responsibility to support older workers who have been vulnerable to workplace discrimination. In fact, more than half of older workers are pushed out of longtime jobs before they choose to retire.

Age discrimination also holds back our economy. Research by AARP and the Economist Intelligence Unit found that, absent age discrimination, older workers would have contributed $850 billion more in 2018 to the gross domestic product. Clearly, our labor market and economy cannot fully recover from the pandemic if we fail to support our older workers.

The Protecting Older Workers Against Discrimination Act is a bipartisan initiative that would restore the pre-2009 evidentiary standard for age discrimination claims. This would effectively realign the burden of proof for age discrimination claims so it would again be the same standard that is required for proving discrimination based on sex, race, religion, and national origin.

This legislation also reinstates this standard for disability discrimination claims under the Americans with Disabilities Act and the Rehabilitation Act, as well as claims for retaliation for rights protected under the Civil Rights Act of 1964. These statutes have all been implicated by the Gross decision.

Last Congress, 261 bipartisan House Members voted in favor of passing the Protecting Older Workers Against Discrimination Act. This Congress, I hope we can come together again and take this next step to ensure that older workers can achieve justice.

Mr. Speaker, I include in the Record a Statement of Administration Policy in support of H.R. 2062. Statement of Administration Policy H.R. 2062--Protecting Older Workers Against Discrimination Act--Rep. Scott, D-VA, and 112 cosponsors

The Administration supports House passage of the Protecting Older Workers Against Discrimination Act (POWADA). The bipartisan legislation would restore legal protections for older Americans and hold employers accountable for age discrimination.

The bill amends the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Rehabilitation Act of 1973, to replace the ``but-for'' test established in Gross v. FBL Financial Services, Inc. with the ``motivating factor'' test. The bill thereby aligns the burden of proof for age discrimination with similar standards for proving discrimination based on race and national origin. In addition, the bill allows individuals claiming discrimination to rely on any type or form of admissible evidence to prove an unlawful practice occurred.

Workplace discrimination prevents people from fully accessing the American dream and limits the contributions that they can make to our shared prosperity. Ending it is a priority for the Administration. The President supports this bipartisan legislation that protects workers from age discrimination.

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Mr. SCOTT of Virginia.

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Mr. SCOTT of Virginia. Schakowsky), the co-chair of the House Democratic Caucus Task Force on Aging.

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Mr. SCOTT of Virginia. Bonamici), chair of the Subcommittee on Civil Rights and Human Services.

I include in the Record a letter from the AARP, which says, in part, ``Older workers are valuable assets to their employers and the economy. Despite that, 78 percent of older workers reported having seen or experienced age discrimination in the workplace in 2020, up markedly from 61 percent in 2018. More than half of older workers are forced out of a job before they intend to retire. Nine out of 10 of those who do find work never again match their prior earnings. Making matters worse, the COVID-19 pandemic has significantly diminished job prospects and future retirement security of older workers. In April, over half of job seekers ages 55 and older continued to be long-term unemployed, 53.3 percent, compared to 42.3 percent of job seekers ages 16 to 54. The labor force participation rates for older women workers, along with their earning power and future retirement security, have been particularly hard-hit by COVID.'' All of that is in the letter. AARP, June 14, 2021.

Dear Representative: On behalf of our nearly 38 million members and all older Americans nationwide, AARP urges you to vote in support of H.R. 2062, the Protecting Older Workers Against Discrimination Act (POWADA), important bipartisan legislation sponsored by Chairman Scott and Rep. Rodney Davis (R-IL) to restore protections against age discrimination.

Older workers are valuable assets to their employers and the economy. Despite that, 78 percent of older workers reported having seen or experienced age discrimination in the workplace in 2020, up markedly from 61 percent in 2018. More than half of older workers are forced out of a job before they intend to retire. Nine out of 10 of those who do find work never again match their prior earnings. Making matters worse, the COVID-19 pandemic has significantly diminished the job prospects and future retirement security of older workers. In April, over half of job seekers ages 55 and older continued to be long-term unemployed (53.3 percent) compared with 42.3 percent of job seekers ages 16 to 54. The labor force participation rates for older women workers, along with their earning power and future retirement security, have been particularly hard-hit by COVID.

POWADA is a bipartisan, commonsense bill that would restore fairness for older workers. The bill reinstates well- established legal standards on workplace discrimination that were undermined by the 2009 Supreme Court decision in Gross v. FBL Financial Services, Inc. and subsequent discrimination cases. POWADA would help level the playing field for older workers and restore their legal rights. Older Americans have waited for over a decade for this legislation to be enacted.

AARP strongly supports POWADA and urges you to enact it as soon as possible. If you have any questions, please feel free to contact me, or have your staff contact Michele Varnhagen on our Government Affairs staff. Sincerely, Bill Sweeney, Senior Vice President, Government Affairs.
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Mr. SCOTT of Virginia. Garcia).

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Mr. SCOTT of Virginia.

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Mr. SCOTT of Virginia. Adams), the chair of the Subcommittee on Workforce Protections.

The Protecting Older Workers Against Discrimination Act is a bipartisan bill that has been introduced over many Congresses with growing support. Over the last decade, Members have debated this bill through multiple legislative hearings, and bills in both the House and the Senate have been introduced and improved every Congress since 2009.

Despite the bipartisan legacy of this proposal, some of my colleagues have raised disappointing opposition today. But let's be clear. This bill is not about increasing the number of age discrimination claims. It is about giving victims of discrimination a fair shot at getting relief. It is simply restoring basic protections for older workers.

Yes, discrimination against older workers is already illegal, but, regrettably, it is unnecessarily harder to prove because of the 2009 decision. In spite of the fact that it is more difficult, cases are still being brought. But if the cases were as easy to bring or the same difficulty to bring as other cases, even more cases would have been filed.

We know this is more difficult because in the original case of Gross v. FBL Financial Services, Jack Gross successfully proved that his employer had demoted older workers who refused to accept a buyout, while giving their jobs to younger workers. Yet it was only after the Supreme Court changed the rules and required Mr. Gross to retry his case that he lost with the higher standard, because, despite having the same facts, the same parties, and the same court, he lost his case.

The Protecting Older Workers Against Discrimination Act is designed to ensure that older workers like Mr. Gross are not denied justice and fair treatment that they deserve.

We have heard about attorneys' fees. We need to just remind everybody that lawyers are only awarded attorneys' fees when they win the case. So if you want to reduce attorneys' fees, the businesses can stop discriminating.

I hope we can all agree that it is time to stand up for older workers and treat all workers facing discrimination, whether it is on the basis of sex, race, religion, national origin, or age, with consistency and fairness.

I thank the gentleman from Illinois (Mr. Rodney Davis) again for working with me on this bipartisan priority.

Mr. Speaker, I urge my colleagues to vote ``yes'' on this bill, and I yield back the balance of my time.

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Mr. SCOTT of Virginia. Mr. Speaker, pursuant to section 3 of House Resolution 486, I rise to offer amendments en bloc No. 1.

Mr. Speaker, there are two amendments in this en bloc amendment.

Mr. Brown has offered an amendment to require the EEOC to submit an annual report to Congress on the number of age discrimination claims brought under this act.

Ms. Williams has offered an amendment to require the EEOC to submit a report to Congress on any remaining disparities faced by workers pursuing relief under the mixed motive standard whose cases were covered by the ADEA, as well as other antidiscrimination laws.

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Mr. SCOTT of Virginia. Williams).
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Mr. SCOTT of Virginia. Mr. Speaker, I would like to state that these two amendments would improve the bill.

The one from Mr. Brown would give information that is already being provided now, but this would just make sure it continues. It is being provided on a voluntary basis, these annual reports.

And Ms. Williams offers a very interesting analysis that some people may be being discriminated against on multiple grounds and pointed out the Federal Reserve study that showed that older workers who happen to be women fared a lot worse than the older workers who happen to be men. We may need to figure out how we deal with that, but we need the data before we can move forward.

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Mr. SCOTT of Virginia. Mr. Speaker, pursuant to section 3 of House Resolution 486, I rise to offer amendments en bloc No. 2.

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Mr. SCOTT of Virginia. Manning), a distinguished member on the Committee of Education and Labor.

Mr. Speaker, very briefly, the first amendment that requires the GAO study only seeks to say whether the cases went up or down. The cases can go up because there is more discrimination. It has nothing to do with whether or not it was because of the change in standard. It could be in spite of the standard. And all it does is delay the implementation of the bill.

The other sets a different standard for retaliation, where you can win your case that you didn't get promoted but lose your case on the fact that you got hired just because there is a differential standard. Well, that doesn't make much sense.

It seems to me that we should go back to the way it was before the Gross decision, have one standard in all of the discrimination cases, and have people be able to prove their case the way they have always been able to prove their case.

Mr. Speaker, I ask my colleagues to vote ``no'' on this amendments en bloc, and I yield back the balance of my time.

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Mr. SCOTT of Virginia. Mr. Speaker, I thank the gentleman from Illinois for his hard work on this amendment and on the bill itself. He has been a leader on helping older workers avoid discrimination.

This amendment offered by the gentleman from Illinois and cosponsored by the gentlewoman from Maine (Ms. Pingree), would provide further information on how many women are adversely affected by age discrimination as a motivating factor in the workplace, as well as provide best practices to combat gender and age discrimination. These practices will help support older women who may face multiple kinds of discrimination.

Mr. Speaker, I thank my colleague for offering the amendment, and I also want to thank him for his distinguished leadership on the underlying legislation.

Mr. RODNEY DAVIS of Illinois. Mr. Speaker, I reclaim my time.

Mr. Speaker, this bill provides an important fix caused by the outcome of the 2019 Gross v. FBL Financial Services, Inc., Supreme Court decision in order to ensure that older workers can seek the justice they deserve when they face age discrimination in the workplace, on a level playing field.

The amendment that I introduced with Representative Chellie Pingree highlights the discrimination that women face in the workplace based not only on gender, but on age as well.

According to a 2018 report from the EEOC, women, especially older women, but also those at middle age, were subjected to more age discrimination than older men. Research suggests that ageism at work begins at age 40 for women, 5 years earlier than men. This is unacceptable and we must find ways to correct this problem.

This amendment would require the DOL and EEOC to conduct a comprehensive study on these age discrimination cases. DOL and EEOC would then be required to make recommendations for best practices to combat age discrimination of women in the workplace.

Challenges that women face are not partisan issues and, together, we should make every effort to address them. Employers should make, and have the right tools to make, conscious efforts to ensure that women have equal rights and opportunities in the workplace, regardless of their age.

Mr. Speaker, I thank Representative Pingree for co-leading this amendment, and also Chairman Scott for his kind words and support of its inclusion. I encourage my colleagues to support my amendment and to vote ``yes'' on this amendment and the underlying bill to protect older adults from workplace discrimination.

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