A bipartisan group of three United States Senators recently introduced legislation designed to overturn the United States Supreme Court’s 2009 decision in Gross v. FBL Financial, Inc.  The bill, titled the Protecting Older Workers Against Discrimination Act, would amend the Age Discrimination in Employment Act (ADEA) as well as other federal anti-discrimination laws and provide clarity regarding the standards used in such cases.

Most significantly, the legislation would alter the framework of federal age discrimination claims.  In Gross, based upon the language of the ADEA the Supreme Court held that a plaintiff alleging age discrimination is required to prove that age was the decisive factor that led to the challenged adverse employment action.  This “but for” standard of causation is more arduous than the standard used in claims pursued under Title VII of the Civil Rights Act of 1964, which protects employees from discrimination on the basis of characteristics such as race and sex.  In Title VII cases, courts have permitted plaintiffs to proceed under a “mixed motive” theory.  In “mixed motive” cases the plaintiff is allowed to proceed by merely demonstrating that an impermissible consideration, such as race or sex, was one of the motivating factors behind the employer’s action – not necessarily the sole reason.  If the plaintiff is able to meet this lower threshold, in order to avoid liability, the employer bears the burden of proving it acted based upon a legitimate, nondiscriminatory reason.

If signed into law, the proposed legislation would allow a plaintiff claiming age discrimination to proceed under a “mixed motive” theory.  Thus, plaintiffs would no longer be required to prove that age discrimination was the sole reason behind the challenged employment action.  Moreover, employers would often be forced to shoulder the burden of proving its decisions were based upon legitimate, nondiscriminatory reasons as many plaintiffs are able to successfully raise an inference that age played some role in the employer’s decision.  Furthermore, the legislation would also clarify that other federal anti-discrimination statutes permit “mixed motive” claims.

Believing that the Supreme Court’s decision in Gross significantly narrowed the protections afforded to older workers by the ADEA, the senators who introduced this bill are seeking to ensure that individuals subjected to discrimination are able to effectively enforce their rights.  However, in doing so, employers will necessarily be subjected to heightened scrutiny if an employee makes a claim of age discrimination.

As a result, employers are advised to follow this bill as it proceeds through Congress and to be aware of its impact should the bill become law.  If enacted, this legislation could lead to an increased number of age discrimination claims, in addition to making those claims more difficult to defend.  Even though age is already a factor that employers should not consider when making employment decisions, this proposed legislation will increase the likelihood that employers could be found liable for age discrimination and the importance of making decisions without consideration of an individual’s age will become even more critical.