Protecting Older Workers Against Discrimination Act

Floor Speech

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Mr. SCOTT of Virginia. 1230, the Protecting Older Workers Against Discrimination Act.

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Mr. SCOTT of Virginia. Mr. Chair, I yield myself such time as I may consume.

Mr. Chair, I rise today in support of H.R. 1230, the Protecting Older Workers Against Discrimination Act, or POWADA.

I want to thank my colleagues, particularly the gentleman from Wisconsin (Mr. Sensenbrenner), for working to pass this bipartisan proposal to restore workplace protections for older workers.

In 1967, Congress passed the Age Discrimination in Employment Act, or ADEA, which recognizes the Federal Government's role in preventing older workers from being forced out of jobs or denied work opportunities because of their age.

Importantly, the ADEA was enforced using an evidentiary standard that gave older workers a fair shot at holding employers accountable for age discrimination. Under this standard, workers seeking to challenge age discrimination in employment only had to prove that age was a motivating factor or one of many motivating factors behind an employer's discriminatory action.

For decades, this mixed-motive standard was consistent with the evidentiary standard in title VII of the Civil Rights Act of 1964, which covers claims of unlawful discrimination on the basis of race, sex, national origin, or religion.

Unfortunately, in 2009, in the Gross v. FBL Financial Services case, the Supreme Court upended decades of precedent, significantly raising the burden of proof for older workers.

In its 5-to-4 decision, the Court held that plaintiffs must prove that age was the decisive and determinative motivating factor for the employer's conduct. Under this altered framework, older workers cannot prevail unless they can show that the adverse action would not have occurred but for the employee's age.

This higher threshold not only makes it harder for workers who have suffered discrimination to achieve redress, it also sends a message to employers that they need not treat age discrimination as seriously as other forms of discrimination.

By amending the ADEA to clarify that the mixed-motive standard is the evidentiary standard for evaluating claims, the Protecting Older Workers Against Discrimination Act would restore workers' protections and reestablish a consistent burden of proof for claims alleging discrimination on the basis of age.

The 2009 Gross decision also opened the door for the courts to apply the but-for standard to other civil rights laws, including the Americans with Disabilities Act, the Rehabilitation Act of 1973, and the antiretaliation provisions of the Civil Rights Act of 1964. The bill before us clarifies that the mixed-motive standard also applies to those three civil rights acts as well.

Despite the bipartisan support in both Chambers for this bill, I am disappointed that the White House has already threatened to veto this legislation. In reality, the administration has a troubling pattern of blocking legislation to help the very forgotten workers it promised to support.

In addition to this legislation, the administration has placed veto threats on the Raise the Wage Act, which would gradually increase the minimum wage to $15 an hour by 2025, and the Workplace Violence Prevention for Healthcare and Social Service Workers Act, which would support the safety of healthcare and social service workers.

Mr. Chairman, today the House has a chance to be on record and stand up for the average American worker. I urge a ``yes'' vote on the Protecting Older Workers Against Discrimination Act, and I reserve the balance of my time.

Ms. FOXX of North Carolina. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I rise today in opposition to H.R. 1230, the Protecting Older Workers Against Discrimination Act.

Let me be clear: every worker, including older workers, should be protected from workplace discrimination at his or her job. This is why Congress has passed a number of laws to protect 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, the Rehab Act; and the Americans with Disabilities Act of 1990, ADA, makes employment discrimination because of an individual's race, color, religion, sex, national origin, age, or disability unlawful.

Although I appreciate the stated purpose behind H.R. 1230, the rushed approach taken by committee Democrats and the lack of evidence and data to prove that this legislation is needed have led to a seriously flawed bill. Careful examination and scrutiny of any legislative proposal is necessary to determine whether it is needed and whether it appropriately and effectively addresses the relevant issues. Unfortunately, in developing H.R. 1230, the committee majority failed miserably in this regard.

Committee Democrats chose not to hold a single hearing solely dedicated to examining either age discrimination or H.R. 1230; rather, they examined this bill during a hearing that covered multiple topics and several other pieces of legislation completely unrelated to the bill.

As we have seen many times during the 116th Congress with other legislation, H.R. 1230 was rushed through the Education and Labor Committee without necessary examination, discussion, or consideration. As a result, we are here debating yet another one-size-fits-all ``government knows best'' mandate that rewards special interests and disregards real-world workplace experience and decades of Supreme Court precedent.

However, the flawed process is far from the only issue with this legislation. The committee also has no evidence or data indicating this bill is necessary. In fact, the lone Democrat-invited witness who testified on H.R. 1230 at a committee hearing covering many bills and topics admitted the impact of the Supreme Court's 2009 decision in Gross v. FBL Financial Services, Inc. is unknown. She also admitted there is no data indicating workers have been discouraged from filing age discrimination charges with the EEOC or bringing cases.

The data simply does not indicate workers have been discouraged from filing discrimination or retaliation charges with the EEOC. Additionally, according to the Bureau of Labor Statistics, employment numbers for older workers have trended upwards in recent decades.

In 2018 older workers 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.

Rather than considering misguided proposals such as H.R. 1230 which furthers government intervention, we ought to be empowering all workers, including older workers, to continue participating and thriving in America's workforce to build upon, not stifle, these impressive trends. Unfortunately, H.R. 1230 does the opposite. This legislation will actually harm older workers while simultaneously enriching trial lawyers.

H.R. 1230 overturns Supreme Court precedent by allowing a plaintiff to argue that age was only a motivating, not decisive, factor that led to an employer's unfavorable employment action, and it allows these kinds of mixed-motive claims across four completely different nondiscrimination laws. Moreover, allowing mixed-motive claims in cases alleging retaliation puts employers in an untenable position of trying to prove that a legitimate employment decision was not in response to a prior complaint. The only party who will be paid in nearly all mixed- motive cases is the plaintiffs' attorneys because most employers will be able to demonstrate that they would have taken the same action in the absence of the impermissible motivating factor. So the very people this legislation is intended to help will not receive any monetary damages under H.R. 1230.

H.R. 1230 will also increase frivolous legal claims against businessowners. Such undeserving claims will take valuable resources away from efforts to prevent workplace harassment and discrimination.

Finally, committee Republicans offered amendments to advance important priorities and practical solutions for older workers and highlight fundamental flaws in H.R. 1230. Unfortunately, our commonsense amendments were defeated on a party-line vote in committee.

Mr. Chairman, all workers should be protected from workplace discrimination, but by rushing today's legislation to the House floor in an attempt to make up for an abysmal first year in the majority, Democrats have failed older workers.

I encourage my colleagues to vote ``no'' on H.R. 1230, and I reserve the balance of my time.

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Mr. SCOTT of Virginia. Mr. Chairman, I yield myself such time as I may consume just to respond to the idea that this has been rushed.

There have been several committee hearings over the last 10 years in the House and one of the Senate, and that information is recorded in the committee report.

I also would like to point out that the burden of but for that the Gross decision has saddled older workers with now requires them to show not only that they have been discriminated against but also that they would have gotten the job or wouldn't have been fired but for the fact that they are old. All the older person knows is that when they applied for the job they were told: We don't hire old people.

Well, that is not enough, because now you also have to show that you would have gotten the job anyway. You don't know who got hired, and you don't know what their qualifications were, and it is an almost impossible burden to prove that not only were you discriminated against but you know the action would not have been taken but for that action.

Mr. Chairman, I yield 2 minutes to the gentlewoman from Oregon (Ms. Bonamici), who is the chair of the Subcommittee on Civil Rights and Human Services on the Education and Labor Committee.

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Mr. SCOTT of Virginia. Mr. Chairman, I yield 2 minutes to the gentleman from Rhode Island (Mr. Langevin), who is the co-chair of the Bipartisan Disabilities Caucus.

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Mr. SCOTT of Virginia. Mr. Chair, I yield 2 minutes to the gentlewoman from Pennsylvania (Ms. Wild), a distinguished member of the Committee on Education and Labor.

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Mr. SCOTT of Virginia. Mr. Chair, I yield an additional 1 minute to the gentlewoman from Pennsylvania.

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Mr. SCOTT of Virginia. Mr. Chair, I yield 3 minutes to the gentlewoman from Illinois (Ms. Schakowsky), the co-chair of the Democratic Caucus Task Force on Aging and Families.

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Mr. SCOTT of Virginia. Mr. Chair, I yield 2 minutes to the gentlewoman from Florida (Ms. Frankel).

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Mr. SCOTT of Virginia. Mr. Chair, I yield 2 minutes to the gentlewoman from New York (Ms. Stefanik), a distinguished member of the Committee on Education and Labor.

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Mr. SCOTT of Virginia. Mr. Chair, I yield myself the balance of my time.

Mr. Chair, it has been more than a decade since the Supreme Court heightened the burden of proof for workers seeking to legally challenge age discrimination in the workplace; however, our responsibility to ensure that no older Americans are forced out of a job or denied a work opportunity because of age has not changed.

At a time when Americans are working longer into their lives, we need policy solutions that empower older workers to challenge workplace discrimination. We know that a 2018 survey by the AARP showed that three out of five workers age 45 or older had seen or experienced age discrimination in the workplace.

Some of my colleagues contend that this bill was rushed to the floor; however, we must remember that this is a bipartisan proposal that has undergone substantial debate since it was first introduced in 2009. Over the past 10 years, Congress has deliberated on this legislation through four hearings, including two hearings in the Committee on Education and Labor.

Both the House and Senate have introduced and gradually improved this legislation in the 111th, 112th, 113th, 114th, 115th, and the current 116th Congress. It is long overdue.

The Protecting Older Workers Against Discrimination Act is a bipartisan, bicameral solution that restores protections for older workers and ensures that we treat all workers facing discrimination, whether it is on the basis of sex, race, religion, national origin, or age, with consistency and fairness.

I want to thank Congressman Sensenbrenner for working with us to bring this important legislation to the floor.

I want to remind everyone exactly what this bill does.

Under the bill and before 2009, if a person could prove discrimination, that was the beginning of the case. The defendant would be able to show that they would have been fired or not hired anyway, but that is on the defendant to show. If they don't show that, then it is proven discrimination, entitling the plaintiff to damages. If the defendant can show that it would have done it anyway, discrimination is already proved, and, as the gentlewoman from North Carolina pointed out, attorney's fees would be available.

Under the new law, after 2009, not only do you have to prove that you were discriminated against, told we don't higher old people, you also have to prove that you would have gotten the job anyway.

Well, you don't have that information. You can't show that you would have gotten the job. You don't know the qualifications of the person who was hired.

So, Mr. Chair, we know that this legislation is extremely important. Older workers want this legislation, as evidenced by a letter of support from the Leadership Council of Aging Organizations, over two dozen organizations representing senior citizens; another letter, joined by 26 advocacy organizations supporting the bill; and, finally, a letter of support from AARP.

Mr. Chair, I include these letters in the Record. Leadership Council of Aging Organizations, December 9, 2019. Hon. Mitch McConnell, Majority Leader, Hon. Chuck Schumer, Minority Leader, U.S. Senate, Washington, DC. Hon. Nancy Pelosi, Speaker, Hon. Kevin McCarthy, Minority Leader, House of Representatives, Washington, DC.

Dear Majority Leader McConnell, Minority Leader Schumer, Speaker Pelosi, and Minority Leader McCarthy: 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 (S. 485, H.R. 1230). The Protecting Older Workers Against Discrimination Act (POWADA) is bipartisan and bicameral legislation sponsored in the Senate by Senators Bob Casey (D- PA) and Chuck Grassley (R-IA). The House version is sponsored by Representatives Bobby Scott (D-VA) and Jim Sensenbrenner (R-Wl). The House Education and Labor Committee voted on June 11, 2019 to approve POWADA.

Age discrimination is pervasive and stubbornly entrenched. Six in 10 older workers have experienced age discrimination and 90% 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 age discrimination.

Courts have not taken age discrimination as seriously as other forms of discrimination and older workers have fewer protections as a result. Ten years ago, in Gross v. FBL Financial Services Inc., the Supreme Court 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 have to prove that age was a determinative, ``but-for'' cause for their employers' adverse treatment of them. Before the Gross case, 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 just as wrong as other forms of employment discrimination. Moreover, because courts have applied Gross' higher burden of proof to retaliation charges and to disability discrimination, it would also amend the Age Discrimination in Employment Act, Title VII'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 (S. 485, H.R. 1230). Sincerely,

The Undersigned Groups of the Leadership Council of Aging Organizations:

AARP; AFL-CIO; AFSCME; Aging Life Care Association; Alliance for Retired Americans; American Association of Service Coordinators; American Society on Aging; AMDA--The Society for Post-Acute and Long-Term Care Medicine; Association of Gerontology and Human Development in Historically Black Colleges and Universities; B'nai B'rith; Consumer Voice; International Association for Indigenous Aging; Justice in Aging; Leading Age; National Adult Protective Services Association; National Asian Pacific Center on Aging (NAPCA); National Association for Hispanic Elderly; National Association of Area Agencies on Aging (n4a).

National Association of Nutrition and Aging Services Programs (NANASP); National Association of Social Workers; National Center and Caucus on Black Aging; National Committee to Preserve Social Security and Medicare; National Council on Aging; National Hispanic Council on Aging; National Senior Corps Association; Pension Rights Center; PHI; Social Security Works; The Gerontological Society of America; The Jewish Federations of North America; Women's Institute for a Secure Retirement (WISER). June 10, 2019. Hon. Bobby Scott, Chairman, Committee on Education and Labor, House of Representatives, Washington, DC. Hon. Virginia Foxx, Ranking Member, Committee on Education and Labor, House of Representatives, Washington, DC.

Dear Chairman Scott and Ranking Member Foxx: On behalf of the undersigned organizations and the millions of workers we represent, we urge all Committee Members to vote to support H.R. 1230, the Protecting Older Workers Against Discrimination Act (POWADA), sponsored by Chairman Scott and Rep. Jim Sensenbrenner (R-WI). POWADA is bipartisan, limited legislation to restore fairness and well-established legal standards on workplace discrimination that were undermined by certain court decisions.

To ensure equal treatment and equal opportunity in employment, the civil rights laws make clear that discrimination in the workplace ``because of'' a protected characteristic or activity is unlawful. For decades, this meant that discrimination may not play any role in employment practices.

Yet, 10 years ago this month, the Supreme Court erected a new and substantial legal barrier in the path of equal opportunity for older workers. In Gross v. FBL Financial Services, Inc. (2009), the Court imposed a much higher burden of proof on workers who allege age discrimination than is required of those who allege discrimination based on race, sex, national origin, or religion. Proving that discrimination tainted the employer's conduct was no longer enough; after Gross, older workers must prove that discrimination played a decisive role in the employer's action.

Since the Gross decision, the Supreme Court and lower courts have extended this same unreasonably difficult burden of proof to other types of civil rights complaints:

Retaliation--In Title VII cases in which an employer retaliates against a worker who challenges workplace discrimination based on race, sex, or other grounds, the worker must now prove that retaliation was the decisive cause for their adverse treatment. University of Texas Southwestern Medical Center v. Nassar (2013).

Disability discrimination--The Supreme Court has not yet ruled on whether workers subjected to disability discrimination must also meet this much higher standard of causation, but four federal circuit courts of appeal have ruled that disability-based employment discrimination must be established under the higher, ``but-for'' causation standard.

This line of court decisions has made it exponentially more difficult for workers who have experienced discrimination to have their day in court and prove their case. These decisions have also sent a terrible message to employers and the courts that some types of discrimination are not as wrong, or as unlawful, as other forms of discrimination.

POWADA would restore the causation standard that was in effect and consistently applied by the courts before 2009, and make Congress' intent clear that discrimination in the workplace is never acceptable. Please support H.R. 1230 and swiftly pass this bipartisan legislation. Sincerely,

AARP, American Association of People with Disabilities (AAPD), American Association of University Women (AAUW), American Civil Liberties Union (ACLU), American Federation of State, County, and Municipal Employees (AFSCME), Bazelon Center for Mental Health Law, Disability Rights Education & Defense Fund (DREDF), Easterseals, Equal Rights Advocates, Justice for Migrant Women, Justice in Aging, Leadership Conference on Civil and Human Rights.

National Council on Aging, National Disability Institute, National Domestic Workers Alliance, National Education Association (NEA), National Employment Law Project, National Employment Lawyers Association, National Partnership for Women & Families, National Women's Law Center, NETWORK Lobby for Catholic Social Justice, Paralyzed Veterans of America, The Arc, The Gerontological Society of America, Women Employed, Women's Institute for a Secure Retirement (WISER). ____ AARP, June 10, 2019. Hon. Robert C. Scott, Chairman, Education and Labor Committee, House of Representatives, Washington, DC.

Dear Chairman Scott: On behalf of AARP's nearly 38 million members, including the approximately 91,000 AARP members in Virginia's Third Congressional District, I extend our sincere thanks for leading efforts to introduce and move the Protecting Older Workers Against Discrimination Act.

Older workers are a valuable asset to their employers and to the nation's economy. Yet, AARP polling shows that over 60% of older workers believe they have seen or experienced age discrimination in the workplace. Discrimination is especially devastating when workers are terminated from long- time jobs, and face entrenched age bias in hiring.

H.R. 1230 will correct the 2009 Supreme Court decision in Gross v. FBL Financial Services, Inc. (and subsequent discrimination cases that followed its reasoning) that made it much more difficult to prove job discrimination, and will clarify that proven discrimination may not play any role in employment decisions. We think the Committee's May hearing helped to highlight the need for POWADA, and thank you for drawing attention to Jack Gross' presence there.

We look forward to the June 11th mark-up--as you may know, this will be the first time that POWADA has been marked up and voted on in committee--and to working with you and your staff to shepherd this legislation through the House of Representatives before the August recess. Thank you again for your leadership and support. Sincerely, Nancy LeaMond, Executive Vice President, Chief Advocacy & Engagement Officer.

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Mr. SCOTT of Virginia. Mr. Chair, I yield back the balance of my time.

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Mr. SCOTT of Virginia. Mr. Chairman, I claim the time in opposition to the amendment, even though I am not opposed to it.

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Mr. SCOTT of Virginia. Mr. Chairman, I yield 2 minutes to the gentlewoman from Maine (Ms. Pingree), who worked hard with the sponsor of this amendment.

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Mr. SCOTT of Virginia. Mr. Chairman, I yield 2 minutes to the gentlewoman from Texas (Ms. Jackson Lee).

Ms. JACKSON LEE. Mr. Chairman, I thank the gentleman from Virginia for yielding. And I thank the sponsors of this very important amendment, Mr. Davis and Ms. Pingree.

I rise to support the underlying bill, the Protecting Older Workers Against Discrimination Act that I am very proud to have been a cosponsor of.

What kind of thanks are we giving to hardworking Americans who, because of the growth of this population senior citizens, older Americans, they are ready to work in the workforce and provide their experience, their thoughtfulness, and their leadership.

Unfortunately, a Supreme Court decision in the 2000s turned this upside down by requiring those older Americans to be burdened by the responsibility of saying, it is only the fact that we are old or that there are not multiple reasons why I could have been fired. How dangerous that is when an older American feels vulnerable?

The underlying amendment is also very important, dealing with women who may have had to get out of the workforce to raise their children or to not get promotions so they can tend to their children or other matters or be a caretaker for other family members.

This is an important initiative to equalize the playing field, to value those older Americans with experience who are ready to work, who have been giving their best, and who are ready to be the kind of experienced mentors in the workplace that really make America great.

I rise to support this legislation. It is vital to both impact and correct a very bad decision by the United States Supreme Court, and I believe that this will give the kind of affirmation to the value of all Americans, and particularly our older Americans.

Mr. RODNEY DAVIS of Illinois. Mr. Chairman, I urge a ``yes'' vote on this bipartisan amendment, and I yield back the balance of my time.

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Mr. SCOTT of Virginia. Mr. Chairman, I yield myself the balance of my time.

I want to thank the gentleman for his amendment and hope it passes.

I yield back the balance of my time.

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Mr. SCOTT of Virginia. Mr. Chairman, I move that the Committee do now rise.

The motion was agreed to.

Accordingly, the Committee rose; and the Speaker pro tempore (Ms. Tlaib) having assumed the chair, Mr. Cuellar, Chair of the Committee of the Whole House on the state of the Union, reported that that Committee, having had under consideration the bill (H.R. 1230) 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, had come to no resolution thereon.

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