House Subcommittee Conducts Hearing on the Protecting Older Workers Against Discrimination Act

On Wednesday, the House Subcommittee on Health, Employment, Labor and Pensions held a hearing on the Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 3721, S. 1756), legislation that would overturn the June 18, 2009 Supreme Court decision in Gross v. FBL Financials Services, Inc.  In Gross, the Court held that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision. An employer does not have to prove that it would have made the same decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision. Thus, the Court decided, the burden-shifting framework in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA. In reversing Gross, POWADA would establish that when a victim shows discrimination was a “motivating factor” behind a decision, the burden would be on the employer to show it complied with the law, and clarify that the motivating factor framework applies to all anti-discrimination and anti-retaliation laws.

At the hearing, some witnesses, including Gail E. Aldrich, Member of the AARP Board of Directors, testified (pdf) that they believed the Gross decision was wrongly decided, and that the Court misinterpreted what Congress intended when it enacted the ADEA. Eric Dreiband, Former General Counsel of the U.S. Equal Employment Opportunity Commission (EEOC), however, stated that he did not believe that the POWADA would benefit the public interest. Specifically, Dreiband testified (pdf) that “the bill as proposed will enable age discrimination and other victims to prove a violation if an impermissible factor was a motivating factor for the practice complained of, even if other factors also motivated that practice,” but also will restore the “same action” defense, in which age discrimination defendants could prevail, even when they improperly considered a person’s age, if they demonstrated that they would have made the same decision or taken the same action for additional reasons unrelated to age. Such a result, according to the witness, “may render the ‘motivating factor’ standard nearly irrelevant,” and “would deprive discrimination victims of any meaningful remedy in ‘same action’ cases.” Dreiband also contended the bill is “overly broad, vague, and ambiguous.” He claimed the legislation:

purports to apply to 'any Federal law forbidding employment discrimination,' and several other laws, but the bill does not identify which laws the bill will amend. As a result, discrimination victims, unions, employers, and others will unnecessarily spend years or decades, and untold amounts of money, fighting in court over whether the bill changes particular laws. This will have no positive consequences for anyone.

A complete list of witnesses and transcripts of their testimony can be found here.