[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3721 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 3721
To amend the Age Discrimination in Employment Act of 1967 to clarify
the appropriate standard of proof.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
October 6, 2009
Mr. George Miller of California (for himself, Mr. Conyers, Mr. Andrews,
Mr. Nadler of New York, Mr. Courtney, Ms. Chu, Ms. Clarke, Mr. Holt,
Mr. Hare, Mr. Kildee, Mr. Loebsack, Mr. Sablan, Mr. Scott of Virginia,
Ms. Hirono, Ms. Woolsey, Mr. Bishop of New York, and Mr. Sestak)
introduced the following bill; which was referred to the Committee on
Education and Labor, and in addition to the Committee on the Judiciary,
for a period to be subsequently determined by the Speaker, in each case
for consideration of such provisions as fall within the jurisdiction of
the committee concerned
_______________________________________________________________________
A BILL
To amend the Age Discrimination in Employment Act of 1967 to clarify
the appropriate standard of proof.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting Older Workers Against
Discrimination Act''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) In enacting the Age Discrimination in Employment Act of
1967, Congress intended to eliminate discrimination against
individuals in the workplace based on age.
(2) In passing the Civil Rights Act of 1991, Congress
correctly recognized that unlawful discrimination is often
difficult to detect and prove because discriminators do not
usually admit their discrimination and often try to conceal
their true motives.
(3) Congress has relied on a long line of court cases
holding that language in the Age Discrimination in Employment
Act of 1967, and similar antidiscrimination and antiretaliation
laws, that is nearly identical to language in title VII of the
Civil Rights Act of 1964 would be interpreted consistently with
judicial interpretations of title VII of the Civil Rights Act
of 1964, including amendments made by the Civil Rights Act of
1991. The Supreme Court's decision in Gross v. FBL Financial
Services, Inc., 129 S. Ct. 2343 (2009), has eroded this long-
held understanding of consistent interpretation and
circumvented well-established precedents.
(4) The holding of the Supreme Court in Gross, by requiring
proof that age was the ``but for'' cause of employment
discrimination, has narrowed the scope of protection intended
to be afforded by the Age Discrimination in Employment Act of
1967, thus eliminating protection for many individuals whom
Congress intended to protect.
(5) The Supreme Court's holding in Gross, relying on
misconceptions about the Age Discrimination in Employment Act
of 1967 articulated in prior decisions of the Court, has
significantly narrowed the broad scope of the protections of
the Age Discrimination in Employment Act of 1967.
(6) Unless Congress takes action, victims of age
discrimination will find it unduly difficult to prove their
claims and victims of other types of discrimination may find
their rights and remedies uncertain and unpredictable.
(b) Purpose.--The purpose of this Act is to ensure that the
standard for proving unlawful disparate treatment under the Age
Discrimination in Employment Act of 1967 and other anti-discrimination
and anti-retaliation laws is no different than the standard for making
such a proof under title VII of the Civil Rights Act of 1964, including
amendments made by the Civil Rights Act of 1991.
SEC. 3. STANDARD OF PROOF.
Section 4 of the Age Discrimination in Employment Act of 1967 (29
U.S.C. 623) is amended by adding after subsection (f) the following:
``(g)(1) For any claim brought under this Act or any other
authority described in paragraph (5), a plaintiff establishes an
unlawful employment practice if the plaintiff demonstrates by a
preponderance of the evidence that--
``(A) an impermissible factor under that Act or authority
was a motivating factor for the practice complained of, even if
other factors also motivated that practice; or
``(B) the practice complained of would not have occurred in
the absence of an impermissible factor.
``(2) On a claim in which a plaintiff demonstrates a violation
under paragraph (1)(A) and a defendant demonstrates that the defendant
would have taken the same action in the absence of the impermissible
motivating factor, the court--
``(A) may grant declaratory relief, injunctive relief
(except as provided in subparagraph (B)), and attorney's fees
and costs demonstrated to be directly attributable only to the
pursuit of a claim under paragraph (1); and
``(B) shall not award damages or issue an order requiring
any admission, reinstatement, hiring, promotion, or payment.
``(3) In making the demonstration required by paragraph (1), a
plaintiff may rely on any type or form of admissible circumstantial or
direct evidence and need only produce evidence sufficient for a
reasonable trier of fact to conclude that a violation described in
subparagraph (A) or (B) of paragraph (1) occurred.
``(4) Every method for proving either such violation, including the
evidentiary framework set forth in McDonnell-Douglas Corp. v. Green,
411 U.S. 792 (1973), shall be available to the plaintiff.
``(5) This subsection shall apply to any claim that the practice
complained of was motivated by a reason that is impermissible, with
regard to that practice, under--
``(A) this Act, including subsection (d);
``(B) any Federal law forbidding employment discrimination;
``(C) any law forbidding discrimination of the type
described in subsection (d) or forbidding other retaliation
against an individual for engaging in, or interference with,
any federally protected activity including the exercise of any
right established by Federal law (including a whistleblower
law); or
``(D) any provision of the Constitution that protects
against discrimination or retaliation.
``(6) This subsection shall not apply to a claim under a law
described in paragraph (5)(C) to the extent such law has an express
provision regarding the legal burdens of proof applicable to that
claim.
``(7) In any proceeding, with respect to a claim described in
paragraph (5), the plaintiff need not plead the existence of this
subsection.
``(8) In this subsection, the term `demonstrates' means meet the
burdens of production and persuasion.''.
SEC. 4. APPLICATION.
This Act, and the amendments made by this Act, shall apply to all
claims described in section 4(g)(4) of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 623(g)(4)) pending on or after June
17, 2009.
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