II 111th CONGRESS 1st Session S. 1756 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.

1.

Short title

This Act may be cited as the Protecting Older Workers Against Discrimination Act.

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.

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. .

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.