[Congressional Record Volume 155, Number 143 (Tuesday, October 6, 2009)]
[Senate]
[Page S10164]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HARKIN (for himself, Mr. Leahy, Mr. Durbin, Mr. Specter, 
        Mr. Kohl, Mr. Schumer, Mr. Franken, Mr. Sanders, Mr. Brown, Mr. 
        Cardin, Mr. Merkley, Mrs. Feinstein, Mr. Dodd, Mrs. Boxer, Mr. 
        Lautenberg, Mr. Kaufman, and Mr. Nelson of Florida):
  S. 1756. A bill to amend the Age Discrimination in Employment Act of 
1967 to clarify the appropriate standard of proof; to the Committee on 
Health, Education, Labor, and Pensions.
  Mr. LEAHY. Mr. President, today, I am pleased to join Senator Harkin 
and other Senators to introduce the Protecting Older Workers Against 
Discrimination Act. This legislation overturns the Supreme Court's 
recent decision in Gross v. FBL Financial Services, a divided case that 
thwarted congressional intent, overturned well-established precedent, 
and delivered a major blow to the ability of older workers to fight age 
discrimination. This bill restores the intent of Congress to fully 
empower older workers to seek redress in the courts, and to root out 
discrimination in the workplace.
  I thank Senator Harkin for introducing this bill, and I commend him 
for his commitment and dedication over the years to ensure that the 
promise of equal opportunity is real for all Americans. We worked hard 
last year to enact into law the ADA Amendments Act, which clarified and 
expanded protections for Americans with disabilities. I am proud to 
once again join as an original cosponsor of legislation that will do 
the same for older workers. I am also pleased that Congressman George 
Miller will introduce a companion bill in the House today as well.
  This Nation was founded on the promise of equal rights and equal 
opportunity for all Americans. To fulfill this promise, Congress has 
enacted a full slate of civil rights laws to eliminate discrimination 
in society, including the workplace. In 1967, Congress passed the Age 
Discrimination and Employment Act, ADEA, with the intent to extend 
protections against workplace discrimination to older workers. We 
strengthened those protections in the Civil Rights Act of 1991, which 
the Senate passed by a vote of 93 to 5.
  Last month, Senators from both sides of the aisle joined together to 
celebrate the life and accomplishments of Senator Ted Kennedy, whose 
legacy includes authoring and shepherding these civil rights measures 
into law. As Senator Kennedy said, ``It has long been clear that 
effective enforcement of civil rights and fair labor practices is 
possible only if individuals themselves are able to seek relief in 
court.''
  However, contrary to the intent of Congress, the Supreme Court's 
decision in Gross will make it more difficult for older workers 
victimized by age discrimination to seek relief in court, and more 
difficult for those victims who actually get their day in court to 
vindicate their rights.
  In passing the ADEA, Congress aimed to eliminate all forms of age 
discrimination in the workplace. Consistent with this goal, courts have 
for decades interpreted the ADEA to lessen the burdens on older workers 
victimized by discrimination. Victims of age discrimination were only 
required to show that age was a ``motivating factor'' for an employer's 
adverse action, though other factors may have also motivated a 
company's firing or termination of an employee.
  In Gross, however, the Supreme Court misinterpreted the intent of 
Congress and ignored the longstanding precedent in a way that resulted 
in weakening core civil rights protections for older workers. In a 5-4 
decision, a majority of the Court concluded that under the ADEA an 
employee must now prove that age was the sole cause of an employer's 
adverse action. As a result, despite our intent to provide the same 
protections for older workers in the ADEA as we provided for racial 
minorities in Title VII of the Civil Rights Act of 1964, today older 
workers now have less protection against workplace discrimination.
  I am concerned that the Gross decision will allow employers to 
discriminate on the basis of age with impunity as long as it is paired 
with other reasons. Older workers, who make up nearly 50 percent of the 
American workforce, are particularly vulnerable to suffering 
discrimination during difficult economic times. In fact, age 
discrimination complaints filed with the Equal Employment Opportunity 
Commission jumped nearly 30 percent between 2007 and 2008. I fear that 
in the wake of Gross few, if any, of these victims will attain justice.
  The Protecting Older Workers Against Discrimination Act, which is 
modeled on the Civil Rights Act of 1991, would reverse the Gross 
decision, strengthen the safeguards of the ADEA, and restore 
fundamental fairness. The bill eliminates the high burden of proof that 
victims of age discrimination must meet after Gross. It clarifies that 
the standard for proving discrimination under the ADEA and other anti-
discrimination and anti-retaliation laws is the same as the standard 
for proving race discrimination under Title VII. The bill makes clear 
that when a litigant shows that age was a motivating factor for an 
adverse employment action, the burden is on the employer to prove it 
complied with the law. This bill restores the law to what it was for 
decades before the Court rewrote the rule.
  The bill also ensures that all workers will be treated equally in the 
workplace. Today, some lower courts have already applied Gross to 
weaken the protections in other anti-discrimination statutes. The 
legislation clarifies that the ``motivating factor'' standard applies 
to all anti-discrimination and anti-retaliation laws, and reflects a 
broader commitment to address the needs of all persons who suffer 
discrimination. It reaffirms that Americans' rights will be honored. It 
also restores the faith of the public that our civil rights laws are 
just and fair. Those are timeless American values that we can all 
embrace.
  We have drafted this measure after long and thoughtful consideration 
with the Leadership Conference on Civil Rights, a broad coalition of 
hundreds of civil rights and workers' rights organizations. The bill 
also has the support of AARP, the National Senior Citizens Law Center, 
the National Women's Law Center and the National Employment Lawyers 
Association. Their support gives me confidence that this legislation 
will improve the lives of all Americans.
  Time has shown that the ADEA has been one of our Nation's most 
effective tools in combating discrimination. Its continued 
effectiveness is important to ensure that the great progress we have 
made in widening the doors of opportunity for all Americans continues 
in the future. The Protecting Older Workers Against Discrimination Act 
will restore vital protections that have long secured the promise of 
equal rights and equal opportunity for older workers. I hope all 
Senators will support passing this critical civil rights measure this 
year.

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