On March 12, several senators introduced Senate Bill 2189, known as the Protecting Older Workers Against Discrimination Act, which would overturn a 2009 U.S. Supreme Court case, Gross v. FBL Financial Services Inc, that had made it more difficult for older workers to prove claims under the Age Discrimination in Employment Act (“ADEA”). Under the new bill, it would be much easier for employees to prove age discrimination in many cases.
In the Gross case, the Supreme Court held, by a 5-4 margin, that the “mixed motive” analysis of discrimination claims was not available under the ADEA, and that plaintiffs asserting age discrimination must prove that age was the “but for” cause of the adverse employment action. The Supreme Court reasoned that the Civil Rights Act of 1991, which codified the mixed motive analysis in cases of race, sex, and other protected statuses, only applied to Title VII of the Civil Rights Act of 1964 and not the ADEA, which is a separate statutory scheme. Under Gross, in ADEA cases the plaintiff was required to prove that age was the “but for” cause of the employment action, not simply a motivating factor.
This bill is sponsored by Senators from both parties (Sen. Harkin [D-IA], Sen. Grassley [R-IA], and Sen. Leahy [D-VA]), but exactly how much support it has remains to be seen. Similar bills were introduced in both the House and Senate in 2009, but neither were voted on. It remains to be seen whether this bill will gain traction or suffer a similar fate.