Age Discrimination Gets Attention Of Congress

today's workplace
May 14th, 2010 Ellen Simon
Hearings Held On Federal Discrimination Bill To Overturn Gross Decision


Last week, both the House and Senate held hearings on the Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 3721, S. 1756). The legislation would overturn the awful Gross v. FBL Financials Services, Inc. case decided by the Supreme Court last year. If passed, the bill will apply retroactively to all cases pending on or after June 17, 2009, the date of the Gross decision.
Simply stated, the Gross decision holds age discrimination plaintiffs to a higher standard of proof than other victims of discrimination by requiring them to prove that their age was the “but for” cause of the employer’s adverse decision instead of “a motivating factor.” I predicted, as did others, that Gross would get a Congressional fix and that’s exactly what POWADA does – and more.

Full Story: http://www.todaysworkplace.org/2010/05/14/age-discrimination-gets-attention-of-congress/

NEW: EEOC and DOJ to hold Town Hall Meeting on ADA Proposed Regulations:

From the Equal Employment Opportunity Commission:

The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) Civil Rights Division announce a full-day Town Hall Listening Session, on Friday, October 30, 2009, from 9:00 a.m. to 4:00 p.m. at Liberty Resources, 714 Market Street, Suite 100, Philadelphia, PA 19106. This is one of a series of forums for public input being held throughout the country in coming weeks to obtain direct input from the business/employer communities as well as the disability and disability advocacy community on EEOC's proposed regulations under the ADA Amendments Act of 2008 (ADAAA). Presided over by EEOC's Acting Chair, Stuart J. Ishimaru, Acting Vice Chair, Christine Griffin, and Commissioner Constance S. Barker, as well as DOJ's Deputy Assistant Attorney General for Civil Rights, Samuel Bagenstos, Counsel to the Assistant Attorney General for Civil Rights, Mazen Baswari, and Chief of the Disability Rights Section of the Civil Rights Division, John Wodatch, the Town Hall Listening Session is an opportunity for these officials to hear directly from stakeholders of all perspectives on the proposed regulations. Five-minute time slots to address the panel will be available from 9:00 a.m. to 4:00 p.m. Some of the slots will be available on an advance registration basis and some on first-come, first-served sign up basis at the event. Members of the public are also invited to attend and view the proceedings, with space available on a first-come, first-served basis. As a reasonable accommodation, there will be limited availability to provide public input by telephone. To request this accommodation you must register in advance. Individuals representing themselves or organizations are urged to take advantage of this opportunity to provide input on the EEOC's Notice of Proposed Rulemaking which can be viewed, along with a question-and-answer guide, at www.eeoc.gov. For more information, or to register as a speaker, please contact Ms. Mary Tiernan at 215-440-2671 (TTY 215-440-2610) or at Mary.Tiernan@eeoc.gov Sign Language Interpreters, CART, and assistive listening devices will be available. If you need printed materials in an alternative format please email Elisa.gonzalez.ctr@tma.osd.mil Please let her know what you need and the location (city) of the event you will be attending. Both EEOC and DOJ want to encourage all individuals and organizations who cannot attend this event to make sure you submit comments and attachments electronically at http://www.regulations.gov, the Federal eRulemaking Portal. The ID # is 3046-AA85. Written comments may also be submitted to Stephen Llewellyn, Executive Secretariat, EEOC, 131 M Street, NE., Suite 4NW08R, Room 6NE03F, Washington, DC 20507. Comments may be transmitted by facsimile (``FAX'') machine by dialing (202) 663-4114. (This is not a toll-free number.) Only comments of six or fewer pages will be accepted via FAX transmittal. Comments must be submitted on or before November 23, 2009.
(If your organization submits comments on these proposed regulations, please share them with AAAA. Email comments to: execdir@affirmativeaction.org. Thanks!)

EEOC TO HOLD TOWN-HALL MEETINGS, WORKSHOPS TO ADVANCE HIRING OF WORKERS WITH DISABILITIES

The U.S. Equal Employment Opportunity Commission
PRESS RELEASE
10-7-09

Agency Initiatives Part of Administration-Wide Effort

WASHINGTON – Playing a key part in an Obama Administration-wide effort to advance opportunities for workers with disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) will hold town hall meetings throughout the nation and offer workshops on new federal regulations and hiring procedures.
"The EEOC is pleased to join the President in pressing to enfranchise individuals with disabilities to participate to the fullest extent possible in the American workplace," said Acting EEOC Chairman Stuart J. Ishimaru. "We're proud to play a lead role in the Administration's initiative, and to have the weight of the White House behind this vital effort."
Acting EEOC Vice Chair Christine M. Griffin said, “For too long, Americans with disabilities have been pushed to the rear of the hiring line. The EEOC’s town hall meetings and workshops, in concert with other Administration measures, should position workers with disabilities for a fair chance at a federal job.”
The Office of Personnel Management and the Departments of Labor and Justice will also play major roles in the initiatives, which the President announced Monday as part of National Disability Employment Awareness Month.
The Obama Administration is taking steps to ensure fair and equal access to employment for all Americans, particularly the 54 million people in this country living with disabilities, President Obama announced. “As the nation’s largest employer, the Federal Government and its contractors can lead the way by implementing effective employment policies and practices that increase opportunities and help workers achieve their full potential. We must also rededicate ourselves to fostering an inclusive work culture that welcomes the skills and talents of all qualified employees.”
The EEOC and DOJ's Civil Rights Division will hold four town hall meetings throughout the nation to share information and gather comments about proposed regulations in the recently enacted Americans with Disabilities Amendments Act. Each town hall meeting will consist of two sessions, one for disability advocates and one for the employer community, offering opportunities for both the business and disability communities to comment in person. The meetings will take place by Nov. 20 in Philadelphia, Chicago, San Francisco and New Orleans.
In addition, as part of a Federal Government-wide job fair for people with disabilities during early Spring 2010, the EEOC and other agencies will provide workshops throughout the day on a variety of topics involving reasonable accommodations for Federal workers and applicants. At the job fair, people with disabilities should be able to register, submit materials and perhaps get hired on the spot.
The Administration initiatives follow EEOC action last month to expand opportunities for people with disabilities by returning the ADA to the broad and strong civil rights statute that Congress originally intended it to be, and smoothing the road for those seeking protection under the ADA.
On Sept. 16, the EEOC approved a Notice of Proposed Rulemaking (NPRM) revising its regulations to provide that an individual seeking protection under the ADA establish that he or she has a disability consistent with the original, expansive intent of Congress when it enacted the statute in 1990. The NPRM carries a 60-day period for public comment.
The EEOC is responsible for enforcing Title I of the ADA, which prohibits employment discrimination against individuals with disabilities. The statute requires employers to make reasonable accommodations to employees and job applicants with disabilities—defined as people with mental or physical impairments that substantially limit a major life activity, persons with a record of a disability, or who, while not actually disabled, are regarded as disabled.
The ADA Amendments Act, which went into effect Jan. 1, 2009, states that Congress expects the EEOC to revise its regulations to conform to changes made by the Act, and expressly authorizes the EEOC to do so.
Consistent with the ADAAA, the NPRM emphasizes that the definition of disability -- an impairment that poses a substantial limitation in a major life activity -- must be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA, and should not require extensive analysis; that major life activities include “major bodily functions”; that mitigating measures, such as medications and devices that people use to reduce or eliminate the effects of an impairment, are not to be considered when determining whether someone has a disability; and that impairments that are episodic or in remission, such as epilepsy, cancer, and many kinds of psychiatric impairments, are disabilities if they would “substantially limit” major life activities when active. The regulation also provides a more straightforward way of demonstrating a substantial limitation in the major life activity of working, and implements the ADAAA’s new standard for determining whether someone is “regarded as” having a disability.
The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

EEOC HEARING HIGHLIGHTS “DEVASTATING IMPACT” OF AGE DISCRIMINATION PANELISTS URGE REGULATORY AND LEGISLATIVE ACTION

U.S. Equal Employment Opportunity Commission
Press Release
7-15-09

WASHINGTON – Highlighting the “devastating impact” of age discrimination, the U.S. Equal Employment Opportunity Commission (EEOC) today held a public hearing on recent developments under the Age Discrimination in Employment Act (ADEA), including the effect on older workers of widespread layoffs, threats to employee benefits, and controversial recent court decisions. The Commission will consider expert panelists’ proposals for regulatory and legislative action, and today issued a technical assistance document on waivers as part of severance agreements.
“Whether trying to retain or obtain a job, older workers may find themselves susceptible to unlawful age-based stereotypes and discrimination,” said Acting EEOC Chairman Stuart Ishimaru. “Employers’ conscious or unconscious stereotypes about older workers may cause them to underestimate the contributions of these workers to their organizations. As a result, older workers may be disproportionately selected for layoffs during reductions-in-force. To then make matters worse, evidence suggests that older workers who lose their jobs may have more difficulty finding another job than their younger counterparts, due to age discrimination.”
These conclusions were substantiated at the hearing by the testimony of a variety of experts in age discrimination law and policy. The expert panelists testified in detail about the damaging effect of age stereotyping and recent judicial decisions that have curtailed the ability of older workers to successfully challenge age discrimination. These cases include Kentucky Retirement Systems v. EEOC and Gross v. FBL Financial Services, Inc.
The experts also proposed – and urged – a variety of potential enforcement and policy solutions to counteract these adverse judicial decisions, such as issuing regulations to fully define the components and burdens of pleading and proof of the reasonable factor other than age defense in the ADEA; developing policy guidance to make uniform the relevance and weight of ageist comments; and using the EEOC’s rulemaking authority under the ADEA to clarify the factors announced by the Supreme Court in the Kentucky Retirement case. They also said that legislative action was essential to ensure that the ADEA was a meaningful enforcement tool.
Commissioners pledged to consider the experts’ suggestions and to take steps to provide additional regulatory and policy guidance.
Plaintiffs from recent ADEA cases also testified at the hearing, putting a human face on the problem. John Stannard, a plaintiff in Meacham v. KAPL, testified that he believed he was selected for layoff due to “the false stereotype which characterizes older workers as less flexible and critical.” Losing his job after 27 years of excellent work, Stannard said, he found himself “in desperate need of money, [and] took the only job readily available, which was a janitor position at KAPL. I was cleaning the wastebaskets of my former colleagues. . . I was very humiliated.”
Ishimaru said witnesses’ experiences demonstrated “first and foremost, the devastating impact that age discrimination can have on a person. What’s more, their experiences underscore that age discrimination is an equal opportunity plague. It is not limited to members of a particular class or a particular race. It is not limited to particular industries or particular regions. And it is not limited to a particular gender.”
Panelists included:
Professor Michael A. Campion, Professor of Management at Purdue University.
Cathy Ventrell-Monsees, President of Workplace Fairness, a non-profit organization dedicated to educating workers about their employment rights; and a veteran employment discrimination attorney.
Rae Vann, General Counsel of the Equal Employment Advisory Council and a partner at Norris, Tysse, Lampley & Lakis, LLP.
Michael Barnes, John Stannard, and Dennis Halfhill, workers who were the victims of age-based policies and practices.
Anna Park, EEOC’s Regional Attorney for the Los Angeles District; and Nancy Edmonds, EEOC Senior Trial Attorney in the Indianapolis District Office, who both have extensive experience litigating ADEA cases.
Laurie McCann, a Senior Attorney with the AARP Foundation Litigation Team.
Eric Dreiband, a partner at Jones Day, and former EEOC General Counsel.
The EEOC’s technical assistance document explains terminated employees’ rights and obligations when offered severance pay in exchange for a waiver of discrimination claims. The EEOC issued the document following a significant spike in age discrimination charges, and amid increased layoffs involving waivers of rights. The document, in straightforward Q&A format, is posted on the EEOC’s website at www.eeoc.gov/policy/docs/qanda_severance-agreements.html.
The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.