New Legislation Would Make Proving Age Discrimination Easier

Democrats introduced a new bill yesterday that would make it easier for employees to win age discrimination lawsuits under the Age Discrimination in Employment Act (ADEA). Three congressional committee chairmen — Representative George Miller (D-California), Senator Tom Harkin (D-Iowa), and Senator Patrick Leahy (D-Vermont) — introduced the Protecting Older Workers Against Discrimination Act, a bill that would reverse the U.S. Supreme Court’s recent decision in Gross v. F.B.L. Financial Services.

Before the Gross ruling, an employee only had to prove that age was a motivating factor in an adverse employment decision, and the employer would then have to prove that the decision was based on another valid reason besides age. That all changed in the Gross decision, however, when the Supreme Court held 5-4 that employees who sue their employers for age discrimination must establish that age was the deciding factor in adverse employment decisions to prove they were victims of age discrimination. In other words, an employee must prove that the employer wouldn’t have taken the adverse action “but for” the employee’s age. The Court also ruled that employers did not have to show that they would have taken the same action regardless of age.

The new bill would essentially align the standard of proof in age discrimination cases with the standard of proof in other discrimination cases (e.g., race, sex, religion, and national origin). Under the new legislation, after an employee proves that age discrimination was a motivating factor in an adverse employment decision, the employer will then have to prove that it complied with the age discrimination law.

The business community was generally pleased with the Supreme Court’s decision in the Gross case, especially because the number of age discrimination claims has been rising. However, not everyone was thrilled with the decision, and yesterday Senator Harkin noted, “The Gross decision established a far higher standard of proof for age than for other forms of discrimination, without any rationale or justification.” He added, “Today we will introduce the Protecting Older Workers Against Discrimination Act with the simple purpose of reversing the Court’s decision and restoring the law to what it was for decades.”

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