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Statement of Chairman Tom Harkin (D-IA) at the HELP Committee Hearing “Ensuring Fairness for Older Workers”

As Prepared for Delivery

“The Committee will come to order.  We have convened this hearing to examine the issue of employment discrimination against older workers and the need, in the face of a very misguided and harmful Supreme Court decision, to enact legislation to ensure that older workers are treated with the fairness they deserve. 

“We will hear today from my fellow Iowan, Jack Gross.  Jack devoted the prime of his life, over a quarter century of loyal service, to one company.  How did the company reward him for his dedication and hard work?  It brazenly demoted him and other employees over the age of 50, and gave his job to a younger employee who was significantly less qualified.

“Over 40 years ago, expressly to prevent this kind of discrimination, Congress passed the Age Discrimination in Employment Act, or ADEA.  Very simply, that act made it unlawful to discriminate on the basis of age.  When Jack sought to enforce his rights under this law, a jury of fellow Iowans ruled in his favor and concluded that age had been a motivating factor in his demotion.

“Yet, when his case was appealed to the Supreme Court, a slim, activist majority of five justices overturned the jury verdict and decided to rewrite the law.

“For decades, the law was clear:  If an employee showed that age was one factor in an employment decision, the burden was on the employer to show it had acted for a legitimate reason other than age.  The Court, however, addressing a question it did not grant cert on, tore up this decades-old standard and imposed a new standard that the Supreme Court itself had rejected in a prior case and Congress had rejected when we enacted the Civil Rights Act of 1991. 

“As a result of the Supreme Court’s ruling, it is now prohibitively more difficult to prove age discrimination.  A victim of age discrimination now bears the full burden of proving that age was not only a motivating factor but the decisive factor.  This extremely high burden radically undermines older workers’ ability to hold employers accountable.  Too many employers are now empowered to discriminate on the basis of age as long as they purport to have some other reason for their decision.  The Court’s decision means too few victims of age discrimination will achieve justice.

“As we will hear today, employers rarely post signs saying ‘older workers need not apply.’  But ageism in the workforce does exist, as Jack and his colleagues know all too well.  Too many American workers who are not yet ready to voluntarily retire find themselves jobless or passed over for promotions because of their age.  Older workers often face stereotypes that they are not as productive as younger workers, that they cannot learn new skills, or that they somehow have a lesser need for income to provide for their families.  Not only are these stereotypes wrong and immoral, they deprive us of the talents and experience of older workers.

“The timing of the Court’s decision is particularly troubling.  Older workers have been particularly hard hit by the tough economy.  According to the Department of Labor, over two million workers over age 55 are unemployed, the all-time high since the Bureau of Labor statistics began matching age and unemployment in 1948.  And, the average duration of unemployment for older jobseekers is twice as long as for other unemployed workers.  Moreover, according to EEOC statistics, more than 45,000 charges of age discrimination were filed in 2008 and 2009, up from about 15,000 a decade ago.

“For decades we have had a consistent standard, whether based on race, sex, national origin, religion or age.  Unfortunately, because of the Court’s decision, there is now a far higher standard of proof for age than for other forms of discrimination.  Why should there be a higher standard for someone who can’t find a job or doesn’t get a promotion because of his or her age, as compared to, say, his or her race or gender.

“Legislation I have introduced, the Protecting Older Workers Against Discrimination Act, would reverse the Court’s deeply flawed decision and restore the law to what it was for decades.  This legislation would make certain that, once again, Jack Gross and all older workers in this country enjoy the full protections of the law.”