[Congressional Record Volume 155, Number 145 (Thursday, October 8, 2009)]
[Senate]
[Pages S10313-S10314]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          PROTECTING OLDER WORKERS AGAINST DISCRIMINATION ACT

  Mr. HARKIN. Mr. President, on Tuesday, October 6, I introduced S. 
1756, the Protecting Older Workers Against Discrimination Act.
  To appreciate the need for this bill, consider the case of a hard-
working Iowan named Jack Gross. Mr. Gross gave the prime of his life, a 
quarter century of loyal service, to one company. How did that company 
reward him for his dedication and hard work? It brazenly demoted him 
and other employees over the age of 50, and gave their jobs to a 
younger employee.
  Expressly to prevent this kind of discrimination, over 40 years ago 
Congress passed the Age Discrimination in Employment Act, ADEA. The 
ADEA, which made it unlawful to discriminate on the basis of age, was 
modeled on and used the same language as title VII of the Civil Rights 
Act of 1964, the law that prohibits employment discrimination on the 
basis of race, sex, national origin and religion.
  When Mr. Gross sought to enforce his rights, a jury of Iowans heard 
the facts and found that his employer discriminated against him because 
of age. That jury awarded him almost $47,000 in lost compensation.
  The case was ultimately appealed to the Supreme Court. This past 
June, in Gross v. FBL Financial, Inc., five Justices rewrote the 
rules-- indeed, effectively rewrote the law--and ruled against Mr. 
Gross and other older workers. In doing so, the Court made it harder 
for those with legitimate age discrimination claims to prevail under 
the ADEA.
  For decades, the law was clear. In 1989, in Price Waterhouse v. 
Hopkins, the Court ruled that if a plaintiff seeking relief under title 
VII of the Civil Rights Act demonstrated that discrimination was a 
``motivating'' or ``substantial'' factor behind the employer's action, 
the burden shifted to the employer to show it would have taken the same 
action regardless of the plaintiff's membership in a protecting class. 
As part of the Civil Rights Act of 1991, Congress formally codified the 
``motivating factor'' standard with respect to title VII.
  Because the Age Discrimination in Employment Act uses the same 
language as title VII, was modeled off it, and had been interpreted 
consistent with the Civil Rights Act of 1964, courts correctly and 
consistently held that a victim bringing suit under the ADEA need only 
show that membership in a protected class was a ``motivating factor'' 
in an employer's action--the same standard for plaintiffs claiming 
discrimination on the basis of race, sex, religion, or national origin. 
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.
  In Gross, the Court--addressing a question on which it did not grant 
certiorari--tore up this settled decades old standard. In its place, 
the Court applied an entirely new standard that makes it prohibitively 
difficult for a victim to prove age discrimination. According to the 
Court, a victim of age discrimination bears the full burden of proving 
that age was not only a motivating factor but the decisive factor.
  This extremely high burden radically undermines older workers' 
ability to hold employers accountable. Bear in mind that unlawful 
discrimination is often difficult to detect. Obviously, those who 
discriminate do not often admit they are acting for discriminatory 
reasons. To the contrary, they go out of their way to conceal their 
true intent. Discrimination cases rarely involve a smoking gun.
  The reality, however, is that while employers rarely post signs 
saying ``older workers need not apply,'' ageism in the workforce does 
indeed exist, as Mr. Gross and his colleagues learned the hard way. 
Indeed, according to an AARP study, 60 percent of older workers have 
reported that they or someone they know has faced age discrimination in 
the workplace.
  Countless thousands of American workers who are not yet ready to 
voluntarily retire find themselves jobless or passed over for 
promotions because of age discrimination. Older workers often face 
ugly, baseless stereotypes: That they are not as productive as younger 
workers; that they cannot learn new skills; that they somehow have a 
lesser need for income to provide for their families.
  These stereotypes--and the discrimination they feed--are wrong and 
immoral. This is also harmful to our economy, inasmuch as it deprives 
us of the skills and talents of millions of older workers.
  The timing of the Court's decision is particularly troubling. As our 
economy continues to struggle, older workers are being hit particularly 
hard. According to the Department of Labor, there are 2 million 
unemployed workers over the age of 55. This is an all-time high since 
the Bureau of Labor Statistics began matching age and unemployment in 
1948. According to the Equal Employment Opportunity Commission, in 2008 
nearly 25,000 age discrimination claims were filed, a 30-percent 
increase over 2007. Given the stereotypes that older workers face, it 
is no surprise that, on average they remain unemployed twice as long as 
all unemployed workers.
  The Protecting Older Workers Against Discrimination Act reverses

[[Page S10314]]

the Court's decision and restores the law to what it was for decades. 
The bill makes clear that when an employee shows that discrimination 
was a ``motivating factor'' behind a decision, the burden is properly 
on the employer to show it complied with the law.
  The act is modeled on part of the Civil Rights Act of 1991, which 
passed the Senate 93-5. As under title VII of the Civil Rights Act, 
once a plaintiff establishes that age was a motivating factor, the 
burden shifts to the employer. If the employer establishes that the 
same decision would have been made regardless of discrimination, the 
employer remains liable, but remedies are limited.
  Only the employer is in a position to know his or her own mind and 
offer an explanation as to why a decision that involves discrimination 
was actually motivated by legitimate reasons. By putting the entire 
burden on the worker to demonstrate the absence or insignificance of 
other factors, the Court in effect gave employers license to 
discriminate, so long as they do not actually say they are singling out 
an employee solely because of age.
  Finally, the Protecting Older Workers Against Discrimination Act 
makes clear that the ``motivating factor'' framework applies to all 
antidiscrimination and antiretaliation laws.
  In Gross, Justice Thomas defended the Court's radical departure from 
well-established law by noting that the Court ``cannot ignore Congress' 
decision to amend title VII's relevant provisions but not make similar 
changes to the ADEA.'' In other words, the Court found that because 
Congress, in the Civil Rights Act, codified the ``motivating factor'' 
framework for title VII of the Civil Rights Act, but not for the ADEA, 
Congress somehow must have intended Price Waterhouse not to apply to 
any statute but title VII. This is a serious misreading of the intent 
of Congress.
  Unfortunately, this reasoning in Gross has already had reverberations 
in other civil rights cases since many antidiscrimination and 
antiretaliation statutes utilize similar language as title VII and the 
ADEA. As the Seventh Circuit recently held, ``[Gross] holds that, 
unless a statute (such as the Civil Rights Act of 1991) provides 
otherwise, demonstrating but-for causation is part of the plaintiff's 
burden in all suits under federal law.''
  The Protecting Older Workers Against Discrimination Act, therefore 
makes clear that Congress is in no way questioning the ``motivating 
factor'' framework in other antidiscrimination and antiretaliation 
statutes.
  The aim of this bill is very simple. It reiterates what Congress said 
40 years ago when it passed the ADEA: When an employer makes an 
employment decision it is illegal for age to be a factor. A person 
should not be judged arbitrarily because he or she was born on or 
before a certain year, despite the fact that he or she still has the 
ability to contribute as much, or more, as the next person. This bill 
will help ensure that all our citizens have an opportunity commensurate 
with their abilities, for productive employment.

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