118 HR 6581 IH: Protecting Older Workers Against Discrimination Act of 2023
U.S. House of Representatives
2023-12-04
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I
118th CONGRESS
1st Session
H. R. 6581
IN THE HOUSE OF REPRESENTATIVES
December 4, 2023
Mr. Scott of Virginia (for himself, Mr. Grothman, Ms. Bonamici, Mr. Fitzpatrick, Ms. Adams, and Mr. Van Drew) introduced the following bill; which was referred to the Committee on Education and the Workforce
A BILL
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 2023”.
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)
Except as otherwise provided in this chapter, an unlawful practice is established under this chapter 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)

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 proves a violation under subsection (g) of section 623 of this title, 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 subsection 4(g) of section 623 of this title; and
(B)
shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.”; and
(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)
The provisions of 623(g) and 626(b)(3) of this title shall apply to claims brought under the provisions of 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 practice is established when the complaining party demonstrates that race, color, religion, sex, national origin, or an activity protected by section 2000e–(3)a of this title was a motivating factor for any 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 2000e–2(m) and 2000e–5(g)(2)(B) of this title shall apply to claims brought under the provisions of 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 chapter, a discriminatory practice is established under this chapter when the complaining party demonstrates that disability or an activity protected by subsection (a) or (b) of section 12203 of this title was a motivating factor for any practice, even though other factors also motivated the 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 12117(c) shall apply to claims under section 12112(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 proves a violation under section 12112(e)(1) of this title, 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 12112(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