Senate Bill 485 and House Bill 1230, identical bills entitled “Protecting Older Workers Against Discrimination Act,” are currently before Congress. The House majority leader has indicated that the House Bill may be considered within the next week.
These bills seek to overturn the United States Supreme Court’s ruling in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343 (2009), which held that for plaintiffs to prevail in age discrimination cases, they must prove that any unlawful adverse action taken against them would not have occurred “but for” their age. The Court’s ruling barred courts from using a mixed motive analysis in Age Discrimination in Employment Act cases, which previously allowed plaintiffs to show that age was at least one motivating factor in the decisions to impose adverse actions on them. In other words, currently, age must be THE reason that adverse action was taken against the employee.
If enacted, the POWADA would again allow plaintiffs in age and other discrimination cases to prevail by demonstrating that age or another protected status was a motivating factor for any unlawful employment practice, even though other factors also motivated the adverse action. The bills authorize a court in a claim in which age discrimination is shown to grant declaratory and injunctive relief, but prohibit a court from awarding damages or issuing an order requiring any admission, reinstatement, hiring, promotion, or payment. The bills also apply the same standard of proof to other employment discrimination and retaliation claims, including claims under the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, and the Rehabilitation Act of 1973. According to Skopos Labs, the Act has only a 3% chance of being enacted at this time.
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