Bipartisan Bill Would Strengthen Protection for Older Workers

Kathy Gurchiek By Kathy Gurchiek February 26, 2019
Bipartisan Bill Would Strengthen Protection for Older Workers

A bipartisan bill that has been introduced in the U.S. House of Representatives and the Senate would make it easier for older employees to prove when they are victims of age discrimination in the workplace.

The House bill (H.R. 1230), introduced by Rep. Bobby Scott, D-Va., and the Senate bill (S.B. 485), introduced by Sen. Robert P. Casey Jr., D-Pa., would amend the Age Discrimination in Employment Act (ADEA) of 1967 and similar federal laws related to employment discrimination.

Under the ADEA, employers with 20 or more employees are prohibited from discriminating against workers ages 40 and older in any employment-related decision. One of the main provisions of the law is that, with few exceptions, employers cannot force an employee to retire.

The 2009 U.S. Supreme Court's decision in Gross v. FBL Financial Services imposed a higher burden of proof on workers who allege age discrimination than on workers alleging other forms of workplace discrimination. 

Jack Gross claimed his job reassignment at FBL Financial Services was a demotion that was motivated, at least in part, by his age, in violation of the ADEA. He was 54 at the time. While he showed that age was one factor, he was unable to show direct evidence that his age motivated the adverse employment decision.

The ruling sent a message to employers, Casey stated, that "some age discrimination is perfectly fine."

[SHRM members-only resource: SHRM Foundation's Effective Practice Guidelines Series, "The Aging Workforce: Leveraging the Talents of Mature Employees"

"We must make clear to employers that no amount of age discrimination is acceptable," he said, "and we must strengthen anti-discrimination protections that are being eroded."

Research by the Urban Institute and ProPublica found that more than half of older U.S. workers are pushed out of longtime jobs before they choose to retire, suffering financial damage that is often irreversible.  

AARP, one of the endorsers of the bill, says the legislation would treat age discrimination "just as seriously as other forms of workplace discrimination." A 2017 survey it conducted with 3,900 adults age 45 and older found that 61 percent of respondents reported seeing or experiencing age discrimination in the workplace. Thirty-eight percent think the practice is very common. 

The court's decision affected employment-discrimination litigation across the U.S., said Sen. Chuck Grassley, R-Iowa, one of the bill sponsors.

"It's long past time we clarify the intent of Congress" toward the ADEA, he said in a news release, "to make sure people like Jack Gross don't face discrimination due to age."

Congress has looked at strengthening the ADEA in the past. The Senate held a hearing in 2017 that included testimony from Fernan R. Cepero, SHRM-CP, chief human resources officer and chief diversity officer for the YMCA of Greater Rochester, N.Y. The Society for Human Resource Management member spoke to committee members on behalf of SHRM. 

He offered recommendations on how HR professionals can help their organizations build a culture that recruits, supports and engages workers of all ages.

The Protecting Older Workers Against Discrimination Act (POWADA) would restore the pre-Gross discrimination standard and amend the ADEA, the Americans with Disabilities Act, the Rehabilitation Act of 1973 and the retaliation provision in Title VII of the Civil Rights Act of 1964, according to Casey. 

POWADA has been referred to the Senate Committee on Health, Education, Labor, and Pensions and to the House Committee on Education and Labor since its introduction Feb. 14.


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