Protecting Older Workers Against Discrimination Act of 2021

Floor Speech

Mr. Speaker, I rise today in opposition to H.R. 2062, the Protecting Older Workers Against Discrimination Act.

Every worker--every worker--including older Americans should have the law on their side to protect them from workplace discrimination. The good news is that existing Federal statutes already prohibit workplace discrimination.

Despite what Democrats might have you believe, Mr. Speaker, there are a number of laws protecting 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, Rehab Act; and the Americans with Disabilities Act of 1990, ADA, make employment discrimination based on an individual's race, color, religion, sex, national origin, age, or disability unlawful.

My Republican colleagues and I appreciate the stated purpose behind H.R. 2062. Age discrimination is wrong, but the bill before us today is fundamentally flawed and a classic example of a solution in search of a problem.

Age discrimination in the workplace is already illegal. Mr. Speaker, I am going to say that over and over and over today. Age discrimination in the workplace is already illegal.

There is no evidence indicating this bill is necessary. The committee's cursory examination of the bill earlier this year failed to uncover any suggestion that workers have been discouraged from filing discrimination or retaliation charges with the Equal Employment Opportunity Commission, EEOC, the primary agency that enforces Federal laws that make it illegal to discriminate.

Over the last couple of decades, rates of age discrimination charges, a signed statement asserting employment discrimination, filed with the EEOC have remained steady. Additionally, the available data from the Bureau of Labor Statistics show unemployment trends for older workers are heading in a positive direction.

In 2018, older Americans 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.

The legislation we are debating today is another sweeping one-size- fits-all scheme. This ill-advised bill rewards Democrats' favored political friends, disregards real-world workplace experience, and rejects decades of Supreme Court precedent.

Our Nation's uncertain economic times demand pro-growth and pro- worker policies, but House Democrats would rather consider misguided proposals such as H.R. 2062. The Protecting Older Workers Against Discrimination Act stifles job creation and harms small businesses and aging workers at a time when our languishing post-pandemic economy most needs their contributions.

Mr. Speaker, this legislation enriches trial lawyers, not plaintiffs. H.R. 2062 overturns Supreme Court precedent by allowing the plaintiffs to argue that age was only a motivating, not decisive, factor that led to an employer's unfavorable employment action. It allows these kinds of mixed-motive claims across four completely different nondiscrimination laws.

H.R. 2062 also allows mixed-motive claims where the plaintiff alleges the employer has taken action against a plaintiff because of a prior complaint of discrimination. Allowing mixed-motive claims in cases alleging retaliation puts employers in the impossible position of trying to prove that a legitimate employment decision was not in response to a prior complaint.

The only party that will be paid in nearly all mixed-motive cases is the plaintiff's attorneys. We know this will happen because, under the legislation, employers will be able to demonstrate that they would have taken the same action in the absence of the impermissible motivating factors.

Simply put, Mr. Speaker, older Americans, the very people this legislation is purported to help, will in the vast majority of cases receive no monetary damages or other redress under H.R. 2062.

H.R. 2062 also increases frivolous legal claims against business owners. Job creators will spend valuable time and resources battling these undeserving claims, as the Supreme Court pointed out in the 2013 Nassar case. These same resources could be better used to prevent workplace harassment and discrimination.

When H.R. 2062 was considered by the Education and Labor Committee, Republicans offered amendments to address fundamental flaws in H.R. 2062.

We offered an amendment to strike the ill-advised and unworkable provisions allowing for mixed-motive retaliation claims.

We proposed collecting data and evidence to understand how age discrimination and retaliation charges and lawsuits have changed because of Supreme Court rulings.

We attempted to make sure the public understands that even successful plaintiffs under the bill will likely not receive any monetary damages while their lawyers will be paid.

We proposed a noncontroversial clarification to maintain protections for workers with disabilities.

And we tried to clarify the evidentiary standard for proving a claim under the bill.

Unfortunately, our commonsense amendments were defeated by Democrats along party lines.

Mr. Speaker, all workers should be protected from workplace discrimination, and they already are under current law.

H.R. 2062 is a distraction from the real problems plaguing our Nation, like the crisis at the border, over 9 million jobs begging for qualified workers, unaffordable college costs, and runaway economic inflation.

I encourage my colleagues to vote ``no'' on H.R. 2062, and I reserve the balance of my time.

Mr. Speaker, our colleagues on the other side say that workers feel they have been discriminated against. Well, we all have feelings and perceptions that are not accurate. I think my colleague from Illinois pointed out that the data simply does not support the feelings of many people, and I think we understand that in day-to-day life.

My colleagues on the other side of the aisle also contend that the 2009 Supreme Court decision in Gross v. FBL Financial Services has weakened age discrimination protections. They also contend this decision has deterred workers from seeking relief from age bias. But let's look at the data; let's not go on feelings.

In the 11 years preceding the 2009 Supreme Court decision in Gross, the Equal Employment Opportunity Commission, EEOC, the primary agency that enforces Federal laws that make it illegal to discriminate, received an average of 18,548 charges of discrimination per year related to age discrimination. An EEOC charge is a signed statement asserting employment discrimination. Now, in the 11 years following Gross, the EEOC received an average of 19,783 charges per year relating to age discrimination, a slight increase from the previous 11 years.

So, it is obvious from EEOC data that there is clearly no evidence workers have been discouraged from filing age discrimination charges with the agency since the 2009 Supreme Court decision. And we had a Democrat administration during that time and 1 year of a Republican administration.

We also find that age discrimination charges as a percentage of all charges filed with EEOC are approximately the same for the 11 years before and after the Gross decision, 22.4 percent and 22.5 percent, respectively. Again, this does not indicate workers are somehow discouraged from filing age discrimination charges.

Congress should make fact-based decisions, Mr. Speaker, and in this case, the facts do not support feelings or the assertions made by the proponents of H.R. 2062.

Mr. Speaker, Democrats claim H.R. 2062 merely conforms age discrimination and retaliation claims with current law regarding mixed- motive discrimination claims under title VII of the Civil Rights Act.

However, Congress specifically drafted the Age Discrimination in Employment Act, ADEA, to be different from title VII, because age is uniquely different from the characteristics on which title VII prohibits discrimination, namely, race, color, religion, sex, or national origin.

The ADEA states that it is lawful for an employer to take an employment action otherwise prohibited by the statute if the differential treatment is ``based on reasonable factors other than age.''

Notably, this provision is not found in title VII.

The Supreme Court has also explained in several cases why age discrimination differs from other forms of discrimination.

For example, the Supreme Court, in Meacham v. Knolls Atomic Power Laboratory, in 2008, wrote that, ``Congress took account of the distinctive nature of age discrimination and the need to preserve a fair degree of leeway for employment decisions with effects that correlate with age.''

In addition, the Supreme Court, in the 2013 Nassar case, explained why a mixed-motive standard is ill-suited for retaliation claims.

The Supreme Court observed that with regard to mixed-motive standards in retaliation cases, ``lessening the causation standard could contribute to the filing of frivolous claims, which would siphon resources from efforts by employers, administrative agencies, and courts to combat workplace harassment.''

Allowing mixed-motive claims in age and retaliation cases, which H.R. 2062 does, will lead to more frivolous legislation.

We should heed congressional and Supreme Court precedents and vote down H.R. 2062.

Mr. Speaker,

Mr. Speaker, I am going to repeat: Republicans hate discrimination in any form. We particularly do not want any kind of discrimination in the workplace, and we do not want discrimination against older workers.

We know that older workers were excelling in the pre-pandemic economy. According to the Bureau of Labor Statistics, BLS, employment for workers age 65 and older tripled from 1988 to 2018, while employment for younger workers grew by only a third.

The number of employed people age 75 and older nearly quadrupled from 461,000 in 1988 to 1.8 million in 2018.

As the country continues to recover from the COVID-19 pandemic, BLS recently reported that job openings reached a record high of 9.3 million in April 2021, while hiring lags far behind.

Employers are desperate to fill good-paying jobs, but qualified workers are hard to find because of Democrat-enacted policies.

My colleagues on the other side of the aisle continue to paint a bleak picture of job opportunities for older Americans, when, in fact, employment trends for older workers have been positive in recent decades and will continue to improve as the country fully reopens following the pandemic.

According to BLS, in 1998, the median weekly earnings of older, full- time employees was 77 percent of the median for workers 16 and up. In 2018, older workers earned 7 percent more than the median for all workers.

The labor force participation rate for older Americans has been rising steadily since the late 1990s. Participation rates for younger age groups either declined or flattened over this period.

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.

Mr. Speaker,

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Ms. FOXX. Mr. Speaker,

Mr. Speaker, older Americans make vital contributions in the workplace. Committee Republicans are committed to eliminating discrimination in the workplace, rebuilding our sluggish economy, and producing a competitive workforce.

Unfortunately, H.R. 2062 is a destructive and misleading bill that does not protect older workers, and it rewards trial lawyers at the expense of sound public policy. It is Democrats promising deliverance, but delivering disappointment.

This sweeping one-size-fits-all ruse is not the answer, unless Congress decides it wants to benefit trial lawyers at the expense of older American workers.

Mr. Speaker, I strongly encourage my colleagues to vote ``no'' on H.R. 2062, and I yield back the balance of my time.

Mr. Speaker, I rise in opposition to the Democrat amendments.

As I understand it, Representative Brown's amendment requires the EEOC chair to submit five annual reports to Congress on the number of age discrimination claims brought to the EEOC under this act. If H.R. 2062 somehow gets signed into law, these reports will be a day late and many dollars short because the law will have already harmfully reduced the burden of proof in these cases and nullified decades of Supreme Court precedent.

Before discussing my concerns with this amendment, I admit I am puzzled that it requires a study on how this legislation will affect future age discrimination claims when evidence is sorely lacking that there is a need for H.R. 2062 in the first place.

A witness who testified on H.R. 2062 before the Committee on Education and Labor acknowledged that EEOC data has not shown workers are discouraged from filing age discrimination charges with the EEOC following the Supreme Court's 2009 decision in Gross v. FBL Financial Services.

With respect to this amendment, I have concerns about the feasibility and viability of the mandated reports. The amendment requires the EEOC to report each year for 5 years on charges filed with the agency under H.R. 2062.

H.R. 2062 drastically expands liability by allowing mixed motive claims in cases involving the Age Discrimination in Employment Act-- ADEA--and three other statutes. However, when workers file charges with the EEOC, the worker will likely not indicate whether the charge involves mixed motives, nor is EEOC likely to be able to classify charges as being mixed motive or not. EEOC will therefore be unable to determine whether charges have been filed pursuant to H.R. 2062.

I am very doubtful EEOC would be able to comply with this amendment's requirements, and Congress should not include an unworkable mandate on an agency. Congress has enacted significant laws prohibiting employment discrimination, including the ADEA, the Americans with Disabilities Act, the Rehabilitation Act, and the Civil Rights Act, CRA.

Congress purposefully enacted separate nondiscrimination statutes, including the ADEA, because age discrimination involves unique and complex factors, as do the other forms of discrimination addressed in these statutes.

H.R. 2062 overturns Supreme Court precedent, allows a plaintiff to argue that age was only a motivating but not decisive factor that led to an employer's unfavorable employment action. Allowing such mixed motive claims will eliminate the carefully balanced standard Congress adopted when it passed the ADEA, resulting in more frivolous lawsuits.

Here's why: Under H.R. 2062, a plaintiff is very unlikely to receive any monetary award from the defendant because most employers will be able to demonstrate they would have taken the same employment action regardless of the worker's age or other impermissible reasons.

Mr. Speaker,

Mr. Speaker, as I understand it, Representative Williams' amendment requires EEOC to submit a contrived and convoluted report to Congress analyzing disparities that individuals face in pursuing relief under the mixed-motive evidentiary standard. The report must examine age discrimination combined with discrimination based on race, color, religion, sex, national origin, or disability.

This amendment does nothing to address the fatal flaws in the bill that would allow mixed-motive claims in age retaliation and disability cases, which will increase frivolous litigation while not providing any monetary damages for nearly all plaintiffs.

As a practical matter, I question whether EEOC will be able to complete the tortuous analysis proposed in the amendment.

As I noted previously, workers filing discrimination or retaliation charges with EEOC do not indicate whether they involve a mixed-motive claim, and EEOC does not collect this data. A mixed-motive claim is something a plaintiff's attorney adds to a lawsuit.

As such, I am skeptical whether EEOC will be able to find any data relating to mixed-motive claims.

More importantly, the amendment, which was submitted and then amended after the Rules Committee's stated deadline, will not fix the bill's many shortcomings, such as allowing mixed-motive claims in age discrimination and retaliation cases, even though congressional and Supreme Court precedents strongly advise against these changes.

Mr. Speaker, I urge a ``no'' vote on this amendments en bloc, and I reserve the balance of my time.

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Ms. FOXX. Mr. Speaker,

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Ms. FOXX. Mr. Speaker, the only parties who will win in nearly all cases under H.R. 2062 with these amendments, if they are passed, are trial lawyers. Unfortunately, Democrats have chosen to further their pro-trial lawyer agenda by putting forward H.R. 2062, legislation that masquerades as protection for workers.

H.R. 2062 is yet another one-size-fits-all approach that fails to address the purported problem, neglects real-world experiences, and disregards decades of Supreme Court precedent.

These poorly drafted fig leaf amendments in the en bloc do nothing to address the fundamental flaws in H.R. 2062 and place an unworkable mandate on EEOC. I urge my colleagues to oppose them.

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Ms. FOXX. Mr. Speaker, on that I demand the yeas and nays.
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Ms. FOXX. Mr. Speaker, may I inquire how much time I have remaining?

Mr. Speaker, I want to point out to my colleagues on the other side of the aisle that there was a higher percentage of Republicans who voted for the 1964 Civil Rights Act than Democrats, a higher percentage of Republicans voted for the ADEA, the Age Discrimination in Employment Act, and under the ADA. It was President Bush who signed that bill.

So Republicans have a pretty good record on promoting and protecting the civil rights of Americans in this country, all Americans.

Mr. Speaker, for an employer to retaliate against an employee because that employee has previously made a discrimination complaint is wrong and it is already illegal.

H.R. 2062 reduces the standard of proof in retaliation cases by allowing mixed-motive claims, overturning the Supreme Court's 2013 decision in the Nassar case.

Allowing mixed-motive claims in retaliation cases is unworkable and contrary to the text, structure, and history of title VII, the Age Discrimination in Employment Act and the Americans with Disabilities Act.

Justice Anthony Kennedy wrote in the majority opinion in Nassar that in retaliation cases, ``lessening the causation standard could contribute to the filing of frivolous claims, which would siphon resources from efforts by employers, administrative agencies, and courts to combat workplace harassment.''

Justice Kennedy also wrote in his opinion that the concern about diverting resources was especially true because retaliation charges filed with the EEOC had nearly doubled in the past 15 years and had become the second most frequently filed category of complaint.

This concern is even more relevant today because retaliation is now the most frequently filed EEOC charge. All retaliation claims are inherently about differing explanations.

In these situations, the plaintiff has already made a discrimination complaint, and under the mixed-motive standard required under H.R. 2062, it will be a mere formality to plead that any subsequent negative action by the employer related to the employee was retaliatory.

Under H.R. 2062, a plaintiff claiming retaliation will always survive the summary judgment stage of the litigation and the case will either settle or go to trial. This will increase the number of frivolous claims against unsuspecting business owners and impose related financial costs noted in the Supreme Court decision, thus limiting important resources that could otherwise be used to combat discrimination.

Furthermore, there is no evidence to support the claim that employees have been harmed by the Nassar decision.

And, by the way, when employees win lawsuits claiming retaliation under the current standard, they can receive monetary damages, back pay, and reinstatement, as well as attorneys' fees and costs. Under H.R. 2062, this won't happen in nearly all of the cases. Only the trial lawyers will be paid.

Mr. Speaker, my amendment strikes the harmful, overly broad, and unworkable provision in H.R. 2062, which allows mixed-motive claims in retaliation cases.

The amendment protects the current standard of proof as described in the Nassar case, and I urge Members to support it.

Mr. Speaker,

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Ms. FOXX. Mr. Speaker, I urge my colleagues to vote ``yes'' on the amendments en bloc containing Representatives Allen's and Foxx's amendments, and I yield back the balance of my time.

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Ms. FOXX. Mr. Speaker, on that I demand the yeas and nays.

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