On October 6, Congressman George Miller (D-CA) and Senator Tom Harkin (D-IA), the respective chairmen of the House and Senate labor committees, introduced the “Protecting Older Workers Against Discrimination Act” (H.R. 3721/ S. 1756).
House and Senate Labor Committee Chairmen Rep. Miller and Sen. Harkin
The legislation would amend the Age Discrimination in Employment Act of 1967 (ADEA) to clarify the standard of proof in such cases. Specifically, the measure would make clear that an ADEA plaintiff should prevail if the employee can prove age “was a motivating factor for the (unlawful employment) practice complained of, even if other factors also motivated that practice.”
The stated purpose of this legislation is to overturn the Supreme Court’s decision in Gross v. FBL Financial Services Inc., which was handed down by the Court in June 2009.
In Gross, the Court held that age must be the sole motivating cause for an adverse employment action in order for a plaintiff to prevail, even when a plaintiff has produced evidence that age was one of the motivating reasons for the adverse action. In short, the Court held that mixed-motive age claims are unavailable to employees in ADEA cases.
Since its enactment into law in 1967, the ADEA has prohibited age discrimination against employees and job applicants age 40 and older. The law applies to private employers with twenty (20) or more employees, as well as state and local government agencies.
During the October 7 hearing before the Senate Judiciary Committee referenced in this HR Issues Update edition (see article on Pre-Dispute Arbitration in Employment), Committee Chairman Patrick Leahy (D-VT) indicated he was worried the Gross decision will allow employers to discriminate on the basis of age with impunity.
Given the fact that the “Protecting Older Workers Against Discrimination Act” is sponsored by the respective chairmen of the House and Senate committees with jurisdiction over the ADEA, chances are good that this legislation might see action in committee before the end of this year. SHRM’s Government Affairs team will keep you abreast of any action on this legislation.