[Congressional Record Volume 159, Number 112 (Wednesday, July 31, 2013)]
[Senate]
[Page S6103]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        ``PROTECTING OLDER WORKERS AGAINST DISCRIMINATION ACT''

  Mr. LEAHY. Mr. President, I am pleased to join Senators Harkin and 
Grassley in reintroducing the Protecting Older Workers Against 
Discrimination Act. This bipartisan bill seeks to restore crucial 
worker protections that were cast aside by five justices of the Supreme 
Court in the 2009 case Gross v. FBL Financial, Inc. The bill 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, extending protections against 
workplace discrimination to older workers. We strengthened and codified 
these protections in the Civil Rights Act of 1991, which passed the 
Senate with an overwhelming, bipartisan vote of 93-5. These statutes 
established not only our clear congressional intent, but also a clear 
legal standard: 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 Supreme Court's Gross decision unilaterally erased that 
longstanding standard. A narrow 5-4 majority threw out a jury verdict 
in favor of Jack Gross, a 32-year employee of a major financial 
company, who had sued his employer under the ADEA. That jury concluded 
that age was a motivating factor in the company's decision to demote 
Mr. Gross and to reassign a younger, significantly less-qualified 
worker to take his place. But the Supreme Court ignored the fact 
finder, its own precedent, and congressional intent to overturn the 
jury verdict.
  Five justices shifted the burden from the discriminators to the 
discriminated, deciding that workers like Mr. Gross must now prove that 
age was the only motivating factor in a demotion or termination. The 
court's decision 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 as long as they could 
cloak it with another reason. The Protecting Older Workers Against 
Discrimination Act rejects the Supreme Court's reasoning in the Gross 
decision, not only in those cases under the ADEA but also under similar 
civil rights provisions.
  The Supreme Court's holding has created uncertainty in our civil 
rights laws, making it 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. The bill reestablishes Congress' intent that age 
discrimination is unlawful even if it is only part of the reason to 
demote or terminate a worker. It makes it clear that employers cannot 
get away with age discrimination by simply coming up with a reason to 
terminate an employee that sounds less controversial. 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.
  I commend Senator Harkin for his efforts over the past 4 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 once again urge my fellow Senators to join 
this bipartisan effort and show their commitment to ending age 
discrimination in the workplace.

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