AGE DISCRIMINATION IN EMPLOYMENT THURSDAY, AUGUST 17, 1967 HOUSE OF REPRESENTATIVES, GENERAL SUBCOMMITTEE ON LABOR OF THE The subcommittee met at 10 a.m., pursuant to recess, in room 2175, Rayburn House Office Building, Hon. John H. Dent (chairman of the subcommittee) presiding. Present: Representatives Dent, Pucinski, Daniels, Hawkins, Albert, Ford, and Scherle. Mr. DENT. The General Subcommittee on Labor will now come to order for the purpose of holding hearings on H.R. 3651 and other related bills. Due to the fact that the House of Representatives has called for an early session this morning, we will start proceedings although certain Members of Congress who are listed as witnesses are not here. Since they may come in at any time during the morning, I shall allow the Members to present their briefs, if they have one, by interrupting the testimony of the witness speaking at that particular time. The first witness today is a well-known representative of labor on this Hill who has for many years been testifying on legislation dealing with the welfare of the working men and women of this country. I welcome to the hearing this morning Ken Meiklejohn, legislative representative of the AFL-CIO. STATEMENT OF KENNETH A. MEIKLEJOHN, LEGISLATIVE REPRESENTATIVE, AFL-CIO Mr. MEIKLEJOHN. Thank you, Mr. Chairman, your remarks are most generous. My name is Kenneth A. Meiklejohn. I am legislative representative of the American Federation of Labor and Congress of Industrial Organizations, and I appear here on behalf of that organization. I would like to ask that my full statement be included in the record and I will summarize my statement. Mr. DENT. Without objection, the statement will be made part of the record at the conclusion of your remarks. Mr. MEIKLEJOHN. Mr. Chairman, I do want to say that I think both you and Representative Carl Perkins, chairman of the House Education and Labor Committee, deserve the thanks and appreciation of all American workers, and especially those who have reached or are about to reach the age of 45, for sponsoring the bills, H.R. 4221 and H.R. 411 3651, which you now have before you for consideration in this subcommittee. In light of the fact that the Senate Labor Subcommittee has already completed hearings on this subject, and its bill is now before the full Senate Labor Committee for approval, your decision to go forward at this time gives real cause for confidence that legislation to prohibit age discrimination in employment can and will be enacted at an early date. I have summarized on the next few pages of this statement some of the basic economic data which we believe warrant and justify, and, indeed, indicate the imperative need for, this legislation. I won't read this to the committee but I do ask the committee members to pay close attention to it. We have also summarized in our statement some of the actions taken by the AFL-CIO, the administration and the various States to deal with this problem of age discrimination in employment. The data which we have provided here, we believe, provide a very strong basis of support for this legislation. They demonstrate that the recognition of the need for this legislation is significant and widespread. We have seen legislation passed in the last few years to prohibit discrimination in employment based on color and sex. It is now time to take the further step of outlawing discrimination because of age as well. At this point, I should like to discuss some of the specific provisions of the age discrimination bills you and your subcommittee have before you. They have the objective of making it unlawful for employers, employment agencies, or unions to engage in certain specified employment practices which have the effect of discriminating against employees or applicants for employment because of age. They impose responsibility for administering and enforcing the legislation on the Secretary of Labor, with authority to delegate his functions in such manner "as he deems necessary to assist him in performance of his functions under this act." In general, we believe, the legislation is well designed to carry out its objective. Among other things, Mr. Chairman, the bills prohibit employment practices based on age engaged in by labor unions, as well as by employers and employment agencies. The labor movement, through its international and local unions, has consistently been in the forefront of efforts to deal with the problems of older workers. In collective bargaining agreements we have endeavored to deal with some of the problems of age discrimination in employment, and in convention resolutions we have called attention to the need for legislation, at both the State and Federal levels, to prevent such discrimination. It is important to make clear, we believe, that employers who are paying wage rate differentials to older workers in violation of the bills shall not, in order to comply with the legislation, be permitted to reduce the wage rate of any employee. The Equal Pay Act of 1963 contained such a provision, and we believe it would be appropriate and necessary that such a provision be included in this legislation. We see no good reason, Mr. Chairman, for the provisions that exempt. small firms employing fewer than a specified number of employees. Such provisions have the effect, of course, of leaving large numbers of of facts that make clear that the older worker in the small plant or business has just as much, and maybe more, need of protection as the older worker in the large plant or business. We are long past the day, it seems to us, if, indeed, there ever was such a day, when it could justifiably be argued that it may be all right to require a large employer to observe fair employment practices or labor standards, but all wrong to require his small competitor to do so. We likewise do not see any reason why the legislation should, as is provided in section 4(f) (2) of the bills, permit involuntary retirement of employees under 65. We do not believe that the safeguard which this provision purports to contain restricting this possibility to cases where it is done "under a retirement policy or system where such policy or system is not merely a subterfuge to evade the purposes of this act," is adequate to prevent serious abuse. In this connection, it should be observed that there is no age cutoff in this provision. Involuntary retirement could be forced, regardless of the age of the employee, subject only to the limitation that the retirement policy or system in effect may not be merely a subterfuge to evade the act. On the other hand, section 4(f) might well be strengthened in another respect. There is nothing in this section now which protects the operation of bona fide nondiscriminatory seniority systems. We urge that this section be amended to protect such systems. The enforcement provisions contained in section 7 of the bills are a mixture, based in various parts on the Civil Rights Act of 1964, the National Labor Relations Act and the Fair Labor Standards Act. We believe that it would be preferable to utilize the enforcement machinery of one of these acts rather than to establish still another enforcement system. The staff and experience of the agency administering that act would be of benefit to those charged with the responsibility of enforcing the prohibitions against age discrimination in employment. When Congress passed the Equal Pay Act in 1963, it decided to utilize the staff and expertise of the Wage and Hour Division in the U.S. Department of Labor to administer and enforce that act. As far as we have been able to determine, this approach to the problem of enforcing the act's prohibition against discrimination in wage payments based on sex has worked well. We suggest that the subcommittee should give serious consideration to simply utilizing the enforcement machinery and procedures of the Wage and Hour Division to enforce the proscriptions against discriminatory employment practices based on age which are contained in the bill. Finally, the bills provide in section 13 that their application is limited to individuals who are between the ages of 45 and 65. There is a proviso added to this section which gives the Secretary of Labor authority by rule or regulation to "provide for appropriate adjustments, either upward or downward, in the maximum and minimum age limits provided in this section." This subcommittee is aware, I feel sure, of the practice of some airline companies which refuse to permit stewardesses to work as such beyond the ages of 35 in some cases and 32 in others. You will be hearing after me testimony from spokesmen for the Transport Workers Union of America, AFL-CIO, on this subject. I want to make it clear we are in sympathy with their views on the need for relief for their members from the present discriminatory age limits with respect to their employment as stewardesses which the airlines are imposing on them. It seems to us that the proviso which is included in section 13 is hardly adequate to provide the protection which they need. We believe that there is a substantial question whether the proviso permitting "appropriate adjustments, either upward or downward" can be stretched far enough to include workers 35 or 32 years of age under the protection of the bill. Indeed, we see no real basis for either upper or lower age limits in the bill, and we suggest, therefore, that section 13 be eliminated. I have pointed out in the concluding section of our statement that we regard as of particular importance the provisions of the bills which call upon the Secretary of Labor to undertake studies and provide information "concerning the needs and abilities of older workers, and their potentials for continued employment and contribution to the economy." This legislation, we are convinced, as I am sure you are convinced, deals with only one part of the problems of the older worker and the older citizen, and it needs to be kept in that context in order to understand and deal with these problems. In conclusion, Mr. Chairman, I would like to say only that it is our hope that the Congress will act speedily to put legislation along the lines of H.R. 4221 and H.R. 3651, with the changes we have suggested, on the statute books. The need for it is great and, so far as I am aware, virtually unchallenged. The problem which the legislation is designed to meet, far from getting less important, only grows larger, as time goes on. Early passage of the legislation can make a substantial contribution to achieving a better life for all Americans. I would like to add, if I may, Mr. Chairman, that in response to requests by members of the Senate Labor Subcommittee, we proposed certain amendments to carry out the suggestions for amendments to the bills made in our statement. Those suggestions are contained in the record of the hearings before the Senate subcommittee, and I would just simply like to call the attention of this subcommittee to those amendments which appear on page 100 of the printed Senate hearings. Mr. DENT. The staff has already noted all of the advisory amendments offered in the Senate and we have made a review of them. In the executive committee we intend to discuss them with the view of accepting what we can of those which appear to be in the best interests of all concerned. Mr. MEIKLEJOHN. With respect to the matter of enforcement, this has been the subject of discussion between ourselves and staff representatives of the Senate Labor Subcommittee and the Department of Labor. At this point we would prefer to see amendments along the lines of those included in the draft of the bill prepared by the Senate Labor Subcommittee rather than those appearing in the printed record of the Senate hearing. Mr. DENT. I might state, as far as the Chair is concerned, the determination to put it under the Fair Labor Standards Act has already been made. The Department of Labor is best qualified by experience, |