[Senate Hearing 111-1122]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 111-1122
 
                  ENSURING FAIRNESS FOR OLDER WORKERS 

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

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                                   ON

EXAMINING S. 1756, TO AMEND THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 
           1967 TO CLARIFY THE APPROPRIATE STANDARD OF PROOF

                               __________

                              MAY 6, 2010

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions


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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                       TOM HARKIN, Iowa, Chairman

CHRISTOPHER J. DODD, Connecticut           MICHAEL B. ENZI, Wyoming
BARBARA A. MIKULSKI, Maryland              JUDD GREGG, New Hampshire
JEFF BINGAMAN, New Mexico                  LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington                   RICHARD BURR, North Carolina
JACK REED, Rhode Island                    JOHNNY ISAKSON, Georgia
BERNARD SANDERS (I), Vermont               JOHN McCAIN, Arizona
SHERROD BROWN, Ohio                        ORRIN G. HATCH, Utah
ROBERT P. CASEY, JR., Pennsylvania         LISA MURKOWSKI, Alaska
KAY R. HAGAN, North Carolina               TOM COBURN, M.D., Oklahoma
JEFF MERKLEY, Oregon                       PAT ROBERTS, Kansas
AL FRANKEN, Minnesota
MICHAEL F. BENNET, Colorado
                                       
                                       

                      Daniel Smith, Staff Director

     Frank Macchiarola, Republican Staff Director and Chief Counsel

                                  (ii)

  




















                            C O N T E N T S

                               __________

                               STATEMENTS

                         THURSDAY, MAY 6, 2010

                                                                   Page
Harkin, Hon. Tom, Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming, 
  opening statement..............................................     2
Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont, 
  statement......................................................     4
Berrien, Jacqueline, Chair, Equal Employment Opportunity 
  Commission, Washington, DC.....................................     5
    Prepared statement...........................................     7
Casey, Hon. Robert P., a U.S. Senator from the State of 
  Pennsylvania...................................................    15
Hagan, Hon. Kay R., a U.S. Senator from the State of North 
  Carolina.......................................................    18
Gross, Jack, CPCU, CLU, ChFC, Des Moines, IA.....................    21
    Prepared statement...........................................    23
Norton, Helen, Professor, University of Colorado Law School, 
  Boulder, CO....................................................    24
    Prepared statement...........................................    26
Aldrich, Gail, Board of Directors, AARP, Genoa, NV...............    34
    Prepared statement...........................................    35
Dreiband, Eric S., Partner, Jones Day, Washington, DC............    39
    Prepared statement...........................................    40

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Response to questions of Senator Harkin by:
        Jacqueline Berrien.......................................    65
        Helen Norton.............................................    67
    Response to questions of Senator Enzi by:
        Helen Norton.............................................    75
        Eric S. Dreiband.........................................    76

                                 (iii)

  


                  ENSURING FAIRNESS FOR OLDER WORKERS

                              ----------                              


                         THURSDAY, MAY 6, 2010


                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                   Washington, D.C.
    The committee met, pursuant to notice, at 10:19 a.m. in 
Room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin, 
Chairman of the Committee, presiding.
    Present: Senators Harkin [presiding], Enzi, Franken, Casey 
and Hagan.


                  Opening Statement of Senator Harkin

    The Chairman. The Senate Committee on Health, Education, 
Labor and Pensions will please come to order.
    I apologize for being late. As you know, we had a vote on 
the floor that started at 10 o'clock.
    We have convened this hearing to examine the issue of 
employment discrimination against older workers and the need, 
in the face of a very misguided and harmful Supreme Court 
decision, to enact legislation to ensure that older workers are 
treated with the fairness they deserve.
    We will hear today from my fellow Iowan, Jack Gross. Jack 
devoted the prime of his life, over a quarter of a century of 
loyal service, to one company. And how did the company reward 
him for his dedication and hard work? It brazenly demoted him 
and other employees over the age of 50, and gave his job to a 
younger employee, who was significantly less qualified.
    Over 40 years ago, expressly to prevent this kind of 
discrimination, Congress passed the Age Discrimination in 
Employment Act. Very simply, that act made it unlawful to 
discriminate on the basis of age.
    When Mr. Gross sought to enforce his rights under this law, 
a jury ruled in his favor and concluded that age had been a 
motivating factor in his demotion.
    Yet, when his case was appealed to the Supreme Court, a 
slim activist majority of five justices overturned the jury 
verdict and decided to rewrite the law.
    For decades, the law was clear: If an employee showed that 
age was one factor in an employment decision, the burden was on 
the employer to show it had acted for a legitimate reason other 
than age.
    The court, however, addressing a question it did not even 
grant certiorari on, tore up this decades-old standard and 
imposed a new standard that the Supreme Court itself had 
rejected in a prior case and which Congress had rejected when 
we enacted the Civil Rights Act of 1991.
    The timing of the court's decision is particularly 
troubling. Older workers have been particularly hard hit by the 
tough economy. According to the Department of Labor, over 2-
million workers over age 55 are unemployed, an all-time high 
since they began matching age and unemployment in 1948. The 
average duration of unemployment for older job seekers is twice 
as long as for other unemployed workers.
    According to EEOC statistics--and I think we'll hear more 
about that from our witness--more than 45,000 charges of age 
discrimination were filed in 2008 and 2009. That's three times 
more than just a decade ago.
    So for decades, we had a consistent standard. 
Unfortunately, because of the court's decision, there's now a 
far higher standard of proof for age than for other forms of 
discrimination.
    The legislation I have introduced--S. 1756, Protecting 
Older Workers Against Discrimination Act--would reverse the 
court's deeply-flawed decision and restore the law to what it 
was for decades.
    The legislation would make certain that, once again, Mr. 
Gross, and all older workers in this country, enjoy the full 
protections of the law.
    And, with that, I'll turn to Senator Enzi for an opening 
statement.

                   Opening Statement of Senator Enzi

    Senator Enzi. Thank you, Chairman Harkin. I appreciate you 
calling the hearing for today.
    As the baby-boom generation phases into retirement, more 
and more of us are choosing to continue working past 
traditional retirement ages. In fact, the number of workers 
aged 55 and over is expected to increase by 47 percent over the 
next 7 years. Luckily, America's employers will need us as 
well, because labor economists forecast a huge worker shortage 
in coming years.
    I was pleased Congress addressed the needs of older workers 
in the Pension Protection Act enacted in 2006. And, with the 
help of my colleagues on this committee, I look forward to 
improving the Workforce Investment Act, through 
reauthorization, to better meet the job-training needs of older 
workers this year.
    Today, the committee looks at the technically-complex issue 
of burden of proof in so-called mixed-motive, disparate-impact 
cases rising under the Age Discrimination in Employment Act, 
ADEA, in a case entitled Gross v. FBL Financial.
    The U.S. Supreme Court recently held that, in such cases, 
the burden remains with the plaintiff throughout the case. In 
effect, this means that even where there is some evidence that 
age may have been a factor in an adverse employment decision, 
it still remains the plaintiff's burden to demonstrate that his 
or her age was the ``but-for'' reason for the adverse action. 
This allocation of burden is different than the one applicable 
under other Federal employment discrimination statutes, most 
notably title VII.
    In the Gross decision, however, the court found such 
differences to be grounded squarely in the specific statutory 
language used by Congress in the two laws and in the fact that, 
in 1991, Congress amended the title VII and specifically 
adopted a burden-shifting procedure for cases under that 
discrimination statute, but did not extend the same procedure 
to the ADEA.
    In trying to determine the best course of any future 
action, I look forward to reviewing the testimony of the 
experts who are here today as well as reviewing their answers 
to the questions that are asked of them.
    I won't be able to stay for the entire hearing. I do have 
questions prepared and know that those answers will make a real 
difference in the legislation.
    However, before we hear from them, I would like to make a 
few brief comments.
    This is not the first time, nor will it be the last time, 
that there is legislation in Congress aimed directly at a 
decision of the Supreme Court. I don't have any problem with 
this. Our system of checks and balances, quite correctly, 
always gives Congress this prerogative.
    What disturbs me lately, however, is the rhetoric that 
attaches itself to such efforts. That rhetoric manifests itself 
in two ways.
    First, there's a direct attack on the competency of the 
court itself. Those who do not like a decision--most notably 
for transparently political reasons--immediately fire off the 
claim that the court got it wrong.
    What that really means, of course, is that the speaker 
doesn't agree with the court, not that the court was 
objectively wrong. There's obviously nothing wrong with 
disagreeing with the court and seeking to change the law. 
That's an honest starting point for a fair debate on legal or 
public policy. To start by employing the rhetoric that the 
court is wrong, needlessly and unjustly, undermines the court's 
integrity and the public's confidence in the institution.
    We should have robust debate about our legal and public 
policies, but we shouldn't predicate that debate on the claim 
that the Supreme Court got it wrong. That's not only 
unjustified, it's ultimately harmful.
    The second disturbing rhetoric overreach that now 
accompanies almost every public-policy disagreement is the 
reckless maligning of the opposition. This is particularly true 
when it comes to issues arising under our discrimination 
statutes.
    For example, those who earlier this Congress had legitimate 
concerns about largely eliminating the statute of limitations 
in pay-discrimination cases were promptly labeled as pro-
discrimination and anti-feminist and worse. These claims are, 
of course, baseless. Yet, their effect is often as effective as 
it is transparent.
    The sad truth is that, in our sound-bite culture and our 
24-hour news cycle, it's always more effective to demonize the 
other side rather than to engage in constructive debate. That's 
like the irony of calling a press conference to complain that 
the other side is politicizing an issue.
    Although I sometimes hold different views than those of the 
current Administration, I believe the president was correct 
earlier this week when he noted that the overblown rhetoric of 
the public debate closes the door to compromise and undermines 
democratic deliberation. I hope that, going forward, the 
Administration and the Congress practice what they are now 
preaching.
    I look forward to hearing today's witnesses and appreciate 
the time and testimony.
    Thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator Enzi.
    I have a statement I would like to insert in the record 
from the Chairman of the Judiciary Committee, Senator Leahy, 
after our opening statements or any other statements that 
members of the committee want to insert for the record.
    [The prepared statement of Senator Leahy follows:]

                  Prepared Statement of Senator Leahy

    I am pleased to join Senator Harkin in supporting the 
``Protecting Older Workers Against Discrimination Act,'' and I 
thank him for scheduling this hearing today so that we can move 
this important civil rights legislation. Our legislation is 
necessitated by the Supreme Court's controversial decision in 
Gross v. FBL Financial, where five justices decided to change 
the standard that American workers must prove in age 
discrimination cases.
    In Gross, a divided Court thwarted congressional intent, 
overturned well-established precedent, and delivered a major 
blow to the ability of older workers to fight age 
discrimination, just as it eliminated Lilly Ledbetter's claim 
to equal pay, until Congress stepped in to set the law right. 
After spending 32 years working for an Iowa subsidiary of a 
major financial company, Jack Gross was demoted, and his job 
duties were reassigned to a younger worker who was 
significantly less qualified. In his lawsuit under the Age 
Discrimination Act, a jury concluded that age had been a 
motivating factor in his demotion and awarded him nearly 
$50,000 in lost compensation.
    However, a narrow majority of Court unabashedly rewrote 
civil rights laws, making it harder for workers facing age 
discrimination to enforce their rights. The Court ruled that it 
is no longer enough for a victim of discrimination to prove 
that age was a motivating factor in an adverse employment 
decision. Now, an employee must prove that it was the decisive 
factor. This means that victims of age discrimination face a 
higher burden than those alleging race, sex, national origin or 
religious discrimination. I am concerned that those protections 
will also be weakened by the Supreme Court as a result of their 
decision in Mr. Gross' case.
    Mr. Gross appeared before the Senate Judiciary Committee 
last year. His compelling testimony reaffirmed the need for 
this important legislation. In these tough economic times, 
millions of Americans are concerned with the security of their 
jobs. We cannot let the Supreme Court's wrong-headed decision 
stand in the way of the financial security of American 
families. I urge the committee to move without delay to protect 
our most experienced workers.
    The Chairman.  So our first witness. We will hear from 
Jacqueline Berrien, Chairman of the EEOC.
    Prior to joining the EEOC, Ms. Berrien served as the 
Associate Director--Counsel for the NAACP Legal Defense and 
Education Fund, and before that as a program officer in the 
Ford Foundation's Peace and Social Justice Program.
    Ms. Berrien, your statement will be made a part of the 
record in its entirety. And if I could ask you to sum it up in 
five minutes or so, I would certainly appreciate it, but 
welcome back again.

  STATEMENT OF JACQUELINE A. BERRIEN, CHAIR, EQUAL EMPLOYMENT 
             OPPORTUNITY COMMISSION, WASHINGTON, DC

    Ms. Berrien. Thank you so much. Thank you, Mr. Chairman, 
Ranking Member Enzi and distinguished members of the committee.
    I appreciate the opportunity to appear before you at this 
important hearing to discuss age discrimination and the 
Protecting Older Workers Against Discrimination Act, which 
would supercede the Supreme Court's 2009 decision in Gross v. 
FBL Financial Services.
    This decision imposed new legal burdens on claimants 
bringing claims under the Age Discrimination in Employment Act 
of 1967. And the EEOC is here today to provide more details 
about some of the concerns that have emerged since the 
decision.
    At the heart of every Federal anti-discrimination statute 
the EEOC enforces is a congressional recognition that decisions 
in the workplace should not be driven by stereotypes or made on 
the basis of certain protected characteristics, including age.
    As Congress noted more than 40 years ago when the ADA was 
enacted, the purpose of the act is to promote employment of 
older persons based on their ability, rather than age, and 
prohibit arbitrary age discrimination in employment. 
Nevertheless, workers who are subjected to age discrimination 
today sometimes encounter undue resistance as they pursue their 
claims.
    For example, some courts or judicial opinions have 
dismissed age-based comments as merely stray remarks and 
consider them irrelevant to the question of whether age 
discrimination occurred.
    These remarks have included--and I am quoting them 
directly--calling a plaintiff the old guy in the department, 
stating that an age-discrimination victim looked old and tired, 
repeatedly referring to a plaintiff as an old man, saying that 
the company's goal was to attract younger talent and stating 
that some workers were just too old to get the job done and 
that the company wanted to go to a young, aggressive group of 
people.
    It is difficult to reconcile judicial disregard of these 
kinds of statements with Congress' express purpose in passing 
the ADEA, and this is the backdrop against which the Gross 
decision was announced.
    I would also like to refer you to a compelling example from 
the EEOC's enforcement efforts. In the case EEOC v. Dawes 
County, the commission brought suit on behalf of Mr. Russell 
Hack, who, after working for the Dawes County Road Department 
for more than 30 years, was forced to retire at the age of 71.
    There was no evidence he was having any performance 
problems. He intended to continue to work for several more 
years, but the county told him that it was creating a stress 
test to determine whether workers over the age of 70 could meet 
the physical requirements of their jobs.
    The county never administered the test to Mr. Hack, and, 
instead, Mr. Hack was forced to leave his job, based on their 
assumption that he would not be able to pass the test.
    As Mr. Gross will testify today himself, the U.S. Supreme 
Court decision in his case has created new hurdles which age-
discrimination victims must now overcome in order to obtain 
relief.
    Specifically, the court held that age-discrimination 
plaintiffs must now prove that the defendant's employer would 
not have taken a challenged-employment action, but for his or 
her age.
    As a result, unlike plaintiffs pursuing claims under Title 
VII of the Civil Rights Act of 1964, age-discrimination 
plaintiffs are no longer allowed to show that discrimination 
was because of age by showing that age was one of the factors 
that motivated an adverse employment decision.
    This creates a dichotomy between the ADEA and title VII 
that is confusing, unfortunate and unnecessary. Before Gross 
was decided, every court presented with this question concluded 
that age-discrimination plaintiffs should be able to proceed 
under the same standards as allowed in title VII cases; that 
is, under mixed-motive theories.
    Nothing in the legislative history or the statutory 
language of the age-discrimination act suggests that this 
Congress intended to subject victims of age discrimination to a 
more stringent standard than victims of the types of 
discrimination prohibited by title VII.
    The case is causing concrete hardships for workers. 
Although it appears to be an abstract set of principles, the 
hardships are real. And it's expressed in decisions in the 
little under a year since the Gross case was decided where 
plaintiffs have been required to prove that--not only that age 
was the ``but-for'' cause of the employment action, but that it 
was the only reason for the employment action. So, in a short 
step, the standard has been elevated even further by some 
courts.
    It has also been the case, in at least one court, that the 
Gross decision was applied to limit relief for a plaintiff in 
an Americans With Disabilities Act case, although there is no 
evidence, again, that this Congress intended for a more 
stringent standard to apply to ADEA plaintiffs.
    As the Nation's chief enforcer of Federal law prohibiting 
employment discrimination, the EEOC is especially concerned by 
these developments. Continued erosion of employment rights 
contravenes congressional intent, and we believe it is 
important for this Congress to act to correct it.
    Legislation like the Protecting Older Workers Against 
Discrimination Act would ensure that age-discrimination 
plaintiffs receive the same core protections and are subject to 
the same basic legal standards as title VII plaintiffs. Nothing 
more. Nothing less.
    We believe this would effectuate the congressional intent 
evident in the original passage of the Age Discrimination in 
Employment Act, namely, that discrimination on the basis of 
age--like discrimination on the basis of race, color, national 
origin, sex, religion--has no place in the Nation's workplaces.
    The commission stands ready and eager to assist in any way 
with this legislation or future related legislation.
    Thank you again for inviting me, and I look forward to your 
questions.
    [The prepared statement of Ms. Berrien follows:]
              Prepared Statement of Jacqueline A. Berrien
                              introduction
    Mr. Chairman, and distinguished members of the committee, thank you 
for the opportunity to appear before you at this important hearing to 
discuss the ``Protecting Older Workers Against Discrimination Act'' (S. 
1756), which would supersede the Supreme Court's 2009 decision in Gross 
v. FBL Financial Services.\1\
---------------------------------------------------------------------------
    \1\ 129 S. Ct. 2343 (2009).
---------------------------------------------------------------------------
    The Supreme Court in Gross held that ``mixed-motives'' claims are 
not cognizable under the Age Discrimination in Employment Act of 1967 
(ADEA), and that older workers cannot prevail on a claim of age 
discrimination unless they prove that age was the ``but for'' cause of 
the employment practice at issue. In practice, this means that an ADEA 
plaintiff will no longer have a valid claim, and therefore will be 
entitled to no relief whatsoever--even if a defendant admits that it 
took an adverse employment action in part because of the plaintiff's 
age--unless the plaintiff can show that the defendant would not have 
made the same decision anyway (i.e., if the employer had not actually 
taken the victim's age into account).
    The Gross decision was a startling departure from decades of 
settled precedent developed in Federal district and intermediate 
appellate courts. It erected a new, much higher (and what will often be 
an insurmountable) legal hurdle for victims of age-based employment 
decisions. Indeed, recent case law reveals that Gross already is 
constricting the ability of older workers to vindicate their rights 
under the ADEA, as well as other anti-discrimination statutes.
    The U.S. Equal Employment Opportunity Commission (EEOC or 
Commission) believes that legislation like S. 1756 is needed to restore 
and bolster the basic protections that applied to ADEA claims pre-
Gross. This would more fully effectuate Congress's original intent in 
passing the ADEA--to ``promote employment of older persons based on 
their ability rather than age'' and ``to prohibit arbitrary age 
discrimination in employment.'' \2\
---------------------------------------------------------------------------
    \2\ 29 U.S.C.  621(b).
---------------------------------------------------------------------------
     the surge in adea charges and the staying power of age-based 
                              stereotypes
    The Gross ruling could not have come at a worse time. More than 40 
years after Congress passed the ADEA, age discrimination may be at 
historic highs. EEOC receipts of ADEA charges certainly are at or near 
record-levels. In fiscal year 2008, age discrimination charges jumped 
nearly 30 percent over the previous year, and represented nearly 26 
percent of all charges the EEOC received that year.\3\ In 2009, age-
based charges were at their second-highest level ever (exceeded only by 
the previous year), and constituted over 24 percent of all receipts.\4\
---------------------------------------------------------------------------
    \3\ In fiscal year 2008, the EEOC received 24,582 charges 
containing ADEA allegations (an increase from the 19,103 ADEA charges 
received in fiscal year 2007). See http://www.eeoc.gov/eeoc/statistics/
enforcement/charges.cfm.
    \4\ In fiscal year 2009, the EEOC received 22,778 ADEA charges. See 
id.
---------------------------------------------------------------------------
    It is difficult to pinpoint the causes of this surge in age 
discrimination charges. It is clear, however, that negative stereotypes 
about older workers remain deeply entrenched.\5\ These stereotypes 
include unwarranted assumptions that older workers are more costly, 
harder to train, less adaptable, less motivated, less flexible, more 
resistant to change, and less energetic than younger employees.\6\ 
Employers also may be reluctant to invest in training and other 
developmental opportunities for older workers based on the perception 
that they have less time remaining in their careers.\7\
---------------------------------------------------------------------------
    \5\ See Daniel Kohrman & Mark Hayes, Employers Who Cry ``RIF'' and 
the Courts That Believe Them, 23 HOFSTRA LAB. & EMP. L.J. 153, 160 
(2005) (studies show that bias against older people is more deeply 
embedded than other forms of bias including race, gender, religion, and 
sexual orientation).
    \6\ See Remarks of Professor Michael Campion, EEOC Meeting of July 
15, 2009: Age Discrimination in the 21st Century--Barriers to the 
Employment of Older Workers, http://www.eeoc.gov/eeoc/meetings/7-15-09/
campion.cfm.
    \7\ See id.
---------------------------------------------------------------------------
    While extensive research has shown that these negative age-based 
stereotypes have little basis in fact, they undoubtedly influence far 
too many employment decisions.\8\ For instance, as a result of these 
stereotypes, older persons with the same or similar qualifications 
typically receive lower ratings in interviews and performance 
appraisals than younger counterparts (and thus are apt to have more 
trouble finding or keeping a job or securing a promotion).\9\ Older 
workers also typically are rated as having less potential for 
development than younger workers, and thus are given fewer training and 
development opportunities.\10\
---------------------------------------------------------------------------
    \8\ See id. (while older workers face stereotypes that job 
performance declines with age, extensive research actually shows that 
it improves with age); see also Towers Perrin, The Business Case for 
Workers Age 50+, Planning for Tomorrow's Talent Needs in Today's 
Competitive Environment (AARP), at 33 (Dec. 2005) (it is a myth that 
performance suffers over time, and ``mounting evidence--both anecdotal 
and statistical--demonstrates that older workers bring experience, 
dedication, focus, stability and enhanced knowledge to their work, in 
many cases to a greater degree than younger workers''); William 
McNaught & Michael C. Barth, Are Older Workers ``Good Buys''? A Case 
Study of Days Inns of America, SLOAN MGMT. REV. 53-63 (Spring 1992) 
(net cost of employing older reservations agents was nearly identical 
to the net cost of employing younger workers; with regard to 
flexibility, older workers were just as quick as younger workers to 
adapt to modern computer technology, and training times for the two 
groups were virtually identical).
    \9\ See Remarks of Professor Campion, supra note 6.
    \10\ Id.
---------------------------------------------------------------------------
    Further, it appears that age-based stereotypes operate to 
disadvantage older workers in corporate ``downsizing'' situations, in 
particular. Because the main goal of such downsizing is usually to cut 
costs, age-based stereotypes that older workers are more costly, harder 
to train, less flexible, or less competent may become much more 
prominent in the minds of the decisionmakers.\11\ To make matters 
worse, once older workers are laid off, they often are again vulnerable 
to age-based stereotyping as they attempt to find new jobs. It seems 
older workers who have been laid off are less likely to obtain 
reemployment than younger workers, take longer to find new jobs than 
younger workers, and generally fail to obtain jobs paying the same 
wages as their previous positions.\12\
---------------------------------------------------------------------------
    \11\ Id.
    \12\ Id.
---------------------------------------------------------------------------
    The EEOC has brought numerous cases under the ADEA involving the 
manifestation of just these sorts of ageist stereotypes. These include:
     EEOC v. Lockheed Martin Global Telecommunications, Inc. 
The EEOC alleged that the employer violated the ADEA by firing eight 
employees as part of a reduction-in-force. To determine who would be 
laid off, employees were placed in comparison groups, and with only one 
exception, the oldest employee within the comparison group was the one 
laid off. The RIF rated employees using subjective criteria that 
included the ``ability to get along with others.'' Again, with only one 
exception, the ratings for ``ability to get along with others'' 
corresponded to employee ages, with the youngest employees being ranked 
highest in this area and the oldest employees the lowest. This case was 
settled for $773,000.
     EEOC v. Mike Albert Leasing, Inc. The charging party, aged 
60, was the oldest area manager for a company that leased cars, trucks, 
and vans throughout several States. There was evidence that about a 
year before the charging party was fired, the company president 
commented at a sales meeting that the sales force was ``old and aging'' 
and that the company needed some fresh young blood. Shortly before 
firing the charging party, the company hired a 38-year-old male to take 
over the charging party's accounts. The EEOC alleged that although the 
charging party's job evaluations and sales numbers indicated he was 
outperforming the majority of his peers, the company fired him for his 
failure to meet ``goals'' that were intentionally unrealistic. This 
case was settled for $100,000.
     EEOC v. Dawes County, Nebraska. After working for the 
respondent for more than 30 years, the charging party was fired at the 
age of 71 from his position with the county roads department, even 
though there was no evidence of performance problems. The EEOC alleged 
that the county decided to impose a stress test for workers 70 or older 
to determine whether they could meet the physical requirements of their 
job and the charging party was fired based on the assumption that he 
would not be able to pass the test. The respondent never actually 
implemented the stress test, and no one other than the charging party 
was fired because of the test. This case was settled for $50,000.
    the unfavorable legal climate for age discrimination plaintiffs
    Unfortunately, older workers who are victims of such age-based 
decisionmaking now must seek to assert their ADEA rights in a legal 
landscape that increasingly minimizes the significance of age 
discrimination. The prevailing judicial approach distinguishes ADEA 
claims from those brought under title VII of the Civil Rights Act of 
1964, which prohibits discrimination based on race, color, sex, 
religion, or national origin. Notably, for example, in a statement that 
appears to reflect the erroneous but widespread stereotypes about older 
workers, the Supreme Court has said that a lower level of protection 
under the ADEA than under title VII is ``consistent with the fact that 
age, unlike race or other classifications protected by title VII, not 
uncommonly has relevance to an individual's capacity to engage in 
certain types of employment.'' \13\
---------------------------------------------------------------------------
    \13\ Smith v. City of Jackson, 544 U.S. 228, 240 (2005). Of course, 
as already indicated, the Court's statement seems to assume a closer 
correlation between age and inability than research suggests exists. 
See supra note 8.
---------------------------------------------------------------------------
    This judicial antipathy to age discrimination claims also can be 
seen in lower court decisions in which courts apply crabbed 
interpretations of the ADEA to rule against plaintiffs even when 
plaintiffs present evidence of age-based comments by managers. For 
example, courts have dismissed as ``stray remarks'' not probative of 
age discrimination comments calling the plaintiff ``he old guy in the 
department,'' \14\ stating that the plaintiff looked ``old and tired,'' 
\15\ repeatedly calling the plaintiff ``old man,'' \16\ saying that the 
company goal was to ``attract younger talent,'' \17\ and stating that 
some workers ``were just too old to get the job done'' and that the 
company ``wanted to go to a young aggressive group of people.'' \18\
---------------------------------------------------------------------------
    \14\ Luks v. Baxter Healthcare Corp., 467 F.3d 1049, 1055 (7th Cir. 
2006).
    \15\ Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 491 (7th Cir. 
2007).
    \16\ EEOC v. Republic Servs., Inc., 640 F. Supp. 2d 1267, 1286 (D. 
Nev. 2009).
    \17\ Berquist v. Washington Mut. Bank, 500 F.3d 344, 351-52 (5th 
Cir. 2007).
    \18\ Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 304 (5th 
Cir. 2000).
---------------------------------------------------------------------------
    Given this relatively inhospitable legal climate, it is perhaps not 
surprising that while all discrimination plaintiffs face enormous 
challenges in proving their claims, success seems to be especially 
elusive for age discrimination plaintiffs.\19\
---------------------------------------------------------------------------
    \19\ See Kohrman and Hayes, supra note 5, at 153 (data collected by 
the Administrative Office of the U.S. Courts for 1998-2001 shows that 
ADEA plaintiffs win 20.93 percent of bench trials while the win rate 
for bench trials in employment discrimination cases overall is 25.94 
percent).
---------------------------------------------------------------------------
                           the gross decision
    Against this already-challenging legal backdrop, the Supreme 
Court's recent ruling in Gross is particularly troubling. Gross is the 
latest, and in some respects the most problematic, in a string of 
judicial decisions that have weakened the ADEA significantly. Moreover, 
because lower courts have begun to extend Gross's reasoning beyond the 
ADEA context, the decision threatens to undermine numerous other 
Federal anti-discrimination laws, as well.
    The Supreme Court granted certiorari in Gross to answer what 
appeared to be an arcane legal question--whether ``direct evidence'' is 
needed to obtain a ``mixed-motives'' jury instruction in an ADEA case. 
In the end, however, the Court's ruling in Gross struck at the heart of 
the ADEA's core anti-discrimination provision.
    In the 1989 decision in Price Waterhouse v. Hopkins, the Supreme 
Court had held that a title VII plaintiff who had shown that 
discrimination was a ``motivating factor'' in an employment decision 
could request a mixed-motives jury instruction, which would shift the 
burden of proof to the employer to show that it would have taken the 
same action in the absence of discrimination.\20\ The Supreme Court 
subsequently held that a title VII plaintiff could rely on either 
direct or circumstantial evidence to request such a mixed-motives 
instruction.\21\ While lower courts agreed that mixed-motives claims 
were cognizable under the ADEA, as well, the lower courts were split as 
to whether ADEA plaintiffs needed to present ``direct evidence'' to 
obtain a mixed-motives instruction (or whether, like title VII 
plaintiffs, they could present either direct or circumstantial evidence 
to justify the instruction).\22\
---------------------------------------------------------------------------
    \20\ 490 U.S. 228, 258 (1989).
    \21\ Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003).
    \22\ Compare Gross v. FBL Fin. Servs., Inc., 526 F.3d 356, 360 (8th 
Cir. 2008) (ADEA plaintiff must produce direct evidence in order to 
obtain mixed-motives instruction), with Rachid v. Jack in the Box, 
Inc., 376 F.3d 305, 311 (5th Cir. 2004) (direct evidence not needed for 
mixed-motives instruction under ADEA).
---------------------------------------------------------------------------
    The majority in Gross ultimately decided that it was unnecessary to 
address this issue--the question on which the Court had granted 
certiorari--because it concluded that mixed-motives claims are never 
available under the ADEA at all. The Court held that in an ADEA case, 
the burden of proof never shifts to the employer to defend its action, 
and that an ADEA plaintiff must always prove that age was the ``but 
for'' factor in the adverse employment action. This issue was never 
briefed by the parties or amici, and counsel for the United States had 
urged the Court during oral argument not to reach the issue.\23\ And, 
as already indicated, lower courts had unanimously concluded that ADEA 
plaintiffs could indeed obtain a mixed-motives instruction and had only 
disagreed as to whether direct evidence was needed.\24\
---------------------------------------------------------------------------
    \23\ Gross, 129 S. Ct. at 2353 n.2 (Stevens, J., dissenting).
    \24\ Id. at 2355 & n.5 (collecting cases).
---------------------------------------------------------------------------
                need for legislation to supersede gross
    While the Gross decision dealt with seemingly abstract concepts 
about causation and burdens of proof, it is having real-world 
implications for age discrimination litigants. Now, after Gross, ADEA 
plaintiffs are unable to prove age discrimination by showing that age 
was one factor (of perhaps several factors) that motivated the 
challenged employment practice, unless they can also prove that age was 
the ``but for'' factor for the decision. Thus, ADEA plaintiffs with 
cases involving ``mixed motives'' are subject to a more demanding 
standard of causation and burden of proof than similar title VII 
plaintiffs.
    When Congress enacted the Civil Rights Act of 1991, it confronted a 
similar issue. Congress responded by expressly ``authorizing 
discrimination claims in which an improper consideration was `a 
motivating factor' for an adverse employment decision.'' \25\
---------------------------------------------------------------------------
    \25\ Id. (quoting 42 U.S.C.  2000e-2(m)).
---------------------------------------------------------------------------
    Similar to the negative impact Price Waterhouse had on victims of 
sex-based and race-based discrimination, the Supreme Court's decision 
in Gross is damaging the ability of victims of age discrimination to 
vindicate their statutory rights. In the Gross case itself, the Eighth 
Circuit on remand reversed a jury verdict and nearly $47,000 in lost 
compensation the jury had awarded to Jack Gross.\26\ In addition to the 
adverse effect it had in Mr. Gross's ADEA case, the Supreme Court's 
ruling has begun to negatively impact other litigants. One district 
court affirmed summary judgment for the employer even though there was 
sufficient evidence for a jury to conclude that age was one of the 
factors that motivated the plaintiff's termination. Relying on Gross, 
the court noted that ``just because age may have played a role in the 
decision does not mean that it was a `but for' cause of his 
termination.'' \27\ Similarly, the Third Circuit has concluded that a 
plaintiff could not prevail on his termination claim under the ADEA 
despite evidence that the employer wanted to get rid of ``older and 
better paid'' employees and to retain ``younger and cheaper'' 
employees. The court stated that such evidence showed at most that age 
was a ``secondary consideration'' in the plaintiff's termination, not a 
``but for'' factor as required by Gross.\28\
---------------------------------------------------------------------------
    \26\ Gross v. FBL Fin. Servs., Inc., 588 F.3d 614 (8th Cir. 2009).
    \27\ Anderson v. Equitable Res., Inc., 2009 WL 4730230, at *14-15 
(W.D. Pa. Dec. 4, 2009).
    \28\ Kelly v. Moser, Patterson & Sheridan, L.L.P., 2009 WL 3236054 
(3d Cir. Oct. 9, 2009) (unpublished).
---------------------------------------------------------------------------
    In addition, some courts now have interpreted Gross as not only 
requiring a plaintiff to prove that age was a ``but for'' cause, but 
also to show that it was the sole cause, for the challenged employment 
action. For example, in one case, the plaintiff was forced to choose 
between his title VII claim and his ADEA claim. The court concluded 
that, under Gross, the plaintiff was required to demonstrate that age 
was ``the only or the but-for reason for the alleged adverse employment 
action,'' and thus, the plaintiff could not claim that the action was 
based on age while simultaneously claiming that there was another 
unlawful motive involved.\29\ Similarly, another court dismissed a 
plaintiff's ADEA claim because she had alleged not only age 
discrimination but also discrimination based on gender, race, and 
disability. The court interpreted the Gross decision as requiring a 
plaintiff to present direct evidence that age was the sole reason for 
the challenged action.\30\ This particular interpretation of Gross 
would appear to preclude ``intersectional'' discrimination claims 
(e.g., those alleging that discrimination occurred because of a 
combination of two or more protected traits). This doctrinal 
development would upend decades of settled law allowing for such 
claims, and represent an alarming restriction on longstanding civil 
rights protections. \31\
---------------------------------------------------------------------------
    \29\ Culver v. Birmingham Bd. of Educ., 646 F. Supp. 2d 1270, 1271 
(N.D. Ala. 2009).
    \30\ Wardlaw v. City of Philadelphia Streets Dep't, 2009 WL 
2461890, at *7 (E.D. Pa. Aug. 11, 2009).
    \31\ Cf. Remarks of Cathy Ventrell-Monsees, EEOC Meeting of July 
15, 2009: Age Discrimination in the 21st Century--Barriers to the 
Employment of Older Workers, http://www.eeoc.gov/eeoc/meetings/7-15-09/
ventrell-monsees.cfm (noting Gross ``is extremely problematic for older 
women and older minorities who often bring claims under both the ADEA 
and title VII'').
---------------------------------------------------------------------------
    Finally, the Gross decision not only impedes the ability of older 
workers to successfully challenge various forms of age discrimination. 
It has also begun to undermine the enforcement of other Federal anti-
discrimination statutes. For example, the Seventh Circuit recently 
determined, citing Gross, that plaintiffs alleging discrimination under 
the Americans with Disabilities Act (ADA) now must show that disability 
is a ``but for'' cause of a challenged employment practice.\32\
---------------------------------------------------------------------------
    \32\ Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 964 (7th 
Cir. 2010).
---------------------------------------------------------------------------
    Clarifying legislation will thus not only protect plaintiffs who 
bring claims under the ADEA, but also plaintiffs who seek redress under 
other anti-discrimination laws which may be similarly weakened by the 
application of the Gross decision.
                                s. 1756
    S. 1756 would legislatively overturn Gross to ensure that ADEA 
plaintiffs receive the same core protections and are subject to the 
same basic standards of causation with respect to disparate treatment 
claims as title VII plaintiffs. This aspect of the legislation would 
simply restore the law to the state of parity that existed between ADEA 
and title VII pre-Gross. Such parity reflects the Congressional intent 
evident in the original passage of the ADEA--namely, that age 
discrimination should be no more permissible than discrimination based 
on race, color, sex, religion, or national origin.\33\
---------------------------------------------------------------------------
    \33\ See, e.g., Lorillard v. Pons, 434 U.S. 575, 584 (1978) (noting 
the ``important similarities'' between the two statutes, ``both in 
their aims--the elimination of discrimination from the workplace--and 
in their substantive provisions'').
---------------------------------------------------------------------------
    The bill would make clear that the ADEA may be violated any time 
age is a motivating factor for the complained of practice; that 
plaintiffs can use any evidence, direct or circumstantial, to make that 
showing; and that every method of proof, including the McDonnell-
Douglas \34\ framework, can be used to prove a violation. In addition, 
the bill would have other important effects:
---------------------------------------------------------------------------
    \34\ McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
---------------------------------------------------------------------------
     The bill would apply to the ADA and other Federal 
employment discrimination laws, thus ensuring more uniform standards 
and protection across various statutes.
     The bill would apply to prohibitions against retaliation, 
including the protections against retaliation contained in title VII.
     The bill would ensure that where an employer shows that it 
would have taken the same action in the absence of discrimination, 
plaintiffs will be entitled to the same remedies in mixed-motives cases 
under the ADEA and other employment discrimination laws as title VII 
plaintiffs now may recover.
    The EEOC believes, however, that a bill like S. 1756 is just the 
first step that is needed to ensure that older workers are protected 
against age discrimination. As already noted, Gross reflects the 
general view of the Supreme Court that age discrimination claims are 
qualitatively different than race or sex discrimination claims, and 
that protections and legal standards under the ADEA are not the same as 
those in title VII. For example, the Supreme Court recognized in Smith 
v. City of Jackson that the disparate impact theory of liability is 
available to age discrimination plaintiffs, but at the same time also 
determined that the scope of disparate impact liability is narrower 
under the ADEA than under title VII.\35\ Similarly, while the Supreme 
Court has held that a policy that facially discriminates on the basis 
of sex is unlawful even if an employer has benevolent motives for the 
policy,\36\ the Court upheld, in Kentucky Retirement System v. EEOC, a 
disability retirement plan that was explicitly based on age, reasoning 
that the differences in treatment were not ``actually motivated'' by 
age.\37\ These decisions have placed victims of age discrimination at a 
legal and practical disadvantage compared with victims of other forms 
of discrimination, and thus have impeded effective enforcement of the 
ADEA.
---------------------------------------------------------------------------
    \35\ 544 U.S. at 240.
    \36\ Int'l Union, United Auto., Aerospace & Agric. Implement 
Workers of Am. v. Johnson Controls, 499 U.S. 187, 199-200 (1991).
    \37\ 128 S. Ct. 2361, 2367 (2008).
---------------------------------------------------------------------------
                the eeoc's response and enforcement role
    As the Nation's chief enforcer of protections against age-based 
employment discrimination, the EEOC is especially concerned by these 
developments. In response, we have sought to determine how best to use 
our limited resources to counteract (or at least contain) the damage 
done by the deteriorating legal landscape for victims of age 
discrimination.
    The recent spate of case law restricting the rights of age 
discrimination plaintiffs, coupled with the rise in age discrimination 
charges, prompted the EEOC to hold a public Commission meeting on these 
issues in July 2009.\38\ At this meeting, witnesses discussed Supreme 
Court decisions, including Gross, that have significantly undermined 
the protections that Congress intended to confer when it enacted the 
ADEA. Experts at the meeting urged a variety of potential enforcement 
and policy solutions to counteract these adverse rulings, such as 
issuing regulations to fully define the components and burdens of 
pleading and proof of the ``reasonable factor other than age'' defense 
to an ADEA disparate impact claim, developing policy guidance to make 
uniform the relevance and weight of ageist comments, and using the 
EEOC's rulemaking authority under the ADEA to clarify the factors 
announced by the Supreme Court in Kentucky Retirement.
---------------------------------------------------------------------------
    \38\ The transcript and other materials from this meeting can be 
found at http://www.eeoc.gov/eeoc/meetings/7-15-09/index.cfm.
---------------------------------------------------------------------------
    The EEOC is carefully evaluating these and other ideas, and 
implementing them as appropriate. In February 2010, the Commission 
issued a notice of proposed rulemaking to address an employer's 
``reasonable factors other than age'' defense to an ADEA disparate 
impact claim. This proposed regulation clarifies the circumstances 
under which an employer may adopt a facially neutral policy that 
disproportionately harms older workers. It also explains the steps that 
employers need to take to minimize the potential for age-based 
stereotyping when managers are granted wide discretion to engage in 
subjective decisionmaking.\39\
---------------------------------------------------------------------------
    \39\ These proposed regulations are available at http://
edocket.access.gpo.gov/2010/2010-3126.htm.
---------------------------------------------------------------------------
    The Commission will continue to use all available means at its 
disposal--including issuing regulations and policy guidance, providing 
outreach and training, conducting administrative enforcement, and 
litigating ADEA cases--to safeguard equal employment opportunity for 
older workers. However, these tools alone may no longer be sufficient 
to the task. As some of the experts at the EEOC's recent public meeting 
noted, a legislative response now is needed to overcome recent legal 
setbacks, and to restore the original potency and promise of the ADEA.
    To that end, the Commission stands ready and eager to help this 
committee with technical assistance on S. 1756--and on any future 
related legislation.
                               conclusion
    Thank you again for inviting me here today to testify on this very 
important issue. I look forward to your questions.

    The Chairman.  Thank you very much, Ms. Berrien.
    Let me turn to a part of your testimony and--I just want to 
get it straight here--that the Supreme Court--I'm referring to 
your written testimony.
    Ms. Berrien. Yes.
    The Chairman.  The Supreme Court, as you said, subsequently 
held that a title VII plaintiff could rely on either direct or 
circumstantial evidence to request this mixed-motives 
instruction. That was in Desert Palace, Inc. v. Costa, a 2003 
case.
    Then, you go on to point out that lower courts were split 
as to whether ADEA plaintiffs needed to present direct evidence 
to obtain a mixed-motives instruction.
    Is that not the reason that the court granted cert in the 
first place--
    Ms. Berrien. That's correct.
    The Chairman [continuing]. Was to see whether or not they 
should be parallel with title VII in terms of direct or 
circumstantial evidence?
    Ms. Berrien. In that regard, yes. Yes, sir.
    The Chairman.  Then I read in the next paragraph that the 
court didn't even reach that question.
    Basically, you're saying that this issue--the ``but-for'' 
issue, the one that comes before that--
    Ms. Berrien. Yes.
    The Chairman [continuing]. Was not even presented to the 
court. It was never briefed by the parties or amicus curiae 
briefs, and the counsel for the United States urged the court, 
during oral argument, not to reach that issue.
    Ms. Berrien. That's correct. The solicitor general in the 
argument before the court did raise the fact that the issue, 
but for causation, was not briefed and properly before the 
court and raised concerns about the decision or a possible 
decision that was based on that ground.
    The Chairman.  I just wanted to clear that up just for the 
record.
    Now I want to get more into what's happening out there. You 
say that there's a big surge in ADEA charges and the increasing 
prevalence of age discrimination. Do you have good data on that 
at EEOC? I mentioned that there's been a three-fold increase. 
Is that correct?
    Ms. Berrien. Yes. What our charge data shows is that, from 
the decade between 1999 and 2009, age discrimination charges, 
as a percentage of all charges of discrimination filed with the 
commission, have risen from about 18 percent of the charges we 
received to now being roughly one in four of the charges we 
have received or 25 percent.
    And perhaps of greatest interest, in relation to this bill, 
there has been a very dramatic increase in the number of age 
charges that stem from a firing or a discharge or a termination 
of employment, and that figure has increased 50 percent.
    The Chairman.  Why does the EEOC need S. 1756? I know 
you're supporting it, but can't you do this without this bill? 
Can't you take care of this at the EEOC?
    Ms. Berrien. We have concerns. I would say they are two-
fold.
    One, beyond our immediate cases or impact on immediate 
cases that the commission is litigating, more broadly, we do 
follow the trends and developments in the law. And in the year 
since the Gross decision was announced, there are two worrisome 
developments from the standpoint of the commission and signs 
that the Gross decision not only will impact age-discrimination 
plaintiffs by raising the standards under which they must 
litigate, but also that it may affect other people who are 
victims of discrimination of other forms.
    Particularly the Seventh Circuit's decision in the Serwatka 
case indicates that the Gross holding might now be applied in 
Americans With Disabilities Act cases.
    I also noted, in both my written testimony and my statement 
today, that there have been some courts that have moved from 
the Gross standard--which we believe is already demanding 
enough, more demanding than the prior standard--and have even 
elevated it further to say that age must be the sole cause for 
a discharge or for an adverse employment action.
    And one consequence of that is that people who have been 
discriminated against on multiple illegal grounds--for example, 
race and disability and age--are being forced, essentially, to 
choose and to abandon age claims, even if they might otherwise 
be valid claims.
    The Chairman. Thank you very much, Ms. Berrien.
    Ms. Berrien. Yes.
    The Chairman.  Senator Enzi.
    Senator Enzi. Yes. Thank you. Your testimony is very 
helpful.
    Ms. Berrien. Thank you.
    Senator Enzi. You gave the percentages there. It would be 
helpful if we had some more exact percentages and actual 
numbers as well.
    Ms. Berrien. Of course.
    Senator Enzi. I find sometimes when the economy is changing 
that some of those numbers are kind of forced, particularly in 
the percentage category.
    Ms. Berrien. Of course. We would be happy to provide any 
information you would like, Senator.
    Senator Enzi. Thank you.
    I do have a question that I am going to be asking people 
whenever we are having a labor issue, and that question is have 
you acted as an employer, manager in a private-sector, non-
governmental-funded workplace?
    Ms. Berrien. I was a manager in the non-profit sector.
    Senator Enzi.  OK. Thank you.
    As S. 1756 appears to provide that, even in a mixed-motive 
case where the employee has no remedy because the employer has 
proven it would have taken the complaintive action in any case, 
the employer's lawyer may still be entitled to an award of his 
or her legal fees.
    Do you think there may be a risk that a provision awarding 
attorneys' fees, even when the attorney has obtained no relief 
for his or her client, could artificially increase the amount 
of litigation or artificially reduce the likelihood of 
settlement?
    Ms. Berrien. Senator, I believe that the standard that 
would apply in order for a plaintiff's lawyer to recover fees 
is that they had to establish--they have to be a prevailing 
party on a question of law in the case, although they may not 
receive monetary relief.
    In fact, in the commission's cases, monetary relief is 
often a small part relative to the other forms of relief--
injunctive relief, orders from courts or settlement agreements 
that are essentially designed to change practices going into 
the future.
    The lack of non-monetary relief is not at all, in my view--
or in the view of the law, more importantly--equivalent to no 
relief. I think there may be a confusion of the standard in 
that respect.
    Senator Enzi.  Appreciate that. I'll take a closer look at 
it.
    Title VII cases and Age Discrimination in Employment Act--
ADEA--cases, are both within the purview of the EEOC, but a 
number of statutes that would be affected by S. 1756 plainly 
are not, on its face, as S. 1756 would effect statutes such as 
the National Labor Relations Act that are enforced by 
independent agencies and the Family Medical Leave Act that are 
enforced by Cabinet-level departments.
    Do you think it's prudent to consider legislation effecting 
all these agencies and departments without their input?
    Ms. Berrien. Senator, the testimony here concerns this 
legislation, and we have, indeed, indicated that if there is 
any form of assistance that we can provide to the committee, if 
any clarification would be useful or any additional concerns 
are raised, we stand ready to do that.
    I believe that this legislation really does go precisely to 
the issues that were raised in the Gross case in the age-
discrimination context.
    Senator Enzi.  OK. To change again, can employment 
statistics alone constitute sufficient circumstantial evidence 
to prove an improper motive and under what circumstances?
    Ms. Berrien. I am sorry, Senator. I didn't hear your 
question.
    Senator Enzi.  Can employment statistics alone constitute 
sufficient circumstantial evidence to prove an improper motive?
    Ms. Berrien. No. And that is not the case in any of the 
existing law. The statistics are relevant. And the statistics 
may raise an inference of discrimination, but courts require 
more than a mere statistical showing, recognizing that the 
Congress has consistently indicated concerns about employers 
over-correcting and doing things that might be discriminating 
against other people in the workplace.
    Senator Enzi. Really appreciate your concise answers.
    I would mention that Senator Harkin earlier used 
statistics. That's one of the reasons for this question. He 
said that older people have higher unemployment numbers.
    I remember when I was mayor--that was clear back when I was 
30--that most of the people that came to Gillette, Wyoming, 
which was having a boom, were young people. And I was kind of 
curious about that.
    The reason, as it turned out, is that most people that are 
older already have a house, have a lot of friends in the 
community that they are in and expect to be the first hired 
back. So they don't move to where the job is. They stay where 
the unemployment is, and that drives up the statistics a little 
bit, too.
    I appreciate the chance to ask questions, and I am going to 
have to leave for another meeting.
    I would just say, my friend, that in cases like this, other 
things, the closer the statistics get to 100 percent, the more 
relevant they are.
    [Laughter.]
    The Chairman. Senator Casey.

                             Senator Casey

    Senator Casey. Thank you very much.
    I wanted to say, first of all, thank you for your testimony 
and your work.
    Just by way of background--and it informs some of the lines 
of questioning that I will pursue in the short amount of time 
we have--when I was a young lawyer, one of the first sets of 
cases that I worked on were cases like age cases or were age 
cases, were cases involving discrimination.
    At that time, I was working with a senior member of a small 
law firm in my home town of Scranton, Pennsylvania, and didn't 
develop an expertise in this area, but was exposed enough to 
these kinds of cases that I had a sense of the statutory basis 
for age-discrimination cases, some of the case law.
    What really became apparent to me at that time--and I think 
it is relevant to this discussion--is how difficult these cases 
were to litigate from the perspective of the plaintiff all 
those years ago--this would be in the early 1990s--even under 
the old standard where you didn't have the case that we are 
discussing today.
    I want to first of all highlight one statement from your 
testimony. It is in the second paragraph, and I want to 
highlight this to make sure I understand this.
    Based upon your analysis of the state of law after Gross--
you say, in the middle of that second full paragraph ``--even 
if a defendant admits, `admits', that it took an adverse 
employment action in part, ``in part'', because of the 
plaintiff's age--unless the plaintiff can show that the 
defendant would not have made the same decision anyway--'' that 
is the current state of the law.
    In other words, even if the plaintiff admitted that age was 
part of their decision-making process, that is not enough for 
the plaintiff to prevail. Is that correct?
    Ms. Berrien. That is correct. The defendant in the age case 
now could even admit that age was a factor, but if it is one 
among a number of factors, the plaintiff is still required to 
show that the decision would--It is very difficult to describe 
it concisely, but, essentially, the burden still remains with 
the plaintiff to essentially isolate age as the reason.
    The standard, before Gross, recognized that, where age was 
a motivating factor, that the burden ought to then be the 
employer's to prove that it was not the reason for the action.
    Many employment cases do not present as there is only one 
reason or it is clear to isolate the reason and the 
discriminatory reason is alone and stands alone.
    As you will hear, I believe, from Mr. Gross, in his case, 
age was one of the reasons, but there were also other reasons 
cited, and it is that citation of other reasons that, in the 
past, would have shifted the burden to the employer and now 
remains the burden of the plaintiff.
    In effect, the plaintiff has to prove a negative, which is 
very difficult.
    Senator Casey. As I said before, these are tough cases from 
the plaintiff's side, even under the old standard. I think 
maybe the popular image of this kind of a case is that papers 
are filed at a courthouse and before you know it, you are in 
front of a jury and the rest is history.
    You have to file papers and you have to get a lawyer to do 
that before you file and then you have to be able to expend 
money ahead of time--either you or your lawyer--for discovery 
costs.
    The other thing, which is sometimes skipped over, is the 
fact that you do not just file in Federal court and then you 
are off to the races. You have to exhaust all your remedies. 
You have to file with the EEOC and go through that process--or 
with the relevant State agencies. So it's a long process.
    Some may say, on the other side, well, that happens with a 
lot of cases. The length of the case does not tell you enough 
about it.
    One of the things which I think is not clear in the popular 
notion of what this is all about is you rarely have that 
statement that just jumps off the page in a deposition 
transcript where the employer says, I did not hire John because 
he was too old. It is always very subtle.
    I think it is over time that a practiced or learned 
behavior by some employers--not all, but some employers--to 
avoid using language which is pretty clearly discriminatory.
    I think--and I am running out of time--but I have at least 
three problems with where the state of the law is.
    First of all, these cases are complex to begin with, even 
under the old standard.
    Secondly, have the economic trauma that workers are living 
through right now where older workers are losing their jobs at 
higher numbers and likely being discriminated against to a 
greater degree.
    The third complicating factor is, of course, the decision. 
I think what you said in your testimony--and I will end with 
just reading this, because I know we are out of time--but you 
said--in analyzing why we need this bill, you said, ``S. 1756 
would legislatively overturn Gross to ensure that ADEA 
plaintiffs receive the same core protection and are subject to 
the same basic standards of causation with respect to disparate 
treatment claims as title VII plaintiffs.''
    In essence, what we are trying to do is be consistent with 
other cases, principally title VII cases. We are returning to 
an old standard. The bill is not creating a new standard. It is 
really returning to an older standard, which I think even that 
standard was pretty tough for plaintiffs.
    Thank you for your testimony.
    Ms. Berrien. Thank you.
    The Chairman.  Thank you, Senator Casey.
    Senator Franken.
    Senator Franken. Thank you, Ms. Berrien, for your work.
    Ms. Berrien. Thank you.
    Senator Franken. I am going to do a hypothetical. You were 
saying that in the Seventh Circuit that they were applying the 
Gross standard to claims of discrimination because of 
disability.
    Ms. Berrien. Yes, in one case they have.
    Senator Franken. And they have held that that was OK.
    Ms. Berrien. Yes.
    Senator Franken. Let me do a hypothetical. Let us say you 
go in there and the employer says, in cross examination, Was 
there any reason for firing this person because of their age?
    Oh, yes, yes. That was about probably 30 percent of it.
    How about because of their disability?
    Oh, yes, that, too. That was about 30 percent.
    What was the other 40 percent?
    Inability to adapt. Social networking was not working well 
enough. Sales down. Something like that.
    Could that person, then, under the Gross ruling, just say, 
OK. You don't prevail?
    Ms. Berrien. Senator, I think the way that it would often 
present is that a person will come in. They will file their 
charge with the commission. If and when they reach court and 
the case has not settled in the period it was with the 
commission, they will get to court and they will say, I was 
fired. I believe it was because of my age. And then they will 
present a range of evidence that they believe supports that 
claim.
    They may say, for example, the kinds of statements that I 
included in my testimony earlier. I was regularly called the 
old guy in the office. The managers and the people who fired me 
said that I was not keeping up with the times and they needed 
some younger folks around to do that. That kind of evidence is 
one type of evidence.
    Senator Franken. Yes. I am talking here about where the 
employer even acknowledges it, but he is saying it was not 100 
percent. It seems, the logic of the Seventh Circuit and of the 
Gross decision that the employee would not be ruled in his 
favor.
    Ms. Berrien. Right. Before Gross, the kinds of facts you 
just suggested would have left the door open for the 
plaintiff's lawyer to ask for--if it was a jury trial--a jury 
to be instructed about mixed-motives, meaning for the jury to 
hear that if age was one of the reasons--it doesn't have to be 
the only reason--then you can find for this plaintiff.
    Senator Franken. Right. But now--
    Ms. Berrien. Now, the standard, in the face of that same 
evidence, would be, if the employer is able to show that they 
would have made the same decision anyway--Yes, there was this 
agist comment, or, Yes, there was other evidence presented that 
age discrimination occurred, or that some action happened 
because of the plaintiff's age, but, in fact, there was another 
problem, there was--
    Senator Franken. The other problem was a disability, but, 
still, that was not enough, because the disability was not the 
``but-for'' problem either.
    Ms. Berrien. If the employer--
    Senator Franken. What I am saying is the logic of this 
seems pretty perverse.
    Let me move on to something. Last year, I passed an 
amendment to the Defense appropriations bill that prohibits 
taxpayer money from going to contractors who force their 
employees to arbitrate discrimination claims. This came out of 
the story of Jamie Leigh Jones, a young Texas woman who was 
gang raped by her coworkers while working for KBR in Iraq.
    Then she was told that she could not sue KBR for sexual 
assault and sexual harassment. She had to arbitrate it in a 
secret tribunal paid for by KBR.
    Does the EEOC have a position on mandatory arbitration of 
civil rights claims? I think it is harmful to enforcement of 
civil rights claims, as almost anything else is, the mandatory 
arbitration. Does EEOC have an opinion on that?
    Ms. Berrien. Yes. We have issued statements about mandatory 
arbitration and about the risk of rights--that mandatory 
arbitration agreements could interfere with the appropriate 
vindication of rights and the appropriate protection of rights 
under Federal law.
    Senator Franken. Thank you very much, Mr. Chairman.
    The Chairman.  Senator Hagan.

                             Senator Hagan

    Senator Hagan. Thank you. Thank you, Mr. Chairman.
    Mrs. Berrien, thank you for being here.
    Ms. Berrien. Thank you, Senator.
    Senator Hagan. I am concerned about how that the laws 
passed by Congress can impact small business, which are at this 
point in time, certainly the drivers of the economic growth and 
job creation. And some people believe that the Gross decision 
would actually be good for small business.
    My question is, in your opinion, how do you think the 
proposed legislation would impact small business, and could 
there be more paperwork, litigation, expense? Are there other 
ways that this legislation might actually impact small 
business, from your perspective?
    Ms. Berrien. In our experience, both small business and 
larger industries or employers look to the commission for 
guidance about how to comply with the laws that Congress has 
passed. We have a very targeted and widespread outreach program 
to try to reach those businesses, to try to inform them about 
what the law requires.
    One of the risks, frankly, of the Gross decision is it 
makes those standards more confusing. It sets one standard for 
age cases. It sets different standards for race, national 
origin, religion cases, for example.
    For a small business, that sort of difference in what kind 
of conduct would be possibly illegal or what kind of conduct 
might subject them to liability in court is actually a 
confusing possibility.
    We do aggressive outreach to try to make sure that all 
businesses understand what is required under all the laws we 
enforce, and I believe that businesses of all size are not only 
aware, but often in complete accord with us that workplaces 
that are inclusive and do not exclude employees for arbitrary 
reasons are what are ultimately best for business.
    Senator Hagan. We certainly do not want age discrimination 
in small business at all, but I am glad to hear about your 
outreach, although I guess I am not that familiar with it. How 
prevalent is it?
    Ms. Berrien. We actually did many events that were 
specifically targeted to educating businesses and the public 
about age discrimination specifically. I would be happy to 
provide specific data about the number of events we have done 
around the country and in your State as well.
    Senator Hagan. I think that that is good, because I think 
we have got to help educate especially the small businesses in 
this area.
    Ms. Berrien. I agree.
    Senator Hagan. Sometimes businesses make a calculation to 
offer early retirement incentives to older workers when the 
businesses need to downsize. I believe it is important to give 
workers the ability to make their own financial calculations 
and leave the final decision up to the worker in those 
situations.
    Could this court case become a factor when companies are 
deciding about whether to offer early retirement plans or what 
kind of packages to offer? And, in this economy, I certainly 
would not want to see companies offer less generous early 
retirement packages to their older employees.
    Ms. Berrien. Yes.
    Senator Hagan. Can you comment on that?
    Ms. Berrien. One of the reasons we believe that the number 
of age charges has risen is in part because people are working 
longer, sometimes out of complete choice--free choice--
sometimes out of economic necessity. And so we do have more 
older workers in the workforce.
    Your concern is an important one, and one of the things 
that the Age Discrimination in Employment Act recognizes is, 
first of all, while it is sometimes true that older workers are 
the top compensated workers or people for whom there may be 
economic interest in moving to a retirement status, that is not 
always true. There are older workers who are less well 
compensated. There are younger workers who are sometimes 
compensated more highly.
    The core of the Age Discrimination Act is that age is not 
the proxy for making what is essentially an economic decision, 
if that is what happens.
    Finally, there are protections, and employers are able, for 
example, to seek waivers where an employee chooses to retire or 
to accept some sort of an incentive retirement package and they 
do not have to do that at the risk of a later lawsuit if they 
obtain an appropriate waiver and the employee is informed 
properly about that. So there are protections, I believe, on 
both sides.
    Obviously, the laws in this area are balancing some very 
important interests, the legitimate employer prerogatives and 
economic interests on the one hand, but the right of the 
employees and workforces to be free from illegal 
discrimination.
    Senator Hagan. Thank you.
    The Chairman. Thanks, Senator Hagan.
    Ms. Berrien, thank you very much for being here. Thank you 
for your testimony and in answering these questions.
    Ms. Berrien. Thank you.
    The Chairman. Moreover, I personally want to thank you for 
your great leadership at the EEOC. Keep up the good work.
    Ms. Berrien. Thank you very much. Thank you for the 
opportunity to be here.
    The Chairman. Thanks, Ms. Berrien.
    I will now turn to our second panel, and that is Mr. Jack 
Gross, Ms. Helen Norton, Gail Aldrich and Eric Dreiband (Dree-
band) or Dreiband (Dry-band). I will have to ask him exactly 
how to pronounce that.
    I will introduce the panel then. Mr. Jack Gross was born 
and has lived his entire life in Iowa. He is a graduate of 
Drake University and worked for the Iowa Farm Bureau for over 
30 years.
    He is here to testify about, obviously, his first-hand 
experience with age discrimination and his case that went 
before the Supreme Court.
    Ms. Helen Norton. Professor Norton is an Associate 
Professor at the University of Colorado School of Law. Prior to 
that, Professor Norton served as Deputy Assistant Attorney 
General for Civil Rights at the U.S. Department of Justice 
where she managed the Civil Rights Division's Employment 
Litigation, Educational Opportunities and Coordination Review 
Sections.
    Gail Aldrich is a member of the AARP Board of Directors. 
Prior to joining AARP, Ms. Aldrich served as Chief Membership 
Officer for the Society for Human Resource Management and was 
Senior Vice President and Chief Administrative Officer of the 
California State Automobile Association.
    Eric--is that Dreiband (Dree-band) or Dreiband (Dry-band)?
    Mr. Dreiband. Dreiband (Dry-band).
    The Chairman. Dreiband. Eric Dreiband is a partner at the 
law firm of Jones Day. From 2003 to 2005, Mr. Dreiband served 
as a general counsel of the EEOC. Prior to becoming EEOC 
general counsel, Mr. Dreiband served as Deputy Administrator of 
the U.S. Department of Labor's Wage and Hour Division.
    I thank you all for being here. Your written testimonies 
will be made a part of the record in their entirety, and I 
would like to ask if you could just sum up in 5 minutes as we 
go down the panel.
    First, we turn to Mr. Gross. I know you wish it were 
otherwise, but your name has now become--how would I say--
engraved in those infamous--in the litany of Supreme Court 
cases that people refer to that changed some settled law and 
has now become the focus of legislative interest in changing 
and overcoming that Supreme Court decision.
    Mr. Gross, thank you for being here and please proceed.

           STATEMENT OF JACK GROSS, CPCU, CLU, ChFC, 
                         DES MOINES, IA

    Mr. Gross. Thank you, chairman and committee members. I 
would like to say again, Senator Harkin, how pleased and proud 
I am to have a fellow Iowan leading the charge on this 
important cause.
    It is an honor for me to be here and to be given an 
opportunity to speak out on behalf of millions of older 
workers, all too many of whom, like myself, have experienced 
age discrimination.
    You invited me here to share my story, since I have become 
the name associated with age discrimination. Talk about 
unintended consequences. I certainly never imagined that my 
case would end up here.
    I would like for you to keep in mind that while I think my 
case is personal and unique, in effect, it is one that is being 
duplicated millions of times around the country almost every 
day and ask that you envision those millions of people, who are 
also depending on you, as standing behind me, at least in 
spirit.
    Seven years ago, much to my surprise, my employer, Farm 
Bureau Insurance or FBL suddenly demoted all claims employees 
who were 50 and over and who were supervisors and above.
    I was included in that sweep, even though I had 13 
consecutive years of performance reviews in the top 3 to 5 
percent of the company and had dedicated most of my career to 
making Farm Bureau a better company. My contributions were 
exceptional that were well documented and a jury had a chance 
to hear all of those.
    Since age was the obvious reason, I filed a complaint, and 
2 years later, a jury spent an entire week listening to all of 
the testimony, seeing all the evidence and being instructed on 
the law as you wrote it.
    The verdict came back in my favor, in spite of what my 
attorneys called a scorched-earth defense, and I thought the 
ordeal was over in 2005. As we now know, that was just the 
beginning.
    After that, FBL appealed and got my jury verdict 
overturned. Even though I had proved my case by a preponderance 
of the evidence, the appeals court said that, in their opinion, 
I did not show the right kind of evidence or, as they said, so-
called direct evidence. I am still not sure I know what all 
that means.
    That left us no choice but to appeal it to the Supreme 
Court, and we were obviously thrilled because getting to the 
Supreme Court is pretty hard to do, and when they accepted 
certiorari on our case, we were, quite frankly, very optimistic 
knowing that 30 decades of court precedent and legislative 
action had done nothing but reinforce the laws on age 
discrimination.
    When we got there, however, the Supreme Court broke with 
their own protocol and allowed defense to advance an entirely 
new argument when it had not been briefed, nor had we been 
given an opportunity to prepare a rebuttal.
    In other words, they highjacked my case as a vehicle to 
water down the Age Discrimination in Employment Act, a law 
written by the branch of government closest to the people when 
I was 19 years old.
    My wife and I--Marlene--came to DC last year believing our 
highest court would uphold the rule of law and consistently 
apply it to all areas of discrimination. Instead, in effect, 
they created an anarchy of discrimination, where title VII 
cases were one level or one tier and all other types of 
discrimination, including age, were a second lower tier and 
required a different level of proof.
    To me, discrimination is discrimination and it feels pretty 
much the same regardless of whether it was because of gender or 
race or because you happened to grow old, all things beyond a 
worker's control. We interpreted the law to mean that there 
should be equality in the workplace as long as you are willing 
and able to do the job, regardless of circumstances that are 
beyond your control.
    Since the Supreme Court's decision in my case, I have been 
particularly distressed over the collateral damage that has now 
been inflicted on others because of the court's ruling. I hate 
having my name associated with the pain and injustice now being 
inflicted on older workers because it is nearly impossible to 
provide the level of proof now required by the court.
    I have to keep reminding myself that I am not really the 
one who changed the law. Five Supreme Court Justices did, and 
since it was a five-four split, you could probably argue one 
person actually changed it.
    I believe 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. It simply 
states that everyone has a right to be treated equal in 
employment.
    I am here to urge you, on behalf of myself and millions of 
older Americans who want to continue working to pass this bill 
in the same bipartisan spirit you have shown in the past.
    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.
    Marlene, my wife and I--to whom I have been married for 43 
years--started off with absolutely nothing but a strong work 
ethic and a determination to build a good life, and we did, 
against all odds. We have two wonderful grown children and two 
delightful grandchildren who are the joys of our life.
    Frankly, I agonized over this decision from the start. My 
wife and I set down, we prayed about it. We decided it had to 
be done, that we left the outcome in God's hands. And if my 
experience eventually prevents anyone else from having to 
endure the pain and humiliation of discrimination, I will 
always believe that this effort was part of God's plan for my 
life, and, by extension, perhaps also for yours.
    My advice from the folks back home was to just come out 
here and tell you to just get her done, and message delivered.
    Thank you very much.
    [The prepared statement of Mr. Gross follows:]
           Prepared Statement of Jack Gross, CPCU, CLU, ChFC
    I am honored to be here and to be given an opportunity to speak out 
on behalf of the baby boomer generation, many of whom like me, have 
experienced age discrimination. You invited me here to share my story 
since I have, because of a Supreme Court ruling, become the new name 
associated with age discrimination. I am happy to do so.
    To me, of course, my story is personal and unique. I ask you to 
keep in mind, however, that key aspects of my story have, and are being 
duplicated millions of times across this country. Please, envision 
those millions who are depending on you standing behind me today. In 
spirit, they are.
    I certainly never imagined that my case would end up here when it 
all started over 7 years ago. That is when my employer, Farm Bureau 
Insurance, or FBL, merged with the Kansas Farm Bureau. Apparently not 
wanting to add any more older workers, they offered the Kansas claims 
employees who were over 50 a buyout to purge them from the company. At 
the same time, they just demoted all claims employees in the Iowa 
operation who were 50 and over and had supervisory or higher positions. 
Only one person who was under 50, but approaching it, was demoted.
    Being 54 at the time, I was included in that sweep, even though I 
had 13 consecutive years of performance reviews in the top 3-5 percent 
of the company, and had dedicated most of my working career to making 
Farm Bureau a better company. My contributions were exceptional and 
well documented. Not least was managing what Farm Bureau called its 
biggest undertaking ever. In 1997, I was asked to take all of our 
existing property and casualty policies, re-write them in a way they 
could be easily understood, and combine them into a totally unique 
package policy unlike anyone else had in our market. And, they asked me 
to do it in a year. I did, and it is still their exclusive and very 
popular modular product, upon which they are basing their future. That 
was only one of many valuable contributions I made to FBL, but my time 
is limited. The jury that decided my case heard all about them.
    Since age was the obvious reason, I filed a complaint, and 2 years 
later a Federal jury spent a week listening to all the testimony, 
seeing all of the evidence, and being instructed on the ADEA. They were 
also instructed to rule in my favor if I had proved by a preponderance 
of evidence that age was a motivating factor, and also that they should 
rule in favor of FBL if they could find any reason, other than age, for 
my demotion. The verdict came back in my favor, and I thought the 
ordeal was over in 2005. As we now know, it was just the beginning.
    After that, FBL appealed and got my jury verdict overturned on what 
I consider a technicality in the jury instruction. Apparently, most 
courts said that, in a so-called mixed motive case, any kind of 
evidence was sufficient. But, the 8th Circuit said I had to have so-
called ``direct'' evidence. That left us no choice but to appeal it to 
the Supreme Court.
    We were optimistic and grateful when the court accepted cert on 
whether direct evidence was required to get a mixed-motive instruction. 
Precedent and legislation, we felt, were overwhelmingly on our side. At 
the hearing, however, the Supreme Court broke their own protocol and 
allowed the defense to advance an entirely new argument. It had not 
been briefed, nor had we been given an opportunity to prepare a 
rebuttal. To make a long story short, the court essentially hijacked my 
case and used it as a vehicle to water down the ADEA, a law written by 
the branch of government closest to the people. Editorials and bloggers 
dubbed me this year's Lily Ledbetter. (I take that as a compliment.)
    My wife and I came to this town last March expecting to see our 
high court at its best. We believed in the rule of law and its 
consistent application to all areas of discrimination. Needless to say, 
we were disappointed, disillusioned, and quite frankly embarrassed by 
the arrogance we witnessed. I felt the High Court had pulled a ``bait 
and switch'' on me.
    As it stands now, I have a new trial scheduled for November of this 
year, nearly 8 years after the unjustified and unlawful demotion. In 
that time, witnesses have moved out-of-state, memories have faded, and 
the court has changed the rules. My trust in the judicial system is 
shattered. I used to believe that our courts tried to uphold and 
sanctify the decisions of our citizen juries, instead of second-
guessing their ability to understand the letter and spirit of the law.
    That is the story of my discrimination experience. I do not have 
time to share much of my personal background, so I will be very brief. 
I grew up in a small town in southern Iowa. My dad was a highway 
patrolman and my mother a school teacher. I overcame chronic health 
problems to achieve my education and success. My wife, to whom I have 
been married for 43 years, and I started with absolutely nothing but a 
determination to build a good life, and we did against all odds. We 
have two wonderful grown children and two grandchildren who are the 
lights of our lives. I am very proud of my family and of my 
professional accomplishments.
    Since I was integrally involved in defending FBL for many years as 
a claims manager, I am probably an unlikely candidate to be here. We 
believe that is the reason FBL has defended this case so aggressively, 
and that it explains the intensity of the retaliation I endured over 
the past 7 years while the litigation proceeded. I finally retired last 
December because the stress of that retaliation was causing me health 
problems.
    Since the Supreme Court's decision in my case, I have been 
particularly distressed over the collateral damage that is being 
inflicted on others because of the Court's ruling. I hate having my 
name associated with the pain and injustice now being inflicted on 
older workers, because it is nearly impossible to provide the level of 
proof now required by the Court. I have to keep reminding myself that I 
am not the one who changed the law. Five powerful men in black robes 
did it.
    As a citizen, I believe this body--Congress--has a long history of 
working together, on a bi-partisan basis, to create and maintain a 
level playing field in the workplace. The ADEA, and the ensuing 
legislation that reinforced its intent, is but one example. As a 
citizen, it clearly says to me that Congress intended to put an end to 
discrimination in employment practices. I believe the same is true for 
most jurors. We do not parse individual words the way judges and some 
attorneys do. We know what ``is'' is. The ADEA simply states that it 
shall be unlawful to discriminate because of age. We get it. This 
Supreme Court apparently does not. Justice Thomas challenged you to 
state that age has to be ``a motivating factor'' if that is what you 
intended. The Protecting Older Workers Against Discrimination Act does 
that, and I urge you, on behalf of myself and the millions of baby 
boomers behind me who have been paying the bills for a generation and 
want to continue working, to pass it in the same bipartisan spirit you 
have shown in the past.
    Finally, one of my jurors, during voir dire, said that she just 
could not understand how a man could sue a company that gave him a job. 
Her words resonated with me. I agonized over the decision to pursue 
this. The folks standing behind me understand. My wife and I prayed 
about it, decided it had to be done, and then we left the outcome in 
God's hands. If my experience eventually prevents anyone else from 
having to endure the pain and humiliation of discrimination, I will 
always believe that this effort was part of God's plan for my life.
    Thank you.

    The Chairman. Mr. Gross, thank you very much, a very 
poignant and straightforward presentation.
    Ms. Norton, welcome and, again, please proceed.

 STATEMENT OF HELEN NORTON, PROFESSOR, UNIVERSITY OF COLORADO 
                    LAW SCHOOL, BOULDER, CO

    Ms. Norton. Good morning. Thank you, Mr. Chairman, and 
thank you, Senator Franken, for the opportunity to join you 
today.
    The Supreme Court's 2009 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 
employment laws.
    In response, S. 1756 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 removing and 
deterring barriers to equal employment opportunity.
    As you know, current Federal law prohibits job 
discrimination because of certain characteristics. For example, 
the Age Act prohibits employers from discriminating against an 
individual because of such individual's age, and these 
causation provisions require proof of a nexus or a connection 
between the defendant's discriminatory behavior and the adverse 
action experienced by the plaintiff.
    Employment decisions, like so many human decisions, are 
sometimes driven by multiple motives, and these mixed-motive 
cases raise a challenging causation question: When multiple 
factors 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 that 
decision because of discrimination, in violation of Federal 
law?
    In answering this question, the Supreme Court's decision in 
Gross departed from 20 years of precedent to articulate a brand 
new causation standard for the ADEA. Under the court's new 
rule, which adopts an approach that had been rejected both by 
an earlier Supreme Court in 1989 in Price Waterhouse, and by 
Congress in the Civil Rights Act of 1991.
    Under the Gross rule, instead, 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.
    Proving that age was the ``but-for'' cause of an action 
requires us to imagine a situation identical to the identical 
facts that really happened, except that we remove the 
defendant's wrongful behavior--here it is age discrimination--
and then we ask whether the employer would have taken the same 
action even if it had behaved correctly in not considering age.
    Requiring the plaintiff to bear the burden of 
reconstructing that sort of hypothetical scenario is especially 
difficult after the fact when the defendant is in a much better 
position than the plaintiff to show how it would have acted and 
what was in its mind at the time of the decision.
    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 finds them less creative, less energetic and less 
productive.
    Suppose, too, that the employer ultimately hires another 
applicant who is arguably even more qualified than the 
plaintiff for the position. Under the court's new rule, even if 
the plaintiff can prove that the employer relied on inaccurate 
and stigmatizing age-based stereotypes--and, in fact, in 
response to Senator Franken's question, even if the employer 
admits that it relied on inaccurate and stigmatizing age-based 
stereotypes in its decision to reject the plaintiff--under the 
Gross rule, the employer will entirely escape liability, unless 
the plaintiff can also prove that the employer would not have 
made the same decision absent age discrimination.
    By permitting the employer to escape liability altogether 
for its proven discrimination, and thus giving the employer no 
incentive to refrain from similar behavior in the future, the 
Gross rule undermines Congress' efforts to stop and deter 
workplace bias.
    Not only does Gross significantly narrow the scope of 
protections available to older workers under the ADEA, it 
threatens workers' rights to be free from discrimination and 
retaliation in a wide range of other contexts. Lower courts 
have already begun to apply the court's new standard in Gross 
to claims involving other Federal employment protections.
    S. 1756 would replace the Gross standard with a uniform 
standard that furthers Congress' interest in preventing and 
deterring workplace bias. More specifically, S. 1756 would 
apply the standard adopted by Congress with respect to title 
VII and the Civil Rights Act of 1991, a standard proven 
workable after nearly two decades in operation, to other 
Federal laws that prohibit job discrimination and retaliation.
    S. 1756 would thus make clear that a plaintiff establishes 
a violation of the ADEA or any other Federal employment anti-
discrimination or anti-retaliation statute by proving that age 
or another protected characteristic was a motivating factor for 
an employment decision.
    The burden would then shift to the employer to prove that 
it would have taken the same action even absent discrimination. 
And if the employer satisfies that burden, a court cannot order 
hiring, reinstatement, promotion, back pay or damages.
    The employer, however, would still remain liable for 
declaratory and certain injunctive relief along with part of 
the plaintiff's fees and costs, and, most importantly, this 
includes something that is valuable both to the plaintiff and 
to the public at large. This would empower the court to issue 
an injunction ordering the defendant to cease and desist from 
continuing to engage in discrimination in the future.
    If our focus is, as it should be, on stopping 
discrimination, empowering courts to enjoy continuing 
discrimination is one of the most important powers Congress can 
confer.
    As Congress recognized in enacting the Civil Rights Act of 
1991, this approach helps prevent and deter discrimination by 
ensuring that an employer proven to have engaged in 
discrimination cannot completely escape liability for their 
actions while leaving employers free to make decisions based on 
ability or any other non-discriminatory factor.
    I thank you for the chance to join you today.
    [The prepared statement of Ms. Norton follows:]
                   Prepared Statement of Helen Norton
                                summary
    The Supreme Court's 2009 decision in Gross v. FBL Financial 
Services, Inc. significantly undermines older workers' ability to 
enforce their rights under the Age Discrimination in Employment Act, 
and threatens to do the same for workers seeking to enforce their 
rights to be free from discrimination and retaliation under a wide 
range of other Federal employment laws. Under the Court's new rule--
which adopts an approach rejected both by the Supreme Court's earlier 
decision in Price Waterhouse v. Hopkins and by Congress in the Civil 
Rights Act of 1991--the burden of persuasion 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. Moreover, lower 
courts have already begun to apply the Court's new standard in Gross to 
claims under other Federal employment laws, requiring the plaintiff not 
only to prove that discrimination or retaliation motivated the 
decision, but also to bear the burden of proving that such 
discrimination was the ``but-for'' cause of the decision.
    S. 1756 would replace the causation rule articulated by the Gross 
Court with the causation standard long in place under title VII 
pursuant to the Civil Rights Act of 1991. More specifically, S. 1756 
would make clear that a plaintiff establishes an unlawful employment 
practice under the ADEA (and any other Federal employment 
antidiscrimination or antiretaliation statute) by proving that age (or 
other protected characteristic) was a motivating factor for an 
employment decision. The burden of proof then shifts to the employer to 
establish that it still would have taken the same action absent its 
discrimination. If the employer satisfies that burden, it will be 
liable only for declaratory relief, certain injunctive relief, and part 
of the plaintiff's attorney's fees and costs, and a court may not order 
the hiring, reinstatement, or promotion of the individual, nor the 
payment of back pay to the individual. As Congress recognized in 
enacting the Civil Rights Act of 1991, this approach--which shifts the 
burden of proof to the employer to limit remedies rather than to defeat 
liability entirely--best achieves antidiscrimination laws' key purposes 
of preventing and deterring future discrimination by ensuring that 
employers proven to have engaged in discrimination cannot completely 
escape liability for their actions. Indeed, this approach enables 
Federal courts to retain judicial power to order correction of the 
wrongful conduct in the form of declaratory and certain injunctive 
relief. Once the plaintiff proves that the employer engaged in 
discrimination and thus violated Federal law, the employer may still 
substantially limit the available remedies, however, by showing that it 
would have made the same decision in a workplace free from 
discrimination.
                                 ______
                                 
    Thank you for the opportunity to join you today. My testimony here 
draws from my work as a law professor teaching and writing about 
employment discrimination issues, as well as my experience as a Deputy 
Assistant Attorney General for Civil Rights in the Department of 
Justice during the Clinton administration, where my duties included 
supervising the Civil Rights Division's employment discrimination 
enforcement efforts.
    The Supreme Court's 2009 decision in Gross v. FBL Financial 
Services, Inc.\1\ significantly undermines older workers' ability to 
enforce their rights under the Age Discrimination in Employment Act, 
and threatens to do the same for workers seeking to enforce their 
rights to be free from discrimination and retaliation under a wide 
range of other Federal employment laws. S. 1756 would replace the 
causation rule articulated by the Gross Court with the causation 
standard long in place under title VII that more effectively furthers 
Congress' key interest in removing and deterring barriers to equal 
employment opportunity.
---------------------------------------------------------------------------
    \1\ 129 S. Ct. 2343 (2009).
---------------------------------------------------------------------------
     ``causation'' in the context of federal antidiscrimination law
    Current Federal law prohibits job discrimination ``because of'' 
certain specified characteristics, such as race, color, sex, national 
origin, religion, age, genetic information, and disability.\2\ The Age 
Discrimination in Employment Act (ADEA), for example, provides that 
``[i]t shall be unlawful for an employer . . . to fail or refuse to 
hire or to discharge any individual with respect to his compensation, 
terms, conditions, or privileges of employment, because of such 
individual's age.'' \3\ Federal employment laws also frequently include 
antiretaliation provisions that prohibit an employer from 
discriminating against an individual ``because'' that individual 
reported potentially unlawful behavior, filed a charge of 
discrimination, or otherwise engaged in activity protected from 
retaliation under the statute.\4\ In short, these causation provisions 
require proof of a nexus or connection between the defendant's 
discriminatory behavior and the adverse employment action experienced 
by the plaintiff.
---------------------------------------------------------------------------
    \2\ See 42 U.S.C.  2000e-2 (Title VII of the Civil Rights Act of 
1964); 29 U.S.C.  623 (Age Discrimination in Employment Act); 42 
U.S.C.  12101 et seq. (Americans with Disabilities Act); 42 U.S.C.  
2000ff-1(a) (Genetic Information Nondiscrimination Act).
    \3\  29 U.S.C.  623(a)(1) (emphasis added).
    \4\ 4 See, e.g., 42 U.S.C.  2000e-3 (Title VII); 29 U.S.C.  
623(d) (ADEA).
---------------------------------------------------------------------------
    In many discrimination cases, the competing parties agree that a 
single factor ``caused'' an adverse employment decision, but vigorously 
disagree in identifying that factor. This is the case, for example, 
when the plaintiff contends that his employer discharged him ``because 
of '' his age, while the employer contends instead that it acted 
``because of'' some nondiscriminatory reason like performance. In such 
cases, the plaintiff bears the ultimate burden of persuading the 
factfinder that the decision was made ``because of '' age.\5\
---------------------------------------------------------------------------
    \5\ See, e.g., Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 
143 (2000).
---------------------------------------------------------------------------
    Employment decisions--like so many decisions made by human beings--
are sometimes driven by multiple motives. ``Mixed-motive'' claims thus 
raise a challenging causation question: when multiple motives inform 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 first addressed this question in 1989 in Price 
Waterhouse v. Hopkins,\6\ where six Justices interpreted title VII's 
statutory language prohibiting job discrimination ``because of '' race, 
sex, color, religion and national origin to prohibit adverse employment 
actions motivated in whole or in part by the plaintiff's protected 
characteristic. In that case, more specifically, they concluded that a 
plaintiff successfully proves that an employer discriminated ``because 
of sex'' when he or she has proven that sex was a motivating or a 
substantial factor in the employer's decision.\7\ Upon such a showing, 
they further ruled, the burden of persuasion then shifts to the 
employer, who may escape liability ``only by proving that it would have 
made the same decision even if it had not allowed gender to play such a 
role.'' \8\
---------------------------------------------------------------------------
    \6\ 490 U.S. 228 (1989).
    \7\ Id. at 241 (plurality opinion) (``It is difficult for us to 
imagine that, in the simple words `because of,' Congress meant to 
obligate a plaintiff to identify the precise causal role played by 
legitimate and illegitimate motivations in the employment decision she 
challenges. We conclude, instead, that Congress meant to obligate her 
to prove that the employer relied upon sex-based considerations in 
coming to its decision. . . . When, therefore, an employer considers 
both gender and legitimate factors at the time of making a decision, 
that decision was `because of sex' and the other, legitimate 
considerations--even if we may say later, in the context of litigation, 
that the decision would have been the same if gender had not been taken 
into account.''); see also id. at 259-60 (White, J., concurring); id. 
at 265 (O'Connor, J., concurring).
    \8\ Id. at 244-45 (plurality opinion); see also id. at 259-60 
(White, J., concurring); id. at 261 (O'Connor, J., concurring).
---------------------------------------------------------------------------
    Congress then addressed this issue, along with several others, with 
the enactment of the Civil Rights Act of 1991 and its series of 
amendments to title VII. Congress adopted the Price Waterhouse Court's 
burden-shifting framework, agreeing that the burden of proof should 
shift to the employer when the plaintiff proves that discrimination 
based on a protected characteristic was a motivating factor in the 
employer's decision. Congress and the Price Waterhouse Court thus both 
concluded that the defendant employer is in a better position than the 
plaintiff employee to reconstruct history and prove whether an employer 
who has been proven to have engaged in discrimination would have taken 
the same action in a workplace uninfected by bias.
    Expressing concern, however, that the Price Waterhouse rule still 
did not sufficiently deter employers from discrimination, Congress 
further amended title VII to make clear that a plaintiff has 
established a violation once he or she proves that race, sex, color, 
religion, or national origin was a motivating factor in the employer's 
decision.\9\ Upon such a showing, the burden of proof shifts to the 
employer not to escape liability but to substantially reduce the 
plaintiff's relief. An employer that then proves that it would have 
made the same decision even absent discrimination can limit available 
remedies to declaratory relief, certain injunctive relief, and part of 
the plaintiff's attorney's fees and costs--relieving the employer from 
exposure for back pay, damages, or reinstatement.\10\ This framework 
ensures both that a plaintiff is no better off than he or she would 
have been absent any discrimination and that Federal courts retain the 
power to enjoin the defendant's proven discrimination through 
declaratory and injunctive relief, thus encouraging equal employment 
opportunity in the future.
---------------------------------------------------------------------------
    \9\ See, e.g., H.R. REP. NO. 102-40(I), at 47 (1991), reprinted at 
1991 U.S.C.C.A.N. 549, 585 (``If Title VII's ban on discrimination in 
employment is to be meaningful, victims of proven discrimination must 
be able to obtain relief, and perpetrators of discrimination must be 
held liable for their actions. Price Waterhouse jeopardizes this 
fundamental principle.''); S. REP. NO. 315, 101st Cong., 2nd Sess. 48-
49 (1990) (describing Congressional intent to replace the Price 
Waterhouse causation standard with one that better deters 
discrimination).
    \10\ See 42 U.S.C.  2000e-2(m) (providing that ``an unlawful 
employment practice is established when the complaining party 
demonstrates that race, color, religion, sex, or national origin was a 
motivating factor for any employment practice, even though other 
factors also motivated the practice''); 42 U.S.C.  2000e-5(g)(2)(B) 
(restricting the remedies available to plaintiffs proving violations 
under  2000e-2(m) when the defendant proves that it would have taken 
the same action in the absence of the impermissible motivating factor).
---------------------------------------------------------------------------
    The 1991 Act's amendments with respect to title VII causation, 
however, did not expressly apply to the ADEA. For the approximately 20 
years between Price Waterhouse and Gross, lower courts thus routinely 
interpreted the ADEA and other employment discrimination statutes that 
borrowed title VII's language prohibiting discrimination ``because of'' 
a protected characteristic in a manner consistent with the Court's 
interpretation of that identical language in Price Waterhouse. For 
example, during that time, lower courts uniformly understood Price 
Waterhouse as providing the causation standard for the ADEA's 
prohibition of job discrimination ``because of '' age, thus permitting 
a plaintiff who proves that age was a motivating factor in an 
employer's decision to establish liability unless the employer could 
then prove that it would have made the same decision in a workplace 
free from age discrimination.\11\
---------------------------------------------------------------------------
    \11\ For examples of lower courts' application of the Price 
Waterhouse causation standard to the ADEA in the years before Gross, 
see Febres v. Challenger Caribbean Corp., 214 F.3d 57 (1st Cir. 2000); 
Ostrowski v. Atlantic Mut. Ins. Co., 968 F.2d 171 (2nd Cir. 1992); 
Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089 (3rd Cir. 1995); 
EEOC v. Warfield-Rohr Casket Co., 364 F. 3d 160 (4th Cir. 2004); Rachid 
v. Jack in the Box, Inc., 376 F. 3d 305 (5th Cir. 2004); Wexler v. 
White's Fine Furniture, Inc., 317 F. 3d 564 (6th Cir. 2003); Hutson v. 
McDonnell Douglas Corp., 63 F. 3d 771 (8th Cir. 1995); Lewis v. YMCA, 
208 F.3d 1303 (11th Cir. 2000).
---------------------------------------------------------------------------
 the damaging consequences of the supreme court's decision in gross v. 
                      fbl financial services, inc.
    The Supreme Court's 5-4 decision in Gross v. FBL Financial 
Services, Inc. \12\ brought a dramatic--and unwelcome--change to this 
landscape. After receiving instructions consistent with Price 
Waterhouse and nearly 20 years of case law, a jury concluded that Mr. 
Gross had proved that age was a motivating factor in the defendant's 
decision to demote him and that the defendant had not proved that it 
would have demoted him regardless of his age. It thus found that Mr. 
Gross had established that his employer had violated the ADEA, and 
awarded him approximately $47,000 in lost compensation. The Supreme 
Court, however, vacated his award. Departing from 20 years of 
precedent, it articulated a brand-new causation standard for the ADEA 
that erects substantial barriers in the path of older workers seeking 
to enforce their right to be free from discrimination.\13\
---------------------------------------------------------------------------
    \12\ 129 S. Ct. 2343 (2009).
    \13\ For additional discussion of the Gross decision and its 
implications, see Melissa Hart, Procedural Extremism: The Supreme 
Court's 2008-09 Labor and Employment Cases, 13 EMP. RTS. & EMP. POL'Y 
J. 253, 263-73 (2009); Martin J. Katz, Gross Disunity, 114 PENN ST. L. 
REV. 857 (2010); Leigh A, Van Ostrand, A Close Look at ADEA Mixed-
Motives Claims and Gross v. FBL Financial Services, Inc., 78 FORDHAM L. 
REV. 399 (2009).
---------------------------------------------------------------------------
    The Gross Court first characterized Congress' 1991 decision to 
amend title VII's causation standard--but not that of the ADEA--as 
evidence that Congress intended the two statutes to provide different 
levels of protection. \14\ Next, after strongly suggesting that Price 
Waterhouse was wrongly decided,\15\ the Gross Court limited Price 
Waterhouse in any event as applicable only to title VII.\16\ It then 
insisted upon a new interpretation of the identical language under the 
ADEA, holding that the burden of persuasion never shifts to the 
defendant even after the plaintiff proves that age was a motivating 
factor in the decision. Under the Court's new rule--a rule rejected 
both by the Price Waterhouse Court \17\ 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.\18\
---------------------------------------------------------------------------
    \14\ See Gross, 129 S. Ct. at 2349 (``We cannot ignore Congress' 
decision to amend title VII's relevant provisions but not make similar 
changes to the ADEA. When Congress amends one statutory provision but 
not another, it is presumed to have acted intentionally.'').
    \15\ See id. at 2351-52 (``[I]t is far from clear that the Court 
would have the same approach were it to consider the question today in 
the first instance.'').
    \16\ See id. at 2352 (``Thus, even if Price Waterhouse was 
doctrinally sound, the problems associated with its application have 
eliminated any perceivable benefit to extending its framework to ADEA 
claims.'').
    \17\ Indeed, the Price Waterhouse Court explicitly rejected such a 
``but-for'' standard when interpreting title VII's parallel prohibition 
of job discrimination ``because of'' sex:

          We take these words to mean that gender must be irrelevant to 
employment decisions.
          To construe the words `because of' as colloquial shorthand 
for `but-for' causation . . . is
          to misunderstand them. But-for causation is a hypothetical 
construct. In determining
          whether a particular factor was a but-for cause of a given 
event, we begin by assuming
          that that factor was present at the time of the event, and 
then ask whether, even if
          that factor had been absent, the event nevertheless would 
have transpired in the same
          way. The present, active tense of the operative verbs [in 
title VII] in contrast, turns
          our attention to the actual moment of the event in question, 
the adverse employment
          decision. The critical inquiry . . . is whether gender was a 
factor in the employment
          decision at the moment it was made.

    Price Waterhouse, 490 U.S. at 240-41 (plurality opinion) (emphasis 
in original).

    \18\ Gross, 129 S. Ct. at 2352 (``We hold that a plaintiff bringing 
a disparate-treatment claim pursuant to the ADEA must prove, by a 
preponderance of the evidence, that age was the `but-for' cause of the 
challenged adverse employment action. The burden of persuasion does not 
shift to the employer to show that it would have taken the action 
regardless of age, even when a plaintiff has produced some evidence 
that age was one motivating factor in that decision.'').
---------------------------------------------------------------------------
    Proving that age was the ``but-for'' cause of an action requires us 
to imagine a situation identical to the actual facts, except that we 
remove the defendant's wrongful behavior--its age discrimination--and 
then ask whether the employer would have taken the same adverse action 
against the plaintiff even if it had behaved correctly. Requiring the 
plaintiff to bear the burden of reconstructing such a decisionmaking 
scenario is especially difficult after the fact, as the defendant is in 
a better position than the plaintiff to show how it would have acted in 
such a hypothetical situation. As Justice Breyer explained in his Gross 
dissent: ``The answer to this hypothetical inquiry will often be far 
from obvious, and, since the employee likely knows less than does the 
employer about what the employer was thinking at the time, the employer 
will often be in a stronger position than the employee to provide the 
answer.'' \19\
---------------------------------------------------------------------------
    \19\ Id. at 2359 (Breyer, J., dissenting); see also id. (explaining 
that Price Waterhouse permitted the employer an affirmative defense to 
liability, ``not because the forbidden motive, age, had no role in the 
actual decision, but because the employer can show that he would have 
dismissed the employee anyway in the hypothetical circumstance in which 
his age-related motive was absent. And it makes sense that this would 
be an affirmative defense, rather than part of the showing of a 
violation, precisely because the defendant is in a better position than 
the plaintiff to establish how he would have acted in this hypothetical 
situation.'') (emphasis in original).
---------------------------------------------------------------------------
    Consider 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 finds 
them to be less energetic, less creative, and generally less 
productive. Suppose too that the employer ultimately hires another 
applicant who was arguably even more qualified than the plaintiff for 
the position. Under the Court's new rule in Gross, even if the 
plaintiff can prove that the employer relied on inaccurate and 
stigmatizing age-based stereotypes in its decision to reject her,\20\ 
the employer will escape ADEA liability altogether if the plaintiff 
cannot also prove that the employer would have made the same decision 
even absent age discrimination. In this way, the Gross rule permits an 
employer to avoid liability altogether for its proven discrimination--
indeed, even when there is ``smoking gun'' direct evidence of 
discrimination--when the challenged action, though infected by 
discrimination, is also supported by nondiscriminatory reasons. By 
permitting employers to escape liability altogether for such 
discriminatory conduct, with no incentive to refrain from similar 
discrimination in the future, the Gross rule thus undermines Congress' 
efforts to stop and deter workplace discrimination through the 
enactment of Federal antidiscrimination law.
---------------------------------------------------------------------------
    \20\ See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (``It 
is the very essence of age discrimination for an older employee to be 
fired because the employer believes that productivity and competence 
decline with old age. . . . Congress' promulgation of the ADEA was 
prompted by its concern that older workers were being deprived of 
employment on the basis of inaccurate and stigmatizing stereotypes.'').
---------------------------------------------------------------------------
    Not only does Gross significantly narrow the scope of protections 
available to older workers under the ADEA,\21\ it threatens workers' 
rights to be free from discrimination and retaliation in a wide range 
of other contexts as well. Although Gross binds lower courts only with 
respect to the ADEA, the Court clearly signaled its unwillingness to 
interpret other statutes in a manner consistent with the Price 
Waterhouse Court's interpretation of identical language, thus 
destabilizing courts' longstanding expectation that Congress 
incorporated the same language in different employment laws because it 
intended consistent interpretation of those laws.\22\ For this reason, 
lower courts have already begun to apply the Court's new standard in 
Gross to claims under other laws, requiring the plaintiff not only to 
prove that discrimination or retaliation motivated the decision, but 
also to bear the burden of proving that such discrimination was the 
``but-for'' cause of the decision. These include cases alleging job 
discrimination because of disability in violation of the Americans with 
Disabilities Act,\23\ job discrimination because of protected speech 
under 42 U.S.C.  1983,\24\ interference with pension rights in 
violation of ERISA,\25\ and job discrimination based on an employee's 
jury service in violation of the Jury Systems Improvement Act.\26\ 
Other courts have speculated about the application of the Gross 
standard to still other Federal laws providing important employment 
protections, such as 42 U.S.C.  1981 and the Family and Medical Leave 
Act.\27\
---------------------------------------------------------------------------
    \21\ See, e.g., Martino v. MCI Communications Services, Inc., 574 
F.3d 447, 455 (7th Cir. 2009) (``And if there were any doubt that 
Martino cannot survive summary judgment, it evaporates completely in 
the wake of the Supreme Court's decision in Gross. The Court held that 
in the ADEA context, it's not enough to show that age was a motivating 
factor. The plaintiff must prove that, but for his age, the adverse 
action would not have occurred. Martino cannot handle that. At best, he 
has done no more than show that his age possibly solidified the 
decision to include him in the RIF. But a reasonable jury could only 
conclude that he would have been fired anyway; age was not a but-for 
cause.'') (citations omitted; emphasis in original); Geiger v. Tower 
Automotive, 579 F.3d 614, 621 (6th Cir. 2009) (``Gross overrules our 
ADEA precedent to the extent that cases applied title VII's burden-
shifting framework if the plaintiff produced direct evidence of age 
discrimination.''); Fuller v. Seagate Technology, 651 F. Supp. 2d 1233, 
1248 (D. Colo. 2009) (``[T]his Court interprets Gross as elevating the 
quantum of causation required under the ADEA. After Gross, it is no 
longer sufficient for Plaintiff to show that age was a motivating 
factor in Defendant's decision to terminate him. Instead, Plaintiff 
must present evidence establishing that age discrimination was the `but 
for' cause of Plaintiff's termination.' '').
    Some lower courts have relied on Gross to narrow the protections 
available for older workers even more dramatically. For example, some 
have misinterpreted the Court's requirement that the plaintiff prove 
that age was the ``but-for'' cause of the adverse employment action to 
mean that the plaintiff must prove that age was the sole reason for the 
adverse action. See, e.g., Culver v. Birmingham Bd. Of Education, 646 
F. Supp. 2d 1270, 1271-72 (N.D. Ala. 2009) (``Gross holds for the first 
time that a plaintiff who invokes the ADEA has the burden of proving 
that the fact he is over 40 years old was the only or the but for 
reason for the alleged adverse employment action. The only logical 
inference to be drawn from Gross is that an employee cannot claim that 
age is a motive for the employer's adverse conduct and simultaneously 
claim that there was any other proscribed motive involved.'') (emphasis 
in original); Wardlaw v. City of Philadelphia, 2009 WL 2461890 at *7 
(E.D. Pa. 2009) (``The Supreme Court held in Gross that a plaintiff can 
only prevail on an age-related employment discrimination claim if that 
is the only reason for discrimination. Even if Wardlaw's assertion that 
the City's motion for summary judgment rests solely on unsubstantiated 
evidence is correct, the City has no burden to refute her claim until 
she presents direct evidence that her age was the sole reason for the 
discrimination and retaliation she alleges to have experienced. . . . 
Because she cites multiple bases for her discrimination claim, 
including her gender, race, and disability, Wardlaw is foreclosed from 
prevailing on a claim for age-related discrimination.''); see also Bell 
v. Raytheon, Co., 2009 WL 2365454 at *5 (N.D. Tex. 2009) (``[T]he court 
will not shift the burden to the defendant to articulate a legitimate 
nondiscriminatory reason unless the plaintiffs show that age was the 
``but-for'' cause of any adverse employment actions.'').
    \22\ See Gross, 129 S. Ct. at 2349 (``When conducting statutory 
interpretation, we `must be careful not to apply rules applicable under 
one statute to a different statute without careful and critical 
examination.' '') (citation omitted).
    \23\ Serwatka v. Rockwell Automation, Inc. 591 F.3d 957, 961 (7th 
Cir. 2010) (``Although the Gross decision construed the ADEA, the 
importance that the court attached to the express incorporation of the 
mixed-motive framework into title VII suggests that when another anti-
discrimination lacks comparable language, a mixed-motive claim will not 
be viable under that statute.'').
    Note that the ADA, properly construed, authorizes mixed motive 
claims consistent with the standards identified in the Civil Rights Act 
of 1991. The ADA's enforcement provisions specifically incorporate the 
powers, remedies and procedures of title VII, including the title VII 
provision authorizing certain remedies where the plaintiff has proven 
mixed motive discrimination. 42 U.S.C. 12117 (``The powers, remedies, 
and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-
8, and 2000e-9 shall be the powers, remedies, and procedures this 
subchapter provides to . . . any person alleging discrimination on the 
basis of disability in violation of any provision of this chapter . . . 
concerning employment.''). Thus, Congress clearly envisioned that 
relief would be available for mixed motive discrimination under the 
ADA, just as it is available under title VII. In addition, in 
amendments to the ADA in 2008, Congress changed the Act's employment 
provisions to bar discrimination ``on the basis of disability'' rather 
than ``because of'' disability. ADA Amendments Act of 2008, Pub. L. No. 
110-325, 5(a) (codified at 42 U.S.C. 12112(a)). This change to the 
ADA's causation language was intended to align the ADA even more 
clearly with title VII. See, e.g., Senate Statement of Managers for 
Pub. L. No. 110-325; H. REP. NO. 110-730 (I), at 6 (2008). Despite 
these indications of congressional intent in both the original ADA, and 
the ADA Amendments Act, the Seventh Circuit, as noted above, relied on 
Gross to conclude that the original ADA does not permit such claims 
because the ADA's employment title does not directly mirror title VII's 
explicit scheme concerning mixed motive claims. The court noted, 
however, that it was not deciding whether the ADA Amendments Act of 
2008 necessitated a different result, since the amendments did not 
control the case before it. Serwatka, 591 F.3d at 962 n.1.
    \24\ e.g., Fairley v. Andrews, 578 F. 3d 518, 525-26 (7th Cir. 
2009) (applying Gross to public employees' claims under 42 U.S.C. 1983 
and characterizing Gross as holding that, ``unless a statute (such as 
the Civil Rights Act of 1991) provides otherwise, demonstrating ``but-
for'' causation is part of the plaintiff's burden in all suits under 
federal law.'').
    \25\ Nauman v. Abbott Laboratories, CA 04-7199 (N.D. Ill. April 22, 
2010) (observing that, in light of Gross, ``plaintiffs have apparently 
withdrawn their theory that defendants could be found liable for ERISA 
violations if plaintiffs proved an intent to interfere with benefits 
partially motivated defendants' implementation of the spin and 
attendant policies. The court agrees with defendants that the Gross 
line of cases stands for the proposition that, unless a statute such as 
Title VII of the Civil Rights Act specifically provides for liability 
in a `mixed motive' case, the prohibited motivation must be the 
motivating factor, rather than simply a motivating factor.'') (citation 
omitted).
    \26\ Williams v. District of Columbia, 646 F. Supp. 2d. 103, 109 
(D.D.C. 2009) (``Thus, under Gross, Dr. Jackson must prove by a 
preponderance of the evidence that she was `excessed' [involuntarily 
transferred to a less desirable position] `by reason of' her jury 
service--that is, that jury service was the `but-for' cause of the 
decision to excess her. The Court has no doubt that Dr. Jackson's jury 
service was a motivating factor behind Ms. Warley's acceptance of the 
loss of a guidance counselor, who otherwise is of particular assistance 
to a principal in dealing with behavior and other student problems. 
What is lacking is any evidence that her jury service was `the ``but-
for'' cause,' of the decision. . .'') (emphasis in original).
    \27\ See, e.g., Brown v. J. Kaz, Inc., 581 F.3d 175, 187 (3rd Cir. 
2009) (Jordan, J., concurring) (``[I]t seems quite possible that, given 
the broad language chosen by the Supreme Court in Gross, a critical re-
examination of our [section 1981] precedent may be in order.''); Crouch 
v. J.C. Penney Corp., Inc., 337 Fed. Appx. 399, 402 n.1 (in the context 
of an FMLA case, noting that ``[t]he Supreme Court's recent opinion in 
Gross raises the question of whether the mixed-motive framework is 
available to plaintiffs alleging discrimination outside of the Title 
VII framework'') (citation omitted).
---------------------------------------------------------------------------
 s. 1756 would replace the gross standard with a uniform standard that 
      furthers congress' interest in preventing and deterring job 
                     discrimination and retaliation
    S. 1756--the ``Protecting Older Workers Against Discrimination 
Act''--would apply the standard adopted by Congress with respect to 
Title VII in the Civil Rights Act of 1991 to make clear that a 
plaintiff establishes an unlawful employment practice under the ADEA 
(and any other Federal employment antidiscrimination or antiretaliation 
statute) by proving that age (or other protected characteristic) was a 
motivating factor for an employment decision.\28\ The burden of proof 
then shifts to the employer to establish that it still would have taken 
the same action absent its discrimination. If the employer satisfies 
that burden, it will be liable only for declaratory relief, certain 
injunctive relief, and part of the plaintiff's attorney's fees and 
costs,\29\ and a court may not order the hiring, reinstatement, or 
promotion of the individual, nor the payment of back pay to the 
individual.\30\
---------------------------------------------------------------------------
    \28\ S. 1756,  3 (``[A] plaintiff establishes an unlawful 
employment practice if the plaintiff demonstrates by a preponderance of 
the evidence that . . . an impermissible factor under that Act or 
authority was a motivating factor for the practice complained of, even 
if other factors also motivated that practice.'').
    \29\ The availability of limited attorney's fees and costs 
encourages individuals to act as private attorneys general in the 
public interest to vindicate Congress' commitment to equal employment 
opportunity. See City of Riverside v. Rivera, 477 U.S. 561, 575 (1986) 
(``[A] civil rights plaintiff seeks to vindicate important civil and 
constitutional rights that cannot be valued solely in monetary terms. 
And, Congress has determined that ``the public as a whole has an 
interest in the vindication of the rights conferred by the statutes 
enumerated in  1988 over and above the value of a civil rights remedy 
to a particular plaintiff. . . .'') (citations omitted).
    \30\ Id.
---------------------------------------------------------------------------
    As Congress recognized in enacting the Civil Rights Act of 1991, 
this approach--which shifts the burden of proof to the employer to 
limit remedies rather than to defeat liability entirely--best achieves 
antidiscrimination laws' key purposes of preventing and deterring 
future discrimination by ensuring that employers proven to have engaged 
in discrimination cannot completely escape liability for their 
actions.\31\ Indeed, this approach enables Federal courts to retain 
judicial power to order correction of the wrongful conduct in the form 
of declaratory and certain injunctive relief. Once the plaintiff proves 
that the employer engaged in discrimination and thus violated Federal 
law, the employer may still substantially limit the available remedies, 
however, by showing that it would have made the same decision in a 
discrimination-free environment.
---------------------------------------------------------------------------
    \31\ See Albermarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975) 
(identifying title VII's ``primary purpose'' as ``prophylactic'' in 
removing barriers that have operated in the past to limit equal 
employment opportunity).
---------------------------------------------------------------------------
    Return to our earlier example of an older worker who is rejected 
for a job opportunity because of invidious age discrimination but who 
nonetheless would not have been hired for other nondiscriminatory 
reasons as well. S. 1756 would provide a tool for remedying such proven 
discrimination by empowering the Federal court to enjoin the employer 
from engaging in such discrimination in the future, thus serving the 
important deterrent functions of antidiscrimination law, while leaving 
employers free to make decisions based on ability or any other 
nondiscriminatory factor.
    In enacting the Civil Rights Act of 1991, Congress wisely clarified 
the causation rule to be applied to title VII and its prohibition of 
discrimination because of race, color, gender, religion, and national 
origin. S. 1756 would apply the same causation standard--proven 
workable under title VII after nearly two decades in operation--to 
other Federal laws that that prohibit job discrimination because of age 
and other protected characteristics. Moreover, ensuring that the 
standard for proving unlawful disparate treatment under the ADEA (and 
other antidiscrimination and antiretaliation laws) tracks that 
available under title VII--as S. 1756 would do--also offers great 
practical value by establishing a principle of uniformity. Such a 
consistent approach to causation, moreover, is especially helpful in 
cases involving claims under multiple statutes--such as an older 
African-American plaintiff who brings claims under both title VII and 
the ADEA--by ensuring that the jury will receive the same ``motivating 
factor'' instruction for all claims.
    s. 1756 also clarifies federal antidiscrimination law in other 
                             important ways
    S. 1756 also addresses an important question left unanswered by the 
Supreme Court's opinion in Gross. The Gross Court actually granted 
certiorari to decide an issue that had divided lower courts: whether a 
plaintiff must present direct evidence of age discrimination to obtain 
a mixed-motive instruction under the ADEA or whether instead 
circumstantial evidence could suffice.\32\ The Court's ultimate 
decision in Gross, however, failed to address this question and instead 
decided a very different matter that significantly undercut protections 
for older workers without the benefit of briefing by the parties or any 
development by the lower courts.\33\
---------------------------------------------------------------------------
    \32\ Gross, 129 S. Ct. at 2348. Indeed, the Supreme Court has 
granted certiorari on two different occasions on this question whether 
heightened evidentiary requirements should be applied to mixed-motive 
cases: in Desert Palace (with respect to title VII) and in Gross (with 
respect to the ADEA)). Lower courts' division on this issue has been 
driven largely by the questions created by Justice O'Connor's 
concurring opinion in Price Waterhouse that suggested the importance of 
direct evidence to a plaintiff's ability to bring a mixed-motive claim 
under antidiscrimination law. See Price Waterhouse, 490 U.S. at 276 
(O'Connor, J., concurring) (``In my view, in order to justify shifting 
the burden on the issue of causation to the defendant, a disparate 
treatment plaintiff must show by direct evidence that an illegitimate 
criterion was a substantial factor in the decision.'').
    \33\ See Gross, 129 S. Ct. at 2353 (Stevens, J., dissenting) 
(``[T]he Court is unconcerned that the question it chooses to answer 
has not been briefed by the parties or interested amici curiae. Its 
failure to consider the views of the United States, which represents 
the agency charged with administering the ADEA, is especially 
irresponsible.'').
---------------------------------------------------------------------------
    S. 1756 provides valuable clarification of the law by finally 
answering the question that the Gross Court failed to address, making 
clear that plaintiffs seeking to prove discrimination in violation of 
the ADEA (or other Federal antidiscrimination or antiretaliation law) 
``may rely on any type or form of admissible circumstantial or direct 
evidence'' to prove their claims.\34\ This standard tracks that under 
title VII, as confirmed by a unanimous Supreme Court in Desert Palace, 
Inc. v. Costa.\35\ As the Court observed in that case, circumstantial 
evidence is of great utility in discrimination cases and elsewhere: 
``The reason for treating circumstantial evidence alike is both clear 
and deep rooted: `Circumstantial evidence is not only sufficient, but 
may also be more certain, satisfying, and persuasive than direct 
evidence.' '' \36\ Indeed, as a practical matter, direct evidence is 
quite rare in discrimination cases, as employers who engage in 
discrimination rarely confess their bias and instead work hard to hide 
it. By codifying the traditional legal rule permitting plaintiffs to 
rely on any available probative evidence--circumstantial as well as 
direct--to establish discrimination, S. 1756 again not only ensures 
uniformity in the standards to be applied to Federal antidiscrimination 
laws, but provides the standard that most effectively advances the 
purposes of such laws.
---------------------------------------------------------------------------
    \34\ S. 1756,  3.
    \35\ 539 U.S. 90 (2003).
    \36\ Id. at 99-100 (citation omitted); see also id. (noting also 
that ``we have never questioned the sufficiency of circumstantial 
evidence in support of a criminal conviction, even though proof beyond 
a reasonable doubt is required.'').
---------------------------------------------------------------------------
    Finally, S. 1756 addresses an additional ambiguity created by the 
Gross Court's suggestion that the application of McDonnell Douglas \37\ 
evidentiary framework outside the context of title VII remains an open 
question.\38\ By making clear that the Supreme Court's familiar 
McDonnell Douglas framework remains available for disparate treatment 
claims under the ADEA and other Federal laws that prohibit job 
discrimination and retaliation,\39\ S. 1756 would eliminate any 
confusion in the lower courts on this issue.\40\
---------------------------------------------------------------------------
    \37\ See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 
(holding that the plaintiff's demonstration of a prima facie case under 
title VII shifts the burden of production to the defendant to 
articulate a legitimate nondiscriminatory reason for its action, 
although the burden of persuasion remains on the plaintiff to prove 
that discrimination was the real reason).
    \38\ Gross, 129 S. Ct. at 2349 n.2 (``[T]he Court has not 
definitively decided whether the evidentiary framework of McDonnell 
Douglas utilized in title VII cases is appropriate in the ADEA 
context.'') (citation omitted).
    \39\ S. 1756,  3.
    \40\ See, e.g., Geiger v. Tower Automotive, 579 F.3d 614, 622 (6th 
Cir. 2009) (``The Supreme Court [in Gross] expressly declined to decide 
whether the McDonnell Douglas test applies to the ADEA.''); Bell v. 
Raytheon, Co., 2009 WL 2365454 at *4 (N.D. Tex. 2009) (``Recently, 
however, the United States Supreme Court issued a decision that 
questions whether the McDonnell Douglas approach should be applied in 
ADEA cases.''); Holowecki v. Federal Express Corp., 644 F. Supp. 2d 
338, 352 (S.D.N.Y. 2009) (observing that ``whether Gross, by 
implication, also eliminates the McDonnell Douglas burden-shifting 
framework in ADEA cases was left open by the Court'').
---------------------------------------------------------------------------
    In sum, S. 1756 rejects the Gross Court's significant narrowing of 
workers' rights under the ADEA, along with the decision's potential to 
do the same for a wide range of other Federal employment laws. S. 1756 
would thus replace the causation rule articulated by the Gross Court 
with the causation standard long in place under title VII that more 
effectively furthers Congress' key interest in removing and deterring 
barriers to equal employment opportunity.

    The Chairman. Thank you, again, very much, Ms. Norton, for 
your testimony, and for being here.
    Now, we'll turn to Ms. Aldrich. Ms. Aldrich, please 
proceed.

 STATEMENT OF GAIL ALDRICH, BOARD OF DIRECTORS, AARP, GENOA, NV

    Ms. Aldrich. Good morning, Chairman Harkin and Senator 
Franken. My name is Gail Aldrich and I am an AARP board member. 
I am pleased to testify today on behalf of older workers.
    Older workers have long been an AARP priority, and roughly 
half of AARP members are employed either full- or part-time. We 
advocate for older workers in Congress and before the courts to 
combat age discrimination.
    In addition, AARP participates in the Senior Community 
Service Employment Program, annually recognizes best employers 
for workers over age 50 and organizes job fairs allowing 
employers and older workers to find one another.
    Before I became an AARP board member, I was a business 
executive responsible for applying Federal and State employment 
laws on a day-to-day basis. I previously served as chief 
membership officer for the Society for Human Resource 
Management, and I have been the top HR leader for three 
organizations. As a result, I am familiar with the challenges 
of addressing age and other discrimination claims by employees.
    I want to thank you and all the members of the Health, 
Education, Labor, and Pensions Committee for extending AARP 
this opportunity to speak on the issue of protecting older 
workers against age discrimination and about the proposed 
legislation to address the U.S. Supreme Court's troubling 
decision last year in Gross v. FBL Financial Services.
    AARP thinks this decision is wrong and that the court's 
interpretation of what Congress meant when it enacted the ADEA 
is inaccurate. Unless corrected, this decision will have 
devastating consequences for older workers.
    The decision could not have come at a worse time for older 
workers who are experiencing a level of unemployment and job 
insecurity not seen since the late 1940s. This decision takes 
away vital legal protection at the very time that the economy 
does not give older workers the luxury of ignoring 
discrimination and simply finding another job.
    The unemployment rate for people over 55 has more than 
doubled since the start of the recession, rising from 3.2 
percent in December of 2007 to 6.9 percent in March of 2010. 
Once out of work, older job seekers face a prolonged and often 
very discouraging job search.
    The average duration of unemployment has soared since the 
start of the recession and is substantially higher for older 
workers. Over half of job seekers over 55 are found among the 
long-term unemployed, those who have been out of work for 27 
weeks or more. Once out of work, older persons are more likely 
than the younger unemployed to stop looking for work and drop 
out of the labor force.
    Older workers need effective age-discrimination laws when 
employers choose to displace them based on their age due to 
stereotypes rather than performance or other legitimate 
business reasons.
    And, clearly, unfounded stereotypes about older workers 
linger. AARP attorneys have battled employer perceptions that 
older workers have less energy and are less engaged despite 
AARP research showing that actually older workers are more 
engaged in their jobs and are more reliable.
    Some employers believe older workers are a poor investment 
for participation in training. However, AARP research shows 
that they are more loyal to their current employers and may be 
better bets in terms of training investment.
    And, finally, some employers have outdated notions that 
older workers are unable to adapt in industries like computers 
and information technology, this despite baby boomers' 
enthusiastic embrace of virtually all forms of rapidly-changing 
IT products and services.
    Failing to allow older workers a fair chance to fight age 
discrimination is directly contrary to other Federal policies 
envisioning that Americans will work longer. For instance, the 
1983 Social Security Amendments increased the age of 
eligibility for full Social Security benefits to be paid. 
Eliminating discrimination is critical if older persons are to 
delay their date of retirement.
    Working longer is good for society as earners typically pay 
more in taxes than retirees. It is also good for workers who 
have more years to save and less time in retirement to finance, 
and it is good for employers who retain skilled and experienced 
employees.
    AARP strongly endorses S. 1756. It would eliminate the 
second-class status for victims of age bias that the court, in 
Gross, seemed to embrace. In the worst economic conditions in 
decades for older workers, Congress should act now to correct 
this misguided ruling.
    Thank you.
    [The prepared statement of Ms. Aldrich follows:]
                   Prepared Statement of Gail Aldrich
    Good morning Chairman Harkin and Ranking Member Enzi. My name is 
Gail Aldrich. I am a member of the Board of Directors of AARP and I am 
pleased to testify today on behalf of AARP. Older workers have long 
been an AARP priority, and roughly half of all AARP members are 
employed either full- or half-time. On behalf of AARP's members and all 
older workers, we advocate for older workers both in Congress and 
before the courts to combat age discrimination. AARP also participates 
in the Senior Community Service Employment Program (SCSEP) in which we 
match lower-income older jobseekers and employers with available 
positions. We also annually recognize ``Best Employers'' for workers 
over age 50, and partner with employers stating a commitment to welcome 
older persons into their workforce as part of an AARP ``National 
Employer Team.'' We also organize job fairs allowing employers and 
older workers to find one another.
    I want to preface my remarks by noting that before I became an AARP 
Board member, I was formerly a business executive, responsible for 
applying Federal and State employment laws on a day-to-day basis. 
Specifically, I previously served as chief membership officer for the 
Society for Human Resources Management (SHRM). During my career, I also 
have been the lead human resources professional for three major 
organizations: the California State Automobile Association, Exponent, 
an engineering and scientific consulting firm, and the Electric Power 
Research Institute. As a result, I am quite familiar with the 
challenges of addressing age or other discrimination claims by 
employees.
    I want to thank you and all members of the Health, Education, 
Labor, and Pensions Committee for extending AARP this opportunity to 
speak on the issue of protecting older workers against age 
discrimination, and in particular, the topic of proposed legislation to 
address the U.S. Supreme Court's troubling decision last year in Gross 
v. FBL Financial Services, Inc., No. 08-441, 129 S. Ct. 2343 (June 18, 
2009). In that decision the Supreme Court, by the narrowest of margins, 
announced 5-4 that older workers challenging unfair treatment based on 
their age, under the Age Discrimination in Employment Act (ADEA), have 
lesser protection than other workers protected by Federal law against 
illegal bias. Older workers, the Court said, have to meet a higher 
standard to prove discrimination than workers facing bias based on 
their sex, race or national origin. In effect, the Court said that 
Congress intended--when it passed the ADEA back in 1967--to place older 
workers in a second-class category of protection from unfair treatment 
at work. We at AARP think this decision is wrong, and that the court's 
understanding of what Congress meant when it enacted the ADEA is 
inaccurate. Unless corrected, this decision will have devastating 
consequences for older workers--workers who represent a growing share 
of the U.S. workforce and are increasingly critical to the Nation's 
economic recovery.
    The Supreme Court's decision in Gross v. FBL could not have come at 
a worse time for older workers, who are experiencing a level of 
unemployment and job insecurity not seen since the late 1940s. Over the 
past 28 months (December 2007 through March 2010), finding work has 
proven elusive for millions of younger and older workers as employers 
have laid off workers and scaled back hiring due to reduced demand. 
However, older workers face another barrier--age discrimination. Age 
discrimination is difficult to quantify, since few employers are likely 
to admit that they discriminate against older workers. Available 
research does highlight, however, the extent to which younger job 
applicants are preferred over older ones, who more often fail to make 
it through the applicant screening process.\1\ Older workers themselves 
see age discrimination on the job: 60 percent of 45-74-year-old 
respondents to a pre-recession AARP survey contended that based on what 
they have seen or experienced, workers face age discrimination in the 
workplace.\2\ That percentage could well be higher if those workers 
were asked about age discrimination today. More age discrimination 
charges were filed with the Equal Employment Opportunity Commission 
(EEOC) in fiscal year 2008 and fiscal year 2009 than at any time since 
the early 1990s, according to the latest EEOC data.\3\
---------------------------------------------------------------------------
    \1\ M. Bendick, L.E. Brown, and K. Wall, ``No Foot in the Door: An 
Experimental Study of Employment Discrimination against Older Workers, 
Journal of Aging & Social Policy, 1999 10(4), 1999, PP. 5-23; J. Lahey, 
Age, Women, and Hiring: An Experimental Study (Chestnut Hill, MA: 
Center for Retirement Research at Boston College, 2006).
    \2\ AARP, Staying Ahead of the Curve 2007: The AARP Work and Career 
Study (Washington, DC: AARP, 2008).
    \3\ U.S. Equal Employment Opportunity Commission, April 29, 2010 at 
http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.
---------------------------------------------------------------------------
    One of the ways in which the Gross decision already has affected 
older workers is to make it impossible in some circumstances to bring 
age discrimination claims. Some courts have interpreted the Gross 
Court's language to require proof that age bias was a ``sole cause'' of 
an unfair termination, or as in Jack Gross' case, an unfair demotion. 
Thus in one recent case in Alabama, the plaintiff alleged both race and 
age discrimination. Culver v. Birmingham Bd. of Education, 2009 WL 
2568325 (N.D. Ala. August 17, 2009). Relying on Gross, the court 
ordered Mr. Culver to either abandon his age claim or his race 
discrimination claim because ``Gross h[eld) for the first time that a 
plaintiff who invokes the ADEA has the burden of proving that the fact 
that he is over 40 years old was the only . . . reason for the alleged 
adverse employment action.'' This was never the law before Gross, and 
it makes no sense now. Surely Congress meant for victims of age and 
other bias to bring claims on whatever grounds they can assemble proof 
to support a charge of discrimination. Not to choose between one of 
several grounds of illegal unfair treatment. Similarly, in a case in 
Pennsylvania, a Federal court recently relied on Gross to force a 
plaintiff to choose between claims of age and sex discrimination. 
Wardlaw v. City of Philadelphia Streets Dep't, 2009 WL 2461890 (E.D. 
Pa. Aug. 11, 2009). The court cited the plaintiffs allegations that she 
was treated less favorably because she was an ``older female'' to 
conclude that her age was not the ``but-for'' cause of the 
discrimination she complained of According to this court, ``The Supreme 
Court held in Gross that a plaintiff can only prevail on an age-related 
employment discrimination claim if that is the only reason for 
discrimination.'' Once again, AARP submits this makes no sense and 
fundamentally misunderstands the ADEA. We cannot wait for these sorts 
of rulings to spread. This must end.
    Thus, AARP strongly endorses the Protecting Older Workers Against 
Discrimination Act or ``POWADA'', S. 1756, of which many members of 
this committee are a sponsor. POWADA would correct the wrong turn in 
the law that the Gross decision represents. It would eliminate the 
second-class status for victims of age bias that the Court in Gross 
seemed to embrace. It would tell lower courts not to treat older 
workers who face discrimination law differently, in key respects, than 
they treat workers who face bias on grounds of race or sex under Title 
VII of the 1964 Civil Rights Act. Congress, after all, consistently has 
followed title VII as the model for other employment discrimination 
laws, like the ADEA and the Americans with Disabilities Act.
    Let me say a few more words about the impact on older workers of 
this Court decision. It takes away a vital legal protection at the very 
time that the economy does not give older workers the luxury of 
ignoring discrimination and simply finding another job.
    The unemployment rate for persons aged 55 and over has more than 
doubled since the start of the recession, rising from 3.2 percent in 
December 2007 to 6.9 percent in March 2010. Although the unemployment 
rate for this age group has traditionally been and remains lower than 
that for younger persons, the increase in unemployment for older 
persons has been greater, thus significantly narrowing the age gap in 
unemployment.
    Once out of work, older job seekers face a prolonged and often 
discouraging job search. Newspapers and news programs have profiled 
many older jobs seekers who report sending out hundreds of resumes and 
receiving few if any responses from employers. Statistics back up the 
anecdotes of the job-seeking frustrations of older workers. Average 
duration of unemployment has soared since the start of the recession 
and is substantially higher for older job seekers than it is for their 
younger counterparts--38.4 weeks verse 31.1 weeks in March--a 
difference of nearly 2 months. In December 2007, average duration of 
unemployment for older persons was 20.2 weeks.
    Older workers also are more likely to be found among the long-term 
unemployed--those who have been out of work for 27 or more weeks. Just 
over half (50.6 percent) of job seekers aged 55 and over and 42 percent 
of those under age 55 could be classified as ``long-term'' unemployed 
in March. Once out of work, older persons are more likely than the 
younger unemployed to stop looking for work and drop out of the labor 
force. If they do find work, they are more likely than younger job 
finders to earn less than they did in their previous employment.
    Today, older workers are more likely than younger workers to be 
displaced. As of December 2009, 78 percent of unemployed workers aged 
55 and over were out of work because they lost their jobs or because a 
temporary job ended. This compares to 65 percent of the unemployed 
under age 55. Job loss has risen substantially for both age groups 
since the start of the recession 2 years earlier and far more than it 
had in the 2 years before December 2007. (See Table 1.)

Table I.--Percent of Workers Giving Job Loss or End of Temporary Job as the Reason They Were Unemployed, by Age,
                                 December 2005, December 2007, and December 2009
----------------------------------------------------------------------------------------------------------------
            Age and Reason for Unemployment                December 2005      December 2007      December 2009
----------------------------------------------------------------------------------------------------------------
Aged 55+
Job loser/on layoff....................................               21.0               23.8               14.0
Other job loser........................................               33.8               36.8               55.8
Temporary job ended....................................                8.3                8.2                8.6
    Total..............................................               63.1               68.8               78.4
Under Age 55
Job loser/on layoff....................................               13.7               13.2               11.0
Other job loser........................................               25.9               26.9               43.9
Temporary job ended....................................               11.0               12.5                9.8
    Total..............................................               50.6               52.6               64.7
----------------------------------------------------------------------------------------------------------------
Source: AARP PPI calculations of data in the Current Population Survey.

    Hence, older workers need effective age discrimination laws when 
employers choose to displace them based on their age, due to 
stereotypes or other forms of bias, rather than their performance or 
other legitimate business reasons. And there can be no doubt that 
unfounded stereotypes about older workers linger. In cases in which 
AARP has played a role over the last decade, AARP attorneys have 
battled employer perceptions that older workers have less energy and 
are less engaged, despite AARP research data showing that on the 
contrary, older workers are more engaged in their jobs, as well as more 
reliable (i.e., less likely to engage in absenteeism). Some employers 
also still believe older workers are a poor investment and are 
disinclined to include them in training programs. Again, AARP research 
shows that older workers are more loyal to (i.e., less likely to leave) 
their current employers, and thereby may be better bets in terms of 
employer investments in training. And finally, some employers have 
outdated notions of older workers as incapable of adapting in 
industries--such as computers and information technology--requiring 
acquisition of new skills, despite Baby Boomers' enthusiastic embrace 
of virtually all forms of rapidly changing IT products and services.
    Research also shows why failing to protect older workers from 
discriminatory exclusion from employment is not only unjust but also 
counterproductive for a nation facing enormous challenges supporting a 
growing aging population. That is, there is growing evidence that older 
persons need to work and that they would benefit financially from 
working longer: millions lack pension coverage, have not saved much for 
retirement, have lost housing equity, and have seen their investment 
portfolios plummet. Many have exhausted their savings and tapped their 
IRA and 401(k) accounts while unemployed. Some workers seem to be 
opting for Social Security earlier than they might have otherwise. The 
Urban Institute (UI), for example, points to a surge in Social Security 
benefit awards at age 62 in 2009. To a large extent, this is a result 
of a sharp rise in the aged 62 population. However, the UI reports that 
the benefit take-up rate was substantially higher in 2009 than in 
recent years, which they say is likely due to an inability to find 
work.\4\ One out of four workers in the 2010 Retirement Confidence 
Survey maintains that their expected retirement age has increased in 
the past year, most commonly because of the poor economy (mentioned by 
29 percent) and a change in employment situation (mentioned by 22 
percent).\5\
---------------------------------------------------------------------------
    \4\ R.W. Johnson and C. Mommaerts, Social Security Retirement 
Benefit Awards Hit All-Time High in 2009, Fact Sheet on Retirement 
Policy (Washington, DC: Urban Institute, 2010).
    \5\ EBR1, ``The 2010 Retirement Confidence Survey: Confidence 
Stabilizing, but Preparations Continue to Erode,'' EBRI Issue Brief, 
No. 340, March 2010 at www.ebri.org/pdf/briefspdf/EBRI_IB_03-
2010_No340_RCS.pdf.
---------------------------------------------------------------------------
    Failing to allow older workers a fair chance to fight age 
discrimination is directly contrary to other Federal policies 
envisioning that Americans will work longer. Public policies such as 
the 1983 Social Security amendments that increased the age of 
eligibility for full benefits and the benefits for delaying retirement, 
as well as legislation in 2000 that eliminated the Social Security 
earnings test for workers above the normal retirement age, were 
designed to encourage longer work lives. Eliminating discrimination is 
critical if older persons are to push back the date of retirement.
    Working longer is good for society as earners typically pay more in 
taxes than retirees and contribute to the productive output of the 
economy. It is also good for workers, who have more years to save and 
less time in retirement to finance. And it is good for employers who 
retain skilled and experienced employees. This last advantage may be 
less clear in a deep recession; however, the economy will recover 
eventually--we hope sooner rather than later! With the impending 
retirement of the boomers, many experts predict sizable labor and 
skills shortages in many industries.
    In closing, I want to emphasize AARP's commitment to vigorous 
enforcement of the ADEA and other civil rights law as one part of a 
broad-based strategy to serve the needs and interests of older workers 
consistent with the overall public interest. We recognize that prudent 
employers, indeed we hope most employers, follow the law and respect 
the rights of older workers. We also believe that the ADEA and other 
civil rights law must be preserved so that they act as a real 
deterrent, and if need be, a tool for redress, when employers are 
tempted to discriminate or actually violate the rights of older 
workers. Unless POWADA returns the law to the state of affairs that 
existed before the Gross decision, legal advocates will have a very 
hard time defending older workers who encounter workplace bias. And we 
also urge Congress to make sure that POWADA protects older workers from 
the expansion of the reasoning in Gross to other employment laws. For 
instance, we are aware of decisions restricting application of other 
laws important to older workers--such as the ADA and ERISA, see 
Serwatka v. Rockwell Automation, Inc.,--F.3d--, 2010 WL 137343 (7th 
Cir., January 15, 2010) (NO. 08-4010)(ADA) and Nauman v. Abbott 
Laboratories, CA 04-7199 (N.D. Ill. April 22, 2010)--based on the 
flawed logic of the narrow Supreme Court majority in Gross.
    We believe the Protecting Older Workers Against Discrimination Act 
(POWADA), S. 1756, is a vital and reasonable effort to restore the law 
to the state of play prior to the Gross decision. At that time, 
employers were able to manage their proof obligations in ADEA cases. 
Virtually no court in the U.S. believed age had to be the only reason 
for an employer terminating an older worker for the worker to have a 
claim under the ADEA. But now, based on Gross, some courts have been 
embracing this new and onerous interpretation. And the same view has 
been applied to other civil rights laws, to the detriment of older 
workers and other discrimination victims. This is not right. In the 
worst economic conditions in decades for older workers, Congress should 
act now to correct the misguided ruling in the Gross decision and pass 
POWADA.
    Thank you.

    The Chairman. Thank you very much, Ms. Aldrich.
    Mr. Dreiband.

 STATEMENT OF ERIC DREIBAND, PARTNER, JONES DAY, WASHINGTON, DC

    Mr. Dreiband. Good morning, Chairman Harkin and Senator 
Franken. 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 protection for many individuals. 
The Gross decision, however, does not eliminate protections for 
victims.
    Before the decision, age-discrimination defendants could 
prevail, even when they improperly considered a person's age, 
if they demonstrated that they would have made the same 
decision or taken the same action for reasons unrelated to age. 
The court's decision stripped away this so-called same action 
or same decision defense and it therefore deprives entities 
that engage in age discrimination of this defense. For this 
reason, since the Gross decision issue, 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, Ninth, Tenth and 
Eleventh Circuits have issued decisions in favor of 
discrimination plaintiffs and relied upon the Gross case to do 
so.
    Second, the bill will restore the so-called same-action 
defense eliminated by the Supreme Court in the Gross case. 
Discrimination victims, under the bill, 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 these same-action cases. 
Though 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 back pay, no 
front pay, no damages, no promotion, nothing.
    For example, Mr. Gross' case is going to be retried after 
the Supreme Court's decision and he will receive nothing even 
if he proves that age motivated his employer to demote him if 
his employer establishes its same-action defense.
    Now, the bill may enable some lawyers to earn more money, 
but who does this benefit? The answer is lawyers, not victims 
of discrimination, not unions and not employers.
    Third, the bill is overly broad, vague and ambiguous and 
may open up a Pandora's Box of litigation. It purports to apply 
to any Federal law forbidding employment discrimination, and 
several other laws, but the bill does not identify which laws 
it will amend.
    As a result, discrimination victims, unions, employers and 
others will unnecessarily spend years or decades and untold 
amounts of money fighting in court about whether the bill 
changes particular laws. The public will have to wait years or 
decades until the matter trickles up to the Supreme Court to 
settle the question case by case about one law after another.
    In the meantime, litigants in courts will waste time, money 
and resources litigating this issue with no benefit for anyone. 
The threat of decades of litigation about these issues is not 
merely hypothetical. Note in this regard that it took 38 years 
of litigation before the Supreme Court of 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 it solely to the Age Discrimination 
in Employment Act, which is the only statute at issue in Mr. 
Gross' case, or, at a minimum, listing the laws that Congress 
intends to amend. The recently enacted Lilly Ledbetter Fair Pay 
Act of 2009 specifically identified the laws Congress intended 
to amend 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
                            i. introduction
    Good morning Chairman Harkin, Ranking Member Enzi, and members of 
the committee. I thank you and the entire committee for affording me 
the privilege of testifying today. My name is Eric Dreiband, and I am a 
partner at the law firm Jones Day here in Washington, DC.
    I previously served as the General Counsel of the United States 
Equal Employment Opportunity Commission (``EEOC'' or ``Commission''). 
As EEOC General Counsel, I directed the Federal Government's litigation 
of the Federal employment discrimination laws. I also managed 
approximately 300 attorneys and a national litigation docket of 
approximately 500 cases.
    During my tenure at the EEOC, the Commission continued its 
tradition of aggressive enforcement. We obtained relief for thousands 
of discrimination victims, and the EEOC's litigation program recovered 
more money for discrimination victims than at any other time in the 
Commission's history. The Commission settled thousands of charges of 
discrimination, filed hundreds of lawsuits every year, and recovered, 
literally, hundreds of millions of dollars for discrimination victims.
    I am here today, at your invitation, to speak about the proposed 
Protecting Older Workers Against Discrimination Act, S. 1756. I do not 
believe that the bill would advance the public interest.
    First, the bill incorrectly asserts that the decision by the 
Supreme Court of the United States in Gross v. FBL Financial Services, 
Inc. eliminated ``protection for many individuals whom Congress 
intended to protect.'' In fact, the Gross decision will not eliminate 
protections at all. Before the Gross decision, age discrimination 
defendants could prevail, even when they improperly considered a 
person's age, if they demonstrated that they would have made the same 
decision or taken the same action for additional reasons unrelated to 
age. The Court in the Gross case eliminated this so-called ``same 
decision'' or ``same action'' defense. For this reason, since the Gross 
decision issued, the Federal courts have repeatedly ruled in favor of 
age discrimination plaintiffs and against defendants.
    Second, the bill as proposed will enable age discrimination and 
other victims to prove a violation if an impermissible factor ``was a 
motivating factor for the practice complained of, even if other factors 
also motivated that practice.'' It will also restore the ``same 
action'' defense and may render the ``motivating factor'' standard 
nearly irrelevant. The proposed bill would deprive discrimination 
victims of any meaningful remedy in ``same action'' cases. Their 
lawyers may receive payment for fees ``demonstrated to be directly 
attributable only to the pursuit of '' a ``motivating factor'' claim. 
But the alleged victim will get nothing--no job, no money, no 
promotion. Mr. Gross, for example, will receive nothing if he proves 
age motivated his employer to demote him and his employer establishes 
its same action defense. His lawyer, though, will receive some money. 
As a result, if enacted in its current form, the bill may enhance 
protections for lawyers, but do nothing for individuals.
    Third, the bill is overly broad, vague, and ambiguous. It purports 
to apply to ``any Federal law forbidding employment discrimination,'' 
and several other laws, but the bill does not identify which laws the 
bill will amend. As a result, discrimination victims, unions, 
employers, and others will unnecessarily spend years or decades, and 
untold amounts of money, fighting in court over whether the bill 
changes particular laws. This will have no positive consequences for 
anyone. Congress can fix this vagueness problem rather easily by 
amending the bill to apply solely to the Age Discrimination in 
Employment Act--the only statute at issue in the Gross case--or at a 
minimum listing the laws that Congress intends it to apply.
                             ii. background

A. Age Discrimination in Employment Act of 1967

    Congress enacted the Civil Rights Act of 1964 to make unlawful race 
and other forms of discrimination in employment and other areas. Title 
VII of that act prohibits employment discrimination based on race, 
color, religion, sex and national origin).\1\ Title VII also prohibits 
discrimination against any individual who has opposed unlawful 
discrimination or made a charge, testified, assisted, or participated 
in any manner in an investigation, proceeding, or title VII hearing.
---------------------------------------------------------------------------
    \1\ Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e 
to 2000e-17.
---------------------------------------------------------------------------
    Title VII also created the EEOC. EEOC enforcement authority over 
title VII is plenary, with the exception of litigation against public 
employers. EEOC also enforces several other Federal employment 
discrimination laws, including the employment provisions of Americans 
with Disabilities Act, the Equal Pay Act, and the Age Discrimination in 
Employment Act (``ADEA'').
    During the debate that led to title VII's enactment, Congress 
considered whether or not to include age as a protected class under 
title VII. Congress determined that it did not have sufficient 
information about age discrimination to legislate on the issue.\2\ So, 
Congress directed the Secretary of Labor to study the issue and to 
report to Congress.\3\
---------------------------------------------------------------------------
    \2\ See 110 CONG. REC. 2597 (1964) (remarks of Representative 
Celler (``[Congress] do[es] not have sufficient information, concerning 
discrimination based on age, to act intelligently. I believe . . . it 
would be rather brash to rush into this situation without having 
sufficient information to legislate intelligently upon this very 
vexatious and difficult problem.'').
    \3\ See H.R. Rep. No. 88-914, pt.1, at 15 (1963) (``Sec. 718. The 
Secretary of Labor shall make a full and complete study of the factors 
which might tend to result in discrimination in employment because of 
age and of the consequences of such discrimination on the economy and 
individuals affected.'').
---------------------------------------------------------------------------
    Then-Secretary of Labor W. Willard Wirtz studied age discrimination 
in employment, and on June 30, 1965, he issued his report to the 
Congress. The report became known as the ``Wirtz Report.'' \4\ The 
Wirtz Report found that little age discrimination arose from dislike or 
intolerance of older people, but that arbitrary age discrimination was 
then occurring in the United States. Secretary Wirtz concluded that 
there was substantial evidence of arbitrary age discrimination, which 
he defined as ``assumptions about the effect of age on [an employee's] 
ability to do a job when there is in fact no basis for these 
assumptions,'' particularly in the hiring context.\5\
---------------------------------------------------------------------------
    \4\ Secretary of Labor, The Older American Worker: Age 
Discrimination in Employment 1 (1965).
    \5\ Id. at 2, 5 (emphasis in original). See also Smith v. City of 
Jackson, 544 U.S. 228, 254-55 (2005) (discussing Wirtz Report).
---------------------------------------------------------------------------
    Secretary Wirtz suggested that Congress deal with the problem of 
arbitrary age discrimination by enacting a bill called ``The Age 
Discrimination in Employment Act of 1967.'' President Lyndon Johnson 
and majorities of both Houses of Congress agreed, and President Johnson 
signed the bill into law at the end of 1967.
    The ADEA prohibits employment discrimination based on age.\6\ 
Specifically, the ADEA makes it unlawful for employers, unions, and 
others to:
---------------------------------------------------------------------------
    \6\ Age Discrimination in Employment Act of 1967, 29 U.S.C.  621 
to 634.

        (1) fail or refuse to hire or to discharge any individual or 
        otherwise discriminate against any individual with respect to 
        his compensation, terms, conditions, or privileges of 
        employment, because of such individual's age;
        (2) limit, segregate, or classify his employees in any way 
        which would deprive or tend to deprive any individual of 
        employment opportunities or otherwise adversely affect his 
        status as an employee, because of such individual's age; or
        (3) reduce the wage rate of any employee in order to comply 
        with the ADEA.\7\
---------------------------------------------------------------------------
    \7\ Id. at  623(a).

    The ADEA also contains protections against retaliation. The ADEA 
has never had any mixed motive provision.

B. The Mixed Motive Doctrine

    There are two general ways to prove individual title VII claims. 
The Supreme Court established the first in 1973 when it decided 
McDonnell Douglas Corporation v. Green.\8\ In that case, an African-
American employee of a manufacturing company alleged that his discharge 
and his employer's general hiring practices were racially motivated and 
violated title VII. The Supreme Court in McDonnell Douglas clarified 
the proof structure that applies to a private, non-class action title 
VII case. The Court explained that a plaintiff in a title VII case must 
first establish a ``prima facie'' case of discrimination by proving 
that:
---------------------------------------------------------------------------
    \8\ 411 U.S. 792 (1973).

    (i) the plaintiff is a member of a protected class;
    (ii) the plaintiff applied and was qualified for a job for which 
the employer was seeking applicants;
    (iii) despite the plaintiff's qualifications, the employer rejected 
the plaintiff; and
    (iv) after the employer rejected the plaintiff, the position 
remained open and the employer continued to seek applicants from 
persons of the plaintiff's qualifications.\9\
---------------------------------------------------------------------------
    \9\ Id. at 802.

    If the plaintiff establishes a prima facie case of discrimination, 
the burden shifts to the defendant to articulate ``some legitimate, 
nondiscriminatory reason for the employee's rejection.'' \10\ The 
plaintiff then must be ``afforded a fair opportunity to show that [the 
employer's] stated reason for [plaintiffs] rejection was in fact 
pretext.'' \11\
---------------------------------------------------------------------------
    \10\ Id.
    \11\ Id. at 804.
---------------------------------------------------------------------------
    In 1989, the Supreme Court established another way for a title VII 
plaintiff to prove a title VII violation. In Price Waterhouse v. 
Hopkins, the Court considered the case of Ann Hopkins.\12\ Ms. Hopkins 
was a female senior manager at an accounting firm. She alleged that the 
firm denied her a promotion because of her sex. Ms. Hopkins was very 
accomplished and competent. The Company cited her lack of interpersonal 
skills and abrasiveness as the reasons for its decision not to promote 
her.\13\
---------------------------------------------------------------------------
    \12\ 490 U.S. 228 (1989).
    \13\ Id. at 233-34.
---------------------------------------------------------------------------
    The Supreme Court in Price Waterhouse explained that a plaintiff 
may prove a title VII violation when a challenged decision is the 
product of both permissible and impermissible considerations. When a 
title VII plaintiff proves that an illegitimate factor such as race or 
sex plays a motivating or substantial part in the employer's decision, 
the Court decided, the burden of persuasion shifts to the defendant to 
show by a preponderance of evidence that it would have made the same 
decision even in the absence of the illegitimate factor.\14\ The Court 
also determined that to shift the burden of persuasion to the employer, 
the employee must present ``direct evidence that an illegitimate 
criterion was a substantial factor in the [employment] decision.'' \15\
---------------------------------------------------------------------------
    \14\ Id. at 258.
    \15\ Id. at 276 (O'Connor, J., concurring).
---------------------------------------------------------------------------
    The ``same decision'' defense created by Price Waterhouse was a 
complete defense to liability. The Court explained:

        [W]hen a plaintiff in a title VII case proves that her gender 
        played a motivating part in an employment decision, the 
        defendant may avoid a finding of liability only by proving by a 
        preponderance of the evidence that it would have made the same 
        decision even if it had not taken the plaintiff's gender into 
        account.\16\
---------------------------------------------------------------------------
    \16\ Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989).

    Two years after the Court decided Price Waterhouse, Congress 
enacted the Civil Rights Act of 1991. As part of the 1991 Act 
amendments, Congress codified the mixed motive concept first described 
---------------------------------------------------------------------------
by Price Waterhouse. Congress added the following to title VII:

        Except as otherwise provided in this subchapter, an unlawful 
        employment practice is established when the complaining party 
        demonstrates that race, color, religion, sex, or national 
        origin was a motivating factor for any employment practice, 
        even though other factors also motivated the practice.\17\
---------------------------------------------------------------------------
    \17\ 42 U.S.C.  2000e-2(m).

    The Civil Rights Act of 1991 modified the Price Waterhouse ``same 
---------------------------------------------------------------------------
action'' defense slightly, as follows:

        On a claim in which an individual proves a violation under 
        section 2000e-2(m) of this title and a respondent demonstrates 
        that the respondent would have taken the same action in the 
        absence of the impermissible motivating factor, the court--

                (i) may grant declaratory relief, injunctive relief 
                (except as provided in clause (ii)), and attorney's 
                fees and costs demonstrated to be directly attributable 
                only to the pursuit of a claim under section 2000e-2(m) 
                of this title; and

                (ii) shall not award damages or issue an order 
                requiring any admission, reinstatement, hiring, 
                promotion, or payment, described in subparagraph 
                (A).\18\
---------------------------------------------------------------------------
    \18\ 18 42 U.S.C.  2000e-5(g)(2)(A).

    The Civil Rights Act of 1991 also amended the ADEA.\19\ It did not 
add any ``motivating factor'' claim or ``same action'' defense to the 
ADEA, nor has Congress ever done so.
---------------------------------------------------------------------------
    \19\ See, e.g., Pub.L. 102-166, Title I,  115, Nov. 21, 1991, 105 
Stat. 1079 (eliminating tolling period).
---------------------------------------------------------------------------
    Nine years later, in 2000, the Supreme Court decided Reeves v. 
Sanderson Plumbing Products, Inc. and applied the McDonnell Douglas 
burden shifting framework to the ADEA.\20\ In Reeves, a discharged 
employee alleged that his employer unlawfully fired him because of his 
age. The Court recognized that ``Courts of Appeals . . . have employed 
some variant of the framework articulated in McDonnell Douglas to 
analyze ADEA claims that are based principally on circumstantial 
evidence.'' \21\ The Court assumed that the McDonnell Douglas framework 
applies to ADEA claims \22\ and addressed ``whether a defendant is 
entitled to judgment as a matter of law when the plaintiff's case 
consists exclusively of a prima facie case of discrimination and 
sufficient evidence for the trier of fact to disbelieve the defendant's 
legitimate, nondiscriminatory explanation for its action.'' \23\ The 
Court concluded that the employee presented sufficient evidence to show 
that the defendant violated the ADEA.\24\
---------------------------------------------------------------------------
    \20\ 530 U.S. 133 (2000).
    \21\ Id. at 141.
    \22\ Id. at 142.
    \23\ Id. at 137.
    \24\ Id. at 146-48.
---------------------------------------------------------------------------

C. Gross v. FBL Financial Services, Inc.

    Jack Gross sued his employer, FBL Financial Group, Inc. for alleged 
ADEA violations. Mr. Gross alleged that his employer violated the ADEA 
when it demoted him in January 2003 because of his age.
    Mr. Gross began his employment with the Company in 1971, and he 
received several promotions over the years. By 2003, he held the 
position of claims administration director. In that year, when he was 
54 years old, the Company reassigned Mr. Gross to the position of 
claims project coordinator. At that same time, FBL transferred many of 
his job responsibilities to a newly created position--claims 
administration manager. The Company gave that position to Lisa 
Kneeskern, a former subordinate of Mr. Gross. Ms. Kneeskern was also 
younger than Mr. Gross. She was then in her early forties. Mr. Gross 
and Ms. Kneeskern received the same pay, but Mr. Gross considered the 
reassignment a demotion because FBL reallocated his former job 
responsibilities to Ms. Kneeskern.
    Mr. Gross sued FBL in 2004. Before the case went to the trial, 
counsel for both sides asked the trial judge to instruct the jury about 
the burden of proof. FBL's lawyer requested that the judge tell the 
jury the following:

        Your verdict must be for Plaintiff if both of the following 
        elements have been proven by the preponderance of the evidence:

            (1) Defendant demoted Plaintiff to claims project 
        coordinator effective January 1, 2003; and
            (2) Plaintiffs age was the determining factor in 
        Defendant's decision.

        If either of the above elements has not been proven by the 
        preponderance of the evidence, your verdict must be for 
        Defendant.

        ``Age was a determining factor'' only if Defendant would not 
        have made the employment decision concerning plaintiff but for 
        his age; it does not require that age was the only reason for 
        the decision made by Defendant.\25\
---------------------------------------------------------------------------
    \25\ Eighth Circuit Model Jury Instruction 5.11A (applying to 
determining factor cases); Gross v. FBL Financial Services, Inc. No. 
4:04-CV-60209, 2006 WL 6151670 (S.D. Iowa June 23, 2006), Def. Proposed 
Jury Instr. No. 10, filed Oct. 30, 2005.

    Mr. Gross' attorney asked the trial judge to tell the jury the 
---------------------------------------------------------------------------
following:

        Your verdict must be for plaintiff on plaintiffs age 
        discrimination claim if all the following elements have been 
        proved by the preponderance of the evidence:

          First, defendant demoted plaintiff; and
          Second, plaintiffs age was a motivating factor in defendant's 
        decision to demote plaintiff.
          However, your verdict must be for defendant if any of the 
        above elements has not been proved by a preponderance of the 
        evidence, or if it has been proved by the preponderance of the 
        evidence that defendant would have demoted plaintiff regardless 
        of his age. You may find age was a motivating factor if you 
        find defendant's stated reasons for its decision are not the 
        real reasons, but are a pretext to hide age discrimination.\26\
---------------------------------------------------------------------------
    \26\ Eighth Circuit Model Jury Instruction 5.11B (applying to 
motivating factor/same decision cases); Gross, 2006 WL 6151670, Pl. 
Proposed Jury Inst. p. 16, filed Oct. 25, 2005.

    The trial judge generally agreed with Mr. Gross' lawyer and told 
---------------------------------------------------------------------------
the jury the following:

          Your verdict must be for the plaintiff if all the following 
        elements have been proved by a preponderance of the evidence:

        First, defendant demoted plaintiff to claims project 
        coordinator effective January 1, 2003; and
        Second, plaintiff's age was a motivating factor in defendant's 
        decision to demote plaintiff.
        However, your verdict must be for the defendant if any of the 
        above elements has not been proved by the preponderance of the 
        evidence, or if it has been proved by the preponderance of the 
        evidence that defendant would have demoted plaintiff regardless 
        of his age. You may find age was a motivating factor if you 
        find defendant's stated reasons for its decision are not the 
        real reasons, but are a pretext to hide age discrimination.\27\
---------------------------------------------------------------------------
    \27\ Id. Final Jury Instr. No. 11.

    The jury found in favor of Mr. Gross and awarded him $46,945. After 
the trial, FBL asked the trial judge to overturn the jury's verdict. 
The court declined.\28\ The court applied a McDonnell Douglas analysis 
and upheld the jury's verdict. The court found that Mr. Gross had 
established a prima facie case of age discrimination, that FBL had 
presented a legitimate, nondiscriminatory reason for the change in Mr. 
Gross' responsibilities, and that the jury nonetheless could have 
reasonably found that FBL's stated reason for the demotion was not 
credible.
---------------------------------------------------------------------------
    \28\ Id. at *1-14.
---------------------------------------------------------------------------
    FBL appealed to the United States Court of Appeals for the Eighth 
Circuit. The Eighth Circuit reversed and remanded for a new trial 
because it found that a mixed motive jury instruction was not proper. 
The court applied Price Waterhouse and held that a mixed motive jury 
instruction was improper because Mr. Gross did not present ``direct 
evidence'' of age discrimination.\29\ According to the court, the trial 
judge should have instructed the jury consistent with the McDonnell 
Douglas framework.\30\
---------------------------------------------------------------------------
    \29\ Id. at 359-60.
    \30\ Gross v. FBL Financial Services, Inc., 526 F.3d 356 (2008).
---------------------------------------------------------------------------
    The Supreme Court granted certiorari and vacated and remanded the 
Eighth Circuit's opinion. The Court decided that a plaintiff who brings 
an intentional age discrimination claim must prove that age was the 
``but-for'' cause of the challenged adverse employment action.\31\ The 
Court determined that the burden of persuasion does not shift to the 
employer to show that it would have taken the action regardless of age, 
even when a plaintiff has produced some evidence that age was one 
motivating factor in that decision.\32\
---------------------------------------------------------------------------
    \31\ Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009).
    \32\ Gross, 129 S.Ct. at 2352.
---------------------------------------------------------------------------
    The Court identified the issue as ``whether the burden of 
persuasion ever shifts to the party defending an alleged mixed-motives 
discrimination claim brought under the ADEA.'' \33\
---------------------------------------------------------------------------
    \33\ Gross, 129 S.Ct. at 2348.
---------------------------------------------------------------------------
    The Court held that the burden does not shift. Title VII explicitly 
sets forth the motivating factor and same action burdens, but, the 
Court explained, the ADEA says nothing about any motivating factor or 
same action defense. The Court observed that when Congress amended 
title VII in 1991 and added the motivating factor and same action 
provisions, it did not add those provisions to the ADEA, even though it 
made other changes to the ADEA.\34\
---------------------------------------------------------------------------
    \34\ Id. at 2348-49.
---------------------------------------------------------------------------
    The Court observed that the ADEA makes it `` `unlawful for an 
employer . . . to fail or refuse to hire or to discharge any individual 
or otherwise discriminate against any individual with respect to his 
compensation, terms, conditions, or privileges of employment, because 
of such individual's age.' '' \35\ The Court then applied what it said 
was the ordinary meaning of ``because of,'' and reasoned that the 
ADEA's ``because of '' standard requires a plaintiff who alleges 
intentional age discrimination to ``prove that age was the `but-for' 
cause of the employer's adverse action.'' \36\
---------------------------------------------------------------------------
    \35\ Id. at 2350-51 (quotations omitted and emphasis added).
    \36\ Id.
---------------------------------------------------------------------------
    The Court rejected the contention that Price Waterhouse's 
``motivating factor,'' ``same decision,'' and ``direct evidence'' 
standards should govern ADEA cases. The Court observed that Price 
Waterhouse's burden-shifting framework is ``difficult to apply'' and 
that the ``problems'' associated with Price Waterhouse's ``application 
have eliminated any perceivable benefit to extending its framework to 
ADEA claims.'' \37\
---------------------------------------------------------------------------
    \37\ Id. at 2352 (citing Tyler v. Bethlehem Steel Corp., 958 F.2d 
1176, 1179 (2d Cir. 1992) (referring to ``the murky water of shifting 
burdens in discrimination cases''); Visser v. Packer Engineering 
Associates, Inc., 924 F.2d 655, 661 (7th Cir. 1991) (en banc) (Flaum, 
J., dissenting) (``The difficulty judges have in formulating [burden-
shifting] instructions and jurors have in applying them can be seen in 
the fact that jury verdicts in ADEA cases are supplanted by judgments 
notwithstanding the verdict or reversed on appeal more frequently than 
jury verdicts generally''); and Continental T.V., Inc. v. GTE Sylvania 
Inc., 433 U.S. 36, 47, (1977) (reevaluating precedent that was subject 
to criticism and ``continuing controversy and confusion''); and Payne 
v. Tennessee, 501 U.S. 808, 839-844 (1991) (Souter, J., concurring)).
---------------------------------------------------------------------------
      iii. the protecting older workers against discrimination act
    If enacted in its current form, the Protecting Older Workers 
Against Discrimination Act will do nothing to protect workers from age 
discrimination, other forms of discrimination, retaliation, or any 
other unlawful conduct. Individual employees who prove an unlawful 
motive will win nothing when the defendant establishes the same action 
defense. They will ``win'' a moral victory, perhaps, but nothing else. 
The bill may enable some lawyers to earn more money, but who does this 
benefit? The answer is: lawyers, not discrimination victims, not 
unions, and not employers. Furthermore, the bill will hurt victims, 
unions, employers, and others because it will force these individuals 
and entities to spend years or decades fighting in court about whether 
the bill applies to what the bill vaguely describes as various laws 
that ``forbid[] employment discrimination.'' The bill will thus help 
empty the bank accounts of plaintiffs and defendants alike, and it will 
unnecessarily consume the limited resources of the Federal courts.
    Section 2_Findings and Purpose. The bill asserts that the Gross 
decision ``has narrowed the scope'' of the ADEA's protection and that 
Gross ``rel[ied] on misconceptions about the [ADEA].'' \38\ These 
assertions are incorrect. Nothing in the text or legislative history of 
the ADEA authorizes mixed-motive discrimination claims.\39\ The ADEA 
prohibits employment discrimination ``because of'' an individual's 
age.\40\ And, because Gross actually strips away the same action 
defense, Gross deprives entities that engage in age discrimination from 
a defense previously thought available.\41\
---------------------------------------------------------------------------
    \38\ Protecting Older Workers Against Discrimination Act, S. 1756, 
111th Cong.  2(a)(4)-(5) (2009).
    \39\ 29 U.S.C.  623; Gross, 129 S. Ct. at 2350-51; Secretary of 
Labor, The Older American Worker: Age Discrimination in Employment 21-
22 (1965).
    \40\ 29 U.S.C.  623(a)(1)-(2), (b), (c)(1)-(2).
    \41\ See Gross, 129 S. Ct. at 2350-51 & n.5.
---------------------------------------------------------------------------
    The bill also asserts that unless Congress takes ``action,'' age 
discrimination victims will ``find it unduly difficult to prove their 
claims and victims of other types of discrimination may find their 
rights and remedies uncertain and unpredictable.'' \42\ This assertion 
is also incorrect. The ``but for'' causation standard does not render 
discrimination victims helpless, nor does that standard mean that 
victims will lose their cases.
---------------------------------------------------------------------------
    \42\ Protecting Older Workers Against Discrimination Act, S. 1756, 
111th Cong.  2(a)(6) (2009).
---------------------------------------------------------------------------
    For example, in the Gross case itself, the trial judge applied the 
McDonnell Douglas standards after the trial, overruled the defendant's 
request the court overrule the jury, and sustained the verdict. 
Moreover, since the Gross decision issued, the Federal courts have 
repeatedly ruled in favor of age discrimination plaintiffs.\43\ 
Consider:
---------------------------------------------------------------------------
    \43\ Federal courts of appeal have also applied Gross in favor of 
plaintiffs alleging discrimination under other employment statutes. 
See, e.g., Serafinn v. Local 722, Int 1 Bhd. Of Teamsters, 597 F.3d 
908, 914-15 (7th Cir. 2010) (Labor Management Reporting and Disclosure 
Act; citing Gross to reject defendant's challenge to jury 
instructions); Fleming v. Yuma Regl Med. Ctr., 587 F.3d 938, 943-44 
(9th Cir. 2009) (Rehabilitation Act; citing Gross to conclude that  
504 covers independent contractors).

     In Hrisinko v. New York City Department of Education, 
decided 2 months ago, the United States Court of Appeals for the Second 
Circuit reversed the district court's grant of summary judgment and 
ruled in favor of an age discrimination plaintiff. The court noted that 
the plaintiff ``faced changes in the terms and conditions of her 
employment that rise to the level of an adverse employment action,'' 
and therefore she ``has set forth a prima facie case of age 
discrimination [under the McDonnell Douglas framework].'' \44\
---------------------------------------------------------------------------
    \44\ No. 08-6071, 2010 WL 826879, at *2-*3 (2d Cir. Mar. 11, 2010).
---------------------------------------------------------------------------
     In Mora v. Jackson Memorial Foundation, Inc., also decided 
this year, the United States Court of Appeals for the Eleventh Circuit 
observed that Gross established that ``no `same decision' affirmative 
defense can exist.'' The court reversed the district court's grant of 
summary judgment in favor of the employer and instead ruled in the 
plaintiff's favor.\45\ The court concluded that ``a reasonable juror 
could accept that [the employer] made the discriminatory-sounding 
remarks and that the remarks are sufficient evidence of a 
discriminatory motive which was the 'but for' cause of [the 
plaintiff's] dismissal.'' \46\
---------------------------------------------------------------------------
    \45\ 597 F.3d 1201, 1202 (11th Cir. 2010).
    \46\ Id. at 1204.
---------------------------------------------------------------------------
     Last year, the United States Court of Appeals for the 
First Circuit similarly reversed a district court's pro-employer 
summary judgment decision and found in favor of the plaintiff. In Velez 
v. Thermo King de Puerto Rico, Inc., the court applied the McDonnell 
Douglas framework,\47\ and noted that that ``several aspects of the 
evidence . . . are more than sufficient to support a factfinder's 
conclusion that Thermo King was motivated by age-based discrimination . 
. . . These include Thermo King's shifting explanations for its 
termination for Velez, the ambiguity of Thermo King's company policy . 
. ., and, most importantly, the fact that in response to arguably 
similar conduct by younger employees, Thermo King took no disciplinary 
action.'' \48\
---------------------------------------------------------------------------
    \47\ 585 F.3d 441, 447 n.2 (1st Cir. 2009).
    \48\ Id. at 449.
---------------------------------------------------------------------------
     In Baker v. Silver Oak Senior Living Management Company, 
the United States Court of Appeals for the Eighth Circuit reversed the 
district court's pro-employer grant of summary judgment, cited Gross 
decision, and ruled for the plaintiff. The court concluded that ``[the 
plaintiff] . . . presented a submissible case of age discrimination for 
determination by a jury'' when she introduced evidence that senior 
executives stated that they had a ``preference for younger workers.'' 
\49\
---------------------------------------------------------------------------
    \49\ 581 F.3d 684, 688 (8th Cir. 2009).

    Several other courts, including the Third, Sixth, Seventh, Ninth, 
and Tenth Circuits, relied upon Gross to rule in favor of 
plaintiffs.\50\
---------------------------------------------------------------------------
    \50\ Serafinn v. Local 722, Int'l Bhd. Of Teamsters, 597 F.3d 908 
(7th Cir. 2010); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d 
Cir. 2010); Bolmer v. Oliveria, 594 F.3d 134 (2d Cir. 2010); Fleming v. 
Yuma Reg'l Med. Ctr., 587 F.3d 938 (9th Cir. 2009); Leibowitz v. 
Cornell Uni., 584 F.3d 487 (2d Cir. 2009); EEOC v. TIN, Inc., 349 F. 
App'x 190 (9th Cir. Oct. 20, 2009); Brown v. J. Kaz, Inc., 581 F.3d 175 
(3d Cir. 2009); Thompson v. Weyerhaeuser Co., 582 F.3d 1125 (10th Cir. 
2009); Hunter v. Valley View Local Schs., 579 F.3d 688 (6th Cir. 2009). 
The following courts cited Gross and found in favor of the defendant: 
Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010); 
Reeder v. Wasatch County Sch. Dist., No. 08-4048, 2009 WL 5031335 (10th 
Cir. Dec. 23, 2009); Senske v. Sybase, Inc., 588 F.3d 501 (7th Cir. 
2009); Philips v. Centrix Inc., 354 F. App'x 527 (2d Cir. Dec. 1, 
2009); Spencer v. UPS, 354 F. App'x 554 (2d Cir. Dec. 1, 2009); Kelly 
v. Moser, Patterson & Sheridan, LLP, 348 F. App'x 746 (3d Cir. Oct. 9, 
2009); Milby v. Greater Phila. Health Action, 339 F. App'x 190 (3d Cir. 
July 27, 2009).
---------------------------------------------------------------------------
    Section 3_Standard of Proof. The Protecting Older Workers Against 
Discrimination Act would amend the ADEA to make an employment action 
unlawful if a plaintiff proves that an improper factor such as age 
motivated the employment action, even if other, legitimate factors were 
also motivators.\51\ But if a defendant can show that it would have 
taken the same action despite the improper factor, the plaintiff loses 
his or her right to damages, reinstatement, hiring, promotion, or 
payment.\52\ In the end, only the lawyers win; the Protecting Older 
Workers Against Discrimination Act would allow courts to award certain 
attorney's fees and costs and would do nothing to enhance the ADEA's 
protections of victims of discrimination.\53\
---------------------------------------------------------------------------
    \51\ Protecting Older Workers Against Discrimination Act, S. 1756, 
111th Cong.  3 (2009).
    \52\ Id.  (3); cf. id.  2(b).
    \53\ Id.  (3); cf. id.  2(a).
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    Title VII cases provide sobering examples of how the mixed motive 
framework turns winning plaintiffs into losers. Like the bill, title 
VII's mixed motive framework contains a same action defense and 
prevents victims from receiving a job, money, or anything else, other 
than money for their lawyers.\54\ The types of injunctive relief that 
plaintiffs want, such as a job or back pay, are expressly excluded.\55\ 
And, in fact, since the 1991 amendments to title VII, mixed motive 
plaintiffs have received nominal injunctive relief, or nothing.\56\ 
Some plaintiffs ``won'' only a hollow declaration that he or she 
prevailed.\57\ To add insult to injury, former employees are unlikely 
to receive any form of meaningful relief at all, as courts have found 
that even injunctive relief is not warranted when the plaintiff is a 
former employee.\58\ And, while some courts have suggested that 
injunctive relief may be appropriate when there is widespread 
discrimination or an employer maintains a discriminatory policy, the 
courts may issue only an order to comply with the law--something the 
law already requires even if no such order issues.\59\
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    \54\ 42 U.S.C.  2000e-5(g)(2)(B).
    \55\ Id.  2000e-5(g)(2)(B)(ii).
    \56\ See, e.g., Coe v. N. Pipe Products, 589 F. Supp. 2d 1055, 
1097-98 (N.D. Iowa 2008) (``Thus, although the trier of fact may well 
find liability on a `mixed motives' claim, the plaintiff may ultimately 
recover nothing if the trier of fact also finds for the defense on the 
`same decision' defense. When faced with the real possibility of 
passing through the gauntlet of an employment discrimination trial, 
this court doubts that many plaintiffs would be willing to run the risk 
of prevailing on liability, but still receiving no monetary 
compensation for their efforts. This court also doubts that many 
plaintiffs would be happy to find that insult is added to injury, when 
they will receive nothing, but their lawyers will be compensated by the 
employer.'').
    \57\ See, e.g., Thibeaux v. Principi, No. 04-1609, 2008 WL 2517170, 
at *5 (W.D. La. June 20, 2008) (finding injunctive relief inappropriate 
because employee no longer reported to supervisor about whom she 
complained and did not allege any ongoing discrimination); Crosby v. 
Mobile County, No. 04-0144, 2007 WL 4125885, at *3 (S.D. Ala. Nov. 14, 
2007) (``declaratory and injunctive relief is granted only to the 
extent that the court will declare that [defendant] engaged in 
discriminatory conduct . . .''); Templet v. Hard Rock Constr. Co., No. 
02-0929, 2003 WL 22717768, at *1 (E.D. La. Nov. 17, 2003) (finding that 
plaintiff is entitled to a judgment declaring that defendant violated 
law but finding no injunctive relief appropriate).
    \58\ See, e.g., Cooper v. Ambassador Personnel, Inc., 570 F. Supp. 
2d 1355, 1359-60 (M.D. Ala. 2008) (holding that no injunctive relief is 
appropriate because plaintiff is no longer employed at the company).
    \59\ See id. at 1360 (stating that ``injunctive and declaratory 
relief might be appropriate . . . where, for example, the company 
engaged in widespread gender discrimination of the type challenged or 
had an official policy for such or where the company continued to 
engage in such gender discrimination'').
---------------------------------------------------------------------------
    Section 3_Application of Amendment. The Protecting Older Workers 
Against Discrimination Act does not identify the laws to which it 
applies. Section 3 of the bill simply states that the mixed motive 
proof structure would apply to ``any Federal law forbidding employment 
discrimination.'' \60\ This language is hopelessly overbroad, vague and 
ambiguous, and would open up a Pandora's Box of litigation dedicated to 
deciphering this section.
---------------------------------------------------------------------------
    \60\ Protecting Older Workers Against Discrimination Act, S. 1756, 
111th Cong.  3 (2009) (proposed to be codified at 29 U.S.C.  
623(g)(5)(B)).
---------------------------------------------------------------------------
    For example, will the bill cover the Fair Labor Standards Act, 
which prescribes standards for the basic minimum wage and overtime pay? 
Or, will it cover only Section 15 of the Fair Labor Standards Act 
because that is the only section of the act that uses the word 
``discriminate?'' \61\
---------------------------------------------------------------------------
    \61\ 29 U.S.C.  215.
---------------------------------------------------------------------------
    Consider also the Family and Medical Leave Act. That law, known as 
the ``FMLA,'' provides eligible employees with up to 12 weeks of unpaid 
leave each year for several reasons, including for the birth and care 
of a newborn child of the employee; placement with the employee of a 
son or daughter for adoption or foster care; to care for a spouse, son, 
daughter, or parent with a serious health condition; to take medical 
leave when the employee is unable to work because of a serious health 
condition; or for qualifying exigencies that occur because the 
employee's spouse, son, daughter, or parent is on active duty or is 
called to active duty status as a member of the National Guard or 
Reserves in support of a contingency operation.\62\
---------------------------------------------------------------------------
    \62\ 29 U.S.C.  2612(a).
---------------------------------------------------------------------------
    The FMLA's terms are gender neutral, and the act protects both men 
as well as women.\63\ Is the FMLA a ``Federal law forbidding employment 
discrimination'' under the Protecting Older Workers Against 
Discrimination Act? If the bill is enacted in its current form, the 
public will have to wait years or decades until the issue trickles up 
to the Supreme Court to settle the issue. In the meantime, litigants 
and courts will waste time, money, and resources litigating this issue, 
with no benefit for anyone.
---------------------------------------------------------------------------
    \63\ Nevada v. Hibbs, 538 U.S. 721, 737 (2003)(``By setting a 
minimum standard of family leave for all eligible employees, 
irrespective of gender, the FMLA attacks the formerly state-sanctioned 
stereotype that only women are responsible for family caregiving, 
thereby reducing employers' incentives to engage in discrimination by 
basing hiring and promotion decisions on stereotypes'').
---------------------------------------------------------------------------
    The threat of decades of litigation about these issues is not 
merely hypothetical. Note in this regard that it took 38 years of 
litigation before the Supreme Court finally decided, in 2005, that the 
ADEA permits claims for unintentional age discrimination in certain 
circumstances.\64\ The Protecting Older Workers Against Discrimination 
Act, as currently proposed, will create litigation, confusion, and 
needless wasted resources and money because it does not precisely 
identify the laws it purports to amend. No victim of employment 
discrimination will benefit from any of this, and many will be hurt as 
will unions and employers. At a minimum, the bill should identify 
specifically the laws that it amends. The recently-enacted Lilly 
Ledbetter Fair Pay Act of 2009 specifically identified the laws it 
amended, and Congress can do the same here.\65\
---------------------------------------------------------------------------
    \64\ Smith v. City of Jackson, 544 U.S. 228 (2005).
    \65\ Pub. L. No. 111-2,   3-5, 123 Stat. 5, 5-7 (2009).
---------------------------------------------------------------------------
                             iv. conclusion
    I respectfully suggest that Congress re-examine the bill and its 
impact on Mr. Gross and other litigants. The bill will not restore any 
pre-Gross protections because Gross did not narrow the ADEA's 
protections. In fact, Mr. Gross already lost under those standards: the 
U.S. Court of Appeals for the Eighth Circuit applied the Price 
Waterhouse standard and overturned the jury's verdict in Mr. Gross' 
favor. Mr. Gross and many others will likewise gain nothing if the bill 
passes in its current form. The bill may provide greater income for 
some lawyers, but it will do so at a terrible cost. Discrimination 
victims, unions, employers, and others will become embroiled in years 
of unnecessary litigation about the bill's meaning. None of this is 
necessary, and I request that the Congress resist the urge to enact the 
bill as proposed.

    The Chairman. Well, thank you very much, Mr. Dreiband. Mr. 
Dreiband, I'll start with you then. You state that my bill will 
actually harm, not help, plaintiffs because the bill would 
apply the same standard that Congress enacted on a bipartisan 
basis as part of the 1991 Civil Rights Act, whereby a plaintiff 
who proceeds in a mixed-motive case is only eligible for 
injunctive relief and attorneys' fees.
    I want to emphasize that under my bill the plaintiff has a 
choice of whether to proceed with the traditional causation 
standard or proceed as a mixed-motive case where remedies, as 
you know, would be limited. Is your issue not with my 
legislation but rather with the compromise that was forged as 
part of the 1991 Civil Rights Act?
    Mr. Dreiband. No. The mixed-motive provision of title VII 
has largely become a dead letter. I will tell you I have been 
litigating cases, both on behalf of the United States 
Government, when I served at the Equal Employment Opportunity 
Commission, and in private practice on behalf of both 
plaintiffs and defendants, and in nearly 20 years since that 
bill was amended, plaintiffs have almost never invoked the 
mixed-motive framework, and the reason they've not done that is 
because the affirmative defense deprives them of any meaningful 
remedy, even if they win.
    Even with respect to injunctive relief, the Federal courts 
have routinely held that in cases in which former employees are 
involved--that is, somebody gets fired--that injunctive relief 
is not appropriate for them. And so, as a result, what we see 
in title VII cases since the 1991 Act is that the mixed-motive 
framework is almost never invoked.
    I mean, I can tell you in hundreds of cases that I 
litigated when I served as EEOC's general counsel, I was not 
aware of--and I was involved in many of them--not a single case 
in which the EEOC itself asserted a mixed-motive claim in a 
title VII case, and the reason for that is simply there is no 
remedy available or limited remedies available if you win.
    The Chairman. Let me ask then, Would you be in favor of 
compensatory and punitive damages for suits under both ADEA as 
well as title VII?
    Mr. Dreiband. Certainly Congress could amend the Age 
Discrimination in Employment Act to provide for those damages. 
Right now, the Age Discrimination in Employment Act provides 
for full back pay, front pay and liquidated damages, and that's 
the remedy that has been available since the law was enacted.
    The Chairman. How about in title VII cases? Would you be in 
favor of compensatory and punitive damages, then, to make them 
even'
    Mr. Dreiband. Title VII currently permits compensatory and 
punitive damages under certain circumstances.
    The Chairman. And you say that should apply to ADEA also.
    Mr. Dreiband. The Congress can certainly do that and I 
would leave that to you to decide whether you think that's in 
the public interest or not.
    The Chairman. Let me go to Ms. Norton. Mr. Dreiband has 
raised some issues here which I think need to be looked at. 
Basically, the bill, S. 1756, would return the law to what it 
was last June, apply the standard that has been in place for 20 
years and remains in place for claims under Title VII in the 
Civil Rights Act.
    The heart of the bill is modeled on the Civil Rights Act 
for 1991 which codified the motivating factor framework for 
race, sex, national origin, and religion discrimination under 
title VII.
    Now, you heard Mr. Dreiband's explanation there. Can you 
address yourself to that and to whether or not we are actually 
harming plaintiffs under this bill?
    Ms. Norton. You are not, chairman. Let me give you a couple 
of examples. We can start with Mr. Gross himself. Under the 
Price Waterhouse standard that was in effect for 20 years, Mr. 
Gross won. If S. 1756 were in effect at the time of his trial, 
Mr. Gross would have won.
    Only under the Supreme Court's new rule did Mr. Gross lose 
his verdict, and now he faces the prospect of a new trial in 
which he will bear the burden of proving what was not in his 
employer's mind at the time of his decision.
    A couple of other examples since Gross. The Federal Jury 
System Improvement Act prohibits employers from punishing 
employees for engaging in their civic duty of jury service. 
Plaintiff brought a claim under that case. The trial court 
applied Gross, found that the plaintiff was more credible than 
her employer, found that the plaintiff had proved that her jury 
service was a motivating factor in her decision, but, 
nonetheless, applying Gross, found that the plaintiff could not 
prove that other factors also motivated the decision.
    Under Gross, she gets nothing. Under S. 1756, at a minimum, 
she would get declaratory relief, injunctive relief, a court 
order enjoining the defendant from engaging in future 
discrimination against folks for serving jury duty, and she 
would bear the prospect of additional relief, depending on 
whether the employer could bear its burden of proving that it 
would have made the same decision absent discrimination. We've 
seen similar outcomes under the Americans With Disabilities Act 
and other statutes as well.
    The Chairman. I am going to ask Mr. Dreiband to respond to 
that.
    Mr. Dreiband. All right. Certainly, the notion that the 
Price Waterhouse v. Hopkins case was some great boon to 
plaintiffs, I think, is proven exactly by Mr. Gross' case that 
it was not.
    In Mr. Gross' case, the United States Court of Appeals of 
the Eighth Circuit applied the Price Waterhouse standard--
that's a 1989 Supreme Court case that established the mixed-
motive framework--and concluded that, under that standard, that 
Mr. Gross had failed to present direct evidence of 
discrimination, which is what, according to the court, his 
lawyer conceded at oral argument.
    As a result, the employer completely escaped liability, 
despite the fact that the jury had found that the employer had 
discriminated against him.
    I think, no. 1, I would say that the Price Waterhouse 
standard wasn't, in my view, any great benefit to victims of 
discrimination, and the 1991 amendments certainly partially 
abrogated the decision in Price Waterhouse. But because they 
have stripped away any meaningful remedy, plaintiffs rarely, if 
ever, pursue it. Rarely.
    I think the other thing I would say is that, since the 
Gross decision, what we have seen is that because employers no 
longer have this so-called same-action defense under the age-
discrimination law, the United States Courts of Appeals are 
frequently and routinely ruling in favor of plaintiffs.
    What happened before the Gross decision was very often that 
Federal district courts would rule in favor of defendants and 
say that the employer had established, as a matter of law, its 
same-action defense and the plaintiff could not even get a jury 
trial out of it.
    Now, the courts are saying that that defense is no longer 
available to employers and so the case should be scheduled for 
trial.
    The other thing I would say is the notion that ``but-for'' 
causation has something--requires that age or the other 
characteristic be the only factor is simply untrue. The 
standard--and it's included as described by the Supreme Court 
in the Gross case--is that determining factor, and that can be 
one of other factors, including--At issue in the decision 
itself, the court stressed there was no heightened burden for 
plaintiffs in age-discrimination cases.
    The Chairman. Ms. Norton, I feel like I am back in law 
school.
    [Laughter.]
    Ms. Norton. A couple of points, Mr. Chairman. First, I want 
to be very clear about what happened in Mr. Gross's case. The 
trial court applied Price Waterhouse to his claim and he won.
    The Chairman. Right.
    Ms. Norton. The Eighth Circuit ruled that the Price 
Waterhouse instruction was inappropriate because he did not 
have direct evidence, and the Supreme Court took cert on that 
issue, whether or not he should have gotten the Price 
Waterhouse instruction absent direct evidence. If the Supreme 
Court had answered the question on which it granted cert, I 
very much doubt that we would be here today.
    Instead, the Supreme Court articulated a brand new rule 
that not only stripped Mr. Gross of his verdict but imperiled 
the verdicts of many other plaintiffs as well.
    Mr. Dreiband seems to be arguing--quarreling with S. 1756 
in that it does not go far enough in terms of providing damages 
to plaintiffs, and I certainly would be open to enhancing the 
damages available to victims of discrimination.
    If instead what we are posed with a choice of today is the 
choice between S. 1756 or the status quo under Gross, is there 
any question about which standard is better for employment 
victims, victims of employment discrimination? Absolutely none. 
S. 1756 dramatically improves the protections available to 
those victims.
    The Chairman. Thank you both. I have some questions for Mr. 
Gross, also Ms. Aldrich, but I have gone over my time. I would 
recognize the Senator from Minnesota, if you want to jump in on 
this.
    Senator Franken. Yes. I would like to ask Mr. Gross, are 
you surprised by Mr. Dreiband's assertion that you are better 
off because of the decision in your case?
    Mr. Gross. First of all, I am not an attorney. I stayed at 
Holiday Inn once, but this is a little bit beyond my level of 
understanding, although, you know, I studied the situation--
    Senator Franken. Your case, I would think.
    Mr. Gross [continuing]. Of every case.
    Senator Franken. Yes.
    Mr. Gross. Yes, I am quite surprised by that because I 
agree that if the Supreme Court had answered the question that 
was brought before it that my verdict would have been 
reinstated, and I cannot see how I can be anything but better 
off if that had happened.
    Senator Franken. An interesting thing, Ms. Norton, is that 
the case that was brought before the court that they took cert 
on was different than what they decided on, right?
    Mr. Gross. That's right.
    Senator Franken. Ms. Norton?
    Ms. Norton. Yes, Senator, that's quite right. The court 
granted cert on the question that had divided the lower courts, 
whether or not a plaintiff, a victim like Mr. Gross, needed to 
have direct evidence of discrimination before he could get the 
Price Waterhouse instruction or whether circumstantial evidence 
would suffice.
    That question had divided the lower courts, and guidance 
from the Supreme Court on that would have been most welcome. 
Instead, they decided a very different question and articulated 
a rule that is much more punishing of age-discrimination 
victims.
    Senator Franken. Is it unusual for the Supreme Court to 
make a decision based on an issue that has not even been 
briefed?
    Ms. Norton. It is unusual. The issue was raised for the 
very first time by the defendant's brief in the Supreme Court. 
After Mr. Gross' attorney had already submitted their briefs, 
after the United States Government had already submitted its 
amicus brief, after the AARP had already submitted their amicus 
brief, the defendants offered that argument for the very first 
time.
    And as the chair of the EEOC noted, the solicitor general 
noted this at oral argument and urged the court not to address 
an issue that had not been fully and adequately briefed.
    Senator Franken. Now, it seems to me that, given the 
decision by the Supreme Court, that it is hard for a worker to 
prove what an employer was thinking, but, now, after the Gross 
decision, the worker has to present some sort of smoking gun to 
show that age was the determinative factor for the firing or 
the demotion.
    As an attorney who has litigated these cases, can you tell 
me what the smoking gun looks like, what it is supposed to look 
like, what it has to look like? Because most people do not 
write memos, And we fired Jane because she has a sick 
granddaughter, but mostly because she was old. How do you find 
a smoking gun?
    Ms. Norton. You are quite right. It is rare. I think what 
is especially pernicious about the Gross decision is that even 
if you have a smoking gun as a plaintiff, you may still lose.
    For example, I offered the example--and this is borne out 
by the anecdotes that Chair Berrien offered. If an employer 
admits that it rejected an employee because of its stereotypes 
that older workers are less productive than others, even--that 
is smoking-gun evidence, a confession.
    Even if that plaintiff has that, he or she will still lose 
and get nothing unless he or she can also prove that the 
employer had no other non-discriminatory reason that would have 
justified the decision at the same time. And it is very hard 
for that plaintiff to go into that employer's head and explain 
what was not there at the time of the decision.
    Senator Franken. It just seems like to me that there is a 
higher wall to climb. And that is why I was so taken that Mr. 
Dreiband seemed to be saying that, after Gross, that plaintiffs 
have been advantaged, and he seemed to present some sort of 
evidence of that. Did the evidence that he presented seem 
anecdotal or was it based on some kind of statistics--
    Ms. Norton. I hope very much that he was not saying that 
Gross advantaged plaintiffs, because that is certainly not the 
case. I understood him to be saying that some age-
discrimination plaintiffs still do win after Gross, and I would 
agree with that. Some age-discrimination victims still do win, 
but many more do not. It is harder for them to do so.
    Senator Franken. He seemed to be saying that actually they 
had been advantaged by it. Is that what you were saying, sir?
    Mr. Dreiband. I think it depends on the case, but there are 
cases that have come down since the Gross decision happened 
where the Federal courts of appeals have concluded that the 
standard is more favorable to plaintiffs than to defendants 
under the decision issued by the Supreme Court--
    Senator Franken. Would those be greater than the number of 
cases under which the opposite is true? Because I think that is 
part of the issue here. I mean, in your testimony, you seemed 
to be implying that it is a lower bar now and that the number 
of decisions for the plaintiff have increased rather than 
decreased, and there seemed to be a number of subsets here.
    It feels to me, while there may be a subset where the 
plaintiffs have prevailed under this new standard where they 
may not have before, that that subset is much smaller than the 
subset of plaintiffs who have not prevailed because of this. 
Which would you say is the greater subset, sir?
    Mr. Dreiband. What I have seen is that the majority of 
Federal court of appeals cases decided since the Gross decision 
have been more favorable to plaintiffs.
    Senator Franken. And is that--
    Mr. Dreiband. Including non-Federal circuit courts out of 
12.
    Senator Franken. [continuing]. Is that your experience, as 
you read it, Ms. Norton?
    Ms. Norton. No. If you look at those cases, it is true 
that, in those cases, the age-discrimination victim won, but it 
is not because the Gross rule helped them win. They won despite 
the Gross rule, not because of the Gross rule. I think that is 
very different than saying that the Gross rule advantages 
plaintiffs just because a few plaintiffs can still survive it.
    Senator Franken. OK. Is there a statistical way of doing 
some kind of analysis on that? Because I just want to see who--
    Ms. Norton. I am saying there is no subset in which 
plaintiffs are advantaged by Gross. So the statistics are easy 
from my standpoint.
    Senator Franken. OK. I would love to see some statistical 
analysis of Mr. Dreiband's assertion. Is that OK? From both of 
you? Would both of you agree to do that?
    Mr. Dreiband. Certainly. I am happy to provide any 
information I can to the committee.
    Senator Franken. Thank you. I really would appreciate that.
    Mr. Dreiband. In terms of statistical analysis, what kind 
are you asking for?
    Senator Franken. I was talking about two subsets. One was a 
subset of which plaintiffs have been clearly advantaged because 
of the Gross standard. And the other is where they have been 
disadvantaged. Your very strong assertion was that the first 
subset is much larger than the second.
    Ms. Norton's assertion is that the first subset is non-
existent.
    [Laughter.]
    I think it should be pretty easy to establish whose 
testimony is more persuasive, shall we say?
    Thank you very much.
    The Chairman. Let's try to get a little bit further on on 
what Senator Franken brought up here and what I think Mr. 
Dreiband talked about earlier, about who is disadvantaged and 
who is not disadvantaged. I want something cleared up for the 
record here for me personally.
    When Mr. Gross brought his case--when the jury decided for 
Mr. Gross, Mr. Gross got compensatory damages, I believe. I 
don't know if you got punitive damages.
    Mr. Gross.  No.
    The Chairman.  Compensatory damages?
    Mr. Gross.  Yes.
    Ms. Norton. Lost compensation.
    The Chairman.  Pardon?
    Ms. Norton. Sir, not pain and suffering damages. Lost 
compensation.
    The Chairman.  Lost compensation.
    Was there also injunctive relief, too, or just compensatory 
damages, but not injunctive relief--
    Ms. Norton. I actually don't recall if there was injunctive 
relief. And, again, I don't mean to quibble, but compensatory 
damages, pain and suffering damages are not available under the 
Age Act. He did get damages for his lost pay raises and lost 
stock options.
    The Chairman.  Isn't that compensatory--
    Ms. Norton. Technically, compensatory means pain and--non-
economic damages.
    The Chairman.  I mean economic damages.
    From hearing what Mr. Dreiband said, under S. 1756 Mr. 
Gross would not be eligible to get lost wages, and my counsel 
says that that is not so. Mr. Gross would still be able to get 
those kinds of damages. Can you enlighten me on that?
    Ms. Norton. Yes, absolutely. So Mr. Gross received the 
Price Waterhouse instruction, the 20-year-old Price Waterhouse 
instruction, which required him to prove--to persuade the jury 
that age was a motivating factor in his decision, and he did so 
convince the jury.
    Then the defendant was permitted to try to prove--to try to 
persuade the jury that it would have made the same decision 
even absent age discrimination, and the defendant did not so 
persuade the jury. That's Price Waterhouse.
    Under S. 1756, same set of instructions, first, Jury, do 
you find that Mr. Gross has proved that age was a motivating 
factor in your demotion?
    Jury says, Yes. That means that, under your bill, for sure 
now we know that Mr. Gross will get declaratory and injunctive 
relief and part of his fees and costs.
    Then the jury is asked a second question: Jury, do you find 
that the defendant proved, nonetheless, that it still would 
have demoted Mr. Gross absent age discrimination?
    Presumably the same answer, no. So he gets to keep--Also, 
then he is entitled to whatever back pay and other relief he 
can prove under your bill. Exactly the same result under your 
bill.
    The Chairman.  Well, you disagree with that, Mr. Dreiband?
    Mr. Dreiband. The way Professor Norton described it, no, I 
don't agree. I do agree entirely with what she just said. What 
I don't think we would agree about, though, is why any 
plaintiff would pursue a mixed-motive theory under the bill.
    The reality is, under title VII, which has very similar 
language, a plaintiff can pursue a claim for what--the because-
of standard described by Gross under Section 703 of Title VII 
and not invoke the mixed-motive provision of title VII, which 
is a separate section.
    In my experience both as general counsel of the Equal 
Employment Opportunity Commission and representing plaintiffs 
and defendants in title VII cases, plaintiffs or victims of 
title VII discrimination almost never--and, in my experience, 
never--invoke the mixed-motive, burden-shifting scheme, because 
there is a risk that, even if they prove discrimination 
happened, there is the chance that the defendant can prove this 
defense and then they get nothing.
    As a result, what happens in the real practice of law is 
that plaintiffs tend not to pursue that theory. The cases are 
extremely rare as a result and it is because of the defense 
that that has made available.
    The Chairman.  Still, under S. 1756 they have that choice, 
right?
    Ms. Norton. Of course. I guess a lot depends on what we are 
comparing this to. Could you come up with a bill that has even 
greater damages for plaintiffs? You bet.
    The Chairman.  Sure.
    Ms. Norton. Is this bill better than Gross? You bet. It is 
also an improvement on Price Waterhouse. It is more plaintiff-
friendly than Price Waterhouse is. And Mr. Gross sought a Price 
Waterhouse instruction.
    We saw folks seeking Price Waterhouse instructions under 
the ADEA case that you mentioned with respect to the Seventh 
Circuit. They lost under Gross, under the jury case that I 
asked--a Price Waterhouse mixed-motive instruction. There is no 
reason to believe they wouldn't also seek that instruction 
under your bill.
    The Chairman.  I just want to understand. Our bill does not 
take that right away from them.
    Mr. Dreiband. Let me give you--if I could, Senator Harkin--
give an example. In the case of Josephine Mora, her case went 
to the United States Court of Appeals, to the Eleventh Circuit, 
just this year.
    She worked for her employer and the chief executive officer 
of that company said to her, I need someone younger who I can 
pay less. Also said to her, allegedly, You are very old. You 
are very inept. What you should be doing is taking care of old 
people.
    The employer asserted, as a defense, that her performance 
was poor, and, under the Price Waterhouse mixed-motive 
standard, that it had a--even if it considered age of Ms. 
Mora--that it would have taken the same action because of her 
poor performance.
    The district court in that case threw the case out at the 
summary-judgment stage. Said there was not even enough 
evidence, despite these statements by the chief executive 
officer of the company, because, under the Price Waterhouse 
standard--that is, the so-called same action--that the employer 
would have taken the same action--she loses.
    The United States Court of Appeals for the Eleventh Circuit 
this year, a couple of months ago, read the Gross decision and 
reversed the district court's decision in favor of the 
defendant and ruled in favor of Josephine Mora, because the 
court said that the Gross decision removed this so-called 
defense that employers have.
    If I could just clear up one other point very quickly that 
Senator Franken made, I did not mean to suggest that Mr. Gross 
is better off because he lost in the Supreme Court or in the 
United States Court of Appeals for the Eighth Circuit. He would 
have been better off if the Price Waterhouse decision had not 
required direct evidence of discrimination. And, in my view and 
my review of the record, it looked to me like harmless error.
    I think the real problem in the case was the concession at 
the court of appeals that there was no direct evidence, and the 
whole issue was framed in that basis, rather than the fact that 
there was admissible evidence of discrimination that he and his 
lawyers presented at the trial. So I just wanted to clear that 
point up. Thank you.
    The Chairman. I hate to keep this ping-pong game going, 
but, Ms. Norton, do you have a response on that?
    Ms. Norton. I do wish that the Supreme Court had actually 
answered the question that it had taken cert on, because I 
actually am quite confident--who knows. I would predict that 
the Supreme Court, again, would side with Mr. Gross to rule 
that direct evidence is not required, because it is so unusual 
in the law to require unusual types of evidence, and the court 
is very reluctant to require that unless and until Congress 
instructs it to do so.
    There's nothing in the Age Act that requires direct 
evidence as opposed to circumstantial evidence. And your bill 
would fix that.
    The Chairman. Mr. Gross, you have been listening to all 
this back and forth on this and the legal ramifications of it. 
You are going back to another trial this November, right?
    Mr. Gross. That's right.
    The Chairman. You are not a lawyer. I understand that. It 
seems to me under the Supreme Court decision now, you have to 
prove that age discrimination was really--what?
    Ms. Norton. The ``but-for''. He certainly can prove that it 
was a motivating factor. He has done it already, but then he 
must also prove that the employer would not have made the same 
decision even absent age discrimination. He has to explain what 
was in the employer's head, along with age discrimination, and 
how that motivated the decision.
    The Chairman. That but for his age, the employer would not 
have made that decision.
    Mr. Gross. Yes.
    The Chairman. How do you prove that? I mean, I do not know 
how you prove something like that. You are almost trying to 
prove a negative.
    Mr. Gross. That is the problem with the whole definition of 
direct evidence and what is a smoking gun.
    We did have a memo that had been produced, I think about a 
year before, identifying people who were going to get demoted, 
and we noticed that there was only one common denominator. We 
were all over 50.
    The Chairman. Yes.
    Mr. Gross. That evidently was not a smoking gun. We did not 
know about it. There is nothing we could have done to have 
changed it performance-wise.
    The Chairman. Yes. I think that, to me, distills it down, 
Mr. Dreiband, and that is that, in these cases you have cited--
that one you just cited and read from--not too often do you 
really have that smoking gun. Maybe in a few cases you do, and, 
obviously, those seem to be the cases that made it to the 
circuits where you really had a definite smoking gun. In most 
cases, you do not have that.
    What you have done is you set this really high bar. If you 
have a smoking gun, you are going to win, even under the Gross 
decision.
    That does not happen that often.
    What we have said in the past is that if you can show that 
age was one of the factors--if you can show that--and that is a 
burden on the plaintiff. They have to show that. They showed it 
because all of the people that had been demoted were over the 
age of 50. That was the one characteristic they had in common.
    The burden then goes to the employer to say, We have this 
evidence. The employer has all the documentation. You have the 
records. You have their performance standards. You have all 
this stuff on your employees. You can come back in and show 
that that was not the decisive factor. There were other reasons 
why you demoted Mr. Gross.
    They can do that. They have all of the data. But for Mr. 
Gross to show that ``but-for'' that they would have made a 
different decision, that is almost impossible, unless he has a 
smoking gun.
    It seems to me--from a layman's standpoint, that is the 
difference between your approach and Ms. Norton's approach or, 
I think, perhaps our approach here. We do not want to just 
limit this to smoking-gun cases. We want this more broadly 
applied, because we know, in real life--in real life--you do 
not often get that smoking gun.
    Therefore, we have said if you can show that this was a 
factor, burden shifts. Employer, you show, now, that it was not 
just ``but-for'' his age that you demoted or fired Mr. Gross. 
Isn't that really the essence of what we are talking about?
    Mr. Dreiband. With all due respect, Senator Harkin, no, I 
am not suggesting and do not mean to imply that a plaintiff in 
a discrimination case needs some kind of smoking gun in order 
to prevail.
    The Supreme Court of the United States, in 1973, 
established the burdens and the burden shifting that happens in 
title VII cases that courts have applied to age-discrimination 
cases in cases in which there is not a smoking gun. Litigants 
have been operating under that standard, under this so-called 
because-of race or sex standard, for nearly 40 years and have 
been winning cases without any kind of smoking gun. Typically, 
the evidence includes things of the sort that Mr. Gross 
presented in his case.
    For example, in Mr. Gross' case, according to the district 
court's opinion, there was evidence that a former subordinate 
of Mr. Gross was put in the position that he held, that a 
former supervisor testified that, in Mr. Gross' case, Mr. Gross 
was much more qualified than that younger former subordinate. 
Mr. Gross provided similar testimony. So the evidence may not 
have included a smoking gun or what the court of appeals 
described as direct evidence.
    Under that standard, Mr. Gross prevailed in front of the 
jury. I think he would prevail again if the evidence is as 
described by the district court. And so I did not, in any way, 
mean to imply that a smoking gun is necessary.
    The point I would make, though, is that because of the 
framework of the bill, no. 1, it fails to identify the laws 
that the Congress proposes to amend. Litigants, including 
victims, are going to be left fighting over that issue 
unnecessarily for many years.
    No. 2, because there is no meaningful remedy available, if 
an employer proves this so-called same-action defense, in the 
same way that title VII does not provide that kind of 
meaningful remedy to victims, most victims of discrimination 
will not pursue the mixed-motive framework. That is what we 
have seen under title VII, and I think that is what we will see 
if the bill is enacted in its current form.
    The Chairman. It is like preponderance of evidence. The 
preponderance in this case, of the legal experts that my 
counsel has talked to--who is also a pretty good legal expert 
in his own right--and others say that Mr. Gross is not in as 
good a position going back into the trial as he was before. You 
were saying he is actually in a better position.
    As I said, almost all the legal experts in the EEOC and 
others that we have contacted about this in drafting this 
legislation said this will put Mr. Gross in a better position. 
It will put him in at least an equal position to what he was 
before.
    Am I wrong in that, Ms. Norton? Will S. 1756--if we could 
pass it today and get the president to sign it, would this put 
him basically in a similar kind of a situation he was before or 
will he be in a worse position?
    Ms. Norton. He will certainly be in a--
    The Chairman.  He's going back to trial in November. OK?
    Ms. Norton. Yes. If you pass this before he goes back to 
trial, he will be in a better position than he is today, under 
Gross. That is absolutely true.
    The Chairman.  That is what I keep hearing from everybody, 
but you do not agree with that.
    Mr. Dreiband. No. Maybe I have not been clear. I mean, what 
I would encourage the committee to do is go ask the EEOC how 
many mixed-motive cases under title VII they have litigated 
since 1991. You are going to find that the answer is almost 
none. And the question I would have is why.
    The answer is because neither the government nor victims of 
discrimination can prevail, even if they win--or at least the 
possibility is they will not prevail, because even if they 
prove discrimination, there are no damages available--no back 
pay, no front pay, no job, no reinstatement, nothing.
    As a result, most victims of discrimination, given the 
choice, will pursue the other alternative framework under title 
VII.
    The Chairman.  Mr. Dreiband, are you in disagreement--maybe 
I am wrong--that under S. 1756, if it were passed, Mr. Gross 
could still get--maybe I am wrong in my use of terms, not 
compensatory damages, but could get back pay and loss of wages 
and that kind of thing. Am I wrong on that?
    Mr. Dreiband. He could get liquidated damages and back pay 
only if the employer fails to prove the defense. So that is 
true.
    Ms. Norton. That is what happened before at trial.
    The Chairman. That is what happened.
    Ms. Norton. That is what happened at trial.
    Mr. Dreiband. Right.
    The Chairman.  That is what happened in the first trial.
    Mr. Dreiband. It did happen. And the question, though, is--
    The Chairman. Why wouldn't that happen again?
    Mr. Dreiband. It may happen again.
    The Chairman.  Then, why would he be disadvantaged under S. 
1756?
    Mr. Dreiband. Because it may not happen. Whereas, if you 
can--
    The Chairman. It may not happen. I will tell you what, 
under the law right now--the Supreme Court decision, not our 
law, but the Supreme Court decision--he is going to have a 
dickens of a time proving his case. How can he prove this? He 
can't.
    Mr. Dreiband [continuing]. He will bring in the same 
evidence that was brought in--Look, let me say this: He would 
have been better off if his verdict had not been reversed. I do 
not mean to suggest otherwise. If the U.S. Court of Appeals had 
not reversed the verdict, he would be in a better position, 
but--
    The Chairman. OK. What we are trying to do with S. 1756 is 
to put it back sort of the way it was before. You are saying we 
are not doing that?
    Mr. Dreiband [continuing]. The bill does not exactly mirror 
the standards that governed at the time of the jury trial in 
this case. There are changes. For example, I think as Professor 
Norton mentioned--or somebody mentioned--there's no longer the 
direct-evidence requirement in a mixed-motive case, that the 
bill would change. The question, though, is why someone would 
want to pursue it.
    It is true that the jury did reject, in this case, the 
employer's same action defense and may do so again.
    The Chairman. I do not think Mr. Gross--I don't know. I am 
not his lawyer. He is not going to pursue a mixed-motive case, 
is he?
    [Discussion off the record.]
    The Chairman. We don't know. I don't know. I mean, that is 
up to him and his attorney, whether he is going to pursue a 
mixed-motive course of action.
    I assume in the previous case it was a mixed motive or was 
it just simply straightforward age discrimination?
    Mr. Gross. It was a mixed-motive instruction--
    The Chairman. To the jury.
    Mr. Gross [continuing]. Yes. Accompanied by that, and from 
a lay perspective, they also got an instruction that said if 
Farm Bureau could show any evidence--any evidence--that they 
would have taken the same action in absence of my age, then 
they should find in favor of Farm Bureau.
    Now, to me, that--as a lay person, that is a ``but-for'' 
causation.
    The Chairman.  That is right.
    Mr. Gross. I am not sure I, as a lay person, understand, 
the intricacies of the way this language is getting parsed back 
and forth.
    The Chairman. Um-hum.
    Ms. Norton. I will just add that is a very good question, 
and the burden of proof matters. It mattered that, at trial, 
the employer had the burden of proof.
    Gross flips that such that the burden of proof never shifts 
to the employer, even if the plaintiff can prove 
discrimination.
    Your bill would return it to the status quo, where once the 
plaintiff--like Mr. Gross--proves that discrimination played a 
role in the decision, the burden of proof shifts to the 
employer, and that matters.
    The Chairman. What would the instructions to the jury be 
under the Supreme Court decision right now?
    Ms. Norton. Under the Supreme Court decision?
    The Chairman. Right. As it stands right now, what would 
their instructions to the jury be?
    Ms. Norton. Do you find that Mr. Gross proved, by a 
preponderance of the evidence, that age was the ``but-for'' 
cause of your demotion?
    The Chairman. But for that, he would not have been demoted. 
Would a jury understand that? I have a hard time understanding 
that.
    Mr. Dreiband. Well, Senator Harkin, if I could clarify a 
little bit on that question, the defense lawyers in the case 
did propose a so-called ``but-for'' causation standard, the 
model jury instruction by the U.S. Court of Appeals in that 
circuit, and that instruction explains that so-called ``but-
for'' causation does not mean that age, in this case, has to be 
the only reason for the decision. Rather, the jury instruction 
explains it has to be a determining factor. What you ultimately 
are arguing about is is it determining factor or motivating 
factor and whether or not there is a difference between those 
two standards.
    Discrimination plaintiffs have been winning cases for 
decades under the determining-factor standard that the Gross 
decision sets, and this notion that it somehow has created this 
impossible burden is simply untrue. It is not what we are 
seeing in the courts, and it is not true under title VII.
    Ms. Norton. Just to briefly respond, I guess we can take 
solace in the fact that we do know how the Civil Rights Act of 
1991 standard has worked.
    The Chairman. I am sorry. Say that again.
    Ms. Norton. The standard that you are proposing is one that 
has been in place for 20 years under title VII. So we know how 
it has worked. It has been in place for 20 years.
    I know, too, that it was also the position taken by the 
Reagan Department of Justice during the Price Waterhouse 
litigation. They adopted the standard that you are proposing in 
the briefing of the Price Waterhouse case in 1988.
    And, of course, the first President Bush also endorsed the 
same standard in enacting the Civil Rights Act of 1991. It 
appropriately balances the interests of both employees to be 
free from discrimination and the interests of employers in 
considering non-discriminatory factors in making employment 
decisions.
    The Chairman.  Ms. Aldrich, you have been very patient with 
all this going on here.
    Ms. Aldrich. Yes. I also am not an attorney by background, 
but I would say that, from my perspective in looking at this, 
it just seems, thinking about all the potential employees who 
have age-discrimination cases, this sets a tougher and 
different standard for those cases.
    You have heard from Mr. Gross how difficult it is to come 
forward on age-discrimination cases, the pressure, the loyalty. 
Older workers are my loyal. Older workers have a hard time 
coming forward anyway, and then to have to make a tougher 
standard seems to me to be very unfair. I also think it is 
important for us to put it in the context of what is going on 
right now.
    We did a survey at AARP--this is a pre-recession. I am sure 
the numbers would be higher now--where older workers said that 
they have seen or experienced discrimination in the workplace. 
These are workers between 45 and 74. Sixty percent said--
    I think age discrimination is extremely important, and I 
would like to see us restore the standard that is similar for 
other discrimination cases.
    The Chairman. I think that is really what we are trying to 
do here. I was quite taken aback to think that what we were 
doing was not helping, and that somehow older workers are in 
much better position because of the Supreme Court decision. I 
just find that very hard to understand, Mr. Dreiband.
    I know these are fine legal points, but it comes down to 
that trial court and what the instructions to the jury are. It 
seems to me the instructions to the jury, under the previous 
law, were much more clear cut. It did put the burden on the 
defendant after he proved--after he got over the first hurdle, 
and the jury said no, they did not show that there was any 
other reason, that age was the factor.
    Now, it is all on him as he goes back to trial court. The 
Defendant does not have to do anything. The plaintiff just has 
to show everything. And I suppose if he has a letter from his 
employer saying, You old goat, we want you out of here, you 
know, that could be a smoking gun, I suppose, or something like 
the things you said that were in these other cases, but that 
just does not happen that often.
    As for the other reason that Ms. Aldrich pointed out, how 
tough it is for older workers who have been in a company a long 
time and loyalty and you have friends there, you know, to raise 
that bar up again, it would seem to me it would tend--just the 
way things are right now--would tend to say to an older 
employee who is facing that kind of discrimination that, you 
know, better not to fight. Better just to leave and do 
something else and not put up a fuss about it.
    That is not the right way to do things. I mean, that would 
just be giving in to discrimination. You have to have people 
with the guts and the courage of their convictions, like Mr. 
Gross, who understands it is not just about him. It is about a 
lot of other people, too.
    Ms. Aldrich. About a lot of other people.
    The Chairman. A lot of other people getting hit by this. 
There are a lot of other people, other than Mr. Gross, who are 
effected by this, but, for whatever reason, they decided not to 
go forward.
    I do not mean to look into anybody's motives, but I think 
Mr. Gross understood, if I do not do this, if I do not stand 
up, who is going to stand up?
    Mr. Gross. That is right.
    The Chairman. Who is going to go up and say, Wait a minute, 
this is wrong. This is not the right way to proceed in our 
society, and that the laws ought to mean something if they are 
going to protect people against discrimination.
    This is why I think we have to get back to where we were, 
back to a semblance of where someone like a Mr. Gross can come 
forward, even though he does not have a smoking gun, but he has 
a preponderance of evidence and he can show that age was a 
factor.
    Then let the defendant--as we have said in the past--show 
that that was not the overriding--there were other reasons, all 
these other reasons why they demoted or fired or got rid of 
somebody.
    It seems to me that is what we are trying to get to. Am I 
wrong?
    Mr. Dreiband. Senator Harkin, may I just briefly respond?
    The Chairman. Yes, of course.
    Mr. Dreiband. With respect to any of my remarks, I want to 
be clear, age discrimination in employment is a terrible 
problem in the United States and has been one for a long time. 
And I did not, in any way, mean to suggest by any of my remarks 
that I thought or that I think that age-discrimination victims 
should have some kind of increased or heightened burden to 
prove their case.
    When I served as the general counsel of the Equal 
Employment Opportunity Commission, we litigated hundreds of 
cases. I personally intervened and argued on behalf of victims 
of age discrimination in several cases, both to authorize those 
cases on the front end, including several class-action cases 
against major employers, major law firms.
    I argued cases on behalf of victims in the United States 
Courts of Appeals and worked with the solicitor general on 
behalf of victims in Supreme Court cases.
    We recovered more money for discrimination victims through 
EEOC's litigation program during my tenure than at any other 
time before or since in the EEOC's history. I am very proud of 
that service and feel very honored to have served with many of 
the people who are still at the EEOC.
    I just want to be clear that I did not, in any way, mean to 
suggest that age discrimination is not a problem or that 
victims of discrimination should have some onerous burden to 
prove their case. That is not what I intended to imply, and I 
just wanted to make the record clear on that.
    Thank you.
    The Chairman. I never inferred that from any of your 
statements. There seems to be different approaches on how to do 
this. Our job here is to try to figure out which is the best 
approach.
    I try to go out to all the experts. We go out to different 
groups and try to figure out what is the best approach. All I 
can say is that, maybe we can make it tougher. I don't know. I 
also have to look at the reality of what we can do here in a 
legislative sense.
    It just seems to me that what was happening before, and the 
fact that you were successful in prosecuting all the cases, 
that whatever the law was before seemed to work pretty well.
    Since the Gross decision, it has created a turmoil. It has 
created a lot of uncertainties, and from what I understand, it 
is going to create a higher burden of proof for plaintiffs than 
what we have had in the previous 20 years.
    If that is the case, then we want to--I do not want to have 
a higher burden of proof for plaintiffs. I think they already 
have a burden of proof. I think the logic of the law that we 
have had for the last 20 years has been pretty good, seems to 
me.
    But, no, I did not infer that you were anything but opposed 
to age discrimination. It seems to me two different viewpoints 
on how to get to the solution of this, which always raises 
questions around and in our legislative process.
    This is very interesting. Do we have anything else that 
anybody wanted to say before we close?
    Mr. Dreiband. Can I make one small point?
    The Chairman. Sure.
    Mr. Dreiband. Something we have not focused on that I do 
think the Congress could easily fix is the problem in the bill 
of ambiguity in terms of which laws the bill would amend.
    The law says it would amend or apply to any Federal 
employment discrimination law, and by not listing those laws, 
it creates a lot of uncertainty that I think could easily be 
clarified by the Congress if it wanted to just simply list the 
laws that Congress intends to amend. I would encourage the 
committee and the Congress to focus on that.
    The Chairman. I have been through that, Mr. Dreiband. I 
have been through that. What was the recent case that you told 
me about that?
    [Discussion off the record.]
    The Chairman. My counsel tells me that there was a case 
where the court decided that it did not apply to the Jury 
Systems Improvements Act. I never heard of the Jury Systems 
Improvements Act.
    Here is what I remember about specifically. I remember when 
we were passing the Americans With Disabilities Act. Now, this 
may not be on point in a legal sense, but I remember when we 
were passing the Americans With Disabilities Act, there was a 
move by some that said that we could not leave it as broad as 
it was. We had to specify every single disability.
    That is an impossibility, because there are permutations of 
all kinds of different kinds of disabilities. Well, it may have 
been--you might have listed one, but maybe this was a subset of 
that that didn't really apply.
    It seems to me that if we do not leave this broad and we 
try to specify every--I will bet we would have not looked at 
the Jury Systems Improvements Act. Hundreds of different things 
out there that Congress has passed. What if we forget one? Then 
we have to come all the way back here and pass another law to 
cover that?
    That is why this idea of specificity and specifying every 
single law just does not work. That is why we leave it broad, 
and we leave it up--need I say this?--to the courts to say what 
was Congress' intent.
    We will have plenty of written and also in our record, our 
hearing records, as I am making today, and we will have it in 
terms of our report language that we intend to have this 
applied broadly--broadly.
    That is what we said in the Americans With Disabilities 
Act. We intend for this to be applied broadly in terms of 
disabilities, and that is what I think we have to do here. As I 
said, I just don't think we can specify every law. That is my 
response on that.
    Thank you very much. This has been very enlightening. As I 
said, boy, I wish I would have paid more attention in law 
school now.
    [Laughter.]
    It was very enlightening and I thank you very much for 
this.
    The record will be kept open for 10 days for other 
questions to be submitted by Senators who, for one reason or 
another, could not be here today.
    Thank you, again, very much.
    The committee will stand adjourned.
    [Additional material follows.]

                          Additional Material

    Response to Question of Senator Harkin by Jacqueline A. Berrien
    Question. In your testimony, you referred to the ``surge'' in ADEA 
charges and the increasing prevalence of workers facing age 
discrimination. Can you describe in more detail the trends the EEOC has 
seen with respect to age discrimination in the workplace?
    Answer. Over the last 5 years, from fiscal year 2005 to fiscal year 
2009, there was a 37 percent increase in ADEA charge receipts. The EEOC 
received 16,585 ADEA charges in fiscal year 2005 and the number climbed 
to 24,582 charges in fiscal year 2008, with only a slight decline (to 
22,778) in fiscal year 2009. This is consistent with the overall 2.2 
percent decline in charge receipts between fiscal year 2008 and fiscal 
year 2009.\1\ As a percentage of charges filed, ADEA charges went from 
22.5 percent of charge receipts in fiscal year 2005 to 25.8 percent of 
charge receipts in fiscal year 2008 to 24.4 percent of all charges 
received in fiscal year 2009. Over the last 10 years, from fiscal year 
1999 to fiscal year 2009, there has been a 61 percent increase in ADEA 
charge receipts. In fiscal year 1999, the Agency received 14,141 ADEA 
charges, which comprised 18.3 percent of all charges filed.
---------------------------------------------------------------------------
    \1\ During the first two quarters of fiscal year 2010, the Agency 
received 11,381 ADEA charges.
---------------------------------------------------------------------------
    Of course, charge data only measures the number of filed charges of 
discrimination. Many victims of age discrimination do not file charges 
\2\ and not all charges are meritorious. The ``merit factor'' rate is a 
closer measure of the percentage of meritorious claims filed with EEOC 
because it represents all charge resolutions in which the charging 
party received a benefit (including negotiated settlements, 
conciliations, and withdrawals where the parties have reached a private 
settlement). Since fiscal year 2005, the merit factor rate for ADEA 
charges has averaged 19.2 percent.
---------------------------------------------------------------------------
    \2\ See, e.g., Vincent J. Roscigno, Sherry Mong, Reginald Byron, 
Griff Tester, Age Discrimination, Social Closure and Employment, 86 
SOCIAL FORCES 313, 319 (Sept. 2007) (opining that age discrimination 
charges, or cause findings, represent a ``significant underestimate'' 
of workplace age discrimination).
---------------------------------------------------------------------------
    On July 15, 2009, the Commission held a hearing on Age 
Discrimination in the 21st Century--Barriers to the Employment of Older 
Workers, in which witnesses testified that negative stereotypes about 
older workers are still prevalent in the workplace. However, many 
researchers have found assumptions about declining productivity of 
older workers to be false.\3\ These findings have been consistent since 
the Department of Labor's 1965 study that served as the impetus for the 
ADEA.\4\
---------------------------------------------------------------------------
    \3\ Towers Perrin, The Business Case for Workers Age 50+, Planning 
for Tomorrow's Talent Needs in Today's Competitive Environment (AARP) 
(Dec. 2005), at 33-43. (``Mounting evidence--both anecdotal and 
statistical--demonstrates that older workers bring experience, 
dedication, focus, stability and enhanced knowledge to their work, in 
many cases to a greater degree than younger workers;'' it is a myth 
that performance suffers over time; rather, older workers' ``commitment 
and knowledge that comes with experience are far more important drivers 
of workplace contribution''); Posthuma & Campion, at 166 (Although some 
skills may deteriorate with age, older workers' knowledge and expertise 
compensate so that productivity generally does not decline with age, 
and may, in fact, improve.).
    \4\ REPORT OF THE SECRETARY OF LABOR, THE OLDER AMERICAN WORKER: 
AGE DISCRIMINATION IN EMPLOYMENT 8-9 (June 1965) (finding ``The 
competence and work performance of older workers are, by any general 
measure, at least equal to those of younger workers.''). 

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

The total of individual percentages may not always sum to 100 percent 
---------------------------------------------------------------------------
due to rounding.

EEOC total workload includes charges carried over from previous fiscal 
years, new charge receipts and charges transferred to EEOC from Fair 
Employment Practice Agencies (FEPAs). Resolution of charges each year 
may therefore exceed receipts for that year because workload being 
resolved is drawn from a combination of pending, new receipts and FEPA 
transfer charges rather than from new charges only.

Definitions of Terms

Historical Data

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

The total of individual percentages may not always sum to 100 percent 
due to rounding.

EEOC total workload includes charges carried over from previous fiscal 
years, new charge receipts and charges transferred to EEOC from Fair 
Employment Practice Agencies (FEPAs). Resolution of charges each year 
may therefore exceed receipts for that year because workload being 
resolved is drawn from a combination of pending, new receipts and FEPA 
transfer charges rather than from new charges only.

Definitions of Terms

Historical Data
        Response to Questions of Senator Harkin by Helen Norton
    Question 1. The legislation I introduced, the Protecting Older 
Workers Against Discrimination Act, is intended to return the law to 
what it was before the Court's decision in Gross v. FBL Financial. The 
bill would codify the motivating factor standard of causation in mixed 
motive cases that had been in place since Price Waterhouse v. Hopkins. 
It is also the standard that remains in place for claims under Title 
VII of the Civil Rights Act.
    Why do you believe the motivating factor standard is the 
appropriate causation standard for mixed motive cases, including those 
under the ADEA?
    Answer 1. Once the plaintiff has proven that discrimination was a 
motivating factor in the defendant's employment decision, the 
``motivating factor'' standard shifts the burden of proof to the 
defendant to show that it would have made the same decision even absent 
discrimination. Such burden-shifting appropriately recognizes and 
responds to employers' and employees' asymmetric access to information 
about the employer's state of mind. Indeed, defendants' greater access 
to information that is key to proving or disproving an element of a 
particular claim commonly triggers burden-shifting in many other areas 
of the law.\1\ Such burden-shifting is especially appropriate, 
moreover, when the uncertainty in determining the ``but-for'' cause of 
the decision has been created by the defendant's discriminatory 
consideration of protected status or activity in its decisionmaking. As 
Justice Breyer explained in his Gross dissent:
---------------------------------------------------------------------------
    \1\ See Christopher B. Mueller & Laird C. Kirkpatrick, EVIDENCE 105 
(3d ed. 2003) (describing the appropriateness of shifting the burden of 
proof to the defendant on a contested issue when the defendant has 
greater access to evidence probative of that issue).

        It is one thing to require a typical tort plaintiff to show 
        ``but-for'' causation. In that context, reasonably objective 
        scientific or commonsense theories of physical causation make 
        the concept of ``but-for'' causation comparatively easy to 
        understand and relatively easy to apply. But it is an entirely 
        different matter to determine a ``but-for'' relation when we 
        consider, not physical forces, but the mind-related 
        characterizations that constitute motive. Sometimes we speak of 
        determining or discovering motives, but more often we ascribe 
        motives, after an event, to an individual in light of the 
        individual's thoughts and other circumstances present at the 
        time of decision. In a case where we characterize an employer's 
        actions as having been taken out of multiple motives, say both 
        because the employee was old and because he wore loud clothing, 
        to apply ``but-for'' causation is to engage in a hypothetical 
        inquiry about what would have happened if the employer's 
        thoughts and other circumstances had been different. The answer 
        to this hypothetical inquiry will often be far from obvious, 
        and, since the employee likely knows less than does the 
        employer about what the employer was thinking at the time, the 
        employer will often be in a stronger position than the employee 
        to provide the answer.\2\
---------------------------------------------------------------------------
    \2\ Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2359 
(2009) (Breyer, J., dissenting) (emphasis in original).

    Question 2. The Protecting Older Workers Against Discrimination Act 
makes clear that the motivating factor framework applies to all anti-
discrimination and anti-retaliation laws--treating all workers, and all 
forms of discrimination, equally.
    In your testimony, you emphasized that the Supreme Court's decision 
in Gross has been applied to statutes beyond the Age Discrimination in 
Employment Act (ADEA).
    Based on your review of the Court's decision in Gross, your 
knowledge of other civil rights statutes, and application of Price 
Waterhouse and Gross by lower courts, why do you think the part of the 
bill applying it beyond the ADEA is important?
    Answer 2. Lower courts now increasingly understand Gross to mean 
that the motivating factor framework is never available to plaintiffs 
under Federal antidiscrimination and antiretaliation statutes unless 
and until Congress expressly provides otherwise.\3\ The Seventh 
Circuit, for example, describes Gross as holding that ``unless a 
statute (such as the Civil Rights Act of 1991) provides otherwise, 
demonstrating ``but-for'' causation is part of the plaintiff's burden 
in all suits under Federal law.'' \4\
---------------------------------------------------------------------------
    \3\ Indeed, the Gross Court signaled its unwillingness to interpret 
other statutes in a manner consistent with the Price Waterhouse Court's 
interpretation of identical causation language, thus destabilizing the 
longstanding expectation that Congress incorporated the same language 
in different antidiscrimination laws because it intended consistent 
interpretation of those laws. See Gross, 129 S. Ct. at 2349 (``When 
conducting statutory interpretation, we `must be careful not to apply 
rules applicable under one statute to a different statute without 
careful and critical examination.' '') (citation omitted).
    \4\ Fairley v. Andrews, 578 F. 3d 518, 525-26 (7th Cir. 2009); see 
also Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 963 (7th Cir. 
2010) (emphasizing ``the import of explicit statutory language 
rendering an employer liable for employment decisions that were 
motivated in part by a forbidden consideration but which the employer 
still would have made in the absence of that proscribed motive. In the 
absence of such language, the limited remedies that title VII otherwise 
makes available to plaintiffs in such cases . . . are foreclosed.''); 
Serafinn v. Local 722, Int'l Brotherhood of Teamsters, 597 F.3d 908, 
915 (7th Cir. 2010) (holding that, after Gross, ``[m]ixed-motive 
theories of liability are always improper in suits brought under 
statutes without language comparable to the Civil Rights Act's 
authorization of claims that an improper consideration was `a 
motivating factor' for the contested action.'').
---------------------------------------------------------------------------
    For this reason, lower courts now apply Gross to a growing number 
of Federal antidiscrimination and antiretaliation statutes in addition 
to the ADEA, requiring the plaintiff not only to prove that 
discrimination or retaliation motivated the decision, but also to bear 
the additional burden of proving that such discrimination was the 
``but-for'' cause of the decision. Examples include cases alleging job 
discrimination because of disability in violation of the Americans with 
Disabilities Act,\5\ job discrimination because of protected speech 
under 42 U.S.C.  1983,\6\ and job discrimination based on an 
employee's jury service in violation of the Jury Systems Improvement 
Act.\7\ Other courts have speculated about the application of the Gross 
standard to still other Federal laws providing important employment 
protections, such as 42 U.S.C.  1981 and the Family and Medical Leave 
Act.\8\
---------------------------------------------------------------------------
    \5\ Serwatka v. Rockwell Automation, Inc. 591 F.3d 957, 961 (7th 
Cir. 2010).
    \6\ e.g., Fairley v. Andrews, 578 F. 3d 518, 525-26 (7th Cir. 
2009).
    \7\ Williams v. District of Columbia, 646 F. Supp. 2d. 103, 109 
(D.D.C. 2009).
    \8\ See, e.g., Brown v. J. Kaz, Inc., 581 F.3d 175, 187 (3rd Cir. 
2009) (Jordan, J., concurring) (``[I]t seems quite possible that, given 
the broad language chosen by the Supreme Court in Gross, a critical re-
examination of our [section 1981] precedent may be in order.''); Crouch 
v. J.C. Penney Corp., Inc., 337 Fed. Appx. 399, 402 n.1 (5th Cir. 2009) 
(in the context of an FMLA case, noting that ``[t]he Supreme Court's 
recent opinion in Gross raises the question of whether the mixed-motive 
framework is available to plaintiffs alleging discrimination outside of 
the Title VII framework'') (citation omitted); Burgess v. JHM Hotels, 
2010 WL 1493132 (D.S.C. 2010) (same).
---------------------------------------------------------------------------
    In these contexts, too, the Gross rule has deprived plaintiffs of 
victory. Consider the experience of Dr. LilliAnn Williams-Jackson, a 
public school guidance counselor who alleged a violation of the Jury 
Systems Improvement Act and who successfully proved that her jury 
service was a motivating factor in her employer's decision to cut her 
position. The trial court nonetheless rejected Dr. Williams-Jackson's 
claim in light of the more stringent causation standard under Gross:

        This is a close case of mixed motives leading to the decision 
        to ``excess'' Dr. Jackson from [the school] and one in which 
        Dr. Jackson's credibility is distinctly superior to her former 
        principal. Nonetheless, the Court concludes that Dr. Jackson 
        has not carried her burden to prove that her jury service ``was 
        the `but-for' cause of the challenged employment action.''

         . . .

        [U]nder Gross, Dr. Jackson must prove by a preponderance of the 
        evidence that she was ``excessed'' ``by reason of'' her jury 
        service--that is, that jury service was the ``but-for'' cause 
        of the decision to excess her. The Court has no doubt that Dr. 
        Jackson's jury service was a motivating factor behind [the 
        principal's] acceptance of the loss of a guidance counselor, 
        who otherwise is of particular assistance to a principal in 
        dealing with behavior and other student problems. What is 
        lacking is any evidence that her jury service was ``the `but-
        for' cause'' of the decision . . . .'' \9\
---------------------------------------------------------------------------
    \9\ Williams, 646 F. Supp. 2d. at 106, 109 (quoting Gross) 
(emphasis in original).

    Under the Gross standard, Dr Williams-Jackson receives nothing, and 
her employer remains unsanctioned even though it was proven to have 
punished her for her jury service.\10\
---------------------------------------------------------------------------
    \10\ In contrast, under S. 1756, Dr. Williams-Jackson would have 
been entitled to injunctive and declaratory relief and partial 
attorney's fees and costs, plus the possibility of additional relief 
(such as back pay and reinstatement) if the employer could not bear its 
burden of proving that it would have demoted her regardless of her jury 
service.
---------------------------------------------------------------------------
    The Seventh Circuit similarly applied the Gross rule in an 
Americans with Disabilities Act case to strip a plaintiff of relief 
that she had been awarded by the trial court.\11\ There the jury 
concluded that the plaintiff had proven that defendant fired her based 
on its perception that she had a disability, and also found that the 
defendant still would have fired her absent her perceived disability. 
Applying title VII's motivating factor framework to the ADA,\12\ the 
district court then awarded the plaintiff declaratory and injunctive 
relief along with some of her attorney's fees and costs (for a total of 
approximately $30,000). The employer appealed this award of partial 
costs, fees, declaratory, and injunctive relief, arguing that the Gross 
causation rule should apply instead. The Seventh Circuit agreed:
---------------------------------------------------------------------------
    \11\ Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 
2010).
    \12\ The ADA's enforcement provisions specifically incorporate the 
powers, remedies and procedures of title VII, including the title VII 
provision authorizing certain remedies where the plaintiff has proven 
mixed motive discrimination. 42 U.S.C.  12117 (``The powers, remedies, 
and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-
8, and 2000e-9 shall be the powers, remedies, and procedures this 
subchapter provides to . . . any person alleging discrimination on the 
basis of disability in violation of any provision of this chapter . . . 
concerning employment.'').

        [The plaintiff] did not show that her perceived disability was 
        a but-for cause of her discharge. Although the jury agreed with 
        her that [the employer's] perception of her limitations 
        contributed to the discharge, it also found that [the employer] 
        would have terminated [the plaintiff] notwithstanding the 
        improper consideration of her (perceived) disability. Relief is 
        therefore not available to her under the ADA, and [the 
        employer] was entitled to judgment in its favor . . . . [I]n 
        view of the Court's intervening decision in Gross, it is clear 
        that the district court's decision to award [the plaintiff] 
        declaratory and injunctive relief along with a portion of her 
        attorney's fees and costs cannot be sustained.\13\
---------------------------------------------------------------------------
    \13\ Serwatka, 591 F.3d at 963-64.

    Once again, the Gross rule left the plaintiff with nothing, and her 
employer remains unsanctioned even though it was proven to have 
---------------------------------------------------------------------------
discriminated against her based on disability.

    S. 1756 responds by clarifying Congress' commitment to a uniform 
causation standard, making title VII's longstanding motivating factor 
framework available under all Federal laws that protect workers from 
discrimination or retaliation based on a protected characteristic 
(e.g., age) or protected activity (e.g., engaging in Federal jury 
service or reporting or challenging discriminatory behavior). For the 
reasons discussed above, the motivating factor standard not only most 
appropriately shifts the burden of proof to the party with the best 
access to the key information, but also best effectuates Congress' 
commitment to deterring workplace discrimination. Ensuring uniform 
application of this standard across relevant Federal law, moreover, 
offers a wide range of practical advantages--for example, by ensuring 
that courts, litigants, and jurors will proceed under the same 
``motivating factor'' instruction for all claims in cases involving 
claims under multiple statutes (such as an older African-American 
plaintiff who brings claims under both title VII and the ADEA).

    Question 3. Mr. Dreiband, in his testimony before the committee, 
wrote that ``since the Gross decision [was] issued, the Federal courts 
have repeatedly ruled in favor of age discrimination plaintiffs and 
against discrimination.'' He further stated that courts ``have issued 
decisions in favor of discrimination plaintiffs and relied upon the 
Gross case to do so.''
    In support of this notion, he points to several cases, including: 
Hrisinko v. New York City Department of Education, 2010 WL 826879 (2d 
Cir. Mar. 11, 2010); Mora v. Jackson Memorial Foundation, Inc., 597 
F.3d 1201, 1202 (11th Cir. 2010); Velez v. Thermo King de Puerto Rico, 
Inc., 585 F.2d 441 (1st Cir. 2009); Baker v. Silver Oak Senior Living 
Management Company, 581 F.3d 684 (8th Cir. 2009).
    Do you agree with Mr. Dreiband that Gross has been beneficial to 
age discrimination plaintiffs?
    Answer 3. No. Under Price Waterhouse and before Gross, the ADEA 
burden of persuasion shifted to the defendant once the plaintiff proved 
discrimination. As the First Circuit explained, ``most plaintiffs 
perceive the Price Waterhouse framework and its concomitant burden-
shifting as conferring a profound advantage. In the average case, the 
employee thirsts for access to it, while the employer regards it as 
anathema.'' \14\ In stark contrast, after Gross and its rejection of 
the Price Waterhouse framework, the burden never shifts to the 
defendant--a dynamic that makes it much easier for defendants to 
prevail.
---------------------------------------------------------------------------
    \14\ Febres v. Challenger Caribbean Corp., 214 F.3d 57, 60 (1st 
Cir. 2000) (internal citations omitted).
---------------------------------------------------------------------------
    Indeed, as Mr. Gross's own case makes painfully clear, the Gross 
rule can strip discrimination plaintiffs of hard-fought victories. Mr. 
Gross won under the Price Waterhouse motivating factor standard, and he 
would have won under S. 1756's motivating factor standard. Only under 
the Gross Court's new ``but-for'' causation rule did he lose his 
verdict.
    More specifically, recall that Mr. Gross's lawyers requested and 
received the Price Waterhouse motivating factor instruction. A jury 
then applied those instructions to conclude that Mr. Gross had proved 
that age was a motivating factor in the defendant's decision to demote 
him and that the defendant had not proved that it would have demoted 
him regardless of his age. It thus found that Mr. Gross had established 
that his employer had violated the ADEA, and awarded him approximately 
$47,000 in lost compensation.
    On appeal, the defendant employer challenged the trial judge's 
decision to use the Price Waterhouse instruction, arguing that such a 
motivating factor instruction is appropriate only when the plaintiff 
has direct evidence of discrimination and that Mr. Gross did not have 
such evidence. The Eighth Circuit agreed. Note that the Eighth Circuit 
ruled against Mr. Gross not because he could not satisfy the motivating 
factor standard--in fact he did--but instead because it found that the 
Price Waterhouse motivating-factor instruction is only available in 
cases when the plaintiff has direct evidence of age discrimination 
(e.g., where the employer acknowledges its discrimination, which of 
course is very rare). Other courts had ruled, in contrast, that the 
Price Waterhouse instruction is available in ADEA cases when the 
plaintiff proves that age was a motivating factor by any available 
evidence, circumstantial or direct.
    The Supreme Court granted certiorari in Gross to resolve that 
controversy. Its actual decision, however, failed to address this 
question. Instead it vacated Mr. Gross's jury verdict, and articulated 
a brand-new causation standard that significantly undercut protections 
for older workers without the benefit of full briefing by the parties 
or development by the lower courts. Unless this legislation is enacted, 
upon re-trial Mr. Gross will bear the burden of proving not only that 
his age was a motivating factor, but additionally that it was the 
``but-for'' factor for his demotion. As explained above, the plaintiff 
is not as well-positioned as the employer to prove what the employer 
would have done in a hypothetical workplace without discrimination--so 
Mr. Gross will be at a disadvantage if his case is re-tried under the 
Court's new rule rather than under S. 1756.
    Lower courts, moreover, have repeatedly observed that Gross adds to 
the challenges faced by workers seeking to enforce their right to be 
free from discrimination under the ADEA.\15\ The Second Circuit, for 
example, explained Gross as imposing ``a more stringent causation 
standard'' on plaintiffs than that under Price Waterhouse; \16\ another 
Federal court described Gross ``as elevating the quantum of causation 
required under the ADEA.'' \17\
---------------------------------------------------------------------------
    \15\ See, e.g., Marquez v. Drugs Unlimited, Inc., 2010 WL 1133803 
(D. Puerto Rico 2010) (``The Court declared in Gross that this `but 
for' standard is a much higher standard than that which has been 
applied in Title VII cases.''); Miller v. Nat'l Ass'n of Securities 
Dealers, Inc., 2010 WL 1371029 (E.D.N.Y. 2010) (``According to Gross, 
the burden of persuasion required by the ADEA is more onerous'' than 
that under Title VII); Mojica v. El Conquistador Resort and Golden Door 
Spa, 2010 WL 1992575 at *1 (D. Puerto Rico 2010) (observing that Gross 
``in some aspects raised the standard for proving an ADEA claim''); see 
also Baker v. Silver Oak Senior Living Management Co., 581 F.3d 684, 
689-90 (8th Cir. 2009) (describing the motivating factor causation 
standard under Missouri State antidiscrimination law as ``less 
demanding'' for age discrimination plaintiffs than that under the ADEA 
after Gross); Dudley v. Lake Ozark Fire Protection Dist., 2010 WL 
1992188 at *5 (W.D. Mo. 2010) (same).
    \16\ Bolmer v. Olviera, 594 F.3d 134, 148-49 (2nd Cir. 2010).
    \17\ Fuller v. Seagate Technology, 651 F. Supp. 2d 1233, 1248 (D. 
Colo. 2009).
---------------------------------------------------------------------------
    In contrast, the cases listed in Mr. Dreiband's testimony do not 
support the assertion that Gross is beneficial to plaintiffs. Indeed, 
several of the cases that Mr. Dreiband's written testimony cites as 
examples of courts that ``relied upon Gross to rule in favor of 
plaintiffs'' (see pages 10-11 and notes 43 and 50) actually confirm the 
additional barriers that Gross places in the path of workers seeking to 
vindicate their antidiscrimination rights. These include Baker v. 
Silver Oak Senior Living Management, Co., in which the Eighth Circuit 
describes motivating factor causation standards as ``less demanding'' 
for age discrimination plaintiffs than the Gross ``but-for'' standard; 
\18\ Serafinn v. Local 722, International Brotherhood of Teamsters, in 
which the Seventh Circuit explains how the ``but-for'' standard 
benefits defendants in close cases; \19\ and Bolmer v. Oliveira, in 
which the Second Circuit characterizes Gross as imposing a ``more 
stringent causation standard'' than that under Price Waterhouse.\20\
---------------------------------------------------------------------------
    \18\ 581 F.3d 684, 689 (8th Cir. 2009) (concluding that the 
plaintiff's evidence of age discrimination was sufficiently strong to 
survive summary judgment under either causation standard).
    \19\ 597 F.3d 908, 914 (7th Cir. 2010) (observing that the 
defendant's proposed mixed-motive and motivating factor instruction was 
``ill-advised'' because it is ``disadvantageous to the local 
[defendant] if the evidence was in equipoise. Both the but-for 
instruction and the [defendant's] proposed composite instruction score 
complete victory for the [defendant] if a jury finds that the 
[defendant] would have prosecuted [the plaintiff] regardless of his 
outspoken politics. But whereas the but-for cause instruction maintains 
the burden of persuasion on the plaintiff, giving a tie to the 
[defendant], the [defendant's] proposed composite instruction shifts 
the burden of persuasion to itself, giving a tie to [the plaintiff].'') 
(citations omitted).
    \20\ 594 F.3d 134, 148-49 (2nd Cir. 2010) (declining to decide 
whether Gross applied to a claim under Title II of the ADA because it 
concluded that the plaintiff's evidence of disability discrimination 
was sufficiently strong to survive either causation standard).
---------------------------------------------------------------------------
    Mr. Dreiband's written statement also lists as examples of courts 
that ``relied upon Gross to rule in favor of plaintiffs'' several 
decisions that in fact ruled for the plaintiff only after 
distinguishing, and thus refusing to rely upon, Gross. These include 
Thompson v. Weyerhauser Co., in which the 10th Circuit refused to rely 
on Gross in an ADEA pattern-or-practice (as opposed to individual 
disparate treatment) case; \21\ Brown v. J. Kaz, Inc., in which the 
Third Circuit applied the motivating factor framework to a section 1981 
case after noting that that parties agreed that Gross did not apply; 
\22\ and Hunter v. Valley View Local Schools, in which the Sixth 
Circuit declined to apply Gross to an FMLA case. \23\ Another relied on 
Gross only for the proposition that courts should not reflexively apply 
rules applicable under one statute to another without examination, 
rather than for any proposition related to causation standards (much 
less for the proposition that the Gross causation standard benefits 
plaintiffs).\24\
---------------------------------------------------------------------------
    \21\ 582 F.3d 1125, 1131 (10th Cir. 2009) (``We are not persuaded 
by Weyerhauser's argument. Gross does not involve the pattern-or-
practice procedure at issue here.'').
    \22\ 581 F.3d 175, 182-83 & n.5 (3rd Cir. 2009) (concluding that 
the plaintiff survived summary judgment on her claim under 42 U.S.C.  
1981 based on the Price Waterhouse motivating factor framework after 
noting that ``the parties agreed that Gross . . . has no impact on this 
case'').
    \23\ 579 F.3d 688, 692 (6th Cir. 2009) (distinguishing, rather than 
relying on, Gross as inapplicable to FMLA retaliation claims and 
concluding that the plaintiff survived summary judgment under the 
motivating factor standard: ``[W]e continue to find Price Waterhouse's 
burden-shifting framework applicable to FMLA retaliation claims.'').
    \24\ Fleming v. Yuma Regional Medical Ctr., 587 F.3d 938, 943-44 
(9th Cir. 2009) (concluding that the Rehabilitation Act should not be 
interpreted to track the ADA's exclusion of independent contractors 
from its job discrimination provisions).
---------------------------------------------------------------------------
    Moreover, all but one of the remaining decisions cited in Mr. 
Dreiband's statement as ``relying'' on Gross to find for plaintiffs 
instead simply cite Gross before instead relying on the longstanding 
McDonnell Douglas analysis for pretext cases.\25\ In other words, these 
courts relied on the standards in existence before Gross, and thus 
cannot be characterized as cases in which plaintiffs benefited from 
Gross. Indeed, only one of the cases cited in Mr. Dreiband's written 
statement in fact purports actually to ``rely'' on the Gross causation 
standard to find for the plaintiff.\26\ But even in that case, the 
plaintiff's evidence of age discrimination--which included testimony by 
the plaintiff and a co-worker that the chief executive told the 
plaintiff that she was too old and that he needed a younger employee--
was sufficiently strong that she should have survived summary judgment 
under any causation standard (and in fact the court characterized 
mixed-motive cases decided before Gross in which the plaintiff 
prevailed as ``instructive'' to its finding).\27\ Winning after or 
despite the Court's decision in Gross is not the same as winning 
because of it; that some plaintiffs have survived Gross does not mean 
that they have benefited from the decision.
---------------------------------------------------------------------------
    \25\ See Hrisinko v. New York City Dep't of Ed., 2010 WL 826879 at 
* 1-3 (2nd Cir. 2010) (concluding that the plaintiff had sufficient 
evidence of pretext under McDonnell Douglas to survive summary 
judgment); Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 
447-48 (1st Cir. 2009) ( same); Gorzynski v. Jetblue Airways Corp., 596 
F.3d 93, 106-07 (2nd Cir. 2010) (same); Liebowitz v. Cornell Univ., 584 
F.3d 487, 503-05 (2nd Cir. 2009) (same); EEOC v. TIN, 349 Fed. Appx. 
190 (9th Cir. 2010) (same).
    \26\ See Mora v. Jackson Memorial Hosp., 597 F.3d 1201, 1203-04 
(11th Cir. 2010).
    \27\ Id. at 1205.

    Question 4a. Mr. Dreiband, in his testimony before the committee, 
wrote that ``[i]f enacted in its current form, the Protecting Older 
Workers Against Discrimination Act will do nothing to protect workers 
from age discrimination, other forms of discrimination, retaliation, or 
any other unlawful conduct.'' He further claims that ``[i]n the end, 
only the lawyers win; the Protecting Older Workers Against 
Discrimination Act would allow courts to award certain attorney's fees 
and costs and would do nothing to enhance the ADEA's protections of 
discrimination.'' In fact, Mr. Dreiband asserts, ``Mr. Gross and many 
others will gain nothing if this bill passes in its current form.'' He 
testified that ``though lawyers may receive payment for fees directly 
attributable to a motivating-factor claim . . . the alleged victim will 
get nothing--no job, no money, no back pay, no front pay, no damages, 
no promotion, nothing.''
    Rather than helping age discrimination plaintiffs, Mr. Dreiband 
testified that the Protecting Older Workers Against Discrimination Act 
will, in fact, ``deprive discrimination victims of any meaningful 
remedy'' in mixed motive cases.
    Do you agree with Mr. Dreiband that the Protecting Older Workers 
Against Discrimination Act will do nothing to protect older workers 
like Jack Gross? Why or why not?
    Answer 4a. No. Under S. 1756, Mr. Gross would have retained the 
$47,000 in lost compensation that the jury awarded him because he 
proved that age was a motivating factor in his demotion and his 
employer failed to prove that it would have demoted him in the absence 
of age discrimination. Also under Gross, as discussed above, Dr. 
Williams-Jackson and Ms. Serwatka received nothing even though they 
proved that discrimination motivated their employers' adverse actions 
against them. Under S. 1756, in stark contrast, Dr. Williams-Jackson 
would have been entitled at a minimum to injunctive and declaratory 
relief and partial attorney's fees and costs, plus the possibility of 
additional relief (such as back pay and reinstatement) if her employer 
could not bear its burden of proving that it would have demoted her 
regardless of her jury service. And, under S. 1756, Ms. Serwatka would 
have retained the relief awarded her by the trial court: declaratory 
and injunctive relief along with some of her attorney's fees and costs 
(for a total of approximately $30,000).
    Moreover, S. 1756 additionally protects older workers from 
discrimination by sending the strong deterrent message that an employer 
will be liable for its discrimination once the plaintiff has proved 
that discrimination has played a motivating role in his or her 
employer's decision. More specifically, S. 1756 ensures that Federal 
courts retain the power to enjoin the defendant's proven discrimination 
through declaratory and injunctive relief, thus ensuring equal 
opportunity in the future.

    Question 4b. If the Protecting Older Workers Against Discrimination 
Act became law, what damages would be available to a plaintiff like 
Jack Gross?
    Answer 4b. If S. 1756 had been in effect at Mr. Gross's trial, the 
jury would have been instructed that the plaintiff is entitled to full 
relief under the ADEA if he can prove that age was a motivating factor 
and if the defendant cannot prove that it would still have demoted him 
absent age discrimination. Indeed, Mr. Gross's jury so found, and 
awarded him $47,000 in lost compensation.

    Question 4c. Do you agree with Mr. Dreiband that, rather than 
helping age discrimination plaintiffs, the Protecting Older Workers 
Against Discrimination Act will actually hurt victims of age 
discrimination by ``depriv[ing]'' them of ``any meaningful remedy?''
    Answer 4c. No. As discussed above, Mr. Gross would still have his 
$47,000 jury verdict if S. 1756 had been law at the time of his trial. 
Other plaintiffs will similarly be entitled to full relief under the 
act when they--like Mr. Gross--prove that age was a motivating factor 
and the defendant fails to bear its burden under S. 1756 of proving 
that it would still have taken the same action absent age 
discrimination.
    Even when both parties meet their burden under S. 1756 (i.e., when 
the plaintiff proves that age was a motivating factor and the defendant 
proves that it would have made the same decision even absent age 
discrimination), the bill ensures the continued availability of 
injunctive and declaratory relief and partial attorney's fees and 
costs--remedies that are enormously important in serving the deterrent 
functions of antidiscrimination law. Indeed, court-ordered injunctions 
requiring that the defendant cease a particular discriminatory practice 
have proven a powerful and effective tool throughout the history of the 
civil rights movement, and thus are among the remedies that Federal 
enforcement agencies most frequently seek. For this reason, the Supreme 
Court has repeatedly emphasized the value of injunctive relief in 
vindicating the important public interest in effective civil rights 
enforcement: ``If [the plaintiff] obtains an injunction, he does so not 
for himself alone but also as a `private attorney general,' vindicating 
a policy that Congress considered of the highest priority.'' \28\ 
Indeed, as the Court has further observed, ``a civil rights plaintiff 
seeks to vindicate important civil and constitutional rights that 
cannot be valued solely in monetary terms. And, Congress has determined 
that `the public as a whole has an interest in the vindication of the 
rights conferred by the statutes enumerated in  1988 over and above 
the value of a civil rights remedy to a particular plaintiff . . . .' 
'' \29\
---------------------------------------------------------------------------
    \28\ Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 (1968); 
see also Blanchard v. Bergeron, 489 U.S. 87, 95-96 1989) (``The 
intention of Congress was to encourage successful civil rights 
litigation, not to create a special incentive to prove damages and 
shortchange efforts to seek effective injunctive or declaratory relief 
. . . . Congress has elected to encourage meritorious civil rights 
claims because of the benefits of such litigation for the named 
plaintiff and for society at large, irrespective of whether the action 
seeks monetary damages.'').
    \29\ City of Riverside v. Rivera, 477 U.S. 561, 574 (1986) 
(citations omitted). Notes 57-58 of Mr. Dreiband's testimony cites 
several cases in which the court found that the plaintiff had proved 
that discrimination was a motivating factor in the employer's decision, 
but declined to award injunctive relief because the plaintiff was no 
longer employed by the defendant or because the offending defendant was 
no longer employed by the employer. But injunctive relief is especially 
important when the plaintiff is still employed by the defendant or 
might otherwise face a very real threat of continuing discrimination or 
retaliation. Note, for example, that Mr. Gross still works for the 
employer that he proved to have engaged in age discrimination. 
Moreover, as one of the decisions cited in Mr. Dreiband's testimony 
observes, ``injunctive and declaratory relief might be appropriate . . 
. where, for example, the company engaged in widespread gender 
discrimination of the type challenged or had an official policy for 
such or where the company continued to engage in such gender 
discrimination.'' Cooper v. Ambassador Personnel, Inc., 570 F. Supp. 2d 
1355, 1360 (M.D. Ala. 2008).
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    An example helps illustrate the point: An older worker proves that 
she 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 finds them to be less energetic, less creative, and 
generally less productive. Suppose too that the employer proves that it 
ultimately hired another applicant who was even more qualified for the 
position than the plaintiff. Under the Court's new rule in Gross, the 
employer will escape ADEA liability altogether and the plaintiff gets 
nothing. Under S. 1756, in contrast, she--and, perhaps more important, 
the public as a whole--receive something very important: a court order 
putting a stop to the practice and enjoining its continuation.
    Indeed, as the House Committee Report emphasized in explaining the 
motivating factor framework standard as adopted in the Civil Rights Act 
of 1991 (the same standard proposed by S. 1756):

        [I]t is important to remember the dual purpose of private 
        enforcement of title VII. On the one hand, the object is to 
        make whole the individual victims of unlawful discrimination . 
        . . But this is only part of it. The individual title VII 
        litigant acts as a ``private attorney general'' to vindicate 
        the precious rights secured by that statute. It is in the 
        interest of American society as a whole to assure that equality 
        of opportunity in the workplace is not polluted by unlawful 
        discrimination. Even the smallest victory advances that 
        interest.\30\
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    \30\ H.R. REP. NO. 102-40(I) at 46-47, 1991 U.S.C.C.A.N. at 584-85 
(quoting Jane Lang, former General Counsel of the United States 
Department of Housing and Urban Development).

    Question 5. In support of his argument, Mr. Dreiband claims that 
``Title VII cases provide sobering examples of how the mixed motive 
framework turns winning plaintiffs into losers.''
    Do you agree that victims of discrimination under title VII have 
been disadvantaged by the mixed motive framework enacted as part of the 
Civil Rights Act of 1991? Why or why not?
    Answer 5. No. Plaintiffs can and do prevail and secure full relief 
under title VII's motivating factor instruction, when they--like Mr. 
Gross--prove that discrimination was a motivating factor and the 
defendant fails to bear its burden of proving that it would still have 
taken the same action absent age discrimination.
    The Supreme Court's decision in Desert Palace, Inc. v. Costa \31\ 
offers a particularly helpful illustration of plaintiffs' success under 
the motivating factor framework enacted in the Civil Rights Act of 
1991. At trial, the defendant maintained instead that the plaintiff, 
Ms. Costa, had been fired for disciplinary infractions.\32\ The 
plaintiff offered evidence that she was instead fired because of her 
sex, including evidence that she was disciplined more harshly than her 
male counterparts for the same conduct, was treated less favorably than 
men in overtime assignments, and was the target of repeated gender-
based slurs.\33\ Over the defendant's objections, the trial court gave 
the jury the motivating factor instruction under the Civil Rights Act 
of 1991.\34\ The jury found that Ms. Costa had proved that sex was a 
motivating factor in her firing, and that her employer had not proved 
that it would have fired her absent sex discrimination. It thus awarded 
her back pay, compensatory, and punitive damages,\35\ and the Supreme 
Court ultimately upheld the verdict.\36\
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    \31\ 539 U.S. 90 (2003).
    \32\ Id.
    \33\ Id. at 96.
    \34\ Id. at 96-97.
    \35\ Id. at 97.
    \36\ Id. at 101-02.

    Question 6. Under the standard announced in Gross v. FBL Financial, 
a plaintiff must establish that a plaintiff's age was the ``but for'' 
cause of the adverse employment action complained of. At the hearing, 
there was a great deal of discussion regarding what type of proof was 
necessary to meet this standard, including ``smoking gun'' evidence. At 
the hearing, you testified, that ``what's especially pernicious about 
the Gross decision is that even if you have a smoking gun as a 
plaintiff, you may still lose.''
    Why do you believe even so called ``smoking gun'' evidence would be 
insufficient under the standard announced in Gross?
    Answer 6. Recall our earlier example of an older worker who applies 
for a job for which she is qualified, only to be rejected after being 
told by her interviewer that he will not hire workers of her age 
because he finds them to be less energetic, less creative, and 
generally less productive. This is direct evidence of age 
discrimination. But under the Gross Court's new rule, the plaintiff 
will lose and the employer will escape ADEA liability altogether unless 
the plaintiff can also prove that the employer would not have taken the 
adverse action if it had been free of age discrimination. In other 
words, Gross entirely insulates from liability even an employer who 
confesses discrimination so long as that employer had another reason 
for its decision. By permitting employers to escape liability 
altogether even for a workplace admittedly infected by discrimination, 
with no incentive to refrain from similar discrimination in the future, 
the Gross rule thus undermines Congress' efforts to stop and deter 
workplace discrimination.

    Question 7. Do you believe the Protecting Older Workers Against 
Discrimination Act will prevent employers from making legitimate 
business and cost cutting decisions?
    Answer 7. No. Nothing in S. 1756 interferes with an employer's 
ability to make decisions based on nondiscriminatory factors of any 
type. S. 1756 prohibits only employment decisions that are motivated by 
discrimination (and requires the plaintiff to bear the burden of 
proving such motivation). Return once again to our example discussed 
above: even after the plaintiff proves that age was a motivating factor 
in the decision not to hire her, if the employer can nonetheless show 
that it would not have hired her in any event because it hired a more 
qualified candidate, S. 1756 would not require the employer to hire or 
provide back pay to the plaintiff. S. 1756 thus strikes an appropriate 
balance between employers' and employees' rights.\37\
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    \37\ Note too that the motivating factor framework adopted by 
Congress with respect to Title VII in the Civil Rights Act of 1991--and 
proposed in S. 1756--was also urged by the Reagan Administration's 
Department of Justice in its briefing of the Price Waterhouse case. See 
Brief for the United States as Amicus Curiae at 23--24, Price 
Waterhouse v. Hopkins, 490 U.S. 228 (1989) (No. 87-1167) (citations 
omitted) (``[I]t is proper to place the burden on the defendant to 
prove that a given employment decision would have been the same in a 
discrimination-free environment. If the defendant makes such a showing, 
the plaintiff is made whole by an award of attorney's fees and an in 
junction against future discrimination. In effect, the defendant is 
ordered to cease discriminatory activity, which enhances the 
plaintiff's employment opportunities in the future. But the defendant 
need not hire, reinstate, promote or provide back pay to the plaintiff 
. . .'').
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         Response to Questions of Senator Enzi by Helen Norton
    Question 1. Please provide the committee with a list of those 
Federal employment statutes that you believe are affected by S. 1756, 
and another list of those which you believe are not.
    Answer 1. The bill's findings and purposes section indicates its 
intent to cover all Federal antidiscrimination and antiretaliation 
laws--i.e., those that prohibit discrimination because of an 
individual's statutorily protected class status (such as age) and those 
that prohibit discrimination because an individual has engaged in 
statutorily protected activity (such as reporting potentially unlawful 
behavior, attempting to assert pension rights, engaging in Federal jury 
service, taking family or medical leave, etc.). This appropriately 
responds to lower courts' interpretation of Gross to mean that the 
motivating factor framework is never available to plaintiffs under 
Federal antidiscrimination and antiretaliation statutes unless and 
until Congress expressly provides otherwise. The Seventh Circuit, for 
example, characterizes Gross as holding that ``unless a statute (such 
as the Civil Rights Act of 1991) provides otherwise, demonstrating 
``but-for'' causation is part of the plaintiff's burden in all suits 
under Federal law.'' Fairley v. Andrews, 578 F. 3d 518, 525-26 (7th 
Cir. 2009).

    Question 2. Have you acted as an employer or manager in a private 
sector, non-government funded workplace? Please describe the extent of 
your personal experience in either developing or implementing personnel 
policies or decisions with regard to the hiring, firing, disciplining, 
promoting, demoting, laying off or evaluating of employees, the 
granting of time-off, the assignment of duties to employees, and any 
other matters relating to the direction and supervision of any private 
sector workforce.
    Answer 2. I served as Director of Legal and Public Policy for the 
National Partnership for Women and Families, where I engaged in the 
day-to-day direction, evaluation, and supervision of attorneys, program 
staff, and support staff. Together with the organization's President, 
Executive Vice-President, and General Counsel, I also participated in 
hiring decisions, and the development and implementation of various 
personnel policies. Moreover, as President of the Board of Directors of 
the YWCA of the National Capital Area, I led the board responsible for 
hiring and evaluating the organization's executive director.

    Question 3. Can employment statistics alone constitute sufficient 
circumstantial evidence to prove an improper motive? If you answer that 
they can, under what circumstances?
    Answer 3. The Supreme Court has repeatedly made clear that 
statistical evidence is a type of circumstantial evidence, and that the 
strength of any and all types of circumstantial evidence--including, 
but not limited to, statistical evidence--depends on the circumstances. 
Whether evidence of any type is sufficient to prove improper motive is 
subject to rebuttal by the defendant and ultimately remains for the 
fact-finder to assess.
    The Supreme Court addressed this question in detail in Teamsters v. 
United States, 431 U.S. 324 (1977). In response to the defendant 
employer's contention that ``statistics can never in and of themselves 
prove the existence of a pattern or practice of discrimination,'' the 
Court stated:

        [O]ur cases make it unmistakably clear that ``(s)tatistical 
        analyses have served and will continue to serve an important 
        role'' in cases in which the existence of discrimination is a 
        disputed issue. We have repeatedly approved the use of 
        statistical proof, where it reached proportions comparable to 
        those in this case, to establish a prima facie case of racial 
        discrimination in jury selection cases. Statistics are equally 
        competent in proving employment discrimination. We caution only 
        that statistics are not irrefutable; they come in infinite 
        variety and, like any other kind of evidence, they may be 
        rebutted. In short, their usefulness depends on all of the 
        surrounding facts and circumstances.

    Id. at 339-40 (citations omitted). As the Court explained more 
specifically:

        Petitioners argue that statistics, at least those comparing the 
        racial composition of an employer's work force to the 
        composition of the population at large, should never be given 
        decisive weight in a Title VII case because to do so would 
        conflict with s 703(j) of the Act. That section provides: 
        ``Nothing contained in this subchapter shall be interpreted to 
        require any employer . . . to grant preferential treatment to 
        any individual or to any group because of the race . . . or 
        national origin of such individual or group on account of an 
        imbalance which may exist with respect to the total number or 
        percentage of persons of any race . . . or national origin 
        employed by any employer . . . in comparison with the total 
        number or percentage of persons of such race . . . or national 
        origin in any community, State, section, or other area, or in 
        the available work force in any community, State, section, or 
        other area.'' The argument fails in this case because the 
        statistical evidence was not offered or used to support an 
        erroneous theory that Title VII requires an employer's work 
        force to be racially balanced. Statistics showing racial or 
        ethnic imbalance are probative in a case such as this one only 
        because such imbalance is often a telltale sign of purposeful 
        discrimination; absent explanation, it is ordinarily to be 
        expected that nondiscriminatory hiring practices will in time 
        result in a work force more or less representative of the 
        racial and ethnic composition of the population in the 
        community from which employees are hired. Evidence of 
        longlasting and gross disparity between the composition of a 
        work force and that of the general population thus may be 
        significant even though s 703(j) makes clear that Title VII 
        imposes no requirement that a work force mirror the general 
        population. Considerations such as small sample size may, of 
        course, detract from the value of such evidence, and evidence 
        showing that the figures for the general population might not 
        accurately reflect the pool of qualified job applicants would 
        also be relevant.

    Id. at n.20 (citations omitted). The Supreme Court repeated this 
observation in Hazelwood School District v. United States, 433 U.S. 
299, 308 (1977); see also Richmond v. J.A. Croson Co., 488 U.S. 469, 
501-02 (1989) (``In the employment context, we have recognized that for 
certain entry level positions or positions requiring minimal training, 
statistical comparisons of the racial composition of an employer's work 
force to the racial composition of the relevant population may be 
probative of a pattern of discrimination.'').
       Response to Questions of Senator Enzi by Eric S. Dreiband
    Question 1a. Proponents of S. 1756 have argued that the Supreme 
Court decision in March 2009 makes it extremely difficult to bring and 
win cases under the Age Discrimination in Employment Act (ADEA).
    As a practitioner who follows these types of cases closely, what is 
your view of that claim?
    Answer 1a. I do not believe the Supreme Court's decision in Gross 
v. FBL Financial Services, Inc., makes it any more difficult for 
plaintiffs to bring and win cases under the Age Discrimination in 
Employment Act than before Gross was decided.

    Question 1b. Have plaintiff's been able to bring successful age 
discrimination claims since the decision?
    Answer 1b. Yes. Since the Gross decision issued, the Federal courts 
have repeatedly ruled in favor of age discrimination plaintiffs. See 
Hrisinko v. New York City Department of Education, No. 08-6071, 2010 WL 
826879, at *2-*3 (2d Cir. Mar. 11, 2010); Mora v. Jackson Memorial 
Foundation, Inc., 597 F.3d 1201, 1202 (11th Cir. 2010); Velez v. Thermo 
King de Puerto Rico, Inc., 585 F.3d 441, 447 n.2 (1st Cir. 2009); Baker 
v. Silver Oak Senior Living Management Company, 581 F.3d 684, 688 (8th 
Cir. 2009). Several other courts, including the Third, Sixth, Seventh, 
Ninth, and Tenth Circuits, also relied upon Gross to rule in favor of 
plaintiffs in employment cases that did not involve age. Kodish v. 
Oakbrok Terrace Fire Prot. Dist., 604 F.3d 490 (7th Cir. 2010); 
Serafinn v. Local 722, Int'l Bhd. Of Teamsters, 597 F.3d 908 (7th Cir. 
2010); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d Cir. 2010); 
Bolmer v. Oliveria, 594 F.3d 134 (2d Cir. 2010); Fleming v. Yuma Reg'l 
Med. Ctr., 587 F.3d 938 (9th Cir. 2009); Leibowitz v. Cornell Uni., 584 
F.3d 487 (2d Cir. 2009); EEOC v. TIN, Inc., 349 F. App'x 190 (9th Cir. 
Oct. 20, 2009); Brown v. J. Kaz, Inc., 581 F.3d 175 (3d Cir. 2009); 
Thompson v. Weyerhaeuser Co., 582 F.3d 1125 (10th Cir. 2009); Hunter v. 
Valley View Local Schs., 579 F.3d 688 (6th Cir. 2009).

    Question 2. Given that employment cases currently occupy such a 
large, indeed by some estimates, the largest proportion of our already 
over-burdened Federal court docket, should we be encouraging even more 
litigation, particularly where that litigation has no tangible benefit 
to a given plaintiff, but only seems to profit the plaintiff bar?
    Answer 2. Section 8, Article I of the United States Constitution 
requires, among other things, that the Congress ``provide for the 
common defense and general welfare of the United States.'' As a result, 
a law that does not provide for the common defense and general welfare 
of the United States because it only profits certain members of the bar 
may run afoul of Section 8, Article I.

    Question 3. What other statutes currently provide attorneys' fees 
to private counsel in cases where the disposition results in no award 
to the represented plaintiff?
    Answer 3. I am not aware of any statutes that provide attorneys' 
fees to private counsel under these circumstances, other than Title VII 
of the Civil Rights Act of 1964.

    [Whereupon, at 12:17 p.m., the hearing was adjourned.]

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