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






          PROTECTING OLDER WORKERS AGAINST DISCRIMINATION ACT

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 3721

                               __________

                             JUNE 10, 2010

                               __________

                           Serial No. 111-108

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov





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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
TED DEUTCH, Florida                  TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr., 
ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr.,      STEVE KING, Iowa
  Georgia                            TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan          JIM JORDAN, Ohio
STEVE COHEN, Tennessee
SHEILA JACKSON LEE, Texas
JUDY CHU, California

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel













                            C O N T E N T S

                              ----------                              

                             JUNE 10, 2010

                                                                   Page

                                THE BILL

H.R. 3721, the ``Protecting Older Workers Against Discrimination 
  Act''..........................................................     4

                           OPENING STATEMENT

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1

                               WITNESSES

Ms. Jocelyn Samuels, Senior Counsel, U.S. Department of Justice, 
  Civil Rights Division
  Oral Testimony.................................................    10
  Prepared Statement.............................................    13
Mr. Jack Gross, Des Moines, IA
  Oral Testimony.................................................    52
  Prepared Statement.............................................    55
Mr. Eric S. Dreiband, Partner, Jones Day
  Oral Testimony.................................................    62
  Prepared Statement.............................................    65
Ms. Helen Norton, Associate Professor, University of Colorado Law 
  School
  Oral Testimony.................................................    79
  Prepared Statement.............................................    81

                                APPENDIX

Material Submitted for the Hearing Record........................   109

 
          PROTECTING OLDER WORKERS AGAINST DISCRIMINATION ACT

                              ----------                              


                        THURSDAY, JUNE 10, 2010

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:05 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Conyers, Watt, Scott, 
Johnson, Jackson Lee, Chu, and Franks.
    Staff present: Heather Sawyer, Majority Counsel; David 
Lachmann, Subcommittee Chief of Staff; and Paul Taylor, 
Minority Counsel.
    Mr. Nadler. This hearing of the Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties will come to 
order. And to begin, the Chair will recognize himself for an 
opening statement. Today we examine H.R. 3721, the ``Protecting 
Older Workers Against Discrimination Act.''
    H.R. 3721 corrects the Supreme Court's decision in--and 
this is the second time we will have had to correct the Supreme 
Court. The last time being Ledbetter on a very similar issue, 
where the Supreme Court has deliberately, and I think 
purposefully, misread the intent of Congress and narrowly 
construing a statue so as to eviscerate it.
    In this decision, the Supreme Court by a slim five-four 
majority, made it harder for older workers to prove unlawful 
age discrimination by holding that ``mixed-motive'' claims are 
no longer available under the Age Discrimination in Employment 
Act, or ADEA.
    In a ``mixed-motive'' claim an employer is alleged to have 
acted for a mixture of lawful and unlawful reasons, and the 
burden shifts to the employer to prove that it acted lawfully 
once an employee proves that a protected characteristic was a 
motivating factor in an employment decision.
    After the Court's decision in Gross, however, the burden of 
proof never shifts to the employer in a case under the ADEA, 
even if the employer admits that age was a factor in its 
decision, an improper factor, obviously.
    Instead, older workers always bear the burden of proving 
that age was the ``but for'' or determinative factor for a 
challenged employment decision, and therefore the person must 
always prove that the employer would not have made the same 
decision if age had not been a factor.
    This new and substantially higher standard for victims of 
age discrimination departs from decades of precedent and from 
the statutory framework of Title VII, which allows for mixed-
motive claims and previously had served as the model for 
proving discrimination under the ADEA as well as under other 
Federal discrimination and retaliation laws.
    Title VII, like the ADEA, prohibits discrimination because 
of certain protected characteristics. The Supreme Court, in 
Price Waterhouse v. Hopkins, interpreted this language to 
prohibit discrimination motivated in whole or in part by a 
protected characteristic, and recognized mixed-motive claims 
under Title VII.
    Congress approved and codified mixed-motive claims in the 
Civil Rights Act of 1991, and expressed its intent that the 
ADEA and other Federal laws should continue to be interpreted 
consistently with Title VII as amended by the 1991 Act.
    The five-justice majority in Gross ignored this unambiguous 
history, choosing instead to adopt an interpretation previously 
rejected both by the Court and by Congress. As a result, the 
exact same words, ``because of,'' now mean something different 
under the ADEA than they do under Title VII.
    But the damage does not end there. In reaching this result, 
the majority directed the lower courts to engage in a ``careful 
and critical'' examination before applying Title VII's 
precedent and framework to any other Federal law, thus 
declaring open season on settled precedent.
    The lower courts have taken up this task and have applied 
Gross in a variety of contexts, including to claims of 
discrimination because of disability, jury service and the 
exercise of free speech rights.
    Coming from a Court whose chief judge voted with the five-
member majority in Gross, but who believes that judges are like 
umpires, or who claims to believe that judges are like umpires, 
that their role is to call balls and strikes and not to pitch 
or bat, the Gross decision was quite a curve ball.
    Not only did the majority reject decades of settled 
precedent and the longstanding presumption, consistently 
endorsed and relied upon by Congress when drafting legislation, 
that Title VII should serve as a model for other Federal laws, 
it did so only by raising and resolving a different issue than 
the one presented to the Court, a question that was not briefed 
or argued by the parties or by the amici.
    Writing in dissent, Justice Stevens described the 
majority's conduct as ``an unabashed display of judicial 
lawmaking.'' For Jack Gross, who is here with us today, the 
experience has shattered his trust in the judicial system.
    We can, and should, correct this. Left standing, the Gross 
decision provides less protection and makes it much harder for 
older workers to prove unlawful age discrimination. It also 
creates substantially different standards across and between 
civil rights laws, thus undermining their predictability, scope 
and effectiveness.
    The decision also makes Congress' task in drafting 
legislation impossible by endorsing the ridiculous notion that 
the same language, here the words ``because of'' or ``on the 
basis of,'' which have been used by Congress in countless 
Federal discrimination and retaliation laws to require a causal 
connection between a protected characteristic and an employment 
decision, can mean different things in different laws.
    H.R. 3721 rejects this reasoning. It seeks to restore the 
pre-Gross standard for proving age discrimination and to 
restore the longstanding presumption that Title VII's framework 
and precedent applies to other Federal discrimination and 
retaliation laws. And that Congress can rely on that body of 
law when choosing the phraseology of amendments or new laws.
    We should act promptly to correct the Gross decision before 
more damage is done, and I look forward to hearing more about 
this from our witnesses today.
    Do you want to make a statement? Did you want to make a 
statement? No?
    There being no other opening statements, without objection 
all Members will have 5 legislative days to submit opening 
statements for inclusion in the record. Without objection the 
Chair will be authorized to declare a recess of the hearing. We 
will now turn to our first witness. As we ask questions of our 
witness and of our second panel of witnesses afterwards, the 
Chair will recognize Members in the order of seniority in the 
Subcommittee, alternating between majority and minority, 
provided the Member is present when his or her turn arrives. 
Members who are not present when their turns begin will be 
recognized after the other Members have had an opportunity to 
ask their questions.
    The Chair reserves the right to accommodate a Member who is 
unavoidably late or only able to be with us for a short time.
    [The bill, H.R. 3721, follows:]
    
    
    
                               __________
    Mr. Nadler. Our first witness, indeed our first panel, is 
Jocelyn Samuels, who is the senior counsel to the Assistant 
Attorney General for Civil Rights at the Department of Justice. 
Prior to joining the Justice Department in 2009 she was the 
vice president for education and employment at the National 
Women's Law Center in Washington, D.C.
    Ms. Samuels also previously served as the labor counsel to 
the late Senator Ted Kennedy during his tenure as Chairman of 
the Senate Committee on Health, Education, Labor and Pensions 
and as a senior policy attorney at the Equal Opportunity 
Commission.
    Ms. Samuels earned her law degree from Columbia and her 
B.A. from Middlebury College. I am pleased to welcome you. Your 
written statement in its entirety will be made part of the 
record. I would ask you to summarize your testimony in 5 
minutes or less.
    And to help you stay within that time there is a timing 
light at your table, although the Chair is generally pretty 
liberal in seeing the light. When 1 minute remains the light 
will switch from green to yellow and then to red when the 5 
minutes are up.
    Before we begin, it is customary for the Committee to swear 
in its witnesses.
    Let the record reflect that the witnesses answered in the 
affirmative, and you may be seated. And you are now recognized.

         TESTIMONY OF JOCELYN SAMUELS, SENIOR COUNSEL, 
       U.S. DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION

    Ms. Samuels. The light is on. Okay. It is an honor to 
appear before you today to address H.R. 3721, the ``Protecting 
Older Workers Against Discrimination Act.''
    Legislation like H.R. 3721, which would overturn the 
Supreme Court's decision in Gross v. FBL Financial Services, is 
necessary to ensure that victims of age and other types of 
intentional discrimination are accorded the same legal 
protections as those subject to discrimination based on race, 
color, sex, national origin and religion.
    The Gross decision upset that basic understanding, and 
legislation is critical to create unity in the law and to avoid 
the patchwork of inconsistent and unpredictable standards to 
which the Supreme Court's decision opens the door.
    In Gross, the Court held that plaintiffs under the Age 
Discrimination in Employment Act may not rely on a mixed-motive 
analysis to hold their employers accountable for age 
discrimination. Instead, the Court held, plaintiffs must 
demonstrate that age was a ``but for'' factor in cause of an 
adverse employment decision.
    In reaching this conclusion, as Mr. Chairman you noted in 
your opening remarks, the Court rejected its prior construction 
of identical language in Title VII. In Price Waterhouse v. 
Hopkins, the Court had held that under Title VII a plaintiff 
showing that discrimination was a motivating factor in an 
employment decision then shifted the burden to the employer to 
show that it would have made the same decision even absent the 
discrimination.
    Under the Price Waterhouse decision, the employer was 
liable if it failed to make this showing. Under the ADEA after 
Gross, by contrast, a plaintiff who demonstrates that age 
motivated the employer's action is not entitled to the Price 
Waterhouse shift in burdens.
    Under Gross the burden never shifts at all, and an employer 
need not, to avoid liability, demonstrate that it would have 
made the same decision even had it not relied on age. Instead, 
the plaintiff must meet the substantially heightened burden of 
showing not only that the employer relied on age, but also that 
the employer would not have made the same decision absent its 
discrimination.
    The Gross decision raises issues that are far from merely 
technical. By substantially raising the burdens of proof 
imposed on age discrimination plaintiffs, the Court has 
effectively reduced the protections available to older workers.
    The decision puts plaintiffs in the difficult if not 
impossible position of having to prove a negative; that the 
employer would not have made the same decision had it not been 
for the discrimination based on information that is often in 
the employer's sole possession.
    And if a plaintiff cannot make this showing Gross deprives 
courts of the power to enjoin even employment practices that 
have been proven to be tainted by age bias.
    Not surprisingly, Gross has led numerous courts to dismiss 
ADEA claims for a failure of proof. But courts have also 
applied the Gross decision to bar mixed-motive claims and 
impose greater burdens on plaintiffs under numerous other laws 
as well, including the Americans with Disabilities Act, Section 
1983 of the Civil Rights Act of 1866, the Employee Retirement 
Income Security Act and the Jury Systems Improvement Act.
    Courts have further questioned whether Gross should be read 
to bar mixed-motive claims under other statues, including the 
Family and Medical Leave Act. And even where courts have not 
yet reached the inquiry, the interpretation of other anti-
discrimination laws, such as the Fair Housing Act, could well 
be at risk.
    Under each of these laws, application of Gross can 
undermine the protections the laws were intended to provide. In 
addition, as these cases show, Gross has created and will 
continue to create confusion and unpredictability in the law, 
subjecting plaintiffs, and employers for that matter, to a 
patchwork of uncertain and potentially inconsistent 
interpretations of anti-discrimination standards.
    At a minimum, this creates inefficiency and the potential 
for years of litigation. More fundamentally, it undermines the 
basic premise that all victims of intentional discrimination 
should have the same tools to hold their employers accountable 
and that those tools should create effective deterrents to 
discrimination.
    Congress can respond to the Gross decision and ensure that 
the ADEA and other anti-discrimination laws are interpreted in 
the same way as Title VII. In the Civil Rights Act of 1991, 
Congress codified the mixed-motive approach for Title VII and 
made clear that plaintiffs can establish a violation of the law 
by demonstrating that discrimination is a motivating factor for 
an employer's decision, even if other factors also motivated 
the decision.
    Under the 1991 Act, the burden of showing that the employer 
would have made the same decision rests appropriately on the 
employer. An employer that meets this standard may nonetheless 
limit the individual relief that is available to the plaintiff.
    H.R. 3721 would adopt this standard for the ADEA and other 
laws. Legislation like this bill would strike an appropriate 
and workable balance between enabling courts to prevent and 
deter future violations of the law, on the one hand, and 
preserving employers' freedom to make non-discriminatory 
decisions on the other.
    It would make clear that discrimination is prohibited in 
employment in whole or in part. It would provide the same 
protections from intentional discrimination that are available 
under Title VII to victims of discrimination on other bases.
    It would thereby create unity in the law, renew the ability 
of older workers and others to effectively challenge 
discrimination against them, and move us closer to realizing 
the law's promise of equal employment opportunity.
    The Department of Justice looks forward to providing 
technical assistance on the bill and to working with the 
Committee to achieve these goals.
    Thank you again for inviting me to testify today. I look 
forward to your questions.
    [The prepared statement of Ms. Samuels follows:]
                 Prepared Statement of Jocelyn Samuels



                               __________

    Mr. Nadler. Thank you. I will begin the questioning by 
recognizing myself for 5 minutes. Ms. Samuels, as a practical 
matter, what does the Gross ruling mean in terms of the scope 
of protection against discrimination for older workers under 
ADEA and more broadly, given that the lower courts have already 
applied the Gross ruling and reasoning to a variety of other 
laws?
    Ms. Samuels. Thank you very much for that question, 
Chairman Nadler. As I mentioned in my statement, the Gross 
decision has had numerous troubling consequences, both under 
the ADEA and under the laws to which courts have extended it.
    Initially, of course, the Gross decision reduces the 
protections available to age discrimination plaintiffs. They 
are now subject to a new burden that they had never had to bear 
under all of the precedent that pre-dated the Gross decision. 
Namely the obligation to prove that age is a ``but for'' cause 
of discrimination.
    That makes it harder for plaintiffs to prevail in cases 
even in which employers admit that they have relied on age 
discrimination and reduces court's power to enjoin age 
discrimination in the future. That, of course, also reduces the 
deterrent effect of the law.
    In addition, the fact that other courts have extended Gross 
to laws like the Americans With Disabilities Act or the Jury 
Systems Improvement Act, suggests that under those laws, 
protections for plaintiffs that Congress intended to protect 
will be similarly reduced.
    The decision also creates tremendous confusion and the 
possibility of endless litigation about the standards that 
should apply going forward.
    Mr. Nadler. Let me ask you at this point, if the ``but 
for'' standard were left alone in the law, does that basically 
preclude recovery in most cases? Is it like the strict scrutiny 
standard which almost nothing ever meets?
    Ms. Samuels. Well, I think that plaintiffs can prevail if 
they are able to show that age or another prohibited basis is a 
``but for'' cause of discrimination, and that has long been an 
available theory of discrimination under Title VII and other 
laws. And plaintiffs have been able to win their cases. That 
said----
    Mr. Nadler. But rarely.
    Ms. Samuels [continuing]. The Supreme Court decision in 
Gross makes it substantially more difficult to prevail in the 
all too common situation in which employers act based on a 
combination of quotas.
    Mr. Nadler. Now, we have talked about the fact that we now 
have different causation standards, apparently, in ADEA and 
Title VII, and a variety of different meanings for the same 
words in the same phrase because of we are ``on the basis of.'' 
Is there any good that can come of that? Is there any good 
reason to have different meanings ascribed in different laws 
passed for the same purpose, to the same phrase?
    Ms. Samuels. I think that unity in the law is a very 
important goal and one that has been recognized by the Court in 
prior cases. As Justice Stevens noted in his dissent, Title VII 
has provided the model for interpretation of the ADEA since the 
ADEA was enacted.
    And there is substantial indication that Congress has 
intended the ADEA and other anti-discrimination laws that use 
identical language to Title VII to be interpreted in the same 
way.
    Mr. Nadler. Now, do you think that H.R. 3721, as drafted, 
adequately restores the basic presumption that when Congress 
prohibits discrimination or retaliation because of or on the 
basis of the protective characteristic or conduct should be 
deemed irrelevant and not considered in whole or in part? I 
mean, is the language in this bill adequate to its purpose or 
should it be improved in some way?
    Ms. Samuels. The Department of Justice would be delighted 
to work with the Committee. As you know, these are technical 
issues related to burdens of proof and the way in which courts 
conduct trials. We are very supportive of the goals of this 
legislation and would be delighted to provide assistance to 
make sure that it accomplishes Congress' intent.
    Mr. Nadler. But you see no problem glaring out that will 
negate it.
    Ms. Samuels. I am sorry, no problem?
    Mr. Nadler. Glaring out. It is not on its face inadequate?
    Ms. Samuels. I think that the legislation is clear in its 
intent to overturn the Gross decision and to impose standards 
analogous to those under the Civil Rights Act of 1991 for Title 
VII and is effective in doing that.
    Mr. Nadler. Okay. Finally, in your testimony you say that 
although the bill is generally couched in terms of an amendment 
to the ADEA, we note that there is broader language at one 
point that suggests application to all Federal laws and 
constitutional provisions, barring employment discrimination 
and retaliation. ``Broader language that suggests,'' do you 
think that language should be tightened up?
    Ms. Samuels. I think that, you know, as you noted in your 
statement and I did in mine, courts have extended the reasoning 
of the Gross decision to numerous other laws and it is 
important to address the effects of those laws. We would be 
happy to talk about the most effective way to ensure that the 
legislation addresses all of the ways----
    Mr. Nadler. Adequately addresses then.
    Ms. Samuels [continuing]. That Gross has created problems.
    Mr. Nadler. All right, I think we will have to work 
together on that. And I think that is it. I thank you. I yield 
back the balance of my nonexistent time at this point.
    I now recognize the distinguished gentleman from Virginia, 
Mr. Scott.
    Mr. Scott. Thank you. Ms. Samuels, you indicated it is 
harder, but is it possible to prove a case if the defendant 
doesn't admit or you have somebody on the inside admit that 
there was discrimination that would have made the difference?
    Ms. Samuels. Well, the problem with the Gross decision, of 
course, is that even if the employer does admit that it relied 
in part on age discrimination, there is nothing that a 
plaintiff can do about it because the Supreme Court has said 
that there is no mixed-motive framework.
    Certainly putting the burden on the plaintiff to prove that 
age was--that the employer would not have made the same 
decision anyway, requires the plaintiff to have access to 
information that is often only in the possession of the 
employer.
    Mr. Scott. So if the employer doesn't admit or turn over 
evidence it would be virtually impossible under present 
standards to prove discrimination?
    Ms. Samuels. I don't want to say it would be impossible 
because unfortunately under the Gross decision that is the 
situation that plaintiffs confront, but it is substantially 
more difficult for them.
    Mr. Scott. Well, under the law in other cases if you have 
made your case and accused them of discrimination and they come 
back with an explanation which turns out to be bogus, a 
pretext, what happens in that case?
    Ms. Samuels. Well, that standard, which was the one adopted 
by the Supreme Court in the McDonnell Douglas decision says 
that there are shifting burdens of producing evidence. And if 
the plaintiff makes a prima facie case that a discriminatory 
basis was part of the reason, the employer gets to produce 
evidence of a legitimate nondiscriminatory reason.
    Under those cases the plaintiff has the burden of showing 
that the employer's reason is in fact a pretext for 
discrimination. Unfortunately, the Court in Gross suggested 
that there might be some doubt about whether the McDonnell 
Douglas standard applies under the Age Discrimination in 
Employment Act, something that had not previously been 
questioned.
    Mr. Scott. And so if you have one of the other cases, if 
you show the pretext just wasn't true then that can be used as 
evidence that there was in fact discrimination. Is that right?
    Ms. Samuels. Yes.
    Mr. Scott. And would this bill restore that idea?
    Ms. Samuels. This bill would make clear that that framework 
of analysis which has prevailed under Title VII for the last 40 
years also clearly applies under the ADEA.
    Mr. Scott. Now, in terms of discrimination with faith-based 
organizations, it is--discrimination is allowable, but is it 
not faith-based organizations running Federal programs where 
they can be running a Federal program and decide not to hire 
Catholics or Jews if they don't want to? Is that the present 
law?
    Ms. Samuels. Well, under Title VII religious organizations, 
and there is a, you know, very carefully defined universe of 
entities that would be qualified to be religious organizations, 
can restrict their hiring to co-religionists. That said, the 
often----
    Mr. Scott. Or they can exclude people. I mean it is not 
just internal.
    Ms. Samuels. They can restrict hiring to co-religionists. 
They can't discriminate based on sex, ethnic origin and----
    Mr. Scott. Well, I mean they can hire everybody they want 
except certain groups. It is not inclusive. It is also 
exclusive. Is that right?
    Ms. Samuels. Title VII provides that authorization to 
religious organizations.
    Mr. Scott. Now, it used to be the law that if you are 
running a federally-funded program you had to comply with 
ordinary anti-discrimination provisions. Is that right?
    Ms. Samuels. Yes.
    Mr. Scott. And if you are running a federally-funded 
program today can the religious organizations running a 
federally-funded program discriminate based on religion?
    Ms. Samuels. Representative Scott, I am not able to tell 
you today what the state of the law is on that. I know that 
there have been concerns expressed about interpretations of the 
government, and I would be happy to take those concerns back.
    Mr. Scott. What prohibition would there be? You said they 
are not covered by Title VII. They are not covered by Title VI. 
What is it--where would they be covered? It used to be 
Johnson's executive order from 1965 that the Bush 
administration undermined in the early in their Administration. 
What prohibition is there against discrimination based on 
religion?
    Ms. Samuels. Well, there is obviously a constitutional 
level of protection that bars the government from establishing 
religion or from preventing the free exercise of religion. So 
to the extent that employment discrimination----
    Mr. Scott. If someone were to come to your department and 
say that I was discriminated against when I applied for a job 
paid for with Federal money, and they told me that I wasn't the 
right religion, what would your reaction be?
    Ms. Samuels. My reaction would be to consult my colleagues 
back at the Department of Justice so that we could provide 
assistance and input on that question.
    Mr. Scott. So you are not clear as to whether or not that 
is legal or not.
    Ms. Samuels. I am aware that the Office of Legal Counsel at 
the Department of Justice has issued an opinion on this 
question, and that that has been in existence for the last 
number of years.
    Mr. Nadler. Could you ask her to find out and let her 
submit it for the record?
    Mr. Scott. The Chairman has asked me to have you inquire to 
your colleagues to ascertain whether or not a faith-based 
organization running a federally-funded program can have a 
policy of not hiring Catholics and Jews.
    Ms. Samuels. I would be happy to take that inquiry back.
    Mr. Nadler. Would the gentleman yield?
    Mr. Scott. I yield.
    Mr. Nadler. Thank you. Let me add to that. Would there be 
anything to prevent a religious group, the whatchamacallit 
church, getting federally-funded grants to state that its 
religion bars hiring anybody over the age of 60?
    Ms. Samuels. As I mentioned, the exemption given in Title 
VII is only to permit religious organizations to hire co-
religionists. It does not authorize----
    Mr. Nadler. Oh, it is to hire----
    Ms. Samuels [continuing]. Any other form of discrimination.
    Mr. Nadler [continuing]. Excuse me. I thought it was to not 
to enable them only to hire co-religionists, but to enable them 
not to have to hire people against their faith.
    Ms. Samuels. I----
    Mr. Nadler. For example, I mean--for example, we don't tell 
the Catholic Church you have got to hire women as priests. It 
is none of our business, obviously, and that is not co-
religion. The women are Catholics, too. So it is not just co-
religionists obviously.
    Ms. Samuels. Right. There is a specific ministerial 
exemption in the law for, for example, Catholic priests. But 
whether faith-based organizations could exclude people based on 
age, I am aware of no law that would authorize them to do that.
    Mr. Nadler. Thank you.
    Mr. Scott. Would the Chairman yield?
    Mr. Nadler. Yes. I yield back the time to the gentleman 
from Virginia.
    Mr. Scott. Yes. If, however, it were a manifestation of the 
religion if you are hiring people from your youth choir, then 
you could essentially exclude people of age. If you are hiring 
people from just your co-religionists in a congregation that is 
racially homogeneous, that would have racial implications. Is 
that right?
    Ms. Samuels. I, you know, I think under the Age Act there 
is a reasonable factor other than age defense. How that would 
apply in that situation is something that I think we would have 
to look at. And obviously there is a disparate impact cause of 
action that is available under Title VII that would cover all 
of the bases covered by Title VII.
    Mr. Scott. Well, I think a lot of this will be--we will get 
to the bottom of this when you inquire with your colleagues 
whether or not a faith-based organization running a federally-
funded program with Federal money, hiring people being paid for 
with Federal money, can have a policy of ``we don't hire 
Catholics and Jews.''
    Ms. Samuels. I would be delighted to inquire further on 
that matter.
    Mr. Nadler. Okay. Thank you. The gentleman's time has 
expired, and if there are no further questions the witness is 
excused with our thanks. And we will ask the--oh, hold on. The 
Chairman wants to----
    Mr. Conyers. Well, I just wanted to ask permission for our 
counsel, Heather Sawyer----
    Mr. Nadler. I am sorry.
    Mr. Conyers [continuing]. To ask a couple questions?
    Mr. Nadler. I recognize our counsel. The witness has a few 
more questions.
    Ms. Sawyer. Okay, great. Thank you, Mr. Chairman. This is a 
treat indeed. Ms. Samuels, some commentators have suggested 
that plaintiffs and employees in age discrimination cases can 
actually be better off under the Gross ruling because it 
removes what has been termed ``the same decision affirmative 
defense,'' whereby an employer bears the burden of showing, as 
you explained, that it would have reached the same decision 
anyway.
    And I just wanted to give you the opportunity to explain 
whether or not there is any way in which you could see the 
Gross ruling both in the context of ADEA and more broadly being 
an advantage to employees?
    Ms. Samuels. Thank you for that question. I vehemently 
disagree that the Gross ruling is a boon to plaintiffs or are 
in any way advantages them in employment discrimination suits. 
What the Gross ruling does is to increase the burden on the 
plaintiff.
    Under pre-Gross treatment of the law by every Federal 
appellate court that had looked at it, the defendant, if the 
plaintiff showed that age was a motivating factor for a 
decision, the defendant had the burden of proving that it would 
have made the same decision anyway.
    That burden has now been put on the plaintiff. So the 
plaintiff has to prove the negative, that the employer would 
not have made the same decision absent the discrimination. This 
does not mean the--eliminating the affirmative defense idea 
does not mean that the employer is--that the plaintiff 
therefore wins.
    What it means is the requirement of the showing whether the 
decision would have been made or not absent age has now been 
shifted to the plaintiff. It has not disappeared from the case. 
It is put on a party less well-equipped to make that showing 
than the employer.
    In cases following Gross numerous cases have dismissed 
claims in which age discrimination plaintiffs have relied on 
mixed-motive jury instructions. In those cases where courts 
have reversed trial court ruling for the defendants, plaintiffs 
have been able to prevail despite the Gross ruling, not because 
of it.
    Mr. Nadler. Do you have any questions? Okay.
    Thank you very much. Who? I am sorry. Counsel has one other 
question.
    [Laughter.]
    Ms. Sawyer. I am sorry about that. One last question, you 
had spoken at some length about the fact that the Gross 
decision has now spread out to laws beyond ADEA. And I was 
wondering whether or not you have seen the lower courts also 
applying that reasoning and ruling to claims where a plaintiff 
brings a claim that may allege multiple or more than one 
unlawful reason, so an age claim and a race claim, a claim that 
is age and gender. Have you seen that and how has it played 
out?
    Ms. Samuels. Well, I think that this is a particularly 
unfortunate extension of the Gross decision that there are 
various lower courts that have misinterpreted Gross, which held 
that age--plaintiffs had to prove that age was a ``but for'' 
factor, to instead mean that plaintiffs have to show that age 
is a full factor for the decision.
    This cuts particularly cruelly in cases in which a 
plaintiff alleges, and there have been some in the lower 
courts, that the employer's decision is based on two prohibited 
considerations, age and race, for example.
    There is a case in which the court has dismissed the 
plaintiff's age claims because the plaintiff also alleged race 
discrimination. And the court said that since the plaintiff had 
to show that age was the sole cause pursuant to Gross, she 
could no longer proceed with the age-based claim.
    Ms. Sawyer. And so that is something that is a new and 
different standard that has come out of this decision?
    Ms. Samuels. It is a new and different standard that 
imposes extraordinary constraints on plaintiffs, who in fact 
may have been subject to discrimination on multiple prohibited 
bases under the laws.
    Mr. Nadler. It sort of rewards a triple malefactor.
    Ms. Samuels. It creates that kind of incentive.
    Mr. Nadler. Okay. I thank you, and I thank the witness, and 
we will now proceed with our second panel. Oh, I am sorry. Wait 
a minute.
    I recognize another Member of the Subcommittee. I recognize 
for 5 minutes the gentlewoman from California.
    Ms. Chu. Thank you, Mr. Chair. I wanted to ask about the 
fact that the Gross decision involved a claim under ADEA, but 
the Court also invited the lower courts to extend its reasoning 
beyond the ADEA to other laws. Has this happened? Can you 
provide some examples of where Gross has been applied outside 
ADEA?
    Ms. Samuels. Yes, thank you, Congresswoman for that 
question. As I mentioned in my statement, the Gross decision 
has led to the dismissal of numerous ADEA claims, but it also 
quite unfortunately has been applied well beyond the ADEA, to 
the Americans with Disabilities Act, the Employee Retirement 
Income Security Act, to 42 USC Section 1983, to the Jury 
Service Improvements Act.
    And troublingly in some cases, even though courts have 
rejected the idea that Gross applies under the statutes, they 
have raised the question. So for example, under the Family and 
Medical Leave Act there are opinions that question whether or 
not a mixed-motive cause of action is still available under 
those laws.
    Ms. Chu. And let me ask about the increasing numbers of age 
discrimination claims. According to the AARP, 24,580 
discrimination claims were filed in 2008, and that is 29 
percent increase over 2007. That is double the increase of 
overall discrimination charges, which include claims by race, 
sex and disability.
    Why was there such an increase in age discrimination claims 
in 2008, and how does this compare to 2009?
    Ms. Samuels. Well, let me make clear, the Department of 
Justice doesn't enforce the Age Discrimination in Employment 
Act, but the EEOC, which does enforce it, has testified that 
there has been a dramatic increase in the number of age 
discrimination charges that have been filed.
    I believe that they have submitted to the Senate Health, 
Education, Labor and Pensions Committee information on the 
levels of those charges in both 2008 and 2009. You know, 
obviously this is of tremendous concern, particularly in this 
economy where it is critical to ensure that protections against 
age discrimination are robust.
    Older workers, given the economy, may have to stay in the 
workforce longer and unfortunately there continues to be 
stereotypes and barriers that face older workers that the ADEA 
was intended to root out. And that is the reason that this 
legislation or legislation like it is so critical, to ensure 
that the protection under the law is as robust as Congress 
intended it to be.
    Ms. Chu. In fact, do you think the recession and all the 
layoffs played a part in the increase in these age 
discrimination complaints?
    Ms. Samuels. I have not seen studies to that effect, but I 
think that given the recession and the fact that numerous 
workers need to remain in the workforce longer makes it all the 
more critical that we ensure robust protection of the law.
    Ms. Chu. Okay, thank you. And I yield back.
    Mr. Nadler. Yes, thank you. And I just want to note before 
ending this panel that we will submit for the record the EEOC 
and Senate testimony and the EEOC and AARP Senate testimony for 
the record.
    [The information referred to follows:]
    
    
    


                              ----------                              


    Mr. Nadler. And while I have said that we have been joined 
by yet another Member of the Subcommittee.
    I now recognize the gentleman from Georgia for 5 minutes.
    Mr. Johnson. Thank you, Mr Chairman, and I will defer my 
questions until the very end.
    Mr. Nadler. This is the very end of this----
    Mr. Johnson. Mr. Chairman is----
    Mr. Watt. Well, since he is deferring could I just ask one 
question?
    Mr. Nadler. The gentleman from North Carolina.
    Mr. Johnson. Well, I will waive my right to speak after 
transferring it to my colleague from North Carolina.
    Mr. Watt. I just wanted one point of information, the 
number of cases that Justice has filed under the age 
discrimination provisions since the Gross decision?
    Ms. Samuels. The Department of Justice doesn't have the 
authority to file cases under the Age Discrimination in 
Employment Act. Those cases are brought by the EEOC.
    Mr. Watt. Do you track how many cases the EEOC has filed?
    Ms. Samuels. We do not separately track that, but the EEOC 
certainly has that information.
    Mr. Watt. Okay. Without tracking it do you have some idea? 
I mean, do you have that information even though you don't 
track it?
    Ms. Samuels. Well, I know that the Chair of the EEOC, 
Jacqueline Berrien, testified several weeks ago before the 
Senate Health, Education, Labor and Pensions Committee and did 
make note in her testimony and follow-up questions of the 
dramatic increase in the number of age discrimination charges 
that have been filed.
    Mr. Watt. That wasn't the question I asked. I assume that 
that response was about the number of age discrimination 
charges that have been filed with the EEOC. I am asking the 
number of lawsuits that have been filed?
    Ms. Samuels. The number of age discrimination lawsuits that 
have been filed?
    Mr. Watt. Right.
    Ms. Samuels. I don't know the answer to that, but I would 
be happy to take that back and look into the matter.
    Mr. Watt. That would be very helpful if you could do that 
and provide the information to us. Thank you.
    Ms. Samuels. I would be happy to do so.
    Mr. Watt. I yield back.
    Mr. Nadler. I thank the gentleman. And finally I will say 
the witness can be excused with our thanks. We will now proceed 
with our second panel. And I would ask the witnesses to take 
their place. In the interest of time I will introduce the 
witnesses while they are taking their seats.
    Jack Gross was--I am informed, was an intern once, to 
answer your question, but we will have to let that go by. Jack 
Gross was the plaintiff in the recent Supreme Court case Gross 
v. Farm Bureau Financial Services.
    In 2003 he was demoted from his position as director of 
claims administration at FBL. This was despite having 
performance reviews in the top 5 percent of the company for the 
prior 13 consecutive years. Mr. Gross filed his age 
discrimination suit in 2003 and won a jury verdict in 2005, 
which was subsequently overturned on appeal. Mr. Gross is a 
graduate of Drake University.
    Eric Dreiband--is that Dreiband or Dreiband?
    Mr. Dreiband. Dreiband.
    Mr. Nadler. Eric Dreiband is currently a partner at the 
Jones Day law firm. From 2003 to 2005, Mr. Dreiband served as 
the general counsel of the U.S. Equal Employment Opportunity 
Commission.
    Before becoming EEOC general counsel he served as deputy 
administrator of the U.S. Department of Labor's Wage and Hours 
Division from 2002 to 2003. He earned a J.D. from Northwestern 
University Law School and a B.A. from Princeton University.
    Helen Norton is an associate professor at the University of 
Colorado Law School, where she teaches and writes on issues 
related to constitutional law, civil rights and employment 
discrimination law.
    Ms. Norton previously served as deputy assistant attorney 
general for civil rights at the U.S. Department of Justice, 
where she managed the Civil Rights Division employment 
litigation, educational opportunities and coordination and 
review sections. She holds a J.D. from Boalt School of Law at 
the University of California, Berkeley and a B.A. from Stanford 
University.
    I am pleased to welcome you all. Your written statements 
will be made part of the record in their entirety. I would ask 
each of you to summarize your testimony in 5 minutes. To help 
you stay within that time there is a timing light at your 
table. When 1 minute remains the light will switch from green 
to yellow, and then red when the 5 minutes are up.
    It is customary for the Committee to swear in its 
witnesses.
    Let the record reflect that the witnesses answered in the 
affirmative. You may be seated, and I will recognize first Mr. 
Gross. And please make sure the light is on at your mic.

            TESTIMONY OF JACK GROSS, DES MOINES, IA

    Mr. Gross. There we go. Okay. Thank you, Chairman Nadler 
and Conyers for inviting me here to tell my story and state my 
position regarding the outcome of the Supreme Court in my case 
Gross v. FBL.
    It is an honor for me to be here and to be given this 
opportunity to speak out on behalf of millions of older 
workers, all too many of whom, like myself, have experienced 
age discrimination in the workplace.
    While my name has now become associated with age 
discrimination, my story is being duplicated millions of times 
across this country. I ask that you envision those millions of 
citizens who are depending on you as standing behind me today. 
I certainly never imagined 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 
supervisor or higher positions. I was included in that 
wholesale sweep, even though I had 13 consecutive years of 
performance reviews in the top 3 to 5 percent of my company, 
and had dedicated most of my working career to making Farm 
Bureau a better company.
    My contributions were exceptional, and they were well-
documented for the jury. Since age was the obvious reason I 
filed a complaint and 2 years later a Federal jury spent a week 
listening to all the testimony, seeing all the evidence and 
being instructed in the law, your law, the ADEA.
    The verdict came back in my favor, and I thought the ordeal 
was over in 2005. As we now know, that was just the beginning. 
FBL appealed and the verdict came back, and the 8th Circuit 
overturned my verdict because I had received a mixed-motive 
jury instruction.
    And they said that required so-called direct evidence 
instead of just the preponderance of circumstantial evidence 
that we had provided. That left us no choice but to appeal it 
to the Supreme Court.
    We were elated when the Court accepted certiorari on that 
one issue because 30 years of precedent and legislation were 
overwhelmingly on our side.
    At the hearing, however, the Supreme Court broke with their 
own protocol and allowed the defense to advance an entirely new 
argument, one that had not been briefed nor had we been given 
an opportunity to prepare a rebuttal.
    In effect they pulled a bait and switch on us, accepting 
cert on our question and then ignoring it to water down the 
clear intent of the ADEA by creating a hierarchy of 
discrimination.
    Those that were specifically named in Title VII were at the 
top hierarchy and required a lower standard of evidence, and 
age and all the others were at a lower tier and now required a 
new and significantly higher standard of proof.
    I believe Congress, the branch of government closest to the 
people, intended to abolish discrimination in the workplace not 
to create exceptions for it. My wife and I came to D.C. last 
June believing our highest court would uphold the rule of law 
and consistently apply it to all areas of discrimination.
    We were disappointed and quite frankly disillusioned by 
their arrogance in putting their own ideology ahead of the 
clear will of Congress and decades of their own precedents. 
Since the Court's decision 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 that is now being inflicted not only on older 
workers, but now victims of many other types of discrimination, 
because it is nearly impossible to provide the level of proof 
now required by this Court.
    I have to keep reminding myself that I am not the one who 
changed your law. Five justices did. Congress has a long 
history of working together on a bipartisan basis to create and 
maintain a level playing field in the workplace. The ADEA is 
but one example.
    I urge you on behalf of myself and the millions of other 
older workers from both parties, who simply want to continue 
working, to again rise to the challenge in that same bipartisan 
spirit you demonstrated before on civil rights issues to pass 
the Protecting Older Workers Against Discrimination Act.
    I grew up in a small town in southern Iowa. My dad was a 
highway patrolman, my mother a school teacher. I overcame 25 
years of chronic health problems to achieve my education and 
success.
    My wife, Marlene, to whom I have been married for 43 years 
and I, started with absolutely nothing but a strong work ethic 
and a determination to build a good life together. And we did 
so against all odds. We have two wonderful grown children and 
two granddaughters who are the great joys of our lives.
    I am here before you as a man who agonized over the 
decision to pursue this case. As much as I hate discrimination 
in all its forms, this was a company I had poured my heart and 
soul into for most of my adult life, and I knew that I would be 
burning my career bridges once I was labeled as litigious.
    Marlene and I prayed about it, decided it had to be done, 
and then left the outcome in God's hands, never expecting he 
would bring us here.
    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.
    [The prepared statement of Mr. Gross follows:]
                    Prepared Statement of Jack Gross




                               __________

    Mr. Nadler. Thank you.
    Mr. Dreiband, you are recognized for 5 minutes.

       TESTIMONY OF ERIC S. DREIBAND, PARTNER, JONES DAY

    Mr. Dreiband. Thank you. Good morning, Chairman Nadler and 
Chairman Conyers and Members of the Committee. My name is Eric 
Dreiband and I thank you and the entire Committee for affording 
me the privilege of testifying today.
    I am here 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 say 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 
protections for many individuals. In fact, the Court's decision 
does not eliminate any protection 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 
decision'' or same action defense and it therefore deprived 
entities that engage in age discrimination of this defense. For 
this reason, since the Gross decision, 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, sixth, seventh, eighth, 9th, 10th and 11th 
Circuits have relied upon the Gross decision to rule in favor 
of alleged discrimination victims.
    Second, the bill, as written, will restore the ``same 
action'' defense eliminated by the Gross decision. As a result, 
discrimination victims may prove that a protected trait such as 
age was a motivating factor for the 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 a motivating factor claim, but the alleged 
victim will get nothing, no job, no money, no promotion--
nothing.
    A discrimination 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. The bill 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.
    And 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 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 and the United States 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, the only statue at issue in Mr. Gross' case, or 
at a minimum listing the laws that Congress intends to amend.
    I would note in this regard that the recently enacted Lilly 
Ledbetter Fair Pay Act of 2009 specifically identified the laws 
that it amended, and Congress can do the same here.
    Thank you. And I look forward to your questions.
    [The prepared statement of Mr. Dreiband follows:]
                 Prepared Statement of Eric S. Dreiband



                               __________

    Mr. Nadler. Thank you.
    And I recognize Ms. Norton for 5 minutes.

 TESTIMONY OF HELEN NORTON, ASSOCIATE PROFESSOR, UNIVERSITY OF 
                      COLORADO LAW SCHOOL

    Ms. Norton. And thank you, Mr. Chairman and Members of the 
Subcommittee for inviting me to testify today. The Supreme 
Court's decision in Gross significantly undermines older 
workers' ability to enforce their rights under the ADEA, and it 
threatens to do the same for workers seeking to enforce their 
rights under a wide range of other Federal anti-discrimination 
laws.
    In response, H.R. 3721 would replace the Court's new rule 
in Gross with Title VII's longstanding causation rule, a rule 
that more effectively furthers Congress' interest in 
dismantling barriers to equal opportunity.
    Current Federal law prohibits job discrimination ``because 
of'' certain characteristics. For example, the ADEA prohibits 
employers from discriminating against an individual because of 
such individual's age. Now, of course, employment decisions, 
like so many human decisions, are sometimes driven by multiple 
motives.
    And these mixed-motive cases raise a causation challenge. 
When multiple reasons motivate an employment decision, some of 
which are discriminatory and some of which are not, under what 
circumstances should we conclude that the employer made such a 
decision ``because of'' discrimination in violation of Federal 
law?
    The Supreme Court's decision in Gross departed from nearly 
20 years of precedent on this question to articulate a brand 
new causation standard for the ADEA. And it vacated Mr. Gross' 
jury award, a jury award that had been issued based on 
instructions that were consistent with longstanding case law.
    Under the Court's new rule, which adopts an approach 
rejected both by an earlier Supreme Court in its 1989 Price 
Waterhouse decision and by Congress in the Civil Rights Act of 
1991, the burden of persuasion always remains on the plaintiff, 
not only to prove that age motivated the decision, but also to 
prove that age was the ``but for'' cause of the decision.
    Now, requiring the plaintiff to bear the burden of proving 
that age was the ``but for'' cause of an action requires him or 
her to not only prove that age was a motivating factor, but 
also to prove that the employer would not have taken the same 
adverse action if it had not engaged in age discrimination.
    Bearing the burden of proving what the employer would not 
have done in such an imaginary scenario is especially difficult 
for the plaintiff, as the defendant obviously has greater 
access to information about its state of mind in such a 
situation.
    As lower courts have repeatedly confirmed and emphasized, 
Gross now erects substantial new barriers in the path of older 
workers seeking to enforce their rights to be free from age 
discrimination. And as Mr. Gross' own case makes clear, the 
Court's new rule can strip discrimination victims.
    Mr. Gross proved that he was a victim of age 
discrimination. Nonetheless, the Court's new rule can strip him 
and other victims of hard fought victories. And my written 
statement offers other examples as well.
    Moreover, the Gross rule undermines Congress' efforts to 
stop and deter workplace discrimination by permitting an 
employer under some circumstances entirely to escape liability 
for a workplace infected by bias. And here is an example.
    An older worker applies for a job for which she is 
qualified, only to be rejected after being told by her 
interviewer that he prefers not to hire older workers because 
he considers them to be less productive, less creative and 
generally less energetic.
    Suppose, too, that that employer ultimately hires another 
applicant who is arguably even more qualified for the position 
than the plaintiff. Under Gross, even if the plaintiff can 
prove that the employer relied on inaccurate and stigmatizing 
age-based stereotypes in its decision to reject her, the 
employer will escape ADEA liability altogether unless the 
plaintiff can also prove the employer would not have rejected 
her if it had not engaged in age discrimination.
    Unless the plaintiff can prove this hypothetical negative, 
the Gross rule permits an employer completely to avoid 
liability for its proven bias with no incentive to refrain from 
similar discrimination in the future.
    Gross threatens workers' rights to be free from 
discrimination and retaliation in a wide range of other 
contexts as well. And in fact, lower courts increasingly 
understand Gross to be the default rule in Federal litigation.
    In other words, they increasingly interpret Gross to mean 
that mixed-motive claims are never available to plaintiffs 
under Federal statutes unless and until Congress expressly 
provides otherwise. And for this reason lower courts now apply 
Gross to a growing number of Federal statutes in addition to 
the ADEA.
    In response, H.R. 3721 would replace the Gross rule with a 
uniform causation standard that would apply to the ADEA and 
other Federal laws that prohibit discrimination and 
retaliation. It would replace Gross with the same standard 
adopted by Congress with respect to Title VII in 1991.
    H.R. 3721 thus rejects the Gross Court's unreasonable 
demand that a plaintiff who successfully proves that 
discrimination did in fact motivate the decision, must bear the 
additional burden of proving that some other factor was not in 
the defendant's mind.
    Furthermore, as Congress recognized in the Civil Rights Act 
of 1991, this approach best prevents and deters future 
discrimination by ensuring that employers proven to have 
engaged in discrimination can be held liable for their actions.
    Again, thank you for inviting me to join you today, and I 
look forward to your questions.
    [The prepared statement of Ms. Norton follows:]
                   Prepared Statement of Helen Norton



                               __________

    Mr. Nadler. Thank you. And I will begin the questioning by 
recognizing myself for 5 minutes. Ms. Norton, unlike Title VII, 
the ADEA does not have a statutory provision recognizing mixed-
motive claims. Can you explain briefly how and why mixed-motive 
claims previously were recognized under the ADEA?
    Ms. Norton. Yes, certainly. Most anti-discrimination 
statutes include a key phrase ``because of.'' In other words, 
they prohibit discrimination because an employee has a certain 
characteristic, like race or age, or because an employee 
engaged in a certain protected action like----
    Mr. Nadler. Could you use perhaps Mr. Dreiband's mic? Yours 
doesn't seem to be functioning properly. Was she on the mic? 
And turn yours off. Okay. I am sorry, proceed.
    Ms. Norton. It is commonplace for Federal law to prohibit 
discrimination ``because of'' a certain characteristic like 
race or age or because an employee engaged in a certain 
activity, like Federal jury service or reporting possibly 
illegal behavior.
    In Price Waterhouse in 1989, the Supreme Court interpreted 
that phrase, what does it mean for an employer to discriminate 
``because of'' sex? And the Supreme Court held that that means 
an employer cannot rely on sex in whole or in part and created 
the motivating factor mixed-motive framework.
    The ADEA uses the same phrase. It prohibits employers from 
discriminating ``because of'' age. So not surprisingly and 
without dissent, since Price Waterhouse, all lower courts have 
assumed that Congress meant the same phrase to mean the same 
thing in different anti-discrimination statutes.
    Mr. Nadler. And also since Price Waterhouse Congress saw no 
necessity for spelling it out since it was clear.
    Ms. Norton. Correct. And in fact, Congress codified that 
standard in the Civil Rights Act of 1991.
    Mr. Nadler. Now, Mr. Dreiband takes a position that 
plaintiffs are better off under the Gross ruling, and cites the 
several post-Gross rulings to support his claim. Are you 
familiar with those cases and do you reach the same or 
different conclusion as Mr. Dreiband's?
    Ms. Norton. I haven't seen Mr. Dreiband's statement for 
today, but I have seen his statement from the Senate, and I see 
that they are largely similar. I disagree. I disagree about all 
of those cases with care, and I do not believe they support the 
assertion for which they are cited.
    In fact, a number of them explicitly confirm the fact that 
Gross poses a more onerous, more stringent causation standard 
on plaintiffs than does Price Waterhouse. And they went on to 
rule for the plaintiffs because they found that the plaintiff's 
evidence of discrimination was sufficiently strong that it 
could satisfy any causation standard, including the more 
onerous standard.
    Several of the other cases cited actually distinguish 
Gross, making clear that they will continue to rely on Price 
Waterhouse in statutes other than the ADEA. So rather than 
relying on Gross they, in fact, declined to rely on Gross.
    Mr. Nadler. So could you comment on the following couple of 
sentences in Mr. Dreiband's testimony as to whether you agree 
or disagree and why? He said, ``Before the Gross decision, age 
discrimination defendants could prevail, even when they 
improperly consider the 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 and 
since the Gross decision issue, the Federal courts have 
repeatedly ruled in favor of age discrimination plaintiffs and 
against defendants.
    Ms. Norton. Mr. Dreiband characterizes Gross as eliminating 
a defense that had been available to plaintiffs and that had 
been available to defendants. And he argues that that is 
beneficial to plaintiffs. But at what--it is important to 
understand what Gross did.
    It replaced the Price Waterhouse rule, the Price Waterhouse 
rule that required at some point the defendants to bear the 
burden of proving that they would have made the same decision 
absent age discrimination. If you are a litigant you want the 
other party to bear the burden of proof because that means the 
other party bears the burden of any uncertainty.
    You especially want the other party to bear the burden of 
proof when the other party is the one that has access to 
information that is key to that issue. For example, if the 
issue is the other party's state of mind, you want the other 
party to bear the burden of proof as to his or her state of 
mind.
    So by eliminating the burden shifting mechanism that Price 
Waterhouse established and that Congress codified with respect 
to the Civil Rights Act of 1991, Gross ensured that the burden 
never shifts to the defendant.
    And the plaintiff must bear the burden not only of proving 
that age was a motivating factor, but also that some other 
factor did not or would not have motivated the employer's 
decision in the hypothetical, the imaginary scenario in which 
age did not play a role.
    If I could just complete my earlier answer in terms of the 
cases cited in Mr. Dreiband's Senate testimony, he also cites a 
number of cases in which the courts, lower courts cite Gross 
but then go on to decide for the plaintiffs under McDonnell 
Douglas. So they are certainly relying not on Gross but on 
longstanding ADEA and anti-discrimination law to reach its 
conclusion.
    There is one case that Mr. Dreiband dites in that statement 
that I do agree can be characterized as relying on Gross to 
find for plaintiffs, the Mora case. But I think if you look 
closely at that case that you will see that the plaintiff's 
evidence in that case was so strong it would have survived any 
causation standard before or after Gross.
    And in fact the court in that case did rely on mixed-motive 
cases, Price Waterhouse cases, to reach that conclusion.
    Mr. Nadler. Can you submit the citations of these cases for 
the record? Or rather, I am sorry, can you cite your analysis 
of these cases for the record?
    Ms. Norton. Yes, sir.
    Mr. Nadler. Thank you. I have one more question. Do you 
agree that there is no ``meaningful remedy'' where an employer 
succeeds in bearing the burden of proving the mixed-motive 
``same decision'' defense?
    Ms. Norton. No, sir, I do not agree. First of all, H.R. 
3721 would provide to full relief, full relief damages, 
reinstatement, et cetera, so plaintiffs like Jack Gross and 
other victims like him who prove that their employer acted 
based on age or some other prohibited discrimination.
    And where their employers, as was the case with Mr. Gross, 
cannot prove that they would have made the same decision absent 
age discrimination fully, that Mr. Gross prevailed under the 
existing Price Waterhouse instructions. He would have prevailed 
under H.R. 3721. He would have been entitled to full relief.
    Even in those cases in which both the plaintiff and the 
defendant meet their burdens of proof under the framework 
articulated under H.R. 3721, so even those cases where the 
plaintiff, like Mr. Gross, proves that age was a motivating 
factor and the defendant, unlike the defendant in Mr. Gross' 
case, can also prove that it would have made the same decision 
absent age.
    H.R. 3721, unlike the Gross rule, ensures that declaratory 
and injunctive relief and partial attorney's fees and costs 
will still remain available. This is hugely important to 
achieving the deterrent purpose of anti-discrimination law.
    Anti-discrimination laws as the Supreme Court has 
repeatedly recognized, has two purposes: to compensate victims 
of discrimination for the losses that they have suffered 
because of discrimination, and to serve the larger public 
purpose of stopping and deterring discrimination.
    And as the Supreme Court has repeatedly emphasized, 
injunctive relief, which this bill would make possible once the 
plaintiff has proved that age played a role in the decision, 
injunctive relief is key to ensuring that--to vindicating the 
important public interest in deterring discrimination 
regardless from and apart from any monetary remedy to the 
plaintiff.
    Mr. Nadler. Thank you. I will now recognize--my time is 
expired.
    I will now recognize the gentleman from Arizona for 5 
minutes.
    Mr. Franks. Well, thank you, Mr. Chairman. Thank you all 
for being here.
    Mr. Dreiband, let me, if I could, I was interested in if 
you had any response to Ms. Norton's--some of her analyses of 
your own Senate testimony? Just give me an idea of what your 
response might be to that?
    Mr. Dreiband. Let me see if this is on. Okay. Professor 
Norton and I, I think, respectfully disagree. The Mora case 
decision by the United States Court of Appeals to the 11th 
Circuit is an example I think where we may part company, as is 
Mr. Gross' case itself.
    I would note that under the pre-existing Price Waterhouse 
standard a unanimous United States Court of Appeals ruled 
against Mr. Gross because the court said he failed to present 
direct evidence of discrimination, which is a necessary 
requirement established by the Price Waterhouse v. Hopkins 
decision that apparently Professor Norton thinks is a better 
rule than is the Supreme Court's decision.
    He lost under that standard. And in the Mora case that 
Professor Norton cited, I would note that in that case the 
plaintiff was an individual named Josephine Mora, the chief 
executive officer of her employer made comments to her and 
about her that he needed someone younger than her.
    And yet under the pre-existing standard that governed her 
case, that is the standard that governed before the Gross 
decision, the district court granted summary judgment in favor 
of the employer and said she did not even have a right to 
present her case to a jury.
    The United States Court of Appeals for the 11th Circuit 
read the Supreme Court's decision in Gross and concluded that 
this so-called ``same decision'' or same action defense that 
existed under the Price Waterhouse framework is no longer 
available to employers. And so the Court reversed the decision 
and sent the case back to the trial court for a trial.
    Now, let me clarify one other point that I think Chairman 
Nadler made about my remarks. I did not mean to suggest that 
Mr. Gross is better off today as a result of the Supreme 
Court's decision than he was after the jury's verdict.
    Certainly the Supreme Court did not reinstate the jury's 
verdict that the court of appeals reversed, but nevertheless, 
the notion that the Gross decision is some, you know, part of 
some master plan to assault working people or to increase 
burdens on plaintiffs is simply not being borne out by the 
cases that we have seen since the decision came down.
    Mr. Franks. Well, like, I guess it is in a sense for me it 
is the scope of H.R. 3721 that concerns me. Despite its title, 
Protecting Older Workers, the bill seems to go far beyond 
simply adopting the mixed-motive Price Waterhouse mode of proof 
to the ADEA and protecting older workers in general.
    But it seems that in actuality the bill would adopt this 
standard to a range of Federal laws including the ADEA and any 
other ``Federal law forbidding employment discrimination'' at 
all or discrimination against an individual participating in 
any federally protected activities, like perhaps even the 
whistleblower law and perhaps statutes ranging from labor 
relations laws including those with extensive case law 
interpretive history such as the National Labor Relations Act 
and the Labor Management Reporting and Disclosure Act.
    You know, just innumerous whistleblower statutes in 
entirely different areas of law. I mean there is just a--it 
seems like there is a host of areas that this could affect. Can 
you give me some idea of whether or not you think this is or 
could be problematic, and why should we be cautious before 
taking such a sweeping act here in the form of H.R. 3721?
    Mr. Dreiband. Yes. I think, yes. The bill does not identify 
the laws that it intends to amend. This is very different than 
the approach the Congress took in 2009 when Congress enacted 
the Lilly Ledbetter Fair Pay Act and explicitly identified the 
laws that Congress intended to change.
    It would not be difficult to amend the bill to simply list 
the statutes that Congress intends to amend as a result of the 
bill. That could be done very easily.
    I think if Congress decides not to do that and enacts the 
bill in this form, what we are likely to see then will be 
unnecessary litigation between the plaintiffs and defendants 
who will argue whether or not the bill amends to the particular 
law that they are litigating over.
    Let me give you an example. The Fair Labor Standards Act 
which sets standards for the minimum wage, for overtime 
payments, for child labor and other wage issues, does not 
explicitly say that this is a law forbidding employment 
discrimination.
    One section of the bill, though, prohibits employers from 
discriminating against people if they cooperate, for example, 
with the United States Department of Labor in an investigation 
or testify.
    The bill as written here it is unclear about whether this 
bill would apply to the Fair Labor Standards Act or not, or 
whether it might apply to parts of it or not. And I think if 
the bill is enacted in its current form what we are likely to 
see are several years of courtroom fights over that question 
and litigation over that question with no benefit to victims of 
discrimination.
    No benefit to unions or employers who have to spend 
unnecessarily amounts of money and attorney's fees in order to 
get a decision ultimately from the Supreme Court and that could 
come, you know, decades later. And so I think it is a very real 
concern but one that I think Congress can fix very easily.
    Mr. Franks. Well, thank you, and thank you Mr. Chairman. I 
think I got my full 5 minutes, but the light didn't go from 
green to red so I don't know.
    I was just going to--I think I am fine. I think you kind of 
answered the question. Is there any additional examples of 
unintended negative consequences that could result when the 
laws other than ADEA might be impacted in a way by this 
legislation?
    Mr. Dreiband. Well, I think, if I understand the question, 
I think the concern is that in many areas of the law like in 
the National Labor Relations Act, which regulates relationships 
between unions and employers, that the law is well-established 
on questions about the so-called mixed-motive framework.
    Very often that is a result of either statutes or case law, 
and I think that the bill is written because it does not 
identify the laws which it would amend, would call into 
question as to whether or not the existing state of the law is 
changed at all by this bill or not.
    And my own view is I don't see how that, the uncertainty 
that that would create helps anybody. I mean, victims of 
unlawful conduct or unions or employers, but one I would 
encourage the Congress to think and give some thought to to 
correct if it can, if it will.
    Mr. Franks. Thank you. And thank you, Mr. Chairman for 
indulging me. I obviously have some concerns with the bill on 
broader terms, but it might be at least worth considering 
making sure it is specified as to what other statutes that this 
affects.
    Mr. Nadler. Thank you.
    I will now recognize the gentleman from North Carolina for 
5 minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    Mr. Gross, you have been sitting there quietly as lawyers 
have been sparring. Can you just tell us what the current 
status of your case is? I assume you had to go back and re-
litigate the--or was it resolved?
    Mr. Gross. Yes. Actually what the Supreme Court did was to 
vacate what the 8th Circuit had done. And so that means we are 
basically headed back to a new trial. I think it is November 
8th of this year. This is going to be nearly 8 years after the 
original act, over 5 years since the first trial. And we don't 
know right now what the standard of rule is going to be until 
Congress takes an action on this.
    Mr. Watt. Are you still employed by this employer?
    Mr. Gross. I was until December of last year.
    Mr. Watt. You retired?
    Mr. Gross. Yes, I had been experiencing retaliation since I 
filed this suit for 7 years, and my wife and I had to have a 
little heart to heart talk about whether the stress was still 
worth it or not. And we had decided to retire.
    Mr. Watt. Mr. Dreiband, I wasn't clear from your testimony 
of whether you were of the opinion that we should be doing 
nothing legislatively or whether you just have some concerns 
about the content of this. What is your position on whether we 
should be trying to at least make consistent the standard in 
ADEA cases and other Title VII cases?
    Mr. Dreiband. And in other--I am sorry, what was that?
    Mr. Watt. Title VII cases.
    Mr. Dreiband. Well, as I understand the bill it would not 
change Title VII.
    Mr. Watt. No, I am not asking you what----
    Mr. Dreiband. Right.
    Mr. Watt [continuing]. Your understanding of the bill is. I 
am just asking you whether you think we should be doing 
anything in this area, or you think we should be doing nothing?
    Mr. Dreiband. I don't believe that the Supreme Court's 
decision changes anything, so I, as a result, my recommendation 
would be to do nothing.
    Mr. Watt. So you are saying that a plaintiff like Mr. Gross 
should have to prove the negative that the employer would not 
have done this ``but for'' this. That is what you are saying?
    Mr. Dreiband. That is not what I am saying.
    Mr. Watt. As opposed to the employer having to come forward 
and submit evidence on that?
    Mr. Dreiband. No. No, that is not what I am saying. If I 
could clarify?
    Mr. Watt. Okay. Well, I am trying to get clarification. It 
is just----
    Mr. Dreiband. Right, okay. Well it is----
    Mr. Watt [continuing]. It is not a trick question. I am 
just trying to find out what your----
    Mr. Dreiband. Right, I understand, but----
    Mr. Watt [continuing]. Opinion is.
    Mr. Dreiband. No. I don't accept the premise of the 
question, respectfully. The standard that governs a so-called 
``but for'' causation generally speaking means the plaintiff 
has to prove that the prohibited characteristic, in this case 
age, was a determining factor. The jury instructions in the 8th 
Circuit, which govern Mr. Gross' case has defined determining 
factor as not the only factor.
    Mr. Watt. Mr. Dreiband, I appreciate your taking my 5 
minutes to explain the laws to me. I am just asking a simple 
question. You don't think the burden should ever shift to the 
defendant in the case when defendant has really access to the 
information about what their own motivation?
    You don't think that there should ever be a shifting of 
that, of that burden to the defendant? Is that what--or you do?
    Mr. Dreiband. Well, there are times when the burden under 
affirmative defenses will shift to a defendant in a 
discrimination case.
    Mr. Watt. Okay. I am asking in this case, in Mr. Gross' 
case, do you think there should--in ADEA cases should there 
ever be a time when that burden shifts?
    Mr. Dreiband. Yes.
    Mr. Watt. Okay. All right, fine. Okay, that is all I am 
trying to find out. I don't, so I mean so there is no sense in 
us arguing about--so now, let me just ask one other question 
and maybe you will be more direct.
    Do you think I am trying to trick you? I am not. I am just 
trying to make sure that I understand what the witnesses are 
saying and who are testifying here because we have got to make 
some decisions about this going forward.
    I didn't understand the point you were making about this 
only benefitting lawyers as opposed to benefitting plaintiffs. 
Explain that to me.
    Mr. Dreiband. The bill would essentially transform the 
Title VII mixed-motive framework into the Age Discrimination in 
Employment Act. What that means is that as a general matter, if 
a plaintiff proves the motivating factor standard and the 
employer carries its same action or ``same decision'' defense, 
the plaintiff wins nothing.
    The only award that the plaintiff gets is that the court 
will order the defendant to pay a portion of the attorney's 
fees, which means the attorney may get some money, but the 
plaintiff doesn't.
    Mr. Watt. But if the plaintiff wins the case you are saying 
there is no difference here? Or is there a difference?
    Mr. Dreiband. If the plaintiff wins under a, let us call it 
the determining-factor standard, the plaintiff gets a job, 
money, promotion, potentially liquidated damages. If the 
plaintiff wins under the mixed-motive framework and the 
employer establishes its affirmative defense, that plaintiff, 
Mr. Gross in this case, will not get anything--nothing, no job, 
no money, no promotion, nothing. And----
    Mr. Watt. Ms. Norton maybe you can help me understand that. 
I don't for the life of me understand what Mr. Dreiband is 
saying. Maybe you understand it better. I mean I haven't done 
any employment discrimination cases since at least 1992 when I 
got elected here. So maybe you understand better what he is 
saying.
    Ms. Norton. I can't speak for Mr. Dreiband. I will offer my 
observations with respect to Mr. Gross under this bill, if this 
bill is in effect by the time Mr. Gross' new trial takes place. 
It is currently scheduled for November.
    The Supreme Court's decision had the result of stripping 
him of his jury verdict of $47,000 in lost compensation and 
ordered him to undergo a new trial under the Gross rule's more 
difficult causation standard.
    But if Congress is able to enact this bill before his new 
trial, he will be entitled to full relief if he has to do this 
again, if he again proves that age was a motivating factor in 
his demotion, and if his employer again fails to prove that it 
would have demoted him even apart from his age.
    But even if--this is a hypothetical because it hasn't 
happened--but even if his employer could prove, could have 
proved that it would have demoted him regardless of age, under 
H.R. 3721 that would ensure that he would get injunctive 
relief, stopping the employer from continuing discrimination 
and retaliation.
    As Mr. Gross testified, he remained employed, although 
demoted, at FBL at the time of his trial through the Supreme 
Court's case and through this last December. Under H.R. 3721, 
he would have been protected by an injunction from continuing 
discrimination and retaliation. That is very valuable, and the 
public would have benefitted from a court order stopping that 
discrimination.
    Mr. Watt. Okay. I think I understand it now. I thank you, 
Mr. Chairman.
    I thank you, Mr. Dreiband. I am sure you made an effort. I 
just didn't understand what you were saying. I wasn't ignoring 
you or trying to cut you off. But I am just trying to 
understand what the state of the law is now, and so I yield 
back.
    Mr. Nadler. Thank the gentleman.
    I now recognize the gentleman from Virginia for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Ms. Norton, Mr. Dreiband suggested that the case didn't do 
that much. Can you remind us about the damage done in this 
case?
    Ms. Norton. I am sorry, Congressman. I didn't hear you.
    Mr. Scott. What Mr. Dreiband said that the case didn't do 
that much. Mr. Gross' case didn't do that much damage. Can you 
remind us of the damage the case did?
    Ms. Norton. Well, in Mr. Gross' case he lost his $47,000 
jury verdict compensating him for lost pay and benefits and now 
will have to face retrial currently under a much more difficult 
causation standard.
    I will give you another example. Dr. LilliAnn Jackson, 
Williams-Jackson, a public school guidance counselor, alleged 
that she had been demoted because of her Federal jury service 
because she was away from work serving her civic duty as a 
juror and that her employer punished her as a result of it. And 
she alleged a violation of the Jury Systems Improvement Act.
    The trial court agreed that Dr. Jackson had substantially 
greater credibility than the defendant, and the trial court 
agreed that Dr. Jackson had proven that she was the victim of 
discrimination, that her jury service was in fact a motivating 
factor in her demotion.
    However, the trial court says, ``We are obliged to apply 
Gross.'' Gross requires Dr. Jackson to also prove that the jury 
service was the ``but for'' cause, and that Dr. Jackson could 
not bear the burden of proving there was not some other reason, 
like budgetary reasons, for her demotion.
    The trial court made clear that Gross was the difference 
between winning and losing for Dr. Jackson.
    Mr. Scott. Can you say a word about the requirement for 
direct evidence in the case? When is direct evidence needed?
    Ms. Norton. Yes, sir. Sir, direct evidence is generally 
characterized as evidence that leaves no doubt as to the role 
of discrimination in the decision. It is basically a 
confession. When an employer says, ``I am firing you because of 
your age.'' It is very powerful evidence, but as you can 
imagine, it is also very rare.
    Much more common in all types of cases, criminal cases, 
civil cases, employment discrimination cases, is circumstantial 
evidence, which can take any of a number of forms: suspicious 
timing, different comparative evidence, different folks treated 
differently when it doesn't appear that they should be treated 
differently, hostile remarks, et cetera.
    In almost all areas of the law, plaintiffs are permitted to 
offer whatever evidence they have, and it is up to the fact 
finders, the jury to determine whether or not it is sufficient. 
This bill would make clear that that is also the case with 
respect to all employment discrimination complaints, including 
and not limited to Age Discrimination in Employment Act cases.
    There had been a split in the lower courts as to whether or 
not a plaintiff needed direct evidence of age discrimination to 
get a mixed-motive instruction. And this bill would clarify 
once and for all that circumstantial as well as direct evidence 
is sufficient for a plaintiff to establish that discrimination 
was a motivating factor.
    Mr. Scott. Can you say a word about the same decision, how 
that plays out? Whether or not that is a defense, if you have 
done the same thing to others?
    Ms. Norton. This bill would make clear, first of all, that 
the plaintiff has established a violation once he or she has 
proved that discrimination was a motivating factor, there is a 
violation of law.
    It also permits, however, the employer not to escape 
liability but to limit its remedies if it can then bear the 
burden of proving that it still would have made the same 
decision even in the hypothetical situation in which it did not 
engage in age discrimination.
    If the employer is able to make out that defense then it 
doesn't have to reinstate the plaintiff. It doesn't have to pay 
out damages. It is subject to an injunction stopping it from 
any continuing discrimination or retaliation. And it is subject 
to partial attorney's fees and costs to compensate the 
plaintiff for establishing discrimination.
    Mr. Scott. In Title VII. So that if you have a policy of 
discriminating but the plaintiff couldn't prove that they were 
a victim of that policy you would essentially have no damages, 
but you can show that you can stop the ongoing discrimination. 
And that would be the benefit to the public.
    Ms. Norton. Yes, sir.
    Mr. Scott. Mr. Dreiband, isn't that a benefit if you have a 
policy of discrimination and the person who appears to be a 
victim but turns out can't prove their case? Can't prove his or 
her case? Isn't it a benefit to enjoin the ongoing policy of 
discrimination?
    Mr. Dreiband. Certainly if an employer has an ongoing 
policy or pattern or practice of discrimination, yes, I agree 
entirely that that practice or policy or pattern should be 
enjoined.
    I think the reality, though, is as we have seen in the 
Title VII context, is that because there are no damages 
available to the individuals that individuals, including the 
government, the Equal Employment Opportunity Commission, rarely 
if ever assert a mixed-motive claim.
    I mean I, you know, when I served as general counsel at the 
Equal Employment Opportunity Commission I was involved in 
hundreds of cases. And I am not aware of a single mixed-motive 
Title VII that EEOC brought. And I have spoken with other EEOC 
lawyers who have served there for many years and theyr'e not 
aware of any cases either.
    So I agree with you and I agree with Professor Norton that 
certainly an injunction that prohibits such a policy is in the 
public interest. I have never seen a case where an employer 
maintains such a policy or pattern or practice of 
discrimination and a plaintiff couldn't demonstrate that they 
were a victim of that. Normally they do demonstrate that.
    Mr. Scott. Well, but I think in Mr. Gross's case they said 
they demoted everyone over a certain age. Isn't that right Mr. 
Gross? Now, the individual plaintiff might not be able to show 
that their demotion was because of that policy. All they know 
is they were demoted along with everybody else.
    And so if they would bring the case, assuming that they 
would have benefits, but if it gets thrown out nobody else can 
enjoy the benefits of an injunction.
    Mr. Dreiband. Well, but even in the kind of case that you 
have described there is a whole different essentially class 
action framework under a 1977 Supreme Court case. Not the 
mixed-motive framework but the so-called pattern or practice 
framework that governs those cases.
    And certainly the Supreme Court of the United States has 
said that in that kind of case that a court has authority 
separate and apart from the mixed-motive provisions to enjoin 
an ongoing pattern or practice of discrimination even if the 
particular or some individuals are not victimized by it and so 
that would be unaffected by the bill.
    Mr. Nadler. Would the gentleman yield for a moment?
    Mr. Scott. I yield the balance of my time.
    Mr. Nadler. Thank you. Ms. Norton, you said that there was 
on the question of direct and circumstantial evidence there was 
some split in the lower courts. I just want you to clarify in 
the Desert Palace v. Costa case, didn't the Supreme Court 
clarify that at least with respect to Title VII cases the Court 
clarified that with respect to Title VII and mixed-motive case 
you could use direct or circumstantial evidence?
    Ms. Norton. That is correct.
    Mr. Nadler. And the point is that H.R. 3721 would confirm 
that and extend it to non-Title VII or to all cases.
    Ms. Norton. That is correct. And the Desert Palace case is 
also an excellent example in response to Congressman Scott's 
question. It is an example of a plaintiff who brought a mixed-
motive claim under Title VII, under the Congress' 1991 
standard, a mixed-motive claim, and proved that sex was a 
motivating factor in her termination.
    The employer could not prove that it would have fired 
regardless of her sex, and she received full relief. That is 
the standard that would be available to Mr. Gross and some of 
the plaintiffs under this bill as well.
    So it is a further illustration of the fact that this bill 
in fact ensures that plaintiffs and the public have access to 
the full range of meaningful remedies once discrimination is 
proven.
    Mr. Nadler. Thank you.
    I now recognize the gentleman from Georgia for 5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman.
    Mr. Dreiband, is it not a fact that the Title VII mixed-
motive precedent, that that precedent did not apply to ADEA 
claims? That was not the reason why the U.S. Supreme Court 
granted certiorari. Is that true?
    Mr. Dreiband. Yes. The Supreme Court----
    Mr. Johnson. Not the--you say yes?
    Mr. Dreiband. Well----
    Mr. Johnson. I just need a yes or no answer to that 
question.
    Mr. Dreiband. So is the question about whether the Title 
VII, if that applies to the age discrimination laws?
    Mr. Johnson. Yes. In other words the U.S. Supreme Court did 
not grant cert on that issue in the Gross case, is that 
correct?
    Mr. Dreiband. If I understand the question, the answer is 
yes.
    Mr. Johnson. Okay. And in fact the Supreme Court granted 
cert to settle a circuit split on the issue of whether or not 
plaintiffs must present direct evidence in an ADEA case in 
order to receive a mixed-motive jury instruction. Is that 
correct?
    Mr. Dreiband. Yes.
    Mr. Johnson. Then the U.S. Supreme Court without having the 
parties either brief the issue that was ultimately decided, 
which was that this mixed-motive framework does not apply to 
ADEA cases. Nobody briefed that issue before the Court, 
correct?
    Mr. Dreiband. I believe that to be correct, although I have 
not personally reviewed all the briefs. But I believe that is 
correct.
    Mr. Johnson. Okay. Now, that to me, to take on a case for 
one reason and then to decide it based on another reason, that 
it is not what I would call properly before the Court, 
constitutes a clear case of judicial activism. Would you agree?
    Mr. Dreiband. It certainly is unusual to do that. That I 
would agree. You know, whether you would call it judicial 
activism, I will leave that to others. It is unusual.
    Mr. Johnson. Yes.
    Ms. Norton, would you agree with that?
    Ms. Norton. I agree it is ill-advised to decide an issue 
that has not been adequately briefed by all the parties in the 
case.
    Mr. Johnson. Do you think there is legislation could 
perhaps be imposed that would prevent the U.S. Supreme Court 
from engaging in this kind of practice which seems to be 
becoming a trend?
    Ms. Norton. I will have to think about that. I know for 
sure that you can enact legislation that would solve the 
problem that the Supreme Court created in Gross with this bill.
    Mr. Johnson. Well, it goes a little beyond my question. Let 
me ask you, Mr. Dreiband, do you think that the legislative 
branch has the authority to prevent scenarios, procedural 
scenarios from occurring such as the one that we are speaking 
of that occurred in the Gross litigation?
    Mr. Dreiband. I don't--I think like Professor Norton, I am 
not sure. I don't know whether Congress has the authority to do 
that or not. It is possible. I just haven't thought about that 
or looked at that question.
    Mr. Johnson. Yes. It seems rather disturbing to me that we 
could get a clear case of judicial activism which can go 
unrestrained, that we can ignore judicial and legislative 
precedent and legislative intent via unchecked judicial 
activism, which I would also say constitutes legislating from 
the bench.
    What do you have to say about that, Ms. Norton? Legislating 
from the bench, is this a clear case of that?
    Mr. Dreiband. Well, it was the question directed at me or?
    Mr. Johnson. Well, yes, Ms. Norton.
    Mr. Dreiband. Oh.
    Ms. Norton. So I am hesitating because I am not sure what 
legislating from the bench means in this context. I agree that 
this----
    Mr. Johnson. Well, it means overturning legislative intent 
in a case where that issue has not even been set forth by the 
parties to be decided by the Court.
    Ms. Norton. Well, I certainly do wish very much that the 
Supreme Court had answered the question on which it granted 
cert. I wish it had answered the question that had divided the 
lower courts as to whether or not a plaintiff can get a mixed-
motive instruction in an ADEA case with circumstantial 
evidence.
    If the Court had answered that question we wouldn't be here 
today, and I am actually pretty confident Mr. Gross would still 
have his jury verdict. So I certainly wish that they had 
answered the question that they granted certiorari on.
    Mr. Johnson. Thank you. You are very diplomatic, Ms. 
Norton.
    Mr. Dreiband, if you would answer the question I would 
appreciate it.
    Mr. Dreiband. Well, certainly I think there are times when 
the Supreme Court engaged in what you have described as 
legislating from the bench. This particular case is not unique 
in that respect.
    Mr. Johnson. And that is kind of troubling to me. Is it to 
you?
    Mr. Dreiband. Well, it certainly is, you know, I would 
agree that it is troubling when the Supreme Court engages in 
the type of decision making that is--after the Congress of the 
United States. I certainly agree with that.
    Mr. Johnson. And you are disagreeing that the Congress of 
the United States should even deal with this particular issue 
to clarify it and to etch it into stone by way of legislation?
    Mr. Dreiband. Well, that is not--no. That is not--I don't 
think the bill is going to change a lot if it is enacted----
    Mr. Johnson. Well, it should----
    Mr. Dreiband [continuing]. With the exception of the 
uncertainty that it will create because it doesn't identify the 
laws it enacts. But in terms of what happens in actual cases, I 
think the Title VII mixed-motive framework is instructive, 
which is while there are occasional cases they are very rare.
    And what I would encourage the Committee to do is what you 
could easily do is go ask the Equal Employment Opportunity 
Commission how many mixed-motive cases the EEOC has brought 
since 1991. And what you would find is it is----
    Mr. Johnson. Well, it would certainly----
    Mr. Dreiband [continuing]. Almost none.
    Mr. Johnson [continuing]. Mr. Gross and his lawyers brought 
one and actually prevailed.
    Mr. Dreiband. Well, they----
    Mr. Johnson. As other plaintiffs have done under the then 
current state of the law----
    Mr. Dreiband. If----
    Mr. Johnson [continuing]. If it was changed by judicial 
activism, if you will.
    Mr. Dreiband. Well, but that ignores what happened in the 
United States Court of Appeals, though. I mean, under the 
existing standard he lost in a unanimous decision before the 
Court of Appeals.
    That is my point. I mean, but as the bill is written, 
Congress can enact it, I mean, but what you will find in 
enacting it is that very few plaintiffs will pursue it.
    And the best example of that or the best evidence of that 
is that what we have seen from the Equal Employment Opportunity 
Commission in nearly 20 years since Title VII codified the 
mixed-motive standard, that that agency, which has brought 
thousands of cases, has filed very few mixed-motive cases, very 
few.
    Mr. Johnson. Yes.
    Mr. Nadler. Just on your observation that Mr. Gross lost in 
the Court of Appeals. He lost on the question of the direct 
versus the circumstantial evidence, but had the Court of 
Appeals followed the Title VII Price Waterhouse decision, I am 
sorry.
    Had the Court of Appeals followed the Desert Palace 
decision he would have won on that point, and this bill would 
clarify that the courts have to apply that standard from Title 
VII also.
    So had this bill been in--so had the court followed the 
Desert Palace case he would have won in the Court of Appeals. 
Had this bill been in effect he would have won in the Court of 
Appeals, correct, because this bill clarifies that the direct 
and circumstantial evidence can be used elsewhere as it is in 
Title VII?
    Ms. Norton. I am sorry. Is that directed----
    Mr. Nadler. I was asking Mr. Dreiband. I mean----
    Mr. Dreiband. I am sorry. Oh, I thought it was to Professor 
Norton.
    Mr. Nadler. No, I was asking you. I mean, you said that 
this bill would not have affected Mr. Gross' situation because 
he lost in the Court of Appeals.
    The point is had the Court of Appeals followed the Desert 
Palace decision or had this bill been in effect, both of which, 
that is the Desert Palace decision and this bill, say that you 
apply the direct answer--you can use either direct or 
circumstantial evidence in other laws as you can in Title VII, 
he would have won the Court of Appeals.
    Mr. Dreiband. Well, certainly--look, I agree the problem 
was the Price Waterhouse decision itself and this establishment 
of this direct evidence standard. So to that extent I encourage 
the Congress to act. That I agree with.
    Mr. Nadler. So you agree with that part of the bill.
    Mr. Dreiband. Yes. The problem though is that very few 
cases will be brought under the mixed-motive standard as a 
result. I mean, Mr. Gross is here. I would ask him if he 
prevails would he want to pursue this----
    Mr. Nadler. Yes. Well, if that is the case what is wrong 
with allowing it?
    Mr. Dreiband. What is that?
    Mr. Nadler. If very few cases will be brought under the 
mixed-motive provision, what is the harm of allowing it as the 
bill would do?
    Mr. Dreiband. Oh, the only harm in that will happen if you 
enact the bill in my judgment is the fact that you don't define 
which statues the Congress----
    Mr. Nadler. All right. Then let me ask you my last 
question----
    Mr. Dreiband. Otherwise I agree. There is no harm.
    Mr. Nadler [continuing]. And with Mr. Johnson's continued 
indulgence, let me ask you my last question which I was going 
to ask certainly.
    Mr. Johnson. Certainly, Mr. Chairman.
    Mr. Nadler. Thank you. You expressed, sir, concern that the 
legislation is not sufficiently specific with respect to the 
laws it reaches. You have said that several times. It is a 
valid point, but we are in a bit of a bind here.
    While Gross itself was an ADEA case, the Court did invite 
the lower courts to expand the ruling beyond the ADEA and 
placed no limit on the laws to be reached. As a result, we have 
seen decisions in a wide variety of contexts ranging from jury 
service to First Amendment to disability discrimination.
    Do you have any suggestions for how we might clarify in 
Title VII's causation standard should apply broadly?
    Mr. Dreiband. Is this question directed at me?
    Mr. Nadler. Yes.
    Mr. Dreiband. Okay. Yes. What I think is that the Congress 
could simply list the statutes that it intends to enact in the 
same way that the Congress did last year in the Lilly 
Ledbetter----
    Mr. Nadler. The problem with that--excuse me--but the 
problem with that, I mean, that is an obvious thing to do, but 
the problem with that is that in Gross the Court invited lower 
courts to expand the ruling wherever they want to expand it 
basically.
    It placed no limit on the laws to be reached. So if we name 
10 laws and if we say this is now to apply, the danger is that 
the courts will expand it to an 11th or 12th or 15th that we 
didn't think of. How do we deal with that problem? That is my 
real question.
    Mr. Dreiband. Yes, that is a legitimate concern. I think 
what I would say to the Congress, though, is who do you want 
making that decision? Do you want the Supreme Court that you 
don't like because of the Gross decision, or can Congress 
itself make that decision?
    And that is the problem that I see here without identifying 
the laws is you are essentially condemning victims to spending 
money fighting over whether the bill applies to the law that 
they are seeking relief under or not. And I don't see that 
doing any good for anyone.
    Mr. Nadler. Well, what about a clause that says you shall 
apply broadly unless Congress specifically says otherwise? How 
would you feel about that?
    Mr. Dreiband. It would say what, that it----
    Mr. Nadler. There should be--the Gross standard, the Gross 
standard--the provision that we are writing into the bill shall 
be applied to all laws except where Congress specifically says 
otherwise, except where the statute by its terms specifically 
says no.
    Mr. Dreiband. So it would apply to all laws in the United 
States Code unless the law says otherwise? Is that it?
    Mr. Nadler. All laws where this is applicable, in other 
words, where the question is causation and so forth. Or in 
other words all laws where the question is causation of 
discrimination, you have the ``but for'' standard, et cetera. 
Wherever that is the question this shall apply unless Congress 
specifically says to the contrary.
    Mr. Dreiband. Okay. Well, I would have to give that some 
thought. The question I would have, though, is do you mean as I 
understand, as the Title VII standard currently exists that it 
would be an alternative.
    In other words you could assert a claim without mixed-
motive and pursue the one framework which currently exists 
under Title VII or alternatively the mixed-motive. And so this 
would be an alternative under all the other laws or?
    Mr. Nadler. Okay.
    Mr. Dreiband. But I would have to think about it and----
    Mr. Nadler. All right. You are entitled to think about it. 
If you want to submit an opinion in writing after the 
Committee, after the hearing, we would be happy to review it.
    I thank you, and I yield back to the gentleman from 
Georgia. And I thank him for his indulgence.
    Mr. Johnson. And I yield the balance of my time, and thank 
you, Mr. Chairman.
    Mr. Nadler. Ah, okay. I think that is it. Well, thank you 
all. Without objection all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses which we will forward. And ask the witnesses to 
respond as promptly as they can so that their answers can be 
made part of the record.
    Without objection all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record. 
And with that I want to thank the witnesses and the Members and 
this hearing is adjourned.
    [Whereupon, at 11:49 a.m., the Subcommittee was adjourned.]







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