[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
                    H.R. 3721, THE PROTECTING OLDER
                   WORKERS AGAINST DISCRIMINATION ACT

=======================================================================

                                HEARING

                               before the

                        SUBCOMMITTEE ON HEALTH,
                     EMPLOYMENT, LABOR AND PENSIONS

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

              HEARING HELD IN WASHINGTON, DC, MAY 5, 2010

                               __________

                           Serial No. 111-61

                               __________

      Printed for the use of the Committee on Education and Labor


                       Available on the Internet:
      http://www.gpoaccess.gov/congress/house/education/index.html



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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       John Kline, Minnesota,
    Chairman                           Senior Republican Member
Donald M. Payne, New Jersey          Thomas E. Petri, Wisconsin
Robert E. Andrews, New Jersey        Howard P. ``Buck'' McKeon, 
Robert C. ``Bobby'' Scott, Virginia      California
Lynn C. Woolsey, California          Peter Hoekstra, Michigan
Ruben Hinojosa, Texas                Michael N. Castle, Delaware
Carolyn McCarthy, New York           Mark E. Souder, Indiana
John F. Tierney, Massachusetts       Vernon J. Ehlers, Michigan
Dennis J. Kucinich, Ohio             Judy Biggert, Illinois
David Wu, Oregon                     Todd Russell Platts, Pennsylvania
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Tom Price, Georgia
Timothy H. Bishop, New York          Rob Bishop, Utah
Joe Sestak, Pennsylvania             Brett Guthrie, Kentucky
David Loebsack, Iowa                 Bill Cassidy, Louisiana
Mazie Hirono, Hawaii                 Tom McClintock, California
Jason Altmire, Pennsylvania          Duncan Hunter, California
Phil Hare, Illinois                  David P. Roe, Tennessee
Yvette D. Clarke, New York           Glenn Thompson, Pennsylvania
Joe Courtney, Connecticut
Carol Shea-Porter, New Hampshire
Marcia L. Fudge, Ohio
Jared Polis, Colorado
Paul Tonko, New York
Pedro R. Pierluisi, Puerto Rico
Gregorio Kilili Camacho Sablan,
    Northern Mariana Islands
Dina Titus, Nevada
Judy Chu, California

                     Mark Zuckerman, Staff Director
                Sally Stroup, Republican Staff Director

         SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS

                ROBERT E. ANDREWS, New Jersey, Chairman

David Wu, Oregon                     Tom Price, Geogia,
Phil Hare, Illinois                    Ranking Minority Member
John F. Tierney, Massachusetts       John Kline, Minnesota
Dennis J. Kucinich, Ohio             Howard P. ``Buck'' McKeon, 
Marcia L. Fudge, Ohio                    California
Dale E. Kildee, Michigan             Joe Wilson, South Carolina
Carolyn McCarthy, New York           Brett Guthrie, Kentucky
Rush D. Holt, New Jersey             Tom McClintock, California
Joe Sestak, Pennsylvania             Duncan Hunter, California
David Loebsack, Iowa                 David P. Roe, Tennessee
Yvette D. Clarke, New York
Joe Courtney, Connecticut


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on May 5, 2010......................................     1

Statement of Members:
    Andrews, Hon. Robert E., Chairman, Subcommittee on Health, 
      Employment, Labor and Pensions.............................     1
        Prepared statement of the National Senior Citizens Law 
          Center.................................................    50
    Price, Hon. Tom, Ranking Republican Member, Subcommittee on 
      Health, Employment, Labor and Pensions.....................     3
        Prepared statement of....................................     5

Statement of Witnesses:
    Aldrich, Gail, member, board of directors, AARP..............    10
        Prepared statement of....................................    12
    Dreiband, Eric S., partner, Jones Day Law Firm...............    15
        Prepared statement of....................................    17
    Foreman, Prof. Michael, director, civil rights appellate 
      clinic, Pennsylvania State University Dickinson School of 
      Law........................................................    25
        Prepared statement of....................................    26
    Gross, Jack, CPCU, CLU, ChFC.................................     7
        Prepared statement of....................................     9


   H.R. 3721, THE PROTECTING OLDER WORKERS AGAINST DISCRIMINATION ACT

                              ----------                              


                         Wednesday, May 5, 2010

                     U.S. House of Representatives

         Subcommittee on Health, Employment, Labor and Pensions

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 10:30 a.m., in 
room 2175, Rayburn House Office Building, Hon. Robert Andrews 
[chairman of the subcommittee] presiding.
    Present: Representatives Andrews, Hare, Tierney, Kucinich, 
Fudge, McCarthy, Holt, Loebsack, and Price.
    Staff Present: Aaron Albright, Press Secretary; Andra 
Belknap, Press Assistant; Jody Calemine, General Counsel; David 
Hartzler, Systems Administrator; Sadie Marshall, Chief Clerk; 
Megan O'Reilly, Labor Counsel; Rachel Racusen, Communications 
Director; James Schroll, Junior Legislative Associate, Labor; 
Michele Varnhagen, Labor Policy Director; Matt Walker, Policy 
Advisor, HELP; Kirk Boyle, Minority General Counsel; Ed Gilroy, 
Minority Director of Workforce Policy; Rob Gregg, Minority 
Senior Legislative Assistant; Brian Newell, Minority Press 
Secretary; Jim Paretti, Minority Workforce Policy Counsel; Ken 
Serafin, Minority Professional Staff Member; and Linda Stevens, 
Minority Chief Clerk/Assistant to the General Counsel.
    Chairman Andrews. Ladies and gentlemen, the committee will 
come to order.
    Welcome. We are pleased to have our witnesses with us this 
morning and ladies and gentlemen of the public as well. The 
crowd is small in quantity, but it will be great in quality, I 
assure you. There is no question about that. And other Members 
are expected to join us.
    We would like to thank the witnesses for their astute 
preparation for this morning.
    I think most Americans--Democrat, Republican, liberal, 
conservative--no matter where they are from, if they heard the 
following story, would think that something was a little off. 
If you took a person that had worked for an employer for a very 
long time and, for 13 years running, had scored at the very top 
of employment evaluations, the top 3 to 5 percent of people in 
this person's field, and the employer that the person works for 
merges with another company, and when the merger takes place--
they have a field office in Kansas and a field office in Iowa. 
And what they essentially do is to say that all the people over 
50 in the Kansas office we will offer an early buyout so they 
can leave, and people over 50 in the Iowa office we will 
essentially demote. And, as I understand it, only one person 
who was under 50 is demoted, and that person is near 50 at the 
time.
    So the person who is affected by this, after 13 consecutive 
years of scoring at the top of the list on achievement, sues 
and claims, under the age discrimination statute, that he was 
demoted because of his age. There is a trial that takes place 
in Federal court in front of a jury. The jury listens to the 
evidence in the case, deliberates for a week, comes back and 
says, ``Yeah, we think that the employer violated the law here 
and that this individual is entitled to recovery.'' I think 
most people would say, okay.
    The next thing that happens is the case goes up to the 
court of appeals, and the court of appeals rules for the 
employer, saying the jury was told the wrong thing that it 
should look at in determining whether the plaintiff or 
defendant was going to win.
    And so the case goes up to the Supreme Court at that point, 
and the Supreme Court looks at the issue and says, ``You know 
what? The appellate court didn't even get the question right.'' 
So, when the question before the appellate court was when does 
the burden of proof shift to the employer to show that they 
weren't discriminating based on age, the Supreme Court says 
that is not really the right question, because the way the law 
is written, the burden of proof never--never--shifts to the 
defendant, and unless the plaintiff can show that he was the 
victim of discrimination, he loses.
    Now, the question becomes, how do you show that? How do you 
show that?
    And I come at this issue from the belief that the vast 
majority of employers in America are good-spirited, law-abiding 
people who have no intention whatsoever to practice 
discrimination against anybody and, in fact, who don't practice 
discrimination against anybody. I think the majority of 
employers in this country understand that you pick the best 
person, whether the person is 61 or 21; whether the person is 
African American, Asian American, Hispanic; whether the person 
is old, young, male, female; someday whether the person is gay 
or straight, you pick the best person. And failing to do that 
is not very good for business.
    But, you know, you have a situation here now where 
employers I think have been given a road map as to how to make 
it look like you are not making a decision based on age 
discrimination and get away with it. And the way you do it is 
to manufacture a rationale that says, well, this is about 
productivity, or this is about the hours of effort that someone 
can put in, or this is about some standard that doesn't look 
like it is based on age but sure does have that effect.
    The story that I tell is not hypothetical; it is Mr. 
Gross's story. And he is here to testify about it this morning, 
about what happened to him in his attempt to redress what he 
believes and what I believe was a wrong that was done to him.
    But the story really goes well beyond Mr. Gross to millions 
of other Americans who are supposed to be protected by the age 
discrimination statutes that govern employment. The question 
really becomes, if you have to find a smoking gun, if you have 
to find the foolish e-mail or foolish conversation or foolish 
oral statement that was made that says, ``Yeah, we have had 
enough of these old people here, they cost too much, their 
benefits are too expensive, we have had enough of them; we want 
to shift to a younger group because it is cheaper to run our 
business that way,'' if you run into the rare foolish employer 
who makes a statement like that, you can win. But it is a very 
open question about what happens in the other 99-and-a-half 
percent of the time when you don't run into a record that looks 
like that. What are the ground rules for proving that you have 
been a victim of age discrimination?
    This is a very subtle and abstract legal issue, but it sure 
isn't subtle and abstract in its effect on millions of people 
in the workplace and in the country. I would be willing to 
posit this morning that there is not a member of this committee 
who believes that age discrimination is a proper practice in 
the workplace. I know the ladies and gentlemen on both sides of 
the dais, and I don't think anybody believes that. And I don't 
think any witness believes that either; I am sure no witness 
believes that.
    But how we establish the ground rules for proving age 
discrimination are very, very important. It is my belief that 
the decision, which unfortunately bears the name of Mr. Gross, 
unwillingly, subverts the opportunity for people to prove they 
have been discriminated against when, in fact, they have been 
discriminated against on the basis of their age.
    Chairman Miller, Chairman Conyers, myself, Mr. Nadler, and 
some others have introduced legislation in an attempt to, we 
believe, come up with a more fair standard that is consistent 
with the law that has governed this country for a very long 
time.
    Basically, that idea is that if you, as a person who 
believes you have been discriminated against, can show evidence 
that would raise that presumption, the burden then shifts to 
the defendant to show that the defendant did not, in fact, base 
their decision on age discrimination.
    Now, we are going to have a vigorous discussion of whether 
that is a good idea or a bad idea. And it is a discussion that 
will commence today and, I think, go on into the future.
    So I don't think the issue before the committee this 
morning is whether people support age discrimination or not. I 
don't think anyone here does. The issue, though, is what to do 
about that. And I think we had an effective statute on the 
books for a long time that was successful in achieving justice 
for those who deserved it. And I think the decision of the 
Supreme Court undercuts that decision and needs to be addressed 
by the committee in that way.
    I am now going to turn to turn to my friend who is the 
senior Republican ranking member on the committee, Dr. Price, 
for his opening statement.
    Mr. Price. Thank you, Mr. Chairman.
    I am privileged to serve as the ranking member of this 
committee with a chairman that can spin all sorts of wonderful 
yarns, and sometimes they actually bear some resemblance to the 
truth. I won't opine as to whether or not the one that you just 
heard did or not, but I will say and echo his comments, and 
that is that this is an important issue. And so I want to thank 
the witnesses for joining us today and to present your 
experience, the information that you have. And, Mr. Gross, we 
look forward to your testimony.
    The issue before us today, as I mentioned, is truly an 
important one. And to put it mildly, it is more than a little 
complicated, especially for those of us who aren't lawyers. As 
a physician, the first tenet of medicine is: First, do no harm. 
And that is not oftentimes followed here in Washington, so I 
think one of the concerns that I have, that we have, is to make 
certain that we don't do harm, that we don't march down a road 
that would result in significant unintended consequences. 
Especially when an issue is so complicated and touching on a 
matter as important as our civil rights laws, a close and 
thorough examination is certainly warranted.
    The bill before us comes in response to last year's Supreme 
Court decision in Gross v. FBL Financial Services. In Gross, 
the court held that, as a matter of the plain language of the 
statute, a certain standard contained in Title VII of the Civil 
Rights Act was not applicable to plaintiffs bringing claims of 
age discrimination under a different statute, the Age 
Discrimination in Employment Act.
    And I think one can argue whether the Gross case was 
properly decided by the Supreme Court. It was a narrowly 
divided decision, as we all know, and included a very strong 
dissent. Good minds can and will disagree over whether or not 
the majority's holding was the correct one.
    Now, what is beyond dispute, however, is that, despite its 
title, the ``Protecting Older Workers Against Discrimination,'' 
this legislative remedy goes far beyond simply amending the Age 
Discrimination in Employment Act in reversing the Gross 
decision.
    Make no mistake: This bill is not simply a, quote, 
``restoration,'' unquote, of where the law stood the day before 
the Gross case was decided. Instead, the bill before us 
purports to apply to a vast and undefined range of laws, 
Federal and possibly State, which might be characterized as 
protecting against employment discrimination retaliation or 
participation in workplace investigations.
    We are deeply concerned that the vague and expansive reach 
of this law will undo years of unsettled case law and practice 
under statutes wholly unrelated to the Gross case or to the 
protection of older workers. Indeed, in too many ways, this 
legislation makes broad, substantive changes to our Nation's 
civil rights laws under the facade of narrowly reversing a 
single Supreme Court case.
    With that in mind, I am truly interested in hearing from 
our witnesses what the practical effects of the Gross decision 
have been and what the practical application of the bill before 
us might be. Is the bill properly drafted? Should it be more 
narrowly targeted? Unintended consequences? What are we 
overlooking, given the broad scope of the bill? And, at the end 
of day, will the bill truly protect workers from discrimination 
or simply be another boon for the trial lawyers?
    I want to thank the chairman for organizing this hearing, 
and I look forward to the testimony of the witnesses.
    [The statement of Mr. Price follows:]

   Prepared Statement of Hon. Tom Price, Ranking Republican Member, 
        Subcommittee on Health, Employment, Labor, and Pensions

    Good morning and thank you, Chairman Andrews. I would like to begin 
by thanking our distinguished panel for appearing today. We appreciate 
that they have taken time out of their busy schedules to share their 
experiences and expertise with us.
    The issue before us is an important one, and, to put it mildly, 
more than a little complicated--especially for those of us who are not 
lawyers. But especially when an issue is so complicated--and touching 
on as important a matter as our nation's civil rights laws--a close and 
thorough examination is warranted.
    The bill before us comes in response to last year's Supreme Court 
decision in Gross v. FBL Financial Services. In Gross, the Court held 
that as a matter of the plain language of the statute, a certain 
standard contained in Title VII of the Civil Rights Act was not 
applicable to plaintiffs bringing claims of age discrimination under a 
different statute, the Age Discrimination in Employment Act.
    Now one can argue whether the Gross case was properly decided by 
the Supreme Court--it was a narrowly-divided decision, and included a 
strong dissent. Good minds can and will disagree over whether the 
majority's holding was the correct one. What is beyond dispute, 
however, is that despite its title, ``Protecting Older Workers Against 
Discrimination,'' this legislative remedy goes far beyond simply 
amending the Age Discrimination in Employment Act and reversing the 
Gross decision.
    Make no mistake, this bill is not simply a ``restoration'' of where 
the law stood the day before the Gross case was decided. Instead, the 
bill before us purports to apply to a vast and undefined range of laws, 
federal and possibly state, which might be characterized as protecting 
against employment discrimination, retaliation, or participation in 
workplace investigations.
    I am deeply concerned that the vague and expansive reach of this 
law will undo years of settled case law and practice under statutes 
wholly unrelated to the Gross case, or to the protection of ``older'' 
workers. Indeed, in too many ways, this legislation makes broad 
substantive changes to our nation's civil rights laws under the facade 
of narrowly reversing a single Supreme Court case.
    With this in mind, I am interested in hearing from our witnesses 
what the practical effects of the Gross decision have been, and what 
the practical application of the bill before us might be. Is the bill 
properly drafted, or should it be more narrowly targeted? Unintended 
consequences--what are we overlooking given the broad scope of the 
bill? And, at the end of the day, will the bill truly protect workers 
from discrimination, or simply be another boon to trial lawyers?
    Thank you, Chairman, and I look forward to hearing from our 
witnesses and exploring these matters further in the questioning 
period.
                                 ______
                                 
    Chairman Andrews. Thank you.
    Without objection, opening statements from any of the 
subcommittee members will be part of the record.
    Here is how we are going to proceed. I am going to read the 
biographies of our witnesses this morning. Without objection, 
your written statements have been entered into the record and 
made available to the Members, so we would ask each of the 
witnesses to provide a 5-minute oral synopsis of their 
testimony. After that, we will have rounds of questioning from 
the members of the committee so we can engage in dialogue and 
learn more about what you have to educate us about.
    I am going to introduce the witnesses. And then, Mr. Gross, 
we are going to start with you once the introductions are done.
    Mr. Jack Gross recently retired from FBI Financial Services 
after 29 years. Mr. Gross is the plaintiff in the case we will 
examine today.
    In 2003, he filed an age discrimination suit against his 
employer, FBI Financial Services. A jury found that FBI had 
discriminated against Mr. Gross when it demoted him because of 
his age and awarded him--FBL, excuse me--FBI, Freudian slip 
here.
    The Supreme Court reversed that decision in 2009 and, in 
doing so, overturned longstanding precedent. The bill before 
us, H.R. 3721, would restore the law up to what it was prior to 
the Supreme Court decision in Gross v. FBL Financial Services.
    Mr. Gross has a BS from Drake University. He has two 
beautiful grandchildren, he tells me. He made a particular 
sacrifice to be here this morning. His wife of 43 years had an 
emergency appendectomy very recently. And thank God she is 
doing okay. But please tell her we hope she gets better. And we 
appreciate your sacrifice in being here this morning.
    Mr. Gross. Appreciate it.
    Chairman Andrews. Ms. Gail Aldrich is a member of the Board 
of Directors for AARP and an experienced executive with 
expertise in human resource management. She served previously 
as chief membership officer for the Society for Human Resource 
Management, or SHRM.
    Ms. Aldrich earned her BA from Eastern Michigan University, 
has completed the Advanced Executive Program at UCLA, and has 
been certified as a senior professional in human resources by 
the Human Resource Certification Institute.
    Welcome, Ms. Aldrich. We are glad that you are with us.
    Mr. Eric Dreiband--did I pronounce your name correctly?
    Mr. Dreiband. Yes.
    Chairman Andrews [continuing]. Is a partner at the Jones 
Day Law Firm, where he represents companies in all aspects of 
civil rights, employment discrimination, and wage and hour 
litigation.
    Prior to joining Jones Day, Mr. Dreiband served as the 
general counsel of the United States Equal Employment 
Opportunity Commission and deputy administrator for the U.S. 
Department of Labor's Wage and Hour Division.
    Mr. Dreiband has his JD from Northwestern University, an 
MTS from Harvard University, and a BA from one of the finest 
institutions in America, Princeton University, which Mr. Holt 
is very glad to hear about and represents and has been 
associated with.
    Welcome, Mr. Dreiband. I think you have been with us 
before. It is good to have you with us again.
    Mr. Dreiband. Thank you.
    Chairman Andrews. Mr. Michael Foreman is a clinical 
professor and director of the Civil Rights Appellate Clinic at 
the Dickinson School of Law at Penn State. He previously served 
as acting deputy general counsel for the U.S. Commission on 
Civil Rights. Professor Foreman has a JD degree from Duquesne 
University and a BA from Shippensburg University.
    Welcome, Mr. Foreman.
    Well, ladies and gentlemen, we are going to proceed with 
the testimony.
    Mr. Gross, you are up first. There is this battery of 
lights in front of you. When the green light goes on, you are 
on. When the yellow light appears, you have about a minute left 
to go. And, in your case, please relax and don't let the lights 
bother you, finish your story. When the red light appears--Mr. 
Gross has been told a trapdoor would open under his chair. I 
don't know where that vicious rumor got started. But, in your 
case, we have locked the trapdoor and it will not open when you 
finish.
    Thanks for coming, Mr. Gross. You are on.

             STATEMENT OF JACK GROSS, PLAINTIFF IN
                GROSS V. FBL FINANCIAL SERVICES

    Mr. Gross. Thank you, Chairman Andrews, Ranking Member 
Price, and committee members. It is, indeed, an honor for me to 
be here today and to be given an opportunity to speak out on 
behalf of not only myself but millions of other older 
Americans, all too many of whom have, like me, experienced age 
discrimination in their work.
    You invited me here to tell my story since I have become 
the new name associated with age discrimination. While I am 
here to tell you about the roller-coaster ride I have been on, 
I ask that you remember that my story is being duplicated 
millions of times across this country and ask you to envision 
the millions who are depending upon your actions and standing 
behind me today in spirit. I know they are.
    I certainly never imagined that I would be here, that my 
case would end up here, when it all started 7 years ago. That 
is when my employer, Farm Bureau Insurance, or FBL, suddenly 
demoted all claims employees who were over 50 and had 
supervisory or higher positions.
    I was included in that sweep even though I had 13 
consecutive years of performance reviews in the top 3 to 5 
percent of the company and had dedicated most of my working 
career to making Farm Bureau a better company. My contributions 
were exceptional, they were well-documented, and the jury heard 
all about them.
    Since age was the obvious reason, I filed a complaint, and 
2 years later we had a very aggressive trial. The jury spent a 
week listening to all the testimony, hearing all the evidence, 
and being instructed on the law, your law. The verdict came 
back in my favor, and I thought the ordeal was over in 2005. As 
we now know, it was just the beginning.
    After that, Farm Bureau appealed and got my verdict 
overturned. Apparently, the court, the Eighth Circuit, felt 
that, even though I had proved by a preponderance of the 
evidence, I didn't produce the right kind of evidence by their 
standards. They said that I had to have so-called ``direct 
evidence.'' We are not sure, even today, what that meant. But 
that left us no choice but to appeal it to the Supreme Court.
    We felt honored and privileged. We know that there are some 
10,000 appeals to the Supreme Court each year, and they can 
accept about 70. So we were pretty excited when we got to be 
one of those 7O. And we were, frankly, very optimistic. We knew 
that we had a lot of core precedents, we had a lot of ensuing 
legislation beyond the original ADA, all working in our favor. 
And we, frankly, came to Washington, D.C., expecting to win at 
that level.
    We got a shock. At the Supreme Court, our attorney made a 
15-minute presentation; the solicitor general made a 15-minute 
presentation on our behalf. And then the Supreme Court did 
something totally unexpected: They broke with their own 
protocol and allowed the defense to advance an entirely new 
argument, one that had not been advanced before. It had the not 
been briefed. We had no chance to prepare a rebuttal. And 
rather than answer the question that we had submitted and that 
they had agreed to hear, they basically asked their own 
question and answered their own question in a way that went 
totally beyond what was ever envisioned.
    And the net effect, as far as we were concerned, was to 
water down the Age Discrimination in Employment Act as it was 
written by this branch of government, the branch closest to the 
people, and what we thought we clearly understood it was 
designed to do. So, needless to say, we were disappointed and 
disillusioned when they did that.
    Since the Supreme Court's decision in my case, I have been 
particularly distressed over the collateral damage that has 
been inflicted on other older workers because of the Court's 
ruling. I hate having my name associated with the pain and 
injustice now being inflicted on other older workers because it 
is now nearly impossible to provide the level of proof that is 
required by this Court. I have to keep reminding myself that I 
am not one who changed your law. Five justices, maybe one 
justice, was the one that actually changed everything.
    I believe Congress has a long and distinguished history of 
working together on a very bipartisan basis to create and 
maintain a level playing field in the workplace. The ADEA is 
just one example. And, to me, that just simply states that 
everyone has the right to be judged based on their ability on 
the job regardless of the number of gray hairs, number of 
birthdays that they have celebrated. And I am here to urge you, 
on behalf of myself and the millions who are behind me, to 
continue working in that same bipartisan spirit to pass this 
bill, the Protecting Older Workers Against Discrimination Act, 
in the same bipartisan spirt that you have shown in the past.
    I grew up in a small town in southern Iowa in which has 
traditionally been called the poverty county of the State. It 
is the only county that doesn't have a single stoplight. It is 
a farm community, very close-knit. Everybody knows everybody. 
My wife is from the same area, and we started going together in 
1967--I was 19 years old--the same year you passed the Age 
Discrimination Act.
    My early life was pretty much defined by some chronic 
health problems. I developed chronic colitis at age 5 and 
endured that until I was 30. We had to overcome a lot. We 
started off our married life with absolutely nothing but a 
strong work ethic and a determination to build a good life 
together, and we did so against all odds. As was said, we have 
two wonderful grown children, two adorable grandchildren who 
are the lights of our lives.
    I am before you today as a man who agonized over the 
decision to pursue this case. It wasn't like me. One of the 
prospective jurors during voir dire made the comment that she 
just couldn't understand how anybody could sue anybody who 
would give them a job, and her words resonated with me very 
strongly. We agonized. We thought about it. We sat down and we 
prayed about it. We decided it had to be done. We left the 
outcome in God's hands. And if my experience eventually 
prevents anyone else from having to endure the pain and 
humiliation of discrimination, I will always believe that this 
effort was part of God's plan for my life and, by extension, 
perhaps for yours.
    Thank you.
    [The statement of Mr. Gross follows:]

           Prepared Statement of Jack Gross, CPCU, CLU, ChFC

    Thank you Chairman.
    I'm honored to be here and to be given an opportunity to speak out 
on behalf of the baby boomer generation, many of whom like me, have 
experienced age discrimination. You invited me here to share my story 
since I have, because of a Supreme Court ruling, become the new name 
associated with age discrimination. I am happy to do so.
    To me, of course, my story is personal and unique. I ask you to 
keep in mind, however, that key aspects of my story have, and are being 
duplicated millions of times across this country. Please, envision 
those millions who are depending on you standing behind me today. In 
spirit, they are.
    I certainly never imagined that my case would end up here when it 
all started over seven years ago. That is when my employer, Farm Bureau 
Insurance, or FBL, merged with the Kansas Farm Bureau. Apparently not 
wanting to add any more older workers, they offered the Kansas claims 
employees who were over 50 a buyout to purge them from the company. At 
the same time, they just demoted all claims employees in the Iowa 
operation who were 50 and over and had supervisory or higher positions. 
Only one person who was under 50, but approaching it, was demoted.
    Being 54 at the time, I was included in that sweep, even though I 
had 13 consecutive years of performance reviews in the top 3-5% of the 
company, and had dedicated most of my working career to making Farm 
Bureau a better company. My contributions were exceptional and well 
documented. Not least was managing what Farm Bureau called it's biggest 
undertaking ever. In 1997, I was asked to take all of our existing 
property and casualty policies, re-write them in a way they could be 
easily understood, and combine them into a totally unique package 
policy unlike anyone else had in our market. And, they asked me to do 
it in a year. I did, and it is still their exclusive and very popular 
modular product, upon which they are basing their future. That was only 
one of many valuable contributions I made to FBL, but my time is 
limited. The jury that decided my case heard all about them.
    Since age was the obvious reason, I filed a complaint, and two 
years later a federal jury spent a week listening to all the testimony, 
seeing all of the evidence, and being instructed on the ADEA. They were 
also instructed to rule in my favor if I had proved by a preponderance 
of evidence that age was a motivating factor, and also that they should 
rule in favor of FBL if they could find any reason, other than age, for 
my demotion. The verdict came back in my favor, and I thought the 
ordeal was over in 2005. As we now know, it was just the beginning.
    After that, FBL appealed and got my jury verdict overturned on what 
I consider a technicality in the jury instruction. Apparently, most 
courts said that, in a so-called mixed motive case, any kind of 
evidence was sufficient. But, the 8th Circuit said I had to have so-
called ``direct'' evidence. That left us no choice but to appeal it to 
the Supreme Court.
    We were optimistic and grateful when the court accepted cert on 
whether direct evidence was required to get a mixed-motive instruction. 
Precedent and legislation, we felt, were overwhelmingly on our side. At 
the hearing, however, the Supreme Court broke their own protocol and 
allowed the defense to advance an entirely new argument. It had not 
been briefed, nor had we been given an opportunity to prepare a 
rebuttal. To make a long story short, the court essentially hijacked my 
case and used it as a vehicle to water down the ADEA, a law written by 
the branch of government closest to the people. Editorials and bloggers 
dubbed me this year's Lily Ledbetter. (I take that as a compliment.)
    My wife and I came to this town last March expecting to see our 
high court at its best. We believed in the rule of law and its 
consistent application to all areas of discrimination. Needless to say, 
we were disappointed, disillusioned, and quite frankly embarrassed by 
the arrogance we witnessed. I felt the High Court had pulled a ``bait 
and switch'' on me.
    As it stands now, I have a new trial scheduled for November of this 
year, nearly eight years after the unjustified and unlawful demotion. 
In that time, witnesses have moved out of state, memories have faded, 
and the court has changed the rules. My trust in the judicial system is 
shattered. I used to believe that our courts tried to uphold and 
sanctify the decisions of our citizen juries, instead of second-
guessing their ability to understand the letter and spirit of the law.
    That is the story of my discrimination experience. I don't have 
time to share much of my personal background, so I'll be very brief. I 
grew up in a small town in southern Iowa. My dad was a highway 
patrolman and my mother a school teacher. I overcame chronic health 
problems to achieve my education and success. My wife, to whom I've 
been married for 43 years, and I started with absolutely nothing but a 
determination to build a good life, and we did against all odds. We 
have two wonderful grown children and two grandchildren who are the 
lights of our lives. I am very proud of my family and of my 
professional accomplishments.
    Since I was integrally involved in defending FBL for many years as 
a claims manager, I am probably an unlikely candidate to be here. We 
believe that is the reason FBL has defended this case so aggressively, 
and that it explains the intensity of the retaliation I endured over 
the past seven years while the litigation proceeded. I finally retired 
last December because the stress of that retaliation was causing me 
health problems.
    Since the Supreme Court's decision in my case, I have been 
particularly distressed over the collateral damage that is being 
inflicted on others because of the Court's ruling. I hate having my 
name associated with the pain and injustice now being inflicted on 
older workers, because it is nearly impossible to provide the level of 
proof now required by the Court. I have to keep reminding myself that 
I'm not the one who changed the law. Five powerful men in black robes 
did it.
    As a citizen, I believe this body -Congress- has a long history of 
working together, on a bi-partisan basis, to create and maintain a 
level playing field in the workplace. The ADEA, and the ensuing 
legislation that reinforced it's intent, is but one example. As a 
citizen, it clearly says to me that congress intended to put an end to 
discrimination in employment practices. I believe the same is true for 
most jurors. We don't parse individual words the way judges and some 
attorneys do. We know what ``is'' is. The ADEA simply states that it 
shall be unlawful to discriminate because of age. We get it. This 
Supreme Court apparently doesn't. Justice Thomas challenged you to 
state that age has to be ``a motivating factor'' if that is what you 
intended. The Protecting Older Workers Against Discrimination Act does 
that, and I urge you, on behalf of myself and the millions of baby 
boomers behind me who have been paying the bills for a generation and 
want to continue working, to pass it in the same bi-partisan spirit 
you've shown in the past.
    Finally, one of my jurors, during voir dire, said that she just 
couldn't understand how a man could sue a company that gave him a job. 
Her words resonated with me. I agonized over the decision to pursue 
this. The folks standing behind me understand. My wife and I prayed 
about it, decided it had to be done, and then we left the outcome in 
God's hands. If my experience eventually prevents anyone else from 
having to endure the pain and humiliation of discrimination, I will 
always believe that this effort was part of God's plan for my life.
    Thank you
                                 ______
                                 
    Chairman Andrews. Well, Mr. Gross, thank you very much. 
That was a very moving and heartfelt statement, and we 
appreciate the way you have brought your personal experiences 
to bear. As I said to you when I met you this morning, I am 
sorry you are here. I wish that the circumstances that led to 
your appearance had not happened.
    And you were doing very well until you mentioned the, sort 
of, gray hair test, which a lot of us on the committee take a 
little personally. And so you did well up to that point, but I 
think we will forgive you for that.
    Ms. Aldrich, you are up.

             STATEMENT OF GAIL E. ALDRICH, MEMBER,
                    BOARD OF DIRECTORS, AARP

    Ms. Aldrich. Thank you.
    Good morning, Chairman Andrews and Ranking Member Price. My 
name is Gail Aldrich. I am an AARP board member, and I am 
pleased to testify today on behalf of older workers.
    Older workers have long been an AARP priority. And roughly 
half of all AARP members are employed either full- or part-
time. We advocate for older workers in Congress and before the 
courts to combat age discrimination. In addition, AARP 
participates in the Senior Community Service Employment 
Program. We annually recognize best employers for workers over 
age 50. And we organize job fairs, allowing employers and older 
workers to find one another.
    Before I became an AARP board member, I was a business 
executive responsible for applying Federal and State employment 
laws on a day-to-day basis. I previously served as chief 
membership officer of the Society for Human Resource 
Management, and I have been the top HR officer for three 
organizations. As a result, I am very familiar with the 
challenges of addressing age and other discrimination claims by 
employees.
    I want to thank you and all members of this Education and 
Labor subcommittee for extending AARP this opportunity to speak 
on the issue of protecting older workers against age 
discrimination and about the proposed legislation to address 
the U.S. Supreme Court's very troubling decision last year in 
Gross v. FBL Financial Services.
    AARP thinks the decision is wrong and that the Court's 
interpretation of what Congress meant when it enacted the ADEA 
is inaccurate. Unless corrected, this decision will have 
devastating consequences for older workers.
    The decision could not have come at a worse time for older 
workers, who are experiencing a level of unemployment and job 
insecurity that has not been seen since the late 1940s. This 
decision takes away a vital legal protection at the very time 
that the economy does not give older workers the luxury of 
ignoring the discrimination and simply finding another job.
    The unemployment rate for people over 55 has more than 
doubled since the start of the recession, rising from 3.2 
percent in December of 2007 to 6.9 percent in March of 2010. 
Once out of work, older workers or older job seekers face a 
prolonged and often discouraging job search. The average 
duration of unemployment has soared since the start of the 
recession and is substantially higher for older job seekers. 
Over half of job seekers over age 55 are found among the long-
term unemployed, those who have been out of work for 27 weeks 
or more. Once out of work, older persons are more likely than 
younger unemployed to stop looking for work and to drop out of 
the labor force.
    Older workers need effective age discrimination laws when 
employers choose to displace them based on their age due to 
stereotypes rather than performance or other legitimate 
business reasons. And, clearly, unfounded stereotypes about 
older workers linger. AARP attorneys have battled employer 
perceptions that older workers have less energy and are less 
engaged despite our research at AARP showing that, actually, 
older workers are more engaged in their jobs and are more 
reliable.
    Some employers believe older workers are a poor investment 
for participation in training. However, AARP research shows 
that they are more loyal to their current employers and may be 
better training investments. And, finally, some employers have 
outdated notions that older workers are unable to adapt in 
industries like computers and information technology. This, 
despite us baby boomers who are enthusiastic about embracing 
all kinds of rapidly changing IT products and services.
    Failing to allow older workers a fair chance to fight age 
discrimination is directly contrary to other Federal policies 
envisioning that Americans will work longer. For instance, the 
1983 Social Security amendments increased the age of 
eligibility for full benefits to be paid. Eliminating 
discrimination is critical if older workers are to delay their 
date of retirement. Working longer is good for society because 
earners typically pay more in taxes than retirees. It is also 
good for workers, who have more years to save and less time in 
retirement that they have to finance. And it is good for 
employers, who retain skilled and experienced employees.
    AARP strongly favors and endorses H.R. 3721. It would 
eliminate the second-class status for victims of age bias that 
the Court in the Gross decision seemed to embrace. In the worst 
economic conditions in decades for older workers, Congress 
should act now to correct this misguided ruling.
    Thank you.
    [The statement of Ms. Aldrich follows:]

  Prepared Statement of Gail Aldrich, Member, Board of Directors, AARP

    Good Morning Chairman Andrews and Ranking Member Price: My name is 
Gail Aldrich. I am a member of the Board of Directors of AARP and I am 
pleased to testify today on behalf of AARP. Older workers have long 
been an AARP priority, and roughly half of all AARP members are 
employed either full or half-time. On behalf of AARP's members and all 
older workers, we advocate for older workers both in Congress and 
before the courts to combat age discrimination. AARP also participates 
in the Senior Community Service Employment Program (SCSEP) in which we 
match lower-income older jobseekers and employers with available 
positions. We also annually recognize ``Best Employers'' for workers 
over age 50, and partner with employers stating a commitment to welcome 
older persons into their workforce as part of an AARP ``National 
Employer Team.'' We also organize job fairs allowing employers and 
older workers to find one another.
    I want to preface my remarks by noting that before I became an AARP 
Board member, I was formerly a business executive, responsible for 
applying federal and state employment laws on a day-to-day basis. 
Specifically, I previously served as chief membership officer for the 
Society for Human Resources Management (SHRM). During my career, I also 
have been the lead human resources professional for three major 
organizations: the California State Automobile Association, Exponent, 
an engineering and scientific consulting firm, and the Electric Power 
Research Institute. As a result, I am quite familiar with the 
challenges of addressing age or other discrimination claims by 
employees.
    I want to thank you and all members of the Education and Labor 
Subcommittee on Health, Employment, Labor and Pensions for extending 
AARP this opportunity to speak on the issue of protecting older workers 
against age discrimination, and in particular, the topic of proposed 
legislation to address the U.S. Supreme Court's troubling decision last 
year in Gross v. FBL Financial Services, Inc., No. 08-441, 129 S. Ct. 
2343 (June 18, 2009). In that decision the Supreme Court, by the 
narrowest of margins, announced 5-4 that older workers challenging 
unfair treatment based on their age, under the Age Discrimination in 
Employment Act (ADEA), have lesser protection than other workers 
protected by federal law against illegal bias. Older workers, the Court 
said, have to meet a higher standard to prove discrimination than 
workers facing bias based on their sex, race or national origin. In 
effect, the Court said that Congress intended--when it passed the ADEA 
back in 1967--to place older workers in a second-class category of 
protection from unfair treatment at work. We at AARP think this 
decision is wrong, and that the court's understanding of what Congress 
meant when it enacted the ADEA is inaccurate. Unless corrected, this 
decision will have devastating consequences for older workers--workers 
who represent a growing share of the U.S. workforce and are 
increasingly critical to the nation's economic recovery.
    The Supreme Court's decision in Gross v. FBL could not have come at 
a worse time for older workers, who are experiencing a level of 
unemployment and job insecurity not seen since the late 1940s. Over the 
past 28 months (December 2007 through March 2010), finding work has 
proven elusive for millions of younger and older workers as employers 
have laid off workers and scaled back hiring due to reduced demand. 
However, older workers face another barrier--age discrimination. Age 
discrimination is difficult to quantify, since few employers are likely 
to admit that they discriminate against older workers. Available 
research does highlight, however, the extent to which younger job 
applicants are preferred over older ones, who more often fail to make 
it through the applicant screening process.\1\ Older workers themselves 
see age discrimination on the job: 60 percent of 45-74-year-old 
respondents to a pre-recession AARP survey contended that based on what 
they have seen or experienced, workers face age discrimination in the 
workplace.\2\ That percentage could well be higher if those workers 
were asked about age discrimination today. More age discrimination 
charges were filed with the Equal Employment Opportunity Commission 
(EEOC) in FY 2008 and FY 2009 than at any time since the early 1990s, 
according to the latest EEOC data.\3\
---------------------------------------------------------------------------
    \1\ M. Bendick, L. E. Brown, and K. Wall, ``No Foot in the Door: An 
Experimental Study of Employment Discrimination against Older Workers, 
Journal of Aging & Social Policy, 1999 10(4), 1999, pp. 5-23; J. Lahey, 
Age, Women, and Hiring: An Experimental Study (Chestnut Hill, MA: 
Center for Retirement Research at Boston College, 2006).
    \2\ AARP, Staying Ahead of the Curve 2007: The AARP Work and Career 
Study (Washington, DC: AARP, 2008).
    \3\ U.S. Equal Employment Opportunity Commission, April 29, 2010 at 
http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.
---------------------------------------------------------------------------
    One of the ways in which the Gross decision already has affected 
older workers is to make it impossible in some circumstances to bring 
age discrimination claims. Some courts have interpreted the Gross 
Court's language to require proof that age bias was a ``sole cause'' of 
an unfair termination, or as in Jack Gross' case, an unfair demotion. 
Thus in one recent case in Alabama, the plaintiff alleged both race and 
age discrimination. Culver v. Birmingham Bd. of Education, 2009 WL 
2568325 (N.D. Ala. August 17, 2009). Relying on Gross, the court 
ordered Mr. Culver to either abandon his age claim or his race 
discrimination claim because ``Gross h[eld] for the first time that a 
plaintiff who invokes the ADEA has the burden of proving that the fact 
that he is over 40 years old was the only * * * reason for the alleged 
adverse employment action.'' This was never the law before Gross, and 
it makes no sense now. Surely Congress meant for victims of age and 
other bias to bring claims on whatever grounds they can assemble proof 
to support a charge of discrimination. Not to choose between one of 
several grounds of illegal unfair treatment. Similarly, in a case in 
Pennsylvania, a federal court recently relied on Gross to force a 
plaintiff to choose between claims of age and sex discrimination. 
Wardlaw v. City of Philadelphia Streets Dep't, 2009 WL 2461890 (E.D. 
Pa. Aug. 11, 2009). The court cited the plaintiff's allegations that 
she was treated less favorably because she was an ``older female'' to 
conclude that her age was not the ``but-for'' cause of the 
discrimination she complained of According to this court, ``The Supreme 
Court held in Gross that a plaintiff can only prevail on an age-related 
employment discrimination claim if that is the only reason for 
discrimination.'' Once again, AARP submits this makes no sense and 
fundamentally misunderstands the ADEA. We cannot wait for these sorts 
of rulings to spread. This must end.
    Thus, AARP strongly endorses the Protecting Older Workers Against 
Discrimination Act or ``POWADA'', H.R. 3721, of which many members of 
this Committee are a sponsor. POWADA would correct the wrong turn in 
the law that the Gross decision represents. It would eliminate the 
second-class status for victims of age bias that the Court in Gross 
seemed to embrace. It would tell lower courts not to treat older 
workers who face discrimination law differently, in key respects, than 
they treat workers who face bias on grounds of race or sex under Title 
VII of the 1964 Civil Rights Act. Congress, after all, consistently has 
followed Title VII as the model for other employment discrimination 
laws, like the ADEA and the Americans with Disabilities Act.
    Let me say a few more words about the impact on older workers of 
this Court decision. It takes away a vital legal protection at the very 
time that the economy does not give older workers the luxury of 
ignoring discrimination and simply finding another job.
    The unemployment rate for persons aged 55 and over has more than 
doubled since the start of the recession, rising from 3.2 percent in 
December 2007 to 6.9 percent in March 2010. Although the unemployment 
rate for this age group has traditionally been and remains lower than 
that for younger persons, the increase in unemployment for older 
persons has been greater, thus significantly narrowing the age gap in 
unemployment.
    Once out of work, older job seekers face a prolonged and often 
discouraging job search. Newspapers and news programs have profiled 
many older jobs seekers who report sending out hundreds of resumes and 
receiving few if any responses from employers. Statistics back up the 
anecdotes of the job-seeking frustrations of older workers. Average 
duration of unemployment has soared since the start of the recession 
and is substantially higher for older job seekers than it is for their 
younger counterparts--38.4 weeks verse 31.1 weeks in March--a 
difference of nearly two months. In December 2007, average duration of 
unemployment for older persons was 20.2 weeks.
    Older workers also are more likely to be found among the long-term 
unemployed--those who have been out of work for 27 or more weeks. Just 
over half (50.6 percent) of job seekers aged 55 and over and 42 percent 
of those under age 55 could be classified as ``long-term'' unemployed 
in March. Once out of work, older persons are more likely than the 
younger unemployed to stop looking for work and drop out of the labor 
force. If they do find work, they are more likely than younger job 
finders to earn less than they did in their previous employment.
    Today, older workers are more likely than younger workers to be 
displaced. As of December 2009, 78 percent of unemployed workers aged 
55 and over were out of work because they lost their jobs or because a 
temporary job ended. This compares to 65 percent of the unemployed 
under age 55. Job loss has risen substantially for both age groups 
since the start of the recession two years earlier and far more than it 
had in the two years before December 2007. (See Table 1.)
    Hence, older workers need effective age discrimination laws when 
employers choose to displace them based on their age, due to 
stereotypes or other forms of bias, rather than their performance or 
other legitimate business reasons. And there can be no doubt that 
unfounded stereotypes about older workers linger. In cases in which 
AARP has played a role over the last decade, AARP attorneys have 
battled employer perceptions that older workers have less energy and 
are less engaged, despite AARP research data showing that on the 
contrary, older workers are more engaged in their jobs, as well as more 
reliable (i.e., less likely to engage in absenteeism). Some employers 
also still believe older workers are a poor investment and are 
disinclined to include them in training programs. Again, AARP research 
shows that older workers are more loyal to (i.e., less likely to leave) 
their current employers, and thereby may be better bets in terms of 
employer investments in training. And finally, some employers have 
outdated notions of older workers as incapable of adapting in 
industries--such as computers and information technology--requiring 
acquisition of new skills, despite Baby Boomers' enthusiastic embrace 
of virtually all forms of rapidly changing IT products and services.
    Research also shows why failing to protect older workers from 
discriminatory exclusion from employment is not only unjust but also 
counterproductive for a nation facing enormous challenges supporting a 
growing aging population. That is, there is growing evidence that older 
persons need to work and that they would benefit financially from 
working longer: millions lack pension coverage, have not saved much for 
retirement, have lost housing equity, and have seen their investment 
portfolios plummet. Many have exhausted their savings and tapped their 
IRA and 401(k) accounts while unemployed. Some workers seem to be 
opting for Social Security earlier than they might have otherwise. The 
Urban Institute (UI), for example, points to a surge in Social Security 
benefit awards at age 62 in 2009. To a large extent, this is a result 
of a sharp rise in the aged 62 population. However, the UI reports that 
the benefit take-up rate was substantially higher in 2009 than in 
recent years, which they say is likely due to an inability to find 
work.\4\ One out of four workers in the 2010 Retirement Confidence 
Survey maintains that their expected retirement age has increased in 
the past year, most commonly because of the poor economy (mentioned by 
29 percent) and a change in employment situation (mentioned by 22 
percent).\5\
---------------------------------------------------------------------------
    \4\ R. W. Johnson and C. Mommaerts, Social Security Retirement 
Benefit Awards Hit All-Time High in 2009, Fact Sheet on Retirement 
Policy (Washington, DC: Urban Institute, 2010).
    \5\ EBRI, ``The 2010 Retirement Confidence Survey: Confidence 
Stabilizing, but Preparations Continue to Erode,'' EBRI Issue Brief, 
No. 340, March 2010 at www.ebri.org/pdf/briefspdf/EBRI--IB--03-2010--
No340--RCS.pdf.
---------------------------------------------------------------------------
    Failing to allow older workers a fair chance to fight age 
discrimination is directly contrary to other federal policies 
envisioning that Americans will work longer. Public policies such as 
the 1983 Social Security amendments that increased the age of 
eligibility for full benefits and the benefits for delaying retirement, 
as well legislation in 2000 that eliminated the Social Security 
earnings test for workers above the normal retirement age, were 
designed to encourage longer work lives. Eliminating discrimination is 
critical if older persons are to push back the date of retirement.
    Working longer is good for society as earners typically pay more in 
taxes than retirees and contribute to the productive output of the 
economy. It is also good for workers, who have more years to save and 
less time in retirement to finance. And it is good for employers who 
retain skilled and experienced employees. This last advantage may be 
less clear in a deep recession; however, the economy will recover 
eventually--we hope sooner rather than later! With the impending 
retirement of the boomers, many experts predict sizable labor and 
skills shortages in many industries.
    In closing, I want to emphasize AARP's commitment to vigorous 
enforcement of the ADEA and other civil rights law as one part of a 
broad-based strategy to serve the needs and interests of older workers 
consistent with the overall public interest. We recognize that prudent 
employers, indeed we hope most employers, follow the law and respect 
the rights of older workers. But we also believe that the ADEA and 
other civil rights law must be preserved so that they act as a real 
deterrent, and if need be, a tool for redress, when employers are 
tempted to discriminate or actually violate the rights of older 
workers. Unless POWADA returns the law to the state of affairs that 
existed before the Gross decision, legal advocates will have a very 
hard time defending older workers who encounter workplace bias. And we 
also urge Congress to make sure that POWADA protects older workers from 
the expansion of the reasoning in Gross to other employment laws. For 
instance, we are aware of decisions restricting application of other 
laws important to older workers--such as the ADA and ERISA, see 
Serwatka v. Rockwell Automation, Inc.,--F.3d----, 2010 WL 137343 (7th 
Cir., January 15, 2010) (NO. 08-4010)(ADA) and Nauman v. Abbott 
Laboratories, CA 04-7199 (N.D. Ill. April 22, 2010)--based on the 
flawed logic of the narrow Supreme Court majority in Gross.
    We believe the Protecting Older Workers Against Discrimination Act 
(POWADA), H.R. 3721, is a vital and reasonable effort to restore the 
law to the state of play prior to the Gross decision. At that time, 
employers were able to manage their proof obligations in ADEA cases. 
Virtually no court in the U.S. believed age had to be the only reason 
for an employer terminating an older worker for the worker to have a 
claim under the ADEA. But now, based on Gross, some courts have been 
embracing this new and onerous interpretation. And the same view has 
been applied to other civil rights laws, to the detriment of older 
workers and other discrimination victims. This is not right. In the 
worst economic conditions in decades for older workers, Congress should 
act now to correct the misguided ruling in the Gross decision and pass 
POWADA.
    Thank you.

 TABLE 1.-PERCENT OF WORKERS GIVING JOB LOSS OR END OF TEMPORARY JOB AS THE REASON THEY WERE UNEMPLOYED, BY AGE,
                                 DECEMBER 2005, DECEMBER 2007, AND DECEMBER 2009
----------------------------------------------------------------------------------------------------------------
               Age and reason for unemployment                  December 2005    December 2007    December 2009
----------------------------------------------------------------------------------------------------------------
Aged 55+:
    Job loser/on layoff......................................            21.0             23.8             14.0
    Other job loser..........................................            33.8             36.8             55.8
    Temporary job ended......................................             8.3              8.2              8.6
                                                              --------------------------------------------------
      Total..................................................            63.1             68.8             78.4
                                                              ==================================================
Under Age 55:
    Job loser/on layoff......................................            13.7             13.2             11.0
    Other job loser..........................................            25.9             26.9             43.9
    Temporary job ended......................................            11.0             12.5              9.8
                                                              --------------------------------------------------
      Total..................................................            50.6             52.6             64.7
----------------------------------------------------------------------------------------------------------------
Source: AARP PPI calculations of data in the Current Population Survey.

                                 ______
                                 
    Chairman Andrews. Ms. Aldrich, thank you for your testimony 
and your participation this morning.
    Mr. Dreiband, welcome to the committee.

  STATEMENT OF ERIC S. DREIBAND, FORMER GENERAL COUNSEL, U.S. 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PARTNER, JONES DAY LAW 
                              FIRM

    Mr. Dreiband. Good morning, Chairman Andrews, Ranking 
Member Price, and members of the subcommittee. I thank you and 
the entire committee for affording me the privilege of 
testifying today. My name is Eric Dreiband, as you mentioned, 
Chairman Andrews, and I am a partner at the law firm of Jones 
Day here in Washington, D.C.
    I am here today at your invitation to speak about the 
proposed Protecting Older Workers Against Discrimination Act. I 
do not believe the bill would advance the public interest. In 
particular, the bill, as drafted, will do nothing to protect 
workers from age discrimination, other forms of discrimination, 
retaliation, or any other unlawful conduct. I stay this for 
three reasons.
    First, the bill incorrectly asserts that the decision by 
the Supreme Court of the United States in Gross v. FBL 
Financial Services eliminated protection for many individuals. 
The Gross decision, however, does not eliminate any protections 
for victims. Before the decision, age discrimination defendants 
could prevail, even when they improperly considered a person's 
age, if they demonstrated that they would have made the same 
decision or taken the same action for reasons unrelated to age. 
The Court's decision stripped away this so-called ``same 
action'' or ``same decision'' defense, and it, therefore, 
deprived entities that engage in age discrimination of this 
defense.
    For this reason, since the Gross decision was issued, the 
Federal courts have repeatedly ruled in favor of discrimination 
plaintiffs and against defendants. In fact, the United States 
Courts of Appeals for the First, Second, Third, Fifth, Sixth, 
Seventh, Eighth, Ninth, 10th, and 11th Circuits have relied 
upon the Gross decision to issue decisions in favor of 
plaintiffs.
    Second, the bill will restore the same action defense 
eliminated by the Gross decision. Discrimination victims may 
prove that a protected trait, such as age, was a motivating 
factor for a particular practice complained of, yet still lose 
their case. This is because the bill would deprive 
discrimination victims of any meaningful remedy in so-called 
``same action'' cases. Their lawyers may receive payment for 
fees directly attributable to the pursuit of a motivating 
factor claim, but the alleged victim will get nothing--no job, 
no money, no promotion, nothing.
    Mr. Gross, for example, will receive nothing if he proves 
upon retrial that age motivated his employer to demote him and 
his employer establishes its same action defense. He may win a 
moral victory, perhaps, but nothing else. And the bill may 
enable some lawyers to earn more money, but who does this 
benefit? The answer is lawyers, not discrimination victims, not 
unions, and not employers.
    Third, the bill is overly broad, vague, and ambiguous and 
may open up a Pandora's box of litigation. It purports to apply 
to any Federal law forbidding employment discrimination and 
several other laws, but the bill does not identify which laws 
it will amend. As a result, discrimination victims, unions, 
employers, and others will unnecessarily spend years or decades 
and untold amounts of money fighting in court about whether the 
bill changes particular laws.
    The public will have to wait years or decades until the 
matter trickles up to the Supreme Court to settle the question, 
case by case, about one law after another. In the meantime, 
litigants in courts will waste time, money, and resources 
litigating this issue with no benefit for anyone. The threat of 
decades of litigation about these issues is not merely 
hypothetical. Note in this regard that it took 38 years of 
litigation before the Supreme Court finally decided in 2005 
that the Age Discrimination in Employment Act permits claims 
for unintentional age discrimination.
    Congress can fix this vagueness problem rather easily by 
amending the bill to apply solely to the Age Discrimination in 
Employment Act, which was the only statute at issue in Mr. 
Gross's case, or, at a minimum, listing the laws that Congress 
intends to amend. The recently acted Lilly Ledbetter Fair Pay 
Act of 2009 specifically identified the laws it amended, and 
Congress can do the same here.
    Thank you, and I look forward to your questions.
    [The statement of Mr. Dreiband follows:]

  Prepared Statement of Eric S. Dreiband, Partner, Jones Day Law Firm

I. Introduction
    Good morning Chairman Andrews, Ranking Member Price, and Members of 
the Committee. I thank you and the entire Committee for affording me 
the privilege of testifying today. My name is Eric Dreiband, and I am a 
partner at the law firm Jones Day here in Washington, D.C.
    I previously served as the General Counsel of the United States 
Equal Employment Opportunity Commission (``EEOC'' or ``Commission''). 
As EEOC General Counsel, I directed the federal government's litigation 
of the federal employment discrimination laws. I also managed 
approximately 300 attorneys and a national litigation docket of 
approximately 500 cases.
    During my tenure at the EEOC, the Commission continued its 
tradition of aggressive enforcement. We obtained relief for thousands 
of discrimination victims, and the EEOC's litigation program recovered 
more money for discrimination victims than at any other time in the 
Commission's history. The Commission settled thousands of charges of 
discrimination, filed hundreds of lawsuits every year, and recovered, 
literally, hundreds of millions of dollars for discrimination victims.
    I am here today, at your invitation, to speak about the proposed 
Protecting Older Workers Against Discrimination Act, H.R. 3721. I do 
not believe that the bill would advance the public interest.
    First, the bill incorrectly asserts that the decision by the 
Supreme Court of the United States in Gross v. FBL Financial Services, 
Inc. eliminated ``protection for many individuals whom Congress 
intended to protect.'' In fact, the Gross decision will not eliminate 
protections at all. Before the Gross decision, age discrimination 
defendants could prevail, even when they improperly considered a 
person's age, if they demonstrated that they would have made the same 
decision or taken the same action for additional reasons unrelated to 
age. The Court in the Gross case eliminated this so-called ``same 
decision'' or ``same action'' defense. For this reason, since the Gross 
decision issued, the federal courts have repeatedly ruled in favor of 
age discrimination plaintiffs and against defendants.
    Second, the bill as proposed will enable age discrimination and 
other victims to prove a violation if an impermissible factor ``was a 
motivating factor for the practice complained of, even if other factors 
also motivated that practice.'' It will also restore the ``same 
action'' defense and may render the ``motivating factor'' standard 
nearly irrelevant. The proposed bill would deprive discrimination 
victims of any meaningful remedy in ``same action'' cases. Their 
lawyers may receive payment for fees ``demonstrated to be directly 
attributable only to the pursuit of'' a ``motivating factor'' claim. 
But the alleged victim will get nothing--no job, no money, no 
promotion. Mr. Gross, for example, will receive nothing if he proves 
age motivated his employer to demote him and his employer establishes 
its same action defense. His lawyer, though, will receive some money. 
As a result, if enacted in its current form, the bill may enhance 
protections for lawyers, but do nothing for individuals.
    Third, the bill is overly broad, vague, and ambiguous. It purports 
to apply to ``any Federal law forbidding employment discrimination,'' 
and several other laws, but the bill does not identify which laws the 
bill will amend. As a result, discrimination victims, unions, 
employers, and others will unnecessarily spend years or decades, and 
untold amounts of money, fighting in court over whether the bill 
changes particular laws. This will have no positive consequences for 
anyone. Congress can fix this vagueness problem rather easily by 
amending the bill to apply solely to the Age Discrimination in 
Employment Act--the only statute at issue in the Gross case--or at a 
minimum listing the laws that Congress intends it to apply.

II. Background
            A. Age Discrimination in Employment Act of 1967
    Congress enacted the Civil Rights Act of 1964 to make unlawful race 
and other forms of discrimination in employment and other areas. Title 
VII of that Act prohibits employment discrimination based on race, 
color, religion, sex and national origin.\1\ Title VII also prohibits 
discrimination against any individual who has opposed unlawful 
discrimination or made a charge, testified, assisted, or participated 
in any manner in an investigation, proceeding, or Title VII hearing.
    Title VII also created the EEOC. EEOC enforcement authority over 
Title VII is plenary, with the exception of litigation against public 
employers. EEOC also enforces several other federal employment 
discrimination laws, including the employment provisions of Americans 
with Disabilities Act, the Equal Pay Act, and the Age Discrimination in 
Employment Act (``ADEA'').
    During the debate that led to Title VII's enactment, Congress 
considered whether or not to include age as a protected class under 
Title VII. Congress determined that it did not have sufficient 
information about age discrimination to legislate on the issue.\2\ So, 
Congress directed the Secretary of Labor to study the issue and to 
report to Congress.\3\
    Then-Secretary of Labor W. Willard Wirtz studied age discrimination 
in employment, and on June 30, 1965, he issued his report to the 
Congress. The report became known as the ``Wirtz Report.'' \4\ The 
Wirtz Report found that little age discrimination arose from dislike or 
intolerance of older people, but that arbitrary age discrimination was 
then occurring in the United States. Secretary Wirtz concluded that 
there was substantial evidence of arbitrary age discrimination, which 
he defined as ``assumptions about the effect of age on [an employee's] 
ability to do a job when there is in fact no basis for these 
assumptions,'' particularly in the hiring context.\5\
    Secretary Wirtz suggested that Congress deal with the problem of 
arbitrary age discrimination by enacting a bill called ``The Age 
Discrimination in Employment Act of 1967.'' President Lyndon Johnson 
and majorities of both Houses of Congress agreed, and President Johnson 
signed the bill into law at the end of 1967.
    The ADEA prohibits employment discrimination based on age.\6\ 
Specifically, the ADEA makes it unlawful for employers, unions, and 
others to:
    (1) fail or refuse to hire or to discharge any individual or 
otherwise discriminate against any individual with respect to his 
compensation, terms, conditions, or privileges of employment, because 
of such individual's age;
    (2) limit, segregate, or classify his employees in any way which 
would deprive or tend to deprive any individual of employment 
opportunities or otherwise adversely affect his status as an employee, 
because of such individual's age; or
    (3) reduce the wage rate of any employee in order to comply with 
the ADEA.\7\
    The ADEA also contains protections against retaliation. The ADEA 
has never had any mixed motive provision.
            B. The Mixed Motive Doctrine
    There are two general ways to prove individual Title VII claims. 
The Supreme Court established the first in 1973 when it decided 
McDonnell Douglas Corporation v. Green.\8\ In that case, an African-
American employee of a manufacturing company alleged that his discharge 
and his employer's general hiring practices were racially motivated and 
violated Title VII. The Supreme Court in McDonnell Douglas clarified 
the proof structure that applies to a private, non-class action Title 
VII cases. The Court explained that a plaintiff in a Title VII case 
must first establish a ``prima facie'' case of discrimination by 
proving that:
    (i) the plaintiff is a member of a protected class;
    (ii) the plaintiff applied and was qualified for a job for which 
the employer was seeking applicants;
    (iii) despite the plaintiff's qualifications, the employer rejected 
the plaintiff; and
    (iv) after the employer rejected the plaintiff, the position 
remained open and the employer continued to seek applicants from 
persons of the plaintiff's qualifications.\9\
    If the plaintiff establishes a prima facie case of discrimination, 
the burden shifts to the defendant to articulate ``some legitimate, 
nondiscriminatory reason for the employee's rejection.'' \10\ The 
plaintiff then must be ``afforded a fair opportunity to show that [the 
employer's] stated reason for [plaintiff's] rejection was in fact 
pretext.'' \11\
    In 1989, the Supreme Court established another way for a Title VII 
plaintiff to prove a Title VII violation. In Price Waterhouse v. 
Hopkins, the Court considered the case of Ann Hopkins.\12\ Ms. Hopkins 
was a female senior manager at an accounting firm. She alleged that the 
firm denied her a promotion because of her sex. Ms. Hopkins was very 
accomplished and competent. The Company cited her lack of interpersonal 
skills and abrasiveness as the reasons for its decision not to promote 
her.\13\
    The Supreme Court in Price Waterhouse explained that a plaintiff 
may prove a Title VII violation when a challenged decision is the 
product of both permissible and impermissible considerations. When a 
Title VII plaintiff proves that an illegitimate factor such as race or 
sex plays a motivating or substantial part in the employer's decision, 
the Court decided, the burden of persuasion shifts to the defendant to 
show by a preponderance of evidence that it would have made the same 
decision even in the absence of the illegitimate factor.\14\ The Court 
also determined that to shift the burden of persuasion to the employer, 
the employee must present ``direct evidence that an illegitimate 
criterion was a substantial factor in the [employment] decision.'' \15\
    The ``same decision'' defense created by Price Waterhouse was a 
complete defense to liability. The Court explained:
    [W]hen a plaintiff in a Title VII case proves that her gender 
played a motivating part in an employment decision, the defendant may 
avoid a finding of liability only by proving by a preponderance of the 
evidence that it would have made the same decision even if it had not 
taken the plaintiff's gender into account.\16\
    Two years after the Court decided Price Waterhouse, Congress 
enacted the Civil Rights Act of 1991. As part of the 1991 Act 
amendments, Congress codified the mixed motive concept first described 
by Price Waterhouse. Congress added the following to Title VII:
    Except as otherwise provided in this subchapter, an unlawful 
employment practice is established when the complaining party 
demonstrates that race, color, religion, sex, or national origin was a 
motivating factor for any employment practice, even though other 
factors also motivated the practice.\17\
    The Civil Rights Act of 1991 modified the Price Waterhouse ``same 
action'' defense slightly, as follows:
    On a claim in which an individual proves a violation under section 
2000e-2(m) 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--
    (i) may grant declaratory relief, injunctive relief (except as 
provided in clause (ii)), and attorney's fees and costs demonstrated to 
be directly attributable only to the pursuit of a claim under section 
2000e-2(m) of this title; and
    (ii) shall not award damages or issue an order requiring any 
admission, reinstatement, hiring, promotion, or payment, described in 
subparagraph (A).\18\
    The Civil Rights Act of 1991 also amended the ADEA.\19\ It did not 
add any ``motivating factor'' claim or ``same action'' defense to the 
ADEA, nor has Congress ever done so.
    Nine years later, in 2000, the Supreme Court decided Reeves v. 
Sanderson Plumbing Products, Inc. and applied the McDonnell Douglas 
burden shifting framework to the ADEA.\20\ In Reeves, a discharged 
employee alleged that his employer unlawfully fired him because of his 
age. The Court recognized that ``Courts of Appeals * * * have employed 
some variant of the framework articulated in McDonnell Douglas to 
analyze ADEA claims that are based principally on circumstantial 
evidence.'' \21\ The Court assumed that the McDonnell Douglas framework 
applies to ADEA claims \22\ and addressed ``whether a defendant is 
entitled to judgment as a matter of law when the plaintiff's case 
consists exclusively of a prima facie case of discrimination and 
sufficient evidence for the trier of fact to disbelieve the defendant's 
legitimate, nondiscriminatory explanation for its action.'' \23\ The 
Court concluded that the employee presented sufficient evidence to show 
that the defendant violated the ADEA.\24\
            C. Gross v. FBL Financial Services, Inc.
    Jack Gross sued his employer, FBL Financial Group, Inc. for alleged 
ADEA violations. Mr. Gross alleged that his employer violated the ADEA 
when it demoted him in January 2003 because of his age.
    Mr. Gross began his employment with the Company in 1971, and he 
received several promotions over the years. By 2003, he held the 
position of claims administration director. In that year, when he was 
54 years old, the Company reassigned Mr. Gross to the position of 
claims project coordinator. At that same time, FBL transferred many of 
his job responsibilities to a newly created position--claims 
administration manager. The Company gave that position to Lisa 
Kneeskern, a former subordinate of Mr. Gross. Ms. Kneeskern was also 
younger than Mr. Gross. She was then in her early forties. Mr. Gross 
and Ms. Kneeskern received the same pay, but Mr. Gross considered the 
reassignment a demotion because FBL reallocated his former job 
responsibilities to Ms. Kneeskern.
    Mr. Gross sued FBL in 2004. Before the case went to the trial, 
counsel for both sides asked the trial judge to instruct the jury about 
the burden of proof. FBL's lawyer requested that the judge tell the 
jury the following:
    Your verdict must be for Plaintiff if both of the following 
elements have been proven by the preponderance of the evidence:
    (1) Defendant demoted Plaintiff to claims project coordinator 
effective January 1, 2003; and
    (2) Plaintiff's age was the determining factor in Defendant's 
decision.
    If either of the above elements has not been proven by the 
preponderance of the evidence, your verdict must be for Defendant.
    ``Age was a determining factor'' only if Defendant would not have 
made the employment decision concerning plaintiff but for his age; it 
does not require that age was the only reason for the decision made by 
Defendant.\25\
    Mr. Gross' attorney asked the trial judge to tell the jury the 
following:
    Your verdict must be for plaintiff on plaintiff's age 
discrimination claim if all the following elements have been proved by 
the preponderance of the evidence:
    First, defendant demoted plaintiff; and
    Second, plaintiff's age was a motivating factor in defendant's 
decision to demote plaintiff.
    However, your verdict must be for defendant if any of the above 
elements has not been proved by a preponderance of the evidence, or if 
it has been proved by the preponderance of the evidence that defendant 
would have demoted plaintiff regardless of his age. You may find age 
was a motivating factor if you find defendant's stated reasons for its 
decision are not the real reasons, but are a pretext to hide age 
discrimination.\26\
    The trial judge generally agreed with Mr. Gross' lawyer and told 
the jury the following:
    Your verdict must be for the plaintiff if all the following 
elements have been proved by a preponderance of the evidence:
    First, defendant demoted plaintiff to claims project coordinator 
effective January 1, 2003; and
    Second, plaintiff's age was a motivating factor in defendant's 
decision to demote plaintiff.
    However, your verdict must be for the defendant if any of the above 
elements has not been proved by the preponderance of the evidence, or 
if it has been proved by the preponderance of the evidence that 
defendant would have demoted plaintiff regardless of his age. You may 
find age was a motivating factor if you find defendant's stated reasons 
for its decision are not the real reasons, but are a pretext to hide 
age discrimination.\27\
    The jury found in favor of Mr. Gross and awarded him $46,945. After 
the trial, FBL asked the trial judge to overturn the jury's verdict. 
The court declined.\28\ The court applied a McDonnell Douglas analysis 
and upheld the jury's verdict. The court found that Mr. Gross had 
established a prima facie case of age discrimination, that FBL had 
presented a legitimate, nondiscriminatory reason for the change in Mr. 
Gross' responsibilities, and that the jury nonetheless could have 
reasonably found that FBL's stated reason for the demotion was not 
credible.
    FBL appealed to the United States Court of Appeals for the Eighth 
Circuit. The Eighth Circuit reversed and remanded for a new trial 
because it found that a mixed motive jury instruction was not proper. 
The court applied Price Waterhouse and held that a mixed motive jury 
instruction was improper because Mr. Gross did not present ``direct 
evidence'' of age discrimination.\29\ According to the court, the trial 
judge should have instructed the jury consistent with the McDonnell 
Douglas framework.\30\
    The Supreme Court granted certiorari and vacated and remanded the 
Eighth Circuit's opinion. The Court decided that a plaintiff who brings 
an intentional age discrimination claim must prove that age was the 
``but-for'' cause of the challenged adverse employment action.\31\ The 
Court determined that the burden of persuasion does not shift to the 
employer to show that it would have taken the action regardless of age, 
even when a plaintiff has produced some evidence that age was one 
motivating factor in that decision.\32\
    The Court identified the issue as ``whether the burden of 
persuasion ever shifts to the party defending an alleged mixed-motives 
discrimination claim brought under the ADEA.'' \33\ The Court held that 
the burden does not shift. Title VII explicitly sets forth the 
motivating factor and same action burdens, but, the Court explained, 
the ADEA says nothing about any motivating factor or same action 
defense. The Court observed that when Congress amended Title VII in 
1991 and added the motivating factor and same action provisions, it did 
not add those provisions to the ADEA, even though it made other changes 
to the ADEA.\34\
    The Court observed that the ADEA makes it `` `unlawful for an 
employer * * * to fail or refuse to hire or to discharge any individual 
or otherwise discriminate against any individual with respect to his 
compensation, terms, conditions, or privileges of employment, because 
of such individual's age.' '' \35\ The Court then applied what it said 
was the ordinary meaning of ``because of,'' and reasoned that the 
ADEA's ``because of'' standard requires a plaintiff who alleges 
intentional age discrimination to ``prove that age was the `but-for' 
cause of the employer's adverse action.'' \36\
    The Court rejected the contention that Price Waterhouse's 
``motivating factor,'' ``same decision,'' and ``direct evidence'' 
standards should govern ADEA cases. The Court observed that Price 
Waterhouse's burden-shifting framework is ``difficult to apply'' and 
that the ``problems'' associated with Price Waterhouse's ``application 
have eliminated any perceivable benefit to extending its framework to 
ADEA claims.'' \37\

III. The Protecting Older Workers Against Discrimination Act
    If enacted in its current form, the Protecting Older Workers 
Against Discrimination Act will do nothing to protect workers from age 
discrimination, other forms of discrimination, retaliation, or any 
other unlawful conduct. Individual employees who prove an unlawful 
motive will win nothing when the defendant establishes the same action 
defense. They will ``win'' a moral victory, perhaps, but nothing else. 
The bill may enable some lawyers to earn more money, but who does this 
benefit? The answer is: lawyers, not discrimination victims, not 
unions, and not employers. Furthermore, the bill will hurt victims, 
unions, employers, and others because it will force these individuals 
and entities to spend years or decades fighting in court about whether 
the bill applies to what the bill vaguely describes as various laws 
that ``forbid[] employment discrimination.'' The bill will thus help 
empty the bank accounts of plaintiffs and defendants alike, and it will 
unnecessarily consume the limited resources of the federal courts.
    Section 2--Findings and Purpose. The bill asserts that the Gross 
decision ``has narrowed the scope'' of the ADEA's protection and that 
Gross ``rel[ied] on misconceptions about the [ADEA].'' \38\ These 
assertions are incorrect. Nothing in the text or legislative history of 
the ADEA authorizes mixed-motive discrimination claims.\39\ The ADEA 
prohibits employment discrimination ``because of'' an individual's 
age.\40\ And, because Gross actually strips away the same action 
defense, Gross deprives entities that engage in age discrimination from 
a defense previously thought available.\41\
    The bill also asserts that unless Congress takes ``action,'' age 
discrimination victims 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.'' \42\ This assertion 
is also incorrect. The ``but for'' causation standard does not render 
discrimination victims helpless, nor does that standard mean that 
victims will lose their cases.
    For example, in the Gross case itself, the trial judge applied the 
McDonnell Douglas standards after the trial, overruled the defendant's 
request the court overrule the jury, and sustained the verdict.
    Moreover, since the Gross decision issued, the federal courts have 
repeatedly ruled in favor of age discrimination plaintiffs.\43\ 
Consider:
     In Hrisinko v. New York City Department of Education, 
decided two months ago, the United States Court of Appeals for the 
Second Circuit reversed the district court's grant of summary judgment 
and ruled in favor of an age discrimination plaintiff. The court noted 
that the plaintiff ``faced changes in the terms and conditions of her 
employment that rise to the level of an adverse employment action,'' 
and therefore she ``has set forth a prima facie case of age 
discrimination [under the McDonnell Douglas framework].'' \44\
     In Mora v. Jackson Memorial Foundation, Inc., also decided 
this year, the United States Court of Appeals for the Eleventh Circuit 
observed that Gross established that ``no `same decision' affirmative 
defense can exist.'' The court reversed the district court's grant of 
summary judgment in favor of the employer and instead ruled in the 
plaintiff's favor.\45\ The court concluded that ``a reasonable juror 
could accept that [the employer] made the discriminatory-sounding 
remarks and that the remarks are sufficient evidence of a 
discriminatory motive which was the `but for' cause of [the 
plaintiff's] dismissal.'' \46\
     Last year, the United States Court of Appeals for the 
First Circuit similarly reversed a district court's pro-employer 
summary judgment decision and found in favor of the plaintiff. In Velez 
v. Thermo King de Puerto Rico, Inc., the court applied the McDonnell 
Douglas framework,\47\ and noted that that ``several aspects of the 
evidence * * * are more than sufficient to support a factfinder's 
conclusion that Thermo King was motivated by age-based discrimination * 
* *. These include Thermo King's shifting explanations for its 
termination for Velez, the ambiguity of Thermo King's company policy * 
* *, and, most importantly, the fact that in response to arguably 
similar conduct by younger employees, Thermo King took no disciplinary 
action.'' \48\
     In Baker v. Silver Oak Senior Living Management Company, 
the United States Court of Appeals for the Eighth Circuit reversed the 
district court's pro-employer grant of summary judgment, cited Gross 
decision, and ruled for the plaintiff. The court concluded that ``[the 
plaintiff] * * * presented a submissible case of age discrimination for 
determination by a jury'' when she introduced evidence that senior 
executives stated that they had a ``preference for younger workers.'' 
\49\
    Several other courts, including the Third, Fifth, Sixth, Seventh, 
Ninth, and Tenth Circuits, relied upon Gross to rule in favor of 
plaintiffs.\50\
    Section 3--Standard of Proof. The Protecting Older Workers Against 
Discrimination Act would amend the ADEA to make an employment action 
unlawful if a plaintiff proves that an improper factor such as age 
motivated the employment action, even if other, legitimate factors were 
also motivators.'' \51\ But if a defendant can show that it would have 
taken the same action despite the improper factor, the plaintiff loses 
his or her right to damages, reinstatement, hiring, promotion, or 
payment.\52\ In the end, only the lawyers win; the Protecting Older 
Workers Against Discrimination Act would allow courts to award certain 
attorney's fees and costs and would do nothing to enhance the ADEA's 
protections of victims of discrimination.\53\
    Title VII cases provide sobering examples of how the mixed motive 
framework turns winning plaintiffs into losers. Like the bill, Title 
VII's mixed motive framework contains a same action defense and 
prevents victims from receiving a job, money, or anything else, other 
than money for their lawyers.\54\ The types of injunctive relief that 
plaintiffs want, such as a job or back pay, are expressly excluded.\55\ 
And, in fact, since the 1991 amendments to Title VII, mixed motive 
plaintiffs have received nominal injunctive relief, or nothing.\56\ 
Some plaintiffs ``won'' only a hollow declaration that he or she 
prevailed.\57\ To add insult to injury, former employees are unlikely 
to receive any form of meaningful relief at all, as courts have found 
that even injunctive relief is not warranted when the plaintiff is a 
former employee.\58\ And, while some courts have suggested that 
injunctive relief may be appropriate when there is widespread 
discrimination or an employer maintains a discriminatory policy, the 
courts may issue only an order to comply with the law--something the 
law already requires even if no such order issues.\59\
    Section 3--Application of Amendment. The Protecting Older Workers 
Against Discrimination Act does not identify the laws to which it 
applies. Section 3 of the bill simply states that the mixed motive 
proof structure would apply to ``any Federal law forbidding employment 
discrimination.'' \60\ This language is hopelessly overbroad, vague and 
ambiguous, and would open up a Pandora's Box of litigation dedicated to 
deciphering this section.
    For example, will the bill cover the Fair Labor Standards Act, 
which prescribes standards for the basic minimum wage and overtime pay? 
Or, will it cover only Section 15 of the Fair Labor Standards Act 
because that is the only Section of the Act that uses the word 
``discriminate?'' \61\
    Consider also the Family and Medical Leave Act. That law, known as 
the ``FMLA,'' provides eligible employees with up to twelve weeks of 
unpaid leave each year for several reasons, including for the birth and 
care of a newborn child of the employee; placement with the employee of 
a son or daughter for adoption or foster care; to care for a spouse, 
son, daughter, or parent with a serious health condition; to take 
medical leave when the employee is unable to work because of a serious 
health condition; or for qualifying exigencies that occur because the 
employee's spouse, son, daughter, or parent is on active duty or is 
called to active duty status as a member of the National Guard or 
Reserves in support of a contingency operation.\62\
    The FMLA's terms are gender neutral, and the Act protects both men 
as well as women.\63\ Is the FMLA a ``Federal law forbidding employment 
discrimination'' under the Protecting Older Workers Against 
Discrimination Act? If the bill is enacted in its current form, the 
public will have to wait years or decades until the issue trickles up 
to the Supreme Court to settle the issue. In the meantime, litigants 
and courts will waste time, money, and resources litigating this issue, 
with no benefit for anyone.
    The threat of decades of litigation about these issues is not 
merely hypothetical. Note in this regard that it took 38 years of 
litigation before the Supreme Court finally decided, in 2005, that the 
ADEA permits claims for unintentional age discrimination in certain 
circumstances.\64\ The Protecting Older Workers Against Discrimination 
Act, as currently proposed, will create litigation, confusion, and 
needless wasted resources and money because it does not precisely 
identify the laws it purports to amend. No victim of employment 
discrimination will benefit from any of this, and many will be hurt as 
will unions and employers. At a minimum, the bill should identify 
specifically the laws that it amends. The recently-enacted Lilly 
Ledbetter Fair Pay Act of 2009 specifically identified the laws it 
amended, and Congress can do the same here.\65\

IV. Conclusion
    I respectfully suggest that Congress re-examine the bill and its 
impact on Mr. Gross and other litigants. The bill will not restore any 
pre-Gross protections because Gross did not narrow the ADEA's 
protections. In fact, Mr. Gross already lost under those standards: the 
U.S. Court of Appeals for the Eighth Circuit applied the Price 
Waterhouse standard and overturned the jury's verdict in Mr. Gross' 
favor. Mr. Gross and many others will likewise gain nothing if the bill 
passes in its current form. The bill may provide greater income for 
some lawyers, but it will do so at a terrible cost. Discrimination 
victims, unions, employers, and others will become embroiled in years 
of unnecessary litigation about the bill's meaning. None of this is 
necessary, and I request that the Congress resist the urge to enact the 
bill as proposed.

                                ENDNOTES

    \1\ Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. Sec.  
2000e to 2000e-17.
    \2\ See 110 CONG. REC. 2597 (1964) (remarks of Representative 
Celler (``[Congress] do[es] not have sufficient information, concerning 
discrimination based on age, to act intelligently. I believe * * * it 
would be rather brash to rush into this situation without having 
sufficient information to legislate intelligently upon this very 
vexatious and difficult problem.'').
    \3\ See H.R. Rep. No. 88-914, pt.1, at 15 (1963) (``Sec. 718. The 
Secretary of Labor shall make a full and complete study of the factors 
which might tend to result in discrimination in employment because of 
age and of the consequences of such discrimination on the economy and 
individuals affected.'').
    \4\ Secretary of Labor, The Older American Worker: Age 
Discrimination in Employment 1 (1965).
    \5\ Id. at 2, 5 (emphasis in original). See also Smith v. City of 
Jackson, 544 U.S. 228, 254-55 (2005) (discussing Wirtz Report).
    \6\ Age Discrimination in Employment Act of 1967, 29 U.S.C. 
Sec. Sec.  621 to 634.
    \7\ Id. at Sec.  623(a).
    \8\ 411 U.S. 792 (1973).
    \9\ Id. at 802.
    \10\ Id.
    \11\ Id. at 804.
    \12\ 490 U.S. 228 (1989).
    \13\ Id. at 233-34.
    \14\ Id. at 258.
    \15\ Id. at 276 (O'Connor, J., concurring).
    \16\ Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989).
    \17\ 42 U.S.C. Sec.  2000e-2(m).
    \18\ 42 U.S.C. Sec.  2000e-5(g)(2)(A).
    \19\ See, e.g., Pub.L. 102-166, Title I, Sec.  115, Nov. 21, 1991, 
105 Stat. 1079 (eliminating tolling period).
    \20\ 530 U.S. 133 (2000).
    \21\ Id. at 141.
    \22\ Id. at 142.
    \23\ Id. at 137.
    \24\ Id. at 146-48.
    \25\ Eighth Circuit Model Jury Instruction 5.11A (applying to 
determining factor cases); Gross v. FBL Financial Services, Inc. No. 
4:04-CV-60209, 2006 WL 6151670 (S.D. Iowa June 23, 2006), Def. Proposed 
Jury Instr. No. 10, filed Oct. 30, 2005.
    \26\ Eighth Circuit Model Jury Instruction 5.11B (applying to 
motivating factor/same decision cases); Gross, 2006 WL 6151670, Pl. 
Proposed Jury Inst. p. 16, filed Oct. 25, 2005.
    \27\ Id. Final Jury Instr. No. 11.
    \28\ Id. at *1-14.
    \29\ Id. at 359-60.
    \30\ Gross v. FBL Financial Services, Inc., 526 F.3d 356 (2008).
    \31\ Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009).
    \32\ Gross, 129 S.Ct. at 2352.
    \33\ Gross, 129 S.Ct. at 2348.
    \34\ Id. at 2348-49.
    \35\ Id. at 2350-51 (quotations omitted and emphasis added).
    \36\ Id.
    \37\ Id. at 2352 (citing Tyler v. Bethlehem Steel Corp., 958 F.2d 
1176, 1179 (2d Cir. 1992) (referring to ``the murky water of shifting 
burdens in discrimination cases''); Visser v. Packer Engineering 
Associates, Inc., 924 F.2d 655, 661 (7th Cir. 1991) (en banc) (Flaum, 
J., dissenting) (``The difficulty judges have in formulating [burden-
shifting] instructions and jurors have in applying them can be seen in 
the fact that jury verdicts in ADEA cases are supplanted by judgments 
notwithstanding the verdict or reversed on appeal more frequently than 
jury verdicts generally''); and Continental T. V., Inc. v. GTE Sylvania 
Inc., 433 U.S. 36, 47, (1977) (reevaluating precedent that was subject 
to criticism and ``continuing controversy and confusion''); and Payne 
v. Tennessee, 501 U.S. 808, 839-844 (1991) (Souter, J., concurring)).
    \38\ Protecting Older Workers Against Discrimination Act, H.R. 
3721, 111th Cong. Sec.  2(a)(4)-(5) (2009).
    \39\ 29 U.S.C. Sec.  623; Gross, 129 S. Ct. at 2350-51; Secretary 
of Labor, The Older American Worker: Age Discrimination in Employment 
21-22 (1965).
    \40\ 29 U.S.C. Sec.  623(a)(1)-(2), (b), (c)(1)-(2).
    \41\ See Gross, 129 S. Ct. at 2350-51 & n.5.
    \42\ Protecting Older Workers Against Discrimination Act, S. 1756, 
111th Cong. Sec.  2(a)(6) (2009).
    \43\ Federal courts of appeal have also applied Gross in favor of 
plaintiffs alleging discrimination under other employment statutes. 
See, e.g., Serafinn v. Local 722, Int'l Bhd. Of Teamsters, 597 F.3d 
908, 914-15 (7th Cir. 2010) (Labor Management Reporting and Disclosure 
Act; citing Gross to reject defendant's challenge to jury 
instructions); Fleming v. Yuma Reg'l Med. Ctr., 587 F.3d 938, 943-44 
(9th Cir. 2009) (Rehabilitation Act; citing Gross to conclude that 
Sec.  504 covers independent contractors).
    \44\ No. 08-6071, 2010 WL 826879, at *2-*3 (2d Cir. Mar. 11, 2010).
    \45\ 597 F.3d 1201, 1202 (11th Cir. 2010).
    \46\ Id. at 1204.
    \47\ 585 F.3d 441, 447 n.2 (1st Cir. 2009).
    \48\ Id. at 449.
    \49\ 581 F.3d 684, 688 (8th Cir. 2009).
    \50\ Serafinn v. Local 722, Int'l Bhd. Of Teamsters, 597 F.3d 908 
(7th Cir. 2010); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d 
Cir. 2010); Bolmer v. Oliveria , 594 F.3d 134 (2d Cir. 2010); Fleming 
v. Yuma Reg'l Med. Ctr., 587 F.3d 938 (9th Cir. 2009); Leibowitz v. 
Cornell Uni., 584 F.3d 487 (2d Cir. 2009); EEOC v. TIN, Inc., 349 F. 
App'x 190 (9th Cir. Oct. 20, 2009); Brown v. J. Kaz, Inc., 581 F.3d 175 
(3d Cir. 2009); Thompson v. Weyerhaeuser Co., 582 F.3d 1125 (10th Cir. 
2009); Hunter v. Valley View Local Schs., 579 F.3d 688 (6th Cir. 2009). 
The following courts cited Gross and found in favor of the defendant: 
Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010); 
Reeder v. Wasatch County Sch. Dist., No. 08-4048, 2009 WL 5031335 (10th 
Cir. Dec. 23, 2009); Senske v. Sybase, Inc., 588 F.3d 501 (7th Cir. 
2009); Phillps v. Centrix Inc., 354 F. App'x 527 (2d Cir. Dec. 1, 
2009); Spencer v. UPS, 354 F. App'x 554 (2d Cir. Dec. 1, 2009); Kelly 
v. Moser, Patterson & Sheridan, LLP, 348 F. App'x 746 (3d Cir. Oct. 9, 
2009); Milby v. Greater Phila. Health Action, 339 F. App'x 190 (3d Cir. 
July 27, 2009).
    \51\ Protecting Older Workers Against Discrimination Act, H.R. 
3721, 111th Cong. Sec.  3 (2009).
    \52\ Id. Sec.  (3); cf. id. Sec.  2(b).
    \53\ Id. Sec.  (3); cf. id. Sec.  2(a).
    \54\ 42 U.S.C. Sec.  2000e-5(g)(2)(B).
    \55\ Id. Sec.  2000e-5(g)(2)(B)(ii).
    \56\ See, e.g., Coe v. N. Pipe Products, 589 F. Supp. 2d 1055, 
1097-98 (N.D. Iowa 2008) (``Thus, although the trier of fact may well 
find liability on a `mixed motives' claim, the plaintiff may ultimately 
recover nothing if the trier of fact also finds for the defense on the 
`same decision' defense. When faced with the real possibility of 
passing through the gauntlet of an employment discrimination trial, 
this court doubts that many plaintiffs would be willing to run the risk 
of prevailing on liability, but still receiving no monetary 
compensation for their efforts. This court also doubts that many 
plaintiffs would be happy to find that insult is added to injury, when 
they will receive nothing, but their lawyers will be compensated by the 
employer.'').
    \57\ See, e.g., Thibeaux v. Principi, No. 04-1609, 2008 WL 2517170, 
at *5 (W.D. La. June 20, 2008) (finding injunctive relief inappropriate 
because employee no longer reported to supervisor about whom she 
complained and did not allege any ongoing discrimination); Crosby v. 
Mobile County, No. 04-0144, 2007 WL 4125885, at *3 (S.D. Ala. Nov. 14, 
2007) (``declaratory and injunctive relief is granted only to the 
extent that the court will declare that [defendant] engaged in 
discriminatory conduct * * *''); Templet v. Hard Rock Constr. Co., No. 
02-0929, 2003 WL 22717768, at *1 (E.D. La. Nov. 17, 2003) (finding that 
plaintiff is entitled to a judgment declaring that defendant violated 
law but finding no injunctive relief appropriate).
    \58\ See, e.g., Cooper v. Ambassador Personnel, Inc., 570 F. Supp. 
2d 1355, 1359-60 (M.D. Ala. 2008) (holding that no injunctive relief is 
appropriate because plaintiff is no longer employed at the company).
    \59\ See id. at 1360 (stating that ``injunctive and declaratory 
relief might be appropriate * * * where, for example, the company 
engaged in widespread gender discrimination of the type challenged or 
had an official policy for such or where the company continued to 
engage in such gender discrimination'').
    \60\ Protecting Older Workers Against Discrimination Act, H.R. 
3721, 111th Cong. Sec.  3 (2009) (proposed to be codified at 29 U.S.C. 
Sec.  623(g)(5)(B)).
    \61\ 29 U.S.C. Sec.  215.
    \62\ 29 U.S.C. Sec.  2612(a).
    \63\ Nevada v. Hibbs, 538 U.S. 721, 737 (2003)(``By setting a 
minimum standard of family leave for all eligible employees, 
irrespective of gender, the FMLA attacks the formerly state-sanctioned 
stereotype that only women are responsible for family caregiving, 
thereby reducing employers' incentives to engage in discrimination by 
basing hiring and promotion decisions on stereotypes'').
    \64\ Smith v. City of Jackson, 544 U.S. 228 (2005).
    \65\ Pub. L. No. 111-2, Sec. Sec.  3-5, 123 Stat. 5, 5-7 (2009).
                                 ______
                                 
    Chairman Andrews. Thank you very much for your testimony. 
We appreciate it.
    Mr. Foreman, welcome.

 STATEMENT OF MICHAEL FOREMAN, CLINICAL PROFESSOR AND DIRECTOR 
OF THE CIVIL RIGHTS APPELLATE CLINIC, DICKINSON SCHOOL OF LAW, 
                     PENN STATE UNIVERSITY

    Mr. Foreman. Thank you, Chairman Andrews, Ranking Member 
Price----
    Chairman Andrews. Can you pull the microphone a bit closer 
to you there and turn it on?
    Mr. Foreman. Is that better?
    Chairman Andrews. Thank you.
    Mr. Foreman. Thank you for convening this very important 
hearing.
    I think as you mentioned in your opening statement, it 
raises a very fundamental issue, I think, before Congress. And 
I think that fundamental issue is, when Congress passes a 
statute that says it is unlawful to do something because of 
race, sex, national origin, in this case age, how much 
discrimination is the Congress willing to allow? How much 
discrimination does that type of statute tolerate?
    And I think Congress sought to answer to that question. I 
know we thought you answered that question. And the answer was 
pretty straightforward: none. These laws don't tolerate some 
level of allowable discrimination. But, unfortunately, the 
Gross decision changed all that. And the bill that you have 
before you is a balanced response to Gross, it is a fair 
response to Gross, and, indeed, it is a conservative response 
to Gross. And I can talk more about why I believe that as we 
move forward.
    Now, my colleague indicates that it will do nothing to help 
workers. And I think his comment was, it is a moral victory, 
nothing more. I think you want to ask Mr. Gross about that. 
Because, under the very standard this bill proposes, Mr. Gross 
won. He would win again, under that standard, because the jury 
found that age was a motivating factor and that the employer 
could not prove that they would have taken the same action 
anyhow; that it was, in fact, a violation of the law. And the 
jury awarded him $46,000. I don't believe he views that as just 
a moral victory. The law has teeth, it has meaning.
    Now, what did the Gross decision really do? Number one, it 
ignored interpretations of every circuit court of appeals that 
had addressed this decision since Price Waterhouse was handed 
down in 1989. It was a consistent view of all the courts that 
there was a motivating factor causation standard within the 
ADEA, but the Court ignored that. The Supreme Court ignored 
that and said, no, the age law tolerates more discrimination 
than Title VII tolerates unless you, Congress, make it very, 
very, very clear that you are not going to tolerate any type of 
discrimination like that.
    So, number one, the question is: This is for Congress to 
fix. And, in fact, Justice Thomas in his opinion says, ``This 
is Congress's issue. If you want us to protect, then you need 
to tell us explicitly.''
    Two, it has caused havoc in the courts. One, it has called 
into question the McDonnell Douglas standard that has been 
applied for literally decades, in the age case. Courts are 
struggling because of what the Supreme Court said. More 
importantly, it has called into question what is the 
appropriate standard of proof under a lot of other statutes, 
not just the ADEA. The Seventh Circuit says it applies to the 
ADA because their interpretation of Gross is, unless you, 
Congress, provide these magic words, the mixed motive type of 
analysis, then it is but for causation. And so, it applies to 
any statute that is out there. And, in fact, employers are 
arguing it applies to every statute that is out there that do 
not have these words.
    That is the reason I say that the bill is a measured 
response. It reinstates the law to what it was prior to Gross 
and makes it clear that when Congress says you shouldn't 
consider something, hey, you should not consider something; 
that is a violation of the law. It provides the employers with 
the ability to say, if I would have done that anyhow, they can 
limit their liability. So it is a measured response.
    And it does not tolerate some level of discrimination. 
Rather, it sends the message that I think you all sent since 
1991 and before that, when we pass discrimination law, we are 
not going to allow some level of discrimination or a little bit 
of discrimination, that we are here to combat all 
discrimination.
    And I am prepared to answer any questions on the bill or 
any follow-ups you may have. Thank you.
    [The statement of Mr. Foreman follows:]

  Prepared Statement of Prof. Michael Foreman, Director, Civil Rights 
Appellate Clinic, Pennsylvania State University Dickinson School of Law

    Chairman Andrews, Ranking Member Price and members of the 
Subcommittee: Thank you for convening this hearing regarding the impact 
of the Supreme Court's decision in Gross v. FBL Financial Services, 
Inc.\1\ on employees' right to work free from discrimination based upon 
age, and the legislative response to this surprising decision.
    Unfortunately the Court's decision poses a very fundamental 
question--what Congress really means when it says it is unlawful to 
discriminate because of age? Stated alternatively, what is the 
tolerable amount of discrimination Congress is willing to permit 
against older workers? I, along with many others, believe that Congress 
had already answered this question--none--but the Gross decision 
requires Congress to be more explicit as to what amount of 
discrimination it will allow.
    HR 3721 is a fair, balanced, indeed conservative attempt to return 
the law to where everyone, the courts included, thought it was. The 
bill also attempts to stem the confusion created by the decision and 
provides the explicit statement of congressional intent the Supreme 
Court in Gross demands.
    My name is Michael Foreman. I am the Director of the Civil Rights 
Appellate Clinic at the Pennsylvania State University Dickinson School 
of Law where I also teach an advanced employment discrimination course. 
I have handled employment matters through all phases of their 
processing from the administrative filing, at trial and through appeal 
and have represented both employers and employees. It is from this 
broad perspective that I provide my testimony.\2\ Much of my testimony 
is taken from my more detailed analysis of the Gross decision which 
will be appearing in in Volume 40, Issue 4, Summer 2010 of the 
University of Memphis Law Review.
    Gross undermined Congress's legislative intent and immediately 
impacted older workers, relegating them to second-class status among 
victims of discrimination. It has already been used to erode 
protections seemingly established under other antidiscrimination laws. 
The Gross majority made it explicit that it is up to Congress to 
clarify its intent in extremely precise terms when it amends employment 
discrimination statutes. Indeed the majority chastises Congress for not 
being more specific as to its intent and appears to challenge Congress 
to act.\3\
I. Gross v. FBL Financial Services: the decision
    Gross v. FBL Financial Services involved a claim that FBL engaged 
in ADEA-prohibited age discrimination. In the district court, a jury 
found that Mr. Gross's age was a motivating factor in FBL's decision to 
demote him.\4\ The district court instructed the jury to enter a 
verdict for Gross if he proved by a preponderance of the evidence that 
he was demoted and that his age was a motivating factor in the 
demotion.\5\ The district court also explained to the jury that age was 
a motivating factor if it played a part in the demotion and instructed 
the jury to return a verdict for FBL if it proved that it would have 
demoted Gross regardless of age.\6\
    On appeal, the Eighth Circuit reversed and remanded, holding that 
the district court's mixed-motive jury instruction was flawed because 
the appropriate legal analysis was the standard established in Price 
Waterhouse v. Hopkins,7 which shifts the burden of persuasion to the 
employer only if the plaintiff presents ``direct evidence'' of age 
discrimination.\8\ Gross petitioned for certiorari on this narrow issue 
of whether direct evidence was required in age cases.\9\ In a 
surprising 5-4 decision, the Supreme Court held that a mixed-motive 
jury instruction is never proper under the ADEA because the ADEA's 
prohibition against discrimination ``because of'' an individual's age 
requires plaintiffs to prove that age was the ``but-for'' cause of the 
employer's decision.\10\
    The Supreme Court stated that a plaintiff bringing a disparate-
treatment claim pursuant to the ADEA must prove, by a preponderance of 
the evidence, that age was the ``but-for'' cause of the challenged 
employment action.\11\ According to the Court, the burden of persuasion 
does not shift to the employer to show that it would have taken the 
action regardless of age, even when a plaintiff has produced evidence 
that age was one motivating factor in the decision.\12\
    The majority believed the language of the ADEA is clear. In their 
view, the plain meaning of the ADEA's requirement that an employer's 
adverse action was ``because of'' age means that age was ``the reason'' 
the employer decided to act.\13\ In other words, the burden of 
persuasion necessary to establish employer liability is the same in 
mixed-motives cases as in any other ADEA disparate-treatment action: 
the plaintiff must prove by a preponderance of the evidence, either 
direct or circumstantial, that age was the ``but-for'' cause of the 
challenged employer decision.\14\ The Court concluded that because it 
held that ADEA plaintiffs retain the burden of persuasion to prove all 
disparate-treatment claims, it did not have to address whether 
plaintiffs must present direct evidence to obtain a burden-shifting 
instruction.\15\

            A. The Gross Majority Decided An Issue Not Presented To The 
                    Court
    Neither the parties to Gross nor the interested amici curiae were 
given notice the Court would be considering whether a mixed-motive 
instruction was available under the ADEA.\16\ The issue presented and 
on which the Supreme Court granted certiorari was whether, under the 
ADEA, a plaintiff is required to present ``direct evidence'' of age 
discrimination to obtain a mixed-motive jury instruction.\17\ Parties 
on both sides proceeded with the understanding that the Price 
Waterhouse motivating-factor type of analysis was applicable to ADEA 
claims until FBL filed its brief at the Supreme Court questioning the 
utility of Price-Waterhouse.\18\ The majority, rather than determining 
whether a Price-Waterhouse-type of mixed motive analysis applied, 
determined that it must reach a much more fundamental issue--whether 
any type of mixed-motive analysis applies to ADEA claims.\19\
    At oral argument, the Office of the Solicitor General pleaded with 
the Court not to take up an issue that was not briefed by the parties 
or the United States.\20\ The five-member Gross majority decision 
prompted the four justices in dissent to note that the majority was 
unconcerned that the ``question it chooses to answer has not been 
briefed by the parties or interested amici curiae,'' and that the 
majority's ``failure to consider the views of the United States, which 
represents the agency charged with administering the ADEA [was] 
especially irresponsible.''21 Ultimately, the Court avoided the issue 
on which it granted certiorari and held that the ADEA does not 
authorize a mixed-motive discrimination claim.

            B. The Gross Majority Ignored Precedent That Had 
                    Interpreted Similar Language To Allow Mixed-Motive 
                    Liability
    The Gross decision stands in stark contrast to the Court's 
precedent and a body of uniform circuit court decisions. In Price 
Waterhouse, the Court examined Title VII and determined that the words 
``because of'' prohibit adverse employment actions motivated, in whole 
or in part, by prohibited considerations.\22\ Considering the 
relationship between Title VII and the ADEA, circuit courts 
consistently adopted the Price Waterhouse standard in the context of 
ADEA claims for nearly twenty years without issue.\23\
    For example, in Febres v. Challenger Caribbean Corp., the United 
States Court of Appeals for the First Circuit applied the Price 
Waterhouse standard to an ADEA claim.\24\ The First Circuit explained 
that in a mixed-motive case the burden of persuasion does not shift 
merely because the plaintiff introduces sufficient direct evidence to 
permit a finding that a discriminatory motive was at work.\25\ The 
burden shifts only if the direct evidence actually persuades the jury 
that a discriminatory motive was at work.\26\ In sum, ``the burden of 
persuasion does not shift unless and until the jury accepts the 'direct 
evidence' adduced by the plaintiff and draws the inference that the 
employer used an impermissible criterion in reaching the disputed 
employment decision.''27 In Gross, however, the Court determined that 
``because of'' means something different for victims of age 
discrimination.\28\
    The relevant language of Title VII and the ADEA use identical 
``because of'' terminology, and ``[the Court has] long recognized that 
[its] interpretations of Title VII's language apply 'with equal force 
in the context of age discrimination, for the substantive provisions of 
the ADEA were derived in haec verba from Title VII.' '' \29\ The 
majority appeared unconcerned by Congress' use of identical language 
and instead focused on what Congress did not explicitly do when it 
enacted the Civil Rights Act of 1991.\30\ The ADEA's text does not 
specifically reference a mixed motive type of claim as Title VII does 
as amended in 1991.\31\ The majority found it significant that Congress 
did not add this specific language to the ADEA when it amended Title 
VII, even though it contemporaneously amended the ADEA in several 
ways.\32\ However, the Gross majority never explained why identical 
``because of'' language in the two statutes should have different 
meanings.
    Rather than justifying its departure from Price Waterhouse, the 
majority merely characterized its holding as a decision not to extend 
Price Waterhouse to the ADEA.\33\ The Court reasoned that it would not 
ignore Congress' decision to amend Title VII's relevant provisions but 
not to make similar changes to the ADEA.\34\ According to the Court, 
when Congress amends one statutory provision but not another, it is 
presumed to have acted intentionally.\35\ Again, the Court was 
unconcerned that its interpretation was in direct conflict with the 
understanding that the Courts of Appeals have unanimously accepted 
since 1991.\36\

            C. Gross Undermines Congressional Intent To Eliminate 
                    Discrimination In The Workplace
    The increased burden Gross imposes upon older workers contravenes 
the clear intent of Congress to prohibit age discrimination in the 
workplace. Just a few years after Price Waterhouse, Congress passed the 
1991 amendments to Title VII to codify the Court's ``motivating 
factor'' test and to clarify that a same-decision defense went only to 
damages--not liability.\37\ This amendment reflected Congress' 
continued commitment to eradicating discrimination in employment.\38\ 
Rather than recognizing this express congressional approval of mixed-
motive liability, the Gross majority misconstrues the amendment by 
inferring congressional intent to exclude mixed-motive claims from 
employment discrimination statutes it did not simultaneously amend.\39\ 
Such an inference appears misplaced when the Court is interpreting 
amendments designed to counteract ``Supreme Court decisions that 
sharply cut back on the scope and effectiveness of [civil rights] 
laws.''40
    The Courts of Appeals had universally recognized Congress' express 
approval of the motivating factor test, and, therefore, consistently 
applied that test in ADEA claims for nearly twenty years.\41\ But now, 
having determined that Congress did not intend these consistent 
interpretations, the five Justices have sent a clear message that if 
Congress wants to eliminate the consideration of age in employment 
decisions, it must explicitly say so.

II. The fundamental lessons of the Gross decision
            A. If Congress Wants To Provide Protections Against 
                    Discrimination, Congress Must Be Clear--Very Very 
                    Clear
    The prohibitions against age discrimination in the workplace have 
never been viewed as providing less protection for older workers, or 
stated alternatively, as allowing more discrimination against older 
workers than the protections under Title VII of the Civil Rights Act of 
1964. Yet this is effectively Gross's outcome. The majority's decision 
has made it significantly more difficult to bring an age discrimination 
claim and requires employees who are victims of age discrimination to 
meet a higher burden of proof than someone alleging discrimination 
based upon race, color, religion, sex, or national origin under Title 
VII.
    In Gross the Court concluded that even though age was a 
``motivating'' factor for the adverse employment action, as the jury 
determined in Mr. Gross's case, this is not enough to prove a violation 
of the ADEA.\42\ Congress has never said or implied that age 
discrimination is any less pernicious than discrimination against Title 
VII-protected groups, or that age discrimination should be harder to 
prove. Congress has been unequivocal about its desire to eliminate all 
discrimination in the workplace--including age discrimination.\43\ 
Likewise, Congress modeled the ADEA on Title VII.\44\
    The majority based its holding on the notion that the prohibitions 
against discrimination in the ADEA and Title VII need not be treated 
consistently unless Congress states this explicitly.\45\ Because of 
identical language in both statutes, the majority requires an employee 
claiming age discrimination to prove more: they must now prove ``but-
for'' causation. This standard was rejected by the Court in Price 
Waterhouse v. Hopkins,\46\ as well as by Congress in the 1991 
Amendments to the Civil Rights Act.

            B. Gross Increases The Burden Of Proof For Older Employees
    The impact of Gross--that older workers attempting to prove 
unlawful discrimination have a much higher burden--was immediately 
recognized:
     ``The 'but-for' causation standard * * * makes it much 
more difficult for plaintiffs to prevail in age discrimination cases * 
* *. [I]t is not enough to show that age may have influenced the 
employer's decision.'' ``[A] significant victory for employers.'' \47\
     ``Supreme Court Majority Makes It Harder for Plaintiffs to 
Prove Age Discrimination Under the ADEA'' \48\
     Without the ``traditional 'mixed motive analysis,' * * * 
[plaintiffs'] job in court [will be] much more difficult.'' \49\
     A ``sea change in current law [which] might even indicate 
a seismic shift in the Supreme Court's interpretation of statutes that 
deal with employment.'' \50\
     ``* * * It's becoming increasingly difficult for workers 
to prove their claims. * * * Gross found that older workers bringing 
age discrimination claims must meet a higher standard to prove their 
claims than others who have been subject to unfair discrimination at 
work.'' \51\
    This was not simply a ``sky is falling'' reaction by the media. 
Courts immediately understood Gross's importance, and that it 
significantly changed the rules of the game for those attempting to 
prove age discrimination:
     ``In the wake of [Gross] it's not enough to show that age 
was a motivating factor. The Plaintiff must prove that, but for his 
age, the adverse action would not have occurred.'' \52\
     ``The 'burden of persuasion does not shift to the employer 
to show that they would have taken the action regardless of age, even 
when a plaintiff has produced some evidence that age was one motivating 
factor in that decision.' '' \53\
     ``[T]his Court interprets Gross as elevating the quantum 
of causation required under the ADEA. After Gross, it is no longer 
sufficient for Plaintiff to show that age was a motivating factor in 
Defendant's decision to terminate him.'' \54\
     The burden of persuasion does not shift to the employer 
``even when plaintiff has produced some evidence that age was one 
motivating factor in that decision.'' \55\
     Pursuant to the Supreme Court's recent decision in Gross 
v. FBL Financial Services, Inc., a claimant bringing suit under the 
ADEA must demonstrate that age was not just a motivating factor behind 
the adverse action, but rather the 'but-for' cause of it. Title VII, on 
the other hand, does authorize a 'mixed motive' discrimination 
claim.\56\
     ``Before the Supreme Court's decision in Gross, 'the 
employee could prevail if the evidence, viewed in the light most 
favorable to the plaintiff, would permit a jury to find that her 
dismissal was motivated at least in part by age discrimination.' Gross 
changed 'the latter part of this formulation by eliminating the mixed-
motive analysis that circuit courts had brought into the ADEA from 
Title VII cases.' '' \57\
    Under the increased burdens imposed by the ``but for'' standard, 
courts are already dismissing age claims for failure of proof based 
upon Gross.\58\

            C. This ``But-For'' Causation Standard Imposes An Onerous 
                    Burden On Victims of Age
    The Court's ``but-for'' causation requirement places a significant 
hardship on victims of age discrimination and permits consideration of 
age under a statute that Congress intended to eradicate age 
discrimination in employment. Employees face a heavy burden at trial 
because showing the employer improperly considered age in the 
employment decision is no longer a sufficient basis to establish 
liability.\59\ A jury determination that age is not only a factor, but 
the motivating factor for an adverse employment action, as the jury 
found in Mr. Gross's case, is no longer sufficient to prove an ADEA 
violation.\60\
    But-for causation may largely nullify the ADEA, limiting relief to 
only the most extreme cases of discrimination. Most employment actions 
have several causes; this is especially true when adverse employment 
actions occur in a down economy. Proving that one of several factors in 
the employer's decision was the ``but-for'' cause of the decision is 
particularly difficult, particularly where evidence of the employer's 
intent is usually within the sole control of the employer. Employers 
who improperly consider age may now escape liability if they are able 
to point to additional factors they considered when making the 
decision. Moreover, employers can easily create some rationale for the 
adverse action, and employees will have little chance of showing that 
bias, not the employer-asserted rationale, was the ``but-for'' cause.

III. Gross is creating a confusion and unsettling impact in the courts
    Gross was a substantial departure from prior judicial 
interpretations of the ADEA, and its effects have already impacted ADEA 
litigation in the lower courts. Moreover, the decision's effects extend 
well beyond the ADEA, as it has created uncertainty and eroded the 
protections of similar antidiscrimination legislation.

            A. Gross Raised Uncertainties About The Continued Use Of 
                    The McDonnell Douglas Evidentiary Framework In 
                    Summary Judgment
    The Gross decision created confusion in the lower courts regarding 
the plaintiff's burden at the summary judgment stage of litigation. 
While the Gross Court determined the burden of persuasion never shifts 
to the employer in ADEA cases, the majority left open the question of 
whether the evidentiary framework of McDonnell Douglas v. Green \61\ is 
appropriate under the ADEA.\62\ This framework addresses the burden of 
production in Title VII cases, and courts have consistently adopted it 
in the ADEA and other antidiscrimination statutes.\63\ In the wake of 
Gross, however, lower courts feel compelled to reexamine this settled 
precedent.
    Long before Price Waterhouse and the 1991 amendments to Title VII, 
the Supreme Court recognized the challenges employees face in proving 
discriminatory animus on the part of their employer. In 1973, the Court 
established an evidentiary framework to help sort through the difficult 
task of determining discriminatory intent in employment cases in 
McDonnell Douglas.\64\ Under this framework, once a plaintiff 
establishes a prima facie case of age discrimination, the burden of 
production shifts to the defendant to articulate a legitimate, 
nondiscriminatory reason for the adverse action.\65\ If the defendant 
articulates a legitimate reason, the McDonnell Douglas presumption 
falls away, and the burden of production shifts back to the plaintiff 
to demonstrate the defendant's proffered reason was a pretext to mask 
unlawful discrimination.\66\
    Though the ultimate burden still lies with the plaintiff, the 
McDonnell Douglas framework assists plaintiffs by forcing the employer 
to articulate a nondiscriminatory reason for the action, so the 
plaintiff can disprove the proffered reason or prove it is only a 
pretext for discrimination.\67\ Courts have applied this standard in 
thousands of ADEA cases.\68\ Indeed, several of the Supreme Court's 
seminal employment discrimination cases, such as Kentucky Retirement 
Systems v. EEOC, discuss the McDonnell Douglas standard in claims of 
age discrimination.\69\
    Interestingly enough, the Supreme Court, within the Gross opinion, 
makes the observation that it has never formally held that the 
McDonnell Douglas standard applies in the context of the ADEA.\70\ So 
the Supreme Court raises another issue not presented by the parties, 
specifically, whether the McDonnell Douglas framework applies in ADEA 
cases. However, the Supreme Court opts not to answer the question of 
whether the framework applies to ADEA cases. By raising the issue but 
not answering it, the Court added no clarity to the law and only 
created more confusion.
    To add to the confusion caused by the Supreme Court after Gross, 
lower courts have questioned the continuing viability of McDonnell 
Douglas or have felt compelled to reflect on, or alter the framework to 
reflect, Gross's ultimate causation standard. In Smith v. City of 
Allentown,\71\ the Third Circuit observed that ``although Gross 
expressed significant doubt about any burden-shifting under the ADEA, 
we conclude that the but-for causation standard required by Gross does 
not conflict with our continued application of the McDonnell Douglas 
paradigm in age discrimination cases.'' \72\ The Smith court continued 
to explain:
    Gross stands for the proposition that it is improper to shift the 
burden of persuasion to the defendant in an age discrimination case. 
The McDonnell Douglas standard, however, imposes no shift in the burden 
of persuasion but instead on the burden of production. Throughout the 
shifts, the burden of persuasion remains on the employee. Therefore, 
Gross, which prohibits shifting the burden of persuasion to an ADEA 
defendant, does not forbid our adherence to precedent applying 
McDonnell Douglas to age discrimination claims.\73\
    Other circuit decisions are in accord with the Third Circuit, 
including the Second Circuit in Leibowitz v. Cornell University \74\ 
and Hrisinko v. New York City Department of Education,\75\ the Sixth 
Circuit in Geiger v. Tower Automotive,\76\ and the Seventh Circuit in 
Martino v. MCI Communications Services, Inc.\77\ While these courts 
continue to apply the McDonnell Douglas framework, the majority's 
unanswered observation in Gross is, at a minimum, causing the parties 
and the courts to reexamine this application.\78\

            B. The Gross Ruling Is Impacting The Burdens Of Proof Under 
                    Other Laws Prohibiting Discrimination In Employment
    Hundreds of federal, state, and local laws prohibit discrimination 
in employment. Many use language identical or similar to the ``because 
of'' standard codified in Title VII and the ADEA. Courts have 
interpreted language in antidiscrimination statutes consistently, 
recognizing that Congress understood judicial statutory interpretations 
when it chose to model one statute after the other.\79\ Under Gross, 
however, courts are cautioned, and in some cases believe they are 
obligated, to reconsider the propriety of applying rules applicable 
under one statute to a different statute.\80\ The result will be 
confusion and increased litigation over the burdens of proof under all 
of these statutes.\81\
    The Gross majority reasoned its conclusion through a negative 
legislative inference: Congress must not have intended the Price 
Waterhouse standard to apply under the ADEA because Congress failed to 
amend the ADEA when it amended Title VII to expressly codify the Price 
Waterhouse motivating-factor standard.\82\ This reasoning ignores a 
significant line of cases holding that courts should consistently 
interpret and apply the language of both statutes with equal force.\83\ 
Moreover, Gross opens the door for courts to impose the same elevated 
standard under any antidiscrimination statute that was not similarly 
amended, even where the statute was clearly modeled after Title VII. 
This method of statutory construction cripples congressional functions 
because it implies that anytime Congress acts to codify existing case 
law, which had previously been interpreted as applying to other similar 
statutes, Congress's action has no impact on these other comparable 
statutes unless they were simultaneously amended--even if these other 
statutes were modeled on the amended statute and interpreted in a 
manner consistent with the amended statute. This rationale places an 
unreasonable burden on Congress to identify every statute potentially 
affected by legislation.
    At least one Court of Appeals has embraced this expansive 
application of Gross. The Seventh Circuit has held that, ``After Gross, 
plaintiffs in federal suits must demonstrate but-for causation unless a 
statute (such as the Civil Rights Act of 1991) provides otherwise.'' 
\84\ Applying this standard, the Seventh Circuit overruled precedent 
expressly adopting the motivating factor standard in prior cases and 
extended the ``but-for'' causation requirement to cases where the 
statutes included did not have the precise motivating factor language 
used in the Civil Rights Acts of 1991.\85\ Such a broad application of 
Gross leaves virtually all federal antidiscrimination and 
antiretaliation legislation open to new interpretation, despite the 
precedent and cannons of construction upon which Congress, plaintiffs, 
and employers have rightfully relied.
    Considering the indisputable connections between the various state 
and federal antidiscrimination statutes, the Gross holding has prompted 
the lower courts to revisit the causation standards of many 
antidiscrimination laws. In a recent Fifth Circuit case filed under the 
ADA and the Family Medical Leave Act, Crouch v. J C Penney Corp., 
Inc.,\86\ the court cautioned that ``the Supreme Court's recent opinion 
in Gross v. FBL Financial Services, Inc. raises the question of whether 
mixed-motive framework is available to plaintiffs alleging 
discrimination outside the Title VII framework.'' \87\
    Later, in Smith v. Xerox,\88\ the Fifth Circuit refused to extend 
Gross to retaliation claims under Title VII. Despite noting that while 
the considerations present in the retaliation analysis are ``similar to 
the Supreme Court's reasoning in Gross,'' \89\ the majority believed 
such a simplified explanation of Gross was incorrect.\90\ The dissent, 
however, relying on Seventh Circuit case law and its view of the Gross 
holding, argued that the courts must apply Gross to Title VII 
retaliation claims and chastised the majority's arguments as a 
``meaningless distinction indeed.'' \91\
    As discussed, the Seventh Circuit did not avoid the issue of how 
the Gross analysis impacts causation standards under other 
antidiscrimination laws. In Serwatka v. Rockwell Automation Inc.,\92\ 
the court examined the pre-amended language of the ADA, which 
prohibited discrimination ``because of'' an individual's disability or 
perceived disability.\93\ The court determined that ``the importance 
Gross attached to the express incorporation of mixed-motive in Title 
VII suggests that when another antidiscrimination statute lacks 
comparable language, mixed-motive claims will not be viable.'' \94\
    Although provisions of the ADA specifically incorporate Title VII's 
mixed-motive remedies, the Seventh Circuit was unconvinced and refused 
to recognize the motivating-factor test absent express language in the 
statute or explicit reference to Title VII's motivating-factor 
standard.\95\ Decisions such as this indicate that, at least in the 
Seventh Circuit, any plaintiff whose discrimination claim falls outside 
the Title VII protected classes must prove ``but-for'' causation in 
every case.
    To date, district courts have applied Gross to require but-for 
causation under state antidiscrimination statues,\96\ eliminated the 
mixed-motive theory under the Juror Protection Act,\97\ and solidified 
a decision to require but-for causation under the anti-retaliation 
provision of Title VII.\98\ For decades there has been an accepted 
standard for how plaintiffs prove discrimination under employment 
discrimination laws and recognition that comparable statutes involve 
comparable burdens and methods of proof. Gross has now opened the door 
for increased litigation over the appropriate burden and methods of 
proof under all the statutes prohibiting discrimination in employment, 
even if they were expressly modeled after Title VII. Title VII makes it 
clear after the 1991 amendments that these discrimination laws were 
intended to protect workers from adverse actions motivated, in whole or 
in part, by improper considerations. Under the Gross decision, every 
statute must be examined anew to determine just how much discrimination 
that statute will permit. Gross's ramifications extend far beyond the 
ADEA, and this decision is having an immediate and detrimental effect 
on plaintiffs bringing non-age-based employment discrimination claims. 
Unless Congress acts to specifically express its intent, the courts 
will continue to narrowly construe the ADEA and similar statutes in a 
way that enables workplace discrimination by increasing the costs of 
litigation and placing insurmountable burdens upon plaintiffs.

            C. Some Courts Are Even Reading Gross As Requiring Age To 
                    Be The Sole Cause, Leading To Nonsensical Results 
                    And Practical Pleading Confusion
    Though they face a difficult obstacle at trial, plaintiffs who 
defeat summary judgment obviously fare better than many plaintiffs who 
will be unable to bring their claims to trial. A number of lower 
courts, interpreting Gross, now require proof that age was the sole 
cause of an employer's decision, and have dismissed plaintiff's ADEA 
claims who plead additional discriminatory causes for an employer's 
adverse action.\99\ In these districts, plaintiffs are confronted with 
impractical difficulties initiating an ADEA claim, as the mere pleading 
of another discriminatory basis risks automatic dismissal of the age 
claim.
    For example, in Culver v. Birmingham Board of Education, the 
plaintiff brought both Title VII and ADEA claims.\100\ The court 
dismissed the ADEA claim, finding that Gross holds for the first time 
that a plaintiff who invokes the ADEA has the burden of proving that * 
* * [age] * * * was the only or the but-for reason for the alleged 
adverse employment action. The only logical inference to be drawn from 
Gross is that an employee cannot claim that age is a motive for the 
employer's adverse conduct and simultaneously claim that there was any 
other proscribed motive involved.\101\
    In other words, some courts do not allow an ADEA plaintiff to plead 
duel claims; to do so would admit that another motive was at play, 
which, under this court's interpretation of Gross, would foreclose the 
age claim.
    Decisions like these are a harsh reality for older workers who, 
prior to Gross, had the opportunity to show age was a consideration in 
the employment decision. While raising the bar for older workers, Gross 
lowers employers' standards of behavior by sending a message that age 
may be a factor in employment decisions, so long as it is not the 
determining factor. Moreover, as most courts continue to apply the 
McDonnell Douglas burden-shifting standard, the Gross decision has 
failed to clear the murky waters of burden-shifting in ADEA cases.\102\ 
Gross has the true effect of circumventing Congress' intent to 
eliminate age as a factor in employment decisions by increasing the 
burden on older employees, creating confusion in the lower courts, and 
increasing litigation costs.

IV. HR 3721: Protecting Older Workers Against Discrimination Act
    Congress was unequivocal about its desire to eliminate all 
discrimination in the workplace--including age discrimination.\103\ 
Likewise, Congress modeled the ADEA on Title VII of the Civil Rights 
Act,\104\ and the courts have long recognized the fundamental 
relationship that exists between the statutes. Yet, the Gross decision 
sent a message to Congress that if it wants the Supreme Court to 
provide protections against discrimination, it must be specific. 
Congress must act to ensure the ADEA is not stripped of all its 
intended power and protect older employees' fundamental right to 
nondiscriminatory treatment. Presently, the Protecting Older Workers 
Against Discrimination Act has been proposed to restore the intended 
protections of the ADEA.\105\
    The preceding discussion highlights in detail the issues with the 
Gross decision. HR: 3721 is a balanced response to it by returning the 
law to the status quo. It also eliminates the confusion created by 
Gross. Indeed, some say it does not go far enough because it still 
allows employers who have considered age to limit their damages if they 
can show they would have taken the same action anyhow.
    The Protecting Older Workers Against Discrimination Act overrules 
Gross and expressly addresses issues the Gross Court ignored or 
misinterpreted. The amendment largely mirrors the 1991 amendments to 
Title VII, which codified the Price Waterhouse motivating-factor theory 
and transformed its ``same decision'' affirmative defense into a 
limitation on remedies. In its current form, the amendment:
     Restores the motivating factor test to ADEA claims by 
specifying that a plaintiff establishes an unlawful employment practice 
by demonstrating either age was ``a motivating factor for the practice 
complained of, even if other factors also motivated that practice, or 
the questionable practice would not have occurred in the absence of an 
impermissible factor.'' \106\
     Clearly establishes the motivating factor standard as the 
congressionally intended standard in all federal discrimination 
statutes absent an explicit statement adopting another proof 
standard.\107\
     Adopts Title VII's same-decision limitation on 
remedies.\108\ This allows juries to find employers liable for 
considering a protected characteristic while limiting the available 
remedies when the employer can show that it would have taken the 
adverse action even without considering the characteristic.
     Expressly preserves the evidentiary framework set forth in 
McDonnell Douglas.\109\
     Answers the issue actually presented in Gross by 
clarifying that a plaintiff may demonstrate mixed-motive liability by 
relying on ``any type or form of admissible circumstantial or direct 
evidence.'' \110\
     Preserves and/or restores the mixed-motive test in any 
Federal law forbidding employment discrimination; any law forbidding 
retaliation against an individual for engaging in federally protected 
activity; and any provision of the Constitution that protects against 
discrimination or retaliation.\111\
    Essentially, this amendment restores the protections afforded under 
the ADEA prior to the Gross decision and ensures courts will interpret 
similar statutes accordingly. Employers will no longer be able to 
defeat the victim's discrimination claims with a mere showing that some 
other reason was a factor in their decision. The statute makes it clear 
that there is no tolerable level of discrimination in employment.
    Gross runs contrary to our national commitment to equality. Thus, 
Congress should take positive steps to ensure that our civil rights and 
employment laws protect all American workers. At the very least, 
Congress must stem the ``Gross'' implication that congressional action 
to strengthen one statute may be deemed to weaken other statutes 
dealing with similar issues but not simultaneously amended. This was 
clearly not the intent of Congress in 1991 when it amended Title VII to 
reflect its approval of Price Waterhouse's ``because of'' 
interpretation. And just as Congress, in response to Supreme Court 
decisions, acted in 1991 to reaffirm its intention ``to prohibit all 
invidious consideration of sex, race, color, religion, or national 
origin in employment decisions,'' \112\ Congress must now act to 
restore those protections for our older workers.
    The Gross decision has detrimentally affected plaintiffs' ability 
to access the courts and to obtain relief for employment 
discrimination. If Congress wishes to secure the rights it thought it 
guaranteed in the civil rights laws, it must act to clarify that 
intent.\113\ As the Supreme Court has said, ``It is for the Congress, 
not the courts, to consult political forces and then decide how best to 
resolve conflicts in the course of writing the objective embodiments of 
law we know as statutes.'' \114\ As Justice Ginsburg noted in Ledbetter 
v. Goodyear Tire & Rubber Co.,\115\ ``Once again, the ball is in 
Congress' court.'' \116\.

                                ENDNOTES

    \1\ 129 S. Ct. 2343 (2009).
    \2\ A copy of my biography is attached.
    \3\ Referring to a broader interpretation of the ADEA, the Gross 
majority said, ``[T]hat is a decision for Congress to make.'' Gross, 
129 S. Ct. at 2349 n.3. The five justices in the majority hung their 
hat on what they deemed was Congress's failure to act.
    \4\ Id. at 2347.
    \5\ Id.
    \6\ Gross at 2344-2345.
    \7\ 490 U.S. 228 (1989).
    \8\ Id.
    \9\ Gross at 2346.
    \10\ Id. at 2351.
    \11\ Id. at 2344.
    \12\ Id. at 2352.
    \13\ Gross at 2350.
    \14\ Id. at 2351.
    \15\ Id. at 2351, n.3.
    \16\ Id. at 2353 (Stevens, J. dissenting).
    \17\ Gross at 2346.
    \18\ Id. at 2348, 2353.
    \19\ Id. at 2350.
    \20\ Gross Tr. of Oral Arg. 20--21, 28--29.
    \21\ Id. at 2353 (Stevens, J., dissenting).
    \22\ See Price Waterhouse v. Hopkins, 490 U.S. 228, 244-247 
(1989)(plurality opinion)(concluding that the words ``because of'' such 
individual's [protected classification] mean that [the protected 
classification] must be irrelevant to employment decisions).
    \23\ ``* * * the Courts of Appeals to have considered the issue 
unanimously have applied Price Waterhouse to ADEA claims.'' Gross at 
2354-55, n.5 (Stevens, J., dissenting)(citing numerous circuit court 
opinions applying Price Waterhouse to ADEA claims.).
    \24\ 214 F.3d 57 (1st Cir. 2000).
    \25\ Febres at 64.
    \26\ Id.
    \27\ Id.
    \28\ ``Under [the ADEA], the plaintiff retains the burden of 
persuasion to establish that age was the ``but-for'' cause of the 
employer's adverse action.'' Gross at 2351.
    \29\ Gross at 2354 (Stevens, J. dissenting).
    \30\ Id. at 2349.
    \31\ See 42 USC Sec. Sec. 2000e-2(m), 2000e-5(g)(2)(B).
    \32\ Gross at 2350-51.
    \33\ ``This Court has never held that the burden-shifting framework 
[of Title VII] applies to ADEA claims. And we decline to do so now.'' 
Gross at 2349.
    \34\ Id. at 2349.
    \35\ Id.
    \36\ See n.23 supra.
    \37\ See 42 USC Sec. Sec. 2000e-2(m), 2000e-5(g)(2)(B).
    \38\ In addition to the logical conclusion that Congressional 
codification of the motivating-factor test evinced Congressional 
approval of the test, Justice Stevens pointed out in his dissent that 
``There is, however, some evidence that Congress intended the 1991 
mixed-motives amendments to apply to the ADEA as well. See H. R. Rep., 
pt. 2, at 4 (noting that a ``number of other laws banning 
discrimination, including * * * the Age Discrimination in Employment 
Act (ADEA), are modeled after and have been interpreted in a manner 
consistent with Title VII,'' and that ``these other laws modeled after 
Title VII [should] be interpreted consistently in a matter consistent 
with the Title VII as amended by this Act,'' including the mixed-motive 
provisions.)'' Gross at 2356 (Stevens, J. dissenting).
    \39\ Gross at 2349 (``We cannot ignore Congress' decision to amend 
Title VII's relevant provisions but not make similar changes to the 
ADEA. '').
    \40\ H. R. Rep. No. 102-40, pt.2, p.2 (1991).
    \41\ See n.23 supra.
    \42\ Id. at 2347.
    \43\ In McKennon v. Nashville Banner Publ'g Co., the majority 
stated, ``The ADEA, enacted in 1967 as part of an ongoing congressional 
effort to eradicate discrimination in the workplace, reflects a 
societal condemnation of invidious bias in employment decisions. The 
ADEA is but part of a wider statutory scheme to protect employees in 
the workplace nationwide.'' 513 U.S. 352, 357 (1995).
    \44\ Lorillard v. Pons, 434 US 575, 584 (1978).
    \45\ Id. at 2350.
    \46\ 490 U.S. 228, 249-50 (1989) (plurality opinion); id. at 259-60 
(White, J., concurring in the judgment); id. at 261 (O'Connor, J., 
concurring in the judgment).
    \47\ Supreme Court EEO Decisions Present Mixed Results for 
Employers, 25 No. 7 TERMINATION OF EMP. BULL. 1 (July 2009) (emphasis 
added).
    \48\ Supreme Court Majority Makes It Harder for Plaintiffs to Prove 
Age Discrimination Under the ADEA, 23 No. 6 EMP. L. UPDATE 1 (June 
2009).
    \49\ Timothy D. Edwards, Supreme Court Rejects Mixed-Motive Jury 
Instruction in Age Discrimination Case, 18 No. 8 WIS. EMP. L. LETTER 4 
(Aug. 2009).
    \50\ Michael Newman & Faith Isenhath, Supreme Court Gives Mixed-
Motive Analysis a Mixed Review, 56 FED. LAW. 16 (Aug. 2009).
    \51\ Laura Bassett, Older Jobseekers Face an Uphill Climb, The 
Huffington Post,  (April 27, 2010).
    \52\ Martino v. MCI Commc'ns Servs., Inc., 574 F.3d 447, 454 (7th 
Cir. 2009).
    \53\ Geiger v. Tower Automotive, No. 08-1314, 2009 WL 2836538, at 
*4 (6th Cir. Sept. 4, 2009).
    \54\ Fuller v. Seagate Technology, No. 08-665, 2009 WL 2568557, at 
*14 (D. Colo. Aug. 19, 2009).
    \55\ Woehl v. Hy-Vee, Inc. No. 08-19, 2009 WL 2105480, at *4 (S.D. 
Iowa, July 10, 2009).
    \56\ Leibowitz v. Cornell Univ., 584 F.3d 487, n.2 (2d Cir. 2009).
    \57\ Philips v. Pepsi Bottling Group, 2010 U.S. App. LEXIS 8391, at 
*7 (10th Cir. 2010)(citing Gorzynski v. Jetblue Airways Corp., 596 F.3d 
93, 106 (2d Cir. 2010).
    \58\ In Wellesley v. Debevoise & Plimpton, LLP, a Second Circuit 
panel cited Gross and held that since the plaintiff did not provide 
evidence of ``but-for'' age discrimination, her claims should be 
dismissed. No. 08-1360, 2009 WL 3004102, at *1 (2d Cir. Sept. 21, 
2009). Similarly, in Guerro v. Preston, the court cited Gross and 
dismissed the plaintiff's claims because she failed to satisfy ``but-
for'' causation. No. 08-2412, 2009 WL 2581569, at *6 (S.D. Tex. Aug 18, 
2009). Finally, in Fuller v. Seagate Technology, the court dismissed a 
plaintiff's ADEA claim, because he failed to prove direct causation. 
No. 08-665, 2009 WL 2568557, at *14 (D. Colo. Aug. 19, 2009).
    \59\ See Anderson v. Equitable Resources, Inc., 2009 U.S. Dist. 
LEXIS 113256, at *45 (W.D. Pa. 2009)(granting summary judgment for 
employer where plaintiff proffered sufficient evidence to show that age 
was a factor in his termination, but not a determinative one); Kelly v. 
Moser, Patterson & Sheridan, LLP, 2009 U.S. App. 22352, at *13 (3rd 
Cir. 2009)(finding it insufficient, under Gross, to show that age was a 
secondary consideration in the employer's decision, not a determinative 
``but for'' factor); Woods v. The Boeing Company, 2009 U.S. App. LEXIS 
26717 (10th Cir. 2009)(Anderson, J., concurring)(emphasizing to the 
trial court that the plaintiff must persuade the jury that, all things 
being equal expect for age, the employer would have hired the plaintiff 
if he had been younger).
    \60\ Gross at 2347.
    \61\ 411 U.S. 792 (1973).
    \62\ Gross at 2349, n.2.
    \63\ McDonnell Douglas at 802; Arroyo-Audifred v. Verizon Wireless, 
Inc., 527 F.3d 215, 218 (1st Cir. 2008); D'Cunha v. Genovese/Eckerd 
Corp., 479 F.3d 193, 194-95 (2d Cir. 2007); Pipen v. Burlington Res. 
Oil & Gas Co., 440 F.3d 1186,1193 (10th Cir. 2006); see also Reeves v. 
Sanderson Plumbing Prods., 530 U.S. 133 (2000)(assuming arguendo that 
the McDonnell Douglas framework applies to an ADEA claim, and applying 
it to such claim, ``[b]ecause the parties do not dispute the issue. 
'').
    \64\ McDonnell Douglas at 802.
    \65\ Id.
    \66\ Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (citing 
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
    \67\ See Burdine at 253(elaborating on the burden-shifting 
framework established in McDonnell Douglas).
    \68\ To give an example of McDonnell Douglas's wide spread 
acceptance, a LexisNexis search between 2007 and 2010 identified 1,977 
cases where the McDonnell Douglas standard was discussed in the context 
of ADEA claims. (LexisNexis Federal and State Cases, Combined>Terms & 
Connectors Search> McDonnell Douglas and ADEA or age discrimination or 
Age Discrimination in Employment Act or A.D.E.A. and date aft 2007.)
    \69\ 128 S.Ct. 2361 (2008).
    \70\ Gross at 2349, n.2.
    \71\ 589 F.3d 684 (2009).
    \72\ 589 F.3d 684 (2009).
    \73\ Id. at 691.
    \74\ 584 F.3d 487 (2009).
    \75\ 2010 U.S. App. LEXIS 5180.
    \76\ 579 F.3D 614 (2009).
    \77\ 574 F.3D 447 (2009).
    \78\ Furthermore, it seems as though the confusion surrounding the 
application of Gross even in the age context will persist. Despite the 
holding in Gross, at least one district court recently held that a 
mixed motive analysis is still applicable in ADEA claims within the 
federal sector. In Fuller v. Gates, the court stated that a plaintiff 
who is lacking direct evidence of age discrimination may proceed under 
either a pretext theory or mixed motive theory, or both.2010 U.S. Dist. 
LEXIS 17987.
    \79\ ``The relevant language in [Title VII and the ADEA] is 
identical, and we have long recognized that our interpretations of 
Title VII's language apply 'with equal force in the context of age 
discrimination, for the substantive provisions of the ADEA were derived 
ad haec verba from Title VII.' '' Gross at 2354 (Stevens, J., 
dissenting)(citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 
111, 121 (1985)((quoting Lorillard v. Pons, 434 U.S. 575, 584 (1978)). 
See also n.9 supra.
    \80\ Gross at 2349.
    \81\ A recent Third Circuit decision under 42 U.S.C. Sec.  1981 
also exemplifies the confusion the courts now confront. While the 
majority in Brown v. J. Katz, Inc., did not believe that Gross had any 
impact on the litigation of Section 1981 mixed-motive claims, the 
concurring opinion pointed out that simply continuing to use Title VII 
analysis for Section 1981 mixed-motive claims ``ignores the fundamental 
instruction in Gross that analytical constructs are not to be simply 
transposed from one statute to another without a thorough and 
thoughtful analysis.'' 581 F.3d 175, 182 (3d Cir. 2009).
    \82\ Gross at 2349.
    \83\ Id. at 2351. (Stevens, J. dissenting).
    \84\ Gunville v. Walker, 583 F.3d 979 (7th Cir. 2009)( citing 
Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009).
    \85\ Fairley v. Andrews, 578 F.3d 518(7th Cir. 2009)(stating that 
``[7th Circuit decisions adopting the motivating factor standard] do 
not survive Gross, which holds that, unless a statute (such as the 
Civil Rights Act of 1991) provides otherwise, demonstrating but-for 
causation is part of the plaintiff's burden in all suits under federal 
law. ''); Serwatka v. Rockwell Automation Services, Inc. 2010 U.S. App. 
LEXIS 948 (7th Cir. 2010).
    \86\ 337 Fed. Appx. 399 (2009).
    \87\ Crouch v. J C Penney Corp. Inc., 2009 U.S. App. LEXIS 14362 
(5th Cir. 2009). See also Hunter v. Valley View Local Sch., 579 F.3d 
688 (6th Cir. 2009)(stating that Gross requires the court to revisit 
the propriety of applying Title VII precedent to the FMLA by deciding 
whether the FMLA authorizes motivating-factor claims, and holding that 
it does).
    \88\ 2010 U.S. App. LEXIS 6190.
    \89\ 2010 U.S. App. LEXIS 6190 at 18.
    \90\ 2010 U.S. App. LEXIS 6190 at 19.
    \91\ 2010 U.S. App. LEXIS 6190 at 45.
    \92\ 2010 U.S. App. LEXIS 948 (7th Cir. 2010).
    \93\ Id. at *11. [The version of the ADA applicable to the Serwatka 
case in relevant part provides that ``[n]o covered entity shall 
discriminate against a qualified individual with a disability because 
of the disability of such individual in regard to job application 
procedures, the hiring, advancement or discharge of employees, employee 
compensation, job training and other terms, conditions, and privileges 
of employment.'' 42 U.S.C. Sec.  12112(a) (2008). Pursuant to the ADA 
Amendments Act of 2008, Congress has made substantial changes to the 
ADA, which took effect on January 1, 2009. The language of the statute 
has been modified to prohibit an employer from discriminating against 
an individual ``on the basis of disability.'' 42 U.S.C. Sec.  12112(a) 
(2009). The Seventh Circuit concluded that whether ``on the basis of'' 
means anything different from ``because of'', and whether this or any 
other revision to the statute matters in terms of the viability of a 
mixed-motive claim under the ADA, were not questions it needed to 
consider in the Serwatka appeal. Serwatka at 962-63.]
    \94\ Id. at *10.
    \95\ Id. at *13-14.
    \96\ See Kozlosky v. Steward EFI, LLC, 2009 U.S. Dist. LEXIS 77605 
(W.D. Tex. 2009)(holding that Gross applies to age discrimination 
claims under the Texas Labor Code); Cormack v. N. Broward Hospital 
Dist., 2009 U.S. Dist. LEXIS 76396 (S.D. Fl. 2009)(holding that Gross 
applies to age discrimination claims under the Florida Civil Rights 
Act).
    \97\ Williams v. District of Columbia, 646 F. Supp. 2d 103 (D.C. 
2009).
    \98\ Beckford v. Timothy Geithner, Secretary of the Treasury, 2009 
U.S. Dist. LEXIS 96038 (Dist. Columbia, Oct 15, 2009).
    \99\ See Love v. TVA Board of Directors, No. 06-754, 2009 WL 
2254922 (M.D. Tenn. July 28, 2009) (dismissing plaintiff's ADEA claim 
reasoning that, under Gross, since race had been a factor, plaintiff 
could not prove that age was the sole factor); see also Wardlaw v. City 
of Philadelphia Streets Department, Nos. 05-3387, 07-160, 2009 WL 
2461890, at *7 (E.D. Pa. Aug. 11, 2009) (dismissing plaintiff's ADEA 
claim because plaintiff had alleged discrimination on other protected 
basis; thus, she could not show that age was the sole factor).
    \100\ 646 F. Supp. 2d 1270, 1271 (N.D. Ala. 2009).
    \101\ Id.; but see Belcher v. Service Corp. International, 2009 
U.S. Dist. LEXIS 102611 (E.D. Tenn. 2009)(``While Gross arguably makes 
it impossible for a plaintiff to ultimately recover on an age and a 
gender discrimination claim in the same case, the undersigned does not 
read Gross as taking away a litigant's right to plead alternate 
theories under the Federal Rules. '').
    \102\ The Gross majority suggested that burden-shifting, at least 
of the Price Waterhouse variety, has been difficult to apply in 
practice and that its cumbersome nature has ``eliminated any 
perceivable benefit to extending its framework to ADEA claims.'' Gross 
at 2352.
    \103\ In McKennon v. Nashville Banner Publ'g Co., the majority 
stated, ``The ADEA, enacted in 1967 as part of an ongoing congressional 
effort to eradicate discrimination in the workplace, reflects a 
societal condemnation of invidious bias in employment decisions. The 
ADEA is but part of a wider statutory scheme to protect employees in 
the workplace nationwide.'' 513 U.S. 352, 357 (1995).
    \104\ Lorillard v. Pons, 434 U.S. 575, 584 (1978).
    \105\ The House version of the bill was introduced on October 
6,2009, H.R. 3721, 111th Congress (2009). The Senate version of the 
bill was introduced on October 6th, 2009, S 1756, 111th Congress 
(2009). The language of the bills track each other. For ease of 
discussion we will reference the house bill.
    \106\ H.R. 3721, Sec. 3(g)(1)
    \107\ H.R. 3721, Sec. 3(g)(5)
    \108\ H.R. 3721, Sec. 3(g)(2)
    \109\ H.R. 3721, Sec. 3(g)(4)
    \110\ H.R. 3721, Sec. 3(g)(3)
    \111\ H.R. 3721, Sec. 3(g)(5)
    \112\ H.R. Rep. No. 102-40, pt. 2, at 17 (1991).
    \113\ This is not a new issue for Congress, as just last year 
Congress reversed the same majority's decision in by passing the Lilly 
Ledbetter Fair Pay Act In Ledbetter v. Goodyear Tire & Rubber Co., the 
Court held that ``an employee wishing to bring a Title VII lawsuit must 
first file an EEOC charge within * * * 180 days 'after the alleged 
unlawful employment practice occurred,''' and that new violations did 
not occur because of non-discriminatory acts (here, the issuing of 
paychecks). 550 U.S. 618, 621 (2007). The Ledbetter dissent 
specifically called upon Congress to act to correct the ``Court's 
parsimonious reading of Title VII.'' Id. at 661 (Ginsburg, J., 
dissenting). Congress indeed responded by passing the Lilly Ledbetter 
Fair Pay Act, which clarified that the 180-day statute of limitations 
resets each time ``a discriminatory compensation decision * * * occurs 
* * *.'' Pub. L. No. 111-2, 123 Stat. 5 (2009).
    \114\ Circuit City, 532 U.S. at 120.
    \115\ 550 U.S. 618 (2007)
    \116\ 550 U.S. at 661 (Ginsburg, J., dissenting).
                                 ______
                                 
    Chairman Andrews. Thank you, Mr. Foreman.
    We thank each of the four of you. You did a very good job 
in educating the committee. We are going to try to get now to 
the questions.
    Mr. Dreiband, on page 9 of Justice Thomas's majority 
opinion, he says that the law now is the plaintiff has to 
retain the burden of persuasion to establish that age was the 
but for cause of the employer's adverse action.
    I want to give you these facts. Let's assume that a sales 
employer comes up with a productivity standard, number of sales 
per employee per year. And they apply the standard, and 80 
percent of the people over 50 get fired because they don't meet 
the standard and 80 percent of the people under 50 keep their 
jobs because they do. And one of the people over 50 files an 
age discrimination lawsuit under the statute in front of us 
today.
    So the record is that there is this productivity standard, 
there are these results when it is applied, and that is it. 
There is no other discovery, no other information that would 
show any intention by the employer. The defendant moves for 
directed verdict after the plaintiff's case in chief is put on.
    In your opinion, under the Gross decision, what does the 
court do with that motion?
    Mr. Dreiband. Well, I think it would depend on the totality 
of the evidence, of course.
    Chairman Andrews. What else do you want to know?
    Mr. Dreiband. I am sorry, what was that?
    Chairman Andrews. What else do you want to know about the 
evidence?
    Mr. Dreiband. Well, it sounds like what you described is 
simply a policy and statistics about rates of satisfying the 
productively standard.
    Chairman Andrews. Right. Assume that is the entire record 
in front of you.
    Mr. Dreiband. Yeah. And so, presumably then, we are 
envisioning a trial in which each side, I guess, would put up 
an expert who would say that the statistics show what they 
show----
    Chairman Andrews. Right.
    Mr. Dreiband [continuing]. And no other witness----
    Chairman Andrews. So let's say you have an expert witness 
for the plaintiff who says, this is not really a valid standard 
of measuring productivity. And you have an expert witness for 
the defendant who says it is. And you have the statistical 
result that I just posited. Who wins the motion for directed 
verdict, under Gross?
    Mr. Dreiband. Well, it is impossible to say from that 
limited amount of information, number one.
    Number two, it would depend on the theory that the 
plaintiff was pursuing. For example, if the plaintiff was 
pursuing a pattern or practice of discrimination claim on 
behalf of a class of victims----
    Chairman Andrews. No, say it is just one plaintiff, not a 
class action, one plaintiff. One of the people who is over 50 
gets fired, says, ``I got fired because I am over 50, and this 
is my proof. This statistical evidence is my proof.''
    Mr. Dreiband. And so that is it?
    Chairman Andrews. Yep.
    Mr. Dreiband. Well, I guess what I would say is, first of 
all, that is not the way cases get litigated, normally. I have 
never heard of a case in that fashion----
    Chairman Andrews. Well, okay. Of course, the normal has now 
changed because of the Gross decision. But----
    Mr. Dreiband. Well, I don't think the Gross decision 
changes at all the----
    Chairman Andrews [continuing]. The question is, who wins 
the motion for directed verdict?
    Mr. Dreiband. Well, I can't answer the question under the 
facts as presented.
    Chairman Andrews. What other facts would you like to hear?
    Mr. Dreiband. I would like to know what the plaintiff 
testified about and what----
    Chairman Andrews. The plaintiff says, ``I did well for 15 
years. I got great employee evaluations. One day, they called 
me in and said, `Under this productivity standard, you don't 
measure up. You are fired.' ''
    Mr. Dreiband. I think what we would have to know then is 
exactly whether there was any evidence that what the employer 
said was untrue, whether the employer selectively applied----
    Chairman Andrews. The employer applied it to everybody in 
the company. The employer says, ``Look, we did a productivity 
study. We care about how many units you sell per employee. That 
was the standard, and that is what we did.''
    Mr. Dreiband. And so, under this hypothetical, the employer 
simply fired everybody in the company who didn't satisfy the 
standard. There is no other evidence otherwise.
    Chairman Andrews. Yes. And 80 percent of those over 50 get 
fired, 80 percent of those under 50 get kept. There is a motion 
for directed verdict by the defendant. Who wins?
    Mr. Dreiband. And this is a single plaintiff case?
    Chairman Andrews. Yep.
    Mr. Dreiband. No evidence to show that the employer 
selectively applied it. This is a claim for intentional----
    Chairman Andrews. Well, let's stop on that for a minute. 
What might that evidence look like? What evidence might 
validate the point you just made, that the employer selectively 
applied this? What would the plaintiff have to prove?
    Mr. Dreiband. Well, there are times when employers have 
standards, productivity standards for example, by way of 
example, in which the employer applies them to people of one 
category, let's say in this case older people, but do not apply 
the standards in the same way to younger people. And if that 
were the case, then I would expect the district court judge 
would deny the motion.
    Chairman Andrews. Okay. Assume here it isn't, though, that 
it was not selectively applied. Who wins?
    Mr. Dreiband. I would have to understand what theory the 
plaintiff was pursuing in the case. For example, the Supreme 
Court has established that a plaintiff can pursue what is 
called a disparate impact theory of discrimination----
    Chairman Andrews. True. But assume that this is a disparate 
treatment case.
    Mr. Dreiband. It sounds like, from what--the facts that you 
have described do not suggest that--unless I am missing 
something, other than the statistical evidence, you are saying 
there is no other evidence of any kind of disparate treatment 
against anybody.
    Chairman Andrews. That is it. This is a smart employer who 
knows not to leave a smoking gun. So the employer says, clean 
up the record, this is what we are going to say. They had these 
conversations with their lawyer. There is no smoking gun here, 
it is what they say. Who wins the motion for directed verdict?
    Mr. Dreiband. There normally is not a smoking gun at all.
    Chairman Andrews. Okay, but who--I understand that. But who 
wins the motion for directed verdict?
    Mr. Dreiband. I can't answer the question based on the 
hypothetical, because, number one, a hypothetical assumes a 
trial that, in my experience in nearly 20 years of practicing 
law, has never happened.
    Chairman Andrews. Well, all of which was pre-Gross. So you 
don't have an opinion who wins?
    Mr. Dreiband. I am sorry, what?
    Chairman Andrews. You don't have an opinion who wins that 
motion for a directed verdict?
    Mr. Dreiband. You know--I can't answer the question based 
on the hypothetical you have presented, because it assumes an 
unrealistic way of litigating a case that has never been done 
in my experience. I have never heard of such a case. I----
    Chairman Andrews. I am over my time, but I would just ask 
you, what facts do you think would be added in the case that 
you have experienced? What do you think----
    Mr. Dreiband. Well, for example, what I would like to know 
is, why does the employer have the standard that you 
identified?
    Chairman Andrews. Their testimony is that we wanted to 
improve our sales productivity.
    Mr. Dreiband. That what?
    Chairman Andrews. We wanted to improve our sales, we wanted 
to sell more of our product.
    Mr. Dreiband. Yeah, and it is very possible that that is a 
legitimate reason that the employer implemented the practice. 
It is also possible----
    Chairman Andrews. Right.
    Mr. Dreiband [continuing]. That the employer did it because 
the employer wanted to find a reason to eliminate older 
workers. I think----
    Chairman Andrews. How would we prove that? How would we put 
evidence on the record to support that possibility? What 
evidence would the plaintiff adduce to prove that possibility?
    Mr. Dreiband. Well, we could demonstrate--it depends. I 
mean, we would demonstrate, for example, as you pointed out, 
there could be statistical evidence of the sort that you 
mentioned. Presumably, the plaintiff would not only himself 
testify or herself testify, other people would testify about 
the fact that the productivity standard was not designed or did 
not, in fact, increase productivity or it was not done so with 
a legitimate business purpose.
    You know, it would really have to depend on the evidence 
that the plaintiff was able to produce at a trial, and the 
district court judge----
    Chairman Andrews. But we have posited that the plaintiff 
has produced that statistical evidence, and the testimony of 
the employer is that there were, you know, no negative comments 
made to the employee. What else would the plaintiff adduce that 
would help to prove that possibility of bias?
    Mr. Dreiband. Well, there could be many other----
    Chairman Andrews. Like what?
    Mr. Dreiband [continuing]. Types of evidence. For example, 
as I mentioned, there could be anecdotal evidence of other 
people treated differently. There could be----
    Chairman Andrews. Well, but is that relevant? Because this 
case was about the plaintiff, not about other people. Wouldn't 
that be irrelevant?
    Mr. Dreiband. No. It depends on the plaintiff's theory of 
the case. If the plaintiff's theory of the case is that the 
employer implemented a standard to govern many people, in this 
case, the company or a whole category of people or something 
like that, then the plaintiff would introduce, under your 
hypothetical, both statistical and anecdotal evidence to 
demonstrate, number one, that the practice was put in place 
without a legitimate business purpose if it was; that, in fact, 
the employer selectively applied it to people and, in fact, did 
so to favor younger employees. And if that----
    Chairman Andrews. I apologize for going over my time. I 
would just conclude with this comment. I think that what the 
Gross decision does is give the plaintiff an unreachable burden 
of proof. Because I think what this dialogue shows is the 
plaintiff is going to have to come up with oral or written 
representations by the employer to someone that they were 
motivated by some bias or animus here. Foolish employers don't 
do that--foolish employers do, but smart employers don't.
    And I think the whole purpose for the burden shifting is to 
recognize the reality of the workplace, where the employee 
doesn't have access to that sort of thing. And I think that is 
the flaw in your argument. But I am sure there will be other 
chances to discuss that.
    Dr. Price, I am sorry for going over. I will give you 
similar dispensation.
    Mr. Price. Thank you, Mr. Chairman.
    That may have made good theater. I guess the honest answer 
to it is that the judge decides, you know, based upon the 
evidence, right? But what----
    Mr. Dreiband. That is correct, yeah.
    Mr. Price. So I guess that the plaintiff needs to have Mr. 
Andrews as his counsel, and then we will be able to get to the 
right answer in all of this.
    I want to thank the witnesses for their testimony, as well. 
And I am struck by some discrepancy in some of the testimony. I 
have heard from Mr. Foreman that the Gross case has resulted in 
havoc in the courts and that it reinstates the law prior to 
that of Gross. And then, Mr. Dreiband, from you I have heard 
that findings have largely been in favor of the plaintiffs 
since then and that there hasn't been significant disruption in 
the courts.
    I would ask you, one, to comment on that. And then, two, if 
we were to adopt and this bill were to be signed into law, what 
laws would be affected by the bill as it is written before us?
    Mr. Dreiband. Well, on the first question about whether the 
decision has created havoc in the courts, as I mentioned, 10 of 
the 12 circuit courts of appeals have issued decisions that 
favor plaintiffs, number one. And, number two, the decision did 
strip away the so-called ``same decision'' or ``same action'' 
defense, which previously was available to employers.
    In terms of restoring the law to what it was before Gross, 
the bill does not do that either. In fact, the bill would 
change the law. I would point out, in that respect, that the 
Court of Appeals in Mr. Gross's case considered the laws that 
existed, you know, before the Supreme Court's decision, applied 
the Price Waterhouse v. Hopkins decision, a 1989 Supreme Court 
case, and concluded that Mr. Gross lost under that standard 
because he conceded, or at least his lawyer did on his behalf, 
that he did not present any direct evidence of discrimination. 
That is what his lawyer apparently told the court of appeals, 
and, under the Price Waterhouse standard as it existed at the 
time, that the so-called mixed motive instruction was improper.
    With respect to the laws affected by the bill, my view of 
that is that the bill is vague and ambiguous because it does 
not define the laws. And so what I think we are left with is 
enormous uncertainty about which laws would be amended. And 
this is something that Congress can easily fix simply by 
amending the bill to list the laws it intends to amend. If the 
Congress doesn't do that and enacts the bill in its current 
form, I think what we will see are years or decades of 
litigation about what laws, in fact, are changed by this bill.
    Mr. Price. So if I were to ask what is wrong with having 
this single standard across the board, the answer to that is 
that it results in litigation as to whether or not it applies 
to the whole array of laws out there; is that correct?
    Mr. Dreiband. There is nothing wrong with having a single 
standard, a burden of proof standard, for example. The Supreme 
Court established that standard in 1973 in a case called 
McDonnell Douglas v. Green, and certainly the Congress could 
endorse that for particular statutes.
    I think the confusion, though, is that the bill does not 
identify which laws it would seek to amend. I mean, we know, 
for example, that it would amend the Age Discrimination in 
Employment Act. We know that there are some laws that 
unambiguously are employment discrimination laws. But there are 
several laws in which we simply don't know--or, rather, I would 
say, that litigants will argue about.
    Let me give you one example, the Family and Medical Leave 
Act. That law is neutral in terms of how it is written, and it 
provides for 12 weeks of unpaid leave for various family 
reasons related to, for example, to care for a sick family 
member or the birth or adoption of a child or for other medical 
reasons. The Supreme Court of the United States has described 
that law as something that helps women because women, according 
to the Court, tend to be caregivers more than men. But the law 
is drafted in a neutral fashion, and so, on its face, it does 
not appear to be an employment discrimination law.
    But what we can expect is, if the bill passes in its 
current form without identifying the laws that it covers, 
litigants will spend several years or decades litigating 
whether or not that law and several others are covered by this 
bill or not. And that is something, as I say, in the same way 
that Congress listed the laws that it intended to amend when it 
enacted the Lilly Ledbetter Fair Pay Act, that is something 
Congress can easily correct with this bill.
    Mr. Price. And that is why you believe the bill as written 
would result in significant increased litigation; is that 
correct?
    Mr. Dreiband. That is correct, on that issue, yes.
    Mr. Price. Just one final question, if I may, Mr. Chairman.
    Many have claimed, in the wake of this Gross case, that a 
plaintiff can only prevail on a claim of age discrimination if 
the plaintiff's age was the single and only reason for an 
employment action. Is that your understanding of what the Gross 
decision means?
    Mr. Dreiband. No.
    I would point out that, in Mr. Gross's case, the 
alternative jury instruction at issue defined ``but for 
causation'' as simply something that determined the outcome, in 
this case the alleged demotion, and other factors can play a 
role in the decision.
    And I would note, as well, that the Supreme Court in the 
Gross decision clarified that there is no heightened 
evidentiary burden on plaintiffs in discrimination cases. And I 
think that is why we have seen the United States courts of 
appeals issue so many decisions in favor of plaintiffs since 
the decision came down.
    Mr. Price. Great.
    Thank you, Mr. Chairman.
    Chairman Andrews. Thank you.
    The chair recognizes the gentlelady from New York, Ms. 
McCarthy, for 5 minutes.
    Mrs. McCarthy. Thank you, Mr. Chairman. And thank you for 
holding this hearing.
    Listening to the debate--and I am not a lawyer, but going 
through some of the written testimony from the dissent, Justice 
Stevens wrote that the majority had engaged in unnecessary 
lawmaking. And I guess some of us sitting here are wondering or 
worrying that we are seeing more and more of this on the Court.
    But I guess the question I want is, to Mr. Foreman, what 
are the dangers of letting the Gross stand and other workplace 
discrimination law? Are they in jeopardy now too?
    Mr. Foreman. Absolutely. And I think that is when I said in 
my opening remarks about wreaking havoc, Ranking Member Price, 
I think you indicated in your opening statement that a 
physician's advice is, ``Do no harm.'' We wish the Supreme 
Court would have followed that, but the harm has already been 
done through the Gross decision.
    And what is happening is, throughout the courts, the courts 
are now taking established precedent under the ADA--Mr. 
Dreiband mentioned the FMLA. There were court cases prior to 
Gross that said, mixed motive applies in the FMLA. Now it is 
being litigated, so all this litigation is occurring because of 
Gross.
    In the cases that he is relying on, the 10th Circuit, that 
cite Gross, that is all they do. It is a motion for summary 
judgment that goes up on appeal, and they say Gross is now the 
law, we believe McDonnell Douglas applies, we are going to 
allow the plaintiff to have their day in court under the Gross 
standard. But make no mistake, the Gross standard is much 
higher.
    And I will just--I don't want to take your time, but the 
Second and the 10th Circuit addressed that specifically and 
said before the Supreme Court in Gross the employer could 
prevail if age--if it was at least motivated in part by age. 
After Gross, they can no longer do that. And every circuit that 
has addressed that has made it clear that after Gross there is 
a higher standard. There is a higher standard to prove age 
discrimination than there is to prove race discrimination, sex 
discrimination.
    And that is the concern and why the bill is drafted in what 
you believe is a broader language. Because if you don't fix it, 
it will be litigated until the cows come home to determine how 
far Gross goes.
    Mrs. McCarthy. With a follow-up on that, with the 
legislation that the majority on the Education Committee have 
introduced, do you see that correcting the problems that the 
Supreme Court put forward to us to correct it? Do you see that 
that piece of legislation will correct everything that we are 
trying to do?
    Mr. Foreman. Yes, it directly addresses that. And the only 
outlier is the need to have the broader language to cover all 
discrimination laws so we don't have continuing litigation. But 
what it does is it says, motivating factor applies to any law; 
number two, that if employers can prove that they would have 
done this even though they took into account age, they will 
have a limitation on damages; three, that any type of evidence 
can be used to prove these cases. So it actually answers the 
question that was presented in Gross and not answered by the 
Supreme Court.
    So it directly addresses that. And I don't want to be in a 
situation to try to remind, but it is patterned after the 1991 
law, which Congress passed I believe it was 300 and some to 40 
or 50. Don't quote me on that exactly, but it was fairly--and 
the Congress, 90 to a very few people, that it passed with 
overwhelming support. And what it does is take the 1991 law 
that applies to race and Title VII and applies it in the age 
context.
    Mrs. McCarthy. Thank you.
    Mr. Gross, I want to thank you for persevering even though 
you lost the case. I think this is something that we consider a 
moral victory for you because you are going to be helping many 
people behind you. As you have mentioned, certainly quite a few 
of us are the baby boomers now, and so we want to do whatever 
we can to protect not only the future but, certainly, all my 
friends that are working right now. And I think that is an 
important thing, so I thank you.
    I yield back, Mr. Chairman.
    Chairman Andrews. I thank the gentlelady.
    The chair recognizes the gentleman from Massachusetts, Mr. 
Tierney, for 5 minutes.
    Mr. Tierney. I thank the chair.
    I won't take the 5 minutes except to say that I think this 
has been a good hearing. I appreciate the witnesses that were 
selected and their contributions to it.
    Mr. Gross, I appreciate your circumstances and your 
willingness to come forward, as well.
    I get pretty much what is going on here. And having dealt 
in this area for a number of years before coming to Congress, I 
don't think I need to ask any more questions. But I appreciate 
the fact that you have had this hearing.
    I will yield to the----
    Chairman Andrews. Would the gentleman yield?
    I wanted to ask Mr. Gross a question. And if your judgment 
is that you don't want to answer it because your case is still 
pending, please take that prerogative. But did anyone ever say 
to you from your employer that you were demoted because of your 
age?
    Mr. Gross. No.
    Chairman Andrews. Did any of your fellow employees ever 
tell you that they were told they were demoted because of their 
age?
    Mr. Gross. No, not specifically.
    Chairman Andrews. Did anyone ever give you a letter or e-
mail or written communication that suggested that people were 
being demoted because of their age?
    Mr. Gross. I had received access to a memo that had been 
written a year before identifying people who they intended to 
demote. There was a big argument over whether I should have had 
that or not.
    Chairman Andrews. No, I understand.
    Mr. Gross. But it did identify every person who was going 
to be demoted. And every person on that memo was over 50. That 
jumped off the page at us. It wasn't quite a smoking gun, but 
we thought it was----
    Chairman Andrews. What led you to believe that you were 
being demoted because of your age? Why did you think that?
    Mr. Gross. Because, number one, when they merged with 
Kansas, they virtually purged everybody over 50 before they 
brought them into the organization. And, at the same time, 
every single person over 50 at our organization who was 
supervisory and above was demoted, all at the same time, 
totally regardless of performance, past contributions, current 
contributions. The only common denominator was our age.
    Chairman Andrews. Was there anybody under 50 demoted?
    Mr. Gross. One. But that person was, I believe, 48 at the 
time and----
    Chairman Andrews. Almost as good, huh?
    Mr. Gross. Yeah. And that was the only person under 50 who 
was demoted.
    Chairman Andrews. Okay.
    The chair recognizes the gentlelady from--oh, I am sorry, 
Ms. Aldrich.
    Ms. Aldrich. I just wanted to add that this is a specific 
situation but that our AARP studies show that 60 percent of 45- 
to 74-year-olds believe that they have either experienced or 
seen age discrimination in the workplace. I just think that is 
a, kind of, overwhelming statistic. And that was pre-recession.
    Chairman Andrews. Thank you.
    The chair recognizes the gentlelady from Ohio, Ms. Fudge--
is she here?
    Okay. The chair recognizes the gentleman from Illinois, Mr. 
Hare, for 5 minutes.
    Mr. Hare. Thank you, Mr. Chairman.
    And, for the record, you can represent me any time. 
Hopefully, it won't be a bad one, but--yeah.
    Mr. Dreiband, you state in your testimony that ``this 
legislation will give, at best, a moral victory to workers.'' I 
am a little baffled by the reasoning and clearly understand 
that this is based on your belief, and I quote, that ``the law 
will force these individuals and entities to spend years or 
decades fighting in court.'' So I am unclear as to what exactly 
you are missing here.
    But let me ask you this simple question, if I might. Would 
the clients that you advocate for avoid emptying their bank 
accounts even, you know, if they simply avoided any act that 
could be interpreted even in the slightest as discrimination? 
And would that make your whole argument about emptying the bank 
accounts disappear?
    Mr. Dreiband. I am not sure I fully understand the 
question. In terms of the concern about emptying bank accounts, 
the concern is the fact that the bill does not list the laws 
that Congress intends to amend. And, as a result, both 
discrimination victims--employers, unions, and others--who find 
themselves embroiled in these disputes will have to spend time 
and money and resources fighting in court on that question, 
when Congress could easily clarify it by amending the bill.
    Mr. Hare. Uh-huh.
    If I could, Mr. Foreman, I noticed that when my friend from 
Georgia was asking Mr. Dreiband a question about these cases in 
the different circuits, your head was shaking, you know, ``No, 
no, no, no, no.'' I was wondering if you would like to respond 
to what Mr. Dreiband was saying. You didn't get a chance to, so 
this would be an opportunity, if you wouldn't mind doing that. 
You clearly had a difference of opinion there.
    Mr. Foreman. Yes, thank you. And I was shaking my head 
because I may have already indicated that the cases he is 
relying on are simply citing the Gross opinion. The Gross 
opinion is the law of the country now. It is not saying 
anything different than: Gross now applies.
    As I indicated, most of those cases are dealing with this 
issue of--the Supreme Court dropped the footnote in their 
opinion that said, we are not making a determinative statement 
whether McDonnell Douglas, the standard by which you prove 
discrimination cases in one sense, applies. And it applied for 
decades, literally decades. But they dropped this footnote; 
they don't answer it.
    And many of the Court of Appeals are saying, the Supreme 
Court said this about McDonnell Douglas, we think it still does 
apply, so we will send it back down. We will let the plaintiff 
have their day in court, but, again, to prove but for 
causation, not motivating factor.
    And one important thing that I think we all need to focus 
on is the motivating factor. The way the law was written in 
1991 and the way this law is written, all it is doing is 
saying, if an employer considers this, if it is a motivating 
factor, you violated the law. We will then shift the burden of 
proof to the employer to prove that they would have taken this 
action anyhow. So there is a shift of the burden of proof, 
which is very important litigation.
    Under the Gross standard--and they make it very clear--the 
burden of proof never shifts to the employer. It is always the 
plaintiff's burden. And that is the reason we continually come 
back to the point that it has raised the level of proof for 
plaintiffs, or it eliminates one way of proving discrimination 
in the age context.
    Mr. Hare. Okay.
    Mr. Gross, let me just, you know, thank you for doing what 
you did. I know that that had to be difficult for you and your 
family. And, you know, I am sorry you didn't prevail, but, you 
know, we will get this through and you will eventually. I 
believe you will.
    I wanted to ask you just one quick question. After you 
filed the suit, how did your employer treat you?
    Mr. Gross. I was essentially ostracized. I stayed with them 
for 7 more years and endured what I felt was pretty intense 
retaliation.
    Mr. Hare. Such as?
    Mr. Gross. Well, I had been integrally involved in a lot of 
operations, on several corporate committees. I had actually 
been on the defense side defending Farm Bureau because I was a 
claims executive, and I think I was considered somewhat of a 
turncoat. And now I think they wanted to make an example out of 
me.
    I was immediately taken off all communications. My access 
to any of the computer programs, software was eliminated. I was 
not included in any department correspondence. I was basically 
set aside and ignored. I knew that my friends were endangered 
if they were seen talking to me, so I told them, ``Cover 
yourselves. I will eat lunch by myself now instead of at the 
big table.''
    Mr. Hare. And you did that for 7 additional years?
    Mr. Gross. I complained every year to human resources about 
being given nothing to do and that I felt that it was 
retaliation. I got no response until the last couple of years. 
And then they finally started giving me some light clerical 
work to do, which consisted primarily of taking numbers from 
one report and putting them onto another report.
    I think they wanted to make my life miserable enough----
    Mr. Hare. Sounds like they did.
    Mr. Gross [continuing]. That I would walk away, and I 
didn't want to give them that satisfaction.
    Mr. Hare. Well, thank you, Mr. Gross.
    I yield back.
    Chairman Andrews. Thank you.
    The chair recognizes the gentleman from Iowa, Mr. Loebsack, 
for 5 minutes.
    Mr. Loebsack. Thank you, Mr. Chair.
    I do want to thank Mr. Gross for taking the time to be here 
today. A native of Iowa, obviously, my home State, in Des 
Moines. It is really good to see you here. We don't have a lot 
of Iowans come in here and testify, so I really appreciate 
seeing you here today.
    I think it is very good, too, that we are holding this 
hearing, especially at the beginning of Older Americans Month.
    Just a little bit about Iowa and our home State. We rank 
about fourth highest in the percentage of population age 65 and 
older around the country. And according to census data, this 
legislation would apply to about 40 percent--40 percent--of my 
State's population, potentially. So that is pretty significant. 
I don't know how the States compare, but that is very, very 
important, as far as I am concerned.
    I was going to ask you about how you were treated, but my 
good friend Phil Hare preempted me on that. But did you want to 
elaborate at all? You gave us a pretty, I think, pretty 
stunning response as far as what happened to you.
    Mr. Gross. Well, I did finally last December--it was 
stressful, obviously, and I was starting to have some health 
problems that were resulting from it. And my wife and I--in 
fact, I went to a stress counselor, and we went through, you 
know, ``Really, why are you doing this? Is it a life-and-death 
matter for you?'' And I said, ``No, but I just don't like to 
walk away from a fight, I guess.'' And he said, ``Well, you 
really need to ask yourself if shortening your life is worth 
continuing the fight.''
    And that made a lot of sense. And so, as of December, I did 
go ahead and retire, 4 years earlier than I had intended. I had 
thoroughly intended my entire career to go to age 65 or 66 to 
maximize my Social Security.
    I think there is a lot of anecdotal evidence, a lot of 
people I know who are also drawing Social Security much earlier 
than they intended because they are in similar situations. And 
I could give you anecdote after anecdote of my personal 
experiences and acquaintances that have undergone this type of 
thing. But it is becoming rampant out there, and I think you 
are probably hearing that back in the field, back in your own 
districts.
    Mr. Loebsack. And that alone is cause for tremendous 
concern, obviously, when there is that retaliation and coercion 
on the part of an employer. And I am very sorry that that 
happened, obviously, to you.
    I have a question which maybe goes to Mr. Foreman more than 
anyone, but anyone can respond. Given Mr. Gross's situation as 
an example, can you give us an idea of what information would 
have to be provided to prove discrimination under the Supreme 
Court's ruling compared to what information you had to provide 
previously under Congress's original intent of ADA protections?
    If you would like to respond to that, Mr. Gross, or maybe 
Mr. Foreman or Ms. Aldrich.
    Mr. Foreman. I think the Court, the majority in Gross made 
it very clear that it must be but for causation, which is a 
very high level. So you are really looking for a smoking-gun 
comment that in corporate America you do not see.
    There was one question whether it was a sole cause 
determination. I think an accurate reading of the Supreme 
Court's decision is that it is not sole cause. But there are 
several district courts that have interpreted it exactly in 
that manner, to say, for instance, if I allege age and race 
discrimination, while that is a mixed motive, therefore my age 
case fails. And it is thrown out on a motion to dismiss because 
you have alleged another classification.
    So, again, it goes back to how this is causing confusion in 
the court. In the bill, is it trying to get us back to step one 
and say, let's all work off the same standard?
    Mr. Loebsack. Uh-huh.
    Ms. Aldrich. I would like to respond to that.
    Mr. Loebsack. Yeah, please.
    Ms. Aldrich. I would like to say, just from my 
perspective----
    Chairman Andrews. Please put your microphone on, Ms. 
Aldrich.
    Ms. Aldrich [continuing]. It is a tougher standard than for 
other cases of discrimination.
    And it is very concerning, you know, for most older 
workers--and we have heard Mr. Gross--to even bring these cases 
forward, with the amount of emotional stress it causes, the 
difficulty of standing up around other coworkers and 
challenging the company, the expense of it.
    So I think to make it more difficult for older workers than 
for other cases of discrimination is just wrong.
    Mr. Loebsack. All right.
    And, Ms. Aldrich, one last question. Since this ruling, do 
you have any idea how many discrimination claims are out there 
that would have met the previous intent of protection but would 
now be nearly impossible to prove because of the stricter 
ruling? Any idea?
    Ms. Aldrich. I am not sure about that. But I do know that, 
in the last 2 years, in 2008 and 2009, there have been 45,000 
age discrimination cases filed with the EEOC, which is more 
than any other period of time since we have kept track of it. 
So my sense is that, given the really tough economic times, 
that there are lots of concerns about age discrimination, and 
now they are harder to prove.
    Mr. Loebsack. All right. Okay.
    Thank you, Mr. Chair.
    And thank you again, Mr. Gross. I really appreciate your 
being here. Thanks.
    Chairman Andrews. I thank the ladies and gentlemen of the 
panel, and we really appreciate your testimony. I know everyone 
prepared very diligently and I think did a good job educating 
the committee.
    At this point, I would turn to the senior Republican for 
any closing comments he would like to make.
    Dr. Price?
    Mr. Price. Thank you, Mr. Chairman.
    And I, too, want to echo your comments thanking every 
member of the panel. This has really been a fascinating 
hearing, and I appreciate your participation and the expertise 
that you bring to bear.
    None of us are in favor of age discrimination, clearly. The 
question is, how do we get it right and not open Pandora's Box 
and have things result in just an onslaught of litigation as 
opposed to actually solving the challenge here?
    So I am hopeful that--I think there is a common thread 
between the two sides. And I am hopeful, Mr. Chairman, that we 
will be able to work together and come up with a commonsense 
piece of legislation that actually solves a problem and a 
challenge out there together.
    Thank you.
    Chairman Andrews. I thank my friend.
    I would again like to thank the members of the committee.
    Without objection, all Members will have 14 days to submit 
additional materials for the hearing record.
    Were there any other materials you wanted to submit now?
    Mr. Price. No.
    Chairman Andrews. Okay.
    I want to thank each of the witnesses for a very 
constructive contribution today.
    Mr. Dreiband, I agree with you that ambiguity about which 
laws the standard that is in the bill would apply to would not 
be helpful. And I think that your comments were on point as to 
the way we could sharpen this legislation up and not create 
ambiguity. I think that is a very important point.
    Mr. Foreman, I think that your reading of the distribution 
of the burden of persuasion is the correct one. It is why we 
are in front of the Congress with this bill.
    Ms. Aldrich, I think you have given us some context to 
understand this, that age discrimination is always invidious, 
but it is particularly acute at a time when there is a 
recession and people are losing their jobs in large number. It 
really has a devastating effect on the lives of real people.
    And, Mr. Gross, unfortunately, you are Exhibit A of that. I 
doubt very much that Mr. Gross, whose uncle--is it your uncle 
was the congressman?
    Mr. Gross. Great uncle.
    Chairman Andrews [continuing]. Great uncle served with 
great distinction in this body a long time ago, I doubt very 
much that Mr. Gross thought he would be testifying before a 
congressional committee all those years when he was doing the 
work that he was doing so well. And it is a twist in the law 
that has brought him here that I hope that we can correct.
    I would echo what Dr. Price said. I don't think there is a 
member of this committee who wants to perpetuate discrimination 
against any person based upon age or any other factor.
    One of the things that I learned in law school, maybe the 
only thing I learned, was: He or she who has the burden of 
proof usually loses. And I think it is acutely true in this 
kind of situation where, if you can make a circumstantial case, 
as I think Mr. Gross has definitively done, that there is a 
pattern of discrimination against a person based on age, it is 
very difficult to take the next step and carry the burden that 
says that that is not just circumstantial and coincidental. It 
is very difficult because employers are aware of the 
environment in which they are operating; they are counseled 
about how to say things carefully. I am not suggesting they are 
doing anything nefarious, but it is a very difficult burden to 
carry. And I think, frankly, it is a burden that will not be 
carried very often or very easily, which will have the effect 
of expanding an invidious practice that we really want to 
diminish.
    So the committee is going to consider the testimony. We 
would welcome further comments on the record. We will move 
forward as we look at these issues. And, again, I very much 
appreciate everyone's participation here today.
    With that, the hearing is adjourned.
    [Additional submission of Mr. Andrews follows:]

     Prepared Statement of the National Senior Citizens Law Center

    The National Senior Citizens Law Center (NSCLC) submits this 
statement in support of the Protecting Older Workers Against 
Discrimination Act. NSCLC submits the statement to the House Health, 
Employment, Labor, and Pensions Subcommittee of the Education and Labor 
Committee, which convenes a hearing on H.R. 3721, the House version of 
the bill, on May 5, 2010, and to the Senate HELP Committee, which 
convenes a hearing on S. 1756, the Senate version, on May 6. The 
legislation will override a June 2009 Supreme Court decision that 
stripped older workers of vital protections against bias on which they 
had relied for over 40 years. In this decision, which the dissenting 
justices characterized as ``unabashed judicial law-making,'' 
``irresponsible,'' and in ``utter disregard'' of the Court's own 
precedents and ``Congressional intent,'' a narrow 5-4 majority so 
weakened the 1967 Age Discrimination in Employment Act (ADEA), that 
employers are left with little incentive to comply with its equal 
opportunity mandate. This decision illustrates the accuracy of 
President Obama's recent observation that we ``are now seeing a 
conservative jurisprudence'' that is both ``activist'' and bent on 
gutting laws that, like the ADEA, were enacted to protect ordinary 
people.
The Gross Decision Upended a Fair Jury Verdict and Long-Settled Law
    This case arose out of circumstances all too familiar to older 
workers at all levels in our economy, especially in the hard times from 
which much of the nation has barely begun to recover. In 2003, Jack 
Gross, aged 54 and a 32-year employee of FBL Financial, was demoted 
from his position as claims administration director, and transferred to 
a newly created position with drastically reduced responsibilities. 
Gross sued, and at trial introduced ``evidence suggesting that his 
reassignment was based at least in part on his age'' (as stated by 
Justice Clarence Thomas writing for the majority). Gross' employer 
responded with the claim that the reassignment was part of a 
``corporate restructuring.'' The jury found for Gross and awarded him 
$46,945 in lost compensation, after receiving the judge's instructions 
that they must rule for the employee if he proved by a preponderance of 
the evidence that ``age was a motivating factor'' in his demotion. 
``However,'' the judge instructed, the jury must rule for the employer 
if the employer proves by the preponderance of the evidence that the 
employer would have demoted Gross ``regardless of his age.'' This 
instruction tracked settled law, but the Supreme Court majority changed 
the law, as described above, and held that Gross and others in his 
situation needed to show that age was the ``but for'' cause of their 
adverse treatment, and that evidence that age was a motivating factor 
would not shift the burden of proof to the employer to prove that the 
adverse action would have occurred regardless of the employee's age.
A Perfect Storm for Older Workers
    After the Supreme Court bounced him back to square one, Mr. Gross 
testified before Congress that the conservative Justices had 
``hijacked'' his case to make an ideological point. His view cannot be 
dismissed as sour grapes. On the contrary, this 5-4 reversal of the 
jury verdict in Mr. Gross' favor creates a veritable perfect storm for 
older workers. Numerous surveys show that the current financial crisis 
has forced older workers at all economic levels to shelve plans for 
retirement, and attempt to stay in, or re-enter the job market. One 
survey, published in March 2009, reported that 60 percent of workers 
over 60 have made that decision. 75 percent of the $2.8 trillion that 
vanished from group (401[k]) and individual (IRA) account assets during 
late 2007 and 2008 belonged to persons over 50. In addition to the 
disproportionate impact of this implosion of retirement assets, 
declining house values and rising health costs have seriously 
exacerbated the financial squeeze on older workers, and intensified 
pressure to continue to work.
    Or hope to. When recession strikes, employers often target veteran 
employees in RIFs, and disfavor older candidates for whatever new 
positions they may need to fill. Driving this pattern, familiar, as 
Purdue University management expert Professor Michael Campion testified 
at a July 15 Equal Employment Opportunity Commission (EEOC) hearing, 
are ``common negative stereotypes about older workers,'' such as that 
they are ``more costly, harder to train, less adaptable, less 
motivated, less flexible, more resistant to change, perhaps less 
competent, and less energetic than younger employees.'' Such cliches 
are often inaccurate, as superior experience, maturity, stability, and 
job commitment may often make more senior workers more productive and 
better investments than their younger counterparts. Although the ADEA 
was enacted to eliminate such damaging misperceptions from American 
workplaces, studies document their resilience. Evidently, their impact 
is being felt in the market-place now. Age discrimination claims 
submitted to the EEOC spiked nearly 30% in June 2009 compared with the 
same month a year earlier.
How the Gross Decision Largely Nullifies the ADEA
    For these claimants, the Supreme Court's decision offers a new 
Catch-22. The aptly named decision guarantees that a vast proportion of 
age bias complaints will fail, whatever their merit. Justice Clarence 
Thomas' opinion for the Court majority repeatedly states that a victim 
of age discrimination, in order to prevail in court, must prove that 
unlawful bias was the ``but-for'' cause of adverse treatment. 
Previously, plaintiffs alleging violations of the Age ADEA had the 
option of proving that age bias was simply a ``motivating factor.'' The 
latter remains the applicable standard for claims of discrimination 
based arising under Title VII of the Civil Rights Act, which include 
most matters involving race, gender, or other types of workplace 
discrimination other than age.
    Federal lower court decisions confirm that Gross has radically 
tightened standards for proving workplace age discrimination, to an 
extent that, if not promptly corrected by Congress, will cause a vast 
proportion of age bias complaints to fail, whatever their merit. 
Justice Clarence Thomas' opinion for the 5-4 Court majority repeatedly 
states that a victim of age discrimination, in order to prevail in 
court, must prove that unlawful bias was ``the but-for'' cause of 
adverse treatment. Previously, plaintiffs alleging ADEA violations had 
the option of proving that age bias was simply a ``motivating factor.'' 
The latter remains the applicable standard for claims of discrimination 
arising under Title VII of the Civil Rights Act, which include most 
matters involving race, gender, or other types of workplace 
discrimination other than age.
    The Court's new rule will largely nullify the ADEA. This is true, 
in the first place, because in the real world, most actions have 
several but-for causes. For example, if an employer decided to fire 
everyone in a Department over 50, age would be a but-for cause (because 
if a worker were not over 50 he or she would not have been fired). But 
working in that Department would also be a but-for cause (because if a 
worker of any age had not been in that Department, he or she would not 
have been fired). If victims of this garden-variety type of 
discrimination must show that age was ``the'' but-for cause, their 
cases will be lost before they are filed. Indeed, Justice Thomas' ``the 
but-for cause'' standard can be interpreted to require that age bias be 
the ``sole'' cause of adverse treatment. In fact, in the first three 
months after Gross was decided, at least 27 federal courts read the 
decision to impose this ``sole cause'' standard or its practical 
equivalent.
    Moreover, even in situations where in fact age bias is the sole 
cause of passing over for promotion, or demoting, or firing an 
employee, that fact will rarely be demonstrable. After all, as a 
practical matter, employers will always create paper trails purporting 
to justify adverse actions on legitimate business-related grounds. In 
such circumstances, proving that age was the exclusive, rather than a 
``motivating'' factor will not realistically be possible. Virtually any 
evidence of any other factors, whether business-related or not, 
suffices to throw a legitimate age discrimination victim out of court. 
Employee-side lawyers will know that, so they will rarely waste their 
time and resources to bring cases when age bias victims come to them 
for help. Business lawyers will also know that, and will counsel 
clients that they have nothing to fear if they pay lip-service to the 
ADEA but ignore it in practice.
Twisting a Law Enacted to Protect Ordinary People
    As noted above, President Obama recently underscored the need for 
judges who combine ``a fierce dedication to the rule of law'' with ``a 
keen understanding of how the law affects the daily lives of the 
American people.'' The President has observed that in contrast with 
this standard, we ``are now seeing a conservative jurisprudence'' that 
is ``activist'' and ``ignores the will of Congress'' and ``democratic 
processes.'' Members of Congress, including Senate Judiciary Committee 
Chair Patrick Leahy, have similarly observed that ``in many cases, the 
Supreme Court has ignored the intent of Congress, oftentimes turning 
laws on their heads, and making them protections for big business 
rather than for ordinary citizens.'' Few recent decisions illustrate 
the regrettable accuracy of these observations more precisely than the 
Gross decision. Not only, as Justice Stevens observed in his dissenting 
opinion, does this 5-4 decision flout a long-standing major precedent 
of the Court itself (Price Waterhouse v. Hopkins, 490 U.S. 228 [1989]), 
by adopting as the law a ``but-for'' standard of causation that was 
advanced by the dissent in that case. ``Not only,'' Justice Stevens 
wrote, ``did the Court reject the but-for standard in that case, but so 
too did Congress when it amended Title VII (of the 1964 Civil Rights 
Act) in 1991.'' Moreover, the majority's ``far-reaching'' new rule 
answered a question completely different from the one the parties had 
raised with the Court or the courts below and which the Court ``granted 
certiorari to decide.'' Justice Stevens called out the majority further 
for its lack of concern that the consequential issue it resolved ``had 
not been briefed by the parties,'' adding that the majority's ``failure 
to consider the views of the United States, which represents the agency 
charged with administering the ADEA, is especially irresponsible.''
Repealing From the Bench and Crippling Congress
    Congress needs to respond sharply and swiftly to the Court's de 
facto repeal from the bench of the ADEA and other safeguards against 
workplace discrimination. Not only does the decision in Gross thwart 
Congress' clear intent. If permitted to stand, the decision will 
cripple Congress' ability to perform its constitutional function. This 
is because the Gross majority utilized a novel and ill-considered 
method of statutory construction that would, if generally applied, lead 
to wholly unreasonable interpretations of numerous federal laws. The 
Court reasoned that because Congress in 1991 codified and strengthened 
the interpretation of Title VII found in Price Waterhouse, Congress 
intended by so doing to indicate that it actually disapproved of the 
basic rule in Price Waterhouse, and that the allocation of burdens set 
out in that decision should not be applied to other federal employment 
statutes. Under this unwarranted method of construction, legislation 
strengthening any one federal law, or merely codifying in that statute 
any existing caselaw, would be deemed to weaken all other federal laws 
dealing with the same type of issue, e.g. employment. That emphatically 
was not the intent of Congress in adopting the 1991 Civil Rights Act. 
General application by the courts of this method of construction would 
complicate exponentially the already complex task of drafting 
legislation. In every instance in which Congress amended any one law, 
it would be required to scour the United States Code for all the other 
laws which would have to be similarly amended to avoid the implications 
of the Gross rule.
    Congress needs to act swiftly to prevent further metastasizing of 
this threat to the economic security of older Americans and all 
Americans.
                                 ______
                                 
    [Whereupon, at 11:50 a.m., the subcommittee was adjourned.]

                                 
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