Hunton Employment & Labor Perspectives

Committees in both the House and the Senate heard testimony this week regarding the Protecting Older Workers Against Discrimination Act (H.R. 3721 and S. 1756).  Democrats introduced the Act last fall with hopes of restoring employees’ rights under the Age Discrimination in Employment Act (“ADEA”) by overturning the Supreme Court’s decision in Gross v. FBL Fin. Servs. Inc., 557 U.S. __ (2009).

The Supreme Court’s Decision in Gross
In Gross, the Supreme Court ruled that plaintiffs must prove that their age was the “but for” cause of the adverse employment action to establish an age discrimination claim under the ADEA.  By doing so, the Court eliminated the use of the mixed motive theory to prove discrimination in ADEA actions.  As a result, plaintiffs cannot satisfy their burdens of proof by merely showing that age was a motivating factor in the adverse employment action.  Critics of Gross believe that the decision makes it nearly impossible for plaintiffs to win age discrimination claims unless they have the equivalent of a smoking gun.

Responding to Gross
Currently H.R. 3721 has 32 co-sponsors and S. 1756 has 23 co-sponsors.  The bills are identical and their proponents hope that they will return age discrimination law to pre-Gross standards.  Specifically, the legislation establishes that the standard of proof for claims under the ADEA is “no different” from the mixed motive theory used in Title VII claims.  Additionally, the legislation states that the burden-shifting framework of McDonnell Douglas v. Green, 411 U.S. 792 (1973) applies to ADEA claims.

Not Just Age Discrimination
Although the title of the legislation refers to age do not be fooled - the Protecting Older Workers Against Discrimination Act involves much more than the protected class of age.  In fact, the Act explicitly states that “the standard for proving unlawful disparate treatment under the [ADEA] and other anti-discrimination and anti-retaliation laws is no different than the standard for making such proof under [T]itle VII.”  With this language, the Act sweeps all other claims of discrimination or retaliation into its scope and as a result it has the potential to significantly impact numerous federal discrimination and retaliation laws.  Based on this, it seems apparent that the Act does more than just return age discrimination claims to the pre-Gross standard of proof.

Clarification or Confusion?
The Act was created to clarify the standard of proof in age ADEA claims and to correct the perceived “misconceptions” relied on by the Supreme Court in Gross.  Yet, if this legislation is passed in its current form, it is likely that instead of simply bringing clarity to age discrimination claims, it will instead muddy the water in all other discrimination and retaliation claims.  The Act’s reference to “other anti-discrimination and anti-retaliation law” is not only broad but also ambiguous.  It will be necessary to turn to the courts for guidance on this ambiguity.  The Act will need to be further explained and this will likely be done through litigation where plaintiffs will rely on the Act’s broad scope to test the water with their various discrimination and retaliation claims.  Because the reach of this Act is beyond just age discrimination, it is important to track its progress and be alert to its potential affect on all “other anti-discrimination and anti-retaliation laws.”