II
116th CONGRESS
1st Session
S. 485
IN THE SENATE OF THE UNITED STATES
February 14, 2019
Mr. Casey (for himself, Mr. Grassley, Mr. Leahy, and Ms. Collins) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions
A BILL
To amend the Age Discrimination in Employment Act of 1967 and other laws to clarify appropriate standards for Federal employment discrimination and retaliation claims, and for other purposes.
Short title
This Act may be cited as the Protecting Older Workers Against Discrimination Act
.
Findings and purposes
Findings
Congress finds the following:
In enacting section 107 of the Civil Rights Act of 1991 (adding section 703(m) of the Civil Rights Act of 1964), Congress reaffirmed its understanding that unlawful discrimination is often difficult to detect and prove because those who discriminate do not usually admit their discrimination and often try to conceal their true motives. Section 703(m) of the Civil Rights Act of 1964 expressly approved so-called mixed motive claims, providing that an unlawful employment practice is established when a protected characteristic was a motivating factor for any employment practice, even though other factors also motivated the practice.
Congress enacted amendments to other civil rights statutes, including the Age Discrimination in Employment Act of 1967 (referred to in this section as the ADEA), the Americans with Disabilities Act of 1990, and the Rehabilitation Act of 1973, but Congress did not expressly amend those statutes to address mixed motive discrimination.
In the case of Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court held that, because Congress did not expressly amend the ADEA to address mixed motive claims, such claims were unavailable under the ADEA, and instead the complainant bears the burden of proving that a protected characteristic or protected activity was the but for cause of an unlawful employment practice. This decision has significantly narrowed the scope of protections afforded by the statutes that were not expressly amended in 1991 to address mixed motive claims.
Purposes
The purposes of this Act are—
to clarify congressional intent that mixed motive claims shall be available, and that a complaining party need not prove that a protected characteristic or protected activity was the but for cause of an unlawful employment practice, under the ADEA and similar civil rights provisions;
to reject the Supreme Court’s reasoning in the Gross decision that Congress’ failure to amend any statute other than title VII of the Civil Rights Act of 1964 (with respect to discrimination claims), in enacting section 107 of the Civil Rights Act of 1991, suggests that Congress intended to disallow mixed motive claims under other statutes; and
to clarify that complaining parties—
may rely on any type or form of admissible evidence to establish their claims of an unlawful employment practice;
are not required to demonstrate that the protected characteristic or activity was the sole cause of the employment practice; and
may demonstrate an unlawful employment practice through any available method of proof or analytical framework.
Standards of proof
Age discrimination in employment Act of 1967
Clarifying prohibition against impermissible consideration of age in employment practices
Section 4 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623) is amended by inserting after subsection (f) the following:
Except as otherwise provided in this Act, an unlawful practice is established under this Act when the complaining party demonstrates that age or an activity protected by subsection (d) was a motivating factor for any practice, even though other factors also motivated the practice.
In establishing an unlawful practice under this Act, including under paragraph (1) or by any other method of proof, a complaining party—
may rely on any type or form of admissible evidence and need only produce evidence sufficient for a reasonable trier of fact to find that an unlawful practice occurred under this Act; and
shall not be required to demonstrate that age or an activity protected by subsection (d) was the sole cause of a practice.
.
Remedies
Section 7 of such Act (29 U.S.C. 626) is amended—
in subsection (b)—
in the first sentence, by striking The
and inserting (1) The
;
in the third sentence, by striking Amounts
and inserting the following:
Amounts
;
in the fifth sentence, by striking Before
and inserting the following:
Before
; and
by inserting before paragraph (4), as designated by clause (iii) of this subparagraph, the following:
On a claim in which an individual demonstrates that age was a motivating factor for any employment practice, under section 4(g)(1), and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—
may grant declaratory relief, injunctive relief (except as provided in subparagraph (B)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 4(g)(1); and
shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.
; and
in subsection (c)(1), by striking Any
and inserting Subject to subsection (b)(3), any
.
Definitions
Section 11 of such Act (29 U.S.C. 630) is amended by adding at the end the following:
The term demonstrates means meets the burdens of production and persuasion.
.
Federal employees
Section 15 of such Act (29 U.S.C. 633a) is amended by adding at the end the following:
Sections 4(g) and 7(b)(3) shall apply to mixed motive claims (involving practices described in section 4(g)(1)) under this section.
.
Title VII of the Civil Rights Act of 1964
Clarifying prohibition against impermissible consideration of race, color, religion, sex, or national origin in employment practices
Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2) is amended by striking subsection (m) and inserting the following:
Except as otherwise provided in this title, an unlawful employment practice is established under this title when the complaining party demonstrates that race, color, religion, sex, or national origin or an activity protected by section 704(a) was a motivating factor for any employment practice, even though other factors also motivated the practice.
.
Federal employees
Section 717 of such Act (42 U.S.C. 2000e–16) is amended by adding at the end the following:
Sections 703(m) and 706(g)(2)(B) shall apply to mixed motive cases (involving practices described in section 703(m)) under this section.
.
Americans With Disabilities Act of 1990
Definitions
Section 101 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111) is amended by adding at the end the following:
Demonstrates
The term demonstrates means meets the burdens of production and persuasion.
.
Clarifying prohibition against impermissible consideration of disability in employment practices
Section 102 of such Act (42 U.S.C. 12112) is amended by adding at the end the following:
Proof
Establishment
Except as otherwise provided in this Act, a discriminatory practice is established under this Act when the complaining party demonstrates that disability or an activity protected by subsection (a) or (b) of section 503 was a motivating factor for any employment practice, even though other factors also motivated the practice.
Demonstration
In establishing a discriminatory practice under paragraph (1) or by any other method of proof, a complaining party—
may rely on any type or form of admissible evidence and need only produce evidence sufficient for a reasonable trier of fact to find that a discriminatory practice occurred under this Act; and
shall not be required to demonstrate that disability or an activity protected by subsection (a) or (b) of section 503 was the sole cause of an employment practice.
.
Certain antiretaliation claims
Section 503(c) of such Act (42 U.S.C. 12203(c)) is amended—
by striking The remedies
and inserting the following:
In general
Except as provided in paragraph (2), the remedies
; and
by adding at the end the following:
Certain antiretaliation claims
Section 107(c) shall apply to claims under section 102(e)(1) with respect to title I.
.
Remedies
Section 107 of such Act (42 U.S.C. 12117) is amended by adding at the end the following:
Discriminatory motivating factor
On a claim in which an individual demonstrates that disability was a motivating factor for any employment practice, under section 102(e)(1), and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—
may grant declaratory relief, injunctive relief (except as provided in paragraph (2)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 102(e)(1); and
shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.
.
Rehabilitation Act of 1973
In general
Sections 501(f), 503(d), and 504(d) of the Rehabilitation Act of 1973 (29 U.S.C. 791(f), 793(d), and 794(d)), are each amended by adding after the words title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.)
the following: , including the standards of causation or methods of proof applied under section 102(e) of that Act (42 U.S.C. 12112(e)),
.
Federal employees
The amendment made by paragraph (1) to section 501(f) shall be construed to apply to all employees covered by section 501.
Application
This Act, and the amendments made by this Act, shall apply to all claims pending on or after the date of enactment of this Act.
