Congress Moves Toward Easier Standard to Prove Age Discrimination.
We usually do not report on proposed legislation or bills, but this one is important enough for an update – and seems to have the bipartisan and White House backing that could make it law soon.
Last week the House of Representatives passed a bill by a vote of 247-178 that would lighten the standard for age discrimination claims to bring it back in line with other anti-discrimination laws and make it easier for employees to prove a violation of the Age Discrimination in Employment Act (“ADEA”).
The law would effectively nullify Gross v. FBL Financial Services Inc., a 5-4 split decision of the Supreme Court that concluded that ADEA plaintiffs must prove they were discriminated against “because of” age, and requiring a plaintiff to show that “but for” her age, she would not have been fired or otherwise harmed. In contrast, Title VII of the Civil Rights Act has been interpreted to require only that the protected status (sex, race, religion, national origin) was a “motivating factor” or “played a role” in the mistreatment. The plaintiff suing under Title VII may prevail even if the employer had “mixed motives” – both discrimination and legitimate business reasons.
The lighter burden in the new law also would apply to make the “motivating factor” standard available for workers claiming disability discrimination under the Americans with Disabilities Act and retaliation under Title VII.
Given the age of our President (78) and the average age of our Senators (63), we have a feeling this bill will get a sympathetic (if droopy) ear from Nancy Pelosi (81), Mitch McConnell (79) and friends.