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House Passes Age Discrimination Bill

Published on: June 25, 2021

Authors: D. Mark Wilson

Topics: Employment Law

On a largely party-line vote (247 to 178), the House approved the Protecting Older Workers Against Discrimination Act, which would make it easier for older employees to show that discrimination or retaliation was a reason behind an employer’s decision to fire, demote, or take other adverse actions against them.

Background:  Currently, under the Supreme Court's decision in Gross v. FBL Financial Services, Inc., employees alleging age discrimination must prove that age was the “but-for” cause (i.e., determining factor) for the employer's action.  The bill revises this standard by requiring only that an employee demonstrate that age was a motivating factor for an adverse employment action, even though other factors also motivated the action—thereby allowing so-called mixed motive claims.

The Protecting Older Workers Against Discrimination Act (H.R. 2062) would also apply the mixed motive evidentiary standard to other employment discrimination and retaliation laws, including claims under the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Rehabilitation Act.

The House Committee Report minority view notes there is “little to no evidence or data indicating this bill is necessary to ensure workers are protected, … older workers are protected under current law, … [and] the only party who will be paid in nearly all mixed-motive cases is the plaintiff’s attorneys, because most employers will be able to demonstrate that they would have taken the same action in the absence of the impermissible motivating factor.”

Outlook:  It is unclear whether there are enough votes in the Senate to overcome a filibuster.  However, the bill’s long history (it was first introduced in 2009), some Republican support in the House, and two Republican cosponsors for the Senate version of the bill (S. 880) suggest this may be one workplace bill the GOP caucus cedes a vote on this year.

D. Mark Wilson

President and CEO, American Health Policy Institute

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