r the achiever in us all. >> next on espnews. tiger woods in danger of losing his number one ranking. see if phil mickelson is ready to take over the spot this weekend. plus, nfl hall of famer lawrence taylor arrested for rape. what he's facing and why he says he's no. >> jamarcus russell gets cut, espnews with the top status . [captioning made possible by espn, inc.]

>> game 2 from the hawks-magic series. it was close for three quarters. but the magic turn their 12th straight game. and four different players scoring over 20 points for orlando. >> let's show you what happened. very tight one-point game. points in game 1. he chipped in in game 2. michaelso petris screaming for , gets it. andci orlando with the nine-poit lead. vince carter looking for a little wiggle room. gets the bounce. >> and orlando starting to pull

away here. how big has he been in this playoff. three more points for 20. and dwight howard with 29 points lead the way, and the magic have won 5 of 6 games against the hawks in the regular season. so where does atlanta go from here? >> you're talking about that three that nelson hit in the third quarter, how tough that was. you've just taken the lead on scra maul? >> i think we were relaxed. that's a big momentum stop for them going into the fourth quarter. you know, we struggled in that third quarter. and held the lead when jamaal made the shot. we didn't have nothing left.

jamaal played strong in the third quarter, and fell off. only two assists in that third quarter. trying to get the offense moving there. >> again, we had some good looks. you know, i don't know if fatigue set in or what. but couldn't make a shot. and then it was pretty good in the first half, i thought, in terms of what we wanted to do as the game wore on. we kind of got away from them. somehow we've got to put four quarters together. we were a little better tonight than we were in the first game, i thought. but unfortunately we didn't have the answers to win. >> coach, talk about having mike in in the fourth quarter. you went with jamaal. having a point guard that important to keep flow and keep pace. mike does a great job of doing that. >> he does it.

we haven't gone that route very often. i elected to go that route tonight. and you know, mike will be back in there and ready to go. that's not my worry. he's still trying to win. and i thought jamaal was playing pretty well. we just didn't have it in the fourth quarter. >> magic had four players that scored 20 points or more. can you just talk about their weapons and how hard they played? >> they have a lot of offensive weapons, without a doubt. and i thought we controlled it pretty much up until the fourth quarter. we came out in the third quarter. we were up nine, 7 or 9 coming from halftime. we fell apart to start the third quarter to give them momentum to get back in the game. and then it was back and forth in that third quarter. the fourth quarter we just didn't connect it enough for me

offensively. so we've got to go back and review the tape, and get ready for our game on saturday. >> dwight howard had game highs in points and rebounds. what was he doing tonight that made him as effective as he was? >> well, again, they utilize him. they go to him. we tried doubling him, we tried playing him headp up quite a bit in the first half. but i didn't think that really hurt us. you know what i mean. they were coming down the stretch and it was huge in our rotation, it was a little slow there, and they knocked down shots there. >> the game turned sharpley in your favor in the second quarter. that was your best quarter in the series so far. what were the factors that went into that? >> i judge uft thought we got stops. you know what i mean? we made it tough for them to score the basketball, and that's what we've got to do for four quarters. and offensively we found it in terms of shooting the

basketball. we had 57 points at the halftime. we're capable of scoring the ball that way. but again, we've got to defend this team and still score the basketball. we need almost a perfect game to beat this team. >> i know that you played college basketball for bob knight. and i know college and nba games are different. but bob knight used to say in the second half, elaborate a little more when they got back into the game? >> i thought they were down the first five minutes in that third quarter. they were able to tie up within three, four minutes of the third. so now we're in the dog fight again. you know, we just didn't execute. we turned the ball over to gain some life. they got back in the game. kind of trailed in the third quarter, and in the fourth quarter we were nonexistent. >> coach, in the fourth quarter it looked as though your players were a little defeated. what's it going to take to

mentally keep them in the game? >> go home and win. go home and win. we've been pretty good at home in front of fabs. we've got to go home. they took care of business. we've got to go home and see what we're made of. >> coach, i thought in the second quarter there when you were lucky to have the four spot. was that something premeditated going in? >> no, you'll see that again as well. you know, howard went out, we elected to go big, and they gave al horford the opportunity to work and post the ball a little bit. but no doubt about it. no mistake, we were better tonight in terms of our overall play. i liked how we came out and started the game. going in at halftime was great. we've just got to finish up and put the solid four quarters together with this team. >> the down fall of the hawk was in the second and third quarter

when they were out 60-21. you keep hearing the theme in the fourth quarter, that is where this thing fella apart. a 19-2 run. the magic outscored atlanta 28-15. you can see right above the paint, they were scorching. and atlanta really has a lot of questions to ask as they would like to bounce back. they've played better as a team. they've won 15 of the last 1 games in atlanta. >> well, don't go anywhere. more on the hawks and the magic. can we turn the a.c. up? i'm dying back here.

it's on. can't you feel it? [ aretha ] can you feel that? [ man ] whoa! jeff -- eat a snickers... please. why? every time you get hungry, you turn into a diva. just eat it so we can all coexist in here. ooh, i turn into a diva. get it into your system, cranky pants. okay. thank you. better? better. will you get your knees out of the back of my seat! whoa! [ male announcer ] you're not you when you're hungry. snickers satisfies.

an invitation to come over to the other side. what else is gonna take your sandwich up a notch? the lettuce? are you up for some sandwich-kicking flavor? are you miracle whip? you on the service. what that means is very simply that they radiation isn't being trapped down here to cause warming and anything like the rate of the u.n. predicts. that is why professor lenton of mit has concluded the amount of warming you can expect to get from a doubling of co2 concentration, that's a scientific measurement not playing with xbox 360 models, is only not .7 kelvin compared with a 3.26, which is the best estimate of the u.n. climate panel.

not .7 kelvin for a doubling of co2 concentration is small harmless and generally beneficial. >> i i thank the gentleman i appreciate the indulgence of a chair and allowing him to answer. i guess her conclusion is that i will conclude with this remark that we should do nothing. certainly appears to me, it is evident to me that whether we do nothing or what we do there is clearly at least a dispute about the evidence and it is not in fact apparently agreed upon. mr. chairman i would also like at some point to ask unanimous consent to put in the record the actual e-mails which were exchanged, which i believe show that dialogue going on with regard to the analysis of the ipcc report. without objection it will be included in the record. the gentleman's time has expired in the chair recognizes the gentleman from washington state. >> i would know there is a dispute about whether we actually landed on the moon and

there is a dispute about whether the earth is round and there is a dispute about gravity in some places. we will get to you lord monckton shortly but i want to talk the scientists on the panel 1 of that is. thank you are a much. dr. mccarthy, i appreciate you bringing up the ocean acidification issue which mr. -- of noah has called the evil twin of climate change. i would like you describe what actually happens to species when they are exposed, and i want to put up a slide that i believe i got. the slide basically shows what happens when you put a small creature in the water. on the left we see a picture, these are relatively small and the shows what happens when you put a terrified in waters that

will be in the same acidic conditions that will exist in the year 2100 if we did not change our course. it basically shows that according to dr. lubchenco, the terrified melts. it is a calcium carbonate structure that actually melts. was wondering if you could describe what the oceans will look like from an acidity standpoint in the next hundred years if we don't change course and what that does to the plankton that, or could do to the bottom of the food chain? >> thank you. this like a lot of the change we are talking about is not simply a difference of one condition to another but the time period over which it happens. so if we look at changes in the ocean over the last million years it would be 100,000 years though, we saw ice advance in retreat. esol organisms that lived in the high north with moving closer to the pool. moving back on land

and it is insures sing a few extensions in that period, the memory and genetics of organisms know in their history that being able to accommodate those changes essential for survival but when you crank those rates of change up, there is change during those periods. when you crank those rates of change up 100 or close to 1000 fold in some cases, then you see the capacity of the ecosystem to adjust. in this case, the tetrapod, i was tempted to put a picture of a colorful picture and a tetrapod is an actually beautiful animal. the foot of the mollusk is then an flat like a wing. they are called sea butterflies. they are spectacularly beautiful with a delicate show. they are an important part of the food web in the north pacific particularly for salmon. we know that pink salmon depends heavily on the tetrapod for its

food. that was one example and i mentioned others. the microscopic plankton and the corals are all subject to the same condition. that is as carbon dioxide is added to the ocean more rapidly than they can adjust and this is being added over thousands of years rather than over 100. the constant tension of the animal and trying to keep it skeletal material, it's show from dissolving becomes more and more in the favor of water. water pulls the minerals back into the solution. this is the condition and in the past we know there has been more carbon dioxide in the atmosphere. we know in the past the ph of the oceans have been different and there are periods where organisms like this does appear. if the conditions were not suitable for coral or mollusk to survive and this is an important issue. >> i'm told that the waters are more acidic, 30% more acidic

than they were in preindustrial times. what will they be in the end of the century of things don't change? >> if you take these extrapolations as is done here experimentally, you can show what the effect would be a bad changing acid base balance, referred to in the vernacular acidification of oceans are becoming less alkaline but it will dissolve these minerals. >> thank you. i was impressed-- we are here as the house of representatives to have the state of the science discussed about climate change and i was impressed that those who have denied the threat this poses to the planet earth couldn't produce one scientist, not one scientist to propose a hypothesis to explain with the earth is going, undergoing and

all the changes we we are undergoing now. somebody doesn't even have a field background in science and that is what they produce to try to convince americans somehow that this is a big hoax. i think that is impressive or unimpressive depending on how you look at it. so i want to ask about lord monckton's viewpoint and basis for that. lord monckton when did you start serving in the the house of lords? i? i notice you brought fraternal greetings from the mother of parliament to congress. to our athletic democracy. when did you start serving in the house of lords? >> sir, i have never said in the house of lords and as you've you probably been informed--. >> thank you. you have answered my question. you come here, you call yourself a lord to try to convince the world to ignore something that threatens our grandkids and you are not even a lord.

>> just one moment sir. >> and our democracy of the world as the questions and you will answer them, thank you very much. you come to our athletic democracy sir, calling yourself lord monckton. not only are you not a scientist, you are not even a lord who served in the house of parliament. isn't that correct, in the house of lords? isn't that correct? >> i believe i have already answered that yes, sir. >> we not only have the deniers who have denied this clear science upon which there is enormous global consensus. they can only not produce one scientist to deny this clear consensus. they can even send us a real lord from the house of lords. now i think that says a lot about the status of this debate, which we should not be having. because we have an overwhelming

consensus, and i know that it is not just babies for scientist. joe barton, our good friend asked the national oceanographic and atmospheric administration to review your testimony and this is what they said. the fact that surface air temperatures has shown no trend or even slight cooling over the last seven years is not an accurate reflection of long-term general trends. in fact, calculation of a trend over the last seven years of a gross' characterization of the longer-term trend. the last seven years have been part of a strong warming trend that began in the 1970s which is attributable to human influences studying ipcc 2007. during the last seven years six of the seven warmest years on record have been all observed based on no of's global land and ocean data, deducing long-term trends over such a short period of time is comparable to

estimating the height of a sea swelled by looking at the short period waves on top of a swelled know what, the people to work for our athletic democracies have included we don't need a fake lord to tell us not to act. we need real science in leading us to have a clean energy policy. thank you. >> the gentleman's time is expired in the chair recognizes the gentleman from oklahoma. >> thank you mr. chairman and lord monckton i guess i think you have a right to explain why do you are lord and i don't believe you had an opportunity to. >> i will do that very weekly. i see politics of not particularly-- [inaudible] until those letters are revoked and they have not been, i remain and i correctly address that, i

am therefore a lord by virtue of the 1999 house of lords. in fact i know have for-- no longer have the right to sit. i have never sat in the house of lords nor have i pretended otherwise and i think that really should deal with that matter. >> thank you. lord monckton, what do the climate scientist do to regain the public trust in our work? what can they do to ensure transparency and accountability in the climate scientist community, especially as we look toward the development of the upcoming ipcc's assessment report? >> let me first of all began begin with a quotation from noaa's response to my written testimony which essentially it was not given a copy of before the hearing and i think somebody has slipped up there. the passage that was quoted focused on one short sentence

which mentions that for the last seven or eight years there there has been if anything a definite amount of global cooling, so there has but however my temperature record goes back as far as the prehistoric air 750 million years ago in the graphs i showed today were from the last 150 or so i don't think i can be fairly accused of having unreasonably period pics of the periods i was looking at data. what i think scientist therefore need to do if they want to start commanding the respect of the public because they are losing that respect over this issue, is to stop chattering about consensus. science has never been done by consensus and it isn't going to be done by consensus now. stop using any ipcc documents references to documents not produced by peer-reviewed sources but by green propaganda groups and by journalists, and confined their analysis to the peer-reviewed literature as i

did today, and also they must make sure that instead of trying to push on agenda and shout down anyone who dares to put an alternative point of view, as i have politely tried to do today, they should treat those who disagree with them with courtesy and here with some care what they have to say and instead of dismissing an argument they perhaps don't understand is one of the panelists here did when asked to comment on my testimony, they should simply engage in a rational debate. with them in a scientist who disagree with the official line, and of course scientists could have been paraded here today, but quite rightly, the minority group, knowing that the majority would merely want to throw bricks at them, decided that

instead somebody with a certain matter of experience in politics and a thick skin should sit and take the-- flung at him which i am more than happy to do so to spare the many diligent scientist who worked rationing every aspect of this ludicrous scare to get on with their work, and that is what in the end is going decide this matter if it is going to be diligent scientific inquiry and not childish political insults. >> lord monckton, and anyone can answer this question, scientist, how are they funded? do they get grantor grants or are organization to give them funding? do you think that has the potential to corrupt the process in their data and do they feel beholden to certain results because of that? >> that is a very shrewd., sir. the only reason why is the notion that the consensus decides decide scientism fortunately crept in is that

science these days is a monopsony that is only one paying customer and that is the unwilling taxpayer. because of that, because of the grand funding structure and because of their results and academic thresher to come forward, it takes enormous courage for any scientist to stand out against the political line that is now being taken among the scientific institutions and say hang on a moment, the numbers don't add up. i have just shown you today various point at which the number very plainly don't add up and they are established in the peer-reviewed literature and they are established by measurement, not by modeling. you heard the rather qualitative replies of the four scientists here. they did not quote numbers much. they were quoting models that science is best done and most accurately done by measurement, and those papers that rely chiefly on measurement are finding that there isn't a

problem that we are told it is. >> thank you, sir. >> thank you mr. chairman. dr. field and i want to get to the other three to respond to this as well. i think all of the denial and all of the talk of climate-- climategate has had an impact, at least in the united states. in 1997, gallup began conducting polls on the attitudes in the united states on climate change, and tragically, the number of people who believe that climate change has been exaggerated according to gallup, the latest poll was 48%. and, until the latest poll, the number of those who embrace climate change as being impacted

by human activity was on the way up. so, the folks who have been fighting this have unfortunately and from my vantage., then winning. the poll also shows, and maybe this is one of the reasons, that in the areas where there was extreme cooling over the past winter, those people polled in those areas tend to embrace their fear that there is that exaggeration. one of the questions that i would like to ask is, what atmospheric conditions need to be at play for a higher level of

snow on the planet? anybody? >> perhaps one comment along those lines. indeed, as they try to emphasize in my testimony, the noble warming does not mean changes are uniform everywhere. there are pronounced regional and seasonal variations and this is due to the natural variability in the system. we still expect him to climate change that we will have snowstorms. we will still have cold periods. cold periods may become less frequent as we go into the future but they will certainly occur. in terms of some of the heavy precipitation events, as my colleagues have spoken to today, a key ingredient in that is that as the atmosphere warms, as has unmistakably been observed, the warming, the atmosphere can hold more moisture and therefore any given storm will precipitate more than it otherwise would

have. as we have also been very explicit, that does not mean you can attribute in the individual storm to climate change, but on average, and statistically we would expect to see an increasing trend in heavy precipitation events including heavy snowstorms and this indeed is being observed over many parts of the world. >> though it is counterintuitive the scientific truth is we have more snows if it is warmer. >> yes, again that relates to the ability of the atmosphere to hold the moisture. warm-up atmosphere can hold more moisture so when it does no, it was no more. >> dr. mccarthy. >> this is a very complicated subject and one can take one little piece of it and make a headline out of it and find that it is maybe true but it sounds like a contradiction. so, the place i live right now, in the northeast, what limits of

snowfall in the winter is not temperature but moisture, and that moisture may come off the atlantic or it may come up from the gulf war it may come off the lakes, the great lakes. so one of the early projections of climate models that in a warmer world we would have more snow in greenland and antarctica. that too many people sounded like a contradiction but indeed, for exactly the reasons dr. hurrell explained, a warmer atmosphere holds more moisture and air comes off the ocean over antarctica and over greenland. early study showed that that was indeed happening. not possible until we had precise estimates of the elevation of these with satellites but what we see at the edges, even though they are gaining snow more rapidly, antarctica is the coldest con-- continent and it is the windiest and also the driest.

that is their biggest desert, so if you ocean warms around it, more moisture in the air and more moisture in the interior but if you look more carefully, it it is gaining but losing at the edges and on balance, antarctica and greenland are losing ice more rapidly. so, that's where we started with this comment, any sort of, one of the short phrases you can make a headline out of it and often the public is very confused, because they see these fragments of information and don't understand how they fit together. ..

>> we are all interested in furthering science but if to rosters then use and where are the statements?

there is a problem because the climate is changing, we know the causes of that arafat trend continues on the impacts we talk about will come into play but all of the national academies of science and in my testimony i included a statement that came out last october. 18 organizations from a look at any of our society's the american reader logical society, idiological society, all statements are very similar. i have given an example. we're asked to try to simplify this and this is the consensus. scientist posted around talking about these. >> they disagree. >> time has expired. we are about to be summoned to the floor for our robust democracy on the floor of the house. we deeply appreciate your

coming here and i think any review of the record today in the materials you have submitted illustrates the purpose of the hearing but you have spent so patient with us we want to make sure that i apologize to bring it to a conclusion we would like to give every member of the panel a one minute for any summary our conclusion you may have for any take away if you decided it was just cloud cover and you were wrong. any wrap up? >> i appreciate the opportunity to make the comments. i think that transparency with me gain data available is extremely important and that is something by and large the claimants' nine kid -- science community does a very good job of viable work at the center in

boulder colorado where we developed one of the world levying claman models that is used to understand climate as well as project future changes and with that in tire code all of the dated going to that model is publicly available. you can go to the web site and download the data. i think climate science makes a very valiant attempt. i also want to emphasize in terms of the igcc process, it is indeed the assessment and s mccarthy pointed out who the igcc report does the exhaustive job not only dr. banting what we do know but what we do know the grand challenges to her the uncertainties are.

there are papers third reassessed in those international assessment reports and resaw some of lord monckton evidence those surveys don single studies and i can take the time if you wanted to go through those on the individual basis to point* out the flaws of those studies as well. indeed for the papers he has violated there are others that include that and very quickly what i did not address was the importance of communicating and i thoroughly agree that is a very fundamental critical saying that all scientist need to be doing. >> four points very briefly i want to emphasize what i've made in my testimony we're not just talking about

changes the very rapid changes in rapid rates of change and the rapid rise of sea level, rapid changes ocean chemistry and that is a very important. the message. secondly, we should think of is like assessing rest. what if we are right when if we're wrong? what is the worst we could do? as you go through that logic think about reassess risk whether we buy insurance for our houses are not by would not have a house without that and could we be on the right side or the wrong side 312 error on the right side. looking in all the projections of cost four nikolas stern and others we see doing the right thing can move this in ways that also fuel is not expensive than there are enormous

benefits. finally if you go through these exercises you have been limited point* if we avoid that we do not even talk about this the high consequence and a lot of model show that if we did not act within the next decade to been two the curve we're in dangerous territory. finally this is not our profession on how to communicate well it does. >> the central point* i was like to leave the panel with is that there is no hurry. if you do nothing for the next 23 years, the worst that will happen using the

langone estimates is one fahrenheit degree warming. which will be largely harmless and beneficial. you have plenty of time to check the steady, just a few of which i have showed you today in the peer review literature suggesting there is another side to this story and another side not based on modeling but measurement which establishes with increasing clarity that there is no scientific problem even if there were comment adaptation if and when necessary would the order of magnitude cheaper and more cost-effective than trying to stop the mission of carbon dioxide. who will get hurt if you start closing down coal-fired power stations?

who will get hurt? it is the working people of america. is that a good thing? i don't think so. nor should you. >> thank you very much for the opportunity to make concluding remarks. one of the things that needs to be emphasized is a scientific evidence on climate change is based on many lines of independent evidence of thousands of scientific studies quantitative the care fault some based on models others on observations it all fit together in a fabric in which the general conclusions that indicate the climate is changing and it is very real it is also important to note there are important unknowns and many of those are in the direction of risks of a sudden sea level rise, the

risk of currey release from the ecosystem and dramatic changes have all been very difficult to quantify and not recognized in the more conservative assessments from the ipcc. >> i want to emphasize the point* of the importance of viewing climate science is a problem of risk-management. we don't know precisely what the future will look like but we have a very clear picture of the risk relevance introduced by changes that people are causing in the years system and we can have the increasingly clear picture of the consequences of a common-sense investment. i finally want to conclude with a very strong comment that lowered monckton conclusion we don't need to do anything now is misleading. we haven't seen it crisis

that we can unambiguously a tribute to climate change but we have seen increasing risk of a wide range of systems and reno the longer we delay the more difficult it gets and the more expensive it gets it is a problem where common-sense investment in the short term are to have big dividends and relative to reading and hoping against hope that the situation is not as bad as the science says. >> thank you very much. >> thank you for the opportunity to make a final comment. first of like to agree with my colleagues that the scientific consensus is clear and the urgency to act is very much upon us. i am struck by congressman cleaver comments to the degree of which public perception is lagging behind the perception of some of you on this particular committee. i want to give my view from

the southwest i am. the institution has a very strong relationship with the ranching community in the southwest. since 2002 we have been in a deep drought in very good scientific evidence that is due to the northern migration of the westerlies no longer bringing as much precipitation to the southwest as before per car or ranching community is not arguing whether climate change is here are not. her coming to us saying what every going to do about it? climate is the number one issue in this community and they're asking to give them guidance about how to adapt in the short term and long term. i think the public perception that climate is an issue whether called climate change or not, is particularly keen among the people of the southwest.

secondly, as a professor and a large public university we share your concern about the increase scientific literacy demanded to address the complex tradeoffs we're coming up against in rear very much engaged in that enterprise. >> thank you very much. we think each of you for your participation in this very important hearing and we will continue with additional hearings on this issue so we can ensure all of the science is out in a way to make it possible for the public to be able to make an informed decision as to whether or not there really is such a thing as global warming that has been caused by man-made activity. we think there is no more important things that we can have been the congress or in our country.

and to the experts we had today i think very clearly laid out the scientific reality and has only added to my conviction we have to act and act soon the waxman/markey bill passed in june 262009 in the senate has the bill which with a little bit of luck will begin consideration of the end of relative near future. but time is of the essence. with the thanks of the committee, this hearing is adjourned. [inaudible conversations]

>> i apologize for being late we had a both the started at 10:00. have can be in this hearing to examine the issue of

older workers tend the face of misguided and harmful supreme court decisions to enact legislation to ensure older workers are treated with the fairness they deserve. we will hear from my fellow on a when-issued devoted his life 21 company and how did they reward him for his dedication and hard work paid demoted him and other employees of the age of 50 and gave his job to younger employee who was significantly less qualified. over four years ago to prevent this discrimination congress passed the age discrimination act that made it unlawful to discriminate on the basis of age. when mr. grosz sought to enforce his rights under this law, a jury ruled in his favor and determined age was a motivating factor in his demotion. the when his case was appealed to the supreme

court the slim it justices overturned and decided to rewrite the law. for decades the law was clear and if the employer showed age was one factor in the employment decision the burden is on the employer to show it acted for legitimate reason other than age. a court addressing a question it did not even grant certiorari impose a new standard that the supreme court itself had rejected in a prior case that congress had rejected with the civil-rights act of 1991. the timing of the court's decision is particularly troubling. older workers have been hard hit by the tough economy. according to the department of labor workers over age 55 to out of one are unemployed the all-time high since they have began matching since in 1948. the average duration of unemployment for older

job-seekers is twice as long as other unemployed workers. according to statistics statistics, more than 45,000 charges of discrimination were filed 2008 and 2009, three times more than one decade ago. for decades we have a consistent standard unfortunately because of the court's decision now there is a more higher standard of proof for age than other forms of discrimination. the legislation i have introduced protecting older workers against discrimination act would reverse the deeply flawed decision and restore the lot to what it was for decades. legislation would make certain once again all older workers in this country at enjoy the full protection of a lot. now i will turn to senator

ensign. >> thank you chairman harkin. thank you for calling fed hearing today and the baby-boom generation basis into retirement we look past the traditional age is the number of workers age 65 and over is expected to increase by 47%. luckily america's employers will leave us as well because labor economist have a huge shortage in the coming years i was pleased to address the needs of older workers with the pension act enacted in 2006 with the help of the colleagues i look forward to the reinvestment act to better meet the job training needs of older workers. of the committee looks at the technical complex issue of burden of proof in the so-called mixed motive disparate impact cases arising under the aeg eda in a case entitled gross v. fbl

financial services inc. the supreme court said in cases the burden remains on the plaintiffs are up the case and in effect it means even when there is some evidence of age being a factor, it still remains the plaintiff's burden to demonstrate his or her age was but for the reason of the adverse action. this allocation of burden is different than the one applicable under other employment statutes most nido believe title seven and a gross decision the court found such differences in the statutory language used by congress and in the fact in 1991 congress amended the title seven specifically adopting the burden is shifting procedure under that but did not extend the same procedure to the aeda program afford to reviewing the testimony of the experts here today as well as

reviewing their answers to the questions asked of them. i cannot stay for the entire hearing baidu have questions prepare for everybody and no those answers will make a difference in the legislation. however before we hear from them of a play to make a few brief comments. this is not the first time nor the last time there is legislation in congress aimed directly at the decision of the supreme court purport 1/2 problem with this or system checks and balances dues congress prerogatives but the rhetoric that attaches itself to such efforts does bother me. and manifesting to raise. first there is direct attack on the competency of the accord to themselves. those who don't like a decision for transparently political reasons fire off a claim their court got it wrong. but that means the speaker does not agree with the court not that it was objectively wrong. there's obviously nothing wrong to disagree with a core is seeking to change as

a lot. that is an honest starting point* for public policy but to start by employing their rhetoric is it is wrong unjustly undermines the accords integrity and the institution region have robust debate about the policies but should not predicate that on the claim that the supreme court got the wrong. that is not only unjustified also harmful the second disturbing rhetoric overreach that no companies almost every public policy disagreement is the iraq less maligning of the opposition particularly true when it comes to issues arising under our discrimination statute. those who earlier have legitimate concerns of largely eliminating the statute of limitations with pay discrimination were promptly labeled pro discrimination and anti-feminist yet they are

effective as transparent the sad truth is that in our sound by culture and 24-hour news cycle it is more effective to demonize the other side rather than engage in constructive debate. that is the irony of calling a press conference two of plane the other side politicizes the issue although i do hold different views the do things the president was correct when he noted the overblown rhetoric closes the door to compromise and undermines democratic deliberation. i hope going for the administration and the congress practice what they are now preaching. of a ford to the hearing of today's witnesses and appreciate the time and testimony. >> i have a statement for senator leahy.

or any other statements the members of the committee want to answer for the record. we will hear from jacqueline berrien who served as associate director of council at the equal employment opportunity commission and your statement will be made a. the record in its entirety if i could have you summon up in five minutes i would appreciate it. welcome back again. >> thank you so much. of think mr. chairman and ranking member and see and distinguished members of the committee i appreciate to appear before you to discuss age discrimination and protecting older workers against the discrimination act that would supersede the 2009 decision of gross v. fbl financial services inc.. this decision imposes new they go burdens on plaintive

bringing claims under the age employment act and we're here to provide more details that has emerged since the decision at the heart of every federal anti-discrimination situation eeoc enforces that the decisions should not be driven by stereotypes remain on the basis of characteristics including age. as congress noting more than four years ago when the ada was enacted the purpose is to promote employment of older persons based on their ability rather than age for kemper. >> arbitrate age discrimination in employment. nevertheless workers or subjected to age discrimination encounter under resistance. for example, some chords for judicial opinions have dismissed age based comments

as nearly stray remarks and consider them irrelevant to the question whether age discrimination occurred in these remarks have included an quoting directly calling a plaintiff the old guy in the department and stating age discrimination victim looked old and tired her repeating the referring as an old man and the company's goal was to attract younger talent and stating that some workers were just too old to get the job done and the company wanted to go to a young aggressive group of people. is difficult to reconcile a judicial disregard of these kinds of statements with congress express purpose then passing the eight bd a and this is the backdrop that the gross decision was announced for also to a compelling example in the

case of eeoc vs. dodd county it brought forth on behalf of mr. russell haq after working for the department was forced to retire at the age of 71. there was no evidence he was having any performance problems comment intended to continue to work for several more years but the county told him it was creating a stress test to determine workers over the age of 70 could meet the physical requirements of their job for current the county never administer the test and instead he was forced to leave his job based on their assumption that he would not be able to pass the test. as mr. gros will testify today the u.s. supreme court decision had created new hurdles which age victims must now overcome cheese.

>> must now prove that the defendant employer read not have taken a challenge of employment action but for his or her age. . .

the case is causing concrete hardships for workers, although it appears to be an abstract set of principles. the hardships are real. and it is expressed in decisions left little under a year since the gross case was decided where plaintiffs have been required to prove that not only that age was the but for cause of the employment action but it was the only reason for the employment action, so in a short step the standard has been elevated even further by some courts. it has also been the case and at least one court that the gross decision was applied to limit relief for a plaintiff in an american with disabilities act case. although there is no evidence again that this congress intended for a more stringent standard to apply to adea

complainant. at as the nation's chief enforcer of federal law prohibiting discrimination they eeoc is concerned by these developments. continued erosion of employment rights contravenes congressional intent and we believe it is important for this congress to act to correct it. legislation like the protecting of older workers against discrimination act would ensure the age discrimination plaintiffs receive the same corporate connections and are subject to the same basic legal standards as title vii plaintiffs, nothing more, nothing less. we believe this would effectuate congressional intent evident in the original passage of the age discrimination in employment act, namely the discriminate on the-- discrimination on the basis of race, national origin, sex, religion has no place in the nation's work places. the commission stands ready and eager to assist in any way with

this legislation or future related legislation. thank you again for inviting me and i look forward to your questions. >> thank you very much ms. berrien. let me turn to part of your testimony and i just want to get it straight here, that the supreme court, i am referring to page 5 of your written testimony the supreme court, as you said essentially held that a title vii plaintiff could rely on either direct or circumstantial evidence to request a mixed motives instruction. that was then costa, the 2003 case but then you go on to point out that lower courts were split as to whether aj-- adea needed intent for a mixed motive

instruction. is that-- is that not the reason that the court granted cert in the first place? >> that is correct. >> to see whether or not they should be parallel with title vii in terms of direct level? >> in that regard, yes. >> on then, i read in the next paragraph that the court didn't even reach that. basically you were are saying that this issue, the but for issue, the one that comes before that, was not even presented to the court. it was never briefed by the parties for amicus curiae briefs and the council for the united d states urged the court during oral argument not to reach that issue. >> that is correct. the solicitor general and the argument before the court did raise that that is the issue of

but for causation was not briefed and properly before the court and grave concerns about the decision or a possible decision that was based on that ground. >> i just wanted to clear that up, just for the record. i want to get now more into what is happening out there. you say that there is a big surge in adea charges and the increasing prevalence of age discrimination. do you have good data on that at the eeoc? i mentioned that there has been a threefold increase. is that correct? >> what our chart shows is that from the decade between 1999 and 2009, age discrimination charges as a percentage of all charges of discrimination filed with the commission have risen from about 18% of the charges we received to now being roughly one in four of the charges be received, or 25%.

and, perhaps of greatest interest in relation to this bill, there has been a very dramatic increase in the number of age charges that stem from a firing or discharge or a termination of employment. and that figure has increased 50%. >> why does the eeoc need as 1576. i know you are supporting it but can't you take care of this at the eeoc, or not? >> well, we have concerns, i would say they are twofold. one, beyond our immediate cases or impact on immediate cases that the commission is litigating, more broadly, we do follow the trend and development in the law, and in the year since the gross decision was announced, there are two worrisome developments from the standpoint of the commission set the gross decision not only will

impact age discrimination plaintiffs by raising the standards under which they must litigate but also that it may affect other people who are victims of discrimination of other forms and particularly, the seventh circuit's decision in the sderot a case indicates that the gross holding might now be applied in americans with disabilities act cases, and we also, i also noted in both my written testimony and my state today that there've been some courts that have been moved from the gross standard which we believe is already demanding enough, more demanding than the prior standard, and even elevated it further to say that age must be the sole cause for a discharge or for an adverse employment action. and one consequent of that is that people who have been discriminated against on multiple illegal grounds, for example race and disability and

age are being forced essentially to choose and to abandon age claims even if they might otherwise be solid claims. >> thank you very much, ms. berrien. senator ensign. >> thank you. your testimony is very helpful. you gave the percentages they are. it would be helpful if we had some more exact percentages and actual numbers as well. >> course. >> sometimes when the economy is changing, some of those numbers are forced particularly in the percentage category. >> course, we would be happy to provide any information you would like. >> i do have a question i'm going to be asking people whenever we are having a labor issue and that question is, have you acted as an employee or manager in a private sector and non-governmental workplace? >> i was a manager in the

nonprofit sector. >> okay, thank you. s. 1756 appears to provide even in a mixed motive case where the employee has no remedy because the employer has proven it would have taken the complaint of action in any case, the employer's lawyer may still be entitled to an award of his or her legal fees. do you think there may be a risk that a provision awarding attorney's fees even when the attorneys are paying no relief for his or her client could artificially increase the amount of litigation are artificially reduce the likelihood of settlements? >> senator, i believe it is a standard that would apply in order for a plaintiffs lawyer to recover fees is that they had to establish-- they have to be able prevailing party on a question of law in the case, and although they may not perceive monetary relief, and in fact in the commission's cases, monetary relief is often a small part relative to the other forms of relief, injunctive relief,

orders from courts or federal settlement agreements that are essentially designed to change practices going in the future, so the lack of nonmonetary release releases not at all in my view or in the view of the law more importantly, equivalent to no relief and i think there may be a confusion of the standard in that respect. >> appreciate that. i will take a closer look at it. title seven cases and age discrimination in employment act are both within the purview of the eeoc but a member statute that would be affected by a 1756 on its face as 1756 would affect statues such as the national labor relations act that are enforced by independent agencies and the family medical leave act that are enforced by cabinet level departments. do you think it is prudent to consider legislation affecting all of these agencies and departments without their input?

speedwell, senator, the testimony here concerns this legislation and we have indeed indicated that if there is any form of assistance that we can provide to the committee if any clarification would be helpful or any additional concerns are raised, we stand ready to do that, but i believe that this legislation really does go precisely to the issues that were raised in the gross case in the age discrimination context. >> okay. to change again, can employment statistics alone constitute sufficient circumstantial evidence to prove an improper motive and under what circumstances? >> i am sorry senator, i did not hear your question. >> can ken employment statistics alone constitute sufficient circumstantial evidence to prove an improper motive?

>> no, and that is not the case in any of the existing laws. the statistics are relevant and the statistics may raise an inference of discrimination, but courts require more than a mere statistical showing, recognizing that the congress has consistently indicated concerns about employers over correcting and doing things that might be discriminating against other people in the work place. >> really appreciate your concise answers. i would mention that senator harkin earlier use statistics and that is one of the reasons for this question. he said that older people have higher unemployment numbers and i remember when i was mayor, back when i was 30, that most of the people that came to gillette, wyoming, which was having it done, were young people and i was kind of curious about that. the reason is it turned out is that most people that are older have a house and have a lot of friends in the community they are in and expect to be the

first hired back so they don't move to where the job is. they stay where the unemployment is in that drives up the statistics a little bit too. but i appreciate the chance to ask the questions and i may have to leave for another meeting. >> in cases like this, the closer the statistics get to 100% the more relevant they are. [laughter] senator casey. >> thank you very much. i wanted to say first of all thank you for your testimony and your work. just by way of background, and it informs some of the lines of questioning that i will pursue in the short amount of time we have. when i was a young lawyer, one of the first cases that i worked on were cases like aids cases or

bora were age cases, or cases involving discrimination. at that time i was working with a senior member of a small law firm in my hometown of scranton, pennsylvania. i didn't develop an expertise in this area was exposed enough to these kinds of cases that i have a sense of the statutory basis for age discrimination cases. some of the case law. but what really became apparent to me at that time, and i think it is relevant to this discussion, is how difficulties cases were to litigate from the perspective of the plaintiff all those years ago. this would be in the early 1990s. even under the old standard, or you didn't have the case that we are discussing today. i wanted to first of all highlight one statement from

your testimony in the second paragraph and i want to highlight this to make sure i understand this. based on your analysis of the case, or i should save the state of the law after gross, you say in the middle of that second full paragraph , even if a defendant admits, admits that it took an adverse employment action in part, in part because of the plaintiffs age, unless the plaintiff can show the defendant would not have made the same decision anyway, that is the current state of the law. in other words even if the plaintiff admitted that paid-- age was part of the decision-making process that is not enough for the plaintiff to prevail. is that correct? >> that is correct. the defendant in the age case now couldn't even admit that age was a factor, but if it is one amongst a number of factors, the plaintiff is still required to

show that the decision, it is very difficult to describe it concisely, but essentially the burden still remains with the plaintiff to essentially isolate age as the reason. so, the standard before gross recognize that were her age was a motivating factor, that the burden upon them, the employers, to prove that it wasn't the reason for the action. many employment cases do not present as there is only one reason. or, it is clear to isolate the reason and the discriminatory reason it is alone, stands alone. socom as he was here i believe from mr. gross in his case, age was one of the reasons that

there were also other reasons cited and it is that citation of other reasons that in the past would have shifted the burden to the employer and now remains the burden of the plaintiff so in effect the plaintiff has to prove a negative, which is very difficult. >> as i said before, these are tough cases from the plaintiff side even under the old standard and i think maybe the popular image of this kind of a case is papers are filed at a courthouse and before you know what you are in front of a jury and the rest is history. but, you have to file, you have to file papers and you have got to get a lawyer to do that before you file and you have to be able to extend money ahead of time, either you or your lawyer for discovery cause but the other thing which is sometimes get dover is the fact that you don't just file in federal court and then you were off to the races. you have to exhaust all your remedies so you have to file with the eeoc and go through that process or with the

relevant state agencies so it is a long process, but some may say on the other side that happens in a lot of cases. the length of the case does not tell you enough about it but one of the things which i think is not clear in the popular notion of what this is all about is you rarely have, you rarely have that staple that just jumps off the page in and a deposition transcript where the lawyer says i didn't hire john because he was too old. it is always subtle and it is overtime that i practiced, a practiced or learned behavior by some employers, not all that some employers to avoid using language which is great clearly discriminatory. i think, and i'm running out of time but i've got at least three problems with the state of the law. first of all these cases are complex to begin with even under the old standard.

secondly, the economic trauma that workers are living through right now, older workers are losing their jobs in higher numbers and likely being discriminated against to a greater degree. the third complicating factor is of course the decision. i think what you said in your testimony and i will end with reading this because they know we are out as time but you said in analyzing why we need this bill you said s. 1756 wood legislatively overturn gross to ensure that adea plaintiffs receive the same core protection and are subject to the same basic standards of causation with respect to disparate treatment claims. in essence what we are trying to do is be consistent with other cases. we are returning to an old standard. the bill is not creating a new standard. it is really returning to an older standard which i think

even that standard is tougher plaintiffs. thank you for your testimony. >> thank you senator casey. senator franken. >> thank you ms. berrien for your work. i am going to do a hypothetical. you were saying in the seventh circuit, is that? that now they are applying the gross standard to disability, claims of discrimination to disability. >> yes, in one case they have. >> and they have held that that is okay? >> yes. >> let me give you a hypothetical. let's say you go in there and the employer goes, in cross-examination come he says was there any reason for firing this person because of their age? oh yeah, probably about 30% of it. how about because of their disability? oh yeah, that too. that was about 30%.

what was the other 40%? well, you know an inability to adapt. they weren't social networking well enough or something like that. could that person then, because it does not add up, there is no plurality there, under the gross ruling, they say okay, you don't prevail? >> i think the way it would often present is that a person will come in. they will charge-- filed a charge with the commission if and when they reach cord and a case has been settled within the period it was with the commission. they will get to court and they will say, i was fired. i believe it was because of my age and then they will present a range of evidence that they believe supports that lame. they may say for example, the

kinds of statements that i included in my testimony earlier , i was regularly called the old guy in the office. the manager and the people who fired me said that i wasn't keeping up with the times and they needed some younger folks around to do that. that kind of evidence is one type of evidence. >> i am talking here about where the employer even acknowledges it, and by saying it was not 100% or wasn't even, it was me but for instance on either thing. according to the logic of the seventh circuit and of the gross decision, the employee would not be ruled in his favor of. >> right. before gross the kinds of facts you just suggested would have left the door open for the plaintiff's lawyer to ask, if it

was a jury trial, for a jury to be instructed about mixed motives, meaning for the jury to hear that if age was one of the reasons. it does not have to be the only reason. then you can find for this plaintiff. and now, the standard in the face of that same evidence would be, if the employer is able to show that they would have made the same decision anyway, yes there was this age comment or yes there was other evidence presented that age discrimination occurred, or that some action happen because of the plaintiff's age but in fact there was another problem. >> the other problem was a disability but still that is not good enough because disability wasn't the but for problem either. what i'm saying is is logically this seems pretty perverse. let me move on to something. last year i passed an amendment to the defense appropriations

bill that prohibits taxpayer money from going to contractors who force their employees to arbitrate discrimination claims. this came out of the story of jamie leigh jones, a young texas woman who was gang raped by her coworkers while working for kbr in iraq, and then she was told that she couldn't sue kbr for sexual assault. she had arbitrated in a secret tribunal paid for by kbr. does the eeoc have a position on mandatory arbitration of civil rights claims? i think it is harmful to enforce civil rights claims by almost anything else is mandatory arbitration. does the eeoc have an opinion on that? >> yes, we have issued statements about mandatory arbitration and about the risk of rights, mandatory arbitration

could interfere with the appropriate protection of rights under federal law. >> thank you very much. mr. chairman. speak thank you mr. chairman and ms. berrien thank you for being here. i am concerned about how that the law passed by congress can impact small business, and which at this point in time are certainly the drivers of the economic growth and job creation and some people believe that the gross decision would actually be good for small business. and my question, in your opinion how do you think the proposed legislation would impact small business and could there be more paperwork, litigation, expands and are there other ways this legislation might actually impact small business from your perspective? >> in our experience, both small

business and larger industries or employers look to the commission for guidance about how to comply with the laws that congress has passed, and we have a very targeted and widespread outreach program to try to reach those businesses, to try to inform them about what the law requires. one of the risks frankly of the gross decision is, it makes those standards more confusing. accepts one standard for age geishas and sets religion cases for example and for a small business, that sort of different and what kind of conduct would be possibly illegal or what kind of conduct might subject them to liability in court is actually confusing possibility. but we do read-- try to make

sure that all businesses understand what is required under the laws we enforce and i believe that businesses of all sides are not only aware but often in complete accord with us that workplaces that are inclusive and don't exclude employees for which very reasons are what are ultimately best for business. >> we certainly don't want age discrimination in small business at all but i am glad to hear about your outreach. although, i guess i'm not that familiar with it. how prevalent is that? >> we actually did many events that were specifically targeted to educating businesses and the public about age discrimination specifically but i would be happy to provide specific data about the number of events we have done around the country. >> i think that is good because

i think we have to help educate especially the small businesses in this area. sometimes businesses make a calculation to early entire meant and said this is when businesses need to downsize and i believe it is important to give them leaving the situation up to the worker in a situation is. could this court case become a factor when companies are deciding whether to offer early retirement plans or what kind of packages to offer? and in this economy i certainly would not want to see companies offer less generous, early retirement packages to their older employees. can you comment on that? >> well, one of the reasons we believe that the number of age charges has risen is in part because people are working longer. sometimes, out of complete choice, free choice. sometimes out of economic necessity, so we do have more older workers in the workforce. your concern is an important one

and one of the things the age discrimination in employment act recognizes is, first of all while it is sometimes true that older workers are the top compensated workers, or people for whom there may be economic interests in moving to a retirement status, that is not always true. there are older workers who are less well compensated and there are younger workers who are sometimes compensated more highly and a quarter of the age discrimination act is that is age is not a proxy for making what is essentially an economic decision, that is what happened. finally, there there are protections employers are able for example to seek waivers, where an employee chooses to retire or to accept some kind of an incentive retirement package and they don't have to do that at the risk of a later lawsuit if they are paying an

appropriate paper and the employees informed properly about that so there are protections on both sides. obviously, the laws in this area are balancing some very important interests. the legitimate employer prerogatives and economic interests on the one hand but the right of the employees and workforces to be freed from illegal discrimination. >> thank you. >> thank you senator. ms. berrien thank you for being here and thank you for your testimony and answering these questions and moreover i personally want to thank you are you ready to leadership at the eeoc. >> thank you for the opportunity to be here. >> thank you ms. berrien. now we will turn to our second panel. and that is, mr. jack gross, ms. helen norton, gail aldrich and eric dreiband. i will have to ask him exactly

how to pronounce that. i will just introduce the panel is, mr. jack rose was born and lived his entire life in iowa. is a graduate of drake university and worked for the iowa farm bureau for over 30 years. he is here to testify about obviously his first-hand experience with age discrimination and his case that went before the supreme court. ms. helen norton, professor norton is an associate professor at the university of colorado school of law. prior to that, ms. norton served as deputy assistant attorney general for the civil rights department of justice where she managed the civil rights division employment litigation educational opportunities and coordination review sections. gail aldrich is a member of the aarp board of directors. prior to joining aarp,

ms. aldrich served as chief membership officer for the society for human resource management and was senior vice president and chief administrator officer of the california state automobile association. is that dreiband? eric dreiband is a partner at the law firm of jones a day from 2003 to 2005 served as a council of the eeoc. prior to becoming eeoc general counsel mr. dreiband served as deputy administrator of the u.s. department of labor wage and hour division. i thank you all for being here. your written testimonies will be made a part of the record in their entirety and i would like to ask if you could sum up in five minutes as we go down the panel. first, we turn to mr. gross. i know you wish it were otherwise, but your name has now become how do we say, engraved in those famous, infamous, and

the litany of supreme court cases that people refer to that changed some settled law and has now become the focus of legislative interest in changing and overcoming that supreme court decision. mr. gross thank you for being here and please proceed. >> committee members and also i would like to say it again, senator harkin how pleased and proud i am to be leading the charge on this important cause. it is an honor for me to be here to be given an opportunity to speak up on behalf of billions of older workers, too many of whom like myself have experienced age discrimination. you invited me here to share my story sensei have become the name associated with age discrimination. talk about unintended consequences. i certainly never imagined that

my case would end up here, but i would like for you to keep in mind that while i think my case is personal and unique, in fact it is one that is being duplicated millions of times around the country almost every day and ask that you envision those millions of people who are depending on you standing behind me, at least in spirit. seven years ago, much to my surprise my employer, farm bureau insurance or fbl suddenly demoted all claims employees who were 50 and over and who were supervisors and above. i was included in that sweep. even though i had her teen consecutive years of performance reviews in the top three to 5% of the company and dedicated most of my career to making farm bureau a better company. my contributions were exceptional. they were well documented and the jury had a chance to hear those. for the obvious reasons i filed a complaint in two years later a

jury spent an entire week listening to all of the testimony, seeing all of the evidence and being instructed on the law as you wrote it. the verdict came back in my favor in spite of what my attorneys called a scorched earth event and i thoug the ordeal was over. in 2005, as we now know that was just the beginning. after that, if dl appealed and got my jury verdict overturned. even though i approve my case by a preponderance of the evidence via the appeals court, i did not show the right kind of evidence or as they said, so-called direct evidence. i'm not sure i know what that means. that left us no choice but to appeal to the supreme court and we were obviously thrilled, because getting to the supreme court is pretty hard to do, and when they accepted certiorari in our case we were quite frankly

very optimistic, knowing that 30 decades of court precedent and legislative action had done nothing but reinforce the laws on age discrimination. when we got there however, the supreme court broke with their own protocol and allow the defense to an advance an entirely new article, one that had not been briefed nor had we been given an opportunity to prepare a rebuttal. in other words they hijacked my case as a vehicle to water down the age discrimination in employment act, a lot written by the branch of government closest to the people when i was 19 years old. my wife and i, marlene, came to d.c. last year, leaving our highest court with the full rule of law inconsistently applied it to all areas of discrimination. instead, in effect they created

a discrimination for title vii cases, where one level or one tier and all others types of discrimination including h. were a second lower tier and required a different level of proof. to me, discrimination is discrimination and it feels pretty much the same regardless of whether it was because of gender or race or because you happen to grow old. all things beyond their workers control. we interpreted the law to mean that there should be equality in the workplace as long as you are willing and able to do the job, regardless of circumstances that are beyond your control. since the supreme court's decision in my case, i have been particularly distressed over the collateral damage that has now been inflicted on others because of the court's ruling. i hate having my name associated with the pain and injustice now being afflicted on over-- older workers because it is nearly

impossible to provide the level of proof now required by the court. i have to keep reminding myself that i am not really the one who changed the law. five supreme court justices did and you can probably argue one person actually changed it. i believe congress has a long history of working together on a bipartisan basis to create and maintain a level playing field in the work place. the ada is the one example that states everyone has the right to be treated equal in employment. i'm here to urge you on behalf of myself and other millions of older americans who want to continue working to pass this bill and the same bipartisan spirit you have shown in the past. i grew up in a small town in southern iowa. my dad was a highway patrolman and my mother a schoolteacher. i overcame 25 years of chronic health problems to achieve my education and success. marlene, my wife, and i have

been married for 43 years, started off with absolutely nothing but a strong determination to build a good life, and we did against all odds. we have two wonderful grown children and two delightful grandchildren who are the joys of our lives. i am here because frankly i agonized over this decision from the start. my wife and i sat down and we prayed about it. we decided it had to be done. we left to the outcome in gods hands in my experience eventually prevents anyone else from having to endure the pains and humiliation of discrimination, i will always believe that this effort was part of god's plan for my life and by extension perhaps also for yours. my advice from the folks back home was to just come out here and tell you to just give her done. message delivered. thank you very much. >> mr. gross, thank you are a

much. your poignant and straightforward presentation. ms. norton, and again, please proceed. >> thank you mr. chairman and senator franken for the opportunity to join you today. the supreme court's 2009 decision in grow significantly and a bind over worker's ability to enforce their rights under the ada and threatens to do the same for workers seeking to enforce their rights under wide range of other federal employment laws. in response s. 1756 would replace the courts new rule for title vii long-standing causation rule, rule that more effectively furthers congress interest in removing and deterring equal employment opportunity. as you know, current federal law , because of certain characteristics. for example they check prohibits employers from discriminating against an individual because of such individual's age.

in these causation provisions require proof of a nexus or a connection between the defendant discriminatory behavior and the adverse action experience by the plaintiff. employment decisions like so many human decisions are sometimes driven by multiple motives. these mixed motive cases raise a challenging causation question. when multiple factors motivate an employment decision, some of which are discriminatory and some of which are not, under what circumstances should we conclude the employer made that decision because of discrimination in violation of federal law? and answering this question the supreme court's decision in gross departed from 20 years of precedent to articulate a brand-new causation for the adea. under the courts new rule, which adopts an approach that had been at rejected both by an earlier supreme court in price waterhouse and by congress and the civil rights act of 1991 under the gross rule the burden of persuasion arias remains on the plaintiff not only to prove

that age motivated the decision but to prove that the age was the for cost of the decision. proving ages that but for cause of an action requires us to imagine a situation identical to the facts that really happened except that we remove the defendants wrongful behavior. here is age discrimination in the me is whether the employer would have taken the same action even if it would have behaved correctly not considering h.. requiring the plaintiff to bear the burden of reconstructing that sort of hypothetical scenario is especially difficult after-the-fact when the defendant is in a much better position than the plaintiff to show how it would have acted in what was in its mind at the time of the decision. here's an example. and over worker applies for a job for which he is qualified only to be rejected after being told by her interviewer. suppose that the employer ultimately hired another applicant who is arguably more qualified than the plaintiff for

the position. under the courts new rule even if the plaintiff can prove that the employer relied on inaccurate and age-based-- in response to senator franken's question even if the employer admit it relied on stereotypes in its decision. the employer will entirely escape liability unless the plaintiff can also prove the employer would not have made the same decision as age discrimination. by permitting the employer to escape liability altogether for its proven discrimination and thus giving the employer no incentive to refrain from similar behavior in the future the gross rule undermines efforts to stop and to deter workplace bias. not only does gross narrow the scope of protection available to older workers, threatens workers writes to be free from retaliation and a wide range of other contacts. the reports have begun to apply the new standard in gross to claims involving other employment protections.

s. 1756 would replace the grow standard with a uniform standard that furthers congress interest in preventing and deterring workplace bias. more specifically s. 1736 would apply the standards adopted by congress and the civil rights act of 1991, the standard proven workable after nearly two decades an operation to head for laws prohibit job discrimination and retaliation. s. 1756 would make clear the plaintiff establishes a violation of the adea or any other federal employment antidiscrimination or anti-retaliation statute by proving age court characteristic was a motivating factor for the decision. the burden would shift to prove it would have taken the same action absent discrimination and if the employer satisfies that heard in a court cannot hire restatements back pair damages. the employer however would still remain liable for declaring certain injunctive relief along with part of the plaintiffs costs and most importantly this include something that is

available to the plaintiff in public at large and empower the court to issue an injunction ordering the defendant to cease-and-desist that to continue to practice discrimination in future. empowering courts to enjoy continuing discrimination is one of the most important powers congress can confer. if congress recognize the civil rights act, this approach helped prevent and deter just commissioned by ensuring employers proven to have engaged in discrimination cannot completely escape liability for their actions while leaving employers free to make decisions based on ability or any other nondiscriminatory factor. thank you for the chance to join you today. >> thank you again very much missed norton for your testimony and for being here and we will turn to ms. aldrich. please proceed. >> good morning chairman harkin and senator franken. my name is gail aldrich and i am an aarp board member. i am pleased to testify today on behalf of older workers. older workers have long been in

aarp priority and roughly half of aarp members are employed either full or part-time. we advocate for older workers in congress and before the court to combat age discrimination. in addition arpa participates in the senior community service employment program annually recognizes employers for workers over age 50 and organizes job fairs allowing employers and older workers to find one another. before it became an aarp board member i was a business executive, responsible for applying federal and state employment laws on a day-to-day basis. i previously served as chief membership officer for the society for human resource management and i've been the top h.r. leader for three organizations. as a result, i am familiar with the challenges of addressing age and other discrimination claims by employees. i want to thank you and all the members of the health education,

labor committee for extending aarp, this opportunity to speak on the issue of protecting older workers against age discrimination and about the proposed legislation to address the u.s. supreme court's troubling decision last year in gross versus fbl financial services. aarp thinks this decision is wrong and the courts interpretation of what congress meant when it enacted the adea is an accurate. unless corrected, this decision will have devastating consequences for older workers. the decision could not havecome at a worse time for older workers who are experiencing a level of unemployment and job insecurity not seen since the late 1940s. this decision takes away a vital legal protection at the very time the economy does not give older workers the luxury of ignoring discrimination and simply finding another job. the unemployment rate for people

over 55 has more than doubled since the start of the recession, rising from 3.2% in december of 200726.9% in march of 2010. once out of work, older jobseekers face a prolonged and often very discouraging job search. the average duration of unemployment has soared since the start of the recession and a substantially higher for older workers. over half of jobseekers over 55 are found among the long-term unemployed, those who have been out of work for 27 weeks or more. once out of work, older persons are more likely than the younger unemployed to stop looking for work and drop out of the labor force. older workers need effective age discrimination laws when employers choose to display some , displays them based on their age due to stereotypes

rather than performance or other legitimate business reasons and clearly unfounded stereotypes about older workers linger. aarp attorneys have battled employer perceptions that older workers have less energy and are less engaged despite arpa research showing actually older workers are more engaged in their jobs and more reliable. some employers believe older workers are a poor investment for participation in training however arpa research shows they are more lawyer-- loyal to their current employers and better in terms of training investment and finally some employers have outdated notions that older workers are unable to adapt in the industries like computers and information technology. this, does bite enthusiastic embrace of virtually all forms of rapidly changing i.t. products and services. failing to allow older workers a fair chance to fight age

discrimination is directly contrary to other federal policies envisioning that americans will work longer. forces the 1983 social security amendments increased the age of eligibility for full social security benefits to be paid. eliminating discrimination is critical of older persons are to delay their date of retirement. working longer is good for society as earners typically pay more in taxes than retirees. is also good for workers who have more years to save and less time in retirement to finance and it is good for employers who retain skilled and experienced employees. aarp strongly endorses s. 1756. it would eliminate the second-class status for victims of age bias the court in gross seemed to embrace and the worst economic conditions in decades for older workers. congress should act now to

correct this ruling. thank you. >> thank you very much ms. aldrich. mr. dreiband. >> good morning chen-- senator harkin. i thank you for affording me the privilege of testifying today. i'm here your invitation to speak about the proposed for testing older workers against discrimination act. i do not believe the bill would advance the public interest. in particular, the bill is drafted will do nothing to protect workers from from age termination, other forms of discrimination, retaliation or any other unlawful conduct. i say this for three reasons. first, the bill incorrectly asserts the decision by the supreme court of the united states in gross versus f. e. l. financial services eliminate protection for many individuals. the gross decision however does not eliminate protections for victims. before the decision, age

discrimination defendants could prevail even when they improperly considered a person's age if they demonstrated that they would have made the same decision or taking the same action for reasons unrelated to age. the court's decision stripped away the so-called same action or same decision defense and therefore deprives entities that engage in age discrimination of this defense. for this reason, since the gross decision issued the federal courts have repeatedly ruled in favor of discrimination plaintiffs and against defendants. in fact, the united states courts of appeals for the first, second, third, sixth, seventh, eighth, ninth, tenth and 11th circuit had issued a decision in favor of discrimination and provided on the gross state to do so. second the bill will restore the so-called same action defense eliminated by the supreme court in the gross case. discrimination victims under the

bill may prove that a protective trade such as age was a motivating factor for the practice complained of, yet still lose their case. this is because the bill would deprive discrimination victims of any meaningful remedy in the same action cases. their lawyers may receive payment for fees directly attributable to a motivating factor claim, but the alleged victim will get nothing, no job, no money, no back pay, no front pay, no damages, nope promotion, nothing. for example mr. gross' case will be retried and he will receive nothing even if he proves that age motivated his employer to demote him if his employer establishes his same action defense. the bill may enable some lawyers to earn more money but who does this benefit? the answer is lawyers, not victims of discrimination, not unions and not employers.

third, the bill is overly broad, vague and ambiguous and may open up a pandora's box of litigation. it purports to apply to quote any federal law for breeding employment discrimination and several other laws, but the bill does not identify which laws it will amend. as a result discrimination victims, unions, employers and others will unnecessarily spend years or decades and untold amounts of money fighting in court about whether the bill changes a particular law. the public will have to wait two years or decades until the matter trickles up into the supreme court to settle the question case-by-case about one law after another. in the meantime, litigants in court will waste time money and resources litigating this issue with no benefit for anyone. the threaded decades of litigation about these issues is not merely hypothetical. note in this regard that it took 38 years of litigation before

the supreme court of the united states finally decided in 2005 at the age discrimination in employment act permits claims for unintentional age discrimination. congress can fix this problem rather easily by amending the bill to apply solely to the age discrimination in employment act which is the only statute issued a mr. gross' case or at a minimum listening to the law congress intends to amend. the recent lilly ledbetter act of 2009 specifically identified the laws congress intended to amend and congress can do the same here. thank you and i look forward to your questions. >> thank you very much. i will start with you. you state that my bill will actually harm, not help claimants because the bill will apply the same standard congress

enacted on a bipartisan basis as part of the 1991 civil rights act whereby a plaintiff who perceived in a mixed motive cases-- i want to emphasize in my bill the plaintiff has a choice of whether to proceed with the traditional, causation standard or proceed as a mixed motive case where remedies as you know would be limited. is at your issue not with my legislation but rather what the compromise that was forged as part of the 1991 civil rights act? >> no. the mixed motive provision of title vii has largely become a dead letter. out of its value in litigating cases both on behalf of the united states government when i served at the equal opportunity commission and in private practice on the behalf of the plaintiff and defendants ended nearly 20 years since that bill was amended plaintiffs have almost never invoked the mag's motive framework and the reason they have not done that is because the affirmative defense

deprives them of meaningful remedy even if they win. even with respect to injunctive relief. the federal courts have routinely held that in cases in which former employees are involved, that if somebody gets fired, the enchanter leta was not appropriate for them so it's worth salts what we see in title vii cases since the 1991 act is that the mixed motive framework is almost never invoked. i can tell you and hundreds of cases are litigated when i served at eeoc's general counsel i was not aware of and i was involved in many of them not a single case in which the eeoc itself asserted a mixed mode acclaim and a title vii case and the reason for that is simply there is no remedy available are limited remedies available at the u.n.. >> would you be in favor of compensatory and punitive damages under both adea as well as title vii? >> certainly congress could amend the age discrimination employment act to provide for those damages. right now the age discrimination employment act provides for a

full day-- back pay and that is the remedy that has been available since the law was enacted. >> how about title xvii? would you be in favor of compensatory and punitive damages? >> title vii currently permits competent tory and punitive damages under certain circumstances. the congress could do that and i would leave that to you decide whether you think that is in the public interest or not. he let me go to ms. norton here. mr. dry band has raised some issues here which i think need to be looked at here. basically, the bill, 1756 would return the law to what it was last june, apply the standard that has been in place for 20 years and remains in place for claim centers title vii of the civil rights act. part of the bill is modeled on the civil rights act of 1991, which codified the quote

motivating factor. framework or race, sex, national origin and religion discrimination under title vii. now, you heard mr. dreiband's explanation. can you address yourself to that and to whether or not we are actually harming plaintiffs under this bill? >> you are not mr. chairman. let me give you a couple of examples and we can start with mr. gross himself. under the price waterhouse standard, mr. gross one. if s. 1756 were in effect at the time of his trial mr. gross would have won only under the supreme court's new world of mr. gross luce's verdict and now he faces the prospect of a new trial in which he will bear the burden of proving what was not in the employers find at the time of the decision. a couple of other-- this jury

act prohibits employers from punishing employees for engaging in their civic duty of jury service or go plaintiff brought acclaim and under that case. the trial court applied gross, plaintiff was more credible than her employer, found the plaintiff had proved that her jury service was a motivating factor in her decision but nonetheless applying gross found the plaintiff could not prove that other factors also motivated the decision. undergrowth, she gets nothing. under s. 1756 at a minimum, she would get declaratory relief, a court order in joining the defendant from engaging in future discrimination against folks for serving jury duty and the prospect of additional relief depending on whether the employer could bear its burden of proving that would have made the same decision absent discrimination and we have seen similar outcomes under the americans with disabilities act and other statutes as well. ..

>> of the other thing i

would say is because of the same action defense the united states court of appeals are frequently and 13 the ruling in favor of plaintiffs. what happened before the rose decision predilection courts would rule men favored defendants to save your employer have established with same action defense and could not even get a jury trial now they say that is not available to employers. also the notion that requires that a pager the other characteristic is the only factor is simply untrue. the standard as described by the supreme court is the determining factor that could be one of another factor including at issue in the decision itself it said there is the height burdened

for the plaintiff. >> i feel that i am back and moscow. [laughter] >> first one to be very clear what happened to mr. gros case park of the trial court applied price pterhouse and he won the ce waterhouse was inappropriate because he did not have a direct evidence and the supreme court said if he should have got the absence of direct evidence of the answer that question i very much doubt we would be here today. instead they articulated a brand new rule that not only stripped mr. gross of his perfect but imperiled that of many others as well. he seems to be arguing that it did not go far enough to provide the bridges to newhall plaintiffs and i would be open to enhancing the damages available but said it the choice between

us 1756 but is there a question which standard is better for him with the victims? best 1756 dramatically improves the protection available to those victims. >> i have some questions but unrecognized a senator from minnesota. >> yes. are like to ask mr. gross are you surprised by 85 assertion of 55 that you are better off and because of the decision in your case. >> i am not an attorney. sam i this is beyond my level of understanding although i studied every case and i am quite

surprised by that. i agree if the supreme court had answered the case brought before my verdict would have been reinstated i don't see how i could be anything that better off if that had happened. >> that is an interesting thing ms. norton the case brought before the court is different than what they decided on? >> yes senator. the court had divided the lower courts whether are not dave plaintiffs' needed to have direct evidence of discrimination before he could get the price waterhouse instruction that question divided the lower court's that would have been most will come but instead they decided a very different question of a rule that is much more punishing of age discrimination

victims. >> is that unusual for the supreme court to make a decision based on an issue that has not been briefed? >> it is unusual for a good is raised for the very first time by the defendants brief in the supreme court after the attorney had already submitted their briefs and the united states government or the submitted their brief and the aarp defendants offer that argument for the very first time and as the chair of eeoc noted for the first court not to address the issue that have not been briefed adequately. >> it seems to me that given the decision by the supreme court just to begin with is hard for a worker to prove what an employer was thinking but now, after the gross decision the worker house to present some sort

of smoking gun and it seems that age was the determining factor for the firing or demotion. as an attorney who has litigated the case is what does the smoking gun look like? because most people don't write memos and fire because she has a sick granddaughter of mostly because she was told. how do find the smoking gun? to make you are right. it is rare but even if you have a smoking gun as a plaintive you may still lose. i offer the example that ms. jacqueline berrien offer even if it admits that they

are less productive even if that was a confession even if that plaintive has that, he or she will still lose and get nothing unless they can also prove the employer had no other reason to justify the decision at the same time it is very hard for that plaintiff to go into that employers head and explain what was not there at the time of the decision. >> it seems like it to me, there is a higher wall to climb and that is why i was those take and when mr. dreiband and seemed to say after gross the plaintiff was advantaged and seem to present evidence of that. do you know, the evidence the president's same anecdotal or based on some kind of statistics? >> i hope very much because

that is not the case for grander stood him to say some plaintiffs to win after gross some victims to win but many more do not. it is harder. >> do say they were advantage by it? is that you were saying? >> it depends on the case but some have come down since their gross decision with the federal court of appeals have declared the standard is more favorable to plaintiffs and defendants under the decision it issued by the supreme court. >> greater by the number of cases under which the opposite is true? i think that is. the issue. when you said in your testimony you seem too basically be in pawing fat it is the lower parts and the number of decisions for

the plaintiffs have increased rather than decrease to stand there seemed to be a number of subsets and while there may be a subset that plaintiffs have prevailed under the standard for they may not have before that is much smaller than the subset of plaintiffs who have not prevailed because of the switch would you say is the greater? >> i see the majority of federal court of appeals courses decided since the gross decision have been more favorable to plaintiffs >> nine circuit federal courts out of 12. >> is that your experience as you read it? >> no. it is not because they won by despite event that is very different with the

advantages just because a few plaintiffs can survive the. >> is there a statistical way of doing some analysis? >> i say there is no subset that they are advantaged. >> our love to see. i have run out of time. sorry. but i would love to see some statistical analysis of mr. dreiband assertion and also if i could some of fiscal analysis. is that okay? do both of you agreed to do that? >> i am happy to provide any affirmation i can. >> thank you. >> it is statistical

analysis. >> i think i was pretty clear that i was talking about two subset. one of which the plaintiff was clearly advantage because of the gross standard and the other where they have been disadvantaged. you're very strong assertion was the first subset is much larger than a second. and mrs. norton that the first subset is nonexistent. i think it should be pretty easy to establish whose testimony is more persuasive thank you very much. >> let's try to get a little further along.

talking about who is disadvantaged and who is not part by one something cleared up for the record personally. when mr. gross brought his case and the jury decided he got compensatory damages i believe i don't know if you got punitive damages. >> not pain and suffering just lost compensation. >> was there in june to relieve? just compensatory damages. but not in june to relieve? >> i do not read copper or domain to quibble but that is not available under the age jack teagarden damages from pay loss. >> tactically compensatory means noneconomic damages.

>> listening to mr. dreiband under s1756 mr. gross would not be eligible to get lost wages under that. my council says that is not so. mr. gross would still be able to get those kinds of damages. can you enlighten me on that. >> absolutely. >> mr. gross recede the instruction he had to prove that age was the motivating factor in his decision to convince the jury. then the defendant was had to persuade the jury it would have made this same decision and it did not persuade the jury at price waterhouse under s1756 do find that age is a

motivating factor the jury said yes. that means endear bell now we know that mr. gros will get the in june to relieve. the fees and costs of the second question to find the defendant proved that it still would have devoted presumably the same answer, no then he gets to keep an entitled to whatever back pay and what he can improve under your bill. >> do you agree with that mr. dreiband. >> the way professor norton agreed i don't but what i don't think we would agree is that why any plaintiff would pursue a mixed motives theory under the bill. the rattled days really is under title vii a plaintiff can pursue a claim because of standards described by

gross under section 703 and not invoke the mixed motive provision which is a separate section. in my experience of general counsel of eeoc and representing plaintiffs and defendants plaintiffs are victims of title vii almost never been mia experience never have mixed motive because there is a risk that even if they prove discrimination happened, there is a chance of defending can prove this defense then they get nothing. as a result what happens in the real practice of law is that plaintiffs don't tend to pursue that three. the cases are extremely rare as a result. >> under s1756 i have that choice. >> of course. could you come up with a bill that has even greater damages for plaintiffs'? you bet but is it better than gross?

you that even better than from price waterhouse we saw him seeking instruction under the ada case they lost under gross under the jury the knicks modem instruction there's no believe to see that would not seek the destruction under your bill. >> of my bill does not take that away from them. >> in the case of stage going to the 11th circuit this year. she worked for her employer as the chief executive officer said to her i need someone younger who i can pay less. also said to her allegedly you're very old you are very enough to you should be taking care of old people. the employer asserted at the defense of her performance was poor and under price waterhouse mix with a

standard even if it considered age that it had would have taken the same action because of her of poor performance but the district court threw the case out and said there was even enough evidence despite the statements because under the price waterhouse standard missing in action she loses. deny the state's court of appeals the 11 circuit dayton-- circuit this year read the gross decision and reversed enrolled in favor because the court said the gross decision removed the so-called defense that the employers happen if i could clear up one other point* very quickly senator frank in mean i did not mean to suggest he is better off because he lost in the eighth circuit he would have been better off if the price

waterhouse decision did not require direct evidence of discrimination in my review it look like a harmless error and i think the real problem in the case was the concession that the court of appeals said there was no direct evidence and it was framed in that basis rather than the fact there was admissible evidence of discrimination he and his lawyers presented at the trial i want to clear that up. >> do you have response? >> i do wish the supreme court had actually answer the question because i am quite confident and predict again it would side with mr. gross said direct evidence is not required because it is so unusual to require types of evidence and accord is reelected until congress instructed to do so and there is nothing that requires that as opposed to circumstantial evidence. your bill would fix that.

>> mr. gross. you're listening to all of this. [laughter] back and forth and the legal ramifications. but just in your own head head, you're going back to another trial this november. right? under the supreme court decision now it seems to me, under the supreme court decision, you have to prove that to age discrimination was only zero or the. >> but four. >> he can prove it was a motivating factor but must also prove that the employer would not have made the same

decision but have to explain what what was along with age discrimination and how the motivated the decision. >> but for his age the employer would not have made that decision? how do you prove that? how do prove something like that? it is almost trying to prove a negative. >> that is the whole problem of direct evidence and the smoking gun. we did have the memo that have been produced one year before identifying people who would be demoted and we noticed there was only one common denominator we were all over 50 but apparently that is not a smoking gun. there is nothing we could have done to change your performance wives. >> that distills it down mr. dreiband in these cases that you just cited, and not too

often do you have the smoking gun. maybe in a few cases you do in those seem to be the case is that make it to the circuit rehab a definite smoking gun. but in most cases you do not have that. so use federally high bar if you have a smoking gun, you will win even regardless. but that does not happen that often. there is a lot of other things. but what we have said in the past is if you can show that age was one of the factors factors, that is the burden they have to show that they showed it because of the

people that had been demoted over the age of 50 they have that in common. then the burden goes to the employer to say we have this evidence and you have all the documentation, records, perf ormance standards and all of this stuff on your employees'. now you can show that that was not the decisive factor and there were other reasons why you devoted mr. gross. they can do that. they have the data but for mr. gross to show that the four that they would have made a different decision is almost impossible on lessee has a smoking gun. to be it seems from a layman's standpoint, that is a difference between your approach and ms. norton's

approach or our approach here. we don't want to limit this to smoking gun cases. we want this more broadly because we know and real life, in real life you don't often get the smoking gun and therefore we have said you can show that this was a factor, the burden shifts and they show it was not just but for his age he was demoted or fired. isn't that the essence of what we're talking about? >> with all due respect senator harkin, no, i am not suggesting or do not mean to apply that the plaintiff and the discrimination case needs a smoking gun in order to prevail. the supreme court united states in 1973 established the burden of shifting have been in title vii with age discrimination.

in which there is not a smoking gun. begins operating under the standard the cousin of race or sex scandal standard over 40 years have been winning cases without any kind of smoking gun for typically the evidence includes things that mr. gross presented for example, according to the district court opinion it was evidence day former subordinate was put in a position that he howled and a former supervisor testified in his case mr. gross was much more qualified they and the younger former subordinate. and so the evidence may not have concluded a smoking gun or direct evidence, but under that standard he prevailed and void prevail again if the evidence is as described by the district court for carded nine inouye maine to apply the smoking

gun is necessary. but because of the framework of the bill and what it fails to identify, with against will be left fighting over that issue unnecessarily for many years and a #2, because there is no meaningful remedy available if the employer approves the same action defense in the same way title vii does not provide that mid remedy to victims most will not pursue the mixed motive framework. that is what we have seen and i think that is what we will see if the bill is enacted in its current form. >> a slight for conference of evidence. the preponderance in this case of the legal experts that my staff has talked to which is a good legal expert in his own right, and others

, say that mr. gross is not and a good position to go back into the trial as he was before we use say he is in a better position. as i said, almost all of the legal experts that we have contacted to draft this legislation says this will put him in a better position at least equal that he was in before. am i wrong? >> if we could pass s1756 today to get the president to sign it was this put him basically in a similar situation he was in before or in a worse position? going back to trial in november. >> a few passes before he goes to trial he will be in a better position. >> that is why keep hearing from everybody but you don't agree with that. >> i would encourage the

committee to go ask the eeoc how many mixed motive cases they have litigated since 1991 per you will find the answer is almost zero. the question i would have is why? the answer is because neither the government nor the victims of discrimination can prevail the possibility is they will not because even if they prove discrimination there are no damages available, no back pay, no reinstatement or nothing so the results most given the choice will pursue the other alternative framework. >> maybe i am wrong but under 1756 he could still get too maybe i am wrong in the use of terms maybe not compensatory but back pay and loss of wages. am i wrong? >> you could get liquidated

only if the employer fails to approve the defense. that is true. >> that is what happened at trial. >> that happened in the first trial. by what did that happen again? >> it may. >> then why would he be disadvantaged? >> because it may not happen the. >> but under the law right now with the supreme court decision he will have paid dickens of a time proving his case. >> how can he prove this? he can. there will bring in the same evidence brought in. he would be better off if the verdict was not reversed. if the u.s. court of appeals had not reversed the verdict he would be in a better position. >> what we're trying to do is put 1736 back to the way it was before we use a we're

not doing that? >> the bill does not exactly mirror the standards that confirmed at the time the jury trial in this case. there are changes that there was no longer the direct evidence required in the mixed motive case. but the question is why someone would want to pursue it? it is true there jury did reject in this case the same action defense and may do so again. >> i don't know mr. gross. i don't know. [laughter] item no fee pursues a mixed motive course of action rorer and a previous case was a mixed motive force employee age discrimination? >> it was mixed motive

instruction to the jury but from malay prospective they also about the extortion that said farm bureau inlet could show any evidence they would have taken the same action an absence of major issue find in favor of farm bureau. that believes that causation so the accuracy that the language is getting parcel back-and-forth i can see it. >> that is a very good question. the burden of proof matters and matters at trial the employer has the burden of proof. gross blips that so it never ships to the employer even if the plaintiff can prove it yours returns to the status quo and that matters.

>> rotor the instructions to the jury be right now? what would the instructions be two the jury. >> to find he approved by preponderance of the evidence was age was the but for cause of your demotion and. >> but for that he would not have been demoted. do you think the jury could understand that? i have a hard time understanding that. >> if i could clarify, the defense lawyers in the case did propose the but for model standard by the u.s. court of appeals in that circuit and that instruction explains the but for causation that the age has to be the only reason for the past to be a determining factor. what your altmann eight

arguing if there is a motivating factor between those two standards and discrimination plaintiffs have been winning cases for decades that the gross decisions said and the notion somehow it created the impossible burden is untrue. but is not what we're saying on the court and not true under title vii. >> two briefly respond we can take solace in the fact we know how the civil rights act of 1991 has worked. and has been in place 20 years. also know it was the position taken by the reagan department of justice during price waterhouse litigation with the briefing of the case in 1988 and the first president bush endorsed the same standard in 19912 balance both employer use a

and the interest of the employers to make employment decisions. >> you have been very patient. [laughter] the. >> i am not an attorney in my background but analysts say of my perspective looking at the site think of all of the employees that have age discrimination as a tougher standard for pro i think you have heard from mr. gross of difficult it is to come forward on age discrimination cases. older workers are more loyal and have a hard time pledged it seems to be very unfair not to have the standard it is also very important to look at the context. we just surveyed aarp and

should the numbers are higher now where older workers said they have seen or experienced discrimination in the workplace. workers between 45 and 74. 60% said that. i think it is extremely important to bear like to see us restore the standard that says is similar for other discrimination cases. >> i think that is the bulk of it and what we're trying to do. i was quite taken aback to think what we were doing was not helping with the 12 men somehow their older workers are in a better position because of the supreme court decision. i find that very hard to understand. i know there are fine illegal points but that

seems to be the instructions from the jury under the previous law. it did put the burden on the defendant after he got over the first hurdle and the jury said no. they did not show there was any other reason and age was a factor but now it assault on him as he goes back to trial court. he just has to show everything. i suppose if he has a letter saying we want you out of here. could be a smoking gun i suppose or something like you said in these other cases. but that just doesn't happen that often. and also ms. it gail aldrich

talked about loyalty, friends and being at the company a long time. to raise the bar up again it would seem to me that to just the way things are right now to say to an older employees facing that kind of discrimination, it is better not to fight but just leave and go somewhere else and not put up a fuss about it. that is not the right way to do it. that is giving and to discrimination. you have negative of people to have the convictions to understand is not just about him but a lot of other people. lot of people are hit by this. and a lot of people other than mr. bourse were

affected but forever reason they decided not to go forward for whatever reason. hi thank mr. gross understood if i don't stand up who will? who will say wait a minute. this is not the right way to proceed in our society? i think if they will protect against discrimination:that is the reason why we have to get back where we were so that even though he doesn't have a smoking gun he has the preponderance of evidence and can show wage was a factor and let the defendant show that was not the overriding there were all of these other reasons why they were demoted or fired.

that is what we're trying to get too. am i wrong? >> briefly me i respond? with respect to any of my remarks i want to be clear age discrimination is a terrible problem in the united states and has planned for a long time. i did not in any way mean to suggest that i thought that age discrimination victims should have a heightened burden when i served as said general counsel read the bigoted hundreds of cases where personally intervened and argued on behalf of the cases on the front and/or others from major law firms and argued in the courts of appeals and the supreme

court cases. we were covering more money for discrimination victims through the litigation program during my tenure than any other time before or since in the eeoc history i am honored to have served with many of the people who were still there. i want to be clear i did not mean to suggest age discrimination is not a problem were victims should have the onerous burden to prove their case. but as somebody intended to apply and a 12 make the record clear. >> i never inferred that on many of your statements. i am just trying to figure out that there seems to be different approaches on how to do this. we're trying to figure out what is the best approach? talking to those different groups to figure out what is the best approach all i can say is maybe we can make it

tougher i don't know. also have to look at the reality of what we can do that it seems to me what was happening before and the fact you were successful whenever the law was before seem to work pretty well. and now, since the gross decision it has created turmoil, a lot of uncertainty and from what i understand it will create a higher burden of proof of what had in the last 20 years. if that is the case, then i don't want to have the higher burden of proof. i think they already have the burden of proof and i

think of logic of the law we have had is pretty good it seems to me. but i did not inferred that you were opposed to discrimination but there are two different viewpoints of how to get to the solution of this which always raises the questions around a. >> this is very interesting. do we have any other comments before i close? >> could i make one small point*? >> something we have not focused on they do think congress could easily fix is the problem in the bill of ambiguity in terms of which was the bill would amend. the law says that it would apply too any federal employment discrimination of law and by not listing those it creates a lot of

uncertainty that i think could easily by be clarified if they wanted to list all laws so i encourage them. >> i have spent through them. my counsel tells me that the court said it did not apply to the jury improvements act. but here's what i remember about specificity. lawyer passing with the american and disabilities act may be off point* legally but there was a move by some that said we could not leave that as broad as it was but specify every single disability.

that is the impossibility. there is permeant haitians of all kinds of different disabilities you my list one but maybe it was a subset and it did not apply. and it seems to me if we do not leave this broad and tried to specify, i bet to we would not have looked at the edge three improvement act. hundreds or hundreds of different things out there that congress has passed what if we forget one? then we have to come back here to pass another law to cover that? that is why the idea of specificity zero specifying every single law does not work that is why we leave their broad. and we leave it up to a say this, to the courts? to say what was the intent? we will have plenty of

written and also and our record and in terms of our report language to have this applied broadly. and has to be applied broadly and that is what we have to do do. that is my response on that. thank you very much progress has been very enlightening and i wish i paid more attention and law school. i thank you very much the record will be kept open for 10 days four senators who could not be here today. the committee is adjourned. [inaudible conversations]

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>> like to voice my support for the tester hutchison amendment to ensure banks of all sizes pay their fair share by broadening the assessment base that is used by the fda see. it would determine paying premiums by basing on total assets hong not just domestic deposits. 442 long the committee bank has paid the disproportionate share of the deposit insurance premiums. this amendment levels the playing field and it is a good piece of policy. triplets community banks on a more equal footing with the large bank conglomerate is. i urge my colleagues to vote for this common-sense amendment. let me wrap up by saying independent community

bankers have looked at this amendment it would reduce assessments for 98% of the banks will less than 10 billion in assets keeping nearly 4.5 billion dollars in the bank much-needed campbell to make the economy grow. madame president i yield the floor. >> account much time as on our side? >> eight minutes. >> bollea notify me when i have consumed five minutes? there is another speaker. madame president there -- i want to join senator tester and the increasing number of co-sponsors to support our amendment that insures banks of all sizes pay their fair share of deposit and share for the risk they pose to

the banking system burper or madtv is intended to level the playing field for the committee brings new for far too long have paid into the insurance fund above and beyond the rest. the fdic levels, levies the insurance premiums cahal and the bank told domestic but that is not the best way to analyze the safety. financial assets create risk in the system. non deposit assets are held disproportionately buy larger nine community banks and can be more complex and risky. committee banks less than 10 billion in assets rely heavily on customer deposits. this penalizes safe institutions by forcing them to pay deposit insurance premiums above and beyond the risk they pose to the banking system.

despite making up 20% of the assets these things consume 30 percent of the premiums through the fund for kravis same time large banks hold 80% of the banking industry's assets but pay 70 percent of the premium. we would fixes inequality. that is what the tester/hutchison amendment does by requiring the fdic to change the assessment to a more accurate measure. a total assets with tangible capital parker would broaden the assessment base and what better measure the rest gave bank poses. a bank's assets include the loans outstanding and security one only need look back to the last two years to know that that is more

likely to show than just the pauses. >> it was not the deposits, it was caused by matt -- bad mortgages are packaged into risky mortgage-backed securities to create derivatives. >> the use of large institutions are what led to our financial crisis. our amendment is particularly timely because the fdic has now said the banks will have to prepay into the insurance fund for three years and all of that will be due this year. the three year assessment due at the end of this year it is so important we have a fair assessment ratio and that is what this amendment will do. it will have a ratio for

rather they zero in to the deposit fund. but so i am pleased to be the sponsor of this amendment to the merged group that in committee to make sure we were doing the right thing and i am pleased senator tester joins me in this upper and we have a very bipartisan group of supporters and it is my hope we pass the overwhelming vote of this amendment to what in to the wall the fdic and posit -- deposit insurance will be based on the standard the levels the playing field for community banks so the big banks don't have the advantage. the community banks are giving the loans to businesses throw our

country. they were the ones who were there in the crisis as best they could to try to put liquidity into the markets. they did not cause a crisis and certainly should not paid to fight for it to an i.r.a. to look like colleagues to support the tester hutchison amendment. >> tiananmen some by my democratic colleagues some by the republican i am thankful the majority leader said probably would get a full discourse with the amendment of which i am also a co-sponsor 3749 for more than 75 years they presidents of the fdic insurance has meant it americans through the deposit savings and can sleep soundly at night. that is a basic. many small community bank you know, it will not be treated like a casino but protected. but has said banking sector

has consolidated and large national banks have been merged the smaller banks are squeezed and they paid 30% of the total of the fdic assessments but only hold 20% of the nation's banking assets and did this time the larger institutions to pay their fair share. in this amendment we will improve competition in the marketplace to help small businesses and everyone knows small businesses across the counter having a hard time getting loans to lower the assessments, i believe and others believe we would help increase loans to small businesses and the small community banks are for more active and somebody who was in a prior life was involved representing some of those banks we can tell you they will keep the economic engine going and

the small town and i am pleased the institutional custody levels are not unfair or rule in the financial system. sphere if castillo's great for asset management to restore fairness to the fdic assessment system without imposing large unjustified. >> your time is expired. >> i urge my colleagues to support to amendment and thank-you the senator from montana. >> thing, madam president of first of all i want to thank the senator from massachusetts for his comments per cory appreciate your co-sponsor ship also senator hutchinson the hard work on this amendment and i very much appreciate her ability to get things done in a fair way and i thank you for that.

senator hutchison that i have come to the floor several times to talk about this amendment, the bipartisan amendment and to preserve fade fdic insurance fund has said before it would direct them to basis segments on assets rather than the process forcing big banks to pay their fair sure it would ensure that community banks should pay only their fair share and no more or no less. fixing the lopsided system we have been out there were also detect a fund which is critically important that have the resources to be self sufficient to be prepared for any future crisis. senator hutchison and i think it makes a great deal of common sense as do the other co-sponsors per criteria employees to we're

joined by some many of our colleagues say and it is one of the first ones of parkinson duration. >> with that it is a question of equity that the fdic insurance fund is solvent for years and decades to come. >> madame president i arrived today to discuss the amendment i have offered on behalf of the republicans to greatly improved consumer financial protection. the amendment recognizes that the financial regulatory system failed too adequately provide consumer protection and our system is broke and it needs effects. we realize that. the reason financial crisis has revealed we were asleep at the switch and had neglected to couple the basic responsibilities of consumer protection. far too often the regulators are more concerned about

pleasing the entities that they regulated them looking morale for consumers. it is clear we need to refocus the priorities of our financial regulators and to ensure that consumer protection gets what he deserves. make no mistake republicans want to strengthen consumer protection. we're all consumers may need to make sure that consumers get a clear and understandable disclosure so they can make good decisions. we need to make sure regulators have sufficient authority to come back to fraudulent practices. we also need to make sure that our consumer protection laws and regulation keep up with change in our dynamic and innovative marketplace. madame president, any change to consumer pro