Lawmakers Introduce Protecting Older Workers Against Discrimination Act

By Sally Piefer

On October 6, 2009, the House and Senate introduced bills (S. 1756, H.R. 3721) to clarify the standard of proof in age discrimination cases. The legislation was introduced in direct response to the recent U.S. Supreme Court decision in Gross v. FBL Fin. Services. Inc., a case in which the Court held that employees bringing disparate treatment claims under the Age Discrimination in Employment Act must prove that age was the “but-for” cause of an adverse employment action, not just a motivating factor, and that the burden of persuasion does not shift to the employer in mixed-motive ADEA cases. Essentially, this decision requires the employee to prove that age was the factor that tipped the scales in the termination decision.

The bills, if passed, seek to amend the ADEA to clarify that a plaintiff establishes an unlawful employment practice by demonstrating by a preponderance of the evidence that age “was a motivating factor for the practice complained of, even if other factors also motivated that practice” or that “the practice complained of would not have occurred in the absence of [the plaintiff's age].”

Hearings in the Senate on the proposed legislation occurred on October 7, and hearings in the House occurred the following day.

Published: 10/2009