117 HR 2062 EH: Protecting Older Workers Against Discrimination Act of 2021
U.S. House of Representatives
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I
117th CONGRESS
1st Session
H. R. 2062
IN THE HOUSE OF REPRESENTATIVES
AN ACT
To amend the Age Discrimination in Employment Act of 1967 and other laws to clarify appropriate standards for Federal employment discrimination and retaliation claims, and for other purposes.
1.

Short title
This Act may be cited as the “Protecting Older Workers Against Discrimination Act of 2021”.
2.

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
(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 when the complaining party demonstrates that race, color, religion, sex, 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
(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 anti-retaliation 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 anti-retaliation 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(f), 503(d), and 504(d) of the Rehabilitation Act of 1973 (29 U.S.C. 791(f), 793(d), and 794(d)), are each amended by adding after “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(f) of the Rehabilitation Act of 1973 (29 U.S.C. 791(f)) shall be construed to apply to all employees covered by section 501 of that Act (29 U.S.C. 791).
3.

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.
4.

Severability
If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provisions of such to any person or circumstance shall not be affected thereby.
5.

Study and report to Congress
Not later than 1 year after the date of the enactment of this Act, the Secretary of Labor and the Equal Employment Opportunity Commission shall jointly conduct a study to determine the number of claims pending or filed, in addition to cases closed, by women who may have been adversely impacted by age discrimination as a motivating factor in workplace discrimination or employment termination. The Secretary of Labor and Chairman of the Commission shall jointly submit to the Congress, and make available to the public, a report that contains the results of the study, including recommendations for best practices to prevent and to combat gender and age discrimination as it relates to women in the workplace.
6.

Reports
The Chairman of Equal Employment Opportunity Commission shall submit to the Committee on Education and Labor of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the Senate a report at 1-year intervals on the number of age discrimination in employment claims brought under this Act with the Equal Employment Opportunity Commission in the period for which such report is submitted.
7.

Report
(a)

Report
Not later than 2 years after the date of enactment of this Act, the Equal Employment Opportunity Employment Commission shall submit to the Congress, and make available to the public, a report that contains analysis of any disparities that covered individuals, as defined in subsection (b), face in pursuing relief from discrimination in employment under the mixed motive evidentiary standard.
(b)

Covered individuals defined
The term “covered individuals” means individuals who face discrimination in employment based on characteristics protected under the Age Discrimination in Employment Act of 1967 combined with one or more intersectional characteristics protected under title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, or the Rehabilitation Act of 1973.
Passed the House of Representatives June 23, 2021.
Cheryl L. Johnson,
Clerk.