PAGENO="0001" AGE DISCRIMINATION IN EMPLOYMENT :2 HEARINGS BEFORE THE GENERAL SUBCOMMITTEE ON LABOR OF THE COMMITTEE ON EDUCATION AND LABOR HOUSE OF REPRESENTATIVES NINETIETH CONGRESS FIRST SESSION ON H.R. 3651, H.R. 3768, and H.R. 4221 BILLS RELATIVE TO AGE DISURIMINATION IN EMPLOYMENT HEARINGS HELD IN WASHINGTON, D.C. AUGU)ST 1, 2, 3, 15, 16, AND 17, 1967 Printed for the use of the Com~nittee on Education and Labor CARL B. PEuKms, UhaArman V U.S. GOVERNMENT PRINTING o~~ic~ 85-376 WASHINGTON: 1967 PAGENO="0002" COMMITTEE ON EDUCATION AND LABOR CARL D. PERKINS, Kentucky, Chairman EDITH GREEN, Oregon FRANK THOMPSON, Ja., New Jersey ELMER J. HOLLAND, Pennsylvania JOHN H. DENT, Pennsylvania ROMAN C. PUCINSKI, Illinois DOMINICK V. DANIELS, New Jersey JOHN BRADEMAS, Indiana JAMES G. O'HARA. Michigan HUGH L. CAREY. New York AUGUSTUS F. HAWKINS, California SAM GIBBONS. Florida WILLIAM D. FORD, Michigan WILLIAM D. HATHAWAY, Maine PATSY T. MINK, Hawaii JAMES IL SCHEUER, New York LLOYD MEEDS, Washington PHILLIP BURTON, California CARL ALBERT, Oklahoma WILLIAM H. AYRES, Ohio ALBERT H. QUIE, Minnesota CHARLES E. GOODELL, New York JOHN M. ASHBROOK, Ohio ALPHONZO BELL, California OGDEN R. REID, New York EDWARD J. GURNEY, Florida JOHN N. ERLENBORN, Illinois WILLIAM J. SCHERLE, Iowa JOHN DELLENBACK, Oregon MARVIN L. ESCH, Michigan EDWARD D. ESHLEMAN, Pennsylvania JAMES C. GARDNER, North Carolina WILLIAM A. STEIGER, Wisconsin GET~ERAL S~ooM~rIrrEE ON L~on JOHN H. DENT, Pennsylvania, Chairman ALPHONZO BELL, California JOHN N. ERLENBORN, Illinois WILLIAM J. SCHERLE, Iowa JOHN DELLENBACK, Oregon EDWIN D. ESHLEMAN, Pennsylvania ROMAN C. PUCINSKI, Illinois DOMINICK V. DANIELS, New Jersey AUGUSTUS'F. HAWKINS, California PATSY T. MINK, Hawaii PHILLIP BURTON, California CARL ALBERT, Oklahoma H PAGENO="0003" CONTENTS Hearings held in Washington, D.C.: Pago August 1, 1967 1 August 2, 1967 43 August 3, 1967 77 August 15, 1967 103 August 16, 1967 150 August 17, 1967 411 Text of H.R. 4221 1 Statement of- Bechill, William D., Commissioner on Aging 152 Burke, Hon. James A., a Representative in Congress from the State of Massachusetts 459 Cleveland, Hon. James C., a Representative in Congress from the State of New Hampshire 454 Cooper, Miss Margie, vice president, Steward & Stewardess Division, Air Line Pilots Association, accompanied by Herbert Levy, attorney for ALPA 103 Cramer, William C., a Representative in Congress from the State of Florida 454 Eilberg, Hon. Joshua, a Representative in Congress from the State of Pennsylvania 150 Finigan, Frederick T., American Retail Federation 139 Harmon, John E., executive vice president, National Employment Association 145 Hutton, William R., executive director, National Council of Senior Citizens, Inc., Washington, D.C 90 Kelly, Hon. Edna F., a Representative in Congress from the State of New York 452 Matsunaga, Hon. Spark M., a Representative in Congress from the State of Hawaii 447 Meiklejohn, Kenneth, legislative representative, AFL-CIO 411 O'Connell, Francis, legislative director, Transport Workers Union, accompanied by Miss Colleen Boland, president, Local 550, Trans- port Workers Union, and Miss Barbara Erikkson, legislative representative 425 O'Hara, Hon. James G., a Representative in Congress from the State of Michigan 449 Pepper, Hon. Claude, a representative in Congress from the State of Florida 421 Pestillo, Peter J., labor counsel, Chamber of Commerce of the United States 60 Price, Hon. Melvin, a Representative in Congress from the State of Illinois 457 Reid, Hon. Ogden R., a Representative in Congress from the State of New York 451 Rowan, Charles, chairman, Jobs After Forty Committee, Fraternal Order of Eagles, accompanied by William A. McCawley, national president 160 Sheppard, Dr. Harold L., Uphohn Institute for Employment Re- search 77 Sprague, Norman, Director, employment and retirement program, National Council on the Aging 43 Wirtz, Hon. William Willard, Secretary of Labor, accompanied by Louis H. Ravin, Special Assistant for Older Workers 6 III PAGENO="0004" IV CONTENTS Prepared statements, letters, supplemental material, etc.: Page Air Transport Association, Statement of 463 American Life Convention, Health Insurance Association of America, Life Insurance Association of America, statement of 498 Twenty-five jurisdictions have statutes prohibiting discrimination in employment because of age 500 American Telephone & Telegraph Co., statement of 494 Association of American Railroads, statement of 477 Blatt, Genevieve, Assistant Director, OEO, letter to Chairman Dent, dated August 3, 1967_ 498 Bechifi, William D., Commissioner on Aging: "A Survey of the Employment of Older Workers-1964," a report to the California Legislature, 1965 session, California Depart- ment of Employment and Citizens' Advisory Committee on Aging 203 "Report to the California Legislature on Age Discrimination in Public Agencies," booklet 161 Statement of 403 Cooper, Margie, vice president, Air Line Pilots Association, Inter- national (Steward and Stewardess Division), prepared statement of~. 115 Exhibit 1. Harrold W. Bell, vice president, personnel relations, Continental Airlines, letter to Miss Ricky Stevens, master executive chairman, CAL, Air Line Pilots Association, Steward and Stewardess Division, dated March 15, 1966 124 Exhibit 2. Charles H. Krause, superintendent of flight operations, Slick Airways, letter to Miss Lavyrn Wallace, dated April 1, 1966 124 Exhibit 3. United Air Lines notice of stewardess conditions (appli- cation form) 124 Exhibit 4. W. L. Wiekham, director of personnel, Allegheny Air- lines, to flight attendant 125 Subject: Allegheny Airlines hostess personnel policy (agree- ment form) 125 Exhibit 5. Bonanza Air Lines supplemental application (forms) - - - 126 Exhibit 6. Mohawk Airlines, Inc., preemployment agreement, Utica, N.Y. (terms and conditions of employment) 126 Exhibit 7. Frontier Airlines: Stewardess: general-stewardess manual 127 Exhibit 8. Report of findings after investigation, J. Edward Conway, investigating commissioner (New York State law against discrimination) 128 Exhibit 9. Determination after investigation, Eloise Soots v. Amer- icanAirlines, Inc 130 Exhibit 10. Determination after investigation, Patricia Lee Arnold v.AmericanAirlines, Inc 131 Exhibit 11. Determination after investigation, Janice Austin Larnerv. Trans WoridAirlines, Inc 132 Exhibit 12. Determination after investigation, Anayat El Shall v. Trans TVorldAirlines, Inc 132 Exhibit 13. Airline stewardess survey at the Airways Club, New York City 134 Exhibit 14. Questionnaire 135 Exhibit 13. Questionnaire 136 Exhibit 16. "The Inquiring Fotographer," New York News - - - 136 Exhibit 17. "Observer: Up in the Air With the Girls," newspaper article 137 Exhibit 18. Nancy Taylor ALPA Gold Medal Award," article - 138 Dunn, William E., executive director, Associated General Contractors of America, letter to Chairman Dent, dated August 22, 1907.. 484 Manning, Charles S., executive vice president, Towers, Perrin, Forster & Crosby, Inc., letter to Chairman Dent, dated August 3, 1967_._ 496 Matsunaga, Hon. Spark M., a Representative in Congress from the State of Hawaii, statement of 448 ~~1eiklejohn, Kenneth A., legislative representative, American Federa- tion of Labor & Congress of Industrial Organizations, statement oL 415 PAGENO="0005" CONTENTS V Prepared statements, letters, supplemental material, etc--Continued Miller, J. J., executive vice president, Agricultural Producers Labor Committee, Los Angeles, Calif., letter to Hon. Carl Perkins, chair- man, House Committee on Education and Labor, and Hon. John Dent, chairman, General Subcommittee on Labor, dated August 18, Page 1967 497 National Association of American Manufacturers, statement by 481 National Retail Merchants Association, statement of 518 O'Connell, Francis, legislative director, Transport Workers Union: Executive Order 11141 431 Ruttenberg, Stanley H., Assistant Secretary and Manpower Ad- ministrator, U.S. Department of Labor, letter to Congressman James G. O'Hara 430 "U.S. Airlines Get $485 Million Jobs From the Military," article in the Wall Street Journal 431 Pestillo, Peter J., labor counsel, Chamber of Commerce of the United States, statement by 60 Rowan, Charles, chairman, Jobs After Forty Committee, Fraternal Order of Eagles, prepared statement of 403 Scherle, William J., a Representative in Congress from the State of Iowa: American Airlines policy on reassignment of stewardesses (paper) - 473 Beebe, W. T., vice president, personnel, Delta Air Lines, Inc., letter to, dated August 24, 1967 470 Doulens, Roger B., assistant vice president, Pan American World Airways, letter to, dated August 22, 1967 471 Garlock, Lyle S., staff vice president, Federal affairs, Eastern Air Lines, Inc., letter to, dated September~ 5, 1967 471 Harrison, Malcolm, vice president, personnel relations, Braniff International, letter to, dated August 29, 1967 472 Hillings, E. Joseph, director, public affairs, National Airlines, letter to, dated August 23, 1967 472 Tribbe, Richard S., director, legislative affairs, Trans World Air- lines, Inc., letter to, dated August 24, 1967 471 Wexler, Harvey J., vice president, governmental affairs, Conti- nental Air Lines, Inc., letter to, dated August 21, 1967 470 Sprague, Norman, director, Employment and Retirement Program, The National Council on the Aging, letter to Chairman Dent, dated August 18, 1967 59 Tipton, S. G., president, Air Transport Association of America: Letter to Chairman Dent, dated August 22, 1967 484 Supplemental statement 484 Wirtz, Hon. Willard, Secretary of Labor: Age discrimination prohibited under U.S. laws, June 1967 (table) - 16 Prepared statement of Summary of State laws prohibiting discrimination in employment because of age 35 PAGENO="0006" PAGENO="0007" AGE DISCRIMINATION IN EMPLOYMENT TUESDAY, AUGUST 1, 1967 HOUSE OF REPRESENTATIVES, * GENERAL SUBCOMMITTEE ON LABOR OF THE COMMITTEE ON EDUCATION AND LABOR, Waehington, D.C. The subcommittee met at 10 :25 a.m., pursuant to call, in room 2257, Rayburn House Office Building, Hon. John H. Dent (chairman of the subcommittee) presiding. Present: Representatives Dent, Daniels, Hawkins, and Burton. (Tex.t of H.R. 4221 follows:) [HR. 4221, 90th Cong.., first sess.] A BILL Relative to age discrimination in employment Be it enacted by the Senate and. House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Age Discrimination in Employment Act of 1967". STATEMENT OF FINDINGS AND PURPOSE SEC. 2. (a) The Congress `hereby finds and declares that- (1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain `employment, and especially to regain employment when displaced from jobs; (2) the setting of arbitrary age limits regardless of potential for job `performance has become a common practice, and certain o'therwise desirable practices may work to the disadvantage of older persons; (3) the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave; (4) the existence in industries affecting commerce of arbitrary `discrim- ination in employment because of age burdens commerce and the free flow of goods in commerce. (b) It is therefore the purpose of this Act to promote ~mployment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to `help employers and workers find ways of meeting problems arising from `the i'mpact of age on employment. EDUCATION AND RESEARCH PROGRAM SEc. 3. The Secretary of Labor shall undertake studies a'nd provide information to labor unions, management and the general public concerning the needs and abilities of older workers, `and their potentials for continued employment and contribution to thC economy. In order to achieve the purposes of this Act, the Secretary of Labor shall carry on a continuing program of education and infor- mation, under which he may, among other measures- (a) undertake research, and promote research, with a view to reducing barriers to the employment of older persons, and the promotion of measures for utilizing their skills; ` 1 PAGENO="0008" 2 AGE DISCRIMINATION IN EMPLOYMENT (b) publish and otherwise make available to employers, professional societies, the various media of communication, and other interested persons the findings of studies and other materials for the promotion of employment; (c) foster through the public employment service system and through cooperative effort the development of facilities of public and private agencies for expanding the opportunities and potentials of older persons; (d) sponsor and assist State and community informational and educational programs. PROHIBITION OF AGE DISCRIMINATION Sec. 4. (a) It shall be unlawful for an employer- (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; or (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age. (b) It shall be unlawful for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of such individual's age, or to classify or refer for employment any individual on the basis of such individual's age. (c) It shall be unlawful for a labor organization- (1) to exclude or to expel from its membership or otherwise to discriminate against, any individual because of his age; (2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's age; (3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section. (d) It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discrimi- nate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, mem- ber or applicant for membership, has opposed any practice made unlawful by this section or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act. (e) It shall be unlawful for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on age. (f) It shall not be unlawful for an employer, employment agency or labor organization- (1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona ficle occupational qualifi- cation reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age; (2) to separate involuntarily an employee under a retirement policy or system where such policy or system is not merely a subterfuge to evade the purposes of this Act; or (3) to discharge or otherwise discipline an individual for good cause. SFUDY BY SECRETARY OF LABOR SEC. 5. The Secretary of Labor is directed to undertake am appropriate study of institutional and other arrangements giving rise to involuntary retirement, and report his findings and any appropriate legislative recommendations to the President and to the Congress. PAGENO="0009" AGE DISCRIMINATION IN EMPLOYMENT 3 ADMINISTRATION SEC. 6. The Secretary shall have the power- (a) to make delegations, to appoint such agents and employees, and to pay for technical assistance on a fee for service basis, as he deems neces- sary to assist him in the performance of his functions under this Act; (b) to cooperate with regional, State, local, and other agencies, and to cooperate with and furnish technical assistance to employers, labor organi- zations, and employment agencies to aid in effectuating the purposes of this Act. ENFORCEMENT SEC. 7. (a) Whenever the Secretary on his own investigation or upon. the basis of a written charge by any person claiming to be adversely affected or aggrieved, or on his behalf has reason to believe, that a practice made unlawful by this Act has been committed, he shall endeavor to eliminate any such practice by informal methods of conference, conciliation, and persuasion. (b) (1) If the Secretary fails to effect voluntary compliance with the Act as a result of such informal methods, he shall issue and serve upon the person who has allegedly committed the unlawful practice a complaint stating such allegations and containing a notice of opportunity for a hearing thereon. After such opportunity for a bearing, the Secretary shall decide on the record whether or not an uniawfti practice has been committed under this Act. If it is found that any person has engaged in an unlawful practice, the Secretary may issue an order requiring such person to cease and desist therefrom and to take such affirmative action, including reinstatement or hiring of employees, with or without back pay, as will carry out the purposes of this Act. (2) For the purpose of any bearing or investigation under this Act, the provisions of section 21 of the Act of June 6, 1934, as amended (48 Stat. 899), are hereby made applicable to the jurisdiction, powers, and duties of the Secretary. (3) The Secretary may petition any United States court of appeals for any circuit wherein the discriminatory practice in question occurred or wherein the person alleged to have committed an unlawful practice resides or transacts business, for the enforcement of any order issued under subsection (b) (1) of this section and for appropriate temporary relief or restraining order, and any person aggrieved by an order of the Secretary under that section may obtain review thereof in such court. Upon the filing of a petition for enforcement or review the Secretary shall certify and file in the court the record of the proceeding, as provided in section 2112 of title 28, United States Code. No objection to the order of the Secretary shall be considered by the court unless such objection has been urged before the Secretary, or unless the failure or neglect to urge such an objection shall be excused because of extraordinary circumstances. Phe findings of the Secretary with respect to questions of fact, if supported *by substantial evidence on the record considered as a whole, shall be conclusive. If application is made to the court for leave to adduce additional evidence, and it is shown to the satisfaction of the court that such additional evidence may materially affect the result of the proceeding, the court may order such additional evidence to be taken before the Secretary and to be adduced upon hearing in such manner and upon such terms and conditions as the court may direct. The Secretary may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken, and shall file with the court such modified or new findings. The judgment and decree of the court shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification, as provided in section 1254 of title 28 of the United States Code. The filing of a petition for court review by any aggrieved person shall not oper- ate as a stay of the Secretary's order, unless specifically ordered by the court. NOTICES TO BE POSTED SEC. 8. Every employer, employment agency, and labor organization shall post and keep posted in conspicuous places upon its premises a notice to be pre- pared or approved by the Secretary setting forth information as the Secretary deems appropriate to effectuate the purposes of this Act. PAGENO="0010" 4 AGE DISCRIMINATION IN EMPLOYMENT RECORDKEEPING SEC. 9. Every employer, employment agency, and labor organization subject to this Act shall make, keep, and preserve such records and shall preserve such records for such time, and shall make such reports, as the Secretary shall pre- scribe by regulation or order as necessary or appropriate for the enforcement of this Act. RULES AND REGULATIONS SEC. 10. The Secretary of Labor may issue such rules and regulations as he may consider necessary or appropriate for carrying out this Act, and may estab- lish such reasonable exemptions to and from any or all provisions of this Act as he may find necessary and proper in the public interest. CRIMINAL PENALTIES SEC. 11. Whoever shall (1) forcibly resist, oppose, impede, intimidate or inter- fere with a duly authorized representative of the Secretary while he is engaged in the performance of duties under this Act or (2) willfully commit a practice made unlawful by this Act shall be punished by a fine of not more than $~00 or by imprisonment for not more than one year, or by both: Provided however, That no person shall be imprisoned under this section except when there has been a prior conviction hereunder. DEFINITIONS SEC. 12. For the purposes of this Act- (a) The term "person" means one or more individuals, partnerships, associa- tions, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons. (b) The term "employer" means a person engaged in an industry affecting commerce who has twenty-five or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: Provided, That prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term also means any agent of such a person, but such term does not include the United States, a corporation wholly owned by the Government of the United States, or a State or political subdivision thereof. (c) The term "employment agency" means any person regularly undertaking with or without compensation to procure employees for an employer and includes an agent of such a person; but shall not include an agency of the United States, or an agency of a State or political subdivision of a State, except that such term shall include the United State Employment Service and the system of State and local employment services receiving Federal assistance. (d) The term "labor organization" means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and w-hich exists for the purpose, in whole or hi part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or condi- tions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or inter- national labor organization. (e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hail or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is fifty or more prior to July 1, 1968, or twenty-five or more on or after July 1, 1968, and such labor organization- (1) is the certified representative of employees under the provisions of the National Labor Relations Act, as amended. or the Railway Labor Act, as amended: or (2) although not certified, is a national or international labor organiza- tion or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce; or PAGENO="0011" AGE DISCRIMINATION IN EMPLOYMENT 5 (3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers within the meaning of paragraph (1) or (2) ; or (4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or (5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection. (f) The term "employee" means an individual employed by an employer. (g) The term "commerce" means trade, traffic, commerce, transportation, trans- mission, or communication among the several States; or between a State and any place outside thereof; or within the District of Oolumbia, or a possession of the United States; or between points in the same State but through a point outside thereof. (h) The term "industry affecting commerce" means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct com- merce or the free flow of commerce and includes any activity or industry "affect- ing commerce" within the meaning of the Labor-Management Reporting and Disclosure Act of 1959. (i) The term "State" includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf lands defined in the Outer Con- tinental Shelf Lands Act. LIMITATION SEC. 13. The prohibitions in this Act shall be limited to individuals who are at least forty-five years of age but less than sixty-five years of age: Provided, That in order to effectuate the purposes of this Act the Secretary may by rule or regulation issued under section 10 of this Act provide for appropriate adjust- ments, either upward or downward, in the maximum and minimum age limits provided in this section. FEDERAL-STATE RELATIONSHIP SEC. 14. Nothing in this Act shall affect the jurisdiction of any agency of any State performing like functions with regard to discriminatory employment practices on account of age. EFFECTIVE DATE SEC. 15. This Act shall become effective one hundred and eighty days after en- actment, except (a) that the Secretary of Labor may extend the delay in effec- tive date of any provision of this Act up to an additional ninety days thereafter if he finds that such time is necessary in permiting adjustments to the provisions hereof, and (b) that on or after the date of enactment the Secretary of Labor is authorized to issue such rules and regulations as may be necessary to carry out its provisions. APPROPRIATIONS SEC. 16. There are hereby authorized to be appropriated such sums as may be necessary to carry out this Act. Mr. DENT. The meeting of the General Subcommittee on Labor will now come to order for the purpose of taking testimony on H.R. 3651, introduced by Chairman Perkins, H.R. 4221 by myself, and H.R. 3768 by my colleague from Pennsylvania, Mr. Holland. Arbitrary age discrimination in employment has been of continu- ing concern to the committee and to me. Based on this committee's in- vestigation of discriminatory employment practices, it was determined that age discrimination in employment was a complex phenomena based on many interrelated factors which required indepth study. At the direction of Congress, such a study was undertaken by the Secre- tary of Labor, and his findings and conclusions were presented to the Congress in a formal report. PAGENO="0012" 6 AGE DISCRIMINATION IN EMPLOYMENT Based on that report and other information, the administration has recommended this legislation to cope effectively with the unfounded and wasteful practice of employment discrimination based on age. The legislation embodies a concept with which I am in complete agree- ment; that is, to uphold the dignity of the older worker and to require the fullest possible utilization of our manpower resources. Age discrimination is not only mmecessary and unjustified, it is injurious both to the Nation's economy and to the potential contribu- tions of the person at whom it is directed. The legislation before us seeks to preclude such damaging practices and to afford employable persons an opportunity to be productive and self-sustaining. In addition to prohibiting discrimination in employment on ac- count of age, the legislation also directs the conduct of studies and the dissemination of information to management, unions, and the public on the needs and abilities of older workers, and a continuing program of education and information. I think this is an important provision. Age discrimination has be- come an accepted practice. I sincerely feel if the practicing institu- tions were shown, through education and information, that the capa- bilities of workers are not necessarily affected by age, and that internal policies and procedures need not be adversely affected by employment of older workers, a large segment of our employable labor force would have an opportunity to contribute to the Nation's economic growth and stability and to offset the present squandering of our manpower resources. We have scheduled hearings on this legislation for approximately 3 weeks, through the end of August. We will be happy to schedule additional dates if necessary to give every interested person an oppor- tunity to be heard. We are pleased to have with us this morning, as our leadoff witness, the Honorable W. Willard Wirtz, Secretary of Labor, under whose expert direction the excellent study of age discrimination in employ- ment was conducted for the Congress. Mr. Secretary, welcome to the hearing. Mr. Secretary, you may proceed in any fashion you wish in order to give us the benefit of your knowledge in this field. STATEMENT OP EON. W. WILLARD WIRTZ, SECRETARY OF LABOR, ACCOMPANIED BY LOUIS E. RAVIN, SPECIAL ASSISTANT FOR OLDER WORKERS Secretary WIRTZ. Under those circumstances, I would request that my statement be made a part of the record. Mr. DENT. It is so ordered without objection. (Mr. Wirtz' prepared statement follows:) STATEMENT OF HON. WILLARD WIRTZ, SECRETARY OF LABOR Mr. Chairman and Members of the Committee, the point of H.R. 4221-"to prohibit age discrimination in employment"-is so plainly and unarguably right that to belabor it is to dull it. Nobody defends such discrimination. There is general agreement that "it ought to be stopped." That, despite this, so little had been O~one about it is probably explained (i) by the lack of realization that unwarranted discrimination on this basis is as widespread as it is, and (ii) by a vague uncertainty as to whether much can be done about it by law. There is also the fact that most thinking about PAGENO="0013" AGE DISCRIMINATION IN EMPLOYMENT 7 meeting the problems of old age has been in terms of providing security-which is easier than recognizing that it is opportunity which people want and are entitled to. And then, the "has been's" haven't a lobby! The first two of these points warrant particular attention. I Thirty-five years ago, in September, 132, Henry Osterman, then aged 16, didn't go back to high school because there wasn't enough money in the family to afford it. He scratched for odd jobs for most of five years; then got a common labor job in the local steel mill; worked up then to a hard but reasonably good- pay job on the open hearth furnaces. Last January, those furnaces were closed down when the company opened a new mill in another part of the country, using the oxygenation process. Osterman lost his job, and 35 years' seniority. He has tried ever since to get other work. There are jobs in other plants in town he knows he could do. So do the people he interviews. But he knows, when he fills in two blanks on the application form-Age? 51. Did you finish High School? No-that he probably won't get the job. This isn't an extreme or a typical case. In others, the individual involved is 61 instead of 51. Or he has had a poorer work record. Or the individual involved is a woman who has just finished raising her family. And there are literally hundreds of thousands of these cases: There are over three-quarters of a million workers 45 years of age or older (most of them under 65) who are looking for work today and can't get it. Over $750 million is being paid out each year to this group in unemployment insurance benefits. Half of all private job openings are barred to applicants over 55; a quarter to those over 45. Over a third of all men who have been unemployed 27 weeks or more (the "hard-core" unemployed) are over 45-although this group makes up slightly less than a quarter of the work force. The percentage of older workers in this "hard-core" category was 34.3% last year-up from 30.2% in 1965. More than half of the nation's poor families are headed by persons 45 or over; more than a third by persons 55 or over. I like to believe that if the people in this country only knew how serious this situation is there would be action on it immediately. It is so inhuman! Such bad business. So indecent. And so unnecessary! For most of this discrimination on the basis of age is the result of either (i) a failure on the part of employers to realize how tech- nology and the life sciences have combined to increase the value of older people's work, or (ii) a failure to adjust welfare and pension fund planning, and seniority provisions in collective bargaining agreements, to the facts of life and of the increasing mobility of labor. The surveys and studies contained in my 1965 Report to the Congress-along with other available information-document the common ability of older people to compensate in a variety of ways for whatever failings we are heir to because of our age. The evidence is that, in general, the experience that older persons possess fully compensates for any loss of work capacity which might otherwise in varying degrees be occasioned by their age. It now appears that up to the age of 60 there is very little diminution of a person's work productivity in most occupations. Even after age GO, there is such a wide variety of productivity changes that age in itself is not a useful or reliable index of such change. There is increasing and persuasive evidence that in those cases where there does exist some diminution in the productivity of a worker as he grows older, this diminution is not the result of age itself but stems from the worker's under- standable reaction to the prevailing practices and mistaken attitudes regarding the effects of age. We are learning quite a bit about the age factor from our experience in the programs conducted under the Manpower Development and Training Act. It has been observed, for example: That although younger trainees perform better "on the average," as high as 40% of the older trainees perform "above average." Although younger trainees perform better in shorter training courses, particularly those involving perceptual-motor skills, their elders often aver- PAGENO="0014" 8 AGE DISCRIMINATION IN EMPLOYMENT age higher in the longer courses involving the more extensive exercise of judgment; and That there are unlimited possibilities for redesigning jobs to which older workers can apply their skills, thus contributing substantially to the employer's needs. The task remains to make these findings and conclusions useful to employers, labor unions, employment agencies, and others interested in older workers. II The other central point is whether this situation can be significantly improved by legislative action. Any exuberant certainty on this score would be an attenipt at deception. There is an arthritis of attitudes here that is hard either to identify clearly or to cui~e. B.R. 4221 reflects a conservative-but determined-approach to this situation. The Bill recognizes fully the legitimacy of employment decisions, practices, and arrangements which take account of the facts-where they are facts-of the relationship between age and capacity. If someone cannot perform his or her job, the bill provides no relief simply because the individual is `between the ages of 45 and (35. It provides relief only when a qualified person who is ready and willing to work is unfairly denied or deprived of a job. H.R. 4221 recognizes two distinct types of unfair discrimination based on age: (i) the discrimination which is the i~esult of misnndcrstanding of the relation- ship of age to usefulness; and (ii) the discrimination which is the result of a deliberate disregard of a worker's value solely `because of age. The results of the two types of discrimination are the same, but the remedies called for are different. B.R. 4221 is set up with a clear recognition of the need for different remedies. The obvious remedy for discrimination born of misunderstanding is the use of education, information and research-as provided for in Section 3. The second type of unfair discrimination is more pernicious. To eliminate this more serious discrimination, H.R. 4221 provides prohibitions against specific practices of arbitrary discrimination. Experience in the administration of some 22 State laws proves the ineffectiveness of legislation which provides only for education and ~iersuasion, and omits prohibitions with effective enforcement and sanctions. H.R. 4221 accordingly provides: in Section 3, for extensive informational and educational programs; in Sections 4 and 7, for an enforcement program including conciliation and persuasion, cease and desist orders following the issuance of complaints and the holding of hearings, and judicial review and enforcement; and in Section 11, for criminal penalties in the event of willful commission of practices made unlawful by the Act. The prohibitions in the bill are directed against employers (sec. 4(a) and Sec. 12(b)), employment agencies (Sec. 4(b) and Sec. 12(c)), and labor organiza- tions (Sec. 4(c), Sec. 12(d) and (e)). The prohibition against age discrimination is limited, by Section 13, to "individuals who are at least forty-five yers of age but less than sixty-five years of age"-with administrative authority to make upward or downward adjust- ments in those limits where needed. It is implicit throughout the bill-and explicit in the Section 2(b)-that the prohibitions are aimed only at arbitrary age discrimination. This is clearly evident in `Section 4(f), which provides that: It shall not ic unlawful for an employer, employment agency or labor organization- (1) to take any action otherwise prohibited (in the Act) where age is a bona fide occupational qnaliflca'tion reasonably necessary to the normal operation of the particular bnsiness, or where the differentiation is based on reasonable factors other than age; (2) to separate involuntarily an employee wnder a retirement policy or system where such policy or system is not merely a subterfuge to evade the purposes of this Act; or (3) to discharge or otherwise discipline an individual for jnst cause. Section 14 provides that the Act's provisions shall not affect the jurisdiction of the States in the field of age discrimination in employment. Thus, there is rec- PAGENO="0015" AGE DISCRIMINATION IN EMPLOYMENT 9 ognition that Federal action and State efforts should complement each other in eliminating this particular form of social injustice,. * * * * * * President Johnson, in recommending a measure such as H.R. 4221 in his Message on Older Americans earlier this year, summed up the older worker problem and its consequences in these terms: Hundreds of thousands not yet old . . . find themselves jobless because of arbitrary age discrimination. In economic terms, this is a serious-and senseless-loss to the nation on the move. But the greater loss is the cruel sacrifice iii happiness and well-being which joblessness imposes on these citizens and their families. There is little else to be said-but everything to be doi~e. It lies with this Committee, and with the Congress, to decide how much longer Man will, by his oversight and his sometimes meanness, pile this additional element of mockery onto the bitterness which Nature-as it is so far discovered-seems to have given Life in its later chapters. Secretary WIRTZ. The problem before us is so obvious and so plain I think to belabor it would be to dull it. Everybody is against discrimination because of age. That leaves the question of why nothing has been done about it. I think t.he answer to that is pretty obvious. First, there is no realization in the country as a whole of the degree of discrimination that takes place because of age. Second, a vague uncertainty as to how much of this can be cleared up by law. Third, I think there is an inclination to think that all we need to do for the problem of old age is to provide for security. What we eventually have to do is provide for employment, which is harder. What has been stated here is that the "has beens" don't have a lobby. My testimony covers matters familiar to the committee. The extent to which there is discrimination on the basis of age is hardly believable. There are about three-quarters of a million workers in this country 45 years of age or older who are out of work. Our bill for unemployment insurance for older workers is about three-quarters of a billion dollars a year. There should be a much more effective way of spending that money. It is hard to realize but it is a fact that almost all private job open- ings in this country are closed to people 65 years of age or older; about half of them are barred to applicants over 55; and about a quarter of them are closed at age 45. The realization of what that means in some peoples' lives is hard to conceive. Age discrimination is bad business, inhuman and indecent and it is completely unnecessary. Very briefly, the bill which I referred to in my statement as H.R. 4221, which is identical to the others bills which you are considering, contains several provisions or several different approaches to the problem. S There is primarily section 3, which, in conjunction with other sec- tions of the bill, provides for taking care of the serious educational problem involved. We have arthritis of our attitude about this matter of when people are no longer able to produce. We don't realize what the life scientists and technologists have done is to extend the usefulness of peoples' lives almost without limitation, at least up to ages 60 and 65 in almost all occupations. We still think we are living in an age when life wore people out early. We do not realize the change. There is a tremendous amount of education to be done and the bill contemplates that as first order of business. PAGENO="0016" 10 AGE DISCRIMINATION IN EMPLOYMENT Second, there is the question of deliberate discrimination on account of age and a prohibition of such activity. This bill is presented with the complete conviction that prohibitions with sanctions are neces- sary and until we face up to that, little is going to be done. Therefore, the bill does provide prohibitions and sanctions in the case of willful violations of those prohibitions. I hardly need point out where there is an element of incapacity on the basis of age, there is in the bill no prohibition of action pursuant to that fact. Putting it more simply, if a person can't "cut it," that person will have to live with the consequences. So the prohibition is only against image distinction where there is no real basis for it. There is also a provision in the bill to permit its accommodation to State legislation on this subject.. I don't believe there is much else to be said, Mr. Chairman and mem- bers of the committee. I simply point out that it. does lie with this com- mittee and the Congress to decide how much longer man, by his over- sight and sometimes by his sheer meanness, is going to acid this final mockery to life. I strongly urge that we., as men aild women in charge of our own lives, with the competence to perfect life as we find it and Irnow it, I do very strongly urge t.ha.t we take this step of simply saying that it is against the law to write a man or woman off as being finished when the facts are to the contrary. That is an authority one individual should not have over another. Mr. DENT. Thank you very kindly, Mr. Secretary. I think you have pointed out what you might call the. seed corn problem of the whole thing. There has been a rather arbitrary attitude taken in many of the so-called industrial giant firms when it comes to discrimination be- cause of age. I first ran into the problem when the coal industry was the first in the Nation, I believe, to adopt an industrywide policy on age discrimination in employment that was caused in my State because of the fact we had our workmen's compensation divided into two see- tions; one was for general commerce and business and one for the coal industry. While the rest of the State employers were paying a charge for their workmen's compensation of about 3.1, the coal industry was paying ~`/2 to 6 percent. Because of that they had to take a position that they would only hire those. who were less accident prone, which would be the yolmger workers, as well as those with smaller families because of the continuing liability of the children of an injured work- man or a workman who lost his life in the occupation. Then we later compounded this felony by passing the so-called merit rating in compensation which added to the problems of those over 40 years of age to get employment in any of the industries. With the advent of automation and advanced use of technology in the production of goods, especially in the mass industries where so many of our workers are skilled only in the particular job they per- form, giving them a very limited field for new employment, the prob- lem has become very acute. However, restricting applicability to a minimum age 45 poses some problems. When I headed an investigatory committee in Pennsylvania, we discovered age discrimination really happened to strike at between 40 and 60 but it was really based upon the size of family more than PAGENO="0017" AGE DISCRIMINATION IN EMPLOYMENT 11 it was on the age of the worker. A new worker applying for a job had to suppiy the information that gives details as to the number of children and the age of the children and in many instances we found those under 40, if they had a large enough family, they were pretty well discriminated against. However, we won't go into that subject except as it relates to the whole problem. I wish to commend you, Mr. Secretary, for bringing this matter to the attention of Congress and for suggesting this remedial legisla- tion. I may say to the Secretary in fairness there are problems that are not going to be resolved by the passage of this bill insofar as it is considered by some to be an arbitrary attitude on the part of some industries in having prehiring contracts which set age limitations that appear to be rather arbitrary in their determination and policy. One of the larger labor organizations has asked whether or not we could consider hearing testimony, since we are dealing with age dis- crimination, on the subject matter of under age 45, and whether or not we could work out with the Secretary some position in this matter. I would like to say to the Secretary that we will discuss it with the committee after this hearing is over. I hope that it will not be upsetting any plans of his, or be harmful to the progress of the legislation if we hold hearings and take testimony in this particular regard. As you and I well know, prehiring contracts are legitimate, legal, and have been in vogue for many years. But there are some cases which have come to the front in the last few years which makes it imperative that at least we take testimony. And I would like to advise the Secre- tary that, with his cooperation, when we have the hearings the com- mittee would like to sit down with him and discuss the possibilities in this area if he sees there can be some benefit in it. Secretary WIRTZ. I would welcome the opportunity. Mr. DENT. Mr. Hawkins, any questions? Mr. HAWKINS. I have no questions. Mr. DENT. Mr. Daniels. Mr. DANIELS. Just one question, First I would like to compliment the Secretary for a very fine statement. In looking over the bill I note in section 4 on page 3: It shall be unlawful for an employer to fail or refuse to hire or discharge a member of any group or discriminate against him because of age. There is no age set forth. Are we to enact a bill that says, "There shall be no discrimination because of age"? Secretary WIRTZ. There is a limitation in section 13 which results in this bill covering only the period between 45 and 65 years of age. Mr. DANIELS. I did not observe that. Secretary WIRTZ. It is a sensitive question. I know it is a point to which the chairman referred before. The bill does include discretionary authority on the part of the Secretary to extend those limits in par- ticular circumstances. I would concur in the chairman's suggestion that the flexibility is not such as to include all matters which might arise under this. There will, I know, be serious consideration by the committee of whether those limitations should be extended or dropped. Mr. DANIELS~ Thank you. 85-376-67----2 PAGENO="0018" 12 AGE DISCRIMINATION IN EMPLOYMENT Mr. DENT. As it is now, the Secretary does have under section 13 discretionary power to go under age 45 or over age 65 if he finds reason to do so. If we get background information on the matter we may be able to extend his powers to where he will have less of a decision to make arbitrarily, as it were, when he has a problem affecting the age limitation itself. I think his willingness to work with us in this matter may make this a better piece of legislation in the end than when it started out, although it is a good piece of legislation in my opinion. Mr. Burton. Mr. BURTON. As I understand, the employer must have at least 25 employees? Secretary WIRTZ. That is right. It would be 50 until June 1968 and after that it would be 25 employers. Mr. BtTRTON. How much legislation would be needed to assert pri- mary jurisdiction in this area Secretary WIRTZ. There would be some question as to whether there would be primary jurisdiction under the bill, but I know what you mean and I think that. is a matter on which you may wish to have further discussion. The Senate made some modification on that. The outline for the answer to your question is there are presently 23 States in which the State prohibits discrimination in private organizations. Mr. BURTON. Does the staff have that data? Secretary WIRTZ. I think they do and we will be glad to supply it in detail. Mr. BURTON. The enforcement provisions apparently are directed toward your office and you or your designated agent? Secretary WIRTZ. Yes. Mr. BURTON. As distinguished from some kind of commission kind of enforcement.? Secretary WIRTZ. That is correct. There is a point here that the Senate subcommittee has considered in some detail. There is a question as to whether the best enforcement procedure is the one proposed here which is, in general terms, like the NLRB enforcement procedures or whether the better procedure would be that paralleling the Fair Labor Standards Act. We are willing to consider with the committee what might appear to be its best judgment on that. Mr. BURTON. Would you briefly spell out the difference between these two procedures? Secretary WIRTZ. Yes, but if I do it briefly, I may mislead. The de- tail of it. becomes a little complex but under the procedure proposed in this bill, paralleling the NT1RB procedures there would be involved in a particular case, first., of course, the persuasion procedures, which I don't mean to pass over lightly because experience indicates that is where most of these matters would be worked out. If they could not be worked out that way, there would be the institution of an administra- tive proceeding by the Secretary of Labor against the employer or, if it were a. case invoTving the labor union or employment agency, against the union or agency. The Secretary would attempt to get back pay, reinstatement only or reinstatement with back pay. PAGENO="0019" AGE DISCRIMINATION IN EMPLOYMENT 13 If a satisfactory settlement did not result, there would be the institution of proceedings in court in order to enforce the adminis- trative decision. The procedure in court would parallel the procedure under the National Labor Relations Act. In a Fair Labor Standards Act proceeding you have a situation in which you must move more immediately into the court and depend more fully on the court proceeding. There is also authority under FLSA procedure or a private suit to be instituted by an aggrieved employee. The differences, I think, are not basic. They are more in detail than in the larger effect. In neither case is there a penalty for noncompliance wi:th the Secretary's rulings. You have to go to court for a final decision. Mr. BURTON. There is a third and fourth mechanism-in some States the age factor in terms of discrimination is included in a general commission type of proceeding whether it is race, religion, or sometimes sex. How do you respond to the query whether we should move in that direction to take advantage of the very limited, classic civil rights equal employment opportunity structure that we already have? Should we put age or include age in that? Secretary WIRTz. That has been given serious consideration. You could fit this into the jurisdiction of the Equal Employment Oppor- tunity Commission. Our recommendation, and I think it would be reflected by the Commission's own judgment, is that that would be a mistake. They already have the problem of racial and sex discrimi- nation before them. I think the added business of coverage on this age discrimination for the Equal Opportunity Commission would be a mistake. As for a separate commission possibility, I don't `believe that is necessary. Mr. BURTON. Well, there should be some kin'd of uniform enforce- ment standards for all ai~bitrary and discriminatory employer actions. It is useful if you have one common standard, one common set of ground rules. Except for a few members of this subcommittee and perhaps our counterpart, the other `body, the average labor union or employer won't really know `quite so clearly which of these forums he is to look to, to get some information. We `are liable to have considerable disparity in the yardsticks applied for enforcement. becretary Wnrrz. Perhaps but with due `respect to that parity, I would suggest this kind of `discrimination is entirely different from racial discrimination; the root of racial discrimination is purely bigot- ry. That is not true here. Age discrimination, I t'hink, develops because of oversight, lack of sense, lack of realization `of t'he capacity of an older person. ` I don't believe there `are many cases of bigotry, except for' some few exploitation situations. I don't believe there are many cases where an employer discriminates against a person because `of age out of the ugliness of his `spirit. I think it `is a wholly different thing. So where education would be a' large element here, it would be a lesser element somewhere else. Mr. BURTON. Do you "believe it improper that `we should find some kind, of financial insurance,, or what' have you, to deal in certain areas of this age discrimination? As I understand it, other than that PAGENO="0020" 14 AGE DISCRIMINATION IN EMPLOYMENT part of the job which can be. dealt with in education, there is another part which has to do with an economic basis. The compensation is higher, it has a direct effect on health, welfare, and pensions. What, if any, cognizance should we take of that economic fact. of life? Secretary WIRTZ. To condone the differentiation on the basis of age? Mr. BURTON. There is a difference, employers are affected differ- ently in payroll terms when they hire older workers. Do we say that is tough, this is our policy? Secretary W~TZ. To whatever extent there is that unavoidable difference, this bill would not prohibit the differentiation. Mr. BURTON. You mean to tell me if your pension payments are higher, you could then avoid the provisions of this bill? Secretary WIRTZ. No, I did not mean that and it should be made quite clear that that would not be permitted under the bill. I think it would be less than frank to disregard the impact of a bill of this kind on some established thinking about pension and welfare plans, even about seniority plans. I suppose the facts of the matter are that some of our thinking about pension plans and seniority has not kept up with the facts either. Mr. BURTON. `Would you suggest the provisions of this law override a collective bargaining agreement with reference to seniority? Secretary Wrui'z. No. I would not. But I think I could react better to that problem in terms of specifics, which don't occur to me at the moment. If a seniority clause were so constructed or a retirement clause were so constructed that it unfairly attached significance to age, my answer would be "Yes" to your question. Mr. BURTON. Who would judge that? Secretary WIRTZ. The Secretary of Labor. Mr. BURTON. By what standards? Secretary Wnrrz. By the standards of whether there is differen~ tiation on the basis of age which the facts do not warrant. Mr. BURTON. I gather then your response to my immediate preced- ing question was whether or not the hiring of older workers results in increased workmen's compensation or health, welfare, and pension payments by the employer, you don't suggest that we have any fiscal arrangement that would deal with that? Secretary WIRTZ. No,. nor subsidy to take care of that. You are administering in :this bill an area affected by plans that have been established and by collective bargaining agreement provisions. That area is the hardest to deal with. No question about it. And I think it should be made clear that the bill does recognize on the one hand those plans, specifically. recognizes those plans that are worked out for rational reasons, so long as they do not result in differentiation just on the basis of age itself where there is not justification in fact. I know~ it is hard to state because it is a hard line to follow. I think both tactics have to be recognized. Mr. BURTON. Must the complaint be verified or under oath of the older person? Can the complaint be brought by an organization in behalf of the complaining individual? PAGENO="0021" AGE DISCRIMINATION IN EMPLOYMENT 15 Secretary WIRTZ. If you are talking about informal complaints made to the administrative agency, the answer is "No." Such com- plaints need not be verified and they may be made by organizations in behalf of an employee. Mr. BURTON. Is there a burden on the complaining party or the party complained against? Secretary WIRTZ. There is not a burden of proof established by the bill itself. Mr. BURTON. What is your understanding of wher.e the burden would be? Mr. DENT. Would the gentleman yield? Mr. BURTON. Yes. Mr. DENT. I think in section 12 it describes the person injured; that could mean labor organization, organized groups, bona fide labor unions, or anything else. I think this follows the regular line of dis- criminatory laws in the question of appeal or the petition for redress or an interview on the subject. It could be anybody represented by counsel. A representative of an organization could make the complaint to the Secretary and that person would be in standing before the Secre- tary. The request would have to be in writing. I don't think you can do it by telephone call, if that is what you mean. Mr. BURTON. There is a reference to 48 Stat. 899; is that the Administrative Procedure Act, page 8? Secretary WIRTz. That is the Securities Exchange Act. The reference is to the SEC provision. Mr. BURTON. What is the rationale that neither party has the burden? The Secretary is not bound to decide this would be the course if the parties were not satisfied. Secretary WIRTZ. Your point interests me as a lawyer and I have ~said the statute does not spell it out. In a formal administrative pro- ceeding, the Secretary would have the burden of proving co~ erage and viol'Ltlons Mr BURTON Are the numbers of people set foi th to meet the defini tion of employer paralleled with the equal employment numbers? Secretary WIRTz. I think the timing is different. I would have, to check that. I am not sure about the timing and the specific dates. They do come out to the same end of 25 or more. I believe there.isanother year, under the 50 or more under the Equal Employment Opportunity Act Mr BURTON Do the State stTtutes use the `ige 45 more commonly th'in 4O~ Secretary WIRTZ. A number of the State statut.es did not have an ~tge limitation. I will check the record. Mr. BURTON. Is the language cast with respect to this age bracket 45 to 65 or are there instances where it is cast in a little bit more sophis- ticated terms than that? Mr. RAVIN. In some cases there is no upper or lower age. The States vary all over the lot, particularly for lower age limits, but most around 45. Mr. BURTON. As I recall my colleague and I had some language in another bill-we didn't lump that age. there. was a supplementary PAGENO="0022" 16 AGE DISCRIMINATION IN EMPLOYMENT ~equirement because they were older, :it had some interesting ramifications. Mr. RAVIN. There are several statutes that prohibit discrimination because of age without setting age limits; those are in the minority. Secretary WIRTZ. California is between 40 and 64, the variety of the other 21 States is pretty complete. I see more here starting at 40 than 45.1 think some go to 35 or again to 25 or 21. * Mr. BURTON. In any event, that data appears to be in the green sheet: and that will be made available to eaôh member of the sub- cOnimittee and counsel for both sides, I presume ~ Secretary WIRTZ. Yes. The fact is, as I go over it, all except four or five have lower limits than 45. (The information referred to follows:) AGE DISCRIMINATION PROHIBITED UNDER STATE LAWS, JUNE 1961 (TABLE) U.S. Department of Labor, Bureau of Labor Standards, Washington, D.C., Fact Sheet No. 6-C INTRODUCTION At the present time 23* jurisdictions have laws that prohibit discrimiria- tion in private employment on the basis of age. In addition, a Maryland law makes such discrimination a "harmful" employment practice, but does not prohibit such a practice or establish specific enforcement procedures or set penalties. Over the years other State legislatures have passed resolutions declaring age discrimination to be against public policy, have prohibited such discrimination in public employment, or have taken other action, including making studies of the problem. The accompanying charts show the major provisions in the 23 laws that actually prohibit certain practices in private employment. As can be seen from the charts, the purpose of these laws is to eliminate such practices as refusing to interview persons over a certain age regardless of their ability; refusing older employees on-the-job opportunities; discharging employees when they reach a cer- tain: age; expelling older workers from a union; and refusing to refer older applicants to employment opportunities. For more information, see Bureau of Labor Standards Fact Sheet No. 6-B, "Brief Summary of State Laws Against Discrimination in Employment Because of Age." This type of legislation has developed rather recently-the laws in all but 3 jurisdictions have been passed within the last 12 years. In general, the laws follow a pattern. Fourteen of them include a prohibition on the basis of age in their fair employment practice acts, which also prohibit racial or religious discrimina- tion in employment. Most of the laws apply to employers, labor unions, and employment agencies. Usually they cover persons between the ages of 40 and 65, although some cover persons in their twenties and thirties. Most of the laws pro- vide for attempts to eliminate discrimination through informal methods of con- ference, conciliation, and persuasion; and, if such efforts fail, for the issuance of court-enforceable orders requiring that the discriminatory practice be discon- tinued and affirmative action taken, such as hiring, reinstating, or upgrading the employee. They also require the administrative agency to set up an educa- tional program to foster the employment of older workers. *Word was received on August 1, 1967, that a first-time age discrimination law- was signed by the Governor of Illinois on July 26, 1967. The effective date is not yet known. When an approved law copy is received, a summary of its provisions will be incorporated in a revised Issue of this publication. PAGENO="0023" AGE DISCRIMINATION PROHIBITED UNDER STATE LAWS ALASKA Educa- Source Coverage of persons of ages specified Law applies to- Exemptions Discriminatory employment process prohibited Administrative agency Enforcement tional program author- ized Procedure Penalty Provisions on older workers en- acted by ch. 10, approved and effective Feb. 24, 1960; repealed and reenacted with fair employ- ment provisions by ch. 117, ap- proved May 7, 1965, effective May 8, 1965. . . None specified_ ~ Employers; labor organizations; employment agencies. Nonprofit social club, reli- gious, chari- table, frater- nal, oreduca- tional associa- tion or cor- poration; domestic service, For employer: Refusing employment; bar- ring; discriminating with respect to com- pensation, terms, conditions, or privileges of employment, when the reasonable de- mands of the position do not require such distinction, For labor organization: Excluding or expel- hog from membership; discriminating in any way against member, employer, or employee. For an employer or employment agency: Printing or circulating any statement, advertisement, or publication, using any application form or making inquiries ex pressing limitation specification or dis crimination as to age unless based on a bona fide occupational qualification. For an employer, labor organization, or employment agency: Discharging, expel- log, or otherwise discriminating against a person who has opposed unlawful prac- tices; filed a charge; testified, or assisted in any proceeding under this act For any person: Aiding, abetting, inciting, compelling, or coercing the doing of such unlawful acts, or attempting to do so. Commission on Human Rights. If conciliation fails, Com- mission may, after hearing, issue cease and desist sod affirms- tive orders en- forceable in the courts. Willfully engag- log in pro- hibited prac- tices; resist- ingorinterfer- log with ad- mioistrator in performance of his duties; violating or- ders of the Commission; is a misde- meanor pun ishabte by fine of up to $500, and/or imprisonment for up to 30 days. Yes. ~ CD C~i H 0 H PAGENO="0024" 0 t:rj w 0 AGE DISCRIMINATION PROHIBITED UNDER STATE LAWS-Continued CALIFORNIA Source Coverage of persons of ages specified Law applies to- Exemptions Discriminatory employment process prohibited Administrative agency Enforcement ~_______________ Educa- tional program author- ized Procedure Penalty Provisions on older workers en- acted by Separate Age Discrimi- nation Act, added to Unemploy- meet Insurance Code; ch. 1623, approved July 14, 1961, effective Sept. 15, 1961. Between 40 and 64. Employers of 6 or more. Family employ- mont. Domes- tic service, For employer: Refusing to hire; discharg- ing dismissing; reducing; suspending; or demoting. Law does not apply to rejec- tion or termination of employment where the individual fails to meet bona fide re- quirements for the job; bona fide retire- meet or pension plans; age limitation in apprenticeship program; cases where the law compels or provides for such action (e.g., recruitment practice of highway patrol). Promotions within existing staff, hiring or promotion on the basis of expe- rience or training, rehiring on basis of seniority or prior service, or hiring under recruiting program from specified schools are not violations in and of themselves. Department of Employment, No specific pro- vision. In- jured person may bring suit for dam- ages. (Opin- ion of legisla- tive counsel.) Violation of Un- employment Insurance Code provi- sionsor regu- lation issued thereunder is misde- meanor pun- ishable by fine of up to $500 and/or up to 6 months in jail. Yes. COLORADO Provision on older workers en- acted by separate age discrimi- nation law, enacted 1903. Between 18 and 60. Employers None For employer: Discharging solely upon the ground of age. No specific pro- vision, No specific pro- vision, Fine of not less than $100 nor more than $250 for each violation. No. PAGENO="0025" CONNECTICUT Employers of 3 For employer: Refusing to hire; barring; If conciliation or more; discharging; discriminating in compen- fails, commis- labor organi- sation, terms, conditions, or privileges of sian, after zations; em- employment, hearing, may ploymeet For labor organization: Excluding from full issue cease agencies, membership rights; expelling from mem- and desist bership; discriminating in any way and affirma- against member, employer, or other five orders employees, enforceable For employment agency: Failing or refusing in the courts; to classify properly, refer for employ- complainant ment; or otherwise discriminating. may also For employer, labor organization, employ- seek tempo- ment agency or person: Advertising rary relief or opportunities in such a manner as to restraining restrict such employment as to to dis- order, or criminate. Discharging, expelling, or injunctisn. otherwise discriminating against a per- son for opposing unfair practices, filing a complaint, or testifying or assisting in preceedings under this law. For any person: Aiding, abetting, inciting, compelling, or coercing the doing of such unlawful acts, or attempting to do so. Law does not apply to bona tide occupa- tional qualifications or needs; termina- tion of employment where employee entitled to benefits under bona fide retirement or pension plan or collective bargaining agreement; operation of the bona fide retirement or pension plan, group or employee insurance plan, or apprenticeship system. 40 to 65 inclu- sive. Provisions on elder workers enact- ed by amendment to Fair Em- ployment Practice Act; Public Act 145, approved May 15, 1959, effective Oct. 1, 1959, as amend- ed; rules and regulations issued by commission. Family employ- ment; domes- tic service. State commis- sion on civil rights. None specified_ Yes. 0 F!) PAGENO="0026" AGE DISCRIMINATION PROHI BITED UNDER STATE LAWS-Continued DELAWARE Educa- Source Coverage of persons of ages specified Law applies to- Exemptions Discriminatory employment process prohibited Administrative agency Enforcement ional program author- ized Procedure Penalty Provisions on older workers en- acted by; Autidiscrimination Act; ch. 337, approved and effective July 9, 1960; Ruling 14o. 2, issued 1960. Between 45 and 65. Employers; em- ployment agencies; labor organi- zations. None For employer or employment agency: Re- fusing to hire, employ, or license; barring; discharging; discriminating iii compensation, terms, conditions, or privileges of employment. Printing or circulating any statement, advertise- muuf, or publication, using any applica- tion form, or making inquiry expressing limitation, specification, or discrimeina- tion. . For labor organization: Excluding or expel- hag Irons membership; discriminating in any way against members, employers or employees because of age. For employer, labor organization, or em- ploynient agency: Discharging, expelling, penalizing, or otherwise discriminating against person for opposing forbidden practices, filing a complaint, testifying, or assisting in proceedings under this act. Division against discrimina- finn in the department of labor and industrial re- lotions, Not specified in law. Division may make rules and regulations necessary to effectuate the act. When complaint has been filed, de- partosent staff shall endeavor to eliminate ouch prac- flees by con- lerence, con- cihiation, and persuasion. For 1st offense, fine of not more than $200; for 2d offense, fine of not more than $500 and/or Im- prixonment of nut more than 90 days. * . . For any person: Aiding, abetting, inciting, compelling, or coercing the doing of such unlawful acts, or attempting to do so. Law does not apply to bona fide occupa- tional qualifications; termination or change of employment of any person unable to perform his duties; operation of bona fide retirement, pension, em- ployee benefit or insurance plan. Law will not be construed to conflict with law relating to child or female labor. PAGENO="0027" HAWAII Provisions on older workers en- None speciliecl_ Employers; em- None For employer: Refusing to hire; barring; Department of If conciliation For violation of No. acted by Fair Employment ployment discharging; discriminating in corn- labor and fails, depart- order, or for Practice Act; Act 180, Approved agencies; pensation or terms, conditions, or privi- industrial re- meet may, willfully re- June 3, 1963, effective Jan. 1, labor organi- leges of employment. lations. after hearing, sisting, pre- 1964. zations. For labor organization: Excluding; expell- issue cease- venting rn- ing; otherwise discriminating against and-desist peding, or members, employers, employees, and affirma- interfering For employer or employment agency: tive orders with depart- Printing or circulating any statement or enforceable ment in per- advertisement, or using application form, by the courts. formance of or making inquiry, expressing limitation, duties, fine specification, or discrimination, of up to -1 For employer, employment agency, or labor $200; for sub- organization: Discharging, expelling, or sequent of- otherwise discriminating against person fenses fine of for opposing unlawful practices, filing a up to $500, complaint, testifying or assisting in pro- and/or im- ceedings. prisonment For any person: Aiding, abetting, inciting, for up to 90 compelling, or coercing the deing of such days. unlawful practices, or attempting to do so. Law does not apply to refusing to hire person for good cause relating to ability to perform the work; termieuting or changing employment of person who is o unable to perform his duties; establish- ieg or maintaining bees tide occupa- tional qualifications; operatien of terms or conditions of bona fide retirement, pennion, employee benefit, or insurance plan; fulfilling statutory or security re- quirements of State or Federal Govern- meet agencies. PAGENO="0028" AGE DISCRIMINATION PROHIBITED UNDER STATE LAWS-Continued Nonprofit For employer: Refusing to employ or re- Commissioner religious, hire; dismissing or discharging an em- may receive, charitable, ployee because he has furnished evi- investigate, fraternal, dence in connection with a complaint, and pass social, eclu- For laber organization denying full and upon charges cational, or equal membership rights or failing or of discrimi- sectarian refusing to classify members properly natioa. If organizations or to refer them for ernploymeist. conciliation other than Contracts: Discriminatory contracts or fails, corn- labor organi- understandings entered into on or after missioner zations and Oct. 1, 1965, which tend to prevent em- may issue a nonsectarian ployment solely because of ago are null complaint, organizations and voi(l. hold a hear- engaged in Law (foes not apply to person who is ing, and IDAHO Educa- Source ~ Coverage of persons of ages specified Law applies to- Exemptions Discriminatory employment process prohibited , Administrative agency Enforcement ~ Procedure Penalty tional program author- ized Provisions on older workers enacted by: Separate Age Discrimination Act; ch. 154, approved Mar. 17, 1965, effective May 18, 1965. ~ Under 60 yoars Employers; labor ergani- zations; em- ~Ioyment agencies. ** None For employer: Refusing to hire or employ; barring; discharging; otherwise dis- criminating in compensation, hire, tenure, terms, conditions, or privileges of em- ployment, if the individual is the best able and most competent to perform the required services. For labor organization or employment agency: Prohibitions not specifically enumerated but a complaint alleging an unlawful employment practice may be filed against a labor organization or em- ployment agency. Law does not apply to bona fide occu- pational qualifications; retirement or pension plans; or applicable security regulations established by the State or the United States. INDIANA Department of Labor. Commissioner of Labor, after hearing, may malse such orders as appro- priate to enforce the act; orders are enforce- able by the courts. Corn- plainant or Cornmissioner may also seek tern- porary relief or restraining order. Willful violation of an order or willfully resisting, preventing, impeding, or Interfering with Corn- missioner in petlormance of duties is a misdemeanor, punishable by imprisonment for not more than 30 days and/or fine of $1004500. No. ~ . Provisions on older workers en- acted by Separate Age Dis- crimination Act; ch. 368, ap- proved Mar. 12, 1965, effective July 8, 1965. Between 40 and 65. Employers; labor organi- zations. Division of labor. No provision,.,. No. PAGENO="0029" social service qualified for benefits under an employer work; private retirement or pension plan or system. domestic Fixing compulsory retirement requirements service; farm tnr any class of employees at an age less labor. than 65; fixing eligibility requirements for participation in any annuity, pension, or retirement plan; keeping records of age for such purposes. make findings of fact. Com- missioner may publish the facts after a deter- mination is made. LTJ 02 0 LOU ISIANA Provision on older workers enacted by Act 226, approved July 12, 1934. Under 50 years__ Employers of 25 or more. Hazardous oc- cupation or occupations requiring un- usual skill and endur- ance; bus drivers (Opinions of the Attorney General). Foremployer: Adopting any rule for the dis- charge of employees and for the rejection of applications for employment of new employees because of age. Law dons not apply to employers with a system of pensioning employees having service no greater than 35 years and with a pension of no less than $45 per quarter. No specific provision, No provisian____ . Fine of not more than $500 and/or im- prisonment for not more than 90 days. ~ No. MAINE Provision on older workers enacted by Fair Employment Practice Act. Ch. 394, approved June 4, 1965, effective Sept 3, 1965. . ~ . None spec- ified. ~ Employers; labor organ- izatinns; employment agencies. None * For employer: Refusing to hire; barring; discharging; otherwise discriminating with respect to compensation, hire, tenure, terms, conditions, or privileges of employment. Provided the individual is the best able and most competent to perform the services required. For labor organizations and employment agencies: No practices specified. Law does not apply to bona fide eccupa- tional qualifications; actions based on applicable security regulations; opera- lion of the terms or conditions of a bona tide retirement or pension plan which have the effect of a minimum servicn re- quirement; termination of employment because of the terms or conditions of such plans. Operation of the terms or conditions of a bona tide group or em- ployee insurance plan. Deportment of labor and industry, Complaints may be filed with the labor com- missioner. No further procedure specified. Fine of $100- $250. No. PAGENO="0030" AGE DISCRIMINATION PROHIBITED UNDER STATE LAWS-Continued MICH IGAN Provisions on older workers en- acted by amendment to the Fair Employment Practico Act; Public Act 344, approvod July 23, 1965; effective Oct. 1, 1965. Between 35 and 60. Source Coverage of persons of ages specified Law applies to- Exemptions Discriminatory employment process prohibited Administrative agency Enforcement Procedure Penalty Educa- tional program author- ized Employers of 8 or more, la- bor organiza- tions; em- ployment agencies. Domestic service. Civil Rights Commission. Yes. For refusing to post required notice, tine of $100~ ~00. If conciliation fails, com- mission, after hearings, may issue cease.and. desist and affirmative orders, en- forceable in the courts. For employer: Refusing to hire or other- wise discriminating with resp~sct to hire, tenure, terms, conditions, or privileges ot employment. For employment agency: Failing or refusing to classify properly, refer br employ- ment, or otherwise discriminating; con- ducting business under a name which connotes any limitation, unless it dis- plays a nondiscrimination statement. For labor organization: Discriminating; limiting, segregating, or qualifying membership so as to deprive person of employment opportunities, limit oppor- tunities or adversely affect his status, wages, hours, or employment conditions. For employer, employment agency, or labor organization: Printing or publishing notice or advertisement indicating prefer- ence, specification, or discrimination; establishing or following a quota system; utilizing employee-relerrwg sources known to discriminate. Contracts: Public contracts must contain a provision requiring nondiscrimination in employnient because of age. Law does not apply to otherwise rhiscrimina- tory acts if based on law, regulotioe, re- quirements of Federal or State training or employment programs, or on hona tide occupational qualifications; selecting persons for apprentice or oa-lhe-job 0 U) 0 H C t~1 C H PAGENO="0031" training programs of longer than 4 months; terminating person unable to perform his duties; varying of insurance coverages according to age. Retirement policy or system which is nut merely a subterfuge to evade this law unless, if established after July 1, 1965, it provides for a mandatory retirement age of less than 65. Provision on older workers en- acted by ch. 281, approved July 5, 1963, effective Oct. 19, 1963. Over4O Employers' labor organizations. N EBRASKA None No specific pro- No provision.. -- vision. Misdemeanor; fine of not more than $10. For employer: Refusing to hire; discharing; etherwise discriminating with respect to terms, conditions, or privileges of em- ployment, otherwise lawful when reason- able demands of job do not require age distinction; utilizing employment agency, placement service, training school or center, labor organization, or other source which so discriminates. For labor organization: Discriminating as above; limiting, segregating, or classify- ing membership so as to deprive such person of lawful employment opportuni- ties, limit, or adversely affect his status as employee or applicant, or affect ad- versely his wages, hours, or employment. For employer or labor organization: Dis- charging, expelling, or otherwise dis- criminating against person who opposed such unlawful practices, filed a charge, testified, or assisted in any proceeding under this law. Law does not apply to termination of em- ployment of person who is physically unable to perform his duties; retirement policy or system which is not a subter- fuge; varying of insurance coverages according to age. No. 0) 0 0 0 t,j PAGENO="0032" AGE DISCRIMINATION PROHI BITED UNDER STATE LAWS-Continued NEW JERSEY Educa- Coverage of Enforcement tional Source persons of ages Law applies to- Exemptions Discriminatory employment process Administrative _______________ program specified prohibited agency author- Procedure Penalty ized Provisions on older workers en- Over 21 Employers; Family employ For employer: Refusing to hire; barring; Division on If conciliation Willful viola- Yes. ~`1 acted by amendment to law labor orga- meet; do- discharging; discriminating in compensa- civil rights in fails, the di- lion of or- against discrimination; ch. 37, nizations; mestic serv- tion, terms, conditions, or privileges of the depart- rector, after ders or in- approved May 7, 1962, effec- employment ice; non- i~~employment. mont of law hearing, may terfering tive June 6, 1962, as amended; agencies, profit social For labor organization: Excluding from and public issue cease- with the rulings of division, club, frater- membership; expelling; discriminating safety. and-desist corrirnissioii nal, chari- in any way against member, employer, or and affirma- in the l)er- -i table educa- other employees. tive orders formance of tional, or For employer or employment agency: enforceable its duties is a religious as- Printing or circulating of any statement in the courts. misdemean- sociation. or publication, using any application or, punish- form, or making any inquiry which ox- able by im presses limitation, specification, or dis- prisonment o crimination. for not more Inquiring into date of birth or age of appli- than 1 year cant, except when information is needed and/or more to maintain a bona fide occupational than $500. qualification; necessary so as not to interfere with operation of a bona fide L~vi retirement pension, employee benefit, or insurance plan or program. For employer, labor organization, or em- ployment agency: Discharging espell- o ing, or otherwise discriminating against person for opposing forbidden practices, filing a complaint, or testifying or assist- ing in proceedings under this act. For any person: Aiding, abetting, inciting, compelling, or coercing the doing of for- bidden practices or attempting to do so Law does not apply to bona fide occupa- tional qualifications or apprenticeship requirements; operation of bona fide retirement, pension, employee benefit, or insurance plan; termination or change of employment of person physically unable to perform his duties. PAGENO="0033" Provisions on older workers en- acted by amendments to law E~ against discrimination; ch. 738, approved Apr. 14, 1958, effective July 1, 1958, as amended; com- mission rulings interpretive of C~5 the age provisions of the law against discrimination, issued 1963. Between 40 and 65 specified in law; how- ever, com- mission has ruled that discrimina- tion means discrimina- tion based on "over age." NEW YORK For employer or licensing agency: Refusing to hire, employ, or license; barring; dis- charging; discriminating in promotion, compensation, terms, conditions, or privileges of employment For labor organization: Excluding from membership; expelling; discriminating in any way against member, employer, or other employees. For employment agency: Discriminating in receiving, classifying, disposing, or act- ing upon applications, or in referring applicants. For employer, licensing agency, or employ- ment agency: Printing or circulating any statement, advertisement, or publica- tion, using any application form, or mak- ing any inquiry which expresses any limitation, specification, or discrimina- tion, or which is made for the purpose of barring or discriminating. (If age is asked, form must state that the law pro- hibits discrimination because of age.) Discharging, discriminating, or retaliating against person for opposing forbidden practices, filing a complaint, testifying or assisting in proceedings under this act For any person: Aiding, abetting, inciting, compelling, or coercing the doing of for- bidden acts or attempting to do so. Law does not apply to bone fide occupa- tional qualifications in certain cases; ful- filling other statutory requirements or requirement of other governmental agencies; termination of employment of person physically unable to perform his duties; retirement policy when same not a subterfuge; varying of insurance cover- age according to age. Unless a con- ciliation agreement is made, com- mission, after hearing, may issue cease- a nd-desist and affirm- ative orders enforceable in the courts. For willfully re- sisting, pre- venting, im- peding, or interfering with the commission in its duties or for willful violation of orders, mis- demeanor punishable by imprison- ment for not more than 1 year and/or fine of not more than $500. Family employ- ment; do- mestic service. Employers of 4 or more; labor organ- izations; em- ployment agencies; licensing agencies. State commis- sion for human rights. Yes. PAGENO="0034" AGE DISCRIMINATION PROHIBITED UNDER STATE LAWS NORTH DAKOTA Source Coverage of persons of ages specified Law applies to- Exemptions Discriminatory employment process prohibited Enforcement Administrative - - agency Procedure Penalty Educa- tional orogram author- ized Provisions on older workers en- acted by separate Age Discrimi- nation Act; H. 918, approved Mar. 15, 1935, elfective July 1, 1965. Between 40 and 65. Employers .... None For employer: Refusing to hire, employ, or license; barring; discharging when the reasonable demands of the position do not require an age distinction, and pro- vided the individual is well versed in the line of business and is qualified physi- cally, mentally, and by training and ex- perience to satisfactorily perform the labor. Law does not apply to retirement policy or system when not a subterfuge to evade the purposes of this act. No specific lire- vision, ~ No provision. - Misdemeanor; punishable by fine of up to $25 and/or imprisonment of not more than 1 day. No. OHIO Provisions on older workers enact- ed by H. 1080, adding a section to the previsions establishing the department of industrial relations; approved May 27, 1961, effective Aug. 28, 1961. Between 40 and 65. Employers None For employer: Refusing to interview an applicant for employment, or discharging an employee wilhout just cause if the employee is physically able to perform the duties and otherwise meets the established requirements of the industry and laws pertaining to the relationship between employer and employee. No specific pro- vision. ~ No provision.. -- No provision... - No. (i~ PAGENO="0035" Provisions on older workers en- acted by Supplement to Fair Employment Practices Act; ch. 547, approved May 25, 1959, effective Aug. 5, 1959 (as amended); statement of policy Jan. 29, 1960. Between 25 and 65. OREGON Family em- ployment; domestic service; non- profit social club, fratern- al, charitable, educatisnal, or religious association. Employers of 6 or more; em- ployment agencies; labor organi- zations; per- sons who re- cruit, select, advertise for, or screen ap- plicants for an employer; out-of-State employers who advertise for and re- cruit for em- ployees in Oregon, whether posi- tion is in or outside of Oregon. Yes. If conciliation fails, com- missioner of labor, after hearing, may issue ceass- and-desist and affirma- tive orders enforceable by manda- mus, injunc- tion, or by suit in equity to compel specific par- formanca of order. For employer: Refusiag to hire; barring; Civil rights di- reducing; demoting; suspending; din- vision of the charing; dismissing. bureau of For employer or employment agency: Print- labor. ing or circulating statement, advertise- meat, or publication, or using application form, or makiag inquiry expressing limi- tation, specification, or discrimination because of age unless based on a buns fids occupational qualification. For labor organization: Excluding; expel- flag; discriminating in any way against members, employers, or other employees. For employer, labor organization, or em- ployment agency: Discharging, expalliag, or discriminating against any person for opposing forbidden practices, filing a complaint, testilying or assisting in pro- ceediigs under this law. For any person: Aiding, abetting, inciting, compolling, or coercing the doing of acts forbidden by this law, or attempting to do so. Low dons not apply to- Selection of employees on the basis of relevant educational experience or physical requirements. Positions re- quiriag extensivo training program. Selection of apprentices on the basis of ability to complete the required ap- prenticeship training and the in- dustry average period of employment thereafter, bofore attaining age 65. For willful in- terference with admin- istration of the law and violation of orders of the Commissioner, imprison- ment for not more than 1 year and/or fine of not more than $500. (Suits for damages are also al- lowed after such viola- tion.) (-a C C PAGENO="0036" AGE DISCRIMINATION PROHIBITED UNDER STATE LAWS PENNSYLVANIA Provisions on older workers en- acted by original Fair Employ- ment Practices Act; Act 222, ap- proved Oct. 27, 1955, age pro- visions effective July 1, 1956; rulings of the commission. 40 to 62 inclu- sive. Source Coverage of persons of ages specified Law applies to- Exemptions . Discriminatory employment process prohibited Administrative agency Enforcement Educa- tional program author- ized Procedure Penalty Family employ- mont; domes- tic service in a home; agricultural employment. Employers of 6 or more with- in the State; labor organi- zations; em- ployment agencies; newspapers; applicants; employers seeking em- ployees for jobs outside the State. Human rela- tions com- mission in the depart- ment of labor and industry. Yes. If conciliation fails, com- mission, after hearing, may issue cease- and-desist and affirma- tive orders enforceable in the courts. Willful viola- tion of orders or willful interference with com- mission in the perform- ance of its duties is a misdemeanor, punishable by fine of $100-$500 and/or im- prisonment of not more than 30 days. For employer: Refusing to hire; barring; discharging; discriminating in com- pensation, tenure, terms, conditions, or privileges of employment if the individ- ual is the best able to perform the serv- ices required. For labor organization: Denying full and equal membership rights; discriminating in hiring, tenure, terms, conditions, or privileges or employment, or any matter related to employment. For employment agency: Refusing to clas- sify properly, refer for employment, or otherwise discriminating. For applicant: Specifying age when seeking employment through an advertisement, or expressing limitation or preference as to age of prospective employer. For employer, employment agency, or labor organization, prior to employment or admission to membership: Printing or publishing notice or advertisement in- dicati ng preference, limitation, specifica- tion, or discrimination based on age; denying or limiting employment or mem- bership because of age through a quota system; substantially confining recruit- mentor hiring, with intent to circumvent act, to any employment agency, labor organization, training school or center, or other employee-referring source servicing individuals predominantly of same age. Fur employer, employment agency, or labor organization: Discriminating against any person for opposing forbid- den practices, making a charge, testify- ing or assisting in any investigation, proceeding, or hearing under thin act. For any person: Aiding, abetting, inciting, compelling, or coercing the doing of such unlawful practices; obstructing or pm- venting complicance with the law or orders issued thereunder; attempting to commit unlawful practices. ff1 w C-) H C z z ff1 C H PAGENO="0037" Provisions on older workers enact- ed by inclusion in original anti- discrimination Act, as amended; Act 100, approved and effec- tive June 30, 1959. Amendment of private employ- ment agency law; Act 92 ap- proved and effective June 16 1960. tional qualifications; practice based on applicable security regulation of United States or Pennsylvania; termination of employment under a bona tide retire- ment or pension plan; operation of bona tide retirement or pension plan, which has the effect of a minimum service requirement, or a group or employee insurance plan. PUERTO RICO For employer: Discharging; suspending; demoting; reducing the salary; imposing of attempting to impose more burden- some working conditions; refusing to employ or re-employ; publishing or circularizing advertisements, notices, or other statements denying employment opportunities to all persons indiscrimi- nately by reason of age or establishing restrictions excluding such persons. For labor unions: Limiting, diiliding, or classifying members so as to deprive members, or persons desiring or having a right to membership, of working oppor- tunities. Law does not apply to any of the acts performed with good cause. For employment agencies: Excluding per- sons because of age; publishing or cir- culating any statement, advertisement, or notice excluding persons because of age. Law does not apply to age limitations or requirements established by employ- ment agencies where because of the nature of the work, age is a determining factor of capacity for performance of the work. (1) Civil liabil- ity for twice the amount of damages sustained, orif no pecuniary damages are determinable, not less than $100 or more than $1,000; or twice the amount of damages if under $100; (2) misde- meanor pun- ishable by fine of not lessthan $100 nor more than $500 and/or imprisonment for not less than 30 days or more than 90 days. Misdemeanor punishable by fine of $100- $500 and/or imprisonment for 30-90 days for first offense; for subsequent offenses, fine of $500- $2,000 and/or imprisonment for 60-180 days. Between 30 Employers; None and 65. labor unions. No. Department of labor. Department of labor. Between 30 and 65. Employment agencies. None Secretary of labor or any worker hav- ing an inter- est in the matter may bring suit. Court may, in ciyil ac- tions, issue cease-and- desist orders and direct reinstatement of employee. Secretary of labor may in- vestigate and bring suits, and may peti- tion the superior court to issue writs of injunction or other legal remedies. No. PAGENO="0038" CI~ C) Os C) AGE DISCRIMINATION PROHIBITED UNDER STATE LAWS RHODE ISLAND Educa- Source Coverage of persons of ages specified Law applies to- Exemptions . Discriminatory employment process prohibited Administrative agency Enforcement tional program Procedure Penalty author- ized Pr)visions on older workers en- acted by Separate Age and Sex Discrimination Act; ch. 3795, approved May 2, 1956, effective July 1, 1956, as amended; Corn- mission rules and regulations, Between 45 and 65. Employers; Ia- bor organiza- tions; em- ployment agencies. Private domes- tic service; farm labor; pnrSoii quali- find for bone- fits under an employer re- tirement or pension plan. Nonprofit ro- ligious, char- itahln, trater- es, social, ediicstisnal, or sectarian organizations other than labor organ- izations and nonsectoriao organizations engaged in social sorvico work. For employer: Refusing ta employ or rehire; dismissing; discharging air employee for furnishing evidence in connection with a complaint under this law. For labor organization: Denying frill and equal membership rights; failing or re- fusing to classify proparly or to refer for employment. For employment agency: Failing or refusing to classify aroperly or to refer for em- ploynmnnt or to otherwise discriminate. For employer or amploynment agency: Print- log or circulating airy statement, advar- tisement, or publication, or using appli- cation form, or making any inquiry which expresses intent to dis~niss or refuse to employ or rehire, or which is made for the purpose of barring or discriminating. (If ago is asfsed on application, it must state that the law prohibits discrimination bscausn of agn.) Contrscts: Discriminotnry contracts which prevent employment of persons 45-65 are void. Law dons not apply to Bona tide occupa- tional qualifications; frssdom of employer to: fis conmpulsory retiremest require- ments at less than 65; fix eligibility requirements fur annuity, ~snnoion or re- tiremnent plan on specified basis; keop ago records ~or airy such perposas. Department of labor. If conciliation fails, director, after hearing, may issue cease-and- desist and affirmative orders en- forceable in the courts. Noise specified__ ~ . No. PAGENO="0039" WASH NGTON Between 40 and 65. Provisions on older workers enacted by amendment of law against discrimination in employ- ment and by a new section addod to the chapter entitled "Violation-Prohibited Practices"; ch. 100 approved Mar. 15, 1961, effective June 8, 1961. Employers of 8 or more; labor organi- zations; em- ployment agencies; licensing agencies. Family employ- ment; domestic service; non- profit religious or sectarian organizations. State board If conciliation against din- fails, board, crimination. after hearing, may issue cease-and- desist and affirmative orders enforceable in the courts. No. Willful inter- ference with board in performince of its duties or violation of orders is a misdemeanor. For employer or licensing agency: Refusing to hire, employ or license; discharging; barriag or terminating from employment; discriminating in pi emotion, compensa- tion or in terms, conditions, or prioileges of employment. For labor organization: Denying member- ship and full rights and privileges; es- polling from membership; discriminating against any member, employer, or em- ployee. For employment agency: Failing or refusing to classify properly, refer for employ- ment, or otherwise discriminating. For eniployer, licensing agency, or employ- ment agency: Printing or circulating any statement, sdvertisement, or publication, or using any application form or making any inquiry expressing limitation, specifi- cation, or discrimination. For employer, employment agency, or labor organization: Discharging, expelling, or otherwise discriminating against any person for opposing forbidden practices, filing a charge, testifying or assisting in proceedings under this law. For any person: Aiding, abetting, encourag- ing, or inciting commission of unfair practices; ettenipting to obstruct or prevent compliance with the law or orders issued thereunder. Law does not apply to bona fide occupational qualifications; termination of employ- ment of one physically unable to perform his duties; a retirement policy or system which in net a subterfuge; varying of insurance coverage; aptarenticeship pro- grams. (Age limits may be set for certain positions on special permission. Eoemptieas based on physical requirements of the job may be reviewed, granted, or denied by the director of the department of industrial relntions.) r:JTS Cs C HI CAD CAD PAGENO="0040" CI) z H 0 0 H AGE DISCRIMINATION PROHIBITED UNDER STATE LAWS WISCONSI N Educa- Source Coverage of persons of ages specified Law applies to- Exemptions Discriniinatory employment process prohibited Administrative agency Enforcement -- Procedure Penalty tional program author- lied Provisions on older workers enacted by amendment to Fair Employ- ment Act; ch. 149, approved June 25, 1959. ~ ~ ~ Between 40 and 65. Employers; labor orga- nizations; em- ploymert agencies; licensing agencies. Family employ- ment; hazard- ous occupa- tions, such as law enforce- meet and firefighting; nonprofit social club, fraternal, or religious or- ganization. * For employer, labor organization, or licens- ing agency: Refusing to hire, employ, admit, or license; barring; terminating; discriminating in promotion, compensa- tion, terms, conditions, or privileges of employment, For employer, licensing agency, or employ- meet agency: Printing or circulating statement, advertisement, or publicati ii, or using application form, or making in- quiry ospressing limitation, specification, or discrimination. Discharging or discriminating against any person for opposing discriminatory prac- tices, making a complaint, testifying or assisting in any proceedings under this law. Law does not apply to termination of em- ployment because person physically or otherwise unable to perform duties; re- tirement policy or system when not a subterfuge; varying insurance coverage according to age; exercise of age distinc- tion where the knowledge and experience to be gained might be espected to aid in development of capabilities for future advancement to supervisory, managerial, professional, or executive positions. Fair employ- mont prac- tices division, State indus- trial commis- sine. ~ If conciliation fails, commis- sion, after hearing, may serve order requiring compliance with its mc- ommendo- tions. Person aggrieved by noncompli- ance with or- der entitled to have order enforced by suit in equity. None specified__ Yes. PAGENO="0041" AGE DISCRIMINATION IN EMPLOYMENT 35 SUMMARY OF STATE LAWS PROHIBITING DISCRIMINATION Ix EMPLOYMENT BECAUSE OF AGE; LABOR LAW SERIES No. 6-B, JUNE 1967 U.S. Department of Labor, Bureau of Labor Standards, Washington, D.C. BRIEF SUMMARY OF STATE LAWS PROHIBITING DISCRIMINATION IN EMPLOYMENT BECAUSE OF AGE Laws prohibiting discrimination in private employment oi~ the basis of a person's age are presently in effect in 23 jurisdictions: 1 Alaska Nebraska California New Jersey Colorado New York Connecticut North Dakota Delaware Ohio Hawaii Oregon Idaho Pennsylvania Indiana Puerto Rico Louisiana Rhode Island Maine Washington Massachusetts Wisconsin Michigan Coverage of the laws The laws of nine jurisdictions-Colorado, Delaware, Hawaii, Idaho, Maine, Nebraska, North Dakota, Ohio, and Puerto Rico-cover all privath employment. The other 14 exempt certain occupations or organizations or both: Both domestic service and employment of a person by his parent, spouse, or child are exempted in eight States: California New York Connecticut Oregon Massachusetts Pennsylvania New Jersey Washington Alaska, Indiana, Michigan, and Rhode Island exbmpt domestic service, and Wisconsin, family employment. Nonprofit social clubs or religious, charitable, educational, or fraternal or- ganizations are exempted in eight States: Alaska Oregon Indiana Rhode Island Massachusetts Washington New Jersey Wisconsin Farm labor is exempt in Indiana, Pennsylvania, and Rhode Island, and haz- ardous occupations in Louisiana and Wisconsin. In addition, in 9 States th~ laws exempt employers having fewer than a certain number of employees: New York-Fewer than 4. Connecticut-Fewer than 3. California, Massachusetts,2 Oregon, Pennsylvania-fewer than 6. Michigan, Washington-Fewer than S. Louisiana-Fewer than 25. Definition of age The laws, through their definition of "age," are designed to prohibit discrim- ination against the older worker, although a few protect also the relatively younger worker. All the laws except those of Alaska, Hawaii, and Maine specify 1 Another State, Maryland, has a law making it a "harmful employment practice" for an employer or employment agency to discriminate against any person on the basis of age. However, it does not prohibit such discrimination or set up enforcement methods, and it specifically precludes the penalties in the labor law. 2 Massachusetts has two laws (see History, p. 5). The 1937 law applies to all employers without a numerical exemption. PAGENO="0042" 36 AGE DISCRIMINATION IN EMPLOYMENT the applicable ages. Such ages vary, but in general the laws apply to persons between the ages of 40 and 65. Specifically, they apply as follows: California-between 40 and 64. Colorado-between 18 and 60. Connecticut-between 40 and 65 inclusive. Delaware-between 45 and 65. Idaho-under 60. Indiana-between 40 ond 65.~ Louisiana-under 50. Massachusetts-between 45 and 65 (1937 law) between 40 and 65 (1950 law). Michigan-between 35 and 60. Nebraska-over 40. New Jersey-21 and over. New York-between 40 and 65. North Dakota-between 40 and 65. Ohio-between 40 and 65 Oregon-between 25 and 65.8 Pennsylvania-between 40 and 62 inclusive. Puerto Rico-between 30 and 65. Rhode Island-between 45 and 65.~ Washington-between 40 and 65. Wisconsin-between 40 and 65. D iscriin inatory practices prob lb ited By employers-In general, these laws prohibit employers from engaging in the following practices solely because of the employees or applicant's age: re- fusing to hire, discharging, or discriminating in compensation, terms, conditions, or privileges of employment. The Colorado law, however, prohibits only dis- charging, while the Ohio and Louisiana laws prohibit only discharging and refusing to interview persons on the ground o age. By labor organ izations.-Sixteen of the jurisdictions list prohibited practices for labor organizations, such as denying full membership, expelling froni inem- bership, or discriminating in any way against members, employers, or other employees because of age: Alaska Michigan Puerto Rico Connecticut Nebraska Rhode Island Delaware New Jersey Washington Hawaii New York Wisconsin Indiana Oregon Massachusetts Pennsylvania By private employment agencies-Fifteen jurisdictions (those listed above except Indiana) prohibit discrimination by employment agencies. directly or indirectly. Tw-elve of the laws include among the prohibited practices, refusing to classify persons properly or refusing to refer them to employment oppor- tunities. In Puerto Rico, these same practices are prohibited. but by the law regulating private employment agencies instead of its law against discrimination. In Nebraska, it is unlawfui for an employer to utilize an employment agency w-hich so discriminates, although the law does not restrict the agencies directly. The only application to employment agencies in the Alaska law- appears below-. Advertising, application forms, and in quirics.-The use of any form of ap- lication for employment, or making any inquiry in connection with prospective employment, which expresses. directly or indirectly, any limitation, specification, or discrimination as to age, unless based on a bona fide occupational qualification, is prohibited in 11 States: Alaska New Jersey Rhode Island Delaware New York Washington Haw-aii Oregon Wisconsin Massachusetts Pennsylvania Law specifies until the age of 65 years is attained. PAGENO="0043" AGE DISCRIMINATION IN EMPLOYMENT 37 In Massachusetts, the occupational qualification must have been previously established by the Commission, or no inquiry may be made as to age unless required by other laws. In New York and Rhode Island, inquiries are prohibited unless required for a specified valid purpose, and if age is asked, the forms must contain the statement, "The [State law against discrimination] prohibits discrimination because of age." These 11 States, plus Connecticut, Michigan, and Puerto Rico, prohibit em ployers and employment agencies from printing or circulating any statement, advertisement, or publication which expresses, directly or indirectly, any limnita- tion, specification, or discrimination. In Pennsylvania, this prohibition applies also to applicants and newspapers. In Delaware and Michigan, these prohibitions apply also to labor organizations, in Connecticut to labor organizations and "persons," and in New York, Washington, and Wisconsin to licensing agencies. Other prohibitions.-Three of the laws (New York, Washington, and Wiscon- sin) prohibit licensing agencies from refusing to license persons because of their age, and the Indiana and Rhode Island laws void discriminatory contracts which prevent employment of older workers. The Oregon law applies to apprenticeship, provided the prospective apprentice is able to complete the training, and the industry average period of employment thereafter, before age 65. The Michigan law applies to apprentice or on-the-job training programs under 4 months' duration. To prevent retaliation against employees, 15 laws forbid employers, unions, and employment agencies to discharge, expel, or otherwise discriminate against an employee because he has opposed their unlawful actions or because he has filed a complaint, testified, or assisted in any proceeding under the law. Alaska 1\Iassachusetts Oregon Connecticut Michigan Pennsylvania Delaware Nebraska Rhode Island I-law-all New Jersey Washington Indiana New York Wisconsin Eleven of these (all but Indiana, Nebraska, Rhode Island, and `Wisconsin) also forbid any person to aid, abet, incite, compel, or coerce another to violate this law. When law does not apply All of the laws except those of Indiana, Louisiana, Ohio, and Wisconsin pro- vide that the law does not apply when the apparent discrimination is based on a bona tide occupational qualification. In addition, many of the laws specify that they do not apply if the person is physically or mentally unable to perform the duties of the job. Sixteen State~s specifically prOvide that the laws do not apply to the operation of a bona tide retirement or pension plan: California Nebraska Connecticut New Jersey Delaware New York Hawaii North Dakota Idaho Pennsylvania Indiana Rhode Island Maine Washington Michigan Wisconsin The Michigan law specifies, however, that this exception does not apply to retirement policies or systems established after July 1, 1965 which set a nianda- tory retirement age of less than 65. Seven of the laws (those of Connecticut, Delaware, Hawaii, I\Iaine, Michigan, New Jersey, and Pennsylvania) are also specifically inapplicable to the operation of any bona fide employee insurance plan. The laws of California, Connecticut, New Jersey, and Washington specify that the prohibitions do not apply to age restrictions under apprenticeship systems and the i\Iichigan law to requirements of Federal or State training or employ- mnent programs. The Oregon law does not apply to positions requiring extensive training programs, nor does the Wisconsin law apply where the knowledge and experience to be gained might be expected to aid in development of capabilities for future advancement to supervisory, managerial, professional, or executive positions. PAGENO="0044" 38 AGE DISCRIMINATION IN EMPLOYMENT History Prior to 1950, there were only three States, Colorado, Louisiana, and Massa- chusetts, with laws having some provisions relating to discrimination in the employment of older workers. The Colorado act, passed in 1903, specifies that no employer may discharge anyone between the ages of 18 and 60 because of age, but it does not apply to the hiring of individuals. The Louisiana act, passed in 1934, makes it unlawful for an employer having 25 or more employees to adopt any rule for the discharge of any employee or the rejection of an applicant under 50 because of age. A 1937 Massachusetts law prohibits discrimination in hiring or dismissal, makes unlawful any contract which prevents employment of any person between 45 and 65 because of age, sets criminal penalties, and authorizes the Commissioner to publish the names of employers found in violation. In 1950 Massachusetts amended its fair employment practice act to include a prohibition against discrimination because of age. The 1937 law was not repealed; aggrieved persons must choose to file charges under one or the other of these laws. In 1955 Pennsylvania also added age discrimination provisions to its fair employ- ment practice act; New York did the same in 1958; Connecticut, Oregon, and Wisconsin in 1959; Delaware in 1960; Washington in 1961; New Jersey in 1962; and Michigan in 1965. Provisions relating to older workers were included in the antidiscrimination law when it was originally passed: in Puerto Rico in 1959; in Hawaii in 1963; and in Maine in 1965. Separate laws prohibiting discrimination based on age were passed in Rhode Island in 1956; Alaska in 1960; California and Ohio in 1961; Nebraska in 1963; Idaho, Indiana, and North Dakota in 1965. The Alaska law was incorporated in the Human Rights Law in 1965. Administratio1V and Enforcement Administrative agencies.-Eleven of these laws are enforced by the State labor department: Delaware Oregon Hawaii Pennsylvania Idaho Puerto Rico Indiana Rhode Island Maine Wisconsin Massachusetts (the 1937 law) The California law is enforced by the Department of Employment, and the New Jersey law by the Department of Law and Public Safety. The second Massa~ chusetts law, and the laws of Alaska, Connecticut, Michigan, New York, and Washington are enforced by the State commissions against discrimination. The remaining five laws do not specify an administrative agency. Enforcenze?vt.-Uflder 15 laws,4 the administration agencies are required to investigate complaints and to try to eliminate unlawful practices by conference, conciliation, and persuasion. In all of these States except Delaware and Indiana, if the conciliation attempt fails, the agency is empowered to hold a hearing and then, if necessary, to issue a court enforceable order requiring the guilty party to cease and desist from the discriminatory practice, and to take affirmative action, such as hiring, reinstating, or upgrading of the employee, with or without back pay, or restoring to union membership. If the guilty party fails to obey the order, he is subject to a criminal penalty, usually a fine of up to $500 and/or imprisonment for up to 1 year. In addition, some of these laws provide for issuance of injunctions or restraining orders, or for civil suits for damages. Of the other eight laws, that of Puerto Rico makes the guilty party liable for damages and also makes him guilty of a misdemeanor. In civil actions for dam- ages, the court may issue cease-and-desist and affirmative orders. The Secretary of Labor may also issue affirmative orders and may bring suit on behalf of the employees. The Ohio law has no enforcement provisions. In the remaining six- those of California, Colorado, Louisiana, Maine, Nebraska, and North Dakota- the only sanctions are in the form of penalties-fines or imprisonment or both. Educational prograrns.-To aid in administering the laws, educational pro- grams to reduce or eliminate discrimination in employment on account of age are All but California, Colorado, Louisiana, Maine, Nebraska, North Dakota, Ohio, and Puerto Rico. PAGENO="0045" AGE DISCRIMINATION IN EMPLOYMENT 39 authorized in Alaska, California, Connecticut, Massachusetts, Michigan, New Jersey, New York, Oregon, Pennsylvania, and Wisconsin. Under these programs, the agencies issue pamphlets, press releases, and publications to inform the public of its civil rights and responsibilities. They also make reports to the State legislatures on complaints and problems encountered and on recommended legislation. SUMMARIES OF STATE LABOR LAWS LABOR LAW SERIES No. 1 No. 2 No. 3-A No. 3-B No. 3-C No. 4-A No. 4-B No. 4-C No. 4-D No. 4-E No. 4-F No. 5 No. 6-A No. 6-B No. 6-C No. 7-A No. 7-B No. 7-C No. 8 No. 9-A No. 9-B No. 10 Mr. BURTON. Then the previous response was somewhat imprecise? Mr. BAVIN. That is right. Mr. DENT. It makes it difficult for us to set the field if we get a higher age limit than the majority of the States. Secretary WIRTZ. It is 40 in California, Connecticut, Indiana, Massachusetts, Nebraska, New York, North Dakota, Ohio, Washing- ton, and Wisconsin. Mr. BURTON. It would be my thought that we would try to seek an identical age coverage rather than a different one to the extent we have legislation on the books. Where there is a preponderance of population in States that have such legis1ation, if that is 40, that makes a stronger case for using the age 40 and, if it were 45, similarly 45 rather than having two different age ground rules. One final question: What is the status of this bill in the other body and what significant changes in the bill before us has either the sub- committee or full committee-if it is at that stage in the other body- what significant changes does it appear they have made in the legislation? Secretary WIRTZ. The status is it has been reported out of the sub- committee of the Senate Labor and Public Welfare Committee. It is shortly to come before the full committee. In the subcommittee four significant changes were made and one other noted, but not fully resolved. Outline of Labor Law Development in the United States Status of Agricultural Workers Under State and Federal Labor Laws State Child Labor Laws Questions and Answers on Child Labor Laws State Compulsory School Attendance Laws State Minimum Wage Laws State Wage Payment and Wage Collection Laws State Prevailing Wage Laws State Provisions Exempting Wages from Garnishment State Laws Prohibiting or Regulating the Business of Debt Pooling Debt Pooling and Garnishment in Relation to Coasumer In- debtedness State Laws Regulating Private Employment Agencies State Fair Employment Practice Acts State Laws Prohibiting Discrimination in Employment Based on Age Age Discrimination Prohibited Under State Laws-A Table State Labor Relations Acts State Mediation Laws State Union Regulatory Provisions State Laws Regulating Industrial Homework State Occupational Safety and Health Legislation State Laws and Regulations for the Control of Radiation Hazards State Workman's Compensation Laws PAGENO="0046" 40 AGE DISCRIMINATION IN EMPLOYMENT In the bill reported out by the subcommittee in the Senate there is a change in the language which refers to this point which you raised earlier, the relationship of this to established pension plans. We count that. change as not going to the substance and involving matters going to clarification which w-ould present no problem. With respect to administration and enforcement, touching another point you raised, the Senate subcommittee reported the bill out with enforcement pro- ceedings based entirely on the Fair Labor Standards Act. With respect to the criminal penalties provided in the bill here, there are no criminal PelmaltieS provided in the bill reported out of the Senate subcommittee except in cases where there is a resisting or impeding of the operation of the law. There is similar language covering the relationship between the State and Federal Government.. That subcommittee took up, as you suggested you will be taking up, the matter of the age limits. They noted it. as a. point they would expect to see considered in the full committee. Mr. BURTON. Thank you. Mr. DENT. Thank you, and I will try to make available t.o you some of the hearings on that particular part of the detailed hearings in the Senate. I want. to thank the Secretary for coming. I might. say, before closIng, that it would be interesting if your staff could compile for us a list of the States and the agencies which administer the State acts, w-hether or not they are administered by an FEPC or some other agency. That will be a. point we will have to discuss rather thoroughly in the committee. I personally believe this is a. problem that. ought not to be mixed up or confused in the area of the discriminations that. we have been dealing wit.h in recent years regarding sex, national origin, race, or color. In many cases a man is qualified in every respect, having done a particular job for the employer before. Just. because he may have been off for a period of time is no reason for his not being reemployed. I rather hope the Secretary will stay with the proposal that it be handled as a separate and distinct discrimination because in most cases these people get unemployment compensation by way of relief during their unemployment.. They are probably the largest single draw on unemployment in the country. Secretary WIRTZ. That. will continue to be our position and I can clear up very quickly the State practice. Out of the 23 States, in 11 the law is enforced by the State department of labor. In New Jersey by the department of law and public safety; by the department of employment in California. These are separate agencies. There are only six where it is enforced by the State commission against the discrimination and there are five others where there. is no specification as to who is to do it. Some of these a.re pret.ty pointless. Mr. DENT. That reminds me of when we passed an age discrimina- tion bill for women and then forgot to put the mone in. Secretary WIRTZ. Thirteen State laws are handled by separate agen- cies and ill six by the commission of discrimination. Mr. BURTON. Why have we left out the U.S. Government.? Secretary WIRTZ. It is already covered by an Executive order. PAGENO="0047" AGE DISCRIMINATION IN EMPLOYMENT 41 Mr. BURTON. `What are the provisions of the Executive order? Secretary `WIRTz. They only make it in a statement of policy. Mr. BURTON. What would be improper about us having our non- appropriated fund activities in the Federal establishments generally covered by the provisions of the bill? Secretary WIRTZ. We would have no objection. It is a little hard to realize how fast this thing has moved. You realize as much as 3 or 4 years ago everybody seemed afraid to touch it. `We took the first step, as far as the Federal Government is concerned, by Executive order. It is only a statement policy. We will be glad to put it in here. Mi. BURTON. Could your language include not only the Federal Government but independent authorities like the TVA and all those Federal activities that may or may not come~ within the narrow defini- tion of Federal Government or Federal employees? Could you do that so we have that all-encompassing and all-sweeping inclusion in this legislation? Secretary `WIRTz. I am all for it. Mr. BURTON. Your office didn't oppose the inclusion of the non- appropriated fund activities in the minimum wage bill. Was that the Defense Department that did that on the outside? Secretary `WniTz. Our Department did not. Mr. DENT. Not only didn't oppose it, they are in court fighting for it. This is the caretaker of the downtrodden civil service. Secretary WIRTZ. It is a very important point in my judgment. There are two and a quarter million employees. Mr. BURTON. It is my only justification for being elected to Congress, I hope you prevail. Secretary WIRTZ. Oh, yes. I simply report that has been decided by the district court on a ~-to-l decision. The legislation has been appealed. Mr. HAWKINS. I was a little concerned about the bona fide quali- fication for the occupation phase of this bill and just how that is going to be administered. I will take one or two cases such as airline stew- ardesses, restaurant employees, and many other area.s where it is stip- ulated or alleged that younger persons are preferred for psychological reasons. Do you think this will offer any great problem in the admin- istration of the act? Secretary WIRTZ. It is my understanding that it is precisely that problem which the chairman has suggested he would like on behalf of the committee to anticipate our taking up and we will be glad to do that. He has also referred to testimony on the Senate side and I thought on a matter of that kind, if it should `be covered, it should be given further consideration. I am not avoiding your question, but I think if that kind of thing is to be covered, further attention is needed. Mr. BURTON. Is my colleague from California concerned about the contribution-. Mr. HAWKINS. The topless? Mr. BURTON. Do you think there should be a limitation? I think there should be a limitation there. Mr. DENT. Mr. Secretary, I know you have other duties to perform and if the committee has no more questions I would like to thank you PAGENO="0048" 42 AGE DISC~~IINATION IN EMPLOY~IENT for being here. I know you and your staff are always willing to coop- erate and to give us any further time we may require in this, I think, very important piece of legislation. Secretary WIRTZ. I implore attention to this subject. I think it goes so deep it ought to be plain to all of us and I express the real hope it will have prompt attention. Mr. DENT. In the light of the times and the events of the day. I think this is one of the most important pieces of legislation before the Congress and I hope Congress will react to this need. Tomorrow we will have testimony which might interest my sub- committee members very much. I think the witnesses tomorrow will present views that will invoke much discussion. Tomorrow we have Norman Sprague, Director of the Employment and Retirement Committee and Director of the National Council on Aging. We also will have Mr. Peter J. Pestillo, labor counsel for the Chamber of Commerce of the United States. It will be very interesting for the committee tomorrow. I am not suggesting anything, but I am saying if we are to have different views I think we will get them tomorrow. On behalf of the committee, I thank the Secretary. The committee stands adjourned until tomorrow morning at 10 o'clock. (Whereupon, at 11 :15 a.m., the subcommittee recessed to reconvene at 10 a.m., Wednesday, August 2, 1967.) PAGENO="0049" AGE DISCRIMINATION IN EMPLOYMENT WEDNESDAY, AUGUST 2, 1967 HOUSE OF REPRESENTATIVES, GENERAL SUBCOMMITTEE ON LABOR OF THE COMMITTEE ON EDUCATION AND LABOR, Washington, D.C. The subcommittee met at 10 a.rn., pursuant to recess, in room 2257, Rayburn House Office Building, Hon. John H. Dent (chairman of subcommittee) presiding. Present: Representatives Dent, Pucinski, Hawkins, Bell, and Eshleman. Mr. DENT. The General Subcommittee on Labor will now come to order. The purpose of these hearings is to hear testimony on H.R. 4221 and related bills regarding the problem of age discrimination in employ- ment. This morning we are privileged to have as a witness, Mr. Norman Sprague, director of the Committee on Employment and Retirement of the National Council on the Aging. Mr. Sprague, if you have a prepared statement we will appreci- ate copies. You may proceed in any fashion you believe will give the committee the benefit of your testimony. STATEMENT OP NORMAN SPRAGUE, DIRECTOR, EMPLOYMENT AND RETIREMENT PROGRAM, NATIONAL COUNCIL ON THE AGING Mr. SPRAGUE. Have you gentlemen had a chance to read this testimony? Mr. DENT. No, it was just received. Mr. SPRAGUE. The National Council on the Aging is a national, voluntary, nonprofit organization dealing with all aspects of ag- ing. It is a membership organization made up largely of persons who are professionally involved with aging. They come from industry, labor, education, social welfare, health and medicine, religious organi- zations and government. The organization is financially supported by foundations, company and union contributions, membership dues, and community funds. The committee on employment and retirement, of which I am staff director, has had a specific and special interest in the industrial prob- lems of the older worker. Since 1958, we have carried out a variety of activities in this area, in- cluding surveys of State age discrimination laws; 3-day seminar on automation, manpower, and retirement policy; a national conference on 43 85-376-67-----4 PAGENO="0050" 44 AGE DISCRIMINATION IN EMPLOYMENT manpower training and the older worker; and demonstration projects in six communities designed to communicate some :ilinovat,i\~e tech- niques in job development, employment counseling, and retraining of workers in this age group. In addition, we have developed monographs and pamphlets to aid community groups, and a documentary film, "The Wise Years Wasted," to dramatize the plight of the older worker. We are in the process of establishing a National Institute of Industrial Gerontology to carry out further scientific research on the occupational aspects of a.ging, as well as industrial retirement. In the category of "older" persons, we include the approximately 55 million Americans aged 45 and over, more than a quarter of the Nation's population; approximately 37 million are between 45 and 65; approximately 18 million are 65 and over. This division cor- responds roughly to the pre- and post-retirenient phases of the life cycle. Of course, this is a rough boundary, since on the one hand, the trend toward early retirement means that many persons under 65 have aTready left the labor market, while on the other hand, approximately one-fifth of those 65 and over are employed. The older worker problem is often masked by statistics on labor force participation, which show that the unemployment rate for all workers 45 and over is no higher than the average for the labor force as a whole. However, a finer breakdown of the older worker category shows that., for men, employment reaches its peak before age 45 (i.e., well before "retirement" age)~ and declines steadily thereafter. TABLE 1.-Labor force participation, rates for men aged 16 and older, 1966 Percent of men Age: employed 16 to 24 69 25 to 44 97 45 to 49 50 to 54 94 55 to 59 90 60 to 64 78 65 to 69 43 70 plus. 18 If an older person loses his job, lie has a~ harder time finding a new one. In 1964, the unemployment of persons 45 and over lasted an * average of 1~.4 weeks, as compared with 11 weeks for those under 45, and, in 1966, when older workers represented 24.7 percent. of the labor force, they made up 34.3 percent of the long-term unemployed (6 months or more), an increase of 4.1 percent from 1965. A disproportionate number of older persons are employed in fields characterized by relatively low earnings, and declining demand-in particular self-employment, which accounts for almost a fifth of the men aged 45 t.o 64, as compared to less than 10 percent of those under 45; and agriculture, which employs almost twice as many older as younger men. Retirement trends themselves work to the disadvantage of the older person who is still in the labor force. Since 1956 (when amendments to the Social Security Act made retirement at age 62 possible although with actuarially reduced bene- PAGENO="0051" AGE DISCRIMINATION IN EMPLOYMENT 45 fits), the trend toward mandatory and early retirement has tended not only to lower the ages at which employed older workers retire, but also the ages at which unemployed workers can obtain reemployment. That is, the lower the retirement age, the lower the hiring age is likely to be. For most workers in this group, a job is essential for economic reasons. Most workers in this age group have dependents to provide for, and this is a period in the family life cycle when basic living expenses remain high. For example, in a demonstration project sponsored by the National Council on the Aging in South Bend, md., after the Studebaker plant shutdown, among 3,000 workers aged 50 and over, there were 2,000 dependents under age 19. The person over 45 finds that the wisdom and experience attributed to the older person by many societies and cultures do not work to his advantage. On the contrary, the burden is on him to convince a pro- spective employer that he has skills and qualities which will compen- sate for his lack of youth. A long period of unemployment means that unemployment benefits are exhausted, and after this there is no social income program until the individual becomes eligible for social security or private pension benefits. To put it plainly, without a job the over-45 worker will be- come financially dependent upon his family, or, more likely, the corn- munity. And if he remains unemployed or marginally employed after age 45, he will arrive at retirement age eligible for only minimum social security benefits. The problem of age discrimination is a complex one because it is seldom a matter of blind or arbitrary prejudice which often exists for reasons of race, creed, color, national origin, or sex. Age discrimination is a more subtle series of problems based upon a combination of institutional factors and stereotyped thinking. For example, labor market conditions, seniority and promotion from-within policies, job training costs, pension and insurance costs, and mandatory retirement policies often make employers reluctant to hire older workers-in addition to the inaccurate views often held concerning the physical abilities, learning capacities and psychological flexibility of older persons. A review of literature on the productivity of older workers shows that while studies on actual job performance indicate no significant decline with age until age 55 and over and only a slight net decline after that; and whilQ opinion surveys of supervisors, foremen and corpora- tion officers indicate that "employers seem to feel that the older workers they already have are for the most part satisfactory"; at the same time they "look upon older workers seeking new jobs as a poor employment risk." At present, there is no specific Federal legislation and financing to deal effectively with middle-aged and older workers' problems. Legis- lation to assist the older worker, including prohibition of discrimina- tion in employment because of age, is long overdue. For people 65 and over there are-inadequate and uneven as they are-retirement insur- ance benefits under the Social Security Act, old-age assistance, medi- care, medicaid, and the Older Americans Act. The Economic Oppor- tunity Act was designed specifically to aid the poor. Under the PAGENO="0052" 46 AGE DISCRIMINATION IN EMPLOYMENT Manpower Development and Training Act, the U.S. Department of Labor and the National Council on the Aging have worked in creative ways to help the older workers, yet only 11 percent of the persons now assisted under this act are in the age 45 or older group. Thus legislation prohibiting discrimination in employment because of age, coupled with action programs to help solve workers' and employers' problems, properly funded and administered, would be the first major breakthrough for this group. This legislation, with provi- sions for research, educational and information programs and increased facilities for older workers, might well be termed the Older Worker Employment Act of 1967. It would provide a valuable addi- tion to our human resources and manpower development programs. Our past history has shown that no substantial progress in the fight against prejudice can be expected without legislation to back it up. The potential power of antidiscrimination was cogently illustrated by Harold L. Sheppard in recent testimony before the U.S. Senate Sub- committee on Labor, by a comparison of the experience of Negroes and of older workers following the 1956 shutdown of the Packard plant in Detroit. A study carried out 1 year after the shutdown showed that ex-Packard Negroes were relatively as successful as whites in getting new jObs with Ford, General Motors, or Chrysler. By contrast, cross- tabulation of the proportions who obtained new jobs with the Big Three by age showed the following relationship: Percent Age of workers: reemployecl Under 45 58 45 to 54 30 55 to 64 15 Sheppard's explanation of the differential reemployment experience of Negroes and older workers was that Michigan had a fair employ- ment practices law which prohibited job discrimination on the basis of race, while there was no parallel legal prohibition of discrimination because of age. Our past history has also indicated that for age discrimination leg- islation to be effective, it must be at the Federal level. While State experience has demonstrated that such legislation, backed up by ade- quate machinery, can help to break down employment barriers, to date only about half the States have enacted age discrimination statutes. (The Michigan example cited by Sheppard dramatizes this point- while Michigan had a Fair Employment Practices Act in 1956, it did not cover the older worker until 1965.) An NCOA analysis indicated, moreover, that even where legislation exists, the States can seldom provide sufficieiit staff to carry out its provisions. A further reason for Federal jurisdiction in this matter is the need for uniformity. State officials may be understandably reluctant to enact and enforce strong discrimination legislation if neighboring States do not also require employers to treat all job applicants equit- ably. Uniform Federal jurisdiction would also prevent certain burdens on interstate commerce. It is difficult for an employer who operates in many States and whose personnel travel among the. States (for ex- ample, airlines) to be subjected to diverse and conflicting regulation of hiring practices. At the same time, Federal guidelines, based upon a national study, could be flexible enough to allow for regional and local differences. PAGENO="0053" AGE DISCRIMINATION IN EMPLOYMENT 47 However well designed, legislation alone only breaks down the initial barriers confronting the older person seeking employment or reemployment. As a consequence of their special employment problems, older work- ers need special training, counseling, and placement services. A dra- matic example of concerted efforts to solve such problems occurred after the Studebaker plant shutdown that I referred to earlier. Under the sponsorship of the South Bend Community Council, the TJ.S. De- partment of Labor, and the National Council on the Aging, an 18- month demonstration was carried out, combining intensive job counsel- ing, intensive job development, and intensive publicity. The basic core of long-term Studebaker employees consisted of about 6,800 workers, whose average age was 55. Of the approximately 4,500 per- sons over 50 who were unemployed as a result of the shutdown, over 4,000 were serviced by the project and at its termination in September 1965, 66 percent were reemployed or in MDTA training, and only 8.6 percent were still looking for work (of the remaining, 21 percent had retired, 2 percent were deceased, and 3 percent had moved out of the area). The substantial success of this project in overcoming age barriers to employment seems to be attributable to the combination of con- centrated and wide-ranging services, the very active cooperation of the community involved, and adequate funding by the Federal Government. Section 3 (c) and (d) of H.R. 3651 which directs the Secretary of Labor to "foster, through the public employment service system and through cooperative effort, the development of facilities of public and private agencies for expanding the opportunities and potentials of older persons; and to sponsor and assist State and community insti- tutional and educational programs;" would establish formal proce- dures for expanding the kinds of activities and services-which seemed to account for the dramatic success of the South Bend project-and to provide adequate funding for the initiation of such activities on a national level. It should be pointed out that we need to know a great deal more about occupations themselves, in particular the extent to which age is a relevant job qualification. While there are many occupations which can be satisfactorily carried out regardless of age, there are others where age does not affect performance. For example, a study of truckdrivers indicated that 55 is a reason- able upper age limit beyond which it may be too risky to employ a man. It is also important to keep in mind that the purpose of age discrimination legislation is to prevent situations where older persons are not hired because of false notions concerning their ability to do a particular job. It would serve neither the older individual nor the larger society to force acceptance of persons into occupations where their age constitutes a real handicap to their carrying out the work safely and efficiently. Empirical studies of a variety of types of occu- pations could clarify our thinking about age as a factor in job per- formance, and could be used as guidelines both in the counseling of older workers and in the fair administration of age discrimination statutes. Such studies would be possible under section 3 (a) and (b) of H.R. 3651. PAGENO="0054" 48 AGE DISCRIMINATION IN EMPLOYMENT Of particular importance in H.R. 3651 is section 5 which directs the Secretary of Labor to uiidertake a study of institutional and other arrangements giving rise to involuntary retirement. The long-term consequences of retirement trends raise important questions of public policy. These trends have been toward mandatory retirement, early retirement, and retirement at higher benefit levels. We are attempting to solve the economic aspects of aging through retirement. rather than employment.. Retirement is often a. substitute for the job creation which results from healthy economic growth. Retirement frequently conceals unemployment. Early retirement is often a device to spread the number of jobs in an industry. iDo we want an ever-increasing number of older, potentially pro- ductive people not working? iDo we want an aging person to have some alternat.ives-full-time employment, part-time employment, full-time retirement? Economist John T. Dunlop of Harvard, speaking at the 1965 NCOA Seminar on Automation, Manpower, and Retirement Policy, said: On the basis of the vast differences among the aging, policies permitting wide diversities in retirement among individuals would appear appropriate. On philo- sophical grounds, after a lifetime of developing an individuality, it would ap- pear that older workers would prefer more than a few standardized options relating to the timing, form and extent of retirement. There are currently about 18 million persons aged 65 and over. Approximately one-fifth of these are employed. This one-fifth receives one-third of the total aggregate income received by all persons aged 65 and over. Many of the remaining retired four-fifths need and want jobs. They need and want jobs for economic and psychological reasons. Retirement is not the answer for all of them. The Bureau of Labor Statistics modest but adequate budgets for older individuals and couples are met only by those persons aged 65 and over who have a private pension in addition to their social security benefits, yet only 15 percent of persons aged 65 and over are receiving private pension benefits. In summary, we endorse the Principle of legislation prohibiting discrimination in employment of workers age 45 to 65, particularly where that legislation provides for remedial action to assist positively the older workers, and where the legislation provides for a study of involuntary retirement. This legislation is especially important at this time of high employment., when, as the Council of Economic Advisers has told us, in order to control inflation, we must assist the hard-core unemployed through special programs rather than through any fur- ther stimulation of the national economy. Mr. DENT. Thank you, Mr. Sprague. I notice in earlier statements you referred to the fact the worker between the ages 45 and 65 finds oftentimes his only recourse is the public community relief rolls, or relatives, or spending of any savings that he may have. Mr. SPRAGnE. Yes, sir. Mr~ DENT. Have you ever in your studies made an attempt to get from State governments a breakdown of the age bracket of the relief cases carried by a particular State? Mr. SPRAGUE. No; I never have. Mr. DENT. From the facts that are known to some of us, we note relief cases are usually family units made up of two or more children. PAGENO="0055" AGE DISCRIMINATION IN EMPLOYMENT 49 It would almost follow then that we might find, if that investigation were made, that the workers between perhaps 40 and 65 may make up the bulk of the so-called chronic relief recipient cases. If so, in my opinion that makes this legislation even more desirable at this time. The figure 45, the age grouping at age 45, seems to have been selected for this legislation, but we find that the worker who loses his job after long-term employment in a particular industry finds himself in the same predicament at the age of 40 as he would at age 45. Do you find that increased fringe benefit programs that are being put into labor contracts, and added social security, are drawbacks to their being able to find jobs? Mr. SPRACUE. Yes, sir. All these fringe costs, insurance, workmen's compensation, private pensions, all these costs are factors which miti- gate against employment of a worker in this age bracket who is out of a job and looking for a job. I think one of the purposes of the research called for would be a thorough analysis of this to come up with a practical answer to these problems. These problems can be answered through other forms of insurance or pooled risks, something like that. But if we got into real research looking for practical answers, I think we could find `them. These are the things that mitigate against the reemployment. Mr. DENT. I `was interested to note in your prepared statement on page 5 you make the same point this committee. is trying to make in discrimination, that is, prejudice is not prevailing' in job discrimi- nation when it comes to the aging. Is there evidence, to your knowl- edge, of any bias, prejudice, or blind opposition to an older worker rather than the fact it is an economic situation? Mr. SPRAGUE. Both factors seem to be present. Employers are reluc- tant to hire older persons for a variety of economic reasons. These are the ones I mentioned earlier that we ought to be able to find answers to. In addition there is the question of prejudice. Some people feel they are dealing with the stereotype of older workers, that he is fragile, rigid, or crotchety. When it comes to the prejudice aspect of this problem, we can overcome that through educational programs. When it comes to the economic problems, we have to come up with practical answers. This bill provides for doing both. My point is the same as yours, rank prejudice is not as common as other type prejudices. It is a subtle thing. Mr. DENT. There is some demand that this legislation be put under the Equal Opportunities Office. Would you favor such a motion? Mr. SPRAGUE. No. I would not and I think the National Council on the Aging would not favor that. We feel that other forms of prejimdice are distinctly different from age discrimination. We think age discrimination has with it `too many other economic factors and should not be dealt with by equal-opportunities legislation. Mr. DENT. It seems to this member that that is a sound observation. Age can easily `be cataloged, records can prove such a thing, whereas if we include it with the so-called traditional discrimination basis, race, color, religion, and so forth, it might get mixed up with many factors. This members feels that is a sound position to take. PAGENO="0056" 50 AGE DISCRIMINATION IN EMPLOYMENT Do you find in the 23 States that have statutory anticliscrimination regulations, and bureaus and agencies for enforcement. that much has been done to alleviate the age discrimination? Mr. SPRAGITE. Some States do a good job with the legislation they have to work with, the money they have, and the staff they have- New York, Massachusetts, Oregon, and others. Mr. DENT. Excuse me for interrupting. I wish you would give us for the record a list of the States doing a rather `thorough job and, in your opinion, the States not doing such a good job so that this committee may send out some task forces so that it may get some knowledge of the situation before we preempt the field, as it were, with Federal legislation. We are always in controversy as to whether the Federal Govern- ment should move into these areas which are covered by State laws. Please give the reporter any material you have prepared at this time. If you have none with you we will be happy to receive it at any time. We would like the information of the States you feel are doing a good job and those. which are not. Mr. SPR&cUE. I will send that in. Mr. DENT. Mr. Bell, our distinguished member from California.. Mr. BELL. Thank you, Mr. Chairman. Mr. Sprague, you mentioned the chronic unemployment of the aged. We, of course, have been receiving all kinds of statistics in testimony before committees. Usually we are told that the worst chronic unem- ployment affects youth. Now you are saying the problem is with the aged between 45 and 65 or above. Mr. SPRAGUE. I think statistics show chronic unemployment is greater an1~ong youth than the aged. Next to youth this is the next group. The statistics do show youth is the greatest problem, you are quite right. Mr. BELL. What is your attitude about distinctive types of unem- ployment problems that might affect people employed in a particular type of business? For example, airline hostesses? Do you~ feel they should be included? Do you feel there should be a change in require- ments in the hiring of hostesses? I think they ground them at 32. Do you think that age should be upped or that there should be some recourse Mr. SPRAGITE. As you know, most of the States in their legislation 40 is the lower age limit. I think the stewardesses are displaced from an occupation, but not the work market. A worker of age 45, once he gets out of employment, he is displaced in the labor market. I don't suppose any of us are in favor of age discrimination, but I think the stewardess problem is not the same type of problem as the older worker. I want to say again they get displaced from occupation, not the labor force. Mr. BELL. Isee. With reference to the manpower development and retraining that on mention in your statement-by the way, it is a good statement. I want to compliment you. What is your feeling about retraining? Do you think there should be an effort toward retraining? For example. older people may be unemployed not because of age but because of lack of training. Do you think that. could be the basis of the problem? PAGENO="0057" AGE DISCRIMINATION IN EMPLOYMENT .51 Mr. SPRAGUE. I don't think they are as am~nable to institutional training as younger people. It has been our experience and I think the experience of the U.S. Employment Service that the most effective way to work with the older person is through intensive counseling; job counseling. If he wants retraining then it should, of course, be available; but usually an older worker does not want to go into any long-term training. lie wants to get into a job as soon as possible and what is needed is counseling and direction and assistance in getting a job. Mr. BELL. You do believe, under certain circumstances, retraining could possibly be at least one of the answers? Mr. SPRAGUE. There is no question about it. Mr. BELL. Of course, you hear the old story: you can't teach an old dog new tricks. But I am sure that does not apply to humans. You find many people in their 50's and~ 60's able to accumulate a lot of knowledge. Mr. SPRAGUE. Under the Manpower Training and Development Act presently 11 percent of the older people are getting training. Mr. BELL. The chairman mentioned the question relative to economic factors. You said there are other factors besides economics. When you speak of economic factors you are really talking about the feeling that an older person is not quite as able to move along or be promoted. Industry feels this generally. Isn't that basically an economic situation? Mr. Spn~Gm~. By "economic factors," I mean the real cost, like the added cost of the insurance, workmen's compensation, any additional cost. Mr. BELL. I understand that. Mr. SPRAGUE. The other factors, if an employer feels that a person can't be trained or promoted or something like that simply because of his age and it has nothing to do with the facts, I would say it is prejudice or stereotyped thinking. Mr. BELL. Do you think there is some of that? Mr. SPRAGUE. Yes, I do. Mr. BELL. You say the States that are making progress in this area are States like New York, California, and I think you mentioned Pennsylvania. Mr. SPRAGUE. Massachusetts, Oregon-a lot of States have been doing a fairly good job, a very good job in some cases. We still have all the other States where people are not covered by this kind of protection. Mr. BELL. Would you like a bill that tightened the situation up so that all States would be more affected or would you prefer a bill that would maintain the different standards of the States you have already mentioned. In other words, should the strena~th of our bill be less than the requirements of the States like California, New York and Massachusetts? Mr. SPRAGUE. I think there should be a good, strong Federal bill. It seems to me that this would work in terms of Federal-State re- lationships in the following manner: That the Federal Government would have jurisdiction over those situations where interstate corn- merce is a factor and the State would have jurisdiction where it is an intrastate matter. I think it would be wise to have a good Federal statute, as this particular bill does. PAGENO="0058" 52 AGE DISCRIMINATION IN EMPLOYMENT Mr. BELL. As I recall, many features of the Equal Employment Opportunity Act had a reasonable amount of teeth hut they relied to a great extent upon the rules and regulations of the States that had equal employment opportunity programs. And I would suspect that perhaps Mr. Dent's bill here more or less covers that, point. Mr. SPRAGUE. I should think so. Mr. BELL. That is all, Mr. Chairman. Mr. DENT. Thank you, Mr. Bell. Be.fore calling on Mr. Hawkins, I might say I was interested in your statistics on page 9 dealing with the 6,800 workers who were long-term employees of Studebaker at the time the plant shut down and left the country. You say that 4,000 were serviced by a project, that was a~ Federal Government project? Mr. SPRAGUE. It was financed by the Federal Government, by the U.S. Department of Labor and carried out by the United Community Services of St. Joseph's County, and the National Council on the Aging. Mr. DENT. YOU say 66 percent were reempioyed or in MDTA train- ing. Has there been a. followup to find out what happened? Mr. SPRAGUE. No, there was no followup on that. Mr. DENT. We are very much interested in whether or not after training they became qualified for some other type of work other than what. they were doing at. the plant, anti whether this retraining gave them indeed an e.iitry into a. new job market or whether the training is more or less wasted as far as job getting is concerned. I don~t. know whether you have the facilities to check this out. for us. Mr. SPRAGUE. We don't, but I can a.sk the Labor Department to check it. out. Mr. DENT. They might give you an answer that might be a little more illuminating than just these cold figures. To me, looking at it from your set. of figures, there are still 66 percent. of the workers out. there hanging somewhere in limbo without. any dlefiuite. landing place as to whether they have been reemployeci, whether they have, become objects of charity through a relief program, or whether they have found their way into poverty program jobs or Government sponsored jobs. isn't. it true the Government thcl make a tremendous effort. to take care of these displaced workers by some kind of a defense contract deal with Kaiser? Mr. SPRAGUE. I think Kaiser did move into a part of the Studebaker plant. They employed a very small number of t;he laidoff Studebaker workew. The Studebaker workers-we dea.lt only with the 50 and over in this project, because that is where the problem was-ended up dli5- persed in all kindis of jobs all over the place, Kaiser diidn't pick up too many of them. Mr. T)EXT. Have you found in your work with the problems of the aging that sometimes a plant that has a labor polio, such as Studle- baker has, findls itself in the position where its workers have grown to an age where competition catches up with them. There are some theorists who say that Studlebaker was forcedi out of production in South Bend because of what once used to be their greatest advertising claim, that was t.hat the employees of Studebaker were with them from generation to generation and they had grandfather working PAGENO="0059" AGE DISCRIMINATION IN EMPLOYMENT 53 alongside grandson and some theorists took the position this was one of the contributing factors to their losing their position in the automotive industry. Do you have any studies or facts, or opinions, as to whether or not if you had a majority of your workers for long-term employ- ment that it would necessarily reduce your capacity and capability of competition? Mr. SPRAGUE. I wouldn't think it would. I don't have any facts. I spent quite a bit of time in South Bend after that plant shut down and there was a variety of opinions as to why Studebaker went out of business. It was usually attributed to poor management. The poor management could be due to the fact that you state, but I don't think this is the case. I think a long-term, stable work force is what every company wants. Mr. DENT. You answered Mr. Bell, when he queried you on the type of discrimination, or the reason for discrimination other than eco- nomics and he, I think, tried to make a point that no matter what color or race you might have, there is still the question of economics. For instance, even if an employer has stereotyped thinking on the matter and says to himself, "I won't hire this worker because I think he is," as you said, "fragile and not as flexible or variable in his movement into new work," isn't that always based on the economic factor behind that-he would not be able to produce as much; he would not be able to give him the efficiency? I would like to believe that at least in this area of discrimination it is not a matter of per- sonal prejudice or bias, it has nothing to do with the normal type of discrimination we would be faced with in our generation. Mr. SPRAGUE. I quite agree. Mr. DENT. Mr. Hawkins, our Representative from the State of California. He has had former experience, I believe, over many years with this type of legislation. Mr. HAWKINS. Thank you, Mr. Chairman. First, may I ask, do you favor the creation of a separate act rather than combining this with the Equal Employment Opportunities Act? Mr. SPRAGUE. 1Ve would prefer a separate act as in this bill. Mr. I-L\WKINS. Could you give us some reasons why? Mr. SPRAGUE. I think we, in our work with the problem of age and aging through the years, have concluded, as I said in my testi- mony, that this is a complex series of problems, a whole mixture of things. it is not prejudice as it exists for race, color, ethnic origin, things like that. We think that in having a separate bill, separate administration, the differences will be separate and not mixed up with other problems. Mr. HAWKINS. In the jursdictions now where there is an age dis- crimination have you noticed a correlation between the effect of ad- ministration and the type of agency administering the program? Have separate agencies, those separated from fair housing and fair employ- ment acts, been better than thosse that have been a part of this general type of administration and consequently involved in some of the other types of discrimination? Mr. SPRAGUE. The State of Oregon has a separate older bureau that handles the law in the State. it is our observation that law works very PAGENO="0060" 54 AGE DISCRIMINATION IN EMPLOYMENT well in that situation. This is a prime example of a. single agency that has worked well. Mr. hAWKINS. Does not the New York law which incorporates the idea of a comprehensive discrimination law, does that not administer the fair employment act? Mr. SPRAGUE. In New York there is one agency. Mr. HAWKINS. How does it operate? Mr. SPRAGUE. That agency administers all the human rights, all the discrimination legislation. In New York State I think it works quite well. Mr. HAWKINS. How do you explain, then, that it works well in New York? How do you expla.in the feeling it is necessary to create a sepa- rate act rather than amend the Equal Employment Opportunities Act'? Mr. SPRAGUE. I think th~ fact two different systems seem to work in two different jurisdictions does not. contradict the idea that one would seem to be preferable. I think a single act would keep the problems separate which I think are different by nature. Mr. hAWKINS. I think your statement indicated or implied that pro- hibition was not enough. It was necessary to have separate programs as well. Do you believe that this proposal would allow for the incorpo- ration of any concepts that would bring into operation these special programs tha.t are needed? Mr. SPRAGUE. Yes, sir. They are built right into t.he act. I think it is sections 3 (c) and (d). This would depend on the kind of financing that went with it, but through these sections of the act. you would have the opportunity to provide the kind of counseling and job develop- ment by the employment service that could be coordinated with the age discrimination things. You see, in those sections you have public assistance of public and private agencies. Those sections give exactly the authority you are mentioning. Mr. HAWKINS. On page 5 of your statement you list a few of the problems involved in age discrimination, such as job training costs, pensions, insurance costs, and so forth. Could you elaborate on which of these are actually types of discrimination which are in fact prob- lems that are real and are directly related to aging? In other words, are the insurance costs actually higher? Mr. SPRAGUE. Yes. Mr. HAWKINS. Are the job training costs actually higher or would you state that they ate merely things that are imagined? Mr. SPRAGUE. I think they are real. The pension and insurance costs are higher. Mandatory retirement policies do make a problem for the employers if you hire a man of 55 and have to retire him at 65. The job training cost.s might not be higher. That would depend on how long the worker stays in the job and wha.t kind of production the employer got out of him. Promotion from within policies are greater administration problems rather than cost problems. But pen - sion insurance costs are real. All these things are real. They are all problems to the employer. Mr. HAWKINS. To what extent do you think the enactment of this bill would assist the employer in overcoming some of the problems in- volved in these situations that ~OU have mentioned? Mr. SPRAGUE. Well. the bill calls for research and then in section- I have forgotten whether it is (c) or (d), the one I just cited before- PAGENO="0061" AGE DISCRIMINATION IN EMPLOYMENT 55 but; under the provisions of research and the part that `calls for the employment service to do more about these things there would be a chance to work with employers to help overcome real problems. As I said in my statement, there are real problems here, economic prob- lems for the employer, but it is possible to develop mechanisms to eliminate these problems, to make it so the older worker is equal to any other person hired. Along these lines I read that in Providence, R.I., there is a new pro- gram established. It is an insurance program where underskilled peo- ple are being trained for jobs and being put in these jobs. If they don't. stay in the job long enough to give a fair return to the employer he will `be reimbursed by an insurance fund to compensate for this loss. Things like this can be done for the older worker and I think it is fair. Mr. DENT. Will the gentleman yield? Mr. HAWKINS. Yes, sir. Mr. DENT. Your question is very important. We envision under this legislation a rather extensive program of research. We believe that by highlighting the problems affecting the aging in seeking em- ployment, we will find that probably one of the greatest single draw- backs and probably the most important is in their inability to find employment and the question of built-in objections by an employer because of pension fund charges. Mr. PUcINsKI. Will the gentleman yield? Mr. DENT. Just one moment. The second is the so-called `workmen's compensation program rather than common 1)001 risk. The third is the so-called merit rating system of unemployment insurance in various States which give an employer a single account or personal account. If research develops that this is true we might have to develop some kind of a help program like the gentleman is talking about, so that we have a transferability of pensions, so that when they leave one em- ployer and go to another they carry their vested interest with them and therefore reduce at least that opposition for taking them on the job. I am glad you asked that question and put on the record what we envision when we put in this legislation. Mr. HAWKINS. My question was directed to those discriminated against because of age, but the enacted bill does not include these other problems. We should have at least a bill comprehensive enough to pro- tect people `who are discriminated against not because of malicious reasoning but because of actual, real problems. It seems mandatory that we consider this phase of it if we are going to enact this legislation and do' so in such a way as not to create a prob- lem at the same time we are trying to solve one. Thank you. I have nothing further. Mr. DENT. Congressman Pucinski, from the State of Illinois. Mr. PUCINSKI. I believe the gentleman from California and the chairman have raised a significant aspect of this problem. When we heard testimony in New York and California when we had the FEPC bill before us and there was a proposal to bar discrimination because of age, together with religion, race, and national origin. In California witnesses told us there is an economic factor involved in hiring older people. As far back as 1960 I introduced legislation and continued PAGENO="0062" 56 AGE DISCRIMINATION IN EMPLOYMENT reintroducing this legislation hoping somewhere we would get support for it. which would give the employer a tax credit on the individual cost of hiring older workers. The chairman mentioned pension, insurance, health and welfare pro- grams-all of these escalate after age 40. The Metropolitan Insurance Co. will sell a company a package program for employees, and charge a single rate for all employees whether they are 22, 25,28, 30, 32, 38, or 40. The moment that employee goes ~beyond 40 the rate escalates. In the steel industry the. differential in the cost of hiring an older worker back in 1960 was $265 between a. worker aged 55 and a. worker aged 25. My theory has been if we gave an employer a tax credit for that. additional cost involved-I am aware of the bookkeeping this would entail-but we would remove the economic. fa.ctor, he would put all workers on a. parity. They would be judged by their experience, their ability, their reliability. These are the factors that would motivate hiring, not age. I did an experiment, in Chicago a couple of years ago. On one of the weekends I put on a sport shirt, a pair of slacks, and went. out to a number of factories and tried to get a job. I didn't. identify myseTf. I just stood in line with a number of other people and I was shocked. In most instances they did not. ask my name. They didn't ask my ex- perience. They saw my gray hair and asked, "How old are you?" WThen I said I was 46, they wouldn't even talk to me. They didn't ask what experience I had; could I do the job: did I have the abilit. They dlldn't even bother asking. When I told them I was 46, they said, "We are sorry. It is company policy we don't hire anyone over 40." I think the chairman's point that. the research aspect. of this bill would, indeed, help us develop the kind of information that. we need to then go before the `Ways and Means Committee to say this is the problem, there is an economic problem involved here. and before we can impress upon an employer and persuade an employer to lift his ban. obviously von have to give the man some relief. This ~s why I think this is a very good bill. Mr. Chairman, if I may take just. a moment. The young people sitting in front of us are members of the 4-H Club in Illinois. ITou are looking at the young people who are going to be future Congressmen, Senators, businessmen, farm managers, farm owners, all the other things that go into our society. We are very happy t.o have these young people here. to see the most complicated form of government in the worldl. Yet as you move through these chambers and see democracy in action you will find, while this is the most. complicatedi form of government, you will find it enables the individual citizen the greatest degree of freedlom, dig- nity, opportunity, and protection. We are dielightedi to have you here. I don't. know who the other young people are. Perhaps they are from Pennsylvania, Mr. Chairman. Mr. DENT. No, they are shaking their heads. Where are you from? FROM THE FLOoR. Iowa. Mr. DENT. Are von 4-H? Mr. PUCINSKI. We are glad to have young people watch Congress in action. As you go home andi see your schoolmates, tell them how this marvelous Government functions. Sometimes it scares you and PAGENO="0063" AGE DISCRIMINATION IN EMPLOYMENT 57 you don't quite understand it, but the complexity of this Government affords you the greatest degree of personal dignity, personal oppor- tunity, and greatest freedom. Would you care to comment on this economic factor and the need to meet it, Mr. Sprague ? Mr. SPIiAGtTE. You are right to talk about it. We have to consider the economic factor. We can't tell an employer you just have to hire this employee. As you say, this parity has to be so that the worker is judged on his professional qualifications and ability to do the job. I do believe the provisions in this bill should give us the research data we need to deal with these problems. Mr. PucINslu. I might say the chairman of this committee is one of the most forward looking Members of this Congress and it is always good to see the way he anticipates the needs of the country for such legislation. I am glad to have you testify on this bill and I hope we get it through Congress to close that one gap. Mr. Dent spoke of another program, the portable pension plan. In my opinion this, too, is inevitable. The equity a worker builds up in a pension plan should be portable so that the third aspect of the aging package, in my judgment, would be to raise the amount of money that older workers, people on social security can earn to supplement their social security benefits. It is my hope that the Ways and Means Committee, w~hen presenting to this Congress the social security package, is going to address itself to that problem. I don't know of any family in retirement in America that can live on what they get from social security plus the $1,500 they can earn. It seems to me this is the third aspect that we need. Mr. Chairman, the fourth aspect, you are the expert in this field and you may want to comment on it. The late Frank Bariene, president of a local union in Chicago, the biggest local workers union, had a program with great promise. 1-Ic took his retired workers on social security and worked out an agree- ment with his employers that permitted these people to work 3 or 4 hours a day and they worked up to their $1,500 and couldn't earn any more. This afforded these people a steady stream of employment and yet at reduced hours. The employer was really getting their most pro- ductive hours the 3 or 4 hours a day they were working. Retirement itself was not quite so harsh. It didn't mean a total and complete break. You know I started my first year in the military service with the horse cavalry. I learned that. you can't take a horse and ride him-I am sure these 4-H'ers can tell me about this-you can't take a horse and ride him 7 hours as we did and then put him in the barn. We used to dismount 3 or 4 miles away from the barn and walk, cool him off, settle him down, and so on. I think human beings who work hard react similarly. You can't take a man that has maintained a heavy pace for the majority of his life and then at age 65 say the whole world ends for him. In America we are now feeling a great shortage in the various skills and specialized trades, with manpower becoming at a premium, with the country going into a trillion dollar economy, with the tremendous PAGENO="0064" 58 AGE DISCRIMINATION IN EMPLOYMENT expansion of our industrially accomplished America, I am inclined to think we will need at least a few hours of work from these retired workers. What is your comment on that? Mr. SPRAGUE. I totally agree. One of the things this bill showed up, and we found this in our work through the years, is that the whole re- lationship of the older employee, 45 to 65, and retirement are totally related. We can't slove the older worker problem until we solve the retirement problem, the portable pension, and things like that. Retire- ment costs back up into the middle years, causing problems. In my written testimony I cited that the older worker should have some options; the retired worker, the age 65 person might have a choice of part-time employment, and there should be some transition before full;retirement. One of the things I read in my prepared testimony was the recog- nition of this continuing problem between the middle-aged worker and the. retired worker. The National Council on the Aging established an institute to deal specifically with the occupational aspects of aging and industrial re- tirement. In industrial retirement we plan to get into these questions of vesting and portability and we plan to develop retirement planning programs. Mr. DENT. This is a new and novel thought that we should treat older workers like horses. Mr. PUCINSKI. I don't want the record to come out and say Pucinski wants to treat people like horses. Mr. DENT. I was going to say we do that now with athletes, particu- larly boxers, or those involved in tremendous athletic endeavors, they have to cool off. The trouble with the problem we are facing here is that the employers think these workers are too cold already. Mr. PUCINsIU. Of course everything we say, the keystone of what we are saying is what Mr. Meany has said and the President has said many times, the key to all these programs is full employment. If you have a. huge la~bor surplus where the younger worker is competing with the older worker for a job, you have to have an entirely different set of rules. But we feel with the economic growth of the county, the expansion of the country, the good Lord willing, we will get Vietnam over one of these days and return our resources to more productive fields and the needs of America, we hope and have every reason to pre- dict, are going to be so great that as the rest of the world starts awak- ening and developing we hope we will be able to have enough jobs to keep everybody working pretty steadily. Mr. DENT. I think that is the whole aim. It might be good to mention for the record at this point that in one of our investigatory trips in looking into job relationships, job pro- grams in other countries, we discovered a unique situation in France that has some appeal to it. They have a common pool which is made up of contributions from all employers based upon a percentage of income of that employer and the number of employees that a person has. This fund is then redistributed to employees who have large families, employees who are older and do not produce as much as the younger worker does, thus, we find that in France, at least at the time the investigation was made back in 1960, that age discrimination was not known and family discrimination was not practiced because the PAGENO="0065" AGE DISCRIMINATION IN EMPLOYMENT 59 family man receives a higher per hour pay or wage than the person without a family. It comes out of a common pool. It is a very intriguing thought and at that time I thought it had some merit. However, in our enormous industrial complex we would probably never be able to put it into effect. It is at least an acknowledgment that other countries have faced up to this problem of large family employee discrimination and older worker discrimination. I am sure the Congress, in its new awareness of any social problems that are beginning to come to the front after laying dormant for so many years, is aware that these considerations are now becoming a major problem. Mr. PUCINSKI. I certainly agree and again your remarks demonstrate your keen interest in this subject and it bodes well for the bill. This bill is really necessary. We in this country have become so obsessed with what we might call the "Twiggy" complex, the "jet set," the "young Ma's," the "young Mary's." Of course it is important because 50 percent of the population is under 25 so it is important that we concentrate on the problem of young people. But at the same time you can't overlook the fact that there is a very serious problem for the sen- ior citizen, who, in the rapid pace of our society, seems to be becoming more and more the forgotten man. If you look at television all the advertising is directed at the "Pepsi generation," the "Coca-Cola generation." Look at all the advertising. It shows young people. You don't see any emphasis on the fact that there is a large segment of America who are struggling, who are ex- periencing an increasingly more difficult time because the cost of living keeps going up, interest, rates keep going up. Yet these people are on a fixed income. So, Mr. Chairman, I say to you that we ought to move this bill as quickly as possible. Under your expert leadership I have no fears the House will approve it. Let these people go on with their research and let us start coming up with answers. The senior citizens of this country need quick answers. The situation, I think, is very serious so I congratuate you for start- ing these hearings. Mr. DENT. Thank you, Mr. Pucinski. I might say to the youngsters here that one thing you can't escape, if you live long enough, is old age. Stick around and join the crowd. Thank you, Mr. Sprague, for your testimony and if you will please be kind enough to give us the added information we requested from you, it will be appreciated. (The information follows:) THE NATIONAL COUNCIL ON THE AGING, New York, N.Y., August 18, 1967. Hon. JOHN H. DENT, Chairman, General ~ui~committee on Labor, Committee on Education and Labor, U.~8. House of Representatives, Rayburn House Office Building, Washington, D.C. DEAR Mn. DENT: On August 2, 1967, when I appeared before your General Sub- committee on Labor which was holding hearings on age discrimination in em- ployment legislation, you asked that I give you a report on those states in which state legislation is working well. An analysis of the provisions of.the various state laws and their enforcement, indicates that four states is here this legislation is mo'~t effective are New Xork ~\Iassachusetts Oregon and Pennsylvania Tins evaluation is based on a combina tion of factors which include coverage, definition of `age, administration and enforcement. 85-376---67-----5 PAGENO="0066" 60 AGE DISCRIMII~ATION IN EMPLOYMENT This evaluation does not mean to imply that some other states are not doing a good job. It simply means that these are the four states in which the legislation is most effective. On August 2, 1967, you also asked that I send you some follow-up material on what happened to older workers in South Bend, Indiana, after the Studebaker plant shutdown. A research evaluation study was conducted by Dr. Frank Fahey of Notre Dame University for the U.S. Department of Labor. Dr. Fahey's report has not been printed or mimeographed so I cannot send you a copy. However, a typescript is in the possession of the Department of Labor and you can secure a copy by contacting Miss Augusta Clawson in the Office of Manpower Policy, Evaluation and Research. Sincerely yours, NORMAN SPRAGUE, Director, Employment and Retireinen t Program. The next witness today is Mr. Peter James Pestillo, labor counse' of the Chamber of Commerce of the United States. STATEMENT OP PETER J. PESTILLO, LABOR COUNSEL, CRAMBER OP COMMERCE OP THE UNITED STATES Mr. PucINsul. I would like to say these labor counsels at the cham- ber of commerce are getting young and younger. Mr. PESTILL0. 1 hope it is not discrimination. Mr. PucINsKI. When we first came here they were older. Mr. DENT. Now we are going to get some fresh ideas of the chamber of commerce. I might say Mr. Pestillo worked on the Hill for a while as a member of the staff for one of our Congressmen. You are welcome to the committee meeting. Do you have a staternent~ Mr. PESTILLO. Yes, sir. Mr. DENT. You may proceed in any fkshion you feel will give us the greatest benefit of your testimony. Mr. PESTILLO. In the interest of conserving the committee's time, I will summarize my statement but ask that it be inserted in the record. Mr. DENT. It is so ordered. (The statement referred to follows:) STATEMENT BY PETER J. PESTILLO ON BEHALF OF THE CHAMBER OF COMMERCE OF THE UNITED STATES My name is Peter J. Pestillo. I am the Labor Counsel of the Chamber of Com- merce of the United States and appear before this Committee on behalf of the Chamber. I appreciate this opportunity to present our position on the bills be- fore this Committee that would make age discrimination in employment unlawful except where age is a bona fide occupational qualification. HR. 3651 and H.R. 4221 would empower the Secretary of Labor to establish enforcement procedures, and, after hearings, tO issue cease and desist and affirma- tive orders again violators enforceable in the Federal Courts of Appeals. Crimi- nal penalties for willful infringment are also provided, and any person found guilty of two violations of the proposed statute could be sent to jail. The Secre- tary of Labor is also authorized to establish: (1) research programs to study problems of older workers stemming from institutional pension arrangements, (2) technical programs to assist those interested in helping older workers, and (3) service programs to foster business opportunities for the elderiT. MAJOR CAUSES OF EXTENDED OLDER WORKER UNEMPLOYMENT The underlying goal of the proposed legislation is a laudable one: that of open- ing up greater job opportunities to older people. The most critical problem con- fronting older workers today relates to the length of time which these workers PAGENO="0067" AGE DISCRIMINATION IN EMPLOYMENT 61 are likely to remain unemployed. In 1965, unemployment for workers under 45 lasted an average of 13.1 weeks. Workers who were over 45, however, remained idle for 19.1 weeks.1 A number of factors contribute to this situation. Studies show that the older job-seeker is sometimes confronted with employer misconceptions and inac- curate generalizations about his lack of abilities. Other studies indicate that for many displaced older workers, the search for a job is a new and difficult experi- ence and that they are unprepared for personnel interviews, the occasional em- ployment tests, and the competition of the usually better educated younger worker. Additionally, the older worker initially attempts to seek out better pay- ing jobs commensurate with his experience, thereby tending to diminish the job market available to him. He is hesitant to accept retraining in order to meet the economy's changing demands for skills and to augment his work qualifications. It is frequently economically or emotionally difficult for him to relocate to areas having better employment prospects. THE PENDING LEGISLATION As pointed out, a problem exists and some method must be found to expand job opportunities for older workers. Treating the major causes of this group's long-term unemployment should be the goal of any proposed solution. Legisla- tion prohibiting age discrimination does not appear to be more than a surface solution to the problem. Attempts to solve this problem through restrictive legislation have proved no panacea. Presently, 23 states and Puerto Rico have such legislation. In these jurisdictions, the overt indications of discrimination, such as the placing of age limitations in advertisements and in formal requests to employment agencies, have diminished. However, the situation of the older unemployed person ha~ not been shown to have improved in these areas any more than in those jurisdic- tions not having such laws. Indeed, the largest pockets of long-term unemployed older workers are located in many of the very states in which there are existing laws prohibiting age discrimination in employment. Attached are two charts pre- pared by the Department of Labor which graphically illustrate this point.2 We suggest that such legislation has not met with success because the age bar- riers that exist in employment due to employer attitudes stem from misconcep- tions about ability rather than from ill feelings toward older persons. A 1959 study by the State of California showed that the `most commonly cited reason for refusal to hire because of age was the belief that older workers could not maintain production standards. The second most commonly cited reason was an inability of such would-be employees to meet company physical requirements. These two reasons comprised the refusal to hire in more than four of every ten cases. If true, `they would be valid reasons for refusing to hire under this proposed legislation. In such cases age could be a bona fi(Te occupational quali- fication. To us, the solution to the very serious problem of employment opportunities for older workers lies not in imposing substantial penalties for violations which depend only on a state of mind, the intention of the party charged. `To us. the problem can only be finally solved by an educational and public relations campaign designed to dispel the misconceptions which are `the prime cause of the older workers' plight. A voluntary approach can succeed. Substantial progress is already being made. ~ believe that the Bureau of Labor Statistics would concede that the situa- tion with respect to the duration of older worker unemployment is improving. Increased demand for employment has of itself bettered the position of the older unemployed. Greater demand for workers and increased need of employees with more training and skills can only serve to accelerate the rate of improve- ment. We contend tha't statutory restrictions of both a civil and criminal nature are not necessary `bec'ause a voluntary program will work and will work better. 1 Labor Force and Employment in 1965, Special Labor Force Report No. 69, published' by the U.S. Department of Labor, Table G-2. 2 The first chart, marked Exhibit A, shows the major areas of concentration of older long-term unemployed. The second chart, marked Exhibit B, shows those jurisdictions having antidiscrimination laws. Exhibit B was prepared in 1965; three States, Maine, Maryland and Montana, also have age discrimination laws. PAGENO="0068" 62 AGE DISCRIMINATION IN EMPLOYMENT There is no hard core of resistance to the employment of older workers as may have been the case with respect to race and sex. So remedies of the nature utilized in dealing with those problems are not necessary here. In dealing in areas where so much depends on the intention of those who can provide relief it is far better to educate and persuade than it is to restrict and coerce. Significantly, most state officials charged with the administration of age discrimination laws, believe that educational programs are the most effective and important means of helping older workers.3 If the older worker can be pre- pared for new employment, we believe new employment will become available for him. Thus, we submit, the full range of federal programs already available to help the older worker should be utilized before we turn to restrictive legislation. The Manpower Development and Training Act programs can be more effectively used. The many programs of the Department of Health, Education and Welfare related to problems of the aging ought to be imaginatively pursued. Efforts to apprise employers of the merits of employing older workers ought to be made. The Department of Labor has already begun such work. In 1956, it conducted an experiment designed to determine if older workers could be given more effective assistance in job employment offices. Over seven thousand persons 45 or over were selected at random from weckers seeking employment through the Department in seven urban areas. One-half the applicants were to receive the service normally given; the other half were to receive special treatment which included counseling, referrals to training facilities, use of aptitude and pro- ficiency tests, assistance in preparing resumes, and in-depth interviewing to determine all possible job Qualifications. These efforts were coupled with com- munity promotional campaigns and localized educational activities among em- ployers. Almost 4~ times as many placements were made in the experimental group as with the group given normal service. By 1960, 24 states were using specially trained personnel to assist older workers in finding employment; most of the states with special programs were able to report a definite improvement in the proportion of older workers placed. In the same year, the Department of Labor reported a 20 per cent gain since 1958 in annual placement of job seekers 45 years and older.4 More recently other efforts have met with success. In North Carolina under the aegis of the North Carolina Fund, a highly imaginative program has been devised to make use of the services of older persons as part of the drive on poverty. In Columbus, Georgia, the Chamber of Commerce in co-operation with local businessmen and the state employment offices of Georgia and Alabama is making an extensive effort to recruit unemployed retired and retiring military personnel. Similar programs are under way in other communities across the country. The goals of business and government are identical on this issue. We need qualified workers and age makes little difference in the tight employment situ- ation which exists today. We are willing to work with the government to achieve this end. No malice toward the older worker has been shown. A problem exists which we believe results largely from misconceptions. This problem can be over- come by educating would-be employees and employers as well. Perhaps a new zeal to apply existing programs is necessary but, we submit, new legislation is not. To the extent that these bills provide for a continuing program of education and information, they are to be commended. But, if the Subcommittee decides to adopt the punitive approach as well, certain additional safeguards beyond those provided are necessary. Moreover, the bills do not resolve what may be the most serious disability to employment faced by older workers. If adopted in their present forms they would disrupt the operations of private pension and insurance plans which are currently benefiting millions of citizens throughout the nation. For example, of approximately sixteen thousand pension plans surveyed in 1965, the Depart- ment of Labor has noted that "Maximum participation ages were effective in The Older American Worker, Report of the Secretary of Labor to the Congress under Section 715 of the Civil Rights Act of 1964, Research Material, page 110. 4B. V. H. Schneider, The Older Worker, Institute of Industrial Relations, University of California, Berkeley, pages 69-70. PAGENO="0069" AGE DISCRIMINATION IN EMPLOYMENT 63 over three-fourths of the plans with over three-fifths of the workers." One-third of the private pension plans surveyed exclude workers hired at age 55 and over half at age 60. Since the pending legislation prohibits discrimination regarding wages, and terms or conditions of employment based on age, the operation or maintenance of such plans would be made unlawful.6 Health and life insurance plans would also be adversely affected. Thus, some individual health plans provide for age cut-off provisions relating to long-term disability benefits and term life insurance plans provide for reduced benefits based on age. Such variations in terms of employment are made necessary by cost and actuarial considerations. As employers would hesitate to hire workers whose employment would upset the operations of these plans, the pending legislation, by prohibiting the establishment of different terms of employment based on age, would hinder, not help, the employment of older workers. In addition, we call the Committee's attention to the existence of negotiated employment contracts which permit differences in the terms of employment of older workers. These contracts are designed to allow the employer to retain a worker by adjusting his wages when that worker's productive capacity falters because of his age.7 Such agreements, designed to assist the older worker, would be made unlawful by the present wording of these bills. The pending legislation does not take the above factors into consideration. We believe that flexibility, permitting different treatments based on age, is neces- sary and desirable. We, therefore, sugges~t that at the very least this legislation be amended by removing the provisions relating to wages, hours, and terms and conditions of employment and by exempting from its purview the operation, maintenance or establishment of pension and insurance plans. It would appear that such an exemption could be adequately specified by amending Section 4(f) (2) to provide as follows: "To observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as retirement, pension, or insurance plan, which is not a sub- terfuge to evade the purposes of this Act, except that no such employee benefit plan shall excuse the failure to hire any individual." The vast majority of states that have enacted age discrimination statutes have recognized this problem and have accordingly attempted to preserve the lawful- ness of employee benefit plans by adopting similar exemptions. Such an amendment would remove the most substantial financial impediment to the employment of older workers. Further we feel the bill vests too much discretion in the Secretary of Labor. He should not be authorized to adjust the age limits. Such substantial changes should only be considered and made by the Congress. If such changes prove neces- sary or desirable, Congress would have time to hold hearings and make changes. Significant changes should only be made through use of the legislative process. Also, the Secretary should not be authorized to consider whether other types of discrimination are reasonable. Congress in enacting the Civil Rights Act of 1964 carefully defined the types of discrimination to be proscribed. The principle should be followed here. Without remova.l of the word "reasonable" from Sec- tion 4(f) (1) the Secretary could decree that refusal to hire for lack of a certain level of educational attainment might be unreasonable. Again, too substantial changes are possible with the broad standard provided here. The right to make such changes should be reserved by the Congress. A short statute of limitations should be adopted to limit the record keeping burdens of employers. Records of employment interviews are not kept for long periods. This was recognized in the employment section of the Oivil Rights Act of 1964. It should be recognized here also. A limited time to perfect one's rights should not materially harm the worker. Limiting the time for making claims would materially aid employers. The Older American Worker, op. cit., pages 36-38. 8 The problems involving portability and vesting which this consideration raises are to be separately considered by this Committee when It conducts its hearings into legislation directly dealing with that subject. It would be extremely unfortunate if the pending legis- lation were used as a back-door attempt to force acceptance of portability and vesting. Since we do not believe that is the Committee's purpose, we will not deal with the merits or faults of vesting and portability in this testimony. ~ Collective Bargaining-Negotiations and Contracts, Bureau of National Affairs, Volume II, 93 :202. PAGENO="0070" EXHIBIT A AREAS OF MAJOR CONCENTRATION OF THE OLDER LONG-TERM UNEMPLOYED* 2.0000 5.000-10,000 0,000-00,000 ~IIII 0 20,000-30.000 *000-55,000 PAGENO="0071" EXHIBIT B STATES WITH LAWS PROHIBITING AGE DISCRIMINATION IN EMPLOYMENT, 1965 a (11 C-) Soorco: U. S. Deportment of Lobor Boreao of Labor Standards C;' PAGENO="0072" 66 AGE DISCRIMINATION IN E~IPLOYMENT Mr. PESTILLO. The chamber is very interested in the legislation be- fore this committee as the only defense American industry now has against the low-wage companies abroad is technology and to fully utilize that technology we need qualified workers and we need to draw on the pool of older workers. There is a. problem in the employment, of the older worker. Al- though there is no malice, there still is difficulty in finding employment for the older workers. There are reasons and there is fault on both parts, both of employers and employees. The employers' difficulty is a matter of misconception. Again the feeling of the brittleness or lack of willingness to retrain on the part of the older worker. The difficulty with the older worker is his lack of marketing skills. He really doesn't knOw how to go about getting another job. Unemployment is rather traumatic for him, it comes generally after a long period of employment; he has been out of the active work seeking job force for a long time. It take readjustment, he has diffi- culty acclimating to the general lower-paying jobs available to him. We feel research, public relations and promotion can cure this. The bill recognizes this and calls on the Secretary of Labor to do just that. We favor a voluntary approach. We feel that penalties far often lead people to be artful in avoidance rather than active in compliance. Active participation by the employer groups is vitally necessary to achieve reasonable employment on the part of the older worker. If it is the will of Congress to use civil and criminal penalties, we do suggest amendments. The most important one we have has been discussed at grea.t length today and it concerns the pension plan. Cov- ering workers under the pension plan raises actuarial problems, where- as unemployment, and workman's compensation, these are matters covered by individual experience. Costs of the latter two can be offset by longer-term employment so there the employer ha.s some control. But not the health plans, these are fixed fees and are higher with respect to older workers. Congressman Pucinski cited a figure of $265, the Labor Department admits it would be at least $100 in most cases and often it runs higher. We suggest the removal of the impediment to employment of older workers would be exclusion from life and health plans. This committee is later going to conduct research into this area. We submit . the proper approach would be to conduct the research first before imposing the impediment and then seeking ways to adjust it. The substantial cost factor has been discussed. The language on page 6 of my statement is that we understand to have been agreed to by. the subcommittee in the other body. The Secretary of Labor yes- terday accepted it. In 15 of the first 20 States which adopted age dis- crimination laws they contain provisions excluding age discrimina- tion in retirement plans. We think there is merit in it and it is our most substantial reservation about the bill. Another thing concerns the discretion allowed the Secretary of Labor. `We feel Congress should fix the age. Whether 45 or lower, we think Congress should do it. It. is so substantial a. matter and so funcla- mental we think it. should be done here. I want `to" say if von take it. to 40 you ~viil find pressure from a great many women wanting it. taken to 39. PAGENO="0073" AGE DISCRIMINATION IN EMPLOYMENT 67 The bill says the Secretary may deal in reasonable factors. `We feel we should not approach it that way. It should outlaw only certain types of discrimination and not; delve into other areas without con- gressional action. The Secretary could impose educational attainment, as a nonreason- able age discrimination. We feel that should not be under the authority of the Secretary of Labor. We feel a short statute of limitations should be applied because we are dealing in employment application records. They are not kept very long. We found that in the Civil Rights Act a provisiOn for 6 months' keeping of records was applied. Several approaches have been suggested with respect to enforcement. We suggest the committeeinvestigate the possibility of the Fair Labor Standards Act. This was done before where we had a type of discriim- nation not really akin to racial discrimination, but a very real one none the same. At that time we had matters of terms and conditions of employment which we have here. It was decided the wage and hour division could handle it. This agency is in existence; it is well staffed and well known. There are a great many field offices both for employers and di'scrimi- na.ted-against employees. Remedies in the department and courts are already provided `for. Review procedures begin in the Federal district cOurts, `again a matter of greater access. Such au agency is likely to be more judicious than an agency created simply to enforce the'law. In these times it has an additional valuable consideration. I think it would be cheaper to use an existing agency rather than set up a new one. Those are the extent of my comments, I would be glad to answer any questions you may have. Mr. DENT. Than~k you very kindly for summarizing and giving us the main gist of your testimony. The committee will have more time later to read it `completely as it is contained in the record. You make one reference to the discretionary power being given to the Secretary to decide what is the proper age or limit he may set in certain areas and other restrictive covenants. I notice you use discrimi- nation on account of education as one of your examples. It might inter- est you that the whole Federal Government uses education discrimi- nation in all of its employment because in your Federal Government setup and in most of the States and public employment of any kind, in order to take a civil service examination you `have to have a preexami- nation qualification test. For instance, in the State of Pennsylvania I can remember distinctly at one time we were discussing the matter of civil service, you had at that time only one agency under the umbrella of civil service, it was the Pennsylvania Liquor Control Board and all of their employees were under civil service. The Speaker of the House at that time was a venerable old gentle- man by the name of Hiram Andrews who had spent the greater part of his mature life in the Halls of the House. He was a very successful newspaper publisher. He left the rostrum to come down to the floor to debate the issue and lie made an astounding statement. PAGENO="0074" 68 AGE DISCRIMINATION IN EMPLOYMENT He said, while he was honored to be Speaker of the House on more than one occasion, and he was fortunate enough to be the publisher of the largest newspaper in Cambria County, he found after reading this legislation he would be barred from State employment and could not get a job as janitor in a liquor store because he didn't have the equivalent of a high school education to take the qualifying examination. it is one of the serious drawbacks to employment for the aging. Many employers use that as their dodge or coverup for not wanting to employ a person over 40 years of age. They will in their advertisement-for instance, advertising for millwrights or just ordinary men on common labor jobs-they will say persons without a high school education need not apply. It is one of the factors that this legislation will take into consider- ation, I believe, and consider the effect. I note your fear of the discriminatory powers of the Secretary to write rules and regulations that may be capricious, or at least harmful in your opinion. You ask that this committee consider an amendment which I under~ stand the Senate either has adopted or is considering the adoption of. Mr. PEsimLo. I believe the subcommittee has. Mr. DENT. They have adopted it? Mr. PEsTIII~o. Yes. Mr. DENT. The subcommittee of the Senate has adopted the sug- gestion that employers be relieved of the responsibility for the health and welfare and fringe benefits to employees over a certain age. Mr. PESTILLO. The ones covered, 45 to 65, that would be the age. Mr. DENT. Those covered in this bill? Mr. PESTILL0. Right. Mr. DEW2. There is a great cry to reduce the age limit of this to age 40. What would be the program that we could hold out as a hope to a 40-year-old worker who has 25 years ahead of him if he is to be exempted from coverage under a pension plan. If all the employees around him are covered, how can we justify this kind of amendment? Give me your logic. Mr. PESTILLO. Really, adoption of the amendment would not exclude every employee, but it would help the employer stabilize his costs. Under the Equal Pay Act we found an insurance differential; it costs more to buy insurance for women. The adjustment made was that the employer would comply by providing comparable benefits or paying a comparable amount of money. Such an amendment would provide that kind of latitude. Maybe the employer could provide identical benefits with a contribu- tory part paid by the older employees. It is not the intention of the employer to avoid pensions. Many have collective agreements but. the majority were voluntarily provided. It is good public relations not to turn somebody loose at age 65 with no money, but they need this amendment in order to give them the latitude to do it in a way that is economically sound. Mr. DENT. As you well Imow, the unemployed labor market is made up in the main of the younger jobseekers in the age grouping between 21 and 35. Now the pressure from this great mass of jobseekers is build- ing up and mitigates against the employers of the aging worker, and PAGENO="0075" AGE DISCRIMINATION IN EMPLOYMENT 69 we have found from actual experience, knowledge, and facts that the age limit is dropping at which employers will employ new employees. The gentleman from Illinois gave you his own personal experience. back as far as 1~7 years. Eighteen years ago when I chaired a committee in the State senate studying this problem, we found at that time some of our largest employers in our State had already written a. blanket objection to employing any worker over age 40. Now as the pressure comes from this great group of younger people pushing at the door that may drop to age 38, 37, and on down. If we put this kind of covenant in this legislation, aren't we buildmg up a new pension system and denying persons with as many as 25, 30, 35 years before reaching the so-called Government-mandated retirement age under social security? Many private pension funds lower the retirement age to 55 and 60. I-low do we sell a person at age 45 seeking employment? How do we give an employer an out which says he may give this person employ- ment if the person is. willing to work without health and welfare bene- fits and without pension retirement system benefits? Mr. PESTILLO. I don't think in practice it would present much of a burden in that way because pensions are a lure of employment to get good people. As we get back to the lower ages we don't have this prob- lem. The question is economics; it is not discriminatory or malice, it is simply that it costs more money to employ these people. I think in all likelihood reduced pensions would be offered. Mr. DENT. Instead of going to that which I consider at this moment an extreme, would you favor a proposal that would encompass port- ability of pension rights and pension savings from one employer to another employer in both the public and private sector of the economy, portability of an employee's vested rights in a pension plan from one employer to another with adjustments to be made by each employer? Mr. PESTILLO. Portability would do much to achieve the ultimate end of pension benefits. The portability, the ability to integrate so many types of pension plans, whether that it possible, I don't know. Mr. DENT. We ran through some sample programing of the port- ability of pension plans, sound pension plans, and it might be inter- esting to note our investigation shows there are 1,225,000 separate and distinct pension plans in the United States. We found that the ones that we looked into are based tipon what is presumed to be actuarial soundness, so they have age limits, the retirement benefits and the payments and contributions by either the contributory system of the employer and employee, in some cases all by~ the employees. Moving from one. to another is merely a matter of selection on the part of the employee as to whether he wants to pay the difference into a higher annuity plan or take out the difference between his payments and a lower annuity plan. It is not as complicated as it may seem from arguments I have heard against it. We found it could be done rather simply. It would create, of course, some amount of bookwork, some amount of detail, but unless we do that I see very little hope, very seriously, of b~eak- ing down the barriers to employment opportunity for persons who have worked for 20 or 25 years for one employer doing a particular type of work, skilled in that particular type of work, and having to PAGENO="0076" 70 AGE DISCRIMINATION IN EMPLOYMENT move because of an automated condition coming into the plant or the plant goes out of business or moves from one district to another. I don't see, unless we get some rather liberal views on the question of portability of pensions, how we are really going to attack this problem in a meaningful way. I am very serious. I think the chamber-which has a responsibility in our economic structure, in my opinion-I think the chamber ought to make it a special project of its research department to study just what can be done or what can be offered in this area before Congress is forced to do it because of the need. We don't like to pass legislation which puts restrictions on an indi- vidual or enterprise but we are forced to sometimes by the weight of the problem itself. If organizations like the chamber would undertake such a study, and it is a suggestion that you can take back to the atten- tion of your superiors in the chamber, that it is the thought of this committee that it would be a very worthwhile service and it would be of great service to this committee and the Congress. Mr. PESTILLO. It has been the policy of the chamber to be of service despite many barbs flung at us. The difficulty here, we want to get these people in the work force and if you saddle the man with the fact that he is going to cost the employer $240 a year, more than likely the employer will find another reason for not giving him employment. Age di~rimination is the hardest to detect, again there is no malice, so it is a real problem. Mr. DENT. I may differ with the witness but we found it is the easiest of all to detect because in most instances when you make your application for the job you put your age down and all you have to do is pick up the applications rejected and you get a clear picture of whether there is discrimination. We have no difficulty in ftnding it with employers who have a great number of employees. With an employer with only 25 employees, it is more difficult. But it is in the larger employment where this problem exists, the mass of employment, these are the people that are prone to middle-aged permanent layoff. Mr. PUCINSKI. Mr. Chairman. On the basis of what you are saying, isn't it a matter of fact that many companies have an outright policy, it is no secret, we do not hire anybody past 40 ~ Mr. PESTILLO. I agree hut my point is that that would naturally evaporate with legislation, then it would be much more difficult to detect. Mr. PUCINSKI. I can't imagine anything more cruel. I had a young man who came to me recently that was 42 years old. He was a sales- man for a big cigar company and knew a lot of stores, he sold to cigar stores, restaurants, and soda fountains, and he came in and asked if I minht help him find a job. The company had a reduction in force and five employees were eliminated. I said it is lucky you came by, yes, I do know a fellow looking for a man just like you, a big soda, soft drink distrubutor who is looking for a man with contacts in this kind of field. I called the guy up and said, "I have the guy for you." He said "Great~ Roman, send the guy over and we will put him to work Mon- day." As an afterthought he said "Flow old is he~" I said "Forty- two." He said "Oh~ I am sorry, we have a company policy, we can't hire anybody over 40 years old." PAGENO="0077" AGE DISCRIMINATION IN EMPLOYMENT 71 How cruel can a company get, here is a man with all the qualifica- tions and here at 42 he is told he is too old for a job. It is incredible and yet you and I know it is a fact of life in this country. I have said to many people past 40 if you lose your basic jobs-I saw a study where the chances of a worker past 40 getting a comparable position, the chances are 6 to 1 against him. I think your statement is an excellent statement and you have given us some insight into the depths of the problem, it is not quite that easy to say we are going to bar discrimination because of age, there are a lot of side effects to be dealt with. I think the chairman raised them, Mr. Hawkins raised them. It is good to see the chamber come forth and open up some dialog on how to solve these problems. What is your opinion, if any, on my suggestion that we give an em- ployer a tax credit on any differential cost involved in hiring older workers as against the younger ones where we put all workers on a parity to be judged by their experience, capability, and so on. Mr. PESTILLO. Without getting into the tax implications, as it is not my field, I think we are seeking parity. If we can reach parity we have eliminated the discrimination. Mr. P~CINSKI. I would suggest that you call my secretary and have her send you a copy of the bill we put in. I would like your views and those of the chamber; you may want to assign a project to this thing and maybe we can move in the same direction at the same time. Mr~ PESTILLO. I will be glad to. Mr. PUCINSKI. What about the suggestion that perhaps we ought to give some thought to a modified withdrawal retirement, the so-called 10-31 plan I discussed earlier where workers after retirement could work for 4 hours a day, gradually phase them out instead of cut them off immediately? Mr. PESTILLO. Many employers use that, it is more a socialogical rather than a labor point. The new social security amendments call for increasing the earnings permitted an older worker. Maybe this approach is going to help. Mr. PUCINSKI. You are talking of the problems you might have with older workers. I think there is an emotional problem with older workers, we can do the research the chairman has suggested and pass some of this legislation, we might be able to make the older worker a good deal more efficient, not that he isn't already efficient but there is a cloud that hangs over his head and I think as he escalates in age he becomes more and more aware of the fact for some reason or other. So I think there is a psychological development there that the very fear that hangs over his head inhibits him to a great extent. He does not perform as totally free of emotional pressures that perhaps a younger worker can who is free to move from job to job. If we can devise a program equitable to the employer and employee and bar discrimination, I think you would find that worker would be more inclined to shed some of his fears-the apprehensions. Frequently people tell me that older workers don't get along very well with younger workers. I think this is understandable, the older worker undei~ the present system sees the younger worker as a poten- tial threat to his survival and his job. Once we get this legislation through and we remove those fears, my judgment is that some of the things you talked about in your testimony, those will evaporate also. PAGENO="0078" 72 AGE DISCRIMINATION: IN EMPLOYMENT Mr. PESTILLO. Yes; and I think it is wise to point out much has al- ready been done. There is a great deal of education. As the Secre- tary pointed out, much apprehension results in thoughts about health, the man who is 55 today is in far better condition than one at 55 a few years ago. Also many State and local agencies, like the American Legion, have a program of awarding certificates for employers where they have had good experience hiring older workers. These programs need a little impetus. We favor them regardless of the issue of civil and criminal penalties. The education program has to be conducted. Mr. PucIN5KI. Thank you very much. Mr. DENT. I notice in your testimony you cite two reasons that some employers set these arbitrary age limits, one is that they believe or are convinced that an older worker is unable to maintain production schedules, the second is, in your own words, an inability to meet phys~- cal requirements. That points up the unfairness of an arbitrary age cutoff when an employer will take an arbitrary position and say a person over 40 need not apply. There are not any two human beings that perform the same at any given .age so you can't say all persons at 40 years of age are unable to maintain production schedules or meet physical requirements. Physical requirements are a measurable thing, it is determinable, re- gardless of age. A boy 21 or 22 may not be physically able but you don't condemn the whole age group. This has been called sterotyped think- ing, by Mr. Sprague, I think, but this arbitrary age cutoff clouds the the whole picture. I can understand the economics, the unwillingness of an employer to add a burden to his cost of production simply because of the added cost when you employ an older worker. But I can't see the logic of assum- ing that a person over 40 or 45 or 50 is physically unfit without even taking the time to make an examination or give an examination to de- termine whether or not he can meet production figures. We have not yet passed any legislation that takes away from the employer the right of dismissal of an employee who does not meet the requirements of a job. That ought not to be one of the reasons but it is in many instances and I note you are repeating these things and your testimony points up how prevalent that thought is. Mr. PESTILLO. We have labeled that as misconception. Mr. DENT. Yes, you have and I say there is the fact you recognize it is there and recognize it to be a misconception but it. does not alter the fact it is a serious problem we have in trying to place older workers in employment, especially in the enterprise that has a great number of employees and whose production schedules are on the basis where each has to fall in line and at a certain minute on the line of production or the whole line of production goes out of whack. In fact, automated production is one of the most important subject matters that this committee will have to study. There is an important need for the recognition, as you have pointed out, of the distinct difference between the aging and the aged. The problems of the aged we have studied by a new commission. I think the assumption of inability to perform is one of the main reasons PAGENO="0079" AGE DISCRIMINATION IN EMPLOYMENT 73 that this legislation. must be passed to at leasteducate if we can, through research and findings of fact that this is not true. I don't believe it is true. Mr. PESTILLO. I agree with you. Mr. DENT. You can go to the floor and see some of the most able men over there are some of the older men. This is a physical job, it is not just a sit-clown-and-vote job, it hasa great deal of physical effort in it. Mr. PESTILLO. It is a selling job which must be done. Mr. DENT. I am pleased the chamber has not taken a more stubborn position-that is one of the words we use with the chamber's position too often. It does not appear, at least from your testimony and going through your prepared statement, that the objection is one other than that of trying to meet surmountable objections such as maybe some degree of relief to an employer who, by hiring an older person, adds cost to his product line through increased costs of pension and health and welfare plans. I am sure the committee will take your proposals under considera- tion. `We may have to have a return visit by either yourself or who- ever the chamber may send to the committee as we get into the prob- lems, especially since the Senate seems to have considered your pro- posal a valid proposition and the subcommittee has accepted the plan. `What would you say if the committee reduced the age to 40 or elimi- nated age altogether in specific arbitrary limitations? Mr. PESTILLO. Maybe the study will show the problem is there, if discrimination exists from 40 to 45 it is difficult to argue against tak- ing it to 40. Removing the barrier altogether gets you into the converse of the problem and the difficult thing of discrimination because of youth, a person being denied a job because of lack of age. `Without a limit he could make a valid objection. Mr. DENT. There are those who have proposed to the committee that we just pass legislation against discrimination on the age without stat- ing an arbitrary limitation of applicability. Of course, the Secretary has to have some discretionary powers, if on investigation by the Secretary it is found an ironworker ought not to be in certain phases of building and construction at age 45 and the records show that is a fact and not just a fantasy, then the Secretary could rule that particular job would properly be one where age is a bona fide occupational qualification. Mr. PEsTmiO. We always have the issue of the bona fide occu~tional qualification; I don't know where the problem lies beyond that: I think the committee ought to fix age limits and find whei e the problem is existing in a material way -` Mr DENT We look for some opposition fi om, for instance, retail establishments, we look for opposition from iestaurants Mr PESTILLO Retailei s `md restaur'mnts are probab'y the major em ployers of old workeis A Mr. DENT. They are pretty much opposed to this ~egislation when it deals with certain types of occupations in the restaurant business, w aitresses, for instance They are about as disturbed as the disturbance over airline hostesses. The funny thing is it is not a universal practice, many restaurants PAGENO="0080" 74 AGE DISCRIMINATION IN EMPLOYMENT have no bar or no restriction on age of waitresses. There are those who would either find other jobs or offer other types of employment to take them away from the job of waiting on tables. Some airlines have an age clause that automatically eliminates stcwardesses from certain duties in t~h~ air service. Others have never had any restriction whatsoever. In looking at the stock market they all seem to be doing pretty good whether there is an economic problem or not in that field. In that area you wonder whether or not you can maintain an arbitrary age limit. We are find- ing ourselves in this legislation in the area of things the employer has complained about. Mr. PESTIIJLO. I think your arbitrary age limit would result in find- ing an attempted solution to the problem which you can handle. By holding to a fixed age limit you have an area you can attack and deal with. Going beyond that it would probably require a more ambitious investigation. Mr. DENT. There is always the fear of creating a requirement that becomes physically impossible to administer. It causes us sometimes to put restrictive and arbitrary covenants in legislation that we find later on have been a hindrance, to the proper administration of the act and the achievement of the goals. As you. well know, for many years we operated under the theory that the so-called commerce clause had to be adhered to in the enact- ment of minimum wage and fair labor standards legislation. As you know, this committee took a contrary view last year and we wiped out the so-called dollar volume test in five areas of employment. We find now that the employers of these five areas of employment, if they can be said to be happy with any legislation, are happier with that type of legislation than they were prior thereto because the whole concept of what minimum wages were intended to do was negated when you set a limit on the employers' income or gross business. We are not passing a minimum wage for an employer; we are passing it for the employee. If there is a need for the employee, whether he works under wages or what, it does not remove the need for that employee. It is going to make it easier by setting an age limitation of 45, 40, or whatever, I can see the limit of 55, even an old horse has to be put out to pasture. Mr. PuciNsul. Maybe a retired Congressman? Mr. DENT. I think one of the major problems is that we may be set- ting a precedent in Federal legislation and in maiiy instances our age limits in this legislation are out of line with the rest of the States that have 40 years as their base for age-discrimination legislation. I do believe that that is one of the problems. We are not satisfied that 45 is a fixed figure, very frankly. Mr. PESTILLO. I agree, the committee has to consider where the prob- lem exists. I don't think I would go to 32 to get at the airline stew- ardess situation. Again there is not a big enough problem below 40 or 45, I am not taking a position on what age, to justify going all the way down and encompassing too low a level. Every time you set an arbitrary limit there is abuse, someone will be discriminated against by being age 44, and there is no remedy. But I think that is a risk and we have to confine ourselves to reasonable limits. PAGENO="0081" AGE DISCRIMINATION IN EMPLOYMENT 75 Mr. DENT. But don't you think we ought to have ~t least some factual, knowledge as to what are the prevailing ages at which dis- crimination is practiced most? Mr. PESTILLO. I think you should be guided more by that than the State limits. Mr. DENT. We recognize there are isolated cases where they are controlled by so-called prehiring contracts and whether or not the prehiring contract in itself becomes a violation of equal opportunity in employment, whether it becomes a violation `under an age-discrimi- nation law is something we must consider. Prehiring contracts have been in vogue for many years, in fact, I believe most of the utilities,. at least those in my State, have an arbitrary 65-year requirement, whether it is a lineman or the president of the company or chairman of the board, all the utility employees are just automatically severed from their position or jobs, whichever the case may be, at age 65. That is another problem we will have to get into. We can't com- pletely ignore the existence of prehiring contract because a person seeking a job will sign a prehiring contract many times and when they get to the end of their contract they find they have spent their formative years or learning years of their life in `an occupation that is going to be denied them. It is a serious problem to them. So we are attempting to review some of the prehiring contracts we know are now in existence. Mr. PUCINSKI. Did you say you did not agree with the 32-year-old cutoff for stewardesses? Mr. PE5TILLO. As an example, I don't think it. is necessary to take it down that far. Mr. PUCIN5KI. I am glad to hear that. Mr. PESTILLO. My point is, I don't think you have to take the law down that far to cover problems like that. We were talking of whether to take the age limit down to 40. One can't argue against going down as far as the problem in its most substantial form exists. If the evidence were contrary, I would have to back down; but I don't think there is enough age discrimination below 40 for the committee to go that far down. In the case of stewardesses I don't think it is such a problem. Mr. PuCIN5KI. I think the age is 32. What the company does is try to find her another job and try to keep her going, but as a stewardess I believe most companies have a policy that a stewardess cannot continue to be a stewardess except a `small number of girls. The general trend is to retire a stewardess as a stewardess at age 32. They try to get her another job or something. Mr. PE5TILL0. That is obviously age discrimination but whether it is of a type that should be made illegal, I would say, likely not. Maybe that is a bona fide qualification, to be. young, pretty, and fly. Mr. PnCINSKI. There are a lot of stewardesses very pretty after age 32. As a matter of fact, like a rare wine, they mature and get prettier and prettier as they get older. Mr. DENT. Thank you. The committee appreciates your staying overtime to discuss this in our hearings. We find in informaiive discussion that sometimes when we have time we get closer to the problems. This chairman has always believed in the approach of personal contact on both sides of the controversy in any legislative 85-376-67------6 PAGENO="0082" 76 M3E DISCRIMINATION IN EMPLOYMENT proposal and I hope you will continue to be available if and when we feel we may need some further discussion. Mr. PESTILLO. Certainly we have always expected to cooperate with you and would expect to continue to. Mr. DENT. Thank you very kindly. The committee will meet tomorrow morning, and at that time we will have Mr. William B. Hutton, executive director of the National Council of Senior Citizens, and Dr. Harold B. Sheppard, Upjohn Institute for Employment Research. The committee stands adjourned until tomorrow morning at 10 o'clock. (Whereupon, at 12:10 p.m., the subcommittee recessed, to reconvene at 10 a.m.~ Thursday, August 3, 1967.) PAGENO="0083" `~.GE DISCRIMINATION IN EMPLOYMENT THURSDAY, AUGUST 3, 1967 HoUsE OF REPRESENTATIVES, GENERAL SUBCOMMITTEE ON LABOR, OP THE COMMITTEE ON EDUCATION AND LABOR, TVashington, D.C. The subcommitteeS met at 10 a.m., pursuant to recess, in room 2175, Rayburn House Office Building, Hon. John H. Dent (chairman of the subconunittee) presiding. Present: Representatives Dent, Hawkins, Erlenborn, and Scherle. Mr. DENT. The General Subcommittee on Labor, of the House of Representatives, will now come to order for the purpose of holding hearings on H.R. 3651, H.R; 4221, H~R. 3768, and any related bills dealing with the subject of age discrimination in employment. The first witness this morning is slated to be William Hutton; how- ever, Dr. Sheppard has an engagement and if Mr. Hutton will per- mit we would like to call Dr. Sheppard first. Mr. HUTTON. I will be happy to. Mr. DENT. All right, we will call Dr. Sheppard. STATEMENT OP DR. HAROLD L. SHEPPARD, UPJOHN INSTITUTE FOR EMPLOYMENT RESEARCH Mr. DENT. You have a prepared statement which I see has been passed out. You may proceed in any fashion which you think will give us the greatest benefit of your thinking. Dr. SHEPPARD. Thank you. I will try to go through all my material not too `fast nor too slowly. I will start out with the problem of urban unrest and the high degree to which teenagers and young adults `seemed to have dominated the tragic scenes around our Nation. It may `be difficult these days to speak on behalf of `the so-called older worker, and his problems of finding and keeping a job. Unfortunately, in discussions about the older worker, especially within the context of reducing and preventing poverty, too many people seem to insist on making a choice between helping the young and helping the old. I believe it is not necessary to' make a choice. In the `first place, many of the older workers who would benefit from protection against age discrimination are also the parents of younger persons-many of whom, for example, drop out of school to seek jobs themselves when the parents are no longer adequate `breadwinners. The Department of Labor recently published some data about urban slum unemployment, especially among those who have dropped out of the labor force. A great number of these are 45 and over. 77 PAGENO="0084" 78 AGE DISCRIMINATION IN EMPLOYMENT In the second place, many Americans-contrary to popular opin- ion-are not born poor. They become poor. They become poor very frequently as a result. of economic changes in our society-changes that affect a worker's job-finding chances when his employer moves, reduces his work force, or closes down permanently. These economic changes take place all the time in a dynamic economy. While we do not want to prohibit such changes, neither should we ask the employee to pay a disproportionate price for them. Typically it is the older worker who pays this price. We have done a number of studies, especially one in Detroit and more recently one ili Pennsylvania and we find this is the case typically. Study a~fter study has shown that once the older worker becomes unemployed, his chances for finding a new job are much less than for younger unemployed workers, and the longer the duration of his unemployment. For administrative and research purposes, we usually choose age 45 and older as a convenient definition of the "older work- er," although this figure may vary by industry and occupation. Mr. DENT. Would the gentleman yield at that point for a question? Dr. SHEPPARD. Yes, sir. Mr. DENT. Much of the testimony and much of the discussion in this area tend to show that perhaps age 45 is not the lower limit at which age discrimination becomes prevalent. It appears that 40 is closer to the age at which discrimination really starts, especially in the areas of junior executives, for instance, and for the unskilled worker. The craftsman is still very much needed in the market because of the fact there are a limited number of craftsmen, but the unskilled worker on the one hand and the junior executive on the other hand, from our observation, are becoming increasingly affected to the point where 45 seems unrealistic. Dr. SHEPPARD. It varies from occupation to occupation, from in- dustry to industry. How you will work that out, I have not given much thought to, but I know bureaucrats like a simple figure to work with. Mr. DENT. You said simple figure, not simple bureaucrats. Dr. SHEPPARD. You said that; I won't comment on that. I once was a bureaucrat, as Congressman Hawkins might remember. I was among those trying to get something done in his area in Los Angeles before the riots. Mr. HAWKINS. I think I gave him so much trouble he left. Dr. SuErrAun. Well, that is another story. It does vary but the main point is the high risk of long-term unemployment means a higher risk of becoming poor and then remaining poor. To repeat my main point, many people are not born poor, but be- come poor and they remain poor and we are concerned about what hap- pens to them in the long term. Over the past several years, an increasing proportion of the long- term unemployed are older men and women. The Manpower Report for l67 indicates that more than one-half of the adults unemployed for more than 6 months are men aiid women 45 years of age or older. The older an unemployed Person is, the higher the chances for long- term unemployment. Among adult groups, even if we exclude those over the a.ge of 65, we find that after the age of 45 the rate of poverty among heads of families is directly related to being older. Among unrelated individuals PAGENO="0085" AGE DISCRIMINATION IN EMPLOYMENT 79 the relationship between age and poverty begins much earlier, at age 25. In the age group 25 to 34 living in urban areas, for example, 13 percent are poor, and then the rate of poverty steadily climbs until at ages 55 to 64, nearly one-third are living in poverty, people living alone or with nonrelatives. I mentioned the data on poverty because I happen to believe that one (and only one) of the. causes of poverty might be found in the employment experiences of American workers while they are in the labor force. One set of such experiences involves becoming unemployed after many years of continuous employment and then having to face the conscious and unconscious patterns of discrimination against older j obseekers that many private and public organizations practice. To give another typical example, the Studebaker shutdown involved about 7,000 workers. The average age was 54 or 55 years of age. I was shanghaied back into Government to be the President's representative there. I defined the problem as a. problem of older workers and the experience in South Bend showed what we could do when we rallied all the forces of the Government and local resources to solve this pro olem. The Department of Labor reports on unemployment and length of unemployment suggest to me that through our special programs of training and counseling, and through our various fiscal and monetary policies, we are helping younger workers while leaving behind a solid core of older workers still too young to retire. MDTA still does not train enough older workers. Mr. DENT. On the South Bend situation, I asked a question yester- clay of a witness and I understood him to say, if my memory serves inc right, that there were 6,800 workers affected. A project was started, which you are probably aware of, for 4,000. Of these 4,000 at least 65 percent or two-thirds were either reemployed or were under the MDTA training program. Do you have any knowledge-this is the question I asked yesterday- how many of the 4,000 under the manpower training program were reernployed after their training period was over? It appears that 2,800 of these drifted from the market; they could not get any jobs. Do you have any idea of the success of the program? Dr. SHEPPARD. We have no specific figures as to the number of people laid off but we have aggregate figures of the economy the last time I checked. There is one study being done by Professor Fahey at Notre Dame. There should be figures coming out on this. Mr. DENT. Ofttimes this is the problem that makes it so difficult for Congress to know which way to jump. We were told Kaiser bought the plant and 21 or 22 percent got jobs with Kaiser and yet here we have figures of men that made a study sayingthat 4,000 went under man- power training, 66 percent of the force. We never found out what hap- pened. We spent millions of dollars, but for what? Dr. SHEPPARD. We will have to find out. Mr. DENT. That is right. They are just statistics put into a computer and at the end you get a computerized individual. Dr. SI-IEPPARD. I have a feeling that a crisis like this, where you get an *~IDTA project rushed in, very often the program does nOt aim strictly at the workers affected. I can imagine when workers are brought in for a crisis, it might turn out a lot of younger people not PAGENO="0086" 80 AGE DISCRIMINATION IN EMPLOYMENT involved in the shutdown are enrolled in the MDTA program. You have to be careful about taking the gross MI)TA enrollment figures in a given situatioiiwithout knowing precisely the people in terms of their previous employment, who the people enrolled in MDTA are. When we don't have institutionalized followup studies, you have to be wary of those figures. To be a little objective about this, I hope Congress will appropriate the money for studying that kind of followup problem and we can't have our cake and eat it. If we want to know what happens, it costs money to find out. They can't do it without more money for research. Let me mention some other facts. 1 think that the problem of older workers is greater than it usually appears. It may be getting worse.. Again we don't have the data organized in such a way as to prove what I believe is the case. There are suggestions in the data. The facts point to the possibility that as older workers become un- employed and experience obstacles in their j oh hunt, many of them become discouraged and simply stop looking. For example, if you look at the 1967 manpower report-table A-7,. page 208-you will see that in 1956, there were 226,000 men 35 to 44 years old not in the labor force. Ten years later, in 1966, the num- ber of men 10 years older-45 to 54-who were not in the labor force was more than double the earlier figure. It was 499,000. If you do the same thing with men who were 45 to 54 years old. in 1956 and 55 to 64 10 years later in 1966, you will see that the numbers not in the labor force jump from 321,000 to 1,253,000. Now, many of these men became disabled during the 10 years fol- lowing 1956, and were forced to leave the labor force.. But it is difficult to believe that all of the additional men out of the labor force in 1966 were out originally because of an illness or disability.. In one recent national study on nonparticipation by the Depart- ment of Labor, reported in the July issue of the "Monthly Labor Review," 40 percent of the men 55 to 64 years old were not ill. The belief that it was impossible to find a job was clearly correlated. with the age of what I call the labor force dropout. I believe that something happens in the work lives of many workers when they move into their 40's and 50's-something that we really have not analyzed in any deliberate, systematic fashion-but nevertIie-~ less, something which shows up 10 years later in our aggregate statistics about manpower and employment and about unemployment. One of the things that happens, and this we do know through solid research, is that layoffs and plant shutdowns occur-and that the workers facing the greatest . difficulty in finding new jobs, or in finding jobs that paid the same as their old jobs are the older workers. While we do not know completely how much of the long-term un- employment and how much of the labor force dropout rate is due to actual age discrimination, we can be quite certain that age discrimina- tion is among the causes of these problems. I have always been impressed by the fact that when the Packard plant shut down permanently in 1956, a research study I conducted found that the big three auto companies in Detroit did not discrimi- nate between Negro and white ex-Packard workers. Ex-Packard Ne- gro workers had just as good a chance of getting new and decent jobs with these companies as did the whites. I don't think it was a PAGENO="0087" AGE DISCRIMINATION IN EMPLOYMENT 81 coincidence that the State of Michigan had a fair employment prac- tices law prohibiting job discrimination on the basis of race. But the picture was not the same when it caine to age. While nearly 60 percent of the young ex-Packard workers-under 45-found new jobs with the Big Three; oniy 30 percent of those 45-54, and only 15 percent of those 55 to 64, found jobs with the Big Three. These older workers were no less qualified to work in an auto factory than the younger ones. I have often wondered what has happened to these Packard work- ers over the past 10 years. More important, what might have hap- pened to them if there had been legislation, either State or Federal, which prohibited job discrimination on the basis of age. I have al- ready stated that at least among the larger companies, such as in the auto industry, racial discrimination was nonexistent, and I at- tribute a good part of this to the State FEPC law prohibiting race discrimination. Furthermore, Negroes hired by the Big Three obtained jobs at wage rates equal to or better than their wage rates paid while at Packard to the same degree as did whites. This one case study certainly suggests that the same beneficial results for older workers could be obtained if we now had laws pro- hibiting age discrimination in employment. One of the arguments frequently posed against age-discrimination legislation is that age is not the reason for the problems of older jobseekers-that the real reason is that they happen also to be less skilled than younger workers, and that employers naturally will choose the better skilled job applicants who just happen to be younger. As on so many other issues in our society today, this is an over- simplified argument. There are dozens of reasons-not just one- for the disadvantages of older jobseekers, and lower education or lesser skills may be only one of the many reasons. This is why manpower training programs must improve the pro- portion of older workers who obviously need skill upgrading. MDTA still has a long way to go. I am the first to admit that legislation prohibiting discrimination-whether it is against Negroes, women, or older workers-will not be the total solution for all the job prob- lems of such disadvantaged groups. There is no such thing as a total solution for any kind of problem, despite the naive search for panaceas on the part of many sincere people. But if skill level is the simple explanation for the problems of older jobseekers, why is it that age was a much more important deter- minant of job-finding success than skill or education among the Packard workers in 1957 and 1958? Why is it that in a more recent study in 1964, by the Upjohn Institute, we found that among skilled workers all of the younger skilled men found new jobs, while 38 percent of the older skilled workers were still unemployed? In this more recent study, based on interviews in Erie, Pa., we not only found that older skilled workers had more trouble getting new jobs, we also found that among those who did find new jobs their wage rates on the new jobs were below the rates they were paid on their previous jobs. Here is a case, then, in which skill levels did not guaran- tee immunity to older workers. And before I ~forget to say so, I should make clear that I am not talk- ing about 65- and 70-year-old skilled workers when I use the term PAGENO="0088" 82 AGE DISCRIMI~ATJON IN EMPLOYMENT "older worker." In our study, an older worker was anybody over the ripe old age of 38. It so happened half of our sample was over 38, so we had a 50-50 division in our sample to separate the young from the old. If something else besides age is the explanation for the problems of older workers, why is. it that, in another recent study of hard-core un- employed in Detroit, it was found that even when every other factor was taken. into account-by means of the most sophisticated type of statistical analysis, multiple-classification analysis-age was still found to be significantly related to the unemployment status of the workers studied? This same study revealed that out of a total list of eight factors, age was the fourth most important explanation for the problems of these hard-core unemployed workers. My main point here is that. pure and simple age discrimination is among the important factors that cause serious economic and personal problems of unemployed workers-even among skilled persons and often among technical and professional people, too-and that intelli- gently designed legislation can make a major contribution toward elim- inating such discrimination, and, hence, reducing the economic and personal problems. I would like also to put in a plug here for the need to advise the De- partment of Labor, notably through its Employment Service, to abide by the same principle embodied in the proposed legislation. H.R. 422~ states that it shall be unlawful for an employment agency to discrimi- nate against any individual because of his age. In the Upjohn study I have already referred to, we found that, if the older workers went to the local employment service for help in finding a new job, more than one-half of them reported they receiv~ed no help at all, in contrast to less than two-fifths of the younger workers. By help I mean job counseling, referral to MDTA, referral to an em- ployer, preparation for a job interview, and so on. The main point of all this is that if the personnel in a local employ- ment service office know that there is a law against age discrimination they will be more likely to give more help to older jobseekers, such as the important step of refe.rring them to employers for a job interview. At the present time, many employment service personnel will hesitate to refer older workers to certain employers if they know or believe, that such companies will not hire older men nnd wowen. There is also the possibility that such personnel themselves might be practicing-con- sciously or unconsciously-their own form of age discrimination in the course of their work with people coming to their offices. I am happy to see that the Department of Labor is reviving its con- cern with the problems of older workers, and has created a staff to deal with them. Secretary Wirt.z has testified before other committees that this is a problem. Equally important, Secretary Wirtz just appointed a. Mr. Charles Ode.fl, who for the last 10 or 15 years has been dealing with the problem of older workers, so I am optimistic about the future except this still depends on persoi~nel, not law. Charles Odell will not `be USES Director forever and Secretary Wirtz will not be .Secret.a.ry forever. There has been ups and clowns in this type of interest. In the early 1950's there was a furry of studies and the appointment of special staffs. But they weren't eranent. In the micl-1950's, there was a PAGENO="0089" AGE DISCRIMINATION IN EMPLOYMENT 83 Special Assistant for Older Workers, but after 2 years there was no Special Assistant. In 1957, funds were made available to assign older worker specialists in every State employment service headquarters and in the local offices of more than 100 large cities. But several months later there were virtually no such specialists to be found in these offices. If my remarks today mean anything at all, the problems to which this subcommittee is addressing itself require more than temporary play acting, on the level of window dressing. The proposed legislation that you are dealing with will go a long way to eliminate the here- today-gone-tomorrow pattern of attention to the older-worker problem within the Department of Labor itself. There are many other arguments against such legislation that you have heard and that you will no doubt hear in the testimony for these hearings_-in addition to the one relating to the educational and skill obsolescence of older workers seeking employment. They include the arguments about the cost of pensions, workmen's compensation and disability costs, costs of health insurance, and related arguments. I am no expert on these matters. But I do believe that, under the pro- posed legislation, employers can and will find ways of solving these problems. More important, I would argue we have not yet done the definitive study to test the argument, really prove it or disprove it that older workers cost more. You know these studies can be sliced many ways. People can forget to include certain benefits or certain costs. They are not total in their costs. They might restrict themselves to costs to the company directly and not costs to the community in taxes and so on, which the company also pays. These problems spill over into more than the obvious ones directly related to not being employed because of being old. Furthermore, I am not convinced that in every case these types of stated problems are the real problems. Too frequently the real problems come down to subtle attitudes and stereotypes about older persons. The term itself often makes people think of an 80-year-old man in a wheel- chair_-or at best, a rocking chair. On the contrary, we are talking about significant segments of our labor force who are well below the age at which people ordinarily re- tire. We are talking about adult men and women whose economic and personal resources, while they are breadwinners and parents, will be primary and direct determinants on their own future odds against long-term unemployment and permanent poverty_-as well as the deter- minants of the future of their children. By enactment of a law elimi- nating age per so as a barrier to employment, Congress ~vilI not only be assuring equal economic opportunity for the older worker of today, but also for younger workers who themselves will not remain young. There is only one alternative to becoming old. Mr. DENT. That is death. Dr. SHEPPARD. That is right. Mr. DENT. Thank you, Dr. Sheppard. I am at the age where I fully appreciate page 11, your closing page. Dr. SITEPPAED. I am now at 45 myself. Mr. DENT. A lot of us are pushing 60 and may look a little old and decrepit, but I don't think we feel that way and we hate to think that actually we could be relegated to the scrap heap of unemployed per- PAGENO="0090" 84 AGE DISCRIMINATION IN EMPLOYMENT Sons. It is a serious thing to contemplate; and there is nothing more pathetic, in my opinion, than the closing down of a community's only employment-sustaining operation. I have seen it often in my region, coming from the coal mines, and then the steel fabrica.tors and producers of secondary manufacturing products which are gradually dropping out because of the automation, monopolization, and importation. And I say there is nothing more pathetic than a person over the age of 40 who has been working for the single most important employer in the community when suddenly that place shuts down. It is something that is terrible to behold when you see 800 or 900 meii suddenly without work and no alternative employment readily avail- able. It is happening right now in the original kitchen utensil plant in the United States, which is moving out lock, stock, and barrel. These workers have an average of 27 years of service and there is absolutely no future prospect -for them. If they do have a prospect it. is to move away, uproot their family from their friends and associates they have known, and move to a strange community. I think it is the most pa- thetic thing in an industrial complex when a plant c-loses down and a group of people or families find themselves strangers within 48 hours. Your efforts in your fight for older people should give you a personal satisfaction. Those of us who have- read some of your material are very pleased with the research you have- done. I notice you read the figures on page 8 dealing with the. study made by, I think, Wachtel, on the hard-core unemployment in Detroit. Now, the summation or analysis of his figures, to my mind, would show im- mediately a very misleading finding because unless that study was only concerned with those over 45 or over 40 years of. age, then the eight factors that were used in the research would not be a true figure of the findings on the aging because you say- Dr. SHEPPARD. This was not a. study of older workers. It- was a study of all hard-core unemployed. Mr. DENT. That is what I am driving at. Since it- was a study of all hard-core unemployed, his study on each of the eight factors and the causes for unemployment, while-the age problem is fourth in the total study, it could be No. 1 in the case of the workers over 45 years of age and. t-herefore, that ought to be refined so that this picture that we aie trying to study will be clear. Dr. SHEPPARD. It is at least the fourth most important. Mr. DE~r. If it is fourth in importance in the whole study of un- employment, it has to be near the top when you are dealing with those 45 years of age. What were one, two, and three : do you know? Dr. SHEPPARD. I think there is an omission in the footnote. I think it was in the 1965 proceedings of the Industrial Research Association. One was education and another was previous skill level. I can't remem- ber the others right now. Some had to do with rural-urban origin, an- other was race. That is about five. I can't remember the other three. Sex ma-v have been another. Mr. DENT. I have instructed the staff to get a copy of the study. Is this the right one to get? Dr. SHEPPARD. If I am wrong on the year of the proceedmgs, I will let you know. Otherwise it is the 1965 proceedings published in Math- son, Wis. PAGENO="0091" AGE DISCRIMINATION IN EMPLOYMENT 85 Mr. DENT. Mr. Erlenborn? Mr. ERLENBORN. In your opinion, why is it we have developed this age discrimination? What factors are involved? I can think of some that might be, for instance, if it is necessary to upgrade skills, you probably would get more returns from a young man with upgraded skills. Dr. SHEPPARD. On the last point there is a study that shows older workers have lower absentee rates, lower accident rates on the job. This is what I referred to earlier when I said they don't put all of the formula into the computer and come out with the final figure. Secretary Wirt.z released a study about 2 years ago of what they were told by employers. Many mentioned the pension costs and other types of costs. But nobody asked for data to prove or disprove it and what would offset it. This is what I mentioned before. It is in general partly the fact the older worker has less education than the younger worker. I am talking of the unemployed. The average older worker may have skills making him less obsolescent. This legislation does not say an older, stupid worker, let us say, has to be hired by an employer. It says, if he is qualified on every other count, age should not be used against~ him. It has become a problem primarily, I believe, because of the attitudes about the older worker which are not all founded in fact. After a while it is just like. in the studies of other minority groups-you ca.n ma.ke an analogy-older workers come to believe what society believes about them and in some studies I have seen before a.nd studies I have done myself, you can ask workers how old t.hey feel to be. If they themselves consider themselves young, even though chronologically they are. con- sidered old, they will act young in what they do t.o get a job. Vice versa, if you ask a worker chronologically young how old he thinks he is and he thinìks he is old, he will act old in terms of trying to get a job. What we had to do in South Bend, the reason we had to have a Project Enable there, we found many of these Studebake.r workers said, after t.he plant shut down, "Nobody wants me; I am too stupid to learn," and so on. So t.hey had to create a staff. Many were ex-Stude- baker workers. They had to knock on the door a.nd give them counsel- ing. In many cases they were subprofessional counselors. They had to convince these people t.hey were not too old and convince employers they were not too old. It should not. be necessary t.o have special. projects every time a crisis occurs. We have to have these projects now because we don't have legislation that automatically takes care of discrimination against the older workers. Here again is more cost. It costs more for these ad hoc projects than to have a routine legislation that takes care of these older workers. Again, we have iiot put into the computer the costs for not. having the legislation. Mr. ERLENBORN. Do you see in this law some classes of employment that may require younger people. As a poor example, let us say, a "bunny girl." Dr. SHEPPARD. Did you say a poor example? Mr. DENT.. We should first see how many girls apply for them. Dr. SHEPPARD. I believe in all laws there are problems of adininistra- tion, but they should not be used as arguments against the legislation. PAGENO="0092" 86 AGE DISCRIMINATION IN EMPLOYMENT The crucial point is the ability to apply for the job. If an older woman wants to apply for a Bunny job there should be counseling and not enforcement of that law. But as long as you keep the crucial criterion the ability to do the job, I think you have solved a great deal of the problem. Mr. ERLENBORN. In most laws we have found some flexibility to get around these problems. In my State of Illinois when we debated the passing of the Fair Employment Practices Act, one of the examples used was the inapplicability of such laws to employment in a Chinese restaurant. Pretty generally you like Chinese waiters in Chinese restaurants. I don't believe there has been any great problem, so I believe there are ways to solve these problems. Dr. SHEPPARD. There is a rule of reason, I hope. That reminds me of a joke about a Japanese waiter in a Jewish restaurant. I think there are always problems of administration and again it comes down to Congress watchdogging the administration of the laws and having a complaint procedure that can bring to the attention of others violations of the law. Laws don't enforce themselves, that is true. Mr. DENT. When we had the hearings and I handled the legislation one witness made the observation that the only difference between a Chinese waitress and our waitresses in a Chinese restaurant was a kimono. You can't tell the difference sometimes because there are no lights. Mr. Hawkins? Mr. HAWKINS. I would like to say I have had the opportunitST of reading many of the reports of the Upjohn Institute. I would like to recommend those reports. I have always found them to be niost help- ful and certainly your statement this morning I think reflects the quality of the work that goes into these reports. I have a couple of questions I would like to ask. You have empha- sized the fact that the MDTA is not training enough enrollees, not having enough enrollees from the older group. Why do you think this is so, that they are not training the older worker? Dr. SHEPPARD. There are three general categories, I would say. One is at the screening station itself. Let us say in the employment service office, there is, I believe, a pattern of discrimination against older workers. How do you prove it or disprove it? There are indirect ways. One of the reasons they might discriminate is that they believe the employer is not going to hire them anyway; so, wily go throngh the trouble of getting them trained and then not have them employed? That is the second category-employer discrimination. The third reason is that older workers are sometimes reluctant to apply because they do not believe, many of them-I don't want to create another stereotype-but a higher percentage of the older un- employed workers compared to younger unen~loyed workers believe they cannot be trained for new skills. Two solutions for the third problem come to my mind. One, they haYe to be colmseled about changing the image they have of them- selves. Not every counselor is qualified to do that. Second, we need to develop new techniques for training older workers. They learn under different situations and different techniques and I must sa to the credit of the Department of Labor they are now financing one ex- periiñent in New Haven where they are taking older hard-core un- PAGENO="0093" AGE DISCRIMINATION IN EMPLOYMENT 87 employed and using the consulting services of a British psychologist who spent a lot of time on this with the OEOD in Europe. They have an experimental group training older workers and they hope as a result to diffuse this throughout the country for specific skill's. There are three area's-the employment service discrimination, whether unconscious or conscious; the employer patterns; and, third, beliefs of older workers themselves. Mr. HAWKINS. In your statement you endeavor to emphasize the more subtle types of discrimination against the older workers and to a large extent discount the economic reasons or what might be con- sidered real reasons, not imagined reasons.' Yesterday a witness indi- cated that a voluntary educational program might be a better solution than passing a law such as the one now being proposed. Do you believe the problem is to a large extent imagined and do you `believe the prob- 1cm can `be reached by voluntary effort in an educational program for a law of this nature? Dr. SHEPPARD. For the last 10 years I have been hearing that. I have heard it much longer in race discrimination. I believe it has to be accompanied by a law in order for it to be effective. I would hope if this bill were passed it would include provisions for an educational program both among the employment service agencies, private and public, and among employers, public and private. I don't think the strictly voluntary approach would be financed to the extent it should be, and, No. 2, would have the effec't as `soon as we wanted it to. Mr. HAWKINS. Thank you, Dr. Sheppard. Mr. DENT. Thank you, Mr. Hawkins. Mr. Scherle. Mr. SCHERLE. Good morning, Dr. Sheppard. It is a pleasure to' have you here this morning. Dr. SHEPPARD. Thank you. Mr. SCHERLE. To pursue one question asked by my fine colleague from California with regard to discrimination in the OEO. I think it would be complementary to the department or organization if they did use some of the older people for their wisdom, their knowledge, and their experience and stability. I think they could add tre- inendously to this program. Dr. Sheppard, is this more or less the well-known Eagles bill? Dr. SI-IEPPARD. The bill we are now taking up? Mr. SCHERLE. Yes. Dr. SHEPPARD. I don't know what organization sponsors. this bill. Mr. SCHERLE. The reason 1 ask is that in the legislature we did have firm backing from the Eagles and I favored the bill at that time and now as well. I am not certain whether the measure was ever passed in one or both of the Houses, but I am sure it deserved a great deal of consideration and certainly has a great deal of substance to it. I notice certain reasons why these older people are not being hired and there is one problem that I am fearful will probably take a great deal of work before any solution can be reached. I do know it is a concern of business along the lines suggested in your statement. The third paragraph of your statement reads, on page 10: They include the arguments about the cost of pensions, workmen's compensa- tion and disability costs, costs of health insurance and related arguments. PAGENO="0094" 88 AGE DISCRIMINATION IN EMPLOYMENT Yougo onto say: I am no expert on these matters, but I do believe under the proposed legisla- tion employers can and will find ways of solving these problems I think if this could be clone the success of this measure would be greatly enhanced because I do think it is a problem with industry to- day trying to find a way or method to alleviate this additional cost, particularly as it relates to hiring older people. Dr. SHEPPARD. Assuming it is additional cost, I still have enough faith in our American business system to find ways of solving prob- lems imposed on them in a much more efficient way than if we leave the problem solving up to the individual older worker who does not have the knowledge or know-how. Mr. SCHERLE. Do you have a suggestion? I am certainly in s~-m- pathy with you on this. Do you have any suggestions or recommenda- tions to make that could help industry solve this problem, their giving these older people an opportunity to serve out their lives in profes- sions in which they were trained and in which they could continue working? Dr. SHEPPARD. I would say there are experts, if such a law were passed, on how do you assess the alleged costs. You have to first prove the additionai costs. I don't have the answer myself. Mr. SOHERLE. If this solution could be given to Congress prior to voting on this legislation, it would greatly enhance passing of this. As you mention here, if this type of information could be worked out or some kind of statistical report given that could alleviate the fears of industry, then I think it would enhance the passage of this piece of legislation more so than to pass it and say we will try to figure it out later on. In other words, forewarned is forearmed. Dr. SHEPPARD. I don't want to claim to be an expert on the legisla- tive process. I am still trying to figure that one out. But there are precedents, I understand, for passing a law with its implementation date starting a certain time after a study finding or study report find- in~s are submitted and I would worry, being so much concerned about this problem, that study very often can be used to delay and put off and kill. I believe that we have enough data that could answer the problem while passing the bill, at the same time with an implementa- tion date sometime after the date of the passage of the law. There are precedents for this sort of thing. If we are really concerned about this problem, I think if I were in your shoes, and I am not, I would take the position of voting for the bill with the proviso about. these studies as part of that bill. Mr. SCHERLE. This may be true and I am entirely in sympathy with this piece of legislation and I am trying to help it as much as I can. My concern is this, that the more supplementary material you have. the more background you have at your disposal is perhaps 99 percent of the passage of any bill. Dr. SHEPPARD. I would certainly be willing-I am sure this can be done directly with the staff of the subcommittee-to contact the De- partment of Labor, because they have been accumulating material on these questions for the last 5 years that I know of, and private specialists in the field of pension costs and other fringe costs with ref erence to hiring workers in different age groups, but more important PAGENO="0095" AGE DISCRIMINATION IN EMPLOYMENT 89 experts who have alternative solutions in mind. It is quite possible that certain types of industry, certain types of occupations, might give you a factual answer, but that does not give the answer to whether you should vote for the legislation. What we need are solutions for the obstacles people put up. Mr. SCHERLE. I am not sure, but if I may make a suggestion, the consideration of this bill would be greatly endowed if material for a study could be found before voting on this piece of legislation. My other question: is this legislation enforceable with regard to a person applying for a job? How do you get over the hurdle of the problem of proving discrimination based upon age? Dr. SHEPPARD. There are at least two ways in which we have been gaining experience in discrimination in minority groups. One is to have such an individual file a claim of potential or ostensible dis- crimination because he says on every other grounds he is qualified for the job; or, secondly, you can use aggregate studies showing the age distribution of industries, occupations, or given companies, and you would work with these companies through conciliation for the first stage. In our experience, so far, this retail conciliation approach works out. If it doesn't work out, then there are the courts. Mr. SCHERLE. This is a good idea. I am glad you brought that up. If a person makes application for a job and he feels he has been dis- criminated against purely because of age, no other conditions or reasons, is it possible to tie this company up in litigation so they must prove that there was no discrimination? Dr. SHEPPARD. I don't know what you mean by tying them up. The company could go on producing. Mr. SCHERLE. If this legislation has teeth in it and a person makes application for a job and a commission has been set u~ prior to this to enforce this piece of legislation, then if he makes application for a job and does not receive this position, can he file a grievance or complaint? Dr. SHEPPARD. I am looking for my copy of the bill, but I am sure the chairman can answer that. Mr. DENT. Yes, he can file a complaint. Mr. SCHERLE. This is fine. After the complaint is filed, what hap- pens to the employer that has been accused of discrimination? Will this take a raft of lawyers or litigation? Mr. DENT. Mr. Scherie, I might say only in extreme cases because 90 percent of the cases from historic patterns of other discrimination legislation, for instance, FEPC on State levels, they have discovered that better than 90 percent of the complaints are resolved by con- ciliation and negotiation before it ever reaches any part or point of a litigation. Mr. SCHERLE. Yes, but, Mr. Chairman, by the same token these people are still being `tied up. This is in addition to legislation already on our books. In other words, what I would like to see is that this piece of legislation perform the function for which it is designed and intended. I would most certainly hope we can eliminate age discrimi- nation. I am hoping a harmonious relationship could be reached between the applicant and employer rather than have this piece of legislation unduly burden all concerned. PAGENO="0096" 90 AGE DISCRIMINATION IN EMPLOYMENT Dr. SHEPPARD. The very existence of such a piece of legislation would increase the .poss~bility of harmony between employer and applicant. Mr. SCHERLE. Thank you for your statement, Dr. Sheppard. Dr. SHEPPARD. Thank you. Mr. DENT. Mr. Erlenborn has one short question and the House has decided to go into session at 11 o'clock. After Mr. Erlenborn's question we will proceed with Mr. Hutton as long as we can. Mr. ERLENBORN. I would like to ask this one question. I am sure there are agreements, collective-bargaining agreements, for instanc.e~ that provide for cessation of a particular type of employment when a certain age is reached. Will they be made unlawful by the passage of this act? From quick reading I would say yes, they would be. Mr. DENT. I might answer that by saying "No." However, the coin- mittee discussed this very problem on the present hiring contract, in a prac.t.lcal sense, with the Secretary of Labor in his appearance the other day. We brought up the airline hostess and the Secretary agreed to work with the committee to arrive at some sort of formula not to upset standards of present hiring agreements in areas where they are necessary to keel) from having present hiring agreements that turn out to be capricious in their limitation by the companies or employees in some instances. Mr. ERLENBORN. You are planning some amendment? Mr. DENT. Yes. Thank you very much, Dr. Sheppard. I wish we had more time and more people because I think your testimony has been very helpful. The next witness is a longtime friend who has a long history in dealing with senior citizens. I don't Irnow why, because he has more pep than many of us. Our next witness is William H. Hutton, executive director of the National Council of Senior Citizens. STATEMENT OP WILLIAM H. HUTTON, EXECUTIVE DIRECTOR, NATIONAL COUNCIL OP SENIOR CITIZENS, INC., WASHINGTON, D.C. Mr. Htrrrox. I wish to apologize for the absence of my friend, Mr. John Edelman, who could not be here. We have a delegation from the Washington council who are sitting in the back of the hail who want to show they are behind this legisla- tion. They have had it. explained to them and ciisussecl it in their meetings and entirely support this legislation. The majority of the members of the National Council of Senior Citizens are considerably over 65 years of age. Unless the Secretary of Labor, under section 10 of the Age Discrimination in Employment Act of 1967, provides for an adjustment in the maximum age limit, very few of our members will be directly affected by the bills we are considering today. Nevertheless, the National Council of Senior Citizens expresses its complete support for this proposed legislation to ban discrimination in employment on account of age. . The majority of our members have already suffered because of age discrimination in employment in earlier years. And many of them continue to suffer now-not only because of the reduced standard of PAGENO="0097" AGE DISCRIMINATION IN EMPLOYMENT 91 living, which has resulted from this discrimination, but also because they see the same age discrimination affecting their children, who are now over 45 and reaching the dangerous age for employment in America. Frankly, the serious manpower shortages which are now developing throughout the Nation cry out for Congress to pay new attention to employment of the elderly as a matter of national policy. Current shortages of skills in defense-related industries are a matter of serious national concern. But we have permitted our entire society to be- come so youth-oriented that those over 45, without jobs, have been sw-ept away in a backwash. And to justify this blatant discrimination against the elderly worker we have promoted one myth after another to help employers ration- alize hiring practices based on the theory that a young labor force guarantees greater performance and less overhead. One of the prejudices we have used to hire the younger worker in- stead of the man and woman over 45 is the canard that it costs much, much more to hire older workers. A recent Department of Labor study shows that putting a.n older worker on the payroll, including all fringe benefits, costs an average of just 5 cents an hour more tha.n a younger worker. We have heard that older workers are absent more-but the truth is that older workers actually lose few-er days from work, they are just as adaptable, their average performance is as good as, and some- time better, than younger workers. Clearly, the most serious problem of the elderly is financial insecu- rity. And basic to secure retirement living is the nature and extent of one's employment before retirement. Of the over 7 million Americans over 65 who are currently living below the poverty line-if studies undertaken within our own organization are anything to go by, a large majority have suffered from considerable discrimination in em- ployment for over 20 years. They had just entered the dangerous age when World \Var II ended and many of them lost out in the. fierce competition for jobs which followed demobilization. They have been losing out ever since. They have no savings, they live on public assist- ance or on inadequate social security, and they have little hope. It has been variously estimated that not more than 1124 to 2 million over-65 elderly would be physically capable of accepting full-time or part-time employment or even after adequate retraining. But if Congress could help the over-65's to find jobs, where they are willing and able, we might be able to cut in half the number of elderly who are still on relief rolls. And Congress would strike a blow for human dignity. But age discrimination in employment is a much more serious bur- den on this Nation than merely the plight of the over-65's, as serious as their problem is. Time magazine recently said that the estimated cost of this coun- try's outmoded prejudices against hiring workers over 45 is over $4 billion a year. Yet arbitrary discrimination in hiring-unless it is checked now-will become even more costly to the Nation as tech- nological developments make physical labor more outmoded and changing job specifications, changing education requirements, and changing personnel practices, demand more sophisticated judgment and experience. 85-376-67----7 PAGENO="0098" 92 AGE DISCRIMINATION IN EMPLOYMENT WTe believe the education and research program provided by this bill and the Prohibitions of age discrimination which it. includes are vital first steps in what we hope will be the development of a. sane manpower policy for America in this day and age. We also believe that., for those 65 aiicl older, an enthusiastic response to this bill b Congress would stimulate employment opportumties which could provide needed supplemental income and a productive use of free time and, consequently, a relief from the loneliness and boredom suffered by the retired. What incredible blindness has met this ~ benighted generation of Americans who hit the ove.r-45 and over-SO skids just after World War II and who, by the dubious grace of modern science, have had their lifespan extended into the souring seventies. Most of them, more often than not, felt age discrimination in one way or another and had difficulty in holding onto jobs even though the American economy was mushrooming like an atom explosion. The technological changes of the past 20 years have blown away many of the olcitime patterns of employment. It used to be that. trades were learned in youth and persons continued to work at. their trade until death or retirement. A skilled man in middle age who loses his job will seek to carry on his trade in a new place of employment. But if his skills are obso- lete or too specific he is unlikely to obtain other skilled work and he may be obliged to enter the ranks of the semiskilled or unskilled-with c.onsequent. loss of status and income. Older workers who have received no training in youth are the most unfavorably placed. Their choice of jobs in the labor market. is usually confined to those that others would not. accept. There is evidence, for example, that older workers will even gravitate toward the heavier jobs, though this is obviously unsuitable on health grounds. As the choice of alternative work becomes more restricted, labor turnover declines sharply with age. In the early years of adulthood when choice is at. its widest, voluntary change is the most important general reason for changing jobs. But by the middle 50's there is evi- dence that job loss outweighs all other reasons. Older workers will not c.haiige jobs unless they are obliged to do so. Their reluctance has an objective basis. Should the continuity of their employment, be broken their chances of getting back into the labor force are appreciably worse than that of younger persons. Frequently oldler workers have been undleremployedl or employed in a position requiring far less than their skills. And when layoffs have occurredi, they have been forced into unwanted retirement. be- fore they were either financially or emotionally prepared for it. Gen- erally speaking, however, dhscrunmation in hiring against, the older worker has affected mostly those with lower skills, with less oppor- tunity to prepare financially for later life, with less job stability and therefore little or no Private pension benefits-so these workers have been forcedl to leave on inadequate social security benefits or public assistance. And it is precisely at this stage in retirement that the post-Worldl War II elderly get their second and most. severe diose of discrimina- tion. They represent 1 in 5 of the Nation's total poor and 3 years ago the Nation decidledl to launch a major war on poverty, with our troops marshaled by the Federal Office of Economic Opportunity. PAGENO="0099" AGE DISCRIMINATION IN EMPLOYMENT 93 The antipoverty program has brought significant benefits to this Nation already and the prospects are even more hopeful. One can only hope that this present Congress will give the poverty program a strong overall vote of confidence and vote expanded funds to continue the task which has barely begun. V\Te see the vital necessity of seeking to change the patterns of pov- erty in youth and we recognize that the same case cannot be made for antipoverty programs for the aged as those for younger persons. Nevertheless, even in the antipoverty programs, the elderly have been sorely discriminated against. It is agreed that the elderly poor represent a minimum of 1 in 5 of our total poor. Even the most youth-oriented bureaucrat, you might believe, would not think it unusual if he had to spend $1 in $10 of his available budget for antipoverty programs for the elderly poor. Would you believe that OEO-even by the most conservative esti- mates-has spent less than $1 out of every $50 on antipoverty, programs for the elderly who make up one out of every five of our total poor? Last year Congress passed an amendment to the Economic Oppor- tunity Act to give the Nation's elderly a presidentially appointed Assistant Director of OEO for Programs for the Elderly. President Johnson clearly supported this congressional move by backing it. with a high-caliber appointment. He named Miss Genevieve Blatt, a distinguished public servant and former secretary of state for your own State of Pennsylvania, Mr. Chairman. WTe believe, Mr. Chairman, that Congress must. now earmark funds for programs for the elderly poor to insure maximum feasible partici- pation and to remove that final degrading discrimination which comes to the elderly poor even in the antipoverty war. I would like to omit certain items of the testimony and take high- lights because I know you are short of time and I would like to com- ment on some of the testimony you had yesterday. Mr. DENT. I might say at this time, isn't it a strange situation where we have a presidential appointment, a lady from my own State, but she has not attended one of these hearings. Mr. HUTTON. Congressman Claude Pepper of Florida. has introduced three amendments to the antipoverty bill' which wil do much to end the discrimination against the elderly in OEO programs. We earnestly hope these amendments win the full support of the entire Congress. Mr. Chairman, the National Council of Senior Citizens commends these bills not only because they offer flexible procedures for eliminat- ing discrimination in hiring but also because they provide for research of problems of older workers and for fostering job opportunities for these services through the public employment service. It is clear that the old line agencies have just as much of a problem as the OEO when it comes to discriminating against the elderly. Ex- perience under the Manpower Development and Training Amend- ments of 1966 reveals that since inception only about 10 percent of all trainees have been 45 years of age and older. During the same years, workers in this age category have made up between `25 and 30 percent of the unemployed and a~ substantially higher proportion of those unemployed 15 weeks or more. Frankly, I believe that this House committee should call for an im- mediate review of all Federal employment and job training programs to determine the number of elderly benefiting from these programs. PAGENO="0100" 94 AGE DISCRIMINATION IN EMPLOYMENT Despite Congress' specific amendment to the Manpower Develop- ment Act last year providing for positive action to alleviate the em- ployment problems of elder workers through testing, counseling, selection, and referral for occupational and educational training, the inescapable fact remains that improvement has been minimal. No more than 11 percent of those 45 and over and less than 3 percent of those 50 or over are enrolled for employment or training under Federal programs. For example, for the concentrated employment program (CEP) being operated presently in 19 cities at an estimated cost of approxi- mately a quarter of a `billion dollars, the National Council of Senior Citizens can get no information indicating that the elderly are bene- fiting in any substantial numbers. This certainly seems to be tnie under the `Washington, D.C., program being administered by Washington's local antipoverty agency, the United Planning Organization. The District of Columbia program recently held an orientation program for a large group of which the eldest enrollee was 28. We strongly suspect that CEP outside the Washington area are no more concerned about training the elderly than the Washington program seems to be. Maybe Congress should make it mandatory to enroll 30 percent of all trainees in MDTA or other Government programs from the uriem- ployed aged 45 and over. The great urgency to enroll young people for job training is under- standable in the light of the outbreaks that have occurred in slum areas of our major cities. While the elderly may not have had a part of these outbreaks it must be difficult for them to hold the younger elements of their families together, and keep them out of violence, when age discrimination in employment has kept them living from hand to mouth, incapable of supporting a decent standard of family life. The pattern of age discrimination is incredible really-for the great- est nation on earth. "Too old at 45" is the accepted pattern of private industry. Those who have decided the priorities of the fledgling Gov- ernment newcomer, the Federal Office of Economic Opportunity, have urged concentration of breaking the poverty cycle of youth-the old line agency responsible for our manpower development programs, despite congressional urging, has failed to stimulate private industry, State and local government or other agencies to anything but a luke- warm reaction to the plight of the middle age and elderly worker. Mr. DENT. Mr. Hutton, the members would like to ask you some ques- tions. If it is not an inconvenience, we will go over and answer our call and come right back. We should not be more than 15 or 20 minutes. Mr. Hu1'~roN. Twill wait. Mr. DENT. We will stand in recess for about 20 minutes. (Whereupon, at 11:20 a.m., a recess was taken until 11 :50 a.m.) A~PER RECESS Mr. DENT. The time of the recess having expired, we will return to the record and continue with our witness, Mr. Hutton. Mr. HUTTON. Thank you, Mr. Chairman. Perhaps the strongest aspect of these bills is the recognition that only the establishment of a Federal law with enforcement procedures PAGENO="0101" AGE DISCRIMINATION IN EMPLOYMENT 95 will finally bring an end to the discrimination. The National Council of Senior Citizens is wholeheartedly behind this approach. We sincerely hope that this committee will reject the plea made here yesterday by a witness for the U.S. Chamber of Commerce, offering another public relations program instead of a Federal law. "To us," said the U.S. Chamber witness, "the problem can only be finally solved by an educational and public relations campaign de- signed to dispel the misconceptions * * ~" et cetera. The elderly need job opportunities, not public relations programs; they need retraining opportunities, not study commissions; they need a law which says there can be no discrimination because of age, not the same ~id voluntary system which has discriminated against them for many years. And our national economy demands enactment of these bills as much as the elderly needs them. I suspect that the principal result of another public relations cam- paign would be to increase the employment of young public relations men. If industry sells Congress on the idea that the problem can only finally be solved by a public relations program, I wonder how long it will be before the trade associations begin their new public relations programs to combat the Government's public relations program? It is clearly essential that the legislation should make it unlawful for an employer to discriminate against any individual because of age, either with respect to wages, conditions, or benefits. Too often private employers have made the existence of minimal pension plans or health plans the subterfuge for not hiring the elderly worker. Since the introduction of the medicare program there have been many changes in existing fringe benefits for older workers negotiated in collective-bargaining agreements-and the bargaining table is the proper place for seeking solutions to any problems which may arise. I am sure it is perfectly capable of handling these problems in connection with any pension plans and in connection with any health programs. There is evidence that a maj or deterrent to successful employment of the elderly has been lack of readiness of large proportions of the older work force for the kinds of jobs that are currently available. This is often due to a lessening of physical powers as well as a lack of basic educational skills. In addition there may be emotional re- sistance toward job change, training, or relocation. To help over- come these deterrents there is a great need to develop, adapt, and apply techniques and information that can help deal effectively with the problems that are peculiar to older workers. The education and research provisions of the legislation are essen- tial if we are to change our costly prejudices against the older worker and give him a chance. America cannot afford the continuing waste of productive people who are not producing. But methods of training older workers have not yet reached the level of refinement of the more traditional science of training children and adolescents. This inadequacy is all the more remarkable at a time when the need to learn 1S no longer considered to terminate at the conclusion of school or university. To participate fully, freely, and productively in the economic and social development of America during their work life, adults must continually be acquiring new knowledge and new skills. PAGENO="0102" 96 AGE DISCRIMINATION IN EMPLOYMENT An active manpower policy calls for the utmost flexibility in the use of human resources. Economic and technical development demand individual and group changes, not only from one occupation to an- other, but from one sector to another. To adjust to these changes in occupation, learning and relearning are essential. There is growing evidence that learning and training are possibl&- even in the higher age groups-providecl that the conditions necessary for such training are established and the methods used are suitably adapted to the ever-changing human capabilities and needs. One of ~he areas which the National Council of Senior Citizens believes holds great promise is in promotmg the training and utiliza- tion of the older worker as ancillary persoimel such as home health aides, school teacher aides, neighborhood service worker, recreation worker aides. et cetera. In providing outreach services to disadvantaged older persons for example, the use of trained indigenous older workers is particularly desirable because of their intimate familiarity with the life, culture, and special needs of the disadvantaged. The training and utilization of such subprofessionai. supportive personnel should help meet the shortage of professional workers and provide the elderly with inter- est ing and constructive employment. Legislation now before both Houses of Congress which seeks to es- tabhi~h a Senior Citizens Community Service Corps is being earnestly supported by our affiliated groups in all States. That. conciude.s my statement, Mr. Chairman. I want. to say how much we support and welcome this bill and tins legislation. Mr. DENT. Thank you, sir. I noticed earlier in your testimony you touched on tile fact that this iegisiation would be of little or no help in- clividually and collectively to those whom you represent ifl tile coui~cil. However, you did bring out a~ very telling point in that the cbs- crimination prior to the age of 65 makes it. that much more difficult for those persons who have been c1isc~jminatecl against to be able to care for themselves after they are 65. The fact. that von catalog tile very iiii- portent phenomena that took place after World War II when tile scram ole. for jobs was such that the. returnin~' soidlier not. only hadl a claim on a ~ob because of his services but he had added to that. his youth. Therefore, at that time, we startedi, from my own experience ill having studied this as a State senator, a real point at which mdlustry, as such, started to have an age cutoff as a. matter of hiring policy. That really took place after World War II. Before that it was scattered in its use but after World `War II age 40 became pretty much the determining age in employment in the mass prodhTctiofl industries. And it. is that group of elders now whO are suffering from tile fact that in those intermediate years between their work years and retirement years they lost their source of income or lost part of their source of their income because they had to take lesser paying jobs that found them in a. position of being ill equlppedl for retirement, as it were, that was forced upon them. It is to me a. very grave indlictment, and as you andi I have arguedl before, we don't always follow time same line of logic, but I think it is a grave indictment on the social security system that one of the maj or points of amendment now being considered-and it has been considered by the committee on `Ways and Means-is that they are going to allow PAGENO="0103" AGE DISCRIMINATION IN EMPLOYMENT 97 greater earnings on the part of the retired social security beneficiary before he is taxed or loses some of his annuity under social security. To me that is an indictment of the whole system. If you receive sufficient to keep you, there ought not to be any need. for the retirees over that age to go out and tend to gas stations and do other things 4 or 6 hours a week or 8 or 10 hours a week in order to supplement an inadequate income. The fact that so many people over 65 are still working is an indictment of the social security system be- cause if these men and women had a sufficiency of income to retire with dignity and a sufficiency of income to meet their needs, the 5 mil- lion jobs they now hold' would be there for that other group of employ- ees about which we are concerned, those between ages 18 and 25. The trouble with it all, as I see it, is that the answers to our prob- lems are so simple that we will not accept them. They have to be cloaked in complexity, they have to be cloaked in impossible situations and circumstances for us to recognize the solution. I believe that all problems have a simple solution when you get to the fundamental that causes the problem. I disagree with those who say there are other reasons other than age for denying persons jobs over the age of 40. These other reasons would be there whether they were 30, 25, or 5,0 or 55, and these other reasons w-oulcl keep them from getting a job no matter what their age was. So the real and basic consideration given by the employers, and I say this for the record, is the age, not so-called correlated reasons like edu- cation and lack of skill. They worked until they were 45, until they were 40, or 42, and they were equipped. Their skills did not completely di~apnear. A machinist working at Westinghouse until age 42 who won't be hired by General Electric still has his skills but is not required. In reference to Mr. Scherle's question as to how do you detect that a2e is the reason for discrimination, I think the easiest factor to dis- tinguish and set aside as the principal factor in the denial of employ- ment is age. rfbat is why at least this member of this committee does not want this legislation to be combined with any of the existing anticliscrirnina- tion programs which are a different nature. I don't want it confused with any other kind of discrimination. It is distinct and separate clis- crimination and should be recognized as such. I think this committee will come out with appropriate legislation; whether it will come out of Congress, of course, is in the lap of Con- gress and its leaders. I know you are wholeheartedly for the legislation and I thank you for coming here today. Mr. SOJIERLE. Thank you, Mr. Chairman. Mr. Hutton, good afternoon to you, sir. Mr. Hutton, I have just a few questions to ask. First, why can't this legislation be handled by the States? Mr. HUTTON. They have not really been `terribly successful in this thing in the past and I believe it requires much more than 21 `States- I think it is 21, I am not sure. Mr. DENT. Twenty-three States have some kind of law. Mr. HUTTON. Twenty-three States which have some kind of law, hut having a Federal-established law, it is much easier to deal with big companies with outlets in many areas, it really gets to the thing. PAGENO="0104" 98 AGE DISCRIMINATION IN EMPLOYMENT If you talk about a massive public relations program, there is no better public relations program than when exerybody is involved on a national basis. Mr. SCHERLE. The reason for a Federal program is that it can be easily administered over the 50 States rather than 50 different pieces of legislation over the 50 different States. It is easier to handle? Mr. HUTTON. This is true. Mr. SCHERLE. From the comment made by our esteemed chairman, I feel you have every right to call for the position of Miss Genevieve Blatt. If this is to be your representative appointed by the President, I don't think you are getting much representation. Is she salaried? Mr. HUTToN. Yes. Miss Genevieve Blatt is an able person, but she is awfully busy. She was not given much staff when she went to OEO. I do think in the deliberations t.aking place on the OEO bill now~- Mr. SCHERLE. As important as this piece of legislation is to you and our senior citizens, I don't think it is right that she is not here to hear some of the testimony that has been given. I think she has been a little neglectful in her responsibility. Mr. hUTToN. I wouldn't like to say that. She can't be in two places and I know there is another hearing going on on the poverty bill and she may be there. I don't know. I would like to see her here. Mr. SCHERLE. I think she should have been here, particularly for this type of testimony. Now, you spent a great. deal of time in your testimony with regard to the OEO. You claim they show a great deal of discrimination. You also know OEO was set up under a CAP program that was locally instituted and governed. You also know that this is done more or less on the loca.l level because you have your area boards. Now, to go and bring in other facet~ of this thing, have you con- tacted Mr. Shriver in regard to some of the apparent discrimination shown to these people in the OEO? Mr. HuTrox. Yes, sir: we have on many, many occasions. Mr. SCHERLE. Why hasn't there been something done? I have seen nothing offered to you. Mr. HUTToN. I am extremely hopeful that in the bills on the future of OEO. which are coming out in the House and the Senate, we will have more attention paid to the problems of the elderly. In particular the distinguished Claude Pepper of Florida has introduced four very important amendments as far as we are concerned. For example, one calling for earmarking of $150 million for programs for the elderly and, two, calling for maximum used of elderly throughout all pro- grams of OEO. In the bill about. to come before the Senate for discussion, I under- stand for the first time a real national program, in addition to the other national programs such as Headstart and the legal services, there is for consideration before the Senate the idea of instituting Project Find on a national basis to seek and find those elderly people who have been disengaged from society or who live in lonely rooms and who need services. Mr. SCHEmER. You feel the OEO has overlooked the senior citizens and elderly as far as their present programs? Mr. HUTTON. Yes, that could be said. PAGENO="0105" AGE DISCRIMINATION IN EMPLOYMENT 99 Mr. SCHERLE. Did anyone from the National Council of Senior Cit- izens testify before this committee? Mr. HUTTON. Yes, sir. Mr. SOIIERLE. Did you testify? Mr. HUTTON. Yes, I did. Mr. SCHERLE. The same basis as you have given us today? Mr. HUTTON. Yes, sir. Mr. SCHERLE. Now, a bill was passed out of committee a short time ago to extend the Commission for the Aged. It involves quite a substan- tial amount of money. Mr. HUTTON. We supported it. Mr. SCHERLE. I know. How would this work in conjunction with what you are asking at the present time other than over a 45 age limit? I mean for the senior citizens, it is designed for them. Mr. HUTTON. For the poverty programs, as you understand, it is in poverty areas for the elderly poor. In legislation for the aging, it is different. Mr. SCHERLE. I didn't think there was discrimination in the legisla- tion. I was impressed by the fact it took in all older citizens. Mr. HUTTON. Many older people need additional money to live; others don't need as much. They can do with part-time services. Others need opportunity to serve, something to establish their dignity. Mr. SCHERLE. If I had a copy of our report on the reasons for the extension of the Commission for the Aging, you will find every area you have covered this morning is outlined in the report of that bill. I think if you have time it would pay you to read that. Mr. HUTTON. It does not provide for discrimination. Mr. SCHERLE. The recommendation is to provide employment and services. You read it. It has been included. I think our good chairman would also make the same statement I did. We tried to do many things in that bill. Mr. HUTTON. I am very happy the Commission for the Aging has been continued. Mr. DENT. You are right. The problem there we should look into more closely is the fact that the main thrust of that money is money that is sent to the States to set up their new programs. Mr. SCHERLE. I think that is where the money belongs. I am a great believer in local control. You mentioned earlier in your opening statement that you frowned on public studies and research. Mr. HUTTON. I frown on public relations programs as a substitute for needed legislative action. Mr. SCHERLE. I notice in this bill that in section 3 the Secretary of Labor shall undertake studies and provide information to labor unions. In (a) of section 3, undertake research and promote research; (b), pro- mote and make available findings of studies. It looks to me like you are going to be wrapped up in a lot of re- search and studies. Mr. HUTTON. I think it is essential to legislation. It is vital that we know where we are going. Mr. SCHERLE. I thought this was already available. I am sure there are reams and reams of studies right now. What these people want is action and attention. PAGENO="0106" 100 AGE DISCRIMINATION IN EMPLOYMENT Mr. Hurrox. Of course, we want action by ceasing all discrimination for age, period. Mr. SCHERLE. I think this is documented, isn't it, to the extent there are many, many people who will testify to discrimination? In fact, the statement by Dr. Sheppard has many instances of discrimination so we know about that. What could this other material provide? Mr. HUTTON. That the Secretary is asking for? Mr. SCHERLE. Yes. Mr. HUTTON. There are a thousand and one things, I think, in the training for older people. Dr. Sheppard mentioned an English psychi- atrist. who is doing some training methods of older people in Massa- chusetts. I have hold of a study here Plodlucedi by the Organization of Economic Training and Developnient. I got this from the Council on Aging in Canada. It is not published in this country. The research on older workers done there, it seems to me, is consicl- erably in advance of what. has been done in this country so far. These are the kind of things I hope the Secretary of Labor will be helping us to develop, how to persuade older people to retrain. There are a lot of emotional problems. Mr. SCHERLE. I really don't think this is absolutely necessary be- cause I think most of the people I am familia r with-and I come from a State with the highest percentage of elderly and I love every one. There is nothing I wouldn't do for them. Not only because I am fond of them but some day I will be reaching this stage. Mr. HUTTON. We all do. Mr. SCHEI~LE. I don't want to have to lean on someone else. I like the pride they should have now. But I cTo think you are going to be- come involved in a great deal of litigation with regard to trying to enforce this measure. Section 4, it shall be unlawful for an employer, based on an inch- vicTual's age, to limit., segregate, or classify his employees by such inch- vidual's age. It shall be unlawful for an employment agency to fail to refer employment based on an individual's age. I can't help but believe this is going to be a tremendously hard piece of legislation to enforce. Who is to say, with the many reasons avail- able, that age, even though you don't mention it and naturally you would not, that this could be. the basic reason for not hiring? Mr. Hurrox. I can't. answer you here. I can only tell you these same arguments were said before medicare. It was said that it would be absolutely impossible to adimmster. Mr. SCHERLE. I don't think we have seen the end ramifications or consequences of medicare yet. Mr. Hurrox. I should hope we would improve it as years go on. Mr. SCHERLE. It needs improvement. There are a lot of problems. Mr. HUTTON. It is working. Mr. SCHERLE. It is not the same. There you can put. your hands on something significant, age is age. But here you are in a given area where it's one man's word is against someone else's. I can find a multi- tude of reasons for not hiring a person and the last I would ever condone is age, but it could be my primary reason for not doing so and you wouldn't know. How could you prove it? Mr. HUTTON. Perhaps under the approximate section, if the Secre- tary of Labor undertakes the studies, we might be able to do it.. PAGENO="0107" AGE DISCRIMINATION IN EMPLOYMENT 101 Mr. SCHERLE. There is no one who wishes you well more than I. Thank you, Mr. Chairman. Mr. DENT. Mr. Hawkins. Mr. HAWKINS. I just reread section 4 again and it seems to me that language is almost precisely the language that is included in the fair employment practices laws throughout the country under which two- thirds of the American people are now living, it seems to me this language is now applied in prohibiting discrimination against a per- son for race, color, national origin. It would appear age is certainly more of a definitive factor than others; would you agree? Mr. HUTTON. Certainly, you can be more precise about a person's age than any other thing. Mr. HAwKINs. Certainly a statement so comprehensive and clear does not leave many questions. I would certainly agree with it. You have made reference to Congressman Pepper's amendments that have been introduced to the Economic Opportunity Act. I would think that it would be well if you were to leave with us aiid this com- mittee those amendments because in another committee we are consid- ering amendment to the Economic Opportunity Act and it may be possible those amendments should be addressed to the bill while it is in committee. Mr. HUTTON. I will be happy to submit. them for the record, sir. Mr. 1-lAwiciNs. Mr. Chairman, if I may prevail on your time, I note an old friend of mine is in the audience. I would like to recognize him. I say old with regard to friendship rather than to his age. Lt.. Lawrence A. Oxley, who is a member of the National Council of Senior Citizens, Greater Washington Area Council. He is a former bureaucrat and we are happy to have him with us today. Mr. DENT. Thank you for presenting him. Mr. }IUTT0N. He is a very fine colleague of mine, an indefatigable 81-year-old worker. Mr. DENT. If that is all the questions, we thank you for appealing today. Tiie committee will stand adjourned until next Tuesday at 10 o'clock when we will have as witnesses Mr. John E. Harmon, executive vice president, National Employment Association; Miss Margie Cooper, vice president, Steward & Stewardess Division, Air Line Pilots Asso- ciation; and Mr. Frederick T. Finigan, vice president, Personnel a.nd Labor Relations, Allied Stores Corp., representing the American Retail Federation. You are all welcome and we hope you will come back at that time. (Whereupon, at 12:25 p.m., the subcommittee recessed to recon- vene at 10 a.m., Tuesday, August 8, 1967.) PAGENO="0108" PAGENO="0109" AGE DISCRIMINATION IN EMPLOYMENT TUESDAY, AUGUST 15, 1967 HOUSE OF REPRESENTATIVES, GENERAL SUBCOMMITTEE ON LABOR OF THE COMMITTEE ON EDUCATION AND LABOR, TVashington, D.C. The subcommittee met at 11 :15 a.m., pursuant to recess, in rOom 2175, Rayburn House Office Building, Hon. John TI. Dent (chairman of the subcommittee) presiding. Present: Representatives Dent, Hawkins, Erlenborn, and Scherle. Mr. DENT. The General Subcommittee on Labor will come to order for the purpose of holding hearings on H.R. 3651, HR. 4221, H.R. 3768, and other related bills. The question before us is a question of age discrimination in em- ployment. Due to the fact the full committee had an executive hear- ing this morning, the committee is starting a little late but we will try to make up for it by extending into the afternoon as long as the House permits us to do so. Mr. Harmon, you had a suggestion you wanted to make. Mr. HARMON. Yes, I had hoped we might let the other witnesses go on before us. - Mr. DENT. Thank you for the courtesy because I understand the third witness is very busy. I would appreciate it, therefore, if you gen- tlemen will permit Miss Cooper to precede you. Is that all right? Mr. HARMON. Yes. Mr. DENT. Our first witness will be Miss Margie Cooper, vice presi- dent of the Steward and Stewardess Division, Air Line Pilots Association. Miss Cooper, we welcome you to the hearing and thank you for tak- ing the time to come down and participate in our hearing. You may proceed in any manner you wish. STATEMENT OF MISS MARGIE COOPER, VICE PRESIDENT, STEWARD & STEWARDESS DIVISION, AIR LINE PILOTS ASSOGIATION; ACCOMPANIED BY HERBERT LEVY, ATTORNEY FOR THE AIR LINE PILOTS ASOCIATION Mr. LEVY. My name is Herbert Levy and I am attorney for the Steward & Stewardess Division of the Air Line Pilots Association. Before coming to Miss Cooper's presentation I would appreciate the opportunity for a few observations with respect to the pending legislation. Mr. DENT. You may proceed. 103 PAGENO="0110" 104 AGE DISCRIMINATION IN EMPLOYMENT Mr. LEVY. First, on behalf of our association, we appreciate the opportunity to be here today and to speak in support of legislation that recognizes that there is a fundamental wrong in discrimination based solely on age where age is not a bonafide occupational qualifica- tion. The association would like to urge this committee that section 13 of the proposed legislation which contains a proviso limiting the protection of the legislation to persons between 45 and 65 be deleted. Those supporting that proviso argue that what we are dealing with here is older worker legislation. They say there is no need for legis- lation that covers persons below the ages of 45 to 65. Our position, and we feel that the committee will recognize the merit in this position, is that the legislation before you is essentially civil rights legislation declaring it is fundamentally wrong to clis- criminate on age alone where age is not a bona fide qualification of employment. Therefore, it is just as wrong to practice discrimination against someone under age 45 to 65 as it is someone between age 45 and 65. Those who argue in support of the older-worker-legislation concept state that social security is a form of older-worker legislation and there is no difference essentially between the kind of protection that social security affords to persons in older-age brackets and the kind of protection the pending legislation would afford to persons age 45 to 65. Our view is that the pending legislation is not financial assistance legislation as was social security. The pending legislation rallier is recognition of the immorality and wrongfulness of discriminating against people solely on the basis of their age. There is one further aspect to our position that we would like to present before the committee for its attention and that is this: We believe there are serious safety implications with respect to the ap- plication of the pending legislation to stewards and stewardesses work- ing for the airlines. The airlines who argue in support of excluding these. people from the protection of the proposed legislation take the position that there is no real need to protect stewardesses from age discrimination in employment. They concentrate on a. discussion of the personal beauty characteristics and sex appeal of young stew- ardesses and ignore for the most pa.rt the reason a steward or stew- ardess is on an airplane: to perform significant actions with respect to emergency situations, and ill or deranged passengers. They ignore the fact that, to take off an airplane, at age 32, an experienced, efficient qualified stewardess, one who is indeed attractive and whose only failing is her date of birth, and to replace her with one less efficient., less qualified1 probably no more attractive, who is only younger and has perhaps more youthful sex appeal, has potentially serious im- plications for the safety of passengers in airline transportation. So it. is our view that section 13 of the proiosal should be deleted. With that I should like to come now to the presentation of a young lady sitting beside me who served for some 14 years with distinction as a stewardless for Braniff International and is now vice president of t.he Air Line Pilots Association for the Steward and Stewardess Division, Miss Cooper. Miss COOPER. On behalf of the 30,000 flight-crew members repre- sented by ALPA. including some 8,000 stewards and stewardesses, I wiSh to express our appreciation for the opportunity to appear PAGENO="0111" AGE DISCRIMINATION IN EMPLOYMENT 105 before you to urge your support for legislation which would outlaw current employment discrimination against female airline flight at- tendants based upon age. Since the targets of this discrimination are employees whose careers are abruptly cut short solely because of age, well in advance of age 45, we most urgently request a change in section 13 of iI-I.R. 3651 and 4221, both of which, as now drafted, leave employees below age 45 exposed, subject only to the later possibility of downward revision of the stated minimum age limits by the Secretary of Labor should he find that the effectuation of the purposes of the act so requires. It is our hope that, on the basis of the facts submitted here, the Congress will itself determine here and now that it is inconsistent with the purposes of the pioposeci legislation to leave these employees outside the protection of this legislation, and dependent solely upon the uncertainty of later proceedings before the Secretary of Labor, in a State forum, or in a series of economic contests between ALPA and the remaining airlines which still practice the discrin'iination for the preservation of their civil rights. ALPA's Steward and Stewardess Division currently provides representation for the employment rights of flight attendants work- ing for 27 airlines and providing in-flight services in virtually all of the States of the Union and in many foreign countries. These air- lines are: Airlift, Alaska, Allegheny, Aloha, American Flyers, Bonanza, Braniff, Continental, Central, Frontier, 1-iawaiian, Lake Central, Mohawk, National, New York Airways, Northern Con- solidated, North Central, Overseas National, Ozark, Pacific Northern, Piedmont, Slick, Trans-Texas, United, West Coast, Western, and V\Tjen Air Alaska. Some but not all of these airlines practice age discrimination against female flight attendants; I shall provide more detail in this area at a later point in this statement. We flatfv oppose all discrimination in employment based upon age, not simply when the victim of discrimination is between ages 45 antI 65, but at any age where age is not a bona fide occupational qualifica- tion. A substantial majority of the several thousand people for whom I speak are female, and a substantial number of these are targets of discrimination based upon chronological age. The same public policy reflected in H.R. 3651 and 4221 for the protection of persons of ages 45 to 65 is equally applicable to those who suffer identical economic loss solely by reason of age discrimination at age 32 or 35. A flight atte~idant may serve her airline for 10 years or more only to find herself suddenly without a career at age 32 or 35 because of her employer's compulsory termination policy. She cannot then meet the hiring qualifications for a flight attendant's position on another airline which has no such policy. All the occupational skills which she has carefully developed during 10 or more years of diligent service are no longer usable in employment which is open to her. Unemploy- ment is the likely reward for her loyalty and diligence, unless the airline, in its discretion, makes other less desirable employment avail- able to her. Yet, many flight attendants have much the same financial and other obligations as the persons of age 45 to 65 who are the sole beneficiaries of the proposed legislation in its present form. The* irrelevant and invidious character of discrimination based solely on age-its inconsistency with existing moral standards and PAGENO="0112" 106 AGE DISCRIMINATION IN EMPLOYMENT our civil rights principles-does not vary with the age of the victim. If such conduct is wrong, it is as wrong when practiced against a 35- year-old stewardess as by a 45-year-old businessman or woman. To exclude a large group of employes from congressional protection against admittedly wrongful conduct on the basis of such an un- reliable projection is, in effect, to establish a means test for equal pro- tection of the laws, and to license the continuation of unlawful con- duct against one group of citizens, while prohibiting its practice against, others. There should be only one test used to define the reach of the legisla- tion which you are considering; is age a bona fide occupational quali- fication for a position of employment? If yes, then the employer's decision may properly be based upon age alone; if no, then age may not lawfully be used as the basis for inflicting economic injury upon any citizen. It would be unfair and indeed anomalous for Congress itself to carve out a group of citizens solely on the basis of their age and, on that basis alone, to deny them the protection of a law against age discrimination. Those who disagree with this view argue that the measure now under consideration should be deemed to be "older worker" legisla- tion; they pretend that age discrimination against flight attendants doesn't exist, and argue, as they have argued to the Congress, t.hat there is `"~ * * no significant age discrimination problem affecting younger workers requiring remedial legislation." They ignore the fact that the practice of terminating stewardess careers by reason of age alone has been described by a Member of Congress, speaking on the floor of the House of Representatives, as "one of the most flagrant cases of age discrimination to be found anywhere in the labor market." Congress has, in the Civil Rights Act of 1964, broadly outlawed dis- crimination based upon race and color; it has prohibited such dis- crimination not only against Negroes, the largest and most directly affected group, but also against Indians, Orientals, as ~c ell as all other races, as to some of which there have been no significant racial dis- crimination problem. Congress recognized then that the practice was invidious and inconsistent with fundamental precept.s of civil rights, and banned such conduct against all citizens; no reason exists to change that approach here. To exclude persons below age 45 from the protec- tion of this legislation is no different in principle than a law which would outlaw racial discrimination except when practiced against American Indians. Neither is rationally or morally defensible. An assertion that there is no significant age discrimination problem affecting female flight attenda.nt.s is inaccurate and misleading. The matter of age discrimination has been the subject of controversy a.nd dispute in the airline industry for some years, and has been explored, but not resolved, in several forums to date. I shall now address this discussion to a specific consideration of the problem a.s it now exists, and the efforts, largely frustrated to date, to fashion a remedy for it elsewhere than in Congress. A. T~ DIMEN5ION5 OF THE PROBLEM The airlines themselves are divided on this issue. Some of them apply a compulsory retirement age to female flight attendants, most often at PAGENO="0113" AGE DISCRIMINATION IN EMPLOYMENT 107 age 32 or 35; included in this group are some airlines which have re- cently initiated the practice, and which apply it only to stewardesses hired after the date it was initiated, while those hired prior to that date have so-called "grandmother rights" and are unaffected. Some `airlines require all stewardesses, when they are employed, to sign written forms, sometimes referred to as "yellow dog contracts," agreeing to surrender their employment upon attaining a specified age or becoming married, or both. A majority of the airlines do not impose compulsory retirement upon flight attendants, either male or female, having never made such a requirement, or, in some cases, having had it but abandoned it. Many airlines employ male `as well as female flight attendants, performing substantially the same function. In no case of which we are aware is a compulsory retirement rule based upon marriage or age 32 or 35 applied to male flight attendants. When asked to explain the `basis for the early age cutoff for stew- ardesses, `airlines most often refer to t'he supposed preferen'ce of pas- sengers for more y'outhful, and presumably, therefore, more glamorous stewardesses. `The available evidence suggests that airline m'arket re- search `and analysis in this area leaves much to be desired. For airline passengers, when afforded an opportunity for self-expression, gener- erally indicate a far greater interest and concern for the competence, courtesy, and efficiency of `the stewardess th'an for youthful sex. appeal. The Airways Club, an organization of regular `and frequent airline travelers, with a membership of m'any thousands, polled its members early in 1966 on their views concerning marriage and age. The result of that survey, `published by the club, is annexed as exhibit 13. It `shows that a substantial majority of those voting were wholly indifferent to the `age or marital status of the stewardess. Some of the comments by airline passengers *to the club are significant: If she does a good job, her age and her marital status are none of the passenger's business. How `asinine can you get! What difference does age or marriage make so long as they do their job and do it pleasantly? One would think you are running a beauty contest and not about [sic] doing a serious and useful job. The age, et cetera, has nothing to do with the job requirements-to be pleasant and efficient. There is need for maturity, "know-how," training for helpful service instead of flirtatious "cuties"-this means a different age span for developing career personnel with experience, savoir faire. It is not only the Airways Club which `h'as surveyed the travel'ing public on this subject. On December `23, 1965, the New York Daily News "Inquiring Fotographer" asked a sampling of the public the following question: Many airlines will not permit stewardesses to remain on the job beyond the age of 35. Does a woman lose her glamor at 35? `The response? A resounding `and unanimous no. To the extent that the airline age d'iscrimination policies are founded on a contrary as- sumption `they are open to serious question. The `public seems emphati- cally to `believe that: , There is `an intriguing quality about women in their midthirties and beyond. It is an appeal that enhances their natural beauty. There is no woman more attractive than a well groomed woman in her 40's. 85-376-67-----S PAGENO="0114" 108 AGE DISCRIMINATION IN EMPLOYMENT There's more to glamor than mere beauty. It involves a woman's personality. That's why I think the airlines are dead wrong. I travel 50,000 miles a year. Most flights are of no more than three or four hours' duration. I'm satisfied with an efficient, pleasant hostess, not a Miss America. Directly relevant to the views of passengers concerning age limita- tions for stewardesses are the observations of Russell Baker in the New York Times on September 5, 1965. In his view, a substantial segment of airline passengers * * would prefer to have stewa.rdnesses kept off airplanes until they are at least. 32." "These are men who are. utterly indifferent to women imcler 32, and in many cases even to women under 35." Baker says members of this group are "absolutely terrified by women under 27." His conclusion: the airline policy for compulsory retirement of stewardesses at age 32 "is the kind of blunder that results from too much abstract psychological thinking about passenger mo- tivation and too little basic research." It seems equally necessary to conclude that airline passengers, hke the Departments of Defense and Labor, like many foreign and do- mestic. airlines, like the New York State Human Rights Commlsslon, and probably like the FAA as well, agree that a.ge is not. a bona fide occupational qualification for the position of flight attendant. Whether or not the compulsory retirement policy reflects prudent ma.nagement-ancl the available evidence tends to indicate that it does not-we urge the Congress to brand it once and for all as "unlawful." Discrimination against female flight attendants based on age is not a matter which has generally been dealt with in our collective-bargain- ing relationships with carriers, and none of the agreements between my organization and the air carriers covering some 8,000 flight attendants contain pro~~sions which outlaw such discrimination. Congress has not insisted that protection against racial discrimination be left. to private contracts or agreements; it has properly considered the dis- criminatory abuse of civil rights to be an appropriate public matter for remedial legislation. It should follow the same course here. Any implication that. ground employment is always macic available to flight attendants when their flight careers are terminated by the carriers is also misleading. The availability of such substitute em- ployment is subject to the discretion of each individual carrier, and it is far from universally true that such employment is alwa s made available. On one carrier which employs several thousand flight at- tencla.nts, a flight. attendant. was recently retired involuntarily by reason of her marriage. Later that carrier stated publicly in an admin- istrative hearing that other employment was not available to her, and that other employment was macic available under such circumstances only where "possible," in the carriers words. lYe strongly disagree that ground employment., even if the carriers were to make. it available at a stated chronological age, would be a solution to this problem. Discrimination would still be present, not- withstanding that carriers, instead of discharging stewardesses, practiced the discrimination by moving them to diff~rent jobs, like pawns on a chessboard. Career stewardesses take the same pride, and develop the same intense interest. in their special work, as others whom you would protect. They can still demonstrate at. ages 32, 37, 45 and thereafter, under every relevant test of occupational qualification, that PAGENO="0115" AGE DISCRIMINATION IN EMPLOYMENT 109 `they remain fully capable of fulfilling the demands of flight at- tendants' careers. When they can no longer demonstrate such capa- bility, then they will voluntarily yield their careers. More than that, an involuntary transfer to other employment at age 32 or any other age would summarily cancel the valuable employ- ment rights and protections which accrue to female flight attencla~its under the collective-bargaining agreements between ALPA and the air carriers, and would in all likelihood place them in employment where they would not be represented, and would be without any such rights or protections; consequently their continued employment there- after would be wholly at the pleasure of the carrier. Though nearly all major airlines make provisions for retirement benefits for other classes of employees, there is no airline of which I am aware that provides retirement benefits for flight attendants at age 32 or 35. These same airlines, while providing no retirement benefits for female flight attendants, apply compulsory and discrimina- tory early-retirement policies to that group. That minority group of carriers which seeks to preserve this dis- criminatory practice argues that: * everybody who has ever flown on an airplane and everybody who has ever looked at an airplane advertisement knows that this i's a girl's jab, and that what makes it a girl's job makes it a young and a pretty girl's job. Such statements, which are spaced with great frequency through- out the arguments of the carriers in several `forums, are not only in- consistent with the views of the vast majority of air' travelers; they also suggest that the ability of the stewardess to demonstrate FAA- required qualifications to deal with safety measures, ill or dangerous passeilgers, and emergency and evacuation situations is of little or no importance, and should be ignored. One typical illustration of the inherent weakness in the carrier position is the experience of Nancy Taylor, recipient of ALPA's C-old Medal Award for Heroism for effectively controlling an armed hij acker aloft while serving as a Na~ tional Airlines hostess on November 17, 1965. The details of this experi- ence are contained in the report annexed as exhibit 18. Miss Taylor w~as 36 years of age at the time, with more than 15 years' experience as a National stewardess. Had a less experienced flight attendant, even one with more youthful sex appeal, found herself in Miss Taylor's shoes on that day, the disastrous possibilities are obvious. The carrier arguments suggest that they no longer `believe that a relationship exists between the qualifications of a flight attendant and their continuing `public obligation is to provide the `safest and most efficient possible air transportation. Their preoccupation with sex and beauty above all other considerations is more consistent with show business theatrics than with responsible and conservative air trans- portation services. It should not be necessary to remind these carriers that they are certificated by public authority `for one purpose and one purpose only: to sell safe air transportation service, not sex, or fan- tasies of sex, or to run beauty contests or fashiOn shows, or dating bureaus. To cut short the career of an experienced, competent, efficient, and indeed attractive stewardess, whose only failing is `her date of birth, in order to replace her with one who i's less experienced, less competent, less efficient, `and probably no more attractive-only younger-is not only a flagrant abuse of civil rights; `but also a disserv- PAGENO="0116" 110 AGE DISCRIMINATION IN EMPLOYMENT ice to airline passengers and a potentially dangerous impairment of the highest possible degree of safety in air transportation. In situa- tions, not infrequent, where passenger survival in an accident or emer- gency depends upon the corn~petence, ability, and coolness of the flight attendant., nothing is less important than her age, her sexual allure, her measurements-and nothing is more important than her ability to function with cahn efficiency when others are unable to do so. The consequences of carrier discrimination, viewed in these terms, could well be tragic. In summary, we believe that the reasons for outlawing discrimma- tion based upon age with respect to female flight attendants are as compelling as the arguments supporting other civil rights legislation and, in terms of the implications of such conduct upon air safety, even more compelling. Such discrimination is not only offensive to prin- ciples supporting the safeguard of individual civil rights; it is also a potentally dangerous trespass upon the obligation owed to airline passengers to provide the highest possible degree of safety in air transportation. We urge this committee to delete those provisions of section 13 of the pending legislation which would exclude female flight attend- ants from the scope of its protection, and, as so modified, we urge its prompt enactment by the Congress. Thank you. Mr. DENT. Thank you, Miss Cooper. Since this committee started hearings on this legislation we have tried to gather as much informa;tion as we could in all phases of the subject. We find the question relating to airline hostesses is peculiar in nature and the only instance we have run across where such a young age was established for elimination from employment. We have tried to read a.s much information as we could gather on the logic behind the idea and practice. We note from your testimony and from testimony that has been presented to the Senate on previous occasions some precedents have been established on the question of the airline hostesses. Each time you have contract talks with the airlines, does this ques- tion of the retirement age of stewardess become a matter of nego- tiation? Miss COOPER. We have always felt this was one of our rights and we should not have to negotiate with a company. Mr. DENT. Isn't it true that Northwest, who had previous restric- tions, did remove in their latest contract negotiations such restrictions both on marriage and age by contract with the employees ? Miss Coorru. Yes, sir. Mr. DENT. I don't know whether they belong to your union. Miss COOPER. No, they don't; but that is true. Mr. DEin~. On page 10 of your testimony, I notice that of our chief overseas competitors, it appears the only two that have any age re- strictions which might give sonic doubts would be Sabena and Swissair and they limit theirs to age 40. All the others have a reasonable con- sideration, where they are trying to limit the starting age for hiring practices, which would be close to the age of 20, so that by the time the girls reach 55 they will have kind of a full career. I don't think if a company wants to put in a prehiring contract and age like that, I don't think there would be much trouble. I notice some have no restrictions. PAGENO="0117" AGE DISCRIMINATION IN EMPLOYMENT 111 In the list of airlines that do not have any restrictions, while not particularly major airlines, they are the common airlines in this coun- try. There are no compulsory retirement ages for stewardess. I notice Pan Am; being an overseas operation, has no restrictions and has never had any restrictions according to testimony we have received. I note on page 7 you say National is bringing into your negotiations the question of age and is trying to write contracts of restrictions at this time. Miss COOPER. We are currently in negotiation with National. Mr. DENT. And the question of age discrimination is being considered in the negotiations at this time? Miss COOPER. Yes. The airlines themselves brought this question up in negotiations. Mr. DENT. Do they have a restriction at this time? MiSs COOPER. No. Mr. DENT. They are negotiating to put it in? Miss COOPER. Ye~. Mr. DENT. Hasn't the reverse been true of late? Hasn't it been true the airlines have been taking the restrictions off rather than going the other way? Miss COOPER. Yes, some of the airlines have. Some airlines have never had any restriction on age and some of the airlines just started having the girls sign an agreement when they came to work that they would retire when they reached age 32. Anyone hired before the date they started having the girls sign this agreement, it didn't affect. Mr. DENT. Let me ask a question, if you care to answer it. What, if anything, is provided in the contract between the respective employee and the management as to what they offer in the way of jobs, retirement pay, severance pay? Is it just a complete breakoff at the retirement age? Miss COOPER. They don't provide any retirement pay. I don't know of any airline with a retirement program. Mr. DENT. Excuse me. Are you girls then not covered by any retire- ment program once you get into the service as a stewardess? Miss COOPER. That is right. Most of the retirement programs the companies have affect only those people who work until they are age 60 or 65. Mr. DENT. They are not forced into any retirement plan? Miss COOPER. No. Mr. DENT. Do they have any retraining program they offer for terminal jobs or other kind of employment? Miss CooPER. I think some of the airlines haYe a rule that they will try to find the girl another job with the airline. Mr. DENT. It is not a mandated position the employer must take? Miss COOPER. No. Mr. DENT. The girl can be severed from her employment at age 32 or 35, whatever the age specification is in the contract, without having any recourse whatsoever as to the demanding of training for another job or another job offer? Miss COOPER. That is right. We don't have anything in any of our contracts on the airlines I represent that state that the girl has to retire at age 32 or 35; this is company policy. Mr. DENT. I notice National is trying to get this as part of the contract. Miss COOPER. That is right. PAGENO="0118" 112 AGE DISCRIMINATION IN EMPLOYMENT ~fr. DENT. Isn't it correct that the opposite. is true, some airlines have in their contracts they will not impose an age limit? MiSS COOPER. Yes. Mr. DENT. So does it follow then that. this committee could look forward to the fact that you probably will be getting your own con- t.racts with that in mind, you will make it. part of your own contract agTe.ements? Mr. LEVY. Mr. Dent., our statement does indicate that this question of whether or not stewardesses will be required to retire when they reach age 32 is one that has been treated differently by the airlines on a highly individual basis and there are several airlines in this country who are standing fast at the present time to a very firm position, insisting on the right to fire girls when they reach age 32 or 35. Mr. DENT. The.y don't exactly fire them. You see you are dealing with a subject matter going beyond the question of airline hostesses, as such. It is a. type of contract that I dont think Congress has ever taken official notice of as far as our Fair Labor Standards Act pre- viously. Prehiring contracts are not unusual, they have been in vogue for many years in many industries and, therefore, I imagine they rely on the historic fact that prehiring contracts are considered legal documents in the United States and proper documents to be offered prior to the hiring of an individual for these specified jobs. The question this committee faces is whether we delve into the prob- lem of prehiring contracts altogether or whether we work on this on the basis that age discrimination is the only criteria to be con- sidereci insofar as this legislation is concerned. Mr. LEVY. To the extent. this legislation will niake age discrimina- tion unlawful on a. national basis, then a prehiring contract containing an element of age discrimination would be unlawful at that time. Mr. DENT. With regard to airline pilots, do you know of any pre- hiring contract they enter into ? Mr. LEVY. No, sir, I do not. Are we talking of compulsory retirement? Mr. DENT. That would be prehiring contract, would it not.? Mr. LEVY. Yes, sir. There is no such agreement I know of, but there is a regulation in effect that requires that an airline pilot cease flying when they reach age 60. Supporters of that regulation argue in terms of qualification and health of the airline pilot. Mr. DENT. They now ret.ire a.t age 60. Mr. LEVY. Yes, it is compulsory. Mr. DENT. Is that universal? Mr. LEVY. Yes. As I viewed your question it. was whether this was a problem to be resolved in negotiations or before Congress. My answer would be, no, t.here are severa~ contracts in existence, one with the largest employer of flight attendants in the ITnitecl States who is standing very firmly to the position of retiring flight attendants when t.hey become married or reach age 32. We are faced with the question of whether to go all the way down to the wire with this airline in contract negotiations and possibly into a. strike situation on this question. At this point we have serious misgivings about causing widespread interruptions and we believe that since Congress is about to express itself on the fundamental matter of civil rights, that is age discrimination, that it seems consistent for Congress to PAGENO="0119" AGE DISCRIMINATION IN EMPLOYMENT 113 take the responsibility from us. We have this responsibility on a carrier-by-carrier basis and it is rather difficult to impose this con- tractual provision on each carrier in each separate negotiation. We feel it ought to be dealt with on a uniform basis as a matter of morality. Mr. DENT. I will ask one more question and then let Mr. Erlenborn have his time for questioning. When you sign up for a hostess, do you sign an agreement as to the maintenance of a certain bearing in your physical appearance, weight problems and things of that kind, or are you free to just do like most of our girls, let themselves go when they get to a certain age of security? Miss COOPER. I don't think they sign an agreement but of course the company has regulations regarding height and weight of the hostess and she does have to conform to their regulations; if not, of course, there are suspensions or possibly terminations if she can't maintain her apl?earance. Mr. DENT. You are telling the committee that even at age 32 or 35, whichever the case may be, that girl has to stay within certain limits on appearance or she is still subject to dismissal or suspension under their regulations? M1s5 COOPER. That is right. At any age if they don't conform to the regulations they are subject to suspension. Mr. DENT. You don't expect we would be asked to enter into that aspect as discrimination, do you? Miss COOPER. No, sir. Mr. DENT. Do your contracts protect the girls against being dis- missed for capricious reasons? Miss COOPER. Yes. Mr. DENT. They have a right to fire a girl or suspend her if she does not maintain a certain physical standard. How about her efficiency? Miss COOPER. The same holds true there. If she does not maintain efficiency on her job the company does have the right to suspend or dis- charge the stewardess. Mr. DENT. There have been some appeals made? M15s COOPER. Yes. Mr. DENT. And the findings, according to some of the testimony you briefly submitted, in practically all the cases, at least the ones I read, have been found in favor of the hostesses? Miss COOPER. Not all of them. Mr. DENT. The ones I have been able to glance through, I have not had a chance to read all of this. I notice a representative of the Secretary of Labor had quite a posi- tion on the matter. On page 10 of this document you presented in which he appears to be completely opposed to the so-called a~e restrictions. also the U.S. Department of Defense. I notice the Department of State has ordered that a senior representative contact the 10 airline carriers who have age discrimination and secure elimination or appro- priate provisions so they can conform to Executive Order 1141. Has there been a ruling that the Executive order does not apply? Mr. LEVY. Not that I know of. I know two carriers have voluntarily complied with that order and so advised us. We believe there are other carriers engaged in military contracts operations who have nevertheless not complied with that requirement. PAGENO="0120" 114 AGE DISCRIMINAT1ON IN EMPLOYMENT Mr. DENT. Executive Order 1141 then does not have the full effect of law. It is a negotiable item. The Executive order is negotiable or is it an order that specifically states that such discrimination does not conform with the policies of the Government and must be terminated? Mr. LEVY. I t.hrnk it must be terminated as a condition of continued imlitary contracts by the airline. Mr. DENT. Has any admonishment been made to the Secretary that the order has not been complied with? Mr. LEVY. We have not today been directly involved in the enforce- ment of the Executive order. However, we are giving some considera- tion with respect to what steps apply to us. We don't believe it has been fully enforced. Mr. DENT. If that has been fully enforced, therefore, do you feel it is still essential that it be contained in the law, that the restrictive covenant be wiped out by law? Mr. LEVY. Yes, I do believe this is necessary because, while it is true that at the present time many airlines have military contract opera- tions, when those operations terminate and the carriers return to ex- clusively civil commercial operations and the Executive order no longer operates, we would be faced with a situation where the carrier would be free, if the law were silent, to reinstate those provisions. Mr. DENT. Thaiik you. Mr. Erlenborn? Mr. ERLENBORN. Thank you, Mr. Chairman. I would like to find out to what extent this age discrimination may be a problem. First, is there any age limitation for the steward, male type? Miss COOPER. No, there is not. Mr. ERLENBORN. Do you have any figures as to length of service of stewards on an average? Do they work, say, to age 45, 50, 60? Do you have any figures on their work experience? Miss COOPER. No, I don't. I know they have stewards on Piedmont Airlines. We represent the stewards on Piedmont and several have been flying for several years. On United we have stewards, I don't know how many years they have had stewards on airlines. Eastern Airlines has had stewards for sev~eral years and some of these people have flown until they were, I am quite sure, 60. Mr. ERLENBORX. As to the stewardesses, can you tell me what per- centage of stewardesses leave employment because of some age policy? Miss COPPER. On the airlines I represent we have not yet had a case where a girl has been dirnissed because she has reached a certain age, but we are concerned with this because several of the airlines have in the last few years started having a girl sign these preemployrnent agreements and we have several stewardesses who are members of our organization who will probably come up against that in the next year or two. Mr. ERLENBORN. Isn't it a fact t.hat most of the stewardesses leave the employment of the airlines as a result of marriage or some other cause prior to reaching retirement age? Miss COOPER. A lot of them prior to age 32 leave because of mar- riage, yes. Mr.~EPLEXBORN. How do you feel about married women acting as stewardesses? PAGENO="0121" AGE DISCRIMINATION IN EMPLOYMENT 115 Miss CooPER. We have had a problem there. But most of our airlines allow the girls to fly after they are married. Mr. ERLENBORN. You talk of the necessity for this law, yet the ex- perience you have representing the stewardesses is that you have had no problem with girls being removed from service because of age; is that right? Miss COOPER. No, we had two girls on Allegheny, I think last year they reached their 32d birthday and the company sent them notice they would have to terminate, but then, just before they did terminate the girls, they extended their company policy or age limitation from 32 to 35. Mr. ERLENBORN. Those are two experiences you have had. How many girls do you represent? Miss COOPER. About 8,000 on the 27 airlines. Mr. ERLENBORN. The extent of this problem you are telling the committee is two out of 8,000? Miss Coorm~. Of course, there are a lot of girls over the age of 32. They had what we call grandmother rights. When we started flying we didn't sign prehiring contracts, therefore, they don't apply the age limitation to these girls, only those who signed the preemployment agreement. Mr. ERLENBORN. Thank you. Mr. DENT. Has there been any history of poor workmanship or in- efficiency of those over age 35 working under the grandmother rights? Miss COOPER. No, there has not been. Mr. DENT. What do you think is the reason for this 32-year-old age limitation? I have heard some reasons and would like to hear yours. Miss COOPER. I can't really get an answer out of the airlines either. I think possibly it has to do with the glamor of the job. They think the passenger prefers the young stewardess. Mr. DENT. Do you represent Braniff? Mis5 COOPER. Yes. Mr. DENT. You should take a trip on Braniff. It is quite an ex- perience. I thought it was three different girls. It was the same girl. She just changed clothes. Thank you, Miss Cooper. We apperciate your coming here. Your prepared testimony will be made part of the record at this point. (Miss Cooper's prepared statement follows:) PREPARED STATEMENT OF MARGIE COOPER, VICE PRESIDENT, AIR LINE PILOTS Asso- CIATION, INTERNATIONAL (STEWARD & STEWARDESS DIVISION) My name is Margie Cooper, and I am Vice President of the Steward and Stew- ardess Division of the Air Line Pilots Association, International (to which I shall refer hereafter as ALPA). Prior to assuming that office in 1066, I `served for some 13 years as a flight attendant1 for Braniff International. On behalf of the 30,000 flight crew members `represented by ALPA, including some 8000 stewards and stewardesses, I wish to express our appreciation for the opportunity to appear before you to urge your support `for legislation which would outlaw current employment discrimination against female airline flight at- tendants based upon age. `Since the targets of this discrimination are employees whose careers are a'buptl'y cut short solely because of age, well in advance of age 45, we most ur- 1 The terms "stewardess", "female flight attendant", and "hostess" are all references to the same job category, and are used interchangeably in the industry. PAGENO="0122" 116 ~ AGE DISCRI~IINATION IN EMPLOYMENT gently request a chailge in Section 13 of H.R. 3651 and 4221. both of wthich as now drafted, leave employees below age 45 exposed, subject only to the latter pos- sibility of downward revision of the stated minimum age limits by the Secretary of Labor should he find that the effectuation of the purposes of the Act so re- (liures. It is our hope that, on the basis of the facts submitted here, the Congress will itself determine here and now that it is inconsistent with the purposes of the Prol)Osed legislation to leave these employees outside the protection of this legis- lotion, and (lepenclent solely upon the uncertainty of later proceedings before the Secretary of Labor. in a state forum, or in a series of economic contests be- tween ALPA and the remaining, airlines u~hich still practice the discrimination for the preservation of their civil rights. ALPA's `Steward and Stew-ardess Division currently provides representation for the employment rights of flight attendants working for `27 airlines and pro- vidmg in-flight services in virtually all of the states of the Union and in many foreign countries. These airlines are: Airlift, Alaska, Allegheny, Aloha, Ameri- can Flyers. Bonanza. Braniff. Continental. Central. Frontier, Hawaiian, Lake Central. Mohawk. National. New York Airways. Northern Consolidated, North Central. Overseas National. Ozark. Pacific Northern, Piedmont. Slick, Trans- Texas, United. West Coast. Western and Wien Air Alaska. Some but not all of these airlines practice age discrimination against femal flight attendants; I :~ha1l provide more detail in this area at a later point in this statement. We flatly oppose all discrimination in employment based upon age. not simply when the victim of discrimination is between ages 45 and 65, but at any age u-here age is not a bonafide occupational qualification. A substantial majority of the several thousand people for whom I speak are female, and a substantial num- her of these are targets of discrimination based upon chronological age. The same J)ul)lic policy reflected in HR. 3651 and 4221 for the protection of persons of ages 46 to 65 is equally applicable to those who suffer identical economic loss solely by reason of age discrimination at age 32 or 35. A flight attendant may serve her airline for ten years or more only to find her- self suddenly without a career at age 32 or 35 because of her employer"s coin- pul'~ory termination policy. She cannot then meet the hiring qualifications for a flight attendant's position on another airline which ha's no such policy. All the occupational skills which she has carefully developed during ten or more years of diligent service are no longer useable in employment which is open to her. Unem- ployment is the likely reward for her loyalty and diligence, unless the airline, in its discretion. makes other less desirable employment available to her. Yet, many flight attendant's have much the same financial and other obliga- tions as the persons of age 45 to 65 who are the sole beneficiaries of the proposed legislatioii in its present form. The irrelevant and invidious character of discrimination based solely on age- its inconsistency with existing moral standarJs and our civil right's principle'~- does not vai-y with the age of the victim. If such conduct is wrong. it is as w~rong u-hen practiced against a 35 year old stewardess a's it is u-hen the target is a 45 year ol4 businessman or woman. The extension of Congressional protection to persons likely to he affected by such wrongful conduct should not be made to de- pend upon a vague notion that the effects of `such discrimination are not likely to `he as severely felt by a 35 year old stewardess a's `by a 45 year old businessman or woman. To exclude a large group of employees from Congressional protection against admittedly wrongful conduct on the basis of such an unreliable projection is. in effect. to establish a means test for equal protection of the laws, and to license the continuation of unlawful conduct against one group of citizens, while prohibiting its practice against others. There should be only one test used to define the reach of the legislation which you are considering; is age a bone fide occupational qualification for a position of employment? If yes, then the employer's decision may properly be `based upon age alone: `if no. then age may not lawfully be `used as the basis for inflicting eco- nomic injury upon any `citizen. It would be unfair and indeed anomalous for Con- gress itself to carve out a group of citizens solely on the basis of their age and, on that basis alone, to deny them the protection of a law against age discrimination. Those who disagree with this view a'rgue that the measure now under consider- ation `should `be deemed to be "older worker" legislation; they pretend that age discrimination against flight attendants doesn't exist, and argue, a's they have argued to the Congress. that there is ". .. no significant age discrimination prob- lem affecting younger workers requiring remedial legislation." They ignore the PAGENO="0123" AGE DISCRIMINATION IN EMPLOYMENT 117 fact that the practice of terminating stewardes:s careers by reason of age alone has been described by a Member of Congress, speaking on the floor of the House of Representatives, as "one of the most flagrant cases of age discrimination to be found anywhere in the labor market." (112 Cong. Rec. 6892 (Daily Edition March 30, 1936) (remarks of Rep. O'Hara)). Congress has, in the Civil Rights Act of 1964, broadly outlawed discrimination based upon race and color; it has prohib- ited such discrimination not only against Negroes, the largest and most directly affected group, hut also against Indians, Orientals, as well as all other races, as to some of which there have been no significant `racial discrimination prob- 1cm. Congress recognized then that the practice was invidious and inconsistent with fundamental precepts of civil rights, and `banned such conduct against all citizens; no reason exists to change that approach here. To exclude persons be- low age 45 from the `protection of this legislation is no different in principle than a law which would outlaw racial discrimination except when practiced against American Indians. Neither is `rationally or `morally defensible. An assertion that there is no significant age discrimination problem affecting female flight attendants is inaccurate and misleading. The matter of age discrim- ination has been the subject of controversy and dispute in the airline industry for some years, and has been explored, but not resolved, in several forums to date. I shall now address this discussion to a specific consideration of the problem as it now exists, and the efforts, largely frustrated to date, to fashion a remedy for it elsewhere than in Congress. A. THE DIMENSIONS OF THE PEOBLEM The airlines themselves are divided on this issue. Some of them apply a com- pulsory retirement age to female flight attendants, most often at age 32 or 35; included in this group are some airlines which have recently initiated the practice, and which apply it only to stewardesses hired after the date it was initiated, while those hired prior to that date have so-called "grandmother rights" and are unaffected. Some airlines currently require all stewardesses, when they are employed, to sign written forms, sometimes referred to as "yellow dog contracts", agreeing to surrender their employment upon attaining a specified age or becoming married, or both. A majority of the airlines do not impose compulsory retirement upon flight attendants, either male or female, having never had such a requirement, or, in some cases, having had it but abandoned it. Many airlines employ male as well as female flight attendants, performing substantially the same function. In no case of w-hich we are aware is a compulsory retirement rule based upon marriage or age 32 or 35 applied to male flight attendants. When asked to explain the basis for the early age cutoff for stewardesses, airlines most often refer to the supposed preference of passengers for more youthful, and presumably, therefore, more glamorous stewardesses. The available evidence suggests that airline market research and analysis in this area leaves niuch to be desired. For airline passengers, when afforded an opportunity for self-expression, generally indicate a far greater interest and concern for the competence, courtesy and efficiency of the stewardess than for youthful sex appeal. Specific information is difficult to collect, but the following bi'eakdown is, to the best of our information, accurate: 1. Airlines wit/b a current policy of compulsory retirement applicable to all stewardesses: Airline: Policy Allegheny Age 35 1 American Age 32 Bonanza Age 32 Frontier Age 32 or marriage Mohawk Age 32 Southern Age 35 Trans-Texas Age 35 or marriage Trans World Age 35 1 Recently raised from age 32 to 35. PAGENO="0124" 118 AGE DISCRIMINATION IN EMPLOYMENT 2. Airlines which have no policy of compulsory retirement for stewardesses: Airlift International Northeast Alaska Northwest2 Aloha Northern Consolidated Caribair Overseas National Central Ozark Continental Pacific Delta Pacific Northern Eastern Pan American Flying Tiger Piedmont Hawaiian Seaboard World Lake Central Slick Modern Air Transport Trans-Caribbean National 1 West Coast New York Airways Western North Central Wien Air Alaska 3. Airlines in which a policy of compulsory ret irement based on age is appli- cable to some stewardesses but not to others.3 Convpul8ory retirement policy Name of airline: Braniff International Age 32 limitation applicable to all female flight attendants hired after 1959. Frontier Airlines Age 32 limitation applicable to all female flight attendants hired after June 1, 1954; also marriage. Trans-Texas Airways Age 35 limitation applicable to all female flight attendants hired after February 15, 1964; also marriage. United Air Lines Age 32 limitation applicable to all female flight attendants hired since October 1, 1965; also marriage. 4. Airlines which currently require all applicants for stewardess employment to subscribe to pre-employnient statements agreeing to surrender their careers at a specified age or upon marriage: Allegheny Airlines Mohawk Airlines Bonanza Airlines Trans-Texas Airways Braniff International Fnited Air Lines Frontier Airlines 5. Airlines which, having had a compulsory retirement policy for stewardesses, have since abandoned it: Airlift International Continental Airlines Overseas National Airways Ozark Air Lines Slick Airways Annexed as illustrative exhibits to this statement, for the information of the Committee, are the following: Exhibit 1-Letter from Continental Airlines, dated March 15, 1906, announcing rescission of policy of compulsory retirement based on age. Exhibit 2-Letter from Slick Airways, dated April 1, 1966, announcing rescis- sion of policy of compulsory retirement based upon age.4 Exhibit 3-Sample pre-employment agreement required to be signed by stew- ardess applicants, United Air Lines. Exhibit 4-Statement of policy, with annexed sample pre-employment statement required to be signed by stewardess applicants, Allegheny Airlines. 1 In current contract negotiations with ALPA, National seeks to impose a negotiated contractual age limitation for stewardesses. ~ applicable compulsory retirement age 32. Deleted by agreement in negotiations. So far as we have been able to learn, these airlines apply the policy only to stewardesses hired after the policy was established. In contrast to Continental (Exhibit 1) which stated that rescission of the age 32 rule was required by Executive Order 11141, Slick (Exhibit 2) believes that rescission of the rule is also compelled by public policy. PAGENO="0125" AGE DISCRIMINATION IN EMPLOYMENT 119 Exhibit 5-Sample pre-employment statement required to be signed by stew- ardess applicants, Bonanza Airlines. Exhibit 6-~Sample pre-employment statement required to be signed by stew- ardess applicants, Mohawk Airlines. Exhibit 7-Statement of policy requiring compulsory retirement of stew- ardesses at age 32, Frontier Airlines. PRACTICES AMONG FOREIGN AIRLINES The following data reflects current policies on some foreign airlines, to the best of our knowledge, with regard to compulsory retirement for stewardesses: Compulsory retirement Country: practices Air France None BOAC-BEA (England) Age 55 Denmark Age 45 Lufthansa (Germany) Age 55 New Zealand Age 55 Norway Age 55 Philippines Marriage only Sabena (Belgium) Age 40 Swissair Age 40 C. STATEMENT OF UNITED STATES DEPARTMENT OF LABOR Stanley H. Ruttenberg, Administrator, Manpower Administration, responding by letter dated January 13, 1966 to a Department of Defense inquiry, stated: "Such maximum age restrictions (for female flight attendants) appear to be arbitrarily established, and do not constitute a bona fide occupational qualifica- tion." * * "WTe believe that qualifications . . . are more validly determined by physical examination and other examination techniques than by setting an arbitrary age limit." (Official Transcript of Hearing before U.S. Equal Employ- ment Opportunity Commission, May 10, 1966, at pp. 27-29). D. STATEMENT OF UNITED STATES DEPARTMENT OP DEFENSE Aaron J. Racusin, Deputy Assistant Secretary of Defense for Procurement, on April 14, 1966, and in response to an inquiry of Representative James O'Hara of Michigan dated March 28, 1966, stated that: the Department of Defense shared the view of the Labor Department that age limitations do not constitute a `bona fide occupational qualification and appeared to be arbitrarily established.' He added that the Air Force instructed the ~\Iilitary Airlift Command to appoint a senior representative to contact the ten airline carriers who have an *age limitation and secure elimination or appropriate revision so as to conform with Executive Order 11141." (Official Transcript of Hearing before United States Equal Employment Op- portunity Commission, May 10, 1966, at pp. 27-29). E. POSITION OF THE FEDERAL AVIATION AGENCY The Federal Aviation Agency, in the exercise of its responsibility for safety in air transportation, has not imposed compulsory retirement provisions for air- line stewardesses (though it has established a compulsory retirement age for airline pilots) and has never suggested that such provisions are necessary or appropriate. It is the function of the Federal Agency to prescribe regulatory requirements covering the qualifications and training of flight attendants by the airlines, as well as requirements for dealing with emergencies and emergency evacuation situations. The following are the regulatory provisions currently in effect: § 121-391 FLIGHT ATTENDANTS (a) Except as authorized in paragraph (b) of this section, each certificate holder shall provide at least the following flight attendants on each passenger carrying airplane used: (1) For airplanes having a seating capacity of more than 9 but less than 45 passengers-one flight attendant. PAGENO="0126" 120 AGE DISCRIMINATION IN EMPLOYMENT (2) For airplanes having a seating capacity of more than 44 but less than 100 passengers-two flight attendants. (3) For airplanes having a seating capacity of more than 99 hut less than 150 passengers-three flight attendants. (4) For airplanes having a seating capacity of more than 149 passengers- four flight attendants. (b) Upon application by the certificate holder, the Administrator may approve the use of an airplane in a particular operation with less than the number of fight attendants required by paragraph (a) ef this section, if the certificate holder shows that. based on the following, safety and emergency procedures and functions established under § 121.397 for the particular type of airplane and operations can be adequately performed by fewer flight attendants. (1) Kind of operation. (2) The number of passenger seats. (3) The number of compartments. (4) The number of emergency exits. (5) Emergency equipment. (6) The presence of other trained flight crewmembers, not on flight deck duty, whose services may be used in emergencies. (c) Upon approval of an application under paragraph (b) of this section, the number of flight attendants and the particular operation for which it is approved are set forth in the certificate holder's operations specifications. § 121.397 EMERGENCY AND EMERGENCY EVACUATION DUTIES (a) Each certificate holder shall, for each type and model of airplane. assign to each category of required crewmember, as appropriate, the necessary func- tions to be performed in an emergency or a situation requiring emergency evacu- ation. The certificate holder shall show those functions are realistic, can be practically accomplished, and w-ill meet any reasonably anticipated emergency including the possible incapacitation of individual crewmembers or their in- ability to reach the passenger cabin because of shifting cargo in combination cargo-passenger airplanes. (b) The certificate holder shall describe in its manual the functions of each category of required crewmernbers under paragraph (a) of this section. § 121.424 FLIGHT ATTENDANT TRAINING (a) The initial training that the certificate holder must provide for each flight attendant before he serves on a flight under this part must ensure that such crew-member is fully qualified to perform the duties assigned during flight tiII1e. This training must consist of at least the programmed hours of initial train- ing set forth in the certificate holder's approved training program including at least the following, as appropriate to assigned duties and responsibilities: (1) Authority of the pilot in command. (2) Passenger handling, including procedures to be followed in the event of the presence of deranged persons or other persons w-hose conduct might jeopardize the safety of other passengers. (3) With respect to each type of airplane on w-hich a crewmember is to serve as a flight attendant in air transportation- (i) A general description of the airplane; (ii) A knowledge of all crewmember assignments, functions, and re- sponsibilities during ditching and evacuation; (iii) Briefing of passengers.; (iv) Use of public address system and means of communicating with cockpit; (v) Location and operation of portable fire extinguishers, including a knowledge of the type of fires to be combattcd with each type of extinguisher; (vi) Location and use of first-aid equipment; (vii) Proper use of electrical galley equipment, cabin heat controls, if installed in cabin, and ventilation controls; (viii) Location and operation of passenger oxygen equipment; and (ix) Location and operation of all normal and emergency exits, in- cluding evacuation chutes and escape ropes. PAGENO="0127" AGE DISCRIMINATION IN EMPLOYMENT 121 (b) Each certificate holder shall give each flight attendant at least once each twelve calendar months recurrent training that includes at least the pro- gramined hours set forth in the certificate holder's approved training program and a competence check to determine the attendant's ability to perform assigned duties and responsibilities. The applicable regulations contain absolutely no suggestion that age has any relevance to the performance of the functions of a flight attendant. F. DETERMINATION OF THE NEW YORK 5TATE HUMAN RIGHTS COMMISSION The New York law (Executive Law, § 296(1) (a)) provides: It shall be an unlawful discriminatory practice: "For an employer, *because of the age, race, creed, color, national origin or sex of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment." From the date of the enactment of the age discrimination prohibitions of the New York State Law against discrimination on July 1, 1958 through June 30, 1966, some 755 age complaints, representing about 14 percent of the eml)lOyment cases presented to it, were received by the Commission. The most directly relevant determination of the Commission is found in its Report of Findings After Investigation, Case mv. 1851-65, IN THE MATTER OF AIRLINES INDUSTRY-MAXIMUM AGE REQUIREMENTS (STEWARDESSES). A copy of that Determination is annexed for the Committee's information as Exhibit 8. In its Summary of findings at page 5, Investigating Commissioner J. Edward Conway concluded: "(1) None of the evidence on hand gives warrant for the establishment of an industrywide policy setting a special arbitrary chronological age for continued employment of airline setwardessess-whether age 32 or 35, or any age below that of the standard mandatory retirement age for company employees. "(2) The evidence on hand does support the opposite position: namely, that termination as an airline stewardess prior to the employer's standard manda- tory retirement age should be predicated solely on the individual stewardess' continued ability to perform the duties of the position at the level of. perform- ance required by each airline company for its stewardesses. "(3) On the basis of the evidence before inc as Investigating Commissioner, I do not find that, under the New York State Law Against 1)iscrimination, there is support for a claim that a bona fide occupational qualification based on age for continued employment properly applies to the airline stewardess position on an industrywide basis." Attached as Exhibits 9, 10, 11 and 12 are four "Determinations After Investi- gation" by Commissioners Conway (Exhibits 9, 10 and 11) and Buchanan (Exhibit 12) on four individual stewardess discharge complaints, all of which raised, in the Commnissioner's words, the issue: does the airline violate the New York Law Against Discrimination when it establishes a company policy setting a special arbitrary chronological age for continued employment of its airline stewardesses at any age below that of the standard mandatory retirement age for company employees, and applies such policy without reference to the qualifications of the individual employee ?" In each case (Eloise ~oots v. American Airlines, No. CA-12288-65 (April 20, 1966) ; Patricia Lee Arnold v. American Airlines, No. CA-11459-65 (April 20, 1966) ; Janice Austin Lamncr v. TWA, No. CA-11450-65 (April 20, 1966) Anayat El Shall v. TTITA, No. CAS~42G14-66 (May 2, 19613)). the Commission found lrobable cause to believe that airline had violated the law against discrimination. 7. The Views of Airline Passengers: The Airways Club, an organization of regular and frequent airline travelers, with a mnembership of many thousands, polled its members early in 1966 on their views concerning marriage and age. The result of that survey, published by the Club, is annexed as Exhibit 13. It shows that a substantial majority of those voting were wholly indifferent to the age or marital status of the stewardess. Some of the comments by airline passengers to the Club are significant (Exhibits 14 and 15) PAGENO="0128" 122 AGE DISCRIMINATION IN EMPLOYMENT "If she does a good job, her age and her marital status are none of the passenger's business." * * * `How asinine can you get! What difference does age or marriage make so long as they do their job and do it pleasantly? One would think you are running a `beauty' contest and not about [sic] doing a serious and useful job." * * * * * * * "The age, etc., has nothing to do with the job requirements-to be pleasant and efficient." * * * * * * * "There is need for maturity, `know-how', training for helpful service instead of flirtaceous `cuties'-this means a differnt age span for developing career personnel with experience, savior faire." It is not only the Airways Club which has surveyed the traveling public on this subject. On December 23, 1965, the New York Daily News "Inquiring Fotographer" asked a sampling of the public the following question: "Many airlines will not permit stewardesses to remain on the job beyond the age of 35. Does a woman lose her glamor at 35?" The response? A resounding and unanimous NO! (Exhibit 16) To the extent that the airline age discrimination policies are founded on a contrary assumption they are open to serious question. The public seems emphatically to believe that: "There is an intriguing quality about women in their mid-thirties and beyond. It is an appeal that enhances their natural beauty." * * * * *. * "There is no woman more attractive than a well groomed woman in her 40's." * * * * * * * "There's more to glamor than mere beauty. It involves a woman's personality. That's why I think the airlines are dead wrong. I travel 50,000 miles a year. Most flights are of no more than three or four hour's duration. I'm satisfied with an efficient, pleasant hostess, not a Miss America." (Exhibit 16) Directly relevant to the views of passengers concerning age limitations for stewardesses are the observations of Russell Baker in the New York Times on September 5, 1965. (Exhibit 17) In his view, a substantial segment of airline passengers ". . . would prefer to have stewardesses kept off airplanes until they are at least 32." "These are men who are utterly indifferent to women under 32, and in many cases even to women under 35." Baker says members of this group are "absolutely terrified by women under 27." His conclusion: the airline policy for compulsory retirement of stewardesses at age 32 "is the kind of blunder that results from too much abstract psycho- logical thinking about passenger motivation and too little basic research." It seems equally necessary to conclude that airline passengers, like the De- partments of Defense and Labor, like many foreign and domestic airlines, like the New York State Human Rights Commission, and probably like the FAA as w-ell, agree that age is not a bonn fide occupational qualification for the position of flight attendant. Whether or not the compulsory retirement policy reflects prudent manage- ment (and the available evidence tends to indicate that it does not), we urge the Congress to brand it once and for all as unlawful. Discrimination against female flight attendants based on age is not a matter which has generally been dealt with in our collective bargaining relationships with carriers, and none of the agreements between my organization and the air carriers covering some 8.000 flight attendants contain provisions which outlaw such discrimination. Congress has not insisted that protection against racial discrimination be left to private contracts or agreements; it has properly considered the discriminatory abuse of civil rights, to be an appropriate public matter for remedial legislation. It should follow the same course here. Any implication that ground employment is always made available to flight attendants when their flight careers are terminated by the carriers is also mis- leading. The availability of such substitute employment is subject to the discre- tion of each individual carrier, and it is far from universally true that such employment is always made available. On one carrier which employs several thousand flight attendants, a flight attendant was recently retired involuntarily by reason of her marriage. Later that carrier stated publicly in an administra- PAGENO="0129" AGE DISCRIMINATION IN EMPLOYMENT 123 tive hearing that other employment was not available to her, and that other employment was made available under such circumstances only where "possible," in the carriers words. ~ We strongly disagree that ground employment, even if the carriers were to make it available at a stated chronological age, would be a solution to this problem. Discrimination would still be present, notwithstanding that the carriers, instead of discharging stewardesses, practiced the discrimination by moving them to different jobs, like pawns on a chessboard. Career stewardesses take the same pride, and develop the same intense interest in their special work as others whom you would protect. They can still demonstrate at ages 32, 37, 45 and thereafter, under every relevant test of occupational qualification, that they remain fully capable of fulfilling the demands of flight attendants' careers. When they can no longer demonstrate such capability, then they will voluntarily yield their careers. More than that, an involuntary transfer to other employment at age 32 or at any other age would `summarily cancel the valuable employment rights and protections which accrue to female flight attendants under the collective bar- gaining agreements between AI1PA and the air carriers, and would in all likeli- hood place them in employment where they would not be represented, `and would be without any such rights or protections; consequently their continued em- ployment `thereafter would be wholly at the pleasure of the carrier. Though nearly all major airlines make provisions for retirement benefits for other classes of employees, there is no airline of which I am aware of that pro- vides retirement benefits for flight attendants at age 32 or 35. TheseS same air- lines, while providing no retirement benefits for female flight attendants, apply compulsory and discriminatory early retirement policies to that group. That minority group of carriers which seeks to preserve this discriminatory practice argues that:. everybody who has ever flown on an airplime and everybody who has ever looked at an airplane advertisement knows that this is a girl's job, and that what makes it a girl's job makes it a young and a pretty girl's job."~ (State- inent of Attorney for Air Transport Association of America before ITS. Equal Employment Opportunity Commission, May 10, 1966, Official Transcript at p. 72.) Such statements, which are spaced ~with great frequency throughout the arguments of the carriers in several forums, are not only inconsistent with the views of the vast majority of air travelers; they also suggest that the ability of the stewardess to demonstrate FAA required qualifications to deal with safety measures, ill or dangerous passengers, and emergency `and evacuation situations is of little or no importance, and sh'ould be ignored. One typical illustration of the inherent weakness in the carrier position is the experience of Nancy Taylor. recipient of ALPA's Gold Medal Award for Heroism for effectively controlling an armed hijacker aloft while serving as a National Airline hostess on November 17, 1965. The details of this experience are `contained in the report annexed as Exhibit 18. Miss Taylor was 36 years of age at the `time, with more `than 15 years experience as a National stewardess. Had a less experienced flight attendant, even. one with more youthful sex appeal, found herself in Miss Taylor's shoes on that day, the disastrous possibilities are obvious. `The carrier arguments suggest `that they no longer believe that a relationship exists between `the qualifications of a flight attendant and their continuing public obligation is `to provide the safest and most `efficient possible air transportation. Their preoccupation with sex and beauty above all other considerations is more consistent with show business theatrics than with responsible and conservative air transportation services. It should not `be necessary to remind these carriers that they are certificated `by public authority for one purpose and one purpose only ;` to sell `safe air transportation service, not sex, or fantasies of sex, or `to run beauty contests or fashion shows or dating bureaus. To cut short the career of an experienced, competent, efficient, and indeed attractive stewardess, whose only failing is her date of birth, in order to replace `her with one who is less experienced, less competent, less efficient, and probably no more attractive- only younger-is not only a flagrant abuse of `civil rights, but also `a dis' mvice to airline passengers and a potentially dangerous impairment of the ilighest possible degree of safety in air transportation. In situations, not infrequent, where passenger survival in an accident or emergency `depends upon the competence, ability and coolness of `the flight attendant, nothing is less important than her age, her sexual allure, her measurements-and nothing is more im- portant than her ability to function with calm efficiency when others are unable S5-370-67----9 ` PAGENO="0130" 124 AGE DISCRII\IINATION IN EMPLOYMENT to do so. The consequences of carrier discrimination, viewed in these terms, could well be tragic. In summary, we believe that the reasons for outlawing discrimination based upon age with respect to female flight attendants are as compelling as the arguments supporting other civil rights legislation and, in terms of the implica- tions of such conduct upon air safety, even more compelling. Such discrimination Is not only offensive to principles supporting the safeguard of individual civil rights; it is also a potentially dangerous trespass upon the obligation owed to airline passengers to provide the highest possible degree of safety in air transportation. We urge this Committee to delete those provisions of Section 13 of the pending legislation which would enclude female flight attendants from the scope of its protection, and, as so modified, we urge its prompt enactment by the Congress. EXHIBIT 1 CONTINENTAL AIRLINES, Los ANGELES INTERNATIONAL AIRPORT, Los Angeles, Calif., March 15,1966. Miss Ric~Y STEVENS, Master Ea~ecative Chairmain, CAL, Air Line Pilots Association, Steward and Stewardess Division, Playa del Rey, Calif. DEAR Miss STEVENS: We are writing to advise you that in our opinion com- pulsory retirement of hostesses at age 32 is contrary to Executive Order 11141. This matter has recently been reviewed by various governmental officials, includ- ing the Deputy Chief of Staff, Materiel, Department of the Air Force, Brig. General W. H. Reddell. All are in accord with our opinion that any stated policy to this effect should be discontinued immediately. As you know, while we have required new hostess trainees to sign statements that they will retire at age 32, as a practical matter we have never implemented such a policy on this airline. In view of the foregoing, the practice of requiring such statements is discontinued as of this date, and any such statements presently outstanding are of no further force or effect. You will, of course, appreciate that the foregoing cannot be construed as limiting in any manner the right of the Company to terminate any hostess for any valid reasons, including deterioration of personal appearance. Very truly yours, HARROLD W. BELL, Jr., Vice President, Personnel Relations. EXHIBIT 2 SLIcE AIRWAYS, San Francisco, Calif., April 1, 1966. Miss LAVYRN WALLACE, San Francisco, Calif. DEAR Miss WAi~LACE: In accordance with Executive Order #11141 and with public policy regarding early age retirement for stewardesses: Slick Airways has cancelled your "Agreement to Terminate at Age 32" which you signed upon employment with this Company. Yours very truly, CHARLES H. KRAUSE, Superintendent of Flight Operations. EXHIBIT 3 UNITED AIR LINES NOTICE OF STEWARDESS EMPLOYMENT CONDITIONS Company Regulations Pertaining to Duration of Stewardess Employment: 1. It is a condition of stewardess employment that stewardesses remain un- married. Marriage of a stewardess automatically disqualifies her from the PAGENO="0131" - AGE DISCRIMINATION IN EMPLOYMENT 125 stewardess job. It is the Company's practice to consider stewardesses who give advance notice of marriage for ground jobs with the Company; however, such other employment is nOt guaranteed. 2. It is a condition of stewardess employment that applicants who enter train- ing after October 1, 1965 may not continue in employment as stewardesses be- yond the end of the month in which they reach their thirty-second birthday. The Company at that time will transfer such stewardesses, Company seniority unbroken, into other employment with the Company. Such stewardesses will be paid in their new position an amount equal to their average monthly earnings during their last six months as a stewardess. If no positions are available at the location at which the stewardess is domi- ciled when she reaches her thirty-second birthday, she will be transferred at Company expense to another location where a position exists. I acknowledge that I have read and understand the foregoing summary of regulations pertaining to the duration of stewardess employment. Date Signed Applicant for Stewardess Employment Witness EXHIBIT 4 ALLEGHENY AIRLINES, Pittsburgh, Pa., January 28, 1966. To Flight Attendant: The Company policy associated with maximum age and the marital status of Flight Attendants has recently undergone a review to ascertain its necessity and adequacy. Generally, it is believed that these policies are necessary, and certainly bene- ficial to all concerned. It is, however, necessary to consider the current environ- ment, versus the circumstances in existence when the policy was initially adopted. In this regard, it has been determined that it is now feasible to increase the maximum age limit to thirty-five (35), from the current age thirty-two (32) provision. For reasons that are obvious to all concerned, there will be no modification in the marital provision of the policy. Relaxing the age provision should not be construed to change the current standards associated with the personal appearance, attitude, or productivity expected of Flight Attendants. These policies do not now, or in the future, intend to terminate employees by their application. Employees so affected will be offered continued employment in another classification for which they are qualified, with full seniority credit for pay purposes. "KEEP YOUR BEST FOOT FORWARD." W. L. WICKHAM, Director of Person'nei. ALLEGHENY AIRLINES, WASHINGTON, D.C. Subject: Allegheny Airlines Hostess Personnel Policy. In consideration for the hiring of the undersigned by Allegheny Airlines, it is agreed: Whereas, it is the policy of Allegheny Airlines that only single girls will be assigned to flight duty as Hostesses. Whereas, it is also the policy of Allegheny Airlines that when a Hostess be- comes married or reaches the age of 32 years, she will no longer be assigned to flight duty. Therefore, this letter and my signature will acknowledge that I understand and agree to Allegheny Airlines personnel policies relating to Hostesses as stated above and will not expect or request continued flight duty after my marriage or when I reach the age of 32 years. Hostess Employee Date - PAGENO="0132" 126 AGE DISCRIMINATION IN EMPLOYMENT EXHIBIT 5 5O~°IANZA Aig LINES P.2a SU?P~.EMENTAL APi°LICATION ~ Hni3ht without shccs............ ____io.________..Y'oisf-_----_ Hipc..... Hot Size ............____Dress Sine ............Shne Si:e......... AGREEMENT: understand that in accepting a position as hostess with Bonanza Air Lines, nc., doe to the nature and hazards of the position, ogres thet should ~nrry during such employment, will resiyn my pcoir:os as hostess prior to such marriage urd will not fly married or pregnant. it is further understood that after reoching thirty-two (32) years of oge I will voluntarily tender my resignation as a hostess. If it is felt such is in the best interests of the compony, tooy be retoinod on ftyiu~ status icr c period of time or may ir.diccte my drsire to on ~raesferrrd to nor-flying position and will receive preferential consideration for ony vacarwy for which I am quoiii:ed. irs osiditiort, I ogree to observe all company regciotions regarding unifotres bate during my employmett ond 00cr it has ceased. ~ftrnofappiicont' PILOTS: ________________ Certificato No.-_...._ nr~dn ~. Dote .......Ratings P3~i i1~LJ To'ptscfAcft.flowru_.__- Dntzi(s of Enporiance (Sy~ci~l Attevtinr to Schndovd Operations).. Ac5deotn ~r Violatiort..._._... - Noturu and Deto of License V.'uv-~ Other Licensos held~...... Volid Medic-al Curlif E~ADIO: Radio Tc!aphooo ~ndiu Ta~emraph 0th-or Licenses Licecue - Closs__ ...._Nn License -~lass No~ Hald & Class AhEne Eaperior.ce: (i~ Air~raft (3) ~adar_.... (2) Ground__~~- (4) Other 1 heroby certify thor zU tire ahnue (rots are Pros and compinta. Sigoefcrc of applicant' ._ ~ ,. _.__ .*_ _._.__,_ ._ -- .._ __,. EXHIBIT 6 MOHAWK AIRLINEs, INc., PRE-EMPLOYMENT AGREEMENT-, ITTICd, N.Y. TEEMS AND CONDITIONS OP EMPLOYMENT In part consideration for the employment of the undersigned by Mohawk Air- lines, Inc. (hereinafter called the Company) and for wages to be paid to the undersigned employee by the Company, the undersigned promises and agrees as follows: A. That he will disclose to the Company all inventions and improvements which he may make on Company time or on his own time where the inventions or improvements could not have been made except for his employment by the Company. - B. That he will on demand assign to the Company all of his interest in any such inventions and improvements. executing ally papers and doing any acts which the Company may consider necessary to secure to it. or its successors or assigns any and all rights relating to such inventions and improvemeiltS, includ- ing patents in the United States and foreign countries. PAGENO="0133" AGE DISCRIMINATION IN EMPLOYMENT 127 0. Such assignments will be made with the understanding that should the Company decline to patent or make use of such inventions or improvements it will, on request, release. the employee from any assignment thereof to the Com- pany, retaining only a non-exclusive license for itself and the right to grant a royalty-free non-exclusive license to the United States Government with respect thereto. D. Such assignment will be made with the further understanding that in the event the Company does not patent or make use of such inventions or improve- ments and licenses or otherwise disposes of the same to others, it will, after car- ing for its costs, apportion and pay to the employee a share of any new revenue received therefore from outside sources determined on some equitable basis the Company's selection. In determining that basis, the Company will take under consideration the nature of the invention and the nature of the employee's duties. E. That he will allow the Company to use in any manner photographs taken which show him in activity of his employment or photographs of him which may I)e used to show him as an employee of Mohawk for purposes of advertising, public relations or any other which the Company may elect. F. That he will allow the Medical Director to contact his personal physician, on a confidential basis, in order to receive medical information which may be necessary for purposes of diagnosis. G. That he hereby authorizes any individual, company or institution with whom he may have been associated to furnish Mohawk Airlines with any infor- mation concerning his employability which they have on record or otherwise, and do hereby release the individual, company or institution and all individuals connected therewith from any liability for any damage whosoever incurred in furnishing such information. H. Stewardesses only-That as a Stewardess for Mohawk Airlines she will resign as of the first of the month following her 32nd birthday. Employment is accepted and retained under the foregoing conditions. Date Signature of Employee EXHIBIT.7 FRONTIER AIRLINES STEWARDESS: GENERAL-STEWARDESS MANUAL A. Requirements for employment 2. Physical requirements: (2) Time Limit-The annual physical examination must be taken within a period of two weeks from the date of notification. The Stewardess will advise her Division Chief Stewardess in writing, with a copy to the Chief Stewardess, when this is accomplished. (3) Expense-The expense of the periodic physical examination will be borne by Frontier Airlines. 3. Probationary Period: a. Six months-A Stewardess will be employed on a six months' probationary period. The Stewardess must obtain a First Aid card before she has completed her 5th month or she will be grounded until she has completed the course. 4. Dismissal: a. During a Stewardess' probationary period or at any time thereafter she is subject to dismissal for good cause related to: (1) Poor attitude. (2) Poor conduct. (3) Failure to conform with Company regulations. (4) Unsatisfactory work. 5. Age Limit for Stewardesses: Effective June 1, 1954, any girl who is em- ployed as a Stewardes,~ on or after this date must resign immediately upon reach- ing her 32nd birthday. However, the Company will make every effort to find employment for a Stewardess~ in another capacity with the Company, depending upon the individual's desire and qualifications. 6. Marital Status of Stewardess: A stewardess who marries while in the em- ployment of the Company will be considered to have resigned effective with the date of her marriage. Page 2; chapter 90-2; issue date 8-1-66. PAGENO="0134" 128 AGE DISCRIMINATION IN EMPLOYMENT EXHIBIT S REPORT OF FINDINGS AFTER INVESTIGATION lxv. 1SS1-6o IN THE MATTER OF AIRLINES INDUSTRY-MAXIMUM AGE REQUIREMENTS (STEWARDESSES) On December 17, 1904, the Commission authorized an informal investigation on a statewide basis into the age ceilings for employment of airline stewardesses. I was designated by the Chairman of the Commission as the Investigating Com- missioner with respect thereto. The plan of the investigation has been, generally, to determine the policy and practice in this area of age ceilings for stewardesses on an industrywide and statewide basis by affording to the airlines, individually and collectively, and to the stewardesses, individually and collectively, opportunities to present facts and arguments in support of their positions; and, finally, to report as to whether granting of an industrywide bona fide occupational qualification is warranted under the New York State Law Against Discrimination. This report is confined to age ceilings for continued employment as stewardess; a separate report will be made as to age ceilings for initial hire of stewardesses. While the Commission has before it individual verified complaints by steward- esses and applicants for stewardess positions charging specific airlines with dis- crimination based on age, the merits of these complaint cases are not the subject of this inquiry; they will be dealt with separately, upon the facts and the law pertaining to each complaint. This investigation, as conducted by me with assistance of the Commission's employment Division, consisted of three main phases: Phase 1: A field investigation, conducted during the first half of 1965, which included interviews by Commission staff with key personnel representatives of three airline companies (American Airlines, Trans World Airlines, and United Airlines) and with officers of the two major stewardess unions (Air Line Stewards and Stewardesses Association, Local 550, Transport Workers Union of America, AFL-CIO, and Air Line Pilots Association, Steward and Stew-ardess Division, AFL-CIO). Phase 2: A mall questionnaire, sent in July 1905 to the presidents of the seven- teen other airline companies flying into the State of New York, to which all but one responded. (Attachment A includes copies of the questionnaire and covering letter, and a list of the airlines to which these were sent.) Phase 3: An informational hearing, held on December 7, 1965, at the Commis- sion's offices at 270 Broadway, New York City, to which were invited each of the twenty airlines flying into the State of New York, the Air Transport Association, and the two major stewardess unions. At the informational hearing, representatives of the two unions testified orally, submitted written evidence, and responded to the Commission's questions-all relating to the issues raised by the specification of age ceilings. Each union appeared by counsel: Herbert A. Levy, Esquire (of Cohen & Weiss of New York City), on behalf of the Air Line Pilots Association, Steward and Stewardess Division, AFL-CIO; and Asher W. Schwartz, Esquire (of O'Donnell and Schwartz of New York City), on behalf of the Air Line Stewards and Stew- ardesses Association, Local 550, Transport Workers Union of America, AFL-CIO. The union representatives testifying included the following: Colleen Boland, President, Air Line Stewards and Stewardesses Association, Local 550; Francis A. O'Connell, Legislative Director, Transport Workers Union; Deloros Kidder, Vice President, Air Line Pilots Association, Steward and Stewardess Division; and Marjorie Cooper, Regional Vice President, Air Line Pilots Association, Steward and Stewardess Division. None of the airlines accepted the invitation to present testimony or argument on the merits through their own executive or staff personnel. Jesse Freidin, Esquire (of Poletti. Freidin. Prashker. Feldman & Gartner of New York City) noted his appearance on behalf of thirteen airlines and the Personnel Relations Conference of the Air Transport Association. Counsel for the airlines challenged the Commission's jurisdiction, on various grounds: his request for an adjournment to December 15. 1965, in order to afford the airlines a further opportunity to decide whether to appear and submit evi- dence or argument on the merits, was granted. On December 10th, Mr. Freidin PAGENO="0135" AGE DISCRIMINATION IN EMPLOYMENT 129 informed me that he would not avail himself of the opportunity to appear before the Commission on December 15th but would instead seek to challenge the Com- mission's jurisdiction in court; and he requested a reasonable period of time within which to prepare to do so, which was granted. It is noted that on De- cember 7th Mr. Freidin, stating he had full authority to speak for the airlines in this regard, rejected my suggestion that the airlines which fly into the State of New York and have a maximum age policy for airline stewardesses refrain from dismissing any person from the position of stewardess on the basis of age pending the resOlution of this problem. To date, no action in court has been taken by Mr. Freidin; and it is my opinion that no further extension of time is warranted. Accordingly, and based on the facts and arguments before me, I am herewith issuing my report and recom- mendlations. The three phases of the investigation combined to yield the following back- ground information and basic facts relating to the use of age ceilings by the airlines for continued employment of stewardesses: (1) Background Information (a) On the airlines, the job titles of "stewardess" and "hostess" are inter- changeable; those of "flight service attendant" and "cabin attendant" cover both stewards and stewardesses; those of "purser" and "senior flight attendant" cover both males and females in a higher classification. (b) The 38 United States airline companies currently employ some 15,000 stewardesses, and this number is expected to increase during the next few years. There is a high turn-over rate in the stewardess classification; the average length of service is about two years; each year over 5,000 new stewardesses are hired from an estimated 100,000 applicants. Despite this high turn-over rate, there are currently in active flight service several hundred stewardesses who have been flying between ten and thirty years and whose ages range between 30 to over 50 years. (c) Of the 38 United States airlines, 20 fly into the State of New York and 9 of these have stewardess bases in the State of New York. "Stewardesses based in New York State" start and end their flight duties at airports within the State (for example, at John F. Kennedy International and LaGuardia airports). Attachment B identifies these airlines. (d) Pursuant to regulations of the Federal Aviation Agency (FAA), airline stewardesses are required to pass, at least annually, various examinations relat- ing to their continued ability to perform their duties in flight service; these include examinations for emergency evacuation procedures, familiarity with the airplanes in service, and personal health. (2) Age Ceiling for Continued Employment as stewardess (a) The first airline stewardess was hired in 1935. Until the 1950's, no airline had set an age ceiling for continued employment as stewardess. A few airlines introduced such an age ceiling in the 1950's-setting it at age 32 or 35; others introduced it as recently as 1964. With but few exceptions, the policy has been instituted unilaterally by the company and not as part of its contract with the union. With but two exceptions, the policy when instituted was not made retroactive, those employed prior thereto being permitted to continue flying until the employer's mandatory retire- ment age (generally 60or65). ~ The first application of a specidi maximum age ceiling (age 32) to produce discharge of a stewardess occurred in 1963; since then, others have been dis- charged or removed from flight duty because they reached the special maximum age ceiling (age 32 or 35) for continued employment as stewardess. (h) The setting of an age ceiling for continued employment as stewardess is not a "general industry practice." Of the 38 airlines in the United States, 24 do -not have this policy. Pan American World Airways, the major United States international airline, does not have this policy. Of the group of domestic airlines frequently referred to as the "Big Four"-namely, American Airlines, Eastern Airlines, Trans World Airlines and United Airlines-only 2 (American Airlines and Trans World Air- lines) had this policy at the time of the Informational Hearing. [The Commission is more recently in receipt of information that United Airlines is now seeking to establish an age ceiling for continued employment of its new stewardesses.] PAGENO="0136" 130 AGE DISCRIMINATION IN EMPLOYMENT In 1963-1964, Airlift International and Central Airlines, ~oth of which had had such an age policy, discontinued it. Available information on foreign airlines is that on seven of them the age ceil- ings generally fall in the 40's and SO's, up to a maximum age of 67 in Norway. (c) No similar age ceiling for continued employment for stewards exists on any airline. According to the information on hand, the job duties of stewards and stewardesses are the same. SUMMARY (1) None of the evidence on hand gives warrant for the establishment of an industrywide policy setting a special arbitrary chronological age for continued employment of airline stewardesses-whether age 32 or 35, or any age below that of the standard mandatory retirement age for company employees. (2) The evidence on hand does support the opposite position; namely, that termination as an airline stewardess prior to the employer's standard mandatory retirement age should be predicated solely on the individual stewardess' continued ability to perform the duties of the position at the level of performance required ~y each airline company for its stewardesses. (3) On the basis of the evidence before me as Investigating Commissioner, I do not find that, under the New York State Law Against Discrimination, there is support for a claim that a bona fide occupational qualification based on age for continued employment properly applies to the airline stewardess position on an industrywide basis. J. EDWARD CONWAY, Investigating Commissioner. * MARcH23, 1966. EXHIBIT 9 DErn~MINATIoN AFTER INVESTIGATION, Eloise Soots v. American Airlines, Inc. CASE NO. CA-12288-65 J. Edward Conway, Investigating Commissioner April 20, 1966 The above-entitled verified complaint is one of several complaints involving the job category of airline stewardess, each of which charges, that, in dismissing the complainant from employment as an airline, stewardess when she reached a given age (in the instant case, age 33) respondent airline company discriminated against the complainant because of age, in violation of the New York Law Against Discrimination. The respondent airline company herein does not dispute the charge that the basis of the above-named complainant's dismissal was her reaching a given chronological age or that complainant would have been retained in her position as airline stewardess except for respondent's policy setting a maximum age for continued employment as airline stewardess. There has been no presentation of any substantial evidence or argument that the individual work history of the complaint bad any material bearing on the;termination of her employment as an airline stewardess. The central issue is therefore quite clear, namely, refer- ence to the qualifications of the individual employee, does the airline violate the New Yoi~i Law Against Discrimination when it establishes a company policy setting a special arbitrary chronological age for continued employment of its air- line stewardesses at any age below that of the standard mandatory retirement age for company employees, and applies such policy without reference to the qualifications of the qualifications of the individual employee? Full opportunity has been afforded to respondent to provide data and argu- ment on the merits. To the extent to which respondent has availed itself of this opportunity, respondent has not submitted, in support of the special age limit which it has established, persuasive evidence such as might validate any blanket bona fide occupational qualification. Further, the information submitted by respondent does not furnish any war- rant for the grant of a bona fide occupational qualification to it because of any PAGENO="0137" AGE DISCRIMINATION IN EMPLOYMENT 131 special factors relating to the duties performed by the particular complainant named herein. Accordingly, based on the evidence before me, I find probable cause in the above-entitled case and will now go forward with the further procedures author- ized by the Law Against Discrimination. EDWARD CONWAY, Investigating Commissioner. To: Miss Eloise N. Soots, Complainant, 150 East 49th Street, Apt. 9E, New York, New York 10017 American Airlines, Inc., Respondent, 633 Third Avenue, New York, New York 10017 Attention: Mr. C. E. Smith, President EXHIBIT 10 DETERMINATION AFTER INVESTIGATION Patricia Lee Arnold v. American Airlines, Inc. CASE NO. CA-10938--64 J Ed~ ard Conway Investigating Commissionei April 20, 1966 The above-entitled verified complaint is one of several complaints involving the job category of airline stewardess, each of which charges that, in dismissing the complainant from employment as an airline stewardess when she reached a given age (in the instant case, age 33) respondent airline company discriminated against the complainant because of age, in violation of the New York Law Against Discrimination. The respondent airline company herein does not dispute the charge that the basis of the above-named complainant's dismissal was her reaching a given chron- ological age or that complainant would have been retained in her position as airline stewardess except for respondent's policy setting a maximum age for con- tinued employment as airline stewardess. There has been no presentation of any substantial, evidence or argument that the individual work history of the com- plainant had any material bearing on the termination of her employment as an airline stewardess. The central issue is therefore quite clear, namely, does the airline violate the New York Law Against Discrimination w-hen it establishes a company policy setting a special arbitrary chronological age for continued em- ployment of its airline stewardesses at any age below that of the standard manda- tory retirement age for company employees, and applies such policy without ref- erence to the qualifications of the individual employee? Full opportunity has been afforded to respondent to provide data and argu- ment on the merits. To the extent to which respondent has availed itself of this opportunity, respondent has not submitted, in support of the special age limit which it has established, persuasive evidence such as might validate any blanket bona fide occupational qualification. Further, the information submitted by respondent does not furnish any war- rant for the grant Of a bona fide occupational qualification to it because of any special factors relating to the duties performed by the particular complainant named herein. Accordingly, based on the evidence before me, I find probable cause in the above-entitled case and will now go forward with the further procedures au- thorized by the Law Against Discrimination. J. EDWARD CONWAY, Investigating Commissioner. To: Miss Patricia Lee Aronold, Complainant, 347 East 76th Street, Apt. 4D, New York, New York 10021 American Airlines, Inc., Respondent, 633 Third Avenue, New York, New York 10017 Attention: Mr. C. B. Smith, President PAGENO="0138" 132 AGE DISCRIMINATION IN EMPLOYMENT EXHIBIT 11 DETERMINATIoN AFTER INVESTIGATION Janice Austin Lamer v. Trans World Airlines, Inc. CASE NO. CA-11459-65 J. Edward Conway, Investigating Commissioner April 20, 1966 The above-entitled verified complaint is one of several complaints involving the job category of airline stewardess, each of which charges that. in dismissing the complainant from employment as an airline stewardess when she reached a given age (in the instant case. age 35) respondent airline company discriminated against the complainant because of age, in violation of the New York Law Against Discrimination. The respondent airline company herein does not dispute the charge that the basis of the above-named complainant's dismissal was her reaching a given chron- ological age or that complainant would have been retained in her position as airline stewardess except for respondent's policy setting a maximum age for con- tinued employment as airline stewardess. There has been no presentation of any substantial evidence or argument that the individual work history of the com- plainant had any material bearing on the termination of her employment as an airline stewardess. The central issue is therefore quite clear, namely, does the airline violate the New York Law Against Discrimination when it establishes a company policy setting a special arbitrary chronological age for continued em- ployment of its airline stewardesses at any age below that of the standard man- datory retirement age for company employees, and applies such policy without reference to the qualifications of the individual employee? Full opportunity has been afforded to respondent to provide data and argument on the merits. To the extent to which respondent has availed itself of this op- portunity, respondent has not submitted, in support of the special age limit which it has established, persuasive evidence such as might validate any blanket bona fide occupational qualification. Further, the information submitted by respondent does not furnish any warrant for the grant of a bona fide occupational qualification to it because of any special factors relating to the duties performed by the particular complainant named herein. Accordingly, based on the evidence before me, I find probable cause in the above-entitled case and will now go forward with the further procedures au- thorized by the Law Against Discrimination. J. EDWARD CONWAY, Investigating Commissioner. To: Mrs. Janice Austin Lamer, Complainant, 505 Garnett Road, Joppa, Mary- land 21085 Trans World Airlines, Inc., Respondent, 605 Third Avenue, New York, New York 10016 Attention: Mr. C. C. Tillinghast, Jr., President EXHIBIT 12 DETERMINATION AFTER INVESTIGATION dna yet El Shall v. Trans World Airlines, Inc. CASE NO. CA-12314-6G Bessie A. Buchanan, Investigating Commissioner May 2, 1966 In her complaint filed on January 24, 1966, complainant charged respondent with discrimination based on age and sex in terms, conditions and privileges PAGENO="0139" AGE DISCRIMINATION IN EMPLOYMENT.. 133 of employment, in violation of the New York Law Against Discrimination. Specifically, complainant alleged that respondent's policy sets an age ceiling of 35 years for continued employment as airline hostess, in line with which respondent informed her that she would be remo~Ted from flight duty in February 1906, when she would become 35. Complainant further alleges that no similar special age ceiling is `applied to the pursers, whose job duties are largely similar and whose incumbents are all male. Subsequently, on 2/28/66, complainant was removed by respondent, from flight service, put on "leave of absence," and offered ground employment. Re- spondent has confirmed to the Commission that complainant's removal from flight service was based solely on its policy setting `a maximum age of 35 for continued employment as hostess and indicated that had complainant's per- formance been in question she would have been discharged, not granted a leave of absence and offered other ground employment. The first question before me is that relating to the charge of discrimination because of age. This question has been considered recently by the Commission in three other cases of airline hostesses in substantially similar situations, one of whom was employed by the same respondent as complainant; probable cause was found to credit the allegations of each of the three complaints charging such age discrimination. A further field investigation was made in the instant matter pursuant to my direction, including an invitation to respondent to offer for my consideration any and all pertinent information .on the merits as respondent might wish to provide;' respondent has declined such opportunity to provide additional in- formation on the merits. I find there is probable cause to credit the charge of discrimination based on age. Before proceeding to the second charge, I believe it may be useful to clarify one aspect of the significance of this finding. A determination that an airline may not, under the New York Law Against Discrimination, remove an airline hostess from flight duty based solely on her reaching a special chronological age, without regard to her individual qualifications, does not mean `an elimina- tion or change in lawful standards of individual qualifications-such as those relating to the maintenance of attractive personal appearance and the ability to do the work involved in the particular job category. The second charge relates to sex discrimination. Respondent has confirmed~ that (`a) there is no special chronological age at which pursers are removed from flight duty-prior to normal retirement at age 60; (b) the duties .of the purser, although including some additional responsibilities largely clerical in nature, are similar to those of the hostess; (c) the pay scale of the purser is significantly above that of the hostess; and (d) respondent has hired only males as pursers since World War II. On respondent airline, the purser is required to speak two foreign languages. Complainant has for several years worked for respondent from its bases in Egypt and France, an'd does speak both Arabic and French. If there were no sex bar to her promotion to purser, without regard to the question of age discrimination re hostesses, there is a substantial argument that complainant could have continued flying by securing a promotion to purser. Respondent has in the past year increased its purser complement, and expects it to continue to increase in size. Respondent points to the following provision in its current contract with the union as justification for its limitation, in practice, of the purser position to males. Article XIII (G) reads: future vacancies within the Flight Purser category will be filled either by qualified Hostesses in order of seniority, the Company retaining the right to resort to outside hire of new female employees in the absence of receipt by the Company of sufficient bids of such qualified Hostesses, or by hiring new male employees at the option of the Company." [Emphasis added.] According to respondent, this clause recognizes that hostesses could qualify for the purser position, but also provides respondent with an option to hire males only; and respondent has seen fit to exercise this option. With the 1965 amendments to the Law Against Discrimination prohibiting discrimination based on sex, such a contract provision-even on its face-~becomes of doubtful legality. I find probable cause with respect to the charge of discrimination based on sex. PAGENO="0140" 134 AGE DISCRIMINATION IN EMPLOYMENT I shall now go forward with the further procedures authorized by the Law Against Discrimination. To: Mrs. Anayat El Shall, Complainant, 6700 192nd Street, Flushing, L. I., New York Trans World Airlines, Inc., Respondent, 605 Third Avenue, New York, New York 10016 Attention: Mr. C. C. TIllinghast, Jr., President EXHIBIT 13 THE AIRWAYS CUYB, NEW YORK CwY AIRLINE STEWARDE5S SURVEY 1. Do you think that the airlines should have age ceilings for stewardesses? Yes 2, 436 No 3,033 Don't care 776 2. Would the age of the stewardess matter to you? Yes No Don't care 3. Do you prefer a stewardess of a particular group? Yes 1, 093 No 2,575 Don't care 1,342 4. If you answered yes to No. 3, which group do you prefer? 18to25 328 26 to 30 837 31 to 35 363 3~to40 188 4Oandabove 35 5. Should a stewardess be unmarried? Yes 862 No 1,445 Don't care 2, 827 1, 533 3, 361 1, 091 PAGENO="0141" AGE DISCRIMINATION IN EMPLOYMENT 135 EXmBIT 14 Dear Member- -Oi! ~(~` As you may k~c `~re's"d ~ the age of stewardesses arid their continued eoploynertJ~..-;~'° ty tne airlines. May we have your views? (Circle "Y" for yes, "N" for no and "DC" for don't care.) 1. Do you think thaf the airlines should have age ceilings for stewardesses? Y N `DC D~WdCld the age of the stewardess matter -- toyou? V N DC `~Do you prefer a stewardess~Fä particular age groom? V N DC ~Tf you answered yes to ~3, ~nfch group do you prfflFfl (Circr1e one.) 18-25 26-30 31-35 36-40 40-above S.. Snoulh a stewardess be unmarried? `~` N* DC Signature: ,~,i;,, ,.?~. Member #1/\ ~`H `;`i 7 ~j~7f ~ ~s//.t Dear Member- " ` As ydu reay know, there's a current controversy about .i'~' the age of stewardesses and their 0ontinued.empl0yment~;~~ by the airlines. May we havd your views? (Circle "Y" for yes, "N" for no and "DC" for don't care,) *`-i-5' /.t/~i~ ~ a have age ceilings for stewardesses? , ,,~,Y' 1N,~ DC particular age group? ~ -;~ ~ (Circle one.) 19-25 26-30 31-35 36-40 40-above~.. ~nou a so jar ~TH'~" ~ unmarried? ______ Signature: ~ #? `~ / j//'~''P~, ssJ,~~;o/ ,<`./-~ `.. .."~` ~. ,-.~ .~ Dear Member - / ~ / 1_I As you may k'i m the acurr~tcoocroversyAbot,t I for yes "N" fo~ no ~d e your views? (Circle "V' ~ (Circleone)1822r0a000~~p0er `~0-above. / ~ _____ - ~ N DC ~ Signature ______ ~ ~`~`~`~f' ~` -" -- - - " / / , .~ ~` PAGENO="0142" 136 AGE DISCRIMINATION IN EMPLOYMENT EXHIBIT 15 Dear 0 know there's a current controversY abouu the age of stewardesses and their continued eoploYasflt by the airlines. May we have your v~ews? (Circ_e Y ~ ~ (C"'c~eO) .~825 2( 0 ~ Si r~ ~e! ~ "~t~fl /1 a-b f L ~ - r ~i ~ / ~ /`` `~° ~" `~-~~-~- ~ ~ ~ aariueu-. - `~`f ~ZaS Daa' a ~-- -J As yak may ~ ~ne 5 ~u re contr~v~rS~ ~ - -~ the age of stewardesses and their continued employrent~~~l~' by the airlines. May we have your views? (Circle `Ye7 ~ for yes, "N' for no and `DC" for don't care.) ~ IT63~ou thonk that the corlunes should have age ceilings for stewardesses? Y _d~~oo s~"~ass r-_ e~ ~, 3~Do you oref#fa stewardess of. a particular age group? ~` DC 4~If you answered `ed~dd~3, which group do you praler? 7~? (Cirtha one.) l~-25 26-30 31-35 35-40 40-above ~ unoarried? 6 (~) - ~F _______ Signature~~ki--~-~- `/` Merbar #______________ .J~- ~ t0~T/ . -~ -~-~ a ~ ,:~-~-). ~ ~ ~ ~ . Dea~ p -~ ~ - As you rosy kncw, there's a currant contrhversy aboutT~' the age a s a -ass - a toe con r ad e-olay"er by the airlines. May we have your views? (Circle "Y": ~o- yes o~ ro a D~ tO~ 00 care ) - ~ - 1. Do you thtnk that ona a:r2ines should have age ceilings for stewardesses? Y N DC 2. Would the are of the stewardess ratter may00? V N 00 3~Do you prefar a stewerdass of a * aarticulsr are orouo? `~ N DO 4. 1± you answered yes to #3, whicu group co you prefer? * (Circle one.) 16-25 26-30 31-35 36-40 40-above S. Should a stewardess hi -. unnarried? Y N DC -~ Signature: ~ ~` L Z~1 Member #____________ EXHIBIT 16 [From the Daily News, Dec. 23, 19651 THE INQUIRING FOTOGRAPHER The News will pay $10 for each question accepted for this column. Today~s award goes to Murray Oken, 510 Ocean Ave., Brooklyn. THE QUESTION Many airlines will not permit stewardesses to remain on the job beyond the age of 35. Does a woman lose her glamour at 35? WHERE ASKED Uptown and Downtown Manhattan. PAGENO="0143" AGE DISCRIMINATION IN EMPLOYMENT 137 THE ANSWERS Albert Cooper, Fifth Ave., attorney: "No. Most women are even more alluring after 35. However, stewardesses do lead active lives. What with serving meals, caring for children and answering many requests a stewardess of 35 is more apt to look a bit harried than a younger woman who can take the activity in stride and still look perfect." ~\Irs Sylvia Miller saleslady Not at all Actually the airlines dismiss older stewardesses because male passengers prefer the sex appeal of youngei~ women. They like to flirt with the stewardesses and the younger girls are more likely to fall for their line An older stewardess knows them for what they are-wolves Alexander Schnee, Park Ridge, N.J., marine parts sales:. "A woman does ~ose something at 35, but I prefer to call it the bloom of youth. However, this is unimportant to most people including airline passengers There is an intriguing quality ahout women in their mid-30s and beyond. It's an appeal that enhances their natural beauty." Charles W. Wilson, Waterbury, LI., sales engineer: "There's more glamor than mere beauty. It involves a woman's personality. That's why I think the airlines are dead wrong. I travel 50,000 miles a year. Most flights are of. no more than three to four hours duration. I'm satisfied with an efficient, pleasant hostess, net a Miss America." Celia Luis, manicurist.: "Even if this were true, and I'm nOt saying it is, today's woman has the ways and means to recapture her glamor. Cleopatra would have given a kingdom for the aids to beauty available to women today. With the proper application of cosmetics, it's impossible to tell a woman's age." Leslie Stoller, Grand Concourse, Bronx, manager barber shop: "Not to my mind at least. But in the long run it's up to the woman herself. A woman can marry and let herself go or she can maintain a trim figure. There is no woman more attractive than a well-groomed woman in her 40s." * EXHIBIT 17 OBSERVER: UP IN THE AIR WITH THE GIRLS * (By Russell Baker) WASHINGTON, Sept. 4.-In the present enlightenment, few people will be shocked to hear that the airlines have been subtly trading in sex. Where the modern spirit of tolerance. rebels,, however, is the point at which the flying industry starts trying to dictate their clients' taste in women. This is the issue the airline stewardesses have raised before Congress in com- plaining that four dOmestic lines require them to quit at the age of 32 in some cases, and 35 in others, because they are too old to keep the male passengers titillated. "It's the sex thing," one airline executive u-as quoted as saying. "Put a dog on an airplane and twenty businessmen are sore for a month." TOO LITTLE RESEARCH The airline policy is the kind of blunder that results from too much abstract psychological thinking about passenger motivation and too little basic research. The most haphazard study will show that, where sex is concerned, male airline passengers fall into three categories. By far the largest group consists of those who find it impossible to think about women while strapped into a metal cylinder that is moving at the speed of sound four miles above all civilized trysting places. Men in this group don't care how the coffee, tea or milk arrives. They have serious things on their minds. Things like how to knife a competitor upon arrival at Point B or how to catch a 30-minute nap without being awakened for chewing gum. Others want to listen for engine failure worry whether the barber shop will be closed at the next airport or, perhaps, repent of minor peccadillos comnitted in the last town. To these men, a stewardess can never be more than a waitress. If they think about her at all, it is to wonder why such well-girdled women choose to schiep coffee to ingrates when they could be discovering radium or pouring w me in the sunlight PAGENO="0144" 138 AGE DISCRIMINATION IN EMPLOYMENT REALLy A WAITRESS? Stewardesses wearing the universal airline hips, top-knotted grandmothers in bombazine, old gentlemen with gravy stains on their apron fronts-it makes no difference to the Group I passenger, who brings the coffee and doesn't wake him up for chewing gum. Group II and Group III are, admittedly, woman-minded, but with a distinct difference. Men in Group II concur generally with the anonymous airline execu- tive that the thirtyish woman is "a dog." Though they may themselves be eligible for Medicare, they insist that the female population should be stowed in ware- houses and kitchens from the day the first crow's-foot appears. `~\Then the coffee, tea or milk arrives, Group II wants it delivered in a flurry of youth, with teeth that have never known unfluoridated water, hips that have never suffered from Depression's macaroni diet and feet that have never been trampled in the fox trot. It is Group II at which airline policy is aimed. Many stewardesses marry their passengers, and invariably their husbands come from Group II. When their mar- riages fail, it is only because the wife has turned 32 and deveisped an early- morning crow's-foot. When this happens, the husband has only to redouble his air travel. This leaves that large body of men who make up Group III. Group III men like a provocative stewardess on board as much as men in Group II. What they do not like is the airlines' tyrannical effort to impose Group II's preference for the younger woman. Men in Group III happen to be utterly indifferent to women under 32, and in many cases even to women under 35. What's worse, they are absolutely terrified by women under 27, and women under 24-well, to a Group III man, a woman under 24 is all right as a daughter, but she can scarcely be thought of as a woman. The fact about men, which the airlines fail to grasp, is that one man's woman is another man's yawn. The airlines' attempt to limit feminine desirability to femininity born~ after the Hoover Administration is an affront to the taste of every man in Group III, and as such, should be looked into by the Civil Aero- nautics Board. Group III men prefer their women older. The airlines' suggestion that the older woman is a "dog" is as insulting to the tastes of these men as it is to the women. Group III would prefer to have stewardesses kept off airplanes until they are at least 32. This is not simply a matter of preferring the fuller hip and the more worldly eye. When the Group III man contemplates the standard under-30 model, which the airlines insist on presenting him, he sees nothing but misery and frustratiorL At a glance, he can see that an evening with her would involve him in the most humiliating lies to conceal the fact his lumbago is not up to dancing the monkey. If he wanted to reminisce with her about the N.R~A., he would first have to spend hours telling her what it was. And then, she would want to remi- nisce about Elvis Presley. GROUP FLIGHTS In all likelihood, the Group III man knows, he would end by telling her, "You remind me of my daughter." The Group III man does not want to be reminded of his daughter while airborne. He wants the coffee delivered in a flurry of expe- rience with a wrinkling about the eyes that says, "The monkey may leave me cold, but I could tell you a thing or two about the N.R.A." With this background, the airlines' stewardess problem is easily solved. Just as they now provide first-class and tourist flights for differing tastes, they should establish Group II, Group III and Group I flights. Stewardesses would be graduated from Group II to Group III as they turned 35. On Group I flights, the coffee would be served by the co-pilot. EXHIBIT 18 NANCY TAYLOR RECEIVES ALPA GOLD MEDAL AWARD Miss Nancy Taylor, ex National Airlines stewardess and now a new ALEA. member as an NAL reservation agent in Miami, is one of the first four persons to ever receive an ALPA Gold Medal Award for herotisni. Established many years ago, it is considered the highest plaudit given by the Air Line Pilots Association. PAGENO="0145" AGE DISCRIMINATION IN EMPLOYMENT 139 Miss Taylor's Award cited her "for heroic action in coping with an attempted armed hijacking In the cabin of National Airlines Flight No. 30 enroute from New Orleans to Miami on November 17, 1965." Although she was ordered to do so with a gun in her back, Miss Taylor refused to allow an armed passenger intent on taking over the plane to go into the cockpit, thus enabling the pilots to return to New Orleans, where the would-be hijacker was subdued and de- planed by police. COOL UNDER FIRE The official report submitted by Captain Dean Cooper, in command of NAL Flight No. 30 on the night of November 17, 1965, clearly reveals that even though continually threatened, Miss Taylor remained calm and in complete control of the situation, and not only showed unusual heroism in the face of danger but also safeguarded the lives of other passengers by her actions. By maintaining constant phone conversation with the plane captain, Miss Taylor was able to keep the hijacker's attention focused on her thereby removing other passengers and crew members from immediate danger. At the same time, she was able, in the process of relaying messages between the would-be hijacker and the officers in the cockpit, to give Captain Cooper the time he needed to turn the plane back to New Orleans where both police and FBI had been alerted. With Miss Taylor playing the leading role, a deliberate attempt was made to stall for time while the gunman was led to believe that every attempt was being made to complete a special phone call to a telephone number in Brownsville, `Texas as he had requested. Captain Cooper's official report points out that periodically his phone con- versations with Miss Taylor were interrupted by the sound of gunfire. Through all of this, Miss Taylor remained calm, and in control of the situation. Sparked on by her determination and fearless actions, other passengers helped to subdue and disarm' the would-be' hijacker shortly before the plane landed at New Orleans. ` Mr. DENT. Our next witness is the executive vice president of the National Employment Association and also the representative of the American Retail Federation, Mr. Frederick T. Finigan. Gentlemen, you may go in the order you decide between yourselves. Mr. HARMON. Mr. Finigan will go first as he has to catch a plane back to New York. STATEMENT OF FREDERICK T. PINIGAN, AMERICAN RETAIL FEDERATION Mr. FINIGAN. I want to thank Mr. Harmon for allowing me to go first. I , will paraphrase my statement which will be formally intro- duced. Mr. DENT. Without objection the whole statement will be made part ofthe record. Mr; FINIGAN. Mr. Chairman, my name is Frederick T. Finigan. I am vice president of Allied Stores Corp. I appear before you today as chairman of the task force on equal employment opportunity of the American Retail Federation. I have with me my associate, Donald F. White, employee relations counsel of the American Retail Federation. The American Retail Federation, is composed of 47 State `and 26 national retail associations who, in turn, number among their mem- bership, retailers of all types and sizes. At the outset, it should be emphasized that our federation favors the adoption of legislation which would protect the employment oppor- tunities of the older worker. Further, we have undertaken a careful study of the proposals before this committee, especially in light of our policy, which states as follows: 85-376-67-10 PAGENO="0146" .140 AGE DISCRIMINATION IN EMPLOYMENT The American Retail Federation has supported, and will continue to support equal employment opportunity for all persons, and reasonable and practicable measures to achieve that end. Before addressing ourselves to the specific age discrimination legis- .lation under consideration, I would like to briefly review retailing's record in the areas of equal employment opportunity both prior to and subsequent to passage of the Civil Rights Act of 1964. That record has been a good one. By this I have reference not merely to ideals but to a number of facts. For instance, it is a fact that in the relationships which our federation and our members have enjoyed with governmental agencies which administer antidiscrimination statutes, we have manifested a positive, constructive, and practical ap- proach to fair practices in employment. Further, it is a fact that in following the practice of actively seek- ing out the employees without regard to age, retailing has `e1nployed a substantial percentage of people 45 years of age or older on a part- time basis. Most importantly, it should be noted that the performance of such employees is generally excellent-in fact, they have a certain stability about them which makes them valued and long-term em- ployees. The fact that relatively large numbers of older people are employed in our industry is borne out by limited studies available such as "The American Worker-Age Discrimination in Employment," the Secre- tary of Labor's report to Congress, Research Materials, June 1965, (p. 53). This report shows occupations which are poor performers- that is, in which 10 percent or less of the men's jobs in 1960 were filled by men 55 years old or older; the study further indicates those occu- pations wherein the proportion was 30 percent or more.in 1960. Retail- ing is in the latter category, showing a performance figure of 30 percent. Changes in retail employment patterns have occurred since the industry was covered by the Fair Labor Standards Act of 1961, par- ticularly in the increased employment of. women on a part-time basis. Nevertheless, I am confident that there has been no change in the age level of the employee. So let the record speak for itself. This is what we mean when we now say tha.t we do not believe that a Federal legal remedy is neces- sarily required for retailing in the sense that it will correct discrimnina- tory injustices. However, as an expression of the public interest, the federation agrees with Secretary Wirtz when he transmitted to Con- gress his above-mentioned 1965 report which states, in part, that for American industry in general: A clear-cut and implemented Federal policy against arbitrary discrimination in employment on the basis of age would provide a foundation for a much needed vigorous, nationwide campaign to promote hiring on the basis of ability rather than age. Before discussing our suggestions in detail, let me briefly comment upon H.R. 3651. It has much to commend it-for instance, the compre- hensive scope of section 3: Education and Research Program. This section clearly enunciates, in the Secretary's own words which I quoted earlier:~ . * * * a foundation for a much needed vigorous nationwide campaign to promote hiring on the basis of ability rather than age. We also find merit in the exemptions contained in section 4(f) (1), (2), and (3), which, succinctly stated, permit an employer to con- PAGENO="0147" AGE DISCRIMINATION IN EMPLOYMENT 141 sider age as a bona fide occupational qualification; to separate an employee under a~ retirement policy or ~system and to discharge for good cause H R 3651 contains provisions for positive steps to make studies and recommendations to achieve the goals of the bill. We would leave the nature and type of cooperative agencies to the judgment of the mciii- bei s of the committee, and hope that ~ ou would seek our expertise before proceeding to establish cooperative-type organizations or plans. Yon will find retailing most willmg to cooperate However, w e `ire categorically opposed to placing administration and enforcement with the Secretary of Labor, which imphes another enforcement agency, division, commission-call it what you will- within the Department of LabOr. I must emphatically express the ±ederation's opposition to the proliferation of such enforcement agen cies The public interest-'ind the real goals of an age discrimination law-would be more than adequately protected by investing respon sibility for administration and enforcement within an already existmg agency. Mr DE~.T Excuse me Have you given `my thought as to which agency might be considered by your group as the proper agency to administer this a:ct? Mr. FINIGAN. I believe such an agency would be the Wage and Hour Division of the Department of Labor, which has had the vital experience gained in enforcing two other antidiscrimination statutes- Child Labor and, more recently, the Equal Pay for Women Act (the latter measure simply amends sec. 6 of the FLSA). I would like to briefly dwell on the history of the Equal Pay Act. Members of t:his subcommittee will recall that, in its original form, it was very similar to H.R. 3651 in its administration and enforcement provisions. However, it languished in committee for a number of years until it was redrafted as an amendment to. the Fair Labor Standards Act in 1963 and passed by both bodies and, thereafter, enacted into law. The language of the Equal Pay Act was simple, concise-and, therefore, easy to understand and to administer. All evidence seems to confirm that experience under this law has been good from the point of view of the employee and the employer. Adverting to the federation's concrete recommendations, our task force has concluded that an amendment to section 6 of the FLSA in a form which we will propose, is not only compatible with, but is con- sistent with the antidiscrimination provisions of the Equal Pay Act, which immediately precedes the age bill in the Fair Labor Standards Act The major thrust of the draft bill, which the federation's task force developed, should appeal because it simplifies the current proposal, while preserving its general intent The language has been borrowed to some extent from the Equal Pay Act and the President's Executive Order 11141, pertaining to those employers who have contracts with the Federal Government. The pertinent sections of our draft bill (following sections which cover laboi unions as defined in section 5(d) (2) and (4) of the equil pay provisions of the FLSA) .read as follows: (f) No employer having employees subject to any of the provisions of this sec- tion shall within any establishment in which such employees are employed, In connection with the employment, advancement, or discharge of employees, or in connection with the terms, conditions, or privileges of their employment, dis- PAGENO="0148" 142 AGE DISCRIMINATION IN EMPLOYMENT criminate against employees because of their age except upon the basis of (I) bona fide occupational qualification, (ii) a retirement or insurance program~ (iii) a statutory requirement or (iv) on any other factor other than age, pro- vided that this paragraph shall be limited to persons who are at least forty-five years of age but shall not have attained the earliest age at which any individual is eligible to receive full old age benefits under the Social Security Act. There are four provisions upon which I would like to concentrate in. explaining our proposal; we believe that all others are both seif-ex- planatory and noncontroversial. 1. Exception (ii)-"a retirement or insurance program"-both H.R. 3651 and the President's Executive order make similar provision. I submit that the pertinent parts of the Secretary's June 1965 report can-and have been-read to show that retirement programs, pension plans, insurance systems or health plans either do or do not have a significant and justifiable effect upon the hiring of older people. We know that they do. While our proposed exception may lack necessary technical details, it must be recognized as practical and necessary in an age discrimination law. 2. Upper age limit defined in terms of eligibility for social security benefits-permits flexibility in the event of the inevitable changes in the law permitting early eligibility. Ever-increasing social security benefits, intended to provide specifically for something more than sub- sistence income, and liberalization of the earnings test, can change the concept and the practical effect of social security payments. Thousands of older people now work in retailing-hut limit their earnings by choice to the present test. 3. Coverage7-H.R. 3651 covers establishments which employ 25 or more employees. Our version would cover an employer subject to the FLSA-and with the new "dollar test" now at $500,000-it can be expected that coverage will be extended to a large number of establish~ ments with fewer than 25 employees. 4. The FLSA section 13(a) (1) exemption of so-called white-collar employees would be subsumed within the statutory exemption retained in our bill. These executives, administrative and professional em- ployees, are actually or potentially the top echelon executives in retail- ing. H.R. 3651 has, in effect, ignored this exemption-which has al- ways existed in the Fair Labor Standards Act-also encompassing the Equal Pay Act. Retailing maintains that there is nothing to be gained by failing to include this exemption in the present law and placing these employees under an agediscriminationstatute. In the firstplace, they are~usualIy hired, trained, transferred, promoted, and further trained, transferred, and promoted within a long-range pro- gram, which enables them to become eligible for the uppermost posi- tions in the same company where they commenced employment. There- fore, executive, administrative, and professional employees are gen- erally hired long before age 45-although if they are otherwise quail- fled, a store would certainly look for talent at any reasonable age. However, an acute problem would arise in selecting executive, ad- ministrative, and professional employees for promotions to positions of even greater responsibility, unless there; exists an exemption from age discrimination in making such a selection. This is true because of two fundamental requirements inherent in the types of extremely im- portant jobs to which executive, administrative, and professional employees seek to be promoted, namely: (1) Such positions unlike less PAGENO="0149" AGE DISCRIMINATION IN EMPLOYMENT 143 responsible ones generally demand protracted periods-oftentimes several years-of actual experience on the job before one can become thoroughly versed with the job's complexities. Such difficulties as, for example-but by no means limited to-the molding of a staff by hiring individuals who are best suited to the needs of the executive, admin- istrator, or professional; and (2) such positions, again unlike less responsible ones, generally require that the executive, administrator, or professional formulate and project long-range policy which can affect the direction of his particular department or operation for years to come. Because of both of these very practical considerations, it will be rare that an individual whose age is near the outer perimeter of the H.R 3651 umbrella can initially assume an ultraresponsible, policy- making position and thereafter retain it for a sufficiently fruitful period to achieve long-range goals for the employer and to promote stability amongst subordinate employees. Moreover, the ascendancy of these people within an organization must necessarily assume a pyramidal shape; there are just fewer jobs toward and at the top than there are further down. On balance, there is much more to be said for leaving section 6 of the FLSA as it now stands and has stood for many years. In conclusion, let me reemphasize what I have said here today: The federation supports legislation within the framework of FLSA which would protect the employment opportunities of the older worker. I appreciate the opportunity you have afforded the federation `to express its views. I will be pleased to try to respond to whatever questions you may have. Mr. DENT. Thank you, Mr. Finigan. I can't resist going back to page 7 in your testimony and noting that you give us a reason for not specifying age 65, but using the age limits allowable for retirement under social security benefits and take the position theri~ is fluctuation there because of the fact that Congress may lower the statutory age limit of permissible retirement. Has your organization discussed the possibility of compulsory retire- ment under social security? Mr. FINIGAN. Have we discussed the possibility of compulsory re- tirement under social security? Mr. DENT. Yes. Mr. FINIGAN. Not as far as the federation itself is concerned. Mr. DENT. What you are doing is compulsory retirement if we fol- low your suggestion that protection be limited to that age where there is permissible retirement under social security. There is now permissi- ble retirement at age 62 with reduced benefits or retirement with full benefits at age 65. The legislation goes to the age 65 `because it is the age we consider to be a retirement age universally accepted.. We do have some pre- hiring contracts in some organizations, both service organizations and `production organizations, wh'ere `age 60 is a compulsory retirement age decided by the company and the employee's at a negotiation or in a~ prehiring contract. If we accept your proposal that the upper age limit be defined in flexible terms, th'at there would be no discrimination after `the age PAGENO="0150" 144 AGE DISCRIMINATION IN EMPLOYMENT permissible for retirement under the Social Security Act, would we not then be in the position of saying this has no effect on those workers over age 62 who are not covered by social security? Mr. FINIGAN. The main purpose in our limiting this to the age of the full benefit of social security was in the interest of not having to amend the law `at any future date if social secui~i'ty were to change. That was our only purpose in linking this to social security, not the age a person could conceivably go under sociai security. Mr. DENT. That is right, but when you say that, are you not saying that the retirement a.ge established by the law under social security shall be the top limit at which discrimination shall be considered dis- crimination if an employee over that age is. denied opportunity for employment? Mr. FINIGAN. Yes, sir; that is what we are saying. Mr. DENT. Doesn't it follow that retirement age under social security be compulsory? I believe we have reached the stage where the com- mittee will sooner or later have that problem before us, whether the Ways and Means Committee discusses it or not. When we get to age 65, there is no further discrimination. You notice this law says discrimination on account of age is restricted to those persons between 45 and 65 years of age. If you come along and say we should make it flexible, tied to the full benefits obtainable under social security, the full benefit goes out the window if we maintain this law as is. `We have to maintain one figure for all workers and can't say it is flexible `for those on social security and not flexible for those not on social security. That would be true if we follow your assump- tion; am I right? Mr. FINIGAN. Unless you use that as an arbitrary limit, whether a person was or was not under social security. Mr. DENT. That is the way it is now; it is not tied to social security. The bill proposes if there is age discrimination and employment is de- nied, the age limit in the act, the upper age is 65 and the lower age is 45. If we were to change that top limit to comply with your sugges- tion, American Retail Federation's suggestion, we would have in limbo a great number of workers not covered `by social security and they would be forced to retire, if someone so desired, at an age limit that is covered by another act of Congress. Mr. FINIGAN. Yes, I see that. Mr. DENT. What consideration has your group given to the lowering of the age limit from 45 to some lesser figure in this legislation? Mr. FINIGAN. We accepted 45 because it was contained in the bill. I think if a great deal of investigation and thought had been given to the possibility of lowering this figure, I certainly don't feel the Ameri- can Retail Federation would have any opposition to that. Mr. DENT. It was a question I should `have given you some back- ground for. We ha.ve testimony to the effect that applicants for jobs in industrial concern's, and some of the commercial and business services, who are otherwise qualified from every aspect of qualification and every angle of the ability to fulfill the employment if they receive the job, have been eliminated from any consideration the minute they an- swer the question, "What is your age ?" by indicating they are 40 years or older. PAGENO="0151" AGE DISCRIMINATION IN EMPLOYMENT 145 We have large corporate interests in the United States that will not hire a; worker 40 years or older. Mr. FINIGAN. I don't think you would find that in retailing. Mr. DENT. I just want to make sure we don't have a position taken here where there is any hard and fast stand taken by the retail organi- zation because they are the :employers of many of those between the agesofl8and2O,18and35, l8and4O. I would hope that it is not a hard and fast position taken by your group should consideration be given by the committee to lower the age limit. I hope that would not be entirely opposed to your views on the legislation. Mr. FINIGAN. That is right; it would not be. Mr. DENT. Thank you. Now we will hear from Mr. Harmon. STATEMENT OP J~OHN E. HARMON, EXECUTIVE~ VICE PRESIDENT, NATIONAL EMPLOYMENT ASSOCIATION Mr. HARMON. We yielded our turn because we wanted to get this man on a plane back to New York. We will try to be brief so that you can get to lunch. My name is John E. Harmon. I am executive vice president of the National Employment Association, the single nationwide trade as- sociation which is the spokesman for the private employment `agency industry in the United States. My colleague here is Dan Mountin, our director of governmental affairs. I thought I might say that we have 525 placement agencies in your State of Pennsylvania which are licensed under your State `and I am going to ad lib a few comments in my presentation which might be' of interest to you since you are from Pennsylvania. I appear `before this committee to express the support of. our indus- try for the principle of banning employment discrimination on the basis of age as contained in H.R. 3651 and H.R. 4221. Our industry, which is engaged in the day-to-day referrals of ap- plicants for employment and the s~eking out of employees on behalf of employers, knows only too well of the unfair, unnecessary, and unrelated age requirements sometimes imposed on positions of em- ployment. We have also shared, on occasion, in the unnecessary ex- perience of frustration while attempting to place an otherwise quali- fied applicant and seeing him rejected because of an arbitrary age qualification unrelated to the job requirements. While our motives are influenced by the economic desire to enlarge our own opportunities, our observations substantiate clearly the need for this type of legislation. In the experiences of private employment agencies operating under laws in the 21 States having age discrimina- tion prohibitions, we have found that the stronger the law and the better administered it is, the greater the economic opportunity of- fered to employment applicants. Although this is the type of statute `better enacted in the State and administered locally, it has become quite apparent, as with title VII,. that it is time for the Congress to act in this area. And while it is al- PAGENO="0152" 146 AGE DISCRIMINATION IN EMPLOYMENT ways more desirable to proceed on the basis of educating the public to the need for this type of legislation to eliminate arbitrary age dis- crimination, it is also our judgment that this bill meets the test re- flected in the report of the Secretary of Labor of June 1965 in which he said: * * * An educational program to promote living on the basis of individual merit is far more effective when provided for by statute. Thus, private employment agencies, too, operating under existing State law, are more effective in overcoming arbitrary and artificial age barriers. I might say we cooperated with the U.S. Chamber of Commerce to work with anybody that wanted a job. We made the challenge, "We can place anybody." We ran into problems. We polled our members first about the job opportunities. We found many agencies in Pennsylvania, in New York, throughout the country, that literally had stacks of job orders they could not fill because people were just not available to place. The job market was very, very tight. One of the things we ran into, I ran into particularly, was that the U.S. Chamber and the Nation's Business magazine editor got the application of a person finding it difficult to find a job. He would be referred to a private agency and that agency would drop the ball and perhaps not place. this person. I would end up with him and I would try to find this person a job through a private agency. What I ran into several times in Pennsylvania. was an agency where a person wrote, "John, it looks as though we made a challenge we ~a.nnot keep. We cannot. live up to it." This is what they told him in many cases. "The person came in my office; he has many years of experience; he will go anywhere, but we cannot place him. The man is 80." I think the committee has a problem. What is the cutoff date? When we made this challenge, we were thinking, of ability, which was generally accepted. But in listening to your remarks this morning, `and the observations you made of other people's testimony, there is a question in people's minds-when is a person to old to work and `should there be a statute? We feel `a person should not be limited on the basis of his age. But I do think that based on our experience anyway, with our open challenge, we did run into problems like the time when a woman in Illinois came in and applied for a. job. She prevaricated about her age. `She said she was 55. The doctor of the corporation staff said she is 70 if she is `a day. She had some chronic illnesses and they had to turn her down. Is 70 to old to work? I don't have an answer, but we did run into real problems when a person is obviously in, good health. They are perhaps in their early forties, early fifties, and have the stamina of .a 16-year-old, yet they were born 60, 65, or 70 years ago. This is the problem we are nmning into. I don't have the answer, but I say we know there are problems. As far as our association is concerned, we can appreciate the problem of some of these people being discriminated against because of age. Mr. Dr~r. I can understand there would be more or less isolated cases over the age of 70 or 75. In your employment agencies, have you found a rather universal restriction against nge 40 in industrial plants? PAGENO="0153" AGE DISCRIMINATION IN EMPLOYMENT 147 Mr. HARMON. I don't know that we have done a survey. Mr. DENT. Do you have any instances where your people were dis- criminated against because of age? Mr. HARMON. Yes; definitely. I am not trying to hedge on the ques- tion. I am trying to give you an honest answer. I would say generally that many of the large corporations do have an arbitrary age estab- lished as a policy. I can understand and appreciate some of the prob- lems that they have, especially if they have training programs. For example, with my own background I might think I might be eligible to be the vice president of a corporation some day if properly trained, but they might think I am too old and they have somebody else in mind. Mr. DENT. I agree, but we do nothing about that. All we do is say that all other things concerned, that a person over the age of 45 should not be discriminated against if it is only a question of his age. This does not deal with problems inherent in age. Obviously a 46-year-old bricklayer applying for a job as a plumber would not be qualified, regardless of age, but he might make a case that would fall under its own weight. For instance, you can see the correlation between this discussion we are making here now, even the situation of airline hostesses who are dismissed at age 35, 36, 38, involves a universal restriction against employing which can be lowered by employee availability. They would be wiped out of the labor market because they have been trained fOr years in this job where they could get the seniority to protect them, those years have been wasted in short-term employment. The problem, as you so ably say, is one that `has to be considered. Mr. HARMON. I think often `those of us coming up here to testify, perhaps can see a lot of the answers, but we are on the other side of the problem, as you are. Mr. DENT. We see all sides of the question, but the `answers get awfully foggy. Mr. HARMON. I will say that at least we have a point of view. I recognize if you try to legislate and come `up with a figure, I honestly couldn't tell you what I think the figure would be if you' were asking' me. I know we have had real problems `in `trying to place people who want to work. When we made the challenge, "We will place anyone," we fell down because we couldn't place just anybody~ especially when that person was 60 or 70 years old and had' 20 years of good engineer- ing experience. We could not find them a job in most instances.' Many of these people are highly trained and their experience is being scrapped in our American economy. I don't know the answer, but I know there is a problem. Mr. DENT. Very frankly, the most acute problem today other than the so-called middle-aged 40-year-old or older industrial worker is in the so-called junior executive group in the United S'tates who find themselves let out for the very reason you are talking about. They just can't find any place of employment. Various clubs have been `started for those over 40 and you look at them-they are trained people, not illiterates, they are people with college educations, university training, and a history of great success in their field, but they are eliminated., Mr. HARMON. Along that line, we ran into this problem. High cali- ber people would write and say, "I am available. I would like a job." PAGENO="0154" 148 AGE mSCRI~iIxATIoN IN EMPLOYMENT Placement agencies would say they can place this person since he is well qualified. But many times the individual places all sorts of prob- lems before the agency. He refuses to leave Pennsylvania and go some- place else. Another is salary. He is a $15,000 man. He doesn't want to go for $10,000 or $12,000. You think he is available. When you get right down to the. line, maybe he is not as available as you think. They sometimes say they can't get a job. They can get a job, but they don't want it because they have eliminated it by their own thinking. Mr. DENT. I am glad you made that point because in the preliminary discussions of this legislation we have found much confusion in the minds of Members of Congress. The subject you are covering now has been part of the discussion. They feel we are forcing employers to take employees when in fact they don't want to go. From what I noticed the other day the role of the Federal employee may have a great deal more significance in the problem. A Federal em- ployee with 25 years of service was denied his pension by the Pension Boa.rd because they claim he was not involuntarily severed from his position because he had refused to move with the department when it moved to another location. The decision reversing the Board took into consideration the fact that the employee's 25 years had rooted him to a certain mode of living. health condition, being considerate of his family; therefore, he was en- titled to his pension and his vested pension rights were held inviolate and were his. That may have some bearing on the so-called executive-type em- ployee in the future. I can understand why people might. not want to move. Members of Congress fight every 2 years not to move. Mr. HARMON. Yes, and we have to be fair about this. I ran into this in every State where I addressed a group. I talked to people on the firing line. I have never placed a person on the executive level, but these people are placing them. The statements I am making are secondhand, but what I have nm into across the country are not isolated cases. There are jobs going begging based on the office files I have seen all over the country. The problem is that many of those people, I suspect, could be placed but they are very selective. The fellow making $30,000 thinks he is worth $35,000 and $40,000. As one Senator said, "There are a lot of underemployed Senators. They would all like to be President." I think if the right situation comes along, they would be available. In connection with the enforcement of this law, I would like to suggest that you consider placing it, with its proposed enforcement provisions, under the authority of the Equal Employment Opportunity Commission as it is generally in the States, so that there can be both a unified and uniform effort directed to all areas of arbitrary discrim- ination in employment. While this may require some changes in title VII, it would appear that those changes would be desirable. I feel it would be of interest to this committee to know that the Na- tional Employment Association appeared before the Senate Subcom- mittee on Labor of the Labor and Public Welfare Committee during its hearings on 5. 830, by Senator Yarborough, and S. 788, by Senator Javits, to offer our support of the Senate version of the bills under con- sideration today. PAGENO="0155" AGE DISCRIMINATION IN EMPLOYMENT 149 Since that time the Senate subcommittee has referred S. 830, with revisions, to the full committee for their consideration. I would like to comment briefly on several of the subcommittee revisions and urge their approval by your committee. First, if this committee ftnds that the administration of the pro- visions of these bills would be better accomplished by Department of Labor than by an independent agency such as the Equal Employment Opportunity Commission, we urge that the `Wage and Hour Division of the Department of Labor be given the administrative and enforce- ment responsibilities. This Division is already in existence and has the personnel and know- how to perform the functions required by these bills. This present-day system of regional directors, attorneys, and investigators has vast experience in making periodic investigations similar to those which would be required under the age discrimination law. There is no need for the costly duplication of. functions which would result if a new and separate division within the Labor Department were established to carry out this law. Second, we recommend that the criminal penalties in cases of willful violation be eliminated and a double damage liability be substituted instead. The possibility of double damages should suffice in deterring willful violators of this law without resorting to the problems of proof which would arise under a criminal provision. Third, we would support a new section in the bill which would allow a State agency 60 days to resolve a complaint before the Federal agency would take jurisdiction. This provision is more in keeping with title VII of the Civil Rights Act of 1964. In any event, Mr. Chairman, you are assured of the support of the private employment agency industry in your efforts in behalf of the older workers of our Nation. In our testimony before the Senate subcommittee on this legislation, we made reference to a quotation by the poet Browning on growing old, and I think it is appropriate to repeat it here as my conclusion. The best is yet to be The last of life, for which the first was made. Thank you. Mr. DENT. Tha~nk you very kindly. I am sorry we don't have time to continue our discussion of the matter. I might say when my father was up past his biblical three score years and 10, and I was a little younger, I said something to him about the so-called calamity of old age. I sometimes think we should try to ease the problem of calamity for those who have to live. I might say I am pleased with your presentation of the problem and your thinking does agree with that of the chairman. We will recess until tomorrow morning at 10 a.m. in this same room. (Whereupon, at 12:35 p.m., the subcommittee recessed, to reconvene at 10 a.in., Wednesday, August 16, 1967.) PAGENO="0156" AGE DISCRIMINATION IN EMPLOYMENT WEDNESDAY, AUGUST 16, 1967 HousE OF REPRESENTATIVES, GE~EItAL Si C~3IM~~~EE ON LABOR or m~ Co~r~iirr~ ON EDUCATION AND LABOR, Wa-shington, D.C. The subcommittee met at 10 a.m., pursuant to recess, in room 2175, Rayburn House Office Building, Hon. John H. Dent (chairman of the subcommittee) presiding. Present: Representatives Dent, Pucinski, Hawkins, Mink, and Dellenback. Mr. DENT. The General Subcommittee on Labor of the House Com- mittee on Education and Labor will now come to order for the purpose of holding hearings on H.R. 3651 and identical bills. We are pleased this morning to have as our first witness a young man I have known and served with for many years in the State legislative body in Harris-~ burg and he has made quite a distinguished record for himself. He is Joshua Eilberg, Representative in Coiigress from Pennsyl- vania. STATEMENT OF HON. JOSHUA EILBERG, A REPRESENTATIVE IN CONGRESS FROM THE STATE OP PENNSYLVANIA Mr. EILBERG. I must say it is an extreme pleasure for me to be before you, Mr. Chairman, one of the most distinguished Pennsylvanians to ever come out of our State legislature. As I was telling you and my colleague back here I know of what I speak because the gentleman I am before now certainly picked himself up by his bootstraps and I would compare his knowledge and integrity with any college professor. I feel very sincere about this. I have entitled my presentation here "Let's Put an End to Discrimination in Employment Because of Age, Now." Daniel Webster once said, "Constant employment and well paid labor produce, in a country like ours, general prosperity, content and cheerfulness." In our Nation we pride ourselves upon our prosperity and on the high level of wages paid to our workers; in a word, upon our high standard of living. However our modern society emphasizes and glorifies youth. fre- quently to the detriment of those who have given at least 20 or years of contributing to our economy-the older workers. Is their just reward for long years of service, dependability, and knowledge to be "put out to pasture"? No. 150 PAGENO="0157" AGE DISCRIMINATION IN EMPLOYMENT 151 In January 1967 President Johnson called for an end to arbitrary uge limits on hiring and reminded us that although 23 States have already enacted laws to prohibit discriminatory practices, the prob- lem is one of national concern. I therefore urge prompt and affirmative action on my bill H.R. 9568, which I introduced into this House on May 3, 1967, identical with Mr. Perkins' bill H.R. 3651. These bills would establish as a matter of national policy the elimination of arbitrary age discrimination in employment. These proposed measures would also provide minimum standard.s barring arbitrary age discrimination for workers between the ages of 45 and 65, with authority for the Secretary of Labor to adjust these limits upward or downward in order to effectuate the purposes of the act, and finally State legislation for meeting the problem of discrimination in employment because of age would be encouraged by these bills. Mr. Chairman, the problem of age discrimination in employment is a serious one. Within the next 20 years we will have approximately 25 million people over the age of 65. Furthermore, life expectancy is steadily increasing and some scien- *tists predict that an average life expectancy of 100 could theoretically be possible within 35 years. But what do we find concerning the plight of the older. American worker today? At age 40, a worker may find that age restrictions be- come common, according to a report of the Secretary of Labor to the Congress in 1965. By age 45, his employment opportunities are likely to contract sharply; they shrink more severely at age 55 and virtually vanish by age 65. This does not mean that so-called older workers cannot get jobs or cannot get good jobs. But it does mean that their job search ~rnay be long and hard, for they are given no consideration for employ- ment in some establishment. For many, it also means that their choices narrow; that they must accept reduced wages in some cases, for the same kind of work, and in others, for work at lower skills. Only 8.6 percent of all new workers hired by surveyed establish- ments during 1964 were 45 years of age and over-less than one-third this age group's proportion among the unemployed. In fact one out of five employers failed to hire a single new worker who had reached his 45th birthday and half reported that less than 5 percent of all new workers hired were in this age group. Moreover President Johnson said in January 1967: Despite our present low rate of unemployment, there has been a persistent average of 850,000 people at age 45 and over who are unemployed. The average duration of unemployment~ for workers age 45 to 64 in 1966 was 15.4 weeks, while for workers of all ages, average duration of unemployment was 10.2 weeks. These statistics reveal dramatically the existence of cruel discrim- ination against the older workers in employment. As the economist, Sumner Slichter, said: The community's need for more employment among the older workers is a permanent one, and it will become greater as time goes on, and as the proportion ~of older persons in the population increases. PAGENO="0158" 152 AGE DISCRIMINATION IN EMPLOYMENT Let us therefore prohibit discrimination in employment now and give persons of all ages a chance to be considered for jobs on their merit and ability, alone, by passing my bill, H.R. 9586. Thank you. Mr. DENT. Thank you very kindly, Congressman Eilberg. Very frankly your presentation only adds to the great amount of material that we are accumulating that shows this to be a very acute and severe problem. We are talking about 45 to 65 years of age. But from the testimony we are receiving perhaps we should start talking about 40 years of age, and in some cases much younger. It appears you put your finger on one of the most serious aspects of the problem; that is, the doors are shut, the doors are absolutely closed. In some instances no matter what your experience has been, what your abilities may be, what your ambitions or capabilities of perform- ing the job are, you are denied any consideration, strictly on th~ basis of age. I know you have been concerned about this problem. I know of your activities in the State legislature along this line. Those of us who have kept track of Pennsylvania's fight in this area. know that they have a commission on aging, they have a departmnt that functions and you are one of the prime movers in that department. Thank you. Mr. Pucinski. Mr. PUCINsKI. I would like to join the chairman in congratulating Mr. Eilberg for his fine statement here that reflects his deep under- standing of this problem. I am sure the problem is prevalent in his district as well as many other districts in the country. It brings comfort to the committee to have our colleagues take time to bring their comments before the counnittee. I am sure your district should be proud of the fact that they have a Representative that would take the trouble to do research and come before the committee. This is where the problem begins; it is im- portant for members to be vigilant and your contribution this morning is very important. Mr. DENT. Thank you, sir. I know you, like other Members, have very important duties this morning. Our next witness this morning is Mr. William D. Bechill, Commis- sioner on Aging. We are happy to have you here because this is where the Commission you head was created. After many years of trial and tribulation on the part of John Fogarty this committee was given the opportunity to authorize the creation of the Commission on Aging. We know you are doing a very good job and want to compliment you on the efforts you and your staff are making toward solving this serious problem. You may proceed in any fashion you wish. STATEMENT OP WILLIAM D. BEOBILL, COMMISSIONER ON AGING Mr. BECHILL. Thank you for those very fine comments, Mr. Chairman. I welcome this opportunity, to appear before the committee to sup- port the provisions of H.R. 4421 and H.R. 3651. The problem which PAGENO="0159" AGE DISCRIMINATION IN EMPLOYMENT 153 these bills seek to alleviate age discrimination in employment is an extremely serious concern for many people in our country today. An undisputed fact of American life is that it is a work-oriented society. Status, economic security, and phychological well-being are all associated with work. Yet outdated ideas concerning the inability of older workers to perform a full day's work limit opportunities for a large and growing proportion of our society. * At a conference held in Iowa in 1961 on counseling the older disabled worker, Dr. Woodrow W. Morris, director of the Institute of Gerontol- ogy and of the College of Medicine of the University of Iowa, delivered a paper on the meaning of work to the older person, in which he pointed out: * * * a job or work constitutes further data by which one identifies a man. Once the name of any person is elicited, the next obvious question is: "What does he do?" It puts the individual into a certain category and furnishes a frame of reference for further contacts with him. When forced to be unemployed an indi- vidual feels debased, degraded, worthless, and without an identity. Congress recognized the importance of employment for older people when it included among the 10 objectives of the Older Americans Act the "opportunity for employment without discriminatory personnel practices because of age." The bills now being considered by this committee will do much to meet this objective more fully. The legislation can contribute to a more favorable climate in which older workers can maintain and have opportunities for employment- in which ability .and experience and not chronological age itself are the major qualifications for a job. From the other side of the picture, the skills and abilities of these able older workers must not be ignored while so much still needs to be done throughout the country. Many older workers can, if given the opportunity, contribute valuable resources to meet the needs of their communities. There have been several efforts undertaken in recent years to face up to the problem of age discrimination in employment by the Depart- ment of Labor, other public and private employment programs, and agencies working in the field of aging to help various employers under- stand the employment needs and potentials of the older worker. But arbitrary age discrimination practices continue to be a signifi- cant barrier to older people who seek employment. The most recent documentation of the extent of age discrimination in employment was the report submitted by the Secretary of Labor, Willard Wirtz, to the Congress in 1965. At that time, the Secretary said: The possibility of new non-statutory means of dealing with such arbitrary discrimination has been explored. That area is barren. The elimination of ar- bitrary age limits in employment will proceed more rapidly if the Federal Gov- ernment declares, clearly and unequivocally, and implements so far as is prac- ticable, a national policy with respect to hiring on the basis of ability rather than age. Today with nearly two of every five persons in the labor force age 45 and over, a clear statement of public policy is of critical importance. Although unemployment among older workers is below the national average of all workers, every recent study on unemployment has docu- PAGENO="0160" 154 AGE DISCRIMINATION IN EMPLOYMENT mented that older people, when unemployed, remain unemployed much longer than younger people. A recent Administration on Aging staff study of the older worker showed that among men workers between the ages of 16 and 24 who had been unemployed at some time during 1966, the average number of weeks of unemployment were seven. Among those men workers be- tween the ages of 45 and 64, the average number of weeks of unemploy- ment was approximately 19. In fact, in recent years, older people have made up around 40 percent or more than of the long-term un- employed in our country. Three years ago when I was the executive secretary of the State corn- :mission on aging in California, the commision and the California De- partment of Employment were requested by the legislature to under- take a joint study of how employment opportunities for older persons could be improved throughout the state. One of the several projects that was a part of the study conducted by a prominent management consultant firm, interviewed a select group of employers and labor unions to obtain a record of their experience in hiring and employing older workers. One of the most significant findings of the survey was the sharp di~- tinction made between the older worker as an employee as against the older worker as a job applicant. When employed, the older worker was frequently preferred over the younger one, especially for skilled or supervisory positions. Among the positive qualities of older work- ~rs mentioned by both employers and labor union representatives inter- viewed in the survey were stability, skill, and experience. However when the older worker became an applicant for a job, employer attitudes changed. In this situation the survey showed that experiences and past work record were substantially less important to the new employer. I think further exploration would find that arbitrary age discrimi- nation practices and stereotyped attitudes about the ability of older people-and we have some terrible misconceptions here-play a major role in barring older workers from fair employment consideration when changing jobs. As the Secretary of Labor pointed out in his report to Congress, nearly one-half of all private job openings are not available to persons age 55 and over; and nearly a quarter of such openings are closed to persons 45 and over. This trend needs to be reversed in a period where there is an ac- knowledged need for qualified persons in many skilled and service occupations and where there is a general recognition that work and useful activity constitute for many older people a principal source of good health and emotional stability. Federal legislation is necessary at this time in order to provide uni- formity across the country in the prevention of discrimination be- cause of age. Only 23 States have such legislation at the present. It is also essential in view of the ever-increasing mobility of labor from State to State and the need to protect all of the Nation's older workers. I believe the provisions of these bills would make a substantial and thoughtful impact on the problem of age discrimination in employ- ment. Section 3 which would give the Secretary of Labor authority to conduct research studies should fill a major gap that now exists PAGENO="0161" AGE DISCRIMINATION IN EMPLOYMENT 155 in providing more objective information about. the abilities and skills of older workers. Also the provisions of this section which stress the development of educational efforts that would lead to the development of broader job opportunities for older people should be a most effective tool in reducing the incidence of this problem of discriminatory hiring prac- tices based solely on chronological age. I feel that the fact that section 3 providing for an education and research program is placed before section 4, "Prohibition of Age Discrimination," and section 7, "Enforcement," is most significant. The chief value of this proposed legislation is not in the legal enforce- ment aspects, although provision for enforcement is most necessary to gain the attention of the employers and the public and to give maximum strength to the legislation. The primary value of this legislation results from the fact that it would provide a focal center around which a program of information and education, designed to break down discrimination on account of age, could be developed. Although the bill is directed principally to combating arbitrary discrimination experienced by people age 45 to 65, section 13 provides that the Secretary of Labor may make appropriate adjustments in either the maximum or minimum age limit. This flexibility should assist the Department of Labor in carrying out the intended program most effectively. A necessary complement to this legislation, as the President has indicated, is that existing programs which provide information, guidance, training, job place- ment, and job development opportunities for older workers should be expanded. To strengthen these services, these existing programs should be aug- mented with greater numbers of qualified personnel to provide spe- cialized services to all' who need them. Some improvement was shown in fiscal year 1966, when 100 positions for older worker specialists were added to the staff of the affiliated employment services. One-third of these were for State administrative offices and the re- maining two-thirds were "added to the staff of five metropolitan offices to conduct demonstration programs featuring a concentration of counseling and job placement services. Appropriations made for fiscal year 1967 to increase the older worker programs of the Burea.u of Employment Security are being used to establish older worker service units in the local employment offices of 20 major cities, in `addition to the five provided in the previous year. An indication of what is being accomplished through these efforts is the fact that in several of the offices counseling has been made avail- able to, about half `of the job applicants. In contrast., on a national basis, local offices counsel only about one out of every 15 or 20 older persons. Although the approximately 600 older w-orkers specialists now work- ing full time across the Nation represent real progress, this number is still nowhere sufficient to provide adequate services to all those in need of them. What I am suggesting is the development of a more comprehensive program of information, counseling, referral, and training services 85-376 O-67-----11 PAGENO="0162" 156 AGE DISCRIMINATION IN EMPLOYMENT for older people through a strengthening of the Federal-State system of emploment services. This would enable the U.S. Employment Service and State em- ployment agencies to provide the additional training and retraining opportunities needed by many older workers today; to develop new or more effective methods of training older workers; and to give renewed attention and emphasis to finding and creating jobs for older men and women in our growing economy. In conclusion let me emphasize that I believe this measure reflects an essential action of public policy in improving employment op- portunities for older people. Only with a clear national policy against arbitrary age discrimination in employment with provision for en- forcement can there be a significant improvement in the hiring of older workers. I, therefore, respectfully urge the committee to give favorable con- sideration to this legislation which would remove the obstacles caused by arbitrary, unjust discrimination and which would assure that older workers have opportunities for useful work. Mr. DENT. Thank you, Mr. Commissioner. I like your suggestion on page 7' that there should be a more comprehensive program for information. Is your commission in a position to operate or instigate such a program of searching out and getting information and correlating the information to the employment offices and so on around the country,. or do you think it ought. to be done directly by the Federal employ- ment agencies and State agencies? Mr. BECHILL. I think the basic responsibility for the group of people we are talking about today has to rest. primarily with the Department of Labor. This does not mean to deny that the Administration on Aging and State and local agencies working with us have an interest here. Mr. DENT. Would your office be sort of a clearinghouse for the information where Congress, interested parties, public and private, would be able to get from you information relative to the problem? `Wouldn't it be a better manner of operation if your office became a clearinghoi.ise for all of the information? This is what we anticipated when we created the legislation, that is, to have a central body where we could find all the information per- taining to the pr6blems of the aged, including job opportunities. Mr. BECHILL. Yes; the clearinghouse function for information of this type does rest with the Administration on Aging. I thought your comment went to the question of t.he operation of employment services themselves. I think these are better located in the Department of Labor. Mr. DENT. We will review this suggestion. It may be that it. will require some amendments to the present act to give the additional authority to proceed in this area. If we do need additional amendments, I would like to consult. with both the Department of Labor and your office in order that we can make sure that once the information is gathered everyone will know where to look for it. Our problems appear to be that we provide sufficient. funds in most instances to con- duct the kind of research you are talking about, the kind of pro- graming you are talking about., but after we gather this information~ it seems to get lost in the cubbyholes of the complexity of government operations. PAGENO="0163" AGE DISCRIMINATION IN EMPLOYMENT 157 Your administrative duties in your commission, in my opinion, can be the most valuable service rendered in the area of all problems, not the least of which is the question of whether or not job oppor- tunities are available and what obstacles might be there and what we can do to wipe them out. I think it has to be a very close working partnership. Mr. BECHILL. Yes; this is quite true and it is recognized. Our re- sponsibilities for serving as a general clearinghouse, do involve the gathering and analyzing of various data. But at the same time, I would like to suggest that in the case of this bill the provisions for research and education being located in the Department of Labor are quite sound and quite appropriate. As the bill recognizes and the Secretary of Labor has suggested, there are a number of specific questions around the whole area of how to get at this problem of age discrimination in employment, how to create more specific opportunities for older workes that do need both factfinding and analysis as they carry out action progams.. Mr. DENT. That leads me to this question, it being a new departure probably, but what would be wrong in including in this legislation a proviso that will direct the Secretary of Labor to make available to the Administration on Aging all reports and information obtained through the research? This would assure your office receives complete information on all aspects on the aging. We would be within our jurisdictional rights in the legislation to direct the Secretary of Labor to make this information available to the Administration on Aging because I would see where it would be more valuable to the people who need this legislation. Would you be able to handle it if we could do it? Mr. BECHILL. I would just like to suggest that we do receive regular reports from the Department of Labor relative to their activities con- cerned with the older worker program. Mr. DENT. Only On a voluntary basis? Mr. BECHILL. It is on a cooperative basis. Mr. DENT. There is no covenant in the law that demands that it be given to you, whereas if it is put in the law all those dealing with the problems of the aging would know they could get that informa- tion from the Administration on Aging as well as other information which they are dealing with at the same time. It is just a thought. Mrs. MINK. Will the chairman yield? Mr. DENT. Yes. Mrs. MINK. I am sorry for coming in late. I wonder whether the inquiry you are pursuing was already responded to by the Commis- sioner. But under the legislation there is reference to an advisory committee and I believe the Secretary of Labor is a member of this committee. During the course of our hearings on that committee we pursued the very line taken by the chairman this morning; that is, the neces- sity of making it a functioning operation so we can be sure that some- where in the Federal Government there is lodged all of this informa- tion which is so vital to the problems of the aged. I would like to ask whether in the opinion of the Commissioner the language in that law which established your commission is inadequate PAGENO="0164" 158 AGE DISCRIMINATION IN EMPLOYMENT to cover the points the chairman was referring to this morning regard- ing the reports covering the field of employment of the aged? Mr. BECHILL. I do not think it is, Mrs. Mink. As a matter of fact we have worked out relationships on reporting with a number of the agencies who are represented on the President's Council on Aging and in the Department itself. Mrs. MINK. So if this bill today becomes law and the Secretary of Labor is required to make this study, in your opinion there would be no difficulty in having this information referred to your commissioli in whatever way you find necessary? Mr. BECHILL. I would anticipate no difficulty. Mr. DENT. Would it be possible for this committee to receive from the commission files the report of 1965, from the Department of Labor files the later report ordered by the conference committee last year, and whatever information he has compiled as well as the statistics the Secretary of Labor has given to the commission on the hiring of older workers? Do you have a file complete in this re.gard? Mr. BECHILL. As I recall both of the reports that you refer to were transmitted formally by the Secretary of Labor. Mr. DENT. You see, Mr. Commissioner, what I am trying to do is make it possible for the committee to obtain this information in capsule form. If we want all information on the aged and aging we have to go to the Department of Labor, the Department of Unemployment, the Bureau of Employment, and other divisions of the Government, and by the time we get it it. is not correlated or analyzed, it is in cold statis- tics, in a disconnected form, and we have to work it over in our staff. In your commission you get reports from the Unemployment Divi- sion of the Department of Labor which has the information on per- centages of unemployment in certain age groups and then from the national employment agencies you receive the number of persons un- employed and in the other end you have from the Secretary of Labor from another division you will get reports on the administration of age discrimination laws in the various States. It would be helpful if we had a compilation of all that information. Mr. PUCINSKI. Would the chairman yield? Mr. DENT. Yes. Mr. PucIxsKI. As your distinguished chairman recalls when we were debating the issue I was one of those who pointed ~out, and I point it out again toda, and I think the Commissioner confirms it, there are some 40 agencies in government that are now dealing with various problems of the aging. You and I know that none of these people are going to give up a single iota of their own responsibilities or jobs or appropriations. This was the futility in trying to set up this Commission. I voted for it and I hope the Commissioner is going to be able to persuade the executive that we ought to be able to bring all these agencies under one umbrella as the chairman suggested. I don't envy the Commissioner that. effort and if the experiences Sargent Shriver is having in the poverty program in trying to pull together the various agencies for a.n effective, concerted, concent.rated attack i~ any indication, I would have to say reluctantly the Commis- sioner before us~tiOw is destined for failure in his effort. These things are so deeply entrenched an~ the system is so strong that the Congress itself did not have the courage to do it. PAGENO="0165" AGE DISCRIMINATION IN EMPLOYMENT 159 You won't have an effective program to deal with the senior citizens of this country, the older people, until you put all these agencies under one umbrella. [wish you luck. . - Mr. BEOHILL. I would like to say that we have been putting out a series called Useful Facts and this covers a number of key areas rang- ing from employment, health, housing, and living arrangements. As various materials and reports that are received in the Administration on Aging is to extrapolate from that information its relationship to the needs and problems of older people. That kind of report iS proving to be quite useful. It is something I think we should build on in the future. The other thing I do want to mention is that we are quite aware of the real seri- ous problem of bringing together in a concerted way efforts of indi- vidual agencies on problems which are really quite common to the individual involved, the older person. Our concern and my concern, if I may speak frankly, is how our program and other programs affect the individual living in a local community. A lot of the problems that we deal with are problems that I think we are trying to resolve by establishing much better working relationships with the other agencies, not only in the Department but in the Federal Government. Mr. PucINsKI. I wonder if your Commission is doing anything, con- ducting any research or any studies on the economic factors involved in discrimination because of age? We have had previous discussions in here and I have read studies on the subject from various sources around the country. When we talked about barring discrimination because of age, witnesses have indicated or testified that there is an economic factor involved in that it has very often cost an employer, in terms of the various fringe benefits, more money to hire an older person. I have introduced legislation which would give an employer a tax credit for this differential so we could eliminate the economic factor totally and hire people on the basis of experience and all the other factors involved. Does your Commission contemplate doing any studies to see whether or not indeed there is an economic factor and, if so, how extensive and what role will it play in this important legislation? Mr. BECHILL. No; we have not conducted any study of this kind in this area up to now. I would go `back to one of the real advantages of the legislation before the committee; that is, the provision in the bill giving the Department of Labor authority to conduct both research and education of `this kind. How the employment of the older worker influences cost is one of the areas that really requires some major analysis. Mr. DENT. Thank you. I must apologize but I have to attend a serious meeting of another comirnttee this mormng. I will turn the chair over to Mr. Hawkins. I would like to pay my respects to the next witness before I leave because for some 30-odd years in the field of legislation I have had the privilege of introducing State legislation in the field of problems of the aging and the Eagles were the first in the United States to appear on the scene advocating pensions for the aged; they have been in the forefront of workers in America to help the aged. PAGENO="0166" 160 AGE DISCRIMINA'rION IN EMPLOYMENT They now appear before this committee and the committee is happy to welcome the chairman of the Fraternal Order of Eagles, Mr. Charles Rowan. STATEMENT OF CHARLES R.OWAN, CHAIRMAN, 30BS AFTER 40 COMMITTEE, FRATERNAL ORDER OF EAG~LES, ACCOMPANIED BY WILLIAM A. MCCAWLEY, NATIONAL PRESIDENT Mr. ROWAN. I have with me the Eagles national president, Mr. Wil- liam A. McCawley of Illinois who will also give a statement. I know of your long efforts on behalf of this legislation and we certainly are appreciative. Mr. DENT. I might say my dues are paid up. Mr. Hawkins will take over. Mr. HAwKINs (presiding). Mr. Bechill, may I add one or two com- ments, in response to a question Mr. Puciuski addressed to you con- cerning the experience of the economic costs of employing older per- sons. I am well aware of the work you have done in California as head of the Commission on Aging and I notice that several studies were conducted by this agency. I am wondering whether or not any of these studies did include any study of this particular problem, if so, would you care to comment on it or to present the finding to this committee? Mr. BECHILL. Mr. Hawkins, the studies themselves did not concen- trate on this particular issue but. I would be very glad to present anything in the study that might be pertinent. I will be very glad to review it. There was no special study on the subject. that Mr. Puc.inski raised. Mr. HAWKINS. I think it would be helpful to have the results of that study presented to us, and incorporated in the record. The other com- ment has to do with the nonstat.utory means of dealing with the problem. (The studies referred to follow:) PAGENO="0167" REPORT to the CALIFORNIA LEGISLATURE on 1966 AGE REGULAR DISCRIMINA 7/ON SESSION IN post/C AGENCIES STATE OF CALIFORNIA CITIZENS' ADVISORY EDMUND G. BROWN COMMITTEE ON AGING Governor 1108 14th Street, Sacramento 95814 161 PAGENO="0168" 162 AGE DISCRIMINATION IN EMPLOYMENT S ~mxn,l ~. ~ec~a AMNO STA7E OF CALIFORNIA ~1Iitiz~it~' i~ur~ ~!Iornmili~e mt April 8, 1966 -Honorable Jesse N Unruh Sneaker of the Assembly State Capitol - Sacramento, California Dear Mr Unruh: Enclosed herewith is a report "Age Discrimination in Public Agencies" in response to House Resolution No. 104 of the 1965 Session of the California Legislature In compliance with a legislative directive, a comprehensive study has been conpleted of ill cities and 42 public agencies within the 58 counties of the State of California This material relates directly to existing policies regarding possible age discrimination in employment by public agencies. The report presents project findings and recommendations based upon a compilation of data received. Sincerely, MRS. JANET J. LEv: EXECUTI SECRETAFX PAGENO="0169" AGE DISCRIMINATION IN EMPLOYMENT 163 By Assemblyman Kennick HOUSE RESOLUTION No. 104 1?elating to a study of age requirements in government employment. WHEREAS, Oftentimes maximum age limitations are included as qualifications for employment without giving reasons therefor; and WHEREAS, This practice is very discouraging to older persons seeking employment and may result in or encourage discrimination due to age in hiring; now, therefore, be it Resolvi~d by the Assembly ~f the State of California, That the Cit- izens' Advisory Committee on Aging is directed to conduct a study of government codes, city and county charters, civil service commis- sion rulings and announcements, job descriptions in the law enforce- ment field, and requirements for licensing of all vocations and professions that contain any existing references to upper age as a dis- qualification for employment and to determine the reasons for such disqualification and to report its findings along with its recommenda- tions thereon to the Assembly not later than the fifth legislative day of the 1966 Regular (Budget) Session; and be it further Resolved, That the Chief Clerk of the Assembly is directed to trans- mit a copy of this resolution to the Chairman of the Citizens' Advisory Committee on Aging. 3 PAGENO="0170" PAGENO="0171" AGE DISCRIMINATION IN EMPLOYMENT 165 TABLE OF CONTENTS Page TEXT OF HOUSE RESOLUTION' NO. `104 3 I. SCOPE OF STUDY 7 II. SUMMARY OF FINDINGS AND RECOMMENDATIONS 8 A. Findings 8 B. Recommendations 9 III. LEGAL PROVISIONS ON AGE IN EMPLOYMENT 11 A. State Employment-General Provisions 12 B. County Employment-General Provisions 12 C. City Employment-General Provisions 13 D. City and County Charters 13 E. Other Related Provisions of State Law 14 1. Definition of "Peace Officer" 14 2. Workmen's Compensation 14 F. Federal Government Hiring Policies 15 IV. CITY AND COUNTY CIVIL SERVICE PROVISIONS~ 16 A. Variations in Age Limits 16 B. Reasons Given for Age Restrictions 19 V. STATE PERSONNEL BOARD POLICIES 21 A. General Policies on Age in Employment 21 B. Services to Contracting Agencies 22 C. SPB Policies on Entry Positions 22 D. Qualifications Appraisal Panels 24 VI. RECRUITMENT PRACTICES 26 A. Applicant Shortages 26 B. Newspaper Advertising .27 5 PAGENO="0172" 166 AGE DISCRIMINATION IN EMPLOYMENT CONTENTS-Continued VII. PENSION AND RETIREMENT PLANS 28 A. Plans Available Under State Employees Retirement System 28 1. The Basic SERS Plan 28 2. Contracting Public Agencies-General Plans 28 3. Local Safety Member Benefits for Contracting Public Agencies 29 4. SERS Plan for Patrol Members 29 5. SERS Plaii for Forestry and Warden Members 29 6. SERS Plan for Classified School Employees 30 7. University of California Members of SERS 30 B. County Retirement Plans 30 C. Federal Government Retirement Provisions 30 D. "Portable Pensions" 30 VIII. "HIDDEN DISCRIMINATION" 32 A. Physical and Educational Requirements~_~ 32 B. Training Opportunities 32 IX. JOB PERFORMANCE OF OLDER WORKERS 34 APPENDIX A-List of Respondents to Survey on Age Requirements in Government 37 APPENDIX B-Quotations from Responses of Cities and Counties 39 APPENDIX C-Jobs with Age Limits in a Large County 43 6 PAGENO="0173" AGE DISCRIMINATION IN EMPLOYMENT 167 I SCOPE OF: STUDY House Resolution No. 104, adopted on January 30, 1965, by the Assembly of the California State Legislature, directed the Citizens' Advisory Committee on Aging to study age requirements in govern- ment employment. In' compliance with the Legislature's directions, the folipwing .projects were undertaken with the assistance of several co- operating agencies: 1. Queries were directed to the 58 counties, 111 cities, and 42 mis- cellaneous public agencies, concerning (a) titles of jobs under their jurisdiction for which age ranges are specified; (b) approxi- mate `number of positions in each of these .elassificatioi~s; (c) job specifications or, examination announcements for each job hav- ing age restrictions; (,d) reasons for the age requirements. A total of 211 inquiries, was sent to the sample group. Addi- tional information was received from other sources. Cities in the sample. were, selected from those with populations of 20,000 or mpre, representing the various economic and geographic areas of the state. The "miscellaneous" group comprised selected fire dis- tricts; several housing and redevelopment auth'orities in large population centers; and two large municipal utility districts with their own hiring arrangements. 2,. The State Department of Employment secured information on governmental hiring requirements and practices from its Older Worker Specialists in some 100 local employment offices through- out the ,state. 3. The Office of the Legislative Council provided information on age limitations in government codes and city and county charters. 4. The State Personnel Board and the U. S. Civil Service Com- mission gave information on state and federal hiring policies with regard tQ age. 5.. Information was obtained from the `California State Employees Retirement System and other sources on major retirement plans and their relationship to age requirements for public employ- ment. . 6. Classified , newspaper advertisements from more than 100 news- papers throughout the state were sampled for instances of age limits mentioned in reeruit]nent for ~ublic agencies. This report presents the project findings and recommendations based on them. ` ` . PAGENO="0174" 168 AGE DISCRIMINATION IX EMPLOYMENT II SUMMARY OF FINDINGS AND RECOMMENDATIONS A. Findings 1. From the sample group of 211, there were 163 responses (about three-fourths of the group). Out of the responses, 86 cities, 29 counties, and three in the "miscellaneous" group, reported some jobs with entry age limits below the compulsory retirement age. Most jobs were in law enforcement or firefighting, but some jurisdictions listed jobs in clerical, professional, technical, skilled, and laboring classifications. 2. Although the California Government Code prohibits age discrimi- nation by the state, cities, and counties, exceptions are per- mitted for peace officers and in public health, safety, and fire- fighting positions. (References and more detailed discussion appear in Part III of this report.) The Business and Professions * Code contains no references to maximum age qualifications. 3. Although the State Personnel Board has established age limits for only six jobs, all in the general category of law enforcement or safety, it has no control over age limitations which may be estab- lished by the cities and counties who contract with the Board for testing or other personnel services. 4. Reasons most commonly given for age limits were the physical demands of the jobs, and the provisions of the applicable retire- ment system. Retirement ages varied from 55 to 70, depending on the plan covering the job. Under the 1937 County Retirement Act, entrants to the "safety" plan covering peace officers and firefighting jobs must be under age 35. 5. The Federal Government has no upper age limits on employment other than the compulsory retirement age of 70. Even so, individ- uals may under some circumstances work past that age. Some Federal agencies, however, recruit outside the regular civil service system and have upper age limits for some jobs. 6. Upper age limits for similar jobs varied, especially in law en- forcement. 7. Workmen `s compensation provisions in the Labor Code, Section 3212-3212.7, stipulate that hernia, heart trouble, pneumonia, and tuberculosis are presumed to be job-connected (with some reser- vations) for policemen and firemen in public employment, and for some custodial or "safety" positions with the state. Some hir- ing officials feel that such conditions are more apt to occur among older workers. 8. Doubts about the physical and mental capacities of "older" per- sons were expressed by some hiring authorities. 8 PAGENO="0175" AGE DISCRIMINATION IN EMPLOYMENT 169 9. There was some apparent misunderstanding of the Peace Officer Standards Program sponsored by the Commission on Peace Offi- cer Standards and Training of the Department of Justice. Al- though the Commission suggests a minimum age of 21 for re- cruitment, it mentions no upper age limits. A few agencies, however, said their age limits on police jobs were set because of the Commission's rules. 10. Rigid physical examinations and requirements for recent educa- tion or experience may impose handicaps on older persons. Standards in excess of actual job performance requirements may be a kind of "hidden discrimination." 11. Some provisions exist for~ reciprocity in retirement coverage between the state and about 400 agencies contracting with the State Employees Retirement System for coverage. Twenty coun- ties having pension plans under the 1937 County Retirement Act also have reciprocal arrangements with the state which permit employees, under some circumstances, to transfer their retire- ment credits when they move from county to state employment, or vice versa. B. Recommendations In view of the widespread prevalence of age limitations, whether expressed or implied, on employment in public agencies throughout the state, the Legislature is urged to give its guidance and support in efforts to eliminate practices which limit the opportunities of mature WQrkers for entry or advancement in public employment. Toward this end, it is recommended: 1. That measures be taken to eliminate any age limitations in Cali- fornia state, county, and city employment which violate provi- sions of the Government Code prohibiting such limitations. 2. That present provisions of the Government Code exempting law enforcement positions from general prohibition aga~inst age dis- crimination in government employment be reexamined to deter- mine whether such exemptions are realistic or necessary, in view of the following considerations: (a) public agencies are experi- encing difficulty in recruiting law enforcement officers; (b) the federal government has not found it necessary to establish entry age limits for employees in law enforcement or "safety" posi- tions; (c) there is no evidence that chronological age is an ac- curate measure of an individual's physical or mental capacities. 3. That all cities and counties be apprised of recruitment standards promulgated by the Commission on Peace Officer Standards and Training of the Department of Justice. These standards have sometimes been misinterpreted as proposing age ranges for peace officer jobs, when in fact the recommendation is for a minimum age of 21 years, without maximum age limits. 4. That the Commission on Peace Officer Standards and Training should be given all possible support in its program of assisting counties and cities to establish standards for physical and mental examinations related to the performance requirements of specific law enforcement positions. 9 PAGENO="0176" 170 AGE DISCRIMINATION IN EMPLOYMENT 5. That civil service examinations for public agencies should pro- vide alternate patterns of qualifications which take into account breadth and length of experience, educational achievement, and the actual physical and mental performance requirements of the job. It is further recommended that arbitrary requirements on recency of education, such as "college graduation within the past five years," be eliminated from the hiring requirements of public agencies, and that instead appropriate examinations or qualifica- tions appraisals be utilized to determine whether an applicant meets job standards for currency of professional or occupational preparation. 6. That the State Personnel Board, in its services to contracting public agencies, should stress the establishment of job specifica- tions in which the individual `s capacities and qualifications are measured against job duties. 7. That the State Personnel Board should include special instruc- tions on the state `s policy concerning age discrimination in its training and indoctrination of members of Qualifications Ap- praisal Panels, and provide age balance on such panels so that the mature worker `s viewpoint will be represented. 8. That the State Personnel Board should give leadership to its con- tracting cliel1ts in eliminating or minimizing the establishment of upper entry age limits for public employment, especially for jobs at the entry or "junior"level. 9. That workmen `s compensation experience of the state, counties, and cities should be studied for realistic information as to costs, duration of claims by age of claimant, and the incidence of such claims in relation to public employees. 10. That the State Employees Retirement System or other appropriate agencies further explore possibilities of standardizing provisions of retirement plans among public agencies, so as to facilitate trans- fers of employees from one part of the governmental system to another. 11. That the possibility should be considered of .giving recognition to prior qualifying experience for admission to the Safety Members and County Peace Officers' Retirement Systems even though retire- ment credits may not be givei~ for such experience within these re- tirement plans. 12. That the educational institutions of California be encouraged to remove upper age limitations on scholarships and fellowships which prevent mature workers in goverrnnental service (as well as private industry) from securing needed college or university training to improve their educational level and competency. 13. That legislation be enacted for a State Portable Pension Plan, as recommended in a report to the 1965 Legislature by the Citizens' Advisory Committee on Aging and the Department of Employment. It is hoped that the Legislature will again consider this recommendation and take favorable action, since the service requirements of the various retirement systems are a serious factor in age discrimination in public agencies. 10 PAGENO="0177" AGE DISCRIMINATION IN EMPLOYMENT 171 III LEGAL PROVISIONS ON AGE IN EMPLOYMENT Age discrimination in state, county, and municipal employment is in general prohibited by the State Government Code with, a few, excep- tions, mainly, for peace officers, firemen, trainee and safety positions. The Federal Government imposes no upper age limits on regular civil service employment, other than the retirement age of 70. The policy of the State of California on age discrimination in employment is stated in the Unemployment Insurance Code, Section 2070-2078. The following quotations from the Code summarizes the state's official policy: "2070. It is the public policy of th~ State of California. that manpower should be used to its fullest extent. This statement of policy compels the further conclusion that human* beings seeking employment, or retention thereof, should be judged fairly and without resort to rigid and unsound rules that operate to disqualify significant portions of the pop~lation from gainful and useful em- ployment. Accordingly, use by employers, employment agencies, and labor organizations of arbitrary and unreasonable rules which bar or terminate employment on the ground of age offend the public policy of this State. "2072. It is unlawful for an employer to refuse to hire or em- ploy; or to discharge, dismiss, reduce, suspend, or demote any indi- vidual between the ages of 40 and 64 solely on the ground of age, except in cases where the law compels or provides for such action. This section shall not be construed to make unlawful the rejection or termination of employment where the individual applicant or-~ employee failed to meet bona fide requirements for the job or posi- tion sought or held, or to affect bona fide retirement or pension. programs; nor shall this section preclude such physical and medical examinations of applicants and employees as an employer máymake or, have made to determine fitness for the job or positiOn sought or held. . . . "This section shall not limit the right of an employer, employ- ment agency, or labor union to select or refer the better qualified person from amOng all applicants for a job. . . ." (Emphasis added) Other provisions in the Government Code and statutes relating to age in employment are briefed in the following paragraphs: 85-376 0 - 67 - 12 11 PAGENO="0178" 172 AGE DISCRIMINATION IN EMPLOYMENT A. State Employment-General Provisions Gov. Code Summary Sec. 18932 This section provides that the State Persoimel Board shall not establish any maximum or minimum age limits for any civil service examination except for positions in public health or safety, or having the duties of a peace officer as defined in Section 817 of the Penal Code, or for trainee positions. (For definition of "peace~ officer," see Section III-E-1 of this report.) Sec. 19700 The State Personnel Board, its executive officer, or any appointing power shall not adopt any rule, either written or unwritten, prohibiting the employment of any person in any state position who is otherwise quali- fied, solely because of age, except as provided in Section 18932. Employment of anyone who has reached retire- ment age is not authorized. Secs. 20980- These sections concern compulsory retirement provi- 20988 sions for state employment. (See Section VII) Sec. 14310.5 This section was added to the Education Code in 1965. It permits a teacher, retired under the State Teachers' Retirement System, whose last prior employment was in a state college, to be reemployed as a state college teacher up to a maximum of 90 pays in any one fiscal year and to be paid up to $2000, without loss of retirement bene- - fits orreinstatement from retirement. Sec. 15005 This section was amended in 1965, to set a minimum age of 21 and a maximum age of 40 for any examination for the positions of special or narcotics agent. The Business and Professions Code contains some minimum age requirements but no maximum limitations. B. County Employment-General Provisions Gov. Code Summary Secs. 31005- These sections prohibit age discrimination in county 31008 employment except for peace. officers and firemen. Sec. 31558 This relates to the 1937 County Employees' Retirement Act. A county employee cannot become a "safety member" of the retirement system unless he is under age 35. "Safety members" must be in active law en- forcement or fire suppression jobs, such as fire warden, forest fireman, firemen in Fire Districts, other fire- fighting jobs, sheriffs, district attorneys, and marshals. Retirement ages for other than elective officials under the "safety" retirement plan are: age 60 mandatory; age 55, optional with 10 years of service; optional re- gardless of age, with 30 years of service. Sees. 31662.4- Other provisions of the County Employees Retirement 31663 Law-general retirement age is 70, with ages of 60, 12 PAGENO="0179" AGE DISCRIMINATION IN EMPLOYMENT 173 Gov. Code Summary 31671- 65, for peace and safety positions, depending on various 31671.6 factors. Secs. 32050- Compulsory retirement at age 60 under the County 32052 Peace Officers Retirement Law. Sec. 32350 County Fire Service Retirement Law, providing age 60 as the compulsory retirement age. C. City Employment-General Provisions Gov. Code Summary Sees. 45050- Prohibits age discrimination by cities establishing 45054 civil service systems, except for policemen and fire- men. D. City and County Charters No county charters were found tp have restrictive requirements on age, in addition to those contained in sections of the Government Code already cited. Fourteen cities had some provisions in their charters, mainly relating to retirement. City Charter Reference Summary Albany Sec. 49(K) Age 35 maximum for appointment as fireman. Aihambra Sec. 192-D Provides for establishment of rea- sonable regulations as to age for civil service employment. Bakersfield Sec. (176)12(a) Compulsory retirement age 62 for all city employees. Seô. (193)11 Age 35 maximum for appointment as fireman. Sec. (224)4 Age 45 maximum for appointment as policeman. Eureka Art. VIII, Sec. 113 Age 45 maximum for policemen. Art. IX, Sec. 121 Age 30 maximum for firemen. Los Angeles Art. XXXIV, Sees. Compulsory retirement at age 70 508-508.01 with exceptions. Napa Sec. 76.1 Age 30 maximum for police and firemen. Oakland Sec. 33(3) Compulsory retirement at age 70. Pasadena Art. 6, Sec. 4 Compulsory retirement at age 60 for police and fire departments. Art. 6, Sec. 10 Age 30 maximum for appointment to police and fire departments. Piedmont See. 47, Art. 5 Compulsory retirement age 70 for police and fire departments. 13 PAGENO="0180" 174 AGE DISCRIMINATION IN EMPLOYMENT Compulsory retirement at age 70, except policemen and firemen at age 65. Compulsory retirement at age 66 for policemen, and firemen. Compulsory retirement at age 70 for most employees. Compulsory retirement age 70. Compulsory retirement - general, age 70. Police and fire, age 65. E. Other Related Provisions of State Law 1. Definition of "Peace Officer" "Peace officers" are defined in general by the Penal Code, Section 817, as a sheriff, undersheriff, deputy sheriff, coroner, deputy coroner, regularly employed by a county; a marshal or deputy marshal of a municipal court; a constable of a judicial district; a marshal, police- man, or any juvenile officer of a city or town engaged in juvenile law enforcement functions as generally performed by the local police de- partment. Also included are special agents of the State Bureau of Criminal Identification and Investigation; Special and Narcotic Agents of the Bureau of Narcotics Enforcement; parole officers and Correctional Officers of the State 1)epartment of Corrections; place- ment or parole officers of the Youth Authority; and inspectors or in~ vestigators of a District Attorney's office; members of the State High- way Patrol; and food and drug inspectors. Besides the State agencies mentioned, peace officer positions are used by the San Francisco Port Authority, Fire Districts, the California Board of Pharmacy, the Osteopathic and Chiropractic Boards of Ex- aminers, the Department of Motor Vehicles, and the Department of Fish and Game. 2. Workmen's Compensation Provisions of the State Labor Code, Sections 3212-3212.7, relating to workmen `s compensation have an effect on the hiring standards of some public agencies. These sections are summarized in the following paragraphs: Labor Code Summary Sec. 3212 The term "injury" includes hernia, pneumonia and heart trouble contracted by firefighting members of the Division of Forestry and members of the warden service of the Department of Fish and Game whose duties are in active law enforcement. Such injuries shall be presumed to arise out of and in the course of employment. Sec. 3212.2 Heart trouble is presumed to be "injury" arising out of employment for officers and employees of the Department of Corrections. Sunznzary City Charter Reference Porterville Sec. 17-A Richmond Art. XI, Sec. 2(d) Art. XII, Sec. 2 Sacramento Sec. 173(a) San Diego San Jose Art. XI, Sec. 1108 Art. IX, Sec. 141 Compulsory retirement age 65. 14 PAGENO="0181" AGE DISCRIMINATION IN EMPLOYMENT 17~5 Labor Code Summary Sec. 3212.5 "Injury" in the course of employment includes heart trouble and pneumonia for members of police depart- ments of cities or municipalities, the State Highway Pa- trol, sheriffs and deputy sheriffs. (For heart trouble, the member must have been employed at least five years.) Sec. 3212.6 Adds tuberculosis as an ~`injury" for employees men- tioned in Section 3212.5. Sec. 3212.7 Employees defined as peace officers in the Penal Code, Section 817, in the Bureau of Narcotics Enforcement and the Bureau of Criminal Identification and Investigation are presumed to have a work-connected injury in the event of heart trouble, hernia, pneumonia, or tuberculosis. In all cases, with the exception mentioned in Section 3212.5, the hernia, heart trouble,pneumonia, or tuberculosis shall not be attributed to any disease existing prior to its manifestation. F. Federal Government Hiring Policies The Federal Government has no age restrictions for regular civil service employment, although it employs many workers in jobs similar to those in the California state, county and city jurisdictions which do carry age limits. Federal Civil Service Rules and Regulations prohibit the establish- rnent of maximum age requirements for hiring (Reg. 338.601). The Federal Personnel Manual provides that no maximum age limitation thay be established, and that limited temporary appointments may be made on or after the retirement age of 70, for a period of one year, and may be renewed under special circumstances. (Section 338-17, Par. 6.1) It should be noted that some agencies recruiting for "Excepted Ser- vice" positions have established age limits for certain jobs. For instance, the Military Sea Transportation Service, Pacific Area (a part of the Department of the Navy) has set age limits ~f 18 to 55 for marine ci- vilian employment in some occupations, and 21 to ~ in others, with some provision for waiving the requirements. Regulation CMPI 334.2-2.b provides: "Age limits.-Age limits for appointment are established as ,fol- lows: (1) GONUS commands.-For males: 18 years, minimum, and 55 years, maximum. For females: 21 years, minimum, and 55 years, maximum. (2) Overseas commands.-~-For males and females, 21 years, minimum, and 55 years, maximum. (3) Waivers. "(a) In accordance with the Veterans' Preference Act of 1944, the age limits are to be waived for veterans unless the factor of age is considered essential to the performance of the duties of the position. "(b) The maximum age limits may be waived for nonveteran can- didates provided the waivers are required to meet emergency crewing situations . . "(d) The maximum age limits will be waived for candidates who are otherwise eligible for reemployment consideration . . . .,, 15 PAGENO="0182" 176 AGE DISCRIMINATION IN EMPLOYMENT Iv CITY AND COUNTY CIVIL SERVICE PROVISIONS A. Variations in Age Limits Inquiries concerning age limitations in employment, and the reasons for them were directed to 211 cities, counties, and miscellaneous public ager~cies throughout the state. There were 163 replies from 105 cities, 40 counties, and 17 miscellaneous districts. (San Francisco was counted as a city, rather than a county.) A list of the respondents appears in Appendix A. Most jobs reported as having a maximum age limit requirement for hiring were in the peace officer or fireman categories. For these posi- tioris, age limits have been established by 86 cities, 29 counties, and three "miscellaneous" agencies in the sample group. However, upper age limits were mentioned for jobs in clerical, professional, technical, skilled and semi-skilled, and laborer occupations. Several of the larger cities and counties had age limits for an extensive list of positions in most of these categories. Some local ordinances or civil service rules authorize establishment of age limits for positions outside the law enforcement field. For example: The City of Glendale set age limits for the following examina- tions given late in 1965: Age Assistant to Auditorium Supervisor 21-50 Assistant Buyer 21-60 Civil Engineer I 21-45 Mechanical Repairman I 18-55 Right-of-Way Agent 24-55 Steam Plant Operator I 19-45 Swimming Pool Manager 21-45 The City's Civil Service Commission Rules and Regulations (Rule III, Section 3) authorize the Commission to fix minimum and maxi- mum age limits for any examination. (See Appendix B). The City of San Jose has age limits for a number of jobs, in- cluding office and clerical. The City's Civil Service Rules and Regulations provide that the Director of Personnel, after consult- ing with the heads of all interested departments, determines mini- mum qualifications for civil service examinations. These "may include, but need not be limited to, requirements respecting citi- zenship, age, education, experience, required licenses or certif- icates." (Personnel Regulations, Sec. 2005.5). The extension of age limits within a city civil service system to jobs outside the categories of peace officer and fireman seems to be in con- flict with Sections 45050-45054 of the Government Code, prohibiting 16 PAGENO="0183" AGE DISCRIMINATION IN EMPLOYMENT 177 age discrimination in city civil service except for policemen and fire- men. Only three counties among the 40 reporting mentioned age limits for jobs outside the police, fire, and safety categories, although several have office jobs classified in the "safety" category. The nature of the jobs varied. For instance, the County of San Mateo has two Junior Engineering Aid positions with an entry age limit of 30, and five part- time Food Server positions to provide part-time employment for high school and college students. Los Angeles County has several apprentice- ship classes. San Diego County lists 18 jobs with entry age limits be- low the county's standard retirement age of 65. Some of the jobs are for "trainee" positions. A list of San Diego County Jobs with entry age limits appears in Appendix C. Of the "miscellaneous" agencies, housing and redevelopment au- thorities all reported no age limits on employment. Six fire districts had age limits for firemen, and one large public utility system reported 10 Apprentice Lineman positions with age limits of 18-25, and four Tree Trimmers with age limit to 32. The other large public utility in the sample mentioned only its re- tirement age of 64. Three water agencies and two small fire districts reported no age limits. Tables A and B illustrate the spread of age limits among cities and counties by broad occupational categories. TABLE A Age Limits in Employment-Cities No age limits 9 Fire and Police jobs only 65 Fire, Police, and other jobs 21 Semi-skilled and skilled 8 Professional-managerial-technical 10 Clerical 14 Apprenticeships 2 Not specified 10 Total Responses 105 TABLE B Age Limits in Employment-Counties No age limits 8 "Safety" and Fire jobs 24 "Safety" or Fire, and other jobs 3 Not specified 5 Total Responses 40 There appears to be some misunderstanding of the program spon- sored by the State Commission on Peace Officer Standards and Train- ing of the State Department of Justice. The Commission's standard on age for recruitment of peace officers states, "Minimum age of 21 years," with no maximum specified. (Rules and Regulations of the* Commission, Section 1002.) This standard seems to have been inter-S preted by some cities to imply an upper age limit. For instance, Lodi `s age range for police officer is 21-31 and the Commission is cited as establishing the range. Menlo Park has an age range for police officers of 21-35, and the City of Orange specifies ages 21-34. Both cities men- tioned the Commission `s standards in their responses to the survey. 17 PAGENO="0184" 178 - AGE DISCRIMINATION IN EMPLOYMENT Tables C and D show the variations in age rauges among typical police, fire and safety jobs as reported by cities and counties. (The number of responses includes only jurisdictions reporting age ranges for the sample jobs). TABLE C-i Age Ran~es in Police and Fire Jobs-Cities Policeman Age Ranges :No Cities 21-29 .2 22-29 1 21-30 - 5 21-31 12 21-32 23-33 1 21-34 8 21-34~ 2 21-35 29 21-35~ 1 21-36 2 21-40 3 Total responses 73 TABLE C-2 Age Ranges in Police and Fire Jobs-Cities Fireman Age Ranges No. Cities 21-28 2 21-29 21-30 16 21-31 -- 19 21-32 21-33 1 21-34 2 21-35 14 25-35 1 Total responses 69 TABLE D-1 A~e Ranges in Safety and Fire Jobs-Counties Deputy ~1ieiiff Age Ranges No Counties 21-33 2 21-34 2 21-35 12 22-35 2 23-35 1 25-35 1 21-39 1 23-39 1 21-40 2 21-45 2 Total responses 26 TABLE D-2 Age Ranges ii Safety and Fire Jobs-Counties Fireman Age Ranges No. Counties 21-30 -- 1 21-35 6 Total responses 7 18 PAGENO="0185" AGE DISCRIMINATION IN EMPLOYMENT 179 Although age ranges for Policemen and Deputy Sheriff show top levels of 40 and 45 respectively, the median upper age for appointment in both groups is roughly 35. As the tables illustrate, age limits for fireman jobs tend to be even lower with the median upper age falling at 31 for the cities. Since few counties mentioned firemen jobs, the response is in- conclusive. A number of cities reported that they considered the job of fireman to be more strenuous than that of policeman. There were no comments on the reasons for the various lower age limits, other than a few statements that peace officers must be 21 in order to be deputized. The variation in entry age limits for peace, fire, and safety jobs- ranging from age 29 to age 45-raises the question as to the real mean- ii~ig of such. limitations in connection with job performance. If physical fitness is taken as the standard, the physical capacities of the individual can be better determined by performance tests and physical exariii- nations. Although comparatively few city or county agencies were willing to hire law enforcement officers at age 40, some apparently did not consider this age level as a handicap. Among the reasons given for entry age limitations, the physical re- quirements of the jobs were most frequently mentioned. However, there is no evidence available to indicate that every individual deterio- rates physically at the same rate, or that a nian aged 34 is necessarily a better physical specimen than a man aged 35. Requirements of retirement plans, also mentioned frequently in the responses, appear to have a strong effect on establishment of upper age limits in law enforcement positions. The 1937 County Retirement Act is specific in prohibiting admission of new members into the "safety" retirement plan after their thirty-fifth birthday. The variation in entry age limits for law enforcement and safety jobs suggests that (1) physical requirements of the jobs have not been clearly established; (2) retirement provisions have the effect of estab- lishing the length of a "work-life span"; (3) age has been accepted by some public agencies as an easy elimination device to limit the number of job applicants, even though recruitment difficulties would suggest the need for broadening the recruitment base. B. Reasons Given for Age Restrictions The principal reasons given for establishing age limits on employment were (1) physical or performance requirements of the jobs, and (2) pension and retirement plans. Some agencies mentioned also the costs of insurance or workmen `s compensation, the difficulties of maintaining age balance in a small agency, and the length of training for law enforcement positions. Some doubts were expressed about the physical and mental capacities of older persons. Of the nine cities and eight counties that said they had "no age restrictions," several qualified the statement by references to retire- ment plans or the "requirements of the job." One of the eight counties stated that for law enforcement jobs, applicants under age 45 were pre- ferred. 19 PAGENO="0186" 180 AGE DISCRmIINATION IN EMPLOYMENT Table E shows a breakdown of the principal reasons given for age limits. TABLE E Reasons Given for Age Limits by Cilies and Counties Reason No. Cities No. Counties No. Responses_ 86 29 Primarily physical 49 6 Primarily retirement plan 6 11 Both physical and retirement plan 14 8 Miscellaneous (No reason given, "promotability," "city ordinance," etc.) 17 4 Q notations from responses illustrating the reasons and explanations offered appear in Appendix B. 20 PAGENO="0187" AGE DISCRIMINATION IN EMPLOYMENT 181 V STATE PERSONNEL BOARD POLICIES A. General Policies on Age in Employment. The State Personnel Board establishes the standards and conditions of employment for employees in the state merit system, under the authority of Article XXIV of the California State Constitution. In addition, the Board provides testing and other personnel services, on a contract basis, to a number of counties aiid cities. The Board `s rules on age limitations in employment conform with the Government Code and other statutes (see Part III of this report for a summary of the principal provisions). As of December 1965, the SPB had set upper age limits for six jobs, all in the law enforcement or safety fields. These were: Job Title Age Range Correctional Officer 20-46 Fish and Game Warden 21-40 Forestry Fireman 18-40 Group Supervisor 21-46 Narcotic Agent Trainee 21-35 State Traffic Officer 21-31 Positions in the foregoing categories are used principally by the fol- lowing state agencies: Division of Forestry of the Department of Natural Resources Department of Corrections Youth Authority State Highway Patrol Bureau of Narcotics Enforcement Bureau of Criminal Identification and Investigation In establishing age limits for the positions of Correctional Officer, the SPB concurred with the Department of Corrections as to the physical requirements and hazards of the work. The following statement is taken from a 1957 memorandum prepared by the SPB staff: "The Department (of Corrections) recognizes that age pre- disposes persons to such conditior~s as increased blood .pressure, arthritis, and lessened visual or auditory acuity. Such conditions, while possibly not severe enough to warrant medical rejection or disability retirement, do involve security risks in dealing with inmates of an adult correctional institution. The Department hesi- tates to assign Correctional Officers with these conditions to towers, cell blocks, corridors, or other posts where inmates could take undue advantage and additional hazard result. In addition, insti- tutional . physicians will not approve most older Correctional Offi- cers for full participation in the departmental physical fitness program, thus lessening the overall effectiveness of the staff. 21 PAGENO="0188" 182 AGE DISCRIMINATION IN EMPLOYMENT ``Each institution has a limited number of positions not involv- ing inmate contact or of a sedentary nature. Such positions include operation of the Inspectroscope, censoring mail, and admitting visitors. The Department considers it reasonable to reserve these positions for current employees with long years of service, rather than be forced to appoint t.o them new employees who cannot be utilized elsewhere. . . . Any (Correctional) officer may be re- (liiired to transport or apprehend inmates at any time;'' In recent years, the SPB has undertaken a review of. physical stand- ards for employment, with special reference to the physically handi- capped. Such a review might well include consideration of performance standards, including physical requirements, for jobs now hating upper age limits short of the retirement age. B. Services to Contracting Agencies In providing testing and other services to contracting counties and cities, the SPB has no control over age ranges which may be. specified by the contracting agency. Examinations are prepared by the SPB staff on specifications for the position without regard to age. In making classification and salary surveys and writing job specifications for contracting agencies, the SPB staff does not include age ranges. The following standard paragraph is frequently used to describe general qualifications for a job: "Desirable Q uaiificaiioii s: The following personal qualification requirements apply to all classes, though not specifically mentioned in the specification: Good health and freedom from disabling defects and communicable diseases; good physical condition and agility and strength commensurate with the duties of the class; honesty; sobriety; industry; initiative; resourcefulness; dependability; good judgment; good moral character and reputation; loyalty; and other related qualities." ~ Sometimes special qualifications are added, as "duties include per- forming heavy manual labor." These equitable standards would seem to obviate the need for a specified upper age limit when physical examinations are properly geared towards determining physical condition, agility, and strength "commensurate with the duties of the class.'' To assume that a man of 47 is necessarily less agile or strong than he was at age 46 is to contradict the principle expressed in the SPB standard. In its work with county and city public agencies, it is recommended that the SPB stress the importance of considering the individual capacities of job applicants in relation to the employment they seek, rather than their chonological age. C. SPB Policies on Entry Positions In recruiting for entry professional positions, the SPB encourages applications from recent college graduates or college seniors about to * Quoted from Classificatiom and Salary Survey, made in 1965 for the Yucaipa Joint unified School District by the Cooperative Personnel Services Branch of the State Personnel Board. 22 PAGENO="0189" AGE DISCRIMINATION IN EMPLOYMENT 183 receive their degrees. These laudable efforts to attract youthful appli- cants of high calibre into government careers may bypass the older job applicant with equal educational achievement and good work expe- rience in a professional field. Examinations for entry. jobs such as Junior Staff Analyst, Junior Research Analyst, and Employment Se- curity Trainee stress college graduation within the past five years, usually with some substitution of recent work experience for part of the educational requirement, and some extension of time limits for periods of military service. The type of qualifications pattern may rule out even a 35-year old, ten years out of college, with no military service, and whose experience in the stipulated fields dates back more than five years. The announcement for an Employment Security Trainee examina- tion scheduled for March 26, 1966, contains the following statement of entrance requirements: "REQUIREMENTS : Either I- "Education: Equivalent to graduation from college within the last five years with any major, but preferably with specialization in psychology, personnel administration, vocational guidance, public administration, business administration, education, sociology, eco- nomics, industrial relations, or political science. (This time limita- tion is extended for a period equivalent to that spent in recogrdzed military service during the last ten years. Registration as a senior in a recognized educational institution will admit applicants to the examination, but they must produce evidence of graduation, or its equivalent before they can be considered eligible for appointment.) `.` Substitution Patterns: "1. Two years of experience, within the last five years performing administrative or technical work, in the fields of personnel man- agement, employee relations, vocational counseling, employment interviewing, job. placement, *job analysis, or claims examination or adjustment under public or private insurance or health and welfare benefit plans may be substituted for two years of the required. education on a year-for-year basis. or "2. Continuous full-time paid work experience in, the California state service within the lastS five years may be substituted for the required education on a year-for-year basis by applicants who have completed at least 15 semester hours of college-level training in psychology, personnel administration, vocational guidance, public administration; business administration, edu~ cation, sociology, economics, industrial relations, or political science. "Or IT- "Experience: 3840 hours of experience within the last five years performing the duties of an Employn~ent and Claims Assistant." * Although this is an open examination; substitute Pattern I, Para- graph 2, and Pattern II provide some opportunity for older state employees who meet the other qualifications. However, the require- ments eliminate many well-qualified applicants from outside State 23 PAGENO="0190" 184 AGE DISCRIMINATION IN EMPLOYMENT service, such as retired military officers whose training and experience would meet the specifications except for recency. It is recommended that civil service requirements at all levels within state service should provide alternate patterns of qualifications which would take into account breadth of experience, length and quality of education, and the individual's ability to fit into the duties of the job. D. Qualifications Appraisal Panels The oral interview is part of the examining process for many posi- tions in state service. Qualifications Appraisal Panels make the final decision (short of an appeal to the State Personnel Board itself) as to applicants' total qualifications for admission to the examination and the overall evaluation of their capacities. While a high written score may counterbalance a low but passing oral score, the individual who fails to pass the oral examination is eliminated unless he is successful in appeal- ing the QAP `s decision. The weight of the oral interview has a major effect on the examinee's examination score, especially when the written and oral tests are rated 50-50 or 60-40 respectively. The SPB has devoted much effort to establishing standards and pro- cedures for the selection of Qualifications Appraisal Panels and the conduct of oral interviews. Still, as in most selection interviews, opinions of the interviewers play a part. Members of QAP `s are human beings, and like other human beings have acquired attitudes over the years which influence their decisions. Some applicants have complained of discrimination because of age, based on their own reactions to oral interviews. Such complaints may be a matter of individual opinion. However, the successful appeal of one applicant may illustrate how this factor enters into the selection process. Mrs. X, a state employee with 30 years of service as an interviewer and counselor, made a high written score on a promotional examination for a counseling job. The QAP, however, found that she "did not dem- onstrate an integrated understanding of job-related knowledge" and "did not provide evidence of adequate ability to relate with other peo- ple effectively with respect to counseling youth." Mrs. X in her appeal to the State Personnel Board stated that she felt that age bias (she is 62) and "erroneous interpretation or application of the minimum qualifications prescribed for the class" might be the reasons for her rejection. She cited her long experience in counseling persons of all ages, recent experience with older persons, and several years of recent experience with younger individuals, including counseling assignments within the past year at several local high schools. There was nothing in the job specification to indicate that counseling would be performed only for youthful applicants. Mrs. X cited highly commendatory per- formance reports she had received, including one complimenting her for passing the written portion of the counselor test. Mrs. X was successful in her appeal. As she is a highly trained, articulate, and professionally competent individual, she was able to state her case effectively. Other examinees with less outstanding abilities may accept their rejection, feeling that further argument is useless. The older job applicant should expect to face oral interviews, but should also expect that his prospects will depend on his performance 24 PAGENO="0191" AGE DISCRIMINATION IN EMPLOYMENT 185 record, his physical qualifications for the jOb, and his ability to compete with other applicants in all requirements for the position. The State Personnel Board, through its staff, is responsible for training and in- doctrinating members of Qualifications Appraisal Panels. Such indoc- trination should include a clear statement of state policy on age discrimination. The SPB also provides for age balan~e on QAP `s, so that older applicants will be assured that individuals with a mature viewpoint are members of the examining body. 25 PAGENO="0192" 186 AGE DISCRIMINATION IN EMPLOYMENT VI. RECRUITMENT PRACTiCES A. Applicant Shortages Difficulties of recruiting well-qualified law enforcement officers are expressed in the following comment from the City of Frernont: "The age group now reaching or beyond 30 has been in notably short supply, since this nation experienced a reduced birth rate dur- ing the depression years. As a result, all public agencies have had difficulty in obtaining enough qualified applicants within the age limits most suitable for entrance into police and fire positions." Nevertheless, the City of Fremont is contemplating reducing the upper age limits for entrance into both fire and police positions to age 28, in the hope that the "baby boom" may lessen their recruiting problems. Other cities and counties have taken a different approach. Nine cities and eight counties in the survey sample reported no age linvzts, other than retirement. Several cities provide for raising age limits for law enforcement jobs at the discretion of the hiring authority, for applicants with stipulated experience. The latter group includes Huntington Beach, Lompoc, Lynwood, Monterey Park. Redlands, and Whittier. In professional and clerical jobs, age limits may unduly restrict the applicant supply. This may be especially true in clerical jobs where turnover is often a problem among younger women who marry, have children or migrate with their husbands to other areas. In most loca- tions, there is a growing supply of women in their 40 `s and 50 `s, with previous experience and skills often unimpaired or which can be re- sharpened with brief retraining, who are returning to the labor market. Many need jobs because of the husband `s death or disability or to pro- vide support for minor children, or to supplement the inadequate l)e1~sion of a retired husband. Often these women have skills adequate to fill jobs sometimes classified at the "junior" clerical level. Although some agencies consider such jobs to be trainee positions, the term "junior" does not necessarily relate to age but rather to a minimum skill level. Establishment of age limits at age 50 or 55 for such positions may disqualify mature women who can perform the duties, have need for steady employment, and may be less subject to family cares than women with young children. Since physical demands for such jobs are usually not great, they can often be performed by physically handi- capped persons. and certainly by older persons able to meet the physical, mental, and performance requirements of the job. The question was previously raised in this report as to whether pub- lic agencies can legally establish upper age limits for jobs not in the law enforcement, safety, firefighting, or other categories mentioned in the Government Code and statutes (relevant provisions are summarized 26 PAGENO="0193" AGE DISCRIMINATION IN EMPLOYMENT 187 in Part III). It is recommended that the Legislature look into this aspect of age limitations in public employment, and take any measures needed to enforce or improve existing legislation. B. Newspaper Advertising While private employers are not restric~±ed in advei~tising age limits for jobs, newspaper ads from public agencies which stipulate age ranges would seem to contravene the spirit of the state policy on anti- age discrimination. However; where current legal restrictions apply, it is only fair to inform the applicant that he cannot be hired if he is ol'der'than, the upper age `limit for' the position. An inspection `of samples of classified advertising from `more .than 100 California news- papers during September,' 1965, revealed `only a few ads from' public agencies, all for law enforcement or' firem'an'~~obs. The State Personnel Board occasionally uses newspaper advertising for recruitment. As an example, the `following ad appeared in the San Diego UniOn on Se~tember 1, `1965 "COLLEGE GRADUATES "Opportunity in San Diego and other locations with, the Depart- ment of Justice as a Narcotic ,Agent Tra~nee. This is~ an. oppQrtunity to receive training and assist in investigations for the enforcement of narcotic laws "Requires college graduation within the last fi re years with spe cialization in police science, law enforcement, or criminology Age limits: 21-35 "Excellent promotional opportunity., "Application must befiledby September 17. "STARTING SALARY-$510 "For information and application, please contact "STATE PERSONNEL BOARD 108 5: Broadway, Los Angeles 1? MA 0-2790" The California State Employment Service has been handicapped in uphOldir~g the state's' nondiscri~ninatory ~oliciés `on age' by "th'e lack of provisions in the law to prohibit the mention of age in advertising. An employer who is told that his order for workers must be refused if it contans ,an upper. age limit n'iay legally `place `a classified.ad giving the age range, in spite of the age discrimination `provisions `in the Cali- fornia Unemployment Insurance Code, Sections 2070-2078,. Lt, is ;recom- mended ,that the Legislature consider amending the law to eliminate mention of age limits in advertising Regardless of legal provisions concerning references to age in "help wanted~' advertisements, the practice of the State of California in job advei tising leads some employers to question why they should be pre vented from establishing age limits for their ~obs The public policy of the State of California on age discrimination should impose an ob ligation on the state as an employer to pro~ide `outstañdiñg leadership in combating such discrimination: 85-376 0 - .67 - 13 27 PAGENO="0194" 188 AGE DISCRIMINATION IN EMPLOYMENT VII PENSION AND RETIREMENT PLANS A Plans Available Under State Employees Retirement System Most public employ ees in California are covered by a retirement 01 pension plan, `~ihich ma~ include disability and death benefits and may be supplemented by or integrated with the Federal system of Old Age Security and Disability Insurance The State Employees Retirement System is probably the leadn g authority in the field of pensions for public employees in California SEES provides several retirement plans for state employees and a ~ arietj of co'~erage to some 400 cities, cour ties, and other public agencies, on a contract basis SEES and Social Security ha\ e an in fluence on standards for plans contracted by some agencies with private carriers, which are not included in the scope of this survey. The principal SERS plans are described briefly here because of their effect on age levels inpublic employment. 1. The Basic SEES Plan The basic SEES plan, which co's ers the largest group of em plo'~ees, permits the member to retire at age 55 with at least $500 on deposit or 20 years Of credited service. "Normal" retirement age is 60, and compulsory retirement is at age 70. Retirement allowance depends on years of service, age at retirement, and "final compensation," the highest: average monthly salary earnable over three consecutjve years. of member- ship in the system. Under the "1/60th formula," the member will receive 1/60th of "final compensation " for each year of credited service on retirement at age 60~ For 30 years of service at age 60, the allowance is one-half of "final compensation." SEES provides integration with the Federal Social Security System under what is known as the "1/9Oth-1/6Oth formula" which is a more complex method of computing benefits due under both systems Under either formula the plan provides death and sur~ i'~ ors' benefits and disability ret rement with 10 ~ ears of service or over $500 on deposit in the system 2. Contracting Public Agencies-General Plans Agencies contracting for retirement coverage with SEES have a choice of two basic plans. One provides for benefits under the state "1/60th Formula," and the other provides for supplemen- tation by Social Security benefits (the 1/9Oth-1/GOth formula). The retirement age in both "contracting agency" plans are the same, and basic coverage is similar. However, there are a number of variations in contracts with different agencies, and 28 PAGENO="0195" AGE DISCRIMINATION IN EMPLOYMENT 189 the amount of benefits due to the individual may vary according to the provisions of the contract under which he is employed. Public agencies, may also contract with SERS for coverage under the "Local Safety Member" Plan for firemen, policemen, and: county peace officers, described in the next paragraphs~ .3. Local Safety Member Benefits for CoptractingPublic Agencies Under this plan, 157 cities and 2. counties had. coverage during 1965 for their `firemen, policemen, or peace officers. The plans differ; not all contracts provide, the same benefits. For instance, retirement is voluntary at age' 55, but some contracts provide for retirement at age 50 with a reduced allowance; in both cas~,s, there is the usual provision of $500 in the system or 20' years `of service. Compulsoi~r retiremeilt is at age 65. " ` ` The retirement allowthice at age~55 is 50 percent of "final com- pens~ation" `(based on either three or five years highest eaI~nings, according to the contract)' for' those who' became Safety Members at age 35 or under and contin~iëd' to age 55. Tho~e who become Safety Members ,after age 35 may receive the 50 percent allow-, ance at a higher age after 20 years of service. "` - :` "Half continuance' ~ provides one-half the member's allowan~e, upon death `following: retirement for service or~ for `disability,' to `the `surviving `wife, minor ëhildren, or, parents, under certain conditions. ` ` ` `~ For disabilities'incurred in the course of duty, the monthly al- lowance is 50 percent of' ~` final compensation." ,-. ` ` Although Safety' Members may join the system after age 35,' many `agencies tend to consider: the normal work-span as, ages 35 to 55 and consider this factor in~ setting upper: age limits for Safety Member positions. ` 4 SERS Plan for Patrol Members Patrol members may retire voluntarily at age 50 with $500 on deposit or 20 years of service. Normal retirement, age is 55,, when the member can draw 50 percent of "final Compensation" with 20 years of service. Compulsory, retirement is at age 65. This plan provides for "half continuance" of retired `members'' benefits `to survivors, `asin `the `Safety Members' plan. Benefits for disabilities incurred in the line of dut~~are 50 `percent of final "compensation;' or' more for' those qualified for service retirement. Death benefits for widows, minOr children, or qualified' `surviving~ ~iarents' of n'fembers' Who died from `injury or disease `incurred in th'e~course of employment' are 50 percent `of "final' compensation."' If death resulted from an accident or injury caused by external violence or physical force, incurred in the performance of duty, the death, benefit is increased. ` ` ` ,. `5. `S'ERS'Planfo~ Forestry and Warden Members ` `This ~lan provide~ refirement at `age 60 `~ith"~0 `oi' `th'ore yeaFs' of ser~ice:,' and' `with' bCnCfits `,at 50' ,percent"of "final' compensa-' tion." Oompulso~ry retirement age is' 65~ As in `the `plan for Patrol Members, disability benefits for work-connected disabilities"are 50 `: percent of "final' `comp~nsàtion," `as are survivors" benefits for `work-connected' death.' There are additional beiièflti for' death"re- 29 PAGENO="0196" 190 AGE DISCRIMINATION IN EMPLOYMENT suiting from accidents or injuries caused by external violence or physical force in the performance of duty. 6. SERS Plan for Classified School Employees Classified employees of all school districts except those in the City and County of San Francisco constitute the second largest group of members in the SERS system, next to State employees. Age provisions in this plan are the same as in the basic SERS plan. There are some differences in allowances, and some excep- tions or differences in coverage for certain school employees with Social Security credits. 7. University of California Members of SERS This special plan applies to individuals who entered the Uni- versity of California's employment, prior to October 1, 1963. Re- tirement is optional at age 55, `normal" retirement age is 60, and compulsory retirement is at age 67. The University of California also has a separate retirement system. B. County Retirement Plans A county employee cannot become a "safety member" after age 35 of plans established under the 1937 County Retirement Act, according tO the Government Code, Section 31558. Safety members must be in active law enforcement or fire suppression jobs, such as fire warden, forest firemen, firemen in Fire Districts, other firefighting jobs, sheriffs, district attorneys, and marshals. Retirement ages for other than elec- tive officials are: Optional at age 55 with 10 years of service; manda- tory at age 60; and optional with 30 years of service at any. age. For non-safety members of the County Employees system, the general re- tirement age is 70. Various provisions on compulsory retirement ages appear in the Government Code, Sections 31558; 31662.4-31663; 31671-31671.6; and 32350. Counties have some leeway otherwise in establishing the details of their respective plans. C. Federal Government Retirement PrOvisions The Federal Government provides a liberal retirement system. Thirty years' employment provides more than 50 percent of "final compen- sation." For instance, an employee whose average salary. during a five- year period was $8,000 could retire at age 60 with an allowance of $4,500 per year. Employees who become disabled after at least five years of government service may retire on an annuity at any age. D. "Portable Pensions" As the foregoing summary illustrates, pension plans available to em- ployees in public service, either under a State, county, or private sys- tem, are considerably different as to retirement ages and .types or amounts of benefits. The employee who moves from one branch of public service to another may find his retirement rights affected for. either better or worse. . . . Within the SERS, there is reciprocity between the. contracting agencies and the State. An employee who separates from state service 30 PAGENO="0197" AGE DISCRIMINATION IN EMPLOYMENT 191 * to enter employment with a contracting public agency retains his mem- bership in the state plan if he leaves his contributions on deposit, and can add his state credits to those resulting from his employment with a contracting agency. The same is generally true in reverse. Twenty counties with retirement plans under the 1937 County Retirement Act also have `reciprocity agreénlents with SERS. However, not all plans within the system provide all the benefits available under the major plans which cover state employees. Standard pension plans would facilitate transfers of employees from one part of the governmental system to another. The SERS has done outstanding work in this field by providing a variety of plans flexible enough to meet the needs of large agencies as well as small ones with limited resources. Possibilities of further standardization in ~uch pro- visions as the basic number of years of employment, methods of com- puting benefits, and types of death and survivors' benefits, should continue to be explored. Some ~tandardization of age limits where `dif- ferent limits are established by different systems would be advantageous' to the individual. Recognition of prioi~' qualifying experience for ad- mission to the Safety Members and County peace offiCers system, even when retirement credits could not be given for employment outside a cooperating system, might remove some age barriers to employment. The possibilities of portable pensious and vesting rights should be further investigated, for both public and private `employment. Iii a report to the 1965 Legislature,* it was recommended that the Legislature enact a State Portable Pension Act, similar to the law' in effect in the province of Ontario, Canada, providing for compulsory vesting rights and a ,funding plan for the purpose of increasing the mobility of workers by facilitating the transfer of pension credits. Another reeomméndátion in the' same report was for establishment of standards for private pension plans sold in California, as to their ad-' ministration, funding, and public reporting and accountability. It ,is hoped that the Legislature will again consider these recommen- dations and take favorable action. * A A5urvey. of the Employment of Older Worker8-1964: A Report to the Calif orn~a Legislature, 1965 ~Session. State of California, Department of Employment and Citizens' Advisory Committee on Aging. Sacramento, California, January, 1965. 31 PAGENO="0198" 192 AGE DISCRIMINATION IN EMPLOYMENT "HiDDEN `DISCRiMiNATION" A Physical and Educational ~equireinents Age limits on civil service jobs dO not in themselves constitute the only form: of discrimination. against oh~er workers. Some requirements which may ~`place them at .a disadvantage i~iclude (a). strict~ physical examinations for. jobs where physical dethands are limited; (b) posses- sion of a high school diploma or college degree; (c) recency of educa- tion and experience. - Older job applicants may be ruled out by rigid ~physical examina- tiöns if they have any medical history, even if the physical demands of the job are not great. Physical or performance standards in excess of actual job requirements close the door to many persons who could provide long years of service. Standards of appearance, particularly for non-public contact jobs, are another form of "hidden discrimination" which affects older work- ers, even though younger applicants may also face this problem. Requirements for a high school diploma or college degree may work against the older individual with long and successful experience, who entered the labor market before such requirements were common and who never returned to school. Recency of training and experience may be especially important in jobs subject to great change, as in aerospace and scientific occupations. However, such requirements sometimes appear in civil service exami- nation announcements for jobs where the "recency " would place the older applicant at a disadvantage-as in clerical examinations which specify "two years of experience within the past ten years." Such a requirement may curtail job. opportunities for well-qualified women who are returning to the labor market after they have raised their families, and who are in search of stable employment. "Over-qualified" older applicants may face rejection because the hiring authority may hesitate to place him with a group of younger workers, or may feel that a person with supervisory experience will not adjust easily to a subordinate position. While it is only natural for an employer to want the best possible workers, some of these attitudes and practices are forms of "hidden discrimination" against older job applicants. Continuing emphasis in public policies and practices on the capabilities~ and performance of older employees may in the long run help to modify these prejudices. B. Training Opportunities Specialty training through scholarships or other grants, directed toward advancement in government employment, is sometimes closed to older job applicants or older government employees. For instance, graduate training for Health Physicists is largely sponsored by the 32 PAGENO="0199" AGE DISCRIMINATION IN EMPLOYMENT 193 government through fellowships in designated institutions. However, Atomic Energy Commission Fellowships are offered only to persons under age 35.~ A program recently announced is the Career Education Awards Program** sponsored by. the National Institute of Public Affairs under a grant for the Ford Fotindation. Its purpose is to identify and de- velop potential high-level executives in Federal, State and local govern- ments. Although directed toward outstanding mid-career government officials, the candidate is expected to be from 28 to 35 years old, with at least 5 to 10 years of civilian career service experience These programs recognize the need for higher level training to pre pare government executives for the demanding responsibilities of top policy making positions When such opportunities are available through State funds and educational institutions, age limits should not be the determining factor in the selection of candidates * Health Physicist, Occupational Guide No. 386, Jan. 1965. Published by California State Department of Employment, Sacramento, California. ** This program was announced by the U.S. Department of Labor, Bureau of Em- ployment security, in General Administrative Letter No. 929, dated November 10, 1965. 33 PAGENO="0200" 194 AGE DISCRIMINATION IN EMPLOYMENT Ix JOB PERFORMANCE OF OLDER WORKERS It seems appropriate to conclude this report with some mention of older workers' job accomplishment and performance cbaracteristi~s, as demonstrated in numerous studies, In a 1964 report to the California. Legislature,* several studies of thistyp~, made by the Bureau of Labor Statistics andotherauthorities, were summarized. A few highlights from the findings of these studies might be repeated here: * The older woi~ker ~s attendance is likely to be better than that of younger persons. * Older workers are less prone to change jobs. * Even though some older workers may have longer spells of ill- ness, they are apt to be ill or disabled less frequently than younger persons. The aging process alone is not necessarily incapacitating. * In production jobs, the output of older persons up to age 65 compares favorably with that of younger workers. In office occu- pations, there were minimal differences in output by age group among 6,000 workers in one study of government and private employment. Workers aged 65 and over generally averaged as high as any of the age groups. * A 1961 study of Federal mail sorters showed that older persons performed at a steadier rate and with more consistency in quality than those in younger age groups. * Older workers have a strong desire to work, as evinced by their job stability and their attitude of job responsibility, which many employers have recognized. * Learning ability does not decline significantly with age; ability to learn at ages 50 and 60 is about equal to that at ages 16 and 14. The following paragraphs are excerpts from a paper presented by Miss Eleanor Fait, State Supervisor of the Older Worker Program for the California Department of Employment, at a national con- ference on "Manpower Training and the Older Worker," in Wash- ington, D. C., in January, 1966. The meeting was attended by experts on aging from all parts of the nation, and was sponsored by the Na- tional Council on Aging in cooperation with the United States Dc- * A $tudy of the Employment of Older Workers-196~~: A Report to the California Legislature, 1965 $ession. State of California, Department of Employment and Citizens' Advisory Committee on Aging, Sacramento, California, January, 1965. Appendix B, Pages 167-171. 34 PAGENO="0201" AGE DISCRIMINATION IN EMPLOYMENT 195 partments of Labor and Health, Education and Welfare. Miss Fait said, in part: Policy. In 1964, we abolished from our California State Employ-- ment Service operating policy and concept that there are any "bona fide occupational qualifications" in a job; in other words, that age and ability to perform a task are necessarily related. This phrase, "bona fide occupational qualifications," means that an employer can say, in placing an order: "A woman of 50 can stand all day". "A man in his 40's is too old to train for this job." "A secretary of 35 can't get along with the younger women in the office." "No one over age 27 can do this work." Any law or policy containing "BFOQ" gives the employer exactly what he needs to perpetuate this overt discrimination on a legal base. We know that chronological age is a poor index of capability. For example, consider physical fitness. Evidence has been presented to prove that physical fitness is determined much more by training than by age. The capacity of the body to effect physiological adjust- ments to training is retained almost to the limit of the span of life. Energy reserves and sheer muscular power vary greatly among in- dividuals of any age. Creativity. There is no uniform pattern of decline in the creative process due to old age. Persistent and new creativity may be ob- served in some individuals as weli as its decline and extinction in others. There are many instances of newly-developed creativity in old age and examples of creative individuals who ventured into new fields of old age. Rate of Aging. Physical changes come about gradually; they do not occur at the same time in any one individual; nor does any group of individuals age at the same rate. Personality. The older eniployee tends to have a greater sense of responsibility toward his job and his employer, he is more likely to be objective about personal goals and capabilities, he has increased social intelligence including the ability to understand and influence others. Speed. There is no proof yet that older persons cannot increase their speed of performance and learn new skills under appropriate conditions of motivation and practice. Let's take the 100-plus group. Four hundred beneficiaries of the Social Security Administration rolls are 100 years of age or older. More than 300 are getting benefits based on work they did after they were at least 75 years old. A dozen of these people are~ still employed or self-employed, and the oldest is 120. One of them retired last year as sling man on a longshore gang in Seattle-at age 105! PAGENO="0202" 196 AGE DISCRIMINATION IN EMPLOYMENT Alameda Alhambra Arcadia Bakersfield Baldwin Park Berkeley Beverly Hills Burbank Campbell Compton Concord Cupertino Daly City Davis Downey El Cajon El Cerrito El Monte Escondidd Eureka Fairfield Fremont Gardena Garden Grove Glendale Hanford Hawthorne Hayward Hermosa Beach Huntington Beach Huntington Park Inglewood La Habra Lakewood La Mesa Cities-105 La Puente Lodi Loma Linda Lomita Lompoc Long Beach Los Angeles Los Gatos Lynwood Maywood MenloPark Merced Milpitas Modesto Montclair Montebello Monterey Park Mountain View Napa National City Newport Beach Norwalk Oakland Oceanside Ontario Orange Oxnard Palos Verdes Estates Pasadena Pico Rivera Pittsburg Pleasant Hill Pomona Redding Redlands Counties-40 Redondo Beach Redwood City Richmond Sacramento San Bernardino San Bruno San Buenaventura San Diego San Fernando San J~ose S2n Francisco * San Luis Obispo San Mateo San Pablo San Rafael Santa -Ann Santa Barbara Santa Clara Santa Maria Santa Monica Santa Rosa Seaside Southgate Stockton South San Francisco Sunnyvale Temple City Thousand Oaks Torrance* Vallejo Visalia STista West Covina Westminster Whittier AppencHx A LIST OF RESPONDENTS TO SURVEY ON AGE REQUIREMENTS. IN GOVERNMENT Alameda Mono Santa Cruz Colusa Orange Shasta Contra Costa Placer Sierra - El Dorado Humboldt Plumas Riverside Siskiyou Solano Imperial Sacramento Sonoma Inyo San Bernardino Stanislaus Kern Kings Los Angeles Madera San Diego San Joaquin San Luis Obispo San Mateo Sutter - Tulare Tuolumne Ventura Maria Santa Barbara Yolo Mendocino Santa Clara Yuba Merced `Counted as a city rather than county. 37 PAGENO="0203" AGE, ,~DISCRIMINATION, IN EMPLOYMENT 197 Appendix B .QUOTATJONS~ ~ OF CITIES AND COUNTIES CITIES `ALHAMBRX "Tli~i" City `exiiects `that~ not~ alV poliebmen or fii~embh `will `be able td `effectively pérforiñ `their duties' `at 55. Those who' `have "not been `promoted b~' that"time, ai~e able to `retire with"20 j~ears' of"service and-a' `sufficient l)~nsio1L' To allow poliëernOn and' fl~emen `to be hired' in at `au age which would not"nllow theni to `retire `nntil they' wéiie 410 br 65, is' not' in `the best inteiest of the City BERKELEY: After a lengthy study, the City Personnel Beard in 1961 adopted the ~olicy' `~thCt ake lithits `should bé'iiñ~ioséd Only in eanis whei~O they are cl~arly"iuidicated by' thO `~ihysical i~uirements of' the jOb and On' the advice of `the PenionnOl Me~lical OffiCer, or when the ~5'O'sition is t~ trftinee `~dsition." Th~ Cit~r of BOl-keley' PersO~nel Department's `isdex CodC SOction5i1, Sec- tion B (revised December 1, 1965) sets age limits for 28 classes involving 375 positions, with upper agni `u-ai~ying `from 25 for' `Junior Typist and Stenog- rapher, age 30 for Firethan and"Patrolmdny and age 55 foi~' Parking Attendent and Radio Technician. Most employment is in police and flue positions. Age limits for positions believed to reqi~ire them `because of ~physical: demands of the job ,ar.e' established, after revie\\' and, reeommenda@on o~ ,~he City's Per- ,sonuel. Medical Officer. ` `, , , ` , ` ` ~`. ` BURBANK :` `AbOut `150 of `the City's 1200 employees aCe `Firemen `or Police Patrol- men, with upper age limits of 30 and 35'respectively. The'City's'representa- tive states: "We "cannot conceive that, any thoughtful. older person, would he', discouraged by the existeyce of ,the~e limitations or would seriously consider ~ntrance, into a career inmunicipallaw enforcement or firefighting." COMP~FON' "The maximum age of 30 foi H'oseman ~"has been established because of the, physical conditioning and reflexes required of' entry level `applica~its. From past statements or statistiCs xegarding. injuries and age it has been ,estnblished'that `the greater the .age"of' an~ employee `in ,:the classification of Hoseman, the higher the incident of injnry within' ~he Department.~' ,FREMOXT : Age limits of' 21-34~ for Police, Officer' and Fireman. `In spite of' our relatively high upper age level for both positions; we have' found relatively few .m~n beyond, age 30 who apply' `for tile, examinations., Adthtionally,. it is found `that men beyond age 28,,experbuce difficulty in meeting the physical requirements for these positions and tend, to :be eliminated, either in the tests of `strength and agility administered as a, part of the total examination process, or in the thorough medical examination precedmg appointment. Accprdingly, we, ~~nay find, it necessary to restrict maximum age to 28. ~ut the c1o ing date foi accepting applic~utions lot both of thse P0 itions It in be noted that the numbet of muu ie~ching `Ige ~1 nhl he glcatl\ in ciehsed in the general populOtiofi' iii 19416, arid isiOreafter, a~ projected by the Censbs `Bureau,' resulting' frUm' `the `4hiaby boom" comniencing `iii"~1946. It is' hoped that OCr niCruiting' prOblem' `hua~' be losaened' uoniewh~at because of this faCt ` ` ` ``` ` ` ` `` ` , "`" ` - "ThO' figO grOup no* `reaching o~ beyond `age 30 `has' been in nOtably short supply', "since' this nation expeh~ienced a~' reduced birthrate during `the de- ""l*essiOn year's. As a' result, all `public ageflciOs' ha~'O ha~ difficulty `in' obtain- ` ~ enOugh qualified applicants' ~vithiri ``the age "limits; most' suitable for entrance into police and fire positions." ` 39 PAGENO="0204" 198 AGE DISCRIMINATION IN EMPLOYMENT GLENDALE: The City hhs upper age limits for several jobs; in law enforcement, the range is 21-32. The City Civil Service Commission, Rides and Regula- tions, Rule III, Section 3, states: "Age Requirements. The Commission may fix minimum and maximum age limits for any examination by giving notice thereof in the call for such ex- amination, and provided further that honorably discharged United States soldiers, sailors and marines, who themselves are not qualified to hold such positions, shall be given a preference of ten per cent on any age limitatioa."-~ LA HABRA: This City employs 18 Firemen and 24 Policemen, with age range 21-35, and with "safety member" retirement coverage. The City states: ~Both the Police and Fire services are making an attempt to professionalize their services and it has been determined after lengthy study, that it is impossible for a man of middle age to enter a new profession as demanding in physical fitness as the police and fire sciences. It is the sincerest opinion of the city that these age restrictions are required for this type of position. Common sense and not discrimination is the basis for establishment of many physical requirements in employment." LA PUENTE: "The City of La Puente has no statutory or other formal policies concerning age restrictions . . . However, as a matter of practical applica- tion due to the framework of our supplementary voluntary investment- retirement program, La Puente does exercise prudential discretioii in tills area." LODI: `~The age range for police officer is that established by the state's Peace Officer Standards and Training Commission." In Lodi, the age range for Police Officer is 21-31. LONG BEACH: (Age range of 21-30 for Patrolman, Policewoman, and Fireman.) Even announcements for physically demanding jobs do not specify absolute upper age limits but state only ~preferred' maximum limitations. We depend on medical examinations to determine the physical fitness of eligible candidates to perform such work." MENLO PARK: Age range for Police Officer is 21-35. "This requirement is based upon the recommendation of the Commission on Peace Officer Standards and Training. The second factor for the age limit is due to the high cost of belonging to the State Employees' Retirement System after age 35." MONTCLAIR: This City employs 18 Police Patrolmen. The usual age range is 18-35 but may be extended to age 40 with specified experience. "Officers are required to do strenuous work; retirement contributions for officers entering at a later age are prohibitive." ONTARIO: Age range for Policemen is 21-36, and for Firemen 21-31. Reason given: "Obvious-physical." ORANGE, CITY OF: Age ranges of 21-34 for both Police and Fire positions. "Our age limits for police have been promulgated by the State Department of Justice, Commission on Peace Officers Standards and Training . . . Stand- ards for the fire service must be considered in the same light and we have accordingly set our entry restriction for firemen." PICO RIVERA: ". . . None of our job specifications indicate any preference to age . . . In consideration of an employee for positions that we would hope to keep filled a number of years, age does become a serious consideration." PLEASANT HILL: Only position with an age limit is Crossing Guard. "We feel that persons over seventy-two probably not able to stand the rigors of out- side duties in inclement weather . . . As a practical matter, we do hesitate at hiring persons in the upper age bracket because of time effect timat such hiring has on our retirement contribution mate . . . We would be more inclined to hire more elderly people (GO plus) on a full or part-time basis if it were possible to exclude them from membership in the retirement system." RICHMOND: Age limits for Firemen and Police Patrolmen are 21-29. Reasons given: "(1) The work involves great physical exertion at times. (2) Younger employees are less liable to injury in this type of work. (3) Medically disabling retirements are an unfair burden on the Safety Officer Retire- ment System." 40 PAGENO="0205" AGE DISCRIMINATION IN EMPLOYMENT 199 SAN BRUNO: "The age requirement is to insure the ability of newly appointed personnel to meet the educational requirements of training to be given upon entrance of this type of work where it is necessary to meet the minimum State requirements in connection with the State's program of matching funds in the application of minimum standards for Police Officer in the State of California, and similar training is given to Firemen even though this is not a State requirement." VENTURA (CITY) : Age range for Policemen and Firemen is 21-32. "Each new employee in these classifications receives a tremendous amount of training. material, and equipment. The City must expect a long period of employment from these employees to `amortize' this heavy investment. Because of the rigors of this kind of employment, these employees must be hired at an age which will provide the City with several years employment while the officer or fireman is at peak physical condition." SAN JOSE: This City has age limits for a number of jobs, including office and clerical. Age limits "are based upon the needs of the service involved, the kinds of work to be performed, the experience derived from medical records and the Workmen's Compensation experience" (als& whether the job is part- time or in a trainee category). "The age of firefighting personnel affects the fire insurance rate . . . This is strenuous and hazardous work, and it is es- sential that young and healthy persons be recruited . . . With the laboring categories the top levels are generally set at a maximum of 45 years Office and clerical workers are recruited at a maximum of 50 to 55 years. "The City of San Jose enjoys good sick leave experience (one-half of the national average for governmental employees), one of the lowest Workmen's Compensation rates in California, and a very effective working force. How much can be attributed to intelligent application of age limits when recruit- ing is not known but undoubtedly it is a factor." SAN LIJIS OBISPO: This City employs 25 Policemen and 17 Firemen, with maxi- mum entry age of 30. Reasons given: ". . . Above this age the retirement contributions tend to be prohibitive since an annuity of one-half pay is being built up by age 53 . . . It has also been our experience that, in this type of work, older persons have a tendency to incur disabilities connected with the heart, ulcers, etc., more so than younger persons~" SANTA ANA: ". . . The nature of the work and the amount of training involved precludes the use of older people." The City's retirement age for safety per- sonnel is 50 with 20 years of service. SANTA CLARA: This City has age limits of under 60 for about 45 jobs, including law enforcement, skilled craftsmen, office workers, and laborers. For Fire- men and Policemen the age range is 21-35. Upper age limits for a number of office, clerical, and skilled jobs are 50 and 55. Age requirements for each position are set by the City Civil Service Commission when an examination is scheduled (Civil Service Regulations 2.5, sub-section B). STOCKTON: Age ranges for Firemen (108 positions) are 21-29, and for Police- men (110 positions) 21-32. Retirement is under "safety members" plan of SERS. The City representative states: "These positions require agility, stamina, and endurance. Exposure to stress and strain is great. Without a reasonable maximum entrance age the City would be faced with skyrocketing insurance costs. For example, Section 3212 of the Labor Code provides that pneumonia, heart trouble, or any hernia which develops or manifests itself during employment shall be presumed to rise out of or in the course of employment. "With the low entrance age our liability is not as great since the em- ployee, as the years progress, usually advances to a position with less physical activity through seniority or promotion. It is difficult now to effectively utilize the services of all public safety members who suffer permanent im- pairment because of an industrial injury. At times, we have to resort to forced retirement." COUNTIES ALAMEDA: Deputy Sheriff, 21-34. "The 35th birthday is the cutoff point for admission to the system." CONTRA COSTA COUNTY: Same comments. 41~ PAGENO="0206" 200 AGE I3TSCRIMINATI0N IN EMPLOYMENT EL~DORADO :~ No `~~cific *age ranges. For Deputy Sheriff, applicants are re- `quirèd to 1'nieet prescribed standard" (age and physical). The essential point is "an applicant's physical condition in relation to partióular' job require- meats of `a given assignment within `the Sheriff's office. The Sheriff may determine `an applicant's acceptability as to age. KERN COUN'~'Y~: The Kern Couiity Civil'Service'Coinmissiciñ "firmly bëli~ves that maximum ages for recruitment purposes is not'iñ the best interest e~ effective recruitment for' giving all applicants an equal opportunity' to be considered fOr employment' with Kern County." MARIN Safety members cannot 30in the system after 35th birthday MERGED CO1ThTY Disquahfication for emplo~ment in reference to ~ge is determined by physical e~aminaton for positions requiring more strenuous endeavor City Ordinance 518 specifies age 70 for retirement but persons over that age, not in the retireniént s~stem; `mC~- be, hired' for ~temporary jobs." ` ` ` ` ` ` ````-`` ` - ` ORANGE COU~TY Safety members must be under age 35 PLACER: Normal retirementage is 55-for. Deputy Sheriff, and entry. 21-35.~ PLUMAS: Regular SERS' and `Safety plans-safety'members must retire at 65. RIVERSIDE: Same. SAN BERNARDINO COUNTY: Age limits (not specified) are for Deputy Sheriff only. "We need young, healthy, vigorous applicants to protect the property and possessions of the citizens of this County~ They are called upon for sudden violent exertions. Sometimes they have to be sent on search parties which requires a great deal of physical endurance. . . . We have no require- ment on age partly because of the, State law which prohibits such require- ments for persons between the ages of 45 and 65." Mandatory retirement is age, 70, under SERS. SAN JOAQUIN COUNTY: "We have always been most cautious about imposing age limitations. The only age ,requirement . . . is that permitted by State law for safety members Or peace officers and those' requirements imposed by our Retirement System which, was set up under the 1937 act, and which recognizes only the retirement age of 70 as a mandatory requirement. It is our understanding that under state law no other age requirement can be `specified and therefore we do not, ,except as directed by our Retirement Sys- tem and mandatory legislation on school students." SHASTA COUNTY: "Although not a specific factor in our oral board examinations, age `nonetheless is a matter of partial consideration in oral board interviews, particularly in positions involving strenuous physical activity or lengthy training." SOLANO: SERS and Safety plans. , SOXOMA COUNTY: "Lengthy. training" and physical demands. County expects to lower mandatory retirement age for law enforcement officers. STANISLAUS: Physical demands and hazards of the work VENTURA COUNTY: Deputy Sheriff, Marshal, Harbor Patrolman; and Firemen- ~entry age is 21-35. "A matter of standard practice throughout the State. (Reasons are) the physically demanding and sometimes hazardous nature of work performed; desire to promote a career system, and eligibility for Safety Members Retirement Plan." YOLO': Deputy Sheriff ages 21-39. Physical demand~ given `as reason. 42 PAGENO="0207" Appendix C SAN DIEGO COUNTY POSITIONS WITH AGE LIMITS Approximate No. Maximum of Positions Age Title of Position 6 35 * Administrative Trainee 7 39 * Deputy District Attorney I 10 35 Mail Clerk Driver 2 39 * Deputy County Counsel I 3 35 Assistant Sanitarian 11 35 * Appraiser Aide 2 35 * Junior Right of Way Agent 238 33 Deputy Sheriff 5 50 Sheriff's Bailiff 16 35 Sheriff's Matron 1 35 Assistant Pool and Gym Manager 2 27 Life Guard II 13 35 Life Guard I 4 35 Tree Maintenance Man I S 35 Tree Maintenance Man IT 7 39 Sewage Treatment Plant Operator Trainee 4 45 Window Cleaner 70 33 Deputy Marshal * Age waived for candidates graduatiag from college within past 5 years. J?eason Entrance level ; career o1)pO1~tllflitie5 ~ Entrance level ; career opportunities ~ Physical demand,~ of position Entrance level ; career opl)Ortunities ~ Entrance level ; career opportunities ~ Entrance level; career opportunities ~ Entrance level; career opportunities ~ Safety Retirement System Meml)er ~ J~aw enforcement position Safety Retirenent System Member Physical demands of position Physical demands of position Physical demands of position 0 Physical demands of position Physical demands of position Entrance level ; career opportunities ~ Physical demands of position Sn fety Retirement System Member I. PAGENO="0208" PAGENO="0209" STATE OF CALIFORNIA DEPARTMENT OF EMPLOYMENT and CITIZENS' ADVISORY COMMITTEE ON AGING A SURVEY OF THE EMPLOYMENT OF OLDER WORKERS - 1964 A REPORT TO THE CALIFORNIA LEGISLATURE, 1965 SESSION Sacramento, California January, 1965 85376 0 - 67 - 14 2O~ PAGENO="0210" PAGENO="0211" A~E~ ):DISCRIMINATION IN EMPLOYMENT 205 S~ct~mento; .Califôr~ia. - January 11, 1965 Honorable Jesse M. Unruh Speaker of theAssembly ... I. . . .. ~.. State Capitol Sacramento California Dear Mr. Speaker: We are submitting the accompanying report in response to HR 77 of the 1963 Session of the California Legislature. The report is a synthesis of four separate but coordinated projects by the Department of Employment and the Citizens' Advisory Committee on Aging to develop factual data and representative viewpoints on problems confronting the older worker striving for labor market recog- nition. The projects were designed to obtain new insights into the problem and consisted of original research by the Department of Employment staff, interviews with employer and labor union hiring authorities conducted by an independent consultant, interviews with Department specialists and conferences among civic leaders in representative communities throughout the State. Stemming from these undertakings we have arrived at some conclu- sions with respect to appropriate actions which. need to be taken. Additionally, you will find~ many. other~ recommendations and view- points expressed by those whose views were solicited and received in the course of carrying out the assignment made by HR 77. ALBERT B TIEBURG DIRECTOR OF THE DEPARTMENT OF EMPLOYMENT WILLIAM D. BECHILL, EXECUTIVE SECRETARY, CITIZENS' ADVISORY COMMITTEE ON AGING . . PAGENO="0212" 206 AGE DISCRIMINATION IN EMPLOYMENT TABLE OF CONTENTS Page LETTER OF TRANSMITTAL i TABLE OF CONTENTS ii LIST OF TABLES TEXT OF RESOLUTION PART ONE - JOINT RECOMMENDATIONS TO THE CALIFORNIA LEGISLATURE 1 A. AMENDMENTS TO THE PRESENT LAW ON AGE DISCRIMINATIONIN EMPLOYMENT 2 B. PUBLIC INSURANCE PROGRAMS 2 C. PRIVATE PENSION PLANS 2 D. TRAINING AND RETRAINING 3 E. PART-TIME EMPLOYMENT 4 F. OTHER RECOMMENDATIONS 4 PART TWO - PURVIEW OF REPORT 6 CHAPTER ONE - BACKGROUND AND SCOPE OF STUDY . . 7 CHAPTER TWO - SUMMARY OF PROJECT REPORTS 8 A. EMPLOYMENT PATTERNS 8 B. CONSULTANT SURVEY 9 C. ANALYSIS OF OLDER WORKER PROGRAM IN 36 FIELD OFFICES OF THE CALIFORNIA STATE EMPLOYMENT SERVICE 12 D. COMMUNITY WORKSHOPS ON THE EMPLOYMENT OF OLDER WORKERS 15 PART THREE - REPORTS OF PROJECTS 17 CHAPTER ONE - EMPLOYMENT PATTERNS . 18 A. HISTORICAL TRENDS 18 1. In the United States 18 2. In California 19 1]. PAGENO="0213" AGE DISCRIMINATION IN EMPLOYMENT 207 TABLE OF CONTENTS (Cont'd) Page B. EMPLOYMENT AND UNEMPLOYMENT AMONG OLDER WORKERS 19 1. United States 19 2. California 22 C. OUTLOOK FOR EMPLOYMENT OF OLDER WORKERS 30 D. PRESSURES CAUSING PEOPLE PAST RETIREMENT AGE TO SEEK WORK 36 1. Deficient Retirement Income 36 2. Family and Marital Status 40 3. Longevity and Health Requirements 43 E. REFERENCES 46 CHAPTER TWO - CONSULTANT SURVEY 49 A. THE OLDER WORKER AS AN EMPLOYEE 49 B. THE OLDER WORKER AS AN APPLICANT 50 1. Experience 52 a. Lack of Specific Experience 52 b. Overspecialized Experience 53 2. Strength and Endurance 54 a. Heavy Physical Labor 54 b. Fast Work Pace 54 3. Mental Flexibility 55 a. Older Male Applicants 55 b. Older FemaleApplicants 55 c. Older Clerical Females 56 d. Older Applicants and Tests 56 e. Older People and Changes 56 f. Older Applicants and Rigidity 56 111 PAGENO="0214" 208 AGE' ;DISCRIMINATION'; IN~ EMPLOYMENT TABLE OF;CONTENTS".( Cont3;d) Page 4. Compensation Costs .1..'.'. ~ .. 57 a. Very Young Female Clerical W,orker,s . 57 b. Higher Salary Demands, ..~. .~ . . .~. . 58 c. ~Higher Costs o,fFringe':Benefi:ts `c~ ~.. . ". 59 5 Social Considerations 59 a... Inherent Stat~s';of ~ ... ~ . . . . 60 b. Older Wbtkërs'As~üme `te'adèi~ship". . 60 c. YóungManagèments.'. ;`.` .. . .`. . 60 d Employers Concern Over Pensions 60 6 Employer and Union Practices 61 a. .Promote-FromTWithin~. ..~.. ..... ~ 61 b. AgeBalance. ~ ~. ~.. . ~ 62 7. Job Search Techniques . .- ~ . ... . 62 a., Oider:Applic~ntsMé. *Dèfe~tists. . . . 62 b. ;:Older:Applicants Fafl~in~Jàb Search . . 63 c. Older Ap~1i~ànts~'Dó~Not Appl~ Strengths . * 63 8. Recommendations.:.; ~ ~.* ` 64 9. Actions Recomrnended~....;: ~ ..~. * `. * 64 ,a.~ Continue~Indi~idualized Counseling 64 b. Emphasize Tra'ihinç `to `Broaden:' Existing Skills. . . 65 c. De-Emphasize Training for New Sk'ills~. .. `..` . . ~. . . . 65 10. `Study réas Recommended . . * . . * * * . 65 a. Adequacy of Present Teaching Methods 65 iv PAGENO="0215" AGE DISCRIMINATION IN EMPLOYMENT 209 TABLE OFCONTENTS(Cont'd) Page b. Investigation of General Sentiment . . . 66 c.. Effect of Age Status on Older Applicants 66 CHAPTER THREE - ANALYSIS OF THE OLDER WORKER PROGRAM IN 36 LOCAL OFFICES OF THE CALIFORNIA STATE EMPLOYMENT SERVICE 67 A. INTRODUCTION 67 1. Scope of the Analysis . 67 2. Who Is An rOlderWorkerfr#? 67 B EMPLOYMENT PROBLEMS OF OLDER WORKERS 68 1. The Problem Can Start Early and Last Long . 68 2. Age Is Not the Only Problem--There Is Always Something Else 69 a. Problems of Skills 70 b. Problems of Training 71 c. Problems of Mobility 72 d. Health and Physical Capacity 73 3. Attitudes of OldërWorkers' 74 a. Personal Problems . . . . . . 74 b.. Resistance to Change. 75 c. Unrealistic Goals 76 d. Attachment to the Labor Market 76 C. EMPLOYER ATTITUDES AND HIRING PRACTICES . 77 1. Is There Age Dizscrimination? . .: * . . . * . 77 2. Employer Objections. .: 78 3,. Physical Examinations ... .. .. 79 4. Wages ..,. . . 79 V PAGENO="0216" 210 AGE DISCRIMINATION IN EMPLOYMENT TABLE OF CONTENTS (Cont~d) Page 5. Retirement and Group Insurance Plans . . . 80 6. The Garment Industry 81 D. ORGANIZATION OF OLDER WORKER SERVICES. . 82 1. ttMajnstreamfI Services 82 2. Special Services to Older Workers 82 a. Budgetary Limitations 85 b. Present Status of Program . 85 3. Employment Counseling 87 E. COMMUNITY ORGANIZATION . 88 1. Community Involvement 88 2. Operations of a Community Employment Committee 89 3. Employer Policy Statem~ent 90 4. Special "Action Projects" 91 a. Project `60" 91 b. Analysis of Actual Job Performance Requirements 92 F. TRAINING 93 1. California Retraining Benefits Programs (SB-20) 93 2. Manpower Development and Training Act of 1962 94 3. Area Redevelopment Act of 1961 95 4. Job Corps (Economic Opportunities Act). . 95 5. Vocational Education 95 6. Local Office Suggestions on Training . . . 96 G. REFERENCES 97 PAGENO="0217" AGE DISCRIMINATION IN EMPLOYMENT 211 TABLE OF CONTENTS (Contd) Page CHAPTER FOUR - COMMUNITY WORKSHOPS ON EMPLOYMENT OP OLDER WORKERS 99 A. PURPOSES OF THE WORKSHOPS 99 B. THE WORKSHOP CALENDAR 99 C. WORKSHOP HIGHLIGHTS 100 1. Bakersfield 100 2. Eureka 101 3. Long Beach 102 4. Oakland 102 5. Pasadena 103 6. Sacramento 104 7. San Diego 104 8. Van Nuys 105 D. PROPOSALS FOR ACTION 106 1. Effects of Public and Private Pension and Insurance Programs 106 2. Training, Ret~a~Mng and Counseling . . . 108 3. Improved Public Understanding 109 4. Strengthening of the Employment Service . 110 5. Management-Labor Action 110 6. Expansion of Part-Time Employment. . . . 111 7. Retirement Attitudes 112 8. CommunitySupport and Organization . . . 112 9. Other Proposals 112 vii PAGENO="0218" 212 AGE DISCRIMINATION IN- EMPLOYMENT TABLE -OF CONTENTS (Cont'd) Page PART FOUR - APPENDICES .. .~-;. * .. * -.* .. 114 APPENDIX A - EMPLOYMENT WORKSHOP SERIES SELECTED SPEECHES 115 1. "OUR INESCAPABLE DUTY TO END DISCRIMINATION AGAINST OLDER WORKERS" by Assemblyman Joseph -M. Kennick, Long Beach at Bakersfield Workshop, March 14, 1964 * . . ..... . -., 117 2. "EXPANDING EMPLOYMENT OPPORTUNITIES FOR THE OLDERWORKER IN NORTHERN CALIFORNIA" by Samuel s. Johnson, President, Jefferson Plywood, Redmond, Oregon at Eureka Workshop, April 16, 1964 . . . . 121 3. "EMPLOYMENT OPPORTUNITIES FOR OLDER PERSONS IN THE CONTEXT OF THE EXPANDING ECONOMY OF THE STATE OF CALIFORNIA" by Paul W. Little, Assistant Director- Manpower, California Department of Employment at Eureka Workshop, April 16, 1964 . .~ . 125 4. "SUMMARY OF EUREKA WORKSHOP" by Mrs A M G Russell Chairman Citizens' Advisory Committee on Aging at EurekaWorkshop,~ April 16, 1964 . . 130 5. "A MODEL FOR ACTION TO IMPROVE AND EXPAND EMPLOYMENT OPPORTUNITIES FOR OLDER PEOPLE"; by Nathaniel , Consultant, Older and Retired Workers Department, * International UAW-CIO, Detroit at Oakland;Workshop, May 21, 1964 * . .~ . . 134 6. "SUMMARY OF OAKLAND WORKSHOP" by Dr. Margaret S. Gordon, Associate Director, University of California., Bërkeléy at OáklandWorkshop, May 21, 1964 . * . .. .. * *. 141 7. "LABOR LOOKS AT THE OLDER WORKER" by Don Vial, Research Director, California Federation of Labor, AFL-CIO, San Francisco at Sacramento Workshop, May 5, 1964 147 viii PAGENO="0219" AGE DISCRIMINATION IN EMPLOYMENT 213 TABLE OF CONTENTS (.Contd) Page 8. "MANAGEMENT LOOKS AT THE OLDER WORKER" by E. P. James, Professional Placement Manag~r, Aeroj et General Corporation at Sacramento Workshop, May 5, 1964 . . . 152 9. "THE AGE FACTOR AND EMPLOYMENT'. ~S by Mr. Karl Kunze, Personnel Director1. Lockheed Aircraft Corporation at. both Bakersfield Workshop and Van Nuys Workshop, March 14 and April 15, 1964 . . 159 10. "SUMMARY OF SAN DIEGO WORKSHOP" by Community Welfare Council at San Diego Workshop, May 8, 1964 . . . 162 APPENDIX B - JOB PERFORMANCE CHARACTERISTICS OF OLDER WORKERS 166 APPENDIX C - PENSION PLANS AND GROUP INSURANCE . 172 APPENDIX D - JOB MOBILITY OF OLDER WORKERS 178 ix PAGENO="0220" 214 AGE DISCRIMINATION IN EMPLOYMENT LIST OF TABLES Page Table 1 Unemployment rates by age and sex, U.S., 1950 and 1960 20 Table 2 Unemployment rates by age and sex, U.S., 1961-1963 21 Table 3 Unemployment rates and years of school completed, males 35 to 44 and 55 to 64 years old, U.S., March 1962 22 Table 4 Seasonally adjusted unemployment rates, California, 1954-1964 23 Table 5 Unemployment rates by age and sex, California, 1950 and 1960 24 Table 6 Employment status of persons aged 45 and over, U.S. and California, 1950 and 1960 25 Table 7 Percentage distribution of California workers in insured employment, by age, 1960-1962 . . . . 26 Table 8 Annual average percentage distribution of the insured unemployed, by age, California, 1960-1963 27 Table 9 California Unemployment Insurance Program: Number of claimants, average number of weeks compensated in ben~it year, and percent who exhausted all benefit rights. Benefit years established 1960 28 Table 10 Proportion of insured workers in one industry during the ten-year period, 1953-1962, by age, for a sample with California earnings in both 1953 and 1962 29 Table 11 Proportion of insured workers with more than 35 quarters of California earnings, for a sample with California earnings in both 1953 and 1962 29 Table 12 California civilian population by age, 1960 and 1975 31 Table 13 California female civilian population by age, 1960 and 1975 31 Table 14 Median years of school completed by persons 14 and over, California, 1960 32 x PAGENO="0221" AGE DISCRIMINATION IN EMPLOYMENT 215 LIST OF TABLES (Cont'd) Page Table 15 Reasons for retirement of OASDI beneficiary, men aged 65 and over, U.S., 1951 and 1963 . . . 33 Table 16 California civilian labor force and participation rates, by age and sex, 1960 and 1975 34 Table 17 Growing occupations of males, median aged 45 and over, California, 1960 35 Table 18 Growing occupations of females, median aged 45 and over, California, 1960 36 Table 19 Annual money income of males, by age, U.S., 1963 37 Table 20 Annual money income of females, by age, U.S., 1963 38 Table 21 Median income of California population, aged 14 and over, 1959 39 Table 22 Average monthly old age benefit under OASDI and disposable personal income, U.S., 1940-1962 39 Table 23 Marital status of California population, aged 65 and over, 1960 40 Table 24 Median family income, U.S., 1950-1962 41 Table 25 Median income of families by selected characteristics, U.S., 1963 41 Table 26 1959 income of California families and unrelated individuals, by age and sex of family head. . . . 43 Table 27 California State Pl~n Disability Insurance, basic claims terminated, by age, 1963 44 Table 28 Workers covered by California State Plan Disability Insurance, by age, 1960-1962 45 Table 29 U.S. Consumer Price Indexes for all items and medical care, 1950, 1960, 1963 46 xi PAGENO="0222" 216 . AGE~ DISCRIMINATION IN~EMPLOYMENT `TEXT OF RESOLUTION Rou~ResolutionNo.7~7 c: :`: Relative to improving employment opportunities of older persons WHEREAS, Legislation is now pending before the Congress of the United States which wouldprov1de~ new. grant programs f~expeH~nei~ talk and demonstration projects to stimulateempioyrnent opportunities for older persons; and S WHEREAS ,~In California :itis~ known; thatTnany older Täppiicants seeking employment are not placed Ill :própO~tiont'o the number of those needing employment; and I `Thére:is a:ñeed for more specific~iriformatiàn relating to the increasing effects 5of automation and technologicàl~changes affecting employment of older persons; and WHEREAS:, There:is a need for. aurrentdata concerning' employei~' and union attitudes and action in providing employment f6r. older workers; and WHEREAS;,cSucidata';WOUldibeVailieble in the stimulation Of; community understanding. and support of empibyment opportunities for older persons; now, therefore, be it Resolved by the Assembly of the State of California That the Department of Employment and the Citizens' Advisory Committee on Aging are requested to undertake jointly a study of how and where employmentopportunttle s~foi~older ~person~s maybe improved and expanded5 throughout the State, and to repbrtithéIr joint findings and recommendations thereon to the Assembly on or before the fifth legislative day of the:I965~Regular'Session~. tr'~~~ :;:;`~ ?SSS: Resolution read,cand;teferred bythe Speaker pro' Tempôre to the Committee on. Rules.. 5 ` :: House ResolutiOn No.- 77; Relative `to u rovin~' employrrient oppor_ tunities of older persons. . ` ~; ResOlution ready and adOpted. s~ ~ .; `; ; xii PAGENO="0223" AGE DISCRIMINATION IN EMPLOYMENT 217 PART ONE JOINT RECOMMENDATIONS TO THE CALIFORNIA LEGISLATURE, 1965 SESSION, FROM THE CALIFORNIA DEPARTMENT OF EMPLOYMENT AND THE CITIZENS' ADVISORY COMMITTEE ON AGING -1-. PAGENO="0224" 218 AGE DISCRIMINATION IN EMPLOYMENT PART ONE JOINT RECOMMENDATIONS TO THE CALIFORNIA LEGISLATURE These recommendations represent the sum and substance of creative ideas from experienced and thoughtful people throughout the State. They indicate that there are real and basic problems facing the older worker in California's economy and that major progress in providing employment opportunities to `5 older workers can be achieved by legislative action. A. AMENDMENTS TO THE PRESENT LAW ON AGE DISCRIMINATIQ~ IN EMPLOYM~ 1. That the age limitation of 40 to 64 be eliminated and revised to cover any discrimination in employment solely based on age. 2. That no employer should be exempt from the provisions of the law regardless of the number of employees. 3. That all reference to pensions be stricken from the law. B. PUBLIC INSURANCE PROGRAMS 1. That income protection be provided, once training is started under Article 1.5, California Unemployment Insurance Code, retraining benefits, by extending weekly benefits throughout the entire period of training even though the regular or extended benefit period may be exhausted. 2. That the Legislature memorialize the Congress to revise the present Social Security Act to provide for a revised concept of the present retirement test end the earnings limitation for persons receiving Soctal security retirement benefits to per- mit beneficiaries to have earntngs that would bring their income up to a level donsistent with "an adequate standard of livingr.~ C. PRIVATE PENSION PLANS 1. That the Legislature establish a State Portable Pension Act similar to the law in effect i~he province of Ontario, Canada; this act to provide for'compulsory vesting rights and a funding plan which will assist small employers for the pur- pose of increasing the mobility of workers by facilitating the transfer of pension credits. We also support the enactment of federal legislation to establish a National Portable Pension Act wherein every worker accumulates credits regardless of his moves within the labor force and where it is mandatory that all pension plans contain vesting rights. We recommend that a resolution to this effect be adopted by the Legislature for submission to the Congress and the Secretary of Labor. -2- PAGENO="0225" AGE DISCRIMINATION IN EMPLOYMENT 219 2. That the 1965 Legislature appropriate funds for a comprehen- sive and scientific study of the actual costs incurred in the hiring of older workers to be conducted by the University of California in cooperation with representatives of agriculture, industry, labor, the Department of Employment, and other interested groups. Such a study should expressly explore ways and means to reduce any additional costs that might be established, especially in the case of smaller employers and firms. 3. That the Legislature adopt legislation similar to that in other states which would regulate and establish standards for private pension plans sold in California relative to their administration, funding, and public reporting and accountability. D. TRAINING AND RETRAINING 1. We are convinced of the need that training and retraining opportunities must be opened as fully as possible to older workers including the provision for on-the-job training in advance of layoffs or to maintain present older employees and recommend that: a. Local school districts be encouraged to provide full- time adult vocational schools in urban districts, day- time vocational courses for adults in smaller districts, vocational counseling for adults throughout the Adult Education system and make special efforts to compress into the shortest possible time the vocational training for adults. b. In recognition of the obvious need for improved adjust- ments to such trends as frequent job changes, need for training, gradual retirement, and the use of leisure time upon retirement, the Legislature requests the Bureau of Adult Education, the State Department of Education, the Department of Employment, the Citizens' Advisory Committee on Aging, and other appropriate agencies to jointly develop curriculum that can be utilized by the public adult education schools, labor, government, management, and others in the planning and offering of courses and programs in pre-retirement planning and post-retirement activities. c. The Legislature memorialize the Congress to increase the present funds allocated to the Manpower Develop- ment and Training Act in order to expand the present opportunities for training of older adults and to increase the present level of training allowances for persons enrolled in such programs and to continue with the 100 percent federal financing of this program. 85-376 0- 67 - 15 -3- PAGENO="0226" 220 AGE DISCRIMINATION IN EMPLOYMENT E. PART-TIME EMPLOYMENT 1. That efforts be intensified to develop part-time jobs for older persons, especially those in or nearing retirement. Special efforts should be directed to identify part-time job opportunities in all occupations and particularly in the fields of health, education and recreation. All employment agen- cies in the public and private sectors, including the Depart- ment of Employment, trade associations, private agencies, fraternal organizations should place special emphasis on the identification and development of part-time job opportu- nities for older workers. 2. That the Legislature memorialize the Congress to expand the scope of the Economic Opportunities Act to provide grants to State and local public agencies and nonprofit groups to develop and meet opportunities for part-time employment, specifically, for older persons in such areas as educational, health, welfare and recreational services. F. OTHER RECOMMENDATIONS 1. That the Citizens1 Advisory Committee on Aging conduct a study and report to the 1966 Legislature on any and all government codes, city and county charters, and civil service commission rulings and announcements, job descrip- tions in the law enforcement field, and requirements for licensing of all vocations and professions that contain any existing references to upper age as a requirement for employ- ment, and that such findings and reasons for such require- ments be made public. 2. That the Legislature invite the California State Employment Service and the Citizens Advisory Committee on Aging to develop plans, in cooperation with unions and management, for studies of job content and relationships between jobs, to establish valid performance requirements with regard to physical demands, education, and other qualifications in occupations where older workers are employed in substantial numbers. The plans developed from these studies should find means of utilizing the skills and abilities of older workers being displaced by automation and other industrial changes. 3. That efforts should be made to expand apprenticeship pro- grams and to identify apprenticeable opportunities for older workers. 4. That efforts should be made to develop industrial diversifi- cation with particular attentiOn to tourism, recreation and nondefense industries. Major developments in these fields would provide new jobs for thousands of older Californians in these industries and in related service occupations. At the same time, such a development would serve to answer, -4- PAGENO="0227" AGE DISCRIMINATION IN EMPLOYMENT 221 in an organized manner, the growing demand in the economy in public and private service occupations. 5. That an Employer Policy Statement on the employment of older workers be developed by the Citizens Advisory Committee on Aging and the Department of Employment for the purpose of affirming the principle that the employment of older people should be based on a full consideration of their skills and abilities and without regard to arbitrary factors such as chronological age. As a statement of policy, this statement should be promulgated through the major business, industrial and labor organizations and appropriate state agencies to ensure the widest range possible. -5-. PAGENO="0228" 222 AGE DISCRIMINATION IN EMPLOYMENT PART TWO PURVIEW OF REPORT -6- PAGENO="0229" AGE DISCRIMINATION IN EMPLOYMENT 223 PART TWO CHAPTER ONE BACKGROUND AND SCOPE OF STUDY House Resolution 77 adopted on July 24, 1963 by the Assembly of the California State Legislature, requested the Department of Employment and the Citizens' Advisory Council on Aging "to undertake jointly a study of how and where employment opportunities for older persons may be improved and expanded throughout the State.. .". Four projects were initiated to comply with that request. This study is composed of the project findings and recommendations based on them. 1. The Research and Statistics Section of the Department of Employment surveyed and analyzed existing published and unpub- lished materials from State and federal sources dealing with his- torical and projected patterns of older worker population, labor force and economic status. 2. The Department of Employment contracted with an internationally recognized management consultant firm to survey the difficulties encountered by a representative group of employers and unions in the hiring and utilization of older workers. 3. The Employment Service conducted a survey involving 150 older worker specialists, supervisors, and managers, who were inter- viewed by a representative of the Chief of Employment Service to ascertain difficulties encountered by local offices in placing older workers. 4. The Citizens' Advisory Committee on Aging and the Employment Service conducted community workshops in Eureka, Oakland., Sacramento, Bakersfield, Van Nuys, Pasadena, Long Beach, and San Diego at which representative employers, unions, school authorities and other community groups considered proposals for expanding work opportunities for older persons. -7- PAGENO="0230" 224 AGE DISCRIMINATION IN EMPLOYMENT CHAPTER TWO SUMMARY OF PROJECT REPORTS A. EMPLOYMENT PATTERNS California's population 45 and older is expected to increase at a lesser rate than the population as a whole but proportionately faster than the 25-44 year old group in the period 1960 to 1975. The population aged 65 and over will have increased in number Over 1960 by nearlythree quarters of a million in 1975, but the rate of growth will be lower than for the general population. Given the 1960 rate of employment for the aged 65 and over there will be approximately 293,000 aged Californians working in 1975. A sharp decline in income on retiring and increasing costs of illness prod an older worker to remain in the work force after retirement age. One out of twenty California jobs held by men in 1960 was in an occupation where men 45 and older predominated and where there was expanded job opportunity as against 1950. Most of these occupations have good growth prospects. One out of eight California jobs held by women in 1960 was in an occupation where women 45 and older predominated and where job opportunities had expanded since 1950. Private household workers constituted the principal occupation. Prospects for growth of this occupation are uncertain. Workers 45 and older who filed unemployment insurance claims tended to remain unemployed longer as well as to exhaust their benefits at a higher rate than workers in younger age groups. Insured California workers aged 45 and over tend to remain in one industry and to have more continuous earnings than the insured work force as a whole. Although most retirements are still caused by poor health or a mandatory retirement age, voluntary retirements have increased since the changes in statute permitting older workers to draw retirement benefits as early as age 62. The average income of the full-time worker 65 and over--more than twice that of the aged group as a whole--is a strong incen- tive for persons reaching retirement age to remain in the labor market. The income of families headed by women 65 and over exceeds that of aged not living with relatives but falls short of income received by families headed by men. -8- PAGENO="0231" AGE DISCRIMINATION IN EMPLOYMENT 225 B. CONSULTANT SURVEY: PROBLEMS ENCOUNTERED IN HIRING THE OLDER WORKER The study distinguishes between the older worker as an employee, on the one hand, and as an applicant, on the other hand. 1. The Older Worker As An Employee The employed older worker is frequently preferred over the younger worker. However, union and company evaluations of older employees are tied closely to the kinds of work to be done; nearly all of the employer respondents, for example, expressed several different preferences rather than a blanket opinion for or against older workers. Broadly speaking, older employees are preferred for the more skilled or supervisory positions and for jobs that entail frequent contact with the public on important , e. g., those which are expensive, technical or personal in nature. Younger employees, on the other hand, are preferred for unskilled work, work that requires significant physical strength or stamina, and jobs that require frequent, but casual, contact with the public. Employer and union respondents generally agreed in their evaluation of the older employee. This agreement and the absence of blanket opinions against older employees lead us to believe that most of the respondents show little, if any, conscious bias in their preference. The nature of the preferences for older employees causes smaller companies to have relatively stronger preferences for older employees than larger companies. Because smaller companies employ fewer people to perform all necessary functions, they have greater need for the breadth of experi- ence that older employees generally have to offer. 2. The Older Worker As An Applicant There is a sharp contrast between preferences for older applicants and preferences for older employees. While older employees are preferred by employers for many types of work, the same employers are often reluctant to hire older persons for similar work. Underlying this apparent paradox are at least one or two general conditions, as well as twenty-odd specific objections to hiring older applicants, voiced by unions and companies. They are outlined below. General Conditions Working Against the Older Applicant Unfortunately, the positive qualities of older employees, namely stability, judgment, skill and experience and low absenteeism, are all adversely affected to some degree simply by virtue of an older employee becoming an older applicant. He is thrust into an unstable position and the value of his judgment, skill and experience and work record -9- PAGENO="0232" 226 AGE DISCRIMINATION IN EMPLOYMENT will frequently have less or little value for a new employer. This is particularly true when the older applicant tries to change vocation. Perhaps related to this circumstance is a mild suspicion, held by many respondents, that older applicants are somehow inherently inferior to older employees. Specific Objections To Hiring Older Applicants The specific reasons why employers frequently reject older applicants fundamentally reflect the fact that an employment decision is an economic judgment. These reasons, as stated by survey respondents, are grouped into several categories, as follows: Experience - Lack of specific experience in a required skill seriously hurts the older applicant. - Overspecialized experience narrows the older applicant's opportunities. Physical Strength And Endurance - Heavy physical labor is performed better by the younger worker. - Fast work pace is maintained better by the younger worker. Mental Flexibil~flr - Older male applicants cannot be easily trained. - Older female applicants cannot be trained for intricate work. - Older clerical females seem to be problem employees. - Older applicants do less well in aptitude tests. - Older people resist change more than younger people. - Older applicants are too rigid in their expectations. Compensation Costs - Very young female clerical workers are cheaper. - Higher salary demands militate against the older applicant. -10- PAGENO="0233" AGE DISCRIMINATION IN EMPLOYMENT 227 - (Higher costs of fringe benefits are not a signifi- cant problem.) Social Considerations - Inherent status of age conflicts with actual status of work. - Older workers assume leadership without authority. - Younger managements prefer young employees. - Employers' concern over reduced pension benefits inhibits hiring of the older worker. Employer And Union Practices - Promote-from-within and seniority practices lessen opportunities for the older applicant. - Efforts to maintain a balance of ages work against the older applicant. Job Search Techniques - Older applicants are defeatist. - Older applicants fail to carry out their job searches properly. - Older applicants do not apply their strengths in the proper channels. While the major objective of the survey was to determine the difficulties encountered by older job applicants, several approaches to the solution of problems are suggested for consideration. 3. Actions Recommended The following actions, which could be taken without further fact-finding, are recommended: - Continue To Provide Individualized Counsel For Older Applicants And Publicize This Service As Widely As Possible - Emphasize Training Programs To Broaden Existing Skills - De-Emphasize Training Programs Designed To Impart New Skills To Inexperienced Older Persons -11- PAGENO="0234" 228 AGE DISCRIMINATION IN EMPLOYMENT 4. Study Areas Recommended In the following areas studies in depth should be made to determine what action, if any, should be taken: - Determine The Adequacy Of Present Teaching Methods And The Ability Of older Persons To Learn New Concepts And Techniques - Investigate The General Sentiment That Older Applicants Are Somehow Less Capable - Study The Effect Of Age Status Upon Opportunities For Older Applicants C. ANALYSIS OF THE OLDER WORKER PROGRAM IN 36 FIELD OFFICES OF THE CALIFORNIA STATE EMPLOYMENT SERVICE 1. Stereotyped thinking of older workers as `problems" may ignore their true capacities for employment. Employment Service staff believe that older workers can be placed in employment at almost any age, even in their 70's and 80's, if they have marketable, up-to-date skills and are able to work. But factors such as obsolescent skills, physical problems, lack of geographic mobility, or the individual's own attitudes, may combine with age to produce an "older worker syndrome" of employment problems. 2. Many employers have a high regard for their older employees because of their demonstrated productivity and dependability, but consider older job applicants as undesirable risks. The employed older worker has some advantage in retaining his job because of his experience and seniority, but if he loses his job he is apt to remain unemployed longer than a young person, and may find it more difficult to get another job. 3. Automation and increasing productivity have tended to keep the number of available jobs in California below the needs of a constantly growing labor force. Labor cut-backs in defense industries have left thousands of production workers jobless, including many aged 45 and over whose skills are no longer usable in the labor market. 4. An older person's attachment to the labor market may vary with his financial needs or his interests. The employment interviewer may find it hard to distinguish between applicants near retirement age who need work and those seeking an activity, paid or unpaid, which will give a sense of purpose to their lives. 5. Local office staff find that most employers are aware of the age discrimination provisions in the California Unemployment Insurance Code, Sections 2070-2078. Few discriminatory orders with age limits are being received by local offices. -12- PAGENO="0235" AGE DISCRIMINATION IN EMPLOYMENT 229 However, interviewers feel there is a tendency to evade the provisions of the law at the point of hire. Some screening requirements, such as a stringent physical examination, the possession of a high school diploma, or recent college training, may limit the older worker' s job prospects. 6. Local employment offices report there is no general tendency to offer older workers wages lower than the prevailing rate for the occupation. However, some low paid occupations, such as watchman and janitor, are often considered by employers and interviewers to be "older worker jobstt. Some domestic employers occasionally try to place orders for household workers at such unrealistic wage rates as 5O~ an hour, or to offer a rrgood home with board to a pensionerrr. Employment Service policy permits cancellation of job orders when wages or conditions of employment are below prevail- ing standards in the community, and this policy is explained to employers who attempt to place such job orders. 7. The cost of retirement and group insurance plans is cited by employment interviewers as one of the most frequent objec- tions on the part of employers to hiring older workers. Employment Service staff feel that these costs are not fully understood and that factual material on such costs, as well as on workmen's compensation experience with older workers, is greatly needed. 8. Job placement services provided to older workers by the Department of Employment are generally in the "mainstream" of office operations. The individual may be referred to the Older Worker Specialist in the local office when he appears to have an employment problem connected with age. Although each Employment Service office has at least one individual, designated as an Older Worker Specialist, the current budget for those services is limited. Among 32 local offices visited during the field survey, full-time Specialists were active in only 5 local offices; part-time Specialists were spending from about 3 to 10 hours per week in older worker services outside the "mainstream". 9. The Older Worker Specialists' standard duty statement would provide a well-rounded program of activities to improve employment opportunities and strengthen individual services for older workers. However, many of the Specialists are performing only a portion of the job because of their various other assignments and because of budgetary limitations. 10. Employment counseling is one of the most important services provided to older workers facing the problem of changing occupations or adjusting to different conditions in the kinds of work they know best. However, the volume of counseling interviews with older workers dropped in 1964, even though a recent study shows a large unmet need. The Employment Service is in the process of upgrading the standards for its -13- PAGENO="0236" 230 AGE DISCRIMINATION IN EMPLOYMENT employment counselors and is endeavoring to improve both the quality and volume of this service. 11. Although there are many organizations of older persons throughout the State, few have active programs to improve employment opportunities for older workers. Three local offices have established community advisory committees who are concerned with the problem, but similar groups in other communities have become inactive. Community sup- port is needed to explore community needs for services, develop new jobs, extend such successful older worker programs as Family Aides, Senior Repairmen, and support job clinics and pre-retirement planning for older workers. 12. Hiring requirements for some jobs include physical and educational qualifications in excess of the actual job per- formance requirements. A job analysis approach to establish the true performance requirements of such jobs might permit minor modifications which would open them to older workers or the handicapped. This approach might provide answers to such questions as: (1) Are we maintaining people on welfare who could be self-supporting if physical demands for their occupations were modified? (2) Are workers being retrained needlessly, when with small changes in job requirements they could continue to perform their present jobs or related jobs in the same plant or industry where further training is not necessary? 13. Many retirees and other older workers are in need of part- time employment to supplement their other sources of income. Since self-employment is desired by some older workers, there is a need for better channels of information to acquaint them with the requirements for setting up an independent enterprise. 14. Vocational Education a. Older workers are sometimes reluctant to enter training, particularly if it is lengthy, when they are not sure of employment at its termination. b. Training allowances are sometimes inadequate to main- tain a family while the head is undergoing training. c. More flexibility is needed in developing suitable voca- tional training for adults, particularly as to length of the course and the kinds of teaching methods used. By taking advantage of the older person's experience and abilities, the length and content of some vocational training courses could be reduced. -14- PAGENO="0237" AGE DISCRIMINATION IN EMPLOYMENT 231 D. COMMUNITY WORKSHOPS ON EMPLOYMENT OF OLDER WORKERS A series of community workshops on employment of older workers were held during the spring, of 1964, in Bakersfield, Eureka, Long Beach, Van Nuys, Oakland, Pasadena, Sacramento, and San Diego, under the cosponsorship of the Department of Employment, the Citizens' Advisory Committee on Aging, the Institutes of Industrial Relations of the University of California, and a wide variety of community groups. These included local committees on employment of the older worker, local business, industrial, labor and community leaders, and other groups with either general or specific interests in the employment needs of older workers. Although general responsibility for the organization and planning of the workshops rested with the Department, the Committee, and the Institute, each community was encouraged to assume the primary responsibility for the specific planning of the workshop program and content. Also, similar encouragement was given to develop appropriate community organizations as local cosponsors for each workshop. Both emphases were deemed essential to develop workshop content that was appropriate to their particular experiences and problems. The role of the Department, the Committee, and the Institute was to provide general guidelines and information about the scope of the entire study, to provide background materials and data for use by workshop participants, and to provide whatever technical assistance that might be requested by the local cosponsoring group or groups. Several preliminary planning meetings were held with these sponsoring groups and, during these meetings, it was made clear that the workshops should encourage wide discussion of community opinions and ideas. There was no effort made on the part of the agencies authorized to conduct the study to super- impose any specific problems or proposals that should be evalu- ated by community representatives. As a result, each of the workshops had somewhat different content and sponsorship. For example, in the Bakersfield Workshop, considerable attention was given to the seasonal character of agricultural employment and physical requirements of employment in the petroleum industry and their implications for employment of the mature worker. The Eureka Workshop focused attention on recent change in that area's lumber industry and related this trend to the need for retraining and a more diversified economic basis to provide necessary employment opportunities. As an older community by comparison with most in Southern California, as well as one having a large older and retired population, the Pasadena Workshop included discussion of the actual cost factors of hiring older workers experienced by local employers over the years as well as possible part-time employment opportunities for older men and women. The Van Nuys Workshop was geared to the examination of possible broad action by labor, management, and government to insure improved short- and long-range steps to -15- PAGENO="0238" 232 AGE DISCRIMINATION IN EMPLOYMENT maintain and create new jobs for older workers, possibly reflect- ing the concern in that area for sounder planning in relation to industries affected by termination and decline of defense con- tracts. Because their sponsorship involved key community organ- izations concerned with commercial and industrial development, the Long Beach, Oakland, Sacramento, and San Diego Workshops centered much of their content on such subjects as general meas- ures towards more full employment, labor and management atti- tudes towards the older worker, public insurance and private pensions costs, retraining, and the need for better preparation, transitions, and provisions for satisfactory living and activities in retirement. -16- PAGENO="0239" AGE DISCRIMINATION IN EMPLOYMENT 233 PART~ THREE REPORTS OF PROJECTS -17- PAGENO="0240" 234 AGE DISCRIMINATION IN EMPLOYMENT PART THREE CHAPTER ONE EMPLOYMENT PATTERNS A. HISTORICAL TRENDS 1. In The United States As a young and rapidly growing nation, the United States throughout most of its history has had a young population. In 1900: More than half the United States population was under age 25.1/ * Eight out of every ten individuals were under age 45. * One out of 25 persons was aged 65 or older. Between 1900 and 1950, the population of the United States almost doubled, with most of the gain occurring in the age group of 45 years and over.~/ The group aged 45 - 64 tripled in size, and the group aged 65 or more quadrupled. The 1960 Census revealed that: * About 1. 1 million persons a year had reached their 65th birthday during the decade of the fifties. * More than 427 ,000 persons per year were added to the number aged 65 and over. * More than 170,000 of this number were aged 75 and over. At the mid-point of the century, the nation's population was growing fastest at both the older and younger ends of the age scale. Between 1950 and 1960, the under 25 age group increased by about 26.9 percent, as a sequel to the sharp rise in the birth rate which began after World War II. The 65 and over group grew by about 34.7 percent. The 45-64 group increased about 17. 4 percent, at a slightly lower rate than the population as a whole which grew by 18. 5 percent during the ten-year interval. The group aged 25-44 grew in numbers by only 3.3 percent, reflecting the low birth rate of the depression and the war years. Women accounted for 53 percent of the population increase during the decade, with the greatest proportion of growth in the older age brackets. By 1960, there were 103 women per 100 men in the total population, but in the 65-plus group they outnumbered men by 121 to 100. These gains reflected -18- PAGENO="0241" AGE DISCRIMINATION IN EMPLOYMENT 235 the greater life expectancy of women, which had iengthened by 23.0 years during the first half of the century compared with an increase of 19.4 years for men.~~/ 2. In California The upopulation explosion' which came to California with the gold rush swelled the number of inhabit~nts 310 percent in the ten years between 1850 and l860.~j/ California has not always been the fastest growing state, but her population has grown at least three times as fast as the total population of the United States in most decades since 1900.~/ From that year to 1950, the California population increased six- fold, while the nation's population did not quite double. In the decade from 1950 to 1960 the older age groups stayed at approximately the same proportion of the total California population while the proportion at younger age levels mounted. Women remained at about 50 percent of the total popu- lation, and increased in number by about 49 percent. Unlike the national pattern,~./ the greatest rate of increase in the number of women (70. 6 percent) was in the under 25 group. ~./ Women in the 65-plus group gained in numbers by over 55 percent, attaining a ratio to men of 127 to 100. Although the age group 2 5-44 grew by about 29 percent in numbers, its proportion to the State's total popula- tion dropped from 32.0 percent to .27. 8 percent. Similarly, the age group 45-64 gained 37 percent in size, but dropped from 21. 6 to 20.0 percent of the State's population. B. EMPLOYMENT AND UNEMPLOYMENT AMONG OLDER WORKERS 1. United States Persistent unemployment continues to be one of the nation' s most vexing problems. In spite of large increases in output and employment during recent years, an average of 4.2 mil- lion persons were unemployed throughout the nation in l963.~./ During that year, the nation's gross national product approached 600 billion dollars9/ and the civilian labor force went over the 72 million mark. 10/ Nevertheless, 5.7 percent of the civilian labor force was unemployed. Another 3. 6 per- cent of the labor force was employed part time, although desiring full-time work. About a quarter of the unemployed were out of work for 15 weeks or longer during 1963, and more than half a million -19- 85-376 0-67-16 PAGENO="0242" 236 AGE DISCRIMINATION IN EMPLOYMENT individuals were out of work for six months or more. Many of these persons had exhausted their financial resources including unemployment insurance. Men aged 45 or older had an average unemployed rate throughout the nation of about 4.0 percent in 1963, compared with about 3.9 percent for those in the age group 2 5-44. In recent years, a fractionally higher rate for older workers has prevailed. Older workers are often out of work longer when they become unemployed. In 1963, almost half of unemployed men aged 65 and over throughout the nation who were looking for work had been unemployed for 15 weeks or longer, and about two out of five in the age group 45-64 were in a similar situa- tion.U/ The duration of unemployment for workers between 45 and 64 increased with age. Studies of shutdowns of several large plants during 1963 showed that the proportion of displaced workers who remained unemployed for more than six months was almost 50 percent higher for those aged 45 and over than for younger workers. Between the censuses of April 1950 and April 1960, unemploy- ment rates rose for men and women in all age groups, with the highest rates reserved for the youngest age category: Table 1 Uneraployeent Rates~! by Age and Sex United States, April 1950 and April 1960 A ge Total 1960 l9~ Female 1960 1950 Total 114. years and over .... 5.1 L 9 5 .l~ 1~.T Under 25 8.7 8.2 8.0 6.9 25-1~ Lii. 1i..0 5.3 li.~-6Ii. Ii..t. li..2 L2 3.7 65 and over 5.2 Ii..7 1414. 3.6 ~/ Per 100 persons in civilian labor force. Not seasonally adjusted. Source: U.S. Census of Population. 1950, PC1. Table 118. 1960, PC(l) lD. Table 19t.. In the subsequent three-year period, the average annual rate fluctuated from 6.7 percent to 5. 6 percent, with rates for women ranging from 7.2 percent to 6.2 percent.i~/ Highest rates were experienced by the group under age 25, of whom 11.8 percent were unemployed on the average in 1963. For both men and women aged 65 and over, however, the average rate in 1963 dropped below the 1950 average to a recent low -20- PAGENO="0243" AGE DISCRIMINATION IN EMPLOYMENT 237 of 4. 5 percent for men and 3.2 percent for women. It may be that these low rates for the older group relate to the accelerating dropout of males from the labor force after age 65 as more individuals retire. Unemployment rates for women reveal less about their true employment situation than do the rates for men. Although. the rates for women tend to decrease with age, the extent of their attachment to the labor market is uncertain, as many older women apparently leave the labor market as soon as they become unemployed. Table 2 shows unemployment trends nationally from 1961 to 1963: Table 2 Annual Average Unemployment Rates aJ by Age and Sex United States, 1961-1963 Age Total * Female 1963 1962 1961 1963 1962 1961 Total, lli- years and over 5.7 5.6 6.7 6.5 6.2 7.2 Under 25 .... 25~l~ 11.9 1~ 11.0 L6 13.7 5.7 12.1 5.9 11.1 5.7 12.2 6.8 * 3.9 l~.l 5.1 LO 3.9 65 and over . 5.0 3.2 14.1 3.9 Men whose education has been limited have the highest rates of unemployment, particularly those aged 55 and older whose forma,l schooling stopped short of a high school diploma.i~! A study in March 1962, showed that only one- third of male workers aged 55-64 had finished high school and about one-fourth had not completed grammar school. The unemployment rate for those with four years of college was 2. 5 percent, but for those with less than five years of school the rate soared to 12. 4 percent. Table 3 illustrates clearly the relationship between education and joblessness. aJ Per 100 persons in civilian labor force. Source: Employment and Earnings, Feb. 196L U.S. Dept. of Labor, Bureau of Labor Statistics. Tables A-2 and A-il. -21- PAGENO="0244" 238 AGE DISCRIMINATION IN EMPLOYMENT Table 3 Unemployment Rates and Years of School Completed Males 35 to li~I~ and 55 to 6l~ Years Old United States, March 1962 Year of school completed Unemployment rate of males 35 to ~4 55 to 614 years old years old Total L7 5.3 Elementary schools: Less than 5 years(a) 9.0 l2.]~ 5to7years 9.0 6.1 8 years 7.1~ 5.6 High school: 1 to 3 years 6.6 l~.i 1~years 3.0 3.l~ College: 1 to 3 years 3.3 3.1 1~ years or more .9 2.5 (a) Includes persons with no school years completed. Note: Detail may not add to totals because of rounding. Source: Manpower Report of the President, March l96~. U.S. Dept. of t~bor, Washington, D.C. Page 135. 2. California In spite of a growing labor force and rising employment, the rate of unemployment in California has remained at a level above the national average during recent years . Ii! At the time of the 1950 Census, the number of unemployed Californians was 339, 600 or 8.0 percent of the civilian l~bor force, while the national unemployment rate was 4.9. .L~.i By April 1960, unemployment had increa~ed to more than 373,900 out of the 6. 1 million labor force.i~.1 The April 1960 rate of 6. 1 percent of the labor force was above the nationwide rate of 5. 1 percent. Although conditions improved in 1962 and 1963, unemployment in California hovered around 6.0 percent during both years and well into 1964 as against a na)ional rate of about 5. 6 percent during the same period.IZ! Although 187,000 new jobs were developed in California during 1963, the labor force grew by 209,000, adding 22,000 to the number of unemployed, which averaged 411,000 for the year. The chart below shows seasonally adjusted unemployment rates for California from 1954 through 1964. The long-term -22- PAGENO="0245" AGE DISCRIMINATION IN EMPLOYMENT 239 upward trend in unemployment is marked by some dips as economic conditions improved in 1956, 1959, and 1962, but the "stepladder' rise in unemployment rates from one recov- ery period to the next is apparent. During each period of recovery, the unemployment rate has remained at a higher level than in the pre~'ious one. Table 4 Unemployment rates at the 1950 Census date reflect heavy unemployment during the early months ofthe year, before the mid-year acceleration in defense spending which came on the heels of the Korean crisis. As in the rest of the nation, unemployment was highest among the youngest and oldest groups of workers. In 1960 at time of Census taking, one in ten was unemployed among young people under 25, and more than seven percent of those aged 65 or more were jobless.~~/ The aged group, however, was relatively small in numbers. Of California's unemployed in 1960, about one-fourth were under age 25, 36 percent were aged 45 or older, and men and women aged 65 or older comprised 5 percent of the total unemployed. In other words, April 1960 found some 94,000 California youth and about 17,600 aged out of work. Unemployment rates by age groups for California in April 1950 and April 1960 are shown in the table below. 1954 . 1964 Source: Employment and Unemployment in California, December 1964. California Departments of Industrial Relations and Employment. -23- PAGENO="0246" 240 AGE DISCRIMINATION IN EMPLOYMENT Table 5 Unemployment RatesaJ by Age and Sex California, April 1950 and April 1960 Age * Total 1960 1950 Female 1960 1950 Total, ]A years and over 6.1 8.0 6.6 8.1. Under 25 10.0 13.3 9.1~ 12.6 25~1iJi~ 5.0 6.5 6.3 7.7 1~5-61~ 5.7 8.0 5.6 7.2 6~ and over 7.2 8.3 5.1~ 6.0 ~/ Per 100 persons in civilian labor force. Not seasonally adjusted. Source: U.S. Census of Popu1ation~, Calif., 1950, P-C5. Table 66. 1960, PC(1)6D. Table 115. Table 6 compares the proportion of unemployed aged 45 and over in the national and in the California labor force for April 1950 and April 1960, and the size of this group in rela- tion to the total labor force. During the decade, the older work force expanded proportionately as well as in absolute numbers, with women chalking up a substantial gain. In both years, California showed a higher rate of unemployment than the nation for the older worker group. One-fourth of all unemployed Californians in 1960 were men aged 45 or over, a slight drop from ten years earlier, while the proportion of unemployed older women rose during the decade from 8.4 to 11.4 percent. -24- PAGENO="0247" AGE DISCRIMINATION IN EMPLOYMENT Table ~ 241 Employment Status of Persons Aged 2~5 and Over United States and California, April 1950 and April 1960 (Thousands) 1950 1960 Total ]45 and Over Total Female Total ~5 and Over Total Female Civilian labor force United States ... 58,61~6 20,512 l~,9l2 68,ll#i~ 26,589 8,658 California li.,235 l,1~92 1~O1~ 6,135 2,296 768 Unemployed United States ... California 2,858 3l~0 880 183 120 29 3,505 371~ 1,188 362 131i. 1~3 Unemployment rate~/ United States ... 1~.3 3.7 L5 L2 California 8.0 7.1 5.8 5.6 aJ Unemployed persons aged 1~5 and over as a percent of persons aged ~ and over in the civilian labor force. Not seasonally adjusted. Source: U.S. Census of Population U.S., 1950, P-Cl. Table 118 and 1960, PC(l)lD. Table l9L Calif. 1950, P-CS. Table 66 and 1960, PC(l)6D. Table 115. Table 7 shows the percentage of workers employment covered by provisions of the Unemployment Insurance Code; by age group in California -25- PAGENO="0248" 242 AGE DISCRIMINATION IN EMPLOYMENT Table 7 Percentage Distribution of California Workers In Insured Employment, By Age, 1960-1962 (Subject to the Unemployment Insurance Provisions of the CodeJ Age All workers with credits during the wage year 1960 1961 1962(a) Total 100.0 100.0 100.0 Under 25 25~31~ 35_1~i~ 1~5_514. 55-6l~ 65 and over Age unknown 20.6 21.1 23.2 22.9 23.1 23.0 17.7 17.8 9.3 9.5 2.7 2.6 3.1k 3.1 22.1 22.9 23.1 17.8 9.6 3.0 1.5 (a) A change in the method of obtaining age, race, and sex data by the Social Security Administration resulted in a reduction in the age, race, and sex unknown category between 1961 and 1962. Source: California Department of Employment. Report 36I~ #18 and 19. Table 1. Data for 1962 obtained from tabulation. The percentage of the unemployed who filed claims for unem- ployment insurance during the years 1960-63, is shown in Table 8. Those aged 45 and over constituted a higher pro- portion of the insured unemployed than of insured employment. For instance, in 1962, workers aged 55-64 constituted 9.6 percent of all those in insured employment, but accounted for 14.7 percent of the number who filed claims. Those 65 and over were only 3.0 percent of the insured group, but 5.2 percent of all claimants. -26- PAGENO="0249" AGE DISCRIMINATION IN EMPLOYMENT Table 8 Annual Average Percent Distribution of the Insured Unemployed by Age California, 1960-1963 243 Age Percent 1960 1961 1962 l96~ Total, 114. and over 100.0 100.0 100.0 100.0 Under 25 13.1 l14..2 13.6 15.9 25-314. 22.6 22.5 21.6 21.14. 35-'a~ 214..5 23.6 23.14. 23.6 )4.5_514. 21.7 21.1 21.5 20.0 55-6l~ 13.5 13.8 ll~.7 ]A.5 6~ and over 14..6 14..8 5.2 l~.6 Source: ES-203: Characteristics of the Insured Unemployed. January 1960 - December 1963. Department of Employment At the same time older workers who filed unemployment insurance claims tended to remain unemployed longer. Dur- ing 1963, 1.8. 8 percent of claimants aged 45 and over experi- enced 15 or more weeks of unemployment, compared with 17. 5 percent of those under 45. This disparity prevailed~ during the preceding three years as well. A study of unemployment insurance claimants who filed ini- tially in 1960 shows that 30.4 percent of the claimants aged 45-64 exhausted their benefit rights as against 27.4 percent of all claimants establishing benefit rights in that year (Table 9). -27- PAGENO="0250" 244 AGE DISCRIMINATION IN EMPLOYMENT Table 9 California Unemployeent Insurance Program Number of Claimants, Average Number of Weeks Compensated In Ber~eflt Year And Percent Who Exhausted!! All Benefit Rights Benefit Years Established 1960 Total claimants Average number of weeks compensated in benefit year Percent of claimants who exhausted!! all benefit rights Total 856,663 ]2.1 27.1~ Under 25 ... 119,790 l0.1~ 21.2 25~14i~ 14.5 -61~ 65 and older ]403,352 262,138 26,677 11.9 13.0 18.2 26.6 30.14. 57.5 Age unknown 14.25702 10.1 16.8 A claimant who drew all of his benefits except a fraction of his weekly benefit amount is included as an exhaust claimant. Source: Department of Employment, Report 14.16 #5. Unemployment Insurance Claimants Who Established Benefit Years in 1960. While the older worker group tended to file claims out of proportion to its numbers in the insured work force, those who were employed showed less mobility and stronger labor market attachment than other age groups. The insured wages for a group of 2,421 workers who had wages reported both in 1953 and 1962 were recorded over the ten-year period. Each worker was identified by an industry code for each year in which he had earnings. Table 10 indicates the extent of industry attachment for the major age groupings of workers in this study: -28- PAGENO="0251" AGE DISCRIMINATION IN EMPLOYMENT Table 10 245 Proportion of Insured Workers in One Industry During the Ten-Year Period, 1953-62, by Age For a Sample With California Earnings in Both 1953 and 1962 . Age in 1953 ~ Percent T t 1 0 a In the same industry throughout the period Total 100.0 27.3 25~.J4f 100 0 27 2 100.0 37.3 All other 100.0 19.0 It is fairly evident that a stronger tendency existed for the workers in the 45-64 age group to remain in the same indus- try than for insured workers as a whole or for younger workers. A less pronounced but nevertheless distinct tend- ency for these workers to maintain their employment status is shown in Table 11. Two-thirds of the younger worker group had insured earnings in more than 35 quarters of the ten-year period, whereas over 70 percent of the 45-64 year- old group experienced this work attachment. Table 11 Proportion of Insured Workers With More Than 35 Quarters of California Earnings For a Sample With California Earnings in Both 1953 and 1962 Percent Total 100.0 61.3 25.41k 100.0 66.~ I~5~6l~ 100.0 70.5 All other 100.0 liO.9 Source: Department of Employment Tabulation of Continuity Study Cards, DE l~231~. Age In 1953 Total 36-1~0 quarters earnings Source: Department of Employment Tabulation of Continuity Study Cards, DE 1~23l~. -29- PAGENO="0252" 246 AGE DISCRIMINATION IN EMPLOYMENT C. OUTLOOK FOR EMPLOYMENT OF OLDER WORKERS About 58 percent of the population aged 14 and over are in the nation's total labor force. Between 1959 and 1962 the labor force indreased by an average of 912,000 persons annually to 75 million.i~./ In 1963, the annual increase stepped up to 1 million persons, partly because of improving economic conditions and partly because the first wave of a postwar generation of tidal proportions reached working age. As more and more of these younger workers mature, the total labor force will grow at a,n accelerating pace to reach a total of 93 million in 197512.' A number of important changes are expected to occur in the nation's total labor force by 1975: Between 1960 and 1975, it is expected to grow from about 73 million to more than 93 million--a 27 percent increase. The most striking gains will be among younger workers of both sexes and women aged 45 to 64. Close to 8 million young people under age 25 will enter the labor market between 1960 and 1975, and almost 40 percent of these will be women. By 1975, more than 32 million women will be in the labor force--a gain of 36 percent over. 1960. The group of women workers aged 45 to 64 will increase by 38 percent during the 15 years; half of all American women in this age range will be in the 1975 labor market. Women will comprise more than a third of the labor force, a somewhat higher proportion than now. Almost 70 percent of the population aged 25 to 64 will be in the labor force. The number of male workers at these ages will increase less than the overall growth of the work force--partly because of lower birth rates in the 19 30's and partly because of the increasing number of retirements before age 64. The sharp dropout from the work force by men at-age 65 will tend to accelerate. About one out of four men aged 65 or over will remain in the work force by 1975, and the propor- tion of aged women will continue to be about one in ten. While California population trends do not indicate an increase in the proportion of Californians aged 45 and over, their numbers will increase substantially by 1975. Whereas the proportion of those persons aged 65 and over to total population will decrease fractionally, best estimates indicate a numerical growth of better than 700,000 between 1960 and 1975, or an increase of 54 per- cent. (Table 12) -30- PAGENO="0253" AGE DISCRIMINATION IN EMPLOYMENT 247 Table 12 California Civilian Population by Age 1960 and 1975 (In thousands) . . ~ Total ci popula vilian tion Percent change ~ 1960-1975 1960 1975 Total l5,1~l7 2l~,581~ Source: California PQpulation, 1963. Dept. of Finance, Table 8. Women are expected to maintain the present proportion of about 50 percent of the total State population. At 65-plus, their ratio to men will be 137 to 100 in 1975. In the oldest age group, the 80-plus population, there will be 177 women for every 100 men. Table 13 Source: California Populatior~, 1963. Department of Finance, Table 8. At the time that lengthening life expectancy is enlarging the aging component of California population, two other factors are reducing the working life of the labor force. They are the tend- ency to remain in school longer and the tendency to retire early because of liberalized public and private pension plans. Both Under 25 25-l~ 65 and over 6,673 l~,289 3,080 1,375 11, i1~8 6,1422 1~,903 2,111 59.5 67.]. 1~9 ~7 59.2 53.5 California Female Civilian Population By Age 1960 and 1975 (In thousands) Age Civilian Population Percent change 1960-1975 Female 1960 Female 1975 Total 7,876 12,538 59.2 Under 25 25-144 6~ and over 3,31~8 2,203 1,557 768 5,527 3,253 2,536 1,222 65.1 1~7.7 62.9 59.1 -31- PAGENO="0254" 248 AGE* DISCRIMINATION IN EMPLOYMENT influences are expected to continue and intensify. The tendency to remain longer in school is shown by the following distribution; the younger age groups have clearly remained longer than those who were of school age 40 and 50 years ago. Table 11~ Median Years of School Completed by Persons i1~ and Over California, 1960 Age Median school years completed Total i]~ years and over . 11.9 Male 11.7 25-29 years 50~5l~ years 65-69 years 12.5 11.0 8.7 Female 12.0 25-29 years 5O~5I~ years 65-69 years 12 *1~ 11.7 9.0 Source: U.S. Census of Population. California, 1960, PC(l)6D, Table 103. Almost half of California's population 14 years of age and older in 1960 had completed high school.~JJ Less than half of the group aged 65-69 in 1960 had completed one year of high school, whereas those who will be aged 65-69 in 1975 (i.e., were 50-54 in 1960) had averaged slightly more than 11 years of schooling. This suggests a delay in entering the full-time labor market of approximately two years on the part of the latter group as against their elders. The other factor tending to shorten the work life of individuals is the progressive liberalizing of pension provisions. A study of retirement patterns among aged men in 1963, made by the Social Security Adm~istration, revealed that voluntary retire- ments are increasing.~! Poor health and compulsory retirement at a fixed age continue to cause most retirements as shown in Table 15. -32- PAGENO="0255" AGE DISCRIMINATION IN EMPLOYMENT 249 Table Reasons for Retirement Of OASDI Beneficiary Men~I Aged 65 and Over Reason for Retirement 1951 1963 Total 100% 100% Own Decision Poor Health Other ReasonsbJ ~l 13 61 35 26 Employer's Decision 1~6 39 ~J For 1951 survey, includes only wage and salary workers who became beneficiaries within the preceding 5 years and were full-time beneficiaries; for 1963 survey, includes only those who had stopped working at full-time jobs within the preceding five years and were full-year beneficiaries. bJ Includes a few who quit job to find other work. Source: Social Security Bulletin, Aug. l961~, U.S. Dept. of Health, Education, and Welfare, Table 5. Methodology quoted in July, l961~ issue of Social Security Bulletin, pp. 26-28. In 1961, OASDI benefits were made available (although at actuar- ially reduced rates) to men retiring at aged 62-64. Since then, male retirements before age 65 have increased rapidly. In January 1964, some half-million men were beneficiaries under this provision, and another 126,000 aged 62-64 were receiving OASDI disability benefits. Male beneficiaries aged 62-64 made up about 28 percent of the total population in this age group. These factors are considered in the forecasts of attachment to the California labor force in years to come. The impact of the length- ened period of education is taken into account in the forecast of a decline of civilian labor force participation rates for men aged 20-2 4 by 2 percent to 84. 6 percent by 1975. On the other hand the effect of broadening pension coverage is reflected by the declining labor market attachment of men 65 and over, which is expected to change from 28 percent of that age group in 1960 to an estimated 22.4 percent by 1975. Despite the historical tendency for participation of women in the labor force to increase, a fractional decline in rate is also projected for the 65 and over group by 1975. -33- PAGENO="0256" 250 AGE DISCRIMINATION IN EMPLOYMENT Table 16 California Civilian Labor FOrce and Participation Rates By Age and Sex, 1960 and 1975 (In thousands) Civilian Partici- Civilian Partici- Age Group 1&)01 pation labor pation force rate force rate 1960 1960 1975 1975 Total, 111. years & over .. 6,190 56.3% 10,101 55.9% Under 25 960 43.8 2,099 45.3 20-24 566 63.5 1,273 63.9 25~144 2,917 67.6 4,39]. 68.14 1#5-64 2,069 66.4 3,295 67.2 6~ and over 2414 17.8 316 15.0 Male, 14 years & over ... 4,135 78.3% 6,660 76.3% Under 25 596 56.8 1,339 58.1 20-24 352 86.5 821 84.6 25-144 2,000 95.4 3,021 95.3 1#5..64 1,371 89.1 2,101 88.8 65 and over 168 28.0 199 22.1~ Female, 114 years & over . 2,055 36.0% 3,1141 36.8% Under 25 3614 31.9 760 32.6 20-24 2114 44.1 452 1414.2 25.44 917 41.3 1,370 42.1 145-64 698 144.2 1,194 47.1 65 and over 76 9.9 117 9.6 Source: Unpublished estimates~ D~partments of Industrial Relations an~~ Employment. Notwithstanding the proportionate decline of aging workers in the labor force, in 1975 the number of aging persons in the California labor force is expected to increase by 30 percent over the 1960 figure. If the same proportion of the aged labor force is employed in that year as in 1960 there will be 293,000 Californians over 65 at work in 1975. Table 17 indicates California occupations which grew numerically between 1950 and 1960 and in which more than half the men were 45 years or older in 1960. These occupations accounted for over five- and one-half percent of the men employed in California in 1960. Most of the occupations shown have reasonable to good growth prospects in the remainder of this decade. -34- PAGENO="0257" AGE DISCRIMINATION IN EMPLOYMENT Table 17 Growing Occupations of Males Median Aged 1i5 and Over California, 1960 Source: U.S * Census of Populati `~ California, 1960, PC(l)6D. Table 123, and 1950, PC5, Table 76. 251 California jobs in which older women outnumbered the younger in 1960 and which showed a numerical increase in the preceding decade are listed in Table 18. Over twelve and one-half percent of California working women in 1960 were employed in these occupations. The prospects for expansion in these occupations varied from excellent in the case of librarians and practical nurses to uncertain in the case of private household workers. In the nation as a whole, private household workers were fewer in 1960 than in 1910 although numbering more in 1960 than in 1950. -35- Occupation ~Median age 1960 Number 1960 Eniploysient - percent change from 1950 Total Employed Men 1~0.l 3,858,815 +liO.l Pharmacists 1~5.8 6,983 +12.5 Officials & Inspectors State, Local Admin 1~5.7 1t~,578 +51.1 Real Estate Agents & Brokers .... 50.8 28,566 +39.0 Millwrights 1~5.7 2,676 +37.0 Painters (Construction) Paperhangers, Glaziers 14.5.1 14.0,736 + 9.14. Barbers 15,322 + 3.5 Janitors, Porters 14.8.1 62,828 +52.5 Cooks, Nonhousehold 14.5.2 26,707 +18.0 Guards & Watchmen 51.7 17,685 +22.5 85-376 0 - 67 - 17 PAGENO="0258" 252 AGE DISCRIMINATION IN EMPLOYMENT Table i8 Growing Occupations of Females Median Aged 145 and Over California, 1960 D. PRESSURES CAUSING PEOPLE PAST RETIREMENT AGE TQ SEEK WORK 1. Deficient Retirement Income The more readily demonstrable incentives for older workers to remain in the labor market past retirement age are of an economic nature. This is quite clearly indicated by the sharp Occupation Total Employed Women Librarians Nonfarm Mgrs. & Officials (Buyers, Credit Mgrs., Bldg. Mgrs., Govt. Officials) Managers, Officials, and Proprietors -self -employed~J. Insurance & Real Estate Agents and Brokers Foremen-Machinery, Textile, Other Nondurable Mfg Private Household Workers Charwomen and Janitors Nonhousehold Cooks Housekeepers & Stewards, exc. Pvt. Household Practical Nurses Number 1960 1,902,618 7,028 21,272 114,117 114,327 6,182 115,965 12,086 22,217 Median age 1960 145.9 148.6 51.3 145.1 147.5 147.5 147.8 Employment percent change from 1950 +65.7 +55.3 +39.0 +70.0 +56.1 +51.2 +71.9 +58.2 +146.6 10,160 50.8 17,935 ~/ Excluding managers in eating and drinking places, and wholesale and retail trade. Source: U.S. Census of Population. California, 1960, PC(1)6D. Table 123, and 1950, PC5. Table 76. -36- PAGENO="0259" AGE DISCRIMINATION IN EMPLOYMENT 253 disparity of income received by those beyond retirement age as against the income of those in younger age brackets. For most of the nation's population, earnings from employ-. ment are the greatest source of income. Out of a personal income figure of $463 billion in 1963, wages and salaries accounted for $312.3 billion or two-thirds of the total, as against $15.3 billion or less ,jhan 3 1/2 percent from old age and survivorship benefits.~! At retirement, the individual finds his income reduced to half or even a third of his accustomed earnings, while he is entering a period when medical and hospital expenses may Increase, and at the same time the purchasing power of his retirement dollars may not keep pace with rising costs for the necessities of life. In 1963 for the nation as a whole, the median income of men aged 25 and over showed this pattern: Table 19 Annual Money Income of Males by Age United States, 1963 Age group Median income all males 19o3 Median income year-round fun-time male workers 25-3l~ $5,~'ro $6,078 35-~i4 6,233 .6,7o1~ ~5-5~ 5,828 6,279 55..61~ I~,901 5,8I~5 6~ and over 1,993 l~,66l Source: "Consumer Income", Current Population Reports~ Sept. 29, 1961~, Series P-60, No. l~3. U.S. Dept. of Commerce, Bureau of the Census, Table 20. The foregoing table illustrates the income of males by age group, and also the relationship between income of men working full time and the male population in general, whether in or out of the labor force. In all cases, men who worked full time the year round had greater income, with the most striking difference in the 65-plus group. The income of aged male full-time workers was 1-1/3 times greater than that for all men aged 65 and over. -37- PAGENO="0260" 254 AGE DISCRIMINATION IN EMPLOYMENT Women did not fare as well as men in terms of income. The disparity between the income of year-round fullS-time workers and the average income for those over 25 is even greater. In 1963, the median income of women nationwide showed the following pattern: Table 20 Annual Money Income of Females by Age United States, 1963 Age group . Median income all females ~ 3 Median income year-round f~.l-tine female workers 25-3I~ $1,856 $3,71#0 2,ll~5 3,701~ 2,311 3,709 55-61k i,'rr1~ 3,6l~5 65 and over 920 2,l~82 Source: "Consumer Incomett, Current Population Rep~~, Sept. 29, 196l~, Series P-60, No. L~3. U.S. Dept. of Commerce, Bureau of the Census. Table 20. In California, whereas half of the men between the ages of 25 and 64 had income in excess of $5,800 a year in 1959, the latest year for which this information is available, half those aged 65 and over received less than $2 ,000. Half of California women in the younger age bracket had incomes in excess of $2 , 400 whereas roughly half of those aged 65 and over depended on an income of $1,200 or less. -38- PAGENO="0261" AGE DISCRIMINATION IN EMPLOYMENT 255 Table 21 Median Income of California Population Aged lI~ and Over 1959 Median income Age Male Female i1~ and over $14~968 $1,798 25-614 5,860 2,1~51 65 and over 1,980 1,199 Source: U.S. Census of PoDulation Calif., 1960, PC(1)6D, Table 13L The purchasing power of Social Security benefits not only lags behind that of income in general but benefits awarded in earlier years lag behind those of the recently retired.. Table 22 shows that between 1940 and 1962 per capita dis- posable personal income rose by 59 percent, the purchasing power of old age benefits for all retired workers, by 56 per- cent, but the purchasing power of old age benefits for those retiring in 1940 rose by only 13 percent. Table 22 Average Monthly Old Age Benefit Under OASDI and Disposable Personal Income United States, 19140, 1950, 1960, and 1962 Monthly Workers All retired per capita who retired workers in disposable Year in 19140 current pay personal (1962 dollars) status income (1962 dollars) (l95l~ dollars) 1962 $55.00 $76.19 $l53.142 1960 ~6.oo 75.140 l1~6.58 1950 50.30 53.30 126.92 19140 . 14.8.70 14.8.70 96.58 Source: Social Security Bulletin Annual Stat. Supp. 1962, U.S. Dept. of Health, Education, and Welfare Table 8. Dept. of Cormuerce Bureau of the Census 1960, P. 305 and 19614, P. 3214. -39- PAGENO="0262" 256 AGE DISCRIMINATION IN EMPLOYMENT The trend of payments under the old~age assistance program has been similar to that for retired workers in current pay status under Social Security over the twenty-two year period. 2. Family and Marital Status In 1960, there were 4.8 million husband-wife families in the.UniteØ States in which the husband was aged 65 or older.~j/ But, almost half the aged, or some 7.7 million persons, were widowed, single, or divorced. The number of aged women in these categories increased 32 percent between `1950 and 1960, while the number of unmarried men gained only 8 percent. Women without a husband constitute about 34 percent of the entire aged population, and only one-fifth of all the aged are married women. In California about 65. 8 percent of the men aged 65 and over, but, only one-third of the women, shared a household with a spouse in 1960. Table 23 summarizes the marital status of the 65-plus California population in 1960: Table 23 Marital Status of California Population Aged 65 and Over 1960 Marital Status Total Male Female Total 100.0% ~3.9% 56.1% Married (spouse present) 1~1.6 28.9 18.7 Single, widowed, divorced, married (spouse absent) 52.1k 15.0 37.1~ Source: U.S. Census of Population Calif., 1960, PC(1)6D. Table 105. The financial position, of the aged individual depends to a large degree on his family status. The following chart shows income trends for U.S. families from 1950 to 1962. Median income for all families almost doubled during the period, rising from about $3,000 to more than $6,000. -40- PAGENO="0263" 257 U . ~. Department ot Health, Education, and Welfa~re, Welfare Administration, Publication No. 6, Washington, D.C., 1964. P. 16. Family income varies by size of family, since it may repre- sent the income of other family members in addition to that of the family head, as well as by type of family group and the sex and age of the family head. Table 25 shows the range of family incomes nationally during 1963 by age and sex of family head. Table 25 Median Income of Families By Selected Characteristics United States, 1963 Source: "Consumer Income", Current Pci~u1ation Reports Sept. 29, l96l~, Series P-6o, No. l~3. U.S. Dept. of Conmierce, Bureau of the Census. AGE DISCRIMINATION IN EMPLOYMENT Table 24 7000 MEDIAN FAMILYINCOME 2000 ~ xsi::x,a NON-WHITE ALL FAMILIES 1000 WHITE 0 * 1 i i * 1950 1955 1960 1962 Source: Converging Social Trends-Emerging Social Problems, type Median Income All families Family head 6~ and over AU families $6,211.9 $3,352 Male head $6,561 -- Married, wife present 6,593 -- Other marital status 5,710 -~ Female head 3,211 -41- PAGENO="0264" 258 AGE DISCRIMINATION IN EMPLOYMENT Families headed by women had the lowest income in 1963, $3,211, as contrasted with the median income of $6,593 for husband-wife families, which was 105 percent greater. Median family income rose to a peak of $7,415 in family groups where the head was aged 45 to 54, and dropped to $3,352 in families headed by a person aged 65 years or over. Lower income of families headed by women results partly from the lower wages paid to women, and also from their lower rate of full-time employment. In 1963, about 26 per- cent of women were full-time year-around workers, as com- pared with about 70 percent of males heading husband-wife families. The presence of young children in the home also affects women's rate of employment, particularly in the ages 2 5-44. A sizable proportion of families headed by women receive most of their income from social insurance or public assistance. Although detailed information on the income of the population aged 65 and over is not yet available for 1963, earlier studies show significant differences between the income of aged couples (defined as one in which the male m~mber is 65 years of age or older), and the unmarried aged.~.I A study of 1962 incomes among the aged group showed the medians to be: $2,875 for aged couples. $1,365 for nonmarried men. $1,015 for nonmarried women. In contrast with the nearly 4 million California families in 1960 there were 1 1/2 million individuals living alone or in a household consisting of unrelated individuals. Almost half of these individuals subsisted in 1959 on an income of $2,000 or less. The aged men in this category for the most part received an annual income of less than $1 , 600, whereas more than half the aged women of comparable status sustained themselves on less than $1,400 a year. Table 26 dramatically illustrates the substandard financial position of this component of the California population. -42- PAGENO="0265" AGE DISCRIMINATION IN EMPLOYMENT Table 26 259 1959 Income of California Families And Unrelated Individuals By Age and Sex of Family Head Family Type Number of Median income families All Families 3,991,509 $6,726 Husband-Wife 65 and over 3,521,358 381,828 7,013 3,681 Other Male Head 102,661 6,118 65 and over 17,857 l~~s8 Female Head 65 and over 367,1~9O 60,995 3,586 1~,l2l Unrelated Individuals l,568,2~55 2,037 Male 837,122 2,397 65 and over 127,018 l,571~ Female 65 and over 731,333 273,578 1,813 1,376 Source: U.S. Census of Population Calif., 1960, PC(l)6D. Table 139. The solitary aged with limited financial resources or minimal coverage under social security or private pension plans pre- sents one of the gravest problems faced by the aging population. 3. Longevity and Health Requirements Not only can the aging person anticipate reduced income, but increasing longevity tends to deplete resources accumulated over the individual s working life. A male child born in 1950 can expect, other things being equal, to live 65.7 years--a gain of almost 20 years ovej what he might have hoped for if he were born in 1900 ~2_6J A girl child would have fared even better, with a life expect- ancy in 1950 of 71.3 years at birth--a gain of 23 years over 1900. The child born in the final quarter of this century may have a life span of close to 80 years, and some predict that in the course of the next 30 or 40 years the average individual's life expectancy may go to 125 years. Women fare better than men in length of life, both in actual- ity and in expectation. At all ages, males have a higher mortality rate than females. Of all live births, boys -43- PAGENO="0266" 260 AGE DISCRIMINATION IN EMPLOYMENT outnumber girls by 105 to 100 .~_L/ But by age 80, there are 1.34 women to each man in the United States ,j~1 and Ca~if9rnia women outnumber the men in the State by 1.48 to 1 ..J/ Elderly widows in California outnumbered widowers at ages 80 and over by more than three to one in 1960--over three women out of every four, as compared to scarcely four men out of 10 who had lost their mates. In California, the age group of 80 and over will number about 410,000 persons in 1975, an increase of 100 percent since 19 60 ..~.2/ Claimants under the California Temporary Disability Insurance Program show a striking disparity in duration of nonoccupational disability as between age groups. Men under 50 years of age who initiated a claim in 1961 averaged less than five weeks of disability, where~s men 50 years and over averaged nearly eight weeks ..ai For younger women the average duration was under seven weeks, compared with almost eight and one-half weeks for women aged 50 years and over. Almost half of disability insurance claims terminated in 1963 represented individuals aged 45 and over. Table 27 below shows the age distribution for those whose claims terminated in 1963. Table 27 California State Plan Disability Insurance Basic Claims Terminated By Age, 1963 Age Percent Total ioo.o Under 22 3.9 22-1i.1~ 14.7.6 14.3.8 65 and over 14..7 Source: Workpapers for Department of Employment Report 1061 #2. Since claims terminating in 1963 were largely based on earn- ings in 1962, claimants in 1963 would have been among the insured wage earners in 1962. The distribution by age of all workers with earnings in employment covered by the Disabil- ity Insurance State Plan during the last quarter of 1962 and of the two preceding years follow: -44- PAGENO="0267" AGE DISCRIMINATION IN EMPLOYMENT 261 Table 28 Workers Covered~! by California State Plan Disability Insurance By Age, 1960-1962 Age Percent 1960 1961 Total 100.0 100.0 100.0 Under 25 18.7 19.0 20.0 25.41,. li.6.2 1~5.9 . 1~6.3 l~5..614. 29.9 30.3 29.8 65 and over 2.8 2.6 2.8 Un1~ictwn 2.1k 2.2 1.1 ~/ With fourth quarter earnings in employment covered by the State Plan. Agricultural coverage excluded from these data. Source: Department of Employment Report 36I~ #18 and 19. Data for 1962 from unpublished tabulation. As shown above,~ workers aged 45-64 represented less than 30 percent of insured employment during 1962, but filed almost 44 percent of the claims. Once retired from the labor market these individuals are completely divested of this financial protection against accidents and illness. The impact of increasing disability with advancing age is aggravated by the fact that the.cost of medical care is advancing more rapidly than the cost of living generally. While the Consumer Price Index increased by 27 percent from 1950 to 1963, Table 29 shows that the component, cost of medical care, rose by. nearly 60 percent in the thirteen-year period, a significant added drain on the limited resources of the aged population. -45- PAGENO="0268" AGE DISCRIMINATION IN EMPLOYMENT Year AU . items Medical care 106.7 117.0 103.1 108.1 73 *1~ E. REFERENCES 1/ Historical Statistics of the United States, Colonial Times to 1957 U.S. Dept. of Commerce, Bureau of the Census Wash., D~C., 1960. Table: Series A 22-23. 2/ Statistical Abstract of the U.S., 1964 U.S. Dept. of Commerce, Bureau of the Census Wash., D.C., 1963. Table 17. 3/ Historical Statistics of the U.S. Op. Cit. Table: Series B 92-100 4/ Ibid. Table: Series A 123-180 s/ California Population, 1963 California Dept. of Finance Sacramento, 1963 Tables 1 and 8 6/ Statistical Abstract of the U.S., 1964 Op. Cit. Table 17 7/ California Population, 1963 Op. Cit. Table 8 ~/ Employment and Earnings, February 1964 U.S. Dept. of Labor, Bureau of Labor Statistics Table A-2 9/ Survey of Current Business, September 1964 U. S. Dept. of Commerce Office of Business Economics, p. 5-1 262 Table 29 U.S * Consumer Price Indexes for All Items and Medical Care 1950, 1960, 1963 (1957-59=100) 1963 1960 1950 83.8 Source: Department of Labor, Monthly Labor Review quoted in Statistical Abstract of the United States, l96~~. U.S. Dept. of Commerce, Bureau of the Census * Table li80. -46- PAGENO="0269" AGE DISCRIMINATION IN EMPLOYMENT 263 10/ Employment and Earnings, February 1964 - Op. Cit. Tables: ~A-16, A-2, and A-14, and pp. Vu-DC 11/ Manpower Report of the President, March 1964 U.S. Dept. of Labor, Wash., D.C. pp. 203 and 136 12/ Employment and Earnings, February 1964 Op. Cit. Tables A-2 and A-16 13/ Manpower Report - Op. Cit. pp. 134-5 14/ a. Civilian Labor Force, Employment, and Unemployment, Calif. and U.S. Tech. Paper Series LF 6.3-1, December 10, 1964 Calif. Dept. of Employment Research and Statistics b. Employment and Earnings, February and September 1964 Op. Cit. Tables: SA-1 and A-2 c. Employment and Unemployment in California January-September 1964 Calif. Departments of Industrial Relations and Employment 15/ U.S. Census of Population - Calif., 1950, P-CS. Table 66 U.S., 1950, PC(l). Table 118 16 / U. S. Census of Population - Calif., 1960, PC( 1 )6D. Table 115 U.S., 1960, PC(l)1D. Table 194 17/ a. Civilian Labor Force, Employment, and Unemployment, - Calif. and U.S. December 10, 1964 b. Employment and Earnings, February & September 1964 c. Employment and Unemployment in California January-September 1964 Op. Cit. 18/ U.S. Census of Population Calif., 1960, PC( 1 )6D. Table 115 19/ Employment and Earnings, February 1964 Op. Cit. Table A-i ~47- PAGENO="0270" 264 AGE DISCRIMINATION IN EMPLOYMENT 20/ a. Monthly Labor Review, October 1962 (Special Labor Force Report No.* 2 4-Interim Rev. Projections of U.S. Labor Force, 1965-75) Bureau of Labor Statistics, Wash., D. C. b. Labor Force, Employment, and Unemployment Statistics 1947-61 U.S. Dept. of Labor, Bureau of Labor Statistics Wash., D.C., October 1962. Table 3 fl/ U.S. Census of Population Calif., 1960, PC( 1 )6D. Table 103 22/ Social Security Bulletin, August 1964 - U.S. Dept. of Health, Education, and Welfare pp. 3-10 23/ U.S. Statistical Abstract, 1964 Op. Cit. Table 444 24/ U.S. Census of Population - U.S., 1960, PC(1)1D Tables 224 and 177 25/ Social Security Bulletin, March 1964 Op. Cit. p. 8 26/ Historical Statistics of the U.S. Op. Cit. Tables: Series B 92-100 and B 143-154 27/ Statistical Abstract of the U.S., 1964. Op. Cit. Table 51 28/ U.S. Census of Population - U.S., 1960, PC(1)1D. Table 156 29/ U.S. Census of Population - Calif., 1960, PC( 1 )6D. Tables 94 and 105 30/ California Population, 1963 Op. Cit. Table 8 31/ California Dept. of Employment - Research and Statistics (Unpublished data, 1964) -48- PAGENO="0271" AGE DISCRIMINATION IN EMPLOYMENT 265 CHAPTER TWO CONSULTANT SURVEY It seems important and feasible to make certain general statements summarizing what our interviews* reveal about the role and problems of the older worker. These statements, offered below, discuss the older worker in two basic and very different roles: first, as an employee; and, second, as a job applicant. A. THE OLDER WORKER AS AN EMPLOYEE The employed older worker is preferred over the younger worker in many instances. Few employers, however, prefer to have either older or younger persons performing all, or nearly all, of the kinds of work necessary in a given company. Rather, pref- erences for the older or younger employee are closely related to the types of work to be done. In the skilled trades, for example, older employees are usually preferred. Employers believe that excellence in these trades continues to grow with experience and that the older experienced person is the most useful employee. On the other hand, younger females are generally preferred for unskilled clerical work. Such work usually requires no particular experience beyond a high school education. The younger female can do the work and she is preferred because she will accept the low beginning salary. When contact with the public is important, as in the selling of expensive or highly technical products and personal items such as lingerie or cosmetics, the older worker is preferred for his knowl- edge, confidence, dependability, maturity and general handling of customers. Similarly, older workers are preferred for dis- cussing loan applications or financial trust services and for servicing appliances. Where the contact with the public concerns such activities as selling products that are routine or impulse items or acting as a receptionist or bank teller, the older worker is at a disadvantage: younger employees are preferred. For management positions, older workers are generally preferred because of their experience. Younger employees are generally preferred for such activities as unskilled production and material handling. Where the younger worker is preferred, such preference seems to be based on the fact that experience and maturity are not essential to the work, and the amount of training required is normally small. Further, in certain activities the physical demands are greater than those in other types of work. Thus, the most positive qual- ities of the older employee, namely, his experience and skill, *Hiring authorities of 36 firms and 15 unions. -49- PAGENO="0272" 266 AGE DISCRIMINATION IN EMPLOYMENT stability and maturity, have little value in these instances while his major lacks, physical strength and stamina, are sometimes necessary to perform the work. Nearly all of the employer respondents related their preferences for older workers in terms of the types of work within their com- panies. This led to the conclusion that employers in general do not hold a conscious bias against older workers. Overt discrim- ination or prejudice could be suspected if a significant number of employers had expressed across-the-board preferences for younger workers. Discrimination could also be suspected if union and company respondents had differed sharply in appraisals of older or younger workers' fitness for given activities. In general, neither of these conditions occurred; employers seemed objective in using older and younger workers in the jobs for which they are best suited. It should be noted, however, that preference for the older employee generally decreases as company size increases. Larger companies recognize the qualities of the older employee but can- not utilize to the same extent as small companies the breadth and depth of experience that the older employee has to offer. Large companies have relatively more junior and unskilled positions to fill and the range of tasks assigned to any one person is likely to be far more specialized than in a smaller organization. For example, the typical accountant in any of the large companies interviewed performs tasks that are related to a single phase of accounting such as accounts payable or payroll. In these com- panies, the younger person is preferred for such a position since the work requires little experience and the position is typically at or near the bottom of the promotion ladder. In contrast, a certain medium-sized business prefers older persons as account- ants. There are only four such positions in the company and each employee must not only be thoroughly familiar with project accounting but must have experience in all phases of accounting that apply to company operations. The company has found that younger employees cannot satisfy these requirements and it will not even consider applicants under 35. In summary, the older employee is frequently preferred. His role generally seems to vary with the kind of work to be done and the size of the company involved. By and large, survey respondents appeared quite genuine and objective in their preferences; there was virtually no evidence of conscious discrimination or prejudice against the older employee. B. THE OLDER WORKER AS AN APPLICANT The status of the older applicant is in sharp contrast to that of the older employee. While older employees actually on the job are accepted and even preferred by employers for many types of work, the same employers are often reluctant to hire older persons for similar work. A number of reasons for this seeming contradiction have been expressed. -50- PAGENO="0273" AGE DISCRIMINATION IN EMPLOYMENT 267 The difficulties faced by older applicants are best understood when they are reviewed in the context of where and why the older employee is preferred. This chart lists the qualities most frequently indicated on the interview checklist by survey respondents as favoring the employed older worker. Also, it compares them with those fac- tors most frequently cited as favoring the younger employee. EMPLOYEE QUALITIES MOST FREQUENTLY IDENTIFIED* POSITiVE FOR THE OLDER EMPLOYEE Number of Qualities Times Identified Stability, dependability 35 Judgment 35 Absenteeism 30 Attitude toward work 29 The necessary skill or training to perform the work available 26 POSITIVE FOR THE YOUNGER EMPLOYEE Number of Qualities Times Identified Physical strength 32 Flexibility; adaptability to working conditions, supervision, etc. 31 Speed in production operation; the ability to keep up; volume and pace 30 Manual dexterity 30 Speed of learning 26 *Source: Checklists completed by union and employer respondents. Not surprisingly, most of the qualities favoring older employees-- stability and dependability, attitude and judgment, experience and skill--connote maturity while the factors favoring younger employees--physical strength, flexibility, speed in production, manual dexterity, and speed of learning--identify the physical attributes of youth and an ability to master change. Unfortunately, the older applicant cannot nece s sarily capitalize on the recognized attributes of the older employed worker. In the first place, and possibly through no fault of his own, he may get little credit for stability: his position is hardly stable while he is unemployed. Further, his judgment, experience and skill have necessarily been gained elsewhere and, under certain circum- stances, will have less or little value for a new employer. The devaluation of these qualities is particularly true where the older applicant is seeking to change his vocation. Finally, his attitude toward work may have been excellent in familiar surroundings but -51- 85-376 0 - 67 - 18 PAGENO="0274" 268 AGE DISCRIMINATION IN EMPLOYMENT is unknown and even suspect in a new environment. Thus, the major strengths of the older worker are compromised by the fact that he is an applicant. Perhaps related to this circumstance is an employer attitude which, though not strongly avowed, was expressed in many inter- views. More than half of the companies surveyed indicated a vague feeling of uncertainty about the qualifications of older applicants. The nature of this suspicion tended to assume one of two forms. On the one hand, several respondents commented that "if they were better people, they would not be looking for work". Other respondents commented, with regard to openings for junior positions that "I probably would not hire the older per- son because a man should be doing better at 45 or above. If he isn't, he probably isn't a very good potential employee". The first of these sentiments is questionable since many older appli- cants seek work through no fault of their own. The second senti- ment seems to voice the recognized fact that a person screening applicants can never be absolutely sure of his choice and must necessarily make intuitive judgments. Again, the condition of being an applicant tends to devalue the positive qualities which are associated with an older person already employed. Overshadowing the general circumstances which make it difficult for many older applicants to exploit their inherent strengths are several specific reasons why employers frequently reject them. Fundamentally, these reasons reflect the fact that an employment decision is an economic judgment. The employer seeks that per son whom he can most effectively utilize on the job, both at present and in the future. In this context, nearly all of these reasons seem to make sense, given the employers' particular situations. The following pages present the various reasons given by com- panies and unions (generally in agreement) as to why older appli- cants are not hired. 1. Experience Where experience is a prerequisite, it is one of the biggest advantages of the older applicant. Without this advantage, however, his value, compared to the younger applicant, is sharply reduced and often eliminated. The following examples were mentioned by several respondents. a. Lack of Specific Experience in a Required Skill Seriously Hurts the Older Applicant In the trades, for example, experience is of paramount importance to employers and the older employee is specifically preferred. Applicants, however, must be qualified in the appropriate skill. Unqualified older applicants cannot obtain jobs in these fields and, more importantly, they cannot become qualified. -52- PAGENO="0275" AGE DISCRIMINATION IN EMPLOYMENT 269 Qualification is proved through possession of a journey- man rating. Where trade unions are involved, a man cannot become a journeyman until he has completed an apprenticeship. Not one of the trade unions interviewed in this survey will admit a man over 40 into an appren- ticeship program and most unions limit such admittance to men under 27 or some lesser age. Thus, a nonjour- neyman over 45 can never become a journeyman. These restrictions are eased somewhat where skilled trade work is exercised under the jurisdiction of an industrial union. In such cases, a man can become a journeyman either through completion of an apprenticeship or by possession of ten years' experience in lieu of apprenticeship. The- oretically, therefore, an older person could become a journeyman. In practice, however, few workers over 45 are ever issued journeyman cards by the industrial unions interviewed because the companies concerned hire young persons for beginning work as a result of seniority pro- visions or promotion-from-within policies. Most employees accumulate the necessary ten years' experi- ence long before they are 45. The inability of the older applicant to match his experi- ence to the needs of a potential employer is a problem also for older applicants for white-collar positions. Several of these companies, for example, utilize accounting conventions and methods unique to their industries. Unless the background of an accounting applicant includes such specialized experience, it has little value for these companies. If he seeks to gain the necessary experience, an older applicant finds himself competing with younger persons for junior positions. In this competition he is at a decided disadvantage. b. Overspecialized Experience Narrows the Older Applicant's Opportunities Sometimes even experienced older skilled tradesmen find themselves at a disadvantage. Such persons are likely to become quite specialized where they have worked for some period in an organized trade. For example, machinists working for a large company may become thoroughly skilled on only one or two types of machine tools. When such specialists seek new jobs with a smaller firm they may find that their experience is of limited value because the smaller organization requires employees who are skilled generalists. This situation is particularly unfortunate since, as previously noted, smaller companies in general offer the older applicant his greatest opportunity for employment. -53- PAGENO="0276" 270 AGE DISCRIMINATION IN EMPLOYMENT 2. Strength and Endurance The requirement for strength, per se, is generally consid- ered to be of declining importance as a consideration of employment. Many respondents indicated that increasing mechanization continues to reduce the need for hard phys- ical labor and not one employer indicated that requirements for strength were increasing. Further, strength is seldom a consideration where female applicants are concerned because State laws restrict the weights which they can lift or carry. Nevertheless, the older worker is at a disadvantage in these areas. a. Heavy Physical Labor Is Performed Better by the Younger Worker There is no question that employers generally prefer younger employees for heavy physical labor and recog- nize strength as a prime asset of the younger employee. Respondents who indicated acceptance of older employees in work of this nature, or even a preference such persons, indicated that experienced older per- sons "know how to handle weight and are in good shape. They don't hurt themselves or the merchandise." Older men who are experienced in hard physical work evidently tend to retain physical vigor longer than their more sed- entary contemporaries. As a result, experienced older applicants are sometimes rated equal to younger appli- cants for work of this nature. The inexperienced older applicant is never favored, however, and he cannot gain the experience and physical condition which might improve his chances. b. Fast Work Pace Is Maintained Better by the Younger Worker Stamina, apart from absolute physical strength and par- ticularly in the sense of maintaining a rapid work pace, continues to be an important employment consideration. In fact, it is perhaps becoming more important as mech- anization increases and processing speeds are raised to maintain or lower unit costs. Speed in production was identified as a major asset of younger workers; conse- quently employers prefer the younger applicant where a fast, high-pressure production pace must be sustained. This is true even where the average ages of the work groups concerned suggest that older persons can main- tain the pace. There are one or two explanations for this seeming contradiction. First, many of the companies interviewed tend to transfer older persons who have "slowed down" to less demanding work. The person, however, often remains within the same functional group and hence the average age for all -54- PAGENO="0277" AGE DISCRIMINATION IN EMPLOYMENT 271 employees does not indicate the ages of persons working `on the line". Second, as with physical strength, there is some evidence that experience enhances and extends the ability to maintain work pace. Older employees who know their jobs are satisfactory while inexperienced older persons cannot keep up. Many employers have found that such persons cannot accustom themselves to a fast work pace. Also, their manual dexterity appears either inferior to that of the inexperienced younger per- son or is more difficult to harness. Perhaps more impor- tant, their mental flexibility seems far lower than that of the younger person. For example, inexperienced older females seem to have particular difficulty in becoming accustomed to a rapid work pace. Employers believe this problem stems from unfamiliarity with sus- tained pace, which in turn creates anxiety over lack of skill and possible embarrassment in the presence of younger associates. 3. Mental Flexibility As indicated in the preceding exhibit, employers value younger employees for their adaptability to working condi- tions and speed of learning. In contrast, employers tend to question the mental flexibility, speed of learning and general outlook of older applicants. These are basic employment considerations, of course, since any newcomer must become productive in his new environment as rapidly as possible. Older newcomers seem frequently to experience difficulty in making the necessary adjustment, according to employer reports. The difficulty becomes apparent in several different ways. a. Older Male Applicants Cannot Be Easily Trained Three of the companies involved in discussing the mental outlook of older persons, noted that older males do not readily assimilate on-the-job training. These companies believe that such problems stem from a general reluctance of older males to assume a trainee status rather than a lack of aptitude. This seems particularly true for men who have occupied supervisory or managerial positions. Respondents did not mention such a pattern among blue- collar workers, and three of the unions noted that a great majority of the members attending periodic skill updating courses were older persons. b. Older Female Applicants Cannot Be Trained for Intricate Work Another condition that causes some employers to ques- tion the mental flexibility of older workers, females in particular, concerns training. The electronics companies and related unions interviewed both state that older -55- PAGENO="0278" 272 AGE DISCRIMINATION IN EMPLOYMENT females inexperienced in work requiring precise manual dexterity cannot be trained for electrical assembly work. One union reported that washout rates among older females taking such training are twice the rates for trainees in general. Two companies, which employ large groups of females an other precise tasks, reported the same training problem. c. Older Clerical Females Seem to Be Problem Employees Employers feel that the mental outlook of older appli- cants is frequently open to question. Fourcompanies, for example, noted that newly hired, older clerical females seem to be problem employees. These persons too frequently tend to remold existing practices around the experience they have gained elsewhere. They also sometimes as sume .unwarranted authority on the strength of age status alone. Whatever the specific problem created, such persons, we are told, generate unrest and require more administrative attention than younger clerical females. d. Older Applicants Do Less Well in Aptitude Tests Older persons generally do not score as well asyounger applicants on pre-employment aptitude tests according to about half of the employers with whom testing was discussed. Some of these employers believe that an applicant's ability to handle these tests is related to the length of time since he last practiced the mental skills required. (Two companies compensate by lowering the minimum acceptable score for older persons.) Most of these employers believe that such difficulties reflect a possible lack of mental flexibility under pressure. Accordingly they have restricted employment opportunities for older applicants in individual cases. e. Older People Resist Change More Than Younger People Four companies reported that older clerical personnel already employed tend to resist changes in office methods and that, based on such experience, they were reluctant to employ older applicants for clerical work. f. Older Applicants Are Too Rigid in Their Expectations By way of illustration, eight companies commented that older applicants frequently specify conditions of employ- ment that the company either cannot satisfy or is unwill- ing to satisfy. By and large, concern over mental flexibility and outlook is focused obviously on older applicants rather than older employees. Older employees do not have to prove -56- PAGENO="0279" AGE DISCRIMINATION IN EMPLOYMENT 273 themselves by taking employment aptitude tests or by learning a new job while trying to adapt to a strange environment. An appreciation of such differences may make it easier to understand how employers can prefer older employees and ,be reluctant to hire older applicants for the same work. 4. Compensation Costs Since employment decisions hinge largely on economic fac- tors, relative compensation costs for older workers are important. a. Very Young Female Clerical Workers Are Cheaper As was mentioned in the first section of this chapter, large employers generally prefer very young females for unskilled clerical work and seek such applicants, par- ticularly for positions where routine contact with the public is frequent. As the amount of skill required increases, a preference for older employees becomes stronger. (It should be noted, by the way, that employ- ers in general seem to consider 30 to 35 as `older" when discussing female clerical workers.) In larger com- panies, preference for the older employee is usually satisfied through promotion from within while small com- panies frequently fill senior clerical positions by hiring older applicants from the outside. It is difficult to say to what extent a preference for young females is due to economics and to what extent it is due to the glamour factor. Several companies stated that young females "brighten the office" and are pre- ferred for that reason. Representatives of one union also stated flatly that employers preferred young women because of attractiveness. Most companies and unions indicated, however, that appearance was a factor pri- marily for receptionists and counter service personnel only and that, in general, cost was the primary consideration. Most large companies and a few others said that they preferred young girls simply "because they're cheaper". Medium-sized and small companies, however, generally approached the problem of cost by favoring female clerical employees and applicants between 25 and 35 or 40. Preference for the latter is based on a stated desire to avoid the consistently high and expensive turnover of the very young female employee groups. Employers who do prefer younger females for clerical work consider that the low salary cost of such employees, coupled with their working flexibility and attractiveness, outweigh the problem of turnover; they often have simplified and -57- PAGENO="0280" 274 AGE DISCRIMINATION IN EMPLOYMENT subdivided clerical routines so as to reduce the training expense that heavy turnover would otherwise generate. b. Higher Salary Demands Militate Against the Older Applicant Wage or salary costs are considerations which contrib- ute directly to an employer's disinclination to hire older persons even for tasks which older employees do well. Excluding certain organized trades, older employees command generally higher salaries in return for the expe- rience and maturity upon which they draw in performing their work. However, a portion of the older employee's experience and maturity is of value only because it has been gained within the company concerned. As a result, experienced older applicants usually do not have as high a value for the employer as their employed contempo- raries, and inexperienced older applicants are at a far greater disadvantage. This devaluation of experience becomes more acute when seniority practices or promotion-from-within policies have the effect of open- ing only the more junior positions to applicants. In such situations, the greater experience of the older applicant has virtually no immediate value for the employer. Since employers are seldom if ever willing to pay for age alone, the salaries offered older applicants are usually lower than their previous earnings. Where the applicant's background has little if any value at the time of hiring, the difference can be great. Applicants are naturally reluctant to accept reduction in earning power and status. Further, although the sentiment was never stated directly, it is believed that offering a low salary to an experienced applicant is sufficiently distasteful to the employer, that he may prefer to avoid the situation altogether by simply not considering the older applicant for work in which the latter' s experience cannot be fully utilized. Both the applicant's reluctance and the employer's desire to avoid a mutually embarrassing situa- tion have the effect of shutting off opportunities for the older applicant. This problem has another aspect. Nearly all companies in the survey indicated that they would feel "uncomfort- able" in hiring an older person at a salary well below his previous earnings level because they would suspect that acceptance of the lower salary pointed to an undetected weakness in the person's background. The only exception to this concern over mating an older applicant to a lower salary occurs when the applicant reveals some other source of income. Retired military -58- PAGENO="0281" AGE DISCRIMINATION IN EMPLOYMENT 275 personnel, for example, need not rely upon their sala- ries for total income and do not present the employer with problems of the nature discussed. c. Higher Costs of Fringe Benefits Are Not a Significant Problem Before this survey was undertaken the opinion was expressed that the added cost of fringe benefits for older age groups would be a significant deterrent to hiring older applicants. This view has not been sub- stantiated. Costs of fringe benefits are generally not a factor working against the older applicant. In fact, many survey respondents seemed unaware that fringe benefit costs might be affected by employee age. Actu- ally the cost of fringe benefits is related to the average age of the work group covered. For most companies interviewed, however, this average is unlikely to increase significantly as a result of hiring older persons, because the work group covered is large enough to `1insulate' the average. Where employees are covered by union programs, employers contribute an equal amount for every hour worked by each union employee regardless of his age and thus are not directly concerned with actu- arial factors. Several companies reported an increase in fringe benefit costs because of advancing employee age but only one company considered this increase to be a penalty rather than simply a cost of preferring older employees. Furthermore, it is apparently considered by many companies that a reasonable increase in costs of a fringe benefit program would represent only a small part of total compensation costs. Added pension costs specifically are not a consideration in hiring older applicants. All of the companies inter- viewed have pension plans which relate to years of serv- ice and most of these plans require a minimum number of prior service years for each participant. This require- ment, coupled with a mandatory retirement age or cessa- tion of service credits at 65, generally excludes from the plan those new workers 50-55 and older. Consequently the addition of older workers is not a significant problem with respect to company pension costs. 5. Social Considerations Up to this point, the types of difficulties discussed--expe- rience, physical capabilities, mental flexibility, wage and fringe costs--have been closely related to the economics of hiring the older job applicant. There are also certain impor- tant social considerations which affect the position of the older applicant. While certain of these considerations have an economic impact, employers seem to consider them as -59- PAGENO="0282" 276 AGE DISCRIMINATION IN EMPLOYMENT problems associated with relationships between human beings rather than matters of profit and loss. a. Inherent Status of Age Conflicts With Actual Status of Work In many circumstances, age is accepted by society as a positive status element: the older a person becomes, the more respected he should be. This can create prob- lems for the older applicant. For example, eight com- panies indicated that they are extremely reluctant to hire older persons into young work groups unless the newcomer is to occupy a supervisory position. These companies have found that frictions develop when an older person joins such a group as an equal. Although the respondents did not say so, we believe these fric- tions result from the imbalance between the accepted status of age and the actual status of work, and that people of widely differing age are not always comfortable working as equals. b. Older Workers Assume Leadership Without Authority A closely related problem that appears to stem from the same cause was noted by nine of the companies. Older persons in these companies have at times created ten- sions by attempting without authority to assume senior or lead responsibilities over their work groups. Most of these persons have been females and these companies consequently do not hire older females for functions performed largely by younger persons. c. Young Managements Prefer Young Employees Another manifestation of the age and status concept was noted primarily in small organizations directed by younger persons. Eight companies indicated a preference for younger employees and applicants for all or specific functions, because "we are a young company--we want young people around" or "thatmanager is young and wants young people working for him'. From these com- ments, it would appear that young managers prefer to have younger persons as subordinates, particularly in organizations which are so small as to require frequent contact between management and worker. d. Employers' Concern Over Reduced Pension Benefits Inhibits Hiring of the Older Worker Another social consideration that affects the status of the older applicant is his eligibility for pension benefits. Employers are concerned about the standard of living -60- PAGENO="0283" AGE DISCRIMINATION IN EMPLOYMENT 277 which their retirees will be able to maintain, and a few mentioned the consequent company image in the community. As was noted in the discussion of pension costs, most plans adopted by respondent companies require a mini- mum number of service years, generally 10 or 15. If coupled with a mandatory retirement policy this means that a person hired at 50 or 55 receives no pension at all. Even where there is no mandatory retirement age, workers in all but one organization interviewed cease to accrue pension benefits at age 65. Moreover, substan- tial pension benefits generally require many more serv- ice years than the minimum. The net result of these aspects of the various pension plans is that new employees over 45 are unlikely to build the pension benefits necessary to maintain a sat- isfactory retirement living standard, presuming that social security will provide their only other significant source of income. Where other sources of retirement income are provided, as with military retirees, consid- erations of pension eligibility do not apply. Two com- panies specifically cited eligibility for only minimum benefits (or noneligibility) as one of their principal reasons for preferring not to hire older applicants. Sev- eral other respondents indicated that pension eligibility of older applicants was evaluated in the screening proc- ess but was not considered a major stumbling block in hiring them. 6. Employer and Union Practices Opportunities for older applicants can be vitally affected by certain company and union practices. These appear to reflect what management and labor believe to be the best course in the light of their experience with older workers and within their particular economic and socialenvironments. The fre- quent result, however, is the restriction of opportunities for older applicants even though older employees are accepted or preferred for the work concerned. a. Promote-From-Within and Seniority Practices Lessen Opportunities for the Older Applicant Probably the most serious restrictions are caused by the company practice of promotion from within and union stipulation of preferential treatment of employees accord- ing to their seniority. Regardless of whether these practices stem from management philosophy or union contract clause, they have the effect of limiting the vast * majority of job openings to the junior positions in a given function or company. As a result, the experience -61- PAGENO="0284" 278 AGE DISCRIMINATION IN EMPLOYMENT possessed by older applicants is generally of little value to the employer and the beginning salary level is likely to be well below the applicants expectations. Since the older applicant is thus likely to be mismatched to the majority of positions open, an offer by the employer and acceptance by the applicant are both unlikely. Practices requiring preferential treatment of employees by seniority were encountered in surveyed companies of all sizes and representing various industry classifica- tions. Generally, such practices stemmed from union contract provisions although, as exemplified by one com- pany, such provisions sometimes were simply a codifica- tion of a management philosophy which predated any union representation of employees. Strongly applied promotion-from-within policies were found mainly in larger companies or mentioned by unions dealing with larger employers. Only one of the medium-sized com- panies surveyed adhered closely to promotion from with- in. This pattern is not surprising since a promote-from- within policy seems particularly suited to the larger organization. b. Efforts to Maintain a Balance of Ages Work Against the Older Applicant Many employers are concerned with maintaining a bal- ance of ages within their work forces. This is particu- larly true for the larger companies included in the survey. Evidently, the most desirable situation is to have a flat distribution of employee age from 25 to 55 with fewer employees at the age extremes. This is exemplified by one company in particular. Employers believe that such distribution provides very desirable flexibility in filling positions and protects a company against a sudden loss of capability through a wave of retirements and against a lack of innovation through absence of youth. Unfor- tunately, maintenance of such a balanced distribution requires that most new employees be younger persons since all employees automatically age with time and turnover among younger persons is much higher than among older groups. 7. Job Search Techniques Older persons displayed three major weaknesses in applying for employment, as discussed below. a. Older Applicants Are Defeatists The most frequently cited weakness is a defeatist atti- tude about age. Evidently, concern over their age causes applicants to be either much too assertive or much too -62- PAGENO="0285" AGE DISCRIMINATION IN EMPLOYMENT 279 defensive. They apparently lack confidence and over- compensate for their feelings of inferiority. In the opinions of both employer and union respondents, this sense of defeatism also seems to cause older applicants to become careless of their appearance. Furthermore, many fail to display desirable mental alertness and physical vigor even though they may possess these qual- ities in abundance. As survey respondents agreed that they seek 50 years experience at age 2S~, older appli- cants must apparently attempt to satisfy this need by emphasizing their capacities for mental and physical activity. b. Older Applicants Fail to Carry Out Their Job Searches Properly According to several respondents, older applicants fre- quently have not sought employment for many years and seem to have forgotten that the process is essentially a sales campaign. As a result, they do not inventory their strengths and then investigate and analyze pro- spective employers to determine where those strengths will be of maximum utility. This lack of preparation and strategy is most obvious to employers when older appli- cants being interviewed stress their need for employment and pay scant attention to exploring how their experience can be of value to the employer. In addition,. three com- panies noted that older applicants seem not to realize that experience is their prime asset and that it will be thoroughly investigated. These companies have had some problem with older persons either failing to docu- ment their experience adequately or exaggerating their recitation of experience beyond the normal bias that employers have come to expect of any applicant. c. Older Applicants Do Not Apply Their Strengths in the Proper Channels The final weakness in the conduct of older applicants relates to their perception of their competitive position in comparison to younger applicants. As noted, the com- petitive advantages of older persons consist mainly of their stability, judgment, skill and experience. Even though his stability may seem compromised by the fact that he is an applicant, the older person can frequently achieve his goal by restricting his search to work where his judgment, skill and experience will be of full value. Several respondents commented, however, that older applicants seem too prone to change vocations. They thus seriously reduce their ability to capitalize on their major attributes and eliminate much if not all of their extra value to the employer. -63- PAGENO="0286" 280 AGE DISCRIMINATION IN EMPLOYMENT The respondent for one company, in speaking to the point of the competition between younger and older applicants, offered a comment with which other large employers would probably agree. He thought that older applicants generally cannot expect to enter large organizations at a level comparable to their previous employment unless their skill is unique or in particularly short supply. Unfortunately, older applicants usually do expect to maintain their previous level and the denial of this expectation generates frustration and even anger. Such reactions in an interview weaken the applicants accept- ability, particularly in relation to the younger applicant whose expectations are more easily satisfied. 8. Recommendations From the outset, the major objective of this survey has been to determine the difficulties encountered by older applicants in seeking employment. The focus therefore has been in that direction and not on recommendations for overcoming such difficulties. Nevertheless, in the process of conducting the survey several possible approaches to solving the problems of the older applicant have been developed and are offered here for consideration. Suggested recommendations are grouped in two categories: (1) actions which might be taken without further fact finding; and (2) areas which require study in depth in order to deter- mine what action, if any, should be taken. 9.; Actions Recommended a. Continue to Provide Individualized Counsel for Older Applicants and Publicize this Service as Widely as Pos sible As has been noted the conduct of older persons in seek- ing employment is a major cause of their difficulty. Older applicants need a maximum of instruction in how to conduct a job hunting campaign. They must learn to inventory their strengths and then to seek employment with those companies which are most likely to place a value on these strengths. Older persons should be coached in how to present them- selves to a prospective employer so that the advantages * of a carefully prepared plan are not lost during the inter- view. Above all, every effort should be made to dispel any tendency of the older applicant to assume a defeat- * ist attitude. Judging from the frequency with which respondents com- mented on weaknesses displayed by older applicants, -64- PAGENO="0287" AGE DISCRIMINATION IN EMPLOYMENT 281 many of the latter are in need of additional counseling and may be unaware of the assistance available to them. This situation should be corrected since it is presumably easier to guide an individual applicant into a more fruit- ful search than it is to alter the economic and social realities against which employers evaluate the older person. b. Emphasize Training Programs to Broaden Existing Skills Smaller employers appear to prefer the older applicant much more frequently than large organizations. At the same time, smaller companies require a greater breadth of skill from each employee because there are fewer people available in the company to exercise all the var- iations of skill required. Older applicants can capital- ize on this favorable situation (or offer a full range of skill in other situations) only to the extent that they have not become overspecialized in their basic skill during prior employment. Consequently, iVwould appear that programs enabling older applicants to expand their specialized talents into more general capabilities in the same fields and also to bring themselves up to date on changing technology, would improve their poten- tial value to employers. c. De-Emphasize Training Programs Designed to Impart New Skills to Inexperienced Older Persons Inability of the inexperienced person to gain the training necessary to become a skilled operator is a major prob- lem for older applicants. Generally, this inability is a direct reflection of union or union-employer age limita- tions on apprentice programs. However, it is also true that union and employer respondents alike voiced doubt as to whether a person over 45 without related experience could assimilate the training necessary to become skilled, even though an apprenticeship was not required to achieve skilled status. In view of these doubts, it is suggested that training inexperienced older persons in completely unfamiliar skills should be de-emphasized or deferred until more is learned about the teaching of older workers and the older workers ability to absorb training. 10. Study Areas Recommended a. Determine the Adequacy of Present Teaching Methods and the Ability of Older Persons to Learn New Concepts and Techniques The frequently expressed thoughts about the older applicant's mental flexibility and learning ability, in -65- PAGENO="0288" 282 AGE DISCRIMINATION IN EMPLOYMENT comparison to the younger applicants, call for reliable corroboration or refutation. The attitudes of union and company respondents are based upon specific instances which constituted real problems for them. The effect of these doubts upon general opportunities for older appli- cants may be unfair, however. It is entirely possible, for instance, that older women might be able to learn electronics assembly skills easily if taught in a certain way. Similarly, a particular kind of indoctrination not attempted by the respondents may be required to accli- mate older persons to an unfamiliar, rapid work pace. Answers to these problems must come, we believe, from research conducted by experts under controlled condi- tions so that there can be no question as to the validity of the results. If such study indicates that there is no basic lack of mental flexibility among older applicants, appropriate programs should be developed to publicize that fact and to open employment opportunities now closed to older persons because they seem slow to adjust and to learn. b. Investigate the General Sentiment That Older Applicants Are Somehow Less Capable It is to be questioned whether the majority of older per- sons seeking work are in fact inferior to older employees doing the same work. Any objective evidence that could be developed to dispel employers suspicions, by shed- ding additional light on why older persons seek new employment and how their capabilities compare to older employed persons, should improve opportunities for older applicants. c. Study the Effect of Age Status Upon Opportunities for Older Applicants As noted previously, problems that appear to result from the conflict between the inherent status of older age and the actual status of the job can be a major factor in the closing off of employment opportunities for older appli- cants. If basic social concepts of age do lie at the root of these problems, it is entirely possible that very broad educational programs for many elements of society may be required to correct the situation. It is possible, however, that a study in depth would identify some working situa- tions in which conflicts resulting from mismatched age and work status are inevitable and other areas in which these conflicts can be either avoided or overcome. Such a study should be undertaken to clarify the situation and, hopefully, to improve employment opportunities for older applicants accordingly. -66- PAGENO="0289" AGE DISCRIMINATION IN EMPLOYMENT 283 CHAPTER THREE ANALYSIS OF THE OLDER WORKER PROGRAM IN 36 LOCAL OFFICES OF THE CALIFORNIA STATE EMPLOYMENT SERVICE A. INTRODUCTION 1. Scope of the Analysis In accordance with HR 77, the Department of Employment surveyed 36 of its field offices during March through May 1964 to study services to older workers, and explore diffi- culties encountered in placing them in employment. The study was concerned with: (1) employment problems pres- ented by older workers; (2) employer attitudes and hiring practices as encountered by local office staff; (3) the organ- ization and staffing of the older worker program, including the kinds of services being performed for older workers; (4) relationships of local offices with community groups interested in employment problems of older workers; and (5) training needs of older workers. In the course of the study, a State staff representative of the California State Employment Service interviewed about 150 individuals, including placement interviewers, Older Worker Specialists, local office managers, field supervisors respon- sible for groups of local offices, and other managerial and technical staff. The offices visited included the four area administrative offices in the Division of Public Employment Offices and Benefit Payments, and 32 local offices. The sample comprised about one-third of local employment offices throughout the State, other than those devoted solely to farm placement. In the sample were small, medium-sized, and large "full-functioning' offices (those performing both employment service and unemployment insurance functions), as well as large specialized offices in the Los Angeles and San Francisco Metropolitan areas serving professional, com- mercial, industrial, and service occupations. Communities chosen for the study typified, as far as possible, the wide range of economic conditions and industries throughout California, including agricultural, light and heavy industrial, and "supporting" or bedroom communities which provide serv- ice facilities for residents who work elsewhere. Booming, declining, and static economies were represented. 2. Who Is An "Older Worker"? For convenience in statistical reporting, a person is consid- ered to be an "older worker" if he has reached his 45th birth- day. But chronological age alone does not make an "older worker". Aging may progress at different rates for different individuals. Even a slight decline in physical capacity may end the professional career of a baseball player in his early 30's. At the other extreme, there is virtually no retirement -67- 85-376 0 - 67 - 19 PAGENO="0290" 284 AGE DISCRIMINATION IN EMPLOYMENT age for the lawyer or doctor whose general health is adequate to the demands of his practice. Chronological age may have "side effects", as when long experience in a declining occupation plus lack of recent training combine to impair the job prospects of an individual who becomes unemployed at the age of 40 or 45. In this report, the term "older worker' refers to the age group of 45 and over, and the term If aged" is applied to individuals aged 65 and over. However, in its operations the State Employment Service recognizes the broad range of age- connected problems which affect employment and defines an older worker as "a person who is encountering, or may be expected to encounter, difficulty in getting or keeping a job principally because of his age." (California State Employ- ment Service Operations Manual, Section 5302.) In the placement policy of the Employment Service, it is possible for a person under age 45 to receive special older worker services. B. EMPLOYMENT PROBLEMS OF OLDER WORKERS 1. The Problem Can Start Early and Last Long The competition for jobs in a complex and rapidly changing labor market may be grueling, even for a man in his 30's. A man ten years older may find himself with handicaps related to age, even though his physical and mental capacities may be at their peak. He may have had less formal and less recent education than the younger man, and his job training may be outdated in terms of current job requirements. He may be in a declining occupation or industry which formerly offered good prospects for a lifelong career. The locomotive engineer, the blacksmith, and the elevator operator are well- known examples of occupations fast disappearing from the scene. While these occupations may involve relatively few people, technological changes in production processes affect thousands of individuals with limited skills, who may be thrown into a labor market where their skills are no longer in demand. The employed older worker has some advantage in keeping his job, because of experience, seniority, and dependability. When he becomes unemployed, he is apt to remain out of work longer than a young person and he may find it much harder to get another job. Even if he has skills needed in the labor market, the age barrier of prejudice may be raised against him. He may be stamped as "too old" at age 40 or 60, regard- less of his real capacity to perform on the job. The costs of pension plans and insurance are often cited as reasons for refusing to hire workers in the older age brackets, even though the actual costs may not be fully understood. Compulsory retirement ages written into some pension plans -68- PAGENO="0291" AGE DISCRIMINATION IN EMPLOYMENT 285 close the door not only to workers nearing that age, but sometimes to younger persons who are too old to complete the stipulated years of service which would qualify them for benefits. The individual aged 55 to 64 who becomes unemployed is probably among the most severely disadvantaged members of the work force. He may never find his way back into the labor market or if he does, it may be at lower pay and at a lower skill. Although a few pensionpians provide limited retirement benefits to persons under age 60, the individual in the 55 to 60 age group will in most cases have no avail- able income from pension or retirement credits. Although jobs may be available in another community or another State, older workers may be unable to finance a move to a new location or they may hesitate to break up family ties of home ownership, children in school, and friends in the community. The individual who must continue to support himself andhis family may be willing to settle for almost any job that will bring some income, particularly after a long period of unem- ployment. Such downgrading may sacrifice valuable skills and experience which are needed in the economy. An even greater loss occurs when the older person becomes discour- aged at the futile search for work, and simply withdraws from the labor market. Even though the individual may be able to finance his own livelihood from a pension or from savings often depleted by a long search for work, his poten- tial production is lost, his purchasing power is decreased, and he may become a burden on his family or on the commu- nity instead of continuing as an active and productive member of society. The following sections describe some problems of older workers which are most frequently encountered by local office employment interviewers and Older Worker Specialists. Some of the problems arise from the changing nature of jobs and skills, others from attitudes and opinions about the older worker, including his own. The Presidents Council on Aging noted that there is 1a range of problems that are specifically associated with age--some founded in reality, others quite unfounded bu~ no less real--that require special efforts to overcome. `1/ 2. Age Is Not the Only Problem-~-There Is Always Something Else Most older workers are not "problems'1, as long as they have skills which are needed in the labor market. Age in itself need not be a handicap. Numerous studies show that most older workers are stable and capable employees, whose per- formance as a group compares favorably with that of youn9e,r workers and may even be superior in some types of work..~/ -69- PAGENO="0292" 286 AGE DISCRIMINATION IN EMPLOYMENT Comments were made in every local office visited, that age is not a great problem in employment for the fully qualified worker with needed skills and recent work experience. Many job orders call for a mature and stable worker, particularly in clerical and highly skilled jobs. Local offices cite place- ments of workers in their 70's and even 80's. But when the older worker is out of a job, problems tend to cluster. The "older worker syndromet has been described as "age plus something else"--physical problems, obsolescent skills, lack of mobility, or the individual's own attitude toward himself. There are many factors which may interfere with the older worker's reemployment. Age may be the last straw which puts him into the problem group. a. Problems of Skills Local office staff believe that older workers can be placed at almost any age if they have marketable, up- to-date skills and are able to work. The journeyman in most crafts and trades, whose skills are needed in the labor market, has good employment prospects. But the 60-year-old man who has worked for years as a carpenter in production line jobs may have never fully qualified as a Finish Carpenter or in other skilled jobs. If continuous and heavy production pres- sure begins to tax his strength, he may find few oppor- tunities for other employment in his occupation. However, skills alone are not always a guarantee of employment. In some white-collar occupations, older workers with long experience and unquestioned profi- ciency may find that employers' age preferences whether overtly expressed or not, as well as changes in educa- tional or profes sional requirements, may outweigh experience. One local office reports a "hard-core" situation which is becoming common in many communities: "We have no large `production' type operations, but there is a large supply of workers with limited skills, including minority group members, whose main expe- rience has been in such jobs. This group and our unskilled labor supply is growing through inmigration, while job opportunities in production are decreasing. Not much industry is coming in. Several large firms have moved out, as have several small electronic firms. "With the older group, education and literacy are a problem for our local unskilled labor supply. Also, the kind of experience they have is not in heavy -70- PAGENO="0293" AGE DISCRIMINATION IN EMPLOYMENT 287 demand. The men have worked as janitors, custo- dians, in the warehouse, and as construction laborers. Some of this work is available, but we have an oversupply of applicants. The women have mostly worked in the canneries, and as assemblers. Many have a low educational level and marginal skills and abilities. ~We also have a supply of female clerical workers with low skills, many of them in the older worker group. Although there is a need for General Office Clerks, these women do not qualify without further training. Sometimes, there are also problems of appearance and personality. `~ Major industrial changes, such as the cancellation of the Skybolt program and drastic reductions of airframe production in Southern California, have left thousands of production workers jobless--some of them with years of experience in performing one job which no longer exists. Geographic relocations of plants, such as the move of the Marchant Company from Oakland to North Carolina, have had the same effect. The worker with excellent but limited skills may find no market for them. b. Problems of Training Problems of skills and training are closely related. Many changes in entry requirements, especially aca- demic requirements, have occurred since older workers began their careers. These changes have a great impact on older workers, particularly those in professional fields. One academic degree may not be enough. In~ social work, an unemployed individual with 25 years of responsible and well-paid experience, but without a Master of Social Work degree, may find it almost impos- sible to obtain a comparable job in her profession. The arbitrary requirement of high school education which many employers no* make hits particularly hard at older workers in many occupations where this was not a requirement when the individual first started to work. Older workers who do not recognize that lack of academic training may affect their prospects of continuing in employment may be little inclined to go back to school for further academic training which is not directly related to an occupation, and which may be of long duration. Those whose basic education was even more limited are at a severe disadvantage. An office in an agricultural area reports: 1Lots of the local people came here from other states and have a 3rd or 4th grade education. They're only semiliterate. Slow reading is probably the commonest difficulty in counseling and testing. Most of -71- PAGENO="0294" 288 AGE DISCRIMINATION IN EMPLOYMENT the men haven't had to use whatever reading skills they acquired in school, having worked at hard labor most of their lives. The women are a little betters ir Many older workers are products of depression schooling. Some had to quit school to go to work, took the first available job, and irstayed with ltr. In the kind of work they are doing, they could see no reason to gain more education. c. Problems of Mobility The ability to "go where the jobs arer is at a premium in our rapidly shifting labor market. Some older workers have sacrificed mobility for other values--the establish- ment of roots in the community or retirement to a remote vacation area or a "Leisure Town". Others with mar- ginal budgets cannot afford to move their household in pursuit of employment, or even to pay the costs of lenthy commuting. For the aged, health problems may rule out long drives to the job. Individuals who have established pension rights with an employer may hesitate to change jobs, although the effects of pensions on worker mobility are not fully known.~/ Some communities have a magnetic power to draw and hold residents. A Los Angeles office comments: "Los Angeles applicants are inclined to be immobile. Many individuals who have been attracted to this community because of its glamorous reputation want to stay. Working wives affect the situation--many husbands and wives are both in skilled or professional occupations.. A move for one means a move for both. The best applicant supply, particularly for jobs in other parts of the State, is among workers coming into the community who have not yet established roots. In a recent recruitment for auditors, where travel was required, local applicants did not wish to travel." Younger workers "follow the jobs" into such dynamic areas as the Peninsula and the San Fernando Valley, and older job applicants who are already there must compete with this influx of new blood. They have an advantage in being on the scene, even though economic competition is severe. A retiree in Redding or Carlsbad may find him- self remote from job opportunities in his field. In some areas, jobs continue to move farther away from the settled worker, as firms change their locations for low-cost land and plant space, cheaper taxes, or other advantages. For instance, some manufacturing firms have moved from Oakland, out of reach of workers in Vallejo who formerly commuted to Oakland. -72- PAGENO="0295" AGE DISCRIMINATION IN EMPLOYMENT 289 The more skilled older workers are often willing to spend as much as an hour a day commuting to well- paying jobs in other communities. Even with the length of time involved, it is worthwhile financially. Less skilled and lower-paid workers may be reluctant to take on this expense. Commuting and transportation difficulties give rise to other problems, as a metropolitan office notes: "Because of the size of our territory, it is a real problem to maintain continuity of service to the appli- cant. It is hard to keep them coming to us if they don't have car fare, which is an expensive item in the metropolitan area. Some of them do nothave cars. We find they often do not come back unless they have a claim, so that counseling which may have been started sometimes is not continued. We lose contact with them, and do not always know whether they are still in the labor market." d. Health and Physical Capacity "When a laborer gets a backache or other physical ail- ments and can no longer perform in his usual occupation, he has very limited resources for other work. Our greatest problem with sawmill workers is severe physical disability." This comment from an interviewer in a small rural office points up a hazard which may suddenly come upon any person. Loss of physical capacity, with attendant med- ical expense, lowered income, and problems of family care, may be a disaster. If the husband loses all capac- ity to work, the wife may have to assume the burden. The same interviewer commented: "Women seem to live with their physical disabilities better than men. Their worst problem is when they are thrown on the labor market unexpectedly, by the husband's death or illness. Some of them have had very little work experience or training. They can't get into occupations with the same pay scale as the husband's." While older workers are in general l~ss prone to indus- trial accidents than younger ones,±/ some do encounter severe health problems with advancing age. Less seri- ous physical problems may also be troublesome: Hearing defects may hamper placement in jobs where use of the telephone is important. -73- PAGENO="0296" 290 AGE DISCRIMINATION IN EMPLOYMENT Bifocals may cut down job prospects for a pipefitter who has been used to working overhead or in cramped quarters, or for a machinist who has worked to fine tolerances. Varicose veins may make it difficult for the worker to be on his feet for prolonged periods. The older worker who has had a long illness may be considered a dubious employment risk by an employer. The excellent attendance record and low absenteeism rate of older workers a~ a group have been demonstrated in numerous studies.~! They belie the assumption of some employers that hiring older workers will necessar- ily increase the costs of health and other group insur- ance. Nevertheless, ES interviewers report this is a common objection to acceptance of older workers. 3. Attitudes of Older Workers The older worker's own appraisal of himself in relation to the labor market can greatly affect his employment prospects. An individual who takes a realistic view of his own capacities as well as his limitations, and who is strongly motivated to work, offers good potential to the employment interviewer. One who lacks self-confidence or fails to recognize personal traits which may be objectionable to employers may hamper his chances for employment by his own attitudes. Some older worker attitudes which present difficulties in placement relate to personal problems, resistance to change, unrealistic job or financial goals, and attachment to the labor market. a. Personal Problems People tend to stereotype older workers on the basis of preconceived notions. They are said to be "talkative," "set in their ways," "hard to supervise". Although such assumptions may have little basis, in fact, some older workers do exhibit negative traits in the course of an employment or counseling interview. It is sometimes hard to help the individual recognize and correct personal problems of attitude. Grooming may be a problem in clerical and other occupa- tions where appearance is important. To quote one coun- selor, "Older people sometimes get careless about their appearance. Even a well-qualified and experienced older person with skills currently in demand may appear in the local office wearing attire not suitable for a job inter- view or for the occupation." -74- PAGENO="0297" AGE DISCRIMINATION IN EMPLOYMENT 291 Lack of self-confidence and a general defeatist attitude may develop in the individual who is unaccustomed to job seeking, especially after several rejections by employers. Many need help in learning how to apply for a job. Older women who have been out of the labor market for some time are often uncertain whether they can perform successfully if they return. One older woman, who was placed in a typist job, came back to the local, office after she was hired to express her con- cern about going to work. The employer was getting an electric typewriter for her, and she did not want him to "go to all that trouble' because she was afraid she could not do the job. The older worker who expresses the feeling that he is "too old" may fail to recognize some of his other prob- lems. Even though an employer may have other reasons for not hiring at a particular time, an older worker who did not get the job is apt to blame his failure on age. b. Resistance to Change - Some workers, displaced in mass layoffs, have refused to accept the fact that there is no prospect of work for them in their former jobs. They have clung grimly to the hope that "something will turn up" and they will be called back by the former employer. The man with 20 years of seniority at the plant, who owns a home and has children in school, does not want to pull up stakes and head for a new community where job prospects may be better. As unemployment lengthens and resources dwindle, the family may not be able to afford such a change. The head of the family may hesitate to train for a new occupation, for fear he cannot succeed in the job. Even if he reluctantly decides to seek training, he may find that training allowances are inadequate to meet the financial needs of his family. Individuals in these extreme circumstances would seem to have sufficient motivation for major changes in their employment patterns, yet some resist. Others with mar- ginal skills sometimes exhibit negative attitudes towards taking training or trying to do a different job. Some may eke out a living with the help of unemployment insurance or welfare assistance. Pensioners who need additional income may be afraid of jeopardizing social security or other pension rights. They fear that if they get "off the pension" they cannot get back on. Prestige is important to the professional worker and the former executive. Said one , "Profe s sional employees seem more willing to take a cut in pay than -75- PAGENO="0298" 292 AGE DISCRIMINATION IN EMPLOYMENT in prestige. `~ The individual who has had a job with some supervisory authority may develop emotional prob- lems when faced with the prospect of having to accept a subordinate job if he expects to continue working. c. Unrealistic Goals The desire to maintain an accustomed standard of living may result in unrealistic financial demands. A worker who has reached the top of his pay bracket when he loses his job may not realize that the going rate of pay for most jobs in his occupation is far lower. A legal secretary who retired while making $650 per month but is willing to come back at $550 per month may still be priced out of the labor market. Older workers sometimes have unrealistic occupational goals. A man who worked 30 years for the same company may think of the labor market as it was when he began his career, and assess his own capacities as they were at that time. A construction laborer, who has worked around engineers for 35 years, and whose back is begin- ning to trouble him, may decide that he wants to be a construction engineer, even though he lacks a high school diploma. d. Attachment to the Labor Market Older workers continue to work for three main reasons: (1) They need full-time work to support themselves and their families; (2) they need to supplement retirement income; and (3) they `want to have something to do." The first group is generally determined to remain in the labor market, but workers in the other two groups may come and go. A task force assembled by the Bureau of Employment Security in 1961 to consider older worker problems made this recommendation which can still serve as a goal: "Techniques are needed to distinguish those older applicants, particularly those at or near retirement age, who genuinely want work from those who are really searching for an activity which will keep them busy. Such techniques would help the ES identify those individuals desiring remunerative jobs and those whose needs could be met by non- vocational community services. -76- PAGENO="0299" AGE DISCRIMINATION IN EMPLOYMENT 293 C. EMPLOYER ATTITUDES AND HIRING PRACTICES 1. Is There Age Discrimination? ~~Employers are In business to make money. Some of them feel that they make more money from younger workers. Even employers who are receptive to hiring older workers don't want to get all of their employees in one age group." This comment reflects a general feeling by local office staff that employers are more concerned with production than with the problems of the aging. As one interviewer expressed it, resistance to hiring older workers is "like the minority prob- lem--it's below the surface. It doesn't show, but you know it's there." Most employers are aware of the anti-age discrimination law (Sections 2070-2078 of the California Unemployment Insurance Code). Consequently, few age-discriminatory orders are being received statewide. Occasionally, a small employer or one who wishes to hire a domestic will attempt to place an age limit on the order, but interviewers say they can easily be persuaded to remove it. However, local offices report that some employers do not place an order and terminate the conversation when the ban on age limits is mentioned. Local office placement staff feel strongly that age limitations in employer and private agency advertising, now permissible under the law, (i.e., "Typist-Age 18-50"), obviate efforts to obtain relaxation of age requirements on job orders placed with the local office. Many interviewers said, in effect: "If the employer can recruit the age groups he wants through advertising, why should he give his job order to the Employ- ment Service, which is bound by the age discrimination law in its advertising and placement practices?" The language in Section 2072 concerning "bona fide" pension plans, has caused problems of interpretation. Local office staff would like to see it eliminated. They would also like to see the present law strengthened by specific measures for enforcement of anti-age discrimination provisions in the California Unemployment Insurance Code, including methods of processing complaints, an appeals procedure, and a com- pliance or mediation service. The present lack of adequate enforcement provisions makes it almost impossible to deter- mine the nature or volume of complaints, since few are filed and local authorities maintain no records on the subject. Although local office staff in general made few suggestions about how enforcement provisions should be administered, the Department of Employment has previously recommended that a compliance service should be established for this purpose within the Fair Employment Practices Commission. 6/ -77- PAGENO="0300" 294 AGE DISCRIMINATION IN EMPLOYMENT ES placement staff also suggest concentrated effort at State and Area level s to encourage Federal, State, county and municipal public agencies to modify physical and age-hiring requirements. County and municipal civil service and gov- ernment agencies are considered by some local offices to be the most restrictive, some having upper age limits of age 50 for clerical and other jobs. Recruitment for some Government classifications tends to emphasize recency of education and age, regardless of actual job requirements. 2. Employer Objections Some employer objections to hiring workers over age 60 were reported by a Bay Area office: a. Promotion from within--employers do not wish to hire and train an experienced person at the entry level. b. They do not want to train workers for "just a few years't. c. Recency of experience: Some professional jobs require a college degree, and there is a local tendency to demand three to five years of recent experience. There are many highly technical jobs in this area, where earlier experi- ence or training may not be related to the immediate job requirements. d. Some employers do not want "heavy nonrelated experi- ence." Some comments of employers on the "over- qualified" applicant are reported by the same office: (1) "Applicants with too much experience can be `trouble makers'." (2) "They want to tell you how to do it." (3) "We want individuals who can be hired at a job comparable to the one which they have had during the past 5 years." The employer' s desire for trainees who will remain with the firm and are promotable was frequently mentioned: "In one occupation, Management Trainee, you know there is an age limit but the employer does not mention it. They want people who will stay with them for a long time, and they just do not hire people over a certain age. They don't put the age specification on the order. If we refer 6 or 7, they know they don't have to hire the one that may be the older worker." Even so, some local offices report successful placements of older workers as Management Trainees. -78- PAGENO="0301" AGE DISCRIMINATION IN EMPLOYMENT 295 3. Physical Examinations Stringent physical examinations may screen out the older worker with any medical history. Even some of the younger workers cannot pass the physicals--on one order 12 people were rejected, most of them under 40. Local office staff feel that physical requirements for some jobs are too rigid, and constitute a form of "hidden discrimination~r against the older worker. The following comment by the manager of a local office in a mountain community is typical of areas where physical capacity is at a premium in the labor market. "The industry here is lumber. Mills will keep their help up to age 60--this is not in the union contract--because of the insurance. The worst thing here is back injuries. If a man injures his back, he is just out of the labor market. They sometimes lead to long, involved workmen's compensation cases, and the employers don't like that." 4. Wages In general, wages offered to older workers are at the going rate for the occupation, and in fact premium wages may be offered to a worker with long and specialized experience. However, usual rates of pay are low for some jobs which employers and interviewers alike tend to consider as "older worker occupations" --for instance, room clerk, custodian, building watchman, or parking lot attendant. Low wages for domestic workers in some locations affect the earning capac- ity of many older women. Older Worker Specialists feel that some placement inter- viewers tend to consider a job paying $1.25 per hour as "something for the older worker". This was borne out by the response of many interviewers to the question: "In which jobs do you find it easiest to place older workers?" Low- paid service occupations for both men and women were almost invariably mentioned, while professional jobs were generally cited as among the most difficult for the placement of older workers. Most local offices receive some substandard orders, and on some of these employers are undoubtedly angling for the older worker. In one medium-sized community with a large number of retired professional people, but few job openings in these classifications, the comment was made that trsome employers think a pensioner should work for less money. They want to pay $200 a month for a $700 man. Some employers make special arrangements with pensioners to keep their earnings under the amount allowed by Social Security. -79- PAGENO="0302" 296 AGE DISCRIMINATION IN EMPLOYMENT Occasionally, employers endeavor to place job orders for domestic workers at 50 cents per hour, or offer "room and board and a good home" to a pensioner in return for domestic work. Employment Service policy permits cancellation of job orders when wages or conditions of employment are below prevailing standards in the community, and this policy is explained to employers who attempt to place such job orders. Employment Service-sponsored programs suchas Senior Repairman and Homemaker lead to employment at going wage rates, and under acceptable working conditions. Other programs such as Experience Unlimited, which offers place- ment assistance to professional and managerial personnel, and job clinics for mature women planning to enter or re-enter employment, help older workers to compete in the labor market on more equal terms. However, the full extent of the older worker's economic prob- lem is only partially revealed in the operations of the Employ- ment Service. Of the more than 1 million Californians aged 65 and over in 1963, only about 22,000 filed new applications for work with the California State Employment Service. The extent to which employment may be needed by the balance of this group, or the prevalence of substandard wages and work- ing conditions among those who find jobs through sources other than the State Employment Service, can only be sur- mised. The median income for the aged, cited on pages 38 and 39, shows that half the 65-plus group are subsisting at poverty or near-poverty levels,-generally defined as an annual income of $3,000 or less for a family of four, and $2,000 or less for the single individual living apart from a family group. 5. Retirement and Group Insurance Plans Interviewers feel the effect of retirement and group insurance plans on employers' hiring practices is not fully understood. The following comments are summarized from the remarks of a number of local office staff: "We need more factual information on the effect of age on employers' group insurance for life and health. Can we show employers that their rates will not rise if they hire older workers? Similarly, we need more information about retirement plans--what are modern practices? What about plans which permit the worker to take his retirement from one employer to another? "State, Federal, and local government retirement plans should be reviewed in terms of employment possibilities for older workers. They have some built-in restrictions. Some retirement plans now have a top of age 62, and some have age 60. Some union pension plans have built- in age requirements. These age limits have an effect on our placement of older workers." -80- PAGENO="0303" AGE DISCRIMINATION IN EMPLOYMENT 297 Some large employers will waive retirement provisions for key employees. Many professional applicants are nonunion, and do not come under union agreements concerning retirement. An increase in "financial incentive" plans offering special benefits at ages 58 to 62, -to induce early retirement, was reported in the Bay Area. Major oil companies are among firms with such plans. However, local offices are uncertain of the effects on local employment. Several suggestions were made by CSES staff on retirement and pension plans: a. Encourage government and industries to arrange a sliding scale of reduced hours in connection with long-range pre-retirement planning. Opportunities should be explored for "2-for-i" jobs where two older workers might share the same job assignment on four-hour shifts. b. In line with the need to create more job opportunities, pension plans which combine a retirement rate based on the three or five years of highest earnings, plus longev- ity on the job (such as the State Employees Retirement System) might also include provision for reduced hours or earnings after the employee has achieved his earnings peak. Some older workers would welcome the opportunity to take a reduction in present earnings if they could stay on the job longer and improve final retirement benefits by added years of service. c. The legislature, should enact a California Portable Pension Act, similar to Canadian legislation now in effect. The law should provide for compulsory vesting rights in California and for funding pension costs of small' employers. 6. The Garment Industry * The garment industry deserves special mention as one of the brightest spots in the employment picture for California's older workers. While the work is hard, the pay is good and in the metropolitan areas where the industry is concentrated operators can continue into their 80's if they still meet production standards. - When asked why employers in the garment industry are so receptive to older workers, staff of the Los Angeles Apparel Office made the following comments: "Many garment employers are small--theydo not have a big personnel set-up or big personnel problems. Many are partnerships, some of these were production workers themselves, and they are inclined to be paternal with -81- PAGENO="0304" 298 AGE DISCRIMINATION IN EMPLOYMENT older workers. Some employers feel a sense of loyalty to their older workers. They will put them on odd jobs if the worker cannot do the regular piece work. `1Employers don't care much about age for sewing machine operators, as long as they can do the work. But after age 45, it may be hard to place trimmers, folders, and floor girls (entry jobs). `tTailors find no problems at any age, as long as they are physically able. Cutters do need physical strength, as some exertion is involved. There is no `second line' outlet for them. The entry job to this occupation is spreader. "Much of the work is piece work and if the employee is producing, the employer is not suffering. He has nothing to lose. Personal appearance and voice are not impor- tant in placing workers in garment occupations. These workers do not have to meet standards which might apply in commercial or other kinds of occupations. If they can still `make production', employers have no objec- tion. There is a great deal of pressure in this industry, and some workers become `older workers' at an early age because of the pressure of the production line. Much of the work is on a piece-work basis." D. ORGANIZATION OF OLDER WORKER SERVICES 1. "Mainstream" Services Most services to older workers are provided in the "main- stream" of local employment office operations. Older workers who file their applications for work are interviewed, assigned occupational classifications, and considered for referral to job openings or individual job development war- ranted by their qualifications. They may be sent to the employment counselor for special help with job problems. They are given information about local job prospects and those in other areas, and briefed on wages, hours and work- ing conditions in occupations for which they might qualify. When skills are rusty or job prospects in former occupations are poor, they may be considered for retraining under the Manpower Development and Training Act and State programs offering training allowances, and for possible referral to other job-related training (for sales work, as Family Aides, and similar local programs). 2. Special Services to Older Worker The urgent and growing problems of employment for older workers have for years been a matter of grave concern to the Employment Service. In strengthening efforts to deal with these problems, the Employment Service in 1959 designated -82- PAGENO="0305" AGE DISCRIMINATION IN EMPLOYMENT 299 Older Worker Specialists in each of its local employment offices. The job of the local office Older Worker Specialist was outlined in a duties statement released to the field by Division Notice 2080 Q, dated March 11, 1959. A copy of this statement appears on page 84. An older worker may be referred to the Older Worker Specialist from any point in the office, including the claims section, when the interviewer recognizes an employment problem con- nected with age. The "Older Worker" Guide Card, DE 4751A, is available as a source of clues to the need for special services. (A replica appears below.) "OLDER WORKER" GUIDE CARD DEFINITIO~ An older worker is a person who is encountering, or may be expected to encounter, difficulty in getting or keeping a job principally because of his age. Clues for Identifying His Need for Special Services 1. Long, specialized experience-suitable job op~órtunities are lacking because: a. Technological changes. b. Industry declined or left area. c. Job does not exist in small establishments. d. His experience is no longer required. e. Lack of job orders in his occupation. 2. Unrealistic demands-wages, working conditions, etc. a. No longer qualifies for previous position. b. Relates demands to needs rather than abilities. c. Long, unsuccessful search for employment. 3. Type of work too heavy, too fast, or makes excessive physical demands. a. Lost last job for one of these reasons. b. VQ'd last job for reasons of health. c. Cannot meet production standards for this work. 4. Lacks marketable.skjlls or skills rusty. a. Re-entering labor market after long absence, or no previous work experience. b. Retired, or out of labor market for long time. 5. Unusual difficulty in getting or keeping job. a. Unemployed three months before registering. b. Repeatedly rejected by employers. c. Several recent short-term jobs. 6. No successful referral byL.O. within reasonable time. a. Three months in L. 0. without referral. b. Repeated unsuccessful referrals. 7. Does not understand reasons for unemployment. a. Furloughed, not rehired with others. b. Not rehired after accident or illness. c. Rejected for jobs without plausible reasons. 8. Seriously discouraged, lost confidence, low morale. 1 9. Appearance and attitude make him a poor referral. 10. Referred for assistance by another agency. LDE 4751A (4-61) -83- 85-376 0 - 67 - 20 PAGENO="0306" 300 AGE DISCRIMINATION IN EMPLOYMENT Attachment to Division Notice No. 2080 Q, March 11, 1959 RECOMMENDED DUTIES OF LOCAL OFFICE SPECThLIST ON SERVICES TO OLDER WORKERS Job Summary Under the direction of the Employment Service Supervisor, serves as local office specialist responsible for giving functional supervision to local office services to older workers. Duties A. Assists line supervisors in conducting reviews of application taking, counseling, job development, placement, and other local office services to older workers, and determining improvements needed. B. Trains, or assists in training, local office personnel in the pro- gram of services to older workers, with, or under the direction, of the State Supervisor of Services to Older Workers. C. Follows through on training given by making periodic checks on actions taken to assure effective service to older workers. D. Assists employment counselor in resolving unusually difficult counseling problems presented by individual older workers. E. Participates in staff clinics and on case evaluation teams to assist in resolving special problems of unusually hard-to-place older workers. F. Cooperates with employer relations representatives, the veterans employment representative, the selective placement interviewer, and other staff members in developing job openings for unusually hard-to-place older workers. G. Cooperates with order taking, selection and referral, employer relations, and the appropriate State office staff in attempting to obtain relaxation of restrictive age specifications. H. Reviews or assists in reviewing active application files periodi- cally to identify those older workers who remain unemployed for a considerable length of time, and assists in determining the services needed to facilitate their employment. I. Stimulates, plans, and participates in the local office promotional and public relations program (1) to present facts about employ- ability of older workers and to minimize restrictions in hiring because of age, and (2) to inform older workers of services available to them through the local office. -84- PAGENO="0307" AGE DISCRIMINATION IN EMPLOYMENT 301 I j. Conducts educational institutes, forums, demonstrations, and other types of meetings to increase management, labor and com- munity acceptance of qualifications of older workers. K. Serves as liaison representative with all cooperating agencies and organizations providing services to older workers. Stimulates the development of refresher, educational, and skill broadening training courses for older workers. M. Performs related duties as required to facilitate suitable employ- ment of older workers. a. Budgetary Limitations Since 1959, automation and changes in the economy have greatly increased the number of older workers who need intensive help in finding employment. There is an immediate and pressing need to improve the quality and expand the volume of special employment services to these workers. In its proposed budget for Fiscal Year 1965, the Department of Employment requested 44 posi- tions for older worker services, of which only 20 were approved. This request included positions for one State Supervisor of the program and four full-time Area Coordinators, with the balance for local office use. The staffing pattern would have provided a full-time special- ist in large offices and at least part-time service in all offices. The budget request proposed to finance program improvements along the following lines: (1) A change in the concept of the job of the Older Worker Specialist from primary responsibility for direct services to individual applicants, to one in which the major portion of the time is spent on developmental, community and analytical work. (2) Extension of special programs such as Homemaker- Family Aide, Experience Unlimited, Maintenance Gardener, Senior Repairman into additional local offices, and development of other special placement programs designed for older workers. (3) Regular analyses by the Older Worker Specialist of the applicant file, .daily intake, and closed orders. (4) Follow up on orders closed because an employer refused to lift an age restriction, with a personal call on the employer by the Older Worker Specialist. b. Present Status of Program At the time of the field survey, attempts to extend and improve the program along the foregoing lines were -85- PAGENO="0308" 302 AGE DISCRIMINATION IN EMPLOYMENT severely limited by lack of staff time. Two of the four Area Coordinators were performing other duties in addi- tion to their older worker assignments. One resigned in mid-1964, and the position remained unfilled for several months. Only one Area Coordinator was attempting to make full-scale evaluations of the older worker program in individual local offices. Of the 32 local offices surveyed, nine had a "full-time" Older Worker Specialist but four of these also performed other duties, mainly in counseling applicants other than older workers, in regular job development and placement, or in contacting employers to promote the use of the Employment Service. One local office had no individual designated as OWS, because of recent personnel trans~ fers. Among the offices with part-time specialists, there were various combinations of duties with the OWS assignment. Some typical combinations were OWS- Counselor-placement, OWS -Employer Relations Repre- sentative (ERR)-placement, and OWS-ERR-Veterans Employment Representative (VER). Others were: Counseling, employer relations, assistance to parolees, and regular placement. Counseling, selective placement, regular placement. Placement, employer relations, parolees, com- pletion; occasionally collects material for indus- trial and occupational briefs. Claims supervisor (one office only). Counseling, youth program, selective placement, employer relations, placement. Combinations of duties which seemed to be most compat- ible were OWS-VER, OWS-Counseling if the individual is a trained counselor, and OWS-ERR with emphasis on con- tacts with community organizations and promotion of older worker employment. One OWS suggested a `one out--one in" team of combination OWS-ERR's, so that one individ- ual would continue developing job prospects in the field without interrupting full-time older worker services in the office. The OWS-ERR combination, when there is no other part-time OWS in the office, cuts down the amount of time available for older worker activities within the local office. The OWS duties statement contains in the Tob Summary section the wording, "responsible for giving functional -86- PAGENO="0309" AGE DISCRIMINATION IN EMPLOYMENT 303 supervision to local office services to older workers." However, it did not appear in any of the local offices visited that the Older Worker Specialist was actually giving functional supervision to the program, either by coordinating efforts of other staff members, by training other local office personnel in the program of services to older workers, or by assisting line supervisors in con- ducting periodic reviews of these services to determine improvements needed. Most Older Worker Specialists have so many other assignments in addition to their OWS duties, that the amount of time available to them for these activities would be very limited. 3. Employment Counseling Employment Counseling is one of the most pressing needs of older workers who are out of a job, when faced with the prob- lem of changing occupations or adjusting to different condi- tions in the kinds of work they know best. It is one of the most important services that local offices can provide older workers. Despite the need and importance of counseling for older workers, it appears that the volume of service is decreasing. In Fiscal 1964, older workers constituted 12.7 per cent of the employment service initial counseling load, a drop from 14.2 per cent during the preceding fiscal year. This drop undoubt- edly is due to budgetary restrictions. We presently have about 270 counselors; we estimate that almost 550 are required to meet total counseling needs, including older workers. Local office personnel believe that the older worker should be brought into counseling earlier, before he has exhausted his unemployment insurance and other resources, and that the counseling should be more intensive. His problem should be more fully explored: Does he want full-time employment, or part-time employment to supplement retirement income? What additional skills and interests does he have which can be built upon if he must make a change of occupation? How can he be motivated to take training, if it is needed? What infor- mation does he need on other jobs and on labor market condi- tions in general? Pre-retirernent. counseling is greatly needed but few communi- ties have active programs~, according to Older Worker Special- ists. They believe the California State Employment Service should work with educational authorities to develop and extend facilities for this type of counseling. An examination of successful programs should help to identify essential con- tent and effective methods so that the programs can be extended into communities not now providing this service. Many OWS s remarked on the need to approach pre-retirement counseling even at the high school level, in connection with -87- PAGENO="0310" 304 AGE DISCRIMINATION IN EMPLOYMENT vocational guidance. The young person starting out in life today should know that he may have to make a dozen or more major occupational changes during his working years. Many older workers do not need counseling in terms of the usual definition--choice of an occupation, adjustment to their occupation or job, or change of occupation. An unem- ployed older worker may need considerable reassurance about applying for work even in his usual occupation. He may find it hard to accept the fact that he may not command the same rate of pay on a new job. He may need intensive briefing on the labor market--the kinds of jobs available, where they are located, what they pay. Helping an older worker regain his place in the labor force may involve a great deal of time and the use of counseling techniques, but the activity may not fall into the present definition of counseling. The amount of time required for these services may be obscured in the morass of "services not elsewhere classified", or it may add to the placement unit time if indeed a placement does result. In any event, it is an expenditure of hours which present budget methods tend to bury. E. COMMUNITY ORGANIZATION 1. Community Involvement There is a dearth of community organizations with active programs to improve employment opportunities for older workers. Community advisory committees on employment problems of the aging were active in three large local offices; similar groups in several other communities were inactive. Older Worker Specialists have found it difficult to organize community groups or keep them going. One problem is to find specific local projects within the resources of the com- mittee, where accomplishments can be seen. Lack of funds is generally a problem. Local groups need help in formulating projects for which funds could be obtained from government or foundation sources. Several women's organizations--such as Altrusa, the Business and Professional Women's Club, the Soroptimists, and the YWCA--have cooperated in programs to help mature women re-enter the labor market. However, the activity varies from one community to another. "Job clinics" have been among the programs which these organizations helped to sponsor. Adult education authorities have been cooperative in providing staff and facilities for such projects and in setting up a vari- ety of short-term training classes. Senior Citizens' groups tend to be interested in recreation or problems of health insurance and pensions, rather than employment. Community Welfare Councils and similar organ- izations concerned with older people' s problems have not -88- PAGENO="0311" AGE DISCRIMINATION IN EMPLOYMENT 305 stressed employment. A representative of one Community Welfare Council in a large city expressed the opinion that older workers employment problems are outside the welfare field, and that the State Employment Service should take the initiative in organizing community efforts to deal with them. There is a question as to who in the CSES should spearhead attempts for developing active local programs to improve older workers' employment opportunities. Local offices feel hampered by limitations of time and staff. In the metropolitan areas, community groups may cut across local office bound- ary lines. Although communications may be maintained at the area level, some local Older Worker Specialists feel strongly that they need closer personal contact with key individuals and organizations. 2. Operations of a Community Employment Committee An example of an effective Older Worker Advisory Committee is the organization in Bakersfield, one of the few communities where such a committee is active. The Older Worker Special- ist in this local office has been extremely successful since 1959 in maintaining the interest of the group in the employ- ment problems of older workers. Basic local employment problems continue to be a lack of new industry, and the sur- plus of older workers with limited skills. The committee has no budget and there are continuing questions of ~twho. pays and who doesn't", in connection ~ith the preparation and - mailing of meeting notices, postage, phone calls, prepara- tion and duplication of programs, and other operating details. The local OWS feels that the committee must have a full-time co-ordinator if an effective, continuing, long-term program is to be developed and carried out. He has devoted much over- time to this activity. He feels that some means should be found to finance the nominal costs of operations and that the State should pay some of the expenses involved in speciaj activities such as the recent Older Workers' Workshop.!! The local committee was set up following previous attempts to secure co-operation through the Community Council and other local organizations. Follow-up on the recent workshop was planned largely at the instigation of a representative of one large employer who said, "If we don't do something, the government will tell us what to do." The local OWS feels that for any effective committee it is essential to: a. State objectives specifically. b. Develop a constitution and by-laws. c. Identify and engage in long-term projects. -89- PAGENO="0312" 306 AGE DISCRIMINATION IN EMPLOYMENT An effective part of the local committee program has been a Speaker's Bureau. Experienced public speakers who were members of the committee volunteered to appear before com- munity groups in support of services to older workers. Letters were sent to community groups, offering the speakers. Although this activity is not currently being conducted, it might be revived. Members of the committee have felt that a film could be useful. The local committee is interested in sponsoring something like the "Little House" project currently active in Palo Alto. Programs such as the `Family Aide" project and `Senior Repairman" program have been brought to the committee ` s attention with the reaction that there was no need in this community for such programs. The OWS feels that these projects might be again presented to the local committee. Problems related to retirement and pension plans might be of interest to the local committee as a long-term project. The OWS planned to bring these problems to the attention of his group. 3. Employer Policy Statement An "employer policy statement" on the employment of older workers was suggested by some local office staff members as a means of strengthening the efforts of a Community Advisory Committee. Such a statement should include a declaration that the company makes every effort to build a balanced work force and seeks to recruit individuals qualified for specific jobs with full consideration for their skills and abilities, and without regard to arbitrary factors such as age. The statement might cover: The company's willingness to assume its share of the total community responsibility for providing work consistent with efficient and profitable production. The company's agreement to consider older workers on an individual basis and to hire mature workers when they meet the full requirements of the job. The company's policy to assemble a work force of qualified persons who perform their individual jobs competently and who can maintain high quality and efficient production. A statement of this nature, prepared for statewide use, should be promulgated by the Citizens' Advisory Committee on Aging, -90- PAGENO="0313" AGE DISCRIMINATION IN EMPLOYMENT 307 the State Chamber of Commerce, State and local employment advisory committees, community groups, and all other avail- able outlets. 4. Special "Action Projects" Among numerous studies of older workers' employment prob- lems, two "action projects"--one in operation, the other a proposal by CSES staff--deserve special mention. The first project, which is currently underway in San Francisco, is beamed toward improving techniques for helping the "60-plus" worker find and adjust to a job. The second is a proposal for identifying the actual performance requirements of jobs in which many older workers could be employed with some relax- ation of hiring or performance requirements. a. Project "60" A research project in San Francisco was begun in 1964, to determine the employment needs and attachment to the labor market of "over 60" workers, and the special serv- ices, including training, which they require to "stay employable". About 2,000 job applicants registered in the San Francisco Employment Service offices are involved. Physical and mental examinations, needed social services, and job development will be provided through the cooperation of several community agencies, including the California State Employment Service. The project is expected to last about two years, and will be partially financed by OMAT and grants of funds from out- side sources. The research will go to such fundamental sociological questions as: What are the reasons for seeking work at this age? How willing are applicants to accept suitable jobs and how serious are their efforts to seek work? What are the employment opportunities for these older workers compared with their qualifications? How does the length and frequency of unemployment of older workers compare with that of younger workers? What health problems or handicapping conditions do these older workers have which are related to their employment potentials? For those who are seeking work to attain a satisfactory standard of living, what percentage of this desired living standard is currently being met by income from the Federal Social Security program, from private pension plans, and from other sources? The program should develop tested techniques that are effective in finding employment for workers in the older age groups, particularly group counseling and job devel- opment and training for groups, experience in how to staff and organize effective employment service for older people, realistic data on the cost of providing the kind of PAGENO="0314" 308 AGE DISCRIMINATION IN EMPLOYMENT employment service needed by people in their 60's, and guidance for other agencies and communities on ways to solve the employment problems faced by persons in the upper age groups which may be useful also in services to younger groups. b. Analysis of Actual Job Performance Requirements Examination of the real performance requirements of many jobs would reveal that physical demands and educational qualifications are often overstated. The requirement of a high school diploma, for instance, may be merely a screening device with little or no relationship to the actual job requirements. Similarly, physical demands may be set higher than necessary for successful job performance. It has been suggested by CSES staff members that the California State Employment Service and the Citizens' Advisory Committee on Aging develop a plan for making job analysis studies in selected plants of large employers who have already expressed an interest in hiring older workers and the physically handicapped to establish valid job performance requirements in occupations where older workers are employed in substantial number or where their skills could be utilized with some changes in hiring requirements. Firms such as Lockheed, Hughes and Litton have been among leaders in utilizing the hand- icapped and other special applicant groups, and their advice and experience would be extremely valuable in formulating plans for such studies and in enlisting the support of other employers. Trained job analysts of the CSES could be used to make the on-the-job studies. The Employment Service already has available hundreds of job specifications, as well as studies made in connec- tion with the Manpower Development and Training Act, which could provide resource material. Studies made in connection with the automation project should also pro- vide a background of guide material. However, it should be borne in mind that job specifications and job orders in most instances embody requirements as stated by the employer and may set a standard higher than needed for actual job performance. An essential part of the job analysis project proposed would be to secure the interest and support of employers and unions, who in the past have been somewhat resistant to any suggestion of job modification. The matter of job modification, in which the elimination of one or two tasks may remove hazards or physical requirements which might prevent older workers or the handicapped from performing the job, should be thoroughly reviewed with union leadership for possible impact on job pricing and wage scales. -92- PAGENO="0315" AGE DISCRIMINATION IN EMPLOYMENT 309 The job analysis approach to the establishment of true performance requirements might provide answers to such questions as: * Are we maintaining people on welfare who could perform successfully and support themselves if physical demands for their jobs were modified? * Are we retraining workers needlessly when with small changes in job requirements they continue to perform their present jobs or be moved to related jobs in the same plant or industry where further training is not necessary? These studies could also explore job relationships and lines of transfer which would make it possible to utilize the skills and abilities of older workers being displaced by automation or who can no longer function on their former jobs. At the State level, industrywide committees enlisting both management and unions could lend essen- tial support to these efforts and could encourage employers to find alternate employment within the plant, when possible, for older workers facing layoff because their skills are no longer in demand. They could also give needed impetus for on-the-job retraining. F. TRAINING 1. California Retraining Benefits Programs (SB-20) This allows claimants for unemployment insurance who are in declining occupations to enroll in approved courses of train- ing, if the training will make them able to compete again in the labor market. The Department of Employment determines the eligibility of the trainee. The claimant may receive the unemployment insurance benefits for which he is eligible during the training period. With additional financing for counseling, testing, selection and referral activities, this program could be extended to additional claimants. During 1963, only 2,746 individuals were trained statewide under this,~pjogram, of whom 512 or 18. 6 percent were older workers . A wide variety of training is available through adult educa- tion divisions, offering the trainee many vocational goals. However, training under this legislation has been spotty throughout the State. Some local offices reported only one or two trainees. In San Bernardino during May, four persons aged 45 or over were taking training under SB-20. Their changing occupational goals illustrate the movement out of aircraft and aerospace production line employment: -93- PAGENO="0316" 310 AGE DISCRIMINATION IN EMPLOYMENT Age & Sex Former Qccupation Goal Age 45, Stock Control Stenographer female Clerk Age 53, Electronic Bench Sewing Machine female Assembler Operator Age 45, Aircraft Assembly Nurse, Staff female Age 47, Jet Aircraft Accountant, male Serviceman General 2. Manpower Development and Training Act of 1962 The adequacy of allowances, eligibility provisions and pro- cedures of this Act have proven somewhat restrictive. Financing of training programs under MDTA has met with difficulties when funds were not available in time for schools to plan curricula and set up the training. Allowances have been inadequate to meet the needs of some family heads. It has been difficult in many local offices to bring together a large enough group to train, or to insure that jobs would be available when the training was completed. On-the-job training has been limited under MDTA, although it is provided for by the Act. During 1963, there were 6,095 referrals to MDTA training statew~,ç1e, of whom 1 , 102, or 18.0 percent, were aged 45 or over.a Of these I , 102 older worker referrals 957 enrolled in institutional training or 17 percent of the total in this type of training 51 enrolled in on-the-job training, or 26 percent of OJT trainees. For classes completed during 1963, there were 3,038 enroll- ees and 748 dropouts. Those 45 and over numbered 576 enrollees, or 28.9 percent of the total 125 dropouts, or 11.6 percent of the total The dropout rate for the 45-plus trainees was 21.7 percent as compared to an average for the entire group of 24.6 percent. Although the number of older trainees was small, they demon- strated a capacity to stay with the training slightly greater than that of the group as a whole. -94- PAGENO="0317" AGE DISCRIMINATION IN EMPLOYMENT 311 Typical courses in which older workers have participated include Licensed Vocational Nurse, Drafting, Custodian, Hospital Orderly, Stationary Engineer, and stenographic and clerical refreshers. The MDTA program should afford more opportunities following recent changes modifying eligibility requirements and per- mitting referral to on-going classes. Approval of basic education courses under MDTA should benefit older workers with literacy problems. Both MDTA and California retraining are too short to serve as a refresher in most professional occupations. Study for an advanced degree may take two or more years. Although there are scholarships available in some fields, the individual may not always be able to afford the additional expenses involved in a long period of training. Also, he may find much compe- tition to get back in the occupation, even after he has com- pleted academic training. There is a need for funds providing college and university training for professional individuals who lack current academic requirements for employment. 3. Area Redevelopment Act of 1961 This Act provides for establishing retraining classes in areas of substantial and persistent unemployment, if it will help workers acquire skills suited to new job opportunities being created under the Area Redevelopment Act. Tip to the present time, there has been little training in California under this Act. With the inclusion of the Oakland area under this pro- gram, there will be more ARA training. These possibilities should be explored for older workers., 4. Job Corps (Economic Opportunities Act) The possibility of employing older workers as teachers or in other capacities in connection with the youth camps estab- lished under this Act should be considered. This is an oppor- tunity to bring together the group which needs training with the older group whichhas the needed experience and knowledge. 5. Vocational Education Vocational education facilities need to be expanded and directed towards adults who lack education and skills which will help them to compete in todays labor market. The Governor, in his Economic Message for 1964, points out that although there were 23,700 apprentices in training in California, during 1964, this number should be four times as great to meet anticipated needs. In expanding apprenticeship programs, present age restrictions should be modified so that qualified older persons who need to change their vocations -95- PAGENO="0318" 312 AGE DISCRIMINATION IN EMPLOYMENT could benefit from this valuable program. At present, this training is directed principally towards persons under age 25, ignoring the potential of those aged 45 and older who may still be able to perform in the occupation for 20 years or more. In view of the limited number of apprentices now being trained to meet anticipated needs, the possibilities of this program for older workers should be re-examined. 6. Local Office Suggestions on Training Local office and other CSES staff made a number of sugges- tions on training for older workers, related to problems men- tioned in the preceding paragraphs, and to recommendations elsewhere in this report. Their suggestions are summarized as follows: a. Education authorities should develop and use training methods suited to older workers' needs * Courses should be kept as short as possible to reduce the period of time in which an older person must subsist on his retraining allowance, and also in recognition of the fact that many mature individuals learn rapidly and can build on a back- ground of experience which could reduce the length of the training. b. Structure more training for older people under MDTA, taking into account not only course content but also problems of personality and attitude including the older worker's difficulties in adapting to an unfamiliar school situation. c. Provide adequate training allowances to encourage older workers to enter retraining, particularly in cases where the training may be lengthy and may involve extra expense, such as transportation, child or nursing care for the family members, and movingcosts. Relocation allowances should be made available when necessary to encourage the movement of unemployed defense workers caught in mass layoffs to areas where employment opportunities exist. d. For older workers with limited literacy, short-term train- ing in basic reading, writing and arithmetic should be made available under MDTA or California retraining. Such training should not be tied in with training for a specific occupation. e. The California State Employment Service should endeavor to develop part-time supportive jobs, when possible, to help finance the trainees. f. Some means should be found to finance advance academic training of more than 52 weeks' duration for professional workers such as engineers, social workers, and others -96- PAGENO="0319" AGE DISCRIMINATION IN EMPLOYMENT* 313 who may lack the needed degree or certificate to remain in their occupation. The possibilities of modifying existing legislation, or providing other legislative means to finance such training, should be considered. In spite of continuing demands for teachers and social workers, the files of the Department of Employment contain hundreds of applications from individuals with long experience in these occupations who do not have a Master of Arts, Master of Social Work, or other advanced degrees essential to their continued employment in these fields. g. Tailor a short course for retired military personnel as Parole Officers or in work connected with the prevention of juvenile delinquency. Set up a program through the State colleges to prepare qualified military retirees for teaching. h. Provide daylight training classes for older women at adult education facilities, as many of them will not go out alone at night. This has been successfully accom- plished in a number of locations, such as Berkeley and other schools in the Bay Area. i. The CSES should cooperate with local schools in devel- oping "work exploratory" programs for older workers, to help them identify occupations and industries where they might find a place. Many older people know little about jobs outside the fields in which they have had experi- ence or training. Such courses should be short term and should constitute an orientation to the current labor market in terms of wages, hours, working conditions, and potential locations of employment. G. REFERENCES 1/ Page 69: President's Council on i~ging, Report to the President, Washington, D. C., 1964. 2/ Page 69: Appendix A. 3/ Page 72: Appendix B. 4/ Page 73: Appendix A. 5/ Page 74: Appendix A. 6/ Page 77: Transcript of Proceedings of the Assembly Interim Committee on Industrial Relations, Los Angeles, California, September 19-20, 1963. 7/ Page 89: The Older Workers' Workshop held in Bakersfield, - March 14, 1964, is reported in Chapter Four. -97- PAGENO="0320" 314 AGE DISCRIMINATION IN EMPLOYMENT 8/ Page 93: Figures on training under the California Retraining Benefits Program (SB-20) were taken from DE 3422 B reports received in the Department of Employment's Research and Statistics Section, January-December, 1963. 9/ Page 94: Source: Department of Employment Research and Statistics Report 513 M %2, July 21, 1964. -98- PAGENO="0321" AGE DISCRIMINATION IN EMPLOYMENT 315 ~HAPTER FOUR COMMUNITY WORKSHOPS ON EMPLOYMENT OF OLDER WORKERS A. PURPOSES OF THE WORKSHOPS As the result of initial planning by the staffs of the California State Employment Service, the Citizens' Advisory Committee on Aging, and the Institute of Industrial Relations, it was decided to design the workshops to serve the following purposes: 1. To seek basic information regarding the extent and kind of activities engaged in by those elements of the community most directly concerned or involved in employment of older people; 2. To encourage the review of existing public and private pro- grams already functioning in the field and an evaluation as to their performance and effectiveness; 3. To explore, principally with local business, industrial, labor and community leadership, their specific suggestions and ideas for ways to expand and improve present employ- ment opportunities for older people; 4. To compile information as to labor and management policies, as well as those of governmental agencies or programs, which have a bearing on hiring practices of older men and women; 5. To encourage analysis of what new or additional steps need to be taken through both administrative, legislative, or voluntary action that would result in improved employment opportunities for the older person. The workshops' main thrusts were to have a positive orientation which focused upon solutions and action rather than merely to identify the obstacles that exist with respect to employment of the older person. B. THE WORKSHOP CALENDAR PLACE DATE LOCAL SPONSORS BAKERSFIELD March iL', 1961~ Kern County Advisory Corn- mittee for Mature Workers EUREKA April 16, 19614 Division of Social Sciences, Humboldt State College LO~ BEACH May 28, 19614 Senior Citizens Committee, Long Beach Community Council, Long Beach Chamber of Corn- merce, Division of Business and Technology, Long Beach City College -99- 85-376 0 - 67 - 21 PAGENO="0322" 316 AGE DISCRIMINATION IN EMPLOYMENT PLACE DATE LOCAL SPONSORS OAKLAND May 21, 19614 Industrial Development Commission, City of Oakland PASADENA June 10, 19614 Jobs After Forty Committee of Pasadena SACRA1~ENT0 May 5, 19614 Sacramento City-County Chamber of Commerce SAN DIEGO May 8, 19614 San Diego Personnel Management Association, San Diego State College, Community Welfare Council of San Diego, San Diego County Labor Council, International Association of Machinists, University of California Extension, San Diego VAN NDYS April 15, 19614 San Fernando Valley Committee for the r~iature Worker C. WORKSHOP HIGHLIG~T~ 1. Bakersfield Mr. Karl Kunze, Personnel Director, Lockheed Aircraft Company, and Assemblyman Joseph M. Kennick were the principal workshop speakers. In his keynote address, Mr. Kunze presented a thoughtful summary of recent studies conducted on the employability of older people and described the experiences of the Lockheed Company as a major employer in employing and hiring the older person in various occupa- tions. He emphasized that Lockheed's experience had not shown older workers to be inflexible to transferring to various jobs. He urged workshop participants to consider ways to develop more accurate information on the characteristics of older workers, improved vocational counseling of older dis- placed workers, and more specific information on occupations suitable for older workers within the community. Assemblyman Kennick' s address Our Inescapable Duty to End Discrimination Against Older Workers' emphasized the inter- est of the Legislature to have a program of action developed from the study and included some specific proposals for attacking the problem of age discrimination in employment. (See Appendix). Main proposals developed by discussion groups of the work- shop stressed the importance of broader publicity and educa- tion of the general community regarding the qualifications of older workers; developing new fields of part-time employment -100- PAGENO="0323" AGE DISCRIMINATION IN EMPLOYMENT 317 for retired persons; broader community-based programs of counseling and training and retraining for the unemployed older worker; and a more concerted effort to inform employers of the desirability of employing qualified mature older workers. 2.. Eureka Principal speakers were Mr. Samuel S. Johnson, President, Jefferson Plywood Company, Redmond, Oregon; and Mr. Paul W. Little, Chief, Public Employment Offices and Benefit Payments, California Department of Employment. Mrs. A. M. G. Russell, Chairman, Citizens Advisory Committee on Aging, summa- rized the results of four group discussions in a final address. Mr. Johnson's keynote address was provocative and stimulat- ing since he cautioned against the development of large-scale programs to assist the older worker operated by government but, instead, encouraged government to request both labor and management to remove existing obstacles that discriminate against the older worker such as arbitrary upper-age restric- tions, misconceptions about the work characteristics of older people, and inflexible public insurance and private pension plans that mitigate against employing older people. Mr. Little's address was a clear description regarding the pro- blems faced by workers 45 and over in California's labor force and the role of the Department of Employment in meeting these problems throughout California To improve the Department's ability to meet its present responsibilities to older workers, he mentioned the need for industry to develop some system for "early warning" when jobs are to be eliminated and re- duced, improved counseling and guidance services to the older worker by the Department, and improved surveys of labor market areas in the State that provide clearer, current and projected information on job trends, job obsolescence, new jobs, and skill requirements, so that manpower needs can be merged with economic development. Several worthwhile proposals emerged from the discussion groups of the workshop. Among these were possible legisla- tion to make apprenticeship programs available to older work- ers needing to enterS new occupations and for relocation allowances of workers involved in retraining programs with re- location to be a choice of the individual and not by force of law. In addition, there were general recommendations for more realistic physical examinations with respect to older employees rather than one fixed standard of physical capacity that prevents selective placement of new employees according to physical ability and the need for a local skill survey of the Eureka labor market area which could be a useful base in find- ing solutions ~to the employment problems of older workers. It was also suggested that a community committee be estab- lished to work'with the Eureka Employment Service Office in an effort to educate and encourage hiring of older people. -101- PAGENO="0324" 318 AGE DISCRIMINATION IN EMPLOYMENT 3. Long Beach Mr. James C. 0' Brien, Executive Director, Retired Workers Committee, United Steelworkers of America, AFL-CIO, Washington, D.C., keynoted the Long Beach Workshop. He presented the experiences and thinking of the United Steel- workers regarding its recent contract with the steel industry as it affects retirement policies and programs and employment of the older worker. He urged consideration and development through both collective bargaining and legislation of portable pension plans to insure greater mobility of the labor force, joint labor-management programs of preretirement education to aid in the often difficult transitions from a work to retired status, and implied that part of the concern with employment of the older worker is the fact that America is a `work- oriented" nation which has not yet been able to satisfactorily adjust to the use of leisure time. The Long Beach Workshop included discussion groups on the subjects of counseling and retraining, job development and the local economy, and insurance costs and the older worker, and preparation for retirement. Each discussion group devel- oped specific recommendations including such proposals as modification of the present retirement test of the social secur- ity program as an incentive to those wishing to continue work, encouragement of portable pension programs, study of work- men's compensation and disability insurance claim experiences of older workers, legislative action to give direct responsibil- ity to public schools and colleges to develop counseling pro- grams for older workers, improve programs of public education and information for both employers and employees regarding the abilities of older workers, community encouragement and assistance to the development of small businesses operated by older men and women, similar support of part-time employ- ment for. semiretired or retired persons interested in employ- ment and broad action at the community level in developing suitable preretirement programs. 4. Oakland This workshop reflected in its content and participation the sponsorship of the City of Oakland and its Industrial Develop- ment Corporation which resulted in excellent attendance from key management and industrial leadership in the East Bay Area. Mr. Curtis B. Gallenbeck, Marketing Manager, School System, Inland Steel Products Company, Milwaukee, Wisconsin, and Mr. Nathaniel Brooks, Consultant, Older and Retired Workers Department, International Union of United Automobile, Aircraft, and Agricultural Implement Workers of America, Detroit, Michigan, were the principal speakers. Mr. Brook's address "A Model for Action on All FrOnts to Improve and Expand Employment Opportunities" was one of the most de- tailed presentations of specific steps that might be taken in developing sound employment policies and opportunities for -102- PAGENO="0325" AGE DISCRIMINATION IN EMPLOYMENT 319 older people to be found. It is included almost in its entirety elsewhere in this report. Mr. Gallenbeck listed, for workshop participants, the fundamental problems concerning employment of older workers and described several specific steps which any community could take in maintaining and increasing em- ployment opportunities for their older work force. The Oakland workshop also featured five group sessions asking: - `What the Community Can Do?" - "What Can Employers Do?" - "What Can Organized Labor and Individual Workers Do?" - "What Employment Services and Labor Market Information Is Needed?" - "What Basic and Vocational Education Is Needed?" Due to the breadth of proposals developed in these workshops, the excellent summary made during the final session of the workshop by Dr. Margaret S. Gordon, Associate Director, University of California, Berkeley, is included in its entirety in the Appendix. 5. Pasadena Held under the auspices of the Jobs Over Forty Committee of Pasadena, this workshop's main highlights were an excellent keynote address by Mr. R. N. Rives, General Personnel Manager, Northern Area, Pacific Telephone and Telegraph, and four group sessions on "What Is the Local Experience in Hiring the Older Worker". "The Qualified Older Worker", "Are There Cost Factors That Militate Against Hiring the Over 40 Worker", "Is There a Need for Community Programs to Promote the Acceptance of the Older Worker", and "What Changes or New Legislation Should Be Recommended to Encourage Older Worker Employment, or Is Education and Research the ~Answer?". The keynote address spotlighted four problem areas which industry needs to give attention in employing older workers: a. Overcoming management resistance to hiring the older worker; b. Recognizing the older employee's need for training and retraining; c. Supporting counseling services by community agencies when there is a conflict between the job and the applicant's domestic situation; and -103- PAGENO="0326" 320 AGE DISCRIMINATION IN EMPLOYMENT d. Examination by management of current job requirements, procedures, and personnel and training policies to make sure that their standards are not geared solely to younger workers. The workshop's group sessions produced a number of ideas and proposals including more emphasis on helping older workers find full- or part-time employment in retail trades, selling, and seasonal work; support for a study to determine if private insurance or pension costs could not be arranged on an industry-wide basis; continued emphasis and strengthening of training programs and counseling services; support of addi- tional training and counseling services for older persons by the Department of Employment and public schools; and a legislative appropriation for a comprehensive study of the actual costs incurred by employers when hiring the older worker. Assemblyman Frank Lanterman of Canada concluded the meeting with a brief statement reflecting interest of the Legislature in finding workable ways to help older workers maintain or find employment. 6. Sacramento Held under the local cosponsorship of the Sacramento City- County Chamber of Commerce, this workshop featured informal discussion groups that examined job opportunities for older workers in professional, technical, and management fields, the clerical and sales fields, and skilled and unskilled produc- tion jobs. As in other workshops, there was recognition of the need for broader public and employer education about older workers, more adequate economic and social policies regard- ing eventual retirement, examination by employers of hiring policies which may arbitrarily discriminate against workers because of their age, and some feeling that smaller industries and concerns offer better employment prospects, in general, for the older workers who must change their employment. Another focus of the workshop was on management-labor at- titude s towards the older worker. Mr. E. P. James, Manager, Professional Placement, Industrial Relations Division, Aeroj et- General Corporation, Sacramento, discussed the topic, "Man- agement Looks at the Older Worker", and Mr. Don Vial, Research Director, California Federation of Labor, AFL-CIO, San Francisco, discussed "Labor Looks at the Older Worker". Both speeches are included in the Appendix of the report. 7. San Di~gp Under a broad spectrum of community cosponsorship, and held at La Jolla Campus, of the University of California, the San Diego Workshop was one of the most comprehensive of the entire series. Main speakers included Mayor Frank Curran of San Diego; Dr. Oscar Kaplan of San Diego State College, Member, Citizens' Advisory Committee on Aging; Mr. Gerald -104- PAGENO="0327" AGE DISCRIMINATION IN EMPLOYMENT 321 Parrish, Regional Director, U. S. Employment Service, Department of Labor, San Francisco; Mr. James Sweeney, Secretary, Employers Benefit Committee Pacific Telephone Company; and Mr. Robert Spears, Vice President, San Diego Labor Council. In addition, each of the eighty workshop participants were provided with an excellent analysis of the income, occupational, and educational characteristics of older people living in the San Diego County area. San Diego's workshop featured four group sessions, each of which were assigned the general topic "What Are the Employ- ment Problems of Older Workers in San Diego County and What Are Some Suggested Solutions to These Problems". In- asmuch as possible, each workshop was composed of repre- sentatives from management, labor, employment services, and community organizations. Each session developed specific recommendations for community, employer, and employee con- sideration. In addition, specific recommendations were devel- oped regarding desirable expansions of the present services of the State Employment Service to older workers. 8. Van Nuys The Van Nuys Workshop featured discussion of a wide range of topics and proposals for action. Principal speakers in- cluded Mr. Karl Kunze, Director of Personnel, Lockheed Air- craft; Assemblyman Charles Warren of Los Angeles; and John Allard, Coordinator, Region Six, United Automobile Workers of America, Los Angeles. Dr. Abbott Kaplan, Director, Extension Service, University of California, Los Angeles, summarized the workshop's findings in the final general session. The speakers alone produced several highlights. Mr. Kunze's remarks debunked the emphasis placed on chronological age in hiringolder people and said employers should take five factors of "age" into consideration in hiring, namely, physical, emotional, educational, intellectual; and chronological age together. Assemblyman Warren speaking on "Legislative Interest In the Older Worker" presented several proposals for consideration in the workshop. He also urged workshop parti- cipants to "reject no idea - the Legislature wants a series of alternatives to consider". Mr. Allard suggested that the pressures on older workers to continue employment were largely resulted fears about economic insecurity upon retirement and in adjusting to retirement itself. He urged consideration of preretirement preparation programs, phasing out of retirement, and improved public and private retirement income and health care plans as ways of alleviating these fears. Four group sessions were held as part of the workshop. One session titled "The Qualified Worker vs. Pension and Insur- ance Costs" voted to recommend that the Legislature appro- priate funds for a comprehensive study of the actual pension -105- PAGENO="0328" 322 AGE DISCRIMINATION IN EMPLOYMENT and insurance costs employers face in hiring older persons. Also, there was concern expressed in a session on "Counsel- ing and Retraining" on the need to reexamine present retraining programs as there is some likelihood that we might be training people for some jobs that will not exist by the time retraining is completed. Another proposal called for new ways to employ older people in such fields as health, recreation, and welfare, since traditional types of work are declining, but great needs exist in these fields. Business and labor participants also called for an accelerated education program on the problems of the older worker directed towards both employers and employees. In, perhaps, the most provocative summary of the entire work- shop session, Dr. Kaplan presented some sweeping new con- cepts in dealing with unemployment. He stated that the problem, as it applied to all age groups, should be approached by developing immediate, short-range, and long-range obj ec- tives. He predicted that the long-range objectives might have to be based on such future possibilities as a workweek of from 10 to 15 hours, a much smaller work force than exists now, perhaps made up of only ten percent of the potential labor force but capable of producing all the goods and services needed by the economy. If these future conditions emerged, it was felt that society should be prepared to change its present concepts of work and create new jobs that would engage most people in jobs of "services to society", many of which would include services that either could be performed by or are needed by older people. D. PROPOSALS FOR ACTION The following proposals are a composite of the major themes which emerged from the entire series of workshops. In presenting them, no effort is made to suggest that there was unanimous consent of individual proposals by workshop participants. Yet, there was general agreement that the areas described below are the crucial areas for future study and action if any realistic expansion of employment opportunities for older workers in California is to occur. Workshop participants felt that it is feasible to undertake immediate changes in both current policies and programs affect- ing employment of older workers. Among the major areas given consideration in workshop discus- sion were: 1. The Effects of Public and Private Pension and Insurance Programs A persistent theme in nearly every workshop was that certain aspects of public and private pension and insurance programs are militating against the employment of older persons. -106- PAGENO="0329" AGE DISCRIMINATION IN EMPLOYMENT 323 Major concern and consideration was given to the development of private pension arrangements that contain vesting rights that would protect the equity of the employee and enhance job mobility and transferability. Proposals were made that called for standardization of private pension plans under legislation that would establish definite standards for pension plans in California and also permit pooling arrangements by insurance carriers to spread whatever costs effects a single company might experience in hiring an older worker as needed incen- tives. Other proposals stressed legislative consideration of such approaches as legislation topermit small employers to pool pension and other insurance costs; to make it possible for the individual older worker to pay for the difference in costs to the employer, if such costs can be established; or for the specific creation of reinsurance programs funded by govern- ment to pay such costs; again as an incentive to hiring the older worker. Also, there was strong concern about the obstacles to continuing employment caused by private pension plans which forbid a retired person to engage in any employ- ment deemed competitive to the business from which he has retired or by pension plans that require mandatory retirement prior to age 65, thus forcing the individual to seek employment elsewhere and/or accept actuarily reduced Social Security benefits. While realizing that the merits of the above approaches will require possible refinement and study, there was a general consensus that the Legislature should authorize funds for a scientific and thorough study of the actual cost figures in providing private pension coverage and benefits to the State's older work force. This would give all concerned the type of factual base needed to resolve the "half-myth - half-facts" aura which now surrounds this issue to such an extent. Modification of existing public insurance programs were also proposed in order to provide a more favorable climate of op- portunity for the older and retired worker. The proposal was made that it is urgent for Congress to provide for a revised concept of the retirement test and the earning limitation for persons receiving Social Security benefits. It was felt that this concept should, at least, permit the worker receiving Social Security to bring his income up to the level of a modest and adequate standard of living. On the State level and in the area of Unemployment Insurance, improvements were felt needed to better serve the needs of older workers and others vtho are involved or need to be involved in training or retrain- ing programs to reenter employment. On this point, such measures were proposed as broadening of training courses to include basic education and academic courses rather than be limited exclusively to vocational course s, extension of weekly UI benefits throughout the period of training, and some system of incentive payments over and above the regular weekly benefits to those individuals engaged in training programs. -107- PAGENO="0330" 324 AGE DISCRIMINATION IN EMPLOYMENT Another proposal regarding Unemployment Insurance was to permit employers to employ any worker 45 or over on a 30-day trial basis without adverse effect on the employer's experience rating or unemployment insurance reserve account. It was felt that this would obviate against adverse experience rating by employers willing and wanting to employ older persons, but at the same time, avoid penalty to the employer where the employee is discharged through no fault of his own or the employer's during the trial period. In Workmen's Compensation, several changes were proposed. Growing out of an extensive discussion by labor and manage- ment representatives in one workshop was an interesting pro- posal to change the basic concept of the present "second injury" provisions of the program as they relate to the hiring of an individual who has been previously injured. The pro- posal would entail the underwriting of the costs of physical examinations incurred by employers on the part of such appli- cants for employment; the changing of the present law to permit the employee to waive benefits under the "second injury" provisions; this protection would be replaced by eligi- bility for such benefits, if reinjured, from a special fund operated with State funds. It was argued that such a plan would provide a real incentive to employers to hire older workers with previous injuries, and, at the same time, provide continued protection in the event of later injury or disability. 2. Training, Retraining, and Counseling Proposals made clearly indicated the need for much broader programs of training, retraining, and counseling services than now exist to help older people maintain or find new employ- ment. Many believed present programs and facilities are not geared as much as they should be to the individual needs of older people for such training or the needs of employers or a rapidly changing economy. There were several suggestions that a real upgrading of the content of existing training or retraining programs could be accomplished for older workers if fuller use was made of educational programs in public schools and colleges and of adult education programs. Simi- lar suggestions were made regarding modification of certain requirements which act to restrict older people from enrolling in certain educational programs, to develop new and appropri- ate classes for older adults, or the employment of qualified retired persons as instructors in such programs. There was considerable concern that steps be taken to provide a more acceptable climate for retraining, especially on the part of unemployed older men and women who have major family responsibilities. This concern expressed itself in such pro- posals as supplementation of training payments under either Unemployment Insurance or expansion of the Manpower Development and Training Act, relocation allowances after -108- PAGENO="0331" AGE DISCRIMINATION IN EMPLOYMENT 325 training, or incentive payments or tax credits to employers willing to provide on-the-job training to older persons. Improved counseling services to the older.worker, on the part of industry, labor, the public schools, and such state agencies as the Department of Employment and Department of Education was considered essential to help older workers and employers faced with changing job requirements or demands. As was the case with retraining, there was general consensus that pre- sent counseling methods and services should be upgraded with emphasis on both individual and group counseling and closer liaison between counselorsand potential employers. 3. Improved Public Understanding and Broader Public Information About the Employment of Older Persons The need for improved public understanding of the abilities and potentials of older workers was underscored as basic to any solution to the many complexities of the employment problems of the older worker. It was consistently pointed out that many of the barriers and obstacles to hiring the older worker are based upon the generally held beliefs that older workers lack flexibility, are difficult to train, are slower, cannot meet physical requirements of a job, or are difficult to supervise. It was felt that the basis for such beliefs was often due to misconceptions and broad generalizations that were not grounded in fact. To meet this problem, there was consistent support for develop- ment of broad programs of general and specific education and information by government, labor, and industry to continually disseminate factual information based on valid, research and study that could be used to break down many of the myths and stereotypes that adversely act against the older worker. Al- though there was some division of opinion regarding whether the primary leadership for improved understanding should rest primarily with government or by joint management-labor cooperation, it was generally held that both labor and manage- ment must play a major role to generate the needed support and understanding at the community level. The basic elements of a broader educational and informational program were viewed as including more current and precise data and reporting on job trends, new jobs, job obsolescence, and skill requirements as major tools needed for more effec- tive counseling and placement; studies and research on a carefully designed basis regarding the actual job performance of older workers; and development of a series of proficiency, intelligence, achievement,, and personality tests that have been standardized on the basis of successful job performance rather than on solely academic standards for use by employers in testing the abilities of older applicants and employees. To give immediate impetus to a broad scale program of public education, a proposal was made for legislation to establish -109- PAGENO="0332" 326 AGE DISCRIMINATION IN EMPLOYMENT a state committee to solely focus on the problems of the older worker and encourage appropriate action toward their solution by labor, management, and communities acting in cooperation with government. 4. Strengthening of Public Employment Services to the Older Worker A wide range of suggestions and proposals were made to strengthen the existing role and services to the older worker provided by the California Employment Service and the Depart- ment of Employment. Although there were different degrees of support, specific proposals made included suggestions to upgrade and improve the present status and qualifications of Older Worker Specialists, an increase in the number of Older Worker Specialists, to provide more comprehensive and individual job counseling and placement, more extensive list- ing of job opportunities available to older people by the Department and local Employment Service offices, and funds for the. establishment of strengthened activity and projects by theDepartment to increase the opportunities in part-time employment for persons primarily 60 years of age and over. Also, it was proposed that the present legislation which is designed to combat discrimination in employment be strength- ened by the establishment of a formal conciliation service within the Department where complainants and employers can be brought together when charges of alleged discrimination are made to settle differences. Another proposal was legislation to eliminate date of birth or age from application blanks. It was argued that often the older worker is screened out on the basis of age alone and if such factors were eliminated, pros- pectiv~ employers would hire or reject on more valid factors than age. 5. Management-Labor Action There was acceptance that the basic decisions regarding the employment and hiring of older workers essentially rests with management and labor, and basically, in all instances, with employers whether in the fields of private or public employment. The suggestion was frequently made that employment opportuni- ties for older workers could be substantially improved by estab- lishment of better understanding between management and labor in thi~ area. Joint action by both around common objectives was viewed as preferable to unilateral action by either that can produce friction, misunderstanding, and rejection of a specific policy affecting older employees. The suggestion was made for the Legislature to invite both labor and manage- ment,. in cooperation with other interested groups, to form joint committees at a community level to explore together the advisability of establishing maximum and minimum educational requirements, physical requirements, and the actual duties of each job in the community. Many felt that this approach would -110- PAGENO="0333" AGE DISCRIMINATION IN EMPLOYMENT 327 be a major tool in meeting the manpower needs of a community on a rational basis. Also, it would permit the redesigning of some jobs to make better use of the productive skills of the older worker and also permit clearer identification of training and retraining needs in individual companies or industries. 6. Expansion of Part-Time Employment Opportunities for Older Persons In a majority of workshops, there was substantial support that increased job opportunities could and should be developed for older persons in the field of part-time employment. It was felt that a strong emphasis in this area alone could generate many additional job opportunities for older persons, especially those in or nearing retirement. This expansion was seen as possible in the service and sales trades, in household services, and in the fields of health, education1 and recrea- tion. As an example, it was held that training older persons for jobs of lesser skills in several fields of professional services could release professionals in these fields of certain nominal duties and allow them to use their full time on their professional duties and tasks. A specific suggestion was for training and employing older persons for part-time work in services needed by many older people themselves such as homemaker services, home health aides, nursing home aides, or recreation and crafts instructors. Another suggestion was part-time employment that would preserve the trades and skills of the past, but at the same time, meet a growing con- sumer demand for custom-made products. This objective of increased part-time employment opportunities was related as appropriate to such possible factors as a possible shorter workweek or weekday in future years. This goal was based on the recognition that many persons either economically or psychologically need to work even after normal retirement; as a possible part of a planned program of "phased retirement'; and the increasing demands for personal, health, education, recreation, and welfare services by California's rapidly expanding population. Among measures proposed to stimulate such a program in California were legislation and financing of a special project within the State Employment Service to specifically develop part-time employment opportunities for persons 60 and over; grants to nonprofit agencies to discover and develop part-time jobs in private business and industry, government, and educa- tional institutions; reduction of unemployment insurance and other payroll taxes on employers hiring part-time workers aged 50 and over; and establishment by the State Employment Service of a statewide clearing house for part-time jobs to be made available to all interested communities and organizations. -lii- PAGENO="0334" 328 AGE DISCRIMINATION IN EMPLOYMENT 7. Attitudes Towards and About Retirement Certain workshops directly related some of the pressures for employment by many older workers to the concerns of many about financial security, personal adjustment, and purpose in retirement. There was agreement that often such concerns were valid in view of the growing use of fixed retirement and the lack of more flexible policies other than those based on chronological age alone for determining the time of retirement. There was an accompanying opinion that these pressures could be lessened if. policies were developed that permitted a gradual transition from work to retirement, accompanied by a system- atic program of retirement planning, education, and counsel- ing about the various aspects of retirement. A basic point made was that retirement must include adequate financial security and be made more attractive by creating for the retiree a role and place in his community. The opinion was expressed that proper planning and support of both preretirement preparation and suitable po~t-retirement activities should be more broadly encouraged than it is now by employers, labor, and government. It Was felt that a basic responsibility in this area rested with the State1s adult education system, and one workshop proposed that the Legislature request the State Department of Education to undertake the development of curricula that would meet this need, and that courses devel- oped as a result be implemented at the earliest date in co- operation with local adult education programs and other key groups at the state and community levels. 8. Community Support and Organization Virtually every workshop felt that community support or under- standing was vital to any specific solution to the expansion of employment opportunities for Older persons.. Considerable con- cern was expressed regarding the lack of an adequate commun- ity organization at the local level which could serve to mobilize community support and understanding. The proposal was made that such an organization should consist primarily of members drawn from employers, labor, public and private employment services, older persons themselves, and those involved in training programs. A specific recommendation was that a position should be established within the Employment Service which could exclusively function to organize such com- munity committees and work cooperatively with them in en- couraging improved programs of education, information, and job developments for older persons. 9. Other Ptoposals and Suggestions Many other specific proposals and suggestions were weighed in individual workshops. Several are related to the areas already described, including consideration of the possible transfer of basis of protection in Workmen' s Compensation -112- PAGENO="0335" AGE DISCRIMINATION IN EMPLOYMENT 329 from private carriers to a state administered fund; that job retraining programs should be a main subject of negotiation in collective bargaining; that the problem of older adults who withdrawfrom job retraining programs be the subject of intensive study to ascertain the actual reasons for withdrawal; that the present upper-age limits in apprenticeship training be eliminated, where and when possible; that a "manpower obsolescence" allowance be established, and with such an allowance, companies involved provide training and retraining of the present work force; and that Legislature strongly affirm their support of the principle that all persons 65 and over, who are able and want to work, be permitted that opportunity. -113- PAGENO="0336" 330 AGE DISCRIMINATION IN EMPLOYMENT PART FOUR APPENDICES -114- PAGENO="0337" AGE DISCRIMINATION IN EMPLOYMENT 331 APPENDIX A EMPLOYMENT WORKSHOP SERIES SELECTED SPEECHES -115-- 85-376 0 - 67 - 22 PAGENO="0338" 332 AGE DISCRIMINATION IN EMPLOYMENT 1. "OUR INESCAPABLE DUTY TO END DISCRIMINATION AGAINST OLDER WORKERS by Assemblyman Joseph M. Kennick, Long Beach at Bakersfield Workshop, March 14, 1964. 2. `EXPANDING EMPLOYMENT OPPORTUNITIES FOR THE OLDER WORKER IN NORTHERN CALIFORNIA" by Samuel S. Johnson, President, Jefferson Plywood, Redmond, Oregon at Eureka Workshop, April 16, 1964. 3. "EMPLOYMENT OPPORTUNITIES FOR OLDER PERSONS IN THE CONTEXT OF THE EXPANDING ECONOMY OF THE STATE OF CALIFORNIA' by Paul W. Little, Assistant Director-Manpower, California Department of Employment at Eureka Workshop, April 16, 1964. 4. "SUMMARY OF EUREKA WORKSHOP" by Mrs. A. M. G. Russell, Chairman, Citizens' Advisory Committee on Aging, at Eureka Workshop, April 16, 1964. 5. "A MODEL FOR ACTION TO IMPROVE AND EXPAND EMPLOYMENT OPPORTUNITIES FOR OLDER PEOPLE" by Nathaniel Brooks, Consultant, Older and Retired Workers Department, International UAW-CIO, Detroit at Oakland Workshop, May 21, 1964. 6. "SUMMARY OF OAKLAND WORKSHOP" by Dr. Margaret S. Gordon, Associate Director, University of California, Berkeley at Oakland Workshop, May 21, 1964. 7. "LABOR LOOKS AT THE OLDER WORKER" by Don Vial, Research Director, California Federation of Labor, AFL-CIO, San Francisco at Sacramento Workshop, May 5, 1964. 8. "MANAGEMENT LOOKS AT THE OLDER WORKER" by E. P. James, Professional Placement Manager, Aerojet General Corporation at Sacramento Work Shop, May 5, 1964. 9. "THE AGE FACTOR AND EMPLOYMENT" by Mr. Karl Kunze, Personnel Director, Lockheed Aircraft Corporation, at both Bakersfield Workshop and Van Nuys Workshop, March 14 and April 15, 1964. 10. "SUMMARY OF SAN DIEGO WORKSHOP" by Community Welfare Council at San Diego Workshop, May 8, 1964. -116- PAGENO="0339" AGE DISCRIMINATION IN EMPLOYMENT 333 `OUR INESCAPABLE DUTY TO END DISCRIMINATION AGAINST OLDER WORKERS" by Assemblyman Joseph M. Kennick, Long Beach As I read the list of authorities who have come here to address you upon the various phases of the problems of the older worker, and note the leadership provided by the workshop held this morning and yet to be held this afternoon, I find myself asking: "What am I doing here anyhow?" It couldn1t be my age, naturally, and I make no pretense of being an authority. Presumably, then, I am here because of my long-standing dedication to the social and economic well-being of my fellow man; and because, from my first term in the California Legisla- ture until now, I have sought to translate this concern into legislation and, in every possible way, to encourage constructive governmental and community action. It was in keeping with this line of thought that I introduced in the 1963 Session of the Legislature, House Resolution Number 77, directed to the improvement of employment opportunities of older per- sons. This resolution, pursuant to the terms of which we are meeting here today in this first of a series of workshops to define and seek solutions to this pressing problem of our time, reads as follows: "Relative to improving employment opportunities of older persons `WHEREAS, Legislation is now pending before the Congress of the United States whiOh would provide new grant programs for ex- perimental and demonstration projects to stimulate employment op- portunities for older persons; and "WHEREAS, In California, it is known that many older appli- cants seeking employment are not placed in proportion to the number of those needing employment; and "WHEREAS, There is a need for current data concerning employer and union attitudes and action in providing employment for older workers; and "WHEREAS, Such data would be valuable in the stimulation of community understanding and support of employment opportunities for older persons; now, therefore be it "RESOLVED BY THE ASSEMBLY OF THE STATE OF CALIFORNIA, That the Departmentof Employment and the Citizens' Advisory Corn- mitteeon Aging are requested to undertake jointly a study of how and where employment opportunities for older persons may be improved and expanded throughout the State, and to report their joint findings and recommendations thereon to the Assembly on or before the fifth legislative day of the 1965 Regular Session." That resolution was passed and that is the task before us today. And this will remain our task until hammered out upon the anvil of creative exploration and fitted into the structure of our political and economic life. -117- PAGENO="0340" 334 AGE DISCRIMINATION IN EMPLOYMENT To rephrase our problem in simple terms so that we may hammer upon it more intelligibly, we are dealing with clearly discernible economic discrimination against those among us who have the good fortune to live beyond that so often saluted annual point in life's unfoldment when we keep telling ourselves life is supposed to begin. And, since this discrimination occurs without respect to race, religion, or the country of origin involved, we should be able to analyze it and to seek ways and means of resolving it dispassionately. Legislatively, we have done relatively little to combat employment discrimination because of age. The Legislature, it is true, did take a bold step in the right direction - but only a step - when in 1961 it passed Assembly Speaker Jesse M. Unruh's "Employment for Older Worker's Act", now codified as Chapter 9.5 of the Unemployment Insurance Code, making it unlawful for employers of six or more per- Sons to discriminate, solely on the basis of age, in hiring, firing, or promoting persons between the ages of 40 and 64. That was it. We took a step and then sat down to contemplate our temerity, and there, except for my 1963 resolution to conduct these studies preparatory to more effective measures, legislative and other- wise, we still sit. I should note, of course, that programs are being conducted by various administrative agencies of government, partic- ularly the Department of Employment - commendable programs - giving invaluable service to older workers and their employers. Commendable efforts, too, have been and are being made by union labor and employer contracts which seek to retain senior citizens in employment by pro- tecting seniority rights. This latter program, as helpful as it may be, in only a finger-in-the- dike measure in that less than 50 per cent of our older workers are covered by either union contracts or the equivalent protection of civil service rules. It is limited in its effectiveness, also, to retaining the already employed beyond the age of no return. It does nothing for those seeking initial or re-employment. No. Much more needs, and must yet be done in the interest of fair play to all our people. An examination of the reasons offered by potential employers for their reluctance to hire older citizens, while indicating some islands of fact, also discloses a sea of myth. Older workers in general, they say, are physically incapable of performing as efficiently on the job as those in the younger age brackets. Making due allowance for specific, isolated functions which make primary demands upon physi- cal strength rather than skill, coordination and know-how, this just is not so, and many studies are on the books to prove it not so. "There is always a greater risk of either industrial or nonindustrial disability on the part of older workers", the employer is prone to say. Statistics say otherwise - and I do not mean deliberately manipulated statistics when I say this. In terms of nonindustrial disability, the older worker has fewer "short.' term" disabilities than the average citizen. This is particularly true in the case of women workers. It is true, of course, that the older worker, by the very nature of things, is more liable to long-term or -118- PAGENO="0341" AGE DISCRIMINATION IN EMPLOYMENT 335 fatal disabilities than the average worker, but I hasten to add that when we concede this fact we also must note that it is applicable only to those at the top of the older worker category; and, further, we must add that, under most contracts and sick leave policies, this factor is of relatively little significance to the employer involved. Another often stated but unsubstantiated allegation is that older workers are unable to adapt to new production methods, that only youth is capable of change. Such presumed proof as is preferred usually consists of citing isolated cases which, upon examination, proves to involve other factors than the age Of the employee in ques- tion. Again, when older workers are evaluated as a group rather than by these exceptional instances, study after study has shown this in- ability to adapt ideas to be largely a myth composed of prejudice rather than fact. Whether myth or fact, however, is beside the point. These and other presumed reasons result in a high level of continuing unemployment for older workers who are ready, willing, able and desperate for an opportunity to prove their competence to perform. What can we do about this unfortunate condition of things? Well, that is what we are here to find out, and the final effective answers will undoubtedly evolve as we proceed in our cooperative search, but there are some guidelines or points of attack which may well be suggested. Volunteer agencies and organizations of older workers themselves have had some degree of success - but that success has been related pri- marily to the executive levels of employment and is, of necessity, peripheral when weighed against the problem as a whole. It is a good approach and should be. encouraged to the utmost, but it is not a final answer. Another approach may well be in the area of alleged employer fears of incurring a heavy cost factor in terms of so-called fringe benefits (such as vacation and pension payments) by employing older workers. While, as I have previously stated, this fear may be based largely upon a supposition that older workers are. incapable of steady, full- time employment - a proven fallacy - the fear exists and must be dealt with. It could conceivably be met head on by stipulations in employment contracts that an employer would not be required to pay such fringe benefits until a worker had actually performed forty hours in a single month. This would protect the employer s interest on the one hand, and, at the same time, give the employee an opportunity to prove his ability to carry his load. It would provide, in short, a probationary period during which the matter of an older worker's employability could be proven to be either a fiction or fact. Prejudice as a basis for hiring and firing would be eliminated. Employers, further, might either be relieved of Unemployment Insur- anceTax on "intermittent" or part-time employees, or be allowed to offset wages paid to older workers for less than forty hours a month against their benefit charges for unemployment insurance. Adequate -119- PAGENO="0342" 336 AGE DISCRIMINATION IN EMPLOYMENT safeguards against the use of such a provision as an "out" to escape statutory or contractual responsibilities would have to be provided, and, in all probability, federal legislation would be essential if such measures were to be carried out. Another suggested approach at the state level might well be for the Legislature to enact a statute prohibiting any inquiry as to a prospec- five employee's age or date of birth until 30 days subsequent to the. commencement of his period of employment. This would break that all but unsurpassable barrier of `company policy' against hiring anyone over a specified age. It would, again, provide a period of time for the older worker to prove his ability to perform regardless of his age and eliminate prejudice as a basis for denying him an opportunity to earn his way. Such a measure would of necessity have to be given backbone by the incorporation of enforceable penalties for violation and the provision for adequate administration, but it bears within it, I would think, the potential of possible amelioration if not ultimate solution to our problem. These are offered only as suggested ideas to be weighed, measured, analyzed, studied, from all points of view until some measure of tangible workability is found in them or in the directions toward which they point. We must not forget why we are here. We meet not just to study, in the words of my Assembly Resolution, "how andwhere employment opportunities for older persons may be improved and expanded through- out the state", but to create from this study, positive programs of effective action to combat this destructive economic and social disease of discrimination in hiring, solely because of age. It is an indefen- sible practice. It is inconsistent with our American philosophy of life. It must be stopped! Let us here and now resolve that the inalienable rights of the older citizen shall be restored, preserved, and protected. -120- PAGENO="0343" AGE DISCRIMINATION IN EMPLOYMENT 337 "EXPANDING EMPLOYMENT OPPORTUNITIES FOR THE OLDER WORKER IN NORTHERN CALIFORNIA" by Samuel S. Johnson, President, Jefferson Plywood, Redmond, Oregon In accepting the invitation to speak on "Employment for Older Workers" I did not fully appreciate the complexities of the problems to be dis- cussed. The enormous backlog of research, investigation and theories, as well as current forecasts, will continue to be made, as a large per- centage of our population moves into the aged category. There are many compelling reasons why all citizens should work to identify and solve problems of the unemployment of older people. One is economic, and necessary in order to keep our Nation, State and Region productivity high and their economics prosperous. Another reason is social in that everyone must help bear government costs. The third is human and we must do it to keep individuals independent and free from direct government subsidy. There is nothing construc- tive for the individual, or our way of life, in large numbers of citizens being dependent upon the Federal Government provided that they are physically and mentally capable of self-determination and support. It is interesting to note that approaches to these problems are being made by a variety of groups, both public and private, and recommenda- tions are being implemented. Our presence here today, in response to House Resolution 77 passed by the 1963 California Legislature, is evidence of the concern which will produce supportable programs. Before proceeding, we should establish some guidelines. Who is the elderly worker? How old is he, measured in terms of functional years. Is he the person beyond normal retirement years who wants or needs employment? Is he the middle-aged older worker who is slowing down? Is he the mature worker too vigorous to retire and wishing to continue in his job but facing compulsory retirement? Is he the older worker who through automation, relocation or change over in products, ~uch as saw-milling in this area, is seeking employment? Does he want part-time or full-time employment, additional training or retraining in order to qualify for new employment? What are the job barriers which keep him out of the labor force? How many of these are based on hiring practices, retirement policies or pension plans? How many are created by a national tendency to glorify youth and minimize the values of maturity? How many problems are created by the older worker him- self through refusal for re-education; not keeping abreast of technical skills; by unwillingness ôrinability to change location when retired; by reluctance to accept new positions at less salary; by a lack of ability to sell themselves or by discouragement and bitterness through a forced period of lengthy unemployment? How many job restrictions are based upon faulty assumptions such as more injuries of the older worker,mental confusion if the work pace accelerates, frequent absenteeism, and sight and hearing changes -121- PAGENO="0344" 338 AGE DISCRIMINATION IN EMPLOYMENT creating safety problems. The problem is a combination of several factors, thus increasing the difficulty of finding a single solution. It Is important to note the magnitude of the increasing numbers of aged persons as percentages of the total population. Forty years ago the average life expectancy of an urban worker was 46.6 years. Today this figure approaches 69 years. In 1900 about 65% of the men over 65 years were in the labor force and by 1960 the percentage had fallen to 35% even though the number of men over 65 had increased 500% in those years. A more striking change has been the increased number of women workers and particularly those over 45. B. V. H. Schneider -- "The Older Worker" makes the following pred- ictions for the next 15 years: 1. `An increased supply of middle-aged and very young workers, but nevertheless - 2. "A continued shortage of 25 to 44 year old workers, and 3. "A slight increase in the proportion of the population 65 and over. At the same time most likely there will be: 1. "A further increase in the proportion of clerical, sales, profes- sional and technical jobs, and 2. "An increased demand for those white collar skIlls which normally are acquired by women and college graduates." It is important to keep these developments in mind and to consider the implications for individuals, employers and the community in being concerned with three groups of elderly workers: The first is those who have retired voluntarily while in good health. The second group is that group who are between 45 and 65 years of age and are employed. Finally, the third group with whom we do not have to concern ourselves is the group 65 years of age and older who are employed. Those who are retired continue to pay their bills, their taxes, buying household goods while serving their communities and enjoying leisure time as well. The group with which we are concerned is the older unemployed, the about-to-be involuntarily retired, the disabled, the unskilled, the dislocated. The question to consider either as an individual or at some government level is who is responsible in this matter. We must adopt an attitude in solving the problem of finding "what older people can do for themselves, first, if they are permitted and second, if they are encouraged". -122- PAGENO="0345" AGE DISCRIMINATION IN EMPLOYMENT 339 Industry has been in the thick of this subject because it cannot af- ford otherwise. Industry exists for profit as well as having tax and community obligations, indicating that problems of the older worker are a tremendous economic and political force. Many companies have taken a humanitarian approach to re-employment problems giving assistance to older workers through preretirement counseling, retrain- ing and re-educating programs and relocation of workers. Aside from the humanitarian interest, industry has reckoned with the economic power of these older workers. The problem of finding employment for older workers is a part of the larger problem of finding employment for all who wish to work and are capable of doing so. How to stimulate the economy so as to provide more jobs and increase productivity has been the motivation for the recent tax cut, the recent Area Redevelopment Action for the Manpower Development Training Act and so on. In many cases, the social experimental laws have little economic value and are sometimes mis- used through the support of those who want to see problems resolved quickly at almost any cost. I do not want to leave the impression that such a law as the Manpower Retraining Act is bad or unwarranted as I advocate retraining when needed, by self or by government. This type of law can be well used but results are difficult to measure and can be misused if left to irresponsible administrators. When the older worker loses his job where are his chances for employ- ment? If competing with younger workers, he will tend to be more skilled, will have completed less years of school and has more chance of having some physical handicap. Despite favorable factors, he will usually lose out in competing with a younger man. This, in spite of studies showing that older workers have as good or better attendance records than younger workers, that their turn-over rates are lower, safety records better and that they are more reliable, conscientious and possessive about their jobs. Their most serious re-employment obstacle is the hiring age limit. There is considerable evidence that discrimination against older job applicants through such factors as career policy, promoting from with- in their employees, claiming that older people are inflexible and difficult to train and that older workers increase pension and insurance costs, all tend to discourage the employment of older persons seeking employment. However, the pension issue is diminishing through the increase of social security benefits, increased individual insurance and annuity protection, the retention of pension rights from former jobs and the fact that companies have found that older workers included in pension plans do not add as much to costs as anticipated. Union managements are unable to offer any more help to the older job seeker than nonunion managements. Through the system of seniority the unions must protect their own members and most of the union con- tracts require specific retirement. Society is requesting both union and nonunion management to develop their apprentice programs more fully which also puts the older worker at a disadvantage. -123- PAGENO="0346" 340 AGE DISCRIMINATION IN EMPLOYMENT In setting minimum hourly wage standards, State and Federal laws have sometimes been responsible for loss of jobs by older workers who require longer time to do an adequate job and could not justify the higher hourly pay. When higher hourly wages were made man- datory, some smaller employers were forced to cut down the numbers employed who, in many cases, were older persons. It is clear that there are many challenges to action on the part of the employers, employees, unions, Federal, State, and local government, private employment agencies, churches, schools and families in attempting to meet the difficulties in finding such solutions. The Federal Government can serve best by providing statistics and analyses, by encouraging research, by prodding and encouraging in- dustry and labor unions to cooperate in planning appropriate action to provide employment for older workers. To encourage older workers to look to the Federal Government for care and support adding the burden of additional costs for broad government assistance to the shoulders of the working public, in my judgment, would weaken the whole fiber of the economic system. To force an aged individual who is capable and wants to work on the public and private pension roles and then seek to find working substitutes to fill the void seems a very poor approach. Action i~ needed on the part of employers and employer organizations such as Chambers of Commerce, Manufacturers Associations, Industry Associations, Labor Unions, etc. - especially in the pro- motional and educational area. Union employment contracts should be examined and hiring practices reviewed to insure against barriers to hiring middle-age and older persons. I am surprised that there is no concentrated effort to modify the present social security regulation in order to encourage greater employ- ment after retirement age. I would hope that in developing some definite proposals you would give serious consideration to endorsing the general principle stated by Dwight S. Sargent, Chairman of the Employment and Retirement Section of the National Committee on Aging, `that individuals who are able to work beyond age 65 and who want to work and for whom there is a j ob, be permitted to work, and that self-support in terms of capacity and desire is good for the individual and good for the economy". -124- PAGENO="0347" AGE DISCRIMINATION IN EMPLOYMENT 341 `EMPLOYMENT OPPORTUNITIES FOR OLDER PERSONS IN THE CONTEXT OF THE EXPANDING ECONOMY OF THE STATE OF CkLIFORNIA" by Paul W. Little, Assistant Director-Manpower California Department of Employment Discussion of job opportunities and the economy as related to older workers is an opportunity to give out with the statistics which in this field are voluminous. I am included, however, to weave my remarks around people as people, not as statistics. To me the percentages, parabolic curves, trends and tabulations mean something only when they focus attention on a worker who: 1. Has been laid off and finds he needs training to compete in the labor market, yet has a fear of returning to the classroom and a fear of tests. Or a worker who: 2. Has retired and wants again to re-enter the labor market but only on a part-time basis. Or a worker who: 3. Is faced with layoff unless he can receive training which will up- grade him in his skill, yet. who has resisted opportunities to take training after hours or declined to make himself available to take training provided by the foreman. Or a worker who: 4. Is unemployed but unwilling to work under a younger supervisor or to accept a job at less pay after an extended period of joblessness. Or a worker who: 5. Receives notice of possible impending layoff with possible transfer to another firm but refuses to believe the layoff will actually happen or who is laid off but declines to relocate, grimly holding on to the hope he will be recalled. Statistically these are numbers of workers, broken down by age, who are displaced by technological change. They are percents of our labor force who are unemployed. They are the number of potential trainees for OJT or institutional training under MDTA, ARA or some other retraining program. Or they are those who push the curve of period of joblessness to its peak because once they're unemployed they have a tougher time getting another job than do younger segments of the work force They are disabled veterans, parolees, military retirees, handicapped, members of minorities and others who have been on this earth a half century or so. . -125- PAGENO="0348" 342 AGE DISCRIMINATION IN EMPLOYMENT But regardless of what statistical slot they fall into, they present themselves to us as whole individuals. Individuals with feelings of defeatism, insecurity, confusion and discouragement. Individuals with courage, determination and hope. Individuals who have been misinformed, and individuals with valuable skills underwritten by maturity and capacity for achievement. And it is our mission, through our family of manpower services, in- cluding counseling, testing, retraining, job development and place- ment, to provide facts to these workers about the labor market, encourage and motivate them into a specific course of action, con- vince them to objectively appraise the marketability of their skills, and to provide these services on the basis that it is ability which counts and not the race, handicap, religion, age, or point of national origin of the worker. Within the framework of this approach that services to older workers must be people oriented, perhaps we can briefly profile some basic facts which point to current and prospective labor force participation. California's population has doubled every 20 years since 1860. By next year our population will reach 18 1/2 million, and our labor force 7.3 million. Currently our population is increasing by about 600, 000 each year with 2/3 coming from inmigration. These trends give us a population of 25 million by 1975 and almost 30 million by 1980. Now as I give these projections I am moved to point out that I felt the Legislature showed great wisdom in drafting HR77. Certainly the information which will be gathered and analyzed will lead not only to decisions which must be made to meet the current needs of our older workers but to decisions which will be responsible to the needs of these workers in the foreseeable future. We in the Department of Employment are very pleased to join hands with Mrs. Russell and the Citizens' Advisory Committee on Aging in achieving the purpose of this Resolution. To recall my life and experiences in 1955 seems to me to recall events of only yesterday. Certainly the prospective needs of our older work- ers in 1975 are only a few short moments away. What about our older workers today and a few brief moments from now? Today workers over 45 in California number 2 1/4 million or 37% of our civilian labor force. A few brief moments from now in 1975 they will number 3.7 million or about a 65% increase in absolute numbers. As it is with the State and the Nation, so is rapid growth characteris- tic of Eureka. In population, in the 50's, you've grown at a faster rate than that of the State. Older workers constitute almost the same proportion of your work force-3 6%-as that of the State as a whole, and surely your projections of growth are comparable to that of the State. You, along with your State, are experiencing the paradox of our grow- ing technology; namely, the existence of economic growth side by side with that of high rates of unemployment. -126- PAGENO="0349" AGE DISCRIMINATION IN EMPLOYMENT 343 So now we come to grips with a key question. Are we truly losing 2 million jobs to automation and technological change in this nation each year? Are there and will there be enough jobs to go around? Is it true that unemployment is essentially one of economic growth? Well I'll leave that question up to Dr. Walter Heller and his School of Economists. Must we look forward to a society in which we must break the link betweenjob and income? I'll leave that question up to our English friend Dr. Robert Theobald and his School of Economists. Right now I am impressed by a number of considerations which bear, I believe, a bit more realistically on jobs for older workers: 1. First our semimonthly statewide job inventory carries from 1500 tà 2000 job openings. Occupationally these are heavily weighted in professional, scientific and technical pursuits, coupled with shortages in nurses, clerks, skilled craftsmen, and machine oper- ators. 1 would observe that a vacant job is one of the most waste- ful circumstances in our society. Wasteful to the employer in terms of lost production and services, and wasteful to the worker in terms of lost income. And our inventory covers only those jobs which employers are seeking to fill by out of town or area recruitment. Goodness knows what the inventory of vacant local jobs Is at any point of time. 2. Workable machinery is now in effect which can train and retrain workers, bringing to them either new skills or upgrading them in old. These retraining programs are no longer a dream of manpower experts. They are a proven fact. More and more jobs are emerging in business, commerce and industry which require a worker to go through frequent training and retraining periods. Training facilities are being made available where the course is sharply job oriented and where subsistence, transportation and relocation allowance S are available. In California about 60. 7% of our population 45 years or older has had less than 12 years of schooling and on the average the education was acquired 28 or more years ago. Studies also indicate that 21. 6% of the 45-plus workers have less than an eighth grade education. A large segment of unemployed older workers is composed of individuals who lack such education. 3. One of the fastest growing job opportunities in our labor markets is that of the part-time job. Careful appraisal should be made of the extent to which these opportunities ôan meet the job needs of some of our older workers. 4. California employers have assembled a labor force of tremendous professional and technical competence. There is an awareness in business, commerce and industry that our future growth must be based on diversification and the development of new markets and products. It is a reasonable assumption to make, that job oppor- tunities of the future will be rooted in this type of growth and will require a higher level of education, knowledge and technical com- petence. Many of these jobs will require the worker to undertake frequent training experiences during his job life. In the converse, -127- PAGENO="0350" 344 AGE DISCRIMINATION IN EMPLOYMENT present and projected manpower requirements seem to impose severe penalties on those with low adaptability to changing oc- cupational requirements. 5. With over 1/4 of California's annual timber cut, your Humboldt County area leads the State in this activity. Expansion of lumber manufacturing, such as that contemplated by one of your leading establishments and its feeder plants and subcontractors, seems to provide somewhat brighter job prospects for this area than has been the case in the past. Perhaps California's growth and that of the Pacific slope states will provide markets and construction activities which will give you steadily increasing levels of employment. This then is a brief glimpse of the job opportunity picture in our ex- panding economy both in the State and here. in the Northwest; jobs, many of which will require increasing levels of training and skill. Whether there are andwill be enough jobs to~ go around I can't say. But I would observe that (1) a competent, well-trained and efficient work force increases production and the opportunity to forge new markets, (2) there is machinery for providing needed skills through training and retraining, and I would observe that (3) there is need, community by community, to assess the job picture and plan to meet job needs now and in the future. On our part, we in the Department of Employment need to: 1. Develop new techniques which will cut the lapse of time between the vacated job and the providing of a competent replacement. We are now experimenting with Telex and EDP storage and retrieval equipment which holds great promise for greatly increasing our recruitment and screening services without commensurate increases in budget expenditures. 2. Improve our counseling and guidance services to enable us to understand and motivate the older worker to a sensible course of action which will result in full use of his skills. That is why we are now engaged in substantially raising the academic and experi- ence qualifications of our vocational counselors. 3. Extend the successful group guidance clinic approach, such as the job clinic for middle-aged women who wish to re-enter the labor market when their family responsibilities permit them to work. They need pointers on how to look for a job, pointers on personal appearance, attitude and how to overcome lack of confidence. These clinics have beenespecially successful when jointly sponsored by the Business and Professional Women's Clubs, Altrusa, Soroptimists and YWCA; or the Job Clinic for men called "Experience Unlimited" where executives and managers caught in~ plant mergers and other displacements get together and hammer out solutions to their job problems. -128- PAGENO="0351" AGE DISCRIMINATION IN EMPLOYMENT 345 4. Improve our knowledge of the labor market so that we can provide current and projected information on job trends, job obsolescence, new j obs, patterns of skill requirements, etc. it is on this note I would conclude. I have reviewed the economic surveys and related documents prepared by the Chambers of Commerce in the Humboldt region. I am pleased Jeanette Rollison and her staff were able to assist in providing the employment tabulations and the Wage and Salary Schedul&s for these studies and with her report on "Characteristics of the Eureka Labor Market'. By the publication of these documents, you show you recognize the need for a frank appraisal of the facts, facts critical to your economic growth and development. I suggest if this splendid outline of what makes your county tick economically is now supplemented with a skill survey, you will be in a position to merge manpower needs with economic developments. In this climate of facts aboutour current and pro- jected manpower needs,we can join hands with you to better serve the unemployed worker who finds a mountainous barrier to employment at an age when he has the greatest need for employment in order to house, support and educate his children and to accumulate assets for hIs retirement years. And in this climate we can provi.de business, com- merce and industry with a competent worker, rich in maturity, fully trained and responsive to the demanding needs of our new technology. -129- PAGENO="0352" 346 AGE DISCRIMINATION IN EMPLOYMENT SUMMARY OF EUREKA WORKSHOP by Mrs. A. M. G. Russell, Chairman Citizens' Advisory Committee on Aging Our purpose in meeting here today has been mentioned specifically -- and as an underlying thought -- as we have talked. To again quote our very able Legislators' resolution, Assemblymen Belotti and Kennick stated that `the meeting is relative to improving the employment op- portunities of older persons -- it is part of a study of how and where employment opportunities for older persons may be improved and ex- panded throughout the state." And perhaps we might add the thought of our keynote speaker- - that we also find out what older people can do for themselves. We have seen today that we need to look more at the total picture in order to find workable solutions. The employment of the older worker in the future is only one part of long run total labor requirements -- it is dependent on the rate of economic growth in output per manhour. It is also dependent on the size of the total product and what that product is. It is difficult to tell whether the demand may not change from goods produced by machines to goods which require large amounts of labor or vice versa. For certain, rapid technological changes will undoubtedly continue to confront the older workers in the future with the threat of occupational and educational obsolescense. What are we doing to help the situation -- true, we are lookiflg at it today, but looking is not enough -- and it is not enough to find one solution and work at this -- the situation is complex and requires attack from many angles. We must find immediate solutions for the older worker today and we must take preventive steps for. the future. Some steps have been taken. We have an "Employment for Older Workers Act" passed in 1961, which makes it unlawful for employers of six or more parsons to discriminate, solely, on the basis of age, in hiring, firing, or promoting persons between the ages of 40 and 64. Today there have been suggestions that the age should be lowered, also that enforcement policies should be reconsidered. We have the statewide program of the Department of Employment -- each office has an older worker specialist who gives services to older workers -- provides counseling, job development-retraining, placement. Under the Manpower Development and Training Act of 1962, older workers can be retrained along with younger ones -- good percentages of retrainees are in the over-45 group. California workers are per- mitted (by legislative action, 1961) to attend school while drawing unemployment benefits -- providing the worker is leaving an occupa- tion where the demand for workers is diminishing and trains for an occupation where workers are in demand. This program utilizes the Adult Education program on an individual need basis. During 1963, of 2746 enrolled under the program, 18.7% were over 45. -130- PAGENO="0353" AGE DISCRIMINATION IN EMPLOYMENT 347 Unions attempt to protect the rights of seniority of their members. Attempts have been made by older people to solve their own problems. Such groups as 40 Plus, Experience Unlimited, and management groups contributed to the employment total. Efforts have been made to make employers aware of the fact that the older worker is adequate, steady, seldom ill, loyal, and that pension costs, vacations, and insurance costs need not be a barrier. Preparation for retirement is another area which is receiving attention. This fosters the concept that the individual who plans for retirement, who attempts to learn about the social and psychological aspects of aging, who includes plans for meaningful and constructive use of leisure time, along with financial planning, will not have to make as great an adjustment in retirement --. may not wish or have to work -- or if it is necessary from an income standpoint, will be aware of a probable need for retraining and the need for mobility. At a national level, the President's Council on Aging has made some recent recmmendations for enlarging the employment opportunities for older people. The Council repeats the premise that "the problem of employment for older workers is but part of the larger problem of employment opportunities for all who wish to work and are capable of doing so. The solution depends heavily upon the success of measures to stimulate economic growth and to expand total employment." As we have discussed today, the need for a part-time employment service that would concern itself with discovering and developing part-time employment in private business and industry, government and institutions was recommended. Legislation for relocation allow- ances was recommended for workers displaced by economic shifts -- as long as they had a bona fide offer in another area. (This cost would be small when compared with extended unemployment compensation.) Expansion of training and educational opportunities were recommended along with the development of projects for special forms of training and related services for particular groups of older workers such as those with health problems or patterns of nonwork. It was recom- mended that there be measures taken to avoid and ease the impact of layoffs on the older worker, such as manpower planning, reassign- ments, plant retraining, broader seniority districts, and early notifi- cation of layoffs. Development of public service employment opportunities for the aged was recommended. The Council also recommended that severance pay be on the basis of years of employment, that gradual retirement programs be inaugurated, that there be expansion of opportunities for volunteer service -- and that the Social Security System be improved so that long periods of unemployment, when registered for work, will not decrease benefits. At the recent National Council on Aging meeting in Chicago in February, one speaker proposed educational leaves, financed by the employer, the employee, and the government -- and directly related -131- 85-376 0 - 67 - 23 PAGENO="0354" 348 AGE DISCRIMINATION IN EMPLOYMENT to the percent of unemployment which exists. The effect being that not only would it help unemployment but it would also enhance the future employability of the person who received the training or education. This is not a new idea -- just an expanded or extended one. One of the most repeated recommendations made today has been that a community committee be established to promote opportunities for older workers. It was suggested that this committee would be able to consider the labor market information for the area and could work with labor unions, employers, Adult Education, Welfare Departments, as well as with the Department of Employment. Development of new jobs has been suggested -- or new industries -- that will require the kinds of services which older people can give. Many have been mentioned that have to do with services in the home -- home aides for the ill, homemakers, shoppers, nursing services for the homebound. These have been successful in many places. The supplying of a party aid -- sOmeone trained to help with a party in your home -- has proved to be a successful venture in several places. There are many other jobs that we can think of -- we can also think of the older person as a consumer and cater to his requirements. If you remember the baby-boom of the forties and all the shops that sprang up and the change in kinds of garments made for babies -- and then growing children -- we might translate some of this to the boom we are beginning to have in numbers of older people. The next few years will see increasing numbers of older people -- with spendable income. To start big -- why don't we have cars designed so that older people may get in and out easily. Transportation is a real problem in most places -- there ought to be ways to overcome this by design of small conveyances or by planning for group transportation. Clothes for the older woman are badly designed and there are very few. We still like clothes as we get older, but it is very discourag- ing to have to hunt and then find only something that will do. This is a field for future economic endeavor indeed. Food -- both shopping and cooking are problems for many in their later years -- yet we have very few "meals on wheels" programs and most of those that we have must be subsidized because the costs are so high. Surely there must be a way to provide nutritional meals for people in their homes at reasonable costs. The local employment office presently lists 56 unemployed cooks. There could be some opportunity for them in this field. Housing for older people is a field we are beginning to learn a great deal about. Older people are telling us where they want their homes and what kinds they want -- building them is good business both for the builders and the communities. This area will benefit more than most from this. I spent several summers in this area when I was in school. I learned to fish in the Eel River. A few years ago I flew up here in the winter -132- PAGENO="0355" AGE DISCRIMINATION IN EMPLOYMENT 349 in a small plane, over the snow-covered redwoods -- it was quite beautiful. You certainly have one of the most natural and beautiful areas of California -- more visitors are intrigued into spending vaca- lion time here during the summer. Wouldn't it be possible to expand the tourist season. We do know that even with California's expanding economy there are changes which will have to take place if there are going to be adequate employment opportunities for all those who wish to work. Our meeting today has great value in that it has focused attention on the older person. We shall not lose sight of that older person; our Citizens' Advisory Committee on Aging and the Department of Employment will see that the suggestions and recommendations of this meeting will be implemented insofar as we are able to do so. -133- PAGENO="0356" 350 AGE DISCRIMINATION IN EMPLOYMENT "A MODEL FOR ACTION TO IMPROVE AND EXPAND EMPLOYMENT OPPORTUNITIES FOR OLDER PEOPLE" by Nathaniel Brooks, Consultant, Older and Retired Workers Department, International UAW-CIO, Detroit What we want to talk about today is the older and retired workers, primarily the older worker and how we help this older worker not only to look busy but to be busy. Actually, concern with the plight of the older worker is not new in our country. Many years ago, Carl Sandburg wrote very feelingly of the 40-year-olds in the steel industry in Chicago back at the turn of the century who were found to be too old to work every time that there was a seasonal layoff in the industry and then, of course, the great depression of the 30's was also a period and particularly a period of dramatic experience for the older worker. During the 1930's when Frances Perkins became Secretary of Labor, the U. S. Department of Labor established a study committee on a national basis to do something about the problem of the older worker. As a matter of fact the Social Security Act was passed primarily in an effort to remove the older worker from the job market and to provide him some income for not working. Now, when World War II came along, of course this obscured, and in a large measure reversed, the manpower problem of the older worker. In World War II there were practically 12 million young men under arms and almost all of them had to be replaced either by older men and women of all ages, physi- cally disabled and even some of those whohad already retired. This experience in World War II and to a lesser and still a significant degree in the Korean War has left many of us to the overall, over- simplified conclusion that the solution to the problem of the older worker is full employment. Full employment is obviously a solution but if it is achieved only in an allout mobilization for war, is it in any sense a practical and desirable solution to the problem? We believe that we must seek other and less expensive solutions to the problem so while we are most enthusiastic about the need and desirability of full employment under peacetime conditions, we also think that it is necessary to face the economic reality today and look further and deeper beneath the surface of this problem to find real and lasting solutions which can begin to take effect prior to the time that we are able to achieve full- time employment. It was in request of such solutions that the U. S. Employment Service and the U. S. Department of Labor undertook studies, in depth, of the older worker problem. This was done in 1947, `49, `50, `52, `55 and again in 1957. All of these studies led to about the same conclusions. We may summarize these as follows: First: That there is widespread discrimination against older workers in the hiring and employment practices of employers large and small, public, private and voluntary. SecQi~4: That this discrimination is incurred at different age levels, sometimes even at ages 30 and 35 depending upon the sex and -134- PAGENO="0357" AGE DISCRIMINATION IN EMPLOYMENT 351 occupation of the worker and the industry in which he or she seeks new employment. Third: Employers have a high regard for the older worker who is still in their employ. But, this high regard disappears and it is replaced by discrimination once the older worker loses his job and tries to find a new one. Fourth: Employers have a number of reasons, most of which are only myths or half truths on which they justify their preferences for younger workers. Among these myths or half truths are the idea that pensions, insurance and Workmen's Compensation costs are going to be very much greater in the case of the older worker, allegations with regard to lower productivity, greater absenteeism, inability to keep pace with younger workers, inability to adjust to changes, to accept training, supervision, discipline, etc. Fifth: Unions also tend to reflect some of these attitudes, particu- larly in response to the pressure caused by layoffs and unemployment and particularly in regard to their long-term unemployed membership. The union which has a long-time layoff of many of its workers begins frequently to assume a very defensive kind of attitude - to develop certain attitudes which in a sense excuse them from meeting the very unpleasant reality of their relative inability to do anything about it on their own. Perhaps, they would like to think that they have it within their power, and they certainly like their members to think they have it within their power, to help them in any contingency. The fact is that this is one of the problems labor unions alone have been unable to deal with. On the other hand, alongside of the sometimes negative or resistance attitude on the part of unions there have been some positive activi- ties to protect the rights of the older worker. Seniority systems of course are a prime example of this. In some plants there is the reservation of jobs either by contract or through informal arrangements between union and management whereby jobs which are especially suitable for the older worker are more or less set aside and identified as such and saved for the older worker who can no longer operate on his previous job. Other unions, particularly in the building phase have worked out a system of hiring ratios whereby a certain proportion of the workers employed during a given time on a given proj~ct must be in the upper-age bracket. Sixth: The U. S. Department of Labor shows that older workers them- selves tend to create some of their own problems by an unwillingness to accept a change in occupation, change in industries, rate of pay, or in location of employment, and finally, it was found that private and public employment agencies and personnel and employment managers are themselves contributing to the problems by their failure to deal with applicants and employees as individuals with interests, ability, experience and capacity which are individual and certainly do not conform to all these myths. -135- PAGENO="0358" 352 AGE DISCRThIINATION IN EMPLOYMENT Now, since the problem is so complex, it is also obvious that solu- tions will also have to be complex. We do not believe that there is any single simple solution to the problem of the older worker. First of all, we believe that we can do a better job through the existing mechanisms, procedures and techniques which are currently involved in the employment problem. We can, for example, in a corporation establish a clear and unequivocal policy on hiring and retension on the basis of ability and without regard to age. Now, many companies and unions claim to have adopted such a policy, but how many have really tried to implement such a policy through very direct, written and spoken interpretation to supervisory personnel, managers, foremen, and the personnel officers of the corporation? Secondly, we believe progress can be made by examining carefully the hidden forms of age discrimination which may be found in various corporations. By hidden forms, I mean certain arbitrary and general- ized educational requirements which automatically eliminate a con- siderable proportion of the 45 or over applicants who have, say less than 8 grades of formal schooling, or a corporation could re-examine the arbitrary physical requirements which it may set for new employees. Physical requirements which may discriminate against older workers who are not at all disabled in a job sense even though some may have minor disabilities which, in the eyes of the company doctor, may be classified as disabling from the point of view of employment with their company. Or, we can take a hard look at the psychological screening devices which are used by many companies which automati- cally rule out many older workers since they were standardized on a new generation of students and they were not necessarily standard- ized on successful job performance. In other words, what we are say- ing is that the devices which are used to screen out so-called undesirables or potentially unproductive employees may have a hidden factor of age discrimination which really has no reality as far as the individual worker is concerned and it is only in the study of arbitrary requirements rigidly applied that this discrimination comes to light. Furthermore, corporations could make studies of the pensions and insurance requirements which are frequently referred to involving the older worker on cost grounds. In the past, studies have shown that the cost of employing an older worker in the 40's and 50's need not be a very significant factor to the corporation. Now, aside from the question of discrimination on the age basis itself and its elimination, another major approach to a solution of the older worker problem is to help prevent it by doing a better job of training and utilizing the worker who is already on the payroll. It is frequently recognized by management that the middle-aged worker who is passed over several time s for promotion and/or upgrading in skills suddenly becomes either frightened or disillusioned and cynical about his place and status. His morale begins to fall and he looks down the hill to re- tirement instead of up the hill to further advancement and progress in the organization. Opportunities for training, retraining or even a complete change of assignment become important considerations in this phase of the problem. You may know, for example, of the practice of Bell Telephone Company in the case of their linemen, who at a certain age become ill-suited for the continuance of their -136- PAGENO="0359" AGE DISCRIMINATION IN EMPLOYMENT 353 particular work in the company. The company has developed a trans- fer of these men, using the knowledge which they have acquired and with the help of some additional training, to the salvage shops where they now do maintenance work of a much more sedentary and less taxing nature. This is an example of the kinds of steps which might be taken by corporations. In the case of Bell Telephone, an act which expresses moral responsibility to the worker who has been in their employ also represents a profit plus for the corporation in being able to take advantage of the experience which the workers gained in their earlier work as linemen. Now; a third maj or approach to problem of the older worker is to deal with the problem of employment for older workers by helping to make retirement more attractive and to increase the number of avail- able jobs and reduce the competition among older workers for the jobs for which they may be well suited. Therefore, a corporation which would improve its retirement plan, if it needs improvement, to make it relatively easier and respectable for the older worker who is no longer able to keep up to retire with dignity and without regrets would be a very helpful contribution to the problem of the older worker. Now, many companies resist early retirement. They resist fuller investing and a more flexible approach in dealing with disability re- tirement because they are afraid of the cost which may be involved in retiring a disabled worker at an earlier age than the normal retirement age. But, it has been shown that it is less costly to the company to make it easy for the less productive older worker to retire than it is to keep him on just killing time until he can reach the fixed age basis which is sometimes the only basis for retirement (unless there is a complete and total disability). Is it not time also to re-examine many of our preconceived notions about when to retire and to consider the whole question of flexibility in regard to retirement? Does retirement have to be a total retirement? Does it need to take place on one day from a full-time worker to a full-time retired person? Not necessarily, and thought shoUld be given to the possibility of a flexible retirement program to make it possible for the older worker to gradually make a transition from full-time worker to full-time retiree, without drastic financial losses and income. The UAW at present has this under con- sideration, and will discuss with the corporations the possibility of a plan which would provide for as much as a five-year pay retirement between the period of age 60 to 65 with a guarantee of continuing income, a gradual withdrawal from full employment, culminating in full retirement. If arrangements of this sort can be worked out they would do much to reduce the pressures of the older worker problem. Another phase of making retirement more attractive is a systematic program of retirement planning, education and counseling. Periodic and planned distribution of literature, and well-planned small group discussions are all important dimensions to a good retirement planning program. Yet, most companies and most unions pay only lip service to the idea of retirement preparation, if they have any program at all, and then they wonder why, in the face of a very inadequate and un- attractive program the program is rej ected and resisted by many of the older employees. The UAW itself has been very active in developing -137- PAGENO="0360" 354 AGE DISCRIMINATION IN EMPLOYMENT together with the help of a number of universities what we consider a useful kind of preretirement education program, and we have at- tempted to secure the cooperation of the companies in jointly operat- I ng this kind of a retirement education program for the older worker and providing a program during the working hours, providing some released time on a periodic basis for older workers so that one does not face the problem of how he is going to bring back an older worker at the end of a long day 5 work. Its applicability to the problem of employment of older workers is that as the older worker on the job has the benefit of preretirement education or preparation, he frequently will begin not to fear retirement. He will begin to have a realistic and hopefully - if we provide the proper income and services surround- ing retirement - a positive attitude toward impending retirement and this, of course, is quite an encouragement to voluntary retirement. Another important way to make retirement more desirable is to take an interest in making the community a place that will accept and find a place for the older worker and the retired worker. Labor and manage- ment both have a long way to go in this field of activity. For, while we are proud of our participation in the voluntary giving and fund- raising activities and the money it provides for community services, we too often have not seen to it that a fair share of the money raised goes into services to those groups who are among the most in need of services - the older people who are living in poverty or on its edge, who are isolated, and as they grow older cannot shop effectively for the health and welfare services which they need and too frequently don't get. In addition to these basic steps, there also is a role of responsibility in the public sector which requires attention. Certainly, the efforts of the public employment service in the field of job counseling, job development and selective placement need to be accelerated and this costs money for staff and the training of staff. Certainly, much more can be done in adult vocational education and under the Manpower Development and Training Act to retrain and refurbish the skills of the middle-aged and older workers who have been displaced by tech- nology, by mergers or by the closing of plants, who are too old to work by employers' standards but who are too young to retire. Cer- tainly, much needs to be done through meetings of this sort to change public and employer attitudes toward the older worker and toward the unemployed in general. To bring about public awareness and concern to stimulate education and a change of attitudes we frequently need controversial discussions of legislative issues which will affect the status quo. This is one reason why we have favored anti-age discrimination legislation which would provide strong penalties against employers and unions that arbitrarily bar people from employment on the basis of age. States with such laws, and New York and California are among them; are doing a better job of placing older workers because age discrimination is no longer overtly practiced and because the very consideration of the law itself and the passage of the law by the Legislature caused discussion and a reconsideration of present and past policies and -138- PAGENO="0361" AGE DISCRIMINATION IN EMPLOYMENT 355 practices in regard to the hiring of older workers. But, in addition to this legislation we need a broad range of intensive and comprehen- sive efforts in the public sectors which needalso the help of both labor and management if these efforts are to succeed. Such effort is especially needed, it seems to us, in the manpower development and training field, and in the job redesign field, the efforts to accommodate the work to the available unused or underused labor supply. Here we would like to present simply as examples for your discussion a few broad areas for consideration. First, can we develop a com- prehensive diagnostic testing and counseling program tied in with vocational schools where unemployed older workers can not only be tested and counseled but can also try on various kinds of training situations for size before they are actually cOmmitted to a long-term training and vocational objective? A second idea that you might want to discuss: can we develop extensive literacy training and other forms of prevocational education for those older persons who cannot learn new skills because they lack basic mastery tools such as reading, writing and arithmetic? Can we develop sheltered employment of a restorative nature or a rehabilitative nature, perhaps which will help to develop the work habits and tolerance of people who have fallen out of the labor market, in order to bring older workers along to a point where they can re-enter the competitive labor market? Can we develop extensive on-the-job training opportunities as an integral part of the manpower development program? The Canadians are doing this, by the way, in that the government provides a subsidy to an employer who will hire a worker 45 years or older as an on-the-job trainee and the payments are continued until such time as the worker reaches normal production on the job. Another thought: is it possible to train middle-aged and older people to provide the many kinds of service, technical and semiprofessional jobs which are involved in serving older people themselves - jobs in nursing homes, homes for the aged, recreational and counseling programs, housing projects of various sorts for older people? These are jobs of which many do not get done because there are no qualified and trained people to fill these jobs. Might not older workers them- selves provide a group of people who could be trained for this purpose? Is it possible to organize and develop the part-time and odd-job market for the middle-aged, older and even perhaps the retired worker who may feel it necessary to supplement his retirement income? Can we not develop a senior volunteer service corps in which older people can serve their community, getting some satisfaction and perhaps a small reimbursement of expenses or compensation for the services which they may give to others who may need the benefit of their wisdom, their experience and talent? Have we fully explored the potential of expanding the service occupations and training people to fill jobs in nursing, in home care, homemaker services and various other kinds of needs which are very ill met to a considerable extent because there is not a supply of trained personnel? Many of these kinds of jobs it seems to us could be filled by middle-aged and older people if they were properly trained. Now, these are a few of the possible ways in which we can extend ourselves to help middle-aged and older people to find work and opportunities for useful activities -139- PAGENO="0362" 356 AGE DISCRIMINATION IN EMPLOYMENT and services. They are not necessarily applicable in all communities and perhaps some of them are not applicable anywhere. However, these are ideas which are projected to you which you may want to con- sider in the discussion groups. The point is that we really need to stretch our thinking to develop new methods and approaches to deal with the growing and the persistent problems of employment of the older worker. In the years ahead, we have several alternatives. One is to ignore the problem and hope that it will go away, or we can look to the over- all panaceas, or we can face up to the fact that the problem will not go away and will not be solved by panaceas. The problem is here to stay, and if anything, it is going to grow in size and complexity in the coming years and it will require vigorous and concerted action on a number of fronts. In summary, we would like to suggest there are basically four com- ponent parts of a total program which ought to be developed. The first is in the area of training workers who are not employed so that they will be qualified for jobs which may become available. A second area is to eliminate discrimination against older workers, both in its overt and covert forms. A third major area is to help keep the older worker on the job, productively on that job, so that he does not need to be released; and, lastly, to make retirement more attractive and thereby take some of the pressures off the job market for the older worker. -140- PAGENO="0363" AGE DISCRIMINATION IN EMPLOYMENT 357 `SUMMARY OF OAKLAND WORKSHOP" by Dr. Margaret S. Gordon, Assdciate Director, University of California, Berkeley I'd like to start out by expressing my congratulations to the Industrial Development Commission of Oakland for organizing this meeting. It is encouraging to see the prestige of the Industrial Development Commission behind a well-planned effort to bring management, labor and representatives of public employment agencies together. Perhaps the most valuable part of today' s experience was the opportunity for these groups to come up against the point of view of the other groups involved and to exchange opinions. I also found the talks by the two main speakers very interesting and thought-provoking. Without attempting to recapitulate what either one of them said, I do want to refer very briefly to a few points and then will direct my attention to what seemed to come out of group discus- sions. Mr. Brook's paper represented a very comprehensive summary of the problems, but I would like to quarrel with him a bit on what I thought was a lack of strong enough emphasis on the importance of achieving full employment as the only framework in which we can make much progress towards resolving employment problems for the older worker. It is true that the only time in recent history when the long- run decline in the proportion of elderly men in the labor force was reversed was during World War II. This was a situation of very tight manpower and what economists would call over-full employment. Now ma peacetime full employment situation, which I think we can achieve with appropriate measures, the decline in the proportion of elderly men in the labor force is not likely to be reversed, but it stands to reason that with a lower overall unemployment rate the unemployment problem of older workers will be somewhat diminished. This does not mean that we do not also need other kinds of approaches and measures, but these other approaches stand a far~ better chance of success in an environment of full employment. Now let us turn to the discussion in the workshops. I sometimes think there are no new ideas in this area, but I did hear some interest- ing new ideas today. Group I was concerned with the qUestion, "What Can the Community Do About This Problem"? The chairman in introduc- ing the discussion emphasized the importance of the community ap- proach, with which I fully agree. Despite the need for full employment, we still need efforts at the local community level. There was a reference to a labor-management committee which has been formed in San Fernando, California, to concern itself with employment problems of older workers at the local level. There was also some discussion to the effect that perhaps a committee concerned exOlusively with employment problems would be more effective than a broader committee on aging with many different interest groups involved, so that there would be little time to concentrate on employment problems. There were also various specific suggestions that came out of Group I. One was that the Department of Employment should have a citizens' advisory committee on older worker problems made up of all segments -141- PAGENO="0364" 358 AGE DISCRIMINATION IN EMPLOYMENT of business and labor. Secondly, it was suggested that the Depart- ment of Employment should correlate and make resumes of existing programs relating to the employment for older workers. These were individual suggestions and not the final recommendations of the group. It was also suggested that the State Department of Employment should have responsibility for coordinating training and retraining efforts and that information should be provided to employers on what was going on. The question was also raised of various legal impediments to the hiring of older workers . Out of that discussion came a recommenda- tion for further liberalization of the retirement test under the Social Security Act, which many older people feel limits their opportunities for employment. As to the role of the Industrial Development Com- mission with its emphasis on attracting industry to the area, the sug- gestion was made that we are entering a period in which there will be rapid expansion of health activities, recreational industries, other types of service industries, some which may conceivably provide more employment opportunities for the older workers than the kind of indus- try which we traditionally think of in this connection. Group II was concerned with what employers can do. There was emphasis on the need for the creation of more adequate understanding on the part of employers, of the advantages and disadvantages of older workers, educating first-line supervisors so that they would not have prejudiced attitudes against hiring older workers, and improve- ment of pension plans in various ways. Some members of the group thought that companies should take responsibility for retraining older workers, but this view was not unanimously accepted. There were some who felt that it was the individual's responsibility to keep his skills at prime level. There was a good deal of discussion of the problem of compulsory retirement, with emphasis on the fact that the very widespread ad- herence to a fixed retirement age was attributable primarily to the problems of communication that were created by a more flexible system. The need to keep promotional opportunities open for younger workers was also emphasized. But it was suggested in this connec- tion that "phasing-out" plans under which people could retire gradu- ally could be worked out in such a way that they would not interfere with promotional opportunities for younger people. Older employees who were being phased out could be shifted to job assignments which did not interfere with lines of promotion. Group III was concerned with what unions can do, and quite a number of constructive ideas came out of this discussion. It was suggested that unions should negotiate for more realistic hiring practices on the part of employers and that unions have a role to play in encouraging shifts to more appropriate job assignments for older people. There was a very interesting example given of the practice of part of the Alameda-Contra Costa Transit Company of shifting older drivers into jobs as dispatchers which they apparently handled very well. How- ever, there were not enough dispatcher jobs to take care of the need, which is frequently the problem in trying to work out shifts of this -142- PAGENO="0365" AGE DISCRIMINATION IN EMPLOYMENT 359 kind. There was quite a bit of emphasis on the need for labor- management committees in particular industries, which would contin- ually concern themselves with identifying appropriate shifts in job assignments for older workers, preparing workers psychologically for these shifts, and with preparation for retirement programs. On the question of reserving certain jobs for older workers there was some disagreement. There was also reference to the need for wage adjust- ments, in some cases in which older workers were shifted to lower rated jobs or in which the older worker's productivity declined, but again there was a good deal of disagreement. There was some mention of the need for greater effectiveness of the anti-age discrimination legislation. There was also discussion of the need for improvement in pension plans, job redesign, and educational programs for union leaders on problems of the aged. Questions were raised about whether the low age limits on entry into apprenticeship programs were appropriate in all cases and whether we need to reconsider the length of apprenticeship training. This may seem a little remote from the problems of older workers, but it is actually part of the whole problem of preparing the labor force for adaptability and adjustment. It was also suggested that physical exams in industries sometimes screen out older workers unnecessarily through too rigid standards and that educational requirements some- times exclude older workers unnecessarily from jobs that do not require much education. In addition, there was some discussion of what the individual worker can do. He needs to be encouraged to be adaptable and to prepare himself for possible job shifts and changes in assignments. We must recognize, however, that we need to think in terms of a continuing process of adult education in a world of rapid technicological changes. Group IV, (led by Dr. Huntington) was concerned with the question of what the Employment SerVice can do. Practically the entire dis- cussion in the morning meeting of that section was on the existing law in California relating to age discrimination in hiring. Suggestions were made, but there was considerable disagreement. Among the changes discussed were proposals that the law should be amended to cover all firms regardless of site, that the law should be extended to cover newspaper ads. (VOICE: Other ads as well?) It was also proposed that the law should be strengthened with respect to its enforcement procedures which are now practically nil. Among several possibilities mentioned was a conciliation procedure, and it was pointed out that the Department of Employment does have a sort of informal conciliation procedure now. It was also suggested that age be eliminated from application blanks for employment, in much the same manner that information on race or religion has been outlawed. The afternoon discussion in Group IV was concerned more directly with employment services, particularly with the older worker -143- PAGENO="0366" 360 AGE DISCRIMINATION IN EMPLOYMENT specialist program. The question was raised as to whether the present staff of older worker specialists -- I think there are 48 in the State as a whole -- was large enough to meet the problem. The point was made that in a small office the. person assigned the duty would not usually have enough time. However, the general feeling was that there were enough older worker specialists, but that they did not have enough community support. One of the essential features of this particular assignment is the creating of a climate of understanding on the part of management and labor of the problems facing older workers. There was much discussion of the problem of counseling, with division of opinion as to whether all counselors needed special training for their role. The general consensus here was that counseling should be conducted by persons with special training and that further efforts should be made to increase the training available. There was also discussion of whether the Manpower Development and Training Act was geared to help older workers, with emphasis on the fact that the program is demand oriented, i.e., oriented toward train- ing people for occupations in which there is a scarcity of workers. Another difficulty is that many jobs requhe more than 52 weeks of training. It was felt that we really don't have a program that is geared toward the needs of the unemployed and it was suggested that the MDTA be re-examined in terms of improved possibilities for older workers. If I may take just a moment, I would like to comment on this because it is something that interests me very deeply at this point. I have been engaged for the last 16 months in a comparative study of remain- ing programs in the United States and Europe, and I think we should not dismiss the possibility of retraining older workers too quickly. There, have been some successful programs for training older workers in a few of the European countries. it is also interesting to note that in Sweden they are beginning to feel that special retraining programs for older workers may not be desirable because there is too much frustration involved when the entire group consists of older workers. The Swede s are now trying to include older workers in a more normal training situation with younger trainees. Another ques- tion raised was whether there should be a special division in the employment service for part-tfme and temporary jobs, and apparently it was felt that it was desirable to investigate the feasibility of estab- lishing a nonprofit agency that would work on this problem, which is so important for the older person seeking work. It was pointed out that the wage level needed to be protected in this connection. Now we come to Group V, which had some very interesting discussions with respect to the role of adult education. There was a great deal of emphasis on the inadequacy of our provision for vocational counseling and on the fact that very few people get access to good vocational counseling. It must be more individually oriented if it is to be effective. I was interested in a suggestion made by a teacher from Contra Costa Junior College who is recommending to the State Depart- ment of Social Welfare that the college be authorized to provide two counselors who would go out into the deprived neighborhoods in old clothes~ making themselves part of the neighborhood, and trying to -144- PAGENO="0367" AGE DISCRIMINATION IN EMPLOYMENT 361 locate people who could benefit from vocational counseling in this informal way. Our vocational educational program is much too limited according to the discussion in this group. There is a problem in this country--and I think not exclusively in this country--of adverse at- titudes toward vocational education because of the high premium placed on white-collar work. There was also emphasis on the fact that we sometimes have to help people learn how to learn before they can go on to vocational educa- tion. The Manpower Development Training Act is developing, as most of you know, a new program aimed at what might be called prevoca- tional or multioccupational training to get at this kind of problem. There was quite a lengthy discussion of the program of training for housekeeping at Oakland City College. Here is an occupation for which some older displaced people might be qualified, but there are various obstacles. People who have a reasonably adequate level of education look with great disdain on this kind of work. On the other hand, unqualified people are not likely to learn about this kind of training opportunity. One man mentioned the fact that if you live in Hayward or Richmond you could not get your travel expenses paid under MDTA to come to Oakland for this kind of program. This brings up what I think may be one deficiency in our MDTA policies. In this connection, some years ago, I was a member of the Alameda County Committee on Aging which was set up under the Federation of Community Services. One of the things we attempted was to develop a homemaker service in which older people, among others, could be recruited and trained to care for elderly and disabled people in their homes. This was a fine idea but the money just was not there to develop it, and it was a question of seeking an allocation from the Community Chest. I am not sure whether this has been accomplished yet or not, but it brings out a point which is very important in this connection. One can talk about developing programs and trying to create types of jobs in which older people could perform a valuable service in the community, but the money must be found either through private or public sources. Group V also recommended a manpower development commission in the local community. The manpower development com- mission would be analogous to the Industrial Commission but would concern itself with manpower requirements and supply. In addition, there were a few other things mentioned, such as the question of whether the provisions in the California law for extended unemploy- ment compensation for persons who are willing to undergo training are adequate and whether, and to what extent, dropouts from training pro- grams are attributable to inadequate training allowances. In conclusion, I have done my best to pull together what you can see is a combination of broad suggestions and very specialized sugges- tions. I have tried to mention a few examples of the more specialized suggestions, because they help us to see that there are many useful small things that can be done as well as broader efforts. But, again, let me say that this experience has been very valuable and I hope that -145- PAGENO="0368" 362 AGE DISCRIMINATION IN EMPLOYMENT out of it will come some type of community organization or committee which will provide a basis for continuous interchange of information and attack on these problems. - 146- PAGENO="0369" AGE DISCRIMINATION IN EMPLOYMENT 363 "LABOR LOOKS AT THE OLDER WORI~R" by Don Vial, Research Director, California Federation of Labor, AFL-CIO, San Francisco I. Introduction We can all stipulate at the outset that there is a serious employ- ment problem concerning older workers. Like other progressive organizations we have supported and con- tinue to support a program of increased aids to older workers to enhance their employment opportunities. We supported, for example, the legislation enacted in 1961 outlawing age dis- crimination and providing for the development of special services and placement aids within the Department of Employment. The value of this legislation has been demonstrated in the in- creased placement of older workers by the Department of Employ- ment, although the two percent decline in placements in 1963 reported by the Department recently should serve as a waring to all that we have barely begun to scratch the surface of the problem. Indeed, we believe the State's ban on age discrimination needs an enforcement agency to process complaints administratively, rather than relying on the present totally ineffective misdemeanor enforcement procedure. But such enforcement, even if it were legislatively feasible, should not be viewed as any kind of a panacea. The truth of the matter is that many of our older workers -- espe- cially those with little formal education and few skills - - are caught in an "economic vise" that is squeezing them right out of their jobs. They are being held in place in the "vise" by the structural rigidi- ties of the labor market tbet work against their adjustment to technological change; but it's the failure of the economy to pro- vide enough jobs to go around that is doing most of the squeezing. We are deluding ourselves if we think that we can really penetrate the problem merely by breaking down "stereotyped" attitudes to- ward job performance and the ability to learn of older workers, or by expanding training and retraining efforts in combination with better counseling and placement services under an effective ban on older worker discrimination. All of these are necessary, of course. We can well afford to allocate more of our resources to overcoming these structural barriers -- and we must. But, as in the case of our special efforts to help minority groups and the youth, our objective must have a higher purpose than -147- 85-376 0 - 67 - 24 PAGENO="0370" 364 AGE DISCRIMINATION IN EMPLOYMENT merely to provide for a better distribution of `empty stomachs' without regard to race, creed, color, national origin, or ~ In short, a program of aids to older workers has meaning only within the context of economic policies to restore full employment by effectively relating our needs as individuals and as a society to the production potential of the nation. This may well mean some basic socio-economic reforms that are long overdue. II. There is no denial of the structural aspects of the older worker problem. However, this does not mean that it is getting worse. Some figures developed by U. C. Professor R. A. Gordon that I have seen which attempt to measure whether the structural prob- lem is getting worse indicates that the magnitude of the problem has not changed much during the post-war period. The statistical procedure employed is to allocate the per- centage of total unemployment in the nation to age groups during the post-war years of lowest unemployment. The rate of unemployment in the 45-64 age group as com- pared to the total national unemployment rate in the years 1948, 1953, 1956, 1959, 1962, and 1963 is expressed as as a ratio, and then multiplied by the percentage of the total labor force in the age group for each of these years. This gives the percentage of unemployment that is attribut- able to the 45-64 age group. For males, the 45-64 age group accounted for 16.6 percent of total unemployment in 1948 as compared to 15. 5 percent in 1963 -- a drop of one percentage point. The movement was from 16.6 percent in 1948 to 19.4 percent in 1953; 17. 5 percent in 1956, 17 .8 percent in 1959; 17 percent in 1962; 15.5 percent in 1963. For women, the 45-64 age group accounted for 5. 7 percent of total unemployment in 1948; then increased to 6.7 per- cent in 1953 and 8.7 percent in 1956. Since 1956, the amount has remained almost stable, declining slightly to 8.4 percent in 1963. As indicated, these figures are not cited to imply that we have no problem. On the contrary, we have a very severe problem that is going to require .a lot more than a few programs to remove struc- tural barriers to skill development and job placement for older workers. To me, the figures indicate several things: First, the percentage of total unemployment attributable to workers in the 45 to 64 age group is consistently less than the percentage of this age group in the labor force. This means that the problem lies not with the group as a whole, since it is faring better as a -148- PAGENO="0371" AGE DISCRIMINATION IN EMPLOYMENT 365 group than other age groups, but with those who happen to get caught in the "economic vise" I described earlier. We have to be careful in our generalization about the older worker; the prob- lem is largely an individual one and has to be handled as such. Second, we need to keep as many as possible out of the job destroying "economic vise" not only by keeping our purchasing power high to provide enough jobs to go around, but also by structuring some of our demand for goods and services -- perhaps especially the services -- to create jobs that meet social needs that at the same time utilize the skills that have been acquired or developed by displaced older workers. Third~, programs to remove structural barriers for those who get caught in the "economic vise" may require, not only better training programs, better counseling, and better "early warning" systems on job displacement, but also a number of reforms in socio-economic programs. III. We might look at some of these reforms: It is frequently argued that fringe benefit costs are higher for older workers than younger workers and that these costs pose employment barriers to otherwise qualified persons who might be able to acquire employable skills after being displaced. Unions tend to catch the blame because they are primarily respon- sible for the advancements in fringe benefits. This is somewhat akin to going after the goose that laid the golden egg. In the first place, the collective bargaining contract has been the greatest source of economic security for the older worker through operation of the seniority principle, health care plans, pensions, severance pay provisions, automation funds, etc. The problem lies with the older worker for whom these protections turn out to be "not enough" that is, the older worker who loses his job and benefits for reasons beyond the reach of the collective bargaining contract or collective bargaining system. For the older worker who is eventually displaced, it may be that he will be considered an "adverse risk", medically, in the health care plan of a potential em- ployer. It may be the case also that the older worker will cost a new employer more than a younger worker under the pension plan negotiated with the union. Pooling arrangements have been suggested in health and welfare programs to provide for broader sharing of risks. Vesting rights in pensions are advanced as partial answers to the pension cost problem. -149- PAGENO="0372" 366 AGE DISCRIMINATION IN EMPLOYMENT Apart from these suggested arrangements, it is to be noted that organized labor did not venture into these fringe benefit areas necessarily as a matter of preferred choice. The money that goes for health and welfare and pensions comes out negotiated money that would otherwise be available for wage increases. Unions started negotiating health and welfare plans after labor was unable to secure approval of either a national or state prepaid health care plan. The negotiated plans were the "second best" that could be obtained. The older worker problem, in this sense, is a reminder that perhaps the time has come to recon- sider a national or state health care plan. If not, then let's not blame unions for doing the next best thing available to workers. The same applies to pensions. Labor would prefer to see an adequate federal social security program that would make negoti- ated pensions unnecessary. These are some of the reforms that we ought to be thinking about. Let's keep our eyes on the main tent when we talk about older workers' problems in these areas. IV. Training Problems Early warning systems are not easy to negotiate. Employers fear loss of competitive positions when bargaining with unions on these issues. Information on new technologies well in advance of introduction is vital to the whole field of skill development, if coordinated community approaches to job training are to be undertaken. Retraining of older workers has no chance of achieving substantial success unless young workers coming into the labor force have the basic training they need for the development of employable skills. Otherwise, they are vieing against the older worker in areas of dimin- ishing labor requirements, as much as possible, for older workers. Early warning systems and projections of new technologies may require a load time, sufficient not only to acquire the skills, but also to pick up the basic skills that may be necessary for an older worker to pass an aptitude test to qualify for the training. In some cases it may be desirable long before the new technology is introduced to provide the financial means whereby an older worker may undertake such basic training without loss of pay. -150- PAGENO="0373" AGE DISCRIMINATION IN EMPLOYMENT 367 V. Conclusions 1. Older worker problems stem primarily from our basic unemploy- ment problem. 2. We must work at the structural barriers while combining an effective demand program with socio-economic reforms to expand older worker employment opportunities. Our fiscal tools -- especially public expenditure programs to meet com- munity needs -- should be used with a rifleman's precision. There should be more structuring of "demand' in this regard to utilize the skills of older workers in areas of pressing social need. This also "buys time" in coming to grips with skill development problems presented by the advance of technology. 3. In the long run, also, we must come to grips with the problem of equating our production potential to our goals in terms of leisure as well as the provision of goods and services. Lei- sure, potentially, could be one of the greatest products of the free society, provided it is related in a meaningful manner to our national goals in the production of goods and services and their distribution. This has vast implications for older members of our work force, and we are not facing up to them. -151- PAGENO="0374" 368 AGE DISCRIMINATION IN EMPLOYMENT MANAGEMENT LOO}~S AT THE OLDER WORKER' by E. P. James, Professional Placement Manager, Aerojet General Corporation Today's employment manager is deluged with requests and pressures from all directions to give special attention to various segments of society in his hiring policies. These pressures come from various sources -- billboards, organizations, radio and television, news- papers, and magazines: Hire the handicapped! Hire minority groups! Hire college students! Provide summer employment programs! Develop retraining programs! and now -- Hire the older worker! These pressures are constantly increasing -- to the point where the poor employment man feels the only way out is to hire a blind, 50- year-old, Negro, college student, and then, retrain him. The employment man's first responsibility is to his employer -- to hire the man or woman who is best qualified to do the particular job at hand. The success of any business or industrial firm rests to a large degree on the competency of its employment staff -- the better the employment office does its job, the better qualified are the people brought into the organization, and therefore the better are the firm's chances for successful operation. If you are in a profit-making business, as most of you are, you under- stand all too well that to stay in business you must produce and grow on the basis of sound business principles. You don't employ people just to get them off the unemployment or welfare lists -- you hire them because they have the skills and experience you need to get a particular job done. As we evaluate hiring policies, we must realize that the nation has yet to learn how to utilize its human resources adequately. It would almost seem that the well-worn statement -- people are our most precious asset -- has an empty ring when one considers the number of older workers who cannot find suitable employment. Interest in the older worker has more than an economic dimension. The loss of opportunity to make a living is more than a loss of income or the loss of a productive citizen in the community. We are concerned not only with the economic problem, but with the capacities and opportunities of our older citizens to maintain a worthwhile existence socially, psychologically, and physiologically. In the census projections of population for 1955 to 1975, the age group 25 to 44 will increase by 13 per cent, but the age group 45 and -152- PAGENO="0375" AGE DISCRIMINATION IN EMPLOYMENT 369 over will increase 34 per cent. Therefore, the time is at hand when we must give serious attention to the older worker. PROBLEMS OF HIRING OLDER EMPLOYEES The older person who is seeking employment encounters major dif- ficulties and roadblocks. Some of these are real difficulties -- some are imagined. All too frequently employment opportunities for older workers are denied because of prejudices on the part of em- ployers. I would like to look for a moment at some of the prevailing attitudes of employers for not hiring older workers: 1. Older workers are inflexible -- they are too set in their ways, they resist change; are difficult to train, lack versatility, etc. 2. They don't keep up with changing technology. From the time of Moses to the Victorian Age, change was slow, and age was revered because it implied wisdom. Today the emphasis is on youth, and technological advances are rapidly dissipating the value of the older worker's experience. 3. They are unable to maintain normal production standards -- are slower and more prone to make errors. 4~ Older workers frequently cannot meet the physical requirements of the employer. They are more susceptible to arthritis, rheumatism, heart disease, etc. 5. They cause the employer' s cost for fringe benefits to be increased -- pension and insurance costs are greater. 6. Some companies are just set against hiring older workers: Charles W. Ufford, Director of Industrial Relations for Warner & Swasey Co., a Cleveland machinery maker, states: "We like to hire our workers young and let them work themselves up the ladder. This policy is good for our younger workers, and it' s good for the older workers who started with us. But it's not so good for the older fellow who's outside trying to get in." 7. Companies with a rigid retirement policy of 65 are reluctant to hire a man over the age of, 55 because they cannot provide retire- ment benefits for those with less than 10 years of service. Robert N. Sprague, program director in employment and retirement for the National Council on Aging says that the overall trend in industry is not toward flexible retirement but rather toward more rigid mandatory retirement policies. Compulsory retirement at age 65 is often necessary to make room for promotions at regular intervals. These problems just cited are some of the major reasons given by employers for not wishing to hire older workers. Let us remember that many of these so-called reasons are possibly generalizations and have no widespread basis in fact. -153- PAGENO="0376" 370 AGE DISCRIMINATION IN EMPLOYMENT REASONS WHY OLDER EMPLOYEE IS VALUABLE There are many studies available that refute some of the misconcep- tions held by employers relative to the hiring of older workers. I would now like to look at some of the reasons why the older worker can be valuable to business and industry: 1. PRODUCTIVITY -- a study by the Bureau of Labor Statistics con- cluded that productivity of older blue-collar factory hands is generally as good as or better than that of younger workers, except in jobs requiring considerable strength or high-speed work on an assembly line. Another study examined the relationship between age and work performance for about 2, 200 workers in eight footwear and men's clothing manufacturing establishments. The data showed that output per man-hour remained fairly stable through age 54 and declined slightly for the 55 to 64 age group. However, many indi- vidual workers in the older age group (55 to 64) had a higher output than younger persons doing comparable work. These data emphasize the point that an employer should evaluate the potentialities of each individual applicant rather than draw conclusions from his chronological age. 2. EXPERIENCE -- middle-aged and elderly workers generally have suf- ficient experience to preclude the necessity for lengthy training sessions. From my own employment office experience with Aerojet during its rapid build-up of personnel from 1956 to 1963, I know that the emphasis in hiring was on experience -- we were a new industry and there was no time for extensive training -- weneeded people who already possessed developed skills. Another example -- in the field of selling, a number of studies have shown that older, experienced salesmen make more impressive records, than the seemingly capable but inexperienced younger salesmen. 3. ABSENTEEISM -- older workers are actually absent less because they don't take off for social and personal reasons like the under-SO age group. When they are out for illness, however, they may require a somewhat longer recovery period than the younger group. Most studies indicate that there is no significant relationship be- tween attendance rates and age. 4. TURNOVER RATE -- in a study of turnover rate among its female employees, a life insurance company found that of the women hired between the ages of 30 and 40 in the previous ten years, only one in three was still on the job. In the 40-50 age bracket, half had stayed. Of those hired in the 50 to 65 bracket, not one had left. 5. LOYALTY -- in general, older employees exhibit a higher degree of loyalty to the company than the younger age group. 6. GUIDANCE -- older workers can provide considerable guidance for the younger employees. -154- PAGENO="0377" AGE DISCRIMINATION IN EMPLOYMENT 371 7. JOB ATTITUDE -- several studies have shown the past-50 age group to be more cheerful, cooperative, and conscientious than the younger employees. Other studies indicate that there is no appre- ciable difference in the job attitudes of the age groups. 8. FLEXIBILITY -- the idea that you can't teach an old dog new tricks doesn't necessarily apply to the older worker. Dr. Leland P. , Director of the National Training Laboratories states, "Learning ability for adults does not fall off to any marked degree -- except speed of learning. By and large, a properly motivated older employee can learn anything as well as an equivalent younger person." Older persons can and do learn new techniques. In a rate performance task by age groups, it was found that some per- sons in their 50's and 60's required more trials, made more errors, and required more time to complete the task than did persons in their 20's. However, significant variations occurred between individuals in the higher age groups. Some of the 50- and 6 0-year- olds were learning just as readily as the majority in the younger age ranges. Although some of the older people were slower to grasp, once they did, they followed up better and were more reliable. 9. FRINGE BENEFITS -- some authorities claim that many employees have an exaggerated idea of the cost of fringe benefits in relation to the older worker. According to one insurance expert, premiums for group life insurance and medical coverage are likely to be higher for a group of 25-year-old workers than for a group of 45-year-olds. While life insurance rates naturally go up with age, the heavy maternity benefits paid many younger workers lift their medical claims above those of workers in their midforties. Even for a group of employees 55 years old, an age when medical bills are beginning to rise again, premium costs run only 20 per cent or so above those for a work force of 25-year-olds. In 1956, the Secretary of Labor invited a group of experts from the pension and insurance fields to participate in a series of discussions to clarify the issue of pension and insurance costs on hiring policy and practice. In its report, the committee stated, "It is abundantly clear that pension and insurance costs need not stand in the way of the traditionally sound personnel policy of hiring on the ability to do the job, regardless of age or other nonperformance specifications." 10. HEALTH -- although older workers usually find it more difficult to meet an employer's physical requirements, we must realize that a number of older people are quite fit physically. It is important to consider the physical demands of each particular job in relation to the health of the employee being considered. High inflexible standards should not be required of all workers for all jobs. RECENT TRENDS IN EMPLOYING THE AGED As reported in the February 1963 issue of Management Review, Labor Department studies underscore the wider acceptance of older employees. In 1956, a study of job openings in five U. S. cities showed that -155- PAGENO="0378" 372 AGE DISCRIMINATION IN EMPLOYMENT 58 per cent carried upper-age limits. In 1961, the agency found that only 39 per cent of the openings in the same cities carried maximum age limits. Let's take a look at what some businesses and companies are doing to employ more older workers. 1. Department Stores -- when Dallas' new Medallion discount depart- ment store began hiring its work force in 1962, it announced there was no maximum age limit. As a result, when the store opened, the average age of the 200 employees was 52 -- some 12 years above the average for a typical new store. One of the employees was 74 years old. Says the Medallion's President of his store's hiring policy: We're not doing this to be humane. Our reasons are entirely selfish. We're takil)g on these people because we expect them to do more for us than younger employees." Thousands of people past 50 have found gainful and gratifying employment through the opportunities in department stores throughout the country. A cross-section survey of some of these stores shows an approximate 20 to 40 per cent of the employees to be past 50 and a small per- centage past 65. 2. International Shoe Company, Hartford, Illinois, hires no one under 45. Their Vice President says, `We found older workers to be of better quality. They've got more interest in what they're doing. 3. International Telephone and Telegraph Communication Systems, Inc., Paramus, New Jersey, receives significant mileage from a policy that permits the hiring of technical specialists over the age of 65. Discussing the guiding philosophy of the hiring policy, ITT's per- sonnel manager says the main criterion is that the applicants be physically fit and able to make a significant contribution. 4. The Industrial Chemical Division of Stepan Chemical Co., in Northfield, Illinois, has launched a new program that offers retired chemists an opportunity to work in the laboratory on their own pro- jects at their own rate and under their own direction. The men are not hired, nor are they paid. They work in a well-equipped labo- ratory separate from the company' s other operations. In return for use of the facilities, Stepan Chemical asks these men for first opportunity to purchase from them any marketable ideas or products they develop. 5. Hastings College of Law (affiliate of the University of California) provides a classic example of the re-employability of older men. A shortage of professors led the school to recruit oldsters. So much success was experienced with their performance that the school set 65 as a minimum hiring age. 6. The Peace Corps is recruiting as many older people as it can pos- sibly get. Their performance has been found to be outstanding, and they are valued for their greater tact as well as experience. -156- PAGENO="0379" AGE DISCRIMINATION IN EMPLOYMENT 373 7. Republic Steel Corporationin Cleveland has set up a training pro- gram where workers over 60 have first crack. Instead of teaching new techniques as such, instructions focus on existing operating procedures. This program is successful in enhancing the older worker s value to the company and in providing him renewed challenge. 8. IBM has instituted a company-wide policy aimed at motivating older employees to plan methodically for their retirement. The company realized that fear of what retirement holds was damaging to the performance of workers over 55. Their morale was low, affecting their output and dependability, and making them resist change. Therefore, IBM now has a preretirement program that helps the older employee begin planning systematically at age 55 for his retirement at 65. 9. Aerojet-Sacramento. Because I was curious to know just how Aeroj et stands in its employment of older workers, I checked the records and learned that we had at the Sacramento Plant as of April 1, 7,643 employees over the age of 40 -- this means that 39 per cent of our labor force at the Sacramento Plant is 40 years or older. 5,211 are between the ages of 40 and 50. 2,048 are between the ages of 50 and 60. 384 are between the ages of 60 and 70. In discussing these current trends of companies employing older people, we must realize that the examples given referred to older workers having at least some skills and a number of employees having formal educa- tions. We did not discuss the worker who is 45 or over and who has relatively little education and virtually no skills. Extended periods of unemployment are particularly frequent for these workers. This is an area where we especially need to find methods for utilizing the older labor force. OLDER EMPLOYEES MUST BE WILLING TO HELP SELVES If the older worker is to find satisfactory employment, he may be called upon to make certain sacrifices. Management cannot do every- thing -- it is a two-way street. The older worker must be willing to: 1. Rectify deficiencies in his training or experience. 2. Change his residence, in some cases. 3. Accept work other than in his regular or usual occupation. 4. Take a possible cut in pay. 5. Actively seek out channels to help him locate a job. Many older employees become discouraged after one or two tries at finding em- ployment and fail to attack the problem with a continued degree of -157- PAGENO="0380" 374 AGE DISCRIMINATION IN EMPLOYMENT urgency. Workers should make direct application to employers where possible -- also should use such channels as mass media advertising, State Employment Service, and private employment agencies. Must be tenacious. POSSIBLE SOLUTIONS FOR IMPROVING THE EMPLOYMENT PROSPECTS FOR OLDER WORKERS In conclusion, (1) let us reaffirm the importance of management's appraising a worker' s adaptability on the basis of individual capacity and aptitudes rather than on age. The potentialities of each individ- ual applicant must be evaluated on the basis of the job opening that is to be filled. (2) let us be prepared to revise some of our hiring practices and policies where rigid limitations now exist. (3) let us consider redesigning some of our jobs to make them more suitable for older people who are still productive employees. And finally, (4) let us examine critically the whole area of retirement. Retirement on a mass scale is a relatively new phenomenon in American life. It is the by-product of an industrial society with social insurance and industrial pensions. It could perhaps well stand some refinements and modifications. -158- PAGENO="0381" AGE DISCRIMINATION IN EMPLOYMENT 375 `THE AGE FACTOR AND EMPLOYMENT" by Mr. Karl Kunze, Personnel Director, Lockheed Aircraft Corporation First, I would like to discuss the concept of age and the older worker. In reality, every person has many ages. For example, he has a physiological age which is measured by strength and vitality, by sen- sory acuity, reaction time, coordination and general physical fitness. Physiologic age can be considered the product of three factors: Time elapsed since birth; second, wear and tear to which his physiology has been exposed; and, three, the extent of reparation, that is, the degree to which a person has maintained good physical condition. He also has an emotional age and for this age the scale runs from emo- tional immaturity, such as impulsiveness, imbalance to emotional maturity, deliberativeness or balance. As we know, emotional age is not directly related to chronological age. Undoubtedly you have seen some young people who are very mature emotionally and some adults who act like children so that you don't have a direct relationship be- tween emotional age and chronological age. We have an educational age which is simply years of schooling plus training courses taken and there is a much closer relationship here between chronological age and educational age than one might imagine. Older people generally have less education than their younger counter- part today. As an example, at Lockheed, twenty years* ago the average educational age of our work force was eight years, it is now 12 years and this means that 50% of our people have more than 12 years' educa- tion and this level is rising slightly every year. We have an intellectual age or one's total mental resources or the acquisition of intellect as exhibited by the use to which it is put. Intellectual age does not mean intelligence. Intellectual age actually is intelligence plus the extent to which we have exercised our intelli- gence plus the degree to which we are using it. All of these add up to intellectual age. Then we come to chronological age which is simply the time elapsed since birth. And this is the age that is getting all the attention. And this is the age which I do not think should get all of the attention be- cause of these other ages that I have described. Now, there are many definitions of the older worker. We consider the older worker primarily to be the person who is 40 or over or is having difficulty securing employment for age reasons. In industry, an ex- ecutive is considered old if he chases his secretary around the desk in the process forgets why he is chasing her. During the years, much evidence has accumulated suggesting that chronological age is a deceptive, misleading and unreliable indicator of employability. All of you have witnessed older people who have much reserve energy to spare. You have also seen younger peoplewho are running out of steam. This is not unusual, this is not the exceptional case and we -159- PAGENO="0382" 376 AGE DISCRIMINATION IN EMPLOYMENT should not discount the fact that older people are more susceptible to illness and do have health problems. On the other hand, we also know that older people develop compensations as an outgrowth of the aging process, such as high dependability and good work habits. I would like to comment on some research findings on the performance of older workers. Most of the earlier studies were conducted in Great Britain, and the reason is that Great Britain had manpower short- ages during World Wars I and II and had to make use of their older people. These studies had more to do with specific aspects of work than they did total work performance. However, it was found that many physiologic changes become manifest at a relatively early age, in the mid-twenties. Vision, hearing, and eye-hand coordination are examples of this, and fortunately, most of these are correctable or compensations can be devised for such limitations. However, these specific aspects correlate very poorly with work performance, and certainly this form of deterioration does not mean that older people are less successful in industrial work. We know that skills can be maintained at an age well beyond that which they are learned, at a reasonable pace. And this is particularly true among skilled workers and a good example of that would be stenography. Studies of absenteeisms, accidents and turnover put the older worker in a relatively good light. The older worker usually has fewer ab- sences, but when ill, takes more time to recuperate. They also have fewer accidents, but when injured, have a longer recuperative time. Occupational mobility is greatest among younger workers. Older workers are more apt to stay with a company. However, there are industrial and occupational differences. In some industries this dis- tiriction does not take place. Especiallyin industries where the work requires a higher expenditure of effort. In a study at Lockheed, we found that the morale level of workers was, high in about the 20's. It dropped consistently to age 40 and then rose from 40 through 65 to a point beyond the morale level of workers 20 years of age. Now this study has been confirmed by others in the field of attitudes. There are a few other interesting highlights from our research. Older workers seem to work best in small groups and under stress-free con- ditions and they are better in jobs emphasizing accuracy rather than speed. We feel, at Lockheed, `that it is unfortunate tt~t there is so much attention paid to chronological age and this happens despite the fact that we know that people react differently to the passage of time. However, I must be quick to point out that the average ages vary con- siderably from one occupation to another in our company and I think this gives some pretty good insight to one of the problems of the employment of the older person. Let me mention some average ages by occupation. For example, the average age of our apprentices is 21. We hire apprentices right out of high school or junior college, train them for four years when they be- come journeymen, after which time they practice in their trade and serve American industry. We have people in electrodata programming work. -160- PAGENO="0383" AGE DISCRIMINATION IN EMPLOYMENT 377 This is working with electronic computers. Their average age is 27. This is a relatively new field requiring recently developed and specialized competence. Only those who entered the work force with- in the last 10 years are apt to have the requisite abilities for these jobs so that this occupation does have a low relative age. In con- trast, the median age of our toolmakers is 47. The toolmaker is a product of years of experience and training and the job requires a wide range of mechanical skills and particularly requires experience. Expe- rience in a field that is not moving too rapidly, at least it has not been up to now, and we regularly hire toolmakers in their 60's. The average age of our guards is 53. Here we look for stability, mature judgment, a sense of responsibility. Since our retirement income plan went into effect we have had four retirement counselors. Their average age has been approximately 68. The most important requisite to this job is firsthand knowledge of the problems of leaving work and entering retirement. I have selected these men. They are in my department and whenever I need a retirement counselor, I try to find somebody who has retired successfully. Also, the question is sometimes asked "What does industry do when an employee for one reason or another reaches an age where he can no longer carry the full load of his assigned occupation"? We certainly do not have all the answers to this, but we do have courses of action that can be taken if we feel that inflexibility is not a unique character istic of the older person, that there are flexible and inflexible people throughout the entire age range. I think this is an important point. I am going to repeat it. We feel that inflexibility is not a unique characteristic of the older person, that there are flexible and inflexible people throughout the entire age range. This is something that I think that maybe you should talk about in your workshops. Maybe not as a theme but as a point to be brought out to potential employers. We have found the transfer of older people to different lines of work often can be accomplished quite successfully. For example, Lockheed has an occupation called wire fabricator. It is a relatively low scale and does not require real strenuous effort, but it does require patience and requires good attention. The incumbents in this occupation have a median age of 53 years. That means that 50% of the women, and these are largely women in this occupation, are more than 53 years of age. Forty-five of the 62 incumbents were transferred into this occu- pation at one time or another from some other more demanding job. The average age at the time of such transfer was 49. Through transfer policies like this we can minimize age placement problems. -161- PAGENO="0384" 378 AGE DISCRIMINATION IN EMPLOYMENT "SUMMARY OF SAN DIEGO WORKSHOP'T by the Community Welfare Council Problems Concerning Employment of Older Employees Community 1. Insufficient positive lead- ership in efforts to im- plement solutions to the problem. 2. Lack of agreement within the community on the type of new opportunities that should be developed to promote addi- tional employment in this area. 3. Oversupply of skills not cur- rently in demand. L~. Myths about the older employee. 5. No central clearinghouse for part-time jobs or jobs specifically designed for older workers. 6. Lack of community concern in the development of train- ing or retraining classes for the older worker who is now de-skifled. Enmloyer 1. Lack of knowledge of performance potentials of older workers. Suggested Solutions for Problems of Employment of Older Employees Community 1. Provision of an adequate com- munity organizational vehicle to implement recommendations at the local level - membership: management, labor, public and private employment services and older employees. 2. (sane as above) 3. Expansion of the Manpower Development Training Act to develop needed skills. Creation of new jobs through vigorous and imaginative development of natural resources within our area or other industries. 14. General education program for total community on the problems. 5. State Employment provides clear- inghouse for part-time jobs and jobs specifically designed for older employees. 6. (same as #14) Employer 1. Increase of State Employment Services staff for extension of work with employers. -162- PAGENO="0385" AGE DISCRIMINATION IN EMPLOYMENT 379 Employer - continued 2. Inadequate counseling for worker unable to continue on current job. 3. Insufficient efforts to transfer employee to dif- ferent job within the company, at time of inability to con-. tinue former job. 14 Outdated "hiring and firing" practices. 5. Unemployment insurance, when rating and reserve accounts are involved. 6. Pension plans not geared to hiring older employee often costly and inflexible. 7. Higher rates for health plans. 8. Costs of providing classes for upgrading skills of employees. Employer - continued 2. Prepare person for change by prelayoff interview. 3. Additional publicity on avail- able testing programs to evaluate potential of employee for change within company. J4* Education of employer through #1. 5. State legislation to permit the employer to hire any worker on a thirty-day trial basis with- out adverse effects on his un- employment insurance reserve account where the employee is discharged through no fault of his own or his employer's. (This would obviate adverse experience ratings.) 6. Vested pension rights (when transferred from one corporate entity to another, carries forward pension credit); pro- gram on national level to bring uniformity into pension plans. 7. The differential cost of health plans involved in the hiring of the older or younger employee to be paid by the employee. 8. Provide the employer with a tax credit when employees partici- pate in a program provided by the employer for the upgrading of their skifls. -163- 85-376 0 - 67 - 25 PAGENO="0386" 380 AGE DISCRIMINATION IN EMPLOYMENT Employee Employee Through individual counseling by State Employment, employer, union, and self-help clubs (covering all levels of employment). 1. Motivation -- insuffi- 1. Interpretation of realistic cient felt need for, or need for retraining. fear of, retraining. 2. Inflexibility regarding 2. Education on the geographic geographical location of forecast of the need for spe- job. cialized skills. 3. Fear of change in status 3. Exploration of the meaning to accompaying change in type the individual of the proposed of job -- shelter and change of employment. security of one skill dif- ficult to leave. 1~. Lack of imagination about ~. Suggestions of other types of other types of work. employment; descriptions of jobs and skills needed. 5. Physical disabilities of 5. Consideration of jobs that can older years. be filled within physical limitations. -164- PAGENO="0387" AGE DISCRIMINATION IN EMPLOYMENT 381 Recommendations to California State Employment Service 1. Sponsor employment counseling groups for various levels of employment. 2. Increase publicity concerning available testing programs for determination of alternate areas of employment. 3 Further extend listing of job opportunities. 4. Strengthen activity in the area of part-time employment. 5. Increase in counseling staff in order to provide more comprehen- sive and individual counseling. Further provision for liaison between counselors and employment sources. 6. Expand general community education program on total problem. 7. Establish position within the Employment Service to serve as staff for community committees and work cooperatively with committees on problems of employment of older employees. 8. Improve methods of educating employers and employees. -165- PAGENO="0388" 382 AGE DISCRIMINATION IN EMPLOYMENT APPENDIX B JOB PERFORMANCE CHARACTERISTICS OF OLDER WORKERS -166- PAGENO="0389" AGE DISCRIMINATION IN EMPLOYMENT 383 JOB PERFORMANCE OF OLDER WORKERS Among factors important in measuring a worker's success on the job are his attendance, his ability to meet production standards, his flexibility in learning new operations and adjusting to changing job conditions, and his cost to the employer in terms of job accidents, insurance and pensions. In all these fields, older workers compare favorably with the general working population in spite of some preju- dices to the contrary. Attendance The older worker is more likely to be on the job than workers in younger age groups. Studies made by the United States Bureau of Labor Statistics after World War II covering about 18, 000 workers in manu- facturing industries showed that the absenteeism rate was lower among workers over age 50. BLS studies in 1955 and 1957 in the footwear, clothing, and furniture industjies showed negligible differences in attendance by age groups. ii A recent study of attendance in a group of 88 women production workers aged from 18 to 64 was made1in the general packaging department of a large manufacturing plant. .?i About 60 percent of the women were under 45 years of age and 40 percent were 45 years of age or older, with a range of age distribution from age 18 to age 64. The absence record of each worker for a one-year period was reviewed. Those under 45 years of age had an average absence of 10.2 days for the year vs. 7. 9 days for the older group. Among the older group, 32 percent lost no days during the year while only 22 percent of the younger had equally good attendance. The older group was absent less frequently for "personal" reasons than the younger group, although the difference was slight. Also, the younger group visited the plant hospital for first aid twice as often as the older group, although the larger number of machine operators in the younger group probably affected this result,. Comparing the machine operators in both groups, however, the older ones visited the plant hospital on the average of 1. 6 times each during the year, while the younger ones visited 2.6 times. a. U. S. Department of Labor, Bureau of Labor Statistics. Comparative Job Performance by A~. Study of Workers in Men' S Footwear and Household Furniture Industries. Bulletin 1223. Washington, U. S. Govt. Print. Off., 1957. 60 p. b. U. S. Department of Labor, Job Performance and Age--A Study in Management. Bulletin 1203. Washington, U. S. Govt. Print. Off. , 1956. 72 p. ~/ Sellett, Lucien R., ~Age and Absenteeism," Personnel Journal, June, 1964, Pages 3.09-313. -167- PAGENO="0390" 384 AGE DISCRIMINATION IN EMPLOYMENT Some investigations suggest that illness may be a minor reason for absences. Several recent studies found that as much as 80 percent of absences were caused by such. things as hangovers, lack of trans- portati9n, looking for other jobs, shopping, poor working conditions, etc. It may be that the better attendance record of older people results from better work habits and a greater sense of responsibility. Older workers may, in general, have more control of their alcoholic intake, be less inclined to acquire another job, or spend less time in shopping. There is ample evidence that the older workers are less likely to change jobs. In the furniture and footwear plants studied by the BLS, more workers aged 45 to 64 remained on the job throughout the period of study. In the BLS study of 18, 000 manufacturing workers, workers aged 45 and over had a better attendance record than the younger group. The frequency of disabling injuries was highest in the 35- to 44-year- old group. Even excluding workers aged 60 and over, who tend to work in less hazardous occupations, the record of the group aged 45 to 59 showed fewer injuries and minor disabilities such as colds and headaches. Even though older workers may take longer to recover from an illness, they are apt to be ill less frequentl~y. Older people, too, often have developed immunities to infections which plague the younger group. The aging process does produce physiological changes, but for most people, the changes are not incapacitating. The BLS has found from studies of unemployed workers that older persons do not have a higher rate of physical disabilities constituting vocational handicaps than younger persons. (In the Employment Service, a handicapped worker is one who has a physical, mental, or emotional condition which may require the applicant to change or modify his occupation, restrict his job opportunities, or require special consideration in placement. Productive Capacity BLS on-the-job studies of productivity in the footwear and furniture industries showed that: 1. Output per man-hour rose from the under 25 age group to the 2 5-34 group and then declined gradually up to age 65, when a sharper decline occurred. However, differences between adjacent age groups up through age 64 were small. Taking the group aged 35 to 44 as a base and assigning the value of 100.0 to its production, all other age groups were within 8 percentage points. a. Jackson, J. J., `Factors Involved in Absenteeism," Personnel Journal, 1944, Vol. 22, Pages 289-295. b. Bethel, L. L., Et Al., Industrial Organization and Management, McGraw-Hill, New York, 1945, Page 481. -168- PAGENO="0391" AGE DISCRIMINATION IN EMPLOYMENT 385 2. Individual differences in average output were greater within each age group than between different age brackets. Substantial pro- portions of older workers performed better than the average for younger groups. Among the women in the 45-54 age group, 47 per- cent produced more than the average of the women in the 35-44 group. Even among the group aged 55 to 64, about one-third of the men and women performed better than the average for those aged 35 to 44. Another study of office workers by the Bureau of Labor Statistics covered about 6, 000 employees of five Federal Government Agencies and 21 companies in private industry. Occupations included typing, secretarial work, filing and record maintenance, key punch, and operation of business and duplicating machines. The study produced three important findings: a. The difference in output per man-hour between age groups was for the most part insignificant. Taking the group aged 35 to 44 as the standard, all other groups were within two percentage points in output, except those under 25 who dropped 7. 6 percent below the base. Lack of experience appeared to be the main reason for the younger workers' lower performance. Workers aged 45 and over produced as much as the younger ones with an equal degree of accuracy. Those aged 65 and over generally averaged as high as any of the others. b. There was considerable variation among workers within age groups, as in the industrial studies. A large proportion of older workers exceeded the average performance of the younger groups. c. Workers in the older age groups had a steadier rate of output, with less variation than workers in the younger age groups. Frequently, an individual would produce at least twice as much as some other workers in the same age group. About 45 percent of those aged 45 or over had a higher rate of output than the average of those aged 35 to 44. These findings are in line with the results of a study by the Canadian Department of Labor. In two large department stores, the records of sales employees showed that the older ones performed as well as the younger ones, and sometimes better. Workers hired over 40 tended to out-perform those hired below 30. Another BLS study of Federal mail workers' job performance in 1961 confirmed earlier findings that differences in output by age are slight, and there is greater consistency of performance in the older age groups. Older workers performed at a steadier rate with less variation than did those in the younger age groups, and those aged 60 and over were 60 percent more consistent than those under 25. The index of ~/ U. S. Department of Labor. Comparative Job Performance by Age- Office Workers. Bulletin 1273. Washington, U.S. Govt. Print. *Off.,-1960. 36p. -169- PAGENO="0392" 386 AGE DISCRIMINATION IN EMPLOYMENT consistency was related to experience and length of service. The mail sorting studies showed that the average performance of older and younger age groups were within 4 percent of the base groups' score. As in the office study, there was little decline in performance up to age 60 and a minor decline from 60 to age 65. While production dropped a little more at age 65, the high consistency of performance among the workers aged 60 or over is an important factor to 9onsider in hiring for operations requiring a constant flow of work. Work Attitudes The older worker's strong desire to work is reflected in his job stabil- ity, the duration of his employment and relatively fewer job changes, and his attitude of responsibility which is recognized by employers when they request mature, experienced, and stable employees. A poll by the National Association of Manufacturers covering 3,000 companies showed that 50 percent of the employers rated the attitudes of older workers superior, and 49 percent rated them equal to the job attitudes of the younger workers. Ability to Learn Changing jobs and industrial processes have put a premium on learning ability. The speed and ease of learning a new job are important to employers in any situation where a new worker must be hired. Intelligence tests have not proven to be good indicators of differences in learning ability by age. Most tests have been standardized on young persons, and there is evidence that cultural and educational differences may affect the results of intelligence tests, with possible increases in the score at older ages when the individual' s background experiences have been broadened. However, most authorities agree that an individual experiences no decline in intelligence as he ages. Tests of learning ability have indicated that the peak learning age is 22, and that the ability to learn at ages 50 and 60 is about equal to that at ages 16 and 14. By age 80, there may be some slight decline in the speed of learning. .2/ A formal test situation sometimes places an additional strain on an older worker who has had little experience with such tests, and whose schoolroom experience is far in the past. Limited literacy of some older workers may affect test results. But given the basic aptitude for learning, the older worker has the advantages of experience, motiva- tion, judgment and reasoning ability, to help him adjust or learn in a ~/ Walker, James F., "Job Performance of Federal Mail Sorters," Monthly Labor Review, March, 1964.. ~/ Schneider, B. V. H., The Older Worker. Institute of Industrial Relations, Uniyersity of California, Berkeley, 1962. -170- PAGENO="0393" AGE DISCRIMINATION IN EMPLOYMENT 387 job situation. These factors, plus the older worker's tendency to focus on accuracy, compensate on many jobs for the physiological effects of age. The Nuffield Unit for Research Into Problems of Aging conducted a 10-year series of studies in Britain to measure changes of performance from young adulthood to old age. Their achievement tests showed that there was some slowing of performance with age, starting in the twenties, but there were increasing differences between individuals as people grew older. In actual job tests, some difference in perform- ance did occur for both young and old at times of peak demands or heavy work pressure. The conclusion was that changes in capacity, even at an advanced age, were comparatively unimpo,rtant as long as the job was within the worker's ability to perform. 2" 2/Ibid. -171- PAGENO="0394" 388 AGE DISCRIMINATION IN EMPLOYMENT APPENDIX C PENSION PLANS AND GROUP INSURANCE -172- PAGENO="0395" AGE DISCRIMINATION IN EMPLOYMENT 389 PENSION PLANS AND GROUP INSURANCE The Cost of Pension Plans and Group Insurance The costs of pensions and group insurance are frequently cited by local office staff as reasons given by employers for refusing to hire older workers. While more factual information is needed on this sub- ject, many employers do not have a true picture of their labor force costs. Pensions and insurance are only one aspect of labor expense, and should be priced out in relation to other factors. As one authority puts it, `The dollar value of workers to an employer depends on produc- tivity, absenteeism, turnover, adaptability, as well as on the costs of pension, insurance, and fringe benefits. Evaluations by age, either of individu~ls or groups, should include consideration of all such factors." ~ii The cost of pensions for younger workers tends to be underestimated. With lowering mortality rates, the length of payment may increase. Lowered retirement ages would extend the period of retirement more for young persons who are hired at an early age, than for workers who join the plan after age 40. The importance of labor turnover costs is frequently ignored. "Turnover savings", which are contributions left in the fund by a worker without vesting rights who quits before his pension is payable, are sometimes thought to be more likely with young workers. However, the costs of turnover for termination, recruitment, training, and other hiring expenses may cancel out the savings on young, short-term workers. Many employers are only vaguely aware of the real costs of turnover. Vesting provisions tend to limit turnover savings, andgive the older worker an advantage since he is less likely to be rejected because he cannot work long enough to qualify for a pension. Also, the cost differential between younger and older workers is being narrowed by early retirement and disability benefit provisions. The latter may add to the cost for the younger group. Two types of pension plans now in limited use need have no cost dif- ferences by age: 1. Multi-employer plans by industry or geographical area. Such plans provide a flat rate benefit and one fund into which all employers contribute. Contributions may be based on the length of time worked or a flat percentage of the payroll. The size of benefits may be lowered if the average age of the covered work force is rising, and the rate of retirements is increasing. In such case, benefits may have to be lowered or contributions may need to be raised. Plans of this type have been negotiated by industry for coal miners, team- sters, and western maritime workers, and by area for construction, typographical, and garment workers. L/ Schneider, B. V. H., The Older Worker. Institute of Industrial Relations, University of California, Berkeley, 1962. Page 64. -173- PAGENO="0396" 390 AGE DISCRIMINATION IN EMPLOYMENT 2. "Money Purchase" Plans. These plans do not depend on cost dif- ferences by age. . Contrthutions are a fixed percentage of the em- ployee' s annual pay. The size of benefits depends on how much the employer has contributed to the worker's account by the time of retirement. The costs of pensions can be lowered by raising the normal retirement age above 65. A raise of one year can reduce costs by as much as eight percent, since the longer the worker is employed, the shorter the period of retirement will be. Even when added pension credit is given for work past 65, "increased probability of mortality combined with the continued interest return on funds held tens ~o more than balance out the value of additional pension credit."-J The Cost of Other Group Insurance Misconceptions are frequent about the costs of such group insurance as workmen' s compensation, life and health coverage. Workmen's Compensation: The costs of this insurance are based on previous accident experience of the group covered and the type of work. Rates may be higher for occupations where hazards are involved. Age is not a factor in the costs. Group Life Insurance: The cost is based on the average age of the group covered at a given time within the year. Age at entry into the system is not important. The cost varies little unless there is a large change in the age distribution within the group - for instance, a rise of three years in the average age might increase the cost a few pennies per worker per week. The costs are high when such insurance is car- ried into retirement, but in general, benefits are reduced sharply instead. Health Insurance: Costs are based on the group's experience, the number of women included, and the benefits provided. Older workers may have longer illnesses, as some sources indicate, but younger people have more dependents and their coverage ~increases the costs of the group.. Women are generally more expensive than men, and experience indicates that young women are more expensive than older workers if maternity benefits are included. In retirement, benefits may be reduced or the retired worker may assume all or most of the costs. Coverage of Pension Plans Two-thirds of all workers in a study by the Bureau of Employment Security in seven labor market areas were employed in firms with fifty ~J' Ibid. -174- PAGENO="0397" AGE DISCRIMINATION IN EMPLOYMENT 391 or more employees covered by pension plans. ~/ Coverage was high- est in finance, insurance, real estate, and durable goods manufactur- ing, and lowest in service employment and construction. Coverage was about the same for workers through age 64, but from age 65 it was much lower in all industries. In the 1956 study, it was concluded that an older worker was more likely to be hired in a job not covered by a private pension plan. Workers 45 years of age and over accounted for 25 percent of the hires in employment not covered by pension plans, as compared with 14 per- cent in jobs with this coverage. A recent report by the Bureau of Laboç Statistics, Labor Mobility in Private Pension Plans, June 1964, ~Iexplored the provisions of 25, 000 plans filed with the U. S. Department of Labor under the Welfare and Pension Plans Disclosure Act of 1959. The study included data on 1961 coverage of plans registered through 1960. The report emphasizes the relative recency of private pension movements. In 1961, only about 1. 2 million workers were receiving benefits from the plans studied, and about half this number were estimated to have been receiving benefits five years earlier. The study noted that private pension plans have slowed in growth, although their coverage may double between 1960 and 1980. Multi-employer plans resulting from collective bargaining have declined in growth since the late 1950's. Pension Plans and Worker Mobility Although the U. S. Department of Labor studies i/did not directly explore the effect of pension plans on worker mobility, they noted the influence of pension plans on the willingness of middle-aged workers to change jobs. Among the elements of the private pension structure which seem to relate to worker mobility, the following were mentioned in the 1964 study: 1. Because pension plans are relatively new, many workers still do not fully realize the value of the pension credits they are accumulat- ing. Also, plans now tend to be concentrated in certain industries and groups of workers. The real effect of pension rights on the individual worker's motivation t, stay with an employer or change jobs is not fully understood. 2. Vesting privileges were included in two-thirds of the plans covering three-fifths of the workers. Vesting may not give the mobility advantages which have been imputed to these provisions because (a) long continuous service and attainment of middle age, usually ~/ Older Worker Adjustment to Labor Market Practices - An Analysis of Experience in Seven Major Labor Markets. U.S. Department of Labor, Bureau of Employment Security, Bulletin No. R151, September 1956. Page 27. ~/ Labor Mobility in Private Pension Plans, BLS, Washington, 1964. ~/ Ibid. -175- PAGENO="0398" 392 AGE DISCRIMINATION IN EMPLOYMENT 40 or older, are generally required for vesting; (b) a worker who is approaching the point of `vesting may be less inclined to change jobs because he is close to gaining an important asset; (c) some plans limit vesting to involuntary terminations. 3. Early retirement provisions help qualified workers retain their equity in a pension plan. They can provide a means of moving older workers into full retirement or less demanding work. The report notes that pressures of rapid technological change may hasten the extension of special early retirement provisions, when it appears that mass layoffs or major manpower adjustments are imminent. However, plans which provide full retirement or even an increased allowance for retirement at an age before 65 may greatly increase the cost to the employer. 4. Portable pensions within the scope of a multi-employer plan may permit the worker to move within an industry or occupation. Never- theless, about half the workers in such plans are limited by their provisiohs to a single occupation or industry in a single locality. One possible effect of multi-employer plans without vesting or early retirement provisions is "to hold an unemployed member to the plan in a declining industry or craft at a time when voluntary job changes are desirable." 5. As the worker accumulates more service and advances in years, he is less likely to be able to qualify for a pension with another em- ployer if he changes jobs. The young worker who does not yet fully realize the value of his accumulating pension credits is probably more willing to change jobs than the older worker who is coming closer to realizing these benefits. The report notes that more than two-thirds of workers in private pen- sion plans would need to remain in the plan for 15 years or more before they could qualify for vesting or retirement benefits. About a fourth would qualify within 10 years. One-sixth of the workers would have to remain with the plan until age 65 to keep their pension rights, while another tenth would first qualify at age 60. Some 45 percent of the workers in this study were in private plans which would not qualify the worker hired at age 25 for a benefit by age 50. The BLS 1964 study concludes with the following observation: "Not all multi-employer bargaining groups now without a plan are capable of supporting and working out such a pro- gram, unless small groups are combined into larger plans. Most of the groups of multi-employer plans in the immediate future can be expected to come from an increased coverage of existing plans, particularly those in service, trade, and other industries in which employment is expanding. Because multi-employer plans are relatively new, they may be expected to undergo substantial changes as they mature. The pressures ~/ Ibid. -176- PAGENO="0399" AGE DISCRIMINATION IN EMPLOYMENT 393 to extend the scope of coverage through reciprocity agreements, mergers, and other devices will mount where worker dislocation becomes a problem. Similar pressures may also stimulate the extension and liberalization of vesting and early retirement provisions. -177- PAGENO="0400" 394 AGE DISCRIMINATION IN EMPLOYMENT APPENDIX D THE lOB MOBILITY OF OLDER WORKERS -178- PAGENO="0401" AGE DISCRIMINATION IN EMPLOYMENT 395 THE JOB MOBILITY OF OLDER WORKERS Although the older worker has often been praised for stability, this desirable trait may be accompanied by a diminished job mobility, either geographic or occupational. Migratory patterns among a sample group of men 18 to 64 were studied recently by the Bureau of La?9r Statistics, during the period from March 1962 to March 1963._f The study found that men aged 45 and older were only half as likely to move across a county line, or further, as the general average for the group. Married men were less willing to move than the others whether or not they had children, probably be- cause of family ties, home ownership, or the job of the wife. Other general findings of the study applied generally to both older and younger workers. For instance, professional and technical workers were more apt to mo7e than the others. Some with skills in nationwide demand were more likely to get job offers from a distant location or to be transferred by their company. Having high incomes and better em- ployment prospects, they were financially able to make major geo- graphic moves. Half the group moved either to take a job, to look for one, or to make a job transfer. Unemployed workers were more likely to migrate than the employed, and in general did better than those who did not move. About 72 percent of those unemployed in March 1962, who migrated dur- ing the next year, were employed in the following March, compared to only 55 percent of those who stayed at home. It would appear that the older workers' reluctance to move seriously impeded their chances of re-employment. Most migrants remained in the same occupational group, no matter where they moved, except for nonfarm laborers. Of the laborers in the sample, only 35 percent were still laborers in March 1963, while 30 percent had become operatives, eight percent were craftsmen, and 18 percent had become white-collar workers. The older worker' s lack of occupational mobility was noted in a study by the United States Department of Labor in seven labor market areasV' which showed the pattern of job stability increasing after age 45, and most sharply at age 65. In areas where manufacturing employment was important, holders of one job became more numerous with advancing age than elsewhere. The average duration of jobs also increased with .~/ Saben, Samuel, "Geographic Mobility and Employment Status, March 1962 - March 1963," Monthly Labor Review, August 1964, Pages 873 - 881. (This article is also summarized in Business Week for October 3, 1963.) .~/ U. S. Department of Labor, Bureau of Employment Security, Older Worker Adjustment to Labor Market Practices: An Analysis of Experience in Seven Major Labor Markets. BES No. R151, Wiihington, D. C., 1956. -179- 85-376 0 - 67 -26 PAGENO="0402" 396 AGE DISCRIMINATION IN EMPLOYMENT age. In a group of unemployed older workers, one-third aged 45 to 54 had held their jobs on an average for four or more years during the past 15-year work period, as had three-fourths of those 65 and over. Almost half of the older group had had an average job duration of 12 years or more during the 15-year period. About two out of three had held jobs in only one locality during the previous fifteen years. Most of the older job seekers showed attachment to the industry in which they had held their longest job in the preceding fifteen years. The workers in this study showed no strong pattern of job changes by industry, when they did change. Older women made fewer job changes than younger ones. Although women move in and out of the labor force more frequently than men, there were relatively fewer job shifts among the women in the BES study. Older women had more trouble finding a job, when they became unemployed, than did the older man, and were typically employed for shorter periods and unemployed for longer periods, though not unem- ployed as often. Three out of four job seekers aged 45 and over in the seven-area study had most recently worked in an occupation similar to their longest job in the past fifteen years. Four out of five applicants in the 45 and over group whose most recent job was professional, managerial, or skilled, had worked longest at a similar type of job. However, only half those formerly in professional and managerial work had their last jobs in similar occupations. According to the BLS, "These figures suggest that workers over age 45 have considerable difficulty in holding to professional or managerial functions if once separated from them. They move into all other occupational fields but most noticeably into clerical and service jobs - over one in five had their last jobs in these areas of work. One in ten moved over into a skilled manual trad~, and as many moved down to semiskilled and unskilled jobs." -1' ~/ Ibid. -180- PAGENO="0403" AGE DISCRIMINATION IN EMPLOYMENT 397 Mr. HAWKINS. No witness before this committee had denied that age discrimination does exist and everyone seems to be weeping tears about it but there are some in opposition to this approach on the basis that nonstatutory means do exist through education or through proliferating the problem into other agencies. For example, the Wage and Hour Division of the Labor Department has been suggested as an agency that might handle the subject, and so on. Some have suggested the Equal Employment Opportunity Commis- sion as the agency. Everyone differing with this proposal seems to sug- gest another agency, not always the same one. Out of your experienëe would you conclude that these methods are rather fruitless and that we should enact a statute of this type which deals directly with this problem which has some law enforcement provision which does have some meaning to it? Mr. BECHILL. Absolutely. Mr. PUCINSKI. Will the chairman yield? Mr. HAWKINS. Yes. Mr. PUCINSKI. I would hope to get this information together and give consideration to the proposal I introduced in Congress to elim- inate the economic factor from this problem. I would like to amend the Civil Rights Act, as we attempted to do the last time it was bef?re the House, and include age as a `bar to discrimination along with race, religion, sex, and national origin. As you recall, Commissioner, the last time the civil rights bill was before the Congress-there was substantial debate to include age in that category and I personally believe that is where it belongs. I think the law needs teeth such as the civil rights law has and as we have in FEPC to enforce that act. / My own feeling is we have had enough studies. These proponents of more studies should do what I did a couple of years ago. While on a visit home I put on a sports shirt and slacks and went out with a lot of other people and got in line at a factory. The personnel man took a look `at my grey hair and he did not even give me the courtesy of ask- ing my name or ability. His first question was how old are you? When I said 47, he said I am sorry, the company policy is we don't hire anyone past 40. You don't need a~ study to know this. Every middle-aged Americaii in this country knows the problem he is having. The chamber of com- merce has reports showing that when a man past 40 loses his job, his chances are 6-1 against getting another job. I say we know the problem and it seems to me what we need is firm, positive action to bar dis- crimination on the basis of age in hiring practices. I would like to ask, Commissioner, that you undertake the study that we have discussed on the economic factor as quickly as possible so we can go before Congress and say let's remove the economic factor and then add to the Civil Rights Act to bar this discrimination against a man who has reached the calendar age of 40 or more. I can walk through my district, and talk to a middle-aged person and he will tell you the 1)roblem. A man past 40, 45, 47, or 50 tightens up every year. He knows better than anyone else if lie loses that job his chances of getting another are practically nil. Here is a man in the autumn of his life who enters into a period of great fear, great emotional strain because he is fearful of what will happen to him if for some reason or another he loses a job. PAGENO="0404" 398 AGE DISCRTh~UNAPION IN EMPLOYMENT Companies move, companies merge. There are all kinds of reasons why people are laid off and the chances of those people getting another job under present circumstances are very slight unless they have a highly specialized skill. Mr. BECHILL. I think the bill before you is a strong and effective bill and will attack the kind of problem that you are describing. It em- braces an educational effort and a research effort. One study will not identify all the aspects of this problem. Mr. PUOINSKI. Just so we understand each other, I have no objection to this bill but I tell you now for the man on the street looking for a job who has been severed from his present job for reasons beyond his control and having nothing to do with his ability the future is frighten- ing. I have a company moving down to Georgia from my district, a lot of people will be unemployed, it is not their fault. Those people want action, they don't want a study. They want an amendment to the civil rights bill which states it shall be against the law to discriminate against a person by refusing work because of his age. I am supporting this legislation but let's not kid people into thinkmg somehow or other we are going to take care of their problems. We would take care of their problem if we barred discrimination becanse of age., Mr. HAWKINS. The Equal Employment Opportunity Commission is not seeking this amendment to the act and there are many individuals who disagree with including age in that particular act for various reasons, some of which have been placed before this committee. It seems the gentleman from Illinois is saying we have played around too long and should do something immediately. It seems we should perha.ps study the economic costs before we go into it. I am sure it was not intended to be a debate on whether we were going to put this in the Civil Rights Act. They are now burdened down in the Commission with sex discrimi- nation cases and I am afraid this problem would be submerged with other problems. It seems what the gentleman is suggesting is some- what contradictory to what I know his intent to be which I know is to do something about this problem as soon as possible. Mr. PUCINSKI. Wha.t I am saying is that we should move this legis- lation as soon as possible. If the gentleman will recall when we had debate on the civil rights bill last year, various people told us we did not know enough about it. They did not come out against it; they tried to give us more time. Then the gentleman will recall that some of those really supporting the age discrimination amendment to the bill gave us strange support. If you will recall, some wanted to clutter the bill to kill the bill. They were not interested in helping the older people of this coun- try. They wanted to tack on many amendments and hope somehow to kill the bill. I say this and have said this for 5 years. I see the gentleman from the Eagles over here. They know my posi- tion. We lost approximately 16 months only because agencies drag their feet. We ought to have someone taking care of those economic factors and then move as speedily as possible to bar discrimination against age. It is incredible to me that an American citizen should be denied the PAGENO="0405" AGE DISCRIMINATION IN EMPLOYMENT 399 right of a livelihood simply because he has reached an age some per- sonnel officer arbitrarily says is too old. We know the Metropolitan Life Insurance Co. will sell me a pen- sion~ policy; they will sell me a package for my employees at a set rate for each employee, up to the age of 40. Then when they reach 40 the premiums begin escalating with every additional year of their age. This is why I say it seems to me if we are going to bring meaningful help to the aging in this country who want to work and earn a liveli- hood, who want to be good decent citizens-they don't want a pu'blic dole; t.hey want to carry their `load-I say we ought to get the figures on the economic factors as quickly as possible and then eliminate dis- crimination because of age. Mr. HAWKINS. My comments were not intended to reflect on my colleague's intent; I just wanted some clarification on your particular proposal. Mr. Dellenback? Mr. DELLENBACK. No questions, Mr. Chairman. Mr. HAWKINS. Thank you, Mr. Bechill. Mr. HAWKINS. Our next witness is Mr. Charles Rowan, chairman of the "Jobs After Forty Committee" of the Fraternal Order of the Eagles.. Mr. ROWAN. I wonder if you could first hear the statement of the national president of the Fraternal Order of the Eagles, Mr. William McCawley, of Illinois. This matter is so important we brought our grand national presi- dent of the Fraternal Order of Eagles. Mr. MCCAWLEY. It is a privilege for me to be here before you and your fine committee. Being a member of the Iron Workers Local 392 in East St. Louis for 25 years and a member of the Eagles for `25 years and through a hurried change in schedule yesterday I prepared a little short statement here I would like to present to you and your fine committee. My name is William A. "Red" McCawley and I have recently been elected grand worthy president of the million-member-strong Fra- ternal Order of Eagles. I come from Belleville, Ill., and mention with pride that our Gov- ernor Otto Kerner, 2 weeks ago signed the Eagle-sponsored legislative bill that will ban job bias in the State of Illinois. The bill had twice before been `defeated but mindful of the emblem of our fraternity and of our great country-the bald eagle, symboliz- ing strength and courage-and mindful too of that ever-growing num- ber of worried insecure though skilled men and women who are denied jobs or lose them not because of incompetence of indifference but only because of advancing birthdays (as low as 40 years in some cases) - these are the realities that kept us going. For over a dozen years the Eagles have appointed themselves the ~spokesmen for these men and women who have been the backbone of our productivity in this country. Our methods have not been sophisticated. We have worked on a people-to-people level. Signatures by the thousands have been oh- tamed. As a matter of `fact a million of these signatures were brought here to Washington by the Eagles some years ago with a plea that Federal legislation outlawing job age bias be enacted. PAGENO="0406" 400 AGE DISCRIMINATION IN EMPLOYMENT The Eagles have been more fortunate on the State level and we shall continue the fight until every State in these United States has such legislation on its books. Were Federal legislation passed, those States not having this type legislation, would quickly follow suit. This is humanitarian legislation. It is practical legislation. These people represent experience, skills, and above all, pride in their jobs. They want no handouts and no special privileges. They want the dig- nity of labor, to be a part of the work force until such an age as they are entitled to receive social security or retire on pension. Thank you, gentlemen. I am very sorry this was a hurried schedule and I don't have a copy of the "Jobs After Forty Program" that was passed in Illinois to bring along. I don't know whether Charlie has one or not but if you would like one, I am sure Charlie can get it and send it to you. Again I would like to say thanks to you for hearing just a working man and letting him appear here. Mr. HAWKINS. Thank you, sir. Mr. Pucinski? Mr. PucINsKI. I want to congratulate the gentleman on the many hard years the Eagles have put in on their efforts. It is comforting to know there is such a study on this problem. The Eagles have worked very hard to cure this American dilemma. I am familiar with the bill the gentleman sponsored in Illinois and I share his enthusiasm that the Governor has signed that bill into law. I am glad that at the State level we are cognizant of the problems of these senior citizens and I think it is important to point out that this is where I think we miss the boat-I myself do this and I should not, we again talk of this problem in terms of senior citizens when it is not really senior citizens we are talking `about. We are talking about people reaching the age of 40 where as far as job opportunities are concerned a man passing the age of 40 is an old man in t.his country. That is a sad indictment of our whole economic system where the people can't find jobs at 40, 45, or 47. Many of them have young families and many of them have growing children and need employment. I welcome your testimony before this committee and would like to take this opportunity of congratulating you and every single member of your organization for the work you have done. The Fraternal Order of Eagles has been in the forefront of this job. When you speak of the Eagles you associate them in the forefront of workers seeking to solve the problem of work for older people. I want to congratulate you in your stubborness in sticking to this problem. Mr. MCCAWLEY. I want to thank you for your kind remarks and I can see you have studied the various programs the Fraternal Order of Eagles has. Mr. HAWKINS. Mr. Dellenback? Mr. DELLENBACK. I would just say, following the line of the gentle- man from Illinois, I commend the Eagles. I think when you find or- ganizations of this type making it their business to be deeply concerned about problems like this we have the real justification for this type of an organization and here we are talking about one particular organi- tion, namely, the Eagles. PAGENO="0407" AGE DISCRIMINATION IN EMPLOYMENT 401 I think you are dealing with a problem of real concern and instead of just devoting the energies of your people to lodge work or the type of thing which an organization like this could concern itself with, you have turned a good portion of your energies to constructive involve- ment with the problems that face the people of America. I think it is in organizations like the Eagles and other similar or~ gamzations that we have a great deal of the strength of America. I commend you for taking time to come here; I know it is not easy for you to just knock off and come this far. `We are grateful to you and your organizationthrough you for helping us. Mr. HAWKINS. Mrs. Mink. Mrs. MINK. I would just like to join my colleagues on the com- mittee in welcoming you to this hearing and also to say that based upon your great interest in the field of age discrimination affecting senior citizens, you have done t.his committee a great honor by coming here as the president of your organization. Mr. MCCAWLEY. Thank you and when I get to Hawaii I will try to look you up; I am looking forward to that trip. Mr. HAWKINS. Thank you and I can only echo what has been said. Mr. Charles Rowan, would you like to proceed now, sir~ Mr. ROWAN. Yes, sir. Mr. HAWKINS. Your statement will be made a part of the record and you may summarize it or read from it as you see fit. Mr. ROWAN. I am Charles iowan. I regret that Mr. Pucinski could not get a job because he was 47 but I would like nothing better than being 47 again. I would like, as I have done in my statement, to point out that the Eagles were organized in the State of Washington in 1899 and quickly became an organization of working people, laboriug men, small busi- nessmen, and farmers. `We started early in working for needed legislation at a time when it was unpopular to favor such legislation. Among the laws we worked for were the early workmen's compensation act. In the 1920's the Eagles started their big crusade for old-age pension laws. It was a very difficult time because these were considered to be socialistic, sort of a handout or dole and we were bitterly attacked. In fact in 1926 in the Milwaukee Journal there appeared a quote from a crusty old county judge from northern `Wisconsin to the effect the only people in favor of the old-age pension were a bunch of dirty old rum-soaked bar flies. `We knew who he meant at the time because we were the only ones for the old-age pension laws. `We persevered in our efforts and saw the day when every State had these old-age pensions laws. We have pens in our archives from the Governors of all States for our efforts in getting these laws passed. We Eagles then turned our attention to getting a national old-age pension law adopted. `When the act was finally presented and signed President Roosevelt asked our officers to be present at the signing and presented us with the pen he used for our archives. Having crusaded for decades to help our senior citizens, our folks 65 and older, we then found that we had forgotten the most neglected people in the world today, the worker who between 40 and 65 is too young to retire on social security but too old to find a job. Here is the man too old to work but too young to die. PAGENO="0408" 402 AGE DISCRIMINATION IN EMPLOYMENT Today's world, with its adulation of and undue emphasis on youth, its feeling that the mental quickness and adaptability of youth and the new educational processes are the only key to success in business, has imposed the requirement that only job applicants in the twenties or younger should be considered. "Get them right out of the cradle and educate and train them," has become the motto of many large business organizations. This has imposed an unbearable heartache upon a society in which 40 percent of our total work force is 45 years old or older. A man does not reach the prime of life until he reaches 40 or 45. Yet when he should have the most reason to be entitled to security, when his standard of living and financial obligations have reached their highest point, as long as he continues to hold his job he is con- sidered to be a very valuable employee because of his experience and good judgment but. let him lose his job and he will have a very difficult time to find another one. This causes the people in the forties and fifties who are unemployed considerable distress because a. group of longtime unemployed are developing there, people who never again may be able to work. It causes even the people in those age brackets who have jobs to live under the shadow of the constant fear that if they lose that job they won't be able to find another. Since the turn of the century the life expectancy of the average American has increased 20 years. Yet the hiring policies of many em- ployers are rooted in the past prejudices and practices. How irrational is a society which with one hand does everything possible to extend the lifespan of man but with the other hand throws him on the industrial scrapheap as unusable because of his chrono- logical age. Man's true age lies in the lifespan ahead of him, not the span behind him. There is a growing group of longtime unemployed developing among these older workers. As the unemployment period lengthens, the worker's self-confidence weakens. The man becomes depressed and bitter. Eventually he may stop ap- plymg for work, despite his great need for means of support for him- self and his family. It is for these disadvantaged, downhearted, dis- couraged, sometimes desperate, and always discriminated against older workers that the Fraternal Order of Eagles appears before you today. There is nothing new about unfair discrimination in the hiring of employees. Seventy years ago there could be found in New York and Boston newspapers help wanted ads, stating "Irish need not apply" or "Protestants only." The term "Gentiles only" appeared frequently. All of these, thank the Lord, have disappeared. More recently ads have stated "whites only" and something has been done about it. Then there were em- ployers who refused to hire men who belonged to labor unions and something has been done about that. But the cruel, senseless discrimi- nation against older people in employment goes on unchecked. A dozen years ago the Fraternal Order of Eagles started its "Jobs After Forty" ~)rOgram for the purpose of striking down age discrimi- nation in emp'oyment. And it presented to Congress petitions signed by over a million people, asking that Congress pass a law prohibiting PAGENO="0409" AGE DISCRIMINATION IN EMPLOYMENT 403 discrimination in employment against persons who happen to be be- tween the ages of 40 and 65. Unfortunately the bill died in committee, but it is heartening to note that many of our friends who helped us back in that day are sup- porting the "Jobs After Forty" bill of today. I would like to say to this committee we are very happy to have these bills considered; we are for them 100 percent. We would like to see them passed and we appreciate the job the subcommittee is do- ing on conducting these hearings. (Mr. Rowan's prepared statement follows:) STATEMENT OF CHARLES ROWAN, CHAIRMAN, JOBS AFTER 40 COMMITTEE, FRATERNAL ORDER OF EAGLES The Fraternal Order of Eagles is one of America's great fraternal orders and has 700,000 members and local lodges located in 1,600 cities throughout this coun- try. Founded ta 1899 by a group of unemployed actors who met in a shipyard in Seattle, Washington, the Eagles soon became a workingman's organization coIn- posed of the laboring man, the farmer, the lower paid white collar workers and the small merchant or businessman and as such began early to work for the en- actment of badly needed social and economic legislation at a time when this was a very unpopular position to take. We worked for workman's compensation legislation in a day when this was considered to be a very revolutionary and dangerous proposal. in the 1920's the Eagles started their great crusade for old age pension laws. These laws were attacked as being a dole, a handout, bread and circuses for the Roman mob, ruinously expensive and flagrantly violative of the American way of life. We were pretty lonely people in those days with only a few groups sup- porting us and the opposition bitterly hostile. While the old age pension bill was being debated in the Wisconsin Legislature, a crusty old county judge from Northern Wisconsin was quoted in the Milwaukee Journal as saying that the only persons in favor of the old age pension were "a bunch of dirty old, rum- soaked bar flies." And we Eagles in Wisconsin knew who he meant, because at the time we were just about the only ones for the bill. But we persevered and lived to see the day when every state adopted old age pension laws. In our archives are the pens used by the governors of all states in signing these laws, given to us in acknowledgement of the part we played in getting these laws passed. We Eagles then turned our attention to getting a national old age pension law adopted, and we worked hard and long for the enactment of the Social Security Act. When Congress passed this Act, President Franklin Roosevelt, who was a member of the Eagles (as were also Theodore Roosevelt, Warren Harding, Harry S. Truman and John F. Kennedy) summoned our national officers to his office to witness the signing of the bill and then Presented them with the pen he used for our archives. Having crusaded for decades to help our senior citizens, our folks 65 and older, we then found that we had forgotten the most neglected people in the world today, the worker who, between 40 and 65, is too young to retire on Social Security but too old to find a job. Here is the man too old to work but too young to die. Today's world with its adulation of and undue emphasis on youth, its feeling that the mental quickness and adaptability of youth and the new educational processes, are the only key to success in business, have imposed the requirement that only job applicants in the twenties or younger should be considered. "Get them right out of the cradle and educate and train them", has become the motto of many large business organizations. This has imposed an unbearable heart- ache upon a society in which 40% of our total work force is 45 years old or older. A man does not reach the prime of life until he reaches 40 or 45. Yet when he should have the most reason to be entitled to security, when his standard of living and financial obligations have reached their highest point, many employ- ers consider him unemployable, causing severe distress to persons in the 40s and 50s who are unemployed and causing the employed persons in that age bracket to live under the constant fear that, if they lose their jobs, they will not be able to find another one. Not only is a great loss to our economy involved, PAGENO="0410" 404 AGE DISCRIMINATION IN EMPLOYMENT but think of the enormous loss of self respect, agony, humiliation, worry and fear needlessly suffered by one-third of our people. Since the turn of the century the life expectancy of the average American has increased 20 years. Yet the hiring policies of many employers are rooted in past prejudices and practices. How irrational is a society which with one hand does everything possible to extend the life span of man but with the other hand throws him on the industrial scrapheap as unusable because of his chronological age! Man's true age lies in the life span ahead of him, not the span behind him. There is a growing group of long time unemployed developing among these older workers. As the unemployment period lengthens, the worker's self con- fidence weakens. The man becomes depressed and bitter. Eventually he may stop applying for work, despite his great need for means of support for himself and his family. It is for these disadvantaged, down-hearted, discouraged, some- times desperate and always discriminated against older workers that the Fraternal Order of Eagles appears before you today. There is nothing new about unfair discrimination in the hiring of employees. Seventy years ago there could be found in New York and Boston newspapers help wanted ads, stating, "Irish need not apply" or "Protestants only." The term, "Gentiles only", frequently appeared. All of these, thank the Lord, have disappeared. More recently ads have stated "Whites only", and something has been done about that. Then there were employers who refused to hire men who belonged to labor unions, and something has been done about that. But the cruel, senseless discrimination against older people in employment goes on unchecked. A dozen years ago The Fraternal Order of Eagles started its "Jobs After 40" program for the purpose of striking down age discrimination in employment. It presented to Congress petitions signed by over a million people, asking that Congress pass a law prohibiting discrimination in employment against persons who happen to be between the ages of 40 and 65. Unfortunately the bill died in committee, but it is heartening to note that many of our friends who helped us back in that day are supporting the "Jobs After 40" bills of today. Having been blocked in Congress in our attempts to get a federal law passed, the Eagles concentrated on the states, and I am pleased to report that anti-age discrimination laws have now been enacted in 25 states. The latest in the State of Illinois. It was during our National Convention at Kansas City that the dis- tinguished Governor of Illinois, Otto Koerner, a member of the Eagles, delighted the delegates assembled there by signing the Illinois "Jobs After 40" bIll into law. I am Charles Rowan, of Milwaukee, Wisconsin, Chairman of the Eagles Na- tional "Jobs After 40" Committee. On behalf of the Eagles I would like to ex- press complete support of bills H.R. 3651, H.R. 4221 and H.R. 3768. This hu- manitarian legislation is entirely desirable and will be of great help in dealing with a vexatious problem. The Secretary of Labor, Willard Wirtz, has reported that it is the concensus of opinion of the state authorities charged with the en- forcement of state anti-age-discrimination laws, that a federal law on the sub- ject is needed. He has also reported that in states which have actively enforced age discrimination laws have far less discrimination against older workers than other states which do not have these laws. H.R. 4221 uses a reasonable approach to the difficulty. First the Secretary of Labor is to conduct research and attempt to educate employers that it is good business for them to hire older workers. Second, the bill prohibits employers, labor unions and employment agencies from discriminating against individuals because they are between the ages of 45 and 65. Since the business community is inherently law abiding, the mere adoption of this bill will cause most business- men to respect and observe it. Employers' organizations may oppose the adoption of it, but, once it is passed, these organizations will become government's most powerful allies in inducing compliance by their members. That has been our experience in Wisconsin and other states. When the Secretary of Labor believes that a violation is being committed, he shall endeavor to eliminate any such practice by informal methods of confer- ence, conciliation and persuasion. Our experience in Wisconsin indicates that right here you w-ill dispose of almost all violations, by voluntary compliance. In the very occasional ease where these methods are ineffective an administra- tive proceeding can be commenced, a cease and desist order issued, an enforce- ment order obtained from the U.S. Court of Appeals, and even a criminal penalty imposed. Oases of this kind will be rare, but the government should have these enforcement powers to make its orders respected by everyone. PAGENO="0411" AGE DISCRIMINATION IN EMPLOYMENT 405 These bills will apply to all employers with 25 or more employees, and through state laws the employers with fewer employees can be regulated. The bills cover individuals between 45 and 65, and the Secretary may adjust this upward or downward. While we hope that he will lower the minimum age to 40, we are completely satisfied with these bills as they now read and do not request any change. We passed this type of law in Wisconsin in 1959. The National Manufacturers Association took the lead in acquainting its members with the requirements of the new law and urging its members to comply with it. The large daily news- papers quickly did their part by instructing their ad takers not to accept help wanted ads which specified an age limitation. The Wisconsin Industrial Commis- sion sent out several letters and pamphlets to all employers, employment agen- cies and labor unions, advising them of what the law prohibits and what it permits. Compliance has been very satisfactory considering the small amount of per- sonnel enforcing it. Almost all cases have been settled by conciliation, that is, by voluntary compliance by the employer. In the case of some complaints the em- ployer has been exonerated. Virginia Huebner, Director of the Equal Opportunities Division of the Indus- trial Commission, informs me that only seven complaints involving age discrimi- nation have been received during the past year. One involved a 61 year old cus- todial worker who had been discriminated against because of age iii denying him permanent status and the privileges which accompany it. After conciliation, he was granted permanent status and reimbursed for his financial loss (full wages, vacation pay, etc.). Another involved a woman who wished to hire a "young" employee. When the ad takers for the newspapers refused to take her ad, she went to an employment agency which refused to service her and reported the matter to the Industrial Commission. A third involved a 51-year-old domestic science teacher in a small up-state high school. The school board refused to renew her contract and instead signed a contract with a young girl who had just graduated from college, apparently because they wanted a prettier, more glamorous domestic science teacher. The Industrial Commission thought since when is a 51 year old woman too old to teach kids how to cook and bluntly ordered the school board to renew the teacher's con- tract and~ figure out for itself what to do with two domestic science teachers. The Wisconsin Industrial Commission is presently focusing attention on the age requirements which have for so long been prevailing in the field of training to determine what changes may practically be effected. Mi-. HAWKINS. Thank you, Mr. Rowan. Mr. P[JCINSKI. I would like to thank Mr. Rowan along with Mr. McCawley and would like to repeat. I am impressed w-ith the work the Eagles have done in this field. You have really crossed the country with your understanding of this problem. I wonder if you would comment on the point I made that it is going to continue to be difficult to get meaningful effective legis- lation barring age discrimination unless we face up to the economic factors involved. As you know, I have introduced legislation to give an employer a tax credit for hiring older workers. In other words, if he determines it would cost him x amount of dollars more to hire a person age 48 or 50 as against a person age 25 he now claims that difference. But, as you know, in our present structure that corporation recovers only a rela- tively small percent of his iii~vestment. What I again want to do is give him a full tax credit for that differ- ence if indeed it should cost a hundred dollars or more or $200 more. I recall research I did on the subject a couple of years ago. As an example, it cost a steel manufacturer, an employer, because of the pen- sion plan, fringe benefits, and other things, it cost him $265 a year more to hire a man aged 55 as against. the man aged `25. PAGENO="0412" 406 AGE DISCRIMINATION IN EMPLOYMENT Now, if those figures were true, and I don't know if they are, I don't want to invent figures and I don't~ know if they are correct, but if it is true such a figure exists, under my proposal that steel company would claim that $265 as a complete tax credit so that you would eliminate totally the economic factor. You would remove the economic factor as a burden on the employer. He would then, of course, put all workers on a parity where only their experience, their ability to do the job, their reliability and other factors would come into play. It is my judgment once we remove that economic factor we can then quickly move to add age to the civil rights bill which now bars dis- crimination against hiring people because of sex, race, or national origin. Is there any merit to this kind of thing? Mr. ROWAN. We are in favor of this because our job as far as the States are concerned is only half done. In the State of Illinois this bill was passed by one house at the session before the last session but it was blocked in the senate because of the fear it would create a clim- ate unfavorable for new business to come to Illinois. That did not pass in the previOus session but happily did in the last session. States are reluctant to do anything that might make it unfavorable for new business to come in. If you gave them this kind of reduction it would make our task of getting the laws passed in the other 25 States much easier. In all justice to employers they should have the benefit of that kind of protection. As far as the Civil Rights Act is concerned, it was our hope we would be included in there, but when the bill came out covering color, creed, religion, and sex, age was not mentioned. We thought that, after a study was made, age might be added to the bill but then we learned it was the thinking of Congress that it did not want to disturb the civil rights bill and preferred to handle the problem of age dis- crimination separately. Now it comes in the form of separate legislation, an act to be administered not by the Equal Opportunities Commission, but by the Secretary of Labor. We want a bill of this kind whether administered by the Secretary of Labor or by the Commission and we are heartily in favor of this bill. Whether it proves to be a better thing before long to change it to the civil rights bill, all well and good. But you have the problem that, where you have a long enumeration of different types of discrimination, one type might easily be forgotten. Right now in discrimination you have more complaints on sex dis- crimination than you have on anything else, even race discrimination. So if the personnel is not adequate that is provided to enforce these laws, the danger exists that age discrimination might be neglected. Here you have a law dealing only with age discrimination and it does have that one advantage, I think. Another thing, while we are in favor of getting a national law, if we have a national law and can point out that 25 States have them, certainly the other 25 States would drop their opposition and come along because half of their employers would be under an age discrimination statute and half not under one. We do need State legislation in all States to reach the employer with 25 or less employees. PAGENO="0413" AGE DISCRIMINATION IN EMPLOYMENT 407 Mr. PUCINSKI. If I read this legislation correctly, which I do, there is strong opposition to age discrimination in this bill. If I understand correctly, section 4(a) does specifically bar discrimination because of age, or perhaps there is something in there we are not aware of that would give the discriminators an out: It shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age. This I take it is as clear language as we can get to make sure this bill, if enacted into law would become effective in all 50 States and terri- tories and would bar discrimination in hiring practices because of age. Mr. ROWAN. I would think so. On my job of working with the various States to pass these laws, which have in many cases passed them, I have seen their laws and it seems to me this language is quite similar to a number of our State laws, including the Wisconsin law where I have had opportunity to work almost daily with the lady in charge of enforcement. It is much the same language and we have not run into any problems that everything was not covered and there were loopholes left open. Mr. PUCINSKI. Are you satisfied with the Illinois law, when you take into consideration all the exemptions, it still carries enough teeth to bar discrimination because of age? Mr. ROWAN. I can't comment on the Illinois law because I have not seen it. I have been down there in the past years before the labor com- mittees in the House and Senate but the bills were different. In the bills the States usually exclude hazardous occupations, firefighting, police work, linemen working for electric companies, and there usually also is something in there that an employer is not required to hire or retain a person who can't do the job because of physical, mental reasons, or other factors that are involved. There are usually exceptions in the State laws that the law does not affect any retirement policy of any pension plan which is not a subterfuge. In our Wisconsin law we even have this exemption which I tl1ought would not probably hamstring enforcement, but it has not, and which says nothing in the subsection, shall prevent the exercise of age dis- crimination with respect to employment of persons in capacities in which knowledge and experience to be gained might aid in the develop- ment of capabilities for advancement to future managers or execu- tives. That was provided so these firms hiring boys out of high school, paying for their college education, and giving them a high degree of technical training, may still do so. The Wisconsin law does not interfere with that. If there is not such a training course then it does not apply. When you get to apprenticeship that is a troublesome question. Where will you cut them off from starting? Again it is a matter of administrative interpretation which is later reviewed by the courts. Mr. PrTCIN5KI. We have been talking about this bill and the Civil Rights Act; actually as we study this bill we find this provisions does provide much more meaningful enforcement procedures thaii even the Fair Employment Practices Commission at the Federal level. PAGENO="0414" 408 AGE DISCRIMINATION IN EMPLOYMENT I don't recall that we did enact the additional legislation sought by the Commission. Mr. HAwKINs. The cease-and-desist order? Mr. Pr~cINsK.I. Yes. Mr. HAWKINS. No, we did not. Mr. PuCINSKI. It was before this committee. Mr. HAWKINS. I don't know whether counsel will agree but this would be a much stronger bill than the existing title 7. Mr. PUCINSKI. I think the gentleman from California is entirely correct. Mr. Row-an, are you satisfied with the language in this bill, which does give the Secretary a right to get. a court of appeals order to en- force some of the Secretary's decisions? Would you believe, Mr. Rowan, that this is sufficiently strong language at least to move for- ward on the subject? Mr. ROWAN. I think it is. It could be strengthened by having the same provision the Federal Trade Commission Act. has, that once a cease-and-desist order is issued, if the respondent fails to petition the court of appeals for review within 60 days, the order becomes final, the same as the final judgment' of a court of law and becomes enforce- able and violations will bring about grounds for a penalty suit. There is another factor. A case went up to the Massachusetts Su- preme Court. under this law where the worker sued for a `large sum as damages, claiming he was wrongfully discharged and asking he be reimbursed for the money he had lost, because of his discharge, which was based on his age. The Massachusetts Supreme Court upheld the validity of the law, the Constitutionality, but said the law merely provided a fine of $100 but did not provide a remedy under which the wronged individual mig~ht sue in a court of law and recover what' he lost. Mr. PUCINSKI. It is obvious, as you study the enforcement proce- dures in this act and study the enforcement procedures in the Oivil Rights Act, Title 7, the fact is these are hard cases to prove. These are tedious cases and we need this law, no question about it. We need this law because of the problem that you and other wit- nesses have brought before this committee. I feel very strongly if we can get the ways and means committee to adopt legislation to permit a tax credit on these additional costs many of these problems would be resolved between the employer and employee without the need of interference from any other third party, including the procedures spelled out here. So while I intend to support this le~isla.tion, vote for it. and do every- thing I can to get it enacted, I also intend to do everything I can to get my own bill on the tax credit enacted. I feel that in the final analysis the vohrntary agreement between the employer and employee is still the best and fastest way of solving the problem. For those employers who won't do it, you need the machinery spelled out in this act. and for that reason I will support this act. I will add I think you gentlemen ought to give some consideration to contacting the Ways and Means Committee, perhaps you should have a meeting with Chairman Mills and spell out the extent of the problem as you so well know it. PAGENO="0415" AGE DISCRIMINATION IN EMPLOYMENT 409 I don't know of any better authority in this country than the Frat- ernal Order of Eagles because of your very close association with the problem over the years. I think you have probably done more research aiid have more in- formation nad practical knowledge in your lodges across the country than any single agency in Government. I would suggest you should arrange with Mr. Mills to sit down with him and talk on a dual front. Your testimony here will help immeas- urably in getting this legislation approved but I think you ought to move on the other front to get the other legislation approved. Mr. ROWAN. Has that presently been offered? Mr. PUCIN5KI. Yes. Mr. ROWAN. I am sure the grand worthy president here and the other national officers will want to take action on it because one bill implemented another and your bill will overcome some of the objec- tions that have made it so difficult for us to get the legislation passed in various States. I would also like to say this on the difficulty of enforcing this law; we found first of all the bill will knock these ads out of the news- paper saying, "Man . wanted, 18 to 25 years old." In other words, it lets a man apply for a job. Then at the employ- ment office it gets him the right to fill out an application for employ- ment., and they can't say he is too old. It gets him the right to fill out an application, to be interviewed, and considered. The question came up whether it permits an employer to ask the applicant to specify his age in the application form. The Attorney General ruled it did not prohibit him, the employer, from asking the applicant for this information but then when you get beyond this then your problem arises. How are you going to say whether the employment manager turned the man down because of his age or because of something he did not like about him? You can turn a man down because you don't like the way a man parts his hair or because lie has no hair at all but where the employer hires no older workers a pattern is establi~hed. If over a period of years he lures no men over the age of 35 years and you can show qualified men have applied, then you are establishing a violation, and you can get at it.. It is a difficult problem and enforcement will depend on the experi- ence developed and the expertise that the Secretary of Labor and his staff will develop over the years. We Eagles are all very highly encouraged that you are considering this legislation. Mr. PUCINSKI. Thank you very much. Mr. HAWKINS. Thank you, Mr. Rowaii and Mr. McCawley. Your presentation here today has been most helpful to the committee. We are very appreciative of the work you are doing and the contribution you have made in these hearings. The meeting is adjourned until tonlorrow morning at 10 when the committee will convene and hear various witnesses at that time. (Whereupon, at 11 :50 a.m., the hearing recessed, to reconvene at 10 a.m., Thursday, August 17, 1967.) PAGENO="0416" PAGENO="0417" AGE DISCRIMINATION IN EMPLOYMENT THURSDAY, AUGUST 17, 1967 HOUSE OF REPRESENTATIVES, GENERAL SUBCOMMITTEE ON LABOR OF THE COMMITTEE ON EDUCATION AND LABOR, Washington, D.C. The subcommittee met at 10 a.rn., pursuant to recess, in room 2175, Rayburn House Office Building, Hon. John H. Dent (chairman of the subcommittee) presiding. Present: Representatives Dent., Pucinski, Daniels, Hawkins, Albert, Ford, and Scherle. Mr. DENT. The General Subcommittee on Labor will now come to order for the purpose of holding hearings on H.R. 3651 and other related bills. Due to the fact that the House of Representatives has called for an early session this morning, we will start proceedings al- though certain Members of Congress who are listed as witnesses are not here. Since they may come in at any time. during the morning, I shall allow the Members to present their briefs, if they have one, by inter- rupting the testimony of the witness speaking at that particular time. The first witness today is a well-known representative of labor on this Hill who has for many years been testifying on legislation dealing with the welfare of the working men and women of this country. I welcome to the hearing this morning Ken Meiklejohn, legislative rep- resentative of the AFL-CIO. STATEMENT OF KENNETH A. MEIKLEIOHN, LEGiSLATIVE REPRESENTATIVE, AFL-CIO Mr. MEIKLEJOHN. Thank you, Mr. Chairman, your remarks are most generous. My name is Kenneth A. Meiklejolm. I am legislative representative of the American Federation of Labor and Congress of Industrial Organizations, and I appear here on behalf of that organization. I would like to ask that my full statement be included in the record and I will summarize niy statement. Mr. DENT. Without objection, the statement will be made part of ti a record at the conclusion of your remarks. Mr. MEIKLEJ-OHN. Mr. Chairman, I do want to say that I think both you and Representative Carl Perkins, chairman of the House Educa- tion and Labor Committee, deserve the thanks and appreciation of all American workers, and especially those who have reached or are about to reach the age of 45, for sponsoring the bills, H.R. 4221 and H.R. 411 S5-376-67-----27 PAGENO="0418" 412 AGE DISCRIMINATION IN EMPLOYMENT 3651, which you now have before you for consideration in this subcom- mittee. In light of the fact that the Senate Labor Subcommittee has already completed hearings on this subject, and its bill is now before the full Senate Labor Committee for approval, your decision to go for- ward at this time gives real cause for confidence that legislation to prohibit age discrimination in employment can and will be enacted at an early date. I have summarized on the next few pages of this statement some of the basic economic data which we believe warrant and justify, and, in- deed, indicate the imperative need for, this legislation. I won't read this to the committee but I do ask the committee members to pay close attention to it. We have also summarized in our statement some of the actions taken by the AFL-CIO, the administration and the various States to deal with this problem of age discrimination in employment. The data which we have provided here, we believe, provide a very strong basis of support for this legislation. They demonstrate that the recognitioii of the need for this legislation is significant and widespread. We have seen legislation passed in the last few years to prohibit discrimination in employment based on color and sex. It is now time to take the further step of outlawing discrimination because of age as well. At this point, I should like to discuss some of the specific provisions of the age discrimination bills you and your subcommittee have be- fore you. They have the objective of making it unlawful for employ- ers, employment agencies, or unions to engage in certain specified employment practices which have the effect of discriminating against employees or applicants for employment because of age. They impose responsibility for administering and enforcing the legislation on the Secretary of Labor, with authority to delegate his functions in such manner "as he deems necessary to assist him in performance of his functions under this act." In general, we believe, the legislation is well desigiied to carry out its objective. Among other things, Mr. Chairman, the bills prohibit employment practices based on age engaged in by labor unions, as well as by employers and employment agencies. The labor movement, through its international and local imions, has consistently been in the fore- front of efforts to deal with the problems of older workers. In collective bargaining agreements we have endeavored to deal with some of the problems of age discrimination in employment, and in convention resolutions we have called attention to the need for legislation, at both the State and Federal levels, to prevent such discrimination. It is important to make clear, we believe, that employers who are paying wage rate differentials to older workers in violation of the bills shall not, in order to comply with the legislation, be permitted to reduce the wage rate of any employee. The Equal Pay Act of 1963 contained such a provision, and we believe it would be appropriate and necessary that such a provision be included in this legislation. We see no good reason, Mr. Chairman, for the provisions that exempt small firms employing fewer than a specified number of employees. Such provisions have the effect, of course, of leaving large numbers of employees outside the protection of the legislation and fly in the face PAGENO="0419" AGE DISCRIMINATION IN EMPLOYMENT 413 of facts that make clear that the older worker in the small plant or business has just as much, and maybe more, need of protection as the older worker in the large plant or business. We are long past the day, it seems to us, if, indeed, there ever was such a day, when it could justifiably be argued that it may be all right to require a large employer to observe fair employment practices or labor standards, but all wrong to require his small competitor to do so. I'Ve likewise do not see any reason why the legislation should, as is provided in section 4(f) (2) of the bills, permit involuntary retire- ment of employees under 65. We do not believe that the safeguard which this provision purports to contain restricting this possibility to cases where it is done "under a retirement policy or system where such policy or system is not merely a subterfuge to evade the purposes of this act," is adequate to prevent serious abuse. In this connection, it should be observed that there is no age cutoff in this provision. Involuntary retirement could be forced, regardless of the age of the employee, subject only to the limitation that the retire- ment policy or system in effect may not be merely a subterfuge to evade the act. On the other hand, section 4(f) might well be strengthened in another respect. There is nothing in this section now which protects the operation of bona fide nondiscriminatory seniority systems. We urge that this section be amended to protect such systems. The enforcement provisions contained in sectiOn 7 of the bills are a mixture, based in various parts on the Civil Rights Act of 1964, the National Labor Relations Act and the Fair Labor Standards Act. We believe that it would be preferable to utilize the enforcement machinery of one of these acts rather than to establish still another enforcement system. The staff and experience of the agency administering that act would be of benefit to those charged with the responsibility of enforcing the prohibitions against age discrimination in employment. When Congress passed the Equal Pay Act in 1963, it decided to utilize the staff and expertise of the Wage and Hour Division in the ILS. Department of Labor to administer and enforce that act. As far as we have been able to determine, this approach to the problem of nforcing the act's ~rohibition against discrimination in wage pay- ents based on sex has worked well. We suggest that the subcommittee should give serious consideration o simply utilizing the enforcement machinery and procedures of the Vage and Hour Division to enforce the proscriptions against dis- rimmatory employment practices based on age which are contained n the bill. Finally, the bills provide in section 13 that their application is nmted to individuals who are between the ages of 45 and 65. There is proviso added to this section which gives the Secretary of Labor uthority by rule or regulation to "provide for appropriate adjust- ents, either upward or downward, in the maximum and minimum ge limits provided in this section." This subcommittee is aware, I feel sure~ of the practice of some irlme companies which refuse to permit stewardesses to work as such eyond the ages of 35 in some cases and 32 in others. You will be hear- ng after me testimony from spokesmen for the Transport Workers 111011 of America, AFL-CIO, on this subject. PAGENO="0420" 414 AGE DISCRIMINATION IN EMPLOYMENT I want to make it clear we are in sympathy with their views on the need for relief for their members from the present discriminatory age limits with respect to their employment as stewardesses which the airlines are imposing on them. It seems to us that the proviso which is included in section 13 is hardly adequate to provide the protection which they need. We believe that there is a substantial question whether the proviso permitting ~`appropriate adjustments, either upward or downward" can be stretched far enough to include workers 35 or 32 years of age under the protection of the bill. Indeed, we see no real basis for either upper or lower age limits in the bill, and we suggest, therefore, that section 13 be eliminated. I have pointed out in the concluding section of our statement that we regard as of particular importance the provisions of the bills which call upon the Secretary of Labor to undertake studies and provide information "concerning the needs and abilities of older workers, and their potentials for continued employment and contribution to the economy." This legislation, we are convinced, as I am sure you are convinced, deals with only one part of the problems of the older worker and the older citizen, and it needs to be kept in that context in order to understand and deal with these problems. In conclusion, Mr. Chairman. I would like to say only that it is our hope that the Congress will act speedily to put legislation along the lines of H.R. 4221 and }LR. 3651, with the changes we have suggested, on the statute books. The need for it is great and, so far as I am aware, virtually unchallenged. The problem which the legislation is designed to meet, far from getting less important., only grows larger, as time goes on. Early passage of the legislation can make a substantial contribution to achieving a better life for all Americans. I would like to add, if I may, Mr. Chairman, that in response to requests by members of the Senate Labor Subcommittee. we proposed certain amendments to carry out the suggestions for amendments to the bills made in our statement. Those suggestions are contained in the record of the hearings before the Senate subcommittee, and I would just simply like to call the attention of this subcommittee to those amendments which appear on page 100 of the printed Senate hearings. Mr. DENT. The staff has already noted all of the advisory amend- ments offered in the Senate and we have made a review of them. In the executive committee we intend to discuss them with the view of accepting i~hat we can of those which appear to be in the best interests of all concerned. Mr. MEIKL&rOHN. With respect to the matter of enforcement, thi has been the subject of discussion between ourselves and staff represent- atives of the Senate Labor Subcommittee and the Department o Labor. At this point we would prefer to see amendments along th lines of those included in the draft of the bill prepared by the Senat Labor Subcommittee rather than those appearing in the printed recor of the Senate hearing. Mr. DENT. I might state, as far as the Chair is concerned, the deter mination to put it under the Fair Labor Standards Act has alread been made. The Department of LabOr is best qualified by experience manpower, and training. PAGENO="0421" AGE DISCRIMINATION IN EMPLOYMENT 415 Mr. MEIKLEJ0IIN. We would want to say, Mr. Chairman, that if the enforcement responsibility is put in the WTage and Hour Division, then adequate funds to enforce the act become of critical importance. We are now confronted with the problem of persuadiug Congress to appropriate sufficient funds to adminster the new wage and hour amendments passed last year and have encountered reluctance at some points to providing adequate funds for this purpose. The more responsibilities are placed in that Division the more critical becomes the need to provide the funds to do the inspection job that Congress requires to be done. Mr. DENT. I believe we have the logical argument in request- ing more funds for that particular bureau because in the end it must cost less than setting up a separate bureau to administer a new act. Mr. MEIKLEJOHN. That is correct. The only thing we want to point out is that this makes it all the more urgent that the inspection job be effectively carried out and this will require additional personnel at that level to do so. (The prepared statement of Mr. Meiklejohn follows:) STATEMENT OF KENNETH A. MEIKLEJOHN, LEGISLATIVE REPRESENTATIVE, AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS Mr. Chairman, my name is Kenneth A. Meiklejohn. I am Legislative Repre- sentative of the American Federation of Labor and Congress of Industrial Organizations, and I appear here on behalf of that organization. I Mr. Chairman, `these hearings on proposed legislation to prohibit discrimina- tion in employment on account of age are of great importance. Secretary of Labor W. Willard Wirtz has described the problems of the older worker as "far and away the largest unrecognized need, both in terms of problem and potential, in the country today as far as the development of national policy is concerned." The AFL-CIO agrees with this assessment, and few, w-e believe, can dispute it. Mr. Chairman, `both you and Representative Carl Perkins, Chairman of the House Education and Labor Committee, deserve the thanks and appreciation of all American workers, and especially those who have reached or are about to reach the age of 45. for sponsoring the bills, H.R. 4221 and HR. 3651, which you now have before you for consideration in this Subcommittee. In light of the fact that the Senate Labor Subcommittee has already completed hearings on this subject, and its bill is now before the full Sen'ate Labor Committee for approval, your decision to go forward at this time gives real cause for confi- dence that legislation to prohibit age discrimination in employment can and will he enacted at an early date. II Both HR. 4221 an H.R. 3651 would prohibit discrimination in employment on account of age. The approach is direct and forthright, and this, we believe. is essential if the problem of age discrimination in employment is to be dealt with in an eeffctive and meaningful way. I shall have more to say about particular provisions of H~R. 4221 arid HR. 3651 later in my statement. First, however, some general observations about the need for, and the importance of, this legislation are in order. Secretary Wirtz has pointed out that the 45-63 age group with which the legislation deals today includes some 39 millions people and will by 1975 include up to 44 million people. Yet about half of an the jo'b openings in this country are in effect closed to people over 55 years of age: workers over 45 find that a quarter of the jobs in the country are closed to them. Only a very small portion of newly hired workers today are older w-orkers. According to the report entitled "The Older American Worker", prepared by the U.S. Department of Labor under section 715 of the Civil Rights Act of PAGENO="0422" 416 AGE DISCRIMINATION IN EMPLOYMENT 1964, fewer than 5 percent of the new hives by employers surveyed in the study were 45 years of age or over. One fifth of all the employers surveyed hired no workers over 45. Of all new hires by these employers only 8.6 percent were workers who were 45 years of age or over. Unfortunately, the overall unemployment rates for workers 45 years of age and over tend to conceal more than they reveal. For the last couple of years, the rates for this age group have ranged from about .2-3 percent for white workers to about 4_51/2 percent for non-white workers. Hidden behind these figures, however, are some very serious job problems for older workers which can be attributed, directly or indirectly, to the discriminatory practices with which the legislation before this Committee seeks to deal. For example, according to data compiled by the Bureau of Labor Statistics, the labor force participation rate in 1966 among white males between the ages of 45 and 54 was 95.8 percent. A decade ago it was 96.8 percent. Since few workers in this age group retire, this decilne of one full percentage point must be explained by other developments. Among these developments, we submit, has been a tendency of older workers to withdraw from the labor force. The inadequate number of job opportunities, in relation to the available manpower supply, enables the employer to follow certain preconceived notions about the employment of older w-okers. Too often, they are placed at the end of the line. As a result, many of these workers become discouraged and they simply stop looking for work. But the official unemployment rates do not reflect this fact. What is true of white workers is even more true of non-white workers. Thus, among non-white males, 45 to 54 years of age, the labor force participation rate, which exceeded 95 percent in the early 1950's was down to 90.7 percent in 1966. Beyond this problem of an undercount of the extent of unemployment, the overall unemployment rates tend to camouflage some of the other harsh treat- ment to which many older workers are subjected in the job market. For example, workers 45 years of age and older made up 24 percent of the total unemployed in 1966. But they comprised 39 percent of the long-term (15 weeks or longer) unemployed during that year. Moreover, the older workers are not only more prone to long-term joblessness, they are also the victims of more frequent bouts with unemployment. Thus, in 1964, of all those unemployed during the year less than 20 pencent had three or more separate spells of joblessness. However, among workers 45 years of age and older who suffered unemployment during the year, over 25 percent had three or more separate )outs of joblessness. And so far as non-white males between 45 and 64 years of age are concerned, 43 percent of those who were unemployed in 1964 were jobless On three or more occasions in the course of the year. In addition to all of this is the fact that a substantial number of older workers are forced into part-time employment. And this, too, is hidden if we look only at the unemployment rates. In 1960, 36 percent of the 1.7 million workers who were employed part-time in non-agricultural industries for economic reasons-that is, because they could not find full time jobs-were workers who were 45 years of age and older. These conditions do not come about because older workers are not able to perform satisfactorily and efficiently the tasks required by their jobs. Medical research shows that there is no factual support for restrictive age limits in employment. The employment problems of the older worker come about primarily as a result of employer attitudes, conditioned in no small measure by some of the very employment benefits which have been achieved for workers, such as seniority, pension plans, promotion-from-within policies and early retirement. Some of these attitudes may be justified in connection with particular occupations, but overall they have little justification in fact in present-day industry and business. In saying this, Mr. Chairman, I do not wish to be misconstrued as expressing any serious skepticism about the importance and value of these aspects of modern employment relationships. The role they play in conditioning employ- ment attitudes does, however, need to be kept in mind. The employer too often tends to think of the older worker as a less efficient and more costly worker. Thus, he is slower to hire him and quicker to fire him. The result of the demonstrated failure of our economy to use fully the capabili- ties of older workers for productive purposes is a tremendous loss to the Nation's economy that has ~een estimated to run into the billions of dollars. Of equal, if not more, importance is the human loss in terms of the undermining of personal dignity and confidence that can afflict all too many workers, especially those with PAGENO="0423" AGE DISCRIMINATION IN EMPLOYMENT 417 little or no skills, as they approach the age of 45 and begin to realize that if they lose their jobs, it is going to be terribly hard for them to find other jobs. In our view, this is a situation that urgently calls for correction. It is this aspect of the problems of the older worker that HR. 4221 and, H.R. 3651 are designed to meet. Of course, the prohibition of discrimination in employment on account of age would mark only a ~eginning in dealing with the problems of the older worker. Other programs need to be developed to assure continued usefulness and dignity for workers and others as they grow old. Enactment of the legislation this Sub- committee is now considering would, however, `be a most significant beginning, and we urge the Congress to undertake this step, without delay. The problems of the older worker have engaged the attention Of the delegates to the last two AFL-CIO Constitution Conventions. In 1963, the AFL-CIO Con- vention resolved unanimously to support legislative and administrative action to aid the aging and called for "vigorous enforcement'of laws against discrimina- tion in hiring older workers and an investigation of rigid systems of forced retire- ment of older workers who retain their full productive capacity." In 1965, our support for legislation prohibiting discrimination in employment on account of age was reaffirmed and strengthened in a Convention resolution which states: "We urge the enactment of legislation which will effectively curtail discrimination on account of age. While a number of programs have Xeen developed to meet the needs of youth, and to eliminate discrimination based on color, sex, and national origin, little has been done to provide protection to older workers. This is a waste of human resources which should not be tolerated in any society seeking full employment and a rational manpower policy." Nor are we alone in recognizing that there is a serious employment problem for older workers that urgently requires attention. Twenty-three States and the Commonwealth of Puerto Rico have enacted laws banning discrimination in employment on account of age. These laws, of course, are of varying effectiveness, and nearly all of them suffer through lack of adequate appropriations to enable them to become truly effective in carrying out their purpose. They do, however, constitute widespread acknowledgment of the need to take action in this field and of the appropriateness of legislation to prohibt age discrimination in employment. The Federal Government, too, has taken some steps to deal with the problem. In March 1963 President Kennedy issued a memorandum to `the Executive Branch of the Government reaffirming the policy of hiring and promoting employees on the basis of merit alone and emphasizing the need to make, sure that older people are not discriminated against because of their age and receive full and fair consideration for employment and advancement in Federal employ- ment. This was followed by a recommendation by the President's Council on Aging in December 1963 that an Executive Order be issued banning discrimination in employment on the basis of age by Federal contractors and subcontractors. Executive Order 11141, issued by President Johnson on February 11, 1964, carried out this recommendation by establishing as a policy of the Federal Government that Governmen.t contractors and subcontractors should not dis- criminate in connection with the employment or terms of employment of persons employed by them because of their age. The order also directed that they should not in advertising for employees to work on Government contracts specify maximum age limits for such employment. Exceptions could be made under the order, however, upon the basis of a bona fide occupational qualification, retirement plan, or statutory requirement. Unfortunately, the order made no special provision for administration, carried no penalties, and only `required the several Federal departments and agencies to "take appropriate action to enun- ciate this policy". Clearly, to be reasonably effective, it needs to be strengthen,ed and implemented. In his "Message on Older Americans," which was sent to the `Congress on January 23, 1967, President Johnson called for enactment of a Federal l.aw prohibiting "arbitrary `and `unjust discrimination in employment because of a person's age". On January 23, 1967, too, Secretary Wirtz forwarded to the Congress draft legislation to carry out the President's recommendation. This legislation is contained in H.R. 4221 and H.R. 3651 which you, Mr. Chairman, and Chariman Perkins have introduced. I cite these expressions of support for enactment `of Federal legislation to prohibit age discrimination in employment because they demonstrate that rec- ognition of the need for such legislation is significant and widespread. We PAGENO="0424" 418 AGE DISCRIMINATION IN EMPLOYMENT have seen legislation passed in the last few yearS to prohibit discriminatory employment practices based on color and sex. It is time now to take the further step of outlawing discrimination because of age as well. I should like now, Mr. Chairman to discuss some of the provisions of the age discrimination bills which you and your subcommittee have before you. These bills have the objective of making it unlawful for employers, employment agencies, or unions to engage in certain specified employment practices which have the effect of discriminating against employees or applicants for employment because of age. They impose responsibility for administering and enforcing the legislation on the Secretary of Labor, with authority to delegate his functions in such manner "as he deems necessary to assist him in the performance of his functions under this Act". In general, we believe, the legislation is well designed to carry out its objective. Among other things. Mr. Chairman, the bills prohibit employment practices based on age engaged in by labor unions as well as by employers and employment agencies. Thh labor movement, through its international and local unions. has consistently been in the forefront of efforts to deal with the problems of older workers. In collective bargaining agreements we have endeavored to deal with some of the problems of age discrimination in employment, and in Convention resolutions we have called attention to the need for legislation, at both the state and Federal levels, to prevent such discrimination. It is important to make clear, we believe, that employers who ai~e paying wage rate differentials to older workers in violation of the bills shall not. in order to comply with the legislation. be permitted to reduce the wage rate of any employee. The Equal Pay Act of 1963 contained such a provision, and we believe it would be appropriate and necessary that such a provision be included in this legislation. We see no good reason, Mr. Chairman, for the provisions that exempt small firms employing fewer than a specified number of employees. Such provisions have the effect, of course, of leaving large numbers of employees outside the protection of the legislation and fly in the face of facts that make clear that the older worker in the small plant or business has just as much, and maybe more, need of protection as the older worker in the large plant or business. We are long past the day, it seems to us, if. indeed, there ever was such a day, when it could justifiably be argued that It may be all right to require a large employer to observe fair employment practices or labor standards, but all wrong to require his small competitor to do so. We likewise do not see any reason why the legislaion should, as is provided in section 4(f) (2) of the bills, permit involuntary retirement of employees under 65. We do not believe that the safeguard which this provision purports to contain restricting this possibility to cases where it is done "under a retirement policy or system where such policy or system is not merely a subterfuge to evade the purposes of this Act", is adequate to prevent serious abuse. In this connection, it should be observed that there is no age cut-off in this provision. Involuntary retirement could be forced, regardless of the age of the employee, subject only to the limitation that the retirement policy or system in effect may not be merely a subferfuge to evade the Act. On the other hand. section 4(f) might well be strentgthened in another respect. There is nothing in this section now w-hich protects the operation of bona fide non-discriminatory seniority systems. We urge that this section be amended to protect such systems. The enforcement provisions contained in section 7 of the bills are a mixture. based in various parts on the Civil Rights Act of 1964, the National Labor Relations Act and the Fair Labor Standards Act. We believe that it would be preferable to utilize the enforcement machinery of one of these Acts rather than to establish still another enforcement system. The staff and experience of the agency administering that Act would be of benefit to those charged w-ith the responsibility of enforcing the prohibitions against age discrimination in employment. When Congress passed the Equal Pay Act in 1963. it decided to utilize the staff and expertise of the Wage and Hour Division in the U.S. Department of Labor to administer and enforce that Act. As far as we have been able to determine, this approach to the problem of enforcing the Act's prohibition against discriminaiton in wage payments based on sex has worked well. We suggest that the Subcommittee should give serious consideration to simply utilizing the enforcement machinery and procedures of the Wage and PAGENO="0425" AGE DISCRIMINATION IN EMPLOYMENT 419 Hour Division to enforce the proscriptions against discriminatory employment practices based on age which are contained in the bill. Finally, the bills provide in section 13 that their application is limited to indi- viduals who are between the ages of 45 and 65. There is a proviso added to this section which gives the Secretary of Labor authority by rule or regulation to "provide for appropriate adjustments, either upward or downward, in the muaxi- mum and minimum age limits provided in this section." This Subcommittee is aware, I feel sure, of the practice of some airline com- panies which refuse to permit stewardesses to work as such beyond the ages of 35 in some cases and 32 in others. You will be hearing after me testimony from spokesmen for the Transport Workers Union of America, AFL-CIO, on this sub- ject. I want to make it clear we are in sympathy with their views on the need for relief for their members from the present discriminatory age limits w-ith respect to their employment as stewardesses which the airlines are imposing on them. It seems to us that the proviso which is included in section 13 is hardly adequate to provide the protection which they need. We believe that there is a substantial question whether the proviso permitting "appropriate adjustments, either upward or downward" can ~e stretched far enough to include workers 35 or 32 years of age under the protection of the bill. Indeed, we see no real basis for either upper or lower age limits in the bill, and we suggest, therefore, that section 13 be eliminated. III Before I conclude, ~Lr. Chairman, I should like to say a w-ord about the provi- sions HR. 4221 and HR. 3651 w-hich call upon the Secretary of Labor to undertake studies and provide information "concerning the needs and abilities of older workers, and their potentials for continued employment and contribution to the economy." The Secretary would also be directed to carry on a "continuing program" of education and information designed to (a) reduce `barriers to the employment of older persons, (b) publish and otherwise make available findings and materials for the promotion of employment of older w-orkers, (c) foster the development of public and private facilities for expanding the opportunities and potentials of older persons, and (d) sponsor and assist State and community informational arid educational programs. Since one of the biggest needs in eliminating age dis- crimination in employment is getting rid of attitudes about older workers which are not substantiated by the facts and making employers and other persons under- stand the productive capabilities of older workers, these provisLons are of great importance in aiding and supplementing the substantive provisions of the bill's. We are glad to see them in the bills, and we trust the Congress will approve them ,and will back up the legislation with the necessary funds to make it truly effective. In conclusion, Mr. Chairman, I w-ould like to say only that it is our hope that the Congress will act speedily to put legislation along the lines of HR. 4221 and HR. 3651, with the changes w-e have suggested, on the statute i~ooks. The need for it is great and, so far as I am aware, virtualy unchallenged. Time problem which the legislation is designed to meet, far from getting less important, only grows larger, as time goes on. Early passage of the legislation can make a sub- stantial contribution to achieving a better life for all Americans. Iv Thank you, Mr. Chairman, for this opportunity to present to you and to the members of *this Subcommittee the views of the AFL-CIO omi this important legislation. Mr. DENT. I just want to make this observation on your testimony, you have touched on the three critical situations in the entire field of age legislation: No. 1, the question of whether or not the size of the employment `agency, or the employer, should be a criterion. It develops many times we pass legislation using a false benchmark, as we have for so many years in the fair labor standards law. This chairman has tried to wipe out so-called commerce clauses and other restrictions on Congress. PAGENO="0426" 420 AGE DISCRIMINATION IN EMPLOYMENT If we are discussing the matter of discrimiiiation on age, how can we justify limiting protection to a prospective employee who is going to work for an employer with 2 or more employees? Are we passing legislation dealing with the employee or employer status? I think your remarks in that regard are well taken. I also want to commend you for your discussion of the section deal- ing with the upper and lower age limits. We may have a difference of opinion on the question of the upper levels, because I believe in early retirements, but not at 32. If so, I have missed a couple of years. In the lower restriction as established here at 45 years of age, I see no difference in discrimination at age 23, 24, age 35 or 37 tha.n to age 45. I believe the committee will have to consider very seriously the question of whether or not there ought to be any lower limit other than that prescribed by statutory law on the books dealing with child labor, or safety, occupational hazards, and so forth. It seems to me that particular part of your testimony ought to be given very serious consideration by the House at least; we know the Senate ignored it. We also believe the position taken by your AFL-CIO testimony this morning relating to the involuntary retirement of employees and so- called prehiring contracts where age is the only factor and the factor is not directly related to the job potential merits further discussion. The committee, I am sure, will take that into consideration. I want to personally thank you for coming here and helping us with your very wise testimony this morning. Mr. Hawkins. Mr. HAWKINS. I want to commend you for an excellent statement; however, I am not clearly convinced on your recommendation that en- forcement provisions should be through the Wage and Hour Division. I wonder whether or not this is a. strong recomemndation or if you are suggesting that instead of combining the enforcement provisions of several acts, it would be better to use one already accepted, or whether the Equal Opportunities Commission has been rejected. Have you given consideration to that and to whether other factors have been considered due to the fact we have had a long struggle to get all the problems of aging in one single division, not only enforcement but data collection, and so forth? Have you given consideration to these factors as well? Mr. MEIKLEJOHN. Our main concern here, Congressman Hawkins, is to utilize a procedure, the procedure set forth in the Fair Labor Standards Act rather than saying the responsibility for administering that procedure should be located in any particular department of the Bureau. The bill places responsibility for enforcement and administra- tion with the Secretary of Labor and permits him to delegate that responsibility as seems to him best within the framework of the Department. The bill in its present form contains provisions which in part are derived from various other statutes. It provides for cease-and-desist orders and adjudications by the Secretary of Labor, which we think are somewhat inappropriate for combining with administration by a single individual. There is some question, it seems to us, whether such quasi-judicial powers should be vested in an individual with admini- strative powers as well. What we are primarily concerned with here is PAGENO="0427" AGE DISCRIMINATION IN EMPLOYMENT 421 to utilize the procedures of court action, individual suits, and injunc- tion proceedings which are provided for in the Fair Labor Standards Act. This, I think, is what we have in mind. It is not to set up a new enforcement procedure. Mr. HAWKINS. What particular expertise does the staff of the Wage and Hour Division have in this particular field as distinguished from its other duties? Mr. MEIKLEJOHN. It has knowledge of the scope and coverage of, and enforcement problems in connection with, the Federal labor stand- ards laws. It has also acquired considerable expertise in administering the Equal Pay Act. Mr. HAWKINS. Are these necessarily sympathetic to the older worker or rather in some respects in conflict with the problems of aging? Mr. MEIKLEJOHN. The problem of older workers is a problem of interest to all workers and a problem which is of concern to those who are administering the Wage and Hour Act, as well as those administer- ing the Equal Pay Act. We don't believe there is any conflict there. Mr. HAWKINS. I don't think there should be but often there is. Mr. MEIKLEJOHN. In any case, if it were necessary, the Secretary of Labor under this legislation could establish a separate bureau or division to deal with problems of this kind, as we see it. Mr. HAWKINS. Whether or not this provision or recommendation is accepted, you would still support the bill, would you not? Mr. MEIKLEJOHN. Yes, I think we would. I don't think we regard this as of critical importance. This is a matter where I believe Congress would have to exercise its best judgment. It is our view that utilizing the enforcement procedures of the Fair Labor Standards Act, which are tried and tested, would be the most useful way of going about it. Mr. HAWKINS. Thank you. Mr. DENT. At this time, we have in the room the Honorable Claude Pepper, Representative in Congress from the State of Florida. STATEMENT OP HON. CLAUDE PEPPER, A REPRESENTATIVE IN CONGRESS PROM TI-lB STATE OP PLORIDA Mr. PEPPER. Thank you, Mr. Chairman. Mr. Chairman, yesterday, I presented a bill in which I have three approaches to this problem of employment for senior citizens and, if it would be agreeable, I would like the bill to be incorporated in the hearing since it is customary, I think, when a bill is the subject of testimony here, for the bill to appear in the testimony, is it not? Mr. DENT. The bill was introduced yesterday. We have said all identical bills. Mr. PEPPER. It is not identical. I have made some changes from the other bill. Mr. DENT. Identical in purpose is what we mean by that. Mr. PEPPER. Yes, the purpose is identical or similar. Mr. DENT. I shall be happy to have the staff get the legislation and we will look it over before our next meeting and see if we can get from it new phases of legislation that we can incorporate. PAGENO="0428" 422 AGE DISCRIMINATION IN EMPLOYMENT Mr. PEPPER. I would like to thank the members of the excellent House General Subcommittee on Labor for giving me this opportunity to testify as to the need to provide greater working opportunities for older workers. I would also like to commend this committee for the excellent job of investigation it has been doing and, I am sure, will continue to do on this matter of vital importance to our Nation. The problems facing our senior citizens have been receiving in- creased attention in the past several years, both in the executive and legislative branches of the Federal Government. All of the investi- gations and studies made so far point to the inescapable conclusion that something must be clone to solve the employment problems of older workers, yet very few substantive programs have resulted from these reports and hearings. We must provide meaningful opportunities for employment to the thousands of workers 45 and over who are well qualified but never- theless denied jobs which they may desparately need because someone has arbitrarily decided that they are too old. Although statistics show that as a nation we are growing younger, the absolute number of older persons in the society continues to increase. By 1975, it. is estimated that almost 65 million persons will be 45 and over. Today, the worker aged 45 or over comprises 27 percent of all unemployed and 40 percent of the long-term unem- ployed, and these workers receive more than three-fourths of a billion dollars in unemployment insura1Tlce each year. In 1965, the Secretary of Labor reported to the Congress that ap- proximately half of all private job openings were barred to applicants over 55, a quarter to those over 45; and almost all to those over 65. At the same time that the older workers are being forced by new technological advances to retire earlier, medical science is discovering ways to enable them to live longer. We are thus faced with the serious prosnect of privation and poverty for a great number of this ex- pancFng population who will be involuntarily retired in the years ahead. There are, of course, many areas of study which should be pursued in order to solve this dilemma~ but the most important single thing which we can do is to provide older workers with the opportunity to work and to support themselves as they have been doing all their lives. Not. only is employment ininortant to the economic well-being of our older population, it is also important to their mental. and physical health. In a recent position. statement on the employment of older people the American Medical Association stated: It is difficult .to prove that physical or mental illnes can be directly caused by lenial of employment opportunities. However, few physicians deny that such .a relationship exists. Many older persons, educated to the pioneer concent of work as a good in itself and leisure time as wasted time, are unable or unwilling to adapt to the creative use of their leisure time. They need to feel th~it they are in some ways performing a contribution to society. The bill which I introduced yesterclay-"The Older Workers Em- ployment Act of 1967"-attempts to attack this problem facing the older American on several fronts, combin.in~ all the best features of several earlier bills I introduced, including H.R. 9207 and H.R. 9893. It not only prohibits arbitrary discrimination against hirlng older PAGENO="0429" AGE DISCRIMINATION IN EMPLOYMENT 423 workers, but also offers meaningful job opportunities to many who could not otherwise find employment, provides for the construction of senior citizens centers, and provides for the study and investigation of possible alternative answers to the problems now confronting us. I am primarily concerned with emphasizing that the problem of the older worker is one of the greatest importance. Considered purely from the psychological point of view, if the involuntary unemploy- ment of the older worker continues to increase, we shall have on our hands a great problem in the reeducation of these people so that they may face the prospect of 20 to 25 years of retirement without anxiety and depression. Economic aspects of involuntary unemployment-or early retirement-are of even more serious consequence, for the impor- tance of earned income in the budget of many of the elderly is paramount. The bill which I have introduced is aimed at these problems. It will operate by "providing, these age groups with opportunities for useful work, part time and full time, paid and volunteer, will bring them needed income, will benefit ththr physical and mental health; and will be a means of providing services needed by all age groups which are not now being provided." Older workers often find it very difficult to surmount the assump- tion that they are unable physically or mentally to handle any new work because of their age. Title II of my bill would attempt to fight this discrimination by making it unlawful for employers, employment agencies, or labor organizations to discriminate against any individual solely because of age, except in cases where age is a bona fide occupa- tional qualification. Violation of these prohibitions would be punishable by civil penal- ties. Administration of the bill would be in the Wage and Hour Divi- sion of the Department of Labor, with the Secretary of Labor em- powered to carry *on a continuing program of education and information. The elimination of age discrimination in employment will be a major step toward the goal *of a better life for older citizens, but while it insures that available jobs will not be refused to qualified applicants, it does not insure a job for every older worker who wants one. In this day of rapidly improving technology, many older workers find their skills outmoded and their jobs abolished as new and more efficient methods of production are adopted. In order to combat. the tightening job market, it will be necessary to provide work opportu- nities for older persons. Title~ III of my bill will help to increase the availability of work by anticipating jobs on federally supported pro- grams and authorizing the Secretary of Labor to provide training for older workers to fill these jobs. To create further. job openings, the Older Americans Act of 1965 will be amended to provide for a Senior Service Corps. The Secretary of Health, Education, and Welfare will be authorized to supply part- time pa1d jobs in community service programs to workers aged 60 and over who are unable to secure full-time employment or to those who need to supplement an inadequate retirement income. Such jobs would provide a viable solution to the problem facing the worker who has exhausted his other means of support, but has not as PAGENO="0430" 424 AGE DISCRIMINATION IN EMPLOYMENT yet found suitable employment. Those senior citizens who do not need jobs, but desire to work in c.omnmnitv service programs on a volunteer basis, would be encouraged to work in the Senior Service Corps, and they would be eligible to receive out-of-pocket expenses from the program. The act would be further amended to provide the authorization of a special grant program to provide for the construction and opera- tion of senior citizen activity centers. Some of these have been operated by pioneering communities for a number of years and represent the most sigmficant and promising new instrumentality yet devised to meet. the many and varied needs of older people. A center facility, adequately staffed and effectively operated, per- mits older people to develop programs which explore their interests and provide new opportunities for self-improvement. Centers can provide intellectual and recreational stimulation, offer private and per- sonal counseling, provide referral services, and offer information about other services available to the elderly in their communities. Many communities which are anxious to begin such a program, do not have the aYailable funds. My bill would provide "seed money" to enable communities to begin developing these programs. In order to open the way to constructive and satisfying roles in em- ployment and retirement, a great deal of further study is needed. Therefore, the Secretary of Labor and the Secretary of Health, Edu- cation, and Welfare are authorized under title IV of my bill to conduct and support research programs in such areas as early or flexible retire- ment plans, continuing education and retraining programs for workers who are employed in order to prepare them for new jobs, and advance planning of manpower requirements. In addition, there is authorized, to be appointed by the President, a. Commission on Lifetime Adult Education. This Commission may hold hearings and study the aforementioned proposals in order to make legislative recommendations on these problems, and shall cease to exist after its report has been filed. Finally, the Secretary of Labor is directed to study the feasibility and desirability of a. transitional allowance system for older workers between the ages of 55 and 65 who are unemployed and have., exhausted their unemployment compensation. Within 2 years of the Secretary's report, the President will be directed to submit a report to Congress on the means to eliminate the gaps and inadequacies in workmen's com- pensation and disability insurance systems, particularly as they ad- versely affect the employment of older workers. Mr. Chairman, the problems which plague the older worker today are indeed serious. As the longevity of our population increases, we shall probably move into an era where the periods of education, work, and retirement in a man's lifetime will assume equal importance. By acting now to give each man the opportunity to work as long as he chooses and to enter retirement willingly, we will have taken a great step toward insuring a happy `and satisfying working life culminat- ing in a constructive and useful retirement. But we must act now, for today's older worker has no time to wait. I urge the members of this excellent subcommittee to recommend an expanded program to solve the employment problems of the older .worker and the senior citizen, so that they may be able to increase their PAGENO="0431" AGE DISCRIMINATION IN EMPLOYMENT 425 standard of living, while at the same time aid in decreasing the grow- ing poverty which has ensnarled so much of our~Nation. I beseech of your committee the consideration of these proposals. Mr. DENT. Thank you, Congressman. I might say, as just an offhand position, you covered quite a lot we have already covered in this leg- islation before us but you are making new proposals that should per- haps be given more in-depth study. It might be the committee may decide to have your bill up for special hearings because of the depar- ture into the areas of unemployment compensation, workmen's com- pensation, and disability insurance. While they have the very definite bearing on limitation of workers, it might be better for this legislation at this time to postpone consideration of these other areas which your bill covers. We are hop- ing to get this legislation a ruling next week in order that there will be opportunity to vote on it this year. Mr. PEPPER. The job discrimination provisions of my bill incorpo- rate the five amendments offered by Senator Javits so as to bring this section up to date. Mr. DENT. Mr. Hawkins. Mr. HAWKINS. I wish to commend you for a very compre- hensive bill. I would like to ask, since this bill goes beyond the question of prohibiting job discrimination, have you any estimate of cost that would be involved in this proposal ~ Mr. PEPPER. No, I do not as of now. We are trying to get estimates of cost from the Departments of Labor and Health, Educa- tion, and Welfare. Mr. DENT. Thank you. I would say for the record the Fair Labor Standards Act in its original inception was chiefly the work and study of the gentleman from Florida, Congressman Pepper. Mr. PEPPER. Thank you. Mr. DENT. Our next witness is, I understand, going to present the case very bluntly. We have now Francis A. O'Connell, legislative director of the Transport Workers Union of America; Miss Colleen Boland, president of Local 550 of the Transport Workers TJnion; and Miss Barbara Erikkson, legislative representative, in Washington, I will let you decide who wants to go first. STATEMENT OP FRANCIS O'CON1~LL, LEGISLATIVE DIRECTOR, TRANSPORT WORKERS UNION, ACCOMPANIED BY MISS COLLEEN BOLAND, PRESIDENT, LOCAL 550, TRANSPORT WORKERS UNION; AND MISS BARBARA ERIKKSON, LEGISLATIVE REPRESENTATIVE Mr. O'CONNELL. Thank you, Mr. Chairman. I would like to. read. my statement into the record and I have some exhibits I would like to have inserted in the record. Mr. DENT. Without objection, it is so ordered. Mr. O'CONNELL. My name is Francis A. O'Connell. I am legis- lative director of the Transport Workers Union of America, AFL- ClO, with offices at 100 Indiana Avenue. NW., Washington, D.C. PAGENO="0432" 426 AGE DISCRIMINATION IN EMPLOYMENT Mr. DENT. Will the gentleman yield for a minute, I want to present a distinguished member of this committee, the majority leader, Mr. Carl Albert from Oklahoma. Mr. O'CONNELL. On my right is Miss Colleen Boland, president, Local 5'SO of the Transport Workers UnionS and on her right is Miss Barbara Erikkson, legislative representative of the stewardesses local. `I appreciate and thank you for this opportunity to speak on behalf of the 150,000 members of the Transport Workers Union, AFL-CIO. We come here today to support the legislation now before you to prohibit discrimination in employment, because of age. Our union, with its railroad division and its air transport division, represents a great nunTher of workers serving both one of America's oldest and youngest transport industries. We seek here to direct your attention and ask your consideration of discrimination problems involving both youth and years. First, however, let me say the Transport WTorkers Union is in full agreement with the opening statements made *before this sub- committee on August 1, 1967, by Secretary of Labor Willard Wirtz, that to prohibit age discrimination in employment is so plainl~y and unarguably right, that to belabor it is to dull it, that nobody defends such discrimination, and that there is general agreement that it ought to be stopped. It not only ought to be stopped. It must be stopped. And we have been saying just that for years, first before the House Select Sub- committee on Labor in 1965; before the Ne.w York State Commission for Human Rights; before the Equal Employment Opportunities Commission here in Washington; before the Federal district court in Alexandria, Va.; before the Senate Labor Subcommittee of the Senate Labor and Public Welfare Committee; and again here today. With its enforcement provisions, this bill could have been vital in helping reestablish the employment of some 2,200 members of our railroad division who have been laid off this year in Pennsylvania alone because of cutbacks in the use of some of the railway postal service cars. Mr. Chairman, in a meeting with the chairman. of the board of the Pennsylvania Railroad yesterday afternoon, he informed us that the Post Office Department has informed him of serious cutbacks in the Railway Postal Service effective September 6; the cars are on the New York to Washington run and the New York to Pittsburgh runs. As you know, it follows, when the Postal Service cars are removed, the railroads immediately petition the ICC to disband their passenger trains and so we are faced on September 6 with further layoffs on the Pennsylvania. Railroad. These men have 15 or 20 years of seniority. They are well over 45 years of age and it is these people in the railroad division that really need this legislation. It is impossible to obtain jobs after you have reached the age of 40 or 45. It is interesting to note this legislation pertains only to those be- tween the ages of 45 and 65; however, the charts, graphs, figures produced by the Department of Labor usually begin with the figure 40. I don't know why it is 45 in this particular bill. Discrimination in employment for any reason ought to be stopped. As Secretary Wirtz put it, to end discrimination in employment PAGENO="0433" AGE DISCRIMINATION IN EMPLOYMENT 427 because of age is so "unarguably right," it would be an absurd, unecessary waste of time to simply belabor it. Except for one fact. . The legislation you are now considering to end age discrimination in employment contains an arbitrary, self-limiting section that in itself discriminates-by age-in extending the coverage of this bill. Section 13 of the act limits the act, its intent aiid purpose, its enforcement provisioiis, all of it, to individuals who are at least 45 but less than 65 years of age. And this is discrimination. The Air Transport Division of the Transport Workers Union rep- resents approximately 40,000 workers in the air transport industry. Nearly 15.000 of these are flight attendants-also known as steward- esses or hostesses. Age discrimination against airline flight attendants begins at the universally accepted youthful age of 32 to 35. I admit that through our mass advertising, our communications media today, we are cultivating a myth of eternal youth. WTe are developing a youth cult in this country. Look young. Think young. Feel young. But don't get to be 3 or 35 if you're an airline stew-ardess. The Transport Wrorkers Union consistently has acknowledged that reasonable medical and physical standards can be imposed for all categories of workers, including airline stewardesses. But not a self- serving arbitrary age limit. Especially one that falls 13 years before the minimum age limit coverage of section 13, Section 13 provides the Secretary of Labor with authority to make appropriate adjustments-either upward or downward-in the maxi- mum aiid minimum age limits. But how far down can lie go? Or how far up, for tlia~ matter? The Secretary himself has indicated before this committee that he would like section 13 defined, spelled out more clearly in its intent. We ask it also. If Congress decides that discrimination against a worker at the age of 45 is against the best interests of the Nation, then surely Congress must abhor, at least as much, discrimination at the age o132. The Transport Workers Union is on record respectfully requesting that legislation be enacted prohibiting age discrimination in employ- ment and that such legislation not be limited to people between the ages of 45 and 65. `We feel this could end the long, costly legal maneuvers and delays in seeking to find enforcement teeth for Executive Order 11141 in which President Johnson in 1964 declared a national policy against discrimination because of age. We feel such legislation is the only answer to an industry which, while it boasts it is an equal-employment-opportunity employer in its help wanted ads, has studiously ignored Executive Order 11141 for 3 long years while steadily increasing its contracts in carrying men and supplies to the battlefields in Vietnam. Although only one of the airlines, whose member-employees we represent, continues to enforce arbitrary age limitations today, it is clear that a final and binding decision on this matter, an industrywide decision, is necessary to head off future problems. There must be firm and decisive language. This is an industry which received nearly half-a-billion dollars in military aircraft contracts this 85-376-67----28 PAGENO="0434" 428 AGE DISCRIMINATION IN EMPLOYMENT fiscal year alone, but which has still not completely implemented Executive Order 11141. It must be shown the way. Mr. Chairman, that half billion dollars of contracts awarded are the initial contracts. Last year for the fiscal year ending this past June 30, that figure was almost $700 million. I sincerely urge this committee to delete section 13 and to adopt this bill for approval by the full House, or failing that, to amend it specifi- cally to protect airline flight attendants. In defense of both youth and years, I urge you to set no minimum or maximum age limits. Mr. DENT. With the committee's permission, I would like to refrain from asking questions at this time until we hear the testimony of Miss Boland in order that we may ask questions related to the testimony of both witnesses. Miss BOLAND. Mr. Chairman and members of this committee, my name is Colleen Boland. I am president of the Airline Stewards & Stewardesses, Local 550, of the Transport Workers Union of America, AFL-CIO. This is a labor organization with offices at 205 West Wacker Drive, Chicago, Ill., representing over 10,000 men and women who earn their living as flight attendants on this country's commercial aircraft. Since 1954, a portion of the airline industry has arbitrarily instituted a policy which prohibited continued employment of female flight atten- dants after they reached age 32 or 35. Because the industry is young, no individual was actually affected until about 1963. In the past 4 years, however, many young women have found themselves without employment solely because of their age. During the past few years, we have strived here in Washington through support of legislation, through the EEOC, and through Presi- dential Executive Order 11141, to end this cruel and arbitrary discrimination. We have pleaded our case before various State agencies and courts seeking relief which would provide us the ability to continue to work in a job we desire and are able to perform. We have met with violent opposition from the management of this industry, we have battled through innumerable legal maneuvers and delays, and spent thousands of dollars hoping to find a peaceful solution to our problem. The New York State Commission on Human Rights ruled they found no evidence which warranted the estaibiishment of an arbitrary chronological age ipolicy for continued employment of an airline stewardess and, further, that evidence supported the position that ter- mination as a stewardess should be predicated solely on the individual's ability to perform the duties of the position. The commission went on to say that under New York law they found no support for a claim of a bona fide occupational qualification. The Equal Employment Opportunities Commission, in issuing guidelines on discrimination provisions of the Civil Rights Act of 1964, stated that "the principle of nondiscrimination requires that in- dividuals be considered on the basis of individual capacities." Section 4(a) of H.R. 4221 proposes to make it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, condition or privileges or employment, because of such individuals age * * PAGENO="0435" AGE DISCRIMINATION IN EMPLOYMENT 429 We believe that such a provision is long overdue, but that such a provision, when made into law, should apply to all people and to all groups regardless of age. For this reason we urge you to consider the elimination of any minimum or maximum age limitation in order to assure that the true intent and meaning of the act is not circumvented through misuse or misapplication of such restrictions. For instance, in hearings before the New York commission, counsel for the Air Transport Association and American Airlines presented lengthy testimony as to why they were not in violation of New York law. They submitted the history of that law and pressed the point that the law applied only to people between the ages of 40 and 65. They argued that, if the lawmakers had been concerned with anyone under the age of 40, they would have said so and therefore, in the absence of specific attention to anyone under 40, the law should now be applied only to cases where discrimination took place between the ages of 40 and 65. Because we are members of a strong and militant labor organization which commands the ability to withdraw our services and thereby cause an economic hardship upon the industry, we have been partially successful in our efforts to set aside this discriminatory age policy in the airline industry. Today we are able to state that only one airline on which we represent stewardesses continues to enforce termination because of age. All other carriers with which we presently represent stewardesses have, in one form or another, set aside their policy to reject any woman over 33 years of age from the job of airline stewardess. I believe a previous witness before this committee has submitted quite detailed and lengthy testimony and exhibits that we had in part previously presented to you and those do reflect the industry as a whole. We will not go into them since I am aware that they are all available to the committee at this time. Mr. DENT. The committee appreciates that because it would only be repetitious and the committee has had those exhibits presented in the interest of the airline hostesses. Miss BOLAND. Thank you. H.R. 4221, if acted upon and passed, will permit many Americans to continue in a job of their choice and within their capabilities which may otherwise be denied them because of outdated, outmoded think- ing. H.R. 4221 if passed without a minimum or maximum age limita- tion could eliminate forever discrimination because of age for us and for all Americans. Mr. Chairman, I want to thank you and the subcommitte.e for allow- ing me this opportunity to appear before you today and to respect- fully urge serious conSideration of our proposed amendment. Mr. DENT. Thank you, Miss Boland. Mr. O'CONNELL. Before you start questioning, I would like to sub- mit for the record a copy of Executive Order 11141; a Wall Street Journal article dated Friday, June 16, 1967, atout airline contracts. Also a copy of a ietter from Mr. Stanley H. Ruttenberg, Assistant Secretary and Manpower Administrator at the U.S. Department of PAGENO="0436" 430 AGE DISCRIMINATION IN EMPLOYMENT Labor, to Congressman James G. O'Hara and I would like to read part of it. [Reading:] This is in further reply to your letter of March 7th concerning the Department of Labor plans for implementation of Executive Order 11141. After careful review of the Executive Order by Department of Labor staff. we have concluded that the Order does not provide for enforcement procedures. As you know, the Order declares Federal policy against age discrimination on the part of Federal contractors. Under the Order, Federal departments and agencies are to "enunciate this policy," but no provision is made for action against con- tractors who do not comply. It is our feeling that in the case of the nirline host- esses, the Department of Defense has already done as much as the Executive Order permits. There is no question that tile policy has been enunciated, and certainly every effort has been made to bring the airlines voluntarily into compliance. It is our expectation that passage of the Age Discrimination in Employment Act presently under consideration by the Congress will make it possible to imple- ment the Federal policy on age discrimination. With the force of law behind the policy, regular procedures can be established to assure compliance by Federal contractors. That letter was received on May 15. On March 15, Secretary of Labor Wirtz testified before the Senate. Labor Committee and testified in answering a question that, if Congress thought that the problem of the hostesses was to be taken care of, it should be taken care of by specific language. This is one of the reasons we are here today. We have been assured by Stanley Ruttenberg that this legislation will take care of us and take care of the problem of stewardesses and Secretary of Labor Wirtz before the Senate and your committee testi- fied it should be done by specific language. Mr. DENT. Without objection, the exhibits will be part of the record. (The exhibits referred to follow:) U.S. DEPARTMENT OF LABOR, OFFICE OF THE ASSISTANT SECRETARY, Washington, D.C. Hon. JAMES G. O'HARA, House of Representatives, Washington, D.C. DE~ CONGRESSMAN O'HARA: This is in further reply to your letter of March 7, concerning the Department of Labor plans for implementation of Executive Order 11141. After careful review of the Executive Order by Department of Labor staff, w-e have concluded that the Order does not provide for enforcement procedures. As you know, the Order declares Federal policy against age discrimination on the part of Federal contractors. Under the Order. Federal departments and agencies are to "enunciate this policy," but no provision is made for action against contractors who do not comply. It is our feeling that in the case of the airline hostesses, the Department of Defense has already done as much as the Executive Order permits. There is no question that the policy has been enunciated, and certainly every effort has been made to bring the airlines voluntarily into compliance. It is our expectation that passage of the Age Discrimination in Employment Act presently under consideration by the Congress will make it possible to implement the Federal policy on age discrimination. With the force of law behind the policy, regular procedures can be established to assure compliance by Federal contractors. STANLEY H. RTJTTENBERG, Assistant secretary and il[an.power Administrator. ExECUTIVE ORDER 11141 The President on February 12, 1964, issued an Executive Order establishing a policy against discrimination in employment on the basis of age by Federal contractors and subcontractors. PAGENO="0437" AGE DISCRIMINATION IN EMPLOYMENT 431 `This was the first time that the `Federal Government had enunciated a clear- cut policy respecting age discrimination in private employment. The President's Council on Aging, in its Report to the President in December 1963, had recom- mended that such an order be issued. The policy provides that contractors and subcontractors shall not discriminate on account of age in hiring, advancement,' discharge, and terms, conditions or privileges of employment. Proscribed also are maximum age limits in advertising or other solicitations for employment. Exceptions to this policy are bona fide occupational qualifications, retirement plans,' and statutory requirements. The text o'f the Order follows: EXECUTIVE ORDER 1114 1-DECLARING A PUBLIC POLICY AGAINST DISCRIMINATION ON TIlE BASIS OF AGE Whereas the principle of equal employment opportunity is now an established policy of our Government and applies equally to all who wish to work and are capable of doing so; and Whereas discrimination in employment because of age, except upon the basis of a liona j~de occupational qualification, retirement plan, or statutory require- ment, is inconsistent with that principle and with the social an'd economic objec- tives of our society; and Whereas older workers are an indispensable source of productivity and expe- rience which our Nation can ill afford to lose; and Whereas President Kennedy, mindful tha't maximum national growth depends on the utilization of all manpower resources, issued a memorandum on March 14, 1963, reaffirming the policy of the Executive Branch of the Government of hiring and promoting employees on the basis of merit alone and emphasizing the need to assure that older people are not discriminated against `because of their age and receive fair and full consideration for employment and advancement in Federal employment; and Whereas. to en'courage and hasten the acceptance of the principle of equal employment opportunity for older persons by all sectors~'of the economy, private and pub'lic, the Federal Government can and should pro'vide maximum leadership in this regard by adopting that principle as au express policy of the Federal Government not only with respect to Federal employees but also with respect to persons employed by `contractors and subcontractors engaged in the perform- ance of Federal cOntract's: Now, therefore, by virtue of the authority vested in me by the Constitution and sta'tutes of the United States and as President of the United States, I hereby declare that it is the policy, of the Executive Branch of the Government that (1) contractors and subcontractors engaged in the performance of Federal contracts shall n'ot, `in connection with the employmnent, advan'cement, or dis- charge of employees, or in connection~ with the terms, conditions, or privileges of their employment, `discriminate against person's `because o'f their age except upon the basis of a bona fide occupational qualification, retirement plan, or stat- utory requirement, and (2) that contractors and subcontractors, or persons acting on their behalf, shall not specify, in solicitations or advertisements for employees to work on Government contracts, a maximum age limit for such employment unless `the specified maximum age limit is based upon -a bo'na fide occupational qualification, retirement plan, or statutory requirement. The head of each department and ageiicy shall take a'ppropriate action to enunciate this policy, and to this en'd th'e Federal Procurement Regulations and the Armed Serv- ices Procurement Regulation shall be amended by the insertion therein of a statement giving continuous notice of the existence `of the policy declared `by this order. LYNDON B. JOHNSON. THE WHITE HOUSE, Febrvary 12, 1964. [From the Wall Street Journal, Friday, June 16, 19071 U.S. AmLINES GET $485 MILLION JOBS FEoll THE MILITARY WASHINGTON.-The Pentagon ann'ounced $485 million in contracts to U.S. air- lines to carry military personnel and cargo in the year beginning July 1. PAGENO="0438" 432 AGE DISCRIMINATION IN EMPLOYMENT Commercial airlines currently carry about 35% of military cargo and 90% of the service personnel. Of the 22 airlines getting awards, 16 will fly to South- east Asia, principally Vietnam. Pan American World Airways received the largest award, $82,814,968. Among other lines receiving contracts: Continental Air Lines, $53,576,101; Braniff Airways, $30,252,957; Northwest Airlines, $37,317,212; Flying Tiger line, $36,876,464; Trans World Airlines, $32,- 271.604; World Airways, $26,648,889; Seaboard World Airlines, $24,202,334; Airlift International, $22,364,475. Saturn Airways, $21,857,111; Universal Airlines, $19,492,413; American Air- lines, $18,174,961; Trans International Airlines. $15,169,661; Eastern Airlines, $13,650,631; Trans Caribbean Airways, $10,130,155; Capital International Air- ways, $10,928,553; Overseas National Airways, $9,771,935, and Southern Air Transport, $7,608,571. The awards are $144 million more than the total initially awarded for the current fiscal year, but supplemental contracts issued throughout fiscal 1967 are expected to push this fiscal year's total to more than $600 million. In other defense contract actions, the Army awarded a $5.818,578 contract to Martin Marietta Corp. for production of Shillelagh missiles at Orlando, Fla. International Telephone & Telegraph Corp. received a $5,642,300 Air Force contract to make airborne navigational sets and related equipment at Nutley, N.J. Southwest Truck Body Co., St. Louis, was given a $3,467,800 Army contract for six-ton semi-trailer vans. Mr. Dn~r. I would like to change the format of the questioning. You will please just remain at the witness table so the committee will have a longer period of questioning without delaying a Member of Congresswith other duties to perform. I would like to break in at this time although the testimony of the Member of Congress. Mr. Burke, shall appear in the record following all the questioning of these two witnesses. Now, Mr. O'Connell, I would like to make a few observations. I noticed you both touched on a subject matter in your testimony which I think is very pertinent and probably of great interest to this committee and it should be to the Congress of the United States. That is, once this committee and other committees have taken official notice of the problem of the airline stewardesses and hostesses, I am very much afraid that if we do not take some action on it it might be the go-ahead sign for some of the airlines who do not practice this discrimination to put it into effect. As I noted the other day from testimony there is one of the major airlines which does not have this type of a contract proposal which is proposing it now in the face of the fact that most of the major airlines are eliminating this type of contract for employment. We are almost forced by the nature of our interest in the matter to consider the airline problem whether or not it was considered in the beginning of the legislation. Miss Boland touched on it and you touched on it so that we find ourselves now locked into a position where at least some consideration, some comment, some provision must be made by the Congress at this time or we may open the door to a greater problem for the airline hostesses than they have had up to this moment. Mr. O'CONNELL. We are afraid if you do not give consideration to the stewardesses' problem you will give license to the airlines to further institute these regulations. Mr. DENT. Mr. Hawkins, do you have any question on this pai'ticu- lar phase of the testimony? PAGENO="0439" AGE DISCRIMINATION IN EMPLOYMENT 433 Mr. HAWKINS. No, only I want to ask Mr. O'Connell whether or not during the litigation he has had with the airlines or any of the hear- ings before commissions or even in the courts, has any documentary evidence been submitted which sustains the airlines' contention, if there is a contention, that there are economic factors involved? Mr. O'CONNELL. Not as far as economic factors are involved. I was interested in your question to Mr. Meiklejohn, on enforcement proce- dures. We filed the first case before the Equal Employment Opportuni- ties Commission in August of 1965 and the Commission ruled after investigation that there was probable cause of discrimination because the young lady was discharged from Northwest Airlines because she had been married. We filed the case with the Federal district court in Alexandria in ~January 1965 and in that case the carrier attorneys first objected that we were in the wrong court; they wanted to change venus on us. The short of it is, is that that case is still pending in Alexandria district court and this is a year and a half later. Every time we have gone into court or gone before the Commission, nothing about economics has been raised-it has been young and pretty females as a bona fide occupational qualification. Mr. HAWKINS. Has anything been filed by patrons of the airlines that they prefer younger stewardesses? The testimony has charged that it has been purely arbitrary rather than actual findings. Mr. O'CONNELL. To the contrary, the airlines club represents a large number of business travelers and they overwhelmingly preferred older stewardesses rather than the younger females. We supplied this in May 1966 to the Commission. After the Commission ruled there was probable cause for discrimination in the Judy Even~son case, the airline asked for a hearing for a bona fide occupation qualification and the Air Transport Association and the airlines appeared before the Commission as Miss Boland and our attorneys did. We had a hearing asto the bona fide qualifications of the stewardesses and the Commis- sion was to rule in the. middle of November 1966 when the ATA went into court here and got an injunction to keep the Commission from ruling. We are going back before the EEOC September 12 for a new hearing as to whether sex or age 32 is a bona fide occupational qualification. We have been before the EEOC since 1965; 2 years and 3 months later we are still trying to get a ruling from the EEOC as to whether or not young and pretty females is a bona fide occupational qualification for the position of airline stewardess. Mr. HAWKINS. I know the weight of the testimony before the New York Employment Commission seems to be that it is not the intent of the legislature that persons below the age of 40 would be covered. Is that the defense in that particular Commission case? Mr. O'CONNELL. Miss Boland should answer that question. Miss BOLAND. The airline arguments at that hearing were that in fact even airline stewardesses had been discussed and taken under con- sideration at the time the original law was written because, as I un- derstand it, the law was originally 45 to 65 and was later lowered to age 40. In one of the cases or examples brought up there, as we have brought before you here, was the case of airline stewardesses in New York State at that time who were permitted an age limitation of 32. PAGENO="0440" 434 AGE DISCRIMINATION IN EMPLOYMENT The law passed amending it. only to age 40 and so, as I recall and as I believe the transcript will show the airlines argued, in specific. at that time it was American Airlines, that if the law had been meant to apply to any discrimination under age 40 there would not have been a mini- mum age limitation spelled out in the legislation. Mr. HAwKINs. The point I am trying to develop is, as the chairman has said, the possibility that this proposal in its present form will not be of much help in your situation. Further, since we have taken cognizance of the problem in these public hearings, I am afraid it might actually encourage restrictive regulations by some of the airlines, as indicated. It seems to me it does argue for some action, Mr. Chairman, as you have indicated. Mr. DENT. Will the gentleman yield? We must go to the floor for 15 or 20 minutes to answer a call from the floor. Congressman Sc.herle. has stated he has a couple of questions and Congressman Matsunaga has indicated he wants to present his test imonv. `Would it be. too much of an inconvenience to ask you to wait for us Mr. O'CONNELL. We will be happy to wait for you. Mr. DENT. All right, we will return as quickly as we can. (Whereupon, a brief recess was taken.) Mr. DENT. While we are waiting for two other members, I would like to ask Miss Boland a question or two. Miss Boland, are there male employees in the industry performing the same duties as the stewardesses and hostesses? Miss BOLAND. Yes. Mr. DENT. They have no such restrictive clauses in your contracts? Miss BOLAND. ~O. Mr. DENT. Mr. O'Connell, has there b~en any attempts on your part or the TWIT in behalf of hostesses to take this matter up under the sex discrimination clause ? Mr. O'CONNELL. Yes, that is the c.ase I referred to earlier. Mr. DENT. Based on that. assumption? Mr. O'CONNELL. Yes sir. Mr. DENT. As you stated, there was an injunction issued against the Commission from making a. decision on that matter? Mr. O'CONNELL. That is right.. Miss BOLAND. I believe we filed our first complaint under t.he Civil Rights Act as a matter of days after the law went into effect. We have no ruling to this date. Mr. DENT. No indication of the decision? Miss BOLAND. Except the one, as Mr. O'Connell said, that we have taken to court. but there was no decision there. Mr. DENT. I noted in the discussioin this morning the gentleman from California, asked a. question concerning the New York Fair Em ploymeD t Co*m.m.is~ion decision and the case before it when the airlines made the premise that. the qualification in this particular line of employment was young and beautiful, or young and pretty. Do they have the same qualification for the men? You know it is astounding in this testimony there has been no opposition to this proposal that I knOW of. PAGENO="0441" AGE DISCRIMINATION IN EMPLOYMENT 435 Mr. O'CONNELL. There is a representative of the Air Transport Association sitting in the back of the room and I know they knew we were going to testify this morning, I am sure, if they had a case they could defend, they would be here testifying. Mr. DENT. I did understand in the beginning they were going to present testimony but as of today we have not received any testimony whatsoever. I am sure they know the record will be open for 10 days, and if there is any testimony to be presented, it can be presented by any interested party. *The Secretary of Labor, in his testimony before the Senate coin- mittee, specifically intimated that insofar as his problem is concerned he would desire that the question be clarified by congressional action. Is that your understanding of his testimony? Mr. O'CONNELL. Yes, it is. If it were the intent of Congress to do something about this problem it should direct its attention to it specifically. Mr. DENT. That, in line with our thinking as we have expressed it before on the question, puts us in a very crowded corner because if the question never came up it would have no beariitg on what sub- sequent action may be obtained by the union or the en'iployer. But since it has been brought before the Congress by testimony publicly given, it becomes imperative that some expression be made, in my humble opinion, one way or the other by Congress, otherwise we may find ourselves in the position of having done a disservice to either the employer or employee by remaining silent on the question at this point. Mr. O'CONNELL. When the legislation was first introduced we were under the impression that the proviso contained in section 13 which gave the Secretary of Labor the authority to raise or lower the age limits in cases where he found probable cause of discrimination, we though this gave to the Secretary of Labor the right to take up and intervene in our particular case but the Secretary of Labor in testi- mony before the Senate committee was not loud and clear on this; in fact he was just the opposite, he didn't think lie could reach down to 32. He suggested `to the Congress that if Congress intended to do some- thing in this area that it should direct itself specifically to our problem. Mr. DENT. It was his testimony on this point that caused the sit- uation to become a public matter before the committee. The proposal gives him discretionary authority to adjust the age limitations upward or downward, but he threw the ball right back, if you will, to Congress by stating if we were going to have any action in this particular area we should provide for it in the legislation. Therefore, we find ourselves hoping to get testimony from both sides because I have always believed there are two sides to every question. Where we have only one side we have to act accordingly. If we have no opposition to it then the only thing we can do is act on the testimony presented to us. Therefore, it is a matter of serious con- sideration since the Senate has not seen fit to follow the advice or suggestion of the Secretary of Labor, the full burden for making the determination appears to fall on the shoulders of the House committee. Mr. O'CONNELL. The full committee has not met on that bill over PAGENO="0442" 436 AGE DISCRIMINATION IN EMPLOYMENT there and our problem of the stewardesses will be taken up by the full committee. The bill has been considered by the subcommittee but not by the full committee. Mr. DENT. I might say at this point I want to correct the record. My staff just informed me the transport association sent in a brief. It is impossible for us t.o take up briefs while having public hearings because we are sufficiently occupied with the witnesses coming before us but we will review the brief brought in by the ATA and it will be given full consideration by the committee. The brief to be submitted by the Air Transport Association will appear at the end of this day's proceedings. At this time, I would like to turn the hearing over to the members for any questions they might have, especially to the gentleman from Michigan who has long been interested in this area of discrimination and has asked for permission to sit with us. He is a member of the full committee and wanted a part in the determination here. Mr. Ford? Mr. FORD. Thank you, Mr. Chairman. I am sorry I couldn't be here for the begiimkng of your testimony but we are in the process of now marking up the famous postal rates bill. I did want to be over here when Miss Boland was testifying because I know how hard her organization has been working on this legislation. I have heard a.bout it almost from the time I came to Congress. Of course, Frank O'Con- nell is certainly not new to anybody on this committee and we are pleased to have Miss Boland and Miss Erikkson before the committee. Miss Erikkson has been very helpful to my office as a kind of funnel for information to be supplied to other members of the committee. I am concerned with what you said about the Secretary of Labor. I have discussed this with him on one or two occasions and I know that the opinion prior to this most recent consideration was that section 13 would allow him to reach down and take care of this problem. If discretion has been left to the committee, I think we should make certain that we specifically cover this particular problem. Most Members of Congress who have introduced or are supporting this legislation first approached the problem of automation from the viewpoint of those people who at age 45 must start over in the industrial picture. Your story has been a particularly good illustration of how far this kind of discrimination has been permitted to go in the past and I would like to ask if it is now the position of the management organizations that they do not want legislation in this field? Miss BOLAND. The airline industry, or the managements of the industry insofar as those we represent, have never taken any specific position that I know of aside from the fact there is no legislation prohibiting such a determination, such an arbitrary rule. I think their record speaks for itself and proves our case because for many years there have been many people flying, men and women as flight attendants well past the age of 35, well past 45, and the very fact in recent months that some of the companies and some of the man- agements which were most adamant about retaining an age they considered necessary, or a qualification, have changed their policy and have now recalled the very people who a few months or even a year ago were terminated as an absolute must. PAGENO="0443" AGE DISCRIMINATION IN EMPLOYMENT 437 I can't help but feel that this proves our point. It could not be a legitimate qualification if management's mind can be changed and those people can be recalled and fulfill the job as they have done in the past. Mr. FORD. Since the committee took up this matter just a little over a year ago in the Holland committee, have you reduced the number of airlines who still maintain arbitrary age rulings? Miss BOLAND. I think since the last time I saw you we are very happy `to report that even within the matter of the last few weeks we now represent only one carrier who continues t.o maintain arbitrary age rulings. On American Airlines girls are still being terminated because of age at 33, but on the other carriers, their competitors and those not completely their cothpeti'tors, they have resigned the age policy in effect less than a year ago. Mr. FoliD. Is American one of the airlines that maintains its own school for flight attendants and stewardesses? Miss BOLAND. Yes. Mr. Foiio. Is that school operated on a permanent basis or is it contracted out to some educational institution? Miss BOLAND. No, it is operated strictly by American Airlines in Texas and is called American Airlines Stewardess College. Mr. Foiin. What is `the size? Miss BOLAND. Well, they train, I would estimate, roughly better than a thousand girls a year. Mr. Fop~~. Do they operate it 12 months out of the year? Miss BOLAND. Up until the last few years they usually closed in the winter because of the slack period of the airline business. I believe last year and plans for the coming year are to operate year round with classes continually being graduated. Mr. Foiw. I have the brief of the Air Transport Association here with a cover letter and, of course, the cover letter makes the central point that there `has never been arbitrary discrimination on the part of the airlines they represented. Do you know whether or not they represent American Airlines? Miss BOLAND. The Air Transport Association? Mr. Foiw. Yes: Miss BOLAND. I have never heard anything to the contrary. Mr. FORD. Has there been any action on the part of anyone to bury that rule or does it apply to everyone? Miss BOLAND. No, it does not apply to everyone, only to those hired after 1953, so there are girls-there are girls hired prior to that time who continue to fly, continue to do the job but if they were hired after that point- Mr. FORD. These girls hired prior to 1953, do they perform the same kind of flight attendant duties that younger girls are per- forming? Miss BOLAND. Identical, they could be working side by side on the same flight. Mr. Foiw. They could be working with younger girls on the same flight? Miss BOLAND. Yes. Mr. Foiw. To what extent does a flight attendant have the right to pick her run? PAGENO="0444" 438 AGE DISCRIMINATION IN EMPLOYMENT Miss BOLAND. It cTepends On her length of service as a flight attendant, seniority and preference gives her a choice. Mr. Foni. Do girls with seniority tend to prefer the overseas runs? Miss BOLAXD. In general. American. of course, does not at the present time have any overseas runs, all of theirs are in the T.Tnit2d States and Mexico. Mr. FORD. So the girls who were with American prior to 1953 would probably be on premium runs of that. kind? Miss BOLAND. Actually under that particular airline they are all identical. The only difference would be their salary would be different according to seniority, preference to flights or bases depends on prefer- ence according to individual seniority. Mr. FORD. How many years does it take a flight attendant with American Airlines to reach maxinmm salary? Miss Bor~xD. The ninth year is the top year. Mr. FORD. So if she starts in her early twenties she just might make it to top salary about the time she stops flying? Miss BOLAND. She has just about comfortably reached the top pay bracket and top choice of flights at the time she is required to leave. Mr. FORD. It is fair to assume since the policy was instituted in 153 the average wage of stewardnesses on that airline, that is, weighing the top salary people against, people at the bottom, does that have any effect on that? Miss BOLAND. I am not sure I understand your question. Mr. Fo~n. When you look at. t.he work force of any business that has a lot of people with a similar classification, for example, the Post Office Department's letter carriers, the only difference between one letter carrier's sala.ry and that of another is his length of time with the Post Office. Miss BOLAND. First of all, it is a. job where many girls leave after a few years of service and I would say three-fourths of the girls are in the early years. When they face termination after such a short period of time they do not normally stay as long as they might where you could look forward to retirement or continuing out. your work span years. I would say three-fourths of the people are 3 years or less and less than a fourth from the 3 years up to 9 years. American, I believe, has something like five or eight in the very top years, that would be 15 years that are actually flying because most have been terminated for the age that. reached that. period of time. Attrition has taken care of many of the people hired prior to that time. In comparing it. with someone like Eastern Air Lines who did not have an age retirement you would find hundreds well over that length of service. Mr. FORD. Thank you very much and my thanks to your organiza- tion for continued support of this legislation. My particular district does not have many of your members in it but it dloes have a great many auto workers who are deeply interested in the success of this legislation. Mr. O'CONNELL. I would like to say, as you have made some gener- ous remarks about Miss Erikkson, she is our exhibit No. 1. Tomorrow is her 33d birthday and she can no longer work for American Airlines. Mr. FORD. It. was nice of you to bring such a nice exhibit. Mr. O'CONNELL. I would like to read from the transcript, of t.he hear- ings before the Senate on March 15, 1967, an exchange bet.ween Sen- PAGENO="0445" AGE DISCRIMINATION IN EMPLOYMENT 439 ator Randolph of West Virginia and the Secretary of Labor. [Read- ing]: Senator RANDOLPH. Let us say there are other groups who have, for medical or comI)etitive reasons, been discharged. What is the problem? Senator YARBOROUGH. You are `speaking of airline stewardesses? Senator RANDOLPH. I said medical or competitive reasons. Secretary WIRTz. I have the same reaction. There would be serious doubt raised about the authority of the Secretary of Labor to make the extension in that situ- ation, enough dOubts if the inspection is to cover those situations I would think a different form from the one of section 13 would be preferable. Meaning by this he thought he would be challenged in court as to whether he could reach down to age 32. Mr. DENT. I agree with that assumption. Thank you, Mr. Ford. Mr. Scherle? Mr. SOHERLE. Thank you, Mr. Chairman. Perhaps this question has been asked previously, I am not sure. However, my interest prevails around the arbitrary figure of 33 or 35. Why has the airlines established this figure for retirement; why isn't it23or45? Miss BOLAND. I know of no particular reason. I have been unable to discover why it was picked. There has not been a definite statement by management except that some carried 32-it was in the course of negotiations moved to 33 on American, giving them an additional year, whereas, other airlines started with an age 35 rule. Mr. SOHERLE. Does it not seem strange that as successful as the air- lines have been, growing more successful every day that their policy in hiring practices should not be respected? You have been a stewardess in the past. Miss BOLAND. Yes. Mr. SOHERLE. How many years' experience? Miss BOLAND. I started with Trans World 15 years ago. Mr. SCHERLE. In this entire 15-year period has anyone ever given you any reason why this figure for retirement was set at 33 or 35? Miss BOLAND. The only possible allusion to it I can recall has been they felt at that age you were still able to get other work. Mr. SCHERLE. That is the only reason you know of that the airlines would offer for setting an arbitrary figure for retirement? Miss BOLAND. It's the only reason that I have heard. Mr. SCHERLE'. I am not really satisfied with that answer. Miss BOLAND. I am not either. Mr. O'CONNELL. Back when the older worker was age 40, they prob- ably gave the girl 8 years to go out and find new employment. Had they known they were going to consider age 45 to 65 they might have let them work to age 37. Mr. SCHERLE. I might disagree with that, too. Mr. O'CONNELL. In the Judy Evenson case, which was marriage, it is on record in the transcript that Northwest Airlines determined that the age was 32 after a 20-minute phone call with a doctor at Mayo Clinic. That is the only thing in the record to show how they chose age 32 as the age limit. Mr. SCHERLE. Are you the attorney? Mr. O'CONNELL. No, I am not. It is not fair to leave the record stand- ing that way because Northwest Airlines has recently eliminated any PAGENO="0446" 440 AGE DISCRIMINATION IN EMPLOYMENT age limitations or marriage limitations in a contract we negotiated with them. Mr. SCHERLE. Mr. Chairman, do we have anything on file as to why the basis has been set at 33 or 35, for termination of service? Mr. DENT. We have only the testimony from the management asso- ciation which was presented on the 15th. I received it in the last 3 minutes. I know there are three recommendations made, the Air Trans- port Association makes three recommendations in line with all the thinking to this moment of the committee itself in their discussions. They recommend preemption by the Federal G-overmnent so crossing State lines does not present a problem. Mr SCHERLE. If I may I would like to have permission from the committee to write a letter or twoto the various airlines and enter their reply as a matter of record. Mr. FORD. Will the gentleman yield? Mr. SCHERLE. Yes. Mr. FORD. I believe there is a body of correspondence. Our colleague, Mrs. Green, had some interesting correspondence with, I believe it was, United Air Lines, which got some publicity just before election last year. I think when this committee held previous hearings that cor- respondence was put into the record. Mr. DENT. The staff has taken advantage of that. However, I might say to the gentleman you certainly have the privilege, and right to correspond and the committee will be happy to receive your corre- spondence as part of the official record. Mr. SCHERLE. An additional question: Even if age is not acknowl- edged in the contract or in the hiring procedure, the airlines could still use age as a discriminatory measure for termination of Service, and they would not have to acknowledge this as such. What control would you have over this procedure? Miss BOLAND. I think we have said in our statements and also have recognized that the job has physical qualifications, physical require- ments to perform the job properly. At any time any flight attendant whether it be male or female, if that person is unable to perform that job, this would be because age has contributed to slow down their physical ability or whether some other factor is a part of it. But the airlines have this right and do continually use such .a right to terminate the emplo ment and if it is for good cause and good reason, it is upheld. I would like to point out in exactly thIs line that we have pursers, or men; as an example, TflVA employs some 200 pursers, four of those pursers have had heart attacks and aie dis- qualified physically from flying, not one woman of their 3,000 has had a heart attack. Mr. SCHERLE. I think perhaps my question was not clear. Let us say age is completely obliterated from the hiring practice, let us say that since the airlines tentatively set a figure of 33 or 35 for termination of service, they could still resort to this figure if in their own minds they feel this is the age when retirement should be in force. They could still use this arbitrary figure for discontinuance of service without tell- ing you as much. They could give you a multitude of reasons for stating you are no longer needed in this occupation, couldn't they? My question is: How could you be sure this is not still age cliscrimi- nation although it is not so implied? PAGENO="0447" AGE DISCRIMINATION IN EMPLOYMENT 441 Mr. O'CONNELL. I think the answer to that is that every girl when she reaches the age of 32 is fired. On a case-by-case she would have to give a different reason. Mr. SCHERLE. Of course, they would even if they felt 33 or 35 was the termination ~point.. Mr. O'CONNELL. Then we have the procedure, the grievance pro- cedure under each contract to test each case. Mr. SCHERLE. This would he hard to prove and enforce? Mr. O'CONNELL. We are administering it every day. Mr. .SCHERLE. Is American Airlines the only carrier with a discrimi- natory practice on age? Mr. O'CONNELL. That we represent. Northwest had it and it was negotiated Out of the contract in May. Southern Airways had 35, it was negotiated out in June. TWA had 35 and it was negotiated out last week. Mr. SCHERLE. It is being discontinued? Mr. O'CONNELL. Yes, sir. Mr. SCHERLE. Yours is a matter of time, isn't it? Mr. O'CONNELL. Yes, sir; but why should we suffer this cruel ar- bitrary denial of jobs until we can reach contract agreements? Mr. SCHERLE. This is what I would like to find out from manage- ment. My other question is this: When you are hired with the under- standing that your service is to be terminated at age 33 or 35, what are the retirement `benefits accrued during that time? Miss BOLAND. There are none. Mr. SCHERLE. When you are fired you are through? Miss BOLAND. That is correct, that is the end. Mr. SCHERLE. Is there a program provided for employees, for those retired? Miss BOLAND. Yes, but the plan is usually age 65. Mr. SCHERLE. There are no special benefits even when application is made for short-term employment? Miss BOLAND. The retirement plans of all management is geared to 65, in some cases 60 as for pilots. Mr. SCHERLE. What is the percent of turnover prior to mandatory retirement? How many really serve until they are fired? Miss BOLAND. I would say approxamately 10 percent or possibly even less than 10 percent. Mr. SCHERLE. No more questions, Mr. Chairman. Mr. DENT. Thank you, Mr. Scherle. ` The gentleman from Illinois, Mr. Pucinski. Mr. PucINsiu. Thank you, Mr. Chairman. I was interested in your observation that two stewards had suffered heart attacks while none of your women had suffered any heart attacks. What you are saying is women are more durable? Miss BOLAND. I didn't intend to imply that. I just wanted to point out if there was a thorough medical concern that was a bona fide reason for age limitation, it could not be limited to women. Mr. PUCIN5KI. I wish you would attempt to imply that. I think women are stronger than men, more durable than men. I see the girls running up and down those aisles every day on the planes we trave]. I think in many respects women can take it much more than men can except that there are very few that want to admit it. PAGENO="0448" 442 AGE ~SCRI~IIXATION IN EMPLOYMENT I was happy to hear you make that admission. Having said this, I was interested in the question by Mr. Scherle. Mr. Chairman, I wish we would get before the committee a ration- ale of the industry in picking the figure 32. You have in American Air- lines now a rather significant number of women who are working as stewardesses beyond the age of 32 who came into the program prior to 1953, right? Miss BOLAND. There are very few left because, these people having the age policy the longest of any airline and having had the earliest age limitation, have forced the termination from the stewardess crops of most of the people over 32. Mr. PUCINSKI. I think Mr. O'C~onnell made the point, both you and Mr. O'Connell, if we are to challenge the validity of the arbitrary cutoff for stewardesses at age 32, we then obviously have t.o challenge the validity of the automatic cutoff in this bill. I was wondering, Mr. Chairman, if we should have some information here as to the rationale of making this bill applicable to only those between the ages of 45 and 65. As Mr. O'Connell points out, if you are going to have a bill dealing with age discrimination it would seem to me you should have it across the board. What was the rationale? Mr. DENT. The gentleman asks a very good question. This legisla- tion, of course, caine clown to the chairman from the administration and for their own reasons they decided age 45 would be the bottom level, the benchmark. However, in all the reports from the Department of Labor that I have seen, age in aging problems with respect to employment are cataloged on the basis of 40 years of age. I was rather surprised to see the age 45 in the legislation. This member takes a dim view of the age. limit of 45 in the legislation. Mr. PtrcINsKI. I am glad to hear the chairman say this because I would be hard pressed to justify that kind of arbitrary discrimina- tion in the bill and then on the other hand turn around and say to American Airlines, we will have to go along with your rationale on age 32. It seems to me if you are going to have a bill dealing with a ban on age discrimination you ought to have it. across the boa.rd and let every- body adapt to it. Isn't that the suggestion you are making, Mr. O'Connell? Mr. O'CoNNEI~L. Yes, sir; that is our suggestion. Mr. PucIxsKI. I think the Air Transport Association indicates the same thing. They are perfectly agreeable to it. Mr. DENT. Will the gentleman yield? Mr. PUGINSKI. Yes. When the chairman asked me to yield, I believe Mr. Ford wanted to explain how this 45 figure got in the bill. Mr. FORD. I think the main reason it is here is that the pressure for this legislation started actually with some of the industrial loaders who are confronted with an arbitrary rule which has hovered around the 45-year age for employment of factory workers. Again it sprang up as a real problem that was recognized for the first time on a broad scale in the late fifties when the automation problem hit industries like steel, automobile industries, and banks. One of the immediate reactions of labor to this has been to push at State level as well as in Washington for legislation. PAGENO="0449" AGE DISCRIMINATION IN EMPLOYMENT 443 Their attention has been focused on fellows in their forties with maybe 20 years in a plant; a machine comes along and takes his position in the plant. They give all kinds of reasons. Mr. PuCINsKI. I do think, while I certainly appreciate the explana- tion, it is still an arbitrary decision and I would be hard pressed to try to justify that kind of arbitrary approach. Miss Boland, it is my recollection that the first stewardesses, when the whole system of stewardesses was started by airlines in this country, were substantially older ladies than 32. If my memory serves me, I believe the first stewardesses were actually nurses? Miss BOLAND. Yes, and because Of the nurses training required I don't believe anyone started much younger than 24 or 25, many at age 29. I think it is interesting to note that United Air Lines claimed the first for having stewardesses in the sky, those registered nurses and yet as late as 1965 they suddenly decided they need to have a compulsory age limitation. Mr. PUCIN5KI. You see, I am afraid young ladies are becoming victims of a so-called jet-set syndrome that is setting into America. People like this young lady, who will be 33 years old tomorrow, are becoming forgotten citizens. Take a look at all the commercials on television, all the commercials in the newspapers, take the Pepsi-Cola set, Coca-Cola set, the cigarette ads, everything today is being geared to create the impression that the young mass are the .only part of generations of Americans. The fact of the matter is half of the population of this country or a substantial part of the population in this country is substantially older than 35, and they don't go surfboard riding, don't go around in hotrod cars, and it seems to me this emphasis on the young does put people beyond 32 and 35 into a difficult position. Mr. O'CONNELL. If I might answer one of your questions on the 45-to-65 age issue, I think the attention of the administration and the Secretary of Labor, the Labor Department was directed not so much toward our problem of terminating services but to the problem of employing those people who are between these ages who just cannot get a job. This is the reason for the 45-to-65 limit. Our problem is we are on the job, are working and are no longer able to perform this service at the age of 32 or 35. Mr. PLITCINSKI. I suggest what you have to offer would be very much appreciated. Miss Boland, you reach 33 tomorrow? Miss BOLAND. Miss Erikkson will be 33 tomorrow; I passed 33 many years ago. Mr. PUCINSKI. You will never get a man in public office to admit you are beyond 32. Nevertheless, it is my understanding that a company, in this case A~meriean Airlines, does find these young ladies other jobs. The problem I think this committee would be confronted with is that they really are not serving their employment. The company advises us that they find these young ladies jobs with comparable pay or better pay and they do various other things to re- tain the employee. Is that correct? Miss BOLAND. There are alternatives given to the stewardesses of American. They have one alternative of flying to age 33 and leaving or 85-376-67-----29 PAGENO="0450" 444 AGE DISCRIMINATION IN EMPLOYMENT the alternative of taking other work with the company. This is true, with a minimum guaranteed wage. But regardless of this, we still feel this discrimination. Mr. PuCINSKI. I agree with you but in trying to write this bill I am trying-I will appreciate any suggestions that you or Mr. O'Connell may want to make-in trying to write this bill, how do we write in the law a. provision that there shall be no discrimination be- cause of age and job classification. The bill here is directed at a com- pany that refuses to hire you for no other reason than because you are. 45 years of age. I hope ire are going to remove that 45 limitation so the bill will provide, I hope, that it shall be an unfair labor practice for an employer to say to you, Miss Boland, "You meet. all the qualifica- tions of my company except you are too old and, therefore, we don't hire you." We want to have legislation which says he can't use that as a bar to hirmg. That is for the initial hiring. He hires you for his company. Now the question we are really confronted with-if you have sug- gestions I would appreciate it-how do we go beyond that and say, "Well, you can't discriminate because of age in classification"? Maybe Mr. O'Connell may ha~e a suggestion. Mr. O'CoN~r~. In Executive Order 11141, issued by President Johnson, the policy provides that contractors and subcontractors shall not discriminate on account of age in hiring, advancement, discharge, terms, conditions or privileges of employment. When they say that a girl- Mr. PuCINSKI. He is talking about employment. Here is an airline that says "We are not cutting these girls off; we are giving them another job." Miss Bo~n. This is a condition of employment. Mr. Pucn~siu. I don't think you have met the question I have asked in trying to draft this legislation. Here is a company that says, "We are not firing this girl, she can stay with us as long as she wants, the only thing is she can't be a stewardess." I am trying to find out how we can write in this legislation-if you have suggestions I want them-how can we guarantee this young lady the right to continue being a stewardess? If you are going to bar discrimination on the classification of a job, do you then propose to extend it across the board to every job? Does that apply to pilots? Suppose a company feels this pilot is no longer capable of flying the plane but would make an excellent employee in another department. I hope you get my point. We have already established we do not believe a company should be permitted to refuse to hire a worker because of age. I think we are in agreement on that. Now, the question this committee is going to be confronted with is can we extend this to the next echelon and write in some limitations as to the classification of the job within that company? Miss BOLAND. I would feel this comes under the meaning of "terms and conditions of employment." A condition of employment has to be the classification or type of work that you can continue in that job and the terms of employment would have to cover this particular situation. Mr. DENT. Will the gentleman yield? Mr. PUCINSKI. Yes, just let me make this observation. PAGENO="0451" AGE DISCRIMINATION IN EMPLOYMENT 445 I want to help you but I want to say I can't really justify in my opinion an arbitrary cutoff. A person may be an excellent worker, a stewardess. I fly American a great deal, and some of the young ladies that you spoke of Who came in prior to 1953, are excellent stewardesses. I could care no less as a steady passenger of American Airlines whether a girl is 25,28,30,32, or 45. They give us excellent service and wonderful service on American Airlines and we are very pleased with it. As I say I want to help you ladies. Mr. DENT. I have been leafing through the ATA testimony and they ask a rather important question in line with exactly what you are talking about. I would like to call attention to it at this point in the record. They say it should be drafted, to accomplish the Government's objectives of employment of older workers, without involving the Government in guaranteeing the job preference of employees unwilling to accept proper retraining and reassignment to other jobs with comparable pay. To state the national interest of older workers reqmres legis- lation and they are asking that it be a nationwide policy so they don't have the problem of crossing State lines. But it is a. very deliberate and `important part of their testimony that this committee will have to study and carefully examine their question as to just how far it can go in determining j~b preferences of employees or the question of what is considered an older worker. Job preference for a worker 55 years of age working in the iron industry or the steel industry might be a different question altogether than that of a person 32 years or older in work that is not considered heavy duties. With regard to the airlines, we have a question to~ con- sider as to whether there are offerings of retraining for other jobs. Do they establish for the girl who becomes 32 a set plan where that girl is offered a j~b of some other duties in the industry with com- parable pay? Is there a selection allowed to the employees being sev- ered from the job or are `they automatically severed from the job at age 32? These are questions to which we would like the answer. Miss BOLAND. I would say in the case of American Airlines this is slightly different than the average because this is one that has been a subject of negotiations and did result in having `alternatives for the' girl. We have another' alternative; we can force a shutdown to come about December of this year to correct the problem ourselves but there is not just American Airlines. I would like to point out we have saidi of those we represent American is the only one maintaining this age' poli'cy. They are not the only airlines. Mr. PUCINsKI. You sa'id `foreign airlines don't have this? Mr. DENT. You said American. Are there other airlines? Miss BOLAND. Other airlines in this country have an age policy or ruling that do not offer alternatives but they are not represented by us. I think we may have confused the record in the fa'ct that American is the only one we represent that still maintains an age policy. This has been modified with some alternatives or Barbara would not have been here tt year ago. Our concern, as I `believe your bill and what von have under con- sideration, is that there should not be discrimInation based solely on age. Why should I `be required to terminate a job I am capable of PAGENO="0452" 445 AGE DISCRIMINATION IN EMPLOYMENT and that I like, that I have the ability to perform, solely beenuse the calendar says I am now 45, should anyone else be forced to give up a job that they desire and can qualify for? What, in line with ATA's position, I would assume then that as long as Congress could pass a law requiring offering babysitting to every woman over 60, this means there are jobs for everyone. Mr. PUCINSKI. I think you have made an excellent statement and an excellent contribution in clearing up one thing, that is the totally illogic and completely indefensible position of having this legislation crank in at age 45 and crank out age 65. I think you have made a valid point here in that this legislation ought to apply across the board. If you are going to have a bar to discrimination because of age that bar should apply as much to a 30-year-old ~worker, as to a 45-year-old worker. You made that point clearly. If that is all you are asking for before the committee I don't think you will have any problems. The question I raise is the next plateau; that is, the question that confronts you in American Airlines. They tell you you can be a stewardess up to the age of 32, but then they try to get you some other job with the company. If this is agreeable to the young ladies, if they are happy to make that switch over, or they feel they canwork that out with the companies through normal collective-bargaining processes, then we have no pro- blem. But if they are asking Congress to legislate this field, then I would say, please give us some suggested language. Miss BOLAND. I would say, and I think Frank will agree, if. Congress passed a law prohibiting discrimination of age, any age, then our side problems we can take care of. Mr. P~CINsKI. I think we have had a helpful and productive session this morning. It clarifies your position and I think gives the commit- tee something firm to work with. Mr. DENT. Thank you, Mr. Pucinski. I have no further questions. Mr. P~cixsKr. I just wanted the record to show, Mr. Chairman, that one of my best secretaries is a former stewardess and the young lady learned a great deal as a stewardess, went to school and learned stenography, shorthand, and typing, and today runs my Chicago office. She is one of the finest secretaries in the city. Mr. DENT. I just want to put into the record excerpts which I will give to the reporter later, in a letter from a former Member of Con- gress who was defeated at the last election. The problem is one related to the subject matter before this committee. Inasmuch as he has 14 years in Congress having conie to Congress at age 38 and is now 52 and was severed from his job involuntarily, it brings up a serious problem of where does he go from there since the doors are closed to practically all persons. Insofar as his law profession is concerned, he lost contact with all his clients; he lost touch with the practical knowledge of law. He is very much in favor of this legislation because it crosses all lines of endeavor and is not restricted to those who work in manual jobs. It reaches over to the executive-type, professional-type and the trained worker, inasmuch as their problem becomes even more acute since they are denied opportunity for employment strictly on the basis of age, PAGENO="0453" AGE DISCRIMINATION IN EMPLOYMENT 447 although `they have the experience and the training that makes them important to industry. This is a very important letter that shows to what extent this problem has become a major issu~ in the country today. Mr. PUCINSKI. I am delighted to see this legislation moving. I have been working for a bar to age discrimination for 9 years. One of the first bills I introduced as a freshman Congressman dealt with age discrimination and I got nothing but a cold shoulder from the Labor Department. Everyone said how impossible it was to think of such legislation. I would like to say I have received a great deal of personal satis- faction from the fact this legislation is moving. I remember as late as a couple of years ago, when we tried to get this legislation through, we ran into all kinds of obstacles from industry, the administration and other sources. There is no question this is one of the most pressing problems in America today. As the young lady before us pointed out, nothing is more cruel than to say that an American citizen, male or female, should be denied the opportunity to earn a livelihood simply because he or she has reached a chronological age of 33 or 35, 40, 45 or 47. Many of these people at the age of 45 and 47 still have young families. It is a real tragedy in America. A man at age 45 or 47 with two or three or four children, aged 4~ 5, 6, 8, through there, and here is a man told he is too old to work, I can't think of any greater con- tribution this Congress can make than to pass this legislation as quickly as possible. I want to congratulate you Miss Boland. How many stewardesses are there in America? Miss BOLAND. Better than 15,000, I would say. Mr. PncINsKI. I often wondered how the airlines recruit these young ladies because I have yet to meet a bad stewardess. They are tremen- dously capable young women and I don't know of any other industry with such high standards as the airlines. Some day, I will call and ask how they do it, I would like to learn a lesson from them. Mr. O'CONNELL. On that question you asked Miss Boland, would you ask it again? Mr. PUcINsKI. How many stewardesses are there in America? Mr. O'CONNELL. Over 20,000~ we represent over 15,000. Mr. PnCINSKI. It has been a pleasure to have you young ladies here and you have made a point in your testimony. STATEMENT OP HON. JAMES A.' BURKE, A REPRESENTATIVE IN CONGRESS, PROM' THE STATE OP MASSACHUSETTS Mr. BURKE. I am happy to be here. I wish to endorse the state- ments made by the previous speakers as far as these airline stew- ardesses are concerned. This is a subject matter with which I have had a great deal of interest over the years. In addition to the problems of the airline stewardesses, which they face along with other people, the economy is faced with a real prob- lein, these are the people between 45 and 65 years of age who happen to lose their jobs. These people find it very difficult to even secure an interview for a job because of the bare years and the lines that have beeen set up barring them from employment because of the PAGENO="0454" 448 AGE DISCRIMINATION IN EMPLOYMENT thinking of employers who apparently feel that a person out of work over 45 years of age doesn't deserve much consideration. Today, throughout this Nation we have ffiany, many well-qualified persons, able-bodied, intelligent, experienced people who could fill almost any job within the realm of employment and they just can't get an interview. This is a serious problem. Of course, today we have higher employment in the country and our unemployment figures are a little low right now, but over the long haul these people between the ages of 45 and 65 find it most difficult and practically imposible to secure a position. I am very grateful for the opportunity to appear before you today to testify in behalf of this legislation that I have sponsored for many years in the U.S. Congress to prevent age discrimination in employment opportunities. It pleases me to see that the administration has finally taken action on this measure. The middle-aged worker in the United States is chronologically sandwiched between the beginner and the retiree. And, although we rarely realize it, he is feeling the pressure of both groups in his effort to maintain his place in the labor force. The young are crowd- in from behind, and the trend toward rigid retirement standards `is mandatorily limiting his work span-this in spite of the fact that he can look forward to longer and healthier later years than his grandfather or his father. The problem usually does not arise unless the older worker-gener- ally considered to be age 40 and up_suddenly finds himself without a job. It is one of the cruel paradoxes of our time that older workers holding jobs are considered invaluable because of their experience and stability. But, let that same worker become unemployed, and he is considered "too old" to be hired. Yet, once employed, the older worker can look forward to longer stretches between jobs. This problem is already severe and it is growing more so. The older worker who becomes unemployed, even though he many have a spotless and distinguished record of achievement and competence, is assailed by all kinds of slings and arrows of bad fortune. For one, longrun occupational shifts work against the older worker. The jobs which are growing in importance today are concentrated more in white collar and highly technical occupations; they impose requirements that the older worker is less likely to possess than a younger competitor. This is especially true when the worker has become unemployed because of his job-even perhaps the first and only job he ever held-has become obsolete. Another reason is the effect of the growth of private pension plans. This device to protect the worker against need and worry in old age has, paradoxically enough, brought on wider use of age restrictions. Because it is often not possible to earn enough credits for a pension and because often there is resentment against older entrant into these plans to earn enough credits for a pension, and because often there is resent- inent against an older entrant for reaping the benefits that have been created by years of contributions by longtime employees, many em- ployers refuse to hire such workers. Furthermore, pensions have en- couraged the practices of automatic retirement at a fixed age, usually 65. I might point out these young ladies are forced to retire at a very early age and they are confronted with a very real problem in being PAGENO="0455" AGE DISCRIMINATION IN EMPLOYMENT 449 forced to retire at an unusually young age. Most people are forced to retire at age 65, but airline stewardesses don't even enjoy that privilege. These, at least, are practical problems. But there is one problem confronting the olde.r worker that is even more painful, more widespread than either of those previously mentioned. That is dis- crimination. Age discrimination is not the same as the insidious discrimination based on race or creed prejudices and bigotry. Racial or religious discrimination results in nonemployment because of feelings about a person entirely unrelated to his ability to do a job. This is hardly a problem for the older job seeker. Discrimination arises for him because of assumptions that are made about the effects of age on performance. One would not hire a 45-year- old woman to model teenage clothes. One probably would not hire an older man to work on placing girders in rising skyscrapers. But, as a general rule, ability is ageless. A young man with capacities does not lose them with age, unless his capacities are dependent upon his physical characteristics or the speed of his reactions. In many instances, rather, a worker's skills are honed and sharpened by experience. Studies have shown in fact, that older workers bring qualities to a job that tend to make them very desirable employees indeed. For one, they rate high in dependability-they have a much lower rate of absenteeism than their young coworkers. They also have a high rate of job stability-they are less likely to move around from office to office, from place to place. And their rate of work injuries is lower than that of younger groups. These qualities, which are prized by any employer, are the fruits of experience-experience gained through years in the labor force. ~f lie Federal Government sets a good example by its policy banning age discrimination. It backs up its stated policy to protect the older worker against unfair elimination from job searches through efforts of the U.S. Employment Service. This agency was one of the first, pub- lic or private, to recognize the special position of the unemployed worker, and it actively seeks to place older workers by supporting and counseling the workers in their search for employment and by trying to encourage prospective employers to look more kindly on the older job applicant. These are still small, if essential efforts. This country needs to have its private industries and businesses follow the Federal example in their attitudes toward the older worker. The advantages are manifold. Not only would business and industry gain skills, wisdom, and exper- ience accumulated during long working years, but they would be doing the workers themselves a service by showing that they have not out- lived their productivity when they are merely oii the threshold of middle age. It is an old saying that "life begins at 40." It can be just as true that new work can begin at 40 as well. I would like to conclude by pointing out to the committee that this problem with the aging w-orker, you take some of these people between the ages of 50 and 60, as soon as they give their age the door is shut to them and they cannot get an interview. If they-could just go in and talk to the personnel man and just discuss their experience and what they could do for that firm, there might be some opportunity for them. But PAGENO="0456" 450 AGE DISCRIMINATION IN EMPLOYMENT throughout this Nation today, this is true in most of our large cor- porations, our utility companies, our banks, our insurance companies, and many of these white-collar jobs. These people just have a very difficult time to secure a job. You read a lot of items in the paper about men dyeing their hair, using toupees, wigs and everything else, doing everything else to cover up the fact they are reaching that period when retirement is close at hand. They don't do this because of their pride or the fact they are trying to attract a younger woman or something like that; they do it because they are trying to :mamtain and hold their jobs. This is true throughout the country. It is amazing, if you just checked into it, how many men today go clown to these hair stylists and get themselves fitted up when they go out to apply for a job. It is no laughing matter; these men are confronted with an economic problem. Women are the same way because as soon as a prospective employer hears they are over 45 years of age the bars are up and they are just not interviewed. This is one of the most serious problems in the country and I know your able chairman here, Mr. Dent, a man I have great faith in, he is a great fighter. I know you will look into this problem in a good serious way and come forth with legislation that will be productive and try to eliminate and relieve this real problem that faces the American people. I know you are certainly going to help out these airline stew- ardesses because certainly the young age at which they are required to retire is unfair and inequitable. Thank you. Mr. DENT. Thank you, Congressman Burke. I might say we appre- ciate very much your not only practical but very philosophical presen- tation here this morning. You touched into that realm of thinking that is seldom given to a committee by a witness. You dug down and probed the depths of this problem. The very serious aspect of this particular problem is the great danger to the individual who has a growing family and at the age of 40 or over finds the door is closed to him, not only for the opportunity to work but even the opportunity of making an application for work. So many times, as you have said, when the age is upon the applica- tion, that application doesn't get the benefit of seeing the light of day. It is immediately discarded because many of the large industrial corporations of this country have a policy that no worker over 40 is to be considered. In some instances this discrimination results due to the reasons you have stated and in some instances due to the inroads on pension plans, and insurance policies. These practices have been allowed to pass unnoticed, as it were, over the years. I am glad to get before this committee Members of Congress like yourself. I want to present Congressman Scherle from the State of Iowa. Do you have any questions? Mr. SCHERLE. No, I have no questions. Mr. Burn. Thank yOu for allowing me to appear here this morning. Mr. DENT. Thank you, Mr. Pucinski, for you help here. I want to thank the witnesses for coming here this morning, and I am sure the record is complete and I doubt if the committee will hold any more hearings. However, we will give to those who have PAGENO="0457" AGE DISCRIMINATION IN EMPLOYMENT 451 appeared before us an opportunity to supplement the record if any further thoughts come to them. Mr. PUCINSKI. Do you contemplate inviting the carriers? Mr. DENT. They were invited. We have the ATA presentation which was given to the committee and the committee will accept that as the position of the carriers. Before leaving I have one question. Did I hear you make the state- ment TWA has an age requirement in their present contract? Miss BOLAND. We signed a new agreement in August and in that agreement they set aside their age policy and are recalling those girls terminated since December 1, 1964. Mr. DENT. Recalling them? Miss BOLAND. Yes. Mr. DENT. That sort of answers the problem so far as this committee is concerned. There is a saying that as General Motors goes, so goes the United States. As TWA goes, so goes United. Mr. PtrCINSKI. Mr. Chairman, if I may make this observation in concluding these hearings, this legislations is very important. I not only cosponsor it but also support it. A lOt of this discussion, I think in the next 4 or 5 years as the economy of this country goes up to a trillion dollars, we are going to need so much manpower, so many bodies in all aspects of our industrial and economic structure that I don't think the industry will be able to afford this business of dis- crimination for this or that reason. I think this legislation is needed to make sure it doesn't. If Mr. Johnson's projections are correct, and I think they are, by 1970 there is going to be such a labor shortage that a lot of these problems are going to be so big we are going to be looking for lots of people. Mr. DENT. I have spent a lifetime in legislation and I have always heard that prediction and we have always had unemployment. Mr. PticlNsiu. I think by the early 1970's, when the economy hits a trillion dollars, we won't be able to afford unemployment; we will need nil the people we can get and more so. Mr. DENT. I hope you are right, .1 sincerely do, but I look at it with a jaundiced eye. Thank you for coining here today and we appreciate your staying a little longer than the time normally required to hold these hearings. This appears to be the one part of this legislation we are not yet completely in accord on and we hope by having as broad a. discussion as we could get we might resolve our differences in committee and have a unanimity of opinion. Thank you. Mr. DENT. We will now hear from our distinguished colleague from Hawaii, Congressman Matsunaga. STATEMENT OP HON. SPARK M. MATSUNAGA, A REPRESENTATIVE IN CONGRESS PROM THE STATE OP HAWAII Mr. MATSUNAGA. Thank you for the privilege of appearing before the committee and I would like permission to revise and extend my remarks. Mr. DENT. That will be doue and we will appreciate receiving your testimony. PAGENO="0458" 452 AGE DISCRIMINATION IN EMPLOYMENT Mr. PLTCINSKI. I think the record should show Mr. Matsunaga has prepared an excellent statement on this legislation and merely reflects again his long interest in this legislation. I am pleased that this Mem- ber would take time to come to this hearing to give testimony before this committee. This is where the legislation begins and the Congressman from Hawaii is fulfilling his responsibility in being here to present testi- mony. I want to thank von. Mr. DENT. The Congressman's testimony will appear in the record at this point as well as any additional remarks. Mr. MATSTJNAGA. Thank you. (The statement referred to follows:) STATEMENT OF HON. SPARH M. MATSUNAGA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF HAWAII Mr. Chairman and members of the Subcommittee, I thank you for this oppor- tunity to testify in support of H.R. 8125, the Age Discrimination in Employment Act of 1967. My bill is identical with H.R.. 4221, which was introduced by the distinguished chairman of this Subcommittee, and with H.R.. 3651, which was introduced by the distinguished chairman of the House Committee on Education and Labor, Mr. Perkins. The legislation now before this Subcommittee is designed to aid some 850,000 Americans, age 45 and over, who are employable but not employed. Most of them are skilled, experienced, competent, and in good health, but because they are also over 45, they cannot find a suitable job-in many cases, any job. Title VI of the 1964 Civil Rights Act outlaws discrimination in employment practices on the basis of race, religion, color, or national origin. However, it does not encompass the important area of age, and it is vital that Federal legislation now be enacted to correct the wide-spread discriminatory employment practices found in this area. Twenty five States have already passed legislation making it unlawful to discriminate merely on the basis of age, but most of these laws are inadequate to bring about effective compliance. A survey conducted by the Secretary of Labor showed that in 1964 there were about 3% million workers, age 45 or over, who were involuntarily unemployed at one time or another. This means that 27 percent of all who were unemployed that year were older workers. Only 8.6 percent of all new' workers hired by the sur- veyed establishments were over 45-less than one-third of this age group's propor- tion among the unemployed. Aside from the dispiriting effect caused by long periods of unemployment, older workers who are unemployed generally face problems which are very serious. Their family expenses are greatest at this time. Their children need more clothes and incur substantial school expenses. especially if they are going to college. Employers generally advance several reasons t.o justify their practice of not hiring older workers. One of these is the insupportable assumption that most of the workers over 45 have health problems which would detrimentally affect their efficiency and work attendance. Studies have shown. however, that the job per- formance of the older worker at many tasks does not decrease significantly with age. Even after 55. the older w-orker is usually able to keep up with the pace set by his younger co-workers. These studies also reflect an absence of any apreciable difference in the work attendanc between the age groups. The additional expense of short-term pension plans for older workers is ad- vanced as another reason by some employers who fail to hire them. However. other companies have found that any additional pension cost is more than offset by the skill and experience the elder worker brings to the job. The cost of training an older worker is less, and any savings effected could be used to meet the extra pension cost. I mentioned earlier that although age discrimination in employment law's are found in about one-half of our States, such laws generally are not considered to be effective. There are, of course, some notable exceptions. Whatever other rea- sons may be attributed to this lack of success, the principal reason seems to be the absence of uniformity in these laws throughout the country. I recently re- ceived a letter from a friend discussing the maximum age restriction applicable to airline stewardesses. It would be difficult for an airline with interstate air PAGENO="0459" AGE DISCRIMINATION IN EMPLOYMENT 453 routes to determine what its hiring policy should be if every State in which its aircraft landed had its own set of regulations governing hiring practices relating to older workers. A uniform code is needed throughout the country to avoid con- fusion and to produce the desired nationwide result. Admittedly, it will take a great. deal of education to convince employers that older workers are in every way as fIt as younger workers for most jobs. There is also the consideration that appropriate assistance must be given to older workers in their quest for jobs. They must be informed of the places where they should apply for jobs, and how they should conduct themselves in an em- ployment interview. It has been demonstrated by the States which have embarked upon a successful program to eliminate age discrimination policies and to place older workers in jobs formerly barred to them that counseling and job placement agencies have been the most valuable part of their program. These employment aids have been included in the proposed national program and may be found in Section 3 of H.R. 8125. This section adds an important dimension to the bill. It provides the machinery for the guidance of older workers and their placement in suitable jobs. In summary, the proposed legislation found in HR. 8125 is designed to achieve a two-fold purpose: First, it would end discriminatory hiring practices against older workers, and, secondly, it would aid older workers in finding meaningful and profitable work, work for which years of experience have provided adequate preparation. This leegislation would provide older workers the chance to be judged on the basis of their individual performance, and not on their age. For these reasons, I ask for early favorable consideration of this important legislation. Thank you very much. Mr. DENT. At this time we will call upon the Honorable James G. O'Hara, of the State of Michigan, who will present testimony on this legislation. Mr. O'Hara, we welcome you here. STATEMENT OP HON. JAMES G. O'HARA, A REPRESENTATIVE IN CONGRESS PROM THE STATE OF MICHIGAN Mr. O'IIARA. Mr. Chairman, my colleagues, my thanks for the opportunity to testify on H.R 4221. The overall impact of this bill has been eloquently and convincingly stated by the Secretary of Labor. I concur fully with his statement, and particularly with the distinction he makes between the two types of age discrimination. The Secretary pointed out that there is discrimination based on mis- understanding, on what I would call well-meaning but mistaken concepts of what a worker can do in his mature years, and there is discrimination which is arbitrary and deliberate. Both of these kinds of age discrimination are damaging to the worker who suffers from them, and both are hurtful to the economy. Both should be dealt with. But it is to the latter, and to a particularly disgraceful case of the latter, that I want to direct the sub-committee's attention. In 1965, the Select Subcommittee on Labor conducted several days of hearings on employment problems of older workers. In these hearings, we covered a wide area, but one of the most interesting aspects of the prohiem was the evidence which was discovered of age discrimination at the incredible age of 32. At the advanced age of 32, we were told, healthy, competent., well-trained Americans were arbitrarily told they were too old to work. The job involved was that of airline stewardess. And the evidence clearly pointed to the fact that the age limit had nothing to do with competence, with ability, with reflexes, with stamina, or with any other bona fide occupational quali- PAGENO="0460" 454 AGE DISCRIMINATION IN EMPLOYMENT fication, unless, as one of our colleagues remarked, you assume that a commercial airplane is "a flying bunny club." Mr. Chairman, this kind of discrimination is not only age dis crimination, but sex discrimination as well. Airlines have mah~ stewards or pursers who perform precisely the same functions as the stewardesses, but who are not required to retire, nor to sign so-called prehire contracts to resign at age 32. The record of our 1965 hearings, copies of which I have here for all the members of the subcommittee, are filled with examples of stewardesses on airlines without this restrictive policy performing the standard stewardess duties, and what is even more impressive, per- forming hazardous duties, such as evacuating passengers from ditched or crashed planes even though they were older than the age which the discriminating airlines consider too old. One particularly in- triguing case arose in an airline which has a discriminatory policy. A stewardess reached the retirement age, according to their firm policy. This was, remember, the age limit which they considered a bona fide occupational qualification for the performance of her duties. Yet, in spite of the onset of this calendar senility, the stewardess was ordered by the same company to continue to perform her duties because they didn't have another stewardess available. Gentlemen, I submit that in this particular case, the airline in question admitted openly and unmistakably by its own demand that the employee continue her services, that the age limit which it sets for stewardesses is, in fact, an example of arbitrary age discrimination. The committee should take notice, I think, of the fact that the New York State Commission for Human Rights did find that the dis- crimination against stewardesses on the basis of their age was not in fact based on a bona fide occupational qualification. In conclusion, Mr. Chairman, let me say a word about the argument that this~ type of discrimination is not real discrimination because it is based on prehire contracts and the young women involved know what they are getting when they take such a job. Prehire contracts, Mr. Chairman, are an old and long dishonored phenomenon in labor relations. In unhappier years, workingmen had to sign contracts that they would not join in a labor union or that they would quit a labor union before they could get a job in some industries. These contracts were called yellow-dog contracts and they have long since been held to be illegal. I submit that the device of the prehire contract b which a person seeking a job must waive her rights before she can be hired is just another form of the old yellow-dog contract. And it deserves the same kind of treatment by the Congress that such contracts got when they were outlawed by the Norris-La Guardia Act. Mr. Chairman, your subcommittee has already done a magnificent job in updating the Fair Labor Standards Act. The legislation to ban age discrimination is in good hands. I urge the passage of this legislation, with whatever amendments on think are needed to prevent discrimination of the kind I have been talking about tocla. Mr. DENT. Thank you. I am sure that von have made a fine con- trihufion to the deliberation of this committee. We will now. hear the statement of our colleague, the Honorable Ogden R. Reid of the State of New York. PAGENO="0461" AGE DISCRIMINATION IN EMPLOYMENT 455 STATEMENT OP HON. OGDEN R. REID, A REPRESENTATIVE IN CONGRESS PROM THE STATE OP NEW YORK Mr. REID. Mr. Chairman, I am pleased to have the opportunity to indicate my strong support for legislation to prohibit arbitrary dis- crimination in employment on account of age. Americans over 45 comprise some 27 percent of the unemployed. Their talents and experience can be put to productive use in our communities. Many of our ablest citizens are in their senior years, and they have yet to make some of their most valuable contributions in meaningful jobs and in service to their country.. In my judgment, we must-and we are not now fully-do everything possible as a nation to forget the word "aged," to recognize that chronological age has very little to do with the capacity to make a useful, indeed frequently a more important, contribution in many areas. Legislation such as this is an important corollary to the Older Americans Act amendments, passed earlier this year; it has the potential to make real the job opportunities that that act is designed to encourage. In February of this year, I iiitroduced legislation, H.R. 6389, co- sponsored by Senator Javits in the other body, which amends the Fair Labor Standards Act to prohibit employers with more than 50 employees, employment agencies, placement services, and labor organizations from discriminating against persons age 45 or older "when such an age distinction is not a bona flde occupational quail- fication reasonably necessary to the normal operation of thatparticular business or enterprise." This bill is much the same as III.R. 3651, the principal measure on which these hearings are based. Both bills bar age discrimination against those over 45; they both allow an exemption for cases involving a "bona fide occupational qualification"; they both provide for conciliations and, if necessary, enforcement~ by court order. However, there are three significant differences between the admini- stration bill and my bill and I would hope that the committee, in its wisdom, would consider these points carefully. First, H.R. 6389 places responsibility for enforcement with the Wage and Hour Division of the Department of Labor. The administration bill specifies only the Department of Labor and fails to recognize that the Wage and Hour Division. already has the staff and expertise necessary to carry out the duties mandated by this legislation. In fact, this Division presently supervises the age provisions concerning child labor. Second, while the administration bill provides for an administrative hearing followed by enforcement in the courts, if necessary, my bill permits the Secretary of Labor to move directly to the IJ.S. district courts, following such informal conciliation procedures as it may be appropriate to employ. This is the system presently in use under the Fair Labor Standards Act and it has worked well. Third, the Javits-Reid bill provides only civil remedies, in contrast to the administration bill which also makes provision for criminal penalties. Criminal sanctions would require a higher burden of proof and give rise to the possibility of witnesses in age discrimination cases refusing to testify under fifth amendment privileges. It would seem PAGENO="0462" 456 AGE DISCRIMINATION IN EMPLOYMENT that the desired objectives could be achieved without this added difficulty. In my judgment, these distinctions between the two bills are import- ant but the overriding need is that we pass effective legislation which prohibits discrimination in employment on account of age. I am hope- ful that the committee and the Congress will act promptly on this matter, to supplement and shore up the 20 State laws now banning discrimination because of age, but hampered because of lack of funds and staff. Indeed, the New York State law against discrimination con- tains specific prohibitions against discrimination of this sort and between the years 1945 and 1965 the State commission for human rights received 698 complaints under these sections. Clearly~ assistance by means of a parallel Federal statute would permit the commission, and similar agencies in other States, to proceed more effectively in this important area. Mr. DENT. Congressman Reid, it has been a pleasure to hear your testimony. Thank you for appearing here today. Our next witness is the Honorable Edna F. Kelly of New York. Mrs. Kelly, will you have a seat at the witness table. STATEMENT OP HON. EDNA P. KELLY, A REPRESENTATIVE IN CONGRESS PROM THE STATE OP NEW YORK Mrs. KELLY. Mr. Chairman and distinguished members of this committee, I address you today to urge that favorable action be taken on the Age Discrimination in Employment Act of 1967 (H.R. 3651) and my companion bill, H.R. 8535. Throughout the history of mankind, we have looked upon our senior citizens as people of experience and, at times, of infinite wisdom. We have looked to them for guidance and teaching based upon their varied experiences in life. We have recognized that they have, in their fields of endeavor, acquired knowledg'e, wisdom, and experience which can only be gained by living through the vicissitudes of life. However, in this era of advanced technology and automation, many segments of the business community, as well as others, have stressed the virtues of youth far beyond reasonable bounds. We hear time and time again of situations where persons over 45 or 50 years of age cannot obtain employment because of their age, despite their abilities and experiences. As of the 1960 census, there were 29 million persons in the United States between the ages of 45 and 60. There are millions more between the ages of 60 and 65 years. What do these people face? As our society becomes more technically oriented, will these people be deprived of employment or forced out of their employment at early ages? Will they be relegated to idleness during prime and productive years? Will they be forced to accept the humiliation of employment as office boys and messengers durings their later years? High living costs have made it almost impossible for working people to accumulate sufficient reserves to insure adequate investment income in later years. What does a man of 55 years do if he finds himself out of work? How many employers will hire him-no matter what his talents or capabilities? PAGENO="0463" AGE DISCRIMINATION IN EMPLOYMENT 457 Mr. Chairman, it would seem that industry is no longer utilizmg the criteria of ability in hiring employees. It is instead imposing ar- bitrary age limitations. Today, a person of the highest ability may not be able to find employment in his chosen occupation only because he or she chronologically exceeds a given age. That such person is capable of better performing the required tasks than a younger person becomes immaterial. These conditions have created still another social problem in the United States. Enforced idleness and the attendant loss of purpose among these people is growing by leaps and bounds. How much longer must we stand by and watch a man who yesterday held a position of responsibility be forced to accept a position as a file. clerk or an office boy because he has just turned 55 or 60 years of age? How much longer must we wait to help skilled people gain reemployment after losmg their jobs due to no fault of their own? Mr. Chairman, the opportunity to remedy this situation is before us-the time is now. This committee in H.R. 3651 has the opportunity of taking the first steps to eliminate the discriminatory practices which I have discussed. My bill, H.IR. 8535, which would accomplish the same purposes, indi- cates my support for this legislation which would prohibit age dis- crimination in employment. The operation of the proposed law is simple. The bill, which applies to persons between 45 and 65 years of age, simply makes it unlawful for an employer to "fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment., because of such individual's age." The bill also prohibits age classification of employees which deprive employees of employment opportunities. Employment agencies and labor unions would also be prohibited from engaging in such discrimination. The bill does not prohibit age classifications if age is a bona fide occupational requirement, reasonably necessary to the performance of a particular job. Administration and enforcement of the provisions of the bill are vested in the Secretary of Labor who is authorized to hold hearings concerning alleged violations and to institute proceedings in the U.S. district court to enforce his findings. Violations would be punishable by a fine of not more than $500 or by imprisonment for not more than 1 year or both. Mr. Chairman, the employment problem of older people is nation- wide and requires a nationwide solution. During my service in the Congress, I have fought for and witnessed the enactment of legislation which removed the discriminatory prac- tices with respect to color and sex. Of course, I refer to the Equal Pay Act of 1963 (Public Law 88-38) which prohibited discrimination by sex; and the Civil Rights Act of 1964 (Public Law 88-352) which prohibited discrimination by employers because of race, religion, or national origin. It is time that we took still another step toward re- moving all discriminatory employment practices. Mr. Chairman, this bill seeks no special privileges, because age should not be a factor in employment.. Therefore, I urge early action on this legislation. Mr. DENT. Thank you, Mrs. Kelly, for appearing before this sub- committee. PAGENO="0464" 458 AGE DISCRIMINATION IN EMPLOYMENT At this time I have the honor of presenting to this subcommittee a Member of Congress who needs no introduction. I present Hon. James C. Cleveland from the State of New Hampshire. STATEMENT OP HON. J~AMES C. CLEVELAND, A REPRESENTATIVE IN CONGRESS PROM THE STATE OP NEW HAMPSRIRE Mr. CLEVELAND. Mr. Chairman, I want to thank you for the oppor- tunity to thppear before the committee to offer testimony on this most important legislation. I have introduced three bills in the area which the committee is pres- ently studying. The purpose of these bills is to prevent systematic exclusion from employment of individuals over the age. of 45, or clis- crimination against these individuals once employed, in terms of the conditions or privileges of their employment. My first bill would prevent discrimination in employment because of the age of the apPlicant. The second would make it an unfair labor practice for an employer or labor organization to discriminate unjustiflably on account of age. The third would provide an income tax credit for an employer for increased costs directly due to the employment and/or training of older persons in his trade o.r business. Both medical a.nd technological advances have greatly increased the productivity of workers over 45. Therefore, discrimination against workers of this age is not only unfair to the workers, hut also harmful to the employers themselves who are losing a valuable source of mature, stable, and experienced personnel. Discriminatory practices in hiring and working conditions against workers over 45 have their rationale in circumstances which simply no longer exist. Yet, the discriminatory practices continue, and constitute a severe a.nd urgent problem. Mr. `Chairman, for several months now I have been urging speedy action upon these bills. I am pleased to see that your committee is now giving them the serious consideration which they deserve. Again I would like to thank you, Mr. Chairman, and the committee for this opportimity to offer testimony. Mr. DENT. Thank you. I a.m sure that you have made a fine con- tribution to the deliberation of this committee. Our next witness will be Congressman William C. `Cramer. Mr. Cramer is from the State of Florida. We will be glad to hear your testimony at this time. STATEMENT OP HON. WILLIAM C. CRAMER, A REPRESENTATIVE IN CONGRESS PROM THE STATE OP PLORIDA Mr. CF~AMER. Mr. Chairman, I am delighted to have the opportunity to once more appear before this distinguished committee and to again discussion a problem that is very close to my heart. Representing an area housing many retirees, Pinellas County, Fla., I have had the opportunity to witness firsthand the serious effects of employment discrimination based on age. It `is a problem of the most serious magnitude and one I have attempted to alert the `Congress to for many years. On August 31, 1965, I appeared before this committee in sup- port of my bill, H.R. 6640, which was similar to H.R. 6908, on which I PAGENO="0465" AGE DISCRIMINATION IN EMPLOYMENT 459 am testifying today. Unfortunately, no action was taken on that bill. I am hopeful we will be more successful this year. I am convinced that a serious investigation into the problems of the elderly will disclose that closely related to the mental and physical problems accompanying growing old jS the problem of unemployment which results in forced idleness and insecurity. An authority in the field of geriatrics, Dr. Edward F. Bortz, has said: Older citizens who are actively employed will be more healthy and better ad- justed and consequently a less likely drain on the Public Treasury. Instead of being consumers, they will be producers and taxpayers. They will take pride in being self-supporting and in being able to provide for their own needs. It can be predicted that healthy and alert senior citizens, well utilized by the community, will make far fewer demands for medical services. Unfortunately, the therapy Dr. Bortz recommends is too often frustrated `by `hiring practices which make it impossible for older Americans to keep actively employed. In short, older Americans are discriminated against in the area `of employment. It is for th'is reason that I introduced and am today testifying in behalf of my bill, H.R. 6908, which amends the National Labor Re- lations Act so as to prohi'bit discrimination in employment because of age. I introduced this legislation, Mr. Chairman, because in my judgment and in the judgment of many experts in the field of geriatrics, the reasons for such di'scrimination on the basis of age are inherently defective. I'm sure this committee recognizes that the problem of discrimination on the `basis of age, so far as employment practices are concerned, is manif'old. First, there is the problem of the individual over 65 years of age who can't afford to retire but can't `find employment because of his age. Secondly, there is `the problem of the individual between the age's of 45 and 65 who, due to any number of factors, must seek ne'w employ- ment but finds such employment unavailable because of his age. This category is directly related to the first I mentioned for when a person between the ages of 45 and 65 has difficulty finding suitable employment, he finds it equally difficult to `financially prepare for his retirement years. Thus, upon reaching the `age of 65, `he must continue active employment. By this time, of course, his age compounds his problems. There is third category of senior citizen who, despite his advanced years, desires and is fully capable of continuing active employment. This individual still has much to offer society but because of his age, cannot find employment. An examination of the reasons why older persons are discriminated against by prospective employers discloses a tremendous number of fallacies which I believe are well worth exploring at this time. Iii 1960, the Institute `of Industrial Relations of the University of California made a study of the employment problems of older workers. In discussing hiring practices, the following observations stand out: 1. The study reveals that while "Older people are `slower at organiz- ing incoming data and acting on it in terms of new tasks," nevertheless, "Older people generally tend to s'tress accuracy over speed." 85-376-67--------30 PAGENO="0466" 460 AGE DISCRIMINATION IN EMPLOYMENT Thus, in jobs where accuracy is more important than speed, older persons have proven themselves most capable. 2. Illness, industrial accidents, and absentee rates are frequently cited as factors in not hiring older persons. The fact of the matter is that older workers have fewer accidents, although when they do have an accident, their recovery periods are longer. The net results, accord- ing to this study, is that the overall absenteeism rate falls steadily up to age 60, rises slightly thereafter, but nevertheless employees b.etween 65 and ~i5 are absent only two-thirds as much as those less than 30 years of age. 3. Industrial welfare policies are also cited as a factor employers cite as being against older persons, the claim being that the cost of health and welfare plans is higher for an older work force. This study brings out the fact that. this depends on the terms and coverage of the plans. For example, while the incidence of long illnesses and hospitalization is greater for an older employee, maternity care for employees and dependents is costlier with a younger group. The report concludes that while the cost of group life, hospital and medical-surgical benefits is generally higher for older employees, "the di fference is very minor when viewed in light of `aggregate employment costs." 4. Some enwloyers have considered it uneconomical to train middle- aged applicants who have only 15 to 20 years remaining before retire- m ent age. `The study reveals that offsetting this is the high turnover rate among the younger workers. "If a company should hire and train 100 workers at the age of 20 and another 100 at the age of 45, total years of service might well *be greater for the latter," the study concludes. Mr. Chairman, I cite these examples of employer misconseptions concerning older workers to dramatize the belief I hold that this is not a closed area. where education and further study would be a waste of the taxpayer's dollars. For these reasons, I support }I.R. 3651, introduced by the distin- guished chairman of this committee. I am particularly pleased to observe that the bill provides for research in this area "with a view to reducing barriers to the unemployment of older persons, and the pro- motion of measures for utilizing their skills * * ~." The studies I alluded to strongly suggest that further research into this area would be most rewarding and proper publication of the findings highly advantageous to employers and employees of advanced years. I should add that the Federal Government continues to be one of the biggest offenders of discriminatory hiring practices based on age. Although an Executive statement of policy was issued on March 14, 1963, relative to doing away with discrimination in hiring based on age, it appears that stronger action is needed. Legislation embracing Federal hiring practices should be enacted to give the effect of law to the declaration of policy so as to make certain that the Federal Government gives older workers an equal opportunity to secure employment. It is my objective to assure senior citizens an equal opportunity with others to engage in gainful employment which they are physically and PAGENO="0467" AGE DISCRIMINATION IN EMPLOYMENT 461 mentally able to perform and to enable senior citizens to achieve a retirement income sufficient for healthful living on a reasonable stand- ard and for participation in community life as happy, self-respecting citizens. Passage of legislation outlawing discrimination in employment because of age will be a giant stride in obtaining these goals. Mr. DENT. Congressman Cramer, it has been a pleasure to hear your testimony. Thank you for appearing here today. At this time we will call upon the Hon. Melvin Price, Representative from the State of Illinois, who will present testimony on this legisla- tion. Mr. Price, we welcome you here. STATEMENT OP HON. MELVIN PRICE, A REPRESENTATIVE IN CONGRESS PROM THE. STATE OP ILLINOIS Mr. PRICE. Mr. Chairman, distinguished members. of the General Subcommittee on Labor, I appreciate having this opportunity to express my support for remedial legislation dealing with age dis- crimination in employment. Discrimination in employment because of age is a serious problem that must be confronted. It is a cruel hoax that is perpetrated at the expense of our workers age 45 and over who are forced to seek employment solely because their a~e is considered a handicap. Ironi- cally, and tragically, these individuals seeking employment do so in a society that professes a commitment to the concept of full employmeiTt, as expressed in the 1946 Employment Act. The time has come to meet this problem, and I am glad this com- mittee has focused its attention on a situation of longstanding con- cern to me. Since 1958 I have sponsored such antidiscriminatory legis- lation. My original bill sought to prohibit age discrimination in the hi ring and employment practices by Government contractors. I fur- ther sponsored in the 89th Congress H.R. 11915 to amend the 1964 Civil Rights Act making discrimination because of age an unlaw- ful employment practice. My present bill, H.R. 1094, is identical to H.R. 11915. In this age of rapid technological progress, we find that increasingly higher educational achieverneii~ts are needed for personnel advance- ment. Thus, more and more men are facing the problems of maximum hiring ages and mandatory retirement policies. What is to be done to create more available jobs for the unemployed over 45 years of age? Although these older workers are regarded by their employers as more stable, reliable, and responsible, the older individual is con- star~t,y confronted with the misconceptions and inaccurate generaliza- tions about his lack of ability due to age. The burden is now upon him to convince a prospective employer that he has skills and qualities which will compensate for his lack of youth. This is difficult for many of these displaced workers because they are unaccustomed to personal interviews, employment tests, and the competition of the younger educated workers. It is also frequently economically and emotionally difficult to relocate to areas having better employment prospects. PAGENO="0468" 462 AGE DISCRIMINATION IN EMPLOYMENT This ever-increasing problem is not one that can be set aside for future consideration, for, by that time, it might be uncontrollable. As reported in the Older American Worker, a report of the Secretary of Labor to the Congress pursuant to section 715 of the Civil Rights Act of 1964 on age discrimination in employment, the "older" persons category includes approximately 55 million Americans aged 45 and over, which is one-fourth of our total population. Out of that 55 million, 29 million are employed and 750,000 are seeking employ- meift. However, the 3 percent unemployment rate is higher since unemployment figures do not include those individuals who have relinquished seeking jobs because of repeated failures in locating employment, but actually want to work. Unemployment of these "older" persons lasts an average of 19½ weeks as compared to 11 weeks for those uiider 45. Older persons rep- resent about 25 percent of the labor force, or roughly 30 million, and, of those 750,000 uneniployed, 150,000 make up about 35 percent of the long-term unemployed (6 weeks or more). Moreover, a significant portion of those unemployed are faced with the termination of unem- ployment compensation benefits because their eligibility period expires. The older workers' plight should not be destined by gross miscon- ceptions. These statistics must be reduced in order to save the fate of the older workers, for they are more needy than those in any other age bracket today. The poverty rate among heads of families is directly correlated to the age of the person. Nearly one-third of those over 55 are living in poverty with a family to clothe, feed, educate and protect. Our society cannot economically afford this unemployment problem. I urge that we move now to recognize this unfair discrimination. The misunderstanding of the relationship of age to usefulness and the deliberate disregard of a worker's value solely because of age must be reevaluated and understood by the employers. The answer to any solution here must be administered by the use of education, informa- tion, and research into the problems of age discrimination in employ- inent. There must be a realization of the older worker's potential and ability to be retrained and educated. They are still productive at age 45 and must not be relegated to the ash heap because of the older worker syndrome. We must deal with this problem which stigmatizes the worker as he reaches the relatively young age of 45. One approach is with the Man- power Development and Training Act. It can be enlarged and ex- panded to further the needs of our society. `We should learn by the examples already laid down in other crises of employment. When the Packard plant shut down permanently in 1956, the "Big Three" auto- mobile companies in Detroit hired 60 percent of the young workers and only 20 percent of the older employees. Today one-half of all private job openings are barred to applicants 55 and over and one-fourth are barred to those 45 and over. Dr. Harold L. Sheppard recently testified before the U.S. Senate Subcommittee on Labor that the reason for such excellent reemployment of workers regardless of race could be attributed in part to Michigan's Fair Employment Practices Law which does prohibit job discrimination on the basis of race-unfor- tunately there is no parallel legal prohibition of discrimination due. to age, which is exactly the purpose of my bill. PAGENO="0469" AGE DISCRIMINATION IN EMPLOYMENT 463 After the Studebaker plant shutdown, the National Council on Age in South Bend, md., found, among 4,500 workers aged 50 and over left unemployed, that two-thirds had dependents under the age ol 19. Thus employment was essential for economic reasons to these workers. The concerted efforts of the South Bend Community Council, the U.S. Department of Labor, and the National Council on the Aging alle- viated the problems of unemployment through ii~tensive job counsel- ing, development, and publicity. As reported by Norman Sprague, di- rector of the employment and retirement program of the National Council on the Aging, the average age of the long-term employees of the Studebaker company was 55. Of the approximately 4,500 persons over 50 that were left unemployed by the shutdown, 4,000 were serv- iced by the combined programs and, as a result, 66 percent were soon reemployed or in the MDTA training program and only 8 percent were still looking for jobs. My bill, 1-I.R. 1094, amends the Civil Rights Act of 1964 to establish prohibitive measures in employment discrimination due to age. I pro- posed it to focus attention and to use it as a vehicle toward developing a solution to this problem. I certainly do not oppose any provisions in the pending legislation that encourage research and study activities of this situation. Our thinking about age as a factor in job performance can only be clarified by empirical studies of a variety of types of occu- pations. The correction of this problem will provide a valuable addi- tion to our human resources and manpower development programs. I am not offering a panacea to these problems but an opening of roads to new hope for the "older" persons, and so I steadfastly support ur- gent passage of this legislation. Mr. DENT. Thank you, Congressman Price, for appearing before this subcommittee. At this time, I would like to have the testimony of a very valued Member of the Congress of the United States, one who has long been interested in the problems we have in this legislation, the Honorable James A. Burke, Representative of Congress from Massachusetts. We are happy to have you with us, Jim. (Whereupon, at 12:55 p.m., the committee adjourned, subject to the call of the Chair.)* STATEMENT OF THE AIR TRANSPORT ASSOCIATION This statement relating to legislative proposals to prohibit arbitrary discrimination in employment on account of age, to wit, H.R. 3651, H.R. 4221, and }LR. 3768, is submitted by the Air Transport As- sociation of America on behalf of its membership which is composed of virtually all the U.S. certificated scheduled carriers by air. The air transport industry herewith submits specific recommen- dations which, in its judgment, would improve the legislative pro- posals under consideration. The amendments recommended have a direct bearing on the operations of the air transport industry, but would not, in any way, alter the purpose of the bills being considered. Adoption of the recommendations would not mitigate elimination of unjustifiable arbitrary age discriminaiton which deprives older workers of opportunities for employment when they have the capacity to be productive participants in the national economy. PAGENO="0470" 464 AGE DISCRIMIXATIOX IX EMPLOYMENT The basic recommendations of the air transport industry are as follows: 1. Any Federal age discrimination legislation enacted should PreemPt the jurisdiction of the States and be applicable to the air transport industry on a uniform nationwide basis, irnencum- bered by multiple and divergent State or local restrictions-at least as far as operating employees are concerned. 2. The age group to which any Federal age cliscrimmation legislation would apply should be established by Congress. The Secretary of Labor should not be given discretion to adjust the age limits. 3. Enforcement of any Federal age discrimination legislation enacted should be under the same procedures now provided under the Fair Labor Standards Act. The reasons for the above recom~nendations are as follows: The practical `necessity for Federal preemption and vniformity of regulation If a Federal age discrimination statute is enacted, it should preempt the jurisdiction of the States. Any age legislation applicable to the air transport industry should provide for uniform national regulation as to operating employees such as flight, crews of air carriers engaged in interstate and/or foreign air transportation. Preempiton is necessary because of the very nature of the air transportation business whose operating employees, in the performance of their duties, regularly and frequently cross State boundaries. It has long been recognized, ever since the celebrated case of Gibbons v. Ogden at the outset of our national history, that uniformity of treatment is peculiarly appropri- ate to the transportation industry. Conversely, subjection to a nmlti- plicitv of State or local restrictions relating to a subject susceptible to uniform rule is an inappronriate and undesirable burden upon inter- state commerce not compatible with the public interest. Whatever may be the merits of concurrent Federal a.nd State age discrimination jurisdiction over employer and employees generally. multiple overlapping and divergent laws concerning conditions of employment create nothing but jurisdictional chaos and onerating confusion when applied to interstate air transportation. It is therefore respectfully submitted that section 14 of H.R. 3651, and identical measures under consideration, which otherwise specifically preserves multiple State jurisdiction over all employees in interstate air trans- portation, be amended by adding at the end thereof a l)roviso as follows: Provided, That operating employees who in the normal performance of their duties are required regularly to cress state or national boundaries in the employ of a carrier subject to the Railway Labor Act, the Civil Aeronautics Board, the Interstate Commerce Commission, or other agency of the Government of the United States, with respect to the transportation of persons or products in inter- state and/or foreign commerce shall not be subject to any state or local legal prohibition or restriction with respect to discriminatory employment practices on account of age if the said carrier is subject to this Act. The scheduled airline industry is a totally interstate or international industry. The various air carriers maintain bases in different. States. provide service, to cities in many States, and fly over a variety of States. The flight Personnel of the carriers are domiciled throughout the PAGENO="0471" AGE DISCRIMINATION IN EMPLOYMENT 465 country and are regularly transferred to bases in different States. Sub- j cot to the Federal Aviation Administration and the Civil Aeronautics Board, the air carriers must apply their rules and regulations on a uniform basis. Further, by virtue of the Railway Labor Act and rul- ings of the National Mediation Board, airliiies must recognize and deal with duly designated representatives of their employees in appro- priate classes or crafts on a systemwicle basis in negotiating and main- taining agreements embodying rules, rates of pay, and working condi- tions covering their employees. Almost without exception, certificated air carriers have systemwide labor agreements covering their flight crew employees. Pursuant to those agreements, flight crew members are initially assigned to bases in different States and to flights serving various States. Thereafter, em- ployees are reloc.ated at other bases and reassigned to other flights serving different States in accordance with flight crew preferences in order of seniority or the needs of the particular company. Thus, not only are these operational employees in constant movement across the State and national borders in the course of fulfilling their flight duties, but their places of residence, assignment, performance of duties, and even of eventual retirement~, cannot be forecast at any given time. and are by their nature subject to unforeseen change. In these circum- stances, national uniformity of regulation is a practical necessity. Differing regulation by one or more States of the employees of an air carrier moving constantly as above~ described into, out of, and above a wide variety of States, is extremely impractical and undesir- able. Out of the 50 States and the District of Columbia, 27 presently have no laws prohibiting age discrimination in employment. Of the re- maining 24 some apply to any age, but most apply to specific age brackets between 40 and 65. These groups constitute the category known as "the older worker" to whose employment problems the bills under consideration are addressed. Federal preemption in the area of age discrimination legislation is clearly justified when con- sidered in light of the need that would otherwise occur for multiple proceedings occasioned by State laws, the inevitability of inconsistent rulings by State enforcement agencies, and the uncertainty of the ef- fect of one State's rulings in other States, including those without age statutes, on employees such as airline flight crews. The operations of one major airline provides a typical illustration of the problems encountered. The carrier has bases in the States of Illinois, Tennessee, Texas, and Virginia. It serves points within the District of Columbia, and the States of Arizona, Arkansas, Illinois, Kentucky, Missouri, Oklahoma, Tennessee, Texas, Virginia, and West \Tirgmia. It has pending applications to serve points in Alabama, Flor- ida, Georgia, Mississippi, Nevada, and Utah. None of these States has an age statute. The same airline also has bases in California~, Massachusetts, and New York. It is certificated to serve points within those States and also within the States of Connecticut, Delaware, Indiana, Maryland, Michi- gan, New Jersey, Ohio, Pennsylvania, and Rhode Island. It has pend- ing applications to serve points in Alaska, Colorado, Hawaii, Louisi- ana, Nebraska, Oregon, and Washington. Each of those States has an age statute differing from the other in various ways. PAGENO="0472" 466 AGE DISCRIMINATION IN EMPLOYMENT Some of the statutes specifically provide that an employer may law- fully refuse to hire or may discharge an employee on the basis of age where age is a bona fide occupational qualification. The agencies admin- istering the statutes in the different States may or may not determine, as to a particular position, that age is a bona fide occupational quali- fication. Thus, an airline might find an age regulation applicable to a given flight crew member valid in some states where it operates and invalid in other States for the same employee during occasional dut.y in the latter States, or while temporarily located there by virtue of bid- cling or company assignment. Similarly, some States specifically provide exemptions for certain types of retirement plans which qualify under their age statutes. An airline could find a reassignment or retirement plan valid in one State where it operates but invalid in another as to similarly circumstanced employees. The employees' rights would thus be subject to change de- pending upon changes in base or route assignments. Further problems arise from the different ages in State statutes and the uncertainty as to the territorial scope of their applicability. Does a State law apply only to persoi~s hired, residing, working, or terminated within a State? Can they or do they constitutionally apply, to nonresi- dent employees flying in and out of the State? How much of a person's working time must be within a State to make its law and rulings appli- cable to that emploTee? Does the law of one State follow the traveling employee into another State, and if so, for what purposes and for how long? Is a~ carrier subject. to liability for treating an employee one way in one State and like employees differently in a second or third or fourth State. Suppose an airline has a rule for reasons of safety or economics `that a flight engineer on jet aircraft will not be retrained to qualify as a pilot after age 42. Should that rule. be valid in all the States that have no age statutes or whose statutes only apply to higher ages and possibly invalid in other States, depending on the bona fide ocupational quali- fication determination of the. State involved? Suppose an airline has a rule that stewardesses shall uniformly be reassigned to ground services at. a specified age with no loss of pay. Should that rule be valid in all the States that have no age statutes or whose statutes `only apply to higher ages? Should it possibly be invalid in various other States, depending on the bona fide occupational qualification or retirement plan determination of the State involved? Suppose an airline adopts a rule for reasons of safety or economics that a pilot will not, after a certain age, be trained for service on new equipment such as the coming supersonic transport. Should that rule be valid in all States that have no age statutes, or whose statutes apply only to higher ages? Should it be invalid in various other States, depending on the bona fide occupational qualification determination of the State involved? Must an airline having such a rule secure a bona fide occupational determination in every State in which it operates? Would a Federal ruling be binding nationwide? Can a New York decision bind the airline in California or employees flying back and forth between them? Would the law of the base State, or the residence State, or the assign- ment State, apply to the flight ~nginee.r or pilot.? Or the law of the State where he might choose to put in his request? Or all? Or none? PAGENO="0473" AGE DISCRIMINATION IN EMPLOYMENT 467 Would the law of the State where a stewardess was originally hired apply? Or the law of her first base? Her present base? Or the law of the State to which she most recently requested transfer? If required to hire someone in Massachusetts, for example, would assignment or transfer to Pennsylvania permit termination of the employee because of the difference in laws or commission determination between those States? These issues, it is submitted, strongly emphasize the problems encountered by an airline in seeking to apply uniformly its policies where different State rules applicable to an employee who works in two or perhaps as many as half a dozen States every day of the week. They serve to underscore the impracticality, undesirability, and added burden placed on interstate commerce of divergent State laws. There is little likelihood of the need for multiple proceedings or of such conflicts and overlaps in the average business enterprise where employees are essentially static and work primarily in one place. How- ever, in the air transport industry, flight crews have no single location of employment and mobility is an inescapable hallmark distinguishing interstate air transportation from most other industries. The air transport industry hires flight crews from every State, not to work in the State where they are hired, but to work in many States. They may be interviewed in one State, hired in another, trained in a third, initially assigned in a fourth, and reassigned again and again. This may be either on the basis of seniority bidding rights or of the carrier's business needs. In either case, the mobility is pursuant to collective-bargaining agreements which under the law are systemwide both in negotiation and application. Existing Federal legislation already recognizes the need for uni- form systemwide application of regulations to the air transport in- dustry which is inherently highly mobile and multistate. The Federal Aviation Administration and the Civil Aeronautics Board regula- tions follow this pattern. The Railway Labor Act clearly envisages uniform systemwide employment conditions. Age discrimination regu- lation should be no different. At least to the limited extent covered by the recommended proviso set forth above, uniform national treatment is the only practical procedure to be followed in applying an age dis- crimination statute to the air transport industry. Congress Should Establish the Age Group in Any Federal Aqe Dis- crimination Leg2siatwn-The Secretary of Labor Should Not Be Given Discretion To Adjust the Age Limits Section 13 of H.R 3651, and its counterpart, entitled "Limitation," provides that the coverage of the proposed act shall be limited to "in- dividuals" who are at least 45 years of age, but less than 65 years of age, thus covering the older worker who has been the subject of each report of the Secretary of Labor to the Congress on the question of age discrimination in employment. If Federal age legislation is to be enacted to protect the employment opportunities of such older workers the proposed age brackets speci- fied in the bills are clearly appropriate. However, the bills also state: Provided, That in order to effectuate the purposes of this Act, the Secretary may by rule or regulation issued under Section 10 of this Act, provide for ap- propriate adjustments, either upward or downward, in the maximum and mini- mum age limits provided in this Section. PAGENO="0474" 468 AGE DISCRIMINATION IN EMPLOYMENT It is recommended that this proviso be stricken in its entirety and that there be substituted therefor an amendment, comparable to the provisions of section 4(d) of the Fair Labor Standards Act. Such an amendme.n~ would require an annual report to the Congress from the Secretary of Labor covering enforcement activities under the act, "including such information, data, and recommendations for further legislation in connection with the matters covered by the act as he may find advisable." The proviso as now contained in the hills under consideration would, if enacted, be an unprecedented abdication of congressional authority to set the limits of statutory application by authorizing the Secretary of Labor unilaterally to adjust the age limitations specified. As drafted, the Proviso would appear to enable the Secretary to single out special businesses for special treatment. This is of dubious fairness and certain undesirability. The proviso should be wholly omitted and the policymaking power retained by the Congress. At the very least, the power of adjustment. should be limited to uniform and comprehensive nationwide application after following specified pro- cedures. The procedures should be designed to establish the need for an adjustment to relieve the employment problems of the older worker to which the proposed legislation is addressed. The issue of age discrimination in employment, is a comparatively new area of Federal involvement, presenting a whole range of new and complicated problems never before squarely encountered. It is no doubt true that the Congress cannot anticipate every problem which may arise. However, these are not reasons for Congress to abdicate its responsibility to legislate definitively on the basis of facts before it so as to resolve `the national problem presented. The Secretary of Labor has found that the need for Federal action involves "the older worker" between the ages of 45 and 65. If subse- quent experience indicates that the problem of age discrimination in employment requires broader action, the appropriate course is to re- quire the Secretary of Labor to report to the Congress. The Congress can then review the matter and the desirability of further Federal action iii the light of executive experience, just as in 1964 and 1966, when the Secretary of Labor was required to make the reports on which the bills before this committee are `based. Enforcement of Any Federal Age Discrimination Legislation Enacted Should Be Under the Same Procedure Provided Under the Fair Labor Standards Act The bills being considered by this subcommittee would give the Secretary of Labor power to issue cease and desist orders after an ad- ministrative hearing, and to have those orders enforced in a U.S. court of appeals, where the Secretary's findings would be final and binding. However, it is strongly urged that an amendment to the H.R. 3651 and its counterparts be adopted to provide the same kind of en- forcement procedures as those now provided under the Fair Labor Standards Act through the Wage-Hour Division of the Department of Labor. All that would be required for such a procedure would be to strike section 7 of H.R~. 3651, and others, and to substitute therefor the substance of section 16 and 17 of the Fair Labor Standards Act appropriately modified to fit the special needs of the proposed legisla- tion in question. PAGENO="0475" AGE DISCRIMINATION IN EMPLOYMENT 469 The traditional enforcement pattern of the Fair Labor Standards Act gives mvestigatory power to the Labor Department, but provides for enforcement by the Secretary of Labor, or a private party, through suit on an alleged discriminatory practice in a U.S. district court with 3urisdiction to make its own findings of fact in accordance with usual judicial rules subject to far more adequate judicial review. There are several advantages to the recommended amendment: First, it would permit enforcement by the Wage and Hour Division of the Department of Labor, thereby making it unnecessary to estab- lish a whole new bureau just to enforce age discrimination legislation. The Wage and Hour Division already has a complete staff of investi- gators, regional offices, and regional attorneys, fully capable of en- forcing this legislation in addition to its already existing jurisdiction. Second, the amendment would separate the rulemaking and prosecu- tion functions from the responsibility for adjudication subject to full judicial review. This would enhance the objectivity and impartiality of the decisionmaking process. Third, the amendment would provide an enforcement procedure which is already familiar to labor, to management, and to the regional offices of the Wage and Hour Division, thereby expediting effective enforcement of any age discrimination statute. Further, in connection with the mechanics of enforcement, it is rec- ommended that a time limit be established for filing complaints of age discrimination. It is also recommended that provisions be made for the confidentiality of any conciliation discussions. Time Limits for Filing Complaints H.R. 3651, and others, as drafted, contain no time limit on the filing of discrimination complaints. Any alleged unlawful age discrimination in employment is apparent at the time it is committed and should be protested immediately if at all. In order to expeditiously resolve the issues in the interest of avoiding undue employment turmoil, it is rec- ommended that this omission be rectified by requiring that any charge of unlawful discrimination in employment because of age must be flied within 90 days of its alleged occurrence. Confidentiality of Conciliation Efforts In attacking the problems of unacceptable discrimination, confer- ence, concilitation, and persuasion have always played a paramount part. To promote to the utmost the effectiveness of such procedures, it is recommended that any age discrimination legislation contain a provision that nothing said or done in the conciliation process should be permitted to be used as evidence in a subsequent enforcement pro- ceeding. Failure to provide such a safeguard could destroy the useful- ness of the entire conciliation process by causing the parties to adopt rigid positions. True conciliation requires flexibility and confidential- ity in order to fully explore the possibilities for settlement, not only of the particular complaint at hand, but perhaps also of more far- reaching employment policies. CONCLUSION In his 1965 report, entitled, "The Older American Worker--Age Discrimination in Employment" a report required by the Congress PAGENO="0476" 470 AGE DISCRIMINATION IN EMPLOYMENT under section 715 of the Civil Rights Act of 1964, the Secretary of Labor made it clear that the primary purpose of any Federal age legis- lation should be to provide employment opportunities for "older workers." While the report called for Federal antidiscrimination legislation to insure such employment opportunities, it also recogmzed the place of reassignment and "retraining opportunities for older workers." If a Federal age discrimination statute is to be enacted, it is respect- fully submitted that this primary I~r1ose should remain la.ramou1~t. It should be drafted to accomplish the Government's legitimate objec- tive of full employment, of "older workers" without involving the Government in guaranteeing the job preferences of individual employees unwilling to accept proffered retraining and reassignment to jobs with comparable pay. If the national interest in employment of our "older workers" does, indeed, require legislation of the nature as proposed, the scope of the legislation should be directed to resolving the actual problem presented and tailored, where possible, to fit legitimate business needs. The recommendations contained herein are directed to that end. The Air Transport Association will be ileased to cooperate with the subcommittee and its staff in enlarging upon or implementing them. (At the request of Congressman Scherle the following information was submitted for the record:) CONTINENTAL AIR LINES, INC., Washington, D.C., August 21, 1967. Hon. WiriLA~f J. SCHERLE, House of Representatives, Washington, D.C. Dn~n CONGRESSMAN SCHERLE: Reference is made to your letter of August 17th. This is to advise you that Continental Airlines does not have any policy which prohibits continued employment of female flight attendants after the age of 32 or 35 or any other specified age. Continued employment as a hostess with Continental Airlines is dependent upon appearance and performance irre- spective of age, and this policy is predicated upon our desire and need to maintain standards of service to the general public. Respectfully yours, HARVEY J. WEXLER, Vice president, Governn? ental affairs. DELTA Am LINES, INC., Atlanta, Ga., August 24, 1967. Hon. WILLIAM J. SCHERLE, Longworth Bwilding, Washington,, DC. DEAR CONGRESSMAN SCHERLE: Thank you so much for your letter of August 17th. which Mr. Griffith forwarded to me. Delta does not have a policy which prohibits the continued employment of female flight attendants after a certain age and we have never released a Stewardess for being "overage". Our Stewardesses may continue flying as long as their appearance, personality and job performance meet acceptable standards. PAGENO="0477" AGE DISCRIMINATION IN EMPLOYMENT 471 At the present we have sixty-five Stewardesses who are age 32 or over, as follows: Age Number of stewardesses Age Number of stewardesses 32 15 38 39 3 33 13 40 34 12 41 35 6 42 1 36 6 37 4 These sixty-five Stewardesses represent 5.7% of Delta's total Stewardess personel complement. Cordially, W. T. BEEBE, Vice President, Personnel. EASTERN AIR LINES, INC., Washington, D.C., September 5, 1967. HON. WILLIAM J. SCHERLE, U.S. House of Representatives, Washington, D.C. DEAR CONGRESSMAN SCHERLE: Reference is made to your letter of August 17, 1967, in which you inquire as to whether Eastern has any "policy of pro- hibiting continued employment of female flight attendants after the age of 32 or 35", and request for a description of such policy if it exiSts. This is to advise that Eastern Airlines has no such policy. Sincerely, LYLE S. GARLOCK, Staff' Vice President, Federal Affairs. PAN AMERICAN WORLD AIRWAYS, TVashington, D.C., August 22, 1967. H0N.WILLIAM ~. SCHERLE, Longworth Building, Washington, D.C. DEAR Moo. SCHERLE: You inquire in your letter of August 17th whether Pan American Airways has a policy of prohibiting continued employment of female flight attendants after the age of 32 or 35. Pan American does not now have such a policy, nor have we ever placed such restrictions on our stewardesses. Mandatory retirement age for all of our flight personnel is age 60. Female flight attendants may continue in this field until they reach age 60 so long as they continue to fulfill the other require- ments of their position. I hope this has satisfactorily answered your inquiry. If I can be of any further assistance, please do not hesitate to contact me. All best wishes. Sincerely, ROGER B. DOULENS, Assistant Vice President. TRANS WORLD AIRLINES, INC., Washington, D.C., August 24, 1967. Hon. WILLIAM J. SCHERLE, Longworth Building, Washington, D.C. DEAR CONGRESSMAN: Thank you for your letter of August 17 in connection with the hearings which were held on Age Discrimination. TWA has in the past had a policy of transferring flight attendants to ground positions at age 33. However as you know, TWA has recently completed negotia- tions with our hostess union. Provisions of the new contract, which is awaiting ratification, provide that enforcement of any agreements to ground hostesses at PAGENO="0478" 472 AGE DISCRIMINATION IN EMPLOYMENT age 35 will no longer be carried out. For all practical purposes they are null and void. Should you have any further questions please feel free to call on me. Cordially, RICHARD S. TRIBBE, Director, Legislative Affairs. NATIONAL AIRLINES, JIzami, PTa., August 23, 1967. Hon. WILLIAM J. SCHERLE, House of Representatives, Washington, D.C. DEAR CoNG~ssMAN SCHERLE: Thank you for your recent letter requesting a statement relative to the Age Discrimination in Employment Act hearings before your committee. National Airlines is now in contract negotiations with the Air Line Pilots Association (Stewardesses) representatives. The policy upon which you seek clarification is in issue. Therefore, we feel it would be improper for us to pub- licly comment until such negotiations are concluded. Every good wish to you. Sincerely, E. JOSEPH HILLING5, Director, Public Affairs. BRANIFF INTERNATIONAL, Dallas, Tea., August 29, 1967. Hon. WnLI~I J. SCHERLE, Congress of the United ~tates, TVasliington~ D.C. My Dnan CONGRESSMAN SCHERLE: Your letter of August 17, 1961. to our Mr. R. H. Burek relative to the hearings on the Age Discrimination in Employment Act of 1967 has been referred to me for reply. I understand that since sending us your letter of August 17, 1967, the Air Transport Association, on behalf of the airline industry, has filed a supplemental statement to its original statement filed on August 15, 1967, in connection with your hearings on bills dealing with age discrimination. This supplemental state- ment contains a complete explanation of the airlines' stewardess or hostess reas- signment policies and very accurately states some ;~f the reasons for Braniff having a policy of having its hostesses transfer to non-flying assignments within the Company upon reaching age 32. We established our age policy on the sound and logical premise that the physi- Cal requirements of the job were such that a young person could meet those requirements without any chance of impairing her own health which would not necessarily be the case of older persons. Furthermore, we were of the opinion that a reasonable age for a job transition for such a hostess to a ground position, such as reservationist or general office work, was at an age that permitted re- training in the regularly normal established time and which would not create any unusual difficulties or hardships on the person involved. The hostess in this transition would normally be competitive with other employees in such assign- ments to which she was transferred, and, therefore, we felt that any age past 32 could put her at a disadvantage. Of course, there are always exceptions to the rule, but we do not believe that any personnel policy nor governmental regu- lations should be established on an exception to the rule. :Since 1956, we have had our hostesses, prior to the time of employment, sign a statement to the effect that they agree to transfer to a ground job upon reaching age 32. If all of the hostesses currently in our employ would not terminate their services prior to April, 1969, we would at that time have our first case requir- ing a hostess to transfer to a non-flying position. There could possibly be three other such cases in the year 1969. One can see that this is not an immediate prob- lem at Braniff. The nature of the job of a hostess because of travel and lodging away from her home base with other hostesses, further substantiates the practicality of having a rule that fosters this close aSsociation within a compatible age group. Our rule was established upon the premise that to require a girl of 21 to asso- ciate so closely with an older woman would not be conducive to a situation that would produce the most harmonious relationships which are so essential to satis- factory service of our hostess group to the traveling public. PAGENO="0479" AGE DISCRIMINATION IN EMPLOYMENT 473 Most of the hostesses stay with Braniff for about two years, after which they voluntarily terminate their services, with over 75% of our hostesses leaving for the purpose of getting married. Of those remaining, we feel that our policy of requiring these employees to transfer to ground jobs at agei 32 creates employ- ment and an employable situation which might not be available to a hostess if she was allowed to fly indefinitely and into a period of her life when she could easily become disqualified for other employment. The very fact that our hostess group has voluntarily terminated their services after an average of two years of employment supports the position that there is a general understanding and acceptance, that the nature of this work is of a tem- porary period in her transition from an academic career to that of marriage and homemking. It is interesting to note, and certainly supports the reasonableness of the com- pany's position, that with 739 hostesses currently in its employ, the company has only 19 who are over 32 years of age, and as previously mentioned, the com- pany has not transferred a flight hostess to a ground `position because of having reached age 32 and will not `be confronted with this situation until April of 1969'. I trust the information which we `have presented is useful and we are cer- tainly pleased to comply with your request. Sincerely, MALCOLM HARRIsoN, T7ice President, Personnel Relations. AMERICAN AIRLINES PoLICY ON REA55IGNMENT OF STEWARDEssEs This paper explains in detail the reassignment policy for stewardesses followed by American Airlines, and the reasons underlying its adoption and retention. A. WHAT THE REASSIGNMENT POLICY IS Young ladies serve a maximum of 13 years as stewardesses on American Air- lines. They are hired beginning at age 20 and are permitted to fly until age 33. In their 32nd year, they are reassigned to ground positions' in the Company. The reassignment policy is the product of a long history of collective bargain- ing between American Airlines and the stewardess union. The age 32 provision was first set forth in an agreement becoming effective in 1953, and it has been reaffirmed, with modifications, in each subsequent agreement with the union-' An age 32 provision also is part of the individual agreement signed by each stewardess prior to becoming an employee. The `most recent agreement with the union contains the reassignment policy in its present form. It was signed `on October 12, 1965~ and will remain in effect until December 31, 1967. The essential features of the policy may be outlined as follows: 1. The policy is one of reassigment rather than termination. a. Each stewardess is guaranteed another position with American Air- lines at age 32. b. She is guaranteed that her salary will be not less than in her former position. c. She retains her company seniority, and her length of service is credited to her new job. d. She retains all company benefits, including sick leave, group insurance, and free and reduced rate air transportation. e. She receives the necessary on-the-job training from the Company for her new position at no cost to her, and cannot be discharged for lack of proficiency during the first eighteen months in her new position. f. Full travel and moving expenses are paid if relocation is required. 2. Senior stewardesses also are given professional vocational guidance and so far as possible, a choice of career opportunities is offered. In the past, a wide range of jobs have been available, including: a. Sales Representative b. Stewardess Supervisor 1 The Transport Workers Union is the bargaining representative for stewardesses. Forty-two stewardesses who were employees on November 30, 1953, are exempt from the reassignment policy. They therefore are not included in the computations in this paper. PAGENO="0480" 474 AGE DISCRIMINATION IN EMPLOYMENT c. Stewardess Instructor ci. Passenger Service Manager e. Receptionist f. Ticket Agent g. Reservations Service Agent h. Secretary i. Flight Recruitment Representative 3. 34 American Airlines stewardesses became 32 in 190G. Of them, 9 accepted positions with American. 4. Some stewardesses reaching age 32 prefer to leave the Company. They are given the opportunity to serve up to 12 additional months as a stewardess. Upon resignation, they receive severance pay of $250 for each year of service, with a maximum of $3,000. B. NUMBER OF STEWARDESSES AFFECTED In actual practice, very few stewardesses remain until age 32-less than one percent of American's 3,120 stewardesses or an average of 28 a year. Thus rela- tively few stewardesses are affected by the reassignment policy. There are two main reasons: 1. The stewardess position is of interest primarily to young women. a. More than 23,000 applicants sought employment as stewardesses with American Airlines last year. Their average age was 20 years. b. The average age of the 1,170 girls who will graduate from American's Stewardess College at Forth Worth, Texas, in 1907 is about 21 years. c. The average age of American's stewardesses now employed is 23.5. Only 3 percent are over 30. 2. There is a high turnover rate for stewardesses. Based on past experience, American can expect a new stewardess to serve about 24 months. C. BENEFITS OF TIlE STEWARDESS REASSIGNMENT POLICY 1. The airlines benefit The stewardess is the "Welcome Aboard !" of the airline industry-she is an airline's most important good will ambassador. Last year, passengers wrote 29,887 complimentary letters to American Airlines about stewardesses, far more than the total number of letters Written with respect to all other groups of employees. The stewardess has become the image of the industry, symbolizing the youth and vitality of the airlines: she is featured in airline advertising; her uniform and accessories are carefully designed by professional agencies; she is trained in modeling skills-grooming, posture, poise, etc-and stewardesses are present as airline representatives at all important public functions (such as the inauguration of new services). Her importance as the image of the industry is indicated by the care with Which she is selected (only about one and one-half percent of the applicants were accepted by American in 1900). 2. The stewardesses benefit The stewardess position offers an excellent opportunity for young women. The training required is supplied solely by the airline. In American's case, each stewardess is a graduate of a six-week training course at the American Airlines Stewardess College in Fort Worth, Texas. The Company invests about $8,100 in the first year for each stewardess hired. Salaries range up to $565 per month in addition to expenses and extensive fringe benefits. The stewardess position offers an unparalleled opportunity for travel. It also leads directly to marriage for a large majority of the stewardesses hired, and statistics show that stewardess marriages are phenomenally successful: the divorce rate is only 1 out of 47 marriages compared with a national divorce rate of lout of 4. The reassignment policy does not cause unemployment; instead, it creates employment. Each senior stewardess is guaranteed a career position, and her reassignment provides an opening for another young woman who wishes to fly. With an average turnover rate of two years, the reassignment of just one senior stewardess can be expected to create openings for five more new stewardesses in a ten-year period-in addition to the original replacement. 3. The public benefits To serve the public well, a stewardess must be highly motivated. Unlike most other jobs, there is no effective direct supervision of the manner in which a PAGENO="0481" AGE DISCRIMINATION IN EMPLOYMENT 475 stewardess does her work; there is no "foreman" watching her on the job in the air. The stewardess therefore must be a "self-starter" who responds with a young girl's enthusiasm for an exciting job. This self-generated enthusiasm becomes diminished when flying has lost its thrill and the job has become a matter of routine. Additional factors also develop to affect motivation. Senior stewardesses may experience emotional problems resulting from the absence of a permanent borne and family relationship. Con- sciousness of growing age disparity may prevent a cooperative team spirit from developing in the cabin. Poor motivation causes poor service. Poor service results in loss of business and good will. Another reason young stewardesses serve the public better is that they have the physical agility and endurance to do a good job. A stewardess must be able to serve dozens of means in a short period of flying time-often in turbulent air- at a cabin pressure equivalent to about ~,000 feet altitude. Round the clock airline schedules and changes in time zones result in irregular hours. Long periods of time are spent walking, bending and lifting. Stewardesses must be able to complete meal and beverage service quickly enough to meet jet sched- ules. Yet they must also retain sufficient vigor to give courteous, sympathetic attention to passengers requiring assistance. Periodically each stewardess is given recurrent training which includes par- ticipation in strenuous emergency drills. Practice aircraft evacuations must be completed within two minutes, under standards fixed by the Federal Aviation Agency. During that time, stewardesses open emergency exists (requiring a force of 50 to 80 pounds pressure), handle escape chutes, and otherwise assist in the evacuation of the aircraft. The more rapidly these duties can be per- formed, the greater is the margin of safety in an emergency. D. POsSIBLu ALTERNATIvES No one can reasonably contend that stewardesses should be retained until normal retirement at age 65. Between ages 38 and 50, women are subject to changes in metabolism and in the endocrine, circulatory, digestive, nervous and cutaneous systems, symptoms of which would interfere with the desirable performance of such a job. Problems associated with the clirnacteric stage of life frequently develop. Personality traits may alter; emotional reactions may become heightened and unsure in times of stress or emergency. In addition, older women would not be able to respond well to the physical requirements of the job. For this reason, the New York State Unemployment Insurance Ap- peal Board, after investigating the reassignment policy of American Airlines, reached the following conclu.sion "We take official notice of the fact that the position of an airline stewardess involves at times extraordinary physical effort in handling passengers, admin- istering first aid and coping with emergencies and airline disasters. By its very nature, the job of airline stewardess is a hazardous one. For unemployment in- surance purposes, the age limitation of 33 imposed by company and union agreement is a reasonable one and not discriminatory." (Appeal No. 118,040, March 9, 1965.) Similarly, the Pennsylvania Fair Employment Practice Commission issued the following statement: "Our Commission made the policy decision that the imposition of age limits less than forty for the position of airline stewardess or hostess constitutes a bona fide occupational qualification under Section 5 of the Pennylvania Fair Employment Practice Act. This was decided principally on the ground that the rigorous training required to qualify a woman as an airline stewardess or hostess could not ordinarily be undertaken by women of age forty or more." (Letter from Pennsylvania Fair Employment Practices Commission to United Air Lines, signed by Nathan Agran, General Counsel, dated August 27, 1959.) Thus, since women cannot continue to serve as stewardesses until the Com- pany's normal retirement age of 65, two alternatives can be considered: 1. An individual determination-case by case and year by year-of which senior stewardesses could no longer continue; or 2. A stated policy which is equally applicable to all stewardesses- such as the American Airlines reassignment program. As shown below, the American Airlines reassignment program is the more desirable of the two. Under it, a senior stewardess is guaranteed a position which will provide a career until normal retirement at age 65. 85-376-07-----31 PAGENO="0482" 476 AGE DISCRIMINATION IN EMPLOYMENT 1. Indivi4~ual deterrn4nations concerning the sbility of senior stewardesses to continae to serve Those who advocate the making of individual determinations as to the con- tinuing capability of aging stewardesses fail to recognize the practical difficulties involved. a. A fundamental principle of union representation requires all employees to be treated equally. The stewardess union would hardly be willing to permit determinations that some aging stewardesses cannot continue while others of the same age are permitted to do so. b. Moreover, the determination that certain employees have become de- ficient as stewardesses because of the effects of aging, while others of the same age continue to be acceptable, would be highly objectionable to the women concerned. Charges of unfairness, favoritism, and subjective factors would be inevitable. c. In contrast, reassignment applied uniformly to all at age 32 cannot be regarded as an indication of personal deficiency or failure. Like graduation from high school or college, the event symbolizes a new level of career de- velopment. It is true that a few women resent the policy as requiring a change from a glamorous flight job to what they regard as a more pedestrian way of life. This would be equally true, however, if the reassignment were at any age. 2. The American Airlines reassignment policy The reassignment policy is based on three underlying considerations. a. The fact that medical, motivational, and customer service considera- tions require termination of stewardesses at some point prior to age 65. b. The fact that it is not feasible to determine continuing eligibility of senior stewardesses on the basis of individual differences in aging. c. The fact that the beginning of a new career for former stewardesses should not be deferred beyond age 32. Points a. and b. above have been discussed earlier in this paper. As to point c., American Airlines has sought and obtained the advice of an eminent industrial psychologist who regarded the following factors as significant: a. Retraining will be needed to qualify stewardesses for new careers, whether the new job is inside the Company or outside the Company. b. Studies have shown that the percentage of persons utilizing retrain- ing drops markedly when the age advances to the 30's and 40's. A study published by Michael E. Borus in the September 1965 issue of the Labor Law Journal indicates that the correlation is as follows (p. 578): Proportion of graduates utilizing retraining, Age in percent Under 20 years 82.2 Under 30 years 83. 8 30 years and over eo. 7 40 years and over 50. 2 c. More job opportunities are available for a woman in her early 30's than for older women. d. A stewardess in her early 30's adapts more readily to a new type of job and hen~e is more likely to succeed in her new career. e. In addition, there will be more opportunities for advancement if job entrance is made at an early age. Based on the foregoing considerations, the consulting psychologist retained by American concluded that the reassignmen.t policy is in accord with sound personnel practice in providing for job transition. His only suggestion was .that activities designed to help stewardesses transfer to new jobs be moved up to begin at age 28, and cover a range of four years. CONOLU5ION The American Airlines reassignment policy is the best solution yet devised for the problem of stewardess aging: a. It permits the airlines to provide the highest level of ~ervice for their passengers. PAGENO="0483" AGE DISCRIMINATION IN EMPLOYMENT 477 b. It provides former stewardesses with permanent careers in the airline industry. c. It provide~ other young women with a very desirable form of employ- ment. 4. Job transition is madh at the optimum age for retraining and future advancement. e. Individual comparisons involving the effects of aging are avoided. The airline industry is a progressive industry, and American Airlines is a leading airline. American was the first domestic airline to participate in Plans for Progress. The Company has received repeated commendations for its ef- forts to leirninate discrimination and provide full equality of opportunity. The reasignment policy represents another progressive response by American Air- lines to a difficult problem in human relations. (The following material was submitted for the record:) STATEMENT OF ASSOCIATION OF AMERICAN RAILROADS The Association of American Railroads (AAR) asks that the railroad in- dustry be excepted from the provisions of H.R. 3651 and HR. 5481 (and similar bills) which would make unlawful, discrimination in employment because of age. The AAR is an unincorporated, voluntary association of Class I railroads which operate 96 percent of the railroad mileage in the United States, whose revenue amount to 96 percent of railroad revenues in the United States, and whose employees constitute 95 percent of the total number of railroad workers in the United States. The purpose of this. statement is to succinctly set forth the compelling rca- sons which cause the railroad industry to seek an exemption from age dis- crimination legislation as embodied in HR. 3651 and HR. 5481. Since the rail- roads' concerns stem basically from considerations which particularly apply to the railroad industry but may or may not be true of other industry segments, the AAR limits its request for relief of the Committee to an exclusion of the rail- roads from these particular proposals and age discrimination legislation in general. As the following comments demonstrate, a rail industry exclusion is a matter of over-all public interest, for a statute which would force the rail- roads to accept older new hires would impair th~e capacity of the industry to service, now and in the future, the nation's over-all transportation requirements. There are two fundamental concepts which support these general statements. First, because of a combination of circumstances which will be outlined in more detail subsequently, the rail industry has a work force which is dispropor- tionately over age. To prepare for the demands which are sure to come from all portions of the economy as it expands in virtually every calculable respect, the railroads are attempting to remedy this age imbalance. H.R. 3651 and H.R. 5481 would nullify these remedial efforts by increasing the percentage of older work-. ers in the total work force. Since it may not be readily apparent why an age imbalance factor is undesir- able, a brief explanation at this introductory stage may be helpful. With a transportation mode where public convenience and necessity are at stake, an experienced work force is important. Since experience comes from years of service, employee turnover, that is, the rate at which the various decremental factors remove experienced incumbents from the working rolls, should be fairly uniform on a year-to-year hasis. If for any reason an especially high turnover occurs over a relatively short period of time, the quality of the work force will be affected. A work force heavy with age turns over more rapidly than one in age balance and in so doing changes the composition of the work force. It is for this reason that an age distribution balance should be struck. HR. 3651 and H.R. 5481 would feed the present age imbalance in the rail industry and its byproducts. A key concept, the significance of which must be appraised in changing any personnel policy in the railroad industry, is the seniority principle. All of the collective agreements between rail management and the various unions have adopted it and the assignment of the work force depends on it. It is firmly em- bedded not only in the labor agreements, but in the working philosophy and everyday thinking of the railroad worker. Principles of the seniority system are (1) hiring of young new entrants and (2) progression from the least desir- PAGENO="0484" 478 AGE DISCRIMINATION IN EMPLOYMENT able jobs (including the element of physical demands~) to the more desirable ones as years of service are acquired. Age discrimination legislation, unless accom- panied by clear and concise exceptions and qualffications, is diametrically opposed to these principles for it would bring elderly new entrants without any accredited years of service or experience into the bottom of the seniority spec- trum working on the least desirable, most physically taxing assignments. The principle of indiscriminate hiring, regardless of age considerations, is an important personel policy change. It should not be precipitately thrust upon the railroad industry whose work force by agreement with its employees revolves around the seniority concept. The foregoing comments briefly summarize the two general considerations which prompt the Association to seek an exclusion from the coverage of HR. 3651 and HR. 5481. A more detailed, although not unduly lengthy, explanation of these two central points, follows: Industry in general, and the transportation modes in particular, must have effective manpower. Manpower is the work force, the make-up of which is de- termined by many factors, all of which are interrelated and dependent on each other. In origin the w-ork force structure of the basic industries was manage- ment-designed. but as organized labor gained pow-er its influence on the struc- ture and composition of the working forces became more apparent. The end products are an accommodation of one to the other and as a result work force composition varies from industry to industry. In the railroad industry the structure and composition of the work force revolves around one of these end products. namely, the key concept of seniority which is incorporated in all labor agreements. Because the rail seniority concept is so pervading, no fundamental change in personnel policy, and the legislation under discussion unquestionably is of that character, should be attempted without a careful appraisal of what effect it will have on a work force which operates on the seniority principle. In that respeët, a cursory appraisal illustrates that legislation w-hich would discriminate against the preferential hiring of younger workers is opposed to the principles which make the rail seniority-oriented work force operable. To illustrate, betw~en 1940 and 1965 total railroad employment declined from 1.450,000 to 790,000-aimost 50 percent. Since seniority preserved the employment rights of the worker with more service time, the layoffs were concentrated among junior employees. The end result, of course, is a surviving work force heavily weighted with older workers. Declining employment opportunities coupled with the application of seniority could produce no other result, and with the railroads both of these factors were active. Employment declines w~ere steep; the seniority principle controlled; and *the industry is saddled with the disproportionately over-age work force.2 While the railroads have made some progress by hiring younger new entrants, uneven distribution is one of the industry's j~ersonnel problems. Passage of this legislation without a rail industry exclusion would only accentuate it.8 In 1961, after a full year of extensively :studying the rules and practices which govern the working conditions of railroad operating employees, the Presidential Railroad Commission found that the rail work force is older than that of manufacturing industries generally and recommended that rail management and the rail unions adopt a compulsory retirement program. (Report of Presidential Railroad Commission, pp. 28, 32-33. Such findings and recommendations were unquestionably influenced by a desire to strengthen the Nation as well as the railroads, for as the Commission said, "The manpower of the railroad industry 1 In the words of the Presidential Railroad Commission: "These operating employees have had to adjust to a way of life which is in many ways different from the pattern of employees in `outside' industry. They are subject to call at irregular hours, round the clock; many of them cannot accommodate their time away from duty to the normal family program of free Sundays and evenings. Many of them must spend considerable time at distant terminals, away from their families and communities. They work- out of doors re- gardless of w-eather, in the desert heat. or pouring rain, or amid snow and ice. Until they have achieved very considerable seniority, they are subject to irregularity of employment and often to extensive furloughs." (Report of the Presidential Railroad Commission, Feb- ruary 1962, page 23.) 2 In 1964 67% of the industry's employees were 40 years of age or over; 42% were 50 or * over; 30% 55 or over: and 18% 60 or over (Table D-7, 1965 Annual Report of the Rail. road Retirement Board.) while the number of employees with less than 10 years of service is now on the rise after a long period of decline, in 1964 there were 239,000 rail employees with between 20 and 29 years of service and 164,000 with over 30 years of service; 109,000 of those with 30 or more years of service were over 60 years of age. (1965 Report of the Railroad Retire- roent Board, p. 52.) PAGENO="0485" AGE DISCRIMINATION IN EMPLOYMENT 47~ represents one of our national assets. The industry's work force is a key resource composed of employees of varied skills and occupations, including those who man the trains." (Report of the Presidential Railroad Commission, p. 23.) These remarks, even more valid in 1967, highlight the importance of keeping the industry's work force in top-notch condition. This request of the AAR for an exemption is in keeping with that theme. In its consideration of certain changes in railroad organizational structure and the effect of such changes on employment in the industry, the Interstate Commerce Commission has recognized the age factor and encouraged "the establishment of a retirement allowance to stimulate early retirement by senior employees." The problem of putting the industry's work force in age balance is the first practical factor which causes the Association to seek exclusionary relief. The second stems from the seniority system in operation. Within the spectrum of jobs available to most of the individual rail job classifi- cations and particularly to the operating classes such as road trainmen and yard switchmen, work requirements, including physical efforts, differ. In short, some are more taxing and demanding than others, even though the job titles and rates of pay may be identical. The seniority system permits the employees with the most years of service best selection of available jobs, and this principle repeats itself through the entire selection process. In theory and practice. advancing age diminishes the human physiological capacities, including the important fac- tors of coordination and ability to withstand exposure to the elements, but where the seniority principle is applicable, it compensates by allowing the older worker to select the physically less taxing jobs. Application of the system, therefore, would be impaired by placing older new hires at the bottom of the seniority roster. The work of the operating crafts, that is, the people who run the industry's trains and yard engines, is such that their know-how is acquired at a time w-lien the `body is physically `best able to absorb the mistakes that inexperience spawns. Older new hires would suffer from their relative inability to withstand the lapses `that inexperience breeds but for which the younger man is better pre- pared to withstand and learn from. Instead of being able to select their jobs, the compensating factor of a seniority system, or have management pick the proper jobs for them, the older new hires would be saddled with the most undesirable positions, those they would be the least capable of performing. The inexorable results when a mismatch of man and job occurs on any large-scale basis would happen. More specifically, older new hires doing the same physically taxing work means reduced productivity, a less efficient over-all operation and a much higher employment turnover with all of its incidental disadvantages. A final pragmatic consideration which the proposed legislation overlooks is the amount and kind of training which new hires must receive before they can perform the tasks for which they are hired. On the railroads many of the crafts do require training, and this is usually at railroad expense, with the employee under pay during the `training period. The wherefore of maximum age require- ments for every apprentice or training program is well illustrated by the law of diminishing returns. Obviously, the age of the new hire and the intensity and length of each training period determines to a great measure the return which can be expected from the training. Subjecting the railroads or any other iiidu~try, for that matter, to indiscriminate hiring regardless of age, where many of the employees require extensive training, is unfair and itself discriminatory. Both H.R. 3651 and HR. 5481 contain the following or similar language: "It shall not be unlawful for an employer, employment agency or labor organization to take any action otherwise prohibi'ted . . . where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age." It may well be that these exculpatory provisions would allow the railroads to continue to hire younger new entrants because of the current work force age im- balance, the seniority concept, and by reason of the nature of railroad work in general. Perhaps that is the intention of `the exceptions. If so, in the railroad's case at least, it is earnestly submitted that such an intention should be made Chesapeake and Ohio-Control-Western Maryland Railway, 328 I.C.C. 684, 716 (Feb. 21. 1967). PAGENO="0486" 480 AGE DISCRIMINATION IN EMPLOYMENT more definite and certain by expressing it in terms of an over-all industry ex- ception, thus avoiding the uncertainty and possible vagaries of administrative interpretation. While the AAR's position as outlined above is that the rail industry should be excluded from age discrimination legislation, we wish to bring to the atten- tion of the Committee what we think are deficiencies of the pending bills: 1. The general prohibitory paragraph of II.R. 5481 and of Section 4 of H.R. 3651 would make unlawful age discrimination and does not include the qualify- ing term "arbitrary." This is a departure from the concept of eliminating only "arbitrary" discrimination which is the concept set forth throughout "The Older American Worker," the Report of the Secretary of Labor upon which the legislation is based.5 In the Report it is concluded that all age restrictions cannot be conceived as arbitrary and that there should be concentration on the arbitrary aspects of discrimination which could and should be stopped: * "The firmest conclusion from this year long study is that the most serious barriers to the employment of older workers are erected on just enough basis of fact to make it futile as public policy, and even contrary to the public interest, to conceive of all age restrictions as `arbitrary' and to concentrate on the prohibi- tion of practices which include this element." Since the Report, as well as the declared purposes of H.R. 3651 (Section 2(f)), establish that it is only "arbitrary" discrimination which is intended to be proscribed and recognize that there is a difference, the substantive provisions of the bills should be amended to specifically apply only to arbitrary discrimina- tion. This distinction has not been made in the one place where it is most un- portant, i.e., the provisions of H.R. 5481 and HR. 3651 which would make dis- crimination unlawful. 2. It would be particularly inappropriate to impose criminal enforcement provisions as HR. 3651 would do. A determination of whether arbitrary dis- crimination had been committed would be a highly subjective one. Where criminal penalties are involved, citizens are entitled to some specific indication of what is unlawful. Whether a specific act or course of conduct amounts to arbitrary discrimination will frequently involve hairline distinctions. The imposition of criminal penalties is totally unjustified in these circumstances. In this regard a bill before the Senate (S. 830) which as introduced was identical w-ith HR. 3651 has been the subject of hearings before the Subcom- mittee on Labor of the Senate Committee on Labor and Public Welfare. On April 26, 1967, the Labor Subcommittee ordered S. 830, with certain amendments, re- ported to the full committee. S. 830 as ordered reported by the subcommittee has been amended to eliminate the criminal penalty features which are objectionable. 3. Section 13 of HR. 3651 would limit the prohibitions in the bill to individuals who are at least forty-five years of age but less than sixty-five years of age but would grant the Secretary of Labor unlimited discretion to adjust these maximum and minimum age limits either upward or downward as he may deem appropriate. This broad discretion to adjust the applicable age limits should be eliminated. There are no standards provided to direct the Secretary in exercising such authority. The bill and the supporting statements made in its behalf are directed toward the problem of older workers. The Secretary's Report, on which HR. 3651 i~ based, deals solely with the problems of older workers. There has been no justification whatever for permitting the age minimum to be lowered. The consequences of raising the maximum age limit would be far reaching. They would be such that Congress itself should make any later adjustment if any is to be made and if any could be shown to be essential. 4. Consideration must be given to how the pending legislation would affect private pension and retirement plans in industry. Section 4 of HR. 3651 would make unlawful any private pension or insurance plan which specifies a maximum age limit after which new employees are not covered by such plans, i.e., maximum participation ages. In his testimony on S. 830 (which is identical with H.R. 3651) before the Labor Subcommittee of the Senate Committee on Labor and Pub- lic Welfare, the Secretary stated (Hearings, Transcript of Record, pp. 39-40) that the effect of Section 4(f) (2) would be to protect almost all private pension plans of which he is aware. This is not the case as we understand and read that section of the pending bill. That section would protect only a mandatory retire- ~ The Older American Worker-Age Discrimination in Employment. Report of the Sec- retary of Labor to the Congress Under Section 715 of the Civil Rights Act of 1964 (June 1965). ~Ibid, p. 21. PAGENO="0487" AGE DISCRIMINATION IN EMPLOYMENT 481 ment policy or system which is not a subterfuge to evade the purpose of the Act and would provide little or no protection for the ordinary private pension plan. It would appear from the Secretary's testimony that the bill intends, at least that private pansion and insurance plans would be protected. If this is the case, there should be no objection to amending the legislation to avoid any harmful effect upon such pension plans. S. 830, as ordered reported by the Senate Labor Subcommittee, has satisfactorily taken care of this problem by amending Section 4(f) (2) to read that it shall not be unlawful for an employer. "(2) to observe the terms of a bona fide seniority system or any bona flde employee b~neflt plan such as retirement, pension, or insurnce plan, which is not a subterfuge to evade the purposes of this Act, except that no such employee bene- fit plan shall excuse the failure to hire any individual ;" Such an amendment is important in the railroad industry since a number of railroads provide employee pension plans which have maximum participation ages. Most such plans include maximum ages of 50 or 55. Among the reasons for establishing maximum participation ages are cost and actuarial considerations. If the railroads, and other industries, are required to eliminate these provisions the result could well be to make it more difficult for aged workers to obtain em- ployment rather than to assist them. 5. There are 23 States which have laws which attempt to deal with the prob- lem of discrimination in employment because of age. Section 14 of HR. 3651 provides that nothing therein shall affect the jurisdiction of any agency of any State performing like functions with regard to discriminatory employment prac- tices on account of age. It seems clear to us that if there is to be Federal legisla- tion, it should preempt the various and sundry State laws on the subject rather than superimpose another set of administrative regulations, notice-posting, record-keeping, report-making and enforcement requirements and standards upon industry. If the State laws have been ineffective, as most apparently have, and for this reason Federal legislation is deemed necessary, there is no justification for continuing the authority and jurisdiction of State bodies in this regard. This kind of double jeopardy has no beneficial effect and simply adds another layer of governmentally prescribed obstructions to the efficient operation of a business. In conclusion, it is respectfully requested that the Committee recognize the unusual age and other circumstances which exist with respect to the work force in the railroad industry and that the industry he excepted from the provisions of H.R. 3651 and H.R. 5481. STATEMENT BY NATIONAL ASSOCIATION OF MANuFACTURERS INTRODUCTION The National Association of Manufacturers is pleased to present its views on H.R. 3651, and related bills pertaining~ to age discrimination in employment. For more than forty years, the Association has been encouraging manufacurers to make the best possible use of the experience, knowledge, and skills which older people possess. Over the years a wide range of meetings and conferences have been conducted with numerous groups and organizations, to stimulate the evaluation of management policies and practices dealing with older job appli- cants, and to educate management personnel as to the economic desirability of utilizing the reservoir of talent represented by the older worker. NAM has had a long-standing policy of encouraging employment of older work- ers. Currently, our policy position reads as follows: "Older workers offer seasoned experience, judgment and stability, and con- stitute a valuable asset in *the nation's work force. Employers are urged to observe hiring practices which give consideration to skills and abilities rather than to any age factor." In furtherance of this policy, NAM has done a great amount of work to pro- mote the hiring of older workers.' Partly as a result of the wide distribution given NAM publications on this subject, most employers are aware today that hiring older people makes economic good sense. 1 ThIs effort is reflected in some degree by the publications Employment of 3iaturg Workers (1960) and The Productive Years-Ages ~5-65 (1963), copies of which are sub- mitted to the Subcommittee herewith. PAGENO="0488" 482 AGE DISCRIMINATION IN EMPLOYMENT REVIEW OF TilE PROBLEM Our work in this field convinces us that the long-term, permanent solution to this problem can best be attained through further education, rather than through legislation, especially at the federal level. Excellent progress is being made by the voluntary route. Many firms have dropped bans on hiring older people. They have learned to place high value on older men and women. particularly so in this labor- short period. Educational programs are the most important and effective way to increase the employment of older workers, according to those state officials who are responsible for the administration of state age discrimination laws. Twenty-three states and Puerto Rico have already adopted laws prohibiting age discrimination. All but three of these laws have been passed since 1955, most of them since 1960. This legislation exists in the major industrial states and covers more than half of the nation's industrial workers. Additional state legislation is probable. It would seem neither wise nor necessary to pass a federal law on this subject at a time when the states are taking affirmative action to resolve this problem at the state level. We do not suggest that all problems pertaining to older workers have been solved. Mergers, shutdowns, moves to new locations, expansion, automation, elimi- nation of unneeded jobs-these are frequent occurrences in the business world, with important consequences for all employees regardless of age. The result may be the unemployment of older people. This does not mean, however, that a federal law will solve the problem any more than age discrimination laws have completely eliminated the problem in those states which have such laws. Programs to train, retrain, and upgrade the skills of the older worker should be intensified to qualify him for available job openings. In today's market, many jobs go unfilled because of the lack of qualified applicants of any age. Education and training of the older worker are essential to a solution of the problem. Job- matching techniques and job-vacancy inventories, together with better coordina- tion with training programs, will prove much more constructivein filling vacant jobs than the approach proposed in the pending hills. Secretary of Lnbor Wirtz recognized a fundamental truth when he said: "A strong and viable economy is the most important single factor improving employment prospects for middle-aged and older workers who lose their jobs. The more vigorous the economy-the higher the level of activity and the more rapid the rate of growth-the better the employment opportunities for workers of all ages."2 It is often easy, when attempting to solve a problem of this kind, to forget con- flicting, competing considerations w-hich represent equally desirable objectives in the total economy. The Fnited States is faced w-ith the need to ah~orb more thon a million young workers into the labor force each year. From 19(10 to 1965, the labor force grew by five and a half million workers, most of whom were young people just entering the labor market. From 1965 to 1970, the growth will be almost two million new workers per year. Massive efforts have been launched of late to assimilate young people into the labor force. Yet to the extent that available jobs go to older workers. solving the problem of new entrants into the job market becomes more difficult. Our national programs can work at cross purposes with one another. In fact, there is a growing body of opinion that discrimination is unfair at any age-that any legislation attempting to deal with the problem of age discrimina- tion in employment should outlaw all age discrimination rather than attempt to provide protection for specific age groups. Nor should we overlook the tremendous-and relatively unrecognized-con- tribution toward stability of the work force represented by industry's policy of promoting from within. Few people will argue with the desirability of this basic business practice. Yet such a practice relies to a considerable extent upon hiring workers at relatively young ages and training them within the company for ever-increasing levels of responsibility over the years. In our free competitive system, especially now when there are critical labor shortages in many parts of the country. employers recognize the importance of hiring older workers with skills and valuable experience. Phe law of the marketplace is inexorable in employment practices as well as in other things. Our growing economy is an enormously complex mechanism. Placing an addi- tional legislative restriction on employment practices, no matter how desirable 2 The Older American Worker, Report of the Secretary of Labor to the Congress under Section 71~ of the Civil Rights Act of 1964, Page 67 (June 1965). PAGENO="0489" AGE DISCRIMINATION IN EMPLOYMENT 483 the social goal, can effectively reduce the very job opportunities it seeks to create by diverting energies which would otherwise be devoted to the maintenance of full production. COMMENTS ON spEcIFIC PROPOSED LEGISLATION Now let us look briefly at the kind of problems which H.R. 3651 would raise. Employment and layoff should be entirely without regard to age, except in those situations recognized in H.R. 3651 where age is a bona fide occupational qualification or all employees are covered by a bona fide retirement policy. It is imperative, however, that there be no conflict with either new or estab- lished retirement policies. Pension plans and insurance plans should be excluded from the coverage of this proposed legislation; otherwise, the measure could create havoc with such private plans. Any law should specify clearly that bona fide pension and insurance plans, and similar types of employee benefits, are not to be considered "terms or conditions of employment" with respect to which it is unlawful to include differentiations based on age. Because of the far- reaching implications, any such significant revision of pension and insurance plans in this country should be accomplished knowingly and intentionally, not inadvertently by legislation designed to resolve an entirely different matter. Further, we believe it is undesirable to include criminal penalties in such a proposed law. This is, at best, a very difficult area in which to enact intelligent and workable legislation. The addition of criminal sanctions, even for second offenders, can obstruct rather than assist in the resolution of the sensitive social problem which this legislation seeks to reach. The various ability and skill factors which have to be assessed in interviewing and placing an applicant make the problem one which should not be subject to the threat of criminal penalties. The very existence of criminal sanctions could militate against success of the "informal methods of conference, conciliation, and persuasion" envisioned by H.R. 3651. Nor should such prohibitions be enforced by an administrative determination of guilt as provided by the bill. Individuals responsible for day-to-day adminis- tration of a particular statute tend to become advocates of the cause which the statute seeks to promote. They soon become less than objective when indi- vidual cases are presented to them. These provisions will be susceptible to sharply varying interpretations. Enforcement must be objective and impartial; it must not unduly hamper an honest employer just because his judgment and evaluation of *the ability and skill factors involved happen to differ from those of Department of Labor employees. A better procedure than administrative hearings would be for matters in dispute to be resolved by a new trial of the issues in a United States district court. In order to avoid a further increase in the number of administrative agencies w-ithin the executive department of the federal government, we strongly sup- port the view that this measure, if enacted, be administered by the Wage and Hour Division rather than by an entirely new agency. The Wage and Hour Division, which presently enforces the age provisions of the child labor laws and the wage discrimination provisions of the Equal Pay Act, would doubtless have the staff and experience to deal with the problems of age discrimination. Finally, in order for the act not to discriminate in favor of workers in any particular age bracket, such as 45-65, it should contain the exception "where the differentiation is based on reasonable factors other than age" and the excep- tion of a "bonn fide occupational qualification reasonably necessary to the normal operation of the particuar business," both of w-bich are proposed in H.R. 3651. SUMMARY Voluntary efforts offer the best means for continued advancement against arbitrary age discrimination in employment. No matter with what skill the proposed bills may be improved, legislation will not resolve the problem of arbitrary age discrimination. But voluntary efforts can. With the cooperation of employers and employees alike, great strides can be made against whatever barriers still exist. In furtherance of its long-standing policy, NAM will continue its efforts to encourage manufacturers to avail themselves of the skills and experience of older people who have so much to offer as employees. We continue to believe that more significant progress can be made through voluntary efforts, at both the national, state, and local levels, than by national edict. PAGENO="0490" 484 AGE DISCRIMINATION IN EMPLOYMENT THE ASSOcIATED GENERAL CoNvnAcToRs OF AMnnICA, Washington, D.C., An gust 22, 1967. Hon. JOHN H. Dnxr, Chairman, General Subcommittee on Labor, Was hington~ D.C. ~ CONGRESSMAN DENT: This Association wishes to go on record with your Subcommittee in connection with its consideration of HR. 3651 which would prohibit discrimination in employment on account of age. Our Association recognizes the fact that this measure deals with a most difficult problem; but if legislation is to be enacted, we hope that you will give consideration to the dangers of hiring older workers in construction because of the many hazardous situations which prevail in the industry. The construction industry, it is suggested, be most carefully considered for waiver of the requirement for the hiring of older workers on construction projects because of the inherent hazards. It is not uncommon to require men to work from scaffolds, ladders, or stages, nor is it unusual to encounter tunnel operations in construction all of which require men with fast, unwavering reflexes. We suggest that a provision be added authorizing the administrator to make an exception with regard to employment in the construction industry based on consultation with members of the industry. The practical effect of this is shown by the enclosed Wage-Hour Regulation, which draws a line of age in employ- ment in hazardous construction work. No doubt you will treat the employment of the older workers on construction with the same careful consideration given to minors. The employment of minors under 18 is, as you know, prohibited by law on several phases of construction. We hope that the Committee will recognize the unusual age requirements and circumstances that exist with respect to the work force in our indusry. I wish to thank the Committee for allowing us this opportunity to submit our views on this pending legislation. Sincerely, Wn~LIAM E. DUNN, Ea~ecutive Director. Am TRANSPORT ASSOCIATION OF AMERICA, Washington, D.C., August 22, 1967. Re: Bills Against Age Discrimination: H.R. 3651, H.R. 4221, and H.R. 3708. Hon. JOHN H. DENT, Chairman, General Subcommittee on Labor, Committee on Education and Labor, U.S. House of Representatives, Washington, D.C. DEAR 1~fn. CHAIRMAN: The attached statement is Submitted in behalf of the scheduled airline industry as a supplement to our original statement filed on August 15, 1967, in connection with your hearings on bills dealing with age discrimination. The supplemental statement is believed necessary due to the fact that during the course of the hearings on H.R. 3651, H.R. 4221 and H.R. 3768, proposals which we believe to be unjustified were submitted to change the basic theory of the proposed legislation from protection of the "older worker" to protection of the younger worker. Since the proposals presented were based on the assump- tion that wrongful personnel policies and practices exist with reference to the employment of airline stewardesses, the airline industry believes that the facts in regard to such policies need to be placed in the record. Our supplemental statement contains a complete explanation of the airlines' stewardess reassignment policies, and we believe `obviates any allegation that the reassignment policies relate to the problem of the "older workers" and *their employment. Thank you for your consideration. Cordially, S. G. TIPTON, President. SUPPLEMENTAL STATEMENT OF THE Am TRANSPORT ASSOCIATION OF AMERICA Re: H.R. 3651, H.R. 4221, and H.R. 3768 Relative to Age Discrimination in Employment. This supplemental statement is submitted in opposition to proposals made by witnesses during the hearings before the Subcommittee on August 15-17, 1967, PAGENO="0491" AGE DISCRIMINATION IN EMPLOYMENT 485 to alter radically the character and scope of HR. 3651, HR. 4221 and HR. 3768 by extending their coverage far beyond the problem which prompted the intro- cluction of those bills and the studies which support them. We refer to proposals to transform them from bills addressed to the problem of age discrimination in employment against "The Older American Worker"-basicafly those 45 to 65- into bills also covering the younger American worker-those' `below 45. I. The Genesis of Older Worker Legislation HR. 3651 and the other bills under consideration are themselves the product of considerable study of the specific problem to which they are addressed, and of some significant legislative `history. That history explains why their coverage was basically limited to persons 45 to 65. Pursuant to Section 715 of `the Civil Rights Act of 1964, the Secretary of Labor prepared and delivered to the `Congress in 1965 a report entitled `The Older American Worker," defined by that report as persons 45 and over. The report recommended four types of action to increase employment opportunities for such older workers. In the 89th Congress, the Senate included in its version of the 1966 amend- ments to th'e Fair Labor Standards Act (Public Law 89-601) a provision out- lawing age discrimination against those persons covered by the Secretary'S 1965 report-tho'se 45 to 65. That provision was deleted in conference, but a sub- stitute provision was enacted directing the Secretary of Labor to submit to' the 90th Congress, not later than January 1967, "specific legislative recommendations for implementing the conclusions and recommendations" contained in his 1965 report (Public Law 89-601, Section 606). On January 23, in a Special Message to the Congress on "Older Americans" the President proposed legislation prohibiting arbitrary and' unjust discrimina- tion in employment in respect of persons 45 to 65. H.R. 3651 and the identical bills are presented as carrying out the terms of the President's Special Message and presumably represents the Secretary of Labor's proposed implementation of his 1965 report on the "Older American Worker" as contemplated by the 1966 Act. II. Union Proposals to Alter Theory of "Older Worker" Legislation During the Subcommittee hearings, it was proposed by representatives of several labor organizations that the provisions of the new legislation be made applicable to all persons regardless of age, or at least to a very substantial cate- gory of persons under 45. According to the Department o'f Labor's statistics, there are always twice as many persons in the civilian labor market who are below 45 years of age (46 million) as there are in the 45-65 age category (26 million). Thus, the proposed extension of the legislation to cover persons of all ages would roughly triple the number of persons included within its provisions and increases the employees subject .to its coverage by several tens of millions. The proposals to effect this radical change in the scope and coverage of the legislation do not even pretend to be based upon any general examination or study comparable to "The Older American Worker" report of the very different questions raised by the new proposals in respect to younger workers. As far as we are aware, there is no significant age discrimination problem affecting younger workers requiring remedial legislation. Furthermore, nobody appears' to have inquired whether the adoption of a statute outlawing age discrimination at ages below 45 would have undesired effects upon apprentice. training or other pro- grams designed to provide special employment opportunities to very youthful or deprived groups. III. Unions' General Proposal to Serve Special Interest of Very Small Group It is clear from the testimony before the Subcommittee that the sweeping pro- posals to revolutionize the theory and character of the "Older Worker" legisla- tion are prompted, frankly and overtly, to answer the special demands of a rela- tively small handful of employees in a unique situation-those few airline stew- ardesses who are unwilling at age 32-35 to accept ground employment with the airlines which employ them. Because this is the source of the proposals the Air Transport Association feels a special interest in opposing them. A's it happens, this tiny group is already represented under the Railway Labor Act by powerful unions skilled in collective bargaining techniques, and are thus not in need of special legislation to meet their s'pecial problem. Moreover, the employees on whose behalf this sweeping legislation is sought are persons (1) who specifically agreed at the time they were hired , as stewardesses that they would, cease being flight stewardesses at some specified age; (2) who have al- PAGENO="0492" 486 AGE DISCRIMINATION IN EMPLOYMENT ready agreed, in the collective bargaining process, that their union contract shall not bar their termination as flight stewardesses at that age; (3) who are gen- erally offered, at or about the age for expiration of their assignment as flight stewardesses. other employment on their airline, at no reduction in pay. IV. Xo Justification for Altering Theory of "Older Worker" Legislation to Cover Airlines-' Stewardesses Reassignin eat Policies The Subcommittee has beeen told in effect by a leading union representative of those few stewardesses that they do not want the other "straight 40-hour week" ground jobs at ages 32 or 35 because those jobs would mean the loss of glamour, the aura that surrounds a woman who earns her living in the air. The Air Transport Association respectfully suggested to the Subcommittee that the fear of a small number of young women that they are going to lose some of their glamour at ages 32-35 if they accept airline employment in a position other than as flight stewardesses, hardly requires federal legislation. It clearly does not justify adding tens of millions to the coverage of the proposed statute. Some of the union testimony before the Subcommittee may have left the im- pression that stewardesses who reach a certain age have their employment ter- minated at that age without regard to their future employment status. That is far from the fact. The airlines who have age restrictions generally recognize a responsibility to find alternative employment with the airlines at no loss of pay or seniority. That obligation has been formally recognized in agreements reached in collective bargaining which are applicable to all stewardesses who reach the reassignment age during the term of the contract, as shown by At- tachment A. We also attach evidence of the alternate employment policy of another airline with age restrictions which is a typical illustration of the ap- plication of reassignment on carriers having such a policy (Attachment B). We also submit. as Attachment C, a copy of a determination of the New York State Unemployment Insurance Appeals Board in a case involving American Airlines which describes how American's alternate employment policy works and which, in practice, finds that a stewardess who failed to accept assignment to different work under that policy had quit her employment without good cause. That finding emphasizes, we think, the fact that the proposals for sweeping changes in the age discrimination law- because of the so-called "airline stewardess age problem" are unsupported by a single case in which the airlines' stewardess reassignment policies have resulted in forced unemployment. The stewardess representatives have also suggested to the Subcommittee that stewardesses should not be required to transfer to other jobs at age 32-35 be- cause they are not trained for the other employment. For that reason, it is said they should be permitted to remain as stewardesses "as long as they can." Most stewardesses cannot physically expect to continue as stewardesses to or past middle age, and that they must stop flying as stewardesses long before normal retirement at age 65. If a woman of 35 would have difficulty ad- justing to ground employment because, having been a stewardess for 15 years, she is not trained for anything else, she is likely to be in a far w-orse position if she is permitted to continue flying until 45 by which time chances are Overwhelming~ that she will physically have to stop. Obviously, readjustment to other employ- inent w-ill be far more difficult at 45 than at 32 or 35. In sum, a policy of reassign- ing stewardesses to other employment provided by the airlines during the stew- ardesses' early 30's is in the interest of the stewardesses as well as the airlines. The policy does not create a problem; it is an attempt to solve one. The airlines who have stewardess age regulations have them because they have been found necessary to maintenance of a satisfactory level of stewardess service under the conditions applicable to the particular airlines. Those airlines have studied their own problems carefully and can demonstrate that strength, agility, resilience, attractiveness, and high motiVation-all natural attributes of youth-are characteristics necessary under the particular conditions of their operation to quality performance of the stewardess function. However, following as it does, the close of the hearings on H.R. 3651 and other identical proposals, this is not the occasion to argue the merits of the airlines' stewardess age policies. The bills to which these hearings relate are applicable to the Older Worker and are not addressed to the airlines' stewardess age poli- cies. The Subcommittee, we believe, simply has not an adequate bhsis to reach any conclusions on that matter as a result of these hearings. V. Concluswn Any effort to extend the pending bills to younger workers so as to cover stewardesses raises significant questions which would require serious study of the PAGENO="0493" AGE DISCRIMINATION IN EMPLOYMENT 487 situation of younger workers generally, and of airline stewardesses in particular. Nobody has conducted or suggested such a study for the obvious reasons that (a) there is no real problem of age discrimination against the younger worker justifying such a study; and (b) in respect to airline stewardesses in particular, those who know the airline industry know that a serious study would reveal there is no "stewardess age problem" requiring remedial legislation by the Congress. We strongly believe that present airline policies and the processes of free collective bargaining afford the stewardesses, on this question as on so many others, more than sufficient assurance of fair dealing. Attachments. [Attachment A] AMERICAN AIRLINES-TWU STEWARDESSES REASSIGNMENT AGREEMENT APPENDIX D MEMonArclrnM AGREEMENT BETWEEN AMERICAN AIRLINES, INC., AND THE Am Lixu STEWARDESSES IN TIlE SERVICE OF AMERICAN AIRLINES, INC. As Represented by the Air Line Stewards and Stewardesses Association, Local 550, TWU, AFL-CIO This Memorandum Agreement is made and entered into in accordance with the provisions of Title II of the Railway Labor Act, as amended, by and between American Airlines, Inc. (hereinafter known as the `Company") and the Air Line Stewardesses in the service of American Airlines, Inc. as represented by the Air Line Stewards and Stewardesses Association, Local 550, TWU, AFL-CIO (hereinafter known as the "Association"). It Is Hereby Mutually Agreed: 1. A stewardess employed by the Company as a stewardess on or after De- cember 1, 1953 shall be transferred to other employment within the Company effective with the first day of the month following the month in which her thirty- second (32nd) birthday falls unless she elects the alternative provided in Para- graph 8 below. 2. In the month in which her thirty-first (31st) birthday falls and again in the sixth (6th) month following the month in which her thirty-first (31st) bLrthday falls, a stewardess shall be interviewed by her supervisor and informed of her rights and obligations under the provisions of this Memorandum Agree- ment. On the occasion of the latter interview, she shall elect in writing her choice of other employment as provided in Paragraph 3 below, or the alternative provided in Paragraph 8 below. 3. (a) A stewardess who elects to transfer to other employment within the Company under the provisions of this Agreement shall be interviewed by her supervisor not later than two (2) months prior to her thirty-second (32nd) birthday, at which time she shall be informed as to the job vacancies that are open and the locatiOn of each. She shall have the option of selecting from the available job vacancies any one for which she has the minimum qualifications. The selected job shall be reserved for her and the appropriate management member shall be so notified. (b) In the event that no job vacancies exist at the time of the interview provided under 3(a) above, the stewardess shall he so informed. As soon as possible thereafter, but in any event not later than the first day of the month in which her thirty-second (32nd) birthday falls, the Company shall make available a job to be effective on the first day of the month following. The Company will make every effort to make available to such stewardess a job in the city in which she is presently based, if such is her desire. The stewardess and the appropriate member~ of management shall be notified of the job made available. 4. A stewardess who is interviewed under the provisions of paragraphs 2 and 3 above shall not be required to give up her scheduled duty-free days to accomnp- lish these interviews. If it is necessary to remove such stewardess from a regu- larly scheduled trip in order to accomplish such interviews, she shall ge given flight time pay and flight time credit for such missed trip. If such stewardess is required to travel to a job interview, she shall be furnished a Class "C" pass and shall be reimbursed for expenses incurred in such travel in accordance with applicable Company regulations. 5. When a stewardess, under the provisions of this Memorandum Agreement, selects and is awarded a job in a city other than the city in which she is based PAGENO="0494" 488 AGE DISCRIMINATION IN EMPLOYMENT at the time of her thirty-second (32nd) birthday, the Company shall pay her full travel arid moving expenses (in accordance with AA Regulations) to the city where the job selected or made available, as the case may be, is located. 6. A stewardess who is transferred to other employment under the provisions of this Memorandum Agreement shall be guaranteed: (a) Her accredited Company seniority; (b) Time equivalent to her length of service with the Company to be credited to her new job. (c) Effective October 1, 1965 a monthly rate of pay not less than the base pay applicable to her final month of service as a stewardess plus five (5) hours' incentive pay at jet equipment rates. (d) Effective June 1, 1966 a monthly rate of pay not less than the base pay applicable to her final month of service as a stewardess plus seven (7) hours' incentive pay at jet equipment rates. 7. In the event of a layoff involving employees in her new job classification, Company seniority shall govern in determining her relative position among the groups of employees concerned. During her first year and one half of service in her new job, proficiency alone will not be considered grounds for termination, in that this period of time shall be considered a training period in the type of work assigned. After the first year and one half in her new job, seniority and ability shall be considered as applicable to all employees in the group(s) concerned. 8. A stewardess who desires not to transfer to other employment with the Company under the provisions of this Memorandum Agreement may elect instead to terminate her employment relationship with the Company. In the event such stewardess elects to terminate, she shall be permitted to defer her termination date to but not beyond the last calendar day of the twelfth (12th) month following the month in which her thirty-second (32nd) birthday occurs, at which time she shall be terminated in any event. 9. A stewardess who terminates her employment in the month in which her thirty-second birthday occurs or in any of the succeeding twelve (12) months shall be entitled to severance pay in the amount of two hundred and fifty dollars ($250.00) for each year of compensated service as a stewardess with the Company, pro-rated from her date of hire as a stewardess up to her date of termination or the last day of the month in which her thirty-second (32nd) birthday falls, whichever first occurs. 10. The provisions of this Memorandum Agreement shall not apply to any stewardess who was in the service of the Company as a stewardess (including a stewardess on leave of absence) on November 30, 1953. 11. Each stewardess employed on or after the effective date of this i~Iemo- randum Agreement shall, at the time of employment, be informed of the pro- visions of this Agreement, and that her acceptance of such provisions is a con- dition of such employment. 12. The following provisions shall apply in the event the foregoing provisions of this Agreement are invalidated during the term of the Agreement by (i) the enactment of federal legislation, or (ii) the finding of a federal administrative agency, and (iii) a final judicial determination that such legislation or finding, as the case may be, is applicable to stewardesses in the employ of the Company: (a) Within thirty (30) days following entry of such final judicial deter- mination, the Company shall give written notice (mailed to the last known address as shown by Company records) to each former stewardess who after the effective date of this Agreement left the Company's employ or is employed in another position in the Company pursuant to the terms of this Agreement of her right to re-employment as a stewardess upon the following terms and conditions: (1) She must file with the Company a written application for reem- ployment within sixty (60) days following the date of the Company's notice; (2) She must meet all qualifications required by the Company of its stewardesses. (3) If reemployed as a stewardess she will be assigned the Company and stewardess seniority that she would have had if her employment as a stewardess had not been terminated; (4) Upon such reemployment she will have the right to return to the base at which she was last employed or, if she desires, to such other base to which she would have been entitled by the Basic Agreement. (5) If her election of a base pursuant to subparagraph (4) hereof PAGENO="0495" AGE DISCRIMINATION IN EMPLOYMENT 489 requires a change of residence, the expenses necessitated by such move will be paid by the Company; (6) Her rate of pay upon reemployment shall be the rate of pay to which she would have been entitled under the Basic Agreement had her employment as a stewardess not been terminated, provided that if the amount of severance pay she received upon termination under the provisions of Paragraph 9 of this Memorandum Agreement exceeds the amounts she would have earned on the basis of seventy-five hours per month on jet equipment during the period between her date of termina- tion and her date of restoration to the Company's payroll, the difference between such severance pay and such potential earnings shall be deducted from her pay, in equal monthly installments, during the first six (6) months following her restoration to the Company's payroll; (7) She will be entitled upon reemployment to the same vacation privileges as other stewardesses of comparable seniority, and she will be entitled to such sick leave as would have accrued had she continued her employment as a stewardess. (8) Any former stewardess who is unable to meet the qualifications required by the Company for its stewardesses within sixty (60) days following the date of her application for reemployment shall not be entitled to reemployment asa stewardess. (b) Any dispute as to whether an applicant for reemployment as a stewardess meets the qualifications required by the Company for its stew- ardesses shall be settled by arbitration at New York, New York in accordance with the rules then obtaining of the American Arbitration Association. The arbitration panel shall consist of one member appointed by the Company, one member appointed by the Association, and one member, who shall act as Chairman, appointed by the American Arbitration Association. Any other dispute concerning the interpretation or application of this Agreement shall be settled in the manner provided in the Basic Agreement for the settlement of similar disputes under the latter contract. 13. While this Memorandum expresses the voluntary agreement of the parties, it is not intended that the Association in behalf of any employee be precluded from testing the validity of any aspect of this Agreement under the laws of the State of New York, but a decision in New York shall not affect this Agreement in other states. 14. This Memorandum Agreement shall remain in full force and effect con- currently with the Basic Agreement between the Company and the Association effective October 1, 1965 covering rates of pay, rules and working conditions, subject to the provisions of the Duration of Agreement clause of such Basic Agreement. In Witness Whereof, the parties hereto have signed this Memorandum of Agreement this 12th day of October, 1965. Witness: E. J. MAHON. F. C. BONNER. E. J. TRAPP. M. T. DowNING. For AMERICAN AIRLINES, INC. KENNETH L. MEINEN, Vice President-PersonfleZ. A. DI PASQUALE, Assistant Vice President, Labor Contract Administration. Witness: NANCY JANE COLLINS. MARGARET NORRIS. J0ETTA S. CUNNINGHAM. MABREY BYRNES. For AIR LINE STEWARDS AND STEWARDESSES ASSOCIATION, LOCAL 550, TWU, AFL-CIO. JAMES F. HORST, International Vice President, Subject to Ratification. COLLEEN BOLAND, President-ALSSA. FREDRIC A. SIMPSoN, International Representative. PAGENO="0496" 490 AGE DISCRIMINATION IN EMPLOYMENT [Attachment B] LTNITED AIR LINES NOTICE OF STEWARDESS EMPLOYMENT CONDITIONS Company Regniations Pertaining to Dvration of Stewardess Employment: 1. It is a condition of stewardess employment that stewardesses remain un- married. Marriage of a stewardess automatically disqualifies her from the stew- ardess job. It is the Company's practice to consider stewardesses who give advance notice of marriage for ground jobs with the Company; however, such other employment is not guaranteed. 2. It is a condition of stewardess employment that applicants who enter train- ing after October 1, 1965 may not continue in employment as stewardesses beyond the end of the month in which they reach their thirty-second birthday. The Com- pany at that time will transfer such stewardesses, Company seniority unbroken, into other employment with the Company. Such stewardesses will be paid in their new position an amount equal to their average monthly earnings during their last six months as a stewardess. If no positions are available at the location at which the stewardess is domi- ciled when she reaches her thirty-second birthday, she will be transferred at Company expense to another location where a position exists. I acknowledge that I have read and understand the foregoing summary of regulations pertaining to the duration of stewardess employment. Date Sigued Application for Stewardess Employment Witness [Attachment C] NEW YorK STATE DEPARTMENT OF LAnor, UNEMPLOYMENT INsuRANcE APPEAL BOARD, New York, N.Y. Eloise N. Soots 150 East 49 Street, Apt. 9E New York, New York LO 511 Division of Employment 3 Carlisle Street New York, New York 10006 American Airlines 633 Third Avenue New York, New York Att: Richard A. Lempert, Esq. O'Donnell & Schwartz, Esqs. 501 Fifth Avenue New York, New York 10017 Att: Clayton Sinclair, Jr. Employer No. Appeal No. 131,143A S. S. No. 24~-40-1135 Referee No. 511-570--65 Please Take Notice that the decision set forth below was mailed and filed in the Department of Labor on September 26, 1966. Please Take Further Notice that within thirty days after the mailing of this decision, the Commissioner or any other party affected thereby who appeared at the appeal before the Board may appeal questions of law involved in such deci- sion to the Appellate Division of the Supreme Court, Phird Department. Written notice of such appeal should be mailed to the Appeal Board, 500 8th Ave., N.Y. 18, N.Y., within the time above stated. PAGENO="0497" AGE DISCRIMINATION IN EMPLOYMENT 491 DECISION OF THE BOARD Present: Louis J. Naftalison, Isi'dore Scbechter, John A. Rogalin, James R. Rhone, Philip F. Wexner, MenThers. Claimant applies, pursuant to Section 534 of the Law, to reopen and reconsider the decision of the Board filed March 3, 1966 (Appeal Board, 128, 115), affirming the decision of the referee filed November 3, 1965 sustaining the initial deter- mination of the local office disqualifying claimant from receiving benefits effec- tive September 1, 1965 on the ground that she voluntarily left her employmeni without good cause. A hearing was held before the Board at which all parties were accorded a full opportunity to be heard and at which claimant, her attorney and a repre- sentative of `the employer `and its attorney and a representative of the Industrial Commissioner appeare'd and testimony was taken. The Board considered briefs submitted by the attorneys for claimant an'd `for the employer on this application. After due deliberation having been bad on claimant's `application, time Board determined to reopen and reconsider its decision. Now, therefo're, based on the record and testimony in this case, the Board makes the following FINDINGS OF FACT Claimant was employed as an airline atewardess by the employer herein from February 27, 1956 to August 31, 1965. Prior to suc'h employment, she had worked for about five `and `one-half years in an insurance and real estate office in North Carolina, where she h'ad performed general office work, including typing and the handling of insurance policies. claimant was sent to a training school for stewardesses maintained by the em- ployer in Fort Worth, Texas, prior `to the actual `commencement of her employ- ment. While in training on August 2, 1955, she signed a statement in which she acknowledged that she bad been informed that according to the terms of t'he collective `bargaining agreement between the employer and the stewardess' union, (o'f which she `bad to `beco'me a member), her employment as a stewardess would not continue beyond the end of the month during which `her 32nd birthday falls. This policy of the employer i's more fully set forth in the collective bargaining agreement `between the employer and the Airlines Steward and Stewardesses As- sociation, Local 550, TWU-AFL-CIO, which provides in substance: "That upon reaching her thirty-second (32nd) birthday, a stewardess would be transferred to `other employment within the `Company unless she elected one of the following alternatives: "(a) If she did not desire to transfer to other employment within the Com- pany, she could elect to either terminate her employment at such time or be permitted to defer her termination date to, but not beyond, the last calendar day of the twelfth (12th) month in which her thirty-second (32nd) birthday occurs, at which time she would be terminated, in any event, or "(`b) If a stewardess elected to terminate `her employment in any of the succeeding six (6) months following her thirty~second (32nd) birthday, she would be entitled to severance pay in a stipulated amount, but a stewardess who terminated her entployment after the said six (6') month period, would not be entitled to severaace pay. "(`c) When she reaches her thirty-first (31st) birthday and again six (6) months later the stewardess is to be interviewed and informed of her rights to transfer or the termination of her employment on reaching her thirty- second (32nd) birthday. At this time, the stewardess shall elect in writ- ing her choice of accepting o'ther employment or the alternative options granted her." This agreement reserves to a stewardess her right to sue in the courts of the State of New York, in an action to test `the validity of any portion of the col- lective bargaining agreement. On August 13, 1963 when claimant reached her thirty-first (31st) birthday, she was interviewed by h'er supervisor and informed of her rights of election and options regarding her ,status upon reaching her thirty-second (32nd) birthday. Claimant was told she was required to make her choice by February 16, 1964. She `then specified a desire to be assigned either to the "Admirals' Club" or to any position utilizing her secretarial skills and some public relations work but limited `to the New York area. On February 9, 1964, claimant was again inter- viewed and repeated her willingness to accept a transfer to other employment S5-370----67-----32 PAGENO="0498" 492 AGE DISCRIMINATION IN EMPLOYMENT with the Company upon reaching her thirty-second (32nd) birthday and she signed a statement to that effect. Between June 3 and July 10, 1964, claimant was offered six office jobs with the employer, all in the New York area, which were in the following classifica- tions: two jobs w-ere in the general and executive offices, a job involving clerical work in a public relations office; a job as a passenger service representative at the La Guardia Airport or at a local ticket office; a job of reservation salesman at the Company's 42nd Street office and a job as a stenographer-clerk at the La Guardia Airport in New York City. All of these jobs were at claimant's regular salary as a stewardess and preserved her seniority rights. Claimant refused all of `these assignments and on January 10, 19134 she signed a statement that she was not willing to `accept any ground job, that she desired only the job of a stewardess. The statement read: "The stewardess has elected to not accept transfer, but rather to terminate her employment in the twelve (12) month period following her thirty-second (32nd) birthday (which is August 16, 1964)." Pursuant to claimant's election, `her employment was terminated by the em- ployer on August 16, 1965. Claimant filed a claim for benefits effective September 1, 1965. An initial determination was made disqualifying her from receiving benefits on the ground that she voluntarily left her employment w-ithout good cause, because she could have contined her employment `with her employer by accepting a ground job. The initial determination was sustained by the referee and his decision was affirmed by the Board in Appeal Board, 128,115 filed March 3, 1966, which decision incorporated by reference our decision in Appeal Board, 118.040 (Matter of Arnold). This case (Appeal Board, 118,040) involved a stew- ardess who was employed by the same employer as was this claimant and who lost her employment under the same facts and circumstances as in this case on appeal. In that case, the Board held that the stewardess brought about her own loss of employment by her deliberate action in refusing to accept a transfer to ground employment with her employer upon reaching her thirty-second (32nd) birthday. No appeal was taken from the Board's decision in that case. Thereafter and prior to December 16, 1964, claimant's union filed a complaint with the State Commission for Human Rights on behalf of claimant and other stewardesses similarly situated, alleging that this employer and other airlines were discriminatory in compelling stewardesses to cease flying upon reaching their thirty-second (32nd) birthday `and that their discharge because of such age limitations was in violation of Section 296.1(a) of the Executive Law-. This sec- tion provides: "It shall be an unlawful, discriminatory practice: "(a) For an employer, because of the age, race, creed, color or national origin or sex of any individu'al, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employ- ment." Section 297 of the Executive Law provides that upon the filing of such com- plaint, the chairman of the Commission shall appoint one of the Commissioners as an Investigating Commissioner, who shall make a prompt investigation of the facts and determine whether or not probable cause exists for crediting the allegations of the complaint that the respondent was engaged in unlawful dis- criminatory practices. If the Investigating Commissioner finds that probable cause does exist, then he shall try to have the discriminatory practice eliminated through conference, conciliation or persuasion. If this fails, then the Investigat- ing Commissioner shall cause to be issued and served upon the respondent a written notice with a copy of the complaint, directing him to answer the charges of the complaint `at a hearing to be held before three members of the Commis- sion (of w-hich the Investigating Commissioner may not be a member) a't a time and place to be fixed by the chairman of the Commission. The hearing to be held upon the complaint and answer of the respondent shall result in findings of fact and the issuance of a proper order of the Commissioner directing the re- spondent to desist from `discriminatory practices. The validity of such ruling may then be tested in the State Courts in a proper action. Upon the filing of the complaint by claimant's union, an Investigating Com- missioner was appointed by the chairman of the Commission for Human Rights on December 17, 1965. An investigation of `the charges made by the union was then held by the Investigating Commissioner. Claimant was one of the steward- esses who appeared and testified during the investigation. At the conclusion of such investigation, the Investigating Commissioner filed his report dated March 23, 1966, in w-hich he made the following conclusions: PAGENO="0499" AGE DISCRIMINATION IN EMPLOYMENT 493 "SUMMARY "(1) None of the evidence on hand gives warrant for the establishment of an industrywide policy setting a special arbitrary chronological age for continued employment of airline stewardesses-whether age 32 or 35, or any age below that of the standard mandatory retirement age for company employees. "(2) The evidence on hand does support the opposite position; namely, that termination as an airline stewardess prior to the employer's standard mandatory retirement age should be predicated solely on the individual stewardess' continued ability to perform the duties of the position at the level of performance required by each airline company for its stewardesses. "(3) On the basis of the evidence before me as Investigating Commissioner, I do not find that, under the New York State Law Against Discrimination, there is support for a claim that a bona fide occupational qualification based on age for continued employment properly applies to the airline stewardess position on an industry~vide basis." He later filed a separate report on April 20, 1906 ~fl connection with this claimant's complaint in which he concluded: "Accordingly, based on the evidence before me, I find probable cause in the above-entitled case and will now go forward with the further procedures authorized by the Law Against Discrimination." On July 28, 1966, the Investigating Commissioner filed a direction for the issuance of a notice of hearing to be held before three members of the Com- mission on *the claimant's complaint and the respondent's answer thereto, because be did not succeed in eliminating the unlawful, discriminatory practices complained of by the claimant, through the means of conference, conciliation and persuasion. On the basis of the proceedings held before the Investigating Commissioner appointed by the Commission for Human Rights and on the basis of his report and recommendations, the attorneys for the claimant made this application to reopen and reconsider the decision of the Board. Thereupon, a hearing was held before the Board at which claimant and her attorney and representatives of the employer and its attorney and a representative of the Industrial Commissioner appeared and further testimony was taken and the reports of the Investigating Commissioner were submitted in evidence. At this hearing claimant and her attorney conceded that no steps had been taken by her to institute any grievance procedure set forth in the collective bargaining agreement which provides: "ARTICLE 25-GRIEVANCE PROCEDURES "(c) GRIEVANCE-APPEAL: "(1) A stewardess, or group of stewardesses, having a grievance concern- ing any action of the Company affecting her, may present her grievance in person or through her representative within seven (7) days to the appropriate * Manager-Flight or his designee who shall evaluate the grievance and render his decision as soon as possible but not later than seven (7) days following receipt of said grievance." Since the termination of her job as a stewardess, claimant has been employed as a free-lance script supervisor in theatrical and television productions. She has succeeded in obtaining three engagements in this field. OPINION We give full respect and consideration to the report of the Investigating Com- missioner of the State Commission for Human Rights. However, such report is not a final determination of the matters concerned in the complaint against the employer. Section 297 of the Executive Law provides that if the Investigating Commis- sioner finds probable cause exists to entertain the complaint, the matter is then referred to a panel of three commissioners (from which the Investigating Com- missioner is excluded) and formal hearings are held and a determination made as to the existence of the discriminatory practice. Following such decision of the Commission, the aggrieved party may obtain a judicial review of the order of the Commission in the State courts. Since the Commission has not as yet scheduled hearings or rendered its decision on the complaint brought against the employer airline `by the claimant and other stewardesses, this matter is still pending before it and consequently reliance cannot be had solely on the report PAGENO="0500" 494 AGE DISCRIMINATION IN EMPLOYMENT 9f the Investigating Commissioner. Such report is exploratory and part of the preliminary steps in the procedure provided by the Executive Law. Therefore, the claimant's application to reopen the decision of the Board based upon the report of the Investigating Commissioner is premature. We hereby incorporate by reference our decision in Appeal Board. 118.040 (Matter of Arnold) which is made part of this decision with the same force and effect as if fully set forth herein, and from which decision no appeal was taken by the claimant therein. For the reasons set forth therein we adhere to our previous conclusion that the initial determination of the local office be sustained. It must be emphasized that in the case on appeal, the claimant was not dis- charged because she reached a specific age. The employer offered to transfer her to several ground jobs and she was given the choice to accept anyone of them or terminate her employment. Claimant first made her choice to accept such transfer, but then withdrew her election and insisted on continuing only as a flight stewardess, even though she knew that the agreement under which she was hired and accepted her employment provided tat she would not be permitted to fly after attaining thirty-two years of age. It is significant that claimant has not invoked the grievance procedure afforded her by the collective bargaining agreement. Inherent in the procedures follow-ed by the employer pursuant to the collective bargaining agreement is the right and prerogative of management to assign workers to other jobs within their training, experience and competence. We hold that the employer herein afforded claimant the opportunity to continue in its employment at various jobs at the election of claimant and which would carry with them no loss in remuneration or seniority status. We conclude that claimant voluntarily left her employment without good cause. DECISION Claimant's application to reopen and reconsider the decision of the Board filed March 3. 1966 (Appeal Board, 128,115) is granted and the said decision of the Board is rescinded. The initial determination of the local office disqualifying claimant from receiv- ing benefits effective September 1, 1965, on the ground that she voluntarily left her employment without good cause, is sustained. The decision of the referee is affirmed. Louis J. NAFTALISON, ilIe,nber. Ismonz SCHECHTER, Member. JOHN A. R0GALIN, Member. JAMES B. RHONE, Member. PHILLIP F. WENNER, JJember. STATEMENT OF AMERICAN TELEPHONE AND TELEGRAPH Co. The American Telephone and Telegraph Company makes this statement on behalf of the Bell System. First, the Bell System does not oppose the objective of this bill that there should not be discrimination on account of age practiced by employers, labor unions or employment agencies. Indeed the Bell System companies have complied with the laws of the many States dealing with discrimination in employment on account of age and, to the Company's knowledge, none of the System companies has ever been held in violation of any of those laws. In its present form, H.R. 3651, even though not so intended, could adversely affect the pension and retirement plans of the Bell System companies and those of many other employers in the country. Description of Bell System Pension Plans The Bell System consists principally of the American Telephone and Telegraph Company, 21 regional telephone operating companies, Western Electric Company and Bell Telephone Laboratories. Each company has a separate pension plan and separate funds separately administered. These plans cover approximately 800,000 active employees and about 95,000 employees retired on service pensions. PAGENO="0501" AGE DISCRIMINATION IN EMPLOYMENT 495 There are 30 banks as trustees. Since the plans are substantially identical, a de- scription of certain of the features of the American Telephone and Telegraph Company plan will suffice. Although the Plan was established by Company action, since 1947 union agree- ments have contained provisions relating to the Plan. The union can and does submit grievances of individual employees as to treatment under the Plan, and it bargains with the Company on changes in the Plan. The Company has had in effect since July 1, 1930 a rule requiring the retire- ment at age 65 of all officers or other employees, whether or not eligible for pen- sion. Exceptions require the approval of the Board of Directors in each case, and are almost never made. No exception has ever been made in the case of an officer. Retirement with an undiscounted pension at an employee's request, or in the discretion of the Employees' Benefit Committee is provided at the following mini- mum ages and terms of service: Minim um age Minimum service Men Women 65 60 65 55 15 years. 20 years. Undiscounted service pensions are also available at the following minimum ages awl terms of service but require the approval of the Employees' Benefit Committee: Minimum age mum service Men Women 55 None- 50 None 25 years. 30 years. All of the above are service pensions payable for life from the Pension Fund. Once granted, they cannot be revoked. The annual pension to which an employee is entitled is an amount equal to 1% of his average annual pay during the 5 years next preceding retirement (or the 5 consecutive years in w-hich he received higher pay), multiplied by the aiim- ber of years of service, subject to adjustment, as provided in the Plan, on account of specified minimum pension levels and Social Security Benefits. Minimum pension amounts are: Before age 65 From age 65 on Service 20 to 29 years $85 $115 Service 30 to 39 years 85 120 Service 40 years and over 85 125 Adverse Effeetr of H.1?. 3651 The bill under consideration makes it unlawful to "discriminate against any individual with respect to his compensation, terms or conditions or privileges of employment, because of such individual's age." (Section 4(a) (1).) "Age" is at least 45 but less than 65 but these limits can be varied up or down by the Secre- tary as necessary. As noted, Bell System plans specify service pension eligibility on a formula in which both service and age are determinative. This is also typical of a great many other pension plans. Also the amount of the minimum pension varies with the retired employee's age and service and this is not uncommon. The only provisioli in the bill relating direct1~ to retirement plans is Section 4(f) (2) which permits employers "to separate involuntarily an employee under a retirement policy or system where such policy or system is not merely a subterfuge to evade the pur- poses of this Act." We have no quarrel with this provision but submit it does not prevent the adverse effects this legislation could otherwise be interpreted to have on pension and retirement systems. PAGENO="0502" 496 AGE DISCRIMINATION IN EMPLOYMENT For example, if persons age 60 are entitled to retire on an immediate pen- sion at their own request after 20 years of service, could not it be held a discrimi- nation because of age if employees 45 with 20 years' service are not given the same privilege? Also, should the Secretary increase the limit to 65 or above, claims to immediate pension could be presented by 45-year old employees with as little as 15 years of service since employees with that amount of service are entitled to pensions at age 65. There is, of course, no way of knowing just bow many people would attempt to take advantage of such an interpretation but it can be expected that many capable employees would take abnormally early pensions either to withdraw from the labor market or seek what may appear to be greener pastures. In either case, the cost to the employer would be substantial. The Company is certain that the Bell System pension plans are well designed to serve its employees and its bsuiness. They have been modified and amended over the years to meet the changing requirements of the business and the needs of its employees. They are soundly and properly financed. The companies have an un- conditional obligation to pay the pensions under the plans and they are in a posi- tion to do so. Proposed Amendment It is doubtful that the proposed bill is intended to have the eflects outlined here. However, it is felt that an amendment is needed and to that end it is sug- gested that consideration be given to substituting for subparagraph (2) of Section 4(f) the following: "(2) To observe the terms of a bona fide seniority system or any bona fide em- ployee benefit plan such as retirement, pension, or insurance plans which is not a subterfuge to evade the purposes of this Act except that no such employee bene- fit plan shall excuse the failure to hire any individual; or". Reference might also be made to the declared policy of the Government against age discrimination in employment under federal contracts as expressed in Execu- tive Order 11141 dated February 12, 1964. This order bans discrimination on ac- count of age but exclude retirement plans as well as situations where age is a bona fide occupational qualification. TowERs, PERRIN, FORSTER, & CROSBY, Iuc., Philadelphia, Pa., August 3, 1967. Re H.R. 3651 and H.R. 4221. Hon. JoHN H. DENT, Chairman, Subcommittee on Labor, Committee on Education and Labor, U.S. House of Representatives, TVashington, D.C. DEAR CONGRESSMAN D~T: According to the Congressional Record your Sub- committee is holding public hearings on H.R. 3651 and identical bill H.R. 4221, the "Age Discrimination in Employment Act of 1967." Although we do not plan to testify in person at the hearings on provisions of this bill, we should like to take this opportunity to file our comments relating to it. We present our views not only as an employer administering our own employee benefit plans but also as consultants and actuaries in employee benefits, direct compensation, actuarial matters, organization, personnel administration and com- munications. We have been actively engaged in consulting work for almost 50 years, having done our first pension consulting as early as 1917. WTe presently serve over 800 clients. Comment on section 4(1) (2) We are pleased to note that section 4(f) (2) of the bill (page 6, line 9) exempts from unlawful employment practices the compulsory retirement of any employee under a retirement policy or system where such policy or system is not mcrely a subterfuge to evade the purposes of the act. However, we suggest that the exemp- tion does not go quite far enough to encompass two other reasonable and long established practices of employers in the administration of their employee benefit plans. (1) The Act should clearly state that it is not unlawful to require an em- ployee to work a minimum number of years with the employer `to become en- titled to a pension at retirement and for the continuation of all or part of PAGENO="0503" AGE DISCRIMINATION IN EMPLOYMENT 497 the death, medical or other employee benefits after retirement. Many em- ployers are not averse to hiring elderly employees who are close to the normal retirement age. For good business reasons, however, they are reluctant to provide lifetime benefits after retirement for "short service" employees. "Short service" is commonly defined as less than 10 years of service. (2) Many employee pension plans allow or require employees to retire prior to age 65. Normal retirement ages of 60 or 62 are not uncommon today. The Act should make clear that under such circumstances it shall not be un- lawful to provide different employee benefits, such as group life insurance, medical benefits, etc. to retired employees than may be provided to active employees at the same ages. Recommendation Accordingly, we respectfully suggest that subsection (f) of section 4 of the bill be amplified not only to exclude application of the act to the compulsory retire- ment of an employee under `a bona fide pension or retirement plan but also (1) to exclude `application of the act to the operation of the terms or con- ditions of any other bona fide employee benefit plan, and (2) that it shall not be unlawful to require a minimum period of service to be entitled to benefits after retirement under any bona fide employee benefit plan. In the absence of such exclusions, we fear that hundreds of long established, bona fide pension, group life insurance, medical and other employee benefit plans may `be in violation of section 4(a) (1) if it is assumed that these plans come within the purview of "conditions or privileges of employment" specified in that section. Incidentally, the Pennsylvania Human RelatiOns Act provides for such exemptions. Respectfully submitted. CHARLES S. MANNING, E~vecutive Vice President. AGRICULTURAL PRODUCERS LABOR COMMITTEE, Los Angeles, Calif., August 18, 1967. Re: Proposed Federal Legislation on Age Discrimination, H.R. 3651 and 4221. Hon. CARL PERKINS, Chairman of the House Committee on EducationS and Labor, Washington, D.C. Hon. JOHN DENT, Chairman of the House General Labor subcommittee, Washington, D.C. DEAR Sins: This organization represents citrus and avocado growers and pack- ers in the States of California and Arizona. The purpose of this letter `is to rec- ommend a NO vote on pending Federal legislation regarding age discrimination. Current Federal legislation which prohibits discrimination in connection with certain employment practices is base~d upon race color religion sex or national origin. Each of these criteria is capable of objective determination, there'by fa- cilitating easy enforcement practices. Proposed legislation which would prohibit job discrimination based on age would prohibit discrimination against persons between the age of 45 and 65 "wh'o are able to perform the work". This concept of "ability to perform the work" interjects a highly subjective criterion into the law. How do you measure if a prospective employee is able to perform the work? On this question reasonable men can arrive at divergent opinions based on the same facts. California citrus and avocado growers are experiencing extensive competition from foreign markets, and such growers are presently caught in the economic cost-price squeeze. Such employers, who pay the highest wages for agricultural jobs in the United States, must-to survive economically-employ persons best qualified to perform the work. Also, experience has shown that workers ap- proaching age 65 are more susceptible to on-the-job injury, thereby increasing compensation insurance rates. Finally, this age discrimination legislation will hinder employment opportunity for teenagers an'd young adults who comprise a vast proportion of `the total work force~ The ability of such workers to find em- I)loyment upon termination of their education is of the highest public concern. Enactment of the proposed Federal legislation' on age discrimination will seriously and adversely affect California citrus and avocado growers and pack- PAGENO="0504" 498 AGE DISCRIMINATION IN EMPLOYMENT ers and have the same effect upon a large proportion of the youthful American work force. For the foregoing reasons a NO vote is requested on H.R. 3651 and 4221. Very truly yours, J. J. MUIER, Executive rice President. OFFICE OF EcoNoMIc OPPORTUNITY, EXECUTIVE OFFICE OF THE PRESIDENT, Washington, D.C., August 3, 1967. Hon. JoHN H. DENT, House of Representatives, Washington, D.C. DEAR JOHN: I was extremely disappointed to learn only this afternoon that your Subcommittee has been holding hearings on the excellent Bill which you have introduced to ban discrimination against older workers. Had I known of the hearings, I would certainly have been present to add my plea for a favorable report regarding this legislation. Why I did not know of it, I cannot imagine, but you may be sure that I am filing a strong complaint with those who should have notified me. Indeed, I would have been most grateful if someone on your staff would have let me know directly. I would like to say now, however, that 1 believe such legislation to be badly needed and long overdue. In my opinion, it would do much to open employment opportunities for many competent people who are now unable even to have their applications considered, simply because they have reached someone's arbitrary age limit. Furthermore, it would give to all of us the benefit of the contribution to the work force which these competent people could make, if their applica- tions could at least be considered on their merits regardless of their age. I would be grateful if you would have this statement entered into the record, and be assured of my earnest hope that your Bill will be favorably reported and ultimately adopted. Yours sincerely, GENEVIEVE BLATT, Assistant Director. STATEMENT BY AM~ICAN LIFE CONVENTION, HEALTH INSURANCE ASSOCIATION OF AMERICA, LIFE INSURANCE ASSocIATIoN OF AMERICA The American Life Convention, the Health Insurance Association of America and the Life Insurance Association of America appreciate this opportunity to express our views with respect to H.R. 3651 and H.R. 4221 which would pro- hibit arbitrary discrimination in employment on the basis of age. Our Associa- tions have an aggregate membership of 509 companies in the United States and Canada which have in force approximately 93 percent of the life insurance, and 87 percent of the accident and health insurance, written in the United States. These companies also hold 99.9 percent of the reserves of insured pension plans in the United States. These plans cover more than seven million participants or 99.7 percent of those under insured pension plans. These bills would make unlawful age discrimination in employment except where age is~ a bona fide occupational qualification. They would also exempt compulsory retirement arrangements. The primary purpose of the bills would be to alleviate the difficulties which many workers over age 45 encounter in finding and maintaining satisfactory employment. We share the interests of the sponsors of this legislation and support the objective of encouraging the em- ployment of older individuals. This is an age group for whom a number of our member companies, have, over a long period of time, developed recruiting programs to specifically attract their talents and experience. In general the results of these efforts have been excellent not only in terms of the interest of the companies but the interests of the older worker. The stability and judgment of these mature employees are qualities sought by many of our companies. The education and research programs envisioned by the proposed legislation would be constructive and further en- courage the employment of older workers. These positive programs appear to represent a most promising approach to reduce the employment difficulties faced by unemployed individuals over age 45. PAGENO="0505" AGE DISCRIMINATION IN EMPLOYMENT 499 We are concerned, however, that this proposed legislation goes beyond matters related to the hiring and discharging of older workers and would affect the terms, conditions and privileges of their employment. As presently written the legisla- lation could be disruptive of traditional and legitimate underwriting practices in accident and health insurance, life insurance, and welfare and pension plans. Specifically, we suggest that the legislation be amended to make it clear that it would not affect the establishment or operation of the terms or conditions of any bona fide retirement, pension, employee benefit or insurance plan. This would be accomplished by substituting for Section 4(f) (2) as introduced, the following language: "To observe the terms of a bona fide seniority system or any bona fide em- ployee benefit plan such as retirement, pension. or insurance plan, which is not a subterfuge to evade the purpose of this Act, except that no such employee bemie- fit plan shall excuse the failure to hire any individual or We understand that such an amendment to companion bill, S. 830, has been approved by the Labor Subcommittee of the Senate. Similar exemptions have been adopted in most of the states which have laws prohibiting discrimination in employment on the basis of age. A summary of these statutory provisions is attached for your information. The age of employees is a necessary and important factor in the design and underwriting of all insurance and pension plans. The age at which a worker enters a pension plan affects the cost of providing a given pension benefit because it governs the duration of time over which contributions, including interest, can be accumulated to fund his pension. The age distribution of the covered employ- ees also governs the premium i'ate of group life insurance just as it does with imidividual life insurance. In accident and health insurance the age-related cost factors are less substan- tial but nevertheless real. Demonstrable increases in morbidity inherent with advancing age are partially, but not fully, offset by decreasing maternity bene- fit costs. A slower rate of recuperation for older individuals also tends to in- crease costs. These inherent age-related factors in employee benefit plans, have, over the years, led to a variety of practices designed to produced equitable treatment among the various employees and to help stabilize costs whether paid by the em- ployer or employee. In pension plans, contributions by older employees may be increased for those hired after a certain age; normal retirement age may vary with age of entry. Similarly, for employee life insurance plans, benefits are gen- erally reduced after a particular age. Although this is usually related to the normal retirement age it can occur prior to age 65. In group life insurance plans the waiver-of-premium provision for disabled employees is usually effective only for disabilities occurring prior to age 60. In the accident and health insurance field there are various age-related terms and conditions. For example, since the advent of Medicare, medical and hospital coverage under an employee benefit plan is generally adjusted to the Medicare benefits to which an employee and his spouse become entitled. In brief, virtually all employee benefit plans involve numerous age-related provisions. These provisions vary greatly dependent upon many factors includ- ing: the benefits provided, whether the plan is contributory or entirely financed by the employer, whether the plan is negotiated with a union or unilaterally developed by the employer, w-hether the plan or portions of it are insured or uninsured, the age structure of the group and the nature of the employment. These differentiations related to age are accepted practices and procedures. If enacted without appropriate exemptions, the bills under consideration could deter the establishment or continuance of some employee benefit plans due to the uncertainty as to which age-related provisions could be held to be discrimina- tory. Or alternatively, since age-related differences can be eliminated in either of tw-o ways, cost pressures might lead to less liberal provisions for all. These problems would be particularly troublesome to the small firm. More- over, the small firm traditionally lacks the expertise to rearrange its fringe bene- fits so as to accommodate a new set of government requirements and would there- fore seek to avoid the problems by not employing the older workers. In summary, we believe it is extremely important that employers and labor organizations be allowed to continue to make differentiations based on ag'~ in the broad spectrum of employee benefit programs. Without an exemption for pen- sions and insurance programs, the proposed legislation will tend to be self-defeat- ing and additionally will be disruptive of the fringe benefit programs which are becoming increasingly important each year to the maintenance of income for PAGENO="0506" 500 AGE DISCRIMINATION IN EMPLOYMENT disabled and retired employees and their dependents and survivors. We urge you to consider the possible undesirable effects that could flow from taking such a step. As always, our Associations stand ready to assist the Committee or its staff with further information or such other assistance as may be needed. TWENTY-FryE JUMSDI(YrIONS HAVE STATUTES PROHIBITING DIScRIMINATIoN IN EMPLOYMENT BECAUSE OF AGE A The New York law (~ 296, Executive Law) contains language specifically exempting bona fide pension policies or systems and the varying of insurance coverage as follows: "But nothing contained in this subdivision or in subdivision one of this section shall be construed to prevent the termination of the employment of any person who is physically unable to perform his duties or to affect the retirement policy or system of any employer where such policy or system is not merely a subter- fuge to evade the purposes of said subdivisions; nor shall anything in said sub- divisions be deemed to preclude the varying of insurance coverages according to an employee's age." The statutes of the following fourteen (14) states contain exemption language similar to that of the New York statute: California § 2072, Unemployment Ins. Code Connecticut § 31-126 Delaware Title 19, § 712 Hawaii § 90A-8 Idaho § 44-1602 Maine Title 26, § 852 Maryland Art. 100, § 79 Montana HJR 12, Laws 1961 Nebraska § 48-1003 New Jersey § 18:25-2.1 North Dakota § 34-01-17 Pennsylvania Title 43, § 955, Purdon's Stats. Washington § 49.44.090 Wisconsin § 111.32 (5) (c) B The statutes of the following three (3) states contain a provision exempting pension or retirement plans: Indiana § 40-2327, Burns' Stats. Louisiana *~ 23:893 Rhode Island § 28-6-5 C The following six (6) jurisdictions have enacted age discrimination statutes with no exemption for pensions or insurance: Alaska § 18.80.220 Colorado § 80-11-46 Massachusetts Chapter 151, B, §4 Ohio § 4101.17 Oregon § 6.59.024 Puerto Rico §~ 146-152, Oh. 7, Part I, Title 29 D Texas has enacted such a statute applicable to public emp3oyees only. (See attachment for texts of pertinent provisions.) PAGENO="0507" AGE DISCRIMINATION IN EMPLOYMENT 501 CALIFoRNIA UNEMPLOYMENT INS. CODE, ~ 2072 § 2072. Prohibited acts; rejection or termination of employment; physical and medical examinations; promotions It is unlawful for an employer to refuse to hire or employ; or to discharge, dis- miss, reduce, suspend, or demote any individual between the ages of 40 and 64 solely on the ground of age, except in cases where the law compels or provides for such action. This section shall not be construed to make unlawful the rejection or termination of employment where the individual applicant or employee failed to meet bona fide requirements for the job or position sought or held, or to affect bonn fide retirement or pension programs; nor shall this section preclude such physical and medical examinations of applicants and employees as an employer may make or have made to determine fitness for the job or position sought or held. Promotions within the existing staff, hiring or promotion on the basis of experi ence and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities and trade schools shall not, in and of themselves, constitute a violation of this chapter. This section shall not limit the right of an employer, employment agency, or labor union to select or refer the better qualified person from among all applicants for a job. The burden of proving a violation of this section shall be upon the person or persons claiming that the violation occurred. Added Stats. 1961, c. 1623, p. 3518, § 1.) CONNECTICUT GENERAL STATUTES, § 31-126 CHAPTER 563, FAIn EMPLOYMENT PRACTICES Sec. 31-126. Unfair employment practices. It shall be an unfair employment practice (a) for an employer, by himself or his agent, except in the case of a bonn fide occupational qualification or need, because of race, color, religious creed, age, national origin or ancestry of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against him in compensation or in terms, conditions or privileges of employment; (b) for any employment agency, except in the case of a bona fide occupational qualification or need, to fail or refuse to classify properly or refer for employ- ment, or otherwise to discriminate against, any individual because of his race, color, religious creed, age, national origin or ancestry; (c) for a labor organiza- tion, because of `the race, color, religious creed, age, national origin or ancestry of any individual to exclude from full membership rights or to expel from its membership such individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer, unless such action is based on a bonn fide occupational qualification; (d) for any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any unfair employment practice or because he has filed a complaint or testified or assisted in any proceeding under section 31-427; (e) for any person, whether an employer o~ an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts herein declared to be. unfair employment practices or to at- tempt to do so; (f) for any employer, employment agency, labor organization or person, except in the case of a hona fide occupational qualification or - need, to advertise employment opportunities in such a manner as to restrict such employment so as to discriminate against individuals because of their race, color, religious creed, age, national origin or ancestry. The provisions of this section as to age shall not apply to (1) `termination of employment where the employee is thereupon entitled to benefits under the terms or conditions of any bona fide retirement or pension plan or collective bargaining agreement between the employer and a bona fide labor organization, (2) operation of the terms or conditions of any bona fide retirement or pension plan, (3) operation of the terms or conditions of any bona fide group or employee insurance plan or (4) operation of any bona fide apprenticeship system or plan. (1963, P.A. 261.) PAGENO="0508" 502 AGE DISCRIMINATION IN EMPLOYMENT DELAWARE CODE, TImE 19, §~ 710, 712 § 710. Unlawful discriminatory practices It shall be unlawful employment practice or unlawful discrimination, as the case may be, (a) for an employer or employment agency to refuse to hire, employ or license, or to bar or discharge from employment, any individual because of his race, creed, color or national origin, or because such individual is between 45 and 6.3 years of age; (b) for an employer or employment agency to discriminate against any indi- vidual in compensation or in the terms. conditions or privileges of employment because of race, creed, color or national origin, or because such individual is betw-een 45 and 65 years of age; (c) for any employer or employment agency to print, circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or make any inquiry in connection with prospective employment Which expresses directly or indirectly any limitation, specification or discrimination, unless based on a bona fide occupational qualifi- cation; (d) for any labor organization to exclude or expel from its membership any person or to discriminate in any way against any of its members, employers or employees because of race, creed, color or national origin, or because any such person, member, employer or employee is between the ages of 45 and 65 years; (e) for any employer, labor organization or employment agency to discharge, expel, penalize or otherwise discriminate against any person because he has opposed any practice forbidden by this subchapter or because he has filed a complaint, testified or assisted in any proceeding respecting the employment practices and discrimination prohibited under this subchapter; (f) for any person, whether an employer, employee or not, to aid, abet, incite, compel or coerce the doing of any of the practices forbidden by the act, or to attempt to do so. Added 52 Del.Laws. Oh. 337, § 1, eff. July 9, 1960. § 712. Preservation of employment rights, practices and benefits Nothing contained in this subchapter shall be construed to conflict with the laws relating to child and female labor, nor to prohibit the establishment and maintenance of bona fide occupational qualifications, nor to prevent the termina- tion or change of the employment of any person who is unable to perform his duties, nor to interfere With the operation of the terms or conditions of any bona fide retirement, pension, employee benefit or insurance plan. Added 52 Del.Laws, Ch. 337, §3, eff. July 9, 1960. HAWAII 1965 SUPPLEMENT, §.~ OOA-1-90A-A--9 CHAPTER 90A, EMPLOYMENT PRACTICES {PART I. DISCRIMINATORY PRACTICES] [~ 90A-1.] Discriminatory practices made unlawful; offenses defined. It shall be unlawful employment practice or unlawful discrimination: (a) For an employer to refuse to hire or employ or to bar or discharge from employment, any individual because of his race, sex, age, religion, color or an- cestry, provided that an employer may refuse to hire an individual for good cause relating to the ability of the individual to perform the work in question; (b) For an employer to discriminate against any individual in compensation or in the terms, conditions or privileges of employment because of race, sex, age, religion, color or ancestry; (c) For any employer or employment agency to print, circulate or cause to be printed or circulated any statement, advertisement or publication or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses, directly or indirectly, any limita- tion, specification or discrimination as to race, sex, age, religion, color or ancestry, unless based on a bona fide occupational qualification; (d) For any labor organization to exclude or expel from its membership any person or to discriminate in any way against any of its members, employer or employees because of race, sex, age, religion, color or ancestry; PAGENO="0509" AGE DISCRIMINATION IN EMPLOYMENT 503 (e) For any employer, labor organization or employment agency to discharge. expel, or otherwise discriminate against any person because he has opposed any practice forbidden by this part or because he has filed a complaint, testified or assisted in any proceeding respecting the employment practices and discrimina- tion prohibited under this part; (f) For any person whether an employer, employee or not, to aid, abet, incite, compel or coerce the doing of any of the practices forbidden by this part, or to attempt to do so. [L. 1963, c. 180, s. 1.] [~ 90A-1.5.] Definitions. As used herein: (a) "Person" means one or more individuals, and includes partnerships, associations or corporations, legal representatives, trustees, trustees in bank- ruptcy, or receivers. (b) "Employment agency" means any person undertaking to procure em- ployees or opportunities to work. (c) "Labor organization" means any organization which exists and is con- stituted for the purpose, in whole or or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employ- ment, or of other mutual aid or protection. (d) "Employer" means any person having one or more persons in his em- ployment, and includes any person acting as an agent of an employer, directly or indirectly. (e) "Employment" means any service performed by an individual for another person under any contract of hire, express or implied, oral or written, whether lawfully or unlawfully entered into. [L. 1964, c. 44, s. 2a'.] [~ 90A-2.] Enforcement jurisdiction; power of department to prevent unlaw- ful discrimination. The state department of labor and industrial relations, here- inafter referred to as "department", shall have jurisdiction ov~er the subject of employment practices and discrimination made unlawful by this part. When it shall appear to it ~that an unlawful employment practice or discrimination may have been committed, the department shall make a prompt investigation in connection therewith. If it is determined after such *inv'estigation that further action is warranted, the department shall immediately endeavor to eliminate the unlawful employment practice or discrimination complained of by conference, conciliation and persuasion. [L. 1963, c. 180, s. 2.] [~ 90A-3.] Complaint against unlawful discrimination. Any person claiming to be aggrieved by an alleged unlawful employment practice or discrimination may file `with the department a verified complaint in writing which shall state the name and address of the person, employer, labor organization or employment agency alleged to have committed the unlawful employment practice or dis- crimination complained of and which shall set forth th~ particulars thereof and contain such other information as may be required by the department. The state attorney general may, in like manner, make, sign, and file such complaint. No complaint shall be filed after the expiration of ninety days after the alleged act of unlawful employment practice or discrimination. [L. 1963, c. 180, s. 3.] [~ 90-4.] Proceeding on complaint. After the filing of any complaint, an inves- tigation shall be made and an attempt to eliminate such practice or discrimina- tion shall be made as provided in section {90A-2] unless such attempt has previously been made. In case of failure to eliminate such practice or discrimination, or in advance thereof if in the judgment of the department circumstances warrant, a written accusation, together with a copy of such complaint, as the same may have been amended, shall be issued and served requiring the person, employer, labor organization or employment agency named in `such accusation, hereinafter referred to as ~~respondent~~, to answer the charges. of such accusation at a bearing. [L. 1963, c. 180, s. 4; a.rn. L. 1964, c. 44, s. 2b] L. 1964 substituted "complaint" for "accusation" in first par. [~ 90A-5.] Same: hearings under administrative procedure act. Hearings held nuder the provisions of this part shall be conducted in accordance with the Hawaii administrative procedure act, chapter 60. [L. 1963, c. 180, a. 5; am. L. 1964, c. 44, s. 2c.] [~ 90A-6.] Same: findings and orders thereon; requirement that order show rights of appeal. If the department finds that a respondent has engaged in any unlawful employment practice or discrimination as defined in this part, the department shall state its findings of fact and shall issue and cause to be served on such respondent an order .requiring such respondent to cease and desist from such unlawful employment practice or discrimination and to take such affirmative PAGENO="0510" 504 AGE DISCRIMINATION IN EMPLOYMENT action, including (but not limited to) hiring, reinstatement or upgrading of employees, with or without back pay, or restoration to membership in any respondent labor organization, as, in the judgment of the department, will effectuate the purpose of this part, and including a requirement for report of the maimer of complianc~?. If the department finds that a respondent has not engaged in any such unlawful employment practice or discrimination, the department shall state its findings of fact and shall issue and cause to be served on the complainant an order dismissing the accusation as to such respondent. A copy of its order shall be delivered in all cases to the attorney general, and such other public officers as the department deems proper. Any order issued by the department shall have printed on its face references to the provisions of the Hawaii administrative procedure act which prescribe the rights of appeal to any party to the proceeding to whose position the order is adverse. [L. 1963, e. 180, s. 6; am. L. 1964, c. 44,s. 2c.] L. 1964 substituted "act" for "part". [~ 90A-7.] Rules and regulations. The department shall make such rules and regulations, not inconsistent with this part as in the judgment of the department seem appropriate for the carrying out of the provisions of this part and for the efficient administration thereof. [L. 1963, c. 180, s. 7.] [~ 90A-8.] Exceptions. Nothing contained in this part shall be deemed to: (a) repeal or affect any law or ordinance or government rule or regulation having the force and effect of law which prohibits, restricts or controls the employment of minors; (b) prohibit or prevent the establishment and maintenance of bona fide occu- pations qualifications; (c) prohibit or prevent the termination of or change the employment of any person who is unable to perform his duties; (d) affect the operation of the terms or conditions of any bona fide retirement, pension, employee benefit or insurance plan; (e) prohibit or prevent any religious or denominational institution or orga- nization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, from giving preferance to persons of the same religion or denomi- nation or from making such selection as is calculated by such organization to promote the religious principles for which it is established or maintained; (f) conflict with or affect the application of security regulations in employ- ment established by the United States or the State of Hawaii. [L. 1963, c. 180, s. 8; am. L. 1964, c. 44, s. 2d.] L. 1964 amended section generally. [~ 90A.-9.] Penalties. Whoever shall willfully resist, prevent, impede or inter- fere with the department or any of its agents or representatives in the perform- ance of duties pursuant to this part, or who shall in any manner willfully violate an order of the department, shall be fined not more than $200 for the first offense and for the second and any subsequent offense, shall be fined not more than $500, or imprisoned for not more than ninety days, or both. l~L. 1963, c. 180, s. 9.] IDAHO CODE, § 44-1602 44-1602. Unlawful employment practice_Exceptions_EmPloYee over 60-Age discrimination in employment prohibited.-It shall be an unlawful employment practice, except where based upon a bona fide occupational qualification, or retirement or pension plan, or upon applicable security regulations established by the United States or the state of Idaho, and execpt where the employee is 60 years of age or older, for any employer because of the age of any individual to refuse to hire or employ, Or to bar or to discharge from employment such individ- ual, or to otherwise discriminate against such individual with respect to compen- sation, hire, tenure, terms, conditions, or privileges of employment, if the individual is the best able and most competent to perform the services required. [1965, ch. 154, § 2, p. 299.] _______ MAINE REvIsED STATtJTES, § 852 § 852. Unlawful employment practices It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or except where based upon applicable security reg- PAGENO="0511" AGE DISCRIMINATION IN EMPLOYMENT 505 ulations established by the United States or the State of Maine, for any employer because of the race, color, religious creed, ancestry, age or national origin of any individual to refuse to hire or employ, or to bar or to discharge from em- ployment such individuals, or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able and most competent to perform the services required. This section shall not apply to: 1. Termination. Termination of employment because of the terms or condi- tions of any bona fide retirement or pension plan; 2. Retirement plan. Operation of the terms or conditions of any bona fide retirement or pension plan which have the effect of a minimum service re- quirement; 3. Insurance plan. Operation of the terms or conditions of any bone fide group or employee insurance plan. MARYLAND 1964 CUMULATIVE SUPPLEMENT, ART. 100, § § 78-79 DISCRIMINATION § 78. Discrimination because of age (a) It is harmful employment practice: (b)~ For an employer, because of the age of any person, to refuse to hire or employ or to bar, or discharge the person from employment, or to discriminate against the person in compensation or in terms, conditions or privileges of em- ployment, because of his age, unless based upon a bona fide occupational quali- fication. (c) For an employer or employment agency to print or circulate, or cause to be printed or circulated, any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which directly or indirectly, expresses any limi- tation, specification, or discrimination as to age, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification. (1964, ch. 186.) § 79. Definitions (a) For the purposes of this subtitle, (b) The term "employer" does not include a club exclusively social, or a fraternal, charitable, educational or religious association or corporation, if the club, association or corporation is not organized for private profit or any person, company or corporation engaged in interstate transportation whose employment practices are regulated by federal statute or regulation. (c) The term "employment agency" includes any person, firm or corporation undertaking to procure employees, or opportunities to work. (d) The term "age" applies as to any person who is forty years of age or over and not more than sixty-five years of age. However, the use of the term "age" in this subtitle is not (1) to prevent the termination of the employment of any person who is physically unable to perform his duties, or (2) to affect the re- tirement policy or system of any employer if such policy or system is not merely a subterfuge to evade the purposes of this subtitle, or (3) to preclude the vary- ing of insurance coverages according to an employee's age. (1964, ch. 186.) MONTANA H. 3. R. 12, LAWS 1961 Whereas, the legislature of the State of Montana finds that the practice of discriminating in employment against properly qualified persons because of their age is contrary to American principles of liberty and equality of oppor- tunity, is incompatible with the constitution, deprives the State of Montana of the fullest utilization of its capacities for production, and endangers the general welfare: and Whereas, hiring bias generally against workers over forty (40) years of age deprives the State of Montana of its most important resource of experienced and skilled employees, adds to the number of persons receiving public assistance, tosses away our investment in trained, able people, and deprives older people of the dignity and status of self-support; and PAGENO="0512" 506 AGE DISCRIMINATION IN EMPLOYMENT Whereas, in the colossal struggle with communism, American cannot afford to arbitrarily diminish its reservoir of skills and knowledge, and to waste it may be fatal to freedom: Now, therefore, be it Resolved, That the thirty-seventh legislative assembly of the State of Montana hereby declares it to be against the public policy of the State of Montana, and an unfair employment practice, for an employer, by himself or his agent, except in the cage of a bona fide occupational qualification or need, because an individual is between the ages of forty (40) and sixty-five (65) years, to arbitrarily refuse to hire or employ, or to bar or to discharge from employment such individual or to discriminate against him in compensation or in terms, conditions or privileges of employment, or to fail or refuse to classify him properly or to refer him for employment, or to advertise employment opportunities in such a manner as to restrict such employment so as to discriminate against such individual; however, be it further Resolved, That nothing herein shall be construed to apply to employees or prospective employees who are physically or mentally unable, or otherwise in- capacitated, to perform the duties of such employment, or to affect the retire- ment policy or system of any employer where such policy or system is not merely a subterfuge to evade the purposes of this resolution, nor shall anything in this resolution to be deemed to preclude the varying of insurance coverages according to an employee's age. NEBRASKA REVISED STATUTES, §~ 48-1002-48-1006 48-1002. Unjust discrimination in employment; act; definitions. As used in sections 48-1001 to 48-1006, unless the context otherwise requires: (1) Person shall include one or more individuals, partnerships, associations or corporations; (2) Employer shall mean a person in this state having in his employ one or more individuals, and any person acting in the interest of an employer, directly or indirectly; and (3) Labor organization shall mean any organization of employees which exists for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms, or conditions of employment, or for other mutual aid or protection in connection with employment. 48-1003. Unjust discrimination in employment; construction of act; practices not prevented or precluded. The provisions of sections 48-1001 to 48-1006 shall not be construed to prevent the termination of the employment of any person who is physically unable to perform his duties or to affect the retirement policy or system of any employer where such policy or system is not merely a subter- fuge to evade the purposes of sections 48-1001 to 48-1006; nor shall the provi- sions of sections 48-1001 to 48-1006 be deemed to preclude the varying of in- surance coverages according to an employee's age. 48-1004. Unjust discrimination in employment; unlawful employment prac- tices; enumerated. (1) It shall be an unlawful employment practice for an employer: (a) To refuse to hire, to discharge, or otherwise to discriminate against any individual with respect to his terms, conditions, or privileges of employment, otherwise lawful, because of such individual's age, when the reasonable demands of the position do not require such an age distinction; or (b) To utilize in the hiring or recruitment of individuals for employment otherwise lawful, any employment agency, placement service, training school or center, labor organization, or any other source which so discriminates against such individuals, because of their age. (2) It shall be an unlawful employment practice for any labor organization to so discriminate against any individual or to limit, segregate, or classify its membership in any way which would deprive or tend to deprive such individual of otherwise lawful employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, or would affect adversely his wages, hours, or em- ployment. (3) It shall be an unlawful employment practice for any employer or labor organization to discharge, expel or otherwise discriminate against any person, because he opposed any unlawful employment practice specified in this act or PAGENO="0513" AGE DISCRIMINATION IN EMPLOYMENT 507 has filed a charge, testified, participated, or assisted in any proceeding under sections 48-1001 to 48-1006. 48-1005. Unjust discrimination in employment; violations of act; penalty. Any person who violates any provision of sections 48-1001 to 48-1006 shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined in a sum not to exceed ten dollars. 48-1006. Act Prohibiting Unjust Discrimination in Employment Because of Age; citation. Sections 48-1001 and 48-1006 may be cited as the Act Prohibiting* Unjust Discrimination in Employment Because of Age. NEw JERSEY REvISED STATUTES, § 18:25-2.1 18:25-2.1 General construction Nothing contained in this act or in the act to which this is a supplement shall be construed to require or authorize any act prohibited by law, nor to conflict with the provisions of chapter 2 (child and female labor) of Title 34 (Labor) of the Revised Statutes, nor to require the employment of any person under the age of 21, nor to prohibit the establishment and maintenance of bona fide occupational qualifications or the establishment and maintenance of apprenticeship requirements based upon a reasonable minimum age nor to prevent the termination or change of the employment of any person who in the opinion of his employer, reasonably arrived at, is unable to perform adequately his duties, nor to preclude discrimination among individuals on the basis of coin- petence, performance, conduct or any other reasonable standard, nor to interfere with the operation of the terms or conditions and administration of any bona fide retirement, pension, employee benefit or insurance plan or program. L.1962, c. 37, § 8, supplementing chapter 169, Title 18. NEW YORK EXECUTIVE LAw, § 296 § 296. Unlawful discriminatory practices 1. It shall be an unlawful discriminatory practice: (a) For an employer, because of the age, race, creed, color or national origin or sex of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. (b) For an employment agency to discriminate against any individual be- cause of his age, race, creed, color or national origin, in receiving, classifying, disposing or otherwise acting upon applications for its services or in referring an applicant or applicants to an employer or employers. (c) For a labor organization, because of the age, race, creed, color or national origin or sex of any individual, to exclude or to expel from its membership such individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer. (d) For any employer or employment agency to print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connec- tion with prospective employment, which expresses, directly or indirectly, any limitation, specification or discrimination as to age, race, creed, color or national origin or sex, or any intent to make any such limitation, specification or dis- crimination, unless based upon a bona fide occupational qualification. (e) For any employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this article or because he has filed a complaint, testified or assisted in any proceeding under this article. 1-a. It shall be an unlawful discriminatory practice for an employer, labor organization, employment agency or any joint labor-management committee controlling apprentice training programs: (a) To select persons for an apprentice training program registered with the state of New York on any basis other than their qualifications, as determined by objective criteria which permit review; (b) To deny to or withhold from any person because of his race, creed, color or national origin or sex the right to be admitted to or participate in a guidance program, an apprenticeship training program, on-the-job training program, or other occupational training or retraining program; S5-370-67-----33 PAGENO="0514" 508 AGE DISCRIMINATION IN EMPLOYMENT (c) To discriminate against any person in his pursuit of such programs or to discriminate against such a person in the terms, conditions or privileges of such programs because of race, creed, color or national origin or sex; (d) To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for such pro- grams or to make any inquiry in connection with such program which expresses, directly or indirectly, any limitation, specification or discrimination as to race, creed, color or national origin or sex, or any intent to make any such limitation. specification or discrimination, unless based on a bona fide occupational qualification. 2. It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the race, creed, color or national origin of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof, or, directly or indirectly, to publish, circulate, issue, dis- play, post or mail any written or printed communication, notice or advertise- ment, to the effect that any of the accommodations, advantages, facilities and privileges of any such place shall be refused, withheld from or denied to any person on account of race, creed, color or national origill, or that the patronage or custom thereat Of any person belonging to or purporting to be of any par- ticular race, creed, color or national origin is unwelcome, objectionable or not acceptable, desired or solicited. 3. It shall be an unlawful discriminatory practice for the owner, lessee, sub- lessee, assignee, or managing agent of publicly-assisted housing accommodations or other person having the right of ownership or possession of or the right to rent or lease such accommodations: (a) To refuse to rent or lease or otherwise to deny to or withhold from any person or group of persons such botising accommodations because of the race, creed, color or national origin of such person or persons. (b) To discriminate against any person because of his race, creed, color or national origin in the terms, conditions or privileges of any publicly-assisted housing accommodations or in the furnishing of facilities or services in con- nection therewith. (c) To cause to be made any written or oral inquiry or record concerning the race, creed, color or national origin of a person seeking to rent or lease any publicly-assisted housing accommodation. (d) Nothing herein contained shall be construed to bar any religions or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, from limiting admission to or giving preference to persons of the same religion or denomination or from making such selection as is calculated by such organization to promote the re- ligious principles for which it is established or maintained. 3-a. it shall be an unlawful discriminatory practice: (a) For an employer or licensing agency, because an individual is between the ages of forty and sixty-live, to refuse to hire or employ or license or to bar or to terminate from employment such individual, or to discriminate against such individual in promotion, compensation or in terms, conditions or privileges of employment. (b) For any employer, licensing agency or employment agency to print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification or discrimination respecting indi- viduals between the ages of forty and sixty-five, or any intent to make any such limitation, specification or discrimination. (c) For any employer, licensing agency or employment agency to discharge or otherwise discriminate against any person because he has opposed any practices forbidden under this article or because he has filed a complaint, testi- fied or assisted in any proceeding under this article. But nothing contained in this subdivision or in subdivision one of this sec- tion shall be construed to prevent the terminitti9n of the employment of any person who is physically unable to perform his duties or to affect the retire- ment policy or system of any employer where such policy or system is not merely a subterfuge to evade the purposes of said subdivisions; nor shall anything in said subdivisions be deemed to preclude the varying of insurance coverages ac- cording to an employee's age. PAGENO="0515" AGE DISCRIMINATION IN EMPLOYMENT 5O9~ NORTH DAKOTA CENTURY CODE, § 34-01-17 34-01-1.7. Unlawful to discriminate because of age.-No person. persons, firm,. association or corporation, carrying on or conducting within this state, any business requiring the employment of labor, shall refuse to hire, employ, or license, or bar or discharge from employment, any individual between the ages; of forty and sixty-five years, solely and only upon `the gr.ound of age; when the reasonable demands of the position do not require such an age distinction; and, provided that such individual is well versed in the line of business carried on by such person, persons, firm, association or corporation, and is qualified physically, mentally and `by training and experience to satisfactorily perform the labor assigned `to him or for which he applies. Nothing herein shall affect the retirement policy or sy.stem of any employer where~ such policy or system is n.ot merely a subterfuge to evade the purposes of that section. Any person or corporation who violates any of the provisions of this section shall be guilty of a misdemeanor, and shall be punished by a fine of not to exceed twenty-five dollars or by imprisonment in the county jail for not to exceed one day or by both such fine and imprisonment. PURDON'S PENNSYLVANIA STATUTES, § 95~, Timi~ 43 § 955. Unlawful discriminatory practices It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, or except where bas.ed upon applicable security regula- tion.s established by the United States or the Commonwealth of Pennsylvania: (a) For any employer because of the race, color, religious creed, ancestry, age or national origin of any individual to refuse to hire or employ, or to bar or to discharge from employment such individual, or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able and most competent to perform the services required. The provision of this paragraph shall not apply, to (1) termination of employment because of the terms or conditions of any bona fide retirement or pension plan, (2) operation of the terms or conditions of any bona fide retirement or pension plan wh.ich have the effect of a minimum service requirement, (3) operation of the terms or conditions of any bona fide group or employe insurance plan. (b) For any employer, employment agency or labor organization, prior to the employment or admission to membership, to (1) Elicit any information or make or keep a record of or use any form of application or application blank containing questions or entries concerning the race, color, religious creed, ancestry or national origin of any applicant for em- ployment or membership. (2) Print or publish or cause to be printed or published any notice or advertise- ment relating to employment or membership indicating any preference, limita- tion, specification or discrimination based upon race, color, religious creed, ances- try, age or national origin. (3) Deny or limit, through a quota system, employment or membership because of race, color, religious creed, ancestry, age, national origin or place of birth. (4) Substantially confine or limit recruitment or hiring of individuals with intent to circumvent the spirit and purpose of this act, to any employment agency, employment service, labor organization, training school or training center or any other employe-referring source which services individuals who are predominantly of the same race, color, religious creed, ancestry, age or national origin. (c) For any labor organization because of the race, color, religious, creed, an- cestry, age or national origin of any individual to deny full and equal membership rights to any individual or otherwise to discriminate `against such individuals with respect to hire, tenure, terms, conditions or privileges of employment or any *other matter, directly or indirectly, related to employment. (d) For any employer, employment agency or labor organization to discriminate in any manner aga.inst any individual because such individual has opposed any practice forbidden by this act, or because such individual h.as made a charge, testified or .assisted, in any manner, in any investigation, proceeding or hearing under this act. (e) For any person, whether or not an employer, employment agency, labor organization or employe, to aid, abet, incite, compel or coerce the doing of any act declared by this section to be an unlawful discriminatory practice, or to obstruct PAGENO="0516" 510 AGE DISCRIMINATION IN EMPLOYMENT or prevent any person from complying with the provisions of this act or any order issued thereunder, or to attempt, directly or indirectly, to commit any act declared by this section to be unlawful discriminatory practice. (f) For any employment agency to fail or refuse to classify properly, refer for employment or otherwise to discriminate against any individual because of his race, color, religious creed, ancestry, age or national origin. (g) For any individual seeking employment to publish or cause to be published any advertisement which specifies or in any manner expresses his race, color, religious creed, ancestry, age or national origin, or in any manner expresses a limitation or preference as to the race, color, religious creed, ancestry, age or national origin of any prospective employer. WASHINGTON REVISED CODE, § 49.44.090 CHAPTER 49.44, VIOLATION5-PROHIBITED PRACTICES 49.44.090 Unfair practices in employment because of age of employee or appli- cant-Exceptions. It shall be an unfair practice: (1) For an employer or licensing agency, because an individual is between the ages of forty and sixty-five, to refuse to hire or employ or license or to bar or to terminate from employment such individual, or to discriminate against such individual in promotion, compensation or in terms, conditions or privileges of employment: Provided, That employers or licensing agencies may establish reasonable minimum and/or maximum age limits with respect to candidates for positions of employment, which positions are of such a nature as to require extraordinary physical effort, endurance, condition or training, subject to the approval of the director of labor and industries through the division of industrial relations. (2) For any employer, licensing agency or employment agency to print or circulate or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses any limita- tion, specification or discrimination respecting individuals between the ages of forty and sixty-five: Provided, That nothing herein shall forbid a requirement of disclosure of birth date upon any form of application for employment or by the production of a birth certificate or other sufficient evidence of the applicant's true age. Nothing contained in this section or in ROW 49.60.180 as to age shall be construed to prevent the termination of the employment of any person who is physically unable to perform his duties or to affect the retirement policy or system of any employer where such policy or system is not merely a subterfuge to evade the purposes of this section; nor shall anything in this section or in ROW 49.60.180 be deemed to preclude the varying of insurance coverages accord- ing to an employee's age; nor shall this section be construed as applying to any state, county, or city law enforcement agencies, or as superseding any law fixing or authorizing the establishment of reasonable minimum or maximum age limits with respect to candidates for certain positions in public employment which are of such a nature as to require extraordinary physical effort, or which for other reasons warrant consideration of age factors. [1961 c 100 § 5.1 Element of age not to affect apprenticeship agreements: RCW 49.04-910. Unfair practices, discrimination because of age: RCW 49.60.180-49.60.200. WIscoNsIN STATUTES, §~ 111.31-111.32 STJBCHAPTER H. FAIR EMPLOYMENT 111.31 Declaration of policy (1) The practice of denying employment and other opportunities to, and dis- criminating against, properly qualified persons by reason of their age, race, creed, color, handicap, sex, national origin or ancestry, is likely to foment domestic strife and unrest, and substantially and adversely affect the general welfare of a state by depriving it of the fullest utilization of Its capacities for production. The denial by some employers and labor unions of employment opportunities to such PAGENO="0517" AGE DISCRIMINATION IN EMPLOYMENT 511 persons solely because of their age, race, creed, color, handicap, sex, national origin or `ancestry, and discrimination against them in employment, tends to deprive the victims of the earnings which are necessary to maintain a just and decent standard of living, thereby committing grave injury to them. (2) It is believed by many students of the problem that protection by law of the rights of all people to obtain gainful employment, and other privileges free from discrimination because of age, race, creed, color, handicap, sex, national origin or ancestry, would remove certain recognized sources of strife and unrest, and encourage the full utilization of the productive resoui~ces of the state to the benefit of the state, the family and to all the people of the state. (3) In the interpretation and application of this subchapter, `and otherwise, it is declared to be the public policy of the state to encourage and foster to the fullest extent practicable the employment of all properly qualified persons regardless of their age, race, creed, color, handicap, sex, national origin or ancestry. * * This subchapter shall be liberally construed for the accomplish- ment of this purpose. 111.32 Definitions (3) (a) The term "employer" shall not include * * * a social club, fraternal or religious association * * * not organized for private profit. (5) (a) * * * "Discrimination" means discrimination because of age, race, color, sex, creed, national origin or ancestry, by `an employer individually or in concert with others against any employe or any applicant for employment, in regard to his hire, tenure or term, condition or privilege of employment and by any labor organization ;agains~ any member or applicant for membership, and also includes discrimination on any of said grounds `in the fields of `housing, recreation, education, health and social welfare as related to a condition or privilege of employment. (b) It is discrimination because of age: 1. For an employer, labor organization, or persOn in the fields of housing, recreation, education, health and social welfare, or any licensing agency, because an individual is between the ages of 40 and 05, to refuse to hire, employ, admit or license, or to bar or `to terminate from employment such individual, or to discriminate against such individual in promotion, compensation or in terms, con- ditions or privileges of employment; 2. For any employer, licensing agency or employment agency to print or cir- culate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for eniployinent or to make any inquiry in connection with prospective employment, which implies or expresses any limitation, specification or discrimination respecting individuals between the ages of 40 and 65, or any intent to make such limitation, specification or discrimination; 3. For any employer, licensing agency or employyment agency to discharge or otherwise discriminate against any person because he has opposed any dis- criminatory practices under this section or because he has made a complaint, testified or assisted in any proceeding under this section. (c) Nothing in this~ subsection shall be construed to prevent termination of the employment of any person physically or otherwise unable to perform his duties, nor to affect any retirement policy or system of any employer where such policy or system is not a subterfuge to evade the purposes of this sub- section, nor to preclude the varying of insurance coverage according to an em- ployes' age; nor to prevent the exercise of an age distinction with respect to employment of persons in capacities in which the knowledge and experience to be gained might reasonably be expected to aid in the development of capabili- ties required for future advancement to supervisory, managerial, professional or executive positions. (5) (d) Bccception~s in se~ discrimination. The prohibition against discrimina- tion because of sex does not apply to the exclusive employment of one sex in positions where the nature of the work or working conditions provide valid reasons for hiring only men or women, or to a differential in pay between ernployes which is based in good faith on any factor other than sex. (5) (e) The prohibition against discrimination because of age shall not apply to hazardous occupations including, without limitation because of enumeration, law enforcement or fire fighting. (5) (f) The prohibition against discrimination because of handicap does not apply to failure of an employer to employ or to reta'in as an employe any person PAGENO="0518" 512 AGE DISCRIMINATION IN EMPLOYMENT who because of a handilcap is physically or otherwise unable to efficiently per- form, at the standards set by the employer, the duties required in that job. An employer's exclusion of a handicapped employe from life or disability insurance coverage, or reasonable restriction of such coverage, shall not constitute discrimination. ___________ BURNS' INDIANA STATUTES, §~ 40-2318--40-2328 40-2318. Age discriminatiofl_Defi11it1ofls.~'01~ the purpose of this act Il~ 40-2318----40-2327]: "discrimination" shall mean dismissal from employment of, or refusal to employ or rehire any person because of his age, if such person has attained the age of forty [40] years and has not attained the age of sixty-five [63] years: `person" shall mean and include an individual, partnership, corporation or association, and "employer" shall mean and include any person in this state employing one or more individuals, labor organizations, the state and all polItical subdivisions, boards. departments and commissions thereof, but does not include religious, charitable, fraternal, social, educational or sectarian corporations or associations not organized for private profit, other than labor organizations and nonsectarian corporations or organizations engaged in social service work. [Acts 1965, ch. 368, § 1, p. 1154.] 40-2319. Dismissal-Refusal to employ.-It is declared to be an unfair employ- ment practice and to be against public policy to dismiss from employment, or to refuse to employ or rehire, any person solely because of his age if such person has attained the age of forty [40] years and has not attained the age of sixty-five [65] years. [Acts 1965, ch. 368, § 2, p. 1154.] 40-2320. Discrimination by labor organizations.-It is hereby declared to be an unfair employment practice for any labor organization to deny full and equal membership rights to any applicant for membership or to fail or refuse to classify properly or refer for employment any member solely because of the age of such applicant or member if such person has attained the age of forty [40] years and has not attained the age of sixty-five [65] years. [Acts 1965, ch. 368, § 3. p. 1134.] 40-2321. Discriminatory contracts void.-Any provision in any contract, agree- ment or understanding entered into on or after October 1, 1965, which shall prevent or tend to prevent the employment of any person solely because of his age. who has attained the age of forty [40] years and has not attained the age of sixty-five [65] years shall be null and void. [Acts 1965, ch. 368, § 4, p. 1154.] 40-2322. Investigative powers of commissioner.-The commissioner of labor shall investigate all complaints of discrimination, and for such purpose the com- missioner shall have full power and authority: (1) to receive, investigate and pass upon charges of discrimination against any person employed within the state; and (2) to enter any place of business or employment within the state for the purpose of examination and making a transcript of records in any way apper- taming to or having a bearing upon the question of the age of any person so employed. [Acts 1965, ch. 368, § 5, p. 1154.] 40-2323. Employees' ~ ing.-Every person shall keep true and accurate records of the ages of all per- sons employed by him as reported by, each employee, and shall upon demand furnish to the commissioner of labor, or his authorized, representative, a true copy of any such record, verified upon oath. Such record shall be open to in- vestigation by the commissioner at any reasonable time. If on all the testimony taken. the commissioner of labor shall make a preliminary determination that the employer has engaged in or is engaging in unfair employment practices, the commissioner shall endeavor to eliminate such unfair employment practices by informal methods of conference, conciliation and persuasion. If voluntary compli- ance cannot be obtained, the commissioner of labor shall be empowered to issue a complaint stating the charges and giving not less than ten [10] days' notice of hearing before the commissioner of labor at a place therein fixed. Any com- plaint issued pursuant to this section must be so issued within four [4] months after the alleged unfair employment practices were committed. The respon- dent shall have the right to file an answer to such complaint and may appear at such hearing with or without counsel to present evidence and to examine and cross-examine witnesses. LTpon the completion of testimony at such hearing, if PAGENO="0519" AGE DISCRIMINATION IN EMPLOYMENT 513 determination is made that unfair practices were committed, the commissioner of labor shall state his findings of fact and, if satisfied therewith, may issue his finding that the employer has ceased to engage in unfair employment practices. [Acts 1965, ch. 368, § 6, p. 1154.] 40-2324. Written findings of fact by commissioner.-If the commissioner of labor shall find no probable cause exists to substantiate the charges, or, if upon all the exidence, he shall find that an employer has not engaged in unfair employment practices, the commissioner of labor shall state in writing his findings of fact and shall issue and cause to be served on the complainant an order dismissing the said complaint as to such employer. [Acts 1965, ch. 368, § 7, p. 1154.] 40-2325. Discharge for furnishing evidence unfair.-It shall be an unfair em- ployment practice for any employer to discharge an employee because he has furnished evidence in connection with a complaint under this act [~ 40-2318--- 40-2327]. [Acts 1965, ch. 368, § 8, p. 1154.] 40-2326. Proceedings not publicized-Facts published.-No publicity shall be given to any proceeding before the commissioner of labor, either by `the com- missioner of labor or any employee thereof, provided that the commissioner may publish the facts in the case of any complaint upon which a determination has been made. [Acts 1965, ch. 368, § 9, p. 1154.] 40-2327. Employees excepted.-These provisions shall not apply to a person employed in private domestic service or `service as a farm laborer nor to a person w-ho is qualified for benefits under the terms or conditions of an employer retire- ment or pension plan or system. [Acts 1965, ch. 368, § 10, p. 1154.] 40-2328. Effect of other laws-Certain rights unaffected.-Any law inconsist- ent with any provision hereof shall `not `apply. Nothing contained herein shall be deemed to repeal any of the provisions of any law of this state relating to dis- crimination because of age, race or color, religion, or country of ancestral origin. Nothing `herein `shall `be deemed to limit, restrict or affect the freedom of any employer in regard to (a) fixing compulsory retirement requirements for any class of employees at `an `age or ages less than sixty-five [65] years; (b) fixing eligibility requirements for participation in, or enjoyment by employees of, bene- fits under any annuity plan or pension or retirement plan on the basis that any employee may be excluded from eligibility therefor who, ~t the time he would otherwise `become eligible for such benefits, is older than the age fixed in such eligibility requirements or (c) keeping age' records for any such purposes. [Acts 1965, ch. 368, § 11, p. 1154.] LOUISIANA REVISED STATUTES, § 893, TITLE 23 § 893. Age limits for employment; fixing or by employers prohibited; penalty It is unlawful for any person employing labor in Louisiana, and having twenty- five or more employees, to adopt any rule fo,r the discharge of said employees and for the rejection of applications for employmen't of new employees upon any age limit under fifty years, except w'here the employer has adopted a system of old age pension for `the pensioning of employees `with periods `of `service no greater than thirty-five years and with pensiOn `allowances of no less than forty-five dollars per quarter. ~Thoever violates the provisions of this Section shall be fined no more than five hundred dollars or imprisoned for not more than ni'nety days, or both. RHODE ISLAND GENERAL LAWS, §~ 28-6-1--28-6-5 28-6-1. Age discrimination-Definition of terms.-For the purposes of § § 28-6-1 to 28-6-16, inclusive: "Discrimination," shall mean dismissal from empl'oyment of, or refusal to employ or rehire any person because of his age, if such person h'as attain'ed the age of forty-five (45) years and has not attained the age `of sixty-five (65) years, unless based upon a bona fide occupational qualification; "Person" shall mean and include an individual, partnership, corporation or an association, as the case may be; PAGENO="0520" 514 AGE DISCRIMINATION IN EMPLOYMENT "Employer" shall mean and include any person in this state employing one (1) or more individuals; labor organizations: the state; and all political sub- divisions, boards, departments and commissions thereof, but does not include a religious, charitable, fraternal, social, educational, or sectarian corporation or association not organized for private profit, other than labor organizations and nonsectarian corporations or organizations engaged in social service work; "Employment agency" shall mean and include any person undertaking to procure employees for opportunities to work. Words employing the masculine gender shall mean and include the femine gender, as the case may be. History of Section. P.L. 1956, ch. 3795, § 1; P.L. 1962, ch. 96, § 1. 28-6-2. Age discrimination by employers and/or employment agencies.- ( a) It is declared to be an unlawful employment practice and to be against public policy for an employer, by himself or by his agent, to dismiss from employment, or to refuse to employ or rehire any person because of his age if such person has attained the age of forty-five (45) years and has not attained the age of sixty- five (65) years, unless based upon a bona-fide occupational qualification; (b) It is declared to be an unlawful employment practice and against public policy, for any employment agency, except in the case of a bona-fide occupa- tional qualification, to fail or refuse to classify properly or to fail or refuse to refer for employment, or otherwise to discriminate against any individual be- cause of his age if such person has attained the age of forty-five (45) years and has not attained the age of sixty-five (65) years. (c) It is declared to be an unlawful employment practice and against public policy for any employer or employment agency to print or circulate, or cause to be printed or circulated, any statement, advertisement or publication, and to use any form or application for employment, or to make any inquiry in connection with employment, which expresses directly or indirectly, any intent to dismiss from employment, or to refuse to employ or rehire any person because of his age if such person has attained the age of forty-five (45) years and has not at- tained the age of sixty-five (65) years, unless based upon a bonn fide occupational qualification. 28-6-3. Age discrimination by labor organizations.-It is hereby declared to be an unlawful employment practice for any labor organization to deny full and equal membership rights to any applicant for membership or to fail or refuse to classify properly or refer for employment any member because of the age of such applicant or member if such person has attained the age of forty-five (45) and has not attained the age of sixty-five (65) unless based on a bona fide occu- pational qualification. History of Section. P.L. 1956, ch. 3795, § 3. 28-6-4. Discriminatory contracts void.-Any provision in any contract, agree- ment or understanding entered into on or after October 1, 1956, which shall pre- vent or tend to prevent the employment of any person because of his age who has attained the age of forty-five (45) years and has not attained the age of sixty- five (65) years shall be null and void, unless based on a bona fide occupational qualification. History of Section. P.L. 1956 ch. 3795, § 4. 28-6-5. Employment exempt.-The provisions of §~ 28-G--- to 28-6-16, inclusive, shall not apply to persons employed in private domestic service or service as a farm laborer, nor to a person who is qualified for benefits under the terms or conditions of an employer retirement or pension plan or system. ALASKA STATUTES § 18.S0.220 Sec. 18.80.220. Unlawful employment practices. It is unlawful for (1) an employer to refuse employment to a person, or to bar him from em- nloyment, or to discriminate against him in compensation or in a term. condi- tion. or privilege of employment because of hi~ race, religion, color or national origin, or because of his age when the reasonable demands of the position do not require age distinction; PAGENO="0521" AGE DISCRIMINATION IN EMPLOYMENT 515 (2) a labor organization, because of a person's age, race, religion, color or na- tional origin, to exclude or to expel him from its membership, or to discriminate in any way against one of its members, or an employer or an employee; (3) an employer or employment agency to print or circulate or cause to be printed or circulated a statement, advertisement, or publication, or to use a form of application for employment or to make an inquiry in connection with pros- pective employment, which expresses, directly or indirectly, a limitation, specifi- cation or discrimination as to age, race, creed, color or national origin, or an intent to make the limitation, unless based upon a bona fide occupational quali- fication; (4) an employer, labor organization or employment agency to discharge, expel or otherwise discriminate against a person because he has opposed any practices forbidden under §~ 200-280 of this chapter or because he has filed a complaint, testified or assisted in a proceeding under this chapter; or (5) an employer to discriminate in the payment of wages as between the sexes, or to employ a female in an occupation in this state at a salary or wage rate less than that paid to a male employee for work of comparable character or work in the same operation, business or type of work in the same locality. (§ 6 ch 117 SLA 1965) COLORADO STATUTES, § 80-41-16 80-11-16. Age of employee not ground for discharge.-No person, firm, asso- ciation or corporation, carrying on or conducting, within this state, any business requiring the employment of labor, shall discharge any individual between the ages of eighteen and sixty years, solely and only upon the ground of age; pro- vided that such individual is well versed in the `line of business carried on by such person, persons, firm, association or corporation, and is qualified physically, mentally and by training and experience, to satisfactorily perform and does satis- factorily perform the labor assigned to him, or for which he applies. MASSACHUSETTS GENERAL LAWS, CII. 151 B, § 4 § 4. Unlawful Employment Practices It shall be an unlawful employment practice: 1. For an employer, by himself or his agent, because of the race, color, religious creed, national origin, age, or ancestry of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to dis- crimninate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qual- ification. 2. For a labor organization, because of the race, color, religious creed, national origin, age, or ancestry of any individual to exclude from full membership rights or to expel from its membership such individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer, unless based upon a bona fide occupational qualification. 3. For any employer or employment agency to print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry or record in con- nection with employment, which expresses, directly or indirectly any limitation, specification or discrimination as to race, color, religious creed, national origin, age, or ancestry or any intent to make any such limitation, specification or dis- criminate in any way on the ground of race, color, religious creed, national origin, age, or ancestry, unless based upon a bona fide occupational quaTification. 3A. For any person engaged in the insurance or bonding business, or his agent. to make any inquiry or record of any person seeking a bond or surety bond conditioned upon the faithful performance of his duties or to use any form of application, in connection with the furnishing of such bond. which seeks infor- mation relative to the race, color, religious creed, national origin or ancestry of the person to be bonded. 4. For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under section five. PAGENO="0522" 516 AGE DISCRIMINATION IN EMPLOYMENT 5. For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so. Notwithstanding the foregoing provisions of this section, it shall not be an un- lawful employment practice for any person, employer, labor organization or employment agency to inquire of an applicant for employment or membership as to whether or not he or she is a veteran or a citizen. (1946, 368, § 4; 1947, 424; 1950, 697 §~ 6-8; 19.55, 274.) _______ OHIO REVISED CODE, § 4101.17 4101.17 Interview with, or discharge of, person in certain age group. No employer shall refuse opportunity of interview for employment of ap- 1)licants or discharge without just cause any employee between the ages of forty and sixty-five w-ho are physically able to perform the duties and otherwise meet the established requirements of the industry and laws pertaining to the relation- ship between employer and employee. (129 v 1803. Eff. 8-28-61) OREGON REVISED STATUTES, §~ 659.015-659.026 659.015 Declaration of policy against discrimination in employment because of age. It is declared to be the public policy of Oregon that available manpower should be utilh~ed to the fullest extent possible. To this end the abilities of an in- dividual, and not any arbitrary standards which discriminate against an in- dividual solely because of his age, should be the measure of the individual's fitness and qualification for employment. [1959 c.54T § 2 and 1959 c.6S9 § 2] 659.020 Declaration of policy against discrimination; opportunity to obtain employment without discrimination recognized as a civil right. (1) It is declared to be the public policy of Oregon that practices of discrimination against any of its inhabitants because of race, religion, color or national origin are a matter of state concern and that such discrimination threatens not only the rights and privileges of its inhabitants but menaces the institutions and foundation of a free demo- cratic State. (2) The opportunity to obtain employment w-ithout discrimination because of race, religion, color or national origin hereby is recognized as and declared to be a civil right. 659.022 Purpose of ORS 659.010 to 659.110. The purpose of ORS 659.010 to 659.110 is to encourage the fullest utilization of available manpower by removing arbitrary standards of race, religion, color, national origin or age as a barrier to employment of the inhabitants of this state; to insure human diginity of all people within this state. and protect their health, safety and morals from the con- sequences o~ intergroup hostility, tensions and practices of discrimination of any kind based on race, religion, color or national origin. To accomplish this purpose the Legislative Assembly intends by ORS 659.010 to 659.110 to provide: (1) A program of public ethication calculated to eliminate attitudes upon which practices of discrimination because of race, religion, color or national origin are based. (2) An adequate remedy for persons aggrieved by certain acts of discrimination because of race, religion, color or national origin or unreasonable acts of discrimination in employment based upon age. (3) An adequate administrative machinery for the orderly resolution of complaints of discrimination through a procedure involving investigation, con- ference, conciliation and persuasion; to encourage the use in* good faith of such machinery by all parties to a complaint of discrimination; and to dis- courage unilateral action which makes moot the outcome of final administrative or judicial determination on the merits of such a complaint. [1963 c. 622 2] 659.024 Unlawful employment practice for private employer to discriminate because of age. (1) It is an unlawful employment practice for an employer to refuse to hire or employ or to bar, discharge, dismiss, reduce, suspend or demote any individual because of his age if the individual is 25 years of age or older and under 65 years of age; but the selection of employees on the basis of relevant educational or experience requirements, or relevant physical require- PAGENO="0523" AGE DISCRIMINATION IN EMPLOYMENT 517 Inents, including but not limited to strength, dexterity, agility and endurance, is not an unlawful employment practice. (2) It is an unlawful employment practice for any employer or employment agency to print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment which expresses directly or indirectly any limitation, specification or discrimination as to age of any person who is 25 years of age or older and under 65 years of age, or any intent to make such limitation, specification or discrimination, unless based upon a bona fide occupational qualification. (3) "Employer," as used in this section, means any person who has six or more persons in his employ, but does not include the state, counties, cities, districts, authorities, public corporations and entities and their instrumentalities. (4) The provisions of this section apply to an apprentice under ORS chapter 660, but the selection of an apprentice on the basis of the ability to complete the required apprenticeship training and the industry average period of employment, thereafter before attaining the age of 65 years is not an unlawful employment practice. [1959 c. 547 § 3; 1963 c. 622 § 5; 1965 c. 575 § 1] 659.026 Unlawful employment practice for public employer to discriminate because of age. (1) It is an unlawful employment practice for a public employer or any person acting for a public employer to disqualify or discriminate against any individual in any civil service entrance, appointment or promotion exam- ination or rating, or to refuse to hire, employ or reemploy or to bar, discharge, dismiss, reduce, suspend or demote any individual because of his age if the individual is 25 years of age or older and under 65 years of age; but the com- pulsory retirement of employees required by law at an age under 65 years and the selection of employees on the absis of relevant educational or experience requirements or relevant physical requirements, including but not limited to, strength, dexterity, agility anti endurance, are not unlawful employment prac- tices. (2) The complaint and appeal procedure provided under this chapter shall not apply to an employee, against whom an unlawful employment practice de- scribed in subsection (1) of this section has allegedly been practiced, to whom there applies a procedure for administrative review of the practice as provided under any other statute governing employment by a public employer. (3) "Public employer," as used in this section, includes the state, counties, cities, districts, authorities, public corporations and entities and any of their instrumentalities organized and existing under charter or law, which employ one or more persons, except the Oregon National Guard, the Oregon unorganized militia and the Oregon Naval Militia. (4) The provisions of this Act do not apply to: (a) Employees of institutions under the Oregon State Board of Control, including but not limited to the Oregon State Penitentiary and of the Oregon State Correctional Institution, whose duties, as assigned by the warden or superintendent, include the custody of persons committed to the cusody of or transferred to the institution. (b) Employees of the Department of State Police ~vho are classified as police officers by the Superintendent of State Police. (c) Employees of the Oregon Liquor Control Commission who are classified as enforcement officers by the administrator of the commission. (d) Employees of the State Department of Agriculture who are classified as enforcement officers by the director of the department. (e) Sheriffs and those deputy sheriffs whose duties, as classified by the sheriff, are the regular duties of police officers. (f) Police chiefs. and policemen of a city who are classified as police officers by the council or other governing body of the city. (g) Fire chiefs and firemen of a political subdivision of this state who are classified as fire fighters by the governing body of .the political subdivision. (h) Weighmasters employed by the State Highway Department. PUERTO Rico FAIR EMPLOYMENT PRACTICE Acp, TITu~ 29, PART I, OHAPTER 7 § 146. Any eniployer who discharges, suspends or demotes his employee, or reduces the salary of, or imposes or attempts to impose more burdensome PAGENO="0524" 518 AGE DISCRIMINATION iN EMPLOYMENT working conditions on, his employee, or who refuses to employ or re-employ any person by reason of advanced age, as the latter is hereinafter defined, or by reason of the race, color, creed, birth or social position of the employee or appli- cant for employment: (a) shall incur civil liability (1) for a sum equal to twice the amount of the damages sustained by the employee or applicant for employ- ment on account of such action; (2) or for a sum not less than one hundred (100) dollars nor more than one thousand (1,000) dollars, in the discretion of the Court, if no pecuniary damages are determinable; (3) or twice the amount of the damages sustained if it were under the sum of one hundred (100) dollars; and, (b) he shall, also, be guilty of a misdemeanor and shall, upon conviction, be punished by a fine not less than one hundred (100) dollars nor more than five hundred (500) dollars, or by imprisonment in jail for a term not less than thirty (30) days nor more than ninety (90) days, or by both penalties, in the discretion of the Court. The court may, in the judgment passed on civil actions brought under the preceding provisions, direct the employer to reinstate the employee in his former employ and to stop and desist from the act involved. VEXN0N's TEXAS CIVIL STATUTES, § 6252-14 Art. 6252-14. Denial of right to work because of age Section 1. It is hereby declared to be the policy of the State of Texas that no person shall be denied the right to work, to earn a living, and to support himself and his family solely because of age. See. 2. No agency, board, commission, department, or institution of the gov- ernment of the State of Texas, nor any political subdivision of the State of Texas, shall establish a maximum age under sixty-five (65) years nor a minimum age over twenty-one (21) years for employment, nor shall any person who is a citizen of this State be denied employement by any such agency, board, commission, department or institution or any political subdivision of the State of Texas solely because of age; provided, however, nothing in this Act shall be construed to prevent the imposition of minimum and maximum age restrictions for law enforcement peace officers or for fire-fighters; provided, further, that the pro- visions of this Act shall not apply to institutions of higher education with estab- lished retirement programs. Acts 1963, 58th Leg., p. 857, ch. 327. STATEMENT OF THE NATIONAL RETAIL MERCHANTS ASSOCIATION The National Retail Merchants Association is a voluntary non-profit research organization serving retail, department, women's specialty and other branches of the retail trade. Its membership embraces more than 15,000 individual stores located in every part of the United States and abroad which employ approximately 1,000,000 persons. Combined annual sales volume of its membership is approxi- mately 2 billion dollars. The National Retail Merchants Association (hereafter referred to as NRMA) wholeheartedly endorses the principle of non-discrimination in employment based soley on age. Subject to occupational qualifications, an individual should have equal employment opportunity regardless of age. CURRENT LEGISLATION Your committee has before it, for consideration, H.R. 3651 introduced by Congressman Perkins, which sets forth the Administration's proposal as intro- duced on January 24, 1967 and along with other supporting legislation. These proposed measures place direct and major emphasis on the vital area of pre- venting discrimination based solely on age in the hiring of qualified individuals. The principle objective of the framers of this legislation, as well as that of the Executive Branch of the Government, is not to deprive a person seeking employ- ment, who solely because of his age and w-ho through no fault of his own, finds himself without work either because his previous employer has had to close his businss or has had to drastically reduce his labor force. The same objective of nondiscrimination applies to the older person who suddenly finds it necessary to seek initial gainful employment or to return to the labor market. PAGENO="0525" AGE DISCRIMINATION IN EMPLOYMENT 519 A secondary, but still important intended principle is the arbitrary discharge of older workers based solely on age when not supported by other bona-fide factors. NRMA wholeheartedly supports these two basic principles. It endorses appropriate legislation and objective enforcement thereof, to prevent such dis- criinination with appropriate safeguards to provide obvious and clearly re- quired exemptions. These exemptions should include, as generally recognized in the legislation proposed, special consideration free of discriminatory findings such as: a. bona-fide occupational qualification. b. established requirements of retirement and insurance programs. c. any statutory requirements which may exist `at federal or state levels, and d. any factors other than "age". NEMA POSITION Our basic position is that the legislative intent here is, and should be, confined solely to `the discriminatory hiring and discharging on the basis of age. We do not believe that the major purpose or need is to attempt to regulate the internal employment operations, procedures and controls of management. We believe it would be most unwise to include such objectives in this legislation. To do so would attempt unrealistically to regulate employment privileges, pro- niotions and other facilities. The administration of these `special provisions would not only be highly impractical, but would tend `to compromise the inherent right of business to make its own decisions in these areas as necessitated by efficient and profitable Management free of Governmental intrusion. There are many economic factors, other than "age", which must come into play in the efficient man.agement of today's business. Changes in business ob- jectives and organizational structure, `business expansion, new methods and techniques, specia'lized educational background, training, as well as specialized experience are hasic factors unrelated to age upon which m'anagement must rely and be guided. To include promotions, job transfers and other facilities would dilute the administration and enforcement of such legislation away from its basic purpose of eliminating discrimination in the hiring and discharge of employees. This is truly the root of the age discrimination problem. Whatever Government agency is ch'arged with administering and enforcement of this legislation would be sub- ject to hundreds and hundreds of invalid claims of age discrimination from disgruntled employees or uninformed applicants, `thus wasting enforcement man- power and imposing unduly on the employer energies conducting his business by having to refute such invalid claims. For these reasons, we strongly urge that the definition of the term "employ- ment" as used in such legislation be limited to the "hiring and discharge" of prospective or existing employees, and should not include internal job methods, procedures, performance or requirements. AGE RANGE We believe that the age application of this legislation should apply to an individual who is a't least 45 years of age, but who has not attained the earliest age which he or she is eligible to receive full old-age benefits under `the Social Security Act. If subsequent developments should require an adjustmen.t of this age range-up or down-it should be so determined after adequate public hear- ings by the Administrative Agency in question. ADMINISTRATIVE AGENCY We strongly urge `that for the purpose of enforcement, the administration of such legislation be placed under the Fair Labor Standards Act through a new amendment to be known as Section `G(f) thereby placing its enforcement under the Wage and our Public Divisi'on of the `U.S. Department of Labor. This division of the Labor Department already `has the responsibility for `the enforcement of this Act and also the Equal Pay Act of 1963. Covered employers are familiar with its basic regulations, its investigatory procedures, and `its record keeping requirements. To establish a separate division of the U.S. Department of Labor as the admin- istrative agency to in'terpret and enforce anti-age discrimination, would merely PAGENO="0526" 520 AGE DISCRIMINATION IN EMPLOYMENT be duplicating at considerable added expense and great confusion the enforcement organization which already exists in the established Wage and Hour Admin- istration. Otherwise, employers, as well as their employees, would be confronted with still another Governmental agency applying different regulations, different enforcement procedures, different employer coverage, and different penalties. INTERNAL EMPLOYMENT PRACTICE If Congress, in its wisdom, should insist upon Including in this legislation internal promotion and other related problems and facilities, then we strongly urge that those individuals defined in Section 13(a) 1 of the Fair Labor Stand- ards Act should be exempt from such promotion and related policies. These individuals are bona-fide executive, administrative and professional employees and are currently exempt from the Fair Labor Standards Act and the Equal Pay Act of 1963 if they meet the tests prescribed by the Wage and Hour Administra- tion. We sincerely thank the Committee for making available this opportunity to submit our views in writing on this pending legislation. We hope you will give these views your personal and favorable consideration. Respectfully submitted. NATIONAL RETAIL MERCHANTS AssocIATIoN. AIJGIJST 11, 1967. 0