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By Herb Weiss, contributing writer on aging issues
Just days ago, Rep. Robert C. “Bobby” Scott (D-VA), chairman of the House Committee on Education and Labor, and Rep. Rodney Davis (R-IL) introduced, H.R. 2062, the bipartisan “Protection Older Workers Against Discrimination Act” (POWADA), a bill that would strengthen federal anti-discrimination protections for older workers. The legislation was introduced on March 18, 2021, the same day of a joint House Education and Labor Subcommittee hearing, held to address a variety of workplace issues. POWADA has been referred to the House Committee on Education and Labor for consideration.
The reintroduction of POWADA is timely. As the COVID-19 pandemic continues, older workers are attempting to keep their jobs, working more and longer than they ever have. When seniors lose their jobs, they are far more likely than younger workers to join the ranks of the long-term unemployed. And unfortunately, discrimination appears to be a significant factor in older workers’ long-term unemployment.
A 2018 survey conducted by the Washington, DC-based AARP found that 3 in 5 workers age 45 and older had seen or experienced age discrimination in the workplace. The 2018 survey also found that three-quarters of older workers blame age discrimination for their lack of confidence in being able to find a new job.
Congress Gears Up to Again Fight Age Discrimination
Reps. Scott and Davis were joined by seven Republicans and fourteen Democrats, including Civil Rights and Human Services Subcommittee Chair Suzanne Bonamici (D-OR) and Workforce Protections Subcommittee Chair Alma Adams (D-NC) to support H.R. 2062.
Rhode Island Rep. David Cicilline has also requested to be a cosponsor of this legislation.
POWADA was first introduced in Congress after an adverse 2009 Supreme Court decision, Gross v. FBL Financial Services, Inc., that made it much more difficult for older workers to prove claims of illegal bias based on age. Under Gross, plaintiffs seeking to prove age discrimination in employment are required to demonstrate that age was the sole motivating factor for the employer’s adverse action. The Supreme Court ruling upends decades of precedent that had allowed individuals to prove discrimination by showing that a discriminatory motive was one of the factors on which an employer’s adverse action was based.
Scott’s reintroduced POWADA returns the legal standard for age discrimination claims to the pre-2009 evidentiary threshold, aligning the burden of proof with the same standards for proving discrimination based on race and national origin.
“Everyone – regardless of their age – should be able to go to work every day knowing that they are protected from discrimination. Unfortunately, age discrimination in the workplace is depriving older workers of opportunities and exposing them to long-term unemployment and severe financial hardship, says Chairman Scott, noting that the reintroduced bipartisan bill would finally restore the legal rights under the Age Discrimination in Employment Act, which covers workers age 40 and over.
Republican Rep. Rodney Davis puts aside political differences and has stepped up to the plate with a handful of GOP lawmakers to cosponsor Scott’s POWADA legislation. “Every American, including older Americans, deserves to work in a workplace or jobsite that is free from discrimination That’s why I’m proud to team up with Chairman Bobby Scott and a bipartisan group of lawmakers in introducing the Protecting Older Workers Against Discrimination Act. Our bipartisan bill provides workplace protections for older workers by removing barriers they have to filing discrimination claims, ensuring their workplace rights can be enforced, says Davis, pledging to work with colleagues on both sides of the aisle to finally get the bill passed,” he says.
Oregon Rep. Bonamici, who chairs the Subcommittee on Civil Rights and Human Services, notes that her state has a rapidly aging population, and age discrimination in the workplace remains disturbingly pervasive. She joins Scott in cosponsoring POWADA.
“I’ve heard from Oregonians who were denied or lost a job because of their age, but the bar for proving discrimination is very high and the outcomes are uncertain. The bipartisan Protecting Older Workers Against Discrimination Act makes it clear that unlawful discrimination in the workplace is unacceptable and holds employers accountable for discriminatory actions,” says Bonamici.
Adams, who chairs the Subcommittee on Workforce Protections, joins Bonamici in cosponsoring POWADA. The North Carolina Congresswoman states: “Labor law must protect the dignity of all workers and it must recognize that discrimination against older Americans is discrimination all the same,” says Adams, who chairs the Subcommittee on Workforce Protections. She North Carolina Congresswoman notes that POWADA ensures that older workers will be fairly treated in the job market, returning the legal standard for proving discrimination back to its original intent. There is no place for disparate treatment based on age in the workforce.”
“Labor law must protect the dignity of all workers and it must recognize that discrimination against older Americans is discrimination all the same,” says Adams, who chairs the Subcommittee on Workforce Protections. The North Carolina House Lawmaker says that POWADA ensures that older workers will be fairly treated in the job market, returning the legal standard for proving discrimination back to its original intent. There is no place for disparate treatment based on age in the workforce.
“The introduction of this bill is a crucial step to strengthening the law and restoring fairness for older workers who experience age discrimination,” said Nancy LeaMond, AARP Executive Vice President and Chief Advocacy & Engagement Officer. “It sends a clear message that discrimination in the workplace – against older workers or others – is never acceptable.
“Age discrimination in the workplace, like any other kind of discrimination, is wrong.,” said AARP Rhode Island State Director Kathleen Connell. That’s why AARP is fighting all forms of age discrimination in the hiring process and on the job, including an unfair court decision that makes age discrimination more difficult to prove than race- or sex-based discrimination. “Rhode Islanders are living and working longer, and experienced workers bring expertise, maturity, and perspective,” Connell added. “Yet negative stereotypes and mistaken assumptions mean that older people are often treated unfairly in the workplace. We need bipartisan Congressional action to address this stubborn and persistent problem.”
Tackling Workforce Issues
Over two-hours, four witnesses testified at a joint Zoom hearing, “Fighting for Fairness: Examining Legislation to Confront Workplace Discrimination,” held before the House Education and Labor Subcommittee on Civil Rights and Human Services and the Subcommittee on Workforce Protections. The morning hearing addressed an array of workforce issues including race and longstanding gender inequities and barriers and pregnancy discrimination at the workplace. A spotlight was also put on the rampant increase of age discrimination that older workers are now facing in the job market and the need to pass POWADA to reverse the detrimental impact of a 2009 Supreme Court decision.
Lauren McCann, senior attorney at AARP Foundation, pointed out to the attending House lawmakers that age discrimination in the workplace remains “stubbornly persistent” and urged a House Education and Labor hearing to “re-level the playing field” by passing strong anti-bias legislation.
McCann told the committee that the ongoing COVID-19 pandemic has exacerbated the problems faced by older workers, who have left the labor force in the last year at twice the rate during the Great Recession.
McCann testified that passage of POWADA, sponsored by Scott, the Chair of the House Committee of Education and Labor, is crucial to reverse the 2009 Supreme Court decision in the Gross v. FBL Financial Services, Inc. case. McCann said that the high court’s 2009 decision abruptly changed the standard — from the longstanding requirement under the ADEA that a worker prove that age is just one motivating factor in adverse treatment on the job — to a much higher and tougher to prove standard: that age is the standard motive.
“Older workers now always bear the burden of persuasion in ADEA cases,” McCann emphasized.
According to McCann, House hearing comes at a time when older workers have been battered by the economic downturn caused by the pandemic. Unemployment for workers age 55 and older more than doubled between February 2020, just before the pandemic began, and last month, based on AARP Public Policy Institute (PPI) analysis of federal data.
The number of age 55 and over unemployed has also doubled, up from one million in February 2020, to two million last month, according to PPI.
Turning to the Senate…
At press time, a senior Senate aide for Sen. Bob Casey (D-PA), who chairs the Senate Special Committee on Aging, says the Senator is posed to follow the House by throwing the Senate’s POWADA Senate companion measure into the legislative hopper on Monday.
The Pennsylvania Senator clearly understands why he again must push for the passage and enactment of POWADA. “As more Americans are remaining in the workforce longer, we must recognize and address the challenges that aging workers face. We must make it clear to employers that age discrimination is unacceptable, and we must strengthen antidiscrimination protections that are being eroded,” says Sen. Casey. “POWADA would level the playing field for older workers and ensure they are able to fight back against age discrimination in the workplace.”
Also published in The Pawtucket Times and Woonsocket Call.
UPDATE: After reporting on Monday morning, this update was released by Sen. Bob Casey:
Casey, Grassley, Leahy, Collins Introduce Bipartisan Bill to Protect Older Workers From Discrimination Washington, DC – U.S. Senator Bob Casey (D-PA), Chairman of the Special Committee on Aging, and Senators Chuck Grassley (R-IA), Patrick Leahy (D-VT) and Susan Collins (R-ME) re-introduced the bipartisan, bicameral Protecting Older Workers Against Discrimination Act (POWADA). Enacting POWADA would restore critical protections in the Age Discrimination in Employment Act (ADEA) and make it easier for employees to prove when they are a victim of age discrimination in the workplace. U.S. Representative Bobby Scott (D-VA-03), Chairman of the Committee on Education and Labor, introduced a companion bill in the House of Representatives. In 2009, a U.S. Supreme Court ruling in Gross v. FBL Financial Services weakened the ADEA by imposing a significantly higher burden of proof on workers alleging age discrimination than is required of workers alleging other forms of workplace discrimination. As a result, workers that allege age discrimination must meet an undue legal burden not faced by workers alleging discrimination based on race, sex, national origin or religion. “As more Americans are remaining in the workforce longer, we must recognize and address the challenges that aging workers face. We must make it clear to employers that age discrimination is unacceptable, and we must strengthen antidiscrimination protections that are being eroded,” said Senator Casey. “POWADA would level the playing field for older workers and ensure they are able to fight back against age discrimination in the workplace.” “Older Americans contribute greatly to our society and economy. They deserve the same protections as every other American,” said Senator Grassley. “The Supreme Court case involving Iowan Jack Gross affected employment discrimination litigation across the country. It’s long past time we clarify the intent of Congress to make sure people like Mr. Gross don’t face discrimination due to age.” “No American should face discrimination in the workplace, whether based on age, sex, race, religion, national origin, disability, or otherwise. And our laws must not tolerate any amount of discrimination. No matter whether it is a determinative or contributing factor in an employment decision, discrimination is wrong and should be treated that way,” said Senator Leahy. “I am proud to once again cosponsor legislation that reinforces these fundamental rights for our nation’s seniors.” “Older employees bring a wealth of knowledge and expertise to the workplace. Individuals who are willing and able to remain in the workforce longer can also improve their retirement security for their golden years. We should do all we can to ensure that these employees are not faced with age-related bias while doing their jobs,” said Senator Collins. “I encourage our colleagues to support this bipartisan legislation, which would help to end workplace discrimination for seniors throughout the country.” “Everyone—regardless of their age—should be able to go to work every day knowing that they are protected from discrimination. Unfortunately, age discrimination in the workplace is depriving older workers of opportunities and exposing them to long-term unemployment and severe financial hardship,” said Chairman Bobby Scott (VA-03), Committee on Education and Labor. “More than a decade ago, the Supreme Court undermined protections for older workers by setting an unreasonable burden of proof for age discrimination claims. The Protecting Older Workers Against Discrimination Act is a bipartisan bill that would finally restore the legal rights of older workers by ensuring that the burdens of proof in age discrimination claims are treated in the same manner as other discrimination claims.” “The introduction of this bill is a crucial step to strengthening the law and restoring fairness for older workers who experience age discrimination,” said Nancy LeaMond, AARP Executive Vice President and Chief Advocacy & Engagement Officer. “It sends a clear message that discrimination in the workplace – against older workers or others – is never acceptable.” Read the POWADA one pager here.
Herb Weiss, LRI’12, is a Pawtucket writer covering aging, health care and medical issues. To purchase Taking Charge: Collected Stories on Aging Boldly, a collection of 79 of his weekly commentaries, go to herbweiss.com