House Committee on Education and Labor
U.S. House of Representatives

Rep. Howard P. “Buck” McKeon
Ranking Member

Fiscally responsible reforms for students, workers and retirees.



Committee Statement

May 5, 2010

CONTACT: Alexa Marrero
or Brian Newell
(202) 225-4527

Price Statement: Legislative Hearing on H.R. 3721, the "Protecting Older Workers Against Discrimination Act"

Good morning and thank you, Chairman Andrews. I would like to begin by thanking our distinguished panel for appearing today. We appreciate that they have taken time out of their busy schedules to share their experiences and expertise with us.  

The issue before us is an important one, and, to put it mildly, more than a little complicated – especially for those of us who are not lawyers. But especially when an issue is so complicated – and touching on as important a matter as our nation’s civil rights laws – a close and thorough examination is warranted. 

The bill before us comes in response to last year’s Supreme Court decision in Gross v. FBL Financial Services. In Gross, the Court held that as a matter of the plain language of the statute, a certain standard contained in Title VII of the Civil Rights Act was not applicable to plaintiffs bringing claims of age discrimination under a different statute, the Age Discrimination in Employment Act. 

Now, one can argue whether the Gross case was properly decided by the Supreme Court – it was a narrowly-divided decision, and included a strong dissent. Good minds can and will disagree over whether the majority’s holding was the correct one. What is beyond dispute, however, is that despite its title, “Protecting Older Workers Against Discrimination,” this legislative remedy goes far beyond simply amending the Age Discrimination in Employment Act and reversing the Gross decision. 

Make no mistake, this bill is not simply a “restoration” of where the law stood the day before the Gross case was decided. Instead, the bill before us purports to apply to a vast and undefined range of laws, federal and possibly state, which might be characterized as protecting against employment discrimination, retaliation, or participation in workplace investigations. 

I am deeply concerned that the vague and expansive reach of this law will undo years of settled case law and practice under statutes wholly unrelated to the Gross case, or to the protection of “older” workers. Indeed, in too many ways, this legislation makes broad substantive changes to our nation’s civil rights laws under the facade of narrowly reversing a single Supreme Court case. 

With this in mind, I am interested in hearing from our witnesses what the practical effects of the Gross decision have been, and what the practical application of the bill before us might be. Is the bill properly drafted, or should it be more narrowly targeted? Unintended consequences – what are we overlooking given the broad scope of the bill? And, at the end of the day, will the bill truly protect workers from discrimination, or simply be another boon to trial lawyers?  

Thank you, Chairman, and I look forward to hearing from our witnesses and exploring these matters further in the questioning period.