Labor & Employment Law Daily Wrap Up, SENATE NEWS—Special Committee on Aging discusses discrimination experienced by older workers and the impact of forced arbitration, (Sep 9, 2025)

By Brandi O. Brown, J.D.

“If the fine print of forced arbitration severely restricts or eliminates any path towards justice and accountability, then something must be terribly wrong with our system.”

In a hearing held last week, the U.S. Senate’s Special Committee on Aging heard from several witnesses regarding the experiences of older Americans in the workplace. The meeting was led by Senator Kirsten Gillibrand, Ranking Member of the Special Committee, who discussed the discrimination experienced by older American workers.

Gillibrand also notes that workers over 75 years old are the fastest growing age group of the workforce, commenting, “just ask the U.S. Senate.” Thus, she explains, we need to make sure that those who experience discrimination can have their day in court, which often isn’t possible because of forced arbitration agreements in their employment contracts that they may not have even known about.

“It traps those who experience workplace discrimination in a system that advantages their employer,” explained Senator Gillibrand. The Protecting Older Americans Act (POAA), Senator Gillibrand explained, would remedy that.

The committee heard from Nancy A. LeaMond, Executive Vice President and Chief Advocacy and Engagement Officer, AARP; David Horton, Professor of Law at UC-Davis; Gretchen Carlson, Journalist and Co-Founder of Lift Our Voices; and Rachel Greszler, Senior Research Fellow at The Heritage Foundation.

AARP EVP’s testimony. Ms. LeaMond discusses the various legislative solutions that have been offered to deal with the experiences of older workers, including the POAA. An interesting and unique issue raised by LeaMond in her written testimony is the experience of older workers regarding artificial intelligence, including its benefits and risks. As to the latter, she notes: “Algorithms can replicate and even accelerate bias. Data points such as graduation dates or years of experience can serve as proxies for age, leading to older applicants being screened out automatically. Policymakers must ensure AI is used to expand opportunity, not entrench age discrimination, by supporting upskilling programs and enforcing protections against algorithmic bias.”

Carlson’s testimony on forced arbitration. Carlson discussed her own experience of sexual harassment and forced arbitration, as well as the passage of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.

Of the signing of arbitration agreements, she explained her own experiences in her written testimony:

“No one starts a new job expecting something bad to happen to them. I know I didn’t. And, in the face of a new opportunity, few people can walk away from a job because of the fine print. I don’t care who you are. Most people have no idea what forced arbitration means. In my case, it showed up in my last contract with Fox, and while I asked questions, I was told not to worry because it was quote “becoming the way of the world”. Eerily, I had no idea at the time how true that was. Today, more than 60 million American workers are subject to forced arbitration. Most have no idea that signing on the dotted line means they’ve accepted forced arbitration as their only remedy for justice.”

She later adds: “Too many people are still not getting the freedom of choice when something bad happens at work. If the fine print of forced arbitration severely restricts or eliminates any path towards justice and accountability, then something must be terribly wrong with our system.”

Heritage Foundation fellow’s comments. Greszler avoids the topic of arbitration entirely in her written testimony, focusing instead on other policymaking that she believes could “make it easier for older Americans to remain engaged.”

UC-Davis professor. Professor Horton’s written testimony focuses on the matter of arbitration as well, recognizing that while “arbitration can be valuable in certain contexts,” he opposes “forced arbitration of cases involving pernicious and pervasive wrongdoing such as age discrimination.”

First, he notes that it is not consensual. He explains:

“Consider the various ways in which workers “agree” to arbitrate. Sometimes employers place arbitration provisions in their onboarding paperwork. Studies confirm what our intuition tells us: workers are bombarded with information, their eyes glaze over at the legalese, and very few realize that they are surrendering their right to access the courts.”

And even for those workers “who read and understand arbitration mandates,” he adds, they “have little meaningful choice.” He explains:

“For starters, as one court put it: ‘the arbitration agreement stands between the employee and necessary employment, and few employees are in a position to refuse a job because of an arbitration requirement.’ Moreover, declining a position due to forced arbitration makes no sense because the odds are that other jobs will also be subject to the process. Indeed, forced arbitration provisions govern more than half of non-unionized private sector workers—a staggering 60,000,000 individuals—and at least 53% of the employment contracts used by Fortune 500 companies. It would be irrational to say no to an offer because of a condition of employment that is becoming increasingly unavoidable.” [footnotes omitted].

Second, like Carlson, he notes that “arbitration is less hospitable to [employees] than the judicial system.”

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