10.06.09

Bicameral Legislation Will Protect Older Workers From Discrimination, Restore Civil Rights

WASHINGTON – Today, three Chairmen – Senator Tom Harkin (D-IA), Chairman of the Health, Education, Labor and Pensions (HELP) Committee, Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, and Congressman George Miller (D-CA), Chairman of the House Education and Labor Committee – introduced landmark legislation that restores vital civil rights protections for older workers in the face of the Supreme Court’s decision in Gross v. FBL Financial.

In Gross, the Supreme Court rewrote civil rights laws, overturning well-established precedent and making it harder for workers facing age discrimination to enforce their rights.  The Court ruled that it is no longer enough for a victim of discrimination to prove that age was a motivating factor in an adverse employment decision.  An employee must now prove that it was the decisive factor.  The Court’s holding specifically means that victims of age discrimination face a higher burden than those alleging race, sex, national origin or religious discrimination.  And, the opinion has already had reverberations in a wide range of civil rights cases beyond age discrimination.  Senators Durbin (D-IL), Specter (D-PA), Kohl (D-WI), Schumer (D-NY), Franken (D-MN), Sanders (I-VT), Brown (D-OH), Cardin (D-MD), Merkley (D-OR), Feinstein (D-CA) and Dodd (D-CT) are original co-sponsors of the bill.

“For decades we have had a consistent standard, whether based on race, sex, national origin, religion or age.  The Gross decision established a far higher standard of proof for age than for other forms of discrimination, without any rationale or justification,” Senator Harkin said.   “Today we will introduce the Protecting Older Workers Against Discrimination Act with the simple purpose of reversing the Court’s decision and restoring the law to what it was for decades.  We intend to make certain that, once again, Jack Gross and all older workers in this country enjoy the full protections of the law.”

“Preserving the Age Discrimination and Employment Act is important to ensure that the great progress we have made in widening the doors of opportunity for all Americans continues in the future.  I am concerned that the Gross decision will allow employers to discriminate on the basis of age with impunity as long as it is paired with other reasons,” Senator Leahy said.  “I fear that in the wake of Gross few, if any, of these victims will achieve justice.  The Protecting Older Workers Against Discrimination Act will restore vital protections that have long secured the promise of equal rights and equal opportunity for older workers.”

“The same conservative Supreme Court justices responsible for the backward ruling against Lilly Ledbetter have now thrown another legal barrier in front of hard-working older Americans,” said Rep. Miller.  “Workplace discrimination based on age is just as wrong as discrimination based on any other irrelevant factor -- and it should be treated as such in the court of law. The Protecting Older Workers Against Discrimination Act will ensure that all workers are treated fairly and not subject to decisions based on an employer’s prejudice, especially in this difficult economy.”

"Thanks to the leadership of Chairmen Harkin, Leahy and Miller, this legislation will protect older workers from being relegated to second class status when they try to vindicate their rights under the ADEA," AARP Executive Vice President Nancy LeaMond said.   "For more than fifty years, AARP has been fighting against age discrimination and working to promote the value and experience older workers bring to the job. AARP is proud to endorse this legislation, and we urge Congress to quickly approve this bill as a critical first step to restore protections under our age discrimination laws.”

The Protecting Older Workers Against Discrimination Act will restore fundamental fairness.

  • The Act reverses the Gross decision and restores the law to what it was for decades before the Court rewrote the rule.  The Act makes clear that when a victim shows discrimination was a “motivating factor” behind a decision, the burden is properly on the employer to show it complied with the law.  
  • The Act is modeled on the Civil Rights Act of 1991, which passed the Senate on a bipartisan basis 93-5.  Among other things, the Civil Rights Act of 1991 codified the “motivating factor” framework for race, sex, national origin and religion discrimination claims under Title VII of the Civil Rights Act of 1964.  
  • The Act makes clear that this “motivating factor” framework applies to all anti-discrimination and anti-retaliation laws – treating all workers, and all forms of discrimination, equally.


The bill is supported by the AARP, the Leadership Conference on Civil Rights, the National Senior Citizens Law Center and the National Women’s Law Center.

The members were joined at an event on Capitol Hill by Iowan Jack Gross, the plaintiff in the case, and by Nancy LeaMond, Executive Vice President of Social Impact at AARP.  Gross will testify before the Judiciary Committee on Wednesday, October 7.  The hearing will focus on the impact of the Gross decision and other Supreme Court decisions that have made it more difficult for workers to take employers to court for civil rights violations and, once there, more difficult for victims to prove workplace discrimination.  The hearing will be webcast live online.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Introduction Of The Protecting Older Workers Against Discrimination Act
October 6, 2009

Today, I am pleased to join Senator Harkin and other Senators to introduce the Protecting Older Workers Against Discrimination Act.  This legislation overturns the Supreme Court’s recent decision in Gross v. FBL Financial Services, a divided case that thwarted congressional intent, overturned well-established precedent, and delivered a major blow to the ability of older workers to fight age discrimination.  This bill restores the intent of Congress to fully empower older workers to seek redress in the courts, and to root out discrimination in the workplace.
 
I thank Senator Harkin for introducing this bill, and I commend him for his commitment and dedication over the years to ensure that the promise of equal opportunity is real for all Americans.  We worked hard last year to enact into law the ADA Amendments Act, which clarified and expanded protections for Americans with disabilities.  I am proud to once again join as an original cosponsor of legislation that will do the same for older workers.  I am also pleased that Congressman George Miller will introduce a companion bill in the House today as well.
 
This Nation was founded on the promise of equal rights and equal opportunity for all Americans.  To fulfill this promise, Congress has enacted a full slate of civil rights laws to eliminate discrimination in society, including the workplace.  In 1967, Congress passed the Age Discrimination and Employment Act (ADEA) with the intent to extend protections against workplace discrimination to older workers.  We strengthened those protections in the Civil Rights Act of 1991, which the Senate passed by a vote of 93 to five.
 
However, contrary to the intent of Congress, the Supreme Court’s decision in Gross will make it more difficult for older workers victimized by age discrimination to vindicate their rights.
 
In passing the ADEA, Congress aimed to eliminate all forms of age discrimination in the workplace.  Consistent with this goal, courts have for decades interpreted the ADEA in the same way as other antidiscrimination laws.  Victims of age discrimination were only required to show that age was a “motivating factor” for an employer’s adverse action, though other factors may have also motivated a company’s firing or termination of an employee.
 
In Gross, however, the Supreme Court misinterpreted the intent of Congress and ignored the longstanding precedent in a way that resulted in weakening core civil rights protections for older workers.  In a 5-4 decision, a majority of the Court concluded that under the ADEA an employee must now prove that age was the sole cause of an employer’s adverse action.  As a result, despite our intent to provide the same protections for older workers in the ADEA as we provided for racial minorities in Title VII of the Civil Rights Act of 1964, today older workers now have less protection against workplace discrimination.
 
I am concerned that the Gross decision will allow employers to discriminate on the basis of age with impunity as long as it is paired with other reasons.  Older workers, who make up nearly 50 percent of the American workforce, are particularly vulnerable to suffering discrimination during difficult economic times.  In fact, age discrimination complaints filed with the Equal Employment Opportunity Commission (EEOC) jumped nearly 30 percent between 2007 and 2008.  I fear that in the wake of Gross few, if any, of these victims will attain justice.
 
The Protecting Older Workers Against Discrimination Act, which is modeled on the Civil Rights Act of 1991, would reverse the Gross decision, strengthen the safeguards of the ADEA, and restore fundamental fairness.  The bill eliminates the high burden of proof that victims of age discrimination must meet after Gross.  It clarifies that the standard for proving discrimination under the ADEA and other anti-discrimination and anti-retaliation laws is the same as the standard for proving race discrimination under Title VII.  The bill makes clear that when a litigant shows that age was a motivating factor for an adverse employment action, the burden is on the employer to prove it complied with the law.  This will restore the law to what it was for decades before the Court rewrote the rule.
 
The bill also ensures that all workers will be treated equally in the workplace.  Today, some lower courts have already applied Gross to weaken the protections in other anti-discrimination statutes.  The legislation clarifies that the “motivating factor” standard applies to all anti-discrimination and anti-retaliation laws, and reflects a broader commitment to address the needs of all persons who suffer discrimination.  It reaffirms that Americans’ rights will be honored.  It also restores the faith of the public that our civil rights laws are just and fair.  Those are timeless American values that we can all embrace.
 
We have drafted this measure after long and thoughtful consideration with the Leadership Conference on Civil Rights, a broad coalition of hundreds of civil rights and workers’ rights organizations.  The bill also has the support of AARP, the National Senior Citizens Law Center, the National Women’s Law Center and the National Employment Lawyers Association.  Their support gives me confidence that this legislation will improve the lives of all Americans.
 
Time has shown that the ADEA has been one of our Nation’s most effective tools in combating discrimination.  Its continued effectiveness is important to ensure that the great progress we have made in widening the doors of opportunity for all Americans continues in the future.  The Protecting Older Workers Against Discrimination Act will restore vital protections that have long secured the promise of equal rights and equal opportunity for older workers.  I hope all Senators will support passing this critical civil rights measure this year.

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