Protect Older Job Applicants Act of 2021
Floor Speech
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Ms. GARCIA of Texas. 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.
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Ms. GARCIA of Texas. 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.''
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Ms. GARCIA of Texas. 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.
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Ms. GARCIA of Texas. 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. AARP, September 27, 2021. Hon. Nancy Pelosi, Speaker of the House, House of Representatives, Washington, DC. Hon. Kevin McCarthy. Republican Leader, House of Representatives, Washington, DC.
Dear Speaker Pelosi and Leader McCarthy: On behalf of our nearly 38 million members and all older Americans nationwide, AARP writes in support of H.R. 3992, the Protect Older Job Applicants Act (POJA), important legislation sponsored by Rep. Sylvia Garcia (D-TX) to protect older job applicants against age discrimination.
Older workers are valuable assets to their employers and the economy, and additional protections are needed as the country recovers from COVID-19. Despite their value, 78 percent of older workers reported having seen or experienced age discrimination in the workplace in 2020, up markedly from 61 percent in 2018. The pandemic has significantly diminished the job prospects and future retirement security of older workers. Americans age 55 and up experience long-term unemployment at a higher rate compared to younger job seekers and age discrimination makes it harder for them to return to the workforce.
We are pleased that this bill extends Age Discrimination in Employment Act (ADEA) protections to job applicants so everyone will have an equal opportunity when applying for a job. H.R. 3992 complements the Protecting Older Workers Against Discrimination Act (H.R. 2062), a bipartisan, commonsense bill that the House of Representatives passed on June 23. POJA goes a step further to ensure the legal rights of applicants for jobs are protected as well.
AARP strongly supports POJA and urges you to enact it as soon as possible: Sincerely, Bill Sweeney, Senior Vice President, Government Affairs. ____ NCOA, National Council on Aging, July 23, 2021. Hon. Sylvia R. Garcia, Washington, DC.
Dear Congresswoman Garcia: On behalf of the National Council on Aging, I am pleased to endorse your legislation to strengthen protections for older workers under the Protect Older Job Applicants Act of 2021 (H.R. 3992).
Ageism is one of the last socially acceptable forms of discrimination in our society--and it remains stubbornly ingrained in too many workplaces. AARP research shows that in 2020, nearly 80 percent of older workers reported having seen or experienced age discrimination at work.
As age discrimination has increased during the pandemic, so have job losses among older workers. Nearly 2 million workers aged 55 and older were unemployed in June, and 55.3 percent were long-term unemployed (27 weeks or longer), a rate that exceeds that of their younger counterparts. Research from The New School Schwartz Center for Economic Policy Analysis reveals that another 1.7 million older adults abandoned the job search and retired earlier than anticipated, setting many of them up for financial insecurity in their later years.
As Congress takes steps to promote economic recovery and job creation and placement, Age Discrimination in Employment (ADEA) protections must be restored and strengthened. In 2019, the 7th U.S. Circuit Court of Public Appeals (Kleber v. CareFusion Corp., No. 17-1206) ruled that ADEA protections apply only to current employees and do not extend to external applicants. The Protect Older Job Applicants Act will restore the original ADEA intent and clarify and codify these crucial protections for older workers seeking new employment.
It's time to treat age discrimination the same as every other unlawful bias in the workplace. We applaud your leadership on behalf of older workers and urge Congress to pass your legislation quickly to ensure they have equal access to employment opportunities as the economy recovers and into the future. Sincerely, Ramsey Alwin, President and CEO.
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Ms. GARCIA of Texas. 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.
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Ms. GARCIA of Texas. 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.
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Ms. GARCIA of Texas. Mr. Speaker, I rise in opposition to the amendment.
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Ms. GARCIA of Texas. 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.
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