House Passes Protecting Older Workers Against Discrimination Act

Allen Smith, J.D. By Allen Smith, J.D. January 16, 2020

​The U.S. House of Representatives on Jan. 15 passed by a vote of 261 to 155 the Protecting Older Workers Against Discrimination Act (POWADA), which would permit plaintiffs to sue for age discrimination even if age was not the sole cause of the challenged employment decision.

The U.S. Senate is not expected to pass the legislation and the White House has announced it would veto it.

Rep. Mark DeSaulnier, D-Calif., said that the bill would result in courts dismissing fewer age discrimination claims. He added that it would "mean … long overdue justice" since a 2009 Supreme Court decision (Gross v. FBL Financial Services Inc.) required age to be the sole reason an employer fired or changed a worker's job in order for the worker to win an age discrimination claim.

Rep. Virginia Foxx, R-N.C., opposed the bill, saying it would benefit trial attorneys, not plaintiffs. In addition, she said there wasn't data showing a need for the legislation following Gross.

White House Opposition

The Trump administration issued a statement opposing the bill on Jan. 13. The administration stated that it "believes discrimination is never acceptable" but is concerned that "the bill would enrich trial lawyers and make it harder to identify and address genuine discrimination."

The administration noted that the bill would reduce the burden of proof for claims under the Age Discrimination in Employment Act (ADEA), as well as retaliation claims under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. Under current law, plaintiffs in these cases must show that an employer would not have taken an employment action "but for" a protected characteristic. "H.R. 1230 would allow plaintiffs to prevail and obtain limited forms of relief if the protected characteristic was a 'motivating factor' in the employment action, even if the employer can demonstrate they would have taken the action, for example, because of poor performance, regardless of age," the administration stated.

The bill would "open the floodgates to weak or frivolous claims and makes it more difficult to resolve such claims at an early stage, diverting executive branch and judicial resources away from addressing actual discrimination," the administration said.

In addition, the bill would make resolving retaliation claims more difficult, the administration stated.

Bill Sponsor's Support

Rep. Bobby Scott, D-Va., the sponsor of the bill, said when he introduced POWADA on Feb. 14, 2019, in the 116th Congress, that Gross weakened protections against age discrimination under the ADEA. POWADA would return legal standards to the pre-2009 evidentiary threshold to ensure all claims of discrimination are litigated fairly, Scott stated.

"Discrimination shuts too many people out of good-paying jobs," Scott said. "All Americans—regardless of their age—should be able to go to work every day knowing that they are protected from discrimination. The Protecting Older Workers Against Discrimination Act would ensure there are no additional barriers for older Americans when making a discrimination claim compared to any other protected class. This legislation is a step toward restoring the rights of older workers."

Differences Between Title VII and the ADEA

Lawrence Lorber, an attorney with Seyfarth in Washington, D.C., noted that the ADEA has differences from Title VII other than its causation standard. For example, the ADEA permits employers to show that there is a reasonable factor other than age (RFOA) justifying its employment decision. "Simply adding mixed-motive claims to the ADEA without addressing other factors could lead to a confused status of these claims," he said.

Under Title VII, if a plaintiff can show that his or her protected category was a motivating factor in an employment decision in a discrimination case, the plaintiff wins on liability. "The employer then has the burden of proving that it would have taken the same adverse action anyway, but that is relevant to damages, not liability," said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C.

Shea observed that "Congress made some amendments to the ADEA while it was amending Title VII [in 1991] to add the mixed-motive provisions. The fact that Congress did not add mixed motive to the ADEA while it was adding it to Title VII allowed the [Supreme Court] to infer that the omission in the ADEA was intentional on the part of Congress."

[SHRM members-only toolkit: Employing Older Workers]

Possible Impact of POWADA

If POWADA mixed-motive claims were permitted under the ADEA, as they are under Title VII for discrimination claims, "it would not be surprising to see an uptick in the number of successful ADEA plaintiffs," said Nicholas Reiter, an attorney with Venable in New York City. Mixed-motive claims currently aren't permitted for Title VII retaliation claims.

Another likely result if POWADA were enacted would be more ADEA settlements, Reiter added. Under a mixed-motive standard, some ADEA plaintiffs might find it easier to defeat employers' summary judgment motions. "Rather than incur the expense and uncertainty of a trial, some employers may pursue settlement more vigorously after they swing and miss at summary judgment," he said.



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