Protecting Older Workers Against Discrimination Act

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.

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.

Mr. Speaker, I thank Chairman Scott for yielding and for his leadership on this important legislation. I rise in strong support of the bipartisan Protecting Older Workers Against Discrimination Act.

My home State of Oregon has one of the most rapidly aging populations in the country, and I have heard from many workers, particularly those in the technology industry, who believe they have been dismissed or denied employment because of their age. In fact, 6 in 10 older workers say they have experienced age discrimination, and 90 percent say that it is common.

My office has helped older workers who have filed age discrimination complaints before the Equal Employment Opportunity Commission, but the burden of proof is very high and often results in uncertain outcomes.

Congress recognized the need to protect older workers from pervasive age discrimination when it enacted the Age Discrimination in Employment Act of 1967. But decades later, in 2009, the Supreme Court, in Gross v. FBL Financial Services, imposed a much higher burden of proof for workers to prove age discrimination under the ADEA. Because of the Court's holding in Gross, workers now must prove that age discrimination was the decisive cause for their employer's adverse action rather than just a motivating factor in their employer's adverse action.

Mr. Speaker, earlier this year, I joined Chairman Scott in reintroducing the bipartisan Protecting Older Workers Against Discrimination Act. This needed bill is a commonsense legislative fix that will simply restore the pre-2009 standard in age discrimination claims and, importantly, align the burden of proof with the same standards for proving discrimination in other areas, such as those based on sex, race, religion, and national origin.

As we discussed during the joint Civil Rights and Human Services Subcommittee and Workforce Protections Subcommittee hearing earlier this year, Americans are living longer and working longer. We must make sure they are protected from age discrimination.

Mr. Speaker, I include in the Record a letter from the Leadership Council of Aging Organizations in support of the Protecting Older Workers Against Discrimination Act.

Leadership Council of

Aging Organizations,

May 13, 2021.

Dear Member of Congress: The Leadership Council of Aging

Organizations (LCAO) is a coalition of 69 national nonprofit

organizations concerned with the well-being of America's

older population and committed to representing their

interests in the policy-making arena. We are writing to urge

you to vote for passage of the Protecting Older Workers

Against Discrimination Act (POWADA, H.R. 2062, S. 880).

POWADA is bipartisan and bicameral legislation introduced in

the House by Representatives Bobby Scott (D-VA) and Rodney

Davis (R-IL). In the Senate, the bill is sponsored by

Senators Bob Casey (D-PA), Chuck Grassley (R-IA), Patrick

Leahy (D-VT) and Susan Collins (R-ME).

Age discrimination is pervasive and stubbornly entrenched.

It often starts in the hiring process when employers

circumvent anti-age discrimination laws by using such tactics

as setting a maximum number of years of experience that a

prospective employer will consider. Whether it starts at the

hiring process or not, six in 10 older workers say they have

experienced age discrimination and 90 percent of them say it

is common. It is even more pervasive among older women and

African American workers--nearly two thirds of women and

three-fourths of African Americans say they have seen or

experienced workplace discrimination. The COVID-19 pandemic

has wreaked havoc on employment for everyone, with older

workers taking a harder hit. Older workers experienced a 1.1

percent higher unemployment rate from April through September

of 2020 than their mid-career counterparts (9.7 percent were

unemployed versus 8.6 percent). The rates were worse for

older workers who were black, female, or who did not have a

college degree.

Courts have not taken age discrimination as seriously as

other forms of discrimination and older workers have fewer

protections as a result. Over ten years ago, the Supreme

Court decision in Gross v. FBL Financial Services Inc.

(2009), set a higher standard of proof for age discrimination

than previously applied, and much higher than for other forms

of discrimination. Since Gross, court decisions have

continued to chip away at protections. As a result plaintiffs

now must prove that age was a determinative cause for their

employers adverse treatment of them. Before the Gross cases

it was enough for plaintiffs to prove that age was one of the

motivating factors.

POWADA would restore the standard of proof in age

discrimination cases to the pre-2009 level and treat age

discrimination as unjust as other forms of employment

discrimination. Moreover, because courts have applied Gross'

higher burden of proof to retaliation charges and to

disability discrimination, POWADA would also amend the Age

Discrimination in Employment Act, Title VIT's provision on

retaliation, the Americans with Disabilities Act, and the

Rehabilitation Act of 1973.

Please vote to restore fairness for older workers by

passing the Protecting Older Workers Against Discrimination

Act (H.R. 2062, S. 880).

Sincerely,

AARP, AFL-CIO, Alliance for Retired Americans, AMDA--The

Society for Post-Acute and Long-Term Care Medicine,

American Postal Workers Union Retirees Department,

American Society on Aging, Association for Gerontology

and Human Development in Historically Black Colleges

and Universities, Association of Jewish Aging Services,

Asociacion Nacional Pro Personas Mayores, Caring Across

Generations, Center for Eldercare Improvement, Altarum,

The Gerontological Society of America, Justice in

Aging, LeadingAge, Medicare Rights Center, National

Active and Retired Federal Employees Association,

National Adult Day Services Association, National

Alliance for Caregiving, National Association of Area

Agencies on Aging, National Association of Nutrition

and Aging Services Programs, National Association of

Social Workers, National Caucus and Center on Black

Aging, National Committee to Preserve Social Security

and Medicare, National Council on Aging, National

Indian Council on Aging, National Senior Corps

Association, Pension Rights Center, Social Security

Works, Women's Institute for a Secure Retirement.

Mr. Speaker, I urge all of my colleagues to stand up for older workers and to support this bipartisan, bicameral bill.

Mr. Speaker, I would like to thank Chairman Scott for the time that he has put in on this incredible piece of legislation, and thank Representative Davis for the work done to put together this important work.

As my colleagues today have said, this is a bipartisan, commonsense bill. It is exactly the type of work and things that Congress should be doing. This is our system at work.

The facts are very simple: Right now, because of a court decision, the standards for age discrimination are higher than that of any other type of discrimination. This bill fixes that and returns the country to what it was intended to be; that all forms of discrimination are illegal and must be stopped; that no form of discrimination is less wrong than another form of discrimination.

This is the right thing to do and this is the right time to do it. That higher standard has made it harder to prove cases and leaves older workers exposed to discrimination.

Age discrimination is wrong, plain and simple. It is also costly. According to a study by AARP, we lose out on $850 million of GDP each year because of it.

The cost is not just in abstract dollars. It comes from Americans who were skipped over for promotions they deserved. It comes from constituents who want to switch jobs but don't get a call back. It comes from your neighbor who lost their job and can still work but can't get anyone to even look at their resume.

The standard for proving age discrimination must be fair, it must be level, and it must be treated as other forms of discrimination.

Americans of all ages deserve the chance to work and to provide for their families, and the law should recognize their ability to work.

There is no place for ageism in the workforce, and this must stop.

Mr. Speaker, I include in the Record a letter of support from The Leadership Conference on Civil and Human Rights dated June 22, 2021, asking for a yes vote on the Protecting Older Workers Against Discrimination Act, H.R. 2062.

The Leadership Conference

on Civil and Human Rights,

Washington, DC, June 22, 2021.

vote Yes on the Protecting Older Workers Against Discrimination Act

(POWADA), H.R. 2062

Dear Representative: On behalf of The Leadership Conference

on Civil and Human Rights, a coalition charged by its diverse

membership of more than 220 national organizations to promote

and protect the civil and human rights of all persons in the

United States, we urge you to vote yes on H.R. 2062, the

Protecting Older Workers Against Discrimination Act (POWADA),

without amendments that would limit the bill's scope or

undermine its protections. POWADA is a priority of The

Leadership Conference, and we will include your vote in our

voting record for the 117th Congress.

Despite longstanding federal prohibitions against workplace

discrimination based on age, pervasive age discrimination in

the United States continues to harm older workers--denying

working people dignity on the job and threatening their

economic security. In 2020, 78 percent of older workers

reported

having seen or experienced age discrimination in the

workplace, with Hispanic workers perceiving slightly more age

discrimination at 82 percent. These numbers reflect an

increase in age discrimination during the COVID-19 pandemic

for all workers, across race and gender. Previous research on

age discrimination before the pandemic reflects that women

workers and workers of color, especially Black workers, have

been more likely to experience age discrimination, and

unemployment rates suggest that workers of color may continue

to be more vulnerable. For example, although the unemployment

rate in May 2021 for White workers ages 45-59 was 4.2

percent, for Black workers, the rate was 10.6 percent.

The ability to enjoy employment opportunities, free from

unlawful discrimination, is key to promoting economic

security for marginalized and multi-marginalized communities.

Systemic racism and decades of structural inequality in

almost every area of life, including education, health care,

housing, and employment, have resulted in economic disparties

that have severely threatened the lives and well-being of far

too many people in the United States. Women, for example, are

nearly two-thirds of all individuals aged 65 and over living

in poverty, with women of color struggling at increased

rates. LGBTQ older adults are also at increased risk of

poverty compared to non-LGBTQ older adults, and people with

disabilities are twice as likely to live in poverty than

people without disabilities. Congress must ensure that our

federal laws are able to protect all persons in the United

States from unlawful discrimination. A key step toward that

goal is to ensure that unlawful discrimination plays no role

in employment practices,

POWADA is critically needed legislation that would restore

fairness by reinstating well-established legal protections

against workplace discrimination that were undermined by the

2009 Supreme Court decision in Gross v. FBL Financial

Services, Inc, which imposed a higher burden of proof on

working people in age discrimination cases. After Gross,

working people must prove not only that age discrimination

influenced an employer's conduct but that age played a

decisive role in the employer's conduct. The burden of proof

for age discrimination is now higher than the standard of

proof for allegations of discrimination based on sex, race,

religion, or national origin, sending the signal that some

amount of age discrimination in the workplace is acceptable.

Just as troubling, though, is that the Gross decision paved

the way for the same unreasonably difficult burden of proof

in cases in which an employer retaliates against workers who

challenge workplace discrimination based on race, sex, or

other grounds. POWADA is necessary to return the law to what

it was before the Gross decision.

Simply put, no amount of unlawful discrimination in the

workplace is acceptable. We therefore urge you to vote yes on

H.R. 2062, the Protecting Older Workers Against

Discrimination Act. If you have any questions or would like

to discuss this matter further, please contact Gaylynn

Burroughs, senior policy counsel.

Sincerely,

Wade Henderson,

Interim President & CEO.

Jesselyn McCurdy,

Managing Director and Interim Executive Vice President for

Government Affairs.

Mr. Speaker, when considering any legislation, Congress first should determine whether the legislation is needed and, next, whether the bill under consideration will provide a workable, feasible, and effective response to the issue at hand.

Proponents of H.R. 2062 claim that the Supreme Court's decision in Gross, 2009, and Nassar, 2013, have harmed workers who faced age discrimination or unlawful retaliation. Publicly available data does not show that the Supreme Court decisions in Gross or Nassar have discouraged individuals from filing Equal Employment Opportunity Commission charges of discrimination, which is a signed statement asserting employment discrimination.

Unfortunately, the one subcommittee-level hearing earlier this year in the Committee on Education and Labor on H.R. 2062 also covered several other unrelated bills.

At the very least, this far-reaching legislation deserves more than a cursory examination.

Furthermore, a Democrat-invited witness who testified at the hearing in favor of H.R. 2062 acknowledged that ``it is difficult to quantify the impact that the Gross decision has had on the number of older workers who bring cases and the number of those who win them.''

The reality is that a review of EEOC data shows that the rate of EEOC age discrimination charges as a percentage of all charges filed is approximately the same for the 11 years before and after the Gross decision.

In fact, there has been an uptick in title VII retaliation charges as a percentage of all charges filed in the 7 years following the Nassar decision, which does not indicate individuals have been discouraged from filing these charges.

Court decisions show that plaintiffs have continued to win age discrimination and title VII retaliation cases in the wake of the Supreme Court's decisions in Gross and Nassar.

Like other Democrat-sponsored legislation in the 117th Congress, H.R. 2062 has been rushed through the committee without necessary examination, discussion, or consideration.

We should go back to the drawing board on this bill, because H.R. 2062 begs for reliable data and evidence, thoughtful deliberation, and genuine consideration.

Mr. Speaker, as I said earlier, when considering any legislation, the House should first determine whether legislation is needed and, next, whether the bill under consideration will adequately address or improve the situation.

Before H.R. 2062 was brought to the House floor, the Committee on Education and Labor did not have a standalone hearing on the bill and instead held a subcommittee-level hearing on multiple, wide-ranging topics.

This complex and sweeping legislation deserves further examination by the committee so Members can gather more information from a variety of experts to make an informed decision regarding its practicality.

Supporters of H.R. 2062 claim the Supreme Court's 2009 decision in the Gross case and 2013 decision in the Nassar case have harmed workers who faced age discrimination or unlawful retaliation for claiming discrimination. Publicly available data does not show that the Supreme Court decisions in the Gross or Nassar cases have discouraged individuals from filing EEOC charges.

A Democrat-invited witness who testified acknowledged that ``it is difficult to quantify the impact that the Gross decision has had on the number of older workers who bring cases and the number of those who win them.''

This witness also acknowledged that ``when we might have expected a drop in charges due to Gross-inspired discouragement from employment attorneys, there was a sizeable jump in the number of ADEA charges filed with the EEOC.''

In addition, a review of the Equal Employment Opportunity Commission, or EEOC, data shows that, as a percentage of all charges filed, the rate of EEOC age discrimination charges is approximately the same as 11 years before the Gross decision, with a slightly higher percentage of age discrimination charges filed after the Gross decision.

As a percentage of all charges filed in the 7 years following the Nassar decision, there has also been an increase in title VII retaliation charges, which shows that individuals have not been discouraged from filing these charges.

Further, a review of court decisions shows that plaintiffs have continued to win age discrimination and title VII retaliation cases in the wake of the Supreme Court's decisions of Gross and Nassar.

Bottom line, we must ensure that before we continue to legislate on an issue that may not need additional Washington interference, we have accurate data.

My amendment simply states that before H.R. 2062 goes into effect, the Government Accountability Office must conduct a study and report to Congress on whether individuals have been discouraged from filing age discrimination or title VII retaliation charges and from filing lawsuits following the decisions in Gross and Nassar and whether there have been fewer plaintiffs winning age discrimination and title VII retaliation lawsuits.

If the GAO finds that individuals have not been discouraged from filing charges and lawsuits, and have, in fact, won more lawsuits than prior to the Supreme Court decisions, then the bill would not go into effect.

Let's not put the cart before the horse. I urge my colleagues to vote in favor of my amendment to ensure this legislation is actually needed and adequately addresses the purported concerns of the bill's sponsors.

Mr. Speaker, again, I simply state this: My amendment says that the Government Accountability Office must conduct a study and report to Congress on whether individuals have been discouraged from filing age discrimination or title VII retaliation charges and from filing lawsuits following the decisions in Gross and Nassar, and whether there have been fewer plaintiffs winning age discrimination and title VII retaliation lawsuits.

We must have the data before we move in this body. We do not have sufficient information at this point. Again, no one wants discrimination in the workplace, but we have a justice system that provides for relief for people who bring these cases. And I have just cited the cases presented here today.

Mr. Speaker, I urge a vote for this amendment so that we can get the proper data.