Hunton Profile

Administrative Law Task Force

The Administrative Task Force plays a critical role in keeping our OSHA practice current and vibrant.  We follow developments daily and we work together to analyze the impact that proposed and actual changes will have on the law in general and specifically on our client’s industries. Employers today face an unprecedented range of workplace safety and OSHA legal issues as government increases worker safety and health regulation and demands meticulous reviews by its OSHA inspection force.

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Hearings Held On H.R. 3721, The "Protecting Older Workers From Discrimination Act"

Earlier this summer the House Judiciary Committee on the Constitution, Civil Rights, and Civil Liberties held hearings on H.R. 3721, a/k/a the “Protecting Older Workers From Discrimination Act” (POWADA), which was introduced in the wake of the Supreme Court’s controversial 5-4 decision in Gross v. FBL Financial Services, Inc.  In the decision written by Justice Clarence Thomas, the Supreme Court held that under the Age Discrimination in Employment Act (ADEA), a plaintiff pursuing a disparate treatment claim for age discrimination must prove, by a preponderance of the evidence, that the employee would not have suffered an adverse employment action “but for” his age.  The Court held that the text of the ADEA did not authorize “mixed motives” claims, and that the burden of persuasion does not shift to the employer, even when there is evidence that the plaintiff’s age was a motivating factor in the adverse decision.

In response, lawmakers introduced legislation in the House and Senate, including H.R. 3721 and S. 1756, which would effectively overturn Gross.  Legislators note that Gross imposes a higher burden for age discrimination plaintiffs than plaintiffs suing under Title VII or the Americans with Disabilities Act.  If passed, POWADA would standardize the burdens of production and proof in all employment discrimination cases.  Under POWADA, an age discrimination plaintiff -- like a Title VII plaintiff -- could prevail by proving either that an impermissible factor motivated the adverse action or practice complained of, even if other factors also motivated the action or practice; or by proving the action or practice would not have occurred in the absence of an impermissible factor.

Congressman Jerrold Nadler (D-NY), who chaired the hearings on H.R. 3721 in June, stated that Gross “creates substantially different standards across and between federal civil rights laws, thus undermining their predictability, scope, and effectiveness.”  According to Congressman Nadler, “H.R. 3721 seeks to restore the pre-Gross standard for proving age discrimination and the longstanding presumption that Title VII’s framework and precedent applies to other federal discrimination and retaliation laws.  We should act promptly to correct the Gross decision before more damage is done.” 

Congressman George Miller (D-CA), the Chairman of the Committee on Education and Labor who sponsored H.R. 3721, likewise notes that POWADA will “make the standard for proving age discrimination the same as those alleging race, national origin or religious discrimination,” and that Congress intends to “overturn the Supreme Court’s decision [in Gross] and ensure that workers with a legitimate claim will have their day in court.”  Congressman Miller introduced POWADA on October 6, 2009.  When contacted, representatives for Congressman Miller would not predict when a committee report may be issued on H.R. 3721, or when the bill might reach the House floor for a vote.  Bills start in House committees and enter Senate committees only after being passed by the House and received by the Senate.  Many bills are never referred to a committee at all, and most bills never receive committee consideration or are reported out.  POWADA remains in the first step of the legislative process, but it appears to have wide support and has been referred to numerous committees, including the House Subcommittee on Education and Labor and the House Judiciary Committee on the Constitution, Civil Rights, and Civil Liberties.

Proposed Protecting Older Workers Against Discrimination Act May Alter Other Discrimination And Retaliation Statutes

Committees in both the House and the Senate heard testimony this week regarding the Protecting Older Workers Against Discrimination Act (H.R. 3721 and S. 1756).  Democrats introduced the Act last fall with hopes of restoring employees’ rights under the Age Discrimination in Employment Act (“ADEA”) by overturning the Supreme Court’s decision in Gross v. FBL Fin. Servs. Inc., 557 U.S. __ (2009).

The Supreme Court’s Decision in Gross
In Gross, the Supreme Court ruled that plaintiffs must prove that their age was the “but for” cause of the adverse employment action to establish an age discrimination claim under the ADEA.  By doing so, the Court eliminated the use of the mixed motive theory to prove discrimination in ADEA actions.  As a result, plaintiffs cannot satisfy their burdens of proof by merely showing that age was a motivating factor in the adverse employment action.  Critics of Gross believe that the decision makes it nearly impossible for plaintiffs to win age discrimination claims unless they have the equivalent of a smoking gun. 

Responding to Gross
Currently H.R. 3721 has 32 co-sponsors and S. 1756 has 23 co-sponsors.  The bills are identical and their proponents hope that they will return age discrimination law to pre-Gross standards.  Specifically, the legislation establishes that the standard of proof for claims under the ADEA is “no different” from the mixed motive theory used in Title VII claims.  Additionally, the legislation states that the burden-shifting framework of McDonnell Douglas v. Green, 411 U.S. 792 (1973) applies to ADEA claims. 

Not Just Age Discrimination
Although the title of the legislation refers to age do not be fooled - the Protecting Older Workers Against Discrimination Act involves much more than the protected class of age.  In fact, the Act explicitly states that “the standard for proving unlawful disparate treatment under the [ADEA] and other anti-discrimination and anti-retaliation laws is no different than the standard for making such proof under [T]itle VII.”  With this language, the Act sweeps all other claims of discrimination or retaliation into its scope and as a result it has the potential to significantly impact numerous federal discrimination and retaliation laws.  Based on this, it seems apparent that the Act does more than just return age discrimination claims to the pre-Gross standard of proof. 

Clarification or Confusion?
The Act was created to clarify the standard of proof in age ADEA claims and to correct the perceived “misconceptions” relied on by the Supreme Court in Gross.  Yet, if this legislation is passed in its current form, it is likely that instead of simply bringing clarity to age discrimination claims, it will instead muddy the water in all other discrimination and retaliation claims.  The Act’s reference to “other anti-discrimination and anti-retaliation law” is not only broad but also ambiguous.  It will be necessary to turn to the courts for guidance on this ambiguity.  The Act will need to be further explained and this will likely be done through litigation where plaintiffs will rely on the Act’s broad scope to test the water with their various discrimination and retaliation claims.  Because the reach of this Act is beyond just age discrimination, it is important to track its progress and be alert to its potential affect on all “other anti-discrimination and anti-retaliation laws.”