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Foxx: H.R. 2062 Enriches Lawyers at the Expense of Workers and Employers

WASHINGTON, D.C., June 23, 2021
Today, Education and Labor Committee Republican Leader Virginia Foxx (R-NC) spoke in opposition to H.R. 2062, the Protecting Older Workers Against Discrimination Act, which is duplicative of existing anti-discrimination statutes and rewards lawyers instead of workers.

Foxx delivered the following prepared remarks on the House floor:
 
"Every worker, including older Americans, should have the law on their side to protect them from workplace discrimination.
 
"The good news is existing federal statutes already prohibit workplace discrimination.
 
"Despite what Democrats may have you believe, 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. I am going to say that over and over and over again today. 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 employment trends for older workers are heading in a positive direction.
 
"In 2018, older workers earned seven 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.
 
"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 a plaintiff 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 the 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 who 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 factor.
 
"Simply put, 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 will also increase 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 non-controversial 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 with that, I reserve the balance of my time."
 
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