the social goal, can effectively reduce the very job opportunities it seeks to create by diverting energies which would otherwise be devoted to the maintenance of full production. COMMENTS ON SPECIFIC PROPOSED LEGISLATION Now let us look briefly at the kind of problems which H.R. 3651 would raise. Employment and layoff should be entirely without regard to age, except in those situations recognized in H.R. 3651 where age is a bona fide occupational qualification or all employees are covered by a bona fide retirement policy. It is imperative, however, that there be no conflict with either new or established retirement policies. Pension plans and insurance plans should be excluded from the coverage of this proposed legislation; otherwise, the measure could create havoc with such private plans. Any law should specify clearly that bona fide pension and insurance plans, and similar types of employee benefits, are not to be considered "terms or conditions of employment" with respect to which it is unlawful to include differentiations based on age. Because of the farreaching implications, any such significant revision of pension and insurance plans in this country should be accomplished knowingly and intentionally, not inadvertently by legislation designed to resolve an entirely different matter. Further, we believe it is undesirable to include criminal penalties in such a proposed law. This is, at best, a very difficult area in which to enact intelligent and workable legislation. The addition of criminal sanctions, even for second offenders, can obstruct rather than assist in the resolution of the sensitive social problem which this legislation seeks to reach. The various ability and skill factors which have to be assessed in interviewing and placing an applicant make the problem one which should not be subject to the threat of criminal penalties. The very existence of criminal sanctions could militate against success of the "informal methods of conference, conciliation, and persuasion" envisioned by H.R. 3651. Nor should such prohibitions be enforced by an administrative determination of guilt as provided by the bill. Individuals responsible for day-to-day administration of a particular statute tend to become advocates of the cause which the statute seeks to promote. They soon become less than objective when individual cases are presented to them. These provisions will be susceptible to sharply varying interpretations. Enforcement must be objective and impartial; it must not unduly hamper an honest employer just because his judgment and evaluation of the ability and skill factors involved happen to differ from those of Department of Labor employees. A better procedure than administrative hearings would be for matters in dispute to be resolved by a new trial of the issues in a United States district court. In order to avoid a further increase in the number of administrative agencies within the executive department of the federal government, we strongly support the view that this measure, if enacted, be administered by the Wage and Hour Division rather than by an entirely new agency. The Wage and Hour Division, which presently enforces the age provisions of the child labor laws and the wage discrimination provisions of the Equal Pay Act, would doubtless have the staff and experience to deal with the problems of age discrimination. Finally, in order for the act not to discriminate in favor of workers in any particular age bracket, such as 45-65, it should contain the exception "where the differentiation is based on reasonable factors other than age" and the exception of a “bona fide occupational qualification reasonably necessary to the normal operation of the particuar business," both of which are proposed in H.R. 3651. SUMMARY Voluntary efforts offer the best means for continued advancement against arbitrary age discrimination in employment. No matter with what skill the proposed bills may be improved, legislation will not resolve the problem of arbitrary age discrimination. But voluntary efforts can. With the cooperation of employers and employees alike, great strides can be made against whatever barriers still exist. In furtherance of its long-standing policy, NAM will continue its efforts to encourage manufacturers to avail themselves of the skills and experience of older people who have so much to offer as employees. We continue to believe that more significant progress can be made through voluntary efforts, at both the national, state, and local levels, than by national edict. THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, Hon. JOHN H. DENT, Chairman, General Subcommittee on Labor, DEAR CONGRESSMAN DENT: This Association wishes to go on record with your Subcommittee in connection with its consideration of H.R. 3651 which would prohibit discrimination in employment on account of age. Our Association recognizes the fact that this measure deals with a most difficult problem; but if legislation is to be enacted, we hope that you will give consideration to the dangers of hiring older workers in construction because of the many hazardous situations which prevail in the industry. The construction industry, it is suggested, be most carefully considered for waiver of the requirement for the hiring of older workers on construction projects because of the inherent hazards. It is not uncommon to require men to work from scaffolds, ladders, or stages, nor is it unusual to encounter tunnel operations in construction all of which require men with fast, unwavering reflexes. We suggest that a provision be added authorizing the administrator to make an exception with regard to employment in the construction industry based on consultation with members of the industry. The practical effect of this is shown by the enclosed Wage-Hour Regulation, which draws a line of age in employment in hazardous construction work. No doubt you will treat the employment of the older workers on construction with the same careful consideration given to minors. The employment of minors under 18 is, as you know, prohibited by law on several phases of construction. We hope that the Committee will recognize the unusual age requirements and circumstances that exist with respect to the work force in our indusry. I wish to thank the Committee for allowing us this opportunity to submit our views on this pending legislation. Sincerely, WILLIAM E. DUNN, Executive Director. AIR TRANSPORT ASSOCIATION OF AMERICA, Re: Bills Against Age Discrimination: H.R. 3651, H.R. 4221, and H.R. 3768. Chairman, General Subcommittee on Labor, Committee on Education and Labor, U.S. House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: The attached statement is submitted in behalf of the scheduled airline industry as a supplement to our original statement filed on August 15, 1967, in connection with your hearings on bills dealing with age discrimination. The supplemental statement is believed necessary due to the fact that during the course of the hearings on H.R. 3651, H.R. 4221 and H.R. 3768, proposals which we believe to be unjustified were submitted to change the basic theory of the proposed legislation from protection of the "older worker" to protection of the younger worker. Since the proposals presented were based on the assumption that wrongful personnel policies and practices exist with reference to the employment of airline stewardesses, the airline industry believes that the facts in regard to such policies need to be placed in the record. Our supplemental statement contains a complete explanation of the airlines' stewardess reassignment policies, and we believe obviates any allegation that the reassignment policies relate to the problem of the "older workers" and their employment. Thank you for your consideration. S. G. TIPTON, President. SUPPLEMENTAL STATEMENT OF THE AIR TRANSPORT ASSOCIATION OF AMERICA Re: H.R. 3651, H.R. 4221, and H.R. 3768 Relative to Age Discrimination in Employment. This supplemental statement is submitted in opposition to proposals made by witnesses during the hearings before the Subcommittee on August 15-17, 1967, to alter radically the character and scope of H.R. 3651, H.R. 4221 and H.R. 3768 by extending their coverage far beyond the problem which prompted the introduction of those bills and the studies which support them. We refer to proposals to transform them from bills addressed to the problem of age discrimination in employment against "The Older American Worker"-basically those 45 to 65into bills also covering the younger American worker-those below 45. I. The Genesis of Older Worker Legislation H.R. 3651 and the other bills under consideration are themselves the product of considerable study of the specific problem to which they are addressed, and of some significant legislative history. That history explains why their coverage was basically limited to persons 45 to 65. Pursuant to Section 715 of the Civil Rights Act of 1964, the Secretary of Labor prepared and delivered to the Congress in 1965 a report entitled "The Older American Worker," defined by that report as persons 45 and over. The report recommended four types of action to increase employment opportunities for such older workers. In the 89th Congress, the Senate included in its version of the 1966 amendments to the Fair Labor Standards Act (Public Law 89-601) a provision outlawing age discrimination against those persons covered by the Secretary's 1965 report-those 45 to 65. That provision was deleted in conference, but a substitute provision was enacted directing the Secretary of Labor to submit to the 90th Congress, not later than January 1967, "specific legislative recommendations for implementing the conclusions and recommendations" contained in his 1965 report (Public Law 89-601, Section 606). On January 23, in a Special Message to the Congress on "Older Americans" the President proposed legislation prohibiting arbitrary and unjust discrimination in employment in respect of persons 45 to 65. H.R. 3651 and the identical bills are presented as carrying out the terms of the President's Special Message and presumably represents the Secretary of Labor's proposed implementation of his 1965 report on the "Older American Worker" as contemplated by the 1966 Act. II. Union Proposals to Alter Theory of "Older Worker" Legislation During the Subcommittee hearings, it was proposed by representatives of several labor organizations that the provisions of the new legislation be made applicable to all persons regardless of age, or at least to a very substantial category of persons under 45. According to the Department of Labor's statistics, there are always twice as many persons in the civilian labor market who are below 45 years of age (46 million) as there are in the 45-65 age category (26 million). Thus, the proposed extension of the legislation to cover persons of all ages would roughly triple the number of persons included within its provisions and increases the employees subject to its coverage by several tens of millions. The proposals to effect this radical change in the scope and coverage of the legislation do not even pretend to be based upon any general examination or study comparable to "The Older American Worker" report of the very different questions raised by the new proposals in respect to younger workers. As far as we are aware, there is no significant age discrimination problem affecting younger workers requiring remedial legislation. Furthermore, nobody appears to have inquired whether the adoption of a statute outlawing age discrimination at ages below 45 would have undesired effects upon apprentice training or other programs designed to provide special employment opportunities to very youthful or deprived groups. III. Unions' General Proposal to Serve Special Interest of Very Small Group It is clear from the testimony before the Subcommittee that the sweeping proposals to revolutionize the theory and character of the "Older Worker" legislation are prompted, frankly and overtly, to answer the special demands of a relatively small handful of employees in a unique situation-those few airline stewardesses who are unwilling at age 32-35 to accept ground employment with the airlines which employ them. Because this is the source of the proposals the Air Transport Association feels a special interest in opposing them. As it happens, this tiny group is already represented under the Railway Labor Act by powerful unions skilled in collective bargaining techniques, and are thus not in need of special legislation to meet their special problem. Moreover, the employees on whose behalf this sweeping legislation is sought are persons (1) who specifically agreed at the time they were hired as stewardesses that they would cease being flight stewardesses at some specified age; (2) who have al ready agreed, in the collective bargaining process, that their union contract shall not bar their termination as flight stewardesses at that age; (3) who are generally offered, at or about the age for expiration of their assignment as flight stewardesses, other employment on their airline, at no reduction in pay. IV. No Justification for Altering Theory of "Older Worker" Legislation to Cover Airlines' Stewardesses Reassignment Policies The Subcommittee has beeen told in effect by a leading union representative of those few stewardesses that they do not want the other "straight 40-hour week" ground jobs at ages 32 or 35 because those jobs would mean the loss of glamour, the aura that surrounds a woman who earns her living in the air. The Air Transport Association respectfully suggested to the Subcommittee that the fear of a small number of young women that they are going to lose some of their glamour at ages 32-35 if they accept airline employment in a position other than as flight stewardesses, hardly requires federal legislation. It clearly does not justify adding tens of millions to the coverage of the proposed statute. Some of the union testimony before the Subcommittee may have left the impression that stewardesses who reach a certain age have their employment terminated at that age without regard to their future employment status. That is far from the fact. The airlines who have age restrictions generally recognize a responsibility to find alternative employment with the airlines at no loss of pay or seniority. That obligation has been formally recognized in agreements reached in collective bargaining which are applicable to all stewardesses who reach the reassignment age during the term of the contract, as shown by Attachment A. We also attach evidence of the alternate employment policy of another airline with age restrictions which is a typical illustration of the application of reassignment on carriers having such a policy (Attachment B). We also submit, as Attachment C, a copy of a determination of the New York State Unemployment Insurance Appeals Board in a case involving American Airlines which describes how American's alternate employment policy works and which, in practice, finds that a stewardess who failed to accept assignment to different work under that policy had quit her employment without good cause. That finding emphasizes, we think, the fact that the proposals for sweeping changes in the age discrimination law because of the so-called "airline stewardess age problem" are unsupported by a single case in which the airlines' stewardess reassignment policies have resulted in forced unemployment. The stewardess representatives have also suggested to the Subcommittee that stewardesses should not be required to transfer to other jobs at age 32-35 because they are not trained for the other employment. For that reason, it is said they should be permitted to remain as stewardesses "as long as they can." Most stewardesses cannot physically expect to continue as stewardesses to or past middle age, and that they must stop flying as stewardesses long before normal retirement at age 65. If a woman of 35 would have difficulty adjusting to ground employment because, having been a stewardess for 15 years, she is not trained for anything else, she is likely to be in a far worse position if she is permitted to continue flying until 45 by which time chances are overwhelming that she will physically have to stop. Obviously, readjustment to other employment will be far more difficult at 45 than at 32 or 35. In sum, a policy of reassigning stewardesses to other employment provided by the airlines during the stewardesses' early 30's is in the interest of the stewardesses as well as the airlines. The policy does not create a problem; it is an attempt to solve one. The airlines who have stewardess age regulations have them because they have been found necessary to maintenance of a satisfactory level of stewardess service under the conditions applicable to the particular airlines. Those airlines have studied their own problems carefully and can demonstrate that strength, agility, resilience, attractiveness, and high motivation-all natural attributes of youth are characteristics necessary under the particular conditions of their operation to quality performance of the stewardess function. However, following as it does, the close of the hearings on H.R. 3651 and other identical proposals, this is not the occasion to argue the merits of the airlines' stewardess age policies. The bills to which these hearings relate are applicable to the Older Worker and are not addressed to the airlines' stewardess age policies. The Subcommittee, we believe, simply has not an adequate basis to reach any conclusions on that matter as a result of these hearings. V. Conclusion Any effort to extend the pending bills to younger workers so as to cover stewardesses raises significant questions which would require serious study of the situation of younger workers generally, and of airline stewardesses in particular. Nobody has conducted or suggested such a study for the obvious reasons that (a) there is no real problem of age discrimination against the younger worker justifying such a study; and (b) in respect to airline stewardesses in particular, those who know the airline industry know that a serious study would reveal there is no "stewardess age problem" requiring remedial legislation by the Congress. We strongly believe that present airline policies and the processes of free collective bargaining afford the stewardesses, on this question as on so many others, more than sufficient assurance of fair dealing. Attachments. [Attachment A] AMERICAN AIRLINES-TWU STEWARDESSES REASSIGNMENT AGREEMENT APPENDIX D MEMORANDUM AGREEMENT BETWEEN AMERICAN AIRLINES, INC., AND THE AIR LINE STEWARDESSES IN THE SERVICE OF AMERICAN AIRLINES, INC. As Represented by the Air Line Stewards and Stewardesses Association, Local 550, TWU, AFL-CIO This Memorandum Agreement is made and entered into in accordance with the provisions of Title II of the Railway Labor Act, as amended, by and between American Airlines, Inc. (hereinafter known as the "Company") and the Air Line Stewardesses in the service of American Airlines, Inc. as represented by the Air Line Stewards and Stewardesses Association, Local 550, TWU, AFL-CIO (hereinafter known as the "Association”). It Is Hereby Mutually Agreed: 1. A stewardess employed by the Company as a stewardess on or after December 1, 1953 shall be transferred to other employment within the Company effective with the first day of the month following the month in which her thirtysecond (32nd) birthday falls unless she elects the alternative provided in Paragraph 8 below. 2. In the month in which her thirty-first (31st) birthday falls and again in the sixth (6th) month following the month in which her thirty-first (31st) birthday falls, a stewardess shall be interviewed by her supervisor and informed of her rights and obligations under the provisions of this Memorandum Agreement. On the occasion of the latter interview, she shall elect in writing her choice of other employment as provided in Paragraph 3 below, or the alternative provided in Paragraph 8 below. 3. (a) A stewardess who elects to transfer to other employment within the Company under the provisions of this Agreement shall be interviewed by her supervisor not later than two (2) months prior to her thirty-second (32nd) birthday, at which time she shall be informed as to the job vacancies that are open and the location of each. She shall have the option of selecting from the available job vacancies any one for which she has the minimum qualifications. The selected job shall be reserved for her and the appropriate management member shall be so notified. (b) In the event that no job vacancies exist at the time of the interview provided under 3(a) above, the stewardess shall be so informed. As soon as possible thereafter, but in any event not later than the first day of the month in which her thirty-second (32nd) birthday falls, the Company shall make available a job to be effective on the first day of the month following. The Company will make every effort to make available to such stewardess a job in the city in which she is presently based, if such is her desire. The stewardess and the appropriate member of management shall be notified of the job made available. 4. A stewardess who is interviewed under the provisions of paragraphs 2 and 3 above shall not be required to give up her scheduled duty-free days to accomplish these interviews. If it is necessary to remove such stewardess from a regularly scheduled trip in order to accomplish such interviews, she shall ge given flight time pay and flight time credit for such missed trip. If such stewardess is required to travel to a job interview, she shall be furnished a Class “C” pass and shall be reimbursed for expenses incurred in such travel in accordance with applicable Company regulations. 5. When a stewardess, under the provisions of this Memorandum Agreement, selects and is awarded a job in a city other than the city in which she is based |