At a hearing on Wednesday, leaders of the U.S. Senate Special Committee on Aging vowed to “fix” a 2009 U.S. Supreme Court decision that makes it very difficult for older workers to fight age discrimination in federal court.
Committee Chairperson Susan Collins, R-ME, and Ranking Leader Bob Casey, D-PA, also acknowledged the upcoming 50th anniversary of the Age Discrimination in Employment Act of 1967 (ADEA), which was signed by President Lyndon B. Johnson on December 15, 1967.
Collins and Casey addressed the Supreme Court’s catastrophic 2009 decision, in Gross v. FBL Financial Services, which raised the burden of proof in ADEA cases far above that of race or sex discrimination cases under Title VII of the Civil Rights Act of 1964. Since Gross, older workers have been required prove that age discrimination was not just a motivating factor but the decisive factor in an adverse employment action. The Gross decision legalized a broad swath of discrimination that is illegal under Title VII and sent a signal to employers that age discrimination will be tolerated.
“For the life of me,” said Collins, “I don’t understand why there is a higher burden for proving that age discrimination was the reason for the adverse employment action … compared to gender, religion, race.”
The legislators expressed strong support for a bill they are sponsoring, the Protecting Older Workers Against Discrimination Act (POWADA), which would essentially restore the status quo with respect to the plaintiff’s evidentiary burden prior to the Gross decision. The bill has been introduced several times since 2009 but has never made it out of committee to a vote. Sen. Casey, who worked on age discrimination cases as an attorney, said it was always hard for workers to fight back against insidious age discrimination but that it is even harder today “because the Supreme Court weakened the ADEA and we’ve got to fix that.”
A witness at the hearing, Laurie McCann, a senior attorney for the AARP, urged the Committee to hold a series of hearings to learn what changes are needed to update and strengthen the ADEA to adequately protect older workers. “The AARP believes that it is well past time to update and strengthen the ADEA so that it can respond to the challenges facing today’s older workers in today’s workplace,” she said.
As I demonstrated in my 2013 book, Betrayed: The Legalization of Age Discrimination in the Workplace, the ADEA was far weaker than Title VII when it was adopted 50 years ago and it has since been eviscerated by the U.S. Supreme Court. In the book, I proposed repealing the ADEA and making age a protected class under Title VII, as was originally proposed when the passage of Title VII was being debated by Congress.
According to McCann, three in ten near-retiree-age (55-64) households have no retirement savings at all and the median retirement savings of all near-retiree households was only $14,500 in 2013. McCann said financial need is by far the most important reason that workers aged 45-74 work. She blamed age discrimination on persistent negative stereotypes and discriminatory employer recruitment practices, including advertising for “digital natives,” specifying a maximum number of years of experience or limiting recruitment to entry-level positions on college campuses.
Financial need is by far the most important reason that workers aged 45-74 work – AARP.
The committee also issued a report on Wednesday examining the nation’s aging workforce, “America’s Aging Workforce: Opportunities and Challenges.” The report states the number of Americans over age 55 in the labor force is projected to increase from 35.7 million in 2016 to 42.1 million in 2026, and, by 2026, aging workers will make up nearly one quarter of the labor force. The business case for hiring, retaining, and supporting older workers is strong, according to the report, but challenges exist – including age discrimination, inadequate training opportunities, working while managing health conditions and disabilities, balancing caregiving responsibilities with work, and preparing financially for retirement.
Collins said U.S. employers are going to need older workers in the years ahead and can’t afford to “discard skills and experience that older workers bring to workplace.”
Another witness, Lisa Motta, 54, from Pittsburgh, Pa., testified about re-entering the workforce in her 50s after having lost her sight. A former teacher, she now works as a recruiting administrator at PNC Bank. “As America’s workforce grows older, more and more workers will face challenges like these and will need additional supports and accommodations,” Motta said. “They will also need laws in place that ensure that when they walk into an interview they do not face any form of discrimination. When we make it easier for these workers to succeed, everyone benefits.”
Prior to Wednesday’s hearing, the Senate aging committee was criticized for failing to act in the face of the epidemic of age discrimination in the workplace that occurred during and since the Great Recession.
Absent from Wednesday’s hearing was a representative from the U.S. Equal Employment Opportunity Commission (EEOC), which has ignored a major spike in age discrimination complaints dsince 2008 and rampant age discrimination in the federal government, and has issued administrative decisions that reflect a higher standard in age discrimination cases than in race or sex discrimination case.
