A bipartisan group in Congress wants to make it easier for employees to prove age discrimination

On Monday, three House Republicans and three House Democrats reintroduced the Protecting Older Workers Against Discrimination Act (POWADA), billed as a bipartisan proposal to strengthen anti-discrimination protections for older workers.

How does POWADA accomplish this?

The Age Discrimination In Employment Act makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”

In 2008, the Supreme Court in Gross v. FBL Financial Services concluded that a plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause, i.e., the decisive factor for the challenged adverse employment action. Since then, most courts have agreed that a plaintiff bringing an ADEA claim must establish that age must have “a determinative influence on the outcome.”

POWADA lowers the evidentiary standard for age discrimination from “but for” to “motivating factor,” even though other factors may have also motivated the employer (thereby allowing what are commonly known as mixed-motive claims). The bill further clarifies that a plaintiff need not demonstrate that age or retaliation (under ADEA, Title VII, Rehabilitation Act, or ADA) was the sole cause of an employment practice.

In 2021, the House voted 247-178 to pass POWADA. However, POWADA did not make it out of the Senate.

Grace Elletson at Law360 reports that the bill was also reintroduced in the Senate in March by Sens. Bob Casey, D-Pa., and Chuck Grassley, R-Iowa, and referred to the Committee on Health, Education, Labor and Pensions. However, POWADA has languished there since.

A POWADA fact sheet notes that the measure will “ensure victims are not required to refute every purported nondiscriminatory motive offered by the employer for their discriminatory action.”

That overstates the plaintiff’s burden.

In Bostock v. Clayton County, the Supreme Court recognized that discrimination “because of” a protected class doesn’t mean the “sole factor.” In discussing this standard, the Bostock Court noted that “[o]ften, events have multiple but-for causes. So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision.”

Also, many plaintiffs bring their federal age claims in tandem with a state law version of the ADEA, many of which have lower evidentiary standards than the federal counterpart.

So, in practice, the lines establishing the burdens of proving discrimination are often blurred.

I’ll keep you updated if the latest attempt at passing POWADA is successful.