P R O C E E D I N G S

PRESENT:

VICTORIA A. LIPNIC Acting Chair
CHAI R. FELDBLUM Commissioner
JENNY R. YANG Commissioner
CHARLOTTE A. BURROWS Commissioner

ALSO PRESENT:

JAMES L. LEE Deputy General Counsel
PEGGY R. MASTROIANNI Legal Counsel
BERNADETTE B. WILSON Acting Executive Officer

This transcript was produced from a DVD provided by the Equal Employment Opportunity Commission.

TABLE OF CONTENTS

AGENDA ITEM PAGE

1. Announcement of Notations Votes
2. The ADEA @ 50 - More Relevant Than Ever

   Panelists:

   • Patrick Button
   • Laurie McCann
   • John Challenger
   • Sara Czaja
   • Jacqueline James
3. Motion to Close

P R O C E E D I N G S

9:30 a.m.

CHAIR LIPNIC: Is that .- can .- can .- is that better? Okay. Okay. Bernadette I'm going to pass it .- the baton back to you.

MS. WILSON: I'm going to say good morning again.

CHAIR LIPNIC: Here we go.

MS. WILSON: Is Pat here? Well, good morning again Madam Chair, Commissioners, Legal Counsel. 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 reentering 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 restrooms are down the hall to the right and left of the elevators.

During the period April 1, 2017 through June 9th, 2017, the Commission acted on six (6) items by notation vote:

Approved litigation in three (3) cases;

Approved FY 2017 budget allocations for state and local programs;

Approved the Equal Employment Opportunity Tabulation; and,

Approved a resolution honoring Peggy R. Mastroianni on her retirement.

Madam Chair?

CHAIR LIPNIC: Thank you Ms. Wilson, and thank you to those of us who have .- those who have joined us for today's meeting.

The last item Bernadette mentioned is a resolution honoring Peggy Mastroianni on her retirement.

So before we begin, I must note with quite a heavy heart, that this is the last time our renowned and beloved Legal Counsel, Peggy Mastroianni will preside over a Commission meeting. The Commission will pay tribute to Peggy later today, and it is fitting that we do so on a day when we focus on the value of experience, skill, talent and commitment that so many workers give to their work places every day, all of which Peggy has given abundantly to the EEOC and to her country.

Thank you Peggy from all of us.

(Applause.)

CHAIR LIPNIC: Turning to today's meeting on the ADEA @ 50 - More Relevant Than Ever. The ADEA has reached a milestone of middle age -- that time in life when we assess our accomplishments and take a fresh look at how things have changed over time as we see new challenges and set new goals.

Today, we will hear from our experts about the accomplishments of the ADEA as well as the challenges and opportunities for an aging workforce. Much has changed since 1967, and we're actually going to have a slide that will demonstrate that.

Could we go to slide 1? There we go. The most dramatic change is the aging of the workforce, as this slide shows. Fifty years ago, sixty percent of the workforce was younger than age 40. Today, those numbers have almost flipped as 54 percent of the labor force are age 40-plus, and people are working and living much longer than previous generations. And, the workforce, including the older workforce, is more diverse than ever.

At our April Commission meeting on the state of the workforce, we examined issues around the 5.6 million jobs that are unfilled. Today, almost 1.5 million workers ages 55 to 64, have dropped out of the workforce as of December 2016. Some of these may be voluntary retirements, but too many likely gave up looking for work as surveys show that 65 percent of this age group say their age is a barrier to getting a job. These older workers may have the knowledge and skill to fill thousands of jobs that remain vacant, but age discrimination may be preventing employers from tapping this resource.

Age discrimination continues to be a serious problem for workers, their families and our economy. Many older workers confront age discrimination in getting or keeping jobs, as Professor Button's research shows. The number of age discrimination charges filed with the EEOC has remained steady at over 20,000 per year for the past several years.

As you can see from the next slide; if we could go to that, who files ADEA charges may surprise some. While the common view is that age discrimination impacts more men than women, EEOC's charge data reveals that since 2010, women have filed more charges alleging age discrimination than men have. And the age at which workers file charges of age discrimination has also increased in the past 25 years, and if we could go to the last slide.

Workers age 55 and over filed the most ADEA charges last year compared to 25 years ago when the 40 to 54 age group had filed the most. And the men and women confronting age discrimination are in all parts of our country: in rural and urban communities, in blue and white collar jobs, in service and tech industries, of all races, ethnicity and income.

No one should be denied a job or should lose a job based on assumptions or stereotypes. I have seen the devastating impact that age discrimination causes for people to be cast aside or have doors closed based on assumptions about age rather than looking at one's ability to do a job. The harm to the older worker and his or her family is serious and significant, as is the harm to our economy from their lost contributions, knowledge, talent and experience.

As we mark the 50th anniversary of the ADEA, my hope is that we will reassess and move forward and move beyond outdated assumptions about age related to worker skills and interests. Just as we would not make assumptions about a woman's interests or abilities, we should not make assumptions about her because she has reached a certain age. The principle of the ADEA that ability matters, not age, is more relevant today than ever as there are many more older persons who need to work and our economy needs them to remain in the workforce.

I hope to discuss with our experts the barriers to older worker employment, strategies to break down those barriers and open opportunities. I thank our witnesses for joining us. We look forward to your valuable testimony this morning. And I will now invite my fellow Commissioners to make any opening statements or comments beginning with Commissioner Feldblum.

COMMISSIONER FELDBLUM: Thank you so much. Welcome to everyone here. Thank you Chair Lipnic for holding this meeting. I know that fighting age discrimination, including particularly in hiring has been a long-standing commitment for you. So I want to thank you and your staff, particularly Cathy Ventrell-Monsees and Ray Peeler for the hard work that you and they put in to bring the Commission this excellent panel of witnesses.

So I assume you will all be excellent based on the very useful written testimony you have already given us.

So in your testimony, Dr. James, you quote from what you describe as Professor Alpert's classic study on prejudice published in 1954. And apologies if you're going to say this again, but bears repetition anyway. So here was your quote from his study: "The human mind must think with the aid of categories. Once formed, categories are the basis for normal prejudgment. We cannot possibly avoid this process. Orderly living depends on it," Wow. That's sobering.

So, thinking about categories, there's also obviously intersectional categories. And Professor Button, you had many interesting and important data points from your really comprehensive research, and I look forward to our audience also hearing some of the sobering statistics about the type of discrimination and amount of it that both older men and older women face. But I was also particularly struck by this data point: Came from Professor Button's research on sending résumés of equally qualified applicants to employers with the variation being in age and sex. So here's his quote: "Female middle-aged applicants; that's age 49 to 51, have a statistically significant lower call back rate, but there is no evidence of discrimination against middle-aged men." And I thought, hello, welcome to our culture.

So, it seems pretty clear that our challenge as a society is to change the way in which individuals who hire, promote or fire workers think about the category of older workers; or think about the category of older female workers; or think about the category of older female Hispanic workers; or the category of older workers with disabilities.

It may be true that there will always be categories in play; Professor Alpert may be correct about that. But I would like to see if we as a society can remove age as well as race and gender and disability forming the basis of those categories.

So for that reason I look forward to hearing your observations, your insights and your recommendations. Thank you again for being here.

CHAIR LIPNIC: Thank you Commissioner Feldblum.

Commissioner Yang?

COMMISSIONER YANG: Thank you and good morning everyone. Chair Lipnic, I want to thank you for planning this very important meeting. As we can see from the testimony that we have, these issues are more important than ever.

I'd like to thank Cathy Ventrell-Monsees and Ray Peeler from your office, Chandra Bhatnagar, my senior advisor, and all those who contributed to this meeting today. And I especially want to thank our outstanding panel of witnesses both for their valuable written testimony and for taking the time to be with us here today.

After signing the ADEA into law, President Lyndon Johnson issued a statement saying the following: "During my four years in the presidency, I have fought discrimination in employment in all of its ugly forms with every power of my office." The President cited the 1963 Equal Pay Act, the 1964 Civil Rights Act and explained that the ADEA's goal to outlaw discrimination in employment against older workers was another step towards civil rights protections for all.

President Johnson said that the new legislation required that one simple question be answered fairly: Who has the best qualifications for the job? A half century later, when it comes to ensuring workplace fairness for older workers; that same question remains the cornerstone of equal opportunity. Unfortunately, all too often, unfair stereotypes about older workers color that answer.

Although significant progress has been made over the past 50 years, the reality is that age discrimination remains a real problem in our country. At EEOC, we see that bias against older workers is so prevalent that often employers don't even recognize when their practices create barriers for older workers. For example, we see employment practices such as the use of maximum years of experience requirements which disqualify older workers from consideration. We see mandatory retirement policies for law firm partners or other entities where those categorized as partners may actually be employees for purposes of our anti-discrimination laws.

We see job requirements that a candidate be a digital native who grew up using technology as opposed to someone who became fluent in technology later in life. We also see age-based slurs and harassment in the workplace, which individuals may not even recognize are discriminatory.

This past March, after a four-week trial, the Agency resolved a nationwide age discrimination case against Texas Roadhouse, a national restaurant chain. The lawsuit charged that older workers had been denied front-of-the-house positions such as servers, hosts and bartenders because they were 40 years and older. As part of the settlement, the company will provide $12 million in relief and change its hiring and recruiting practices. This case is just one example of a much broader problem of age discrimination across industries. A 2013 AARP survey showed that two out of three workers between the ages of 45 and 74, said they had seen or experienced age discrimination at work.

I also appreciate the research Dr. Button has conducted which demonstrated that age discrimination affects women more harshly than men. I have seen that in the cases that I have litigated as well and I look forward to discussing how we can address the interplay between age and gender discrimination and address potential gaps and protections.

I'd also look forward to exploring how the new economy and new employment relationships are impacting older workers. Today, technology is changing the world around us faster than ever, and traditional employment relationships are rapidly shifting. This past September, the Commission approved and updated a strategic enforcement plan which identified as an emerging issue priority, a focus on the employment relationship and complex employment structures which includes staffing agencies, temporary workers, independent contractor relationships and the on-demand economy.

We have also been examining how to expand access to the growing number of jobs in the tech sector. Last June we had a meeting on this subject which highlighted the prevalence of age discrimination in the tech industry, despite the fact that more people are needed to fill an increasing demand. Studies estimate that by 2020 there will be 1.4 million new tech jobs, but only 400,000 skilled workers available to fill them. If current trends continue, 70 percent of those jobs, 1 million jobs, will either go unfilled or will be filled by workers outside the U.S. Older workers with technology skills are an important part of the solution.

In closing, to ensure that we continue to make progress over the next 50 years, it will remain vital for the Commission to challenge stereotypes about older workers and identify practices that promote hiring of well-qualified older workers. I look forward to our discussion today. Thank you.

CHAIR LIPNIC: Thank you Commissioner Yang.

Commissioner Burrows?

COMMISSIONER BURROWS: Good morning. Thanks so much to all of you for being here and I wanted to thank the Chair for calling this important hearing.

As we celebrate, or prepare to celebrate this anniversary year of the ADEA and consider its continued significance, I actually was reminded of a recent interview that sort of brought home the importance and the problems that come from age-based employment barriers. It was actually an interview with basketball legend, Kareem Abdul-Jabbar, who recounted how in 1965, long before he was a national star, long before he entered the Basketball Hall of Fame; he'd narrowed his college choices to either St. John's University or UCLA.

And Abdul-Jabbar was very interested in St. John's not only because it was in his home state of New York, but because they had a legendary; also I understand a Hall of Famer now, basketball court .- coach, Joe Lapchick. But then he learned that Lapchick would be retiring because there was a mandatory age 65 retirement rule.

And, at that point he opted for UCLA. The rest is history. He led UCLA to three championship titles, became such a dominant player that he prompted the NCAA to temporarily ban dunking because it was giving him an unfair advantage. In fact, I'm told that he is the reason college basketball is now on television. No one used to care. After that season, particularly in 1968, everybody wanted to watch college basketball.

So I don't know what Coach Lapchick would have decided to do on his 65th birthday if there hadn't been a mandatory retirement. I don't know if he would've stayed or not. I am certain though that St. John's would've preferred to have Kareem Abdul-Jabbar on their team .-

(Laughter.)

COMMISSIONER BURROWS: .- than playing against them for those four years of his college career.

So, I say that in all seriousness to point out how important it is for employers to remember that when they leave talent on the table by imposing age-based barriers, deciding to judge based on age, not based on talent and ability, they lose out. We all lose out.

So as several of today's witnesses have noted in their testimony; I thank you for that, the older population is expanding, it will continue to do so, and more workers are remaining in the workforce longer. So, combating age discrimination is going to increasingly be an important part of this Commission's work.

Studies show that the number of workers in the labor force, as the Chair pointed out, who are at 55 or older, increased. Actually, if you go back to 1990, it was only 12 percent. We're now looking at 22 percent, and by 2022, workers in this age group will be a full quarter, 25 to 26 percent, of our workforce. And they will also be substantially more racially and ethnically diverse than they have been in the past.

So despite the progress since the ADEA's enactment in 1967, we need to take seriously the reality that older workers still face unjustified barriers in the workplace. Often this comes from stereotypes. And I'm pleased to know that many of you have noted that problem and will be able to sort of delve into that today.

Some of these assumptions that older workers just can't get the technological needs of today's workplace, or that they don't have the energy, or are less innovative, are holding our economy back. So, our charge data shows that this continues to be a very large part of the EEOC's work, so I'm happy that we have you to help us get our hands around it.

So, I'm particularly interested in three areas: What can EEOC do to combat age discrimination in hiring and counteract these stereotypes? For example, as Commissioner Yang mentioned, references in job ads to digital natives, to specify as a sort of code word for younger workers who presumably; the employer is presuming, have superior technological skills.

Second, I'm concerned about how we can better address intersectional claims involving both age discrimination and other forms of bias.

And finally, I hope to hear about age discrimination in the technology industry because technology is such a growing part of our economy. There are so many jobs there. In fact, I understand by 2020 they'll be looking for a million workers that they currently don't think they can fill.

So, today's testimony will be extremely important and I am looking forward to hearing from you. Thank you very much.

CHAIR LIPNIC: Thank you Commissioner Burrows.

First let me introduce our witnesses, then I will review the ground rules for the presentations and the rounds of questions. We begin with Professor Patrick Button, Assistant Professor, Tulane University.

Welcome Professor Button.

Ms. Laurie McCann, with the AARP Foundation Litigation, we will present .- who will present on behalf of AARP; welcome back Laurie, who's been with us before.

Next, we welcome Mr. John Challenger, CEO, Challenger, Gray & Christmas from Chicago.

Thank you for joining us today.

Joining us via Skype from Tokyo is Dr. Sara Czaja, Director of the Center on Aging at the University of Miami School of Medicine and Director of CREATE, the Center for Research and Education on Aging and Technology Enhancement.

We are most appreciative of your taking time out of your vacation and at such a late hour in Japan to share your research and insights with us.

And we welcome Dr. Jacquie James, Co-Director of the Center on Aging and Work at Boston College.

Today's meeting will consist of one panel and then we will open the floor for questions and comments from members of the Commission.

Panelists, you each have seven minutes to make your oral presentations today, but your complete written statements will be available on our web site, www.eeoc.gov, and placed in the meeting record. Please note that we are using the timing lights at the center of the console in front of me. The yellow light will appear when you have one minute remaining for your statement, and the red light will appear when your allotted time expires. Commissioners' questions and comments will begin after all of you have completed your opening statements. Again, we are very pleased to have such an exceptional panel of experts with us today and we thank you for being here.

And with that, let me begin with Professor Button.

PROFESSOR BUTTON: Thanks very much for having me here today.

So we've .-

CHAIR LIPNIC: Okay. Pull the mic as close as you can to you.

PROFESSOR BUTTON: Oh, okay.

CHAIR LIPNIC: There we go.

PROFESSOR BUTTON: And then she'll get the signal to you. Okay. And I was holding the button, but now I don't have to hold it.

So you've already discussed .- thanks for having me. You've already discussed some of the broader trends of population aging, but I wanted to just mention one really sobering statistic. So, in 1960, Americans that were 65 and older were only nine percent of the population. Currently, that's about doubled, around 18. And Census projects that by 2060 that's going to be 29 percent. So, this is currently a big issue, age discrimination, and will continue to be a large issue going forward. So, I'm really glad to be here discussing this.

So, while we're having an aging population we also have older workers wanting to work more. So we're seeing increased labor force participation for older workers. So, for example, for seniors, men 65 and older that was 18.2 percent were in the labor force. So either employed or looking for work in 2000. So from 18.2 percent that is now as of last year, 24.3 percent. For women the increase is a lot more dramatic, from 9.7 percent in 2000 to 18.2 percent in .- last year.

So, this is motivated by older workers living longer, being healthier, having fewer barriers to work, more interest in working, preferences for working, and cuts to Social Security are motivating older workers to work longer. And one of the ways that older workers are working longer is these sort of partial retirement or bridge jobs that older workers take in order to kind of slowly go into retirement.

So, if you put the population aging with the increased labor force participation together, we see that older workers are becoming a larger part of the labor force. So the total shared labor force that's older men 65 and older was 1.8 percent in 2000 and 3.3 percent as of last year. So it's a significant increase, nearly doubling. And for women it actually doubled from 1.3 percent in 2000 to 2.6 percent as of last year. So it doubled. So the increase is more dramatic for older women entering the labor force.

So, because these sort of bridge jobs and these partial retirement jobs are so important, it's really important to focus on age discrimination in hiring. So me and my colleagues did a large-scale study of age discrimination in hiring. It's called a Résumé Correspondence Study. And these are studies that economists think are particularly good for quantifying discrimination.

So the idea is that we sent on average identical résumés. So the résumés are the same but we just changed sex and age. Age is changed based on high school graduation date listed on the résumé. And we sent these equivalent résumés to around 13,000 entry level job positions that are commonly jobs that older workers would take as just sort of a partial retirement job. So these were jobs as an administrative assistant, retail sales, janitor or security. And we compared interview offer rates to see did the older workers get fewer offer rates than the younger workers.

And so what we found is quite striking. So we found that there was definitely age discrimination, particularly at older ages, at age 65. So, the evidence leans more towards women, but I'll start with men first. So for older men that are age 65 we found that the younger workers who are age 30 and male got interview offers 29. .- 20.9 percent of the time in retail sales. So one in five got an interview request. But this is only 14.7 percent, so around one in seven for workers who are male and 65.

For older women we see that there's actually an earlier onset of age discrimination, so age discrimination occurs at age 50, whereas we don't see age discrimination occurring for men at age 50. The magnitude of discrimination is a lot larger for older women. So if we look at retail sales again, the penalty that women face is actually quite a bit larger. So young women age 30 got interview offers 28.7 percent of the time versus women who are 65 got interview offers 18.4 percent of the time. So the gap between older .- old and young is significantly larger for women than for men. And that's also significantly large gap in administrative assistants where we sent out female applicants. And so older workers who were 65 got around half as many interview offers as those who were age 30. So there's a significant sort of gender element in age discrimination.

So this sort of prompts the question, can the ADEA help, can similar state laws help kind of weed out some of this hiring discrimination? It's a little bit difficult to enforce hiring discrimination because the damages are a little bit lower, it's harder to identify discrimination at the hiring stage, but it's particularly important if you want to talk about older workers working longer. So hiring is quite important. But nevertheless there's research on trying to quantify the impact of age discrimination laws on hiring and do they actually increase employment and do they increase hiring?

And so I've done some work along with some others and the research mostly leans towards yes, these laws do increase hiring and do increase employment of older workers. But the evidence suggests that these laws help older men more than they help older women. So, similar research by my colleague Joanne Song McLaughlin at the University of Buffalo, where she was looking at sort of the sex plus age discrimination, so looking at the intersection between gender and age. And she looked at how older women fared under age discrimination laws relative to older men and found that the laws protected older men more than older women.

And so because this discrimination impacts older women more, based on my research and other research and because older women are living longer and they're increasingly entering the labor force more, it necessitates a focus on looking at sort of intersectionality. And so we might ask ourselves is there ways to make age discrimination laws better protect older women? And so one way that's been discussed is that it's difficult to make these sort of intersectional age and gender discrimination cases because the ADEA and Title VII are different statutes. And so there's some case law that says yes that sometimes older workers can make .- older women can make these intersectional cases and they can actually hold up in court. In a lot of other cases they get thrown out. So, that's something that's been discussed by some legal scholars as a possible avenue for trying to make age discrimination laws protect older women, and better was .- is a way, if we can think of a mechanism, to try to allow intersectional claims to stand.

And I have a lot of time left, surprisingly. Thank you for having me.

CHAIR LIPNIC: We'll see if we can bank it for some questions for you. Thank you so much for your testimony.

Ms. McCann?

MS. McCANN: Thank you for including AARP in today's commemoration of the 50th anniversary of the ADEA. AARP applauds the Commission for almost 40 years of age discrimination advocacy and we hope that today's hearing inspires even more vigorous enforcement of the ADEA by the Commission.

Be there no doubt the ADEA is a Civil Rights statute. Its enactment in 1967 admidst the passage of the Equal Pay Act, the Civil Rights Act, the Voting Rights Act and the Fair Housing Act. It was an important part of congressional actions to define and to protect civil rights in the 1960s.

The ADEA vastly improved the employment landscape for older workers. Prior to the ADEA's passage, half of all job openings explicitly barred applicants over age 55 and a quarter barred those over 45. Older workers could be forced to retire based solely on their age. Since then, mandatory retirement has been banned for almost all workers. Discrimination in employee benefits has been prohibited unless justified by age-related costs, and significant protections for older workers faced with losing their jobs while being asked to sign away their rights under the ADEA have been added.

Yet, problems persist and ageism remains pervasive. In a 2013 AARP study, nearly two-thirds of older workers reported witnessing or experiencing age discrimination on the job, a figure that has remained stubbornly persistent over the years.

The ADEA has become a second-class civil rights law. It includes the identical prohibitory language used in Title VII and for many years age discrimination was treated comparably to other forms of discrimination. Lately, however, the courts have emphasized the differences between the two statutes and used them to diminish the ADEA's protections and to erect barriers to age discrimination suits. It is well past time for Congress to restore the ADEA's strength and update its protections.

In the meantime, the EEOC has substantive regulatory power under the ADEA and there is much that the Agency can do to improve the ADEA's protections and invigorate its enforcement. Our testimony focuses on how the Agency can use that authority and other enforcement tools, including litigation, to address age discrimination more effectively.

To begin, AARP urges the Agency to do more to address age discrimination in hiring. The plight of older unemployed workers was Congress' primary focus, yet age discrimination remains a huge obstacle. The EEOC's own docket in cases such as Texas Roadhouse and Ruby Tuesday's, demonstrates that age discrimination in hiring persist.

While blatantly age-based job ads have disappeared, many employers continue to engage in practices that are almost as obviously age-based. A significant portion of AARP's litigation docket is devoted to challenging such practices. Specifying a minimum number of years of a position is legitimate. Specifying a maximum number of years of experience has a clear disparate impact on older applicants. Similarly, restricting all recruitment efforts for entry level positions to college campuses will exclude the vast majority of older applicants.

Unfortunately, efforts to fight such hiring practices are hampered by courts holding that only current employees can bring disparate impact challenges. The EEOC needs to take a clear stand that unreasonable requirements that have the effect of excluding older applicants from consideration are unlawful under the ADEA.

The EEOC must also defend its own disparate impact regulations, join AARP in bringing disparate impact hiring cases and file amicus briefs and others.

The Agency should also do more to ensure that online job search sites and applications don't screen out older applicants. Some require applicants to include dates of birth or graduation dates in fields that simply cannot be skipped. The EEOC's regulations do little to deter improper employer behavior. The regulations state only that such requests for birth dates and other age-related information will be closely scrutinized. Whether the scrutiny ever happens is uncertain. AARP urges the EEOC to make it a top priority to revise its regulations to make age-related inquiries and requests for birth and graduation dates presumptively unlawful. Reinforce that practices like maximum experience criteria and requirements for applicants to be affiliated with a university are age-related.

Mandatory retirement is another area in which the EEOC action is needed. Some employers evade the ADEA's protections by labeling employees as partners and then force them to retire. On more than one occasion the EEOC has received recommendations to file suit challenging mandatory retirement by Big Four accounting firms based on both directed investigation and individual complaints, yet in every instance the EEOC has not taken action. In some cases the so-called partners were bound by forced arbitration agreements and could not bring a legal challenge themselves. Their only recourse rested with the EEOC.

Other cases .- other areas where EEOC involvement is critical is state government employee cases where they can .- because of Kimmel they cannot seek monetary damages on their own, and also age-based harassment cases.

Finally, AARP urges the EEOC to use all tools at its disposal to initiate directed investigations and Commissioner charges, to file amicus briefs, and step up its litigation docket under the ADEA. According to the EEOC's general counsel's annual report of the 86 merit suits filed last year, only two were ADEA cases despite 23 percent of all charges filed with the EEOC being about age discrimination.

AARP has long battled ageism, especially in the work place, and our CEO, Jo Ann Jenkins, has made it AARP's mission to disrupt aging and change what it means to age in America.

In addition to our legal advocacy, AARP tries to prevent age discrimination by ever happening by documenting the business case for recruiting and retaining older workers and advertising best practices for managing an aging workforce. These activities supplement but are no substitute for strong legal protections. The ADEA should not be treated as a second-class Civil Rights statute.

On this, the 50th anniversary of the ADEA, AARP urges the EEOC to take bolder action to ensure older workers are treated fairly and we look forward to working with the Commission over the next 50 years. Thank you.

CHAIR LIPNIC: Thank you Ms. McCann.

Mr. Challenger?

MR. CHALLENGER: Thank you Vicki and the Commission for having me, honored to be here today.

So I want to focus on .-

CHAIR LIPNIC: Can I ask you to pull that microphone as close as possible?

MR. CHALLENGER: I'm sorry. So, I want to focus on the statistic that only 40 percent of workers over 55 are participating in the workforce today. So they're not counted as workers. And over 65, it may be 18 percent. Very low numbers compared to people age 25 to 54 where 80 percent approximately of people are participating in the workforce. So what it means is that people in our society, in our workforce, people are leaving the workforce maybe because of traditions, because of .- it seems to be the right way to handle your life, to work on .- to go forward. So for one reason or another, even though we've put these laws into effect, people are still leaving once they get into their late 50s and 60s, stopping working. And yet many do want to continue to work. Most in fact I think would be happier and healthier if they continued to work.

So I've spent my life working with people in their 50s and 60s and 70s thinking about job changes.

And one of the things .- kind of the core messages that I've sent to people .- I've seen so many people who left the workforce, stopped working, couldn't find a job, faced discrimination, decided on their own maybe they wanted a different .- didn't want to work, and yet a year later found themselves wishing that they were working and then really had a difficult time finding their way back into the workforce, because then not only did they have age discrimination to deal with, they had the long period out of work, and that long period out of work made .- it in fact makes even more impact on older workers -- just doubles the amount of discrimination that employers put on older workers.

They end up feeling like, well, this person not only has left the workforce, their skills are maybe not current, but now they've been out of work for .- out of the workforce for a year and they're slowing down, they're not focused on getting back to work. So again, that discrimination gets worse. People younger can take those gaps. Still very hard to get back into the workforce, but much harder for older workers.

We're at a time in our economy right now, end of .- nearing the end of an expansion where unemployment is very low, 4.3 percent. The pool of unemployed is much lower, much smaller. So it's a time when changes can occur. Companies, employers can .- as they face difficulties finding particularly skilled workers, dip into pools of workers that normally they ignore for discriminatory reasons. They have no choice.

So, one of the issues, big issues facing the country and employers right now is that there's a skills gap. They can't find enough skilled workers to fill the jobs they have. You went .- looked at that with a number of openings. And I'm hearing that from HR officers and talent officers every day that this is a very difficult market to find the people they need.

What leads it .- the economy, what will lead the economy into recession, the core fuel for our economy, is not energy; it's particularly skilled workers. So economies cannot continue to grow. They hit that wall and they go into recession when companies have to put their expansion plans on hold, they can't find the workers to do that.

Just yesterday I was talking with a chief HR officer and he was saying .- in the construction business, and he said there's such a dearth of talented skilled tradesmen that we're putting our projects on hold. If we could just .- we're pulling concrete pourers out of retirement, looking for them because no project can go on unless we can find people who know how to do that.

So with a skills .- with the skills gap being the core driver of what will lead us into recession, again just not having enough people to do .- to grow the economy; older workers present such a great opportunity for employers. Skilled workers who've left the workforce think that the employers don't want to hire them. Employers have a hard time finding those people because they've .- sometimes they've gone off the digital map or they're .- have never been on the digital map.

So recruiting and talent departments in companies today go to LinkedIn primarily scouring that particular environment for candidates. And so older workers particularly not --- being digital immigrants like me, rather than digital natives, often haven't put their résumés up on LinkedIn. And today that is more important than a résumé for a company's .- for people to display their candidacies to companies and for companies to find them.

Also, older workers are the key to retention issues. So another top priority for companies today and HR departments is how do we hold onto the people we have? People are leaving, much more willing to move to other jobs, and often employers think that older workers may not last as long as younger workers. In fact, just the opposite is the case.

So, it used to be that you might hire a worker who was in his or her 20s or 30s and you might expect that you could get 20 or 30 years of experience of tenure at your organization for that individual .- from that individual. You train that person, you develop that person. Today we see much less of that because younger people are moving much more often. Perhaps they saw their parents downsize and the long time .- long lifetime tenure disappeared. So they move much more often. They're much more ambitious. They're much more .- less stable.

So hiring older workers also is an answer to the retention issue for companies. When they bring on older workers, they're much more likely to stay, to be at that company for a longer period of time than younger workers. So it's a big .- an antidote for companies to the issue of high turnover.

To end, it's also .- I'm convinced from working with people, it leads .- if people can continue to work and feel that work is available to them and they're not led into retirement because they .- not because they're mandatory requirements of people, because that's just what happens in our society, then if they have work available to them, they will lead happier lives, having a balance between work and personal life. For most everybody I see, not everybody; but most everybody I see it leads to more productive, happier lives.

And today we have the ability to do that. More and more companies are taking people who might want to say move to another area of the country, might need to go take care of an aging parent and keeping them on board rather than them .- so if they move, they can allow them to telecommute, to continue to work at the organization, because in today's digital world, most jobs can be done .- certainly significant parts of them, if not all of them, from wherever that person is located. So the potential for longer tenures and ongoing work, whether it be full-time work or part-time work, consulting work, project work, all of that's available to allow people and companies or employers to find new ways of working together.

CHAIR LIPNIC: Great.

MR. CHALLENGER: Thanks.

CHAIR LIPNIC: Thank you so much Mr. Challenger.

And now we will make our way to Japan and to Dr. Czaja.

DR. CZAJA: Hi, it's evening here, but, Good morning to you. I'd like to thank you, the Commission for this opportunity to be part of this really important meeting. Much of my comments are going to be based on findings from our NIH-funded Center for Research and Education on Aging and Technology Enhancement, also known as CREATE.

We've been funded by the National Institute of Health since 1999. The focus of CREATE, obviously from its name, is on older adults interacting with technology systems. And one of our main areas of emphasis is of course on work and employment. First, my comments are also based on other valid literature.

As noted by colleagues in the opening statements, our workforce is aging, and we're seeing an increase in the number of older workers.

I think importantly at the same time, there are other changes that are going on, that kind of have the makings, if you will, of this perfect storm. There are changes in organizations such as an increased emphasis on telework and teamwork, results which both of these things obviously result in changes in job demands and the way work (audio problems).

CHAIR LIPNIC: Uh-oh. Professor .- Dr. Czaja, can you hang on for a second? We're having some audio problems.

DR. CZAJA: Okay.

CHAIR LIPNIC: Oh, now you're back. Okay.

DR. CZAJA: Okay, another significant trend is the ubiquitous use of technology in the workforce. This has vast implications for both organizations and workers. From an organizational perspective, organizations again, as the former speaker just pointed out, we need to have a workforce with the requisite skill to meet the changing demands of today's job. And also mechanisms to forecast changes in technology so that they can prepare for these changes. And we know that technology is highly dynamic. It's not static so that the technologies that people are working with today, are likely to vary and change in the future.

From the worker's perspective, they need to ensure that they have the skills to keep pace with the changing demands in jobs, and that they're able to maintain these skills to keep up with changes in jobs, technology, and as it continues to emerge. In fact, a common term that we found is the term "lifelong learning," meaning that workers of all ages, not just older workers. But we constantly have to engage in learning and training activity to keep up changes in the workplace.

I think these issues are particularly pertinent. Unfortunately, many times the older workers, especially those who are seeking to enter the workforce, have not had or do not have the opportunity to acquire new job skills due to a lot stereotypes that unfortunately are still pervasive today. These stereotypes include the fact that they're uninterested, or unable to learn new skills, they're technophobic, that they perform at lower levels than younger workers, and they're inflexible and resistant to change.

My colleague and I did a large survey - the focus was on telework and getting managers' opinions about who was suitable for telework and what kind of policies they had and what kind of comparison there was between older and younger workers. What we found was the myth I just mentioned was very pervasive - that they were resistant to technology and less flexible and not adaptable.

Since 1999, we have shown that in fact [low audio), changes in cognition there appears to be a great deal that people can learn and can experience functional (inaudible).

That older people are not technophobic, but oftentimes they are not provided with the opportunities to engage in the training, or - again, this was a study done long ago.

They want to go back to work. Workers of low socioeconomic status (inaudible). Second, because of their age, and they don't have the requisite technology and skill, and didn't know how they could acquire those skills and get the training needed to obtain these skills.

[NOTE:Due to transmission problems, Dr. Czaja's statement reflects parts of her oral statement that were clearly audible.]

CHAIR LIPNIC: Dr. Czaja if I can interrupt you. So we're having some audio problems again. I don't know if it's on our end or if you could just get closer to the mic. But if I could ask you also just to wrap up since we're at the end of your testimony time period.

DR. CZAJA: (No audible response.)

CHAIR LIPNIC: Unfortunately, we don't have any audio right now from you, so, I'm going to .- if .- we'll conclude your testimony and then we'll .- we're going to move onto the next witness and hopefully we'll have this fixed by the time we come back to a round of questions for you. Thank you.

If I .- so Dr. James?

DR. JAMES: Madam Chair, thank you so much, Commissioners, Deputy General Counsel, Legal Counsel and my distinguished colleagues on the Panel. I'm really grateful for the opportunity to speak with you this morning about some of the ways that we have been at our Center trying to encourage employers to be more age-friendly and to keep those categories from interfering in the employee/employer relationship.

I'm going to try .- did my slides come up?

CHAIR LIPNIC: There we go.

DR. JAMES: You've already heard here about the changing context of work. In one study, 18 percent of respondents said that they never planned to retire, and fewer and fewer people are very confident that they have enough money for the long years of retirement that we now can experience. Just last week I read that 62 percent of primary earners ages 55 to 64 have less than one year of annual income in savings. All of which is to point to the need for new employment practices that address the needs of what is now a multigenerational workforce.

Unfortunately though, employers have been slow to innovate as you are all pointing out. This is a little bit of a complicated slide, but the point of us showing it, is to indicate that employers think they're doing a much better job of supporting their employees in working longer than the employees do. Seventy-eight percent of employers think that they're supportive and significantly fewer of the employees think that.

You've also already heard here this morning about the ways in which these stereotypes and categories such as these that I've collected over many years continue to affect workers' employment practices at every level, from recruitment and hiring, training and development, promotions, even the workaday kind of micro-aggressions that one of the Commissioners pointed to.

As this slide shows with a quote from Gordon Allport, who is considered the father of prejudice, it's hard to avoid having a bias of one sort or another. Even as researchers we are told that we cannot eliminate our biases. We have to make sure that we recognize them and acknowledge them in our work. So we have taken the position at our Center that it's better to develop policies and practices and programs that minimize the extent to which bias creeps into the employer/employee relationship.

Since its founding in 2005, my colleagues at the Center on Aging and Work have created what we call a crazy quilt of policies having to do with job qualities that benefit workers of all ages. If an employer is keeping tabs on these issues, then we believe that bias is less likely and a productive, engaged and happy workforce is more likely. And some of these are particularly important to older workers, especially opportunities for meaningful work, flexible work options. And, this is a surprise to some people, training and development opportunities.

Most recently we have worked with AARP, and I want to acknowledge my colleague, Tay McNamara, who's been the architect of this work, to develop a benchmarking tool for employers to show them how they compare to the national average on a set of practices that we feature in this benchmarking tool.

When an employer goes to this tool and takes a survey, he or she gets a low, medium or high score in comparison to similar other organizations. On the basis of these scores, employers are given tip sheets depending on their score. There are different tip sheets for each level. We find that employers respond to seeing how they compare to others. No one wants to lose the competitive advantage.

So this is just the approach that we took. And when employer clicks on a tip sheet, what they first get is a bunch of bullet points. And this is for the fast-paced world we live in. At least they get that. And within each bullet point then are resources; there are links to PowerPoint slides, to reports, to videos, to examples from other organizations that are doing these kinds of things. The tip sheets are deep and wide.

They feature several of the practices in the crazy quilt which I showed you, as well as good assessment practices. We're researchers so we're always encouraging employers to do a better job of assessments; practices for recruitment and hiring; how to talk with employees about how they might continue work or whether they might be more interested in retirement; about flexible work options, how to implement them, how to support them and how to manage intergenerational relationships.

And what I'm going to try to do in the time I have left is just to give you a few examples of the kinds of things we do.

In terms of recruitment and interview strategies, we ask employers again to realistically examine the extent to which an age-diverse workforce can help them meet their organizational goals. We ask them to consult various sources of myths and misconceptions about older workers. And there are lots of them, and we point them to them. We remind them to review their recruitment strategies to make sure they are targeting workers of all ages; that they don't have those code words that we've been hearing about.

We ask them to make sure that their web site is age-friendly and that it includes images of employees at all ages, and we tell them that hiring managers are more likely to hire people just like themselves. So we suggest that it might work better to have a mixed age interviewing team or panel even for developing the job descriptions.

We also spend a lot of time talking about how to talk with employees about what their options are in terms of continuing work with the organization or whether we can help them think about retiring if that's what they really want to do.

In terms of continuing work, it's really important to let employees of all ages know about any flexible work options that the organization supports. And this includes options to gradually phase out of work, and not just to retire, but for workers of all ages; there are times when people want to gradually phase out of a job to move on to something else. We talk about offering part-time options, even flex-year, and we suggest programs to reengage retired employees who want some level of involvement with their organization after they retire.

We suggest workshops for workers of all ages about both the financial and the non-financial aspects of retirement and we suggest cross-training of employees of all career stages to minimize organizational shocks of all types such as numerous retirements, brain drain, job obsolescence and other things that happen to organizations when the wind blows a different direction.

Finally, I want to talk about asking employers to be knowledgeable about the possibility of intergenerational conflict. Basically, I'm going to be honest here this morning, we actually see this as one of those bandwagon concepts that employers are really hooked on. So we really use the term, but again we encourage employers to confront the myths and realities of this kind of conflict.

We suggest that other age-related differences are more likely sources of conflict than generations per se such as life stage differences, career stage differences and job tenure. We suggest that employers then think about building cross-generational networking opportunities, intergenerational teams and bidirectional mentoring relationships. We suggest that they provide leadership training to employees of all ages.

And we especially suggest that employers think about the similarities among employees of all ages in terms of values and work styles. The main thing that we hear from employees when we survey them is that the main thing that is important to them is the credibility and trustworthiness of the organization. And this is something that is valuable to all employees.

We believe that if we change policies and practices first that this may have the impact of changing attitudes down the road. From other research we have done, we have learned that the perception of age discrimination negatively affects the engagement scores of workers of all ages, young as well as old. So this is also a touch point that we hold onto with employers. Thank you.

CHAIR LIPNIC: Great. Thank you very much for your testimony.

So now we will move to our round of questions. And I do want to just make sure that .- do we know for sure that Dr. Czaja is available by audio? Do we have that?

(No audible response.)

CHAIR LIPNIC: Dr. Czaja can you hear me?

DR. CZAJA: Yes.

CHAIR LIPNIC: Okay. Yes, I think that you probably need to speak up a little bit and maybe get closer to your microphone.

DR. CZAJA: Yes, I am.

CHAIR LIPNIC: Okay. That's a little bit better. Let me just .- let me ask you a question. In terms of your research and your testimony, you talk about older workers and the concern about them being technophobic, and I wonder if you could talk about specific types of training techniques, if there's .- or if there's something different that employers should be doing in terms of training to overcome this assumption.

DR. CZAJA: Well, in the first place .-

CHAIR LIPNIC: Much better.

DR. CZAJA: .- there .-

CHAIR LIPNIC: Much better.

DR. CZAJA: In the first place, I think you would have to make sure that the training is available to older people, older workers. And there is some data which suggests that many times they're not considered viable candidates for job training opportunities.

In terms of guidelines there are general guidelines for instructional formats for older adults. There's not one training program .- protocol that's been proven to be better, you know, a golden training protocol. But certainly we know that there are things like providing people with best practices, sufficient time to process information that they can learn, and assimilate the new information, actively involving the learner in the learning process, comparing technologies to familiar concepts. That is critically important in providing that feedback in a good time and manner. And we generally find that starting on more basic skills and that moving in a building block fashion to more complex skills is an optimal training approach.

CHAIR LIPNIC: Okay. Thank you.

Let me ask .- and actually is there a clock working here in terms of .-

(Simultaneous speaking.)

(Laughter.)

COMMISSIONER FELDBLUM: It's okay. We'll get more done.

CHAIR LIPNIC: That's right. Exactly.

COMMISSIONER FELDBLUM: (Inaudible).

CHAIR LIPNIC: Right. I have a question actually for Mr. Challenger.

So if someone .- so the code word of people who would have in 2008, the depths of the Great Recession, lost their jobs at say age 55, who would now be in their early 60s approaching mid-60s, do you have experience with that group of people in terms of them trying to return to the work place? And what is your experience with employers about being receptive, given as you said, we're now sort of in a different part of the curve in terms of the economy in hiring those workers? And do they still want to work at that age?

MR. CHALLENGER: Well that was a particularly difficult time.

CHAIR LIPNIC: Can you make sure your mic is on and .-

MR. CHALLENGER: Oh, yes. It was a particularly difficult time, maybe unlike any other time in our life times because the loss of jobs was so sudden, so large and so impactful. So, when the recession hit, there was like a giant pile-up on the highway of people looking for jobs and just no jobs available. And older workers were hit disproportionately. Many just decided to leave the workforce.

This would be .- this is a good time again because the economy is so strong for people who've been out of the workforce to get back in, but that's a long gap. So if you lost your job in 2008, '9, '10, and it's now six years later; if you have been really out of the workforce for a long time, most employers are probably not looking at you. That gap is so significant. And probably the inertia and just the move into a different phase of your life accelerated it over that time. People are probably now stuck in that.

So, I think that's a .- it would be my hope that employers would've hired some of those people back, but my guess is some of those participation numbers for people in their 60s and 70s are due to that particular time and the people who were forced out, couldn't find their way back in. And then after they'd been out for a year or two or three, it just became impossible to find their way back in.

CHAIR LIPNIC: And in terms of .- so what you talked .- the skills gap, right? So is there .- do you see that there's much .- or as you suggested, it's a different time so maybe some innovations on the part of employers. Is there any interest in terms of trying to reach those workers, in terms of either tap the skills that they had, or as you just said, well, maybe they're the .- the perception is, they're skills are too rusty, or, train them in some different type of .- whatever type of training programs that employers might offer?

MR. CHALLENGER: I do think this is a good time for that. I think employers .- there are employers who are having a very difficult time filling the jobs they've got, can't find the people. They're looking in new areas. So the question is how to find those people and whether those people now want those jobs. They've been out so long. So sometimes it's also self-inflicted. You've just not been working so long that now you've found a way to make it work with a new lifestyle, not .- with work not a part of that. So I think smart employers do go to untapped areas.

Another one are women who leave the workforce in their child rearing years and then have big gaps and are coming back. It's a similar type .- can be a similar gap. There are more .- and I think there's more .- difficult for both groups. I think there's more acceptance of women coming back today. Companies get that more than older workers who seem like they've been out for a long time.

There are more opportunities today for people to continue to work though, so some of those gaps aren't just whole .- just deserts of no work. They've done part-time projects and sometimes they can fill those .- that work experience in with volunteer activities, with projects that might allow them to give more credence to the currency of their skills.

CHAIR LIPNIC: Okay. Great. I don't want to go over my extra time, so Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you so much, and again thank you to everyone. So first to Professor Button, I want to extend my appreciation for the academic work that you and your colleagues do. It's often very time consuming to do things like this résumé project, but it's incredibly important because as we know, the charges we get are only the tip of the iceberg of people who've experienced discrimination. Most people just sort of give up; they don't want to start fighting. So this résumé project is really important in terms of capturing the hiring issue.

So, I wonder if you could describe a bit more how you dealt with the challenge of developing equivalent résumés, résumés that were, right, substantially equivalent in terms of qualifications even though you were comparing applicants who were so much older and therefore by definition may have had more years of experience. And you talk about this in your written testimony, but I think it's important for people listening to this to hear as well as if you want to expand any more than you did in your written testimony.

PROFESSOR BUTTON: Right. Thanks very much for the opportunity. I probably could've used that extra 50 seconds to discuss that little bit there. So I think you bring an important .- raise an important point.

So in these résumé studies we try to make the two groups: the minority, non-minority, exactly the same, right? So just so we can isolate the effect of that minority status. So for age it's a little bit more complicated because when we think of older workers they would tend to have .- work longer. They have more experience. So we actually set out to actually try to quantify this. So we did make older worker résumés that were the same as younger workers, so listing say 12 years of experience. We also had older worker résumés where the older worker was working for longer, commensurate with her age, so going on for say 20 or 30 years.

What was interesting that we found is in these entry level job positions in retail sales, administrative assistant, janitor and security, the length of the résumé didn't matter. So if the worker, she went back 12 years versus if she went back 30 years, that didn't impact the interview offer rate in almost all cases. So it's .- what's interesting is that normally employers would value that additional experience. That additional experience might help mitigate age discrimination, but it actually didn't matter too much.

We actually thought going through the study that previous studies had made the résumés the exact same, so we thought that if we made the résumés longer, had more experience, that we would actually get a different answer for age discrimination, but it turns out that at least in these entry level jobs that's not a factor. So regardless of the type of work trajectory, work history of the older worker, she still faced the same amount of discrimination.

COMMISSIONER FELDBLUM: Very interesting. Thank you.

So this is to both Mr. Challenger and Dr. James, but I think all of you might have something to say about this. By the way, again I .- this is encouraging people to read the written testimony as well.

Mr. Challenger, I thought it was great how you set out dilemma bias, dilemma reality, dilemma misconception, and then recommendations. So one of the things that you said on a dilemma was that the initial interviewer just can't picture the older job seeker as fitting in, just doesn't seem like they would work in this setting. And one of your recommendations was, obviously educate recruiters and talent managers on the benefits of employing older workers, because I think all of you talked about that, but then also through financial incentives companies can encourage hiring managers and department heads to recruit and retain older workforce.

So I'm wondering if you've worked with companies who have actually used these types of financial incentives and what has been the reaction for managers and department heads on that.

And then a somewhat related question, Dr. James, you noted it'd be good if among the initial interviewers, it was an age-diverse team that was interviewing. But I also wonder how realistic that is for most companies, especially since so much is done online, and even if it's not, whether they're going to dedicate the resources of age-diverse interviewers.

So Mr. Challenger first.

MR. CHALLENGER: We are starting to see companies incentivize managers and executives and then the recruiters themselves for the diversity of the hiring that they .- their success and their accountability to the numbers that the company might be seeking. So, it seems to me that's only going to grow as companies feel that this is something that is going to make their businesses better, that they're committed to, and I think it's again a practical tool to change behavior.

COMMISSIONER FELDBLUM: And there's not sort of backlash to a financial incentive? I assume this is on all grounds of diversity, not just age?

MR. CHALLENGER: Yes. No. Well again, you're trying to break down barriers. You have to get buy-in. But if there's financial incentive, that starts .- maybe that's the first step for some companies. They do that. They get some of the change. Then they get buy-in for some of the people who didn't because they financially want to make the gain.

COMMISSIONER FELDBLUM: Yes. Dr. James?

DR. JAMES: Thank you. Well, that's a hard question to answer because it's .- as I did in my .- I think went over my five minutes. It's really hard to talk about employers in generalities because everything depends on job sector, the kind of skills that are being required, rural versus city. There are just so many complexities to talking about employers. But, in general we do not get a lot of pushback when we talk about forming teams to do hiring. I think the real stopgap places, what Patrick was talking about, is there usually is someone screening résumés, and that's not a team. And so that's where a lot of people get lopped off, but if employers do think about their diversity and inclusion policies in relation to hiring, recruitment and hiring, then people should be involved in all levels at developing the hiring position, the description of it and how they're going to go about it. If they do that, it's probably going to eliminate some of the bias. And again, I haven't heard in conversations and work with employers we don't get a lot of pushback about that.

COMMISSIONER FELDBLUM: I'm going to follow the model of the Chair and not use my last 43 seconds and pass it on.

CHAIR LIPNIC: And I had that extra time.

COMMISSIONER FELDBLUM: Yes.

CHAIR LIPNIC: Right. Commissioner Yang?

COMMISSIONER YANG: Thank you. Dr. Czaja before I know we lose you I wanted to follow up on a point you made in your testimony about usability barriers for technology adoption for older workers? Do we have you connected? Okay. Hello. I wanted to hear more about some of the efforts to educate employers on the kinds of issues that older workers face in using technology and what implications that has for actually the types of technologies employers may consider deploying?

DR. CZAJA: (Inaudible).

CHAIR LIPNIC: Dr. Czaja could you .- again, could you speak .- could you get closer to the microphone and .-

DR. CZAJA: Yes.

CHAIR LIPNIC: There we go.

COMMISSIONER YANG: Okay. That helps.

DR. CZAJA: Can you hear me now?

CHAIR LIPNIC: Yes, that's better.

COMMISSIONER YANG: That's better.

DR. CZAJA: Okay. I think all of us have had the experience where the technologies we encounter are very cumbersome to use. You really have to think about the technology design and how people are actually going to use (inaudible). (Inaudible), but also founders of the technology system. Many times, if younger people, its younger people who jump on the ideas of the needs, preferences, or the changes that occur and jump (inaudible). It's critical to overcome some of these issues.

COMMISSIONER YANG: Thank you. I'm sorry. We are still having a bit of technology problems, but thank you so much for joining us.

Ms. McCann, I was interested in your testimony about the use of big data screens and how many of them are requiring age, and that can really serve as a barrier particularly in light of the research we heard from Dr. Button. What are some strategies that you think could be effective in countering some of those practices? What do you think the EEOC could do in that regard?

MS. McCANN: Well, I think education of employers to let them know that the ADEA instructs them to ignore age, so any time that they are using age in those algorithms, that that is a violation of the ADEA. And for the EEOC to be very vocal that if they discover that age is being used in these algorithms, that they will bring litigation to challenge them is what I think would be effective.

COMMISSIONER YANG: Thank you. And Dr. Button, from your research, do you have any insights into what could help change employer behavior in terms of screening employees based on age?

PROFESSOR BUTTON: Right. That's a really good question. My current research doesn't exactly say why we might be .- these .- why we had this age discrimination. We talk a little bit about age-related stereotypes. Because gender is a large element here, there might be something going on there. And when we're .- when .- in the study when we're looking at discrimination in for example administrative assistant, retail sales, there might be some discrimination based on sort of looks or perceived looks, and there's sort of a gender and age element in that as well. But I think we need .- do need to sort of probe further in this, so my current research that I'm working on right now might have some answers, but not quite yet.

COMMISSIONER YANG: Okay. Thank you.

And Dr. James, from your work looking at sort of organizational behavior change, what are some of the .- have you looked at issues involving age and gender and that intersection and what might be strategies to combat that?

DR. JAMES: I can't say .- we do a lot of a surveys of employers .-

COMMISSIONER YANG: Yes.

DR. JAMES: .- and employees and we always look at all our findings with respect to age and gender. We ask a lot of questions about those policies I put up in the crazy quilt and we look at the differences in the gap between what the organization offers and what the employees want in terms of age and gender. And that's why I mentioned that some of the ones that do .- are perceived as gaps by older adults are meaningful work opportunities and flexible work options and training and development. But we don't .- our research is not about hiring .-

COMMISSIONER YANG: Yes.

DR. JAMES: .- and recruitment.

COMMISSIONER YANG: Has .- can you share any examples of sort of successful practices that were put in place and what employers found as a result?

DR. JAMES: Well, there are many. I mean, the .- the bidirectional mentoring is just .- was an exciting project where people .- an organization actually realized they needed to get more technologically savvy, that they were older at the top and less savvy, and they had a lot of younger employees. So they paired younger employees with older employees. And the older employees .- the younger employees helped brainstorm with the older employees about the organizational needs and how to make technology work for them more. And what ended up happening was almost all of the younger employees got promoted. And this was really mostly having to do with having access to that level in the organization and getting known and seen by them. And so the mentoring went both ways. So that was really an exciting program.

The reengaging employers .- employees in retirement, bringing them back for special projects has been very successful for many organizations. Of course I don't like to use the word "phased retirement," but a lot of organizations have implemented phased retirement programs quite successfully. I have a list on my desk. And we actually feature innovative practices on our web site. If you give me a minute, I'll think of some more. But there really are quite a few and numerous ones.

COMMISSIONER YANG: Well, thank you very much.

Mr. Challenger, do you have any other examples that you might want to highlight of practices that you see working?

MR. CHALLENGER: Well interesting, you talked about the technology sector as being one of the more ageist and .- so we're starting to see in Silicon Valley companies voluntarily putting their gender pay issues out as a way of advertising to potential employees that this is a good place to work. It seems like this would be another place for them to work on putting their numbers out as a way of .- and I think if it's voluntary, then people buy into it. If they're saying this is something that's going to show why we're different and attract talent, it will help to change the environment.

COMMISSIONER YANG: Thank you. I'm out of time.

CHAIR LIPNIC: Commissioner Burrows?

COMMISSIONER BURROWS: Thank you. I think I want to start with Dr. .- Professor Button. I am interested in your work on the .- you mentioned earlier in your testimony about the impact of sex discrimination and age discrimination working together with women experiencing age discrimination earlier in their careers and more severely.

And one question that occurred to me though is that traditionally, and I don't have this by age, but according .- not just traditionally, even now, according to BLS' latest statistics for this year, there are more women of color in the workforce throughout. Sixty-one percent of African-American women in the workforce compared to fifty-one point .- fifty-seven point five percent of white women. Latinos are 58.7 percent, so only slightly higher.

But I wonder if it is useful to also take race into account and to figure out if .- and I don't know if that continues to be the case in the older age group. It may be even more so. But how much of what you're seeing .- again, I have no doubt that it's .- there's sex discrimination, but how much of what you're seeing is actually falling differently based on ethnicity?

PROFESSOR BUTTON: Right, I think that's an excellent question. Unfortunately I don't have great answers there, so one apology is that my study only focuses on age. So we didn't look at race. But there's some interesting new work done by my colleague Joanna Lahey at Texas A&M where she's looking at the intersectionality between age, gender and race. So this is something that's sort of forthcoming in terms of research, so we don't have a lot of answers yet. She has an interesting look at how .- so older women are working longer, but it's actually less .- it's a little bit likely for older black women to working longer. So she did some research on that.

So I don't know all of that off the top of my head, so I don't want .- and I don't want to sort of misquote her work on that. But I think this is something that's important, to look at that intersectionality and it's something that I think economics as a profession needs to do a little bit more research on. So I'm happy to follow up with you more on that with more explicit details, but I don't have anything too useful to say at this time on that. But I think it's a really great question.

COMMISSIONER BURROWS: Thank you.

I wanted to turn to Ms. McCann. Welcome. I appreciated your very stark statement at the beginning that in your view the ADEA has become almost a second-class civil rights statute. And you pointed out, and I think others; I believe Mr. Challenger as well, that there may be some needs for Congress to take up the pen and do some tweaking on that. And I personally think that that might be a wise thing.

One thing that I was interested in is your statement that the way damages work, that you can't get any .- or generally there's a real problem with getting damages with respect to that .- those compensatory damages, the pain and suffering, right, which affects of course harassment cases, but also frankly for people who are not hired or for other things that happen. If you're laid off there's a lot .- particularly if you're laid off there's a lot of emotional damages that can be wrapped up in that.

And so I'd be interested in your expounding a little bit on that and on the significance of it, particularly with respect to harassment matters.

MS. McCANN: Sure. So as you say, unlike Title VII, the ADEA, you cannot recover compensatory damages for pain and suffering. And that impacts the statute in many ways. For example, it's less likely .- it's harder to find private counsel to represent you when the expectation of damages is lower than in other cases. So - and, age discrimination is no less harmful to someone than other forms of discrimination.

Recently at a forum AARP had, Barry Goldstein made the comment that .- you know, think about the older worker who just lost his job of many years. His kids are in college. He has a mortgage. And he gets in the car and he has to make that call to home, I'm coming home, but I'm not going back tomorrow because I just lost my job. It's devastating. And he also knows that he's now going to face months and months and months, if not years, of fighting age discrimination to get back in the workforce. So it's devastating.

And harassment, you may not lose your job as a result of harassment, and so therefore you don't have that back pay damages. And so I think then as a result, harassment is less likely to be challenged because it costs money to bring a lawsuit, and if you're not expecting any damages at the end, are you going to direct those resources toward challenging the harassment or to continuing to meet your monetary obligations for home? And again, same with the problem with not having compensatory damages; it's hard to find private counsel to represent you in those age-based harassment cases when .- if they take it on a contingency basis and there's no damages at the end, it's very difficult. COMMISSIONER BURROWS: Thank you.

I wanted to turn to Dr. James and also Mr. Challenger, and my question is .- and particularly since you work frequently with employers; and I realize they're not all one big monolithic lump, but .- or with people who are seeking to get back into the workforce. This issue of stereotyping and what we can do, if you have any specific thoughts about how the Commission can attack that problem? And one thing that I am interested in, and it's come up in .- I think it was noted in Ms. McCann's testimony, is that .- and in other things that I've been reading, have been this sort of question of the maximum experience. And so I want to be fair about that idea, because I'll be honest, I have difficulty with it. I've always been perplexed by it. And I .- so I'm wondering though if there are things that you've encountered in talking to folks. In other words, we'll take you, but only if you have .- not if you have more than X years of experience, right? That's something that you see in job applications. It comes up a lot. We've talked about it on the Commission. I'm just curious as to you because I want to really hear what explanations we might have and what employers say about that, what legitimate needs they have for that? So those two things: How to attack stereotypes .- and I want to put that one off. I'm not sure where that .- I want to be open-minded about where that fits, but I have to say I am perplexed as to the desirability of hiring someone with less experience, less relevant experience for a particular job.

MR. CHALLENGER: Well, I don't see too much of the maximum experience. That's a .- that's .- funny, I haven't seen that out there where employers say anybody with more than 10 years of experience or 20 we wouldn't want. I see a lot of like three to five year experience, or something like that in advertisements. So I do think that the workforce is .- people who are in their 50s and 60s should be applying for those same level positions. So it doesn't make sense to me that they should say three to five seems to imply that's really what we want rather than three to five plus is fine. So I mean, the workforce, there are people in their 50s and 60s applying for jobs at every level. It doesn't seem like there should be any one where there's only a certain amount of experience is required for one reason or another.

And then the issue of having all your experience on a résumé is an interesting one. Then .- and I'm not sure where I stand on that. I tend to encourage people to put all their experience on their résumé, but recognize that that résumé should have .- be .- two-thirds of it should be in the last five years, maybe 10, because that's what employers are looking for at every age. What have you been doing recently that says you're current here? But there might be something in your background if you're older that might just catch a particular .- you never know, the interviewer, the company. Everyone is different, and so they might find something that you did back in the past that would be valuable or pique their interest. So in a smaller way you should have that covered. It seems like they're going to find out your age one way or another for the most part through education or some other way. I'm not sure about that one.

DR. JAMES: Well, I'll address the issue of stereotypes first. I believe that some of the most interesting work on stereotypes I've ever seen is Mahzarin Banaji's work at Harvard University. And she has what's called an implicit bias test. And I think the biggest ammunition against allowing these categories to rule our lives is education about stereotypes: being able to recognize them, being able to see them when they happen. And our biases really are in many ways unconscious, implicit, and often unintentional.

And I have worked with employers in many situations. I mean, going and giving talks to employers. I actually encourage people to take this test. It takes 10 minutes. And everybody fails it. And she says that ageism is the worst "ism" there is, and it's not just because .- it's partly because older people themselves are ageist, and ageism isn't considered something we have to be sanctioned for. We're still .- it's still okay to make derogatory jokes about age. And so I just think education about stereotypes and the acknowledgement that they are, you know, implicit, that we don't see them, we don't recognize it. And getting people to focus on them and be aware of them is the most important hedge against their negative effects.

And I always encourage everybody when I give these talks, you just go to implicitbias.com and it comes up and you do it. And it's .- even though I know the method and what they're trying to get you to do, you can't do it. You can't do it. And the author of the study herself owns her own biases that show up in that test. So I think that's important, is educating people about stereotypes.

COMMISSIONER BURROWS: Thank you. I think we've gone over, but I appreciate that.

DR. JAMES: Okay. Thank you.

CHAIR LIPNIC: Thank you Commissioner Burrows.

So thank you to our panelists. We will take a 15-minute break and then we'll be back for a second round of questions. So we should be back at 11:25 by my watch.

And Dr. Czaja we appreciate your being with us from Japan and thank you so much for your testimony and enjoy your vacation.

So we will be back then at 11:25. Thank you.

(Whereupon, the meeting went off the record briefly.)

CHAIR LIPNIC: Thank you all for being so quick about everything. And so we will now resume for our second round of questions from the Panel, from the Commissioners.

I wanted .- Ms. McCann, I wanted to ask you a question. And actually Commissioner Burrows was headed somewhere that I was headed, so a quick question just about damages.

I am curious, what is your experience in terms of litigation; I could probably ask Commissioner Yang this, too, in terms of the thoughts of plaintiff's counsel about liquidated damages, right, which are available under the ADEA and versus the other types of damages under .- as incentives for attorneys to take cases?

MS. McCANN: Well, sure. So liquidated damages are double damages, but they just double your back pay. So in those cases of harassment or other cases where the monetary damages are either small or non-existent, the liquidated damages don't serve as that incentive to either get the employer to do better next time or to get private counsel to take the case, because they too are based on back pay.

The other thing is, it's very difficult to prove age discrimination, as you know, and that's one of the reasons I view it as a second-class civil right, that the courts have raised unnecessarily the evidentiary burdens to prove age discrimination. You see it with the Gross case. You see it with age-related comments being seen as stray remarks versus evidence of discrimination. So it's hard enough to prove a regular age discrimination case, but to then go up the level and prove that it was a willful violation of the ADEA .- I mean, I rarely see decisions where the jury or the court has determined it's a willful violation. So I don't think it serves the same deterrent.

CHAIR LIPNIC: Okay. Thank you for that.

MS. McCANN: Yes.

CHAIR LIPNIC: Then a question actually for you and Mr. Challenger and Dr. James. So I'm curious about .- as your experience with companies in terms of developing their diversity and inclusion programs and including, or thinking about including age as part of that, just in terms of what's your experience been, how successful has any of that been? We'll start with you.

MS. McCANN: I'll go first. AARP just recently published a study about diversity and inclusion programs by employers and found that very few, I think it's nine percent of companies that offered diversity and inclusion training include age. And that's very wrong and sorry because that is exactly what we need to counter the stereotypes that we've all been talking about. That is probably the simplest way to go about it, is to make sure that if you .- that you do have a diversity and inclusion training and that you include age as one of the factors in those type of trainings. But very few do.

CHAIR LIPNIC: Mr. Challenger?

MR. CHALLENGER: Well, I think companies fundamentally are looking for .-

CHAIR LIPNIC: Your mic on.

MR. CHALLENGER: Oh, sorry. Companies fundamentally need to look for programs that bring people together. Just training them, stamping that down I think has had less effect than cross-training programs, mentorship programs and the like. If people work together, if they're mentoring each other, changes happen. But I'm also not seeing much .- we talked about earlier incentive compensation for older workers. It's not pulled out as a category as often.

CHAIR LIPNIC: Dr. James?

DR. JAMES: Let's see. First I want to go back to innovative practices, because it fits. Some employers are at the leading edge and are really trying to do that, some employers who really know that their workforce is older and they need them and they're not going to be able to replace them. Those are few and far between, but they're out there.

And BMW has gotten a lot of recognition for .- what they did was focus groups with their older manufacturing plant workers and they literally found out what they needed in order to stay and completely reconfigured the manufacturing plant to fit their needs with different kinds of lifts, different kinds of floor mats, different kinds of seats to sit down and rest, a whole lot of things. And they have just gotten a huge lot of press over that.

And CVS Pharmacy at the other end has created snowbird programs where people can work in Boston in the summer, in Florida in the winter. These are the kinds of things that .- and CVS Pharmacy also recognizes that its clientele is mostly older and they want their employees to be older. So these .- it's important that we know there are shining examples out there.

Let's see. About diversity and inclusion, again we agree. We find in our surveys very little .- very few of the employers that we survey have any idea of age as part of their diversity and inclusion programs, and that's something again that we put in the tip sheets to try to get employers on board. They get very low scores on that when they do that benchmarking survey.

CHAIR LIPNIC: And Professor Button, you're nodding your head, so I'll give you a chance to respond to this, too.

PROFESSOR BUTTON: I was just nodding in agreement. I don't think I've got anything particularly useful to say. I just think that it's really interesting stuff.

(Laughter.)

CHAIR LIPNIC: Okay. In that case I actually have a question for you, which is you talked a lot about the bridge jobs, and I wonder if you could just expand on that a little bit in terms of, one and you say this in your testimony, what they are, differences sort of between men and women, the type of bridge jobs. And then secondly, sort of what is the .- what's your sense of the success of those for older workers?

PROFESSOR BUTTON: Right. So there's definitely a lot of research looking at these sort of bridge jobs. So the idea behind a bridge job is it's older workers are looking to work longer, particularly at what are called traditional retirement ages, around in the 60s. And they often want to keep working, but they also sort of value leisure. So they often look for these sort of partial retirement jobs. Perhaps they're part time. Perhaps there's fewer physical demands on them, so an easier job or just something that's a little bit more interesting. And so it's very common for older workers to transition into these partial retirement jobs.

So you can think stereotypically of like a Walmart greeter, but in terms of common jobs, some of them that were in my study: administrative assistant, retail sales, janitor, security, those types of jobs where older workers will often take. So there a fundamental way that older workers are seeking to work longer, and some people might think that older workers are only working longer because they face some sort of economic shock that told them, oh, okay, well, I need some more money and I'm going to go work. And that's definitely the case, but often older workers anticipate this sort of un-retirement or anticipate these partial retirement jobs and they're sort of something that's sort of a normal part of sort of their career going forward.

CHAIR LIPNIC: Okay. Thank you. And perfect on the timing.

So, Commissioner Feldblum?

COMMISSIONER FELDBLUM: Great. Thank you.

So, first question to .- comment to Ms. McCann. I .- it was very striking that you noted that in FY 16, 23 percent of our charges raised age discrimination, but only two percent of our cases filed did so. And I certainly think that makes it incumbent on us to go back over the last five or six years, make sure that that's .- if that trend is .- has been the same. And certainly in terms of what we've heard about today there are any number of cases, types of cases that would make sense for the EEOC to bring, the intersectionality question, especially if you have a conflict in the courts, having EEOC weigh in is important.

Harassment cases, because we're not deterred by the fact that there's not going to be damages. And the disparate impact cases of a job advertisement saying if you have 10 or more years of experience, do not apply. So I think it's great, Mr. Challenger, that you haven't seen much of that, but we certainly have in terms of some of the cases. So that's an observation.

In terms of a question, Ms. McCann, you noted that in terms of the federal sector cases, that you thought we needed to clarify that despite Gross federal sector employees can still proceed under the pre-Gross burden shifting framework. And I .- that seems to me that we have made that clear in our federal sector cases already, that Gross from our perspective does not apply to federal sector. So, is your suggestion that we make that more clear in some way?

MS. McCANN: Yes, I think that would be the point of our testimony, that we continue to emphasize that to make sure that that is well known and it doesn't deter other cases as well. So I guess .-

COMMISSIONER FELDBLUM: By federal employees?

MS. McCANN: Right, yes.

COMMISSIONER FELDBLUM: Yes, I'm not sure that an individual federal employee is going to know about the burden shifting, so I do think it's important we've made that clear. You also noted that despite the Supreme Court ruling that employees out of the federal sector can bring disparate impact claims. Under ADEA we haven't yet made that clear I think in terms of the federal sector employees. Is that .- that seem to be something else that you .-

(Simultaneous speaking.)

MS. McCANN: Right, I think that is probably an emerging area. I haven't seen too many cases as to whether or not under the .- the ADEA has a separate provision for federal employees, and we haven't seen too many cases of late about whether or not the disparate impact theory applies to that provision.

COMMISSIONER FELDBLUM: The second piece to Professor Button, at least I was told during the break that part of your research also shows that good enforcement of disability anti-discrimination laws can benefit older workers as well. Wondering what you can tell us about that. And one of the things I want to do when I look at our litigation, because I know we do a fair amount of disability discrimination litigation .- whether we've got some age intersectionality there.

PROFESSOR BUTTON: Right, that's a really important point to raise. So there's definitely a lot of overlap between age and disability. We think of a lot of disabilities as sort of being more common as people get older, and a lot of stereotypes around older workers might relate to disability in some way.

So, older workers can in some ways get some coverage from the American Disabilities Act or some similar state law. So I can speak really quickly about two studies, one that I've done; one that a colleague Wendy Stock did, looking at the effect of state-level disability discrimination laws that went beyond the ADA, and to what extent did they protect older workers. And both studies found that .- a sort of a .- and when you have state disability law protections, it actually leads to in some cases increases in employment for older workers. In my particular study we were looking at states that have a broader definition of disability than the federal ADA and that actually led to increased hiring of older workers. So, the ADA and other similar state laws may be a way to also protect older workers as well.

COMMISSIONER FELDBLUM: Great. And my last piece .- it's also sort of an observation and a request for reaction. The other thing I loved about your testimony, Mr. Challenger, was the section of it that was directed towards older workers themselves as being applicants and needing to have the confidence and not to sort of, as you said Dr. James, internalize themselves some of the stereotypes about what older workers can do.

And when you said that, it made me think about the development in the Gay Rights Movement where people talk earlier on very much about internalized homophobia, you know, that LGBT people themselves felt that there was something wrong with us being gay. And it's definitely not something I see much in the .- either as a lesbian myself or in the community. So that was clearly a shift in culture. Ended up shifting how people felt about themselves, but culture changed because gay people came out and were more gay and proud. So, right? We just .- we're in Pride Week .- Pride Month right now, which I can tell by all the speeches I'm giving.

But, so any thought in terms of how to stop that internalized ageism?

MR. CHALLENGER: Well, so we see it constantly. So someone comes in. He or she has been let go and they are defensive about their age. They already are buying into the fact that they think that the market is not going to want to hire them because of their age. They're apologetic about it as they go out and interview. So, it takes counseling and support and helping them work through those issues. And even despite that, you can't say that there's not discrimination out there. There is discrimination out there.

So it's more like you just are going to have to work harder at this than the next person. You are going to lose .- you very well may lose some jobs because of age discrimination, but you can't go out and key that fact because that only leads to people in the interview, the potential employer thinking maybe you are going to conform to those. So it's a .- it is .- and this is at a time when your self-esteem is down and you're feeling betrayed by your last company, and so it's easy to fall into that trap.

COMMISSIONER FELDBLUM: Okay. Well, I'm going to stop before 31 seconds, so .-

CHAIR LIPNIC: Thank you Commissioner Feldblum.

Commissioner Yang?

COMMISSIONER YANG: Thank you.

Dr. James, you spoke about the need for education about stereotypes in the workplace. Can you talk more about the kinds of education and training that you've seen be effective in that space, because I know there is research showing that often simply awareness of stereotypes isn't enough to change behavior, or what you may call habits of the mind are hard to change. And so what are some of the types of interventions that can actually help bring about broader cultural and behavioral change in a workplace?

DR. JAMES: That's a very hard question to answer. It's .- I think it's got to be multipronged. And so that's why we take the stance that you change the policies and you try to get around stereotypes and avoid the ways in which stereotypes can creep into the way decisions are made. And then you do educate your employees and you do have workshops about diversity and inclusion. I know there's a great variety of how diversity and inclusion efforts are delivered and there is research showing some that work better than others. I don't know of any particularly good ones except for the ones based on the implicit bias. Those tend to be the most effective ones that I've seen.

COMMISSIONER YANG: Thank you. Would anyone else like to comment on that, practices that they see working in terms of training and education in the workplace?

MS. McCANN: I just would like to make the comment, but I think sometimes we hurt ourselves when it comes to stereotypes, when we focus .- there's so much focus on the different generations and how much they are like themselves. I saw it at a recent ABA meeting. And I think that that actually is less helpful than it is helpful, because it still focuses on categorizing people. It assumes that everybody is the same because they're a baby boomer or is .- everybody is .- and I think a lot of these diversity and inclusion classes, they focus on, let's learn about the generations. And I think the message still has to be focus on the individual.

So, and that .- I actually am a gerontologist by training and the one thing I remember from that training was that we are .- we get more like ourselves as we get older. We don't become more like other people of the same age. So if I was a grumpy college kid, I'm going to be a grumpy old lady.

(Laughter.)

MS. McCANN: But, just because I'm getting older doesn't mean I'm going to become grumpy. So I think focusing less on .-

(Laughter.)

MS. McCANN: .- learn about generations versus learn about me. Learn about me as an individual would be good for these diversity and inclusion programs.

COMMISSIONER YANG: Thank you. I wanted to follow up on a point you made in your testimony earlier about the kinds of barriers that are making it difficult for older workers to enter the workforce and be hired. Some of the practices like recruiting only from colleges or requiring a college email. And you talked about the importance of the disparate impact claim and challenging those barriers. Can you talk more about why those theories are necessary to address some of those hiring barriers?

MS. McCANN: Well, sure. I mean, age discrimination in hiring is very hard to prove because you don't know why you were hired, you weren't told why you were hired. But when we can see these very clear policies like no one with more than 10 years .- eight to 10, no more than 10, and must be a digital native, I mean, they don't mention age, but they can .- but they're clear and they can be attacked. And you can clearly show the disparate impact. I mean, clearly if you say no one with more than 10 years of experience can apply, it's, I mean self-evident that that's going to screen out more older workers than younger workers.

And you don't need the evidence of intent. You just need the statistical proof that it screens them out and it's unreasonable. So that's why it's the best way to attack that type of hiring discrimination. But as you are well aware, we're facing getting thrown out on motions to dismiss because of a statutory language difference despite that the legislative history of the ADEA shows that this was Congress' clear and primary concern when it enacted the ADEA.

COMMISSIONER YANG: Thank you.

Dr. Button, you spoke about some of the additional research that you're doing and colleagues are doing. What are some of the other areas where you think additional research really needs to be done to better understand how age discrimination operates in the workplace?

PROFESSOR BUTTON: That's a great question. I think a lot of the research needs to focus on hiring more, so a lot of the discrimination that actually occurs, occurs at the hiring stage. So there was one study where they actually .- in addition to sending out résumés they actually hired actors and actresses to actually go to job interviews and actually sought to actually quantify job offers. And they noticed .- they tried to figure out where the minorities dropped out in the application process. And most of the discrimination, 75 percent of it, happened at the interview offer phase, which is what résumé studies like mine try to capture.

So, I think in these sort of interview offer stages when you're looking at résumés, particularly for entry-level positions, hiring managers may look at résumés for something like 30 seconds. That's where things like implicit bias comes up, so you make automatic associations. And so I think we really need to look more at how employers look at résumés sort of at the first stage and to what extent we can try to prevent any kind of discrimination or kind of bias at that stage.

I think another interesting avenue is that I'm doing some work on right now is looking at what's actually in the job ad. So you could actually have language within a job ad that might suggest that you prefer one type of worker; maybe younger versus older, and that kind of relates to these sort of other things in job ads like saying we want a digital native or you want someone who has less experience or you want someone with a university email address. So I think those are interesting areas of research that I'm going to be working on that we need to keep looking at into the future.

COMMISSIONER YANG: Thank you. And Mr. Challenger, in the limited time I have left, what are some of the areas where you would like to see employers focus more in terms of expanding their workforce?

MR. CHALLENGER: Thank you so much. I mean, I think in the end result it's .- for employers, it's back to being open to the .- to people with their skills no matter who they are. So it's taking those recruiting departments, looking at the data coming out, individual recruiting departments looking at their data coming out of who they're hiring, who they're interviewing and what the results are and using the metrics, the data to change behavior. So asking companies to do .- look at their data, to compile that data and then to make change, it will force change .- and the transparency will force change.

COMMISSIONER YANG: Thank you very much.

CHAIR LIPNIC: Thank you Commissioner Yang.

Commissioner Burrows?

COMMISSIONER BURROWS: Yes, I wanted to ask Ms. McCann about something that I saw in her testimony, which was this idea that .- and at least I gather from your testimony you see the requirement that the older worker prove that it's a but-for cause of the employment decision that it was age has an effect on the ability to bring these intersectional claims. And I would really be interested in having you expound on that a little bit.

MS. McCANN: Well, a lot of courts just are misguided and believe that as a result of Gross you cannot have a claim that says I was discriminated against because I was old and because I'm a woman, because then they see that, well, which was it? If it was .- it has to be but-for if you're saying it was also because of your gender. Then it cannot have been the but-for cause. Clearly that's wrong and I don't believe that's what Gross said either. But, you do find some courts saying that. So, and then when they're published and people read them, then it discourages people from bringing those type of claims.

I think one of the big problems with bringing those intersectional claims, and AARP did research on it years ago and it's been touched on today, is we need to educate the courts about how these two .- they do intersect to cause almost a different form of discrimination. Too much .- too often courts segment them and say, well, they clearly have a lot of great programs for older workers and there's a lot of older workers in leadership positions, so I don't think they discriminate based on age.

And they also have a lot of .- there's a lot of younger women who are doing great things there. But they don't .- they just put the blinders on and don't see how the two combined, again for that individual, to cause them to suffer discrimination because they were an older woman or because they were an older person with a disability. And I think that too is an educational opportunity for us to say you have to look at how they intersect and not just one or the other.

COMMISSIONER BURROWS: That's helpful. I wanted to go to Dr. James. During your testimony you actually mentioned something I was interested in hearing more about that's .- you noted that this idea of the multigenerational workforce and how employers are thinking they're doing a great job integrating that multigenerational workforce and the employees are going no, not so much. And I wonder if you could talk a little bit about what it is that .- in more specifics that the employees are feeling is missing that the employers don't seem to know they're not doing.

DR. JAMES: Again, I don't really know because we have the numbers. We don't have the whys and wherefores. But I can imagine that it has to do with those policy gaps that we were talking about earlier. A lot of employers have flexible work options on their books, but there's no support for them. People feel there's a stigma attached to using them, that it indicates lower commitment to the organization. The list goes on and on about why it's hard to .- for people to feel that they really can make use of flexible work options.

So that's just one example. But that's the best one I think because that's the one that older adults are saying they do want to continue working, but they want to maybe work differently, work less, part time, reduce responsibilities, even special project engagement. So, unless an organization is supportive of those kinds of policies and programs and options for employees and feel that that's a good thing for their business, then it's a gap in how employees feel supported or not.

COMMISSIONER BURROWS: Thank you. I'm also interested in some of the big data sort of efforts to hire electronically. And I had someone say to me recently that they couldn't fill out a job application because they had to .- and I think this was referenced in some of the testimony, the drop-down menus and I think one of you mentioned, oh, it only back to 1980, but that you literally could not submit the application without having each of the fields specified. And I think one of them was salary. And I think age was in this one anecdotal piece. Is that something that .- I'd love for all of you speak to. Is that something that you all are seeing, where there's a .- because it's done electronically you literally cannot apply if you don't have .- again, back to this idea of the maximum years, if you hit the button and it .- your option is not there because your graduation year isn't there or your birth date year is not there?

MS. McCANN: Yes, I'll go first. Yes, that was in my testimony, and yes we do see it. It's almost like you can't order that book at Amazon if you forget your ZIP code. So, we tell our members don't .- leave out your age on your résumé, leave out your age on a cover letter. And then they go to apply online and they say, oh, they want my age. I'm going to skip that one. And then when they press submit, you get that red thing with an asterisk and it's because you left out your age, or you left out your graduation date, which can be easily used.

So even if they .- so one, it can be used to discriminate. We don't know what they're doing with it. And two, it deters older workers. I mean, how many people have walked away when they said if I can't submit it without my age, why bother? And so they just abandon the application.

PROFESSOR BUTTON: If I can follow up on that. So just from my study where we signal ages through high school graduation date. So we know that employers actually pick up on that. And my study also involved looking at what older workers actually have in terms of résumés, what their résumés look like, we used indeed.com and we downloaded a bunch of résumés and we looked at .- tried to figure out how old people were based on their work history. And around half of older workers do not list their year of high school graduation. That could be possibly to try to obscure age, that makes age not a factor. So if you have some sort of an application process that requires you to list your high school graduation year, that's forcing older workers to disclose their age, and that's particularly problematic based on what you've indicated.

MS. McCANN: And we've also learned that some of the search engines or job sites that allow employers to use them to look for potential employees; they enable them to be able to use a drop-down menu to limit their search based on graduation date. So it's deterring the older workers in one end and it's also enabling employers to screen out people who graduated before a certain date, which is very troubling. And like you think about the older worker who's diligently looking for a job and they have no idea that they're being screened out based on graduation date.

COMMISSIONER BURROWS: Great. Thank you.

CHAIR LIPNIC: Thank you Commissioner Burrows.

So we will now thank you all so much for your testimony and answering our questions so thoroughly and we will move to closing statements, and we'll start off with Commissioner Feldblum.

COMMISSIONER FELDBLUM: Thank you so much. So No. 1, I think my prediction of you being an excellent panel has absolutely been borne out. Thank you so much.

In closing, I want to just read .- the last sentence, Dr. James, in your written testimony was, "In sum, employer efforts to change practices instead of efforts to eliminate cognitive bias alone, are time-honored strategies for confronting "isms" of all type." Right? So we can't just work on changing how people think about the categories. We also have to get the employers to change their practices. And I think we've talked a lot about that.

I have to say it reminded me also of the work that Chair Lipnic and I did on stopping harassment in the workplace where we noted that training, the initial training should not .- we say compliance training is not training to change your mind. It's training to keep your job. Okay? You might go home and still think that why not say to a woman you look hot in that dress? I say that to my wife all the time. She loves it. It's like, we're not trying to change your mind about what's okay or not. We're saying in this workplace you don't make comments like that. Right? So you can still think that old people are whatever. In this workplace, this is what we will accept and not accept.

So, I certainly think we've heard a number of these practices in this hearing today. Financial incentives I think are awesome if we can incentivize employers to give financial incentives and not just based on age, but maybe gender and age together. Age diverse interviewers. Stopping getting information about age, even maybe unintentionally. Explain the myths, right? The myth of older workers won't stay as long, but without, as you noted Ms. McCann, buying into sort of certain categories and reinforcing that.

And finally, the diversity and inclusion programs. I mean, I noticed this about seven years ago when I started going out, people asking me to talk about diversity. And when I talked about disability, they'd be, wait, we don't have that in our diversity and inclusion program. Well, more employers have it now I think partly because of; at least for federal contractors, an obligation under Section 503 of the Rehabilitation Act to take affirmative action to hire people with disabilities. So now they're thinking about that. I certainly don't see it in terms of age.

I don't know if we're going to have any pride marches of old people. You know, old is beautiful. I certainly feel that. I feel like every decade of my life has been better than the last. And I'm 58 how. I'm totally looking forward to 60. I think it's .- on one hand, Laurie, I think that's right, you just become more of what you are, but I think there's something about age that brings us serenity and an ability to roll with things. That is very good in the workplace. It might have taken me a little bit longer in my aging to get to some of that….but,

So I just want to thank you for this. Again, I want to thank Chair Lipnic for bringing this meeting together. As I've said, I've known your long-standing interest and you seeing how it affects other people, in ways it is truly devastating when they can't get back into the market, job market and; as I've said in almost every hearing .- but I do believe we are working to do this, that we don't just have this moment in time in terms of this issue. I mean, absolutely these, what I call punctuation events, are important in raising visibility, but we will have done our job only if we take some of these ideas and bring it into the work that we do as a law enforcement agency and outreach and education entity. Thank you.

CHAIR LIPNIC: Thank you so much Commissioner Feldblum. I do want to say that my colleague is an example of 60 is the new 40 and .-

(Laughter.)

CHAIR LIPNIC: Not that you're there yet.

So, Commissioner Yang?

COMMISSIONER YANG: Thank you. I really want to thank our Panel for a very rich discussion. I look forward to continuing that with you all. And I appreciate the data you provided to really give us a picture on how this is an increasing issue that we all need to be thinking about.

I was struck about the increase that we expect to see on the share of older workers, which are approximately 19 percent now but are expected to rise to 29 percent in 2060. So these are important issues for all of us to be thinking about, how we design policies that really include older workers in the workforce.

Mr. Challenger, I was struck by your point that in a time of decreasing unemployment rates, which is a good thing, right, it creates that opportunity for change and how employers are hiring. And I do think that's an opportunity for us to capitalize on.

And particularly with the rapid change in our work place because of technology and other forces we are seeing the need for populations of workers skilled with technology and math skills, and I appreciate, Dr. James, your sharing some of the important training and other things that can happen to help utilize this workforce. What we've heard from you all today, that there are critical steps that employers can take now to better utilize this talent and bridge some of that talent gap.

And I would encourage employers to take heart .- take to heart the advice that you've given today and some of the strategies and to really take a close look at your employment practices to evaluate whether you may have practices in place that are in fact serving as barriers for older workers who have skills that you need, but are excluded because of those practices. So I encourage employers to think about creative ways to hire new talent pools and build more inclusive workplace structures.

We've heard today that there is a strong business case for hiring and retaining older workers. We know that reducing discrimination and better utilizing the talent that we have will strengthen the American economy, and economists have shown that our economy will benefit with higher employment rates for older workers. This will not only help the older Americans by providing greater opportunities for income, but it will also benefit our economy through greater tax revenues and decreased public expenditures on health insurance, retirement benefits and income support.

So employers can make a real difference by taking this proactive effort to advance opportunity. And in recent months we have seen companies leading the way in campaigns to advance opportunity, to message inclusion within their workplace and how important those values are to them. So I encourage employers to include age within those categories with which they are raising awareness about the need for inclusion.

I was glad to see that companies are taking a stand against age discrimination. To date, I understand that 290 employers have signed AARP's employer pledge publicly stating that they value experienced workers and believe in equal opportunities for workers of all ages. So I applaud employers for taking that step.

And in closing, we know that people spend more time at work than anywhere else, so when organizations take a stand to advance diversity and inclusion and equality as its core values, it impacts people's lives in a profound way and it reaffirms who we are as a workplace and as a nation. So if we apply the American spirit of innovation to advancing diversity and inclusion in the workplace, we can better utilize the talent we have across all our communities. Thank you.

CHAIR LIPNIC: Thank you so much Commissioner Yang.

Commissioner Burrows?

COMMISSIONER BURROWS: Thank you. I'd also like to thank the witnesses once again for your excellent testimony. It was very informative and you each have my sincere appreciation for that. As today's meeting I think demonstrates, the demographic changes and the continued growth of the older population demand that we keep this issue on the front burner. So I expect and I hope that we will continue to do that. I fully intend to do that.

And I think today's meeting is going to help us do it more effectively. Everyone benefits when all workers can contribute their talents and are evaluated based on their abilities, not on irrelevant factors like age. So in this 50th anniversary year for the ADEA and beyond, I am confident that we will continue to pursue that goal with respect to this population as well as others.

I'd also like to thank the Chair again for holding this important hearing and for her terrific staff: Cathy Ventrell-Monsees and Ray Peeler, for all of their hard work in making this hearing a success, and of course to thank my own staff. All of them worked on this, and in particular Davis Kim and Antonio Lee, who assisted in the preparation.

So with that, a great orator once said to me, if you're talking right before lunch, be brief. So I'm going to take that advice and turn it back, yield back the rest of my time. Thank you.

CHAIR LIPNIC: Thank you so much Commissioner Burrows.

So again thanks to all of our witnesses for the time that you gave to us today and the time you put into your testimony and your tremendous insights that you offered us today. It's clear from your testimony that there is much we can all do to make sure that older workers are well-positioned to continue working, that employers realize the full potential and the value of these workers. And your testimony and your research and your ongoing work certainly highlight the problems caused by outdated assumptions about age and work and about how those assumptions can hold back both our .- the economic health of workers, employers and the country.

Every time we make an assumption related to someone's age we should question whether we would make similar assumptions based on race or sex. I think not, so why the difference? Some would say that, well, because we all age that age discrimination should not be viewed quite as seriously as other types of discrimination. But I would say that doesn't the fact that age discrimination harms so many of us indicate how serious it is? Employment practices that rely on flawed outdated assumptions can prevent employers from maximizing their productivity and effectiveness, and that is certainly not in employers' interests.

The EEOC has an important role in this effort to reduce age discrimination in the workplace. In addition to our hearing today we will be launching a new web page about the ADEA at 50 that we hope will be a valuable resource for information on age discrimination. It includes all of the amendments to the ADEA, Supreme Court cases, EEOC litigation, guidance, regulations. We plan to add resources to this web page over the course of this anniversary year.

Also, next month at the EEOC's EXCEL Conference in Chicago, which covers a wide range of EEO issues in the private and federal sectors, we will continue to explore strategies to reduce age discrimination and leverage the potential and value of an aging work force. And I hope that people can join us there.

This meeting is just the start of the EEOC's commemoration of the ADEA's 50th anniversary year and our Agency's commitment to achieving the purposes of the ADEA to promote the employment of workers based on ability, not age, to eliminate arbitrary age discrimination, and to help workers and employers find ways to meet the challenges of aging.

We hope to build on a conversation we have started today to cast aside outdated assumptions about age and work. Toward that end we certainly encourage additional research on age bias that may be imbedded in or facilitated by certain workplace practices, on intersectional discrimination, and on how to reduce ageist stereotyping in the workplace.

We invite the public to submit recommendations on how employers are incorporating age into their diversity and inclusion efforts and we would also like to hear about promising practices related to recruitment, training and retention that recognize the talent and value of all ages at various stages in their careers.

And I always like to remind people, the EEOC, we are only one actor in all of this, so we invite advocacy groups, organizations and employers to use this year to address ways to recognize and incorporate the talents of older workers in your organizations.

Before we close, a little housekeeping. I will note that the Commission will hold the meeting record open for 15 days, and we invite members of the public to submit written comments on any issues or matters discussed at this meeting. Those comments may be mailed to: Commission Meeting, EEOC Executive Officer, 131 M Street; M as in Mary, N.E., Washington, D.C. 20507, or emailed to commissionmeetingcomments@eeoc.gov. And commissionmeetingcomments is all one word in the email address.

All comments will be made available to members of the Commission and to Commission staff working on the matters discussed at the meeting. In addition, comments may be disclosed to the public and by providing comments and response to the solicitation, you are consenting to their use and consideration by the Commission and to their public dissemination.

Accordingly, please do not include any information in submitted comments that you would not want made public such as your home address, telephone number, etcetera. Also note that when comments are submitted by email, the sender's email address automatically appears on that message.

I would like to once again thank all of you for your participation in today's meeting. I thank my colleagues, all of their staffs, and our witnesses. You have brought invaluable insights into our discussion today. I especially want to thank in the Chair's office, Cathy Ventrell-Monsees for not only her tremendous work on this hearing, but her incredible expertise about the ADEA and about older workers. Also Ray Peeler and our summer legal intern, Kristen Rollerson for her work on this hearing today. We appreciate the time and effort it has taken everyone to be a part of this meeting.

And with that, is there a motion to adjourn?

COMMISSIONER FELDBLUM: I move to adjourn.

CHAIR LIPNIC: Is there a second?

COMMISSIONER YANG: Second.

CHAIR LIPNIC: All in favor?

(Chorus of ayes.)

CHAIR LIPNIC: Opposed?

(No audible response.)

CHAIR LIPNIC: We are adjourned.

(Whereupon, the meeting was adjourned at 12:09 p.m.)