Some Good News Out of D.C.; Senators Harkin, Grassley, Leahy Trying To Change 2009 Supreme Court Decision that Makes Age Discrimination Tough To Prove

Washington D.C. Employment Law Update

Posted at 2:06 PM on March 19, 2012 by Ilyse Schuman

Bill Would Change Burden of Proof, Causation Standards in ADEA, ADA Cases

On March 13, 2012, lawmakers reintroduced a bipartisan bill in the Senate that would overturn a 2009 Supreme Court decision that toughened an employee’s burden of proof in bringing a discrimination claim under the Age Discrimination in Employment Act (ADEA). The Protecting Older Workers Against Discrimination Act (POWADA) (S. 2189) introduced by Senators Tom Harkin (D-IA), Chuck Grassley (R-IA), and Patrick Leahy (D-VT) would explicitly reject the June 18, 2009 Supreme Court decision in Gross v. FBL Financial Services, Inc., which held that a plaintiff bringing a claim under the ADEA must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision. In order to establish a viable claim under Title VII of the Civil Rights Act, by contrast, an employee need only demonstrate that the protected category such as race or sex was acontributing factor in the adverse employment decision. In such a “mixed motive” case the burden then shifts back to the employer to show that it would have made the same decision regardless of the unlawful contributing factor.
In reversing Gross, POWADA would establish that when an employee shows discrimination was a “motivating factor” behind a decision, the burden shifts back to the employer to show it complied with the law. Specifically, the bill states that to establish claims under the ADEA, complainants are not required to demonstrate that age was the sole cause of the employment practice.
In a press release, Sen. Harkin said:

Prior to the Court’s decision in Gross, the same standard of proof applied equally to all workers, regardless of the type of invidious discrimination they faced. Ignoring these consistent standards, the Court’s decision established a far higher standard of proof for age than for discrimination based on race, sex, national origin and religion, without any rationale or justification. The Protecting Older Workers Against Discrimination Act will reverse the Court’s decision and restore the law to what it was for decades so that Jack Gross and all older workers in this country enjoy the full protections of the law.

Sen. Grassley echoed this sentiment, stating:

The decision in the Gross case has had a major impact on employment discrimination litigation across the country. It’s time we clarify the law to ensure that other people like Jack Gross aren’t put in similar situations. Older Americans have immense value to our society and our economy and they deserve the protections Congress originally intended.

Similar versions of this measure were introduced in 2009 in both the House and Senate, and were the subject to two congressional hearings in 2010. Despite the apparent interest in this legislation, it failed to advance. The current version of the bill deleted language stating that this framework applies to all federal anti-discrimination and anti-retaliation laws. However, the new version of the legislation expressly states that this standard of proof also applies to Title VII, the Americans with Disabilities Act (ADA), and Rehabilitation Act of 1973. Unlike prior versions, the reintroduced bill does not apply retroactively, but only applies to claims pending on or after the date of enactment. The bill has been referred to the Senate Committee on Health, Education, Labor and Pensions (HELP).
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