1.This Act may be cited as the
Protecting Older Workers Against
Discrimination Act
.
2.
(a)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)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.
3.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.
.
4.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.