Protecting Older Workers Against Discrimination Act

II 117TH CONGRESS 1ST SESSION S. 880 To amend the Age Discrimination in Employment Act of 1967 and other laws to clarify appropriate standards for Federal employment discrimina- tion and retaliation claims, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 22, 2021 Mr. CASEY (for himself, Mr. GRASSLEY, Mr. LEAHY, and Ms. COLLINS) intro- duced the following bill; which was read twice and referred to the Com- mittee 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. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Protecting Older 4 Workers Against Discrimination Act’’. 5 SEC. 2. STANDARDS OF PROOF. 6 (a) AGE DISCRIMINATION IN EMPLOYMENT ACT OF 7 1967.— 8 VerDate Sep 11 2014 23:18 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S880.IS S880 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 880 IS (1) CLARIFYING PROHIBITION AGAINST IMPER- 1 MISSIBLE CONSIDERATION OF AGE IN EMPLOYMENT 2 PRACTICES.—Section 4 of the Age Discrimination in 3 Employment Act of 1967 (29 U.S.C. 623) is amend- 4 ed by inserting after subsection (f) the following: 5 ‘‘(g)(1) Except as otherwise provided in this Act, an 6 unlawful practice is established under this Act when the 7 complaining party demonstrates that age or an activity 8 protected by subsection (d) was a motivating factor for 9 any practice, even though other factors also motivated the 10 practice. 11 ‘‘(2) In establishing an unlawful practice under this 12 Act, including under paragraph (1) or by any other meth- 13 od of proof, a complaining party— 14 ‘‘(A) may rely on any type or form of admis- 15 sible evidence and need only produce evidence suffi- 16 cient for a reasonable trier of fact to find that an 17 unlawful practice occurred under this Act; and 18 ‘‘(B) shall not be required to demonstrate that 19 age or an activity protected by subsection (d) was 20 the sole cause of a practice.’’. 21 (2) REMEDIES.—Section 7 of such Act (29 22 U.S.C. 626) is amended— 23 (A) in subsection (b)— 24 VerDate Sep 11 2014 23:18 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S880.IS S880 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 880 IS (i) in the first sentence, by striking 1 ‘‘The’’ and inserting ‘‘(1) The’’; 2 (ii) in the third sentence, by striking 3 ‘‘Amounts’’ and inserting the following: 4 ‘‘(2) Amounts’’; 5 (iii) in the fifth sentence, by striking 6 ‘‘Before’’ and inserting the following: 7 ‘‘(4) Before’’; and 8 (iv) by inserting before paragraph (4), 9 as designated by clause (iii) of this sub- 10 paragraph, the following: 11 ‘‘(3) On a claim in which an individual demonstrates 12 that age was a motivating factor for any employment prac- 13 tice under section 4(g)(1), and a respondent demonstrates 14 that the respondent would have taken the same action in 15 the absence of the impermissible motivating factor, the 16 court— 17 ‘‘(A) may grant declaratory relief, injunctive re- 18 lief (except as provided in subparagraph (B)), and 19 attorney’s fees and costs demonstrated to be directly 20 attributable only to the pursuit of a claim under sec- 21 tion 4(g)(1); and 22 ‘‘(B) shall not award damages or issue an order 23 requiring any admission, reinstatement, hiring, pro- 24 motion, or payment.’’; and 25 VerDate Sep 11 2014 23:18 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S880.IS S880 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 880 IS (B) in subsection (c)(1), by striking ‘‘Any’’ 1 and inserting ‘‘Subject to subsection (b)(3), 2 any’’. 3 (3) DEFINITIONS.—Section 11 of such Act (29 4 U.S.C. 630) is amended by adding at the end the 5 following: 6 ‘‘(m) The term ‘demonstrates’ means meets the bur- 7 dens of production and persuasion.’’. 8 (4) FEDERAL EMPLOYEES.—Section 15 of such 9 Act (29 U.S.C. 633a) is amended by adding at the 10 end the following: 11 ‘‘(h) Sections 4(g) and 7(b)(3) shall apply to mixed 12 motive claims (involving practices described in section 13 4(g)(1)) under this section.’’. 14 (b) TITLE VII OF THE CIVIL RIGHTS ACT OF 15 1964.— 16 (1) CLARIFYING PROHIBITION AGAINST IMPER- 17 MISSIBLE CONSIDERATION OF RACE, COLOR, RELI- 18 GION, SEX, OR NATIONAL ORIGIN IN EMPLOYMENT 19 PRACTICES.—Section 703 of the Civil Rights Act of 20 1964 (42 U.S.C. 2000e–2) is amended by striking 21 subsection (m) and inserting the following: 22 ‘‘(m) Except as otherwise provided in this title, an 23 unlawful employment practice is established when the 24 complaining party demonstrates that race, color, religion, 25 VerDate Sep 11 2014 23:18 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S880.IS S880 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 880 IS sex, national origin, or an activity protected by section 1 704(a) was a motivating factor for any employment prac- 2 tice, even though other factors also motivated the prac- 3 tice.’’. 4 (2) FEDERAL EMPLOYEES.—Section 717 of 5 such Act (42 U.S.C. 2000e–16) is amended by add- 6 ing at the end the following: 7 ‘‘(g) Sections 703(m) and 706(g)(2)(B) shall apply 8 to mixed motive cases (involving practices described in sec- 9 tion 703(m)) under this section.’’. 10 (c) AMERICANS WITH DISABILITIES ACT OF 1990.— 11 (1) DEFINITIONS.—Section 101 of the Ameri- 12 cans with Disabilities Act of 1990 (42 U.S.C. 13 12111) is amended by adding at the end the fol- 14 lowing: 15 ‘‘(11) DEMONSTRATES.—The term ‘dem- 16 onstrates’ means meets the burdens of production 17 and persuasion.’’. 18 (2) CLARIFYING PROHIBITION AGAINST IMPER- 19 MISSIBLE CONSIDERATION OF DISABILITY IN EM- 20 PLOYMENT PRACTICES.—Section 102 of such Act 21 (42 U.S.C. 12112) is amended by adding at the end 22 the following: 23 ‘‘(e) PROOF.— 24 VerDate Sep 11 2014 23:18 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S880.IS S880 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 880 IS ‘‘(1) ESTABLISHMENT.—Except as otherwise 1 provided in this Act, a discriminatory practice is es- 2 tablished under this Act when the complaining party 3 demonstrates that disability or an activity protected 4 by subsection (a) or (b) of section 503 was a moti- 5 vating factor for any employment practice, even 6 though other factors also motivated the practice. 7 ‘‘(2) DEMONSTRATION.—In establishing a dis- 8 criminatory practice under paragraph (1) or by any 9 other method of proof, a complaining party— 10 ‘‘(A) may rely on any type or form of ad- 11 missible evidence and need only produce evi- 12 dence sufficient for a reasonable trier of fact to 13 find that a discriminatory practice occurred 14 under this Act; and 15 ‘‘(B) shall not be required to demonstrate 16 that disability or an activity protected by sub- 17 section (a) or (b) of section 503 was the sole 18 cause of an employment practice.’’. 19 (3) CERTAIN ANTI-RETALIATION CLAIMS.—Sec- 20 tion 503(c) of such Act (42 U.S.C. 12203(c)) is 21 amended— 22 (A) by striking ‘‘The remedies’’ and insert- 23 ing the following: 24 VerDate Sep 11 2014 23:18 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S880.IS S880 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 880 IS ‘‘(1) IN GENERAL.—Except as provided in para- 1 graph (2), the remedies’’; and 2 (B) by adding at the end the following: 3 ‘‘(2) CERTAIN ANTI-RETALIATION CLAIMS.— 4 Section 107(c) shall apply to claims under section 5 102(e)(1) with respect to title I.’’. 6 (4) REMEDIES.—Section 107 of such Act (42 7 U.S.C. 12117) is amended by adding at the end the 8 following: 9 ‘‘(c) DISCRIMINATORY MOTIVATING FACTOR.—On a 10 claim in which an individual demonstrates that disability 11 was a motivating factor for any employment practice 12 under section 102(e)(1), and a respondent demonstrates 13 that the respondent would have taken the same action in 14 the absence of the impermissible motivating factor, the 15 court— 16 ‘‘(1) may grant declaratory relief, injunctive re- 17 lief (except as provided in paragraph (2)), and attor- 18 ney’s fees and costs demonstrated to be directly at- 19 tributable only to the pursuit of a claim under sec- 20 tion 102(e)(1); and 21 ‘‘(2) shall not award damages or issue an order 22 requiring any admission, reinstatement, hiring, pro- 23 motion, or payment.’’. 24 (d) REHABILITATION ACT OF 1973.— 25 VerDate Sep 11 2014 23:18 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S880.IS S880 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 880 IS (1) IN GENERAL.—Sections 501(f), 503(d), and 1 504(d) of the Rehabilitation Act of 1973 (29 U.S.C. 2 791(f), 793(d), and 794(d)), are each amended by 3 adding after ‘‘title I of the Americans with Disabil- 4 ities Act of 1990 (42 U.S.C. 12111 et seq.)’’ the fol- 5 lowing: ‘‘, including the standards of causation or 6 methods of proof applied under section 102(e) of 7 that Act (42 U.S.C. 12112(e)),’’. 8 (2) FEDERAL EMPLOYEES.—The amendment 9 made by paragraph (1) to section 501(f) of the Re- 10 habilitation Act of 1973 (29 U.S.C. 791(f)) shall be 11 construed to apply to all employees covered by sec- 12 tion 501 of that Act (29 U.S.C. 791). 13 SEC. 3. APPLICATION. 14 This Act, and the amendments made by this Act, 15 shall apply to all claims pending on or after the date of 16 enactment of this Act. 17 SEC. 4. SEVERABILITY. 18 If any provision of this Act, an amendment made by 19 this Act, or the application of such provision or amend- 20 ment to any person or circumstance is held to be unconsti- 21 tutional, the remainder of this Act, the amendments made 22 by this Act, and the application of the provisions of such 23 VerDate Sep 11 2014 23:18 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S880.IS S880 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 880 IS to any person or circumstance shall not be affected there- 1 by. 2 Æ VerDate Sep 11 2014 23:18 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\S880.IS S880 pamtmann on DSKBC07HB2PROD with BILLS