Can Legislation Knock Down Job Barriers? It Depends Who You Ask (Corrected)

Older workers and those with disabilities continue to face pervasive obstacles to steady and well-paying jobs, advocates told lawmakers May 21, but Congress still isn’t on the same page about how to remove those barriers.

A May 21 House Education and Labor Committee hearing highlighted key policy differences between Democrats and Republicans that are likely to slow proposals to boost wages and job opportunities.

The panel will “soon” mark up the Protecting Older Workers Against Discrimination Act (POWADA) (S. 443) and the Transformation to Competitive Employment Act (H.R. 873), a committee staffer told Bloomberg Law. Those bills respectively would make it easier to prove age discrimination and would assist companies that eliminate sub-minimum wages for disabled workers.

“Congress has a responsibility to ensure that all Americans can have access to employment and earn the financial stability and independence that come with work,” Committee Chairman Bobby Scott (D-Va.) said during the hearing.

Both measures have at least some bipartisan support and may move in the Democrat-controlled House. But they don’t appear that have the Republican backing necessary to gain steam in the Senate.

Rep. Virginia Foxx (R-NC), the committee’s ranking member, said it’s not the government’s place to intervene by creating new regulatory burdens for employers whose innovation and initiative helps lift those barriers.

“Though in the past we seemed to agree more on what the barriers to success are and how to remedy them, today, Democrats see barriers as opportunities to increase federal power,” Foxx said during the hearing. “Republicans see barriers as opportunities to enable individual empowerment.”

It’s more apprenticeship opportunities that will close barriers to employment, Foxx added.

“This is the key to opening doors to opportunity and prosperity, not a more reactionary federal government,” she said. 

Age, Disabilities Addressed

Three in five older workers last year reported seeing or experiencing age discrimination in the workplace, according to a study from AARP.

“Age discrimination is the biggest barrier to both getting employed and staying employed” for older workers, Laurie McCann, senior attorney for the AARP Foundation Litigation, said.

POWADA would lower one hurdle that workers must overcome to prove that employers engaged in age or disability discrimination, or retaliated against them because they opposed bias based on race, sex, religion, color, or national origin. It would means fewer cases could be dismissed before trial, allowing more discrimination claims to play out in court.

The bill, re-introduced Feb. 14, would overturn a 2009 ruling by the U.S. Supreme Court that applied the more stringent “but-for” causation standard for age discrimination claims. It would instead allow a person to successfully sue by showing that age was simply a motivating factor behind a job decision, as in other employment discrimination cases.

The Transformation to Competitive Employment Act, meanwhile, would provide employers with resources to transition away from using section 14(c) certificates that allow workers with disabilities to be paid a sub-minimum wage. The bill would “transform” an employer’s business and program models so workers with disabilities can transition to employment with competitive pay, and special certificates can be phased out.

Rep. Glenn Grothman (R-Wisc.) said legislative fixes would impede on the employment opportunities that currently exist. The sub-minimum wage was designed at least in part to give employers an incentive to hire disabled workers and to expand opportunities for those workers to get entry-level job training.

Shayne Roos, senior vice president of ACHIEVA, a Pennsylvania non-profit that helps people with disabilities, said workers with disabilities should be given the opportunity to make competitive pay for the work they do. “I don’t believe we have the right to pay anyone, disability or not, less than the minimum wage,” Roos said.