05.22.19

By: Patricia Barnes
Source: Forbes

House Committee Debates A Legislative 'Fix' That Would Make It Easier To Prove Age Discrimination

In the past decade, the same proposed law has been repeatedly re-introduced in the U.S. Congress to make it easier for victims of age discrimination to sue discriminatory employers.

Every year that proposed law, Protecting Older Workers Against Discrimination Act (POWADA), dies an ignominious death.

Will this year be different?

The U.S. House Committee on Education and Labor at a hearing Tuesday discussed, among other things, the need to adopt POWADA to fix a 2009 U.S. Supreme Court decision that significantly raised the burden of proof in age discrimination cases. The substantive provisions of the Age Discrimination in Employment Act of 1967 (ADEA) had always been interpreted in line with Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, sex, religion, color and national origin. That ended in 2009 when the nation's high court decided the case of Gross v. FBL Financial Services, Inc. by a close 5-4 vote.

The majority in Gross noted that Congress amended Title VII in 1991 to permit “mixed-motive” cases but did not similarly amend the ADEA. Plaintiffs can prevail in a "mixed-motive" case by showing that discrimination was one of potentially many factors that led to an adverse employment action such as demotion or termination. Since the ADEA was never amended, the court said plaintiffs must prove that age discrimination was the decisive "but for" cause of the alleged discrimination. The Gross decision permits employers to overcome evidence of age discrimination by arguing the plaintiff would have been fired anyway due to another reason.

In his opening statement at the hearing, U.S. Rep. Robert C. “Bobby” Scott (D-Va.), a co-sponsor of POWADA ( H.R. Bill 1230) and the chairperson of the House Education and Labor Committee, said it was necessary to adopt the POWADA to restore the prior alignment between the ADEA and Title VII with respect to burden of proof. “For older Americans, age discrimination is a significant barrier to opportunities. And when older workers lose their jobs, they are far more likely than other workers to join the ranks of the long term unemployed,” he said.

The POWADA is also sponsored in the House by U.S. Rep. F. James Sensenbrenner, Jr. (R-Wis.). 

It has never been clear over the years whether anyone actually opposes the passage of the POWADA. It would, after-all, simply re-establish the parity that existed between the ADEA and Title VII for 40 years. However, an opponent emerged at Tuesday's hearing, U.S. Rep. Virginia. Foxx (R-N.C.).

Foxx, the ranking Republican on the committee, argued generally that the committee should not focus on government intervention but on education reform and providing educational opportunities designed to reduce skill gaps and prepare individuals for jobs. She said the economy is booming and jobs are going unfilled.

"Blaming amorphous entities or concepts ... is a cop out," she said, "It's easy to blame someone or something else for one's failures [but] perpetuating that mindset does not help anyone. It actually hurts a person by helping them avoid the truth."

AARP spokesperson Laurie McCann said federal courts over the years have restricted the intended scope of the ADEA, both hurting older workers and sending a damaging message to employers that age discrimination isn’t as wrong as other forms of discrimination. McCann said the Gross decision “undermined Congress’ entire purpose" for passing the ADEA, to insure that age discrimination plays no role in employment decisions. She said older workers today face "rampant" age discrimination in hiring that is very difficult to prove. "The share of older people who still want a job but have not been able to find one has not recovered from prerecession levels," she said.

A 2018 study by the Urban Institute found that 56% of older workers are pushed out of longtime jobs before they choose to retire and only one in ten will ever again earn as much as they did before their involuntary separation. The Institute found, “[t]he steady earnings that many people count on in their 50s and 60s to build their retirement savings and ensure some financial security in later life often vanishes, upending retirement expectations and creating economic hardship.”

 The POWADA also was introduced in the Senate (S. 485). The Senate sponsors are U.S. Senators Chuck Grassley (R-Iowa), Bob Casey (D-Pa.), Patrick Leahy (D-Vt.), and Susan Collins (R-Maine). 

Skopos Labs, an artificial intelligence research group based in New York City, gives POWADA a 5% chance of passage.

Even if POWADA does eventually pass, the ADEA will still be far weaker than Title VII. Among other things, the ADEA limits damages to monetary loss only and does not permit damages for emotional distress or punitive damages. Moreover, Title VII applies to employers with 15 or more employees while the ADEA sets the threshold for the employer size at 20.