Legislation that would change burden of proof and causation standards for a number of employment discrimination claims was reintroduced in the House and Senate on Tuesday. The Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 2852, S. 1391) would overturn two Supreme Court decisions that toughened the burdens of proof for employees bringing discrimination claims under the Age Discrimination in Employment Act (ADEA) or advancing retaliation claims under Title VII of the Civil Rights Act.
In 2009, the Court in Gross v. FBL Financial Services, Inc. held that a plaintiff bringing a claim under the ADEA must show by a preponderance of the evidence that age was the "but for" cause of the employer's adverse employment decision. In order to establish a viable claim under Title VII, by contrast, an employee need only demonstrate that the protected category such as race or sex was a contributing factor in the adverse employment decision. In such a "mixed motive" case, the burden then shifts back to the employer to show that it would have made the same decision regardless of the unlawful contributing factor.
In reversing Gross, POWADA would establish that when an employee shows discrimination was a "motivating factor" behind a decision, the burden shifts back to the employer to show it complied with the law. In essence, a plaintiff brining a claim under the ADEA would not be required to demonstrate that age was the sole cause of the contested employment practice.
In a more recent Supreme Court decision, University of Texas Southwestern Medical Center v. Nassar, the Court held that Title VII retaliation claims must be proved using a "but-for" causation standard as well. Under the standard of causation adopted in Nassar, a claimant must prove "that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." The POWADA would provide that the more lenient motivating factor standard would apply not just to ADEA claims, but also to retaliation claims involving race, sex, national origin and religion, as well as claims brought under the Americans with Disabilities Act (ADA) and Rehabilitation Act of 1973.
In a press release, Sen. Patrick Leahy (D-VT), one of the Senate bill's co-sponsors, said:
The Supreme Court's divisive holding in Gross has created uncertainty in our civil rights laws, making it incumbent on Congress to clarify our intent and the statutory protections that all hardworking Americans deserve. . . Our bipartisan bill re-establishes Congress' intent that age discrimination is unlawful, and it makes clear that employers cannot get away with age discrimination by simply coming up with a reason to terminate an employee that sounds less controversial.
Various versions of this bill have been introduced since the 2009 Gross decision, but have failed to advance.
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