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Meeting of November 17, 2010 - Impact Of Economy On Older Workers

TRANSCRIPT

PRESENT:

JACQUELINE A. BERRIEN Chair
STUART J. ISHIMARU Commissioner
CONSTANCE S. BARKER Commissioner
CHAI R. FELDBLUM Commissioner
VICTORIA A. LIPNIC Commissioner

ALSO PRESENT:

P. DAVID LOPEZ General Counsel
PEGGY R. MASTROIANNI Associate Legal Counsel
BERNADETTE B. WILSON Program Analyst

TABLE OF CONTENTS

Call to Order

Announcement of Notation Votes

The Pressing Problem of Age Discrimination in Today's Economic Times

Panel 1: Impact of the Economic Crisis on Older Workers

William Spriggs, Assistant Secretary
for Policy, Department of Labor

Opening Statements of the Commission

Chair Berrien
Commissioner Ishimaru
Commissioner Barker
Commissioner Feldblum
Commissioner Lipnic

Panel 1: Impact of the Economic Crisis on Older Workers (continued)

P. David Lopez, General Counsel, EEOC

Jessie Williams, Class Member in EEOC v. Republic Services

Panel 2: Legal Issues

Mary Anne Sedey, Partner, Sedey Harper PC, and Immediate Past President of Workplace Fairness

Michael Foreman, Professor, Pennsylvania State University Dickinson School of Law

R. Scott Oswald, Principal, The Employment Law Group

Panel 3:

Deborah Russell, Director of Workhouse Issues, American Association of Retired Persons

Cornelia Gamlem, Society of Human Resource Management

Adjournment

P R O C E E D I N G S

9:35 A.M.

CHAIR BERRIEN: Good morning everyone. We'll call this meeting of the Equal Employment Opportunity Commission to order. Thank you all for being here.

In accordance with the Sunshine Act, this meeting is open to public observation of the Commission's deliberations and voting.

And at this time, I'm going to ask Bernadette Wilson of the Office of Executive Secretariat of the Commission to announce any notation votes that have taken place since the last Commission meeting.

Ms. Wilson?

MS. WILSON: Good morning, and before we begin, I'd like to ask if there's anyone in need of interpreter services? Okay, good morning again, Madam Chair, Commissioners, I'm Bernadette Wilson from the Executive Secretariat. We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting and we ask that you carry on any conversations outside the meeting room, departing and re-entering as quietly as possible. Also, please take this opportunity to turn your cell phones off or to vibrate mode.

I would also like to remind the audience that in case of emergency, there are exit doors to the right and left as you exit this room. Additionally, the rest rooms are down the hall to the right and left of the elevators.

During the period October 16, 2010 through November 15, 2010, the Commission acted on six items by notation vote:

Approved obligation of funds for a financial system support services contract;

Approved amicus participation in two cases;

Approved the final rule implementing Title II of the Genetic Information Non-Discrimination Act;

Approved a Notice of Proposed Rulemaking amending regulations to include GINA Recordkeeping Requirements; and,

Approved a resolution honoring Melvin J. Hardy on his retirement.

CHAIR BERRIEN: Thank you, Ms. Wilson. And again, I want to thank everyone who has made the effort to be with us today and particularly our esteemed panelists who have, in some instances, traveled from out of state, but in any event are spending time to participate in this proceeding and to prepare for it and we appreciate that.

Each panelist will have up to ten minutes for oral testimony. The panelists have also submitted written testimony which is, in many cases, longer than their oral testimony and it will be available on the EEOC's website, www.eeoc.gov.

We will be using timing lights for the panelists' testimony and for the Commissioners' question and answer sessions. The yellow warning light will go on when one minute remains. The red light will indicate when time has expired.

I want to take one moment now to just clarify a procedure for today. Due to a scheduling conflict, our first panelist, Dr. William Spriggs, will need to leave immediately after testifying. And in order to accommodate his schedule, my colleagues have graciously agreed to defer opening statements until after his presentation. Thus we will begin with Dr. Spriggs' testimony, followed by questions from the Commissioners or comments and statements from all Commissioners concerning his testimony. The opening statements of Commissioners will follow the round of questions to Dr. Spriggs, but precede the remarks of our second panel.

Dr. Spriggs, welcome to the Commission. Dr. Spriggs is the Assistant Secretary for Policy with the United States Department of Labor, a distinguished scholar, and accomplished teacher, and an experienced public servant. We are very appreciative of your time in joining us today for this meeting. Thank you.

DR. SPRIGGS: Thank you very much, Chair Berrien, and thank you very much, Commissioners. I do apologize with my scheduling conflict. I really had wanted to be able to join you for the whole morning session, so I apologize for that.

I'm going to limit my comments to the employment situation of older workers and I'll give you a little bit of statistics on the financial security of these workers that seems to be influencing the labor market situation for older workers at this time.

We are all familiar with the current business cycle, the "Great Recession", as we have come to tab it, officially ended, according to the National Bureau of Economic Research, in June of 2009, after an 18-month downturn in the economy. This is the longest economic downturn since World War II. Just to put it in perspective, if you had three recessions and rolled them up into one, that's what this one was like.

For most American workers, however, the persistent high unemployment rate means that there is no sense that the recession has ended, it continues. So no matter the indicator, the labor market activity that you want to consider, the labor market is the worst since the 1940s.

The passage of the Recovery Act in March of 2009 immediately put more money in the pockets of Americans through the largest tax cut to middle class Americans ever, and stabilized state and local budgets by dramatically increasing federal support for education, public safety, and Medicaid. The result was that we halted the job losses that began in December 2007, and since 2010, we have added 1.1 million private sector jobs to the economy. Unfortunately, there are still nearly five job seekers for every job opening, and the unemployment rates are at an unacceptable level of 9.6 percent.

The unemployment rate for all major subgroups has reached historic highs, especially for youth. In December 2007, the Seasonally Adjusted Unemployment Rate for workers between 16 and 24 stood at 11.8 percent. By April 2010, it had risen 7.8 percentage points to 19.6 percent, roughly a 60 percent increase.

In October of this year, the unemployment rate for older workers, those 55 and older, was 6.8 percent, a statistic that seems reassuring because it is lower than the national average. And while unemployment rates for men 55 and over tends to be a little higher than for those 45 to 54 during the last two years, that has been a little less than for those 45 to 54.

Let me put those numbers in some context, however. Older workers are also confronted, even though they have lower than the national unemployment rate, are confronted with record levels of unemployment. Unemployment for workers 55 and older rose from a pre-recession low of 3 percent in November of 2007, to reach 7.3 percent in 2010, making the past 22 months one of the longest spells of high unemployment workers in this age group have experienced in 60 years. Unemployment rates reached all time highs for older men and women. We only started doing monthly data in 1948. Many of you think of the Great Depression, but we don't have records for the Great Depression. In August, men 55 and over, their unemployment rate was 8.4 percent; women 55 and older, was 6.9 percent. Both of these are the highest in 60 years.

One of the differences for older workers is that they are experiencing a longer duration of unemployment than is true for younger workers, even though they have a lower unemployment rate. The longer duration of unemployment for older workers is reflected in the higher proportion of the unemployed, who have been jobless for an extended period. For example, more than half of unemployed job seekers, 55 and older, have been unemployed 27 weeks or longer compared to 30 percent for those who are 16 to 24, and 48 percent for those 25 to 54. Workers age 55 to 64 have an average duration of unemployment of 44.6 weeks.

Now structural and cyclical changes in the U.S. economy have contributed to this weakened labor market and has contributed to the increase in the displacement of workers. The Displaced Workers Survey that the BLS does happens to have coincided with this downturn, so looking at workers who were displaced during the 2007-2009 economy; we are able to see that we reached for that series record number of displaced workers who are still unable to find jobs.

The disturbing part is that for workers who are over 55, their displacement rates were the highest. The other disturbing factor is that while for younger workers, displacement seemed to be more likely the case that a plant closed or was relocated while for older workers, it was more likely that their position was done away with or their shift was done away with.

Older unemployed workers in most cases, while they have an extensive work history and attachment to the labor market, you would think would want to be in the labor force. They have extra pressures that have kept them in the labor force so that the declines we have seen in the labor force participation have not materialized in these last couple of years.

They are also a bigger share of the population, so that we are more dependent on older workers than we have been in the past. The growth of the older workforce compared to the younger workforce has been quite dramatic.

Since last month, the labor force participation rate in the United States fell to 64.5 percent. This is the lowest rate since 1984, the last major downturn in the economy.

Now when you look at older workers and try and figure out why are they still in the labor force at the rates that they are showing, there are a number of factors. One of those is the access to health care. Fortunately, we have passed health care reform. This will help some, but clearly one of the problems is that older workers are finding access to health care far more difficult. The rate at which they are showing up as uninsured has been escalating in the last 12 years.

The other problem faced by older workers, and goes hand-in-hand with the cause of this "Great Recession", has to do with their life savings, both in terms of what has happened to the housing stock and what has happened to the value of their pension funds. So while many workers in the past were able to achieve a certain level of retirement security through employer-sponsored pension plans, low and middle income workers often lack access to these plans now and more of them are in defined contribution plans so they have suffered from the downturn of the stock market that occurred with this downturn.

So with this lack of income security, with the lack of access to health insurance; we have an older work force that now faces financial insecurity that has not been typical and was part of the reason why workers were able to leave the labor force before.

The debt level faced by workers is another huge concern that we have, so not just that their assets went down, but during the expansion of the 2000s; the debt level of American workers went up. So these workers have been squeezed both from the loss of health security, retirement security, but facing more debt, and unfortunately now, a very week labor force.

So let me conclude there and take any of your questions.

CHAIR BERRIEN: Thank you very much, Dr. Spriggs. And we'll turn first to Commissioner Ishimaru for questions.

COMMISSIONER ISHIMARU: Thank you, Madam Chair. I don't have any questions. I wanted to thank you, Dr. Spriggs, for coming. We've known each other for a long time and I'm delighted that you're at the Department of Labor. You're doing a fabulous job and I want to commend you on the work you're doing.

I am struck by the last few comments you made about income security going down and health security going down, and retirement security going down, and the changes that have happened over the course of our lifetimes where people's expectations are no longer met and how that impacts on the employment prospects for older workers; and I hope we can call on you for your expertise and the Department's expertise in the months ahead. Thank you again for testifying.

DR. SPRIGGS: Thank you.

CHAIR BERRIEN: Thank you. Commissioner Barker?

COMMISSIONER BARKER: I have to figure out how to turn on this little microphone. I don't have any other questions. Thank you again, Dr. Spriggs, very interesting statistics. We appreciate your providing this to us, thank you.

CHAIR BERRIEN: Thank you. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you. What do you see as the role, the appropriate role of sort of the interaction between Department of Labor on this issue in terms of older workers in the economy and the EEOC? In other words, I mean we're two very different agencies; you're an executive agency and we're an independent agency; you've got a very broad mandate; we've got a very targeted one, what do you see as the appropriate interaction between our agencies?

DR. SPRIGGS: Well, we have two different toolbox sets. One of our major toolbox sets is our ability to train America's workers. And we've developed a lot of attention on trade adjustment assistance and on trying to help displaced workers get retooled, ready for the new labor market. Some of the workers who are 55 and older, who have been displaced, aren't going to be able to get some of those jobs back and we have been aggressive in trying to do it from that side.

On the other hand, the disturbing statistic that among older workers; it's more likely that they were displaced because their position was eliminated. That raises the specter that it's possible that there's discrimination which you have tools to handle that we don't in the Department of Labor. So I think understanding whether that's a statistical fluke that older workers are more likely to have been displaced because their positions were eliminated, whether they just happen to be in the parts of companies where in a downturn that makes them more vulnerable; I think those are inquiries that are outside of our toolbox to solve. So I think we could complement each other in trying to address the dilemmas that older workers face.

COMMISSIONER FELDBLUM: I guess we can see the light. Can you give me a sense -- I had followed Betsey Stevenson's work before, now it’s Chief Economist, Department of Labor. I've been very impressed with a lot of the stuff that she's done. Can you give me a sense of how you interact with her on how the economists work and then again, I'm just wondering whether there's anything within the realm of what's appropriate that we could benefit from?

DR. SPRIGGS: Well, we work very closely with the Chief Economist Office. It used to be part of the Office of Policy, so -- and our offices are almost next to each other, so we work constantly together. I think there are lots of things we could think about doing together to look at both the displacement and then problems of re-employment. Again, if problems of re-employment, this longer duration is the result of discrimination; that's again something outside of our tool set. But I think that we could share both the results of the evaluations we've been doing on our job training, looking specifically at those evaluation results for older workers and then maybe we could do something together to ferret out what tools would help place older workers at a higher rate.

COMMISSIONER FELDBLUM: And the last thing I'll just note because I just read a -- she did an interesting blog Q and A in the New York Times where she had talked a fair amount about workplace flexibility and I know we're going to be hearing about that later today. Just something that I think about is how much of our mandate is completely focused on stopping discrimination, which I think -- is the mandate, and we have to be doing it well and efficiently and effectively, and what role might we have in helping to preempt discrimination from happening? We obviously have a statutory role in doing that in terms of technical assistance and education. You know, the question is, is there also some role in supporting what other agencies might be doing in areas like enhancing flexibility which does seem to be something that will help older workers stay on the job?

DR. SPRIGGS: Well, on the supply side for older workers, we are very concerned about workplace flexibility. This set of older workers is the sandwich generation, so they do have elder care issues that they are concerned with and that can prevent them on the supply side from being able to work. So we are revamping the Family Medical Leave Act. We have an evaluation underway to see if we need to change the regulations. We've done some updates because of changes in the law that took place that would help those who are Veterans get their full benefits under the new FMLA.

And then we have a task force that the President has put in place on workplace flexibility more generally, that both the Office of Disability Employment Policy and our Women's Bureau have been working hard to see where we could make some changes to make things more flexible. So I think on the supply side for older workers, we could help especially those older workers who feel constrained because their savings aren't in place because they've lost equity in their home. But there is this huge demand side problem that we're trying to solve, trying to get enough of them placed just because we don’t have enough demand for their work.

COMMISSIONER FELDBLUM: Thank you.

CHAIR BERRIEN: Thank you. And Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you, Madam Chair. Good morning, Dr. Spriggs.

DR. SPRIGGS: Good morning.

COMMISSIONER LIPNIC: And thank you for being here. I spent seven years at the Labor Department as Assistant Secretary and I have a very high regard for all the work at the Labor Department.

I had a couple of questions about some of the things that you said and in particular, you said that for older workers that the BLS data show that either their positions had been done away with or perhaps there had been a shift change, is there a breakdown by industry?

DR. SPRIGGS: We could look at that to look at whether that was done because of the industries that they were in, I was just giving you the top line numbers. I think it does mean that we should look at it more carefully because of that difference. And as I said, I didn't give you the breakdown by occupation. It is possible that this is just the result of, given the nature of the downturn that older workers are in that part or in those occupations that would be more susceptible to companies making those types of cuts. And that's just the way that it worked out, but we have not done the further analysis.

COMMISSIONER LIPNIC: Okay. So I mean is it your estimation though that it is likely that it's more manufacturing based or does it include service sector or in terms of positions that have been eliminated? Obviously, when I think of shift work, I generally think of much more blue collar manufacturing types of jobs.

DR. SPRIGGS: We lumped them together in the data, so like I said, we'd have to take it apart a little more carefully, to understand why the positions being done away with that was causing the problem. I will -- I can have folks in my office look at that more carefully for you, so we can get you the answer.

Most of the workers who -- let me rephrase that. The plurality of workers who were displaced from 2007 to 2009 were in manufacturing; and displaced means that you had been at the establishment for over three years, so you were a long-term employee, not someone just hired, not in a temporary position. So we can disaggregate that for you and I'd be happy to let you know that.

COMMISSIONER LIPNIC: Okay, just a couple of other things. You mentioned in terms of retirement security that -- I'm curious if you know in terms of older workers, the distribution of people who have defined benefit plans versus defined contribution plans and you know how many sort of on the older side of say, 55 and older, have DB plans and how many on the defined contribution side and/or a combination of both perhaps?

DR. SPRIGGS: This has shifted dramatically over time, so let me get that number for you. I'll have to get you that precise number.

COMMISSIONER LIPNIC: Okay.

DR. SPRIGGS: But that has declined significantly over time and it's one of the bigger problems when you look at the pension, the value of pensions that have fallen which fell quite dramatically for American workers after 2007.

COMMISSIONER LIPNIC: And Madam Chair if I could ask just one other question?

Do you know, Dr. Spriggs, in terms of the ETA and the job training programs, what -- particularly over the last two years in the "Great Recession," what the take-up rate has been for older workers in terms of job training, both take-up rate and success rate, if there has been any, I would hope some placement rate for older workers?

COMMISSIONER ISHIMARU: Madam Chair, what is ETA and what is take-up rate?

(Laughter.)

DR. SPRIGGS: You mean how many have we placed?

COMMISSIONER LIPNIC: Yes.

DR. SPRIGGS: The placement rate?

COMMISSIONER LIPNIC: No, ETA is the Employment Training Administration at the Department of Labor and they do all the job training programs and have all of the money to spend and give to community colleges and all kinds of job training programs.

DR. SPRIGGS: We haven't broken that out yet and we do have our evaluations in place for the Recovery Act where we've targeted quite a bit of money. So we will have answers for you soon. The evaluations are being done right now as we speak. So, we're expecting results early next year, later next year, about what the placement rates have looked like. The top line numbers have been very good for our job training programs considering the labor market right now, but we don't have them broken down by age until we get these evaluation results.

COMMISSIONER LIPNIC: Okay, alright, thank you Madam Chair.

CHAIR BERRIEN: Thank you, and Dr. Spriggs, I have just a couple of questions. Before you took the position that you have now, you did some research and writing about income of older workers particularly the Social Security system and its impact on Black and Latino workers and retirees. And I wondered, you talked about some gender variations for older workers. I wonder if you have anything you can add either based on your prior research or your current involvement at the Labor Department about differential impact or possible differential impact among Black and Latino workers?

DR. SPRIGGS: Yes. I mean one of the problems with the displaced worker survey is that the sample sizes aren't big enough for us to talk a lot about age and race. It's easier for us to talk about age and gender, but very hard for us to talk about age and race. But the labor market experience for older Black workers, as is true for Black workers in general during this downturn, has been that this has been a more severe recession in terms of much higher unemployment rates. And the situation is a little different in terms of pensions because Black workers are slightly more likely to be members of unions than Whites, and therefore slightly more likely to have defined benefit plans than defined contribution plans. Having said that; they are still also more likely to be low-income workers. So their security has always been iffy because their savings are low because their lifetime earnings have been significantly lower, so the need for them to stay in the market is greater. We know that disproportionately the housing market collapse affected minority communities and so this set of older workers that are Black and Hispanic have been hit very hard by the downturn in terms of the security that they thought they were going to get from the equity in their homes. So there are extra challenges that older Black and Hispanic workers are facing.

Now interestingly enough, older Asian workers have actually been more affected by displacement than is true for Blacks and Hispanics in the data. So there are some of these changes that have taken place that I don't think people really anticipated in looking at the data.

CHAIR BERRIEN: Thank you. And could you also comment, and this perhaps relates to the question that Commissioner Lipnic raised earlier: Does the data that you viewed or the data that was available for the testimony that you provided today also look at regional variation? And would it be possible for us to know more about whether or not there are areas of the country or regions in the country where the phenomena of older workers' displacement may be more or less of a problem?

DR. SPRIGGS: Regionally, as you would expect, the manufacturing area of the east, north-central, those are the auto states of Ohio, Michigan, those sorts of states; they have been the most impacted by displacement. And the better placement rate occurred for the west, north-central states, Minnesota, Iowa, Nebraska. So it has been a recession that has, generally speaking, affected the entire economy, generally speaking, affected the entire nation; but those two sort of highlight that there is still some regional variation. The long-term unemployment problem with those of the east, north central states is great for all age groups.

CHAIR BERRIEN: Thank you very much. Dr. Spriggs, thank you again for coming today. On behalf of the entire Commission, we appreciate your participation in today's meeting and the time that you've invested both to testify and to prepare for this morning's meeting and with that we will excuse you so that you can move to your next commitment.

DR. SPRIGGS: Thanks. And I'll make sure I'll get you the answers to those breakdowns. Thanks.

CHAIR BERRIEN: Thank you very much. And as indicated in the opening of the meeting before we turn to the second panel of witnesses, we will go back to opening remarks for today's meeting.

As Ms. Wilson announced at the beginning of the meeting, the Commission voted to approve regulations implementing Title II of the Genetic Information Nondiscrimination Act at the end of the month, at the end of October, following a unanimous vote by the Commission.

I want to publicly acknowledge and thank all of my colleagues here on the Commission for their concerted effort to adopt this final rule and for our ability to achieve unanimity in this final rule. I would particularly like to acknowledge the contributions of former Chair Earp and former Acting Chair Ishimaru, who participated in developing earlier versions of this regulation and throughout the process, our Legal Counsel, Peggy Mastroianni in the Office of Legal Counsel and her colleagues, Chris Kuczynski and Kerry Leibig, have just done yeoman's work to make sure that we made it to the finish line and I will take a moment of personal privilege and say thank you as well to my Special Assistant, Sharon Alexander, and to my Senior Counsel, Patrick Patterson, who did exceptional work on behalf of my office in this effort.

And finally, as you know, when we began our October meeting, we acknowledged the many contributions of the late Paul Miller to the work of this Commission and to the advancement of equal employment opportunity across the country and his particular role in the early development of GINA is noteworthy as we are able to announce and recognize the passage of our final regulation. So again thank you to all of my colleagues and to my predecessors as well.

I will say to all of our panelists that we appreciate your being here. We all are looking forward to your testimony and we thank you all for your time and for sharing your experiences and expertise with the Commission today.

Commissioner Ishimaru and his Special Assistant, Jacinta Ma, have taken the lead on behalf of the Commission in organizing today's meeting and I acknowledge that and thank you both for that. And I would like for Commissioner Ishimaru now to comment on the background of this meeting. I will defer my own further remarks on the meeting until the closing of the meeting so that we can move on more quickly today.

COMMISSIONER ISHIMARU: Thank you, Madam Chair. I, too, want to note the final passage of our GINA regs. It was a long process, a lot of work went into it and I'm delighted we were able to come to agreement on it; and it's good news for enforcement of the Act.

I want to thank you for holding this meeting today. One of the meetings that we held during my tenure as Acting Chair was focused on barriers to employment of older workers; the first time in recent memory that the EEOC has done a meeting on problems faced by older workers. And I'm delighted that we're doing more work today.

At that meeting, I was struck by the testimony of charging parties that we've heard from on the devastating impact that age discrimination can have on people. I was struck too by the fact that many people, both employers, employees, and the public generally, really don't know that age discrimination is illegal and take it that you can let people go; you can say nasty things about older workers, just because of their age; and that's been illegal for many years now and I thought it was high time that we started to focus on this issue again.

But I wanted to make sure and one of the reasons for me coming to you, Madam Chair, and asking that we do a meeting on this is to again share stories and hear from experts so we don't forget about the older worker. In these times of economic difficulties, we need to make sure that these stories are being told and that both employers and employees alike are able to understand that age discrimination is illegal and workers are protected under long-standing laws of this country.

As we heard from Secretary Spriggs, the older population has expanded in recent years. We're living and working longer, some by choice, but many lately out of financial necessity. Pension schemes have changed; benefits have changed, forcing people to have to work longer. Of course, others want to work because they find their work stimulating and interesting and they take pride in their on-going accomplishments and contributions to society.

But what particularly concerns me are the statistics and anecdotal evidence showing how much longer it has taken older workers to find another job and how some older workers, after being fired, will never find employment again. It was compounded to me on the drive in today as I heard on the radio a story about some employers wanting; only hiring employees who have a current job. So if you're unemployed, that’s seen as a negative against you. And for those people, it's an on-going cycle of not having a job and never again being able to have a job; and that's a very dangerous situation to be in.

One of my serious concerns currently is that the current economic situation may be used as a way to legitimatize age discrimination using the justification of cost savings or concerns about the company's financial well being while, in fact, age discrimination may be going on against older workers by firing them and hiring younger workers who have less experience and skills and may have lower salaries; and who an employer believes may be more likely to have a longer future with the company. These employers may be buying into ageist stereotypes about older workers without honestly evaluating what a company needs.

It's been a long time since 1967 when the Age Discrimination in Employment Act was first enacted. The country looks different, the workforce looks different. Back then, people expected to have a career with one company, companies that took care of their employees and employees, in turn, stayed and provided their expertise in institutional history. Fewer people are working to the ages they are now and it was rare for people to retire from one career to work in another job or find transition jobs that would allow them to move from their career to retirement. I think that this may be one of the reasons that the EEOC continues to have more and more age discrimination charges every year. There are more older workers in the workforce and more older workers are changing jobs which results in more work for the EEOC.

Employment discrimination happens at all levels of the economic spectrum, from low wage workers to people at the mid-level of companies, to people at the high ends and the leadership positions of companies. Though a study published in 2007 found that skilled and semi-skilled workers are the most vulnerable to age discrimination, as well as those workers nearing 50 and those close to retirement; workers continue to grow older, so I think it may be some time before we see a downward trend in age discrimination charges.

I think here at the EEOC we need to constantly reexamine our work in this area to be sure that we are doing the best job we can to serve these older workers and doing it in a way that best addresses their specific situations. So I'm looking forward to the testimony today. I think we have a very interesting and knowledgeable group of witnesses and look forward to the meeting.

Thank you, Madam Chair.

CHAIR BERRIEN: Thank you, Commissioner.

Commission Barker, would you like to make any opening comments?

COMMISSIONER BARKER: I just have a few very short remarks. I think we all share a concern that we explore any developing areas of discrimination that may be occurring. And today we're focused on age discrimination and I think that's appropriate.

We're all concerned about the current recession and how that may impact different segments of the population, including older workers. But at the same time, I know that a lot of the focus today is going to be on current Supreme Court decisions, particularly the Gross decision that sort of shifted the landscape as far as how age discrimination cases are now tried. And while we may agree or disagree with the Supreme Court's decision, I think we can't lose sight of the fact that it is our obligation as an enforcement agency to respect and honor and follow binding precedent, and the Gross decision is binding precedent. So we are not endowed with the authority to create law, to legislate; we're not Members of Congress, nor are we Supreme Court Justices. So our job is to follow the law and to the extent that some of us may disagree with those decisions, we disagree with those decisions nonetheless, that is our role.

Thank you.

CHAIR BERRIEN: Thank you. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you. Thank you, Madam Chair, for holding this meeting and thank you, Commissioner Ishimaru and your staff, for putting it together. I know the work that that takes.

As you may have gathered, Madam Chair and colleagues, from my first questions, I am sort of focused on what is our mandate as a Commission here and so I've been going back to the statute a fair amount where the statute tells us that the Commission, which is the five of us with two always from an opposite party, because that's the essence of an independent agency; the Commission is empowered to prevent any person from engaging in any unlawful employment practice as set forth. So that's our primary job is to prevent people from engaging in unlawful employment practices.

And the way that we are supposed to do that is set forth in the next section which is we are supposed to have a charge system set up so people can bring in charges. We notify the respondent that a charge of discrimination has been made against them. We have an investigation to see if that charge is true. We're supposed to do that investigation as soon as possible, but as far as practicable within four months of when that charge comes in to determine whether it's true. If we think it's true, we are required to engage the employer in conciliation; to see if that unlawful employment action can be stopped informally by conciliation and if we are not able to resolve it by conciliation, to our satisfaction; then we are authorized to bring litigation and we have a General Counsel who conducts that litigation on our behalf. That's our primary job that Congress has given us. So I am very happy in this meeting to hear about some of the problems that older people face because of discrimination and to make sure that we have a good system in place to respond.

And our secondary role is to be participants in the policy-making process to the extent that regulations or guidance or litigation that we bring is helping to shape the policy, that's a secondary role; but obviously, an important role. So in that regard, I am very pleased that the Commission, in a unanimous vote, was able to issue the regulations implementing GINA. I am very pleased that those regulations stay true to the text of the statute and did not go forward and make sort of new law and policy, even if people thought that might be good ideas. And so I'm very pleased, and as the Chair noted, I want to thank all of my colleagues for that work.

I do believe that we have a hard job in terms of stopping employment discrimination because it is out there alive and well. And I think particularly in a time when there is a recession, when people are desperate to keep their jobs; that we have to make sure that the ones that are most vulnerable have a well-working system, run by us as we are required under the statute so that we can follow up if there is discrimination.

So I very much look forward to whatever we will hear today as well as to continuing this very important work. Thank you.

CHAIR BERRIEN: Thank you.

Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. And first of all, I want to also thank Commissioner Ishimaru and his staff for putting this together today on this important topic. I have a certain auspicious birthday coming up on Sunday and I'm wondering if this was to remind me of that certain threshold that I'm about to pass.

(Laughter.)

And I also note that we have a witness here from AARP and I keep getting all these solicitations in the mail from AARP, which I'm not sure I really like that so much.

(Laughter.)

And I also actually want to thank you, Madam Chair, for your leadership on the GINA regs and thank all of the staff at the EEOC who worked on those regs and all of my colleagues and especially note our unanimous vote to implement those final regulations.

In terms of today's hearing, we are rightly, I believe, focusing on the specter of age discrimination and how it impacts America's workers and particularly, as our last witness noted, in an economy that is still struggling mightily to produce and recover jobs. The most recent data from the Bureau of Labor Statistics indicates that there are currently 14.8 million unemployed Americans and that the most recent unemployment rate, 9.6 percent, is essentially unchanged since May. And I think if Dr. Spriggs were here, he would tell us also that that 9.6 percent rate really doesn't even touch what people think is probably the real unemployment rate, which is closer to 17 percent when you look at the under-utilization rate and how many people have actually dropped out of the economy.

As we will hear this morning, older workers, like all workers, are suffering record levels of unemployment and the most recent data indicate that somewhere between 30 and 40 percent of the unemployed are age 40 or older. In that light, this hearing is especially timely and significant.

The one thing I certainly, as all of my colleagues have noted, and certainly the work of this Commission that we need to be clear about is that unlawful age discrimination is never okay. It is especially harmful in an economy that is struggling to recover and where finding any job or another job, particularly if you are older; it can be a Herculean task for any unemployed worker. And I think it is oftentimes difficult for people who have jobs, unless you live with someone who is looking for a job or have a child who is looking for a job or a spouse or a sibling; to have really a good sense of how very difficult that is when you are unemployed to try to get the next job.

So I particularly welcome the testimony of our witnesses that will shed light on the scope of this situation today and the effects that the down-turned economy has on everyone.

I am particularly interested in hearing about the practical challenges faced by employers when they are faced with the very unfortunate prospect of having to downsize their workforces. No business, big or small, welcomes the day when it is clear that it has to reduce the size of its workforce, sometimes cutting back or eliminating entirely, the positions of loyal and talented employees with years of service. Faced with that very unhappy reality, what can employers do to get it right so that they comply with the law and minimize the risk of gotcha lawsuits down the road?

And I would note that over the last couple of years, I have spoken at any number of legal conferences and the amount of time and effort that employers have put into struggling with how to keep as many people as they possibly can employed and finding every which way they can to comply with the law, but try to come up with part-time schedules, flexible hours, anything they could to avoid in the first instance having to run a RIF and actually having to eliminate jobs; has been so apparent and probably anyone who has worked with an employer on a RIF, certainly knows what that's like.

I know that some of our witnesses today will focus on that question, what can and should an employer do to ensure it does not intentionally or unintentionally violate the law when it conducts a RIF and I would welcome the insight and perspective of all of our panelists today, even if it's not a point that you've made in your testimony; I'd be interested to get your thoughts, particularly on that topic.

For anyone who practices in the employment law area, the EEOC, as we all know, is currently engaged in two rulemakings that address the age issue and I look forward to your insights and your testimony to help us as we deliberate on those matters.

Thank you, Madam Chair.

CHAIR BERRIEN: Thank you. And as I said earlier, I will defer any further comment until after the testimony.

I will ask Mr. Jessie Williams to come forward and Mr. Williams will be introduced by General Counsel David Lopez. General Counsel Lopez has been a career attorney with the Commission. I believe this is his first appearance in the Commission in his role and we're delighted that you are here and will be introducing Mr. Williams today. Thank you.

GENERAL COUNSEL LOPEZ: Thank you, Madam Chair. Thank you, Commissioners. Age discrimination is devastating to American families. Age discrimination is devastating to American dreams. And I commend the Commission for convening this hearing to raise the awareness of this issue and to continue to educate the public and the employer community with respect to this devastating form of discrimination.

Today we will talk about one story of how age discrimination can be devastating and has been devastating. On September 30, 2010, the EEOC resolved an age discrimination case against Republic Services, a Nevada waste management company involving the unlawful termination of several older workers. This case was investigated and prosecuted by the Los Angeles District Office. This case illustrates the Commission's finest efforts to eradicate age discrimination against older workers. This case involves several individuals who played by the rules, worked hard for the same employer for several years. Despite this loyalty and dedication, they were fired by the company and replaced by younger individuals, many of whom they trained and mentored. After six years of litigation, the EEOC was able to remedy this discrimination. Anna Park, our wonderful Regional Attorney in Los Angeles District Office, has submitted a statement for this hearing, and unfortunately, she could not be here. But I would like to read from the statement about this case.

In this case, the Commission alleged that the employer systematically discriminated against older workers by subjecting them to on-going harassing comments and terminating them based upon unfair and unfounded discriminatory stereotypes. By way of background, Republic Services is the largest waste management company that operates in Nevada.

The EEOC identified approximately 40 men and women who were subjected to ageist comments and conduct including being subjected to harder working conditions and being fired from their positions only to be replaced by lesser qualified younger workers. The company systematically discriminated against three classes of older workers: foremen, drivers, and administrators.

Managers openly made ageist comments. They openly said, "You guys are getting too old to do this" or, "I'm going to get some young blood in here that can handle this" or "Hey, old man, when are you going to retire?" The recipients were often in their 50s and 60s.

On January 3, 2003, Republic implemented a head count in reduction, firing essentially on one day a large group of older workers, targeting foremen and employees in information technology and support. Each and every one of the people terminated that day was over 40. Republic then ran ads in the newspaper advertising to replace the very jobs that were purportedly being downsized.

Younger workers who were hired to replace the older workers did not work faster, cheaper, and better. With the case of drivers and trash collectors, anyone over the age of 40 was replaced with employees in their 20s and 30s. Older drivers and trash collectors were subjected to a practice called, “break it off,” where they were worked harder so as to force them out of the position.

As part of this lawsuit, the EEOC recovered $2.975 million on behalf of a class of 21 claimants, 20 male and 1 female. More importantly, aside from the monetary recovery, we are pleased with the sweeping injunctive remedies that the company agreed to so as to ensure that older workers are protected in the workplace.

Some of the highlights of a three-year consent decree are as follows: designation of an EEO compliance officer within the company to ensure compliance with the ADEA and the provisions of the decree; sweeping audits to ensure that the policies, practices, and procedures, are free from age discrimination; the audits will review actions relating to its recruitment, hiring, promotions, transfers, terminations, and reductions in force, to ensure that age is not a factor in any of its practices; Republic will also ensure that any workers compensation administrators and doctors are notified and warned not to discriminate on the basis of age in assessments of their employees; Republic shall implement a performance evaluation system to include criteria for EEO compliance by its managers and supervisors to hold managers and supervisors accountable for EEO laws. The decree also requires extensive training of managerial and non-managerial staff on age discrimination and the decree also requires that the company centrally track complaints of age discrimination and disseminate policies and procedures company-wide.

As we know, it takes a village of dedicated and committed civil servants to achieve results such as was received in the Republic case. As General Counsel, I want to commend the work done by the Los Angeles District Office. I want to commend District Director Olophius Perry and his investigative staff, particularly L.A. Investigator, Diane Franklin, who developed the case. The case was well investigated and when our efforts at informal conciliation failed, we had a well-developed file for litigation.

I also want to commend the work of Anna Park and her legal team, including Supervisory Trial Attorney, Derek Li, Tom Lepak, and Beth Naccarato, and in particular, I would like to recognize Los Angeles Senior Trial Attorney, Sue Noh, who devoted six years of her life to this case.

When we had the press conference in Las Vegas, the enormous respect and trust developed between Sue and the class members was evident. She is one of the unsung heroes who vindicate civil rights every day within this Agency.

The truest heroes in this case are the individuals who stood up to discrimination and who persevered through six years of litigation in this lawsuit. We know that litigation is hard.

For a fuller understanding of the impact of age discrimination, I would like to introduce you to one of the heroes in this case, a former foreman of Republic, Jessie Williams. He'll talk about his experiences, the impact of age discrimination on him and others.

CHAIR BERRIEN: Thank you, General Counsel, and thank you Mr. Williams, again, for being here today.

MR. WILLIAMS: Good morning, everybody. This is big for me, it's huge. I came a long ways from a cotton field and discrimination was an everyday factor. I was born in a small town, Marion, Arkansas, years ago. And I never thought I'd see the time that I would have a chance to come and speak in front of these many people in Washington, D.C. This is very necessary for people like me. I never had heard of this, but I left Marion, and I migrated to Las Vegas, Nevada and I started work for Civil State Disposal, they changed the name to Republic Services. I put in 31 years for that company, I started at the bottom. I drove a truck for them for ten years, heavy equipment; I picked up trash. Speaking of picking up trash, I feel like today if they looked at me as an older worker which they said, I can go back and do that job today, I'm not through, I'm not through. But I put in 31 years of hard work; I was at work every day. I came from not knowing what a computer was, I came from not having an education to pick up my reading skills, my working skills, my dispatching skills, my foreman skills; I picked it up throughout the days of working for that company. I worked some hellacious hours. I worked 15, 18 hours a day for that company, so have my fellow men, fellow employees who worked with me, foremen, and these types of guys; we put our life into it. We worked every holiday, we worked every snowy day. We had to leave our families and later on, in life, you never feel when you worked as hard as I did and as long as I did, you feel that that's your job, that's your home; we were programmed. That's a fact, programmed. We know every square inch of that job, we know trash, we know the trucks, we know the people; it was a lot of experiences, a lot of things I had to learn is, people, every person is an individual. You've got to learn how to talk to this one or treat that one, to run a group of guys, men, out there in the work force; it's a lot to learn. And when they bring in a new and younger work force, it takes time for them to learn. We had the experience to run that company. When the big bosses came out of Florida and came to Las Vegas and we got to sit in on a meeting, they said that the Las Vegas branch was making more money than any company they know. They couldn't come and tell us how to run a company because we were the jewel in the desert.

And the higher ups figured they would change the company around and it used to be two shifts; they wanted to change it to one shift. It took a lot of hard work, it took a lot of hours out there to get this duty performed and the last that I understood about it; that's when we got down to one shift. It went to being like well; we're going to get rid of all the Uncle Toms. I heard that out of one of the senior supervisors. I never thought that I was going to be one of them, simply because I know the equipment, I know the heavy equipment, I know truck driving; I did my job as a supervisor running my route. I also still drove trucks at times. I figured I had too many skills to be pushed on the outside.

But devastation, when you walk into an office and they tell you, you have gotten too old, you've got to go; that's devastating. And I told my supervisor that I would give 100 percent until the day you put me out of here. I just couldn't see how he had the heart to tell me that. My supervisor, we had personally went on motorcycle runs together. He personally knows my family, he knew I had young kids in school; and to take that from me, that was devastating. I'd seen supervisors -- I'd seen people that got fired; they were so programmed into that job until when they left Silver State, they couldn't get another job. They didn't know anything about résumés and applications. When we came there, 30 or 40, 35 years ago, a W-4 form, no résumés, we didn't know anything about that; this was a brand new world to us out there, we didn't know anything. I didn't know how valuable I was until my wife happened - she got a good education, a little bit younger - and when they kicked me out of Silver State Republic and she fixed me a résumé of 31 years, all the awards, safety awards I had gotten throughout the years, being head foreman at one time throughout these years and when she fixed the résumé and I went to look for another job; day one, I was working.

They asked me what did you do to get fired, terminated from the job that you were on after 31 years? I hated to tell them that they just fired me; I told them due to downsizing. I went to work. I went to work for a concrete company; pouring concrete, hauling concrete, taking the chutes off the back of the truck, and carrying around and hang them. It wasn't an easy job, but I wanted to prove to myself I could still go out there and work in the real, every day labor workforce. And I wanted to go back into driving 18 wheelers. So I saw an opening and an opportunity to drive an 18 wheeler, went there, stepped out of one job into another.

I've had a good ride. I love these States, the United States. I've seen some of my fellow men go down the tube; I've seen them lose their houses; I have seen them lose their families, but I was too stubborn, I'm not going to lose. I went to work; I didn't care what kind of work I did. That's what has happened to a lot of people. If you lose a job over here, they feel like embarrassment won't let me go do a lesser job, I don't care. My family meant everything to me, and they were just as proud, no matter what I did, driving a big truck. I used to come by and blow the horn when I'd go by the house and I’d see my kids out waving at me; it was good. Life has been good, but when I met Ms. Sue Noh, she's a very wonderful person and Ms. Parks, and they really rehabilitated me, because when I first -- I don't know how much time I got with that red light blinking, but I want to finish this and then I'll be through.

Meeting them, I had run away. I had run away from them several times and I told them I didn't want to -- I was through with the job, I didn't want to talk about it. And Ms. Sue Noh finally got caught up with me and got to talk to me and she somewhat rehabilitated me. Ms. Sue Noh was a person that, you know, would sit and listen to me and it seemed like understood me. And she said, "Mr. Williams, you've got rights like anybody else." And that was the first in my life I ever heard anything like that.

Ms. Sue Noh and Ms. Parks, my closing statement, are some very good people. This program, the EEOC is very necessary for some of these people because I've seen some of my fellow workers was devastated, was totally devastated, from living in a house to barely surviving; I was one of the lucky ones.

I thank you all very much for listening to me. I thank you from the deepest part of my heart, thank you all very much.

CHAIR BERRIEN: Thank you, Mr. Williams. Mr. Williams?

MR. WILLIAMS: I'm sorry.

(Laughter.)

COMMISSIONER FELDBLUM: You’ve got more time!

CHAIR BERRIEN: Thank you, Mr. Williams, for your statement, and I will turn, to our Commissioners to ask some questions now.

Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you, Madam Chair.

Mr. Williams, 31 years you were employed?

MR. WILLIAMS: Thirty-one years.

COMMISSIONER ISHIMARU: Did you see any sign that you were about to get fired by the company? Were they dissatisfied with your work? Were you less productive than the other workers? Were you a bad employee?

MR. WILLIAMS: Well, I'll let my safety awards and these types of things and the president of the company from out of Florida sent me a bonus one year. I kind of reflect back on it and let that speak for itself. I feel that I was top notch. I was top notch when I left and any time that you get awards, the history of them, I feel like you're very productive.

COMMISSIONER ISHIMARU: Yet it was hard to explain later that you were let go by this company where you had worked for virtually all of your life, that there wasn't something wrong there; that there was some sort of problem because you were let go. That must have been very hard?

MR. WILLIAMS: You know, there were rumors and I never knew how they would get out among the younger workers. And I walked in the building one day and they said this guy you're training, you know, he's going to take your job. He said you'll never see completing your 31st year; you're going to be out of here. And to keep working and try to give 100 percent, that weighs very, very heavy on your heart, your mental attitude; it weighs heavy. But as you see today, at 64, I'll be 65 in two months, I'm raring to go. If I need to go out there and work some more, I will do it; I don't feel no problem.

COMMISSIONER ISHIMARU: You noted when you were looking for work your wife helped you find another job and helped you sort of transition after 31 years of being in one job, of being actively looking for work. Did you get any help from the company in looking for a new job? Were they helpful in helping you transition to something new after they let you go?

MR. WILLIAMS: They were through with all us individuals. They were through, no contacts, no nothing. They never tried to help us get resituated, nothing. When you were out the door, you were out the door; that was it.

COMMISSIONER ISHIMARU: Well, Mr. Williams, I know how hard it is to come forward and I know that it's not easy coming to Washington to join people in suits, but I'm delighted you joined us today and for sharing your story. Thanks very much.

MR. WILLIAMS: Thank you.

CHAIR BERRIEN: Thank you, and Commissioner Barker?

COMMISSIONER BARKER: I don't have any questions. Thank you, Mr. Williams. I appreciate you coming all this way and testifying.

MR. WILLIAMS: Thank you. Thank you very for much. It's been a pleasure being here.

CHAIR BERRIEN: Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you, Madam Chair.

Thank you so much for coming and telling your story. I just want to ask you a bit more because it's incredibly important, I think not just for us, but for the public to have a sense of what it feels like to people when discrimination starts happening and how sometimes people don't realize they have rights. What was most -- one of the compelling things that you said that affected me was when an EEOC lawyer said to you, "Mr. Williams, you have rights. They can't just do this to you." So when you heard me talk before about what our job is, the five of us, by statute required to stop alleged employment discrimination; part of our job is education, reaching out and telling folks what their rights are. So I just want you to give us a little bit more of a sense of when things started turning bad, when you started hearing some of those comments. I mean you mentioned, “Get rid of the Uncle Toms.” And also, “Oh, you're getting too old.” So Uncle Toms doesn't sound to me like something about being old, but maybe it is, so tell me. So what sort of things were you hearing and then what sort of conversation was happening between you and the other guys who were feeling sort of at risk? And was there any conversation like, you know, they can't do that, there’s a law? It doesn't sound to me like you were saying that, but give us a sense of what was happening for you and the other folks who were in that situation.

MR. WILLIAMS: Well, basically, I'm not really -- I don't think any of us really knew anything about the EEOC. We heard different rumors about you old timers have got to go. We didn't believe it, none of us believed it; all of us had spent our life there.

The first step I think and anything moving toward contacting the EEOC was through one fellow, Bobby LaRocca, or something. He got an attorney and -- I mean this is like looking at television to me. And today, it's just kind of I'm playing a part in the television. We never knew there was an organization that people really sat and discussed these problems in age discrimination; we never knew it was this type of organization. Me, myself, I feel blessed. I feel great to know that I hear people actually talking about it and actually doing things about it and had Ms. Sue Noh, like I said, basically, brought me from not knowing and not feeling, it was just another thing happening to me and when she told me I did have rights; it was like rehabilitating me.

COMMISSIONER FELDBLUM: Wow, and so when you heard rumors they're going to let the old timers go, so none of you believed it, because you're thinking it would be crazy to do that; we're running this place well, we're making money for them.

MR. WILLIAMS: Right.

COMMISSIONER FELDBLUM: Did a few people start getting fired or did everyone get fired at the same time? How did the hammer come down when it came down?

MR. WILLIAMS: Well, we were sort of like separated in concrete so to speak. I was in Henderson working at a lead plant among a couple more younger supervisors. And I felt like I was targeted because okay, it went to being more drug testing, more alcohol testing and all this type of stuff, while in the past I wasn't tested and I had heard you've got to go because we want new blood and we want younger blood, we want new ideas; you older guys got to go. And I went to being called in and drug tested pretty much every week, sometimes twice a week. And that one evening I came in, we had never been picking up misses, after all the trucks come in, we had a missed truck, what we call, somebody got missed. I got up there and my supervisor handed me four or five missed complaints and he said you need to go get them; that's a direct order to you, so you know the heat was on, you knew the heat was on. But I think and so long as they had -- one day they laid off five, two or three people and you'd hear about it, but again, I was convinced that I was going to get to stay because I had a lot of skills. I drove the 18 wheelers, I drove the roll-offs, I run my shift, I drove the bulldozers pushing trash, I did some of all of it; and I can do it today.

COMMISSIONER FELDBLUM: Well, thank you very much and I'm very proud of all the people -- you're sitting next to one of the great civil rights lawyers of the country, actually, and I'm very glad that he's our General Counsel and I endorse all the thanks that he gave to all of the various lawyers of the EEOC, so thank you.

MR. WILLIAMS: Thank you. I'm very privileged.

CHAIR BERRIEN: Thank you. And Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you, Madam Chair.

Mr. Williams, thank you for being with us. And you, sir, are a true patriot. I want to follow up a little bit on Commissioner Feldblum's questions. Could you -- you said when you talked about when the EEOC lawyers or the investigator approached you that you sort of ran away from them a bit or a couple of times and maybe you could tell us a little bit more about that, why you were sort of reluctant to talk to them and how all of that evolved and came about?

MR. WILLIAMS: Well, you know, after 30 years in a company, you still feel loyal to the company. I always felt that I was going to get rewarded. I always felt like they might recall me back. You know, I just didn't want to talk to nobody, I was frustrated. Ms. Sue Noh had somebody call me and I was so frustrated at the time until I can't tell you what I said, but I talked bad to them. I didn't want to talk to nobody. You put in them kind of years for a company and work the type of hours I worked and they dump you; it takes a while mentally to stabilize yourself, to know that you've got to go and find something else. It's devastating. I've seen some of the other guys. They go out and they couldn't function. It was like keeping a dog in a yard fenced in for years and years and you open the gate, he can't come out, he don't know where to go, he don't know how to survive. I wasn't letting that happen. And you know that's why I feel grateful when Ms. Sue Noh, and it wasn’t all the Black people in that company, I was surprised when I saw some White, Italian, some of everybody, and they were hurt just as bad as anybody else. Everybody's feelings were hurt, they were devastated. They were totally devastated and some of the guys lost their families behind it, they lost their houses behind it; it was devastation. I saw some grown men that broke down and cried behind it. Eddie Williams, when they told him he was through, he came and talked with me with tears in his eyes. You put your whole life into it and the day they told me I had to go and had the lawyer standing outside the door and said this is time for you to go, Jessie. You sign this today and this is what he told me, I'll find you a little more work to do around here. Like, find me some work to do? I know how to do everything here. And he said well, you agree to sign this letter and I'm like, yeah. I'll do it today and you’ll find me -- and then also, opened the door, the lawyer walked in, I signed the paper in front of him and he asked me for the keys to the building. He said there's no use you coming back to work tomorrow, you're through. So I felt like he double crossed me.

COMMISSIONER LIPNIC: How long after you were gone did you -- when did the EEOC first come talk to you or you went and talked to them and how did you sort of come to know about the EEOC?

MR. WILLIAMS: Well, through probably, like I said this guy, Bobby LaRocca and Lacy Williams; they got a hold to this lawyer and they called me one morning and I'm sure they were in a building because it sounded like I was on speaker phone. I dumped my feelings out. I didn't want to have nothing to do with nobody. I felt alienated from everybody, everything, I just wanted to go. I wanted to go in another part of the world because when you had younger guys tell you well, I'm going to see your wife's nice car sitting across the street with a for sale sign on it, and I'm going to be the first one come and bid on it and I'm going to get your truck too when you put them for sale signs on it. So you sort of don’t want to have no contact with nobody. You want to go to a new part of the world and start all over again, and that's basically why I wound up in Arkansas right now. And I am probably doing just as good or better today than I was at Silver State because I didn't let nothing stop me. They hurt me, they hurt me, but I pulled my load and my family still, they love me. I feel homesick right now.

(Laughter.)

COMMISSIONER LIPNIC: Mr. Williams, when you said that you are part of the real every day labor workforce, and I just want to say that for all of us here, you make the work that we do here at the EEOC incredibly meaningful and worthwhile, so thank you for being with us today.

MR. WILLIAMS: Yes, ma'am. I thank you very much for listening to what I had to say.

COMMISSIONER LIPNIC: Madam Chair?

CHAIR BERRIEN: Well Mr. Williams, I join -- this is another area where I think we are unanimous, all in agreement, at how valuable what you shared with us is today and the reminder that what you have said is of what really happens in the work that the Commission is responsible for carrying out and what really happens in our offices across the country.

You've talked about the attorneys in Los Angeles and other people in Los Angeles who you encountered, but I've had the opportunity and privilege to go now to a number of our offices across the country and see that over and over. So I know that they appreciate that, but ultimately we all are indebted to you for coming forward and being willing to seek justice. So I thank you for that.

I wanted to ask you about something that you testified about. You said that over the 30 years that you worked for the company, they went from doing some things manually like dispatching trucks manually to using computers to do that. And one of the things that we hear sometimes as a stereotype about older workers is, they either don't know how to use computers and don't want to know and I wonder if you would just say a little bit about how you dealt with the changes in your work place over the years that you were there and particularly to begin to use computers at work?

MR. WILLIAMS: Well, when I was first introduced to computers, keyboard, and looking at the screen, maybe it was foreign to me, but I would get up a lot of times, two or three hours before my shift would start and I was one of the first ones. I would have to come to work and sit in this room with some of the computer guys, the ones that put the program together and they would show me how to dispatch off the computer, the names, pull it out of the pool, and put it to the truck and these types of things. That was at first to me, kind of hearing multi-tasking and I realized what it was.

(Laughter.)

It was strange to me and when you got maybe two or three hundred men coming at you and you've got to remember these many people's names and what truck they go on and these types of things. You see the person, you've got to recognize him and to keep the flow going, you need to be with your hand on the keyboard and know how to place that name over on the truck they're going on and be able to speak to them and tell them you go to truck such and such a thing, give them a pitch that qualified, you know, they know that route, put the program together. We had about 45 minutes to do this and I got pretty good with it, but you know, it was a trying effort to learn how to use a computer and know what it was all about to get used to the keys and feel them without looking at them. It was a big, big, big step in my life which I wound up, we got a computer at home now and do I go in there and use it? No, I don't.

(Laughter.)

CHAIR BERRIEN: Thank you very much. You mentioned that you moved from Arkansas to Nevada, in part, for the opportunities, but also that you had had experienced some discrimination growing up in Arkansas. Could you share with us today whether that experience and the experience you had when you had to leave your job because of your age were similar?

MR. WILLIAMS: Well, you know, it probably affected me more because again, you're so convinced your skills would take you over and now you go to finding out let alone being discriminated against by race, gender, or color or what have you, when I was a kid, had pretty much got used to it. And now hey, you got another problem in life that you never thought would be -- and now you've worked all your life and you go and reach a mature age and you're looking to have a good retirement and these types of things and now you hear that you're getting too old; we're going to get rid of you. It probably devastates you more by getting discriminated by age than it did what I grew up by. I had got used to that, but I wasn't used to being discriminated by age and targeted and telling me I was through. It was very devastating. I mean you're looking at a man who today that is kind of still whole, but if you had saw some of the guys what it did to them by shutting their lifeline off. Age discrimination is very devastating. It's more -- you know, all of us was truly dedicated to the company. And when they shut you down like that, it was nobody mentally prepared for that. It was a mental issue working for that company that long. First, you had to get your mind stabilized that after 30 years going to the same place every day, and oh, when you walked out that evening, you didn't have a job. When I left that day, it was like a sign of relief one minute under stress and pressure and the next minute you were sad. On the way home, driving home, it was like two or three different things about it. What am I going to tell my wife? What am I going to tell my kids? Sometimes you feel like, I'm just going to go party. I'm just going to go drink. I'm just going to let myself go. And you know, it's hard to describe it. I can't even come to describe it to you. It took a couple of days for me to really kind of get the clouds out of my head. It was devastating.

CHAIR BERRIEN: Well, again, thank you to relive some of this for the sake of the discussion that we're having today. I am sure it's difficult, was difficult, and it's all the more reason why I think we're all indebted to you for being willing to come forward. And thank you again for your travel here.

We will have other witnesses. You are welcome to remain and hear the rest of the meeting, but again, on behalf of the entire Commission, thank you for traveling to join us.

And General Counsel, if there's anything else you wanted to add in closing, we can hear that.

MR. LOPEZ: Thank you, Madam Chair. The only thing I would add is that when I participated in the press conference announcing this resolution, I learned that one of the original charging parties had recently passed during the course of the litigation and he was not able to see the resolution of a case that he was instrumental in initiating, but his wife was there and his daughter was there and that was extremely, extremely moving to have them there and for them to recognize the heroic efforts of this individual.

CHAIR BERRIEN: Thank you. I will ask now for our second panel to come forward and Ms. Mary Anne Sedey, Professor Michael Foreman, Attorney R. Scott Oswald.

(Pause.)

And a procedural reminder, we will hear from these three witnesses. I will introduce each briefly and then we'll hear from them and then we'll follow with a round of questions from the Commission to the entire panel. Thank you.

We'll begin with Attorney Mary Anne Sedey. Ms. Sedey is a partner in the firm of Sedey Harper PC, and immediate past president of Workplace Fairness. She has been litigating employment discrimination cases on behalf of plaintiffs in St. Louis, Missouri for more than 30 years and we are delighted that you have been able to join us. You also were a past President of National Employment Lawyers Association and Board Member. So thank you very much for joining us today.

MS. SEDEY: Thank you. I am a private practitioner. I've always practiced law representing individuals. Sometimes I've had the good fortune of working in partnership with the wonderful EEOC lawyers on a number of cases during my career in attempting to enforce the federal anti-discrimination statutes. I really appreciate the opportunity to talk to you all today about the problems faced by older workers in being hired and in talking about the difficulties in litigating hiring cases on behalf of older employees for private practitioners like myself.

I think we all understand the scope of the problem. I think it was very well laid out by Dr. Spriggs. What I know about the problems of being hired as an older worker really comes from working with clients who have been laid off, terminated, whatever in their 50s and 60s and coming to understand just how difficult it is to find a new job in your 50s and 60s.

I'm going to talk about this problem really anecdotally. I'm going to tell you some stories that my clients have told me. Back in the old days, 10, 15 years ago when I dealt with a client in their 50s, early 60s, you know, generally my experience was that it wasn't going to be easy finding a new job. You might not find a job at the same level, making the same kind of money, but generally, you know, as a result of a serious job search my clients, even the older ones would find another job. That is simply not true any more. When I work with people in their 50s and 60s who have been discharged, laid off, even people with excellent credentials, really impressive work histories, cannot find another job and partly I know this because I say to these people in connection with my representation of them, hey, keep really good track of your job search. It's part of what we have to do to litigate their termination cases. And so I talk to people on a routine basis who literally have applied over a course of a year, two, three years for hundreds of jobs, hundreds of jobs, many of which they were well qualified for. People who never get a single interview, they don't even get their feet in the door. And I want to just tell you a couple of the stories because I think they really underscore the problems.

I have a client named Mike. He's a 63-year-old with 30 years of sales experience. And you know, after he lost his job he applied for sales jobs all over the place. He's a very smart guy. He prepared a résumé that was a little bit ambiguous about how long he'd been at various places. He actually submitted that résumé without explicitly talking about how many years of employment he had. In the particular instance that I want to talk about he actually got called and he filled out a pre-interview screening instrument on line. He was called back by the HR people who say you know, your score was among the best and you're just the kind of guy we're looking for and they set up an interview for him. Mike got there early, because that's what these people do, for his 3 o'clock interview. The HR person comes out, she introduces herself to him and she kind of does a double-take. And she says I'll be with you in a few minutes. And he sits and he sits and he sits until 3:50, at which point her assistant comes out and says that she's running behind and she's not going to be able to interview him that day; she'll not be able to get to him. He suggests, hey, well any other time, when can I come back? She says, "We'll call you". And the next week he gets a letter, I'm sure it's a form letter, thanking him for coming in for the interview; telling him that although he interviewed well and was very well qualified, that somebody with better credentials had been selected for the position. Now mind you, this guy never got a minute to talk to the interviewer that day.

I have another client, a 55-year-old lawyer who has worked in-house as well as at a top St. Louis firm, is laid off. And she is told repeatedly that she's too senior, too highly compensated for the positions that she's applying for; that really they're looking for more junior lawyers with her same area of specialty. She says, hey, listen, salary is not a problem. This is right in my field, I just want to work; I'm willing to be considered for that job. I'm not too proud for that job. Ultimately, what they tell her is that she is -- this job is not suitable for her. It's not that there's anything wrong with her, it's that the job is not suitable for her.

And finally, I want to tell you about Stan. This is kind of my favorite of these stories because I think it's so amazing. You know we all say and I hear clients say this all the time, you know what; if push comes to shove, I can work at McDonald's; I can get a job as a waitress, you know; I'll go work part-time at the Home Depot. I can't tell you the number of people who have told me, “I'll go to work part-time at the Home Depot, I can be a greeter.” So Stan, my client is a 59-year-old union carpenter, 30 plus years of experience. And he, like a lot of these folks, can't find a job, looks everywhere for all kinds of things and then he does it; he goes and he looks for a job at Home Depot. Not only does he apply at Home Depot, but he applies at all the home improvement stores, every hardware store in the area. And not only can he not get a job at the Home Depot, he doesn't even get an interview at any of these places that obviously ought to be looking for guys like Stan who can be fabulous resources to their customers.

These are healthy, productive people. They're anxious to be employed. Each of these three people I've been describing to you has applied for more than a hundred positions --

(Audio announcement interruption.)

One of the things that you probably know from looking at the statistics that you deal with all the time is that, in fact, applicants rarely file hiring charges. And we rarely litigate hiring claims.

I talked with my friend Cathy Ventrell-Monsees who looks at the appellate cases every year and sees who’s bringing what kinds of age discrimination charges and she tells me that between February of 2009 and February of 2010, among 99 federal appellate decisions under the Age Discrimination in Employment Act, only 6 of them are hiring cases. And, I think this is very significant, four of the six are brought by pro se plaintiffs. And we all know that pro se plaintiffs just can't pull off these kinds of claims. So why is it that you're not getting charges? And why is it that I'm not bringing these lawsuits, because obviously people have problems in these areas.

First of all, applicants for employment, unlike employees, simply don't have enough information to know what really happened with these jobs they applied for. They rarely know who they competed against, they don't know the qualifications of the person that got the job; they can only guess that age was a factor in their non-selection. Most never learn why they were not hired or even why they are not interviewed. They're very different from termination plaintiffs, for instance; people who have been at a job, know who got their job, know who was laid off, know who was kept, know the relative qualifications. So they're just not sure what happened to them. And you know the truth is that most people are simply reluctant to charge an employer with illegal conduct based simply on kind of a feeling that they didn't get an interview or they didn't get a job because of their age. They just don't feel right filing a charge with so little information to go on.

Most lawyers, and I want you to know I contacted my brothers and sisters in NELA across the country before coming to testify here today; most lawyers who practice in this area cannot bring hiring cases for precisely the same reasons. Particularly with high unemployment, particularly with the kind of competition that there is for open jobs; those of us who are, as the Supreme Court has called us, private attorneys general, simply can't invest resources and time in these cases. There's multiple applicants; statistical data may not be all that helpful, because of the disparity in résumés and experience of people applying for these jobs; employers almost always will be able to point to some kind of subjective reason why the person did not interview well, if they get the interview. So I just want to say that unlike with other areas of employment discrimination; those of us in the private bar are just not going to be able to do this kind of work despite the fact that there is clearly, based on the statistical information you heard today, particularly about the longevity of unemployment for older workers and our experience; we're just not going to be able to bring these cases and frankly, you aren't going to get many charging parties who are going to file the charges either.

Because of these difficulties, I want to tell you that I think that this is an area that is particularly well suited to the Commission exercising its independent authority under 29 CFR Section 1626.4 to investigate age discrimination in hiring without the filing of particular charges. I think the trends make it clear that there are very serious barriers to employment for older workers, but clearly neither private employment discrimination lawyers nor people who just didn't get called in for a job interview are going to be likely to initiate these kinds of claims.

The Commission has the resources and the kind of broad power to investigate the problem that I think will be necessary to ultimately bring litigation and perhaps have an impact on this area of age discrimination.

Unlike the typical age discrimination or the typical discrimination case that I see today, and in fact, I was talking to some of the people from SHRM this morning, typically; these cases are kind of rogue managers, I think, often. I think that, in fact, with hiring discrimination against older workers; we may be talking about something systemic, in areas like sales, for instance, where the stereotypes about who is an appropriate person to be hired for a job are so clear. The Commission's role, I think, is to engage in looking particularly at systemic problems like this and I would encourage you to do that. Thanks so much for inviting me to talk to you today.

CHAIR BERRIEN: Thank you, Ms. Sedey. And now we'll turn to Professor Michael Foreman, Director of the Civil Rights Appellate Clinic at Penn State University's Dickinson School of Law.

MR. FOREMAN: Madam Chair, Members of the Commission, thank you for this opportunity to discuss the impact of Gross, on age discrimination claims.

Commissioner Ishimaru, in your opening statement, you had indicated that you were surprised to learn that some people in society don't necessarily understand that age discrimination is unlawful. And that's the one point I wanted to open with. I don't want to dwell on it. But that's one of the impacts of Gross; that it sends a disturbing message that some level of discrimination, age bias, is okay. It's a counter-intuitive message. It sends a message to everyone that you can have a little bit of age discrimination. Well, you can have more than a little bit; you can have a motivating factor amount of age discrimination, just don't make it a "but-for" amount of discrimination. Now think if we did that in the race context or in the sex context, that a little bit of race discrimination is okay, a little bit of sex discrimination; we would all cringe. And we should cringe when we talk about age discrimination in that capacity. I think we just heard Mr. Williams talk about how much age discrimination hurt to the extent that he indicated he had hurt more than the sad racial discrimination that he suffered when he was growing up.

And Commissioner Barker, I understand it's not something that the Commission can change unilaterally because that's what the Supreme Court said; but I do think that the Commission can take a very aggressive position, pushing for legislation that says some amount of age discrimination is not okay. I think that is something that you, as a Commission can do.

Now moving to actually the impact of Gross, I want to set a little bit of context and that context is the very real background that plaintiffs in employment discrimination cases face. I have statistics in my paper, I'm not going to go through those in detail; but it's a disturbing trend that about 40 percent of these claims are thrown out on summary judgment. One in three win at trial, six percent go to trial. Even more disturbing is, once a plaintiff wins at trial, where it should be fact intensive; the statistics show that they are reversed almost 50 percent of the time by appellate courts, the actual percentage is 40 some percent that led the authors of that particular article to conclude that the appellate courts seem to be biased against plaintiffs in employment discrimination cases.

Now why do I raise that here? I raise that here is because that is the very steep hill plaintiffs have to climb. Now take Gross and overlay that where Gross eliminated a way to prove age discrimination. And I think it's very easy to see why we don't see more hiring cases, why we don't see other cases. They’ve become incredibly hard to prove.

Now I've testified on the impact of Gross in front of Senate Committees and House Committees and I've heard the business side of this equation. And one of the things they say is, “Oh Gross didn't really change the law.” I'm not going to spend much time on that. Every court that has addressed this has said, Gross changed the law. There's all types of commentary, it's in my materials where the appellate court said well, if there was motivating factor, this may go to a jury, under the "but-for," it does not go to the jury. Gross changed that and eliminated a way that you can prove age discrimination. And so that is a very real impact of Gross.

The second thing they argue is that plaintiffs still win. You can still win an age discrimination and, of course, you can still win an age discrimination; but what I want the Commission to focus on is the level of evidence that the plaintiffs have to put forward to win an age discrimination claim. And in my materials I've cited a couple of examples, Baker v. Silver Oak, the plaintiffs, there were statements made to the plaintiff that she dressed like an old lady; that she needed to keep up with her younger employees; that she was teased about her poor hearing, her slow walking gait; and that she was instructed she should hire younger workers. Now that's fairly compelling evidence of age discrimination - thrown out in a Motion for Summary Judgment. Now granted, the Court of Appeals corrected it, but it was thrown out in a Motion for Summary Judgment because it didn't meet the Gross standard. A case that you are all familiar with, EEOC v. TIN. Older workers should move on, managers talked about replacing older workers, this is a young man's game, and an old dog does not learn new tricks. Another case thrown out in a Motion for Summary Judgment because you cannot meet "but-for" causation. Again, the Court of Appeals corrected, but plaintiff was thrown out in a Motion for Summary Judgment.

Case, Mora v. Jackson Memorial, "You are very old, you are very inept. What you should be doing is taking care of old people;" thrown out in a Motion for Summary Judgment. Now on that case out of full disclosure it was reversed because the 11th Circuit recognized there was no same decision defense because there was no motivating factor analysis. But again, look at the level of evidence that is being required in order for a plaintiff to be able to prove an age discrimination claim. What has happened to the McDonnell Douglas circumstantial level of proof?

Ms. Sedey talked about you don't have that level of proof in hiring situations. Yes, it is a fair observation that the plaintiff did, that the Court of Appeals did correct these statements. However, let's go back to the statistics. We know that statistically, the Court of Appeals does not correct these. And that the plaintiff has a very, very difficult time of winning these cases without direct evidence of discrimination or something that very much is like direct evidence of discrimination. And I think it's fair to say well, you still can win cases with circumstantial evidence. And I'm not going to say you can't, because I am sure there are cases that get to trial based upon circumstantial evidence; but I can play back a case that I know is near and dear to your heart, EEOC v. Banner Health, where it was thrown out in a Motion for Summary Judgment. And I'm sure Mr. Lopez can probably give you a whole litany of evidence from which a reasonable jury can conclude, wouldn't have to, but could conclude that age discrimination occurred. Because up to the 9th Circuit and the 9th Circuit says affirmed, “you're out.” Why? There is no direct, there is no smoking gun. So what role does the EEOC play in this matter? And it's a tough role, because these are courts making individual determinations. I think one of the suggestions is that you have to actively monitor these cases which I know your EEOC Appellate Group does, and provide more resources to provide amicus help in these cases, to make it clear that direct evidence is not required in these cases. Costa rejected that premise in Title VII. In the Gross decision the court seemed to reject that premise, but the lower courts are, in fact, applying a very high standard in practice.

Third point that the impact it's having, it's a small impact. I shouldn't say small, but it -- there are some District Court cases that are interpreting Gross to require that it be the sole factor. Now we all know that when Title VII was passed, that was one of the amendments that was proposed; that it should be solely because and it was rejected. But yet, these courts are requiring a sole requirement. That is wrong, but we need to continue when we police the lower court opinions and EEOC needs to have the resources to be able to continue to do their amicus work.

Back to my point on the summary judgment, what's wrong with the District Court throwing these out on summary judgment? Think about the private practitioner that is taking the difficult case and needs to now appeal. He looks at the statistics and I don't gamble, I don't know if you do; but if your client says well, what are my chances of winning if I go up on appeal and you say well, your changes statistically are about 8 percent. How many plaintiffs counsel are going to take that bet? Not many, so a lot die on the vine.

So again, I think aggressive enforcement by EEOC, EEOC playing a larger role in litigating these age discrimination cases and pursuing aggressive amicus participation is needed.

Third point I want to make quickly because I know my time is up, but it's worthwhile mentioning, is that Gross is bleeding over into other areas of discrimination law. Gross obviously was decided under the ADEA, the 7th Circuit, in the case called Serwatka said same analysis applies to the ADA, so it applies to the Americans With Disabilities Act. They did recognize, Judge Rovner recognized that that was under the pre-amended Act that said because of, and the new Act says on the basis of, but I am not sure that that is a significant difference. Second Circuit has adopted that type of language in a case we cite in the material, not in an employment case, but in an ADA Title II case where they say they believe the Gross type of analysis, meaning there is no motivating factor analysis permissible, would apply to the ADA under several Circuit Court opinions doing the same thing.

Similarly in the Title VII retaliation area, the courts -- some courts are starting to apply the Gross standard, saying there is no mixed motive analysis in a Title VII case. Again, EEOC needs to stand in the forefront to help practitioners fight that bleed over into other areas of the law. I stand prepared to answer any questions and thank you for the opportunity.

CHAIR BERRIEN: Thank you Professor Foreman. And, finally, on this panel, we have R. Scott Oswald, Managing Principal of the Employment Law Group, a law firm here in Washington, D.C., and thanks for joining us today.

MR. OSWALD: Madam Commissioner, thank you for having me, and to all the Commissioners.

The EEOC has asked me to address the issue of what kind of damages that the EEOC should seek in cases under the ADEA for charging parties. And what I think is very important is, as you all know, the damages structure under the ADEA is different from other discrimination statutes that provide for compensatory and even punitive damages in certain circumstances, the ADEA does not. It provides simply damages that flow from the economic loss that the individual suffers as a result of losing his or her job, and an equal amount in liquidated damages.

To see how this plays out, we can look no further than Mr. Williams' own case. Because what Mr. Williams testified about this morning in his case was that he was someone who was highly skilled, and he was able to find other work very quickly. Now, under the law of damages under the ADEA, unless his damages are properly calculated, Mr. Williams could be in a situation where he would have little or no damages as a result of intentional discrimination under the ADEA. So how can the Commission deal with this? How is it going to -- how should it deal with it in cases that are before it, cases now that are very difficult to win, as Professor Foreman has reviewed with us?

Well, the first thing that the EEOC can do is to regularly seek liquidated damages. The EEOC has not regularly sought liquidated damages in cases in settlements, as an example. It's something that is very important, because for individuals who, we've heard testimony previously, may never find other comparable work, those kind of damages can be very important.

Second, the -- we shouldn't look solely at the life tables that the Department of Labor puts forward in order to calculate the kinds of damages that are available under the ADEA. The reality is, as we've heard testimony this morning that people are working longer, they're living longer. That, and the tables that the Department of Labor has put forward simply are outdated, so we have to look creatively on calculating the kind of loss that an individual has based upon what's happening in their real life circumstances.

How do you do this? Well there are two ways to do it. The first way is to, in addition, in employing the kinds of experts that can help to calculate damages based upon a mathematical calculation; an economist, as an example, to employ vocational experts. Vocational experts can give meaning to what happens to the loss of reputation that one experiences as a result of losing the person's job; the difficulty that one will have in finding other work, as Mary Anne Sedey has talked about; the kind of discrimination that is endemic in hiring in the age discrimination context. So, what we can do is to calculate the amount of time that the individual is likely to really be out of work. And that then goes directly into the calculation of what their true economic damages are.

Next, it's important that the EEOC look very carefully and creatively on how we define front pay. Front pay is a calculation that goes forward from the date of trial onward, so we take it from the date of trial through the point at which the individual would mitigate entirely his loss.

Now, in many situations with individuals in the age context, they have been there a significant period of time; in Mr. Williams' case, as an example, 30 years. And they have become tenured in many benefit programs that the employer might have, in vacation and other types of perquisites that someone newly entering the workforce might not be entitled to. We have to give meaning to this, because it has real economic meaning if it is calculated, and calculated with precision for a court so that they can feel confident in entering a judgment on behalf of the individual on this basis. Remember that in most circuits, front pay is a calculation for the court. So the court is going to use a very exacting standard in that circumstance, and we have to address that with the kind of expert testimony that is necessary to give all of that real meaning.

One of the things that we've heard about today that I think is important is the fact that, especially in the age context, there are more and more workers who simply will never ever get back into the workforce. And without the kind of expert testimony that gives meaning to that, we're never going to be able to reflect that. And there's a consequence to this, because the consequence to not adequately valuing the loss is that individuals are more likely to seek the assistance of family members, or seek assistance from the federal or state governments. So this is a loss that we all are going to bear if we do not calculate damages appropriately and accurately in age discrimination cases.

With that, I want to turn to Commissioner Lipnic's question about what employers can do, because my firm represents employees, individuals who have suffered from age discrimination. And I think that employers can do a number of things that are -- that can have a real meaning in this area.

The first thing is training, training their managers on the kinds of things that -- to rid them of biases that might lead them to engage in age discrimination in the workplace. Training is essential in that process, and we have a representative of SHRM here to talk, I'm sure, about that.

The second thing is that employers, to the extent that they are using the economic circumstances in which we find ourselves as a rationale for slicing huge swathes of the workforce, what they can do, to the extent that really is economically motivated, is to offer individuals who are of older age, to remain with the company under reduced pay; to say to individuals well, we may not be able to afford you at X amount, but we can afford you at maybe 70 percent of that amount. I rarely see that, and my colleagues rarely see that. What ends up happening is that employers are simply terminating individuals, and to the extent that it is as a result of age discrimination, we know it, because employers are not looking at alternatives in the workplace. So these are some things that employers can do, from our perspective, to insulate themselves from claims of age discrimination, and practice really the best practices, Human Resources best practices, to make sure that their managers are attuned to discrimination and do not engage in age discrimination in the workplace.

I thank you all for your time.

CHAIR BERRIEN: Thank you to all of the panelists. And now we will begin with questions or comments from Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Thank you, Madam Chair. I want to thank the panel. It's very helpful, but also very disturbing. And I was struck, Ms. Sedey, by your description of how difficult it is to root out hiring discrimination. And this is for the panel, generally, but I'd be interested in looking at how the EEOC can do a better job in getting to the question of applicants, and hiring discrimination. What sorts of things might we be able to do that the private bar can't, or won't do, for a variety of reasons? In the past, we've talked about devices, like match-pair testing as a possible way of rooting this out, because people really don't know at the front end. Are there things that you would recommend to us that we could do to do a better job in this area?

MS. SEDEY: Well, you know, you have tools that we don't have. And I was struck by Commissioner Lipnic's suggestion that we need to understand more on an industry by industry basis what's really going on out there, because I don't want to use too broad a brush here, because we don't know the extent to which this is affecting people in particular industries, and the extent to which it is chance, economic hard times versus something systemic going on. Now my gut tells me that there are -- and my experience, my educated gut, hopefully, that there are areas where I would put some money that we would find some patterns. And sales, to me, is the most obvious one. I mean, I definitely see this over, and over, and over again that the sales person who's laid off, simply cannot get back in the game. So, that's my gut, but you have tools to figure it out in a much more specific way than I can tell you about.

The other thing that I think that you have is this ability to do some investigations without charges being filed. I mean, people take the business of filing a charge seriously. I mean people don't just walk in and file a charge because they think maybe, possibly, I didn't get an interview because of my age. And frankly, my clients who I'm representing in discharge cases, they don't say hey, let's bring some more charges. I mean, nobody says that to me, because this is such a tough thing to litigate anything, but the last thing you want to do is like have another one, okay? So, I think that you are in a unique position to really look at this, to do some testing of the kind that you're talking about; and to see where the serious problems are on a more discrete basis than we know in tandem with your colleagues at the Labor Department, for instance, who have the information, who can help you drill down into what are the real serious areas, and then to begin to look at this as a potentially systemic problem. I can't be certain that it's systemic, but when you hear those numbers about the duration of unemployment for people in the age group over 55, and you couple that with what you know from talking to your friends and family, and what we know from talking to lots of people who have lost jobs and can't find jobs; I mean, I honestly believe that many of my clients will never work again, and that is truly a terrifying thing. I mean, even the ones who say, hey, I'll work for less money, and people do it, the people who say hey, I'll go to McDonald's, I mean, you know who works at McDonald's. And people who are really willing to make some major sacrifices to stay employed at anything, can't find a job. So, I think you all are particularly well suited to do this, Commissioner.

COMMISSIONER ISHIMARU: Anyone else on the panel?

MR. FOREMAN: I would simply echo Mary Anne's comments, but focus also on your systemic investigations. I threw out statistics before. I think when you bring a class-based claim; it ups the ante for the employer that they'll roll the dice on an individual plaintiff because they have a good shot that it's going out for a motion for summary judgment. In a class-based claim, you up the quantum of the evidence that you have, and they're not as willing to roll the dice. And I think you get more settlements out of there, and changes in policy, because, frankly; the risks are much higher.

MR. OSWALD: Yes, I agree with that. Most employers simply are not particularly concerned about an individual charging party's claim. What concerns an employer enough to make the kind of systemic changes that you're interested in are class-based claims; that is where the EEOC, in my opinion, can do its best work to change the attitudes of certain employers, is to bring those kind of claims. And as part of the relief that you're obtaining in those settlements, to the extent that they do so, the kind of injunctive relief, very thorough training, postings; those kinds of things have a real impact in the workplace.

COMMISSIONER ISHIMARU: Thank you very much. You know, one of the reasons why I wanted to do a hearing like this is to begin that dialogue with our people of how we can do a better job, how we can -- to look to see how we do directed investigations under the Act; whether it's happening, whether it's happening consistently throughout the Commission, to whether we're using our tools at our disposal to try to root out this problem. And, also, too, how does the Commission deter this from happening in the future, which I think is a big part of our enforcement responsibility. How do we stop this from happening on the front end?

I see my red light is up. I appreciate the time, Madam Chair.

CHAIR BERRIEN: Thank you. Commissioner Barker?

COMMISSIONER BARKER: Yes, I just want to thank the panelists, because all three of you have given us a different segment of information that's very helpful. And I guess the thing that's disturbing is the whole picture of what's going on with the economy right now. I mean, we're focusing on people over 40, and rightfully so; but that does not mean that people under 40 aren't unable to find jobs, unable to support their families, unable to stay in their homes, unable to educate their kids; so it's just a very difficult phase in our history. But thank you very much. I've learned a lot from what each of you have said. Thank you.

CHAIR BERRIEN: Thank you. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you, Madam Chair. Thank you very much.

I actually want to invite your comments on a different issue. The same goal of stopping unlawful employment practice, but while far be it from me to not want a good class action case, I'll bat for it if we've got a good one; there is another tool that is in our box, and not only a tool, but a mandate in terms of outreach and education; and thinking creatively with employers who actually want to maintain the experience and talent that they have. And you're responding to Commissioner Lipnic about well, there's downsizing, what can we do? Well, what can all of us do together creatively, proactively to help make sure that the type of devastation that we heard about from Mr. Williams, and the type of devastation that you have so clearly indicated to us, that once someone gets fired; how hard it is to get hired somewhere else, and how hard it is to really make that claim. So let's think about what our responsibility is on the front end, okay? So just yesterday, I talked to what are called the program analysts of our agency, but they're called that for some GS reason. They are our outreach people. They are our education people. They are the people who are supposed to be educating employees about their rights, and employers about their obligations, right? And so, to them I said, and, therefore, I want to say it to you, and then invite your response, that in 1964 when Congress passed the statute and gave this Commission certain powers, power number three was to furnish to people subject to the law of technical assistance, if requested. Power Number Four, "Upon the request of, one, any employer whose employees or some of them, or two, any labor organization whose members, or some of them, refuse or threaten to refuse to cooperate in effectuating the provisions of this law, to assist in such effectuation by conciliation or such other remedial action." Okay, so, what was going on there was in 1964, there were plenty of employers and unions who had people within them who did not want Black people there, right? So, one of the powers was for us to come in and help make a change, okay? So, now we're 2010, there’s still significant racial discrimination, ethnic discrimination that we have to be working on, but now there's this element of age discrimination, where we have to be thinking about how to deal with the supervisors. We're going to hear about some actually great work that some of those same companies might have been doing, right? But sometimes it's the supervisor, right? How do we get to those folks? So sometimes it's just the overall approach, like, oh, they're expensive; let's just get rid of them instead of doing something else. So, here's my question. It's mostly to Ms. Sedey and Mr. Oswald, as practical litigators. So, Ms. Sedey was called on August 27 by the Human Resources Executive Magazine, "One of the top ten plaintiff attorneys to fear the most." What if NELA created a list of the top ten HR managers to love the most? Okay. And what sort of activity could plaintiffs' lawyers, EEOC, Department of Labor, HR, do to help us carry out our responsibility of providing some of that technical support?

MS. SEDEY: You know, it's such a wonderful question, because I was saying to the SHRM folks this morning that my experience is that there is -- many of the old kinds of systemic discrimination have pretty much been resolved. And that what you're dealing with often is what I call rogue managers; people who are not going to go with the program, they've got their own issue, whatever it is, and they're going to do what they're going to do. I really do believe that Human Resources people are the key to much of this. And I also believe, and I always find this in my cases, where there's weak Human Resources, people who don't really have the ability to have an impact on the decisions that are being made; that that's when things go bad, okay? So, to tie back to your question of what do we do about this? I am honestly amazed at the extent to which, as Mr. Foreman suggested, a lot of people really don't think it's just such a big deal to make these decisions based on age these days. I mean, and I literally had a meeting for a couple of hours on Saturday with somebody who told me this story about how her boss has come to her and said that, you know, her 35-year old counterpart, she's 58, by the way, great at her job, great evaluations, sales, so there are numbers; her 35-year old counterpart wants her job, and what can he do to get her to move out of this job that she's great at, because he wants her job? You know, now, it has not occurred --and her boss refers to some of her colleagues as dinosaurs, okay? Now, mind you, she's the same age as these people he's referring to as dinosaurs. So, obviously, he doesn't get it, okay? I really do believe that there is a job to be done, because we have not focused on this age discrimination thing in a long time. And I don't know that we've ever focused on it in the history of the Act, as a hiring problem. So, I really do believe that this is an area where proactively, in addition to looking at where are the problems, and what can we do about them in terms of investigating, and that sort of thing; that really a program designed to provide technical assistance on the hiring issue, to sort of raise public consciousness about the problem of age-based decision-making in hiring. I think those things could actually be quite effective, because we haven't looked at it in a long time. And I don't know that we've ever looked at age discrimination as a hiring problem, at least in my memory. And I've kind of been around a long time. I'm sort of one of those dinosaurs, too. But I think you're right, I think there's lots to be done.

COMMISSIONER FELDBLUM: Madam Chair, I know my time is up, but can Mr. Oswald respond to this, too?

MR. OSWALD: Well, in addition to the EEOC's own mandate, the ADEA Statute, itself, has an incentive for employers to institute the kind of training and best practices that we've talked about here, and that is its damages structure. Liquidated damages are available under the ADEA, but an employer can defend against them, if the employer can demonstrate that it has acted in good faith. And one of the bases on which an employer can rest its good faith defense is whether or not it has engaged in the kind of training in the workplace to prevent age discrimination; whether it was acting in good faith at the time. So there's a real incentive in the structure of the ADEA to do exactly what Commissioner Feldblum has talked about. I think I agree that, usually, it is a breakdown in Human Resources function, and it's one of two things, either inattentiveness, or it may be that the Human Resources -- 

COMMISSIONER FELDBLUM: Because of what?

MR. OSWALD: Inattentiveness to the problem or the Human Resources function is simply not robust within the company. We have a representative today from the Society of Human Resources Management, they play an important role in the Human Resources process. They do their own training, they have certifications that they give to Human Resources professionals; and to the extent that the EEOC were to work with SHRM to institute the kinds of best practices that are important in EEOC's own priorities, and marry those up with the Society of Human Resources Management policies; then there could be a partnership, I think, that could be very effective in at least ameliorating some of these problems in the workplace, as it relates to age.

COMMISSIONER FELDBLUM: Thank you.

MR. OSWALD: You're welcome.

CHAIR BERRIEN: Thank you all. And now Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you, Madam Chair. Actually, I have a question for each of you.

Mr. Oswald, just to follow-up on your comment about employers who have -- some you see -- you were suggesting that many people have not necessarily, looked to reduced hours to retain older workers. And I'm wondering if there is a potential Fair Labor Standards Act problem there if they try to reduce the hours, of which they have to be very careful. And I'm wondering if you could talk about that at all. Have you seen that? I mean, there is a real trap for the unwary there under the FLSA, if they try to reduce those hours. So, have you dealt with that issue at all?

MR. OSWALD: I have, but what we're talking about is not a reduction in hours, but a reduction in pay.

COMMISSIONER LIPNIC: Well, there's a trap there, too.

MR. OSWALD: I'm with you, but there are ways in which to do this. My point simply is that employers rarely, do we see, Mary Anne and other practitioners like myself, a situation where an employer has asked employees to take a reduction in pay in lieu of these kinds of RIFs; it just doesn't happen very regularly. And it is one way that an employer can insulate itself from a claim of age discrimination, if it has done those kinds of things. And, you're right, there are potential problems under the Fair Labor Standards Act, but if they've already defined the person as exempt, for example, then they can do it. They simply do it as a matter of the amount of pay. As long as they continue to pay them on a salary basis, then they're going to be fine, so long as the position remains the same in terms of the exemption.

As it relates to individuals who are non-exempt under the Act, the Act does permit an employer to reduce the amount of pay, so long as a neutral across the board companywide process. Where employers get into trouble is where they do it really kind of piecemeal. But if they do it as part of an overall reduction in costs, and they do it consistent with the dictates of the Fair Labor Standards Act, then it is possible.

COMMISSIONER LIPNIC: Yeah, and I just -- the one that I would point out, and this is another one of those areas where I think we're really lacking data. And I'd be interested in some further follow-up either with our economists here, or with the Bureau of Labor Statistics, is I'm not sure -- your statement that you haven't seen a lot of employers who have done that; engaged in asking employees are you willing to take a reduction in pay over the last couple of years, I mean, I have, I think, particularly, for large employers who really have tried to retain jobs, they have done that. And I'm not sure that sort of the broad statement that gee, we haven't seen a lot of employers do that - I don't really know what the answer is in terms of how many have, or how many haven't, but I think many, certainly large employers, have actually engaged in doing that, as a way to try to retain older workers. But this is, again, one of those things where I think the data would be useful to all of us in pursuing this issue.

Professor Foreman, I had a couple of questions for you in terms of the Gross decision, and a couple of things that you touched upon in your testimony. And I also want to echo the comments of Commissioner Barker, that Gross is the law of the land, and until Congress decides to change that, we are bound to follow that. But I noted in your testimony that you've said, and you touched upon this in your oral testimony a little bit, that some courts have concluded that age has to be the sole factor on which a decision is based. And I'm not sure that I, necessarily, read Gross that way. And I'm wondering if you could tell us a little bit about what the reasoning of the courts have been as to how and why they are saying that that is the sole factor.

MR. FOREMAN: I think your interpretation of Gross is correct, that it never said anything about sole factor, but it said "but-for" factor. But they do drop the footnote saying that we're not sure whether McDonnell Douglas has any utility in age discrimination. We're not sure why they felt compelled to drop that footnote, but I do --what you're seeing is District Courts reading that, and saying well, "but-for" causation must mean sole causation, and there is not any deep analysis beyond that. And in my materials, I think it's later on, I won't waste time digging it out now; there's some actual cites where they say there is -- the plaintiff has no ability to show that this was, in fact, the sole cause; and, therefore, the plaintiff is thrown out in a motion for summary judgment. I agree, I think that is a misreading of Gross as properly applied, but it is part of the bleed-over that we're seeing, where people are struggling, what does this mean now?

COMMISSIONER LIPNIC: And another question I had about the Gross decision is, you know, it strikes me in that decision that when the court comments that mixed motive has -- and they cite to various studies and articles, that this has been a difficult standard to apply, and it sort of played out that way, and I wonder what your thoughts are on that.

MR. FOREMAN: My comments on that are two-fold. I think mixed motive sends an extremely important message in Price Waterhouse and the follow-up played with that message, that if race, sex, age is a motivating factor, if it's part of the equation, you violated the law. And I think back to your point, that's what EEOC, and what these discrimination laws were here for, to take that out of the equation. So, I don't think that's problematic at all.

What has been problematic is because of the compromise they incorporated a same decision defense into the 1991 law that says okay, if the employer takes it into consideration, even though that's a violation of the law; they can limit their damages over here. I think that has posed problems; the same decision defense is what has caused problems, and I think that's what Justice Thomas was talking about, the utility of mixed motive analysis. And indeed, at oral argument another way to approach this is to eliminate the same decision defense out of discrimination law all together, and treat it like you do every other lawsuit, where if the law was broken, you've taken this classification into consideration; you broke the law, you, jury, figure out how you've been damaged. And if the jury determines they really weren't damaged because they wouldn't have gotten the job; they're not going to get any damages, but it takes away sort of this statutorily incorporated same decision defense. And I know that's a stretch, given where we are legislatively, but that's the one way to solve that issue.

COMMISSIONER LIPNIC: And, Ms. Sedey, I have a couple of questions for you. You mentioned that -- and, Madam Chair, I see my time is up, if you will indulge me just for one question here. This is following up on really Commissioner Ishimaru's comments about one of the reasons for our meeting today. And you suggested, and certainly it's the case that the EEOC probably has greater resources available to it than individual attorneys like yourself in terms of doing investigations, but what I'm trying to figure out is, given what you said, that in age cases there's such a --how do you get at that information? It's not like a hiring case, right, where everybody knows what happened? And it seems to me that in any age case now, given the number of applicants for any job, which is just exponentially greater than it's ever been over the past even decade; that that makes our task even at the EEOC as investigators as difficult as someone like yourself, and I'm wondering if you have thoughts on that. And, actually, I'm interested in Commissioner Ishimaru's thoughts on that, too, in terms of how we would go about that kind of investigation, because I think it's so difficult, as you point out, to get at that information when now you're multiplying it by tens of thousands of applicants for any particular job.

MS. SEDEY: Well, you know, I have a few thoughts. The first is that I really think your comment to Dr. Stillings was completely accurate; which is that we need to understand the problem better; we need to understand where it's really a factor, and there are numbers to look at. I mean, there are patterns that emerge when we begin to look at what's really going on out there. So, I think the first step is, let's see what the patterns are. I mean, where is the problem? We don't need to treat this as a problem everywhere, if it's not a problem everywhere. So first of all, let's figure out exactly where the problem is.

The other thing is that in the old days, we had lots of hiring cases in race area, okay? And we figured out a bunch of tools for addressing race-based hiring, and investigating race-based hiring, and figuring out what was going on there. I think once we know where the patterns are -- you know, one of the things you all have is you've got EEO-1 Reports. I mean, I don't have those. You know the distribution of employees by various demographic factors, including age, and you know, again, not specifically about people being hired versus people being -- who just happen to be in the job, but, again, you can see patterns. You're going to get notions; you're going to see things that I don't have the ability to find out.

And then the final thing is, exactly what Commissioner Ishimaru was saying, and that is that we have this ability to do, for instance, paired hiring, paired applicants, where you send people in with very similar resumes, very similar experience, different ages, just see what happens. I mean, it's not easy, but on the other hand, it's a big problem. And we need to, at least, begin to address it.

COMMISSIONER LIPNIC: Thank you, Madam Chair.

CHAIR BERRIEN: Thank you. I will be very brief, and want to just note that this panel has foreshadowed in some ways the conversation that we have asked our final group of witnesses to speak to concerning best practices. So, thank you for your input on that, and we'll look forward to hearing more about that in the next panel.

The -- I'd like to ask all of the panel, is there any other data that you believe the EEOC should collect to improve enforcement of, and compliance with the ADEA?

MS. SEDEY: I think hiring data would be extremely useful, just asking for the applicant pool. Now, you know, a lot of employers will say well, we don't ask people their ages, so that makes it a little trickier, but there is information. I, for instance, have seen a lot of online job applications where people are asked their date of birth on these online job applications. So, there is some information about age. And once the employees get there, there's information about age, once the person has been hired. So, looking, for instance, in discrete categories at who's getting hired could be very helpful.

CHAIR BERRIEN: Any other comments?

MR. FOREMAN: I agree with Mary Anne entirely.

CHAIR BERRIEN: Okay.

MR. OSWALD: Likewise.

CHAIR BERRIEN: And my other question is we've heard today, so far today about possible hiring discrimination, and in the case of Republic, conditions of employment, harassment, and discharge issues affecting older workers. Are there any particular concerns or issues that the Commission should be aware of concerning either retaliation against workers who enforce their rights under the ADEA, or any other area of the terms and conditions of employment that we ought to be considering as we're looking at these issues?

MR. FOREMAN: I will just lead off with, I think, obviously, that retaliation is something that's in any employment discrimination charge. Again, I think the witness who testified before talked about why didn't he come to the EEOC, because he was worried about getting a job back, he was worried about what would happen. I think any plaintiff that walks forward has a very practical concern about retaliation, and how that, indeed, plays out.

MR. OSWALD: Yes, I agree entirely, especially with employees who are currently working for the employer. No one steps into the -- at work and says gee, I want to come forward, and I want to blow the whistle, no one says that. And coming to the EEOC, filing a charge is a huge step; even going internally to their Human Resources Department is a very big step, because they know the consequences of what is likely to happen.

And we see that in our practices all the time. The underlying claim legally may not be particularly strong. It is the retaliation claim that is very strong. And employers have real incentives to do the kind of things that prevent retaliation in the workplace from the perspective of juries, and we interview jurors regularly. A lot of juries don't, necessarily --they don't understand readily certain types of discrimination, they understand retaliation. And these are the kinds of claims that jurors, if they believe there has been unlawful retaliation in the workplace, really will come forward with larger types of damages that we see in certain cases.

MS. SEDEY: Yes, I agree, big problem.

CHAIR BERRIEN: Well, I want to thank this panel very much on behalf of the Commission. Thank you for your time, thank you for all of your efforts in appearing here today, and for the expertise you've shared with us.

I will ask that before our next panel representing AARP and the Society for Human Resource Management, before these esteemed panelists come forward, we're going to take a brief recess, 15 minutes, and then we will conclude with the panel on Best Practices in the Workplace concerning older workers. So, thank you, and please return promptly so that we can conclude near the time we promised the witnesses. Thank you.

(Whereupon, the proceedings went off the record at 12:09:45 p.m., and went back on the record at 12:20:49 p.m.)

CHAIR BERRIEN: We are ready to come back to order, and we have been joined now by our final panel of witnesses, Deborah Russell from the American Association of Retired Persons, and Cornelia Gamlem from the Society of Human Resource Management. Thank you all for your patience, and thank you all for the time you are spending with the Commission today to help to shed further light on the subject.

Let us start with Ms. Russell, who is Director of Workforce Issues at AARP. And as Director at AARP, Ms. Russell leads a team that focuses on issues affecting individuals 50 and over by developing information, programs, technical assistance, and practical research. And I will just also share that as Commissioner Lipnic indicated earlier, it does seem to me that those cards come earlier and earlier.

(Laughter.)

CHAIR BERRIEN: But thank you so much for being here today and we look forward to hearing from you.

MS. RUSSELL: Chairwoman Berrien and Commissioners, thank you for inviting AARP to participate in today's meeting on the pressing problem of age discrimination in today's economic times. I am Deborah Russell, the Director of Workforce Issues in AARP's Education and Outreach Department. As you know, AARP is the nation's largest membership organization for people 50-plus, working to help people 50 and over improve the quality of their lives. The opportunity to work free from age discrimination on the job is central to the quality of life.

We sincerely appreciate the Commission's continuing attention to age discrimination, as exemplified by hearings such as the one today, and by your proposed regulations on disparate impact under the Age Discrimination in Employment Act. We strongly support those proposed regulations, and urge the Commission to finalize them before the year is out.

As you're well aware, the financial meltdown of 2008, and the recession that has followed in its wake, have had a devastating impact on older workers. Unemployment among older workers aged 55 and older, as we've already heard, is at record high of over 7 percent, for older men it's over 8 percent. Compared to workers of other ages, older workers have seen the sharpest increase in their unemployment rate, and once jobless, suffer much longer spells of unemployment than younger workers. On average, as we've heard before, workers 55 plus were unemployed for 44.3 weeks in October 2010, which is nearly three months longer than the average 33.2 weeks for workers under the age of 55. To help address this new reality, AARP sponsored 40 career fairs in 19 states with the highest unemployment rates amongst older workers. These career fairs included workshops addressing issues such as branding yourself at 50-plus, and how to leverage networking. In addition, we offered one-on-one counseling, instruction on how to search for jobs on line, and posting resumes on line. These events offered 50-plus job seekers a host of resources and tools to increase success rates in securing employment. In total, AARP served over 50,000 people in 2010. These events taught us a lot about what is really happening across America with respect to older job seekers, and their success in finding and securing employment. And our members tell us that age discrimination is definitely a factor in their difficulties finding a new job. In addition to job loss, the stock market crash and the bursting of the housing bubble inflicted a double whammy on older workers retirement savings and housing wealth. The bottom line is that as a result of this recession, many older workers will have no choice but to work longer, since they won't have the financial ability to retire.

I just want to take a moment to tell a story about one of my experiences at one of these career fairs. It was in March, it was in Cleveland, Ohio. There were 6,000 people standing in line, and only 60 employers there that had jobs. I was talking to a gentleman who had been running a forklift his entire life, and he had a resume that was, essentially, half a page long. And I started talking about things like functional resumes, and social networking, and signing up for LinkedIn, and finally he looked at me and he said, "Ma'am, I have no idea what you're talking about." And it made me realize that there were a lot of people who got their jobs because their father knew Joe, and got them that job, and they've been working there for many, many years, and all of a sudden have found themselves unemployed, and don't even have the tools to find another job.But even before this recession, it was clear that a significant proportion of older workers would need, or want to stay in the workforce past traditional retirement age. AARP's own surveys indicate that as many as 70 percent of older workers expect to remain in the workplace beyond normal retirement age. The top two reasons for wanting to continue working are economically driven, for the money, and for the health insurance. However, boomers also want to remain engaged in the workforce. They tell us they want to remain mentally and physically active, and that they want to contribute their knowledge, skills, and abilities in mentoring younger workers, and giving back. As people are living longer, the idea of retiring at 65 is less appealing when you have the potential for living into your late 80s, or even into your 90s.

The Bureau of Labor Statistics predicts that older workers will account for almost all the growth in the labor force over the next decade. Between 2008 and 2018, the workforce is projected to grow by 12.6 million workers; 12 million of those will be over the age of 55. Consequently, workers 55 and older will constitute nearly one-fourth of the labor force by 2018.

In an effort to address these issues, AARP has several initiatives that help employers value and prepare for an aging workforce. AARP's National Employer Team is a hiring partnership that recruits employers who have specific interest in hiring the mature workforce. Established through a collaboration with Home Depot, AARP now supports 42 National Employer Team members that represent diverse industries, such as CVS, Johns Hopkins University, Kelly Services, Allied Barton, as well as government agencies, such as the Small Business Administration, and the IRS.

These companies are required to participate in management training that insures ongoing development of managers on how to recruit, manage, and retain older workers. In addition, the National Employer Team members participate in career fairs, collaborate on web-based seminars, and participate in AARP sponsored business roundtables.

AARP assembled over 30 associations that represent employer groups; it's called the Aging Workforce Industry Network. AARP shares tools, information, and resources that are passed along through these associations. Industries such as Health Care through the American Hospital Association, Human Resources through the Society for Human Resource Management, Transportation through the American Trucking Association, are better prepared for the demographic shift as a result of working with AARP. One example of this work includes a joint marketing and outreach effort AARP and the American Trucking Association conducted to encourage older workers to consider a career in trucking. Ads that depicted driving a truck and seeing the American landscape as an encore career yielded over 50 new truckers for Schneider's Trucking, including a husband and wife team that are spending their retirement driving trucks across the country.

AARP's biennial awards program recognizes companies that demonstrate their commitment to the recruitment and retention of older workers; that is, our AARP Best Employers for Workers Over Fifty program. To date, we have recognized over 350 companies, and I'll be discussing trends that we've learned through these awards programs later.

Our AARP Executive Insights, which is a quarterly web-based seminar that covers a variety of topics pertinent to the management and retention of older workers. We invite winners of our Best Employers for Workers over Fifty members, and our National Employer team members to participate in many of these webinars. This is a great opportunity to showcase employer best practices to other employers that are facing similar challenges in addressing an increasingly multi-generational and aging workforce.

AARP Research. In addressing the return on investment with respect to hiring and retaining older workers, AARP conducts annual research to educate employers about the workplace needs of 50-plus workers, as well as understanding the costs associated with recruiting this demographic. Significant reports include the AARP/Towers Perrin Business Case for Fifty Plus Workers, the AARP Staying Ahead of the Curve report, and our fairly recent AARP Fifty Plus Hispanic Workforce report. This year, in partnership with the National Urban League, we are releasing a study in December that will focus on the 50-plus African American workforce.

The AARP Employer Resource Center is an internet site on the AARP.org website targeted to employers that are interested in finding information pertaining to the aging workforce. On the site you will find information relating to employer Best Practices, webinars that can be downloaded, tips and tools, management trainings on recruitment and managing a multi-generational workforce, and much more.

This year we also published a book, "Managing the Older Worker - How To Prepare for the New Organizational Order," is a recently published book authored by AARP's former CEO, Bill Novelli, and renowned Professor of Business at the Wharton School, Peter Cappelli. In this book, Novelli and Cappelli explain how companies are facing a multi-generational workforce, and what needs to be done to maximize the value provided by older workers, with the main focus being on adapting management practices with practical examples.

And, finally, AARP is pleased to have established a strategic partnership with the Society for Human Resource Management. In an effort to determine the prevalence of workforce planning to anticipate demographic changes in the workplace, SHRM and AARP conducted a strategic workforce poll of close to 400 SHRM members. Results show that 39 percent of poll respondents reported that their companies were examining internal policies and practices in preparation for workforce shortages when older workers retire. I believe that my esteemed colleague representing SHRM will be providing additional results of the poll.

These polling results underscore the need for more employers to recognize the value of long-term talent management planning in order to anticipate shifts and changes in the workplace. SHRM has joined AARP to cosponsor the AARP Workforce Assessment Tool. This free 30-minute tool was developed by AARP in 2008 to help employers plan for the demographic realities of their workforce. The tool allows an employer to input current demographic data, record average ages of retirement, and taken inventory of current policies and practices that are meeting the needs of workers 50-plus.

As I had mentioned earlier, and I know I'm out of time, so I will rush through this piece. AARP publicizes employers that value the skills and experiences of older workers through the Best Employers for Workers Over Fifty. In its tenth year, we have learned a lot about what employers are doing to meet the needs of this demographic in the workplace. And I just wanted to highlight a few examples.

The health care industry recognized that with the challenge of recruiting younger individuals into health care-related jobs; recruiting and retaining older workforce had to be a strategy to address these labor shortages. Health care represents almost a third of our list, and they are the gold standard with respect to implementing policies and practices that impact their aging workforce.

These include things like workplace accommodations, installing hydraulic systems into patient beds to minimize the responsibility of nurses to lift patients out of bed, offering more flexible hours to address the requirement of nurses working long hours. Some hospitals, like Bon Secours Health System in Richmond, Virginia offer three-hour shifts. In addition, they offer benefits for these part-time arrangements.

Manufacturing recognizes the need to examine their production floor to determine whether they are older worker-friendly. An international trucking company reconfigured the assembly line to address older mechanics that could no longer slide under the trucks for mechanic diagnostics. The company inverted the assembly line allowing the mechanics to stand while performing the mechanical work.

Many of our employer partners and AARP Best Employer recipients offer benefits that attract a multi-generational workforce, including flexible work arrangements, such as teleworking, compressed work weeks, part-time opportunities, and phased retirement. In addition, they are looking at things like rehiring retirees. Cornell University currently has 3,850 retirees, and an employee who is responsible for working directly with these retirees. They are able to hire them back to work on special projects.

In conclusion, in yesterday's world most people went through a fairly sequential pattern in their lives. Education was for the young, work was for adults, and leisure retirement was for the old. But that pattern has changed. Age no longer defines what we do in our lives, or when we do it. This is especially evident in the workplace. Just as the population is getting older, as a result of the aging boomers, and people living longer, so, too, is the workforce. People are working longer, either out of choice, or necessity. It's time for workplace practices to catch up with today's workplace reality.

To stay competitive on a global scale, businesses must plan now to recruit, train, and retain workers of all ages, just as they must plan for other elements of diversity. For those businesses that ignore this reality; the consequences could be significant, as seasoned workers with institutional knowledge leave and seek other opportunities, perhaps even with their competitors.

Thank you again for the invitation to participate in today's hearing. AARP looks forward to working with the Commission to insure that older workers have equal opportunity in the workplace, and I'll be happy to answer questions later. Thank you.

CHAIR BERRIEN: Thank you very much for your testimony. And to Cornelia Gamlem, thank you for joining us today, and briefly, I will say you're representing the Society for Human Resource Management today. You have more than --Ms. Gamlem has over 25 years of experience in the Human Resources field at both operations and corporate level. And you are a recognized expert in Equal Employment Opportunity, Human Resources and Workplace Diversity issues. We thank you for being here, and thank SHRM for participating in this event.

MS. GAMLEM: Thank you, Madam Chair and distinguished Commissioners. I appear here today on behalf of the Society for Human Resource Management, representing more than 250,000 HR professionals in over 140 countries. I've been a member of SHRM for almost 25 years. I'm currently the President of my own HR consulting firm, the GEMS Group. I've held numerous volunteer leadership positions with SHRM, including serving on its Board of Directors in 2000 and 2001. And I greatly appreciate the opportunity to appear here today to discuss the issues associated with our nation's mature workforce.

SHRM vigorously opposes employment discrimination based on gender, race, religion, color, national origin, disability, pregnancy, sexual orientation, or age. We strongly support the Age Discrimination in Employment Act. Our members are responsible for developing and implementing workplace policies and practices that provide guidance to managers on fair and effective employment practices.

We've talked a lot about unemployment today, we've talked a lot about its impact on the older worker, and we've also talked a lot about people staying in the workplace past traditional retirement age, and the reasons why. Predicted labor shortages driven by the baby boomers' retirement in the future points to the importance of fully embracing and utilizing older workers. Adding to the complexity of a maturing workforce, employers today are also challenged with managing four distinct generations who were born before 1945 through 1994. Each brings different experiences, expectations, and values to the workplace.

I'm very pleased to testify alongside Deborah Russell of AARP. We have a common interest in issues related to workers age 50 and older. SHRM and AARP are currently collaborating on a partnership to raise awareness about the implications of an aging U.S. workforce. Deborah alluded to the survey that was recently conducted, and over half of the participants had indicated that they were very much concerned about the changes in the workforce, and had planned to do an assessment to see what the impact would be as older workers began to retire.

SHRM and its members promote workplace policies and practices that support responsive, equitable, and fair treatment of all employees. These practices vary in focus and scope depending upon the size and needs of the particular organization, and its industry. Our members look to the resources that SHRM provides for guidance in developing these policies and practices. These resources include articles, links, and sample policies. Often the information is aggregated into toolkits, which offer information on specific topics. We provide toolkits for employing older workers and generations.

To attract mature job seekers, employers use targeted recruitment activities, such as unretirement parties, alternative advertising in different media that attract older workers, or targeted recruitment messages. Our members recognize that there's an increasing potential for workplace discrimination on the basis of age. To insure that management staff understands workplace discrimination, they offer them training and guidance. Effective training ties the legal requirements of the ADEA and other non-discrimination laws to the practical implication of everyday decisions that managers must make regarding people in their organization, and it provides those managers with the skills that they need to manage a workforce in the framework of fair and equitable workplace policies and practices.

That comprehensive training goes beyond compliance training, though. And it incorporates inclusiveness and diversity issues, including age, and generational differences, and their relationship to the workplace. They also provide guidance for respectful workplace behavior, and challenge stereotypes and assumptions so they don't lead to inadvertent discrimination. One example is to avoid telling age-based jokes, or making comments, even if you're a member of that particular protected class, and for managers not to tolerate that type of behavior from their staff.

SHRM has a long history as a public policy leader. Our 2009 Workplace Flexibility Public Policy Position Statement reflects our desire to engage in a new dialogue about work life issues, and the realities of the 21st century workforce. Key stakeholder groups and public policy decision makers now look to SHRM to lead on the issue.

Workplace flexibility issues address the needs of employees in all ages and circumstances. According to a recent survey we performed, half of the HR professionals who responded indicated that their companies offer flex time, and half indicated that they offered some form or telecommuting. Other successful arrangements were also reported.

Flexible scheduling options that appeal to older workers include part-time and casual employment. Phased retirement programs while popular, have obstacles including unresolved legal questions, and employers await guidance before taking action. Mature workers are interested in flexible work arrangements for many reasons, including elder care responsibilities which are often hidden.

Reductions in force are sometimes necessary, particularly in times of economic downturns, such as the one that we're in now. And I know it's of a particular concern to the Commission. RIFs are not easy with respect to the decisions that employers have to make, nor the implementation of the event. I've had to implement a number of them, and I've got some of the scars and the gray hairs to show for it, but even well thought out decisions can raise issues of potential disparate impact.

Line management along with Human Resources must engage in an assessment of both the organization, and the individual employees. Selection for layoff decisions must be based on a combination of factors, which include the organization's needs, the employee's skills, knowledge, ability, reliability, performance, and length of service. Special considerations should include, what does the current organization look like with respect to the work that needs to be performed, the skills that are needed to perform that work, and what does the proposed or the reorganized company need to look like? Does the individual employee possess a broad base of transferable skills, one unique critical skill, or specific technical or institutional knowledge? Has the employee demonstrated flexibility, agility, reliability, and a positive performance record?

Consideration of multiple factors can still result in two people who possess equal skills, knowledge, ability, reliability, and similar performance records. When this happens, organizations should consider the person with the least length of service for layoff first.

The retirement of 76 million baby boomers will influence the U.S. workforce for years to come, and challenge organizations in all sectors of our economy. Employers recognize this, and are preparing by engaging in Best Practices that we've discussed today.

We appreciate the Commission's interest in older worker employment issues. SHRM encourages exploration of changes to government regulations that would make voluntary workplace flexibility policies and phased retirement easier to implement for employers, and more beneficial for employees. In seeking to encourage the adoption of effective practices to avoid discrimination; SHRM believes that public policy should provide a flexible framework so that employers are able to develop programs that address the needs of the workplace, and the older employee.

Thank you for your invitation to participate today, and I look forward to answering your questions.

CHAIR BERRIEN: Thank you very much. Again, thank you to both panelists, and we will now open the floor for questions from the Commissioners, beginning with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Great. Thank you, Madam Chair. I want to thank both of you for your presentations, and also for your work both separately and together in coming up with various common solutions to this issue.

I think the one thing that struck me, your organizations come to it from different perspectives, and I think there's a strength to that. And you bring your experience, your knowledge to the table. And whatever you come up with doesn't necessarily, result in unanimity, but you bring strengths from those perspectives, and I think that's very helpful. I think coming up and honoring best places to work is a great idea, because it points out Best Practices, it points out how people have done it, and done it well. But it also points out that you can't rest on your laurels. And I think you've raised that, that you constantly have to be looking at how you do work, and to make sure that it's not a mask for something else, because it's easy to put the plaque on the wall, and people should be proud of being honored for what they do. But it also can't be used as this is our imprimatur to do anything. And I think smart employers don’t do it that way. It doesn't make sense from a compliance point of view, and it doesn't make sense from a business point of view. And I just want to salute both of your organizations' good work over the years of making this happen, and pointing out that the diversity of viewpoints is actually a stronger perspective to have; that it helps us get to where we both -- we all want to go. And I want to thank you for your presentations. I really don't have any questions. Thanks very much.

CHAIR BERRIEN: Thank you, Commissioner. Commissioner Barker?

COMMISSIONER BARKER: Yes. I want to echo Commissioner Ishimaru's thanks to both of you for your presentations, and what you've added to the information that we've heard today.

One thing that I thought was interesting, Ms. Gamlem, was your comment that in your Best Practices recommendations to employers, you remind employees that they should not make age-related remarks, even if they're self-deprecating remarks. An employee who goes around making kind of joking reference to oh, another senior moment, or I just had a senior moment, something -- if there's any phrase I could eliminate in our day-to-day language, I'd love to eliminate that one. For someone who goes around and just makes joking self-deprecating remarks like that is really making a statement that he or she views himself as being -- having age-related problems, and that's not a good thing. And that's just not anything I've ever thought about before, but I think that's very good advice. So, again, thank you.

CHAIR BERRIEN: Thank you, Commissioner. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you, Madam Chair.

First, thank you very much. I have enormous respect for both of your organizations. And, Ms. Russell, I've certainly heard your name a lot over the years, so it's wonderful to see you here, and it's been lovely to meet you in this context.

One question, one sort of comment, I very deliberately asked the previous panel of lawyers about what they thought about the utility of what we sometimes call in academia, the soft law of technical assistance, et cetera, because I very deliberately want to ask the two of you about the utility of hard law, in terms of class actions, and high-level litigation.

Professor Foreman mentioned to me over the break that the data is very clear, and it's data I know, that the one thing that often moves companies to change is a high-level, high-visibility, tough piece of litigation against them, and that's true. That's why I said, far be it for me to not consider that, right?

So here's the question I want to ask both of you. One, what is your sense of how well employers, and I mean that in terms of all the level of managers; understand that age discrimination is wrong, okay? What's your sense -- I'm asking you your personal anecdotal sense, I'm also curious if you have any data on that; but what's your sense of how much they understand that is illegal. And if your answer is that there's some gap in that knowledge; what sort of high-level resource-intensive class action should we be looking for, as a Commission to, in fact, make that case, convey that to employers?

MS. RUSSELL: I guess I'll start by saying that I think that my experience has been that most employers understand that age discrimination is illegal, but in a very black and white sense. The comment that Commissioner Barker made with respect to people who make those offhand comments, as we've done a significant amount of work in vetting the companies that we honor for Best Employers; one of the things that we do is a background check on them, we look at have there been patterns of discrimination. And what's been fascinating is that in many cases, it is that lack of training on the part of a sometimes younger manager who keeps calling that same employee, Pops. Because in his mind that's not discrimination, that's a -- maybe it's a pet word, maybe whatever that is. He understands that, perhaps, he can't fire that person just by saying well; we're firing him because he's old. But it's that gray area of how we treat older individuals in the workplace that I think oftentimes is what people don't understand, employers don't understand is equally enforceable. So, again, in terms of training and understanding the scope, I think there are so many gray areas to age discrimination, as opposed to the conversation earlier, if we were to insert race, or insert sex discrimination; it's very apparent. I think it's also because not everyone can be Black, not everyone can be female, but we're all getting old. So, it's that commonality that I think makes age discrimination more of a mainstream kind of thing. So I think it's important to help employers understand really the scope of discrimination. It's not just the black and white law, but it's also how you treat people, how you address older workers in the workplace.

MS. GAMLEM: You know I've done a lot of management training over the years. I mean, clearly, the issue of age discrimination is brought into the discussion; clearly managers are made to understand this is something that the company will not tolerate. But I tend to agree that yes, there is a lot of that gray area where yes, I'm not going to say I'm not going to hire this guy because he's too old, or I'm going to fire him because he's the oldest one in the bunch. But getting into some of those subtleties, and I really made it a point, especially when I've worked with smaller companies, when I left the large corporate environment and had the opportunity to work with smaller companies that don't always have the resources, to bring that point home, both in management training, and in training employees; and I always -- I mean, I'll often get calls, we need sexual harassment training, and my response is no, you need workplace harassment training, and go out of my way to bring in some of these other facets that say, you know, we can create a work environment that's unprofessional, that's disrespectful by making some of these kinds of comments. And if these types of comments persist in the workplace; the next thing you know it's kind of moving up the scale, and now you're above this line that we call workplace discrimination. And you can get there very slowly, and it's kind of a creep. And my message then back to the managers when I can pull them aside is; you've really got the responsibility to monitor what's going on in the workplace. And when you hear these kinds of discussions, and conversations; you've got to step up, and you've got to put a stop to them, because that's the only way we're going to begin to address some of these issues.

A couple of years ago, I was doing some training in a fairly large company, and one of the managers looked at me, almost like are you kidding? I mean, don't people know this? And I just looked at him. I said, "You know, if everybody knew this, I wouldn't be up here talking; my practice would probably be suffering; I wouldn't have the income, because no, there's still work that's out there to do." And we had almost the same discussion about these subtleties that you've really got to realize that sometimes that's at the core of the discrimination that's going on in today's workplace.

COMMISSIONER FELDBLUM: Madam Chair, may I have 60 more seconds? So, I noticed that neither of you responded directly to what sort of class action litigation we should bring, which I understand. But I'm going to sort of deduce from your remarks that to the extent that there can be a situation in which someone really isn't doing the job well, and the EEOC brings a case, and makes that clear; I think maybe your businesses will increase as other companies realize we need to give training.

My only other short thing is, I noticed, Ms. Gamlem, that you said that with regard to phased retirement programs, there is still some legal questions, and employers await guidance before taking action. Can I take that as a request or comment from SHRM that the Commission should look at this issue, and see if guidance should be issued on this?

MS. GAMLEM: What I would like to do is defer to some of my colleagues at SHRM to, perhaps, have a more extensive dialogue with you on that topic.

COMMISSIONER FELDBLUM: I would welcome that dialogue. I think that would be an important thing to come to the Commission and discuss. Thank you, Madam Chair.

CHAIR BERRIEN: Thank you, and Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you, Madam Chair. And my thanks to both of the witnesses for being here today, and especially to both of your organizations, SHRM and AARP, for all of the work that you both do in terms of helping us understand the workforce better.

Commissioner Feldblum actually just asked the question that I was thinking of, which is related to the phased retirement. And I had noted, also, in your testimony, Ms. Gamlem, that you said that there were still some open legal questions as a result of the Pension Protection Act. And maybe you can get back to us on this, but my question is, to what extent are those open legal questions related to our jurisdiction as the EEOC, versus the Department of Labor's jurisdiction at the Employee Benefit Security Administration? You don't have to answer now, but -- 

MS. GAMLEM: I just want to go on record as saying since I am not an attorney, again, I do want to refer to SHRM's staff to start to look at some of those issues. But we certainly welcome that opportunity to do so.

COMMISSIONER LIPNIC: Okay. And I had a question for you related to the RIF issue. And I know you said in your experience of having advised and run many RIFs, and how excruciating those can be for everyone who's involved. Can you talk a little bit about, in running a RIF in terms of making the RIF decision, and the ability or not ability of employers to make a decision in a RIF based on payroll. And to give you an example, let's say that there's a receptionist who's paid $50,000 a year, and she's been with the company for 25 years, and the ability of the company to release that person as part of the RIF in order to hire someone as the receptionist for $35,000 a year.

MS. GAMLEM: I have to say that ( -I mean, I am very honored and pleased to be able to look at all of you in the eye and say I've never been in that situation. I've never had a manager come to me and say, “Let's get rid of this person, and then let's turn around and hire the exact same skill set,” because I think I've always been associated with organizations that know that that's the prescription for getting them into trouble.

On the other hand, am I aware that those kinds of decisions are made in organizations? Yes, but I've never had to confront them. What I have seen in certain circumstances, where we've had an opportunity where a RIF is taking place, where there is a downsizing; to be able to offer an employee perhaps a different position where they've got the skills, maybe at a lower salary, but it still keeps that person employed in the organization. And I've had the opportunity to counsel managers in many circumstances, and have been successful in placing people. Sometimes it's not that successful, but the --and other organizations that I've worked with in a consulting fashion have been able to kind of walk them through the process to say okay, if you've really got to decrease costs, if you're looking at making some of these decisions; what are some of the alternatives that are out there? Are there other places in the organization that you can place the people? Are you making sure that you're not just looking at salaries, and cutting, and using that as your only basis? Are you taking some of these other factors into consideration? Are you really looking at long-term what the needs are of the organization? It can be difficult sometimes. I mean, sometimes it does come -- sometimes despite all the best efforts; people are laid off, and they're not -- they're in a protected class, they may be an older worker, and, fortunately, the companies that I've worked with too, have offered some kind of assistance in terms of out placement, to kind of cushion that blow a little bit. The thing that I've often cautioned, even when we're looking at just making an individual termination decision, it may be a for-cause decision; speaking with my clients and saying, can you offer the person out placement? A lot of times that makes them (a) feel much better about the company, it puts them in a direction where they're going to get the help that they need, and they're not going to go home and be frustrated, and be concerned and upset, and have somebody whisper in their ear; maybe you ought to go talk to an attorney about this. Clearly, decisions are made; clearly, I have heard stories from people who just because they know I'm in HR, have told me their point of view. And my reaction has been, what's going on with this company? Do they realize that this could be perceived as age discrimination? But I always like to suspend judgment too, because I'm only hearing a portion of the story, I don't know the whole picture. But, yes, it's out there, and I think there's an opportunity to do a lot of education for both management, and the general public.

COMMISSIONER LIPNIC: And can I just ask Ms. Russell, in terms of AARP, I was really struck by the work that AARP has done in terms of working with employers, and holding job fairs, and things like that. Is AARP a membership organization just for individual members, since you keep sending me all of those requests, or do you also have corporate members? I wasn't -- I didn't know if that was the case.

MS. RUSSELL: No, we are strictly a membership organization. Our corporate memberships are really partnerships with employers to offer our membership to their employees, so, no, not in terms of having large companies, or companies, in general, who are members of AARP.

COMMISSIONER LIPNIC: And has AARP done any work, or studies over the years about RIFs, and the impact on older workers, and how those -?

MS. RUSSELL: I believe that we have done studies through our Public Policy Institute, and I believe my colleague is behind me. Oh, she had to leave, where we have talked about that, particularly in years where that had been fairly prevalent. What we do conduct is, particularly in this recession, a monthly update on the impact that the recession has had on older workers with respect to rates of unemployment, duration of unemployment broken down by industries, broken down by men, women, that sort of thing.

COMMISSIONER LIPNIC: Thank you. Thank you all.

CHAIR BERRIEN: Thank you. Ms. Russell, if I can pick up on your last response. The monthly update that you conduct, is it using the same data, or data sources as Dr. Spriggs' testimony refers to, or is it a different -- 

MS. RUSSELL: Yes, we usually draw most of our data from the Bureau of Labor Statistics, that's where our Public Policy Institute gets the information.

CHAIR BERRIEN: And when Dr. Spriggs testified earlier, he -- and in his written statement, he has dedicated some time and space to discussing the -- some of the overall economic strains for older workers, particularly, but for older people who are seeking employment. And he noted, for example, the impact of declines in home value, the impact of declines in retirement resources.

Last month, the Commission was hearing from witnesses about the impact of credit history, and the role of credit history in hiring decisions. And I wondered if AARP has looked at that at all in relation to older workers and job applicants?

MS. RUSSELL: Absolutely. There was much banter around the building on that topic. And some very serious concerns, particularly in this economy, and then adding on top of that this notion that your credit score would have an impact on hiring decisions, unless in those rare cases, like working in the banking system, perhaps, where your credit score or handling finances, where your credit score may have an impact on your ability to make good judgments in that particular area. But, yes, we certainly have some serious concerns.

My colleague here from our Government Relations Office has been in many discussions with us about what position AARP is going to take in that area, but it is definitely top of mind with respect to the work that we do around workforce issues.

CHAIR BERRIEN: Several of my colleagues, perhaps all of them, have at some point asked one or both of you, and other panelists today about how the Commission could do more, how we might be more effective in educating the public in our outreach to the employer community, and broadly to prevent instances of discrimination from happening in the first place. And you all have clearly elevated a number of the Best Practices that exemplary employers have undertaken, but I'd like to put that question to you directly, particularly since we anticipate doing more with the leadership of Commissioner Barker to try to look at our outreach to small businesses. So, anything that you can share with us now about this issue would be very helpful, I think.

MS. RUSSELL: Well, I would say that there are a couple of things, and one that I wasn't able to address, since I ran out of time, but was discussed earlier. Last night I did a tele-town for the State of Nevada. We had about 7,000 people on the phone who are unemployed, who are wanting information with regard to how to be more successful in finding employment. And over, and over, and over again one of the questions that kept coming up is why do I have to put my birth date on my application that is electronic? It's immediately an indicator of how old I am. For many of the applications you cannot even go on without answering that question, so they have fashioned it electronically such that you have to fill out the entire application. We know that this is something that the Commission has oversight over, but we think there needs to be some real scrutiny around the utility of having your age on that application, when it's something that, perhaps, can be addressed later, or in some cases isn't even significant. And these are companies like Home Depot and others where your age really has no bearing on the kinds of jobs that you're applying for. So I think that's one almost immediate area that could really be looked at.

In terms of education, I know Commissioner Ishimaru was part of our 40th ADEA anniversary program, where we talked about sort of the history of the ADEA, and where there are opportunities to strengthen the law. I think more forums like that that include employers, because what's interesting is that when we have these discussions, the one group that is never represented is the employers who are actually doing the hiring, and the firing. So, including the EEOC in some of our work in talking to employers about some of these issues, and seeing the EEOC perhaps as a partner, and not as an enforcement agency; because I find in talking to at least the enlightened employers, is that there's a fear of doing something wrong. So, more education, and perhaps an opportunity to see the EEOC as a partner in helping them be better employers, or better understanding the implications of certain decisions that they make would be also a huge, I think, asset in the employer community.

MS. GAMLEM: I think given the wealth of information that can get pulled together around Best Practices, given the technology that we have today, that so many employers are gravitating towards using; there's an opportunity to publicize what a lot of these Best Practices are. And I think there's an opportunity for many of us to come together, SHRM, and AARP, and the EEOC to let employers know that there are a lot of options out there, and a lot of things that can be considered. And to also let them know that as they're making these decisions, everybody recognizes that you've got to pick options that are best for the size of your company, and for the industry that you're in.

I came from a large corporate environment, and now work with mostly small to mid-size companies, and I've even had the opportunity to talk to people who came out of that same environment, and they'd always go well, you know, we used to do it like that over at ABC Mega Corporation. And I'll go yes, but you don't have those same resources now, so let's talk about some things that you can do that makes sense for you. And I think there really is a lot of opportunities to get out there and get the word out, and using a lot of the technology and the media that's available today.

CHAIR BERRIEN: Thank you both very much for your testimony today, for joining us, and for your very thoughtful contribution to today's meeting. Thank you.

I want to allow an opportunity for closing remarks by members of the Commission. Please be mindful of the time, and we will continue to use the lights to help insure that. Thank you. Commissioner Ishimaru?

COMMISSIONER ISHIMARU: I'll pass for now.

CHAIR BERRIEN: Commissioner Barker?

COMMISSIONER BARKER: I will, too. I think I've made comments and, again, my appreciation to everybody who took the time to write your very insightful testimonies, and well drafted testimonies and to testify today, appreciate it.

CHAIR BERRIEN: Thank you. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you, Madam Chair, and again, Commissioner Ishimaru, for putting this together. I have no other closing remarks.

CHAIR BERRIEN: Thank you, Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you, Madam Chair, also, my thanks to all of our witnesses. And I guess the only other thing that I would add is that this issue, like so many, both discrimination issues, but issues that impact the workplace, I think is enormously complex, and I think that there are many layers to it. And I look forward to working with my colleagues in trying to unravel the onion a bit here. So thank you, Commissioner Ishimaru, for this topic today.

CHAIR BERRIEN: I would like to add a little, in light of all that we've heard today. Again, thanking all of the panelists for your very thoughtful contributions today and I think that today's discussion helps to build upon the Commission's earlier examination of this issue in 2009. It's obviously, very timely. We've heard a lot of data over the course of this morning and early afternoon about the timeliness, and the importance of this discussion, but there is one thing I realize that we actually did not specifically note, and I want to add this to the record for today.

One of the things that we have seen here at the Commission is that the kind of testimony that we heard from Mr. Williams today was poignant and personal, but it is, unfortunately, also not an isolated experience. And we heard that from many witnesses, but I do want to note that the experience here at the Commission has been that the number and percentage of age discrimination charges filed with us has increased. And while, obviously, the filing of a charge does not, in and of itself, say whether it is a meritorious charge; it certainly does suggest that this is a matter that is requiring a growing amount of attention for the Commission and its enforcement staff across the country. And therefore, it deserves, I think, additional attention here. And the information that we received today helps to shed some light on some of those issues as they become more prominent in the work of the agency.

I thought it was very interesting in preparing for this to see that the AARP, which conducts a periodic survey of adults 45 and older, that it calls the "The Closer Look Survey," reported that 63 percent of adults 45 and older believe that older workers face age discrimination in the workplace today, based on their experiences and their observations. And, again, that perception does not invariably convert to proven instances of discrimination, or to a court decision or a finding of discrimination. But I think those two data points together with all of the information we received today concerning the growing number of people over age 40 who are in the workplace, and in the job market, really just helps to underscore how timely and important it was to continue this look at age discrimination issues in the Commission, and I, again, thank Commissioner Ishimaru for suggesting this, and for taking the lead on organizing the meeting we had today.

Finally, as I stated when the Commission met last month concerning use of credit histories in employment screening, I do believe that one of the things this Commission must do is to be responsive to, and be aware of the context in which we are called upon to enforce the laws that we've been charged with enforcing, and to respond, as necessary, when conditions change. In many, many ways we know that over the 45 years that this Commission has been operating, that many things have changed in the workforce, many things have changed in the workplace, and this Commission has needed to keep up with those developments. And I think this meeting, as well as our October meeting, are important efforts by the Commission to be especially attentive to how issues in the workplace, and issues and practices in the hiring process, and in other aspects of the workforce may impact people who are trying to enter the job market for the first time, or re-enter it after a period of unemployment. And I'm especially appreciative of some of the information that came forward by many witnesses about the challenges that older workers might face seeking employment in this current context, and the challenges that one might face if they have not been in the job market for a very long time.

So, I just, again, repeat that I thank you all for being here today and thank you for your very informative and thoughtful contributions to our discussion.

If there is no further business for today, I'll entertain a motion to adjourn?

COMMISSIONER ISHIMARU: So moved.

CHAIR BERRIEN: Is there a second?

COMMISSIONER FELDBLUM: Second.

CHAIR BERRIEN: All in favor?

(Chorus of ayes.)

CHAIR BERRIEN: Opposed?

(No response.)

Motion carries. Thank you.

(Whereupon, the proceedings went off the record at 1:18 p.m.)