Lawmakers have introduced a bill that would lower the burden of proof for employees bringing disability and age discrimination claims.
If passed, the Protecting Older Workers Against Discrimination Act (S. 2189) would change the laws’ “but for” standard to one allowing “mixed motives.”
Both the Americans With Disabilities Act and the Age Discrimination in Employment Act require that employees alleging discrimination show that they would not have suffered an adverse employment action “but for” their disability or age.
In contrast, other anti-discrimination laws allow employees to pursue claims where there is a “mixed motive” behind an adverse employment action. They need only show that the protected class or activity was a contributing factor. So, for example, the bill would allow an employee to continue with an ADEA claim where both poor performance and age were factors that led to a termination.
The bill specifically overturns a 2009 Supreme Court opinion, Gross v. FBL Financial Services, Inc., that held that employees bringing an ADEA claim must show that the adverse employment action in question would not have occurred but for his or her age.
“Prior to the Court’s decision in Gross, the same standard of proof applied equally to all workers, regardless of the type of invidious discrimination they faced,” said Sen. Tom Harkin (D-Iowa), one of the bill’s sponsors, in a statement. “Ignoring these consistent standards, the Court’s decision established a far higher standard of proof for age than for discrimination based on race, sex, national origin and religion, without any rationale or justification.”
The bill was referred to the Senate Committee on Health, Education, Labor, and Pensions for consideration. Similar bills were introduced in both houses of Congress last session, but died in committee.