[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 2189 Introduced in Senate (IS)]

112th CONGRESS
  2d Session
                                S. 2189

  To amend the Age Discrimination in Employment Act of 1967 and other 
 laws to clarify appropriate standards for Federal antidiscrimination 
          and antiretaliation claims, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 13, 2012

 Mr. Harkin (for himself, Mr. Grassley, and Mr. Leahy) 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 and other 
 laws to clarify appropriate standards for Federal antidiscrimination 
          and antiretaliation claims, and for other purposes.

    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 PURPOSES.

    (a) Findings.--Congress finds the following:
            (1) In enacting the Age Discrimination in Employment Act of 
        1967 (referred to in this section as the ``ADEA''), Congress 
        intended to eliminate workplace discrimination against 
        individuals 40 and older based on age.
            (2) In enacting the Civil Rights Act of 1991, Congress 
        reaffirmed its understanding 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 intended that courts would interpret Federal 
        statutes, such as the ADEA, that are similar in their text or 
        purpose to title VII of the Civil Rights Act of 1964, in ways 
        that were consistent with the ways in which courts had 
        interpreted similar provisions in that title VII. The Supreme 
        Court's decision in Gross v. FBL Financial Services, Inc., 129 
        S. Ct. 2343 (2009), departed from this intent and circumvented 
        well-established precedents.
            (4) Congress disagrees with the Supreme Court's 
        interpretation, in Gross, of the ADEA and with the reasoning 
        underlying the decision, specifically language in which the 
        Supreme Court--
                    (A) interpreted Congress' failure to amend any 
                statute other than title VII of the Civil Rights Act of 
                1964 in enacting section 107 of the Civil Rights Act of 
                1991 (adding section 703(m) of the Civil Rights Act of 
                1964), to mean that Congress intended to disallow mixed 
                motive claims under other statutes;
                    (B) declined to apply the Supreme Court's ruling in 
                Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a 
                part of which was subsequently approved by Congress, 
                and enacted into law by section 107 of the Civil Rights 
                Act of 1991, as section 703(m) of the Civil Rights Act 
                of 1964, which provides that an unlawful employment 
                practice is established when a protected characteristic 
                was a motivating factor for any employment practice, 
                even though other factors also motivated the practice;
                    (C) interpreted causation language and standards, 
                including the words ``because of'' that are similar in 
                their text or purpose to title VII of the Civil Rights 
                Act of 1964, in a manner that departed from established 
                precedent;
                    (D) held that mixed motive claims were unavailable 
                under the ADEA; and
                    (E) indicated that other established causation 
                standards and methods of proof, including the use of 
                any type or form of admissible circumstantial or direct 
                evidence as recognized in Desert Palace Inc. v. Costa, 
                539 U.S. 90 (2003), or the availability of the 
                analytical framework set out in McDonnell Douglas Corp. 
                v. Green, 411 U.S. 792 (1973), might not apply to the 
                ADEA.
            (5) Lower courts have applied Gross to a wide range of 
        Federal statutes, such as the Americans with Disabilities Act 
        of 1990 (42 U.S.C. 12101 et seq.).
            (6) The Gross decision has significantly narrowed the scope 
        of protections intended to be afforded by the ADEA.
            (7) Congress must restore and reaffirm established 
        causation standards and methods of proof to ensure victims of 
        unlawful discrimination and retaliation are able to enforce 
        their rights.
    (b) Purposes.--The purposes of this Act include--
            (1) to restore the availability of mixed motive claims and 
        to reject the requirements the Supreme Court enunciated in 
        Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), 
        that a complaining party always bears the burden of proving 
        that a protected characteristic or protected activity was the 
        ``but for'' cause of an unlawful employment practice;
            (2) to reject the Supreme Court's reasoning in Gross that 
        Congress' failure to amend any statute other than title VII of 
        the Civil Rights Act of 1964, in enacting section 107 of the 
        Civil Rights Act of 1991, suggests that Congress intended to 
        disallow mixed motive claims under other statutes; and
            (3) to establish that under the Age Discrimination in 
        Employment Act of 1967 (29 U.S.C. 621 et seq.), title VII of 
        the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the 
        Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et 
        seq.), and the Rehabilitation Act of 1973 (29 U.S.C. 701 et 
        seq.), complaining parties--
                    (A) may rely on any type or form of admissible 
                evidence to establish their claims;
                    (B) are not required to demonstrate that the 
                protected characteristic or activity was the sole cause 
                of the employment practice; and
                    (C) may demonstrate an unlawful practice through 
                any available method of proof, including the analytical 
                framework set out in McDonnell Douglas Corp. v. Green, 
                411 U.S. 792 (1973).

SEC. 3. STANDARDS OF PROOF.

    (a) Age Discrimination in Employment Act of 1967.--
            (1) Clarifying prohibition against impermissible 
        consideration of age in employment practices.--Section 4 of the 
        Age Discrimination in Employment Act of 1967 (29 U.S.C. 623) is 
        amended by inserting after subsection (f) the following:
    ``(g)(1) Except as otherwise provided in this Act, an unlawful 
practice is established under this Act when the complaining party 
demonstrates that age or an activity protected by subsection (d) was a 
motivating factor for any practice, even though other factors also 
motivated the practice.
    ``(2) In establishing an unlawful practice under this Act, 
including under paragraph (1) or by any other method of proof, a 
complaining party--
            ``(A) may rely on any type or form of admissible evidence 
        and need only produce evidence sufficient for a reasonable 
        trier of fact to find that an unlawful practice occurred under 
        this Act; and
            ``(B) shall not be required to demonstrate that age or an 
        activity protected by subsection (d) was the sole cause of a 
        practice.''.
            (2) Remedies.--Section 7 of such Act (29 U.S.C. 626) is 
        amended--
                    (A) in subsection (b)--
                            (i) in the first sentence, by striking 
                        ``The'' and inserting ``(1) The'';
                            (ii) in the third sentence, by striking 
                        ``Amounts'' and inserting the following:
    ``(2) Amounts'';
                            (iii) in the fifth sentence, by striking 
                        ``Before'' and inserting the following:
    ``(4) Before''; and
                            (iv) by inserting before paragraph (4), as 
                        designated by clause (iii) of this 
                        subparagraph, the following:
    ``(3) On a claim in which an individual demonstrates that age was a 
motivating factor for any employment practice, under section 4(g)(1), 
and a respondent demonstrates that the respondent 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 section 4(g)(1); and
            ``(B) shall not award damages or issue an order requiring 
        any admission, reinstatement, hiring, promotion, or payment.''; 
        and
                    (B) in subsection (c)(1), by striking ``Any'' and 
                inserting ``Subject to subsection (b)(3), any''.
            (3) Definitions.--Section 11 of such Act (29 U.S.C. 630) is 
        amended by adding at the end the following:
    ``(m) The term `demonstrates' means meets the burdens of production 
and persuasion.''.
            (4) Federal employees.--Section 15 of such Act (29 U.S.C. 
        633a) is amended by adding at the end the following:
    ``(h) Sections 4(g) and 7(b)(3) shall apply to mixed motive claims 
(involving practices described in section 4(g)(1)) under this 
section.''.
    (b) Title VII of the Civil Rights Act of 1964.--
            (1) Clarifying prohibition against impermissible 
        consideration of race, color, religion, sex, or national origin 
        in employment practices.--Section 703 of the Civil Rights Act 
        of 1964 (42 U.S.C. 2000e-2) is amended by striking subsection 
        (m) and inserting the following:
    ``(m) Except as otherwise provided in this title, an unlawful 
employment practice is established under this title when the 
complaining party demonstrates that race, color, religion, sex, or 
national origin or an activity protected by section 704(a) was a 
motivating factor for any employment practice, even though other 
factors also motivated the practice.''.
            (2) Federal employees.--Section 717 of such Act (42 U.S.C. 
        2000e-16) is amended by adding at the end the following:
    ``(g) Sections 703(m) and 706(g)(2)(B) shall apply to mixed motive 
cases (involving practices described in section 703(m)) under this 
section.''.
    (c) Americans With Disabilities Act of 1990.--
            (1) Definitions.--Section 101 of the Americans with 
        Disabilities Act of 1990 (42 U.S.C. 12111) is amended by adding 
        at the end the following:
            ``(11) Demonstrates.--The term `demonstrates' means meets 
        the burdens of production and persuasion.''.
            (2) Clarifying prohibition against impermissible 
        consideration of disability in employment practices.--Section 
        102 of such Act (42 U.S.C. 12112) is amended by adding at the 
        end the following:
    ``(e) Proof.--
            ``(1) Establishment.--Except as otherwise provided in this 
        Act, a discriminatory practice is established under this Act 
        when the complaining party demonstrates that disability or an 
        activity protected by subsection (a) or (b) of section 503 was 
        a motivating factor for any employment practice, even though 
        other factors also motivated the practice.
            ``(2) Demonstration.--In establishing a discriminatory 
        practice under paragraph (1) or by any other method of proof, a 
        complaining party--
                    ``(A) may rely on any type or form of admissible 
                evidence and need only produce evidence sufficient for 
                a reasonable trier of fact to find that a 
                discriminatory practice occurred under this Act; and
                    ``(B) shall not be required to demonstrate that 
                disability or an activity protected by subsection (a) 
                or (b) of section 503 was the sole cause of an 
                employment practice.''.
            (3) Certain antiretaliation claims.--Section 503(c) of such 
        Act (42 U.S.C. 12203(c)) is amended--
                    (A) by striking ``The remedies'' and inserting the 
                following:
            ``(1) In general.--Except as provided in paragraph (2), the 
        remedies''; and
                    (B) by adding at the end the following:
            ``(2) Certain antiretaliation claims.--Section 107(c) shall 
        apply to claims under section 102(e)(1) with respect to title 
        I.''.
            (4) Remedies.--Section 107 of such Act (42 U.S.C. 12117) is 
        amended by adding at the end the following:
    ``(c) Discriminatory Motivating Factor.--On a claim in which an 
individual demonstrates that disability was a motivating factor for any 
employment practice, under section 102(e)(1), and a respondent 
demonstrates that the respondent would have taken the same action in 
the absence of the impermissible motivating factor, the court--
            ``(1) may grant declaratory relief, injunctive relief 
        (except as provided in paragraph (2)), and attorney's fees and 
        costs demonstrated to be directly attributable only to the 
        pursuit of a claim under section 102(e)(1); and
            ``(2) shall not award damages or issue an order requiring 
        any admission, reinstatement, hiring, promotion, or payment.''.
    (d) Rehabilitation Act of 1973.--
            (1) In general.--Sections 501(g), 503(d), and 504(d) of the 
        Rehabilitation Act of 1973 (29 U.S.C. 791(g), 793(d), and 
        794(d)), are each amended by adding after the words ``title I 
        of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 
        et seq.)'' the following: ``, including the standards of 
        causation or methods of proof applied under section 102(e) of 
        that Act (42 U.S.C. 12112(e)),''.
            (2) Federal employees.--The amendment made by paragraph (1) 
        to section 501(g) shall be construed to apply to all employees 
        covered by section 501.

SEC. 4. APPLICATION.

    This Act, and the amendments made by this Act, shall apply to all 
claims pending on or after the date of enactment of this Act.
                                 <all>