[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1756 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                S. 1756

 To amend the Age Discrimination in Employment Act of 1967 to clarify 
                   the appropriate standard of proof.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 6, 2009

Mr. Harkin (for himself, Mr. Leahy, Mr. Durbin, Mr. Specter, Mr. Kohl, 
   Mr. Schumer, Mr. Franken, Mr. Sanders, Mr. Brown, Mr. Cardin, Mr. 
  Merkley, Mrs. Feinstein, Mr. Dodd, Mrs. Boxer, Mr. Lautenberg, Mr. 
  Kaufman, and Mr. Nelson of Florida) introduced the following bill; 
     which was read twice and referred to the Committee on Health, 
                     Education, Labor, and Pensions

_______________________________________________________________________

                                 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 
using the evidentiary framework set forth in McDonnell Douglas Corp. v. 
Green, 411 U.S. 792 (1973) shall be available to the plaintiff.
    ``(5) Except as provided in paragraph (6), 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 a legal burden 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)(5) of the Age Discrimination in 
Employment Act of 1967 (29 U.S.C. 623(g)(5)) pending on or after June 
17, 2009.
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