[House Report 116-372]
[From the U.S. Government Publishing Office]


116th Congress   }                                             {   Report
                           HOUSE OF REPRESENTATIVES
 2d Session      }                                             {  116-372

======================================================================



 
          PROTECTING OLDER WORKERS AGAINST DISCRIMINATION ACT

                                _______
                                

January 9, 2020.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Scott of Virginia, from the Committee on Education and Labor, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                       [To accompany H. R. 1230]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and Labor, to whom was referred 
the bill (H. R. 1230) 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, having considered the same, 
report favorably thereon with an amendment and recommend that 
the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     4
Committee Action.................................................     4
Committee Views..................................................     7
Section-by-Section Analysis......................................    15
Explanation of Amendments........................................    17
Application of Law to the Legislative Branch.....................    17
Unfunded Mandate Statement.......................................    18
Earmark Statement................................................    18
Roll Call Votes..................................................    18
Statement of Performance Goals and Objectives....................    21
Duplication of Federal Programs..................................    21
Hearings.........................................................    21
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................    21
New Budget Authority and CBO Cost Estimate.......................    21
Committee Cost Estimate..........................................    23
Changes in Existing Law Made by the Bill, as Reported............    23
Minority Views...................................................    57

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Protecting Older Workers Against 
Discrimination Act''.

SEC. 2. 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 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 anti-retaliation 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 anti-retaliation 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(f), 503(d), and 504(d) of the 
        Rehabilitation Act of 1973 (29 U.S.C. 791(f), 793(d), and 
        794(d)), are each amended by adding after ``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(f) shall be construed to apply to all employees 
        covered by section 501.

SEC. 3. 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.

SEC. 4. SEVERABILITY.

  If any provision or portion of a provision of this Act, an amendment 
or portion of an amendment made by this Act, or the application of any 
provision or portion thereof or amendment or portion thereof to 
particular persons or circumstances is held invalid or found to be 
unconstitutional, the remainder of this Act, the amendments made by 
this Act, or the application of that provision or portion thereof or 
amendment or portion thereof to other persons or circumstances shall 
not be affected.

                          Purpose and Summary

    Congress enacted the Age Discrimination in Employment Act 
(ADEA) in 1967 to prohibit age discrimination in the 
workplace.\1\ The ADEA was an integral part of civil rights 
legislation enacted during the 1960s to ensure equal 
opportunity in the workplace, along with the Equal Pay Act of 
1963\2\ and Title VII of the Civil Rights Act of 1964 (Title 
VII).\3\
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    \1\Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec. 621 
(2018).
    \2\Equal Pay Act of 1963, 29 U.S.C. Sec. 206 (2018).
    \3\Civil Rights Act of 1964, 2 U.S.C. Sec. 1311 (2018).
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    Protections for older workers were eroded by the Supreme 
Court's 2009 decision in Gross v. FBL Financial Services, Inc. 
(Gross) which imposed a higher burden of proof for age 
discrimination then previously required. This 5-4 decision 
overturned precedent by requiring individuals to prove that age 
discrimination was the decisive and determinative cause for the 
employer's adverse action rather than just a motivating factor 
in the employer's adverse action.\4\
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    \4\Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009).
---------------------------------------------------------------------------
    The purpose of H.R. 1230, the Protecting Older Workers 
Against Discrimination Act (POWADA or the Act), is to rectify 
the harms caused by the Gross decision and restore the 
congressional intent underpinning the ADEA:\5\ to eliminate age 
as a factor in employment decisions, to promote the employment 
of older persons based on their ability rather than age, to 
prohibit arbitrary age discrimination in employment, and to 
help employers and workers find ways of meeting problems 
arising from the impact of age on employment. By reinstating 
the mixed-motive evidentiary threshold applied to age 
discrimination claims prior to Gross, this legislation returns 
to decade old legal precedent in age discrimination cases--
where the complaining party need only prove age was one of a 
number of factors behind the employment decision rather than 
age being the ``but-for'' or sole motivating cause of the 
employer's adverse action under the ADEA.\6\ Further, this 
legislation clarifies that complaining parties may rely on any 
type of admissible evidence to establish their claims of an 
unlawful employment practice.
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    \5\Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec. 623
    \6\The Protecting Older Workers Against Discrimination Act, Before 
the Subcomm. on Health, Education, Labor, and Pensions of the H. Comm. 
on Educ. and Labor, 111th Cong. (2010) (written testimony of Prof. 
Michael Foreman, Director, Civil Rights Appellate Clinic, Pennsylvania 
State University Dickinson School of Law).
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    For older Americans, age discrimination is a significant 
barrier to job opportunities. When older workers lose their 
jobs, they are far more likely than other workers to join the 
ranks of the long-term unemployed. Therefore, this legislation 
is needed to re-establish vital protections for older workers.

                            Committee Action


                             111TH CONGRESS

    On October 6, 2009, Senator Tom Harkin (D-IA) introduced S. 
1756, the Protecting Older Workers Against Discrimination Act. 
The bill was referred to the Senate Committee on Health, 
Education, Labor, and Pensions (Senate HELP Committee). On May 
6, 2010, the Senate HELP Committee held a hearing entitled 
``Ensuring Fairness for Older Workers.'' The Committee heard 
testimony to examine the employment discrimination against 
older workers, and the need to enact protective legislation in 
the wake of the decision in Gross v. FBL Financial Services, 
Inc.\7\ Witnesses included Jacqueline Berrien, Chair of the 
Equal Employment Opportunity Commission; Jack Gross, plaintiff 
in Gross v. FBL Financial Services, Inc.; Helen Norton, 
Professor at the University of Colorado Law School; Gail 
Aldrich, Member of the AARP Board of Directors; and Eric 
Dreiband, Partner at Jones Day. No further action was taken.
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    \7\Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).
---------------------------------------------------------------------------
    Representative George Miller (D-CA-7) introduced a 
companion measure, H.R. 3721, on October 6, 2009. The bill was 
referred to the House Committee on Education and Labor, where 
it was further referred to the Subcommittee on Health, 
Education, Labor, and Pensions, which held a hearing on May 5, 
2010, entitled ``H.R. 3721, The Protecting Older Workers 
Against Discrimination Act.'' The Committee heard testimony on 
the impact of the Gross decision on age discrimination claims 
and the practical application of H.R. 3721 as a potential 
remedy. Witnesses included Jack Gross, plaintiff in Gross v. 
FBL Financial Services, Inc.; Gail Aldrich, Member of the AARP 
Board of Directors; Eric Dreiband, Partner at Jones Day; and 
Professor Michael Foreman, Director of the Civil Rights 
Appellate Clinic at the Pennsylvania State University. No 
further action was taken.
    The bill was also referred to House Committee on the 
Judiciary where it was subsequently referred to the 
Subcommittee on Constitution, Civil Rights, and Civil 
Liberties. On June 10, 2010, the Subcommittee held a hearing 
entitled ``Protecting Older Workers Against Discrimination 
Act.'' The Committee heard testimony to examine if H.R. 3721 
appropriately course corrects Gross. Witnesses included Jocelyn 
Samuels, Senior Counsel at the U.S. Department of Justice Civil 
Rights Division; Jack Gross, plaintiff in Gross v. FBL 
Financial Services, Inc.; Eric Dreiband, Partner at Jones Day; 
and Helen Norton, Associate Professor at the University of 
Colorado Law School. No further action was taken.

                             112TH CONGRESS

    On March 13, 2012, Senator Harkin introduced S. 2189, the 
Protecting Older Workers Against Discrimination Act. The bill 
was referred to the Senate HELP Committee. No further action 
was taken.

                             113TH CONGRESS

    On July 30, 2013, Senator Harkin and Representative Miller 
introduced the Protecting Older Workers Against Discrimination 
Act, S. 1391 and H.R. 2853 respectively. S. 1391 was referred 
to the Senate HELP Committee. H.R. 2853 was referred to the 
House Committee on Education and the Workforce, where it was 
subsequently referred to the Subcommittee on Workforce 
Protections. No further action was taken on either bill.

                             114TH CONGRESS

    On October 8, 2015, Senator Mark Steven Kirk (R-IL) 
introduced S. 2180, the Protecting Older Workers Against 
Discrimination Act. The bill was referred to the Senate HELP 
Committee.
    On June 24, 2016, Representative Robert C. ``Bobby'' Scott 
(D-VA-3) introduced an identical bill, H.R. 5574, the 
Protecting Older Workers Against Discrimination Act. The bill 
was referred to the House Committee on Education and the 
Workforce, where it was subsequently referred to the 
Subcommittee on Workforce Protections.
    No further action was taken on either bill.

                             115TH CONGRESS

    On February 27, 2017, Senator Robert P. Casey, Jr. (D-PA) 
introduced S. 443, the Protecting Older Workers Against 
Discrimination Act. The bill was referred to the Senate HELP 
Committee.
    On May 25, 2017, Representative Scott (VA) introduced an 
identical bill, H.R. 2650, the Protecting Older Workers Against 
Discrimination Act. The bill was referred to the House 
Committee on Education and the Workforce.
    No further action was taken on either bill.

                             116TH CONGRESS

    On February 14, 2019, Senator Casey introduced S. 485, the 
Protecting Older Workers Against Discrimination Act. The bill 
was referred to the Senate HELP Committee.
    On February 14, 2019, Representative Scott (VA), introduced 
an identical bill, H.R. 1230, the Protecting Older Workers 
Against Discrimination Act. The bill was referred to the House 
Committee on Education and Labor (the Committee).
    On May 21, 2019, the Committee considered H.R. 1230 during 
a legislative hearing entitled ``Eliminating Barriers to 
Employment: Opening Doors to Opportunity.'' The Committee heard 
testimony from Laurie McCann, Senior Attorney at AARP, on 
employment discrimination on the basis of age; how the Gross v. 
FBL Financial Services, Inc.\8\ decision made it more difficult 
to prove age discrimination under ADEA; and remedies that would 
provide more effective relief to victims of discrimination on 
the basis of age, including the provisions included in H.R. 
1230.
---------------------------------------------------------------------------
    \8\Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).
---------------------------------------------------------------------------
    On June 11, 2019, the Committee marked up H.R. 1230. The 
Committee adopted an Amendment in the Nature of a Substitute 
(ANS) offered by Chairman Scott and reported the bill favorably 
to the House of Representatives by a vote of 27 ayes to 18 
nays.
    The ANS incorporated the provisions of H.R. 1230, as 
introduced, with the following modifications:
           eliminated section 2 (Findings and Purpose);
           added a severability clause as a new section 
        4; and
           made minor technical and correcting changes.
    Three amendments to the ANS were offered, which were 
considered en bloc and failed by a vote of 20 ayes to 25 nays.
           Representative Lloyd Smucker (R-PA-11) 
        offered an amendment to add a finding stating that 
        Congress finds that nearly all successful plaintiffs 
        under the Act will not receive any damages, other 
        payments, or reinstatement, but their attorneys will 
        receive awards of fees and costs.
           Representative Rick Allen (R-GA-12) offered 
        an amendment to require a Government Accountability 
        Office (GAO) study to determine whether: (1) the 
        Court's decisions in Gross and University of Texas 
        Southwest Medical Center v. Nassar\9\ have discouraged 
        older workers from filing age discrimination and Title 
        VII anti-retaliation charges with Equal Employment 
        Opportunity Commission (EEOC); or (2) from filing age 
        discrimination and Title VII cases; and (3) whether the 
        success rates of age discrimination and Title VII cases 
        have decreased since the Gross and Nassar decisions. 
        The Act would only go into effect if the GAO study 
        found these negative impacts resulting from the Gross 
        and Nassar decisions.
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    \9\Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013).
---------------------------------------------------------------------------
           Representative Virginia Foxx (R-NC-5), the 
        Ranking Minority Member of the Committee, offered an 
        amendment to strike the provision of H.R. 1230 allowing 
        mixed-motive claims in Title VII retaliation cases.

                            Committee Views


                              INTRODUCTION

    There are numerous economic challenges facing older 
individuals. According to the U.S. Bureau of Labor Statistics 
(BLS), approximately 40 percent of people age 55 and older were 
working or actively looking for work in 2014. The number of 
individuals actively looking for work is expected to increase 
fastest for the oldest segments of the population through 
2024--most notably, people ages 65 and older.\10\ More than 
half of older U.S. workers are pushed out of longtime jobs 
before they choose to retire, suffering financial damage that 
is often irreversible.\11\ When older workers lose their jobs, 
they are far more likely than other workers to join the ranks 
of the long-term unemployed and discrimination appears to be a 
significant factor.
---------------------------------------------------------------------------
    \10\Strong Labor Market is Not Bringing Unemployed Older Americans 
Back to Work, The New School SCEPA (Nov. 2, 2018), https://
www.economicpolicyresearch.org/jobs-report/october-2018-unemployment-
report-for-workers-over-55.
    \11\Peter Gosselin, If You're Over 50, Chances are the Decision to 
Leave a Job Won't be Yours, ProPublica (Dec. 28, 2018, 5:00 AM), 
https://www.propublica.org/article/older-workers-united-states-pushed-
out-of-work-forced-retirement.
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    Significantly, approximately 61 percent of older workers 
have either seen or experienced age discrimination in the 
workplace.\12\ In 2017, the EEOC received nearly 17,000 age 
discrimination complaints--accounting for over 20 percent of 
all discrimination charges filed,\13\ and while most older 
workers say they have seen or experienced age discrimination, 
only 3 percent report having made a formal complaint.\14\ Age 
discrimination continues to be a ``. . . significant and costly 
problem to workers, their families, and the economy.''\15\ 
These trends have a profound impact on the economic security of 
older workers and their families.
---------------------------------------------------------------------------
    \12\Rebecca Perron, The Value of Experience Study, AARP (July 
2018), https://www.aarp.org/research/topics/economics/info-2018/
multicultural-work-jobs/?CMP=RDRCT-PRI-OTHER-WORKJOBS-052118.html.
    \13\Press Release, U.S. Equal Emp't Opportunity Comm'n, EEOC 
Releases Fiscal Year 2017 Enforcement and Litigation Data (Jan. 25, 
2018) (on file with author) available at https://www.eeoc.gov/eeoc/
newsroom/release/1-25-18.cfm.
    \14\Victoria A. Lipnic, U.S. Equal Emp't Opportunity Comm'n, The 
State of Age Discrimination and Older Workers in the U.S. 50 Years 
After the Age Discrimination in Employment Act (ADEA) (2018), https://
www.eeoc.gov/eeoc/history/adea50th/report.cfm.
    \15\Id.
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    POWADA is supported by organizations that represent 
millions of workers nationwide including: AARP, American 
Association of People with Disabilities, American Association 
of University Women, American Civil Liberties Union, American 
Federation of State, County, and Municipal Employees, Bazelon 
Center for Mental Health Law, Disability Rights Education & 
Defense Fund, Easterseals, Equal Rights Advocates, Justice for 
Migrant Women, Justice in Aging, Leadership Conference on Civil 
and Human Rights, National Council on Aging, National 
Disability Institute, National Domestic Workers Alliance, 
National Education Association, National Employment Law 
Project, National Employment Lawyers Association, National 
Partnership for Women & Families, National Women's Law Center, 
Lobby for Catholic Social Justice, Paralyzed Veterans of 
America, The Arc, The Gerontological Society of America, Women 
Employed, and Women's Institute for a Secure Retirement.

 HISTORY OF PROTECTIONS AGAINST AGE DISCRIMINATION IN THE UNITED STATES

    Age discrimination is not new. Congress considered 
expressly prohibiting age discrimination in employment as part 
of the Equal Employment Opportunity Act of 1962 and Title VII 
of the Civil Rights Act of 1964, but amendments to include age 
as a protected class failed. Instead, as part of Title VII, 
Congress directed then Secretary of Labor Willard Wirtz to make 
a ``full and complete study of the factors which may tend to 
result in discrimination in employment because of age.''\16\ 
That report became known as the ``Wirtz Report.''\17\
---------------------------------------------------------------------------
    \16\U.S. Dep't of Labor, The Older American Worker: Age 
Discrimination in Employment, Report of the Secretary of Labor Under 
Section 715 of the Civil Rights Act of 1964 (1965), https://
www.eeoc.gov/eeoc/history/adea50th/wirtz_report.cfm (``Wirtz Report'').
    \17\Victoria A. Lipnic, U.S. Equal Emp't Opportunity Comm'n, The 
State of Age Discrimination and Older Workers in the U.S. 50 Years 
After the Age Discrimination in Employment Act (ADEA) (2018), https://
www.eeoc.gov/eeoc/history/adea50th/report.cfm.
---------------------------------------------------------------------------
    The Wirtz Report examined age discrimination in the 
workplace during the 1960s. The report concluded that 
``employers believed age impacted job performance and 
ability,'' and that employers routinely refused to hire workers 
in their 40's, 50's and 60's ``based upon false beliefs and 
unfounded assumptions,''\18\ or the false pretense that higher 
age resulted in poorer job performance. The Wirtz Report 
distinguished age discrimination from discrimination based on 
``race, color, religion or national origin,''\19\ finding that 
``discrimination based on age was different because it did not 
derive from historical origins or feelings of dislike or 
intolerance that originated from outside the workplace,''\20\ 
and therefore recommended against adding age to Title VII of 
the Civil Rights Act of 1964.\21\ Instead of amending Title 
VII, President Lyndon Johnson in 1967 urged Congress to take 
action to protect ``[h]undreds of thousands not yet old, not 
yet voluntarily retired, who find themselves jobless because of 
arbitrary age discrimination.''\22\ That year, Congress enacted 
the ADEA,\23\ which protects employees as well as job 
applicants over the age of 40 from age discrimination in 
hiring, while on the job, and in termination.\24\ Among its 
core provisions, the ADEA states that it shall be unlawful for 
an employer--
---------------------------------------------------------------------------
    \18\Id.
    \19\U.S. Dep't of Labor, The Older American Worker: Age 
Discrimination in Employment, Report of the Secretary of Labor Under 
Section 715 of the Civil Rights Act of 1964 (1965), https://
www.eeoc.gov/eeoc/history/adea50th/wirtz_report.cfm (``Wirtz Report'').
    \20\Cathy Ventrell-Monsees, It's Unlawful Age Discrimination--Not 
the ``Natural Order'' of the Workplace!, 40 Berkeley J. Emp. & Lab. L. 
91, 96 (2010).
    \21\Victoria A. Lipnic, U.S. Equal Emp't Opportunity Comm'n, The 
State of Age Discrimination and Older Workers in the U.S. 50 Years 
After the Age Discrimination in Employment Act (ADEA) (2018), https://
www.eeoc.gov/eeoc/history/adea50th/report.cfm.
    \22\President Lyndon B. Johnson, Special Message to the Congress 
Proposing Programs for Older Americans, The American Presidency Project 
(Jan. 23, 1967), https://www.presidency.ucsb.edu/documents/special-
message-the-congress-proposing-programs-for-older-americans (proposing 
several legislative measures including the ADEA).
    \23\Age Discrimination in Employment Act of 1967, 29 U.S.C. 
Sec. 621 (2018).
    \24\``The ADEA, enacted in 1967 as part of an ongoing congressional 
effort to eradicate discrimination in the workplace, reflects a 
societal condemnation of invidious bias in employment decisions. The 
ADEA is but part of a wider statutory scheme to protect employees in 
the workplace nationwide. See Title VII of the Civil Rights Act of 
1964.'' McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 357-58 
(1995) (citations omitted).

          (1) to fail or refuse to hire or to discharge any 
        individual or otherwise discriminate against any 
        individual with respect to his compensation, terms, 
        conditions, or privileges of employment, because of 
        such individual's age;
          (2) to limit, segregate, or classify his employees in 
        any way which would deprive or tend to deprive any 
        individual of employment opportunities or otherwise 
        adversely affect his status as an employee, because of 
        such individual's age; or
          (3) to reduce the wage rate of any employee in order 
        to comply with this chapter.\25\
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    \25\Age Discrimination in Employment Act of 1967, 29 U.S.C. 
Sec. 621 (2018).
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      EROSION OF ANTIDISCRIMINATION PROTECTIONS FOR OLDER WORKERS

    The ADEA prohibits adverse employment actions against 
employees ``because of'' an individual's age. In interpreting 
the ``because of'' causation standard, between 1989 and 2009 
the courts applied the Price Waterhouse v. Hopkins\26\ Title 
VII mixed-motive framework to claims of age discrimination, and 
they explicitly rejected the ``but-for'' interpretation.\27\ 
Under a mixed-motive analysis, the plaintiff is required to 
show that a protected characteristic was a motivating factor in 
the employer's adverse action. The burden then shifts to the 
employer to prove that it would have taken the same action 
regardless of the protected characteristic. The ``but-for'' 
standard requires the plaintiff to show that the adverse action 
would not have occurred ``but-for'' the employee's age.
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    \26\Price Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989).
    \27\Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009).
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    In Price Waterhouse,\28\ the Supreme Court noted that the 
phrase ``because of'' contained within the statutory language 
of the ADEA\29\ was derived from Title VII,\30\ and that 
``because of'' under Title VII translates into a motivating 
factor of causation.\31\ Price Waterhouse established that a 
plaintiff satisfies the burden of persuasion by demonstrating 
that the protected characteristic (age) ``played a motivating 
part in an employment decision.''\32\ Once the plaintiff makes 
this showing, the burden then shifts to the employer to prove 
that the plaintiff's age was not the ``but-for'' cause of the 
adverse employment decision.\33\ Post Price Waterhouse\34\ 
appellate courts universally applied ``motivating factor'' 
causation to disparate impact claims under the ADEA.\35\
---------------------------------------------------------------------------
    \28\Price Waterhouse v. Hopkins, 490 U.S. 228, 239-241] (1989).
    \29\29. U.S.C. Sec. 623(a)(1). (``[i]t shall be unlawful for an 
employer . . . to fail or refuse to hire or to discharge any individual 
or otherwise discriminate against any individual . . . because of the 
individuals age,'').
    \30\Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 182-83 (Stevens, 
J., dissenting) (internal quotations omitted).
    \31\Price Waterhouse v. Hopkins, 490 U.S. 228, 249 (1989).
    \32\Id. at 240.
    \33\Id. at 244-45.
    \34\Id. at 228.
    \35\Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 182-83 (Stevens, 
J., dissenting); see also Rachid v. Jack in the Box, Inc., 376 F.3d 
305, 311 (5th Cir. 2004); Tratree v. BP N. Am. Pipelines, Inc., 277 
Fed. App'x 390, 393-95 (5th Cir. 2008) (following Rachid in ADEA case, 
noting that the standards of proof for claims of discrimination under 
the ADEA and Title VII were treated identically in the Fifth Circuit).
---------------------------------------------------------------------------
    Twenty years after Price Waterhouse,\36\ protections for 
older workers were eroded by the Supreme Court's 2009 decision 
in Gross,\37\ which threw out the mixed-motive framework for 
age discrimination cases that was established in Price 
Waterhouse\38\ and all successive precedent. In the Gross case, 
Jack Gross, then 54, brought suit for age discrimination. After 
working for more than 30 years and steadily rising within the 
company, Jack's employer reorganized and underwent a merger. As 
a result, many older workers were offered a buy-out, and those 
who did not take the buy-out were demoted and their prior 
duties and titles assigned to younger workers. Jack brought 
suit against his employer and was awarded $46,945 in lost 
compensation.\39\ However, on appeal, the employer prevailed by 
arguing that ``mixed-motive'' discrimination must be proven by 
direct evidence, not circumstantial evidence.\40\ The Supreme 
Court agreed to hear the case on that evidentiary question. 
However, the Court issued its decision on a question that was 
never presented to the Court or briefed by the parties: it 
ruled that older workers may not bring ``mixed-motive'' claims 
under the ADEA. It was no longer legally sufficient to prove 
that age discrimination tainted the employer's decision, but 
that older workers must prove that age discrimination was the 
decisive, determinative, ``but-for'' cause for the employer's 
conduct.\41\
---------------------------------------------------------------------------
    \36\Price Waterhouse v. Hopkins, 490 U.S. 228, (1989).
    \37\Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, (2009).
    \38\Price Waterhouse v. Hopkins, 490 U.S. 228, 249-253 (1989).
    \39\Gross v. FBL Fin. Servs., Inc., 526 F.3d 356, 358 (8th Cir. 
2008).
    \40\Gross v. FBL Fin. Servs., Inc., 526 F.3d 356, 361 (8th Cir. 
2008).
    \41\Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009).
---------------------------------------------------------------------------
    The Gross Court discarded decades of legal precedent that 
interpreted a parallel construction of the ADEA with Title VII. 
Instead, the Court held that Congress' failure to amend any 
statute other than Title VII of the Civil Rights Act of 
1964\42\ (with respect to discrimination claims) as part of the 
Civil Rights Act of 1991\43\ meant that Congress intended to 
disallow mixed-motive claims under other statutes. The Court 
concluded that Congress could have similarly and simultaneously 
amended the ADEA to include the mixed motive test, but it 
intentionally chose not to do so. Drawing a negative inference 
from Congress' omission, the Court reasoned that if the ADEA 
was not amended to include motivating factor discrimination, 
then Congress must have intended to exclude motivating factor 
discrimination under the ADEA. This 5-4 decision diluted 
protections under the ADEA by requiring plaintiffs attempting 
to prove age discrimination to demonstrate that age was a 
decisive and determinative cause for the employer's adverse 
action.
---------------------------------------------------------------------------
    \42\Civil Rights Act of 1964, 2 U.S.C. Sec. 1311 (2018).
    \43\Civil Rights Act of 1991, 42 U.S.C. Sec. 1981 (2018).
---------------------------------------------------------------------------
    Congress enacted section 107 of the Civil Rights Act of 
1991 (adding section 703(m) to the Civil Rights Act of 
1964)\44\ to allow for an unlawful employment practice to be 
established when a protected characteristic was a motivating 
factor for an employment practice, even though other factors 
also motivated the practice (also known as a ``mixed-motive'' 
claim).\45\ This mixed motive framework made it easier for 
employees to prove discrimination and more difficult for 
employers to conceal discriminatory motives behind a facially 
neutral pretext. Prior to Gross, Title VII's motivating factor 
standard had been applied to ADEA. As Justice Stevens noted in 
his dissent in Gross, ``the relevant language in the two 
statutes is identical, and [the Court] has long recognized . . 
. Title VII's language apply with equal force in the context of 
age discrimination, for the substantive provisions of the ADEA 
were derived in haec verba from Title VII.\46\ Justice Stevens 
further pointed out that, ``ADEA standards are generally 
understood to conform to Title VII standards.''\47\
---------------------------------------------------------------------------
    \44\Civil Rights Act of 1991, 42 U.S.C. Sec. 1981 (2018).
    \45\Civil Rights Act of 1991, 42 U.S.C. Sec. 1981 (2018).
    \46\Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 183 (Stevens, J., 
dissenting) (internal quotations omitted).
    \47\Id. at 185 (Stevens, J., dissenting).
---------------------------------------------------------------------------
    Experts, including Laurie McCann, a Senior Attorney with 
the AARP Foundation, have testified before the Committee 
expressing concerns about the lack of legal protections for 
older workers due to the Court's failure to interpret the ADEA 
as a remedial civil rights statute, ultimately eroding the 
ADEA's protections.\48\ Specifically, Ms. McCann points to 
Gross as an example of the Court misinterpreting ADEA and 
severing the ADEA from its ties to Title VII. In her written 
testimony to the Committee on May 21, 2019, Ms. McCann stated:
---------------------------------------------------------------------------
    \48\Eliminating Barriers to Employment: Opening Doors to 
Opportunity Before the H. Comm. on Educ. and Labor, 116th Cong. (2019) 
(written testimony of Laurie McCann, Senior Attorney, AARP).

          the ADEA's language was borrowed directly from Title 
        VII, prohibiting discrimination `because of'' age. 
        Thus, for decades, the ADEA was interpreted in concert 
        and consistently with Title VII. The tradition and 
        precedent of parallel construction was so strong that, 
        when the Supreme Court recognized a `mixed-motive' 
        framework for proving discrimination under Title VII in 
        the Price Waterhouse v. Hopkins case in 1989, and after 
        Congress codified that framework in the Civil Rights 
        Act of 1991, courts `uniformly' interpreted the ADEA to 
        permit a mixed-motive cause of action.'' . . . ``In 
        Gross, the Court ruled that older workers may not bring 
        mixed-motive claims under the ADEA. The Court discarded 
        decades of precedent embracing parallel construction of 
        the ADEA with Title VII and flipped it on its 
        head''\49\
---------------------------------------------------------------------------
    \49\Eliminating Barriers to Employment: Opening Doors to 
Opportunity Before the H. Comm. on Educ. and Labor, 116th Cong. (2019) 
(written testimony of Laurie McCann, Senior Attorney, AARP, at 4-5).

    In the 111th Congress, Jocelyn Samuels, Senior Counselor to 
the Assistant Attorney General for Civil Rights for the 
Department of Justice, testified before the House Judiciary 
Committee's Subcommittee on the Constitution, Civil Rights, and 
Civil Liberties. In her June 10, 2010, testimony, Ms. Samuels 
---------------------------------------------------------------------------
stated:

          the Gross decision reduces the protections available 
        to age discrimination plaintiffs. They are now subject 
        to a new burden that they had never had to bear under 
        all of the precedent that pre-dated the Gross decision. 
        Namely the obligation to prove that age is a ``but 
        for'' cause of discrimination. That makes it harder for 
        plaintiffs to prevail in cases even in which employers 
        admit that they have relied on age discrimination and 
        reduces court's power to enjoin age discrimination in 
        the future. That, of course, also reduces the deterrent 
        effect of the law. In addition, the fact that other 
        courts have extended Gross to laws like the Americans 
        With Disabilities Act or the Jury Systems Improvement 
        Act, suggests that under those laws, protections for 
        plaintiffs that Congress intended to protect will be 
        similarly reduced.\50\
---------------------------------------------------------------------------
    \50\Subcommittee on the Constitution, Civil Rights, and Civil 
Liberties of the H. Comm. on the Judiciary, Protecting Older Workers 
Against Discrimination Act, YouTube (June 10, 2010), https://
www.youtube.com/watch?v=XTKzNyGJn_k (see video pin cite 14:58:00).

    Also in the 111th Congress, the Senate HELP Committee held 
a hearing on the Protecting Older Workers Against 
Discrimination Act. Jacqueline Berrien, the former Chair of the 
---------------------------------------------------------------------------
EEOC, testified on May 6, 2010, that--

          nothing in the legislative history or the statutory 
        language of the age-discrimination act suggests that 
        this Congress intended to subject victims of age 
        discrimination to a more stringent standard than 
        victims of the types of discrimination prohibited by 
        title VII. The case is causing concrete hardships for 
        workers.\51\
---------------------------------------------------------------------------
    \51\Ensuring Fairness for Older Workers Before the Senate Committee 
on Health, Education, Labor and Pensions, 111th Cong. (2010) available 
at https://www.govinfo.gov/content/pkg/CHRG-111shrg56416/html/CHRG-
111shrg56416.htm (citing transcript of oral testimony of Jacqueline 
Berrien, Chair, Equal Opportunity Employment Commission).

    Thus, while individuals with race or sex discrimination 
claims under Title VII can prove unlawful disparate treatment 
under a ``motivating factor'' standard, victims of age 
discrimination must prove a higher ``but-for'' standard.''\52\ 
In this way, older workers face a higher bar to prove 
discrimination than other protected classes.
---------------------------------------------------------------------------
    \52\Victoria A. Lipnic, U.S. Equal Emp't Opportunity Comm'n, The 
State of Age Discrimination and Older Workers in the U.S. 50 Years 
After the Age Discrimination in Employment Act (ADEA) (2018), https://
www.eeoc.gov/eeoc/history/adea50th/report.cfm (see Appendix A).
---------------------------------------------------------------------------
    Several courts have subsequently applied the Gross decision 
to other civil rights statutes. As Ms. McCann stated in her May 
21, 2019, testimony, ``the damage inflicted by Gross has not 
stopped with the ADEA. The Supreme Court and lower courts have 
extended the `negative inference' reasoning of Gross to other 
civil rights laws.''\53\ In Nassar,\54\ the Supreme Court 
relied heavily on Gross to find that mixed-motive causation did 
not apply to claims of retaliation under Title VII. The 
majority ruled that, because the section of Title VII 
prohibiting retaliation did not contain language permitting 
mixed-motive causation, the statute had to be interpreted 
according to its plain language (requiring but-for causation). 
Circuit and district courts have reached similar conclusions in 
cases alleging violations of the Americans with Disabilities 
Act (ADA) and the Family Medical Leave Act (FMLA). One district 
court judge has even read Gross and Nassar to bar the 
allegation of multiple theories of discrimination in a 
complaint (alleging that the employer discriminated on the 
basis of both disability and age--because only one allegation 
can serve as the ``but-for'' cause of the discrimination).\55\
---------------------------------------------------------------------------
    \53\Eliminating Barriers to Employment: Opening Doors to 
Opportunity Before the H. Comm. on Educ. and Labor, 116th Cong. (2019) 
(written testimony of Laurie McCann, Senior Attorney, AARP, at 7).
    \54\Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 352-
354 (2013).
    \55\Savage v. Secure First Credit Union, 107 F. Supp. 3d 1212, 
1215-1216 (N.D. Ala. 2015).
---------------------------------------------------------------------------
    While the Supreme Court has yet to rule on the availability 
of the mixed-motive framework under the ADA or the 
Rehabilitation Act of 1973 (Rehabilitation Act), several lower 
courts have extended Gross and Nassar to these two statutes. In 
May 2019, the Second Circuit\56\ joined the Fourth,\57\ 
Sixth,\58\ and Seventh Circuits,\59\ in ruling that disability 
discrimination must be established under a ``but-for'' 
causation standard.\60\ The Second Circuit held in a 
Rehabilitation Act case (which incorporates the ADA causation 
standard):
---------------------------------------------------------------------------
    \56\Natofsky v. City of N.Y., 921 F.3d 337, 24-25 (2d Cir. 2019) 
(holding because the ADA does not have a provision like Title VII's 
Sec. 2000e-2(m) ``motivating factor'' standard, the ADA requires a 
plaintiff alleging a claim of employment discrimination to prove the 
discrimination was the but-for cause of any adverse employment action).
    \57\Gentry v. E.W. Partners Club Mgmt. Co., 816 F.3d 228, 234 (4th 
Cir. 2016) (Holding the Supreme Court's analysis in Gross v. FBL Fin. 
Servs., 557 U.S. 167, 129 S. Ct. 2343 (2009) dictates what constitutes 
or what serves to prove an ADA claim. The ADA's text does not provide 
that a plaintiff may establish liability by showing that disability was 
a motivating factor in an adverse employment decision, and therefore 
Title VII's motivating factor standard cannot be read into ADA).
    \58\Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 318 (6th 
Cir. 2012) (following Gross v. FBL Fin. Servs., 557 U.S. 167, 129 S. 
Ct. 2343 (2009), the ADEA and the ADA bar discrimination ``because of'' 
an employee's age or disability, meaning they prohibit discrimination 
only when it is a ``but-for'' cause of the employer's adverse decision.
    \59\Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961-963 
(7th Cir. 2010) (Holding that the ADA, like the ADEA, renders employers 
liable for employment decisions made ``because of'' a person's 
disability, and Gross v. FBL Fin. Servs., 557 U.S. 167, 129 S. Ct. 2343 
(2009) construes ``because of'' to require a showing of but-for 
causation. Thus, in the absence of a cross-reference to Title VII's 
mixed-motive liability language or comparable stand-alone language in 
the ADA itself, a plaintiff complaining of discriminatory discharge 
under the ADA must show that his or her employer would not have fired 
him but for his actual or perceived disability; proof of mixed motives 
will not suffice).
    \60\It's important to note that the ADA expressly incorporates by 
reference Title VII's enforcement provisions, including the provision 
containing the ``same decision'' defense. See 42 U.S.C. Sec. 12117(a).
---------------------------------------------------------------------------
          Gross and Nassar dictate our decision here. The ADA 
        does not include a set of provisions like Title VII's 
        Sec. 2000e-2(m) (permitting a plaintiff to prove 
        employment discrimination by showing that 
        discrimination was a ``motivating factor'' in the 
        adverse decision) and Sec. 2000e-5(g)(2)(B) (limiting 
        the remedies available to plaintiffs who can show that 
        discrimination was a ``motivating factor'' but not a 
        but-for cause of the adverse decision). There is no 
        express instruction from Congress in the ADA that the 
        ``motivating factor'' test applies. Moreover, when 
        Congress added Sec. 2000e-2(m) to Title VII, it 
        ``contemporaneously amended'' the ADA but did not amend 
        it to include a ``motivating factor'' test. We, 
        therefore, join the conclusion reached by the Fourth, 
        Sixth, and Seventh Circuits that the ADA requires a 
        plaintiff alleging a claim of employment discrimination 
        to prove that discrimination was the but-for cause of 
        any adverse employment action.\61\
---------------------------------------------------------------------------
    \61\Natofsky v. City of N.Y., 921 F.3d 337, 348 (2d Cir. 2019).

---------------------------------------------------------------------------
    As Ms. McCann testified:

          POWADA is needed to fix the enormous problem created 
        by the Gross decision and its progeny--an unreasonably 
        high standard of proof that is stacked against workers 
        and backtracks on the promise of the ADA and other 
        civil rights laws: equal opportunity in employment.\62\
---------------------------------------------------------------------------
    \62\H. Comm. on the Educ. and Labor, Eliminating Barriers to 
Employment: Opening Doors to Opportunity, YouTube (May 21, 2019), 
https://www.youtube.com/watch?v=LORcesGHQEM&t=5433s (see video pin cite 
36:41:00) (oral testimony of Laurie McCann, Senior Attorney, AARP).
---------------------------------------------------------------------------
    Given the problems engendered by the extension of Gross to 
other civil rights statutes, POWADA would clarify congressional 
intent that no amount of unlawful discrimination in the 
workplace is acceptable.

          CONGRESSIONAL ACTION IS NECESSARY TO PROTECT WORKERS

    For older jobseekers and workers, age discrimination 
remains a barrier to both getting employed and staying 
employed. According to an AARP survey released in 2019 (AARP 
Survey), 3 in 5 older workers report they have seen or 
experienced age discrimination on the job.\63\ A recent 
Associated Press-NORC Center for Public Affairs Research survey 
found that 91 percent of adults aged 45 and over thought that 
older workers sometimes or often face age discrimination in the 
workplace.\64\ This discrimination can occur during several 
stages of employment.
---------------------------------------------------------------------------
    \63\Rebecca Perron, AARP, The Value of Experience: Age 
Discrimination Against Older Workers Persists 3 (2018), https://
www.aarp.org/content/dam/aarp/research/surveys_statistics/econ/2018/
value-of-experience-age-discrimination-highlights.doi.10.26419-
2Fres.00177.002.pdf [hereinafter AARP survey].
    \64\Andrew Soergel, Older Americans More Likely to Cite Workplace 
Discrimination, AP (May 23, 2019), https://apnews.com/
dc208bc4bbda4f7b9a13559df8b00e50.
---------------------------------------------------------------------------
           Hiring: Discrimination in hiring is quite 
        common. However, due in part to the increased use of 
        technology in the screening and hiring process, such 
        discrimination is largely opaque and difficult to 
        prove. Experimental studies have documented significant 
        discrimination against older applicants in the hiring 
        process, including a recent study that found employers 
        were less likely to call back older applicants.\65\ The 
        AARP Survey found that three-fourths of workers age 45 
        and older blame age discrimination for their lack of 
        confidence in finding a new job and 44 percent of older 
        jobseekers who had recently applied for a job were 
        asked for age-related information such as their date of 
        birth or date of graduation.\66\
---------------------------------------------------------------------------
    \65\David Neumark et al., Federal Reserve Bank of San Francisco, 
Age Discrimination and Hiring of Older Workers, 3,4 (2017), https://
www.frbsf.org/economic-research/files/el2017-06.pdf [hereinafter 
Neumark Study].
    \66\AARP Survey, supra note 63.
---------------------------------------------------------------------------
           Terms and Conditions of Employment: The 
        second most frequent complaint to the EEOC by older 
        workers involves the ``terms and conditions'' of 
        employment,\67\ such as being moved to a night shift or 
        given an unfair performance evaluation. Nearly one-
        fourth of workers age 45 and older in the AARP Survey 
        said they had experienced negative comments about their 
        age from supervisors and coworkers.\68\
---------------------------------------------------------------------------
    \67\AARP calculation based on EEOC, Statutes by Issue (Charges 
filed with EEOC): FY 2010-FY 2018, U.S. Equal Emp't Opportunity Comm'n, 
https://www.eeoc.gov/eeoc/statistics/enforcement/statutes_by_issue.cfm; 
Age Discrimination in Employment Act (Charges filed with EEOC): FY 
1997-FY 2018, U.S. Equal Emp't Opportunity Comm'n, https://
www.eeoc.gov/eeoc/statistics/enforcement/adea.cfm.
    \68\AARP Survey, supra note 63.
---------------------------------------------------------------------------
           Termination: A study by the Urban Institute/
        ProPublica found that 56 percent of all older workers 
        age 50+ are ``pushed out of longtime jobs before they 
        choose to retire'' and ``only one in 10 of these 
        workers ever again earns as much as they did before'' 
        their involuntary separation.\69\ Among the age 
        discrimination charges filed with the EEOC, complaints 
        about discriminatory discharge constitute, by far, the 
        largest number of charges filed under the ADEA.\70\
---------------------------------------------------------------------------
    \69\Peter Gosselin, If You're Over 50, Chances are the Decision to 
Leave a Job Won't be Yours, ProPublica (Dec. 28, 2018, 5:00 AM), 
https://www.propublica.org/article/older-workers-united-states-pushed-
out-of-work-forced-retirement.
    \70\AARP calculation based on EEOC, Statutes by Issue (Charges 
filed with EEOC): FY 2010-FY 2018, U.S. Equal Emp't Opportunity Comm'n, 
https://www.eeoc.gov/eeoc/statistics/enforcement/statutes_by_issue.cfm; 
Age Discrimination in Employment Act (Charges filed with EEOC): FY 
1997-FY 2018, U.S. Equal Emp't Opportunity Comm'n, https://
www.eeoc.gov/eeoc/statistics/enforcement/adea.cfm.
---------------------------------------------------------------------------
    Age discrimination appears to be even more prevalent for 
women and workers of color. In a 2017 experimental study using 
blind resumes, older women encountered more age discrimination 
in hiring than men.\71\ According to the AARP Survey, nearly 
two-thirds of women and more than three-fourths of African 
American workers age 45 and older say they've seen or 
experienced age discrimination in the workplace.\72\
---------------------------------------------------------------------------
    \71\Neumark Study, supra note 65.
    \72\AARP Survey, supra note 63.
---------------------------------------------------------------------------

                               CONCLUSION

    Court decisions have created a legal hurdle in the ADEA 
that makes it difficult for older workers to prevail in cases 
of age discrimination in employment. POWADA would return the 
legal standard to the pre-Gross evidentiary threshold applied 
in ADEA discrimination claims by replacing the ``but-for'' test 
the Court adopted in Gross with the mixed-motive test that 
courts applied prior to 2009. POWADA also amends three other 
laws--the anti-retaliation provisions in Title VII of the Civil 
Rights Act of 1964, the ADA, and the Rehabilitation Act. POWADA 
is necessary to ensure that older workers and disabled workers 
have the same protections against discrimination as other 
protected classes of workers. That is, they can establish an 
unlawful employment practice when a protected characteristic 
such as age or disability is proven to have been a motivating 
factor for an employer's action, even though nondiscriminatory 
motives may have also been involved.
    As Chairman Scott noted at the May 21, 2019, hearing on 
POWADA, ``[s]ince the 1960s, Congress has recognized the 
Federal Government's responsibility to ensure that older 
workers are not forced out of their jobs or denied work 
opportunities because of their age.''\73\ It is time for 
Congress to pass legislation that restores the same protections 
to older workers that exist for other protected classes of 
individuals, so that, as President Johnson stated in his 
address to Congress, the many ``who are able and willing to 
work'' do not ``suffer the bitter rebuff of arbitrary and 
unjust job discrimination.''\74\
---------------------------------------------------------------------------
    \73\H. Comm. on the Educ. and Labor, Markup on H.R. 1230--
Protecting Older Workers Against Discrimination Act, H.R. 1309--
Workplace violence Prevention for Health Care and Social Service 
Workers Act, H.R. 397--Rehabilitation for Multiemployer Pensions Act, 
YouTube (June 11, 2019), https://www.youtube.com/watch?v=8Y3gzTUIL7g 
(see video pin cite 36:41:00) (opening statement of Chairman Robert C. 
``Bobby'' Scott, Committee on Educ. and Labor).
    \74\President Lyndon B. Johnson, Special Message to the Congress 
Proposing Programs for Older Americans, The American Presidency Project 
(Jan. 23, 1967), https://www.presidency.ucsb.edu/documents/special-
message-the-congress-proposing-programs-for-older-americans.
---------------------------------------------------------------------------

                      Section-by-Section Analysis


Sec. 1. Short title

    This section specifies that the title of the bill may be 
cited as the Protecting Older Workers Against Discrimination 
Act.

Sec. 2. Standards of proof

            In general
    H.R. 1230, as reported, amends the Age Discrimination in 
Employment Act of 1967 (ADEA), section 703 of the Civil Rights 
Act of 1964, the Americans With Disabilities Act of 1990 (ADA), 
and the Rehabilitation Act of 1973 to clarify that a 
complaining party establishes an unlawful employment practice 
when the complaining party demonstrates that age or any of the 
other protected characteristics or protected activities were a 
motivating factor for any unlawful employment practice. The 
changes made by the bill apply to claims brought by employees 
in the private, public, and not-for-profit sectors in the same 
manner and to the same extent as they are covered under current 
law.
            Sec. 2(a). Age Discrimination in Employment Act of 1967
    This section amends the ADEA to reinstate the availability 
of the ``mixed-motive'' test that allows the complaining party 
to establish their claim by demonstrating that the party's age 
or participation in investigations, proceedings, or litigation 
under the ADEA was a motivating factor for any alleged unlawful 
employment practice. It also clarifies that complainants are 
never required to prove that discrimination was the ``sole 
cause'' for their adverse treatment on the job, and that any 
type and form of evidence normally admissible in a court can be 
used to establish a claim. This section also clarifies that 
federal employees may also bring their claims using a mixed-
motive framework.
    Under the mixed-motive framework, once a complaining party 
establishes a prohibited motivation, the employer is permitted 
to prove it would have taken the same action in the absence of 
the impermissible factor.
    If the employer proves that it would have taken the same 
action in the absence of the impermissible factor, remedies are 
limited to declaratory relief, injunctive relief, and 
attorney's fees and costs directly related to pursuit of the 
mixed-motive claim. Damages and orders requiring admission, 
reinstatement, hiring, promotion, or payment are not available 
in this situation. If the employer is unable to prove that it 
would have taken the same action in absence of the 
impermissible factor, the employee is entitled to back pay, 
front pay or reinstatement, liquidated damages if the violation 
was willful, and injunctive relief.
            Sec. 2(b). Section 703 of the Civil Rights Act of 1964
    This section amends section 703 of the Civil Rights Act of 
1964 to add ``an activity protected by 704(a)'' to the list of 
unlawful employment practices that may be proven using a 
motivating factor framework, thereby reinstating the 
availability of the ``mixed-motive'' test for charges of 
retaliation under Title VII of the Civil Rights Act of 1964. 
Under section 704(a) it is unlawful for an employer or job 
training program to discriminate against an individual for 
making charges, testifying, assisting, or participating in 
enforcement proceedings regarding an unlawful employment 
practice under Title VII of the Civil Rights Act of 1964. 
Additionally, H.R. 1230 amends section 717 of the Civil Rights 
Act of 1964 by specifying that the ``mixed-motive'' framework 
also applies to unlawful employment cases involving federal 
employees.
            Sec. 2(c). Americans with Disabilities Act of 1990
    This section amends the ADA to codify the availability of 
the ``mixed-motive'' test that allows the complaining party to 
establish a claim by demonstrating that disability or 
participation in investigations, proceedings, or litigation 
under subsection (a) or (b) of section 503 of the ADA was a 
motivating factor for any alleged unlawful practice. It also 
clarifies that complainants are never required to prove that 
discrimination was the ``sole cause'' for their treatment on 
the job, and that any type and form of evidence normally 
admissible in a court can be used to establish a claim.
    Under the mixed-motive framework, once a complaining party 
establishes a prohibited motivation, the employer is allowed an 
opportunity to mitigate damages by proving he would have taken 
the same action in the absence of the impermissible factor.
    If the employer proves that it would have taken the same 
action in the absence of the impermissible factor, remedies are 
limited to declaratory relief, injunctive relief, and 
attorney's fees and costs directly related to pursuit of the 
mixed-motive claim. Damages and orders requiring admission, 
reinstatement, hiring, promotion, or payment are not available 
in this situation.
    If the employer is unable to prove that it would have taken 
the same action in absence of the impermissible factor, the 
employee is entitled to back pay, front pay or reinstatement, 
liquidated damages if the violation was willful, and injunctive 
relief.
            Sec. 2(d). Rehabilitation Act of 1973
    This section amends section 2(d) of the Rehabilitation Act 
of 1973 to incorporate by reference the changes made to the ADA 
in section 2(c) of the bill.

Sec. 3. Application

    This section states that the Act applies to all claims 
pending on or after the date of its enactment.

Sec 4. Severability

    This section provides that if any provision, portion of a 
provision, amendment, or their application is held invalid or 
found to be unconstitutional, the remainder of this Act shall 
not be affected.

                       Explanation of Amendments

    The amendments, including the amendment in the nature of a 
substitute, are explained in the descriptive portions of this 
report.

              Application of Law to the Legislative Branch

    Pursuant to section 102(b)(3) of the Congressional 
Accountability Act, Pub. L. No. 104-1, H.R. 1230, as amended, 
applies to terms and conditions of employment within the 
legislative branch because the four laws amended by H.R. 1230 
(ADA, ADEA, the Rehabilitation Act, and Title VII of the Civil 
Rights Act of 1964) are included within the list of laws 
applicable to the legislative branch enumerated in section 
102(a) of the Congressional Accountability Act.

                       Unfunded Mandate Statement

    Pursuant to section 423 of the Congressional Budget and 
Impoundment Control Act (as amended by section 101(a)(2) of the 
Unfunded Mandates Reform Act, Pub. L. 104-4), H.R. 1230, as 
amended, contains no intergovernmental or private-sector 
mandates as defined by the Unfunded Mandates Reform Act (UMRA). 
Section 4 of the Unfunded Mandates Reform Act excludes from the 
application of that act any legislative provisions that would 
establish or enforce statutory rights prohibiting 
discrimination ``on the basis of race, color, religion, sex, 
national origin, age, handicap, or disability.'' CBO has 
determined that this legislation falls within that exclusion 
because it would extend protections against discrimination 
based on age and disability in the workplace.

                           Earmark Statement

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1230 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as described in clauses 9(e), 9(f), and 9(g) of rule 
XXI.

                            Roll Call Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following roll call votes occurred during the Committee's 
consideration of H.R. 1230:


             Statement of Performance Goals and Objectives

    Pursuant to clause (3)(c) of rule XIII of the Rules of the 
House of Representatives, the goal of H.R. 1230 is to improve 
the lives of American workers and job seekers by restoring 
protections against age discrimination in the workplace. The 
legislation achieves this by reinstating the mixed-motive 
evidentiary threshold in age discrimination cases. The 
legislation also extends the mixed-motive evidentiary threshold 
to claims for disability discrimination under the ADA and the 
Rehabilitation Act, and anti-retaliation claims under Title VII 
of the Civil Rights Act of 1964.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of rule XIII of the Rules of the 
House of Representatives, the Committee states that no 
provision of H.R. 1230 establishes or reauthorizes a program of 
the Federal Government known to be duplicative of another 
federal program, a program that was included in any report from 
the Government Accountability Office to Congress pursuant to 
section 21 of Public Law 111-139, or a program related to a 
program identified in the most recent Catalog of Federal 
Domestic Assistance.

                                Hearings

    Pursuant to section 103(i) of H.Res. 6 for the 116th 
Congress, on May 21, 2019, the Committee held a legislative 
hearing entitled ``Eliminating Barriers to Employment: Opening 
Doors to Opportunity,'' which was used to consider H.R. 1230, 
among other bills. Relevant to H.R. 1230, the Committee heard 
testimony from Laurie McCann, Senior Attorney at AARP, 
Washington, DC. The Committee heard testimony about and 
discussed employment discrimination on the basis of age; how 
the Gross v. FBL Financial Services, Inc.\75\ decision made it 
more difficult to prove age discrimination under ADEA; and 
remedies that would provide more effective relief to victims of 
discrimination on the basis of age, including the provisions 
included in H.R. 1230.
---------------------------------------------------------------------------
    \75\Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).
---------------------------------------------------------------------------

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the descriptive portions of this report.

               New Budget Authority and CBO Cost Estimate

    Pursuant to clause 3(c)(2) of rule XIII of the Rules of the 
House of Representatives and section 308(a) of the 
Congressional Budget Act of 1974, and pursuant to clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 402 of the Congressional Budget Act 
of 1974, the Committee has received the following estimate for 
H.R. 1230 from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 16, 2019.
Hon. Bobby Scott,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1230, the 
Protecting Older Workers Against Discrimination Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

    
    

    H.R. 1230 would ease the standard of proof for age 
discrimination claims as well as for certain other employment 
discrimination and retaliation claims under Title VII of the 
Civil Rights Act of 1964, the Americans with Disabilities Act 
of 1990, and the Rehabilitation Act of 1973. Using information 
from the Equal Employment Opportunity Commission (EEOC), CBO 
estimates that the bill would increase the caseload related to 
age discrimination by 5 percent to 10 percent, or roughly 1,300 
additional claims per year and that the EEOC would need to hire 
about 20 new employees to handle the additional workload 
including training and outreach, at a cost of about $2 million 
annually over the 2020-2024 period. Such spending would be 
subject to the availability of appropriated funds. For fiscal 
year 2019, the Congress appropriated about $380 million for all 
of the EEOC's operations.
    Enacting the bill could require federal agencies to respond 
to claims, thereby affecting direct spending because some 
agencies are allowed to use fees, receipts from the sale of 
goods, and other collections to cover operating costs. CBO 
estimates that any net changes in direct spending by those 
agencies would be negligible because most of them can adjust 
amounts collected to reflect changes in operating costs.
    CBO has not reviewed H.R. 1230 for intergovernmental or 
private-sector mandates. Section 4 of the Unfunded Mandates 
Reform Act excludes from the application of that act any 
legislative provisions that would establish or enforce 
statutory rights prohibiting discrimination. CBO has determined 
that this legislation falls within that exclusion because it 
would extend protections against discrimination based on age 
and disability in the workplace.
    The CBO staff contacts for this estimate are Mark Grabowicz 
(for federal costs) and Lilia Ledezma (for mandates). The 
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

                        Committee Cost Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 1230. 
However, clause 3(d)(2)(B) of that rule provides that this 
requirement does not apply when the committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act of 1974.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, H.R. 1230, as reported, are shown as follows:

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

              AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967



           *       *       *       *       *       *       *
                   prohibition of age discrimination

  Sec. 4. (a) It shall be unlawful for an employer--
          (1) to fail or refuse to hire or to discharge any 
        individual or otherwise discriminate against any 
        individual with respect to his compensation, terms, 
        conditions, or privileges of employment, because of 
        such individual's age;
          (2) to limit, segregate, or classify his employees in 
        any way which would deprive or tend to deprive any 
        individual of employment opportunities or otherwise 
        adversely affect his status as an employee, because of 
        such individual's age; or
          (3) to reduce the wage rate of any employee in order 
        to comply with this Act.
  (b) It shall be unlawful for an employment agency to fail or 
refuse to refer for employment, or otherwise to discriminate 
against, any individual because of such individual's age, or to 
classify or refer for employment any individual on the basis of 
such individual's age.
  (c) It shall be unlawful for a labor organization--
          (1) to exclude or to expel from its membership, or 
        otherwise to discriminate against, any individual 
        because of his age;
          (2) to limit, segregate, or classify its membership, 
        or to classify or fail or refuse to refer for 
        employment any individual, in any way which would 
        deprive or tend to deprive any individual of employment 
        opportunities, or would limit such employment 
        opportunities or otherwise adversely affect his status 
        as an employee or as an applicant for employment, 
        because of such individual's age;
          (3) to cause or attempt to cause an employer to 
        discriminate against an individual in violation of this 
        section.
  (d) It shall be unlawful for an employer to discriminate 
against any of his employees or applicants for employment, for 
an employment agency to discriminate against any individual, or 
for a labor organization to discriminate against any member 
thereof or applicant for membership, because such individual, 
member or applicant for membership has opposed any practice 
made unlawful by this section, or because such individual, 
member or applicant for membership has made a charge, 
testified, assisted, or participated in any manner in an 
investigation, proceeding, or litigation under this Act.
  (e) It shall be unlawful for an employer, labor organization, 
or employment agency to print or publish, or cause to be 
printed or published, any notice or advertisement relating to 
employment by such an employer or membership in or any 
classification or referral for employment by such a labor 
organization, or relating to any classification or referral for 
employment by such an employment agency, indicating any 
preference, limitation, specification, or discrimination, based 
on age.
  (f) It shall not be unlawful for an employer, employment 
agency, or labor organization--
          (1) to take any action otherwise prohibited under 
        subsections (a), (b), (c), or (e) of this section where 
        age is a bona fide occupational qualification 
        reasonably necessary to the normal operation of the 
        particular business, or where the differentiation is 
        based on reasonable factors other than age, or where 
        such practices involve an employee in a workplace in a 
        foreign country, and compliance with such subsections 
        would cause such employer, or a corporation controlled 
        by such employer, to violate the laws of the country in 
        which such workplace is located;
          (2) to take any action otherwise prohibited under 
        subsection (a), (b), (c), or (e) of this section--
                  (A) to observe the terms of a bona fide 
                seniority system that is not intended to evade 
                the purposes of this Act, except that no such 
                seniority system shall require or permit the 
                involuntary retirement of any individual 
                specified by section 12(a) because of the age 
                of such individual; or
                  (B) to observe the terms of a bona fide 
                employee benefit plan--
                          (i) where, for each benefit or 
                        benefit package, the actual amount of 
                        payment made or cost incurred on behalf 
                        of an older worker is no less than that 
                        made or incurred on behalf of a younger 
                        worker, as permissible under section 
                        1625.10, title 29, Code of Federal 
                        Regulations (as in effect on June 22, 
                        1989); or
                          (ii) that is a voluntary early 
                        retirement incentive plan consistent 
                        with the relevant purpose or purposes 
                        of this Act.
        Notwithstanding clause (i) or (ii) of subparagraph (B), 
        no such employee benefit plan or voluntary early 
        retirement incentive plan shall excuse the failure to 
        hire any individual, and no such employee benefit plan 
        shall require or permit the involuntary retirement of 
        any individual specified by section 12(a), because of 
        the age of such individual. An employer, employment 
        agency, or labor organization acting under subparagraph 
        (A), or under clause (i) or (ii) of subparagraph (B), 
        shall have the burden of proving that such actions are 
        lawful in any civil enforcement proceeding brought 
        under this Act; or
          (3) to discharge or otherwise discipline an 
        individual for good cause.
  (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.
  (h)(1) If an employer controls a corporation whose place of 
incorporation is in a foreign country, any practice by such 
corporation prohibited under this section shall be presumed to 
be such practice by such employer.
  (2) The prohibitions of this section shall not apply where 
the employer is a foreign person not controlled by an American 
employer.
  (3) For the purpose of this subsection the determination of 
whether an employer controls a corporation shall be based upon 
the--
          (A) interrelation of operations,
          (B) common management,
          (C) centralized control of labor relations, and
          (D) common ownership or financial control,
of the employer and the corporation.
  (i)(1) Except as otherwise provided in this subsection, it 
shall be unlawful for an employer, an employment agency, a 
labor organization, or any combination thereof to establish or 
maintain an employee pension benefit plan which requires or 
permits--
          (A) in the case of a defined benefit plan, the 
        cessation of an employee's benefit accrual, or the 
        reduction of the rate of an employee's benefit accrual, 
        because of age, or
          (B) in the case of a defined contribution plan, the 
        cessation of allocations to an employee's account, or 
        the reduction of the rate at which amounts are 
        allocated to an employee's account, because of age.
  (2) Nothing in this section shall be construed to prohibit an 
employer, employment agency, or labor organization from 
observing any provision of an employee pension benefit plan to 
the extent that such provision imposes (without regard to age) 
a limitation on the amount of benefits that the plan provides 
or a limitation on the number of years of service or years of 
participation which are taken into account for purposes of 
determining benefit accrual under the plan.
  (3) In the case of any employee who, as of the end of any 
plan year under a defined benefit plan, has attained normal 
retirement age under such plan--
          (A) if distribution of benefits under such plan with 
        respect to such employee has commenced as of the end of 
        such plan year, then any requirement of this subsection 
        for continued accrual of benefits under such plan with 
        respect to such employee during such plan year shall be 
        treated as satisfied to the extent of the actuarial 
        equivalent of in-service distribution of benefits, and
          (B) if distribution of benefits under such plan with 
        respect to such employee has not commenced as of the 
        end of such year in accordance with section 206(a)(3) 
        of the Employee Retirement Income Security Act of 1974 
        and section 401(a)(14)(C) of the Internal Revenue Code 
        of 1986, and the payment of benefits under such plan 
        with respect to such employee is not suspended during 
        such plan year pursuant to section 203(a)(3)(B) of the 
        Employee Retirement Income Security Act of 1974 or 
        section 411(a)(3)(B) of the Internal Revenue Code of 
        1986, then any requirement of this subsection for 
        continued accrual of benefits under such plan with 
        respect to such employee during such plan year shall be 
        treated as satisfied to the extent of any adjustment in 
        the benefit payable under the plan during such plan 
        year attributable to the delay in the distribution of 
        benefits after the attainment of normal retirement age.
The provisions of this paragraph shall apply in accordance with 
regulations of the Secretary of the Treasury. Such regulations 
shall provide for the application of the preceding provisions 
of this paragraph to all employee pension benefit plans subject 
to this subsection and may provide for the application of such 
provisions, in the case of any such employee, with respect to 
any period of time within a plan year.
  (4) Compliance with the requirements of this subsection with 
respect to an employee pension benefit plan shall constitute 
compliance with the requirements of this section relating to 
benefit accrual under such plan.
  (5) Paragraph (1) shall not apply with respect to any 
employee who is a highly compensated employee (within the 
meaning of section 414(q) of the International Revenue Code of 
1986) to the extent provided in regulations prescribed by the 
Secretary of the Treasury for purposes of precluding 
discrimination in favor of highly compensated employees within 
the meaning of subchapter D of chapter 1 of the Internal 
Revenue Code of 1986.
  (6) A plan shall not be treated as failing to meet the 
requirements of paragraph (1) solely because the subsidized 
portion of any early retirement benefit is disregarded in 
determining benefit accruals or it is a plan permitted by 
subsection (m)..
  (7) Any regulations prescribed by the Secretary of the 
Treasury pursuant to clause (v) of section 411(b)(1)(H) of the 
Internal Revenue Code of 1986 and subparagraphs (C) and (D) of 
section 411(b)(2) of such Code shall apply with respect to the 
requirements of this subsection in the same manner and to the 
same extent as such regulations apply with respect to the 
requirements of such sections 411(b)(1)(H) and 411(b)(2).
  (8) A plan shall not be treated as failing to meet the 
requirements of this section solely because such plan provides 
a normal retirement age described in section 3(24)(B) of the 
Employee Retirement Income Security Act of 1974 and section 
411(a)(8)(B) of the Internal Revenue Code of 1986.
  (9) For purposes of this subsection--
          (A) The terms ``employee pension benefit plan'', 
        ``defined benefit plan'', ``defined contribution 
        plan'', and ``normal retirement age'' have the meanings 
        provided such terms in section 3 of the Employee 
        Retirement Income Security Act of 1974 (29 U.S.C. 
        1002).
          (B) The term ``compensation'' has the meaning 
        provided by section 414(s) of the Internal Revenue Code 
        of 1986.
          (10) Special rules relating to age.--
                  (A) Comparison to similarly situated younger 
                individual.--
                          (i) In general.--A plan shall not be 
                        treated as failing to meet the 
                        requirements of paragraph (1) if a 
                        participant's accrued benefit, as 
                        determined as of any date under the 
                        terms of the plan, would be equal to or 
                        greater than that of any similarly 
                        situated, younger individual who is or 
                        could be a participant.
                          (ii) Similarly situated.--For 
                        purposes of this subparagraph, a 
                        participant is similarly situated to 
                        any other individual if such 
                        participant is identical to such other 
                        individual in every respect (including 
                        period of service, compensation, 
                        position, date of hire, work history, 
                        and any other respect) except for age.
                          (iii) Disregard of subsidized early 
                        retirement benefits.--In determining 
                        the accrued benefit as of any date for 
                        purposes of this clause, the subsidized 
                        portion of any early retirement benefit 
                        or retirement-type subsidy shall be 
                        disregarded.
                          (iv) Accrued benefit.--For purposes 
                        of this subparagraph, the accrued 
                        benefit may, under the terms of the 
                        plan, be expressed as an annuity 
                        payable at normal retirement age, the 
                        balance of a hypothetical account, or 
                        the current value of the accumulated 
                        percentage of the employee's final 
                        average compensation.
                  (B) Applicable defined benefit plans.--
                          (i) Interest credits.--
                                  (I) In general.--An 
                                applicable defined benefit plan 
                                shall be treated as failing to 
                                meet the requirements of 
                                paragraph (1) unless the terms 
                                of the plan provide that any 
                                interest credit (or an 
                                equivalent amount) for any plan 
                                year shall be at a rate which 
                                is not greater than a market 
                                rate of return. A plan shall 
                                not be treated as failing to 
                                meet the requirements of this 
                                subclause merely because the 
                                plan provides for a reasonable 
                                minimum guaranteed rate of 
                                return or for a rate of return 
                                that is equal to the greater of 
                                a fixed or variable rate of 
                                return.
                                  (II) Preservation of 
                                capital.--An interest credit 
                                (or an equivalent amount) of 
                                less than zero shall in no 
                                event result in the account 
                                balance or similar amount being 
                                less than the aggregate amount 
                                of contributions credited to 
                                the account.
                                  (III) Market rate of 
                                return.--The Secretary of the 
                                Treasury may provide by 
                                regulation for rules governing 
                                the calculation of a market 
                                rate of return for purposes of 
                                subclause (I) and for 
                                permissible methods of 
                                crediting interest to the 
                                account (including fixed or 
                                variable interest rates) 
                                resulting in effective rates of 
                                return meeting the requirements 
                                of subclause (I). In the case 
                                of a governmental plan (as 
                                defined in the first sentence 
                                of section 414(d) of the 
                                Internal Revenue Code of 1986), 
                                a rate of return or a method of 
                                crediting interest established 
                                pursuant to any provision of 
                                Federal, State, or local law 
                                (including any administrative 
                                rule or policy adopted in 
                                accordance with any such law) 
                                shall be treated as a market 
                                rate of return for purposes of 
                                subclause (I) and a permissible 
                                method of crediting interest 
                                for purposes of meeting the 
                                requirements of subclause (I), 
                                except that this sentence shall 
                                only apply to a rate of return 
                                or method of crediting interest 
                                if such rate or method does not 
                                violate any other requirement 
                                of this Act.
                          (ii) Special rule for plan 
                        conversions.--If, after June 29, 2005, 
                        an applicable plan amendment is 
                        adopted, the plan shall be treated as 
                        failing to meet the requirements of 
                        paragraph (1)(H) unless the 
                        requirements of clause (iii) are met 
                        with respect to each individual who was 
                        a participant in the plan immediately 
                        before the adoption of the amendment.
                          (iii) Rate of benefit accrual.--
                        Subject to clause (iv), the 
                        requirements of this clause are met 
                        with respect to any participant if the 
                        accrued benefit of the participant 
                        under the terms of the plan as in 
                        effect after the amendment is not less 
                        than the sum of--
                                  (I) the participant's accrued 
                                benefit for years of service 
                                before the effective date of 
                                the amendment, determined under 
                                the terms of the plan as in 
                                effect before the amendment, 
                                plus
                                  (II) the participant's 
                                accrued benefit for years of 
                                service after the effective 
                                date of the amendment, 
                                determined under the terms of 
                                the plan as in effect after the 
                                amendment.
                          (iv) Special rules for early 
                        retirement subsidies.--For purposes of 
                        clause (iii)(I), the plan shall credit 
                        the accumulation account or similar 
                        amount with the amount of any early 
                        retirement benefit or retirement-type 
                        subsidy for the plan year in which the 
                        participant retires if, as of such 
                        time, the participant has met the age, 
                        years of service, and other 
                        requirements under the plan for 
                        entitlement to such benefit or subsidy.
                          (v) Applicable plan amendment.--For 
                        purposes of this subparagraph--
                                  (I) In general.--The term 
                                ``applicable plan amendment'' 
                                means an amendment to a defined 
                                benefit plan which has the 
                                effect of converting the plan 
                                to an applicable defined 
                                benefit plan.
                                  (II) Special rule for 
                                coordinated benefits.--If the 
                                benefits of 2 or more defined 
                                benefit plans established or 
                                maintained by an employer are 
                                coordinated in such a manner as 
                                to have the effect of the 
                                adoption of an amendment 
                                described in subclause (I), the 
                                sponsor of the defined benefit 
                                plan or plans providing for 
                                such coordination shall be 
                                treated as having adopted such 
                                a plan amendment as of the date 
                                such coordination begins.
                                  (III) Multiple amendments.--
                                The Secretary of the Treasury 
                                shall issue regulations to 
                                prevent the avoidance of the 
                                purposes of this subparagraph 
                                through the use of 2 or more 
                                plan amendments rather than a 
                                single amendment.
                                  (IV) Applicable defined 
                                benefit plan.--For purposes of 
                                this subparagraph, the term 
                                ``applicable defined benefit 
                                plan'' has the meaning given 
                                such term by section 203(f)(3) 
                                of the Employee Retirement 
                                Income Security Act of 1974.
                          (vi) Termination requirements.--An 
                        applicable defined benefit plan shall 
                        not be treated as meeting the 
                        requirements of clause (i) unless the 
                        plan provides that, upon the 
                        termination of the plan--
                                  (I) if the interest credit 
                                rate (or an equivalent amount) 
                                under the plan is a variable 
                                rate, the rate of interest used 
                                to determine accrued benefits 
                                under the plan shall be equal 
                                to the average of the rates of 
                                interest used under the plan 
                                during the 5-year period ending 
                                on the termination date, and
                                  (II) the interest rate and 
                                mortality table used to 
                                determine the amount of any 
                                benefit under the plan payable 
                                in the form of an annuity 
                                payable at normal retirement 
                                age shall be the rate and table 
                                specified under the plan for 
                                such purpose as of the 
                                termination date, except that 
                                if such interest rate is a 
                                variable rate, the interest 
                                rate shall be determined under 
                                the rules of subclause (I).
                  (C) Certain offsets permitted.--A plan shall 
                not be treated as failing to meet the 
                requirements of paragraph (1) solely because 
                the plan provides offsets against benefits 
                under the plan to the extent such offsets are 
                allowable in applying the requirements of 
                section 401(a) of the Internal Revenue Code of 
                1986.
                  (D) Permitted disparities in plan 
                contributions or benefits.--A plan shall not be 
                treated as failing to meet the requirements of 
                paragraph (1) solely because the plan provides 
                a disparity in contributions or benefits with 
                respect to which the requirements of section 
                401(l) of the Internal Revenue Code of 1986 are 
                met.
                  (E) Indexing permitted.--
                          (i) In general.--A plan shall not be 
                        treated as failing to meet the 
                        requirements of paragraph (1) solely 
                        because the plan provides for indexing 
                        of accrued benefits under the plan.
                          (ii) Protection against loss.--Except 
                        in the case of any benefit provided in 
                        the form of a variable annuity, clause 
                        (i) shall not apply with respect to any 
                        indexing which results in an accrued 
                        benefit less than the accrued benefit 
                        determined without regard to such 
                        indexing.
                          (iii) Indexing.--For purposes of this 
                        subparagraph, the term ``indexing'' 
                        means, in connection with an accrued 
                        benefit, the periodic adjustment of the 
                        accrued benefit by means of the 
                        application of a recognized investment 
                        index or methodology.
                  (F) Early retirement benefit or retirement-
                type subsidy.--For purposes of this paragraph, 
                the terms ``early retirement benefit'' and 
                ``retirement-type subsidy'' have the meaning 
                given such terms in section 203(g)(2)(A) of the 
                Employee Retirement Income Security Act of 
                1974.
                  (G) Benefit accrued to date.--For purposes of 
                this paragraph, any reference to the accrued 
                benefit shall be a reference to such benefit 
                accrued to date.
  (j) It shall not be unlawful for an employer which is a 
State, a political subdivision of a State, an agency or 
instrumentality of a State or a political subdivision of a 
State, or an interstate agency to fail or refuse to hire or to 
discharge any individual because of such individual's age if 
such action is taken--
          (1) with respect to the employment of an individual 
        as a firefighter or as a law enforcement officer, the 
        employer has complied with section 3(d)(2) of the Age 
        Discrimination in Employment Amendments of 1996 if the 
        individual was discharged after the date described in 
        such section, and the individual has attained--
                  (A) the age of hiring or retirement, 
                respectively, in effect under applicable State 
                or local law on March 3, 1983; or
                  (B)(i) if the individual was not hired, the 
                age of hiring in effect on the date of such 
                failure or refusal to hire under applicable 
                State or local law enacted after the date of 
                enactment of the Age Discrimination in 
                Employment Amendments of 1996; or
                  (ii) if applicable State or local law was 
                enacted after the date of enactment of the Age 
                Discrimination in Employment Amendments of 1996 
                and the individual was discharged, the higher 
                of--
                          (I) the age of retirement in effect 
                        on the date of such discharge under 
                        such law; and
                          (II) age 55; and
          (2) pursuant to a bona fide hiring or retirement plan 
        that is not a subterfuge to evade the purposes of this 
        Act.
  (k) A seniority system or employee benefit plan shall comply 
with this Act regardless of the date of adoption of such system 
or plan.
  (l) Notwithstanding clause (i) or (ii) of subsection 
(f)(2)(B)--
  (1)(A) It shall not be a violation of subsection (a), (b), 
(c), or (e) solely because--
          (i) an employee pension benefit plan (as defined in 
        section 3(2) of the Employee Retirement Income Security 
        Act of 1974 (29 U.S.C. 1002(2))) provides for the 
        attainment of a minimum age as a condition of 
        eligibility for normal or early retirement benefits; or
          (ii) a defined benefit plan (as defined in section 
        3(35) of such Act) provides for--
                  (I) payments that constitute the subsidized 
                portion of an early retirement benefit; or
                  (II) social security supplements for plan 
                participants that commence before the age and 
                terminate at the age (specified by the plan) 
                when participants are eligible to receive 
                reduced or unreduced old-age insurance benefits 
                under title II of the Social Security Act (42 
                U.S.C. 401 et seq.), and that do not exceed 
                such old-age insurance benefits.
          (B) A voluntary early retirement incentive plan 
        that--
                  (i) is maintained by--
                          (I) a local educational agency (as 
                        defined in section 8101 of the 
                        Elementary and Secondary Education Act 
                        of 1965), or
                          (II) an education association which 
                        principally represents employees of 1 
                        or more agencies described in subclause 
                        (I) and which is described in section 
                        501(c) (5) or (6) of the Internal 
                        Revenue Code of 1986 and exempt from 
                        taxation under section 501(a) of such 
                        Code, and
                  (ii) makes payments or supplements described 
                in subclauses (I) and (II) of subparagraph 
                (A)(ii) in coordination with a defined benefit 
                plan (as so defined) maintained by an eligible 
                employer described in section 457(e)(1)(A) of 
                such Code or by an education association 
                described in clause (i)(II),
        shall be treated solely for purposes of subparagraph 
        (A)(ii) as if it were a part of the defined benefit 
        plan with respect to such payments or supplements. 
        Payments or supplements under such a voluntary early 
        retirement incentive plan shall not constitute 
        severance pay for purposes of paragraph (2).
  (2)(A) It shall not be a violation of subsection (a), (b), 
(c), or (e) solely because following a contingent event 
unrelated to age--
          (i) the value of any retiree health benefits received 
        by an individual eligible for an immediate pension;
          (ii) the value of any additional pension benefits 
        that are made available solely as a result of the 
        contingent event unrelated to age and following which 
        the individual is eligible for not less than an 
        immediate and unreduced pension; or
          (iii) the values described in both clauses (i) and 
        (ii),
are deducted from severance pay made available as a result of 
the contingent event unrelated to age.
  (B) For an individual who receives immediate pension benefits 
that are actuarially reduced under subparagraph (A)(i), the 
amount of the deduction available pursuant to subparagraph 
(A)(i) shall be reduced by the same percentage as the reduction 
in the pension benefits.
  (C) For purposes of this paragraph, severance pay shall 
include that portion of supplemental unemployment compensation 
benefits (as described in section 501(c)(17) of the Internal 
Revenue Code of 1986) that--
          (i) constitutes additional benefits of up to 52 
        weeks;
          (ii) has the primary purpose and effect of continuing 
        benefits until an individual becomes eligible for an 
        immediate and unreduced pension; and
          (iii) is discontinued once the individual becomes 
        eligible for an immediate and unreduced pension.
  (D) For purposes of this paragraph and solely in order to 
make the deduction authorized under this paragraph, the term 
``retiree health benefits'' means benefits provided pursuant to 
a group health plan covering retirees, for which (determined as 
of the contingent event unrelated to age)--
          (i) the package of benefits provided by the employer 
        for the retirees who are below age 65 is at least 
        comparable to benefits provided under title XVIII of 
        the Social Security Act (42 U.S.C. 1395 et seq.);
          (ii) the package of benefits provided by the employer 
        for the retirees who are age 65 and above is at least 
        comparable to that offered under a plan that provides a 
        benefit package with one-fourth the value of benefits 
        provided under title XVIII of such Act; or
          (iii) the package of benefits provided by the 
        employer is as described in clauses (i) and (ii).
  (E)(i) If the obligation of the employer to provide retiree 
health benefits is of limited duration, the value for each 
individual shall be calculated at a rate of $3,000 per year for 
benefit years before age 65, and $750 per year for benefit 
years beginning at age 65 and above.
  (ii) If the obligation of the employer to provide retiree 
health benefits is of unlimited duration, the value for each 
individual shall be calculated at a rate of $48,000 for 
individuals below age 65, and $24,000 for individuals age 65 
and above.
  (iii) The values described in clauses (i) and (ii) shall be 
calculated based on the age of the individual as of the date of 
the contingent event unrelated to age. The values are effective 
on the date of enactment of this subsection, and shall be 
adjusted on an annual basis, with respect to a contingent event 
that occurs subsequent to the first year after the date of 
enactment of this subsection, based on the medical component of 
the Consumer Price Index for all-urban consumers published by 
the Department of Labor.
  (iv) If an individual is required to pay a premium for 
retiree health benefits, the value calculated pursuant to this 
subparagraph shall be reduced by whatever percentage of the 
overall premium the individual is required to pay.
  (F) If an employer that has implemented a deduction pursuant 
to subparagraph (A) fails to fulfill the obligation described 
in subparagraph (E), any aggrieved individual may bring an 
action for specific performance of the obligation described in 
subparagraph (E). The relief shall be in addition to any other 
remedies provided under Federal or State law.
  (3) It shall not be a violation of subsection (a), (b), (c), 
or (e) solely because an employer provides a bona fide employee 
benefit plan or plans under which long-term disability benefits 
received by an individual are reduced by any pension benefits 
(other than those attributable to employee contributions)--
          (A) paid to the individual that the individual 
        voluntarily elects to receive; or
          (B) for which an individual who has attained the 
        later of age 62 or normal retirement age is eligible.
  (m) Notwithstanding subsection (f)(2)(B), it shall not be a 
violation of subsection (a), (b), (c), or (e) solely because a 
plan of an institution of higher education (as defined in 
section 101 of the Higher Education Act of 1965) offers 
employees who are serving under a contract of unlimited tenure 
(or similar arrangement providing for unlimited tenure) 
supplemental benefits upon voluntary retirement that are 
reduced or eliminated on the basis of age, if--
          (1) such institution does not implement with respect 
        to such employees any age-based reduction or cessation 
        of benefits that are not such supplemental benefits, 
        except as permitted by other provisions of this Act;
          (2) such supplemental benefits are in addition to any 
        retirement or severance benefits which have been 
        offered generally to employees serving under a contract 
        of unlimited tenure (or similar arrangement providing 
        for unlimited tenure), independent of any early 
        retirement or exit-incentive plan, within the preceding 
        365 days; and
          (3) any employee who attains the minimum age and 
        satisfies all non-age-based conditions for receiving a 
        benefit under the plan has an opportunity lasting not 
        less than 180 days to elect to retire and to receive 
        the maximum benefit that could then be elected by a 
        younger but otherwise similarly situated employee, and 
        the plan does not require retirement to occur sooner 
        than 180 days after such election.

           *       *       *       *       *       *       *


             recordkeeping, investigation, and enforcement

  Sec. 7. (a) The Secretary shall have the power to make 
investigations and require the keeping of records necessary or 
appropriate for the administration of this Act in accordance 
with the powers and procedures provided in sections 9 and 11 of 
the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 209 
and 211).
  (b) [The] (1) The  provisions of this Act shall be enforced 
in accordance with the powers, remedies, and procedures 
provided in sections 11(b), 16 (except for subsection (a) 
thereof), and 17 of the Fair Labor Standards Act of 1938, as 
amended (29 U.S.C. 211(b), 216, 217), and subsection (c) of 
this section. Any act prohibited under section 4 of this Act 
shall be deemed to be a prohibited act under section 15 of the 
Fair Labor Standards Act of 1938, as amended (29 U.S.C. 215). 
[Amounts]
  (2) Amounts  owing to a person as a result of a violation of 
this Act shall be deemed to be unpaid minimum wages or unpaid 
overtime compensation for purposes of sections 16 and 17 of the 
Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216, 
217): Provided, That liquidated damages shall be payable only 
in cases of willful violations of this Act. In any action 
brought to enforce this Act the court shall have jurisdiction 
to grant such legal or equitable relief as may be appropriate 
to effectuate the purposes of this Act, including without 
limitation judgments compelling employment, reinstatement or 
promotion, or enforcing the liability for amounts deemed to be 
unpaid minimum wages or unpaid overtime compensation under this 
section. [Before]
  (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. 
  (4) Before  instituting any action under this section, the 
Secretary shall attempt to eliminate the discriminatory 
practice or practices alleged, and to effect voluntary 
compliance with the requirements of this Act through informal 
methods of conciliation, conference, and persuasion.
  (c)(1) [Any] Subject to subsection (b)(3), any person 
aggrieved may bring a civil action in any court of competent 
jurisdiction for such legal or equitable relief as will 
effectuate the purposes of this Act: Provided, That the right 
of any person to bring such action shall terminate upon the 
commencement of an action by the Secretary to enforce the right 
of such employee under this Act.
  (2) In an action brought under paragraph (1), a person shall 
be entitled to a trial by jury of any issue of fact in any such 
action for recovery of amounts owing as a result of a violation 
of this Act, regardless of whether equitable relief is sought 
by any party in such action.
  (d) No civil action may be commenced by an individual under 
this section until 60 days after a charge alleging unlawful 
discrimination has been filed with the Secretary. Such a charge 
shall be filed--
          (1) within 180 days after the alleged unlawful 
        practice occurred; or
          (2) in a case to which section 14(b) applies, within 
        300 days after the alleged unlawful practice occurred, 
        or within 30 days after receipt by the individual of 
        notice of termination of proceedings under State law, 
        whichever is earlier.
  (2) Upon receiving such a charge, the Secretary shall 
promptly notify all persons named in such charge as prospective 
defendants in the action and shall promptly seek to eliminate 
any alleged unlawful practice by informal methods of 
conciliation, conference, and persuasion.
  (3) For purposes of this section, an unlawful practice 
occurs, with respect to discrimination in compensation in 
violation of this Act, when a discriminatory compensation 
decision or other practice is adopted, when a person becomes 
subject to a discriminatory compensation decision or other 
practice, or when a person is affected by application of a 
discriminatory compensation decision or other practice, 
including each time wages, benefits, or other compensation is 
paid, resulting in whole or in part from such a decision or 
other practice.
  (e) Section 10 of the Portal-to-Portal Act of 1947 shall 
apply to actions under this Act. If a charge filed with the 
Commission under this Act is dismissed or the proceedings of 
the Commission are otherwise terminated by the Commission, the 
Commission shall notify the person aggrieved. A civil action 
may be brought under this section by a person defined in 
section 11(a) against the respondent named in the charge within 
90 days after the date of the receipt of such notice.
  (f)(1) An individual may not waive any right or claim under 
this Act unless the waiver is knowing and voluntary. Except as 
provided in paragraph (2), a waiver may not be considered 
knowing and voluntary unless at a minimum--
          (A) the waiver is part of an agreement between the 
        individual and the employer that is written in a manner 
        calculated to be understood by such individual, or by 
        the average individual eligible to participate;
          (B) the waiver specifically refers to rights or 
        claims arising under this Act;
          (C) the individual does not waive rights or claims 
        that may arise after the date the waiver is executed;
          (D) the individual waives rights or claims only in 
        exchange for consideration in addition to anything of 
        value to which the individual already is entitled;
          (E) the individual is advised in writing to consult 
        with an attorney prior to executing the agreement;
          (F)(i) the individual is given a period of at least 
        21 days within which to consider the agreement; or
          (ii) if a waiver is requested in connection with an 
        exit incentive or other employment termination program 
        offered to a group or class of employees, the 
        individual is given a period of at least 45 days within 
        which to consider the agreement;
          (G) the agreement provides that for a period of at 
        least 7 days following the execution of such agreement, 
        the individual may revoke the agreement, and the 
        agreement shall not become effective or enforceable 
        until the revocation period has expired;
          (H) if a waiver is requested in connection with an 
        exit incentive or other employment termination program 
        offered to a group or class of employees, the employer 
        (at the commencement of the period specified in 
        subparagraph (F)) informs the individual in writing in 
        a manner calculated to be understood by the average 
        individual eligible to participate, as to--
                  (i) any class, unit, or group of individuals 
                covered by such program, any eligibility 
                factors for such program, and any time limits 
                applicable to such program; and
                  (ii) the job titles and ages of all 
                individuals eligible or selected for the 
                program, and the ages of all individuals in the 
                same job classification or organizational unit 
                who are not eligible or selected for the 
                program.
  (2) A waiver in settlement of a charge filed with the Equal 
Employment Opportunity Commission, or an action filed in court 
by the individual or the individual's representative, alleging 
age discrimination of a kind prohibited under section 4 or 15 
may not be considered knowing and voluntary unless at a 
minimum--
          (A) subparagraphs (A) through (E) of paragraph (1) 
        have been met; and
          (B) the individual is given a reasonable period of 
        time within which to consider the settlement agreement.
  (3) In any dispute that may arise over whether any of the 
requirements, conditions, and circumstances set forth in 
subparagraph (A), (B), (C), (D), (E), (F), (G), or (H) of 
paragraph (1), or subparagraph (A) or (B) of paragraph (2), 
have been met, the party asserting the validity of a waiver 
shall have the burden of proving in a court of competent 
jurisdiction that a waiver was knowing and voluntary pursuant 
to paragraph (1) or (2).
  (4) No waiver agreement may affect the Commission's rights 
and responsibilities to enforce this Act. No waiver may be used 
to justify interfering with the protected right of an employee 
to file a charge or participate in an investigation or 
proceeding conducted by the Commission.

           *       *       *       *       *       *       *


                              definitions

  Sec. 11. For the purposes of this Act--
  (a) The term ``person'' means one or more individuals, 
partnerships, associations, labor organizations, corporations, 
business trusts, legal representatives, or any organized groups 
of persons.
  (b) The term ``employer'' means a person engaged in an 
industry affecting commerce who has twenty or more employees 
for each working day in each of twenty or more calendar weeks 
in the current or preceding calendar year: Provided, That prior 
to June 30, 1968, employers having fewer than fifty employees 
shall not be considered employers. The term also means (1) any 
agent of such a person, and (2) a State or political 
subdivision of a State and any agency or instrumentality of a 
State or a political subdivision of a State, and any interstate 
agency, but such term does not include the United States, or a 
corporation wholly owned by the Government of the United 
States.
  (c) The term ``employment agency'' means any person regularly 
undertaking with or without compensation to procure employees 
for an employer and includes an agent of such a person; but 
shall not include an agency of the United States.
  (d) The term ``labor organization'' means a labor 
organization engaged in an industry affecting commerce, and any 
agent of such an organization, and includes any organization of 
any kind, any agency, or employee representation committee, 
group, association, or plan so engaged in which employees 
participate and which exists for the purpose, in whole or in 
part, of dealing with employers concerning grievances, labor 
disputes, wages, rates of pay, hours, or other terms or 
conditions of employment, and any conference, general 
committee, joint or system board, or joint council so engaged 
which is subordinate to a national or international labor 
organization.
  (e) A labor organization shall be deemed to be engaged in an 
industry affecting commerce if (1) it maintains or operates a 
hiring hall or hiring office which procures employees for an 
employer or procures for employees opportunities to work for an 
employer, or (2) the number of its members (or, where it is a 
labor organization composed of other labor organizations or 
their representatives, if the aggregate number of the members 
of such other labor organization) is fifty or more prior to 
July 1, 1968, or twenty-five or more on or after July 1, 1968, 
and such labor organization--
          (1) is the certified representative of employees 
        under the provisions of the National Labor Relations 
        Act, as amended, or the Railway Labor Act, as amended; 
        or
          (2) although not certified, is a national or 
        international labor organization or a local labor 
        organization recognized or acting as the representative 
        of employees of an employer or employers engaged in an 
        industry affecting commerce; or
          (3) has chartered a local labor organization or 
        subsidiary body which is representing or actively 
        seeking to represent employees of employers within the 
        meaning of paragraph (1) or (2); or
          (4) has been chartered by a labor organization 
        representing or actively seeking to represent employees 
        within the meaning of paragraph (1) or (2) as the local 
        or subordinate body through which such employees may 
        enjoy membership or become affiliated with such labor 
        organization; or
          (5) is a conference, general committee, joint or 
        system board, or joint council subordinate to a 
        national or international labor organization, which 
        includes a labor organization engaged in an industry 
        affecting commerce within the meaning of any of the 
        preceding paragraphs of this subsection.
  (f) The term ``employee'' means an individual employed by any 
employer except that the term ``employee'' shall not include 
any person elected to public office in any State or political 
subdivision of any State by the qualified voters thereof, or 
any person chosen by such officer to be on such officer's 
personal staff, or an appointee on the policymaking level or an 
immediate adviser with respect to the exercise of the 
constitutional or legal powers of the office. The exemption set 
forth in the preceding sentence shall not include employees 
subject to the civil service laws of a State government, 
governmental agency, or political subdivision. The term 
``employee'' includes any individual who is a citizen of the 
United States employed by an employer in a workplace in a 
foreign country.
  (g) The term ``commerce'' means trade, traffic, commerce, 
transportation, transmission, or communication among the 
several States; or between a State and any place outside 
thereof; or within the District of Columbia, or a possession of 
the United States; or between points in the same State but 
through a point outside thereof.
  (h) The term ``industry affecting commerce'' means any 
activity, business, or industry in commerce or in which a labor 
dispute would hinder or obstruct commerce or the free flow of 
commerce and includes any activity or industry ``affecting 
commerce'' within the meaning of the Labor-Management Reporting 
and Disclosure Act of 1959.
  (i) The term ``State'' includes a State of the United States, 
the District of Columbia, Puerto Rico, the Virgin Islands, 
American Samoa, Guam, Wake Island, the Canal Zone, and Outer 
Continental Shelf lands defined in the Outer Continental Shelf 
Lands Act.
  (j) The term ``firefighter'' means an employee, the duties of 
whose position are primarily to perform work directly connected 
with the control and extinguishment of fires or the maintenance 
and use of firefighting apparatus and equipment, including an 
employee engaged in this activity who is transferred to a 
supervisory or administrative position.
  (k) The term ``law enforcement officer'' means an employee, 
the duties of whose position are primarily the investigation, 
apprehension, or detention of individuals suspected or 
convicted of offenses against the criminal laws of a State, 
including an employee engaged in this activity who is 
transferred to a supervisory or administrative position. For 
the purpose of this subsection, ``detention'' includes the 
duties of employees assigned to guard individuals incarcerated 
in any penal institution.
  (l) The term ``compensation, terms, conditions, or privileges 
of employment'' encompasses all employee benefits, including 
such benefits provided pursuant to a bona fide employee benefit 
plan.
  (m) The term ``demonstrates'' means meets the burdens of 
production and persuasion.

           *       *       *       *       *       *       *


  nondiscrimination on account of age in federal government employment

  Sec. 15. (a) All personnel actions affecting employees or 
applicants for employment who are at least 40 years of age 
(except personnel actions with regard to aliens employed 
outside the limits of the United States) in military 
departments as defined in section 102 of title 5, United States 
Code, in executive agencies as defined in section 105 of title 
5, United States Code (including employees and applicants for 
employment who are paid from nonappropriated funds), in the 
United States Postal Service and the Postal Rate Commission, in 
those units in the government of the District of Columbia 
having positions in the competitive service, and in those units 
of the judicial branch of the Federal Government having 
positions in the competitive service, in the Smithsonian 
Institution, and in the Government Printing Office, the General 
Accounting Office, and the Library of Congress shall be made 
free from any discrimination based on age.
  (b) Except as otherwise provided in this subsection, the 
Civil Service Commission is authorized to enforce the 
provisions of subsection (a) through appropriate remedies, 
including reinstatement or hiring of employees with or without 
backpay, as will effectuate the policies of this section. The 
Civil Service Commission shall issue such rules, regulations, 
orders, and instructions as it deems necessary and appropriate 
to carry out its responsibilities under this section. The Civil 
Service Commission shall--
          (1) be responsible for the review and evaluation of 
        the operation of all agency programs designed to carry 
        out the policy of this section, periodically obtaining 
        and publishing (on at least a semiannual basis) 
        progress reports from each department, agency, or unit 
        referred to in subsection (a);
          (2) consult with and solicit the recommendations of 
        interested individuals, groups, and organizations 
        relating to nondiscrimination in employment on account 
        of age; and
          (3) provide for the acceptance and processing of 
        complaints of discrimination in Federal employment on 
        account of age.
The head of each such department, agency, or unit shall comply 
with such rules, regulations, orders, and instructions of the 
Civil Service Commission which shall include a provision that 
an employee or applicant for employment shall be notified of 
any final action taken on any complaint of discrimination filed 
by him thereunder. Reasonable exemptions to the provisions of 
this section may be established by the Commission but only when 
the Commission has established a maximum age requirement on the 
basis of a determination that age is a bona fide occupational 
qualification necessary to the performance of the duties of the 
position. With respect to employment in the Library of 
Congress, authorities granted in this subsection to the Civil 
Service Commission shall be exercised by the Librarian of 
Congress.
  (c) Any person aggrieved may bring a civil action in any 
Federal district court of competent jurisdiction for such legal 
or equitable relief as will effectuate the purposes of this 
Act.
  (d) When the individual has not filed a complaint concerning 
age discrimination with the Commission, no civil action may be 
commenced by any individual under this section until the 
individual has given the Commission not less than thirty days' 
notice of an intent to file such action. Such notice shall be 
filed within one hundred and eighty days after the alleged 
unlawful practice occurred. Upon receiving a notice of intent 
to sue, the Commission shall promptly notify all persons named 
therein as prospective defendants in the action and take any 
appropriate action to assure the elimination of any unlawful 
practice.
  (e) Nothing contained in this section shall relieve any 
Government agency or official of the responsibility to assure 
nondiscrimination on account of age in employment as required 
under any provision of Federal law.
  (f) Any personnel action of any department, agency, or other 
entity referred to in subsection (a) of this section shall not 
be subject to, or affected by, any provision of this Act, other 
than the provisions of sections 7(d)(3) and 12(b) of this Act 
and the provisions of this section.
  (g)(1) The Civil Service Commission shall undertake a study 
relating to the effects of the amendments made to this section 
by the Age Discrimination in Employment Act Amendments of 1978, 
and the effects of section 12(b) of this Act, as added by the 
Age Discrimination in Employment Act Amendments of 1978.
  (2) The Civil Service Commission shall transmit a report to 
the President and to the Congress containing the findings of 
the Commission resulting from the study of the Commission under 
paragraph (1) of this subsection. Such report shall be 
transmitted no later than January 1, 1980.
  (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.

           *       *       *       *       *       *       *

                              ----------                              


                        CIVIL RIGHTS ACT OF 1964



           *       *       *       *       *       *       *
TITLE VII--EQUAL EMPLOYMENT OPPORTUNITY

           *       *       *       *       *       *       *


   discrimination because of race, color, religion, sex, or national 
                                 origin

  Sec. 703. (a) It shall be an unlawful employment practice for 
an employer--
          (1) to fail or refuse to hire or to discharge any 
        individual, or otherwise to discriminate against any 
        individual with respect to his compensation, terms, 
        conditions, or privileges of employment, because of 
        such individual's race, color, religion, sex, or 
        national origin; or
          (2) to limit, segregate, or classify his employees or 
        applicants for employment in any way which would 
        deprive or tend to deprive any individual of employment 
        opportunities or otherwise adversely affect his status 
        as an employee, because of such individual's race, 
        color, religion, sex, or national origin.
  (b) It shall be an unlawful employment practice for an 
employment agency to fail or refuse to refer for employment, or 
otherwise discriminate against, any individual because of his 
race, color, religion, sex, or national origin, or to classify 
or refer for employment any individual on the basis of his 
race, color, religion, sex, or national origin.
  (c) It shall be an unlawful employment practice for a labor 
organization--
          (1) to exclude or to expel from its membership, or 
        otherwise to discriminate against, any individual 
        because of his race, color, religion, sex, or national 
        origin;
          (2) to limit, segregate, or classify its membership 
        or applicants for membership, or to classify or fail or 
        refuse to refer for employment any individual, in any 
        way which would deprive or tend to deprive any 
        individual of employment opportunities, or would limit 
        such employment opportunities or otherwise adversely 
        affect his status as an employee or as an applicant for 
        employment, because of such individual's race, color 
        religion, sex, or national origin; or
          (3) to cause or attempt to cause an employer to 
        discriminate against an individual in violation of this 
        section.
  (d) It shall be an unlawful employment practice for any 
employer, labor organization, or joint labor-management 
committee controlling apprenticeship or other training or 
retraining, including on-the-job training programs to 
discriminate against any individual because of his race, color, 
religion, sex, or national origin in admission to, or 
employment in, any program established to provide 
apprenticeship or other training.
  (e) Notwithstanding any other provision of this title, (1) it 
shall not be an unlawful employment practice for an employer to 
hire and employ employees, for an employment agency to 
classify, or refer for employment any individual, for a labor 
organization to classify its membership or to classify or refer 
for employment any individual, or for an employer, labor 
organization, or joint labor-management committee controlling 
apprenticeship or other training or retraining programs to 
admit or employ any individual in any such program, on the 
basis of his religion, sex, or national origin in those certain 
instances where religion, sex, or national origin is a bona 
fide occupational qualification reasonably necessary to the 
normal operation of that particular business or enterprise, and 
(2) it shall not be an unlawful employment practice for a 
school, college, university, or other educational institution 
or institution of learning to hire and employ employees of a 
particular religion if such school, college, university, or 
other educational institution or institution of learning is, in 
whole or in substantial part, owned, supported, controlled, or 
managed by a particular religion or by a particular religious 
corporation, association, or society, or if the curriculum of 
such school, college, university, or other educational 
institution or institution of learning is directed toward the 
propagation of a particular religion.
  (f) As used in this title, the phrase ``unlawful employment 
practice'' shall not be deemed to include any action or measure 
taken by any employer, labor organization, joint labor-
management committee, or employment agency with respect to an 
individual who is a member of the Communist Party of the United 
States or of any other organization required to register as a 
Communist-action or Communist-front organization by final order 
of the Subversive Activities Control Board pursuant to the 
Subversive Activities Control Act of 1950.
  (g) Notwithstanding any other provision of this title, it 
shall not be an unlawful employment practice for an employer to 
fail or refuse to hire and employ any individual for any 
position, for an employer to discharge any individual from any 
position, or for an employment agency to fail or refuse to 
refer any individual for employment in any position, or for a 
labor organization to fail or refuse to refer any individual 
for employment in any position, if--
          (1) the occupancy of such position, or access to the 
        premises in or upon which any part of the duties of 
        such position is performed or is to be performed, is 
        subject to any requirement imposed in the interest of 
        the national security of the United States under any 
        security program in effect pursuant to or administered 
        under any statute of the United States or any Executive 
        order of the President; and
          (2) such individual has not fulfilled or has ceased 
        to fulfill that requirement.
  (h) Notwithstanding any other provision of this title, it 
shall not be an unlawful employment practice for an employer to 
apply different standards of compensation, or different terms, 
conditions, or privileges of employment pursuant to a bona fide 
seniority or merit system, or a system which measures earnings 
by quantity or quality of production or to employees who work 
in different locations, provided that such differences are not 
the result of an intention to discriminate because of race, 
color, religion, sex, or national origin, nor shall it be an 
unlawful employment practice for an employer to give and to act 
upon the results of any professionally developed ability test 
provided that such test, its administration or action upon the 
results is not designed, intended or used to discriminate 
because of race, color, religion, sex or national origin. It 
shall not be an unlawful employment practice under this title 
for any employer to differentiate upon the basis of sex in 
determining the amount of the wages or compensation paid or to 
be paid to employees of such employer if such differentiation 
is authorized by the provisions of section 6(d) of the Fair 
Labor Standards Act of 1938, as amended (29 U.S.C. 206(d)).
  (i) Nothing contained in this title shall apply to any 
business or enterprise on or near an Indian reservation with 
respect to any publicly announced employment practice of such 
business or enterprise under which a preferential treatment is 
given to any individual because he is an Indian living on or 
near a reservation.
  (j) Nothing contained in this title shall be interpreted to 
require any employer, employment agency, labor organization, or 
joint labor-management committee subject to this title to grant 
preferential treatment to any individual or to any group 
because of the race, color, religion, sex, or national origin 
of such individual or group on account of an imbalance which 
may exist with respect to the total number or percentage of 
persons of any race, color, religion, sex, or national origin 
employed by any employer, referred or classified for employment 
by any employment agency or labor organization, admitted to 
membership or classified by any labor organization, or admitted 
to, or employed in, any apprenticeship or other training 
program, in comparison with the total number or percentage of 
persons of such race, color, religion, sex, or national origin 
in any community, State, section, or other area, or in the 
available work force in any community, State, section, or other 
area.
  (k)(1)(A) An unlawful employment practice based on disparate 
impact is established under this title only if--
          (i) a complaining party demonstrates that a 
        respondent uses a particular employment practice that 
        causes a disparate impact on the basis of race, color, 
        religion, sex, or national origin and the respondent 
        fails to demonstrate that the challenged practice is 
        job related for the position in question and consistent 
        with business necessity; or
          (ii) the complaining party makes the demonstration 
        described in subparagraph (C) with respect to an 
        alternative employment practice and the respondent 
        refuses to adopt such alternative employment practice.
  (B)(i) With respect to demonstrating that a particular 
employment practice causes a disparate impact as described in 
subparagraph (A)(i), the complaining party shall demonstrate 
that each particular challenged employment practice causes a 
disparate impact, except that if the complaining party can 
demonstrate to the court that the elements of a respondent's 
decisionmaking process are not capable of separation for 
analysis, the decisionmaking process may be analyzed as one 
employment practice.
  (ii) If the respondent demonstrates that a specific 
employment practice does not cause the disparate impact, the 
respondent shall not be required to demonstrate that such 
practice is required by business necessity.
  (C) The demonstration referred to by subparagraph (A)(ii) 
shall be in accordance with the law as it existed on June 4, 
1989, with respect to the concept of ``alternative employment 
practice''.
  (2) A demonstration that an employment practice is required 
by business necessity may not be used as a defense against a 
claim of intentional discrimination under this title.
  (3) Notwithstanding any other provision of this title, a rule 
barring the employment of an individual who currently and 
knowingly uses or possesses a controlled substance, as defined 
in schedules I and II of section 102(6) of the Controlled 
Substances Act (21 U.S.C. 802(6)), other than the use or 
possession of a drug taken under the supervision of a licensed 
health care professional, or any other use or possession 
authorized by the Controlled Substances Act or any other 
provision of Federal law, shall be considered an unlawful 
employment practice under this title only if such rule is 
adopted or applied with an intent to discriminate because of 
race, color, religion, sex, or national origin.
  (l) It shall be an unlawful employment practice for a 
respondent, in connection with the selection or referral of 
applicants or candidates for employment or promotion, to adjust 
the scores of, use different cutoff scores for, or otherwise 
alter the results of, employment related tests on the basis of 
race, color, religion, sex, or national origin.
  [(m) Except as otherwise provided in this title, an unlawful 
employment practice is established when the complaining party 
demonstrates that race, color, religion, sex, or national 
origin was a motivating factor for any employment practice, 
even though other factors also motivated the practice.]
  (m) Except as otherwise provided in this title, an unlawful 
employment practice is established 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.
  (n)(1)(A) Notwithstanding any other provision of law, and 
except as provided in paragraph (2), an employment practice 
that implements and is within the scope of a litigated or 
consent judgment or order that resolves a claim of employment 
discrimination under the Constitution or Federal civil rights 
laws may not be challenged under the circumstances described in 
subparagraph (B).
  (B) A practice described in subparagraph (A) may not be 
challenged in a claim under the Constitution or Federal civil 
rights laws--
          (i) by a person who, prior to the entry of the 
        judgment or order described in subparagraph (A), had--
                  (I) actual notice of the proposed judgment or 
                order sufficient to apprise such person that 
                such judgment or order might adversely affect 
                the interests and legal rights of such person 
                and that an opportunity was available to 
                present objections to such judgment or order by 
                a future date certain; and
                  (II) a reasonable opportunity to present 
                objections to such judgment or order; or
          (ii) by a person whose interests were adequately 
        represented by another person who had previously 
        challenged the judgment or order on the same legal 
        grounds and with a similar factual situation, unless 
        there has been an intervening change in law or fact.
  (2) Nothing in this subsection shall be construed to--
          (A) alter the standards for intervention under rule 
        24 of the Federal Rules of Civil Procedure or apply to 
        the rights of parties who have successfully intervened 
        pursuant to such rule in the proceeding in which the 
        parties intervened;
          (B) apply to the rights of parties to the action in 
        which a litigated or consent judgment or order was 
        entered, or of members of a class represented or sought 
        to be represented in such action, or of members of a 
        group on whose behalf relief was sought in such action 
        by the Federal Government;
          (C) prevent challenges to a litigated or consent 
        judgment or order on the ground that such judgment or 
        order was obtained through collusion or fraud, or is 
        transparently invalid or was entered by a court lacking 
        subject matter jurisdiction; or
          (D) authorize or permit the denial to any person of 
        the due process of law required by the Constitution.
  (3) Any action not precluded under this subsection that 
challenges an employment consent judgment or order described in 
paragraph (1) shall be brought in the court, and if possible 
before the judge, that entered such judgment or order. Nothing 
in this subsection shall preclude a transfer of such action 
pursuant to section 1404 of title 28, United States Code.

           *       *       *       *       *       *       *


           nondiscrimination in federal government employment

  Sec. 717. (a) All personnel actions affecting employees or 
applicants for employment (except with regard to aliens 
employed outside the limits of the United States) in military 
departments as defined in section 102 of title 5, United States 
Code, in executive agencies as defined in section 105 of title 
5, United States Code (including employees and applicants for 
employment who are paid from nonappropriated funds), in the 
United States Postal Service and the Postal Rate Commission, in 
those units of the Government of the District of Columbia 
having positions in the competitive service, and in those units 
of the judicial branch of the Federal Government having 
positions in the competitive service, in the Smithsonian 
Institution, and in the Government Printing Office, the General 
Accounting Office, and the Library of Congress shall be made 
free from any discrimination based on race, color, religion, 
sex, or national origin.
  (b) Except as otherwise provided in this subsection, the 
Civil Service Commission shall have authority to enforce the 
provisions of subsection (a) through appropriate remedies, 
including reinstatement or hiring of employees with or without 
back pay, as will effectuate the policies of this section, and 
shall issue such rules, regulations, orders and instructions as 
it deems necessary and appropriate to carry out its 
responsibilities under this section. The Civil Service 
Commission shall--
          (1) be responsible for the annual review and approval 
        of a national and regional equal employment opportunity 
        plan which each department and agency and each 
        appropriate unit referred to in subsection (a) of this 
        section shall submit in order to maintain an 
        affirmative program of equal employment opportunity for 
        all such employees and applicants for employment;
          (2) be responsible for the review and evaluation of 
        the operation of all agency equal employment 
        opportunity programs, periodically obtaining and 
        publishing (on at least a semiannual basis) progress 
        reports from each such department, agency, or unit; and
          (3) consult with and solicit the recommendations of 
        interested individuals, groups, and organizations 
        relating to equal employment opportunity.
The head of each such department, agency, or unit shall comply 
with such rules, regulations, orders, and instructions which 
shall include a provision that an employee or applicant for 
employment shall be notified of any final action taken on any 
complaint of discrimination filed by him thereunder. The plan 
submitted by each department, agency, and unit shall include, 
but not be limited to--
          (1) provision for the establishment of training and 
        education programs designed to provide a maximum 
        opportunity for employees to advance so as to perform 
        at their highest potential; and
          (2) a description of the qualifications in terms of 
        training and experience relating to equal employment 
        opportunity for the principal and operating officials 
        of each such department, agency, or unit responsible 
        for carrying out the equal employment opportunity 
        program and of the allocation of personnel and 
        resources proposed by such department, agency, or unit 
        to carry out its equal employment opportunity program.
With respect to employment in the Library of Congress, 
authorities granted in this subsection to the Civil Service 
Commission shall be exercised by the Librarian of Congress.
  (c) Within 90 days of receipt of notice of final action taken 
by a department, agency, or unit referred to in subsection 
717(a), or by the Civil Service Commission upon an appeal from 
a decision or order of such department, agency, or unit on a 
complaint of discrimination based on race, color, religion, sex 
or national origin, brought pursuant to subsection (a) of this 
section, Executive Order 11478 or any succeeding Executive 
orders, or after one hundred and eighty days from the filing of 
the initial charge with the department, agency, or unit or with 
the Civil Service Commission on appeal from a decision or order 
of such department, agency, or unit until such time as final 
action may be taken by a department, agency, or unit, an 
employee or applicant for employment, if aggrieved by the final 
disposition of his complaint, or by the failure to take final 
action on his complaint, may file a civil action as provided in 
section 706, in which civil action the head of the department, 
agency, or unit, as appropriate, shall be the defendant.
  (d) The provisions of section 706 (f) through (k), as 
applicable, shall govern civil actions brought hereunder, and 
the same interest to compensate for delay in payment shall be 
available as in cases involving nonpublic parties..
  (e) Nothing contained in this Act shall relieve any 
Government agency or official of its or his primary 
responsibility to assure nondiscrimination in employment as 
required by the Constitution and statutes or of its or his 
responsibilities under Executive Order 11478 relating to equal 
employment opportunity in the Federal Government.
  (f) Section 706(e)(3) shall apply to complaints of 
discrimination in compensation under this section.
  (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.

           *       *       *       *       *       *       *

                              ----------                              


                AMERICANS WITH DISABILITIES ACT OF 1990



           *       *       *       *       *       *       *
                          TITLE I--EMPLOYMENT

SEC. 101. DEFINITIONS.

   As used in this title:
          (1) Commission.--The term ``Commission'' means the 
        Equal Employment Opportunity Commission established by 
        section 705 of the Civil Rights Act of 1964 (42 U.S.C. 
        2000e-4).
          (2) Covered entity.--The term ``covered entity'' 
        means an employer, employment agency, labor 
        organization, or joint labor-management committee.
          (3) Direct threat.--The term ``direct threat'' means 
        a significant risk to the health or safety of others 
        that cannot be eliminated by reasonable accommodation.
          (4) Employee.--The term ``employee'' means an 
        individual employed by an employer. With respect to 
        employment in a foreign country, such term includes an 
        individual who is a citizen of the United States.
          (5) Employer.--
                  (A) In general.--The term ``employer'' means 
                a person engaged in an industry affecting 
                commerce who has 15 or more employees for each 
                working day in each of 20 or more calendar 
                weeks in the current or preceding calendar 
                year, and any agent of such person, except 
                that, for two years following the effective 
                date of this title, an employer means a person 
                engaged in an industry affecting commerce who 
                has 25 or more employees for each working day 
                in each of 20 or more calendar weeks in the 
                current or preceding year, and any agent of 
                such person.
                  (B) Exceptions.--The term ``employer'' does 
                not include--
                          (i) the United States, a corporation 
                        wholly owned by the government of the 
                        United States, or an Indian tribe; or
                          (ii) a bona fide private membership 
                        club (other than a labor organization) 
                        that is exempt from taxation under 
                        section 501(c) of the Internal Revenue 
                        Code of 1986.
          (6) Illegal use of drugs.--
                  (A) In general.--The term ``illegal use of 
                drugs'' means the use of drugs, the possession 
                or distribution of which is unlawful under the 
                Controlled Substances Act (21 U.S.C. 812). Such 
                term does not include the use of a drug taken 
                under supervision by a licensed health care 
                professional, or other uses authorized by the 
                Controlled Substances Act or other provisions 
                of Federal law.
                  (B) Drugs.--The term ``drug'' means a 
                controlled substance, as defined in schedules I 
                through V of section 202 of the Controlled 
                Substances Act.
          (7) Person, etc.--The terms ``person'', ``labor 
        organization'', ``employment agency'', ``commerce'', 
        and ``industry affecting commerce'', shall have the 
        same meaning given such terms in section 701 of the 
        Civil Rights Act of 1964 (42 U.S.C. 2000e).
          (8) Qualified individual.--The term ``qualified 
        individual'' means an individual who, with or without 
        reasonable accommodation, can perform the essential 
        functions of the employment position that such 
        individual holds or desires. For the purposes of this 
        title, consideration shall be given to the employer's 
        judgment as to what functions of a job are essential, 
        and if an employer has prepared a written description 
        before advertising or interviewing applicants for the 
        job, this description shall be considered evidence of 
        the essential functions of the job.
          (9) Reasonable accommodation.--The term ``reasonable 
        accommodation'' may include--
                  (A) making existing facilities used by 
                employees readily accessible to and usable by 
                individuals with disabilities; and
                  (B) job restructuring, part-time or modified 
                work schedules, reassignment to a vacant 
                position, acquisition or modification of 
                equipment or devices, appropriate adjustment or 
                modifications of examinations, training 
                materials or policies, the provision of 
                qualified readers or interpreters, and other 
                similar accommodations for individuals with 
                disabilities.
          (10) Undue hardship.--
                  (A) In general.--The term ``undue hardship'' 
                means an action requiring significant 
                difficulty or expense, when considered in light 
                of the factors set forth in subparagraph (B).
                  (B) Factors to be considered.--In determining 
                whether an accommodation would impose an undue 
                hardship on a covered entity, factors to be 
                considered include--
                          (i) the nature and cost of the 
                        accommodation needed under this Act;
                          (ii) the overall financial resources 
                        of the facility or facilities involved 
                        in the provision of the reasonable 
                        accommodation; the number of persons 
                        employed at such facility; the effect 
                        on expenses and resources, or the 
                        impact otherwise of such accommodation 
                        upon the operation of the facility;
                          (iii) the overall financial resources 
                        of the covered entity; the overall size 
                        of the business of a covered entity 
                        with respect to the number of its 
                        employees; the number, type, and 
                        location of its facilities; and
                          (iv) the type of operation or 
                        operations of the covered entity, 
                        including the composition, structure, 
                        and functions of the workforce of such 
                        entity; the geographic separateness, 
                        administrative, or fiscal relationship 
                        of the facility or facilities in 
                        question to the covered entity.
          (11) Demonstrates.--The term ``demonstrates'' means 
        meets the burdens of production and persuasion.

SEC. 102. DISCRIMINATION.

  (a) General Rule.--No covered entity shall discriminate 
against a qualified individual on the basis of disability in 
regard to job application procedures, the hiring, advancement, 
or discharge of employees, employee compensation, job training, 
and other terms, conditions, and privileges of employment.
  (b) Construction.--As used in subsection (a), the term 
``discriminate against a qualified individual on the basis of 
disability'' includes--
          (1) limiting, segregating, or classifying a job 
        applicant or employee in a way that adversely affects 
        the opportunities or status of such applicant or 
        employee because of the disability of such applicant or 
        employee;
          (2) participating in a contractual or other 
        arrangement or relationship that has the effect of 
        subjecting a covered entity's qualified applicant or 
        employee with a disability to the discrimination 
        prohibited by this title (such relationship includes a 
        relationship with an employment or referral agency, 
        labor union, an organization providing fringe benefits 
        to an employee of the covered entity, or an 
        organization providing training and apprenticeship 
        programs);
          (3) utilizing standards, criteria, or methods of 
        administration--
                  (A) that have the effect of discrimination on 
                the basis of disability; or
                  (B) that perpetuate the discrimination of 
                others who are subject to common administrative 
                control;
          (4) excluding or otherwise denying equal jobs or 
        benefits to a qualified individual because of the known 
        disability of an individual with whom the qualified 
        individual is known to have a relationship or 
        association;
          (5)(A) not making reasonable accommodations to the 
        known physical or mental limitations of an otherwise 
        qualified individual with a disability who is an 
        applicant or employee, unless such covered entity can 
        demonstrate that the accommodation would impose an 
        undue hardship on the operation of the business of such 
        covered entity; or
          (B) denying employment opportunities to a job 
        applicant or employee who is an otherwise qualified 
        individual with a disability, if such denial is based 
        on the need of such covered entity to make reasonable 
        accommodation to the physical or mental impairments of 
        the employee or applicant;
          (6) using qualification standards, employment tests 
        or other selection criteria that screen out or tend to 
        screen out an individual with a disability or a class 
        of individuals with disabilities unless the standard, 
        test or other selection criteria, as used by the 
        covered entity, is shown to be job-related for the 
        position in question and is consistent with business 
        necessity; and
          (7) failing to select and administer tests concerning 
        employment in the most effective manner to ensure that, 
        when such test is administered to a job applicant or 
        employee who has a disability that impairs sensory, 
        manual, or speaking skills, such test results 
        accurately reflect the skills, aptitude, or whatever 
        other factor of such applicant or employee that such 
        test purports to measure, rather than reflecting the 
        impaired sensory, manual, or speaking skills of such 
        employee or applicant (except where such skills are the 
        factors that the test purports to measure).
  (c) Covered Entities in Foreign Countries.--
          (1) In general.--It shall not be unlawful under this 
        section for a covered entity to take any action that 
        constitutes discrimination under this section with 
        respect to an employee in a workplace in a foreign 
        country if compliance with this section would cause 
        such covered entity to violate the law of the foreign 
        country in which such workplace is located.
          (2) Control of corporation.--
                  (A) Presumption.--If an employer controls a 
                corporation whose place of incorporation is a 
                foreign country, any practice that constitutes 
                discrimination under this section and is 
                engaged in by such corporation shall be 
                presumed to be engaged in by such employer.
                  (B) Exception.--This section shall not apply 
                with respect to the foreign operations of an 
                employer that is a foreign person not 
                controlled by an American employer.
                  (C) Determination.--For purposes of this 
                paragraph, the determination of whether an 
                employer controls a corporation shall be based 
                on--
                          (i) the interrelation of operations;
                          (ii) the common management;
                          (iii) the centralized control of 
                        labor relations; and
                          (iv) the common ownership or 
                        financial control,
                of the employer and the corporation.
  (d) Medical Examinations and Inquiries.--
          (1) In general.--The prohibition against 
        discrimination as referred to in subsection (a) shall 
        include medical examinations and inquiries.
          (2) Preemployment.--
                  (A) Prohibited examination or inquiry.--
                Except as provided in paragraph (3), a covered 
                entity shall not conduct a medical examination 
                or make inquiries of a job applicant as to 
                whether such applicant is an individual with a 
                disability or as to the nature or severity of 
                such disability.
                  (B) Acceptable inquiry.--A covered entity may 
                make preemployment inquiries into the ability 
                of an applicant to perform job-related 
                functions.
          (3) Employment entrance examination.--A covered 
        entity may require a medical examination after an offer 
        of employment has been made to a job applicant and 
        prior to the commencement of the employment duties of 
        such applicant, and may condition an offer of 
        employment on the results of such examination, if--
                  (A) all entering employees are subjected to 
                such an examination regardless of disability;
                  (B) information obtained regarding the 
                medical condition or history of the applicant 
                is collected and maintained on separate forms 
                and in separate medical files and is treated as 
                a confidential medical record, except that--
                          (i) supervisors and managers may be 
                        informed regarding necessary 
                        restrictions on the work or duties of 
                        the employee and necessary 
                        accommodations;
                          (ii) first aid and safety personnel 
                        may be informed, when appropriate, if 
                        the disability might require emergency 
                        treatment; and
                          (iii) government officials 
                        investigating compliance with this Act 
                        shall be provided relevant information 
                        on request; and
                  (C) the results of such examination are used 
                only in accordance with this title.
          (4) Examination and inquiry.--
                  (A) Prohibited examinations and inquiries.--A 
                covered entity shall not require a medical 
                examination and shall not make inquiries of an 
                employee as to whether such employee is an 
                individual with a disability or as to the 
                nature or severity of the disability, unless 
                such examination or inquiry is shown to be job-
                related and consistent with business necessity.
                  (B) Acceptable examinations and inquiries.--A 
                covered entity may conduct voluntary medical 
                examinations, including voluntary medical 
                histories, which are part of an employee health 
                program available to employees at that work 
                site. A covered entity may make inquiries into 
                the ability of an employee to perform job-
                related functions.
                  (C) Requirement.--Information obtained under 
                subparagraph (B) regarding the medical 
                condition or history of any employee are 
                subject to the requirements of subparagraphs 
                (B) and (C) of paragraph (3).
  (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.

           *       *       *       *       *       *       *


SEC. 107. ENFORCEMENT.

  (a) Powers, Remedies, and Procedures.--The powers, remedies, 
and procedures set forth in sections 705, 706, 707, 709, and 
710 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4, 2000e-
5, 2000e-6, 2000e-8, and 2000e-9) shall be the powers, 
remedies, and procedures this title provides to the Commission, 
to the Attorney General, or to any person alleging 
discrimination on the basis of disability in violation of any 
provision of this Act, or regulations promulgated under section 
106, concerning employment.
  (b) Coordination.--The agencies with enforcement authority 
for actions which allege employment discrimination under this 
title and under the Rehabilitation Act of 1973 shall develop 
procedures to ensure that administrative complaints filed under 
this title and under the Rehabilitation Act of 1973 are dealt 
with in a manner that avoids duplication of effort and prevents 
imposition of inconsistent or conflicting standards for the 
same requirements under this title and the Rehabilitation Act 
of 1973. The Commission, the Attorney General, and the Office 
of Federal Contract Compliance Programs shall establish such 
coordinating mechanisms (similar to provisions contained in the 
joint regulations promulgated by the Commission and the 
Attorney General at part 42 of title 28 and part 1691 of title 
29, Code of Federal Regulations, and the Memorandum of 
Understanding between the Commission and the Office of Federal 
Contract Compliance Programs dated January 16, 1981 (46 Fed. 
Reg. 7435, January 23, 1981)) in regulations implementing this 
title and Rehabilitation Act of 1973 not later than 18 months 
after the date of enactment of this Act.
  (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.

           *       *       *       *       *       *       *


TITLE V--MISCELLANEOUS PROVISIONS

           *       *       *       *       *       *       *


SEC. 503. PROHIBITION AGAINST RETALIATION AND COERCION.

  (a) Retaliation.--No person shall discriminate against any 
individual because such individual has opposed any act or 
practice made unlawful by this Act or because such individual 
made a charge, testified, assisted, or participated in any 
manner in an investigation, proceeding, or hearing under this 
Act.
  (b) Interference, Coercion, or Intimidation.--It shall be 
unlawful to coerce, intimidate, threaten, or interfere with any 
individual in the exercise or enjoyment of, or on account of 
his or her having exercised or enjoyed, or on account of his or 
her having aided or encouraged any other individual in the 
exercise or enjoyment of, any right granted or protected by 
this Act.
  (c) Remedies and Procedures.--[The remedies]
          (1) In general._Except as provided in paragraph (2), 
        the remedies  and procedures available under sections 
        107, 203, and 308 of this Act shall be available to 
        aggrieved persons for violations of subsections (a) and 
        (b), with respect to title I, title II and title III, 
        respectively.
          (2) Certain anti-retaliation claims.--Section 107(c) 
        shall apply to claims under section 102(e)(1) with 
        respect to title I.

           *       *       *       *       *       *       *

                              ----------                              


                       REHABILITATION ACT OF 1973



           *       *       *       *       *       *       *
                      TITLE V--RIGHTS AND ADVOCACY

              employment of individuals with disabilities

  Sec. 501. (a) There is established within the Federal 
Government an Interagency Committee on Employees who are 
Individuals with Disabilities (hereinafter in this section 
referred to as the ``Committee''), comprised of such members as 
the President may select, including the following (or their 
designees whose positions are Executive Level IV or higher): 
the Chairman of the Equal Employment Opportunity Commission, 
(hereafter in this section referred to as the ``Commission''), 
the Director of the Office of Personnel Management, the 
Secretary of Veterans Affairs, the Secretary of Labor, the 
Secretary of Education, and the Secretary of Health and Human 
Services. Either the Director of the Office of Personnel 
Management and the Chairman of the Commission shall serve as 
co-chairpersons of the Committee or the Director or Chairman 
shall serve as the sole chairperson of the Committee, as the 
Director and Chairman jointly determine, from time to time, to 
be appropriate. The resources of the President's Disability 
Employment Partnership Board and the President's Committee for 
People with Intellectual Disabilities shall be made fully 
available to the Committee. It shall be the purpose and 
function of the Committee (1) to provide a focus for Federal 
and other employment of individuals with disabilities, and to 
review, on a periodic basis, in cooperation with the 
Commission, the adequacy of hiring, placement, and advancement 
practices with respect to individuals with disabilities, by 
each department, agency, and instrumentality in the executive 
branch of Government and the Smithsonian Institution, and to 
insure that the special needs of such individuals are being 
met; and (2) to consult with the Commission to assist the 
Commission to carry out its responsibilities under subsections 
(b), (c), and (d) of this section. On the basis of such review 
and consultation, the Committee shall periodically make to the 
Commission such recommendations for legislative and 
administrative changes as it deems necessary or desirable. The 
Commission shall timely transmit to the appropriate committees 
of Congress any such recommendations.
  (b) Each department, agency, and instrumentality (including 
the United States Postal Service and the Postal Regulatory 
Commission) in the executive branch and the Smithsonian 
Institution shall, within one hundred and eighty days after the 
date of enactment of this Act, submit to the Commission and to 
the Committee an affirmative action program plan for the 
hiring, placement, and advancement of individuals with 
disabilities in such department, agency, instrumentality, or 
Institution. Such plan shall include a description of the 
extent to which and methods whereby the special needs of 
employees who are individuals with disabilities are being met. 
Such plan shall be updated annually, and shall be reviewed 
annually and approved by the Commission, if the Commission 
determines, after consultation with the Committee, that such 
plan provides sufficient assurances, procedures, and 
commitments to provide adequate hiring, placement, and 
advancement opportunities for individuals with disabilities.
  (c) The Commission, after consultation with the Committee, 
shall develop and recommend to the Secretary for referral to 
the appropriate State agencies, policies and procedures which 
will facilitate the hiring, placement, and advancement in 
employment of individuals who have received rehabilitation 
services under State vocational rehabilitation programs, 
veterans' programs, or any other program for individuals with 
disabilities, including the promotion of job opportunities for 
such individuals. The Secretary shall encourage such State 
agencies to adopt and implement such policies and procedures.
  (d) The Commission, after consultation with the Committee, 
shall, on June 30, 1974, and at the end of each subsequent 
fiscal year, make a complete report to the appropriate 
committees of the Congress with respect to the practices of and 
achievements in hiring, placement, and advancement of 
individuals with disabilities by each department, agency, and 
instrumentality and the Smithsonian Institution and the 
effectiveness of the affirmative action programs required by 
subsection (b) of this section, together with recommendations 
as to legislation which have been submitted to the Commission 
under subsection (a) of this section, or other appropriate 
action to insure the adequacy of such practices. Such report 
shall also include an evaluation by the Committee of the 
effectiveness of the activities of the Commission under 
subsection (b) and (c) of this section.
  (e) An individual who, as a part of an individualized plan 
for employment under a State plan approved under this Act, 
participates in a program of unpaid work experience in a 
Federal agency, shall not, by reason thereof, be considered to 
be a Federal employee or to be subject to the provisions of law 
relating to Federal employment, including those relating to 
hours of work, rates of compensation, leaves, unemployment 
compensation, and Federal employee benefits.
  (f) The standards used to determine whether this section has 
been violated in a complaint alleging nonaffirmative action 
employment discrimination under this section shall be the 
standards applied under title I of the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12111 et seq.), including 
the standards of causation or methods of proof applied under 
section 102(e) of that Act (42 U.S.C. 12112(e)), and the 
provisions of sections 501 through 504, and 510, of the 
Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 
and 12210), as such sections relate to employment.

           *       *       *       *       *       *       *


                   employment under federal contracts

  Sec. 503. (a) Any contract in excess of $10,000 entered into 
by any Federal department or agency for the procurement of 
personal property and nonpersonal services (including 
construction) for the United States shall contain a provision 
requiring that the party contracting with the United States 
shall take affirmative action to employ and advance in 
employment qualified individuals with disabilities. The 
provisions of this section shall apply to any subcontract in 
excess of $10,000 entered into by a prime contractor in 
carrying out any contract for the procurement of personal 
property and nonpersonal services (including construction) for 
the United States. The President shall implement the provisions 
of this section by promulgating regulations within ninety days 
after the date of enactment of this section.
  (b) If any individual with a disability believes any 
contractor has failed or refused to comply with the provisions 
of a contract with the United States, relating to employment of 
individuals with disabilities, such individual may file a 
complaint with the Department of Labor. The Department shall 
promptly investigate such complaint and shall take such action 
thereon as the facts and circumstances warrant, consistent with 
the terms of such contract and the laws and regulations 
applicable thereto.
  (c)(1) The requirements of this section may be waived, in 
whole or in part, by the President with respect to a particular 
contract or subcontract, in accordance with guidelines set 
forth in regulations which the President shall prescribe, when 
the President determines that special circumstances in the 
national interest so require and states in writing the reasons 
for such determination.
  (2)(A) The Secretary of Labor may waive the requirements of 
the affirmative action clause required by regulations 
promulgated under subsection (a) with respect to any of a prime 
contractor's or subcontractor's facilities that are found to be 
in all respects separate and distinct from activities of the 
prime contractor or subcontractor related to the performance of 
the contract or subcontract, if the Secretary of Labor also 
finds that such a waiver will not interfere with or impede the 
effectuation of this Act.
  (B) Such waivers shall be considered only upon the request of 
the contractor or subcontractor. The Secretary of Labor shall 
promulgate regulations that set forth the standards used for 
granting such a waiver.
  (d) The standards used to determine whether this section has 
been violated in a complaint alleging nonaffirmative action 
employment discrimination under this section shall be the 
standards applied under title I of the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12111 et seq.), including 
the standards of causation or methods of proof applied under 
section 102(e) of that Act (42 U.S.C. 12112(e)), and the 
provisions of sections 501 through 504, and 510, of the 
Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 
and 12210), as such sections relate to employment.
  (e) The Secretary shall develop procedures to ensure that 
administrative complaints filed under this section and under 
the Americans with Disabilities Act of 1990 are dealt with in a 
manner that avoids duplication of effort and prevents 
imposition of inconsistent or conflicting standards for the 
same requirements under this section and the Americans with 
Disabilities Act of 1990.

          nondiscrimination under federal grants and programs

  Sec. 504. (a) No otherwise qualified individual with a 
disability in the United States, as defined in section 7(20), 
shall, solely by reason of her or his disability, be excluded 
from the participation in, be denied the benefits of, or be 
subjected to discrimination under any program or activity 
receiving Federal financial assistance or under any program or 
activity conducted by any Executive agency or by the United 
States Postal Service. The head of each such agency shall 
promulgate such regulations as may be necessary to carry out 
the amendments to this section made by the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Act of 
1978. Copies of any proposed regulation shall be submitted to 
appropriate authorizing committees of the Congress, and such 
regulation may take effect no earlier than the thirtieth day 
after the date on which such regulation is so submitted to such 
committees.
  (b) For the purposes of this section, the term ``program or 
activity'' means all of the operations of--
          (1)(A) a department, agency, special purpose 
        district, or other instrumentality of a State or of a 
        local government; or
          (B) the entity of such State or local government that 
        distributes such assistance and each such department or 
        agency (and each other State or local government 
        entity) to which the assistance is extended, in the 
        case of assistance to a State or local government;
          (2)(A) a college, university, or other postsecondary 
        institution, or a public system of higher education; or
          (B) a local educational agency (as defined in section 
        8101 of the Elementary and Secondary Education Act of 
        1965), system of vocational education, or other school 
        system;
          (3)(A) an entire corporation, partnership, or other 
        private organization, or an entire sole 
        proprietorship--
                  (i) if assistance is extended to such 
                corporation, partnership, private organization, 
                or sole proprietorship as a whole; or
                  (ii) which is principally engaged in the 
                business of providing education, health care, 
                housing, social services, or parks and 
                recreation; or
          (B) the entire plant or other comparable, 
        geographically separate facility to which Federal 
        financial assistance is extended, in the case of any 
        other corporation, partnership, private organization, 
        or sole proprietorship; or
          (4) any other entity which is established by two or 
        more of the entities described in paragraph (1), (2), 
        or (3);
any part of which is extended Federal financial assistance.
  (c) Small providers are not required by subsection (a) to 
make significant structural alterations to their existing 
facilities for the purpose of assuring program accessibility, 
if alternative means of providing the services are available. 
The terms used in this subsection shall be construed with 
reference to the regulations existing on the date of the 
enactment of this subsection.
  (d) The standards used to determine whether this section has 
been violated in a complaint alleging employment discrimination 
under this section shall be the standards applied under title I 
of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 
et seq.), including the standards of causation or methods of 
proof applied under section 102(e) of that Act (42 U.S.C. 
12112(e)), and the provisions of sections 501 through 504, and 
510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12201-12204 and 12210), as such sections relate to employment.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

                              Introduction

    Every worker should be protected from discrimination at his 
or her job. Because Congress enacted protections against 
workplace discrimination in the Civil Rights Act of 1964 (CRA), 
the Age Discrimination in Employment Act of 1967 (ADEA), the 
Rehabilitation Act of 1973 (Rehab Act), and the Americans with 
Disabilities Act of 1990 (ADA), among other nondiscrimination 
laws, it is already against the law, as it should be, to 
discriminate in the workplace because of an individual's age or 
disability or to retaliate against someone because of a prior 
complaint alleging discrimination. It is encouraging to see 
older Americans continue to make invaluable contributions in 
the workplace, and Committee Republicans are committed to 
eliminating illegal discrimination in the workplace to ensure a 
fair, productive, and competitive workforce.
    Unfortunately, Committee Democrats have chosen to promote 
their pro-trial lawyer agenda by advancing legislation that 
masquerades as a protection for a specific group of workers. 
H.R. 1230, the Protecting Older Workers Against Discrimination 
Act (POWADA), is yet another example of a one-size-fits-all 
federal mandate that disregards real-world workplace experience 
and decades of Supreme Court precedent.
    Careful examination and scrutiny of any legislation is 
necessary to determine whether it is needed and whether it 
appropriately and effectively addresses the relevant issues. 
Unfortunately, in developing H.R. 1230, the Committee majority 
has failed miserably in this regard. Committee Democrats chose 
not to hold a hearing solely dedicated to examining H.R. 1230. 
Only one majority witness testified on the bill at a wide-
ranging hearing titled ``Eliminating Barriers to Employment: 
Opening Doors to Opportunity,'' which covered multiple topics 
and several other pieces of legislation unrelated to H.R. 1230. 
Regrettably, Committee Republicans were only allowed to invite 
one witness for the entire hearing to cover the many topics and 
bills that were included on the agenda.
    Like other legislation before it in the 116th Congress, 
H.R. 1230 has been rushed through this Committee without 
necessary examination, discussion, or consideration. H.R. 1230 
begs for reliable data and evidence, thoughtful deliberation, 
and genuine consideration. To reduce and eliminate workplace 
discrimination, we must ensure nondiscrimination statutes allow 
workers to remedy unlawful discrimination effectively, and H.R. 
1230 fails in this regard. The legislation does nothing to 
improve our nondiscrimination laws and will not help older 
workers. The bill's title and provisions are yet another case 
of false advertising and empty promises. For these reasons, and 
as set forth below, the House should not consider or pass H.R. 
1230.

                        Concerns With H.R. 1230

Evidence and Data Are Lacking
    The Committee has little to no evidence or data indicating 
this bill is necessary to ensure workers are protected. In 
fact, the lone Democrat-invited witness who testified on H.R. 
1230 at a Committee hearing covering many bills and topics 
admitted the impact of the Supreme Court's decision in Gross v. 
FBL Financial Services, Inc., 557 U.S. 767 (2009), is unknown. 
Laurie McCann, Senior Attorney, AARP Foundation, testifying on 
behalf of AARP, said in her written testimony:

          For several reasons, it is difficult to quantify the 
        impact that the Gross decision has had on the number of 
        older workers who bring cases, and the number of those 
        who win them. First, it is difficult to separate out 
        the impact of the Gross decision from larger economic 
        forces. Around the same time of the Gross decision, 
        when we might have expected a drop in charges due to 
        Gross-inspired discouragement from employment 
        attorneys, there was a sizeable jump in the number of 
        ADEA charges filed with the EEOC, which coincided with 
        massive, recession-spawned lay-offs that resulted in 
        record unemployment levels among older workers.\1\

    \1\Eliminating Barriers to Employment: Opening Doors to 
Opportunity: Hearing Before the H. Comm. on Educ. & Lab., 116th Cong. 
(May 21, 2019) (written statement of Laurie McCann, Senior Attorney, 
AARP Foundation, at 6) [hereinafter McCann Statement]. Ms. McCann's 
written statement said that ``civil rights groups, business groups,'' 
and Senate staff co-wrote an ``agreed-upon draft'' of POWADA in 2010. 
Id. at 8. However, in a letter dated June 4, 2019, the U.S. Chamber of 
Commerce, HR Policy Association, and the Society for Human Resource 
Management wrote that ``no agreement was reached'' and ``no draft was 
agreed upon'' by ``business groups.'' Id. (letter from U.S. Chamber of 
Com. et al. to Chairman Bobby Scott, Comm. on Educ. & Labor, & Ranking 
Member Virginia Foxx (June 4, 2019)).

    Indeed, age discrimination charges filed with the Equal 
Employment Opportunity Commission (EEOC) as a percentage of all 
charges filed with the agency were approximately the same the 
nine years before Gross as the nine years after Gross.\2\ This 
data does not indicate individuals have been discouraged from 
filing age discrimination charges following Gross. In addition, 
there has been a slight uptick in retaliation charges under CRA 
Title VII filed with EEOC as a percentage of all charges filed 
since the Supreme Court's decision in University of Texas 
Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013).\3\ 
Again, this data does not indicate individuals have been 
discouraged from filing Title VII retaliation charges after 
Nassar.
---------------------------------------------------------------------------
    \2\ EEOC, Charge Statistics (Charges Filed with EEOC) FY 1997 
Through FY 2018, https://www.eeoc.gov/eeoc/statistics/enforcement/
charges.cfm.
    \3\Id.
---------------------------------------------------------------------------
    More broadly, employment trends for older workers are 
positive in recent decades, according to the Bureau of Labor 
Statistics:\4\
---------------------------------------------------------------------------
    \4\Bureau of Lab. Stat., U.S. Dep't of Lab., How Are Our Older 
Workers Doing? (May 20, 2019), https://blogs.bls.gov/blog/2019/05/20/
how-are-our-older-workers-doing/.

           ``In 1998, median weekly earnings of older 
        full-time employees were 77 percent of the median for 
        workers age 16 and up. In 2018, older workers earned 7 
        percent more than the median for all workers.''
           ``For workers age 65 and older, employment 
        tripled from 1988 to 2018, while employment among 
        younger workers grew by about a third.''
           ``Among people age 75 and older, the number 
        of employed people nearly quadrupled, increasing from 
        461,000 in 1988 to 1.8 million in 2018.''
           ``The labor force participation rate for 
        older workers has been rising steadily since the late 
        1990s. Participation rates for younger age groups 
        either declined or flattened over this period.''
           ``Over the past 20 years, the number of 
        older workers on full?time work schedules grew two and 
        a half times faster than the number working part 
        time.''
           ``Full-timers now account for a majority 
        among older workers--61 percent in 2018, up from 46 
        percent in 1998.''
Older Workers are Protected Under Current Law
    Contrary to the ``findings'' section in H.R. 1230, Gross 
has not narrowed the protections of the ADEA and Title VII. The 
Supreme Court made clear in Gross that its ruling did not 
increase the burden of persuasion on plaintiffs in ADEA cases: 
``There is no heightened evidentiary requirement for ADEA 
plaintiffs to satisfy their burden of persuasion that age was 
the `but-for' cause of the employer's adverse action, . . . and 
we imply none.''\5\
---------------------------------------------------------------------------
    \5\557 U.S. at 178 n.4.
---------------------------------------------------------------------------
    Indeed, with respect to litigation, evidence is lacking 
that individuals have been discouraged from filing age 
discrimination or retaliation lawsuits since the Gross and 
Nassar decisions, or that they are finding it harder to win 
these cases. Courts continue to rule in favor of employees in 
ADEA\6\ and Title VII retaliation\7\ cases following Gross and 
Nassar. In fact, courts have ruled for plaintiffs in cases that 
might have been mixed-motive cases in the absence of Gross, but 
the courts nonetheless ruled the plaintiffs' claims were 
sufficient under Gross.\8\
---------------------------------------------------------------------------
    \6\See, e.g., Westmoreland v. TWC Admin. LLC, 2019 WL 2195164 (4th 
Cir. May 22, 2019) (evidence was sufficient to support jury's finding 
that employer's proffered reason for firing employee was pretext for 
age discrimination); Steele v. Mattis, 899 F.3d 943 (D.C. Cir. 2018) 
(denying summary judgment where genuine issues of material fact existed 
regarding whether age was true reason for professor's discharge); H.R. 
3721, The Protecting Older Workers Against Discrimination Act: Hearing 
Before the Subcomm. on Health, Employment, Labor and Pensions of the H. 
Comm. on Educ. and Labor, 111th Cong. 21-22 (2010) (statement of Eric 
S. Dreiband, Partner, Jones Day Law Firm) (collecting cases in which 
federal courts ruled in favor of plaintiffs in ADEA litigation after 
Gross); Barbara T. Lindemann et al., Employment Discrimination Law Ch. 
12.X.B.1 (5th ed. 2012) (collecting cases on the plaintiff's prima 
facie case in age discrimination litigation).
    \7\See, e.g., Collymore v. City of New York, 2019 WL 1568070 (2d 
Cir. Apr. 11, 2019) (employee sufficiently alleged causal connection 
between protected activity and retaliatory acts to state a claim for 
retaliation under Title VII); Mys v. Mich. Dep't of State Police, 886 
F.3d 591 (6th Cir. 2018) (record contains sufficient evidence of 
retaliation to support jury's verdict); Garayalde-Rijos v. Municipality 
of Carolina, 747 F.3d 15 (1st Cir. 2014) (employee plausibly alleged 
Title VII retaliation claim against city); Connelly v. Lane Constr. 
Corp., 809 F.3d 780 (3d Cir. 2016) (employee stated plausible Title VII 
retaliation claim).
    \8\See, e.g., Mora v. Jackson Memorial Found., Inc., 597 F.3d 1201, 
1205 (11th Cir. 2010) (even after Gross, defendant not entitled to 
summary judgment where there is a disputed question of material fact); 
Baker v. Silver Oak Senior Living Mgt. Co., 581 F.3d 684 (8th Cir. 
2009) (under Gross, plaintiff presented submissable case of age 
discrimination for jury trial).
---------------------------------------------------------------------------
H.R. 1230 Harms Workers While Enriching Trial Lawyers
    Under Gross and Nassar, a plaintiff must prove age or a 
retaliatory motive was the ``but-for,'' or decisive, cause of 
the adverse employment action in ADEA and Title VII retaliation 
cases, respectively. H.R. 1230 overturns these Supreme Court 
decisions by allowing a plaintiff to prove age or the 
retaliatory motive was merely a motivating factor of the 
adverse employment action. Thus, the bill allows ``mixed-
motive'' claims in these cases, as well as in ADA and Rehab Act 
cases.
    If a plaintiff proves a mixed-motive claim under H.R. 1230, 
then he or she may be entitled to monetary damages, 
reinstatement, hiring, promotion, other payments, and 
attorneys' fees and costs. However, if the employer 
demonstrates it would have taken the same action in the absence 
of the impermissible motivating factor (such as age or a 
retaliatory motive), then the plaintiff may only receive 
declaratory relief, injunctive relief (not to include requiring 
an admission, reinstatement, hiring, or promotion), and 
attorneys' fees and costs; and no monetary damages or other 
payments may be rewarded.
    The only party who will be paid in nearly all mixed-motive 
cases is the plaintiff's attorneys, because most employers will 
be able to demonstrate that they would have taken the same 
action in the absence of the impermissible motivating factor. 
This raises the question of whether the legislation will 
benefit workers--who will, in nearly all cases, not receive any 
monetary damages under H.R. 1230. Lawrence Z. Lorber, Senior 
Counsel, Seyfarth Shaw LLP, raised this concern in his 
statement for the hearing record:

          Another significant concern about POWADA which should 
        be addressed is that including a mixed-motive theory 
        into the ADEA, and the other statutes at issue, will 
        simply encourage needless litigation [in] which, by 
        statute, the only successful participant will be the 
        plaintiff's attorney.\9\
---------------------------------------------------------------------------
    \9\Eliminating Barriers to Employment: Opening Doors to 
Opportunity: Hearing Before the H. Comm. on Educ. & Lab., 116th Cong. 
(May 21, 2019) (statement of Lawrence Z. Lorber, Senior Counsel, 
Seyfarth Shaw LLP, at 4 (June 4, 2019)) [hereinafter Lorber Statement].

    James A. Paretti, Jr., of the Workforce Policy Institute 
also discussed in his statement for the hearing record how H.R. 
---------------------------------------------------------------------------
1230 slants the law against workers:

          [A]s a matter of substantive law, we are concerned 
        that the bill as drafted would in too many instances 
        result in an employee who has proven that he or she was 
        the victim of age discrimination recovering nothing 
        under federal law, and certainly less than they would 
        under the current-law Gross standard. . . . To so limit 
        the recovery of an individual who has proven that his 
        or her employer factored age into its employment 
        decision hardly seems to ``protect'' such workers. 
        Indeed, the only party who ``wins'' under such a 
        scenario is the plaintiffs' bar.\10\
---------------------------------------------------------------------------
    \10\Eliminating Barriers to Employment: Opening Doors to 
Opportunity: Hearing Before the H. Comm. on Educ. & Lab., 116th Cong. 
(May 21, 2019) (letter from James A. Paretti, Jr., Shareholder, 
Workforce Pol'y Inst., Littler Mendelson, P.C., to the Hon. Robert C. 
``Bobby'' Scott, Chairman, Comm. on Educ. & Labor, at 2-3 (June 4, 
2019)) [hereinafter Paretti Letter].

    It is a legitimate question whether H.R. 1230 was written 
to ensure that the plaintiff's attorneys are paid even if the 
impermissible factor was not the ``but-for'' cause of the 
adverse employment action. As G. Roger King, Senior Labor and 
Employment Counsel, HR Policy Association, wrote in a 
memorandum to Republican Leader Virginia Foxx (R-NC): ``The 
only beneficiaries from H.R. 1230 would appear to be 
plaintiff's attorneys--certainly not a protected `class' under 
any appropriate definition of the term.''\11\ Moreover, adding 
insult to injury, the plaintiff will owe taxes on any 
attorneys' fees awarded even though the plaintiff has not 
received any monetary award.\12\
---------------------------------------------------------------------------
    \11\Memorandum from G. Roger King, Senior Labor & Emp't Counsel, HR 
Pol'y Ass'n, to the Hon. Virginia Foxx, Ranking Member, U.S. House of 
Rep. Comm. on Educ. & Labor, at 1 (June 10, 2019) (on file) 
[hereinafter King Memo].
    \12\See Lorber Statement, supra note 9, at 4.
---------------------------------------------------------------------------
    Notably, Gross and Nassar eliminated the ``same action'' 
defense for employers in ADEA and Title VII retaliation cases, 
which benefitted plaintiffs, while H.R. 1230 restores this 
defense, which benefits defendants. Restoring the ``same 
action'' defense will likely render the mixed-motive standard 
irrelevant for employees, because nearly all employers will be 
able to demonstrate they would have taken the same employment 
action in the absence of the impermissible factor, a showing 
which therefore eliminates monetary damages for plaintiffs 
under the bill.

H.R. 1230 Will Promote and Increase Frivolous Litigation

    Retaliation cases are particularly ill-suited to allow 
mixed-motive causation, which would increase frivolous 
litigation rather than benefitting workers. Retaliation is the 
most frequently claimed violation for those filing charges with 
EEOC.\13\ Retaliation claims inherently involve ``differing 
explanations'' by the employee and employer.\14\ In a 
retaliation claim, the employee will have already made a 
discrimination complaint or availed him or herself of Title VII 
processes, so it will be a mere formality for the employee to 
plead that a subsequent adverse employment action is 
retaliation. The business owner will be faced with a nearly 
impossible task of proving the employee's discrimination 
complaint was not a motivating factor in taking the adverse 
employment action.
---------------------------------------------------------------------------
    \13\EEOC, Charge Statistics (Charges filed with EEOC) FY 1997 
Through FY 2018, https://www.eeoc.gov/eeoc/statistics/enforcement/
charges.cfm.
    \14\Lorber Statement, supra note 9, at 6.
---------------------------------------------------------------------------
    The Supreme Court observed in Nassar that in retaliation 
cases, ``lessening the causation standard could . . . 
contribute to the filing of frivolous claims, which would 
siphon resources from efforts by employer, administrative 
agencies, and courts to combat workplace harassment.''\15\ Not 
only would more frivolous claims increase costs, but these 
resources would not be available to prevent harassment and 
other forms of discrimination, defeating the purpose of H.R. 
1230 claimed by its advocates to reduce workplace 
discrimination.
---------------------------------------------------------------------------
    \15\570 U.S. at 358.
---------------------------------------------------------------------------
    The Court was also concerned that permitting mixed-motive 
claims in retaliation cases would encourage plaintiffs to game 
the system by filing anticipatory discrimination claims:

          Consider . . . an employee who knows that he or she 
        is about to be fired for poor performance, given a 
        lower pay grade, or even just transferred to a 
        different assignment or location. To forestall that 
        lawful action, he or she might be tempted to make an 
        unfounded charge of racial, sexual, or religious 
        discrimination; then, when the unrelated employment 
        action comes, the employee could allege that it is 
        retaliation . . . . [T]hat claim could be established 
        by a lessened causation standard, all in order to 
        prevent the undesired change in employment 
        circumstances. Even if the employer could escape 
        judgment after trial, the lessened causation standard 
        would make it far more difficult to dismiss dubious 
        claims at the summary judgment stage . . . . It would 
        be inconsistent with the structure and operation of 
        Title VII to so raise the costs, both financial and 
        reputational, on an employer whose actions were not in 
        fact the result of any discriminatory or retaliatory 
        intent.\16\
---------------------------------------------------------------------------
    \16\Id. at 358-59.

    The Court noted the significance of the ``lessened 
causation standard'' making it ``far more difficult to dismiss 
dubious claims at the summary judgment stage.'' Mixed-motive 
claims are a fallback position for plaintiffs to survive a 
summary judgement motion by the employer. If summary judgment 
is not granted to the employer, most employers will settle the 
case because they will be faced with the risk and expense of a 
---------------------------------------------------------------------------
trial. Mr. King explained this dynamic:

          The critical tactical point in many of these cases is 
        for a plaintiff's attorney to get past an employer's 
        motion for summary judgment. If a plaintiff's attorney 
        can succeed in defeating an employer's summary judgment 
        motion, in virtually every case, the next step is for 
        the plaintiff's attorney to attempt to extract a large 
        settlement payment from the employer. Employers often 
        are inclined to make such payments to avoid large 
        expenses from protracted litigation. Often a large 
        portion of any such settlement goes to the plaintiff's 
        lawyer, with employees and individuals receiving small 
        payments, if any.\17\
---------------------------------------------------------------------------
    \17\King Memo, supra note 11, at 2.

While plaintiffs will receive no monetary damages in most 
mixed-motive court judgments, most settlements in these cases 
will not provide much in the way of payments for plaintiffs 
either.

The Mixed-Motive Standard in H.R. 1230 Contradicts the ADEA

    Adding the mixed-motive standard of proof to the ADEA is 
contrary to the statutory scheme. Many employment actions have 
effects that correlate with age, which the ADEA itself 
acknowledges. Allowing mixed-motive claims in these situations 
would make defending these cases extraordinarily difficult for 
employers.
    The ADEA states that it is lawful for an employer to take 
an employment action otherwise prohibited by the statute if the 
differential treatment is ``based on reasonable factors other 
than age.''\18\ The Supreme Court in 2008 noted the uniqueness 
of ADEA claims in Meacham v. Knolls Atomic Power Laboratory:
---------------------------------------------------------------------------
    \18\29 U.S.C. Sec. 623(f)(1).

          Congress took account of the distinctive nature of 
        age discrimination, and the need to preserve a fair 
        degree of leeway for employment decisions with effects 
        that correlate with age, when it put the RFOA 
        [reasonable factor other than age] clause into the 
        ADEA, ``significantly narrow[ing] its coverage.''\19\
---------------------------------------------------------------------------
    \19\554 U.S. 84, 102 (2008) (citation omitted).

    Allowing mixed-motive claims in age discrimination cases 
will eliminate the flexibility Congress intended when it 
adopted the ADEA. Commenting on the RFOA provision in the ADEA, 
---------------------------------------------------------------------------
Mr. Lorber wrote:

          [The ADEA] recognizes, as it should, that in dealing 
        with the complexities of discrimination, not every form 
        of discrimination is the same nor does it require that 
        every form of discrimination be defined precisely the 
        same, or that procedures and remedies designed to 
        address the discrimination be the same . . . .\20\
---------------------------------------------------------------------------
    \20\Lorber Statement, supra note 9, at 4.

Because the ADEA contemplates there can be reasonable factors 
other than age involved in an employment decision, Mr. Lorber 
also doubted that adding mixed-motive claims to the ADEA is 
---------------------------------------------------------------------------
workable:

          [I]n reviewing the RFOA affirmative defense, it is 
        difficult to square that defense with the mixed-motive 
        theory holding that liability can be found when there 
        are two factors deemed to be motivating . . . . Indeed, 
        it is difficult to discern how the mixed-motive theory 
        can co-exist with the RFOA defense.\21\
---------------------------------------------------------------------------
    \21\Id.

Adding mixed-motive claims to the ADEA is ill-advised and in 
conflict with Congress's intent in enacting the statute 
separately, with different substantive provisions from Title 
VII.

H.R. 1230 Will Impede Reasonable Accommodations under the ADA

    The ADA operates under a completely separate statutory 
scheme than Title VII or the ADEA. Under the ADA, employers 
must provide a reasonable accommodation to an individual with a 
disability unless this would impose an undue burden on the 
employer.\22\ Accommodations are often reached through an 
interactive process between the employer and employee. Under 
H.R. 1230, allowing mixed-motive claims interferes with the 
interactive process in the ADA and makes it more difficult to 
find reasonable accommodations for individuals with 
disabilities. Mr. Lorber explained this outcome:
---------------------------------------------------------------------------
    \22\42 U.S.C. Sec. 12112(b)(5)(A).

          In the interactive process, the parties must engage 
        in discussion of all factors considered for reasonable 
        accommodation. There may be instances where the 
        employer does not accept the proffered accommodation 
        and instances where the employee or applicant does not 
        accept the proffered accommodation. Under a mixed 
        motive theory, the interactive process could by itself 
        be an example of a mixed-motive and lead to a finding 
        of employer liability. Concern about expensive and 
        needless litigation addressing a mixed-motive would 
        hinder the achievement of the key purpose of the ADA 
        and Rehabilitation Act, reasonable accommodation. There 
        is no evidence that the ADA needs the mixed motive 
        analysis in order to be an effective statute.\23\
---------------------------------------------------------------------------
    \23\Lorber Statement, supra note 9, at 5-6.

    Mr. Paretti elaborated on this point, observing that H.R. 
1230 may result in judgments against employers who have not 
---------------------------------------------------------------------------
discriminated on the basis of disability:

          As amended by H.R. 1230, the ADA could presumably 
        result in liability for an employer who fails to engage 
        in the interactive process, even where it may be 
        evidently obvious that no reasonable accommodation 
        would allow the employee to perform the essential 
        functions of his or her position. Is the employer's 
        failure to engage in such a process a ``motivating 
        factor'' under POWADA? Assuming arguendo that it may 
        be, an employer under POWADA may be able to establish a 
        ``same action'' defense as outlined above--proving that 
        its failure to engage would not have changed the 
        ultimate result--but that employer, otherwise acting 
        lawfully under the ADA, would conceivably face 
        liability for injunctive relief, and as a dollars-and-
        cents manner, attorneys' fees.\24\
---------------------------------------------------------------------------
    \24\Paretti Letter, supra note 10, at 3.

    H.R. 1230 disrupts the carefully crafted statutory 
framework of the ADA, increasing employer liability with no 
discernible benefit for employees.

Evidentiary Language in H.R. 1230 is Vague, Overly Broad, and Creates 
        Legal Loopholes

    H.R. 1230 says a plaintiff ``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.'' Further, the bill's findings and 
purposes state that a plaintiff under H.R. 1230 ``may 
demonstrate an unlawful employment practice through any 
available method of proof or analytical framework.'' This is 
exceedingly broad language that could allow a plaintiff to 
evade traditional civil litigation requirements. Mr. Paretti 
discussed concerns regarding the evidentiary language in H.R. 
1230:

          [C]ertain provisions of H.R. 1230 are unclear in 
        their scope and purpose, and appear to be novel 
        additions to the existing scheme of federal law 
        protecting the civil rights of employees . . . . 
        Foremost, we note that this language is almost 
        limitlessly broad, and that the inclusion of it as a 
        ``purpose'' of POWADA does nothing to clarify the 
        application of the proposed statutory language, instead 
        leading only to confusion as to the law's true intent 
        and impact.\25\
---------------------------------------------------------------------------
    \25\Id. at 3-4.

Such unclear and overly broad language in H.R. 1230 regarding 
evidentiary standards is unnecessary and will result in 
confusion and unnecessary subsequent litigation.

                         Republican Amendments

    Committee Republicans offered several amendments during the 
Committee markup to highlight the fundamental policy flaws in 
H.R. 1230 and to advance important priorities and practical 
solutions for all workers, including older workers.
    To add some much-needed truth in advertising to the bill, 
Representative Lloyd Smucker (R-PA) offered an amendment to add 
a finding pointing out that under H.R. 1230, nearly all 
successful plaintiffs will not be entitled to monetary damages, 
other payments, or reinstatement. As discussed previously, the 
Supreme Court in Gross eliminated the defense that allows the 
employer to demonstrate it would have taken the same employment 
action in the absence of the impermissible factor, such as age, 
while H.R. 1230 restores this defense. Nearly all employers 
will be able to make this demonstration, and plaintiffs in 
these cases will not be entitled to any monetary damages, other 
payments, or reinstatement. Only the trial lawyers in these 
cases will be paid. Committee Democrats nonetheless unanimously 
rejected this amendment that would have informed workers they 
are very unlikely to be awarded any damages, other payments, or 
reinstatement under H.R. 1230.
    A second amendment was offered by Representative Rick Allen 
(R-GA) to ensure the Committee receives needed data and 
evidence, which the majority failed to provide, as it considers 
H.R. 1230. The amendment required that the Government 
Accountability Office do a much-needed study on whether the 
Supreme Court decisions in Gross and Nassar have discouraged 
individuals from seeking or achieving legal relief before the 
legislation goes into effect. The amendment is needed because 
the Committee failed to hold a hearing dedicated to examining 
the legislation, and it only heard testimony from one witness 
invited by the Democrats at a wide-ranging hearing on a number 
of disparate workforce topics. Remarkably, the one Democrat-
invited witness who testified at the hearing about the bill 
acknowledged ``it is difficult to quantify the impact that the 
Gross decision has had on the number of older workers who bring 
cases, and the number of those who win,'' and ``when we might 
have expected a drop in charges due to Gross-inspired 
discouragement from employment attorneys, there was a sizeable 
jump in the number of ADEA charges filed with EEOC.''\26\ In 
fact, age discrimination and retaliation charges as a 
percentage of all charges filed with EEOC have not declined 
since Gross and Nassar were handed down,\27\ and plaintiffs 
continue to win age discrimination and retaliation cases in the 
courts. Committee Democrats unanimously rejected this amendment 
to gather much-needed data before making changes to the 
nation's civil rights laws and proceeded to adopt H.R. 1230 
despite a lack of evidence indicating a need for the bill.
---------------------------------------------------------------------------
    \26\McCann Statement, supra note 1, at 6.
    \27\See EEOC, Charge Statistics (Charges filed with EEOC) FY 1997 
Through FY 2018, supra note 2.
---------------------------------------------------------------------------
    Republican Leader Virginia Foxx (R-NC) offered an amendment 
to strike the unworkable and ill-advised provisions in H.R. 
1230 allowing mixed-motive claims in Title VII retaliation 
cases. Allowing mixed-motive claims in retaliation cases is 
contrary to the text, structure, and history of Title VII, as 
the Supreme Court held in Nassar. All retaliation claims are 
inherently about differing explanations. The Supreme Court 
pointed out in Nassar that in a retaliation claim, the 
plaintiff has already made a discrimination complaint or can 
make an anticipatory discrimination complaint, and, under the 
mixed-motive standard, it will be a mere formality to plead the 
subsequent employment action in question was retaliatory.\28\ 
As noted previously, the Supreme Court in Nassar wrote that in 
retaliation cases, ``lessening the causation standard could 
also contribute to the filing of frivolous claims, which would 
siphon resources from efforts by employers, administrative 
agencies, and courts to combat workplace harassment.''\29\ The 
Supreme Court also noted the concern about diverting resources 
was especially relevant because retaliation charges filed at 
EEOC had nearly doubled in the past 15 years and had become the 
second-most frequently filed category of charge in 2013. This 
concern is even more relevant today, because retaliation is now 
the most frequently filed EEOC charge.\30\ Despite these 
serious concerns with adding mixed-motive claims to retaliation 
cases, Democrats unanimously rejected this prudent amendment.
---------------------------------------------------------------------------
    \28\570 U.S. at 358.
    \29\Id.
    \30\See EEOC, Charge Statistics (Charges filed with EEOC) FY 1997 
Through FY 2018, supra note 2.
---------------------------------------------------------------------------

                               Conclusion

    H.R. 1230 is an unnecessary and misleading bill that does 
not ``protect older workers.'' Committee Democrats failed to 
allow a proper examination of H.R. 1230, depriving Members of 
the opportunity to review the legislation appropriately before 
it was considered by the Committee. Supporters of the bill also 
failed to demonstrate that the legislation is needed, or that 
it will actually help workers. H.R. 1230 was instead written 
for the benefit of trial lawyers, ensuring they will be paid, 
while most workers will not receive any monetary damages, other 
payments, or reinstatement. For these reasons, and the reasons 
described above, we oppose the enactment of H.R. 1230 as 
reported by the Committee on Education and Labor.
                                   Virginia Foxx,
                                     Ranking Member.
                                   David P. Roe.
                                   Glenn ``GT'' Thompson.
                                   Tim Walberg.
                                   Brett Guthrie.
                                   Bradley Byrne.
                                   Rick W. Allen.
                                   Lloyd Smucker.
                                   Mark Walker.
                                   Jim Banks.
                                   James Comer.
                                   Russ Fulcher.
                                   Van Taylor.
                                   Steve Watkins.
                                   Ron Wright.
                                   Daniel Meuser.
                                   Dusty Johnson.
                                   Fred Keller.
                                   Gregory F. Murphy.