Protecting Older Workers Against Discrimination Act of 2021

Mr. Speaker, I rise in support of my bill, H.R. 3992, the Protecting Older Job Applicants Act of 2021.

I want to start by thanking my Republican co-lead on this bill, the dean of the House, Congressman Don Young of Alaska. I also want to thank Chairman Bobby Scott, my Democratic co-lead, for his tireless leadership to protect all workers, but especially older workers and older jobseekers.

Mr. Speaker, this bill will fix a loophole in current law that fails to protect older job applicants during the hiring process.

Despite what many people assume, older job applicants are not protected under the current Age Discrimination in Employment Act protections, commonly called ADEA.

Mr. Speaker, my bill seeks to fix this. This bill would allow older job applicants to bring claims for disparate impact discrimination hiring against employers.

While that may sound like legal technicalities and legal mumbo-jumbo to some people watching back home, Mr. Speaker, disparate impact claims are very, very important. They are important because some hiring practices might seem age-neutral on their face, but they actually impact job applicants that are older disproportionately.

The bill would clarify the Age Discrimination in Employment Act to give job applicants the right to bring these claims forward. Three- fourths of workers age 45 and older blame age discrimination for their lack of confidence in finding a new job.

But it is not just simple statistics. It is about real people and real stories.

It is like one of my neighbors, an engineer who can't find meaningful work after losing his job. He is about 60, but he is always told he is too experienced and overqualified. But he says it is all about his age.

It is about Rebecca in California, who is age 75, forced to provide her birth

date on a web-based job application where the year of her birth isn't even an option on a drop-down menu for the birth year. So she can't even apply, because the options don't include the year of her birth.

It is like Carolyn in Tennessee, age 52. She was let go from her job in March of last year. She has filed 65 job applications but gotten zero interviews. She has a BS in business finance and an MA in educational administration. She says people half her age are getting those jobs instead. She was told she needed more recent, relevant experience.

Mr. Speaker, I include in the Record an article sharing Carolyn's story entitled ``Older job seekers find experience, education may not be enough in pandemic.''

[From NewsChannel5 Nashville, Jan. 12, 2021]

Older Job Seekers Find Experience, Education May Not Be Enough in

Pandemic

(By Levi Ismail)

Nashville, Tenn. (WTVF).--Older workers are having trouble

making it back into the workforce and studies show it's part

of a trend we haven't seen in nearly 50 years.

In the first six months of the pandemic, older workers (55

and older) were 17 percent more likely to become unemployed

than their slightly younger peers.

Carolyn McKeown is 52 years old, but says she hasn't had

much luck finding a job in the nearly one year it's been

since she was let go back in March 2020. She first reached

out to us in September and since then, she's filed 65

applications with zero interviews. It's just finding the

right time and the right place,'' McKeown said.

McKeown has a Bachelor's degree in business and finance, as

well as a Master's degree in educational administration. For

decades she's worked in HR, insurance, and mortgage lending,

which she thought could be a valuable experience to any

prospective employer.

When jobs continued to turn her down, she began surveying

anyone who made the time to listen. McKeown asked how these

people half her age were getting jobs and many of them

explained that it was simply an option right out of school.

``I feel as though we're being scrutinized more heavily and

told that we need recent relevant experience, as though we've

never worked before,'' McKeown said:

The US Census Bureau found that for the first time in

nearly 50 years, jobseekers (55 and older) are facing higher

rates of unemployment than those a few years younger. They

also found that older workers stayed unemployed longer.

Tennessee Dept. of Labor & Workforce Development explains how

it works.

``This program right here can help a senior make themselves

more marketable or maybe upgrade an existing skill or teach

them an entirely new skill,'' Cannon said.

Cannon explains that these may not all be full-time jobs,

but they are jobs capable of helping someone earn an income

at a time where the money is tight.

McKeown is at the point where she's barely managing to pay

her bills. She's tapped out her savings and can no longer

afford health insurance. Not unlike the many other older

workers who now can't imagine the idea of voluntary

retirement.

That said, she's not looking for anything part-time or

without benefits. She acknowledges that some of her

qualifiers may keep her from getting certain jobs, but

McKeown says she knows her worth. Under a much different

time, her credentials could have landed her a high-paying job

with benefits. She's not expecting the same pay as before,

but McKeown says she should be afforded similar opportunities

she knows are out there.

For McKeown, she knows some employers think it's too

expensive to train an older worker in this more virtual

workforce. She says she's learning every day how to keep up,

so this stigma that older workers are somehow less capable is

the only thing outdated.

``How do they determine what the job applicant is lacking.

A job gap doesn't mean you lack the skills. It just means

you're lacking time,'' McKeown said.

What is the rebound?

As Middle Tennessee works to rebound from the impact of the

Coronavirus, we want to help. Whether it's getting back to

work, making ends meet during this uncertain time, or

managing the pressure, we're committed to finding solution.

In addition, we want to tell your stories of hope,

inspiration, and creativity as Middle Tennessee starts to

rebound.

Mr. Speaker, another story. Diana, age 53, was forced to take early retirement after her company downsized. She wasn't ready to quit working, but she hasn't found a job.

The loaded question in the application, she says, is always: When did you graduate from high school? This question tells her age. Because of that, she has gotten no interviews.

These folks are not alone. I want to read some comments from other jobseekers in their 50s about their experience job hunting:

``No jobs for older people.''

``Jobs for seniors 60 plus who still want to work are not so plentiful in rural communities.''

``Age discrimination is alive and well in the job market.''

``No one hires old people.''

``I am 63 with no job . . . still trying to find work.''

Mr. Speaker, I include in the Record an article entitled: ``I'm not dead: Inside the struggle of finding work after 50 in North Texas.''

[From the Dallas Business Journal, Feb. 11, 2019]

`I'm Not Dead': Inside the Struggle of Finding Work After 50 in North

Texas

(By Jason Wheeler)

The good news first: Diana Hinton's dog Maxwell has been on

a lot of walks lately. The bad news: She's had time for that.

Hinton's employer of almost three decades downsized, and

she had to take early retirement long before she was ready.

A recent data analysis by Pro Publica and the Urban

Institute found that early retirements are often not as

voluntary as they sound. The analysis also found that

shockingly high percentages of workers over 50 are forced out

of their jobs before they can reach retirement age.

On one of those frequent walks with Maxwell, Diana Hinton

told us she and her dog thought their outings would be for a

limited time only.

``I think the first few weeks he was looking at me like

aren't you going somewhere?'' Hinton said.

Those few weeks became a few years.

When we talked to her in September 2018, Diana was busy

going about her usual routine of filling out applications

online and sending out resumes. Often, she found herself

paining over that dreaded question on the application form.

``Here we go . . . `when did you graduate high school?'

Which I hate because I know they start adding in their

heads--she's gotta be in her 50s,'' Hinton said.

She was 53 at the time. When we talked to her, we had just

begun a series of reports on the middle class called ``Stuck

in the Middle.''

On social media, we heard from so many people in the 50-

plus age group talking about the difficulty of finding

employment. A sampling of the messages:

``. . . No jobs for older people.''

``Jobs for seniors 60+ who still want to work are not so

plentiful in the rural communities.''

``Age discrimination is alive and well in the job market.''

``No one hires old people.''

``I am 63 with no job . . . still trying to find work . .

.''

Many respondents also bolstered another of the findings

made by Pro Publica and the Urban Institute--that being

derailed so close to retirement age is devastating to

retirement plans. A sampling of the messages about how long

people will have to work:

``I'm still working at 78.''

``. . . gonna die working.''

``Looks like I'm working full time until dead, and leaving

nothing behind.''

``Foreverrrrrrrrrrrrr . . .''

``Till the end.''

``We don't even talk about retirement age anymore,'' said

Claire Turner, deputy director of the Elder Financial Safety

Center at The Senior Source. ``People are wanting to work as

long as they can. So they get the question in the interview

where do you see yourself in five years? I see myself

working.''

The Senior Source specifically helps people 50 and over to

search for jobs. They offer free resume workshops, conduct

mock job interviews, and teach software and social media

classes, among other things.

Each year, the center helps as many as 2,000 older workers,

and Turner said, unequivocally, ``There is age

discrimination. It is true. The average duration of

unemployment nationwide is 22.7 weeks, but for older adults,

it is 32 weeks.''

``I think seniors bring a lot to the table,'' said 64-year-

old Michael Dade, who took classes at The Senior Source after

he had to take early retirement from an accounting job at an

oil company that downsized. ``I felt like I had to be twice

as good as some young person.''

Dade cautioned others in his age group who still have jobs

to stay hungry.

``I have seen people who basically put it in cruise control

at (age) 55,'' Dade said. ``No one has paid enough dues to

have a guaranteed job now. Any day you go to work you have to

think it could be your last day and plan that way.''

Dade now drives the van and coordinates volunteers at The

Senior Source. He advised younger people to pay attention to

the plight of older workers who lose, or are forced out of,

their jobs. He warned those younger workers that they, too,

will be older workers someday. He also said the older worker

being forced out of a job could be their parents.

Dade suggested that younger people reduce their debt load,

save as much as they can, maximize contributions to their

retirement plans, and learn as many marketable skills as

possible. That's something he took advantage of in his former

job.

``I tried to make myself learn as much as I could,'' Dade

said.

Hinton also told us she took every training her former

company offered, and she advises others to do the same,

because it beats paying for those classes on your own

someday.

Pro Tip: Claire Turner said it's not enough to simply

acquire knowledge and skills--you have to be able to

communicate those assets to potential employers, while still

sounding humble. For instance, if you have always been a

dependable worker, you would say something like, ``Past

employers say my attendance is perfect . . . you want to say

people `say' I am good at this. That's always a great way to

deliver that message,'' Turner said.

A bright spot: Turner said she is seeing evidence that the

tight job market created by a low unemployment rate is

helping older workers who are unemployed.

``Employers are very open to older workers that they may

not have been before,'' Turner said.

We checked back with Hinton four months after our first

visit. She has seen no sign of that new openness to older

workers. Hinton's situation had become more desperate.

A few temporary gigs had come and gone, but she had yet to

land a permanent job, despite decades of customer service

experience, much of it in management.

The lack of employment was impacting most aspects of her

life:

Housing: ``Of course, the house, we don't want to lose it.

It may get to that point--not maybe soon--but maybe in the

next six (months) to a year.''

Health: ``I have medication I can't afford so I don't take

it.''

Retirement funds (which have depleted some): ``I don't even

want to check my Fidelity account.''

We asked her how many jobs she has applied for since she

lost permanent employment two years ago.

``Oh my God!'' she said. ``I would say . . . over 250. I

got out of that . . . maybe 10 interviews.''

That lines up with a 2017 study done by the Federal Reserve

Bank of San Francisco, in which researchers sent out tens of

thousands of fictitious applications from different aged

artificial applicants who had similar backgrounds. They found

that younger workers were significantly more likely to get a

call back from prospective employers than older workers were.

``I'm articulate,'' she said. ``I have an energy. I'm not

dead. Whatever the curse is . . . whatever it is it needs to

go away.''

Worried that her expansive resume might make her look

overqualified (and over age), she shortened it from four

pages to two.

Pro Tip: Claire Turner at The Senior Source said, ``When I

was looking, I had 25 resumes. Every single word was true,

but I had three different careers. We see all the time people

walk in with a resume that is very impressive, with all these

years of experience. They present that for a customer service

position and there is no correlation. The employer doesn't

even understand why you applied. So it is a matter of

tailoring your resume. It is definitely honest and factual;

it is just showing things that are relevant. The industry

standard is that people only show the last ten years.''

As we wrapped up our second visit with Hinton, she was

still filling out applications. But she had also just

received another rejection email.

``It says, `Dear Diana, thanks for your interest in our

customer service position. Unfortunately you have not been

selected to continue in our process for this position.' ''

Her dog, Maxwell, rests at her feet.

``Maybe he is my calm,'' Hinton said. ``He's calming me.''

Hinton wonders if she will ever leave him again to go back

to work.

``I am pretty strong, but I am almost sliding down, and I

have to keep telling myself, `Come on, Diana, you can do

this.' I didn't think it was going to be this hard.''

Mr. Speaker, this bill will help people trying to recover from this pandemic, including people who lost their job in the middle of their career who now fear they will never work again because of discriminatory hiring practices.

This is not about trial lawyers. It is not anything about what some of my colleagues across the aisle have talked about. It is just a simple clarification bill. It clarifies that job protections for older Americans begin at the time of the application.

I want to thank the AARP, the National Council on Aging, the Leadership Council of Aging Organizations, the American Federation of Government Employees, and the White House for supporting efforts and this bill.

Mr. Speaker, I include in the Record the letters of endorsement for this bill from the AARP and the National Council on Aging that I just mentioned.

Mr. Speaker, together we can and will protect older workers during the hiring phase of employment with this bill. Everyone deserves a shot at the American Dream, regardless of their age. This is common sense. I urge my colleagues to vote ``yes'' on this bipartisan bill, protecting our older workers.

Mr. Speaker, I rise in support of the Pappas and Newman amendment. This amendment from my colleagues just enhances this bill.

As a former administrative law judge for the Equal Employment Opportunity Commission in the Houston region, I can tell you personally that the type of information that would be gathered by the EEOC on the number of job applicants impacted by age discrimination on the job and all the issues that they have related to their applications would be very helpful.

It would not only be helpful to the administrative law judges at the EEOC; it would be helpful for judges that would finally hear the cases in court if they go to court. It would be helpful for research. It would be helpful for advocacy groups. This information would be vital, again, to help us in Congress to seek better ways to improve and work best on prevention and combating and addressing age discrimination in the hiring process.

Mr. Speaker, there is some discussion on the other side of the aisle that this is a remedy for a problem that doesn't exist. Let me tell you, if you talk to advocacy groups, discrimination is alive and well.

We need this legislation. We need this amendment. I urge adoption.

Mr. Speaker, I rise in opposition to the amendment.

Mr. Speaker, before I begin, let me say again for the third time that, in fact, the committee did have a hearing on this subject. On March 18, 2021, the Subcommittees on Civil Rights and Human Services and Workforce Protections held a hearing titled ``Fighting for Fairness: Examining Legislation to Confront Workplace Discrimination.''

At that hearing, Laurie McCann, a senior attorney at AARP Foundation, testified about the erosion of protections for older workers in judicial decisions under the ADA, including specific mention in her testimony of the Seventh Circuit's Kleber decision and its harmful impact on older applicants.

Mr. Speaker, this amendment prevents the legislation from going into effect unless the GAO finds that there have been negative impacts. This is simply a delay tactic with no end date in sight.

The reason we are here today is precisely because we do have a problem due to the circuit court decisions which cut off access to the courts for job applicants seeking relief under the ADEA.

The Supreme Court has denied cert to review this matter.

We have heard from AARP, one of the Nation's preeminent authorities on age discrimination, which has advised Congress that these court decisions in the 7th and 11th Circuits are not only at odds with the intent of the ADEA, but that the courthouse doors have been unfairly slammed shut to deserving individuals seeking relief.

Testimony before the Subcommittee on Civil Rights and Human Services earlier this year noted that barring older applicants from seeking relief for disparate impact discrimination is a problem, and that without clarifying the ADEA, similar plaintiffs will not be able to seek justice under the law.

For example, in the 7th Circuit case, Kleber v. CareFusion Corporation, Mr. Kleber, a 58-year-old attorney with considerable corporate law experience applied for an in-house counsel position.

The position required applicants to have no more than 7 years of relevant legal experience, which effectively means that it freezes out job applicants that were over age 40. Again, on its face it may look neutral, but if you say, ``no one with more than 7 years' experience,'' that cuts out a lot of people.

Despite his significant prior experience in corporate law, Kleber was denied the opportunity to even interview for the job, since the experience limit was effectively a proxy for age.

The 7th Circuit held that because Mr. Kleber was an outside job applicant rather than an employee seeking a new position from within the company, he was barred from bringing a disparate impact claim. This turns the entire purpose of the ADEA on its head, which is to remedy age discrimination for both jobseekers and employees. Furthermore, we know generalized age discrimination is not isolated.

In 2017, researchers for the Federal Reserve Bank of San Francisco sent 40,000 resumes of applicants of all ages to 13,000 job openings across 12 cities. They found that older workers received substantially fewer callbacks from employers for job interviews and showed particular harm for older women applicants.

We do not need another study to tell us what we already know. Older job applicants are subjected to age discrimination when seeking employment and that an effective remedy is needed when that conduct lacks justification.

Madam Speaker, finally, this amendment would indefinitely delay implementation of this bill because there is no deadline for GAO to conduct a study and report back to Congress.

Would we even see the results of this study and when? Again, this is simply a delay tactic. We already have all the evidence we need to know that it is timely for Congress to act and to pass this legislation to protect our older job applicants.

Madam Speaker, I urge my colleagues to vote ``no'' on this amendment and ``yes'' on the underlying bill.

Madam Speaker, I yield back the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise today in opposition to H.R. 2062, the Protecting Older Workers Against Discrimination Act.

Every worker--every worker--including older Americans should have the law on their side to protect them from workplace discrimination. The good news is that existing Federal statutes already prohibit workplace discrimination.

Despite what Democrats might have you believe, Mr. Speaker, there are a number of laws protecting Americans of all ages against discrimination in the workplace. The Civil Rights Act of 1964, CRA; the Age Discrimination in Employment Act of 1967, ADEA; the Rehabilitation Act of 1973, Rehab Act; and the Americans with Disabilities Act of 1990, ADA, make employment discrimination based on an individual's race, color, religion, sex, national origin, age, or disability unlawful.

My Republican colleagues and I appreciate the stated purpose behind H.R. 2062. Age discrimination is wrong, but the bill before us today is fundamentally flawed and a classic example of a solution in search of a problem.

Age discrimination in the workplace is already illegal. Mr. Speaker, I am going to say that over and over and over today. Age discrimination in the workplace is already illegal.

There is no evidence indicating this bill is necessary. The committee's cursory examination of the bill earlier this year failed to uncover any suggestion that workers have been discouraged from filing discrimination or retaliation charges with the Equal Employment Opportunity Commission, EEOC, the primary agency that enforces Federal laws that make it illegal to discriminate.

Over the last couple of decades, rates of age discrimination charges, a signed statement asserting employment discrimination, filed with the EEOC have remained steady. Additionally, the available data from the Bureau of Labor Statistics show unemployment trends for older workers are heading in a positive direction.

In 2018, older Americans earned 7 percent more than the median for all workers, a large increase from 20 years ago. For workers age 65 and older, employment tripled from 1988 to 2018, while employment among younger workers grew by about one-third. Likewise, over the past 20 years, the number of older workers on full-time work schedules grew 2\1/2\ times faster than the number working part-time.

The legislation we are debating today is another sweeping one-size- fits-all scheme. This ill-advised bill rewards Democrats' favored political friends, disregards real-world workplace experience, and rejects decades of Supreme Court precedent.

Our Nation's uncertain economic times demand pro-growth and pro- worker policies, but House Democrats would rather consider misguided proposals such as H.R. 2062. The Protecting Older Workers Against Discrimination Act stifles job creation and harms small businesses and aging workers at a time when our languishing post-pandemic economy most needs their contributions.

Mr. Speaker, this legislation enriches trial lawyers, not plaintiffs. H.R. 2062 overturns Supreme Court precedent by allowing the plaintiffs to argue that age was only a motivating, not decisive, factor that led to an employer's unfavorable employment action. It allows these kinds of mixed-motive claims across four completely different nondiscrimination laws.

H.R. 2062 also allows mixed-motive claims where the plaintiff alleges the employer has taken action against a plaintiff because of a prior complaint of discrimination. Allowing mixed-motive claims in cases alleging retaliation puts employers in the impossible position of trying to prove that a legitimate employment decision was not in response to a prior complaint.

The only party that will be paid in nearly all mixed-motive cases is the plaintiff's attorneys. We know this will happen because, under the legislation, employers will be able to demonstrate that they would have taken the same action in the absence of the impermissible motivating factors.

Simply put, Mr. Speaker, older Americans, the very people this legislation is purported to help, will in the vast majority of cases receive no monetary damages or other redress under H.R. 2062.

H.R. 2062 also increases frivolous legal claims against business owners. Job creators will spend valuable time and resources battling these undeserving claims, as the Supreme Court pointed out in the 2013 Nassar case. These same resources could be better used to prevent workplace harassment and discrimination.

When H.R. 2062 was considered by the Education and Labor Committee, Republicans offered amendments to address fundamental flaws in H.R. 2062.

We offered an amendment to strike the ill-advised and unworkable provisions allowing for mixed-motive retaliation claims.

We proposed collecting data and evidence to understand how age discrimination and retaliation charges and lawsuits have changed because of Supreme Court rulings.

We attempted to make sure the public understands that even successful plaintiffs under the bill will likely not receive any monetary damages while their lawyers will be paid.

We proposed a noncontroversial clarification to maintain protections for workers with disabilities.

And we tried to clarify the evidentiary standard for proving a claim under the bill.

Unfortunately, our commonsense amendments were defeated by Democrats along party lines.

Mr. Speaker, all workers should be protected from workplace discrimination, and they already are under current law.

H.R. 2062 is a distraction from the real problems plaguing our Nation, like the crisis at the border, over 9 million jobs begging for qualified workers, unaffordable college costs, and runaway economic inflation.

I encourage my colleagues to vote ``no'' on H.R. 2062, and I reserve the balance of my time.

Mr. Speaker, I yield 2 minutes to the gentlewoman from Illinois (Mrs. Miller).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, our colleagues on the other side say that workers feel they have been discriminated against. Well, we all have feelings and perceptions that are not accurate. I think my colleague from Illinois pointed out that the data simply does not support the feelings of many people, and I think we understand that in day-to-day life.

My colleagues on the other side of the aisle also contend that the 2009 Supreme Court decision in Gross v. FBL Financial Services has weakened age discrimination protections. They also contend this decision has deterred workers from seeking relief from age bias. But let's look at the data; let's not go on feelings.

In the 11 years preceding the 2009 Supreme Court decision in Gross, the Equal Employment Opportunity Commission, EEOC, the primary agency that enforces Federal laws that make it illegal to discriminate, received an average of 18,548 charges of discrimination per year related to age discrimination. An EEOC charge is a signed statement asserting employment discrimination. Now, in the 11 years following Gross, the EEOC received an average of 19,783 charges per year relating to age discrimination, a slight increase from the previous 11 years.

So, it is obvious from EEOC data that there is clearly no evidence workers have been discouraged from filing age discrimination charges with the agency since the 2009 Supreme Court decision. And we had a Democrat administration during that time and 1 year of a Republican administration.

We also find that age discrimination charges as a percentage of all charges

filed with EEOC are approximately the same for the 11 years before and after the Gross decision, 22.4 percent and 22.5 percent, respectively. Again, this does not indicate workers are somehow discouraged from filing age discrimination charges.

Congress should make fact-based decisions, Mr. Speaker, and in this case, the facts do not support feelings or the assertions made by the proponents of H.R. 2062.

I reserve the balance of my time.

Mr. Speaker, I yield 3 minutes to the gentleman from Georgia (Mr. Allen).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, Democrats claim H.R. 2062 merely conforms age discrimination and retaliation claims with current law regarding mixed- motive discrimination claims under title VII of the Civil Rights Act.

However, Congress specifically drafted the Age Discrimination in Employment Act, ADEA, to be different from title VII, because age is uniquely different from the characteristics on which title VII prohibits discrimination, namely, race, color, religion, sex, or national origin.

The ADEA states that it is lawful for an employer to take an employment action otherwise prohibited by the statute if the differential treatment is ``based on reasonable factors other than age.''

Notably, this provision is not found in title VII.

The Supreme Court has also explained in several cases why age discrimination differs from other forms of discrimination.

For example, the Supreme Court, in Meacham v. Knolls Atomic Power Laboratory, in 2008, wrote that, ``Congress took account of the distinctive nature of age discrimination and the need to preserve a fair degree of leeway for employment decisions with effects that correlate with age.''

In addition, the Supreme Court, in the 2013 Nassar case, explained why a mixed-motive standard is ill-suited for retaliation claims.

The Supreme Court observed that with regard to mixed-motive standards in retaliation cases, ``lessening the causation standard could contribute to the filing of frivolous claims, which would siphon resources from efforts by employers, administrative agencies, and courts to combat workplace harassment.''

Allowing mixed-motive claims in age and retaliation cases, which H.R. 2062 does, will lead to more frivolous legislation.

We should heed congressional and Supreme Court precedents and vote down H.R. 2062.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I am going to repeat: Republicans hate discrimination in any form. We particularly do not want any kind of discrimination in the workplace, and we do not want discrimination against older workers.

We know that older workers were excelling in the pre-pandemic economy. According to the Bureau of Labor Statistics, BLS, employment for workers age 65 and older tripled from 1988 to 2018, while employment for younger workers grew by only a third.

The number of employed people age 75 and older nearly quadrupled from 461,000 in 1988 to 1.8 million in 2018.

As the country continues to recover from the COVID-19 pandemic, BLS recently reported that job openings reached a record high of 9.3 million in April 2021, while hiring lags far behind.

Employers are desperate to fill good-paying jobs, but qualified workers are hard to find because of Democrat-enacted policies.

My colleagues on the other side of the aisle continue to paint a bleak picture of job opportunities for older Americans, when, in fact, employment trends for older workers have been positive in recent decades and will continue to improve as the country fully reopens following the pandemic.

According to BLS, in 1998, the median weekly earnings of older, full- time employees was 77 percent of the median for workers 16 and up. In 2018, older workers earned 7 percent more than the median for all workers.

The labor force participation rate for older Americans has been rising steadily since the late 1990s. Participation rates for younger age groups either declined or flattened over this period.

Over the past 20 years, the number of older workers on full-time work schedules grew 2\1/2\ times faster than the number working part time.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume to close.

Mr. Speaker, older Americans make vital contributions in the workplace. Committee Republicans are committed to eliminating discrimination in the workplace, rebuilding our sluggish economy, and producing a competitive workforce.

Unfortunately, H.R. 2062 is a destructive and misleading bill that does not protect older workers, and it rewards trial lawyers at the expense of sound public policy. It is Democrats promising deliverance, but delivering disappointment.

This sweeping one-size-fits-all ruse is not the answer, unless Congress decides it wants to benefit trial lawyers at the expense of older American workers.

Mr. Speaker, I strongly encourage my colleagues to vote ``no'' on H.R. 2062, and I yield back the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise in opposition to the Democrat amendments.

As I understand it, Representative Brown's amendment requires the EEOC chair to submit five annual reports to Congress on the number of age discrimination claims brought to the EEOC under this act. If H.R. 2062 somehow gets signed into law, these reports will be a day late and many dollars short because the law will have already harmfully reduced the burden of proof in these cases and nullified decades of Supreme Court precedent.

Before discussing my concerns with this amendment, I admit I am puzzled that it requires a study on how this legislation will affect future age discrimination claims when evidence is sorely lacking that there is a need for H.R. 2062 in the first place.

A witness who testified on H.R. 2062 before the Committee on Education and Labor acknowledged that EEOC data has not shown workers are discouraged from filing age discrimination charges with the EEOC following the Supreme Court's 2009 decision in Gross v. FBL Financial Services.

With respect to this amendment, I have concerns about the feasibility and viability of the mandated reports. The amendment requires the EEOC to report each year for 5 years on charges filed with the agency under

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, as I understand it, Representative Williams' amendment requires EEOC to submit a contrived and convoluted report to Congress analyzing disparities that individuals face in pursuing relief under the mixed-motive evidentiary standard. The report must examine age discrimination combined with discrimination based on race, color, religion, sex, national origin, or disability.

This amendment does nothing to address the fatal flaws in the bill that would allow mixed-motive claims in age retaliation and disability cases, which will increase frivolous litigation while not providing any monetary damages for nearly all plaintiffs.

As a practical matter, I question whether EEOC will be able to complete the tortuous analysis proposed in the amendment.

As I noted previously, workers filing discrimination or retaliation charges with EEOC do not indicate whether they involve a mixed-motive claim, and EEOC does not collect this data. A mixed-motive claim is something a plaintiff's attorney adds to a lawsuit.

As such, I am skeptical whether EEOC will be able to find any data relating to mixed-motive claims.

More importantly, the amendment, which was submitted and then amended after the Rules Committee's stated deadline, will not fix the bill's many shortcomings, such as allowing mixed-motive claims in age discrimination and retaliation cases, even though congressional and Supreme Court precedents strongly advise against these changes.

Mr. Speaker, I urge a ``no'' vote on this amendments en bloc, and I reserve the balance of my time.

Mr. Speaker, the only parties who will win in nearly all cases under H.R. 2062 with these amendments, if they are passed, are trial lawyers. Unfortunately, Democrats have chosen to further their pro-trial lawyer agenda by putting forward H.R. 2062, legislation that masquerades as protection for workers.

H.R. 2062 is yet another one-size-fits-all approach that fails to address the purported problem, neglects real-world experiences, and disregards decades of Supreme Court precedent.

These poorly drafted fig leaf amendments in the en bloc do nothing to address the fundamental flaws in H.R. 2062 and place an unworkable mandate on EEOC. I urge my colleagues to oppose them.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I yield 5 minutes to the gentleman from Georgia (Mr. Allen).

Mr. Speaker, may I inquire how much time I have remaining?

Mr. Speaker, I yield 1 minute to the gentleman from Georgia (Mr. Allen).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I want to point out to my colleagues on the other side of the aisle that there was a higher percentage of Republicans who voted for the 1964 Civil Rights Act than Democrats, a higher percentage of Republicans voted for the ADEA, the Age Discrimination in Employment Act, and under

the ADA. It was President Bush who signed that bill.

So Republicans have a pretty good record on promoting and protecting the civil rights of Americans in this country, all Americans.

Mr. Speaker, for an employer to retaliate against an employee because that employee has previously made a discrimination complaint is wrong and it is already illegal.

H.R. 2062 reduces the standard of proof in retaliation cases by allowing mixed-motive claims, overturning the Supreme Court's 2013 decision in the Nassar case.

Allowing mixed-motive claims in retaliation cases is unworkable and contrary to the text, structure, and history of title VII, the Age Discrimination in Employment Act and the Americans with Disabilities Act.

Justice Anthony Kennedy wrote in the majority opinion in Nassar that in retaliation cases, ``lessening the causation standard could contribute to the filing of frivolous claims, which would siphon resources from efforts by employers, administrative agencies, and courts to combat workplace harassment.''

Justice Kennedy also wrote in his opinion that the concern about diverting resources was especially true because retaliation charges filed with the EEOC had nearly doubled in the past 15 years and had become the second most frequently filed category of complaint.

This concern is even more relevant today because retaliation is now the most frequently filed EEOC charge. All retaliation claims are inherently about differing explanations.

In these situations, the plaintiff has already made a discrimination complaint, and under the mixed-motive standard required under H.R. 2062, it will be a mere formality to plead that any subsequent negative action by the employer related to the employee was retaliatory.

Under H.R. 2062, a plaintiff claiming retaliation will always survive the summary judgment stage of the litigation and the case will either settle or go to trial. This will increase the number of frivolous claims against unsuspecting business owners and impose related financial costs noted in the Supreme Court decision, thus limiting important resources that could otherwise be used to combat discrimination.

Furthermore, there is no evidence to support the claim that employees have been harmed by the Nassar decision.

And, by the way, when employees win lawsuits claiming retaliation under the current standard, they can receive monetary damages, back pay, and reinstatement, as well as attorneys' fees and costs. Under H.R. 2062, this won't happen in nearly all of the cases. Only the trial lawyers will be paid.

Mr. Speaker, my amendment strikes the harmful, overly broad, and unworkable provision in H.R. 2062, which allows mixed-motive claims in retaliation cases.

The amendment protects the current standard of proof as described in the Nassar case, and I urge Members to support it.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I urge my colleagues to vote ``yes'' on the amendments en bloc containing Representatives Allen's and Foxx's amendments, and I yield back the balance of my time.

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, I thank Mr. Morelle for yielding me the customary 30 minutes. I would parenthetically note that it took about 30 minutes to read the actual rule itself, so this is one of the longer rules that we have had under consideration.

There are six measures included in this rule. First is a bill that seeks to protect older Americans from discrimination in the workplace, protection

which already exists. There are two bills that failed to pass on suspension last week, and three Congressional Review Act resolutions.

The legislation considered in this rule will revoke commonsense regulations, expand the Federal Government, and create duplicative and unnecessary red tape for America's small businesses, employees, and consumers.

In 1967, Congress enacted the Age Discrimination in Employment Act to protect applicants and employees over 40 years old from discrimination on the basis of age in employment matters. This act is enforced by the Equal Employment Opportunity Commission.

In 2009, the Supreme Court held in the case of Gross v. FBL Financial Services that the standard of proof for a claim under the Age Discrimination in Employment Act requires that age stand alone as the cause of the adverse action rather than in conjunction with other evidentiary factors.

In 2013, the Supreme Court also ruled, in the University of Texas Southwestern Medical Center v. Naiel Nassar, that the plaintiff must prove that a retaliatory motive was the decisive cause of an adverse employment action.

H.R. 2062, the Protecting Older Workers Against Discrimination Act, would reverse the Supreme Court decisions by allowing mixed-motive claims in Age Discrimination Employment Act cases where age would only need to be a motivating factor for discrimination, even though other factors also motivated discrimination. In other words, the bill shifts the burden of proof to allow plaintiffs in age discrimination cases to demonstrate that any practice by an employer for which age was a motivating factor is covered. Eliminating the decisive factor approach disregards two Supreme Court cases and existing law.

Other provisions of H.R. 2062 prohibit a court from awarding damages or requiring any employment activity other than injunctive relief, making the only true beneficiaries of this legislation members of the plaintiffs' bar.

The Supreme Court stated in the Nassar case that ``lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employers, administrative agencies, and courts to combat workplace harassment.''

Republicans are committed to eliminating discrimination in the workplace; that includes for older Americans. Discrimination of any kind is already against the law through the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Rehabilitation Act, and the Civil Rights Act.

Today's rule also contains two bills that were brought up on suspension last week but were unable to pass with the required two- thirds vote: The Equal Access to Contraception for Veterans Act, and the LGBTQ Business Equal Credit Enforcement and Investment Act.

The final three measures included in the rule utilize the Congressional Review Act to overturn three Trump-era rules that attempted to provide commonsense regulations, reduce red tape, and to promote transparency. But in the zeal to repeal all things Trump, commonsense reduction of red tape, and promoting transparency may just be regarded as collateral damage, as everything associated with the former President must be undone in the eyes of House Democrats.

First, S.J. Res. 15 nullifies a rule submitted by the Office of the Comptroller of the Currency relating to National Banks and Federal Savings Associations as Lenders. This agency rule provides clarity by determining exactly when a national bank or a Federal savings association is, in fact, the ``true lender'' when partnering with a third party to provide loans.

In today's markets, it is common for financial technology companies to partner with banks to meet the needs of their consumers. Unfortunately, Court rulings have created uncertainty when partnerships occur in determining who is the ``true lender'' in these circumstances.

This Office of Comptroller of the Currency rule provides much-needed clarity for market participants and ensures consumers are, in fact, adequately protected. Federal law requires ``true lenders'' to comply with certain consumer protection laws, and clearly delineating the ``true lender'' will eliminate this uncertainty.

While the majority claims that this rule gives a green light to predatory relationships by allowing a ``rent-a-charter'' partnership, this could not be further from the truth. This rule provides greater transparency into such practices, allowing better protections for consumers. With more transparency comes more accountability; after all, sunlight is the best disinfectant.

The next resolution, S.J. Res. 13, uses the Congressional Review Act to nullify the Equal Employment Opportunity Commission's rule titled ``Update of Commission's Conciliation Procedures.'' Conciliation is a process by which two parties may resolve disputes informally and confidentially without ever having to go to court.

The Equal Employment Opportunity Commission rule is designed to bring its conciliation procedures in line with the Supreme Court's decision in Mach Mining, LLC v. EEOC, and would update these procedures for the first time since 1977.

By encouraging the Equal Employment Opportunity Commission claims to be resolved outside of court, this rule ensures that disputes can be resolved at less expense in a more timely basis and ensure accountability.

Passing S.J. Res. 13 would not promote a better workplace for employees; it would only encourage more litigation. And by utilizing the Congressional Review Act, this resolution would prevent the Equal Employment Opportunity Commission from ever updating its conciliation procedures without additional Congressional action. Simply put, this resolution would only make it more difficult to settle workplace disputes.

The final resolution in this rule is S.J. Res. 14, which would use the Congressional Review Act to nullify the Environmental Protection Agency's rule titled ``Oil and Natural Gas Sector: Emission standards for New, Reconstructed, and Modified Sources Review.'' Should this be signed into law, it would have significant ramifications for America's energy industry but, in fact, it would have little impact on America's public health or America's environment.

In 2020, the Environmental Protection Agency issued new regulations that right-sized New Source Performance Standards for the oil and gas industry. Despite the hyperbolic language in the media and from interest groups, the Environmental Protection Agency found that these methane rules had no real impact on emissions.

Let's say that again, because it is so important: Despite the language in the media and from interest groups, the EPA found that these methane rules had no real impact on emissions. Simultaneously, barriers to entry were lifted and companies of all sizes were able to compete. This allowed America to regain its position as a global energy leader.

Throughout the Trump administration, Americans benefited from historically clean air and cleaner water. Greenhouse gas emissions fell throughout the Trump Presidency. The lesson is quite simple: Promoting innovation and investment in the energy sector is a better way to promote economic and environmental success.

I am very concerned about this resolution's impact, especially in my home State of Texas. In recent months, Americans have seen sharp increases, sharp increases in the price of gasoline, sharp increases in the price of electricity. Energy costs are rising, and this resolution only threatens to send them higher. History shows us that the most substantive changes that can be made occur faster through innovation and not greater regulation.

Madam Speaker, I urge opposition to the rule, and I reserve the balance of my time.

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, if we defeat the previous question, I will offer an amendment to the rule to immediately consider H.R. 18, the No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2021.

Madam Speaker, I ask unanimous consent to insert the text of my amendment into the Record, along with extraneous material, immediately prior to the vote on the previous question.

Madam Speaker, this bill, introduced by Representative Chris Smith, prohibits the use of Federal funds for abortions or for health coverage that includes abortions.

The Hyde Amendment first passed Congress in 1976 to ban Federal funding for most abortions. President Biden's fiscal year 2022 budget request omits this ban for the first time in over 40 years, breaking longstanding precedent.

H.R. 18 would make the ban on Federal funding for abortions permanent, with exceptions for rape, incest, or if the mother's life is in danger.

Madam Speaker, I yield 3\1/2\ minutes to the gentleman from New Jersey (Mr. Smith), my good friend, and a true leader on this issue, to further explain the amendment.

Madam Speaker, I yield an additional 30 seconds to the gentleman.

Madam Speaker, I yield 3 minutes to the gentlewoman from Louisiana (Ms. Letlow), one of our newest Members, to speak again on defeating the previous question and considering the amendment.

Madam Speaker, I yield 3 minutes to the gentleman from Oklahoma (Mr. Cole), the ranking member of our Rules Committee.

Madam Speaker, I yield 3 minutes to the gentlewoman from Florida (Mrs. Cammack) on the motion against the previous question.

Madam Speaker, I yield 3 minutes to the gentlewoman from Minnesota (Mrs. Fischbach), a valuable member of the Rules Committee, to speak against the previous question.

Mr. Speaker, may I inquire as to how much time remains.

Mr. Speaker, I have no further speakers. I am prepared to close if that is in accordance with the wishes of the majority, so I yield myself the balance of my time.

Mr. Speaker, the bills in this lengthy rule will not achieve the benefits for the American people that are being claimed.

The Protecting Older Workers Against Discrimination Act lowers the threshold for age discrimination cases in the workplace. It is already illegal to discriminate against an employee because of age. Lowering the burden of proof to allow for mixed-motive claims will, in fact, only benefit the trial lawyers who actually bring the suits.

I do want to direct attention to a letter that most Members received from the United States Chamber of Commerce. It is a very good letter opposing S.J. Res. 15. This is the Congressional Review Act repeal of the Office of the Comptroller of the Currency's rule on national banks and Federal savings associations and lenders.

The reason I bring this up is because I know many of my friends on the other side of the aisle do claim that their support from the United States Chamber of Commerce is what makes them bipartisan and, hence, they should be reelected. But here we have the U.S. Chamber of Commerce sending each of us a letter talking about how damaging excluding that rule from the Office of the Comptroller of the Currency would be.

If I may just read a portion of this letter: ``Partnerships between banks and third parties have become a critical avenue for making credit available to both consumers and small businesses. . . . Fintech partnerships provided funding for many of America's smallest businesses which, according to McKinsey & Company, are disproportionately minority-owned.''

Mr. Speaker, by undoing this Trump-era rule, you are, in fact, going to be hurting some of the smallest businesses in the country, and I don't think that is what you would have intended.

Mr. Speaker, I include in the Record the letter from the U.S. Chamber of Commerce.

Chamber of Commerce of the

United States of America,

Washington, DC, June 18, 2021.

To the Members of the House of Representatives: The U.S.

Chamber of Commerce strongly supports the Office of the

Comptroller of the Currency's (OCC) rule on ``National Banks

and Federal Savings Associations as Lenders,'' also known as

the ``True Lender'' Rule, and strongly opposes S.J.Res. 15,

which would effectively overturn it.

The True Lender Rule provides important legal certainty for

national banks and federal savings associations regarding

loans they may issue in conjunction with third-parties.

Various judicial rulings have created legal uncertainty as to

who is the ``True Lender'' of a loan when a bank works with a

third party, thus calling into question the laws that apply

to these loans. This legal uncertainty discourages financial

institutions from partnering to provide credit to consumers

and small businesses.

Partnerships between banks and third parties have become a

critical avenue for making credit available to both consumers

and small businesses. In fact, FinTech partnerships

represented 15% of Paycheck Protection Program (PPP) loans to

small businesses last year. More importantly, the median

value of FinTech partnership-enabled PPP loans was $15,000.

That median value amount was the smallest of all lending

providers including Minority Development Institutions and

Nonprofits. That means FinTech partnerships provided funding

for many of America's smallest businesses which, according to

McKinsey & Company, are disproportionately minority-owned.

The OCC's rule establishes a clear test for determining the

``True Lender'' when a bank makes a loan, which clarifies

what legal frameworks are applicable to a loan. The rule

provides that a bank is the ``True Lender'' when it, as of

the date of origination, (1) is named as the lender in the

loan agreement or (2) funds the loan. This clarification is

critical for banks to partner with third parties and does not

undermine the myriad consumer protection laws enforced by

state and federal regulators.

The Chamber opposes S.J.Res. 15.

Sincerely.

Neil L. Bradley.

The Congressional Review Act is a legitimate tool to review executive actions, but it should not be used as a political tool to overturn a previous administration's actions simply because, Mr. Speaker, you don't like the previous occupant of the White House.

The CRAs in this rule are not based on sound policymaking. They are instead being used as an attempt to score political points by undoing Trump-era policies.

Mr. Speaker, I urge my fellow Members to reconsider these measures by simply focusing on the policy and not the policymaker.

Mr. Speaker, I have no other conclusion than to urge a ``no'' vote on the previous question, a ``no'' vote on the rule, and a ``no'' vote on the underlying measures.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Madam Speaker, by direction of the Committee on Rules, I call up House Resolution 486 and ask for its immediate consideration.

Madam Speaker, for the purpose of debate only, I yield the customary 30 minutes to the gentleman from Texas (Mr. Burgess), pending which I yield myself such time as I may consume. During consideration of this resolution, all time yielded is for the purpose of debate only.

General Leave

Madam Speaker, I ask unanimous consent that all Members be given 5 legislative days to revise and extend their remarks.

Madam Speaker, yesterday, the Rules Committee met and reported a rule, House Resolution 486, providing for consideration of H.R. 2062, the Protecting Older Workers Against Discrimination Act, under a structured rule. It provides 1 hour of debate equally divided and controlled by the chair and ranking minority member of the Committee on Education and Labor. It self-executes a manager's amendment from Chairman Scott and makes in order five amendments. The rule provides for en bloc authority to Chairman Scott or his designee and for one motion to recommit.

The rule also provides for consideration of H.R. 239, the Equal Access to Contraception for Veterans Act, under a closed rule. It provides 1 hour of debate equally divided and controlled by the chair and ranking minority member of the Committee on Veterans' Affairs and provides for one motion to recommit.

The rule also provides for consideration of H.R. 1443, the LGBTQ Business Equal Credit Enforcement and Investment Act, under a closed rule. It provides 1 hour of debate equally divided and controlled by the chair and ranking minority member of the Committee on Financial Services and provides for one motion to recommit.

The rule further provides for consideration of S.J. Res. 13, S.J. Res. 14, and S.J. Res. 15 under closed rules. It provides the Committees on Education and Labor, Energy and Commerce, and Financial Services each 1 hour of debate equally divided and controlled by their respective chairs and ranking minority members. It also provides each joint resolution one motion to recommit.

Finally, the rule deems passage of H. Res. 485 and provides the majority leader or his designee the ability to en bloc requested rollcall votes on suspension bills considered on June 22 or 23. This authority lasts through June 25.

Madam Speaker, the House is set to take up a number of critical bills and resolutions in this rule, but I would like to begin by saying a few words about H.R. 2062, the Protecting Older Workers Against Discrimination Act.

Instances of age discrimination at the workplace, including being passed up for a promotion or forced to retire early, are far too common across the country. A recent survey conducted by AARP found that nearly two out of three workers 45 years and older have seen or experienced age discrimination while on the job.

Importantly, we can expect this problem to be exacerbated in the coming years by the continued growth of the number of older workers in America, which is outpacing the growth of the overall labor force.

Discrimination against workers is not only unfair and morally wrong; it creates a major drag on the U.S. economy. According to a recent report, the economy missed out on an additional $850 billion in GDP in 2018 all because older workers aged 50 years and older were not given the opportunity to remain in or re-enter the labor force, switch jobs, or be promoted within their existing company. Clearly, age discrimination not only harms older workers; it harms the country as a whole.

Despite the enormity of this problem, the Supreme Court in 2009 made it much more difficult for age discrimination lawsuits to be successful. The Court's ruling in Gross v. FBL Financial Services, Inc. imposed a much higher burden of proof on plaintiffs alleging discrimination than previously required under the Age Discrimination in Employment Act passed by Congress in 1967.

This new standard from Gross requires plaintiffs to prove that age discrimination was the decisive, determinative but-for cause for any adverse employment action taken by the employer. The new sole-factor test replaced decades of precedent allowing that employees need only show that their age was a key factor, potentially among other factors, in the employer's adverse employment action.

The Protecting Older Workers Against Discrimination Act simply restores the pre-2009 evidentiary threshold, allowing individuals to show a discriminatory motive was merely a key factor for the adverse employment action, which is consistent with the standard for other workplace discrimination claims based on race, religion, sex, or national origin. This legislation ensures that older workers can pursue their livelihoods and hold employers accountable for age discrimination.

This rule also sets up consideration of three Congressional Review Act resolutions, all of which overturn harmful rulemaking implemented by the Trump administration.

S.J. Res. 13 overturns a rule finalized by the Equal Employment Opportunity Commission that provides employers with significant unfair advantages during the informal conciliation process, which allows parties to settle a charge of employer discrimination without going to court.

S.J. Res. 14 overturns efforts by the Trump EPA to gut a 2016 rule finalized by the Obama administration, which placed critically important limits on methane emissions from the oil and gas industry sector.

The last CRA resolution overturns the Office of the Comptroller of the Currency's true lender rule, which makes it easier for predatory lenders to launder loans through out-of-State banks that are not subject to State interest rate caps. Prior to this rule, the ``true lender'' in partnerships between banks and nonbank financial service companies was whichever entity had the primary economic interest in the loan. This harmful OCC action changed the test for the ``true lender'' to be simply whichever bank is listed on the loan origination documents, making it extraordinarily easy to create a rent-a-bank relationship between nationally chartered banks and nonbanks, allowing nonbanks to avoid State interest rate cap laws where they are actually doing business.

Especially during the midst of a once-in-a-lifetime pandemic and economic crisis, it is astounding that the Trump administration chose to focus on making it easier for predatory lenders to take advantage of Americans in need.

Finally, the House is also set to consider two additional bills. The Equal Access to Contraception for Veterans Act, H.R. 239, prohibits the Department of Veterans Affairs from requiring copayments for contraception coverage, bringing the policy in line with the Department of Defense and the private sector. The second bill, LGBTQ Business Equal Credit Enforcement and Investment Act, H.R. 1443, requires financial institutions to collect the sexual orientation and gender identity of the principal owners of small businesses, in addition to existing requirements that institutions collect data on sex, race, and ethnicity.

Both of these bills should be noncontroversial. Although Members of the House Republican Conference inexplicably blocked these bills from passing under suspension last week, I am pleased that we will not further delay passage of this critical legislation.

I urge all of my colleagues to support this rule, the Protecting Older Workers Against Discrimination Act, three CRAs to overturn harmful administration actions of the previous administration, and commonsense legislation to support women veterans and the LGBTQ business community.

Madam Speaker, I reserve the balance of my time.

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, I appreciate very much the comments from my friend and my colleague on the Committee on Rules, Mr. Burgess.

I do want to just note that when it comes to discrimination, the standard that we use for discrimination in the workplace that relates to race, religion, sex or national origin, is that

those factors are a key motivating factor in an employment decision that allows a claimant to come forward. That is what we wish to make the standard for age discrimination for older Americans.

What is being suggested by my friends on the other side of the aisle, however, are two different standards. In this case, when it comes to age discrimination, that it needs to be the sole factor. Prior to the 2009 Supreme Court case, indeed these were on par. The same standards would apply, the same criteria that it be a key motivating factor.

And frankly, when you think about it, if you are an older American and you are being denied a promotion, you are being denied a pay raise, and your employer suggests, well, you are a little older, and oh, by the way--and lists a couple other things. Well, because it is not the sole factor that they articulated, you don't have a cause for a claim. And we believe that there shouldn't be two different standards when it comes to discrimination. If it is a key motivating factor, which it was up until the 2009 opinion, that is how it should stand. And we should make certain that the law of the land when it relates to employment discrimination is the same, whether or not it is because of race, religion, sex, national origin, or age.

Madam Speaker, I yield 4 minutes to the distinguished gentlewoman from California (Ms. Brownley).

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, I want to just talk for a moment about H.R. 239, the Equal Access to Contraception for Veterans Act, which is actually before us today. Although some might want to make this debate about other issues, it is not.

Comprehensive healthcare for women, including access to contraception, is critically important. Access to contraception is an economic issue. It helps people stay in the workforce, earn wages, support stronger families. It has even been shown to lift women out of poverty.

Even relatively small copays have been found to be a barrier to accessing contraception. Costs associated with contraception result in women foregoing it completely, choosing less effective methods, or using it inconsistently.

Congress eliminated copays for contraception as part of the Affordable Care Act. And, as I said, for members of the Defense Department, for people in military service, there is no copay. It is time we did the same for those brave women who entered armed services and now are veterans.

We also want to make sure that we have equal access. Women represent the fastest growing subpopulation of veterans in the Nation, yet they lack access to the basic preventative healthcare needs like contraception.

So I want to make sure that we focus on what is before us, the bills before the House, what this conversation is about, and not to be distracted by things not before us and part of an extreme agenda.

This is a simple issue. It has passed by voice vote in the last Congress, and it is not clear to me what has changed. This is an important issue for women all across America, and we owe that to our veterans to make sure that they don't have additional barriers to contraception that no one else in American has.

Madam Speaker, I reserve the balance of my time.

Madam Speaker, I just note that we have in front of us two CRAs. We have two important bills: The LGBTQ Business Equal Credit Enforcement and Investment Act, as well as the Protecting Older Workers Against Discrimination Act of 2021.

And we are not talking about any of those. So I am prepared to talk about those, which are actually before the House, whenever my friends choose to.

Madam Speaker, I reserve the balance of my time.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, I do want to thank the gentleman, Dr. Burgess, a colleague and friend on the Rules Committee. I always appreciate hearing from him.

I think there are compelling issues here in this rule and the reasons that the House should adopt the rule.

The Protecting Older Workers Against Discrimination Act is a critical tool for so many Americans who are discriminated against in the workplace. It deserves our support. I am confident that it will pass the House, but we should remember how important it is, not only to those workers, but to the U.S. economy.

H.R. 239, the Equal Access to Contraception for Veterans Act, makes sure that women who have served and are veterans have the same rights that every other person in America has to not have to pay copays in order to receive contraception from their healthcare policy.

We also take up critical legislation regarding LGBTQ businesses, to make sure they get equal access to credit and equal access to investments. H.R. 1443 would require lenders to start to gather information on those businesses that are owned by LGBTQ individuals.

The CRAs, in my judgment, Mr. Speaker, are all well-informed, and they do focus on the policies, policies which, frankly, we don't agree with here in the House and which the Senate didn't agree with. The Senate has passed these on to us in bipartisan fashion, so these aren't simply questions of whether or not we approve of the previous President. This is about the policies themselves, and they have found themselves here to be voted on because our colleagues across the corridor in the Senate agree with us that these rules ought to be overturned using the CRA process.

This is an important rule. It affects millions of Americans in so many ways.

Mr. Speaker, I urge a ``yes'' vote on the rule and the previous question.

Mr. Speaker, I yield back the balance of my time, and I move the previous question on the resolution.

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.

Mr. Speaker, I ask unanimous consent that all Members have 5 legislative days in which to revise and extend their remarks and insert extraneous material on H.R. 2062, the Protecting Older Workers Against Discrimination Act of 2021.

Mr. Speaker, I yield myself such time as I may consume.

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.

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.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 2 minutes to the gentlewoman from Illinois (Ms. Schakowsky), the co-chair of the House Democratic Caucus Task Force on Aging.

Mr. Speaker, I yield 2\1/2\ minutes to the gentlewoman from Oregon (Ms. Bonamici), chair of the Subcommittee on Civil Rights and Human Services.

Mr. Speaker, I yield 2 minutes to the gentleman from Rhode Island (Mr. Langevin).

Mr. Speaker, I yield 2 minutes to the gentleman from Louisiana (Mr. Carter).

Mr. Speaker, I yield an additional 30 seconds to the gentleman from Louisiana.

Mr. Speaker, I yield myself such time as I may consume.

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.

Mr. Speaker, I yield 2 minutes to the gentlewoman from Texas (Ms. Garcia).

Mr. Speaker, I yield an additional 30 seconds to the gentlewoman from Texas.

Mr. Speaker, I yield 2 minutes to the gentlewoman from North Carolina (Ms. Adams), the chair of the Subcommittee on Workforce Protections.

Mr. Speaker, I yield myself the balance of my time to close.

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.

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

Mr. Speaker, I yield myself 1 minute.

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.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 3 minutes to the gentlewoman from Georgia (Ms. Williams).

Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from Maryland (Mr. Brown).

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.

I hope that we adopt this amendment, and, Mr. Speaker, I yield back the balance of my time.

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

Mr. Speaker, I yield 4 minutes to the gentleman from New York (Mr. Jones), a distinguished member of the Committee on Education and Labor.

Mr. Speaker, I yield 4 minutes to the gentlewoman from North Carolina, (Ms. Manning), a distinguished member on the Committee of Education and Labor.

Mr. Speaker, I yield an additional 1 minute to the gentlewoman from North Carolina.

Mr. Speaker, I yield myself the balance of my time.

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.

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.