Senate Committee Advances Protecting Older Americans Act

A bill to prohibit forced arbitration of age discrimination cases advanced out of the Senate Judiciary Committee on May 9 with bipartisan support. The bill would let employees elect to go to arbitration. We’ve gathered articles on the news from SHRM Online and other outlets.

Bill’s Provisions

The committee voted 15-6 to advance the Protecting Older Americans Act, which was introduced last year by lawmakers led by Sens. Kirsten Gillibrand, D-N.Y., and Lindsey Graham, R-S.C. The measure, which now heads to the full Senate, would invalidate the forced arbitration clauses of age discrimination claims present in many employee contracts.

The bill states, “At the election of the person alleging conduct constituting an age discrimination dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case [that] is filed under federal, tribal or state law and relates to the age discrimination dispute.”

“More and more Americans in the workforce are aging, and I want to make sure that if they feel they’re wronged, they have a place they can go to make their claim,” Graham said during the bill markup.

However, Sen. John Cornyn, R-Texas, said he is worried the measure could be a “slippery slope” that chips away at alternatives for resolving legal disputes. Arbitration “may well be the only way that people with ordinary means can ever have their dispute resolved,” he said.

All the committee Democrats and, in addition to Graham, Republican Sens. Chuck Grassley, Iowa; John Kennedy, La.; and Josh Hawley, Mo., voted in favor of the bill.

(Courthouse News Service, Congress.gov, and Bloomberg)

Bill’s Announcement

In announcing the Protecting Older Americans Act last year, Gillibrand and Graham were joined by Sen. Dick Durbin, D-Ill.; Rep. Nancy Mace, R-S.C.; and former Fox News host Gretchen Carlson, who worked together to help pass the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act in 2022. At the signing of that piece of legislation into the law, President Joe Biden said, “There will be cases where victims want their claims resolved in private, but some survivors will want their day in court, and that should be their choice and nobody else’s choice.”

(Axios)

Supreme Court Ruling on the ADEA

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against people ages 40 or older, the fastest growing segment of the U.S. employment population. A 2009 Supreme Court interpreted the ADEA as imposing a much higher burden of proof on workers who allege age discrimination than on those who allege discrimination based on race, color, national origin, religion, or sex under Title VII of the Civil Rights Act of 1964.

“This court has never applied Title VII’s burden-shifting framework to ADEA claims and declines to do so now,” the court said. “When conducting statutory interpretation, the court must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination."

The court added, “Unlike Title VII, which has been amended to explicitly authorize discrimination claims where an improper consideration was a motivating factor for the adverse action, the ADEA does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor.”

SHRM President and Chief Executive Officer Johnny C. Taylor, Jr., SHRM-SCP, said on the “TODAY Show” on April 26 that hiring older workers is not just the right thing to do and should not only be done because age discrimination is illegal. Rather, hiring older workers is a necessity.

(SHRM Online, Gross v. FBL Financial Services, Inc., and SHRM Online)