Bill Would Overturn Supreme Court's Age Discrimination Opinion in Gross v. FBL Financial Services

As expected, lawmakers have introduced legislation in both houses of Congress that would overturn the Supreme Court’s opinion in Gross v. FBL Financial Services, Inc., a decision that made it tougher for employees to bring mixed-motive discrimination claims under the Age Discrimination in Employment Act (ADEA). In Gross, the Supreme Court held that employees must prove by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse decision. An employer therefore does not carry the additional burden of proving that it would have made the same decision regardless of age, even if the employee were to produce some evidence of age bias in the decision-making process. According to a press release, the new bill, Protecting Older Workers Against Discrimination Act (H.R. 3721, S. 1756):

• Reverses the Gross decision, and makes clear that when a victim shows discrimination was a “motivating factor” behind a decision, the burden is properly on the employer to show it complied with the law.
• Is modeled on the Civil Rights Act of 1991. Among other things, the Civil Rights Act of 1991 codified the “motivating factor” framework for race, sex, national origin and religion discrimination claims under Title VII of the Civil Rights Act of 1964.
• Clarifies that this “motivating factor” framework applies to all anti-discrimination and anti-retaliation laws.

The Protecting Older Workers Against Discrimination Act was introduced by Senator Tom Harkin (D-IA), Chairman of the Health, Education, Labor and Pensions (HELP) Committee, Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, and Congressman George Miller (D-CA), Chairman of the House Education and Labor Committee. Today, the Senate Judiciary Committee held a hearing to evaluate the Supreme Court’s decision in Gross, among other employment-related opinions. A webcast of the hearing can be found here.

Lawmakers who disagreed with the Supreme Court’s take on employment law matters took a similar approach with the Court’s 2007 pay discrimination decision in Lilly Ledbetter v. Goodyear Tire & Rubber Co., Inc. Signed into law earlier this year, the Lilly Ledbetter Fair Pay Act expressly overturned the Court’s decision by extending the time period in which employees can assert pay discrimination claims. Rep. Miller has likened the decision in Gross to that of Ledbetter, stating: “The same conservative Supreme Court justices responsible for the backward ruling against Lilly Ledbetter have now thrown another legal barrier in front of hard-working older Americans. Workplace discrimination based on age is just as wrong as discrimination based on any other irrelevant factor -- and it should be treated as such in the court of law.”

The House version of the Protecting Older Workers Against Discrimination Act has been referred to the House Committee on Education and Labor and the House Judiciary Committee. The Senate companion bill has been referred to Senate Health, Education, Labor and Pensions Committee.