by Michael A. Kalish and Adam Tomiak

Sens. Tom Harkin, D-Iowa, Chuck Grassley, R-Iowa, and Patrick Leahy, D-Vt. recently introduced the Protecting Older Workers Against Discrimination Act, a bill intended to lessen the burden on age discrimination plaintiffs under the Age Discrimination in Employment Act (“ADEA”).  The bill seeks to return age discrimination plaintiffs to the standard the Senators believe they were subject to prior to the Supreme Court’s ruling in Gross v. FBL Financial Services, Inc., 557 U.S. __, 129 S. Ct. 2343 (2009).

In Gross, the Supreme Court held that age discrimination plaintiffs must show, by a preponderance of the evidence, that “but for” their age, they would not have been subjected to the adverse employment action.  This contrasts to the burden of persuasion under Title VII, which allows plaintiffs to state a claim based on race, color, religion, sex, or national origin, by showing this characteristic was “a motivating factor” for the adverse employment action.  The Court concentrated on significant differences in the statutes’ language and the history of amendments to each.  As a result, the Court vacated the Eighth Circuit’s decision to allow a “mixed motive” standard, i.e., that the adverse employment action resulted from both discriminatory and non-discriminatory considerations, to sustain an ADEA claim.

The bill seeks to amend the ADEA, as well as the Americans with Disabilities Act and Rehabilitation Act of 1973 (statutes to which lower courts have applied the Gross holding’s reach), to specifically allow mixed-motive claims to discrimination plaintiffs.  In addition, the bill would allow claims under these statutes to be interpreted under the McDonnell Douglas burden-shifting framework, which provides that once an employee has satisfied her or his lowered burden of proof, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for the challenged  employment actions.

If enacted, this bill would potentially lower the standard of proof for ADEA plaintiffs by allowing them to show only that their age was one of many factors, rather than the dispositive factor, in their employer’s decision to take an adverse employment action against them.  This could result in increased exposure to employers defending against age discrimination claims.