Protecting Older Workers Against Discrimination Act of 2021

Floor Speech

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Ms. BONAMICI. 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.

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

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