Congress Gears Up its Legislative Efforts in its Fight Against Age Discrimination

Published in Woonsocket Call on March 3, 2019

With the 116th Congress beginning on January 3, 2019, Congress moves quickly to protect older Americans from rampant age discrimination. It is a key reason why Americans, age 40 and over, are fired or offered buyouts (with younger persons being hired in their place) and why they can’t find work after a period of unemployment and struggle to return to the workforce.

On Valentine’s Day, U.S. Sen. Bob Casey (D-Pa.), Ranking Member of the Special Committee on Aging, with cosponsors Sens. Chuck Grassley (R-Iowa), Patrick Leahy (D-Vt.) and Susan Collins (R-Maine) re-introduced S 485, The Protecting Older Workers Against Discrimination Act (POWADA). The bill was referred to the Senate Committee on Health, Education, Labor and Pensions.

Fixing a Supreme Court Ruling

Over a decade ago, a U.S. Supreme Court ruling in Gross v. FBL Financial Services weakened the Age Discrimination in Employment Act (ADEA) by imposing a significantly higher burden of proof on older 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. This sent a clear signal to employers: some age discrimination is perfectly fine.

Enacting the bipartisan POWADA bill would restore the pre-Gross standard, recognizing once again the legitimacy of so-called “mixed-motive” claims in which discrimination is a, if not the deciding, factor. It would also reaffirm that workers may use any type of admissible evidence to prove their claims.

Rep. Bobby Scott (D-Va.), Chairman of the House Committee on Education and Labor and seven original cosponsors have introduced a House companion bill, H.R. 1230. Scott’s bill should get traction in the House because it’s referred to his committee.

Rep. David Cicilline (D-R.I), who serves on the House Seniors Task Force, has requested to be added as a cosponsor. “There is no place for age discrimination in this country,” says Cicilline, when explaining his support for POWADA. With the Rhode Island congressman recently being elected to House leadership, taking the position of Chairman of Democratic Policy and Communication Committee, the bill will most certainly get attention.

Here is a sampling of organizations that are lining up to support POWADA: AARP, American Association of People with Disabilities, Leadership Conference for Civil and Human Rights, National Employment Law Project, National Employment Lawyers Association, and National Partnership for Women and Families and Paralyzed Veterans of America.

Efforts Begin in 116th Congress to Tackle Age Discrimination

“As a lawyer I worked on age discrimination cases, and I relied heavily on the ADEA to help workers fight back,” said Casey in a statement released when the bill was thrown into the legislative hopper. “More Americans are continuing to work until later in life and we must recognize and address the challenges they face. We must make clear to employers that no amount of age discrimination is acceptable, and we must strengthen antidiscrimination protections that are being eroded,” said the Pennsylvania Senator.

“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 Jack Gross don’t face discrimination due to age,” said Grassley, who served as Chair of the Senate Aging Committee from 1997-2001.

“No matter whether it is a determinative or contributing factor in an employment decision, discrimination is wrong and should be treated as such. I am proud to once again cosponsor legislation that reinforces these fundamental rights for our nation’s seniors,” says Leahy.

Adds, Senator Collins, current Chair of the Senate Aging Committee, “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.”

Adds, Virginia Congressman Scott, who introduced the House companion measure, “Discrimination shuts too many people out of good paying jobs. All Americans – regardless of their age – should be able to go to work every day knowing that they are protected from discrimination.”

AARP Calls for Congress to Act

“We commend these lawmakers for sponsoring this crucial legislation,” said Nancy LeaMond, AARP Executive Vice President and Chief Advocacy & Engagement Officer. “Too many older workers have been victims of unfair age discrimination and are denied a fair shake in our justice system. The time for Congress to act is now.”

According to AARP, the legislation is especially needed with the graying of the nation’s workforce. By 2022, 35 percent of the U.S. workforce will be 50 or older, and workers age 65-plus are the fastest growing age group in the workforce. Three in five older workers report they have seen or experienced age discrimination in the workplace. POWADA would restore the ADE’s longstanding protections and fix the same problem under two other civil rights laws.

An AARP survey, “The Value of Experience: Age Discrimination Against Older Workers Persist,” published in 2018, found that older workers still face discrimination at their workplace.

The researchers noted that more than 9 in 10 of these older survey respondents say they see age discrimination as somewhat or very common. At work, more than 61 percent report they’ve seen or experienced age discrimination on the job, and of those concerned about losing their job in the next year, 34 percent list age discrimination as either a major or minor reason. Only 3 percent report they have made a formal complaint to a supervisor, human resource representative, another organization or a government agency.

On the job hunt, almost 44 percent) of older job applicants say they have been asked for age-related information from a potential employer.

The older AARP survey respondents would support the recently introduced POWADA, too. Nearly 59 percent strongly supported strengthening the nation’s age discrimination laws.

We need vigilance at every regulatory level and awareness and compliance in every workplace,” says AARP Rhode Island State Director Kathleen Connell. “Most workers reach a point in their lives when society wants to diminish their relevance and dismiss their knowledge and abilities by simply adding the prefix ‘older-’ to worker or employee. It’s not acceptable and can be proven to be unlawful. I would add that is can be disturbing to many others in the workplace. We all get older every day. No one – even younger workers – should be comfortable thinking it is okay to deny employment, harass or terminate someone on the basis of age.

“The problem goes beyond hiring and firing or being denied a promotion over a younger, less capable co-worker,” Connell added. “Day to day negative comments that point to age or suggest someone should just retire ‘and give someone younger a chance to advance’ also can make people feel disrespected and vulnerable. POWDA is important because it codifies the notion we all have to take this as seriously as other, more familiar, types of workplace discrimination.

“Age discrimination is a big part of AARP’s effort to ‘Disrupt Aging,’” Connell Concluded. “As promised at http://www.aarp.org/DisruptAging (and in CEO Jo Ann Jenkins’ book of the same title), AARP ‘will celebrate all those who own their age. We will hold a mirror up to the ageist beliefs around us. We will feature new ways of living and aging, and the products and solutions that make this possible. We will partner with companies and communities to create new solutions that work for all of us at any age. And we will get this story — our story — out there. It’s time to change the conversation.’

“Society as a whole needs to be a part of this change. Everyone will benefit now and when they are … older.”

Third Time’s the Charm

In 2009, the initial POWADA bill was introduced in the Senate chamber by Grassley and Sen. Harkin (D-Iowa). No action was taken. In 2015 Casey and Sen. Mark Kirk (R-Illinois) reintroduced it. Again no action was taken. Now, with the POWADA bill again being reintroduced this month, Congress now has the opportunity to make the needed legislative fix to a Supreme Court ruling to restore protections of the ADEA to older workers. Congressional action will put the brakes to an epidemic of age discrimination complaints. Those pushing for passage express the hope that “The third time is the charm.” Yes, it is finally time to pass POWADA once and for all.

Any individual who believes that they have been or are being the victim of age-related employment discrimination can call the RI Commission for Human Rights at (401) 222-2661 or visit the office at 180 Westminster Street, 3rd floor, in Providence, to talk with staff to file a complaint.

Herb Weiss, LRI’12, is a Pawtucket writer covering aging, healthcare, and medical issues. To purchase Taking Charge: Collected Stories on Aging Boldly, a collection of 79 of his weekly commentaries, go to herbweiss.com.

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AARP Takes A Look at ‘Value of Experience’ of Older Workers

Published in the Woonsocket call on August 12, 2018

Given employers’ need for talent and experience, Oak Hill resident Henry Rosenthal, 67, with five decades in the workforce, readily agrees with AARP views that it’s a sound business decision to hire experienced workers, as supported by the findings of AARP’s recently released survey, The Value of Experience: AARP Multicultural Work and Jobs Study. The AARP report includes insights on workers, employers, and age bias, a hurtle Rosenthal had to overcome in finding reemployment after being unemployed for two years in his sixties.

AARP’s in-depth survey was conducted online in September 2017 to a national sample of 3,900 adults ages 45+ who were working full-time, part-time, or looking for work.

According to the results of AARP’s survey of experienced workers released on August 2, 2018, nearly 9 in 10 continue to work for financial reasons, but approximately 8 in 10 either enjoy or feel useful doing their job. And among those who plan to retire, over 1 in 4 plans to start a business or earn money in some independent way, including freelancing and contract work, teaching others, selling hand-made goods, and providing home services such as house cleaning and cooking.

“With rich work histories, varied experiences and expertise, older workers want to work, they’re ready to work, and they need to work,” said AARP Vice President of Financial Resilience Susan Weinstock. “More employers are looking for qualified candidates and experienced workers should have the opportunity to be judged on their merits, rather than their age,” says Weinstock.

To highlight job opportunities among 50-plus workers, AARP launched an employer pledge for companies who hire workers based on ability, regardless of age. Since 2013, 650 employers have signed AARP’s pledge. AARP also continues to educate employers about the value of older workforce and the positives of having multigenerational employees.

“According to government data [from the U.S Department of Labor Statistics,] workforce participation rates for older workers exceed participation before the Great Recession, while younger worker participation is below pre-recession numbers,” added Weinstock. “While employment trends for older workers are favorable, with 27.9% of 55-plus workers suffering long-term unemployment compared to 18.1 percent of 16-54 workers, the long-term unemployment disparity suggests that entrenched age-bias still exist too often in the workplace,” she says.

Age discrimination Still Around

Findings from AARP’s survey, The Value of Experience, show that many experienced workers still face the barrier of age discrimination in their job hunt or at their place of employment. More than 9 in 10 workers see age discrimination as somewhat or a very common occurrence.

Specifically, the AARP survey found that at work, more than 6 in 10 older workers (61 percent) report they’ve seen or experienced age discrimination in the workplace, and of those concerned about losing their job in the next year, one-third (34 percent) list age discrimination as either a major or minor reason. But only 3 percent of the survey respondents say that they had made a formal complaint to their supervisor, to Human Resources or a government agency

Age discrimination becomes more noticeable to those turning age 50 and over. Fifty four percent of those surveyed believe that age discrimination starts on that major age milestone, 28 percent at age 60. Ageist comments from either a boss or coworker are the most visibly frequent type of discrimination reported by the survey respondents.

According to the AARP survey, both employed workers and those who were unemployed looking for work viewed age discrimination as the key reason why they did not think they could find employment within three months.

On the job hunt, almost half (44 percent) of older job applicants say they have been asked for age-related information, such as birth date and graduation date, from a potential employer.

Over 90% of older Americans surveyed by AARP supported strengthening the nation’s age discrimination laws— nearly 6 in 10 (59 percent) strongly support a change and 32 percent somewhat agree they should be improved.

With 2017 marking the 50th Anniversary of the nation’s Age Discrimination Act of 1967, AARP’s new survey findings are timely as America’s workforce is aging and an increasing number of older workers report their age keeps them from becoming gainfully employed or underemployed.

A Personal Note:

Looking back, Rosenthal, says of his two-year job search, in 2015 after being laid off, he experienced age discrimination. “Having been interviewed by numerous Human Resource professionals, they just seem incapable of understanding that the years of experience someone has gained is an asset. They seem unable to appreciate that knowledge, experience, and even skills acquired over a lifetime can be transferred and used in virtually any organization or business,” he says.

Rosenthal says, “there is a higher probability of age discrimination occurring when company management, human resource professionals, and recruiters interview applicants older than themselves.” Like many older job seekers, he believes that decision-making executives are uncomfortable with overseeing older workers and rather than deal with them, they don’t just hire them.

Rosenthal, now gainfully “under employed,” views his older contemporaries as being “more stable, reliable, have better work ethics and generally make great employees, in line with AARP’s philosophy that Corporate America should value the experience of older workers. With the difficulty in finding employment Rosenthal believes that companies have not figured this out yet. “What a terrible waste of human capital,” he says.

AARP says its survey findings reveal that “older workers believe that age discrimination should be taken just a seriously as other forms of discrimination, and support strengthening the laws to ensure that it is.”

But, Rosenthal says that while combating age discrimination by strengthening the laws, real change can only occur by changing “our cultural attitudes.” Other cultures value their elders but here in America’s we don’t,” he says.

For a copy of AARP survey findings, go to http://www.aarp.org/content/dam/aarp/research/surveys_statistics/econ/2018/value-of-experience-chartbook.doi.10.26419-2Fres.00177.003.pdf.