WASHINGTON, D.C. | January 15, 2020
This afternoon, the House will consider H.R. 1230, the misleadingly named Protecting Older Workers Against Discrimination Act, which is a one-size-fits-all mandate that rewards trial lawyers at the expense of older Americans and disregards current law, real-world experience, and decades of Supreme Court precedent.
On the House floor, Rep. Virginia Foxx (R-NC), Republican Leader of the Education and Labor Committee, delivered the following remarks (as prepared for delivery):
“Let me be clear: Every worker, including older workers, should be protected from workplace discrimination at his or her job.
“This is why Congress has passed a number of laws to protect 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), makes employment discrimination because of an individual’s race, color, religion, sex, national origin, age, or disability unlawful.
“Although I appreciate the stated purpose behind H.R. 1230, the rushed approach taken by Committee Democrats and the lack of evidence and data to prove that this legislation is needed has led to a seriously flawed bill.
“Careful examination and scrutiny of any legislative proposal is necessary to determine whether it is needed and whether it appropriately and effectively addresses the relevant issues.
“Unfortunately, in developing H.R. 1230, the Committee majority failed miserably in this regard.
“Committee Democrats chose not to hold a single hearing solely dedicated to examining either age discrimination or H.R. 1230; rather they examined this bill during a hearing that covered multiple topics and several other pieces of legislation completely unrelated to the bill.
“As we’ve seen many times during the 116th Congress with other legislation, H.R. 1230 was rushed through the Education and Labor Committee without necessary examination, discussion, or consideration.
“As a result, we’re here debating yet another one-size-fits-all, ‘government-knows-best’ mandate that rewards special interests and disregards real-world workplace experience and decades of Supreme Court precedent.
“However, the flawed process is far from the only issue with this legislation.
“The Committee also has no evidence or data indicating this bill is necessary.
“In fact, the lone Democrat-invited witness who testified on H.R. 1230 at a Committee hearing covering many bills and topics admitted the impact of the Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc. is unknown, and she also admitted there is no data indicating workers have been discouraged from filing age discrimination charges with the Equal Employment Opportunity Commission (EEOC) or bringing cases.
“The data simply does not indicate workers have been discouraged from filing discrimination or retaliation charges with the EEOC.
“Additionally, according to the Bureau of Labor Statistics, employment numbers for older workers have trended upwards in recent decades.
“In 2018, older workers 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 a third. Likewise, over the past 20 years, the number of older workers on full‐time work schedules grew two-and-a-half-times faster than the number working part time.
“Rather than considering misguided proposals such as H.R. 1230 which furthers government intervention, we ought to be empowering all workers, including older workers, to continue participating and thriving in America’s workforce to build upon, not stifle, these impressive trends.
“Unfortunately, H.R. 1230 does the opposite. This legislation will actually harm older workers while simultaneously enriching trial lawyers.
“H.R. 1230 overturns Supreme Court precedent by allowing a plaintiff to argue that age was only a motivating, not decisive, factor that led to an employer’s unfavorable employment action, and it allows these kinds of mixed-motive claims across four completely different nondiscrimination laws.
“Moreover, allowing ‘mixed-motive’ claims in cases alleging retaliation puts employers in an untenable position of trying to prove that a legitimate employment decision was not in response to a prior complaint.
“The only party who will be paid in nearly all mixed-motive cases is the plaintiff’s attorneys, because most employers will be able to demonstrate that they would have taken the same action in the absence of the impermissible motivating factor.
“So, the very people this legislation is intended to help will not receive any monetary damages under H.R. 1230.
“H.R. 1230 will also increase frivolous legal claims against business owners. Such undeserving claims will take valuable resources away from efforts to prevent workplace harassment and discrimination.
“Finally, Committee Republicans offered amendments to advance important priorities and practical solutions for older workers and highlight fundamental flaws in the H.R. 1230.
“Unfortunately, our commonsense amendments were defeated on a party-line vote in committee.
“Mr. Speaker, all workers should be protected from workplace discrimination, but by rushing today’s legislation to the House floor in an attempt to make up for an abysmal first year in the majority, Democrats have failed older workers.”
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