[Congressional Record Volume 159, Number 111 (Tuesday, July 30, 2013)]
[Senate]
[Pages S6074-S6077]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HARKIN (for himself, Mr. Grassley, and Mr. Leahy):
  S. 1391. A bill to amend the Age Discrimination in Employment Act of 
1967 and other laws to clarify appropriate standards for Federal 
employment discrimination and retaliation 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

[[Page S6075]]

Committee, Senator Leahy, in reintroducing 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, FBL Financial 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, in 1967 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., the Court ruled against Mr. Gross, and 
in doing so 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, just last month the Supreme Court, in University of 
Texas Southwestern Medical Center v. Nassar, extended Gross to 
retaliation cases under Title VII of the Civil Rights Act. Moreover, 
lower courts have extended Gross to other civil rights claims, 
including cases arising under the Americans with Disabilities Act and 
the Rehabilitation Act.
  The extremely high burden Gross imposes radically undermines workers' 
ability to hold employers accountable. As Professor Helen Norton 
testified to the HELP Committee, ``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's 
efforts to stop and deter workplace discrimination.''
  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. The employer is in the best 
position to offer an explanation of why a decision that involves 
discrimination or retaliation was actually motivated by legitimate 
reasons. As Professor Norton testified, ``[s]uch burden shifting 
appropriately recognizes and responds to employers' greater access to 
information that is key to proving or disproving an element of a 
particular claim . . .'' 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% 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 2012, over 2,800 age discrimination 
complaints were filed, a more than 20 percent increase from just five 
years ago. 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 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 three 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 
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

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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 discrimination claims under 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 in this bill 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 in 1967 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. 1391

       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 section 107 of the Civil Rights Act of 1991 
     (adding section 703(m) of the Civil Rights Act of 1964), 
     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. Section 703(m) of 
     the Civil Rights Act of 1964 expressly approved so-called 
     ``mixed motive'' claims, providing that an unlawful 
     employment practice is established when a protected 
     characteristic was a motivating factor for any employment 
     practice, even though other factors also motived the 
     practice.
       (2) Congress enacted amendments to other civil rights 
     statutes, including the Age Discrimination in Employment Act 
     of 1967 (referred to in this section as the ``ADEA''), the 
     Americans with Disabilities Act of 1990, and the 
     Rehabilitation Act of 1973, but Congress did not expressly 
     amend those statutes to address mixed motive discrimination.
       (3) In the case of Gross v. FBL Financial Services, Inc., 
     557 U.S. 167 (2009), the Supreme Court held that, because 
     Congress did not expressly amend the ADEA to address mixed 
     motive claims, such claims were unavailable under the ADEA, 
     and instead the complainant bears the burden of proving that 
     a protected characteristic or protected activity was the 
     ``but for'' cause of an unlawful employment practice. This 
     decision has significantly narrowed the scope of protections 
     afforded by the statutes that were not expressly amended in 
     1991 to address mixed motive claims.
       (b) Purposes.--The purposes of this Act are--
       (1) to clarify congressional intent that mixed motive 
     claims shall be available, and that a complaining party need 
     not prove that a protected characteristic or protected 
     activity was the ``but for'' cause of an unlawful employment 
     practice, under the ADEA and similar civil rights provisions;
       (2) to reject the Supreme Court's reasoning in the Gross 
     decision that Congress' failure to amend any statute other 
     than title VII of the Civil Rights Act of 1964 (with respect 
     to discrimination claims), 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 clarify that complaining parties--
       (A) may rely on any type or form of admissible evidence to 
     establish their claims of an unlawful employment practice;
       (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 employment practice through 
     any available method of proof or analytical framework.

     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:
       ``(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

[[Page S6077]]

     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.
                                 ______