[Congressional Record Volume 158, Number 41 (Tuesday, March 13, 2012)]
[Senate]
[Pages S1615-S1618]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. HARKIN (for himself, Mr. Grassley, and Mr. Leahy):
S. 2189. A bill to amend the Age Discrimination in Employment Act of
1967 and other laws to clarify appropriate standards for Federal
antidiscrimination and antiretaliation claims, and for other purposes;
to the Committee on Health, Education, Labor, and Pensions.
Mr. HARKIN: Mr. President, today I join with my senior colleague from
Iowa, Senator Grassley, and with the distinguished chair of the
Judiciary Committee, Senator Leahy, in introducing the Protecting Older
Workers Against Discrimination Act.
The need for this legislation was vividly demonstrated by the
experience of an Iowan--Jack Gross. Mr. Gross gave the prime of his
life, a quarter century of loyal service, to one company. Despite Mr.
Gross's stellar work record, the company brazenly demoted him and other
employees over the age of 50 and gave his job to a younger employee.
Expressly to prevent this kind of discrimination, over 40 years ago
Congress passed the Age Discrimination in Employment Act, ADEA. Modeled
from and using the same language as Title VII of the Civil Rights Act
of 1964--which prohibits employment discrimination on the basis of
race, sex, national origin and religion--the ADEA makes it unlawful to
discriminate on the basis of age.
When Mr. Gross sought to enforce his rights under this law, a jury of
Iowans heard the facts and found that his employer discriminated
against him because of his age. That jury awarded him almost $47,000 in
lost compensation.
The case was ultimately appealed to the Supreme Court. In June 2009,
in Gross v. FBL Financial, Inc., five justices effectively rewrote the
law and ruled against Mr. Gross. In doing so, the Court made it harder
for those with legitimate age discrimination claims to prevail under
the ADEA. In fact, on remand, despite the fact Mr. Gross had
established that age discrimination was a factor in his demotion, he
lost his retrial.
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 protected class.
As part of the Civil Rights Act of 1991, Congress codified the
``motivating factor'' standard with respect to Title VII discrimination
claims.
Since the ADEA uses the same language as Title VII, was modeled from
it, and had been interpreted consistent with the Civil Rights Act,
courts rightly and consistently held that, like a plaintiff claiming
discrimination on the basis of race, sex, religion and national origin,
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.
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 decades' old standard. In its place, the Court
imposed a standard that makes it prohibitively difficult for a victim
to prove age discrimination. According to the Court, a plaintiff bears
the full burden of proving that age was not only a ``motivating''
factor but the ``but for'' factor, or decisive factor. And,
unfortunately, lower courts have applied Gross to other civil rights
claims, including cases arising under the Americans with Disabilities
Act, the Rehabilitation Act and retaliation cases under Title VII of
the Civil Rights Act of 1964.
The extremely high burden Gross imposes radically undermines workers'
ability to hold employers accountable. Bear in mind, unlawful
discrimination is often difficult to detect. Obviously, those who
discriminate do not often admit they are acting for discriminatory
reasons. Employers rarely post signs saying, for example, ``older
workers need not apply.'' To the contrary, they go out of their way to
conceal their true intent. And, only the employer is in a position to
know his own mind and offer an explanation of why a decision that
involves discrimination or retaliation 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 has freed employers to discriminate or retaliate.
Unfortunately, as Mr. Gross and his colleagues know all too well, age
discrimination does indeed occur. 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 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.
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. According to the Equal Employment Opportunity
Commission, in fiscal year 2011, over 23,000 age discrimination claims
were filed, a more than 20 percent increase from just four years ago.
And, given the stereotypes that older workers face, it is no surprise
that on average they remain unemployed for more than twice as long as
all unemployed workers.
The Protecting Older Workers Against Discrimination Act reiterates
the principle that Congress established when it passed the Civil Rights
Act of 1964, the Age Discrimination in Employment Act, the
Rehabilitation Act and the Americans with Disabilities Act--when making
employment decisions it is illegal for race, sex, national origin,
religion, age or disability to be a factor.
The bill repudiates the Supreme Court's Gross v. FBL Financial
decision and will restore the law to what it was for decades. It makes
clear that when an employee shows discrimination was a ``motivating
factor'' behind a decision, the burden is properly on the employer to
show the same decision would have been made regardless of
discrimination or retaliation. And, like the Civil Rights Act of 1991
with respect to discrimination cases under Title VII, if the employer
meets that burden, the employer remains liable, but remedies are
limited.
This is a common sense, bipartisan bill. In fact, the Civil Rights
Act of 1991, key provisions of which served as a model for this
legislation, passed the Senate on a bipartisan basis 93 5. Further, we
are introducing this bill only after countless hours of consultation
with civil rights stakeholders and representatives of the business
community. Moreover, this bill addresses many of the concerns that were
raised about an earlier version of the bill at a hearing held before
the Health, Education, Labor, and Pensions Committee in March 2010.
In fact, I want to comment on two changes from that earlier version
of this bill introduced in the last Congress. Since October 2009, when
Senator Leahy and I first introduced the Protecting Older Workers
Against Discrimination Act, we have had the benefit of nearly two and a
half years of lower court application of the Gross decision.
The 2009 bill would have expressly amended the ADEA to make clear
that the analytical framework set out in McDonnell Douglas v. Green
applied to that statute. Even though, before Gross, every Court of
Appeals had held that McDonnell Douglas had applied to age claims, this
clarification was meant to address a footnote in Gross in which the
Court arguably questioned the applicability of McDonnell Douglas to the
ADEA. Since the bill was first introduced, however, every lower court
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that has examined the issue has continued to apply McDonnell Douglas to
the ADEA. As a result, because McDonnell Douglas applies to the ADEA
already, we deem it unnecessary to amend the statute.
Second, the initial bill expressly amended only the ADEA. Since
Gross, however, lower courts have applied the Court's reasoning in that
decision to other statutes. Because the most notable application has
been to the ADA, Rehabilitation Act and Title VII retaliation claims,
those statutes are expressly amended here too.
Finally, in Gross, the Court defended the Court's departure from
well-established law by noting that it ``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 of 1991, codified the ``motivating
factor'' framework for Title VII, but not for the ADEA, Congress
somehow must have intended Price Waterhouse not to apply to any statute
but Title VII.
Because of the Court's reasoning, I want to emphasize that this bill
in no way questions the motivating factor framework for other anti-
discrimination and anti-retaliation statutes that are not expressly
covered by the legislation. As the bill's findings make clear, not only
does this bill repudiate the Gross decision itself, but it expressly
repudiates the reasoning underlying the decision, including the
argument that Congress's failure to amend any statute other than Title
VII means that Congress intended to disallow mixed motive claims under
other statutes. It would be an error for a court to apply similar
reasoning following passage of this bill to other statutes. The fact
that other statutes are not expressly amended does not mean that
Congress endorses Gross's application to any other statute.
In conclusion, this bill is very straightforward. It reiterates what
Congress said 40 years ago when it passed the ADEA--when making
employment decisions it is illegal for age to be a factor. A person
should not be judged arbitrarily because he or she was born in a
certain year or earlier when 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 will have an equal opportunity,
commensurate with their abilities, for productive employment.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2189
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting Older Workers
Against Discrimination Act''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds the following:
(1) In enacting the Age Discrimination in Employment Act of
1967 (referred to in this section as the ``ADEA''), Congress
intended to eliminate workplace discrimination against
individuals 40 and older based on age.
(2) In enacting the Civil Rights Act of 1991, Congress
reaffirmed its understanding that unlawful discrimination is
often difficult to detect and prove because discriminators do
not usually admit their discrimination and often try to
conceal their true motives.
(3) Congress intended that courts would interpret Federal
statutes, such as the ADEA, that are similar in their text or
purpose to title VII of the Civil Rights Act of 1964, in ways
that were consistent with the ways in which courts had
interpreted similar provisions in that title VII. The Supreme
Court's decision in Gross v. FBL Financial Services, Inc.,
129 S. Ct. 2343 (2009), departed from this intent and
circumvented well-established precedents.
(4) Congress disagrees with the Supreme Court's
interpretation, in Gross, of the ADEA and with the reasoning
underlying the decision, specifically language in which the
Supreme Court--
(A) interpreted Congress' failure to amend any statute
other than title VII of the Civil Rights Act of 1964 in
enacting section 107 of the Civil Rights Act of 1991 (adding
section 703(m) of the Civil Rights Act of 1964), to mean that
Congress intended to disallow mixed motive claims under other
statutes;
(B) declined to apply the Supreme Court's ruling in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), a part of which
was subsequently approved by Congress, and enacted into law
by section 107 of the Civil Rights Act of 1991, as section
703(m) of the Civil Rights Act of 1964, which provides that
an unlawful employment practice is established when a
protected characteristic was a motivating factor for any
employment practice, even though other factors also motivated
the practice;
(C) interpreted causation language and standards, including
the words ``because of'' that are similar in their text or
purpose to title VII of the Civil Rights Act of 1964, in a
manner that departed from established precedent;
(D) held that mixed motive claims were unavailable under
the ADEA; and
(E) indicated that other established causation standards
and methods of proof, including the use of any type or form
of admissible circumstantial or direct evidence as recognized
in Desert Palace Inc. v. Costa, 539 U.S. 90 (2003), or the
availability of the analytical framework set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), might not apply
to the ADEA.
(5) Lower courts have applied Gross to a wide range of
Federal statutes, such as the Americans with Disabilities Act
of 1990 (42 U.S.C. 12101 et seq.).
(6) The Gross decision has significantly narrowed the scope
of protections intended to be afforded by the ADEA.
(7) Congress must restore and reaffirm established
causation standards and methods of proof to ensure victims of
unlawful discrimination and retaliation are able to enforce
their rights.
(b) Purposes.--The purposes of this Act include--
(1) to restore the availability of mixed motive claims and
to reject the requirements the Supreme Court enunciated in
Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343
(2009), that a complaining party always bears the burden of
proving that a protected characteristic or protected activity
was the ``but for'' cause of an unlawful employment practice;
(2) to reject the Supreme Court's reasoning in Gross that
Congress' failure to amend any statute other than title VII
of the Civil Rights Act of 1964, in enacting section 107 of
the Civil Rights Act of 1991, suggests that Congress intended
to disallow mixed motive claims under other statutes; and
(3) to establish that under the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 621 et seq.), title VII of
the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the
Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et
seq.), and the Rehabilitation Act of 1973 (29 U.S.C. 701 et
seq.), complaining parties--
(A) may rely on any type or form of admissible evidence to
establish their claims;
(B) are not required to demonstrate that the protected
characteristic or activity was the sole cause of the
employment practice; and
(C) may demonstrate an unlawful practice through any
available method of proof, including the analytical framework
set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).
SEC. 3. STANDARDS OF PROOF.
(a) Age Discrimination in Employment Act of 1967.--
(1) Clarifying prohibition against impermissible
consideration of age in employment practices.--Section 4 of
the Age Discrimination in Employment Act of 1967 (29 U.S.C.
623) is amended by inserting after subsection (f) the
following:
``(g)(1) Except as otherwise provided in this Act, an
unlawful practice is established under this Act when the
complaining party demonstrates that age or an activity
protected by subsection (d) was a motivating factor for any
practice, even though other factors also motivated the
practice.
``(2) In establishing an unlawful practice under this Act,
including under paragraph (1) or by any other method of
proof, a complaining party--
``(A) may rely on any type or form of admissible evidence
and need only produce evidence sufficient for a reasonable
trier of fact to find that an unlawful practice occurred
under this Act; and
``(B) shall not be required to demonstrate that age or an
activity protected by subsection (d) was the sole cause of a
practice.''.
(2) Remedies.--Section 7 of such Act (29 U.S.C. 626) is
amended--
(A) in subsection (b)--
(i) in the first sentence, by striking ``The'' and
inserting ``(1) The'';
(ii) in the third sentence, by striking ``Amounts'' and
inserting the following:
``(2) Amounts'';
(iii) in the fifth sentence, by striking ``Before'' and
inserting the following:
``(4) Before''; and
(iv) by inserting before paragraph (4), as designated by
clause (iii) of this subparagraph, the following:
``(3) On a claim in which an individual demonstrates that
age was a motivating factor for any employment practice,
under section 4(g)(1), and a respondent demonstrates that the
respondent would have taken the same action in the absence of
the impermissible motivating factor, the court--
``(A) may grant declaratory relief, injunctive relief
(except as provided in subparagraph (B)), and attorney's fees
and costs demonstrated to be directly attributable only to
the pursuit of a claim under section 4(g)(1); and
``(B) shall not award damages or issue an order requiring
any admission, reinstatement, hiring, promotion, or
payment.''; and
(B) in subsection (c)(1), by striking ``Any'' and inserting
``Subject to subsection (b)(3), any''.
(3) Definitions.--Section 11 of such Act (29 U.S.C. 630) is
amended by adding at the end the following:
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``(m) The term `demonstrates' means meets the burdens of
production and persuasion.''.
(4) Federal employees.--Section 15 of such Act (29 U.S.C.
633a) is amended by adding at the end the following:
``(h) Sections 4(g) and 7(b)(3) shall apply to mixed motive
claims (involving practices described in section 4(g)(1))
under this section.''.
(b) Title VII of the Civil Rights Act of 1964.--
(1) Clarifying prohibition against impermissible
consideration of race, color, religion, sex, or national
origin in employment practices.--Section 703 of the Civil
Rights Act of 1964 (42 U.S.C. 2000e 2) is amended by striking
subsection (m) and inserting the following:
``(m) Except as otherwise provided in this title, an
unlawful employment practice is established under this title
when the complaining party demonstrates that race, color,
religion, sex, or national origin or an activity protected by
section 704(a) was a motivating factor for any employment
practice, even though other factors also motivated the
practice.''.
(2) Federal employees.--Section 717 of such Act (42 U.S.C.
2000e 16) is amended by adding at the end the following:
``(g) Sections 703(m) and 706(g)(2)(B) shall apply to mixed
motive cases (involving practices described in section
703(m)) under this section.''.
(c) Americans With Disabilities Act of 1990.--
(1) Definitions.--Section 101 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12111) is amended by
adding at the end the following:
``(11) Demonstrates.--The term `demonstrates' means meets
the burdens of production and persuasion.''.
(2) Clarifying prohibition against impermissible
consideration of disability in employment practices.--Section
102 of such Act (42 U.S.C. 12112) is amended by adding at the
end the following:
``(e) Proof.--
``(1) Establishment.--Except as otherwise provided in this
Act, a discriminatory practice is established under this Act
when the complaining party demonstrates that disability or an
activity protected by subsection (a) or (b) of section 503
was a motivating factor for any employment practice, even
though other factors also motivated the practice.
``(2) Demonstration.--In establishing a discriminatory
practice under paragraph (1) or by any other method of proof,
a complaining party--
``(A) may rely on any type or form of admissible evidence
and need only produce evidence sufficient for a reasonable
trier of fact to find that a discriminatory practice occurred
under this Act; and
``(B) shall not be required to demonstrate that disability
or an activity protected by subsection (a) or (b) of section
503 was the sole cause of an employment practice.''.
(3) Certain antiretaliation claims.--Section 503(c) of such
Act (42 U.S.C. 12203(c)) is amended--
(A) by striking ``The remedies'' and inserting the
following:
``(1) In general.--Except as provided in paragraph (2), the
remedies''; and
(B) by adding at the end the following:
``(2) Certain antiretaliation claims.--Section 107(c) shall
apply to claims under section 102(e)(1) with respect to title
I.''.
(4) Remedies.--Section 107 of such Act (42 U.S.C. 12117) is
amended by adding at the end the following:
``(c) Discriminatory Motivating Factor.--On a claim in
which an individual demonstrates that disability was a
motivating factor for any employment practice, under section
102(e)(1), and a respondent demonstrates that the respondent
would have taken the same action in the absence of the
impermissible motivating factor, the court--
``(1) may grant declaratory relief, injunctive relief
(except as provided in paragraph (2)), and attorney's fees
and costs demonstrated to be directly attributable only to
the pursuit of a claim under section 102(e)(1); and
``(2) shall not award damages or issue an order requiring
any admission, reinstatement, hiring, promotion, or
payment.''.
(d) Rehabilitation Act of 1973.--
(1) In general.--Sections 501(g), 503(d), and 504(d) of the
Rehabilitation Act of 1973 (29 U.S.C. 791(g), 793(d), and
794(d)), are each amended by adding after the words ``title I
of the Americans with Disabilities Act of 1990 (42 U.S.C.
12111 et seq.)'' the following: ``, including the standards
of causation or methods of proof applied under section 102(e)
of that Act (42 U.S.C. 12112(e)),''.
(2) Federal employees.--The amendment made by paragraph (1)
to section 501(g) shall be construed to apply to all
employees covered by section 501.
SEC. 4. APPLICATION.
This Act, and the amendments made by this Act, shall apply
to all claims pending on or after the date of enactment of
this Act.
Mr. LEAHY. Mr. President, today, I am pleased to join Senators Harkin
and Grassley in introducing the Protecting Older Workers Against
Discrimination Act. This bipartisan bill seeks to restore crucial
worker protections that have been cast aside by a narrow, 5 4 Supreme
Court decision. The bill also reaffirms the contributions made by older
Americans in the workforce and ensures that employees will be evaluated
based on their performance and not by arbitrary criteria such as age.
Congress has long worked to enact civil rights laws to eliminate
discrimination in 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 these protections in the Civil Rights Act of 1991, which
passed in the Senate 93 to five. These statutes established a clear
legal standard and Congressional intent: an employer's decision to fire
or demote an employee may not be motivated in whole or in part by the
employee's age.
However, the 2009 Supreme Court decision in Gross v. FBL unilaterally
erased that clear legal standard. A slim 5 4 majority threw out a jury
verdict in favor Jack Gross, a 32-year employee of a major financial
company, who sued under the ADEA. The jury had concluded that age was a
motivating factor in the company's decision to demote Gross and
reassign his duties to a younger, significantly less qualified worker.
But a divisive Supreme Court ignored its own precedent and
congressional intent.
Five justices decided that workers like Mr. Gross must now prove that
age was the only motivating factor in a demotion or termination. The
Court also required workers to essentially introduce a ``smoking gun''
in order to prove discrimination. By imposing such high standards, the
Court sided with big business and made it easier for employers to
discriminate on the basis of age with impunity so long as they could
cloak it with another reason. As Mr. Gross stated during a Judiciary
Committee hearing that I held shortly after this controversial decision
was handed down, ``I feel like my case has been hijacked by the high
court for the sole purpose of rewriting both the letter and the spirit
of the ADEA.''
The Supreme Court's divisive holding has created much uncertainty in
our civil rights laws and it is incumbent on Congress to clarify our
intent and the statutory protections that all hardworking Americans
deserve. The Protecting Older Workers Against Discrimination Act
restores the original intent of the ADEA and three other Federal anti-
discrimination statutes. It makes clear that employers cannot get away
with age discrimination by simply coming up with a reason to terminate
an employee that sounds less controversial. The bill re-establishes
Congress' intent that age discrimination is unlawful even if it is only
part of the reason to demote a worker. Under the bill, a worker would
also be able to introduce any relevant admissible form of evidence to
show discrimination, whether the evidence is direct or circumstantial.
To avoid future misreading of congressional intent, I encourage
Federal courts to take particular note of the carefully negotiated
``Findings and Purposes'' section in this bipartisan bill. The bill
unequivocally rejects the Supreme Court's reasoning in Gross not only
in age discrimination cases but in all cases where courts have applied
this case as binding precedent. In other words, Gross is not the proper
legal standard for anti-discrimination statutes, whether or not a
particular statute is directly amended by this bill.
I commend Senator Harkin for his efforts over the past three years to
negotiate a bipartisan bill to restore the civil rights protections
that all Americans deserve in the workplace. I also thank Senator
Grassley, the Ranking Member of the Judiciary Committee, for his
commitment to this issue. I urge my fellow Senators to join this
bipartisan effort and show their commitment to ending age
discrimination in the workplace. In these difficult economic times,
hardworking Americans deserve our help. We must not allow a thin
majority of the Supreme Court to eliminate the protections that
Congress has enacted for them.
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