Older Workers Might Get New Lower Standard to Maintain Age Discrimination Claims

Older Workers Might Get New Lower Standard to Maintain Age Discrimination Claims

February 22, 2019

On Thursday, February 14, 2018, lawmakers introduced a bipartisan bill that would make it easier for workers to bring discrimination claims under the Age Discrimination in Employment Act ("ADEA"), the federal statute that prohibits employment discrimination based on age.  H.R. 1230/S. 485, entitled the "Protecting Older Workers Against Discrimination Act" ("POWADA"), is sponsored by Reps. Bobby Scott (D-Va.) and Jim Sensenbrenner (R-Wisc.) in the House of Representatives and Sens. Bob Casey (D-Pa.) and Chuck Grassley (R-Iowa) in the Senate. 

Since the U.S. Supreme Court’s 2009 decision in Gross v. Financial Services Inc., plaintiffs seeking to prove age discrimination under the ADEA have had to prove "but for" causation – i.e., that the discriminatory action would not have occurred but for the employee's age. This requirement has resulted in a higher standard of proof than the one used for discrimination claims based on other protected classes.

In a dissenting opinion to Gross, Justice Stevens noted the differing standards. "The Court's endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law," he wrote, commenting on the 5-4 decision.

Under Title VII of the Civil Rights Act of 1964 ("Title VII"), which protects employees from discrimination based on race, color, sex, religion and national origin, employees do not need to prove "but-for" causation, and can instead rely on a "mixed motives" theory, in which discrimination is only a motivating factor, instead of the motivating factor. If passed, the POWADA would overrule Gross, harmonize the standards used in ADEA and Title VII cases, and make it much easier for employee to prove age discrimination claims.

While the bill has bipartisan support, it is currently unclear whether the Republican-held Senate will approve it, and if so, whether President Trump will sign it into law. Stay tuned for updates on this noteworthy employment law development.