On June 23, the U.S. House of Representatives passed a bill—the Protecting Older Workers Against Discrimination Act (POWADA)—that would make it easier for people to win claims of age discrimination by easing the standards of proof. If also passed by the Senate and signed into law, the measure would undo a 2009 U.S. Supreme Court decision that made age-discrimination claims more difficult to prove.
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House Passed Bill Last Session
POWADA was passed by the House last year as well, but it did not pass the Senate. The bill would permit plaintiffs to sue for age discrimination even if age was not the sole cause of the challenged employment decision. If POWADA mixed-motive claims were permitted under the Age Discrimination in Employment Act (ADEA), as they are under Title VII of the Civil Rights Act of 1964 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.
Bill Would Undo Supreme Court Decision
POWADA would undo a 5-4 Supreme Court decision, Gross v. FBL Financial Services, that held plaintiffs must show that age was the determinative, or “but for,” reason for an adverse employment action. Prior to the ruling, it was enough for ADEA plaintiffs to show that age was one of a number of motivating factors that influenced an adverse employment decision. Writing for the majority, Justice Clarence Thomas reasoned that Congress amended Title VII to permit mixed-motive claims but never similarly amended the ADEA. After Gross, older workers had to show that age was the sole or main reason for the adverse action, depending on the federal circuit where the lawsuit was filed.
Different Reactions to Bill
“Clearly our labor market and economy cannot fully recover from the pandemic if we fail to support our older workers,” said House Education and Labor Committee Chairman Bobby Scott, D-Va. Rep. Virginia Foxx, R-N.C., the top Republican on the committee, said the bill was “a classic example of a solution in search of a problem” since age discrimination in the workplace already is prohibited.
Senate Has Introduced POWADA
The Senate has introduced POWADA as well. The Senate version of the bill is sponsored by Sen. Bob Casey, D-Pa., and co-sponsored by Sens. Susan Collins, R-Maine; Chuck Grassley, R-Iowa; and Patrick Leahy, D-Vt. “As more Americans are remaining in the workforce longer, we must recognize and address the challenges that aging workers face,” Casey said. “We must make it clear to employers that age discrimination is unacceptable, and we must strengthen anti-discrimination protections that are being eroded.”
Age Discrimination During the Pandemic
“Distressingly, the COVID-19 pandemic has only amplified age discrimination,” AARP Foundation Senior Attorney Laurie McCann said during a March 18 congressional hearing about the bill. “High and persistent unemployment, compounded by the health risks of COVID-19, threatens the retirement security of older workers.”
Study Finds That Age Discrimination Persists
More than 50 years after Congress made it illegal for employers to discriminate against workers age 40 or older, data analysis by the Urban Institute and ProPublica show that more than half of older U.S. workers are pushed out of longtime jobs before they choose to retire.
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