more definite and certain by expressing it in terms of an over-all industry exception, thus avoiding the uncertainty and possible vagaries of administrative interpretation. While the AAR's position as outlined above is that the rail industry should be excluded from age discrimination legislation, we wish to bring to the attention of the Committee what we think are deficiencies of the pending bills: 1. The general prohibitory paragraph of H.R. 5481 and of Section 4 of H.R. 3651 would make unlawful age discrimination and does not include the qualify. ing term "arbitrary." This is a departure from the concept of eliminating only "arbitrary" discrimination which is the concept set forth throughout "The Older American Worker," the Report of the Secretary of Labor upon which the legislation is based.5 In the Report it is concluded that all age restrictions cannot be conceived as arbitrary and that there should be concentration on the arbitrary aspects of discrimination which could and should be stopped: "The firmest conclusion from this year long study is that the most serious barriers to the employment of older workers are erected on just enough basis of fact to make it futile as public policy, and even contrary to the public interest, to conceive of all age restrictions as 'arbitrary' and to concentrate on the prohibition of practices which include this element." 196 Since the Report, as well as the declared purposes of H.R. 3651 (Section 2(f)), establish that it is only "arbitrary" discrimination which is intended to be proscribed and recognize that there is a difference, the substantive provisions of the bills should be amended to specifically apply only to arbitrary discrimination. This distinction has not been made in the one place where it is most important, i.e., the provisions of H.R. 5481 and H.R. 3651 which would make discrimination unlawful. 2. It would be particularly inappropriate to impose criminal enforcement provisions as H.R. 3651 would do. A determination of whether arbitrary discrimination had been committed would be a highly subjective one. Where criminal penalties are involved, citizens are entitled to some specific indication of what is unlawful. Whether a specific act or course of conduct amounts to arbitrary discrimination will frequently involve hairline distinctions. The imposition of criminal penalties is totally unjustified in these circumstances. In this regard a bill before the Senate (S. 830) which as introduced was identical with H.R. 3651 has been the subject of hearings before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare. On April 26, 1967, the Labor Subcommittee ordered S. 830, with certain amendments, reported to the full committee. S. 830 as ordered reported by the subcommittee has been amended to eliminate the criminal penalty features which are objectionable. 3. Section 13 of H.R. 3651 would limit the prohibitions in the bill to individuals who are at least forty-five years of age but less than sixty-five years of age but would grant the Secretary of Labor unlimited discretion to adjust these maximum and minimum age limits either upward or downward as he may deem appropriate. This broad discretion to adjust the applicable age limits should be eliminated. There are no standards provided to direct the Secretary in exercising such authority. The bill and the supporting statements made in its behalf are directed toward the problem of older workers. The Secretary's Report, on which H.R. 3651 is based, deals solely with the problems of older workers. There has been no justification whatever for permitting the age minimum to be lowered. The consequences of raising the maximum age limit would be far reaching. They would be such that Congress itself should make any later adjustment if any is to be made and if any could be shown to be essential. 4. Consideration must be given to how the pending legislation would affect private pension and retirement plans in industry. Section 4 of H.R. 3651 would make unlawful any private pension or insurance plan which specifies a maximum age limit after which new employees are not covered by such plans, i.e., maximum participation ages. In his testimony on S. 830 (which is identical with H.R. 3651) before the Labor Subcommittee of the Senate Committee on Labor and Public Welfare, the Secretary stated (Hearings, Transcript of Record, pp. 39-40) that the effect of Section 4(f) (2) would be to protect almost all private pension plans of which he is aware. This is not the case as we understand and read that section of the pending bill. That section would protect only a mandatory retire 5 The Older American Worker-Age Discrimination in Employment, Report of the Secretary of Labor to the Congress Under Section 715 of the Civil Rights Act of 1964 (June 1965). ment policy or system which is not a subterfuge to evade the purpose of the Act and would provide little or no protection for the ordinary private pension plan. It would appear from the Secretary's testimony that the bill intends, at least that private pension and insurance plans would be protected. If this is the case, there should be no objection to amending the legislation to avoid any harmful effect upon such pension plans. S. 830, as ordered reported by the Senate Labor Subcommittee, has satisfactorily taken care of this problem by amending Section 4(f) (2) to read that it shall not be unlawful for an employer. 46 '(2) to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as retirement, pension, or insurnce plan, which is not a subterfuge to evade the purposes of this Act, except that no such employee benefit plan shall excuse the failure to hire any individual;" Such an amendment is important in the railroad industry since a number of railroads provide employee pension plans which have maximum participation ages. Most such plans include maximum ages of 50 or 55. Among the reasons for establishing maximum participation ages are cost and actuarial considerations. If the railroads, and other industries, are required to eliminate these provisions the result could well be to make it more difficult for aged workers to obtain employment rather than to assist them. 5. There are 23 States which have laws which attempt to deal with the problem of discrimination in employment because of age. Section 14 of H.R. 3651 provides that nothing therein shall affect the jurisdiction of any agency of any State performing like functions with regard to discriminatory employment practices on account of age. It seems clear to us that if there is to be Federal legislation, it should preempt the various and sundry State laws on the subject rather than superimpose another set of administrative regulations, notice-posting, record-keeping, report-making and enforcement requirements and standards upon industry. If the State laws have been ineffective, as most apparently have, and for this reason Federal legislation is deemed necessary, there is no justification for continuing the authority and jurisdiction of State bodies in this regard. This kind of double jeopardy has no beneficial effect and simply adds another layer of governmentally prescribed obstructions to the efficient operation of a business. In conclusion, it is respectfully requested that the Committee recognize the unusual age and other circumstances which exist with respect to the work force in the railroad industry and that the industry be excepted from the provisions of H.R. 3651 and H.R. 5481. STATEMENT BY NATIONAL ASSOCIATION OF MANUFACTURERS INTRODUCTION The National Association of Manufacturers is pleased to present its views on H.R. 3651, and related bills pertaining to age discrimination in employment. For more than forty years, the Association has been encouraging manufacurers to make the best possible use of the experience, knowledge, and skills which older people possess. Over the years a wide range of meetings and conferences have been conducted with numerous groups and organizations, to stimulate the evaluation of management policies and practices dealing with older job applicants, and to educate management personnel as to the economic desirability of utilizing the reservoir of talent represented by the older worker. NAM has had a long-standing policy of encouraging employment of older workers. Currently, our policy position reads as follows: "Older workers offer seasoned experience, judgment and stability, and constitute a valuable asset in the nation's work force. Employers are urged to observe hiring practices which give consideration to skills and abilities rather than to any age factor." In furtherance of this policy, NAM has done a great amount of work to promote the hiring of older workers.1 Partly as a result of the wide distribution given NAM publications on this subject, most employers are aware today that hiring older people makes economic good sense. 1 This effort is reflected in some degree by the publications Employment of Mature Workers (1960) and The Productive Years-Ages 45-65 (1963), copies of which are submitted to the Subcommittee herewith. REVIEW OF THE PROBLEM Our work in this field convinces us that the long-term, permanent solution to this problem can best be attained through further education, rather than through legislation, especially at the federal level. Excellent progress is being made by the voluntary route. Many firms have dropped bans on hiring older people. They have learned to place high value on older men and women, particularly so in this laborshort period. Educational programs are the most important and effective way to increase the employment of older workers, according to those state officials who are responsible for the administration of state age discrimination laws. Twenty-three states and Puerto Rico have already adopted laws prohibiting age discrimination. All but three of these laws have been passed since 1955, most of them since 1960. This legislation exists in the major industrial states and covers more than half of the nation's industrial workers. Additional state legislation is probable. It would seem neither wise nor necessary to pass a federal law on this subject at a time when the states are taking affirmative action to resolve this problem at the state level. We do not suggest that all problems pertaining to older workers have been solved. Mergers, shutdowns, moves to new locations, expansion, automation, elimination of unneeded jobs-these are frequent occurrences in the business world, with important consequences for all employees regardless of age. The result may be the unemployment of older people. This does not mean, however, that a federal law will solve the problem any more than age discrimination laws have completely eliminated the problem in those states which have such laws. Programs to train, retrain, and upgrade the skills of the older worker should be intensified to qualify him for available job openings. In today's market, many jobs go unfilled because of the lack of qualified applicants of any age. Education and training of the older worker are essential to a solution of the problem. Jobmatching techniques and job-vacancy inventories, together with better coordination with training programs, will prove much more constructive in filling vacant jobs than the approach proposed in the pending bills. Secretary of Labor Wirtz recognized a fundamental truth when he said: "A strong and viable economy is the most important single factor improving employment prospects for middle-aged and older workers who lose their jobs. The more vigorous the economy-the higher the level of activity and the more rapid the rate of growth-the better the employment opportunities for workers of all ages." 2 It is often easy, when attempting to solve a problem of this kind, to forget conflicting, competing considerations which represent equally desirable objectives in the total economy. The United States is faced with the need to absorb more than a million young workers into the labor force each year. From 1960 to 1965, the labor force grew by five and a half million workers, most of whom were young people just entering the labor market. From 1965 to 1970, the growth will be almost two million new workers per year. Massive efforts have been launched of late to assimilate young people into the labor force. Yet to the extent that available jobs go to older workers, solving the problem of new entrants into the job market becomes more difficult. Our national programs can work at cross purposes with one another. In fact, there is a growing body of opinion that discrimination is unfair at any age that any legislation attempting to deal with the problem of age discrimination in employment should outlaw all age discrimination rather than attempt to provide protection for specific age groups. Nor should we overlook the tremendous-and relatively unrecognized-contribution toward stability of the work force represented by industry's policy of promoting from within. Few people will argue with the desirability of this basic business practice. Yet such a practice relies to a considerable extent upon hiring workers at relatively young ages and training them within the company for ever-increasing levels of responsibility over the years. In our free competitive system, especially now when there are critical labor shortages in many parts of the country, employers recognize the importance of hiring older workers with skills and valuable experience. The law of the marketplace is inexorable in employment practices as well as in other things. Our growing economy is an enormously complex mechanism. Placing an additional legislative restriction on employment practices, no matter how desirable 2 The Older American Worker, Report of the Secretary of Labor to the Congress under the social goal, can effectively reduce the very job opportunities it seeks to create by diverting energies which would otherwise be devoted to the maintenance of full production. COMMENTS ON SPECIFIC PROPOSED LEGISLATION Now let us look briefly at the kind of problems which H.R. 3651 would raise. Employment and layoff should be entirely without regard to age, except in those situations recognized in H.R. 3651 where age is a bona fide occupational qualification or all employees are covered by a bona fide retirement policy. It is imperative, however, that there be no conflict with either new or established retirement policies. Pension plans and insurance plans should be excluded from the coverage of this proposed legislation; otherwise, the measure could create havoc with such private plans. Any law should specify clearly that bona fide pension and insurance plans, and similar types of employee benefits, are not to be considered "terms or conditions of employment" with respect to which it is unlawful to include differentiations based on age. Because of the farreaching implications, any such significant revision of pension and insurance plans in this country should be accomplished knowingly and intentionally, not inadvertently by legislation designed to resolve an entirely different matter. Further, we believe it is undesirable to include criminal penalties in such a proposed law. This is, at best, a very difficult area in which to enact intelligent and workable legislation. The addition of criminal sanctions, even for second offenders, can obstruct rather than assist in the resolution of the sensitive social problem which this legislation seeks to reach. The various ability and skill factors which have to be assessed in interviewing and placing an applicant make the problem one which should not be subject to the threat of criminal penalties. The very existence of criminal sanctions could militate against success of the "informal methods of conference, conciliation, and persuasion" envisioned by H.R. 3651. Nor should such prohibitions be enforced by an administrative determination of guilt as provided by the bill. Individuals responsible for day-to-day administration of a particular statute tend to become advocates of the cause which the statute seeks to promote. They soon become less than objective when individual cases are presented to them. These provisions will be susceptible to sharply varying interpretations. Enforcement must be objective and impartial; it must not unduly hamper an honest employer just because his judgment and evaluation of the ability and skill factors involved happen to differ from those of Department of Labor employees. A better procedure than administrative hearings would be for matters in dispute to be resolved by a new trial of the issues in a United States district court. In order to avoid a further increase in the number of administrative agencies within the executive department of the federal government, we strongly support the view that this measure, if enacted, be administered by the Wage and Hour Division rather than by an entirely new agency. The Wage and Hour Division, which presently enforces the age provisions of the child labor laws and the wage discrimination provisions of the Equal Pay Act, would doubtless have the staff and experience to deal with the problems of age discrimination. Finally, in order for the act not to discriminate in favor of workers in any particular age bracket, such as 45-65, it should contain the exception "where the differentiation is based on reasonable factors other than age" and the exception of a "bona fide occupational qualification reasonably necessary to the normal operation of the particuar business," both of which are proposed in H.R. 3651. SUMMARY Voluntary efforts offer the best means for continued advancement against arbitrary age discrimination in employment. No matter with what skill the proposed bills may be improved, legislation will not resolve the problem of arbitrary age discrimination. But voluntary efforts can. With the cooperation of employers and employees alike, great strides can be made against whatever barriers still exist. In furtherance of its long-standing policy, NAM will continue its efforts to encourage manufacturers to avail themselves of the skills and experience of older people who have so much to offer as employees. We continue to believe that more significant progress can be made through voluntary efforts, at both the national, state, and local levels, than by national edict. THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, Hon. JOHN H. DENT, Chairman, General Subcommittee on Labor, DEAR CONGRESSMAN DENT: This Association wishes to go on record with your Subcommittee in connection with its consideration of H.R. 3651 which would prohibit discrimination in employment on account of age. Our Association recognizes the fact that this measure deals with a most difficult problem; but if legislation is to be enacted, we hope that you will give consideration to the dangers of hiring older workers in construction because of the many hazardous situations which prevail in the industry. The construction industry, it is suggested, be most carefully considered for waiver of the requirement for the hiring of older workers on construction projects because of the inherent hazards. It is not uncommon to require men to work from scaffolds, ladders, or stages, nor is it unusual to encounter tunnel operations in construction all of which require men with fast, unwavering reflexes. We suggest that a provision be added authorizing the administrator to make an exception with regard to employment in the construction industry based on consultation with members of the industry. The practical effect of this is shown by the enclosed Wage-Hour Regulation, which draws a line of age in employment in hazardous construction work. No doubt you will treat the employment of the older workers on construction with the same careful consideration given to minors. The employment of minors under 18 is, as you know, prohibited by law on several phases of construction. We hope that the Committee will recognize the unusual age requirements and circumstances that exist with respect to the work force in our indusry. I wish to thank the Committee for allowing us this opportunity to submit our views on this pending legislation. Sincerely, WILLIAM E. DUNN, Executive Director. AIR TRANSPORT ASSOCIATION OF AMERICA, Re: Bills Against Age Discrimination: H.R. 3651, H.R. 4221, and H.R. 3768. Chairman, General Subcommittee on Labor, Committee on Education and Labor, U.S. House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: The attached statement is submitted in behalf of the scheduled airline industry as a supplement to our original statement filed on August 15, 1967, in connection with your hearings on bills dealing with age discrimination. The supplemental statement is believed necessary due to the fact that during the course of the hearings on H.R. 3651, H.R. 4221 and H.R. 3768, proposals which we believe to be unjustified were submitted to change the basic theory of the proposed legislation from protection of the "older worker" to protection of the younger worker. Since the proposals presented were based on the assumption that wrongful personnel policies and practices exist with reference to the employment of airline stewardesses, the airline industry believes that the facts in regard to such policies need to be placed in the record. Our supplemental statement contains a complete explanation of the airlines' stewardess reassignment policies, and we believe obviates any allegation that the reassignment policies relate to the problem of the "older workers" and their employment. Thank you for your consideration. S. G. TIPTON, President. SUPPLEMENTAL STATEMENT OF THE AIR TRANSPORT ASSOCIATION OF AMERICA Re: H.R. 3651, H.R. 4221, and H.R. 3768 Relative to Age Discrimination in Employment. This supplemental statement is submitted in opposition to proposals made by |