On October 6, Senator Tom Harkin (D-Iowa), Senator Patrick Leahy (D-Vt) and Representative George Miller (D-Cal), introduced the Protecting Older Workers Against Discrimination Act (“POWADA”)(S. 1756/H.R. 3721). POWADA purports to restore civil rights protections for older workers in the face of the US Supreme Court’s holding in Gross v FBL Fin Servs, Inc.
In Gross, the Court held that plaintiffs bringing ADEA disparate treatment claims must establish by preponderance of evidence that age was the “but for” cause of the adverse employment action; age cannot simply be a “motivating factor” in the adverse action. As a result, allegations of age bias face a higher burden of proof than those alleging race, sex, national origin or religious bias since they must prove that age is, in fact, the reason for the adverse decision. The Congressional response to the decision mirrors Title VII’s mixed-motives burden-shifting rubric. POWADA states that a plaintiff can establish an adverse action by demonstrating by a preponderance of the evidence that age was a “motivating factor” for the action, even if other factors also contributed to the decision. Alternatively, the plaintiff can establish by a preponderance of the evidence that the challenged action would not have occurred absent the employee’s age.