[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]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      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

[[Page S1616]]

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:

[[Page S1617]]

       ``(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.

[[Page S1618]]



                          ____________________