Employers might face more age discrimination lawsuits if Congress passes the Protecting Older Workers Against Discrimination Act (POWADA). This proposed bill would essentially reverse a 2009 Supreme Court decision that had made it harder for workers to win age-discrimination claims.

What’s at stake is how difficult it would be for older workers to prove that their being laid off, demoted, not promoted, or otherwise negatively affected by an employer’s action meant that the employer had unlawfully discriminated against them on the basis of age. If the bill passes, workers will have an easier time winning age-discrimination claims than they do now.

Proving Age-Discrimination Claims

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against job applicants and employees age 40 and up because of their age. It covers all terms and conditions of employment as well as harassment based on age, including offensive remarks that create a hostile work environment.

Before the 2006 Supreme Court case Gross v. FBL Financial Services, workers could win age-discrimination claims even if the employer had what the Court called “mixed motives” — that is, even if age was only one reason among several for the employers’ adverse action against the worker. If the worker could prove that age was a factor in the employer’s decision, then the employer had to prove that it had a legitimate reason other than age for its action in order to defend against the claim.

The Gross case made it harder for the employee and easier for the employer. The decision required the employee prove that age was the deciding factor, not just a factor, in the adverse action.

POWADA, if it passes, would restore the standard of proof back to what it was before the Gross case. Employees would only need to prove that age was one motivating factor in their employers’ decision.

How Likely Is It That POWADA Will Pass?

It’s too early to tell whether POWADA will become law. The House Education and Labor Committee approved the bill on June 11, 2019, and it still has to be approved by the full House and Senate.

Similar legislation was introduced twice before, and both times it failed to get full Congressional approval. This time could be different, though. The bill has bipartisan support in both the House and the Senate, including from influential members of Congress. The Democratic Representative Bobby Scott, Chair of the House Committee on Education and Labor, and the Republican Jim Sensenbrenner are sponsoring the bill in the House, and the Republican Senator Chuck Grassley and the Democratic Bob Casey are the sponsors in the Senate. Republican Senator Susan Collins, Chair of the Senate Special Committee on Aging, also supports the bill.

Older Workers Will Be a Larger Part of the Workforce

If POWADA does pass, its results could be amplified because of the growing percentage of older workers in the American workforce. According to AARP, workers 50 years and older are projected to comprise more than one-third of the workforce by 2022.

 Only a small percentage of older workers now bring lawsuits for age discrimination. That could change if POWADA passes, making it easier for workers to prove their claims. Older people already believe in the prevalence of age discrimination in the workplace. An AARP survey of people age 45 and up found that 61% reported they had seen or personally experienced age discrimination at work and, of those, 38% believed age discrimination was very common.

What Can Employers Do to Protect Their Organizations from Age Discrimination Claims?

The ADEA protects older workers in a wide range of employment situations, and employers should become aware of the breadth of the law. People can also have age-related biases that they aren’t even aware of, and they may unintentionally discriminate against older workers. Employers should have policies and training materials in place that address these issues.  

Contact Ablin law for more information on what you can do to protect your organization from being sued for age discrimination.

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