H. R To amend the Age Discrimination in Employment Act of 1967 to clarify the appropriate standard of proof. IN THE HOUSE OF REPRESENTATIVES

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1 I 111TH CONGRESS 1ST SESSION H. R. 1 To amend the Age Discrimination in Employment Act of 19 to clarify the appropriate standard of proof. IN THE HOUSE OF REPRESENTATIVES OCTOBER, 009 Mr. GEORGE MILLER of California (for himself, Mr. CONYERS, Mr. ANDREWS, Mr. NADLER of New York, Mr. COURTNEY, Ms. CHU, Ms. CLARKE, Mr. HOLT, Mr. HARE, Mr. KILDEE, Mr. LOEBSACK, Mr. SABLAN, Mr. SCOTT of Virginia, Ms. HIRONO, Ms. WOOLSEY, Mr. BISHOP of New York, and Mr. SESTAK) introduced the following bill; which was referred to the Committee on Education and Labor, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To amend the Age Discrimination in Employment Act of 19 to clarify the appropriate standard of proof. 1 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the Protecting Older wwoods on DSK1DXXB1PROD with BILLS Workers Against Discrimination Act. SEC.. FINDINGS AND PURPOSE. (a) FINDINGS. Congress finds the following: VerDate Nov 008 0:1 Oct 0, 009 Jkt PO Frm Fmt Sfmt 01 E:\BILLS\H1.IH H1

2 wwoods on DSK1DXXB1PROD with BILLS 1 (1) In enacting the Age Discrimination in Em- ployment Act of 19, Congress intended to elimi- nate discrimination against individuals in the work- place based on age. () In passing the Civil Rights Act of 1991, Congress correctly recognized that unlawful discrimi- nation is often difficult to detect and prove because 8 discriminators do not usually admit their discrimina- 9 tion and often try to conceal their true motives. 10 () Congress has relied on a long line of court 11 cases holding that language in the Age Discrimina- 1 tion in Employment Act of 19, and similar anti- 1 discrimination and antiretaliation laws, that is near- 1 ly identical to language in title VII of the Civil 1 Rights Act of 19 would be interpreted consistently 1 with judicial interpretations of title VII of the Civil 1 Rights Act of 19, including amendments made by 18 the Civil Rights Act of The Supreme Court s 19 decision in Gross v. FBL Financial Services, Inc., 0 19 S. Ct. (009), has eroded this long-held 1 understanding of consistent interpretation and cir- cumvented well-established precedents. () The holding of the Supreme Court in Gross, by requiring proof that age was the but for cause of employment discrimination, has narrowed the HR 1 IH VerDate Nov 008 0:1 Oct 0, 009 Jkt PO Frm 0000 Fmt Sfmt 01 E:\BILLS\H1.IH H1

3 scope of protection intended to be afforded by the Age Discrimination in Employment Act of 19, thus eliminating protection for many individuals whom Congress intended to protect. () The Supreme Court s holding in Gross, relying on misconceptions about the Age Discrimination in Employment Act of 19 articulated in prior decisions of the Court, has significantly narrowed the broad scope of the protections of the Age Discrimination in Employment Act of 19. () Unless Congress takes action, victims of age discrimination will find it unduly difficult to prove their claims and victims of other types of discrimination may find their rights and remedies uncertain and unpredictable. (b) PURPOSE. The purpose of this Act is to ensure that the standard for proving unlawful disparate treatment under the Age Discrimination in Employment Act of 19 and other anti-discrimination and anti-retaliation laws is no different than the standard for making such a proof under title VII of the Civil Rights Act of 19, including amendments made by the Civil Rights Act of wwoods on DSK1DXXB1PROD with BILLS HR 1 IH VerDate Nov 008 0:1 Oct 0, 009 Jkt PO Frm 0000 Fmt Sfmt 01 E:\BILLS\H1.IH H1

4 wwoods on DSK1DXXB1PROD with BILLS HR 1 IH VerDate Nov 008 0:1 Oct 0, 009 Jkt PO Frm 0000 Fmt Sfmt 01 E:\BILLS\H1.IH H1 SEC.. STANDARD OF PROOF. Section of the Age Discrimination in Employment Act of 19 (9 U.S.C. ) is amended by adding after subsection (f) the following: (g)(1) For any claim brought under this Act or any other authority described in paragraph (), a plaintiff establishes an unlawful employment practice if the plaintiff demonstrates by a preponderance of the evidence that (A) an impermissible factor under that Act or authority was a motivating factor for the practice complained of, even if other factors also motivated that practice; or (B) the practice complained of would not have occurred in the absence of an impermissible factor. () On a claim in which a plaintiff demonstrates a violation under paragraph (1)(A) and a defendant demonstrates that the defendant would have taken the same action in the absence of the impermissible motivating factor, the court (A) 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 paragraph (1); and

5 wwoods on DSK1DXXB1PROD with BILLS 1 (B) shall not award damages or issue an order requiring any admission, reinstatement, hiring, pro- motion, or payment. () In making the demonstration required by para- graph (1), a plaintiff may rely on any type or form of admissible circumstantial or direct evidence and need only produce evidence sufficient for a reasonable trier of fact 8 to conclude that a violation described in subparagraph (A) 9 or (B) of paragraph (1) occurred. 10 () Every method for proving either such violation, 11 including the evidentiary framework set forth in McDon- 1 nell-douglas Corp. v. Green, 11 U.S. 9 (19), shall 1 be available to the plaintiff. 1 () This subsection shall apply to any claim that the 1 practice complained of was motivated by a reason that is 1 impermissible, with regard to that practice, under 1 (A) this Act, including subsection (d); 18 (B) any Federal law forbidding employment 19 discrimination; 0 (C) any law forbidding discrimination of the 1 type described in subsection (d) or forbidding other retaliation against an individual for engaging in, or interference with, any federally protected activity in- cluding the exercise of any right established by Fed- eral law (including a whistleblower law); or HR 1 IH VerDate Nov 008 0:1 Oct 0, 009 Jkt PO Frm 0000 Fmt Sfmt 01 E:\BILLS\H1.IH H1

6 (D) any provision of the Constitution that protects against discrimination or retaliation. () This subsection shall not apply to a claim under a law described in paragraph ()(C) to the extent such law has an express provision regarding the legal burdens of proof applicable to that claim. () In any proceeding, with respect to a claim described in paragraph (), the plaintiff need not plead the existence of this subsection. (8) In this subsection, the term demonstrates means meet the burdens of production and persuasion.. SEC.. APPLICATION. This Act, and the amendments made by this Act, shall apply to all claims described in section (g)() of the Age Discrimination in Employment Act of 19 (9 U.S.C. (g)()) pending on or after June 1, 009. Æ wwoods on DSK1DXXB1PROD with BILLS HR 1 IH VerDate Nov 008 0:1 Oct 0, 009 Jkt PO Frm 0000 Fmt Sfmt 01 E:\BILLS\H1.IH H1