Congress Considers Legislation to Rebut the Supreme Court Ruling in Gross
Last week, the House Health, Employment, Labor, and Pensions Subcommittee and the full Senate Health, Education, Labor and Pensions Committee each held hearings to examine the Protecting Older Workers Against Discrimination Act (POWADA), H.R. 3721/S. 1756).
This legislation would overturn the Supreme Court’s June 2009 decision in Gross v. FBL Financial Services, in which the Court held that age must be the sole reason for a challenged employment decision, as opposed to merely a reason for the decision. Prior to the 2009 decision, SHRM submitted an amicus brief which mirrored the opinion contained in the Court’s decision.
The POWADA bill would amend the Age Discrimination in Employment Act of 1967 (ADEA) to establish that a plaintiff establishes an unlawful employment practice if age was one motivating factor for the employment practice complained of, even if other factors also motivated that practice.
The ADEA protects individuals who are 40 years of age or older from employment discrimination based on age with respect to any term, condition or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments and training. As currently drafted, the ADEA’s protections apply to both employees and job applicants.
The POWADA bill goes beyond a simple reversal of the Gross decision by amending not just the ADEA, but also every Federal, anti-discrimination, retaliation, and whistleblower statute – potentially dozens of laws.
SHRM is sympathetic to addressing the Gross decision, but opposes the current legislation because it is too broad and sweeping.