- Posted by Megan Erickson
Earlier this month, the House Education and Labor subcommittee, as well as the Senate Committee on Health, Education, Labor, and Pensions, held hearings on the Protecting Older Workers Against Discrimination Act (H.R. 3721 / S. 1756). If passed, this legislation would broadly impact many federal discrimination and retaliation laws beyond just the Age Discrimination in Employment Act (ADEA).
This legislation, introduced in October of 2009, would overturn the Supreme Court’s Gross v. FBL Financial Services decision. In Gross, the Court held that to be successful, an ADEA plaintiff must prove age was the “but for” reason behind the challenged employment decision. Contrast that causation standard to the applicable framework in a Title VII case, in which a plaintiff proves discrimination by establishing that discrimination was “a motivating factor” behind an employment action. The Court explained it treated Title VII differently because Congress treated it differently. The Civil Rights Act of 1991 amended Title VII to specifically incorporate the “a motivating factor” causation standard, but the other anti-discrimination laws were not similarly amended.
The POWADA bill would amend the ADEA, making a plaintiff’s burden in an age case (and all other federal discrimination cases, as explained below) like the causation requirement under Title VII: the plaintiff would have to prove age was a motivating factor behind the employment decision, even if other factors also motivated that decision.
Although the bill’s title suggests the amendment would affect only age cases, it actually goes much further. The explicit purpose of the bill “is to ensure that the standard for proving unlawful disparate treatment under the Age Discrimination in Employment Act of 1967 and other anti-discrimination and anti-retaliation laws is no different than the standard for making such a proof under title VII . . . ” (emphasis added). The “standard of proof” subsection specifically applies to any claim under the ADEA and any other federal law forbidding discrimination or retaliation.
You may track legislative activity on the proposed amendment at www.govtrack.us.
If you have questions regarding the topics addressed in this post, please contact attorney Megan Erickson at 515-246-4538 / merickson@dickinsonlaw.com or another member of the firm’s Iowa Employment and Labor Law Group at employmentlaw@dickinsonlaw.com.
