[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
Available via the World Wide Web: http://www.gpo.gov/fdsys/
----------
U.S. GOVERNMENT PRINTING OFFICE
56-416 PDF WASHINGTON : 2011
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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
. . .'').
---------------------------------------------------------------------------
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.]