Protecting Older Workers Against Discrimination Act of 2021

IIB 117TH CONGRESS 1ST SESSION H. R. 2062 IN THE SENATE OF THE UNITED STATES JUNE 24, 2021 Received; read twice and referred to the Committee on Health, Education, Labor, and Pensions AN ACT 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 VerDate Sep 11 2014 08:23 Jun 25, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.RFS H2062 kjohnson on DSK79L0C42PROD with BILLS 2 HR 2062 RFS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Protecting Older 2 Workers Against Discrimination Act of 2021’’. 3 SEC. 2. STANDARDS OF PROOF. 4 (a) AGE DISCRIMINATION IN EMPLOYMENT ACT OF 5 1967.— 6 (1) CLARIFYING PROHIBITION AGAINST IMPER- 7 MISSIBLE CONSIDERATION OF AGE IN EMPLOYMENT 8 PRACTICES.—Section 4 of the Age Discrimination in 9 Employment Act of 1967 (29 U.S.C. 623) is amend- 10 ed by inserting after subsection (f) the following: 11 ‘‘(g)(1) Except as otherwise provided in this Act, an 12 unlawful practice is established under this Act when the 13 complaining party demonstrates that age or an activity 14 protected by subsection (d) was a motivating factor for 15 any practice, even though other factors also motivated the 16 practice. 17 ‘‘(2) In establishing an unlawful practice under this 18 Act, including under paragraph (1) or by any other meth- 19 od of proof, a complaining party— 20 ‘‘(A) may rely on any type or form of admis- 21 sible evidence; and 22 ‘‘(B) shall not be required to demonstrate that 23 age or an activity protected by subsection (d) was 24 the sole cause of a practice.’’. 25 VerDate Sep 11 2014 08:23 Jun 25, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.RFS H2062 kjohnson on DSK79L0C42PROD with BILLS 3 HR 2062 RFS (2) REMEDIES.—Section 7 of such Act (29 1 U.S.C. 626) is amended— 2 (A) in subsection (b)— 3 (i) in the first sentence, by striking 4 ‘‘The’’ and inserting ‘‘(1) The’’; 5 (ii) in the third sentence, by striking 6 ‘‘Amounts’’ and inserting the following: 7 ‘‘(2) Amounts’’; 8 (iii) in the fifth sentence, by striking 9 ‘‘Before’’ and inserting the following: 10 ‘‘(4) Before’’; and 11 (iv) by inserting before paragraph (4), 12 as designated by clause (iii) of this sub- 13 paragraph, the following: 14 ‘‘(3) On a claim in which an individual demonstrates 15 that age was a motivating factor for any employment prac- 16 tice under section 4(g)(1), and a respondent demonstrates 17 that the respondent would have taken the same action in 18 the absence of the impermissible motivating factor, the 19 court— 20 ‘‘(A) may grant declaratory relief, injunctive re- 21 lief (except as provided in subparagraph (B)), and 22 attorney’s fees and costs demonstrated to be directly 23 attributable only to the pursuit of a claim under sec- 24 tion 4(g)(1); and 25 VerDate Sep 11 2014 08:23 Jun 25, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.RFS H2062 kjohnson on DSK79L0C42PROD with BILLS 4 HR 2062 RFS ‘‘(B) shall not award damages or issue an order 1 requiring any admission, reinstatement, hiring, pro- 2 motion, or payment.’’; and 3 (B) in subsection (c)(1), by striking ‘‘Any’’ 4 and inserting ‘‘Subject to subsection (b)(3), 5 any’’. 6 (3) DEFINITIONS.—Section 11 of such Act (29 7 U.S.C. 630) is amended by adding at the end the 8 following: 9 ‘‘(m) The term ‘demonstrates’ means meets the bur- 10 dens of production and persuasion.’’. 11 (4) FEDERAL EMPLOYEES.—Section 15 of such 12 Act (29 U.S.C. 633a) is amended by adding at the 13 end the following: 14 ‘‘(h) Sections 4(g) and 7(b)(3) shall apply to mixed 15 motive claims (involving practices described in section 16 4(g)(1)) under this section.’’. 17 (b) TITLE VII OF THE CIVIL RIGHTS ACT OF 18 1964.— 19 (1) CLARIFYING PROHIBITION AGAINST IMPER- 20 MISSIBLE CONSIDERATION OF RACE, COLOR, RELI- 21 GION, SEX, OR NATIONAL ORIGIN IN EMPLOYMENT 22 PRACTICES.—Section 703 of the Civil Rights Act of 23 1964 (42 U.S.C. 2000e–2) is amended by striking 24 subsection (m) and inserting the following: 25 VerDate Sep 11 2014 08:23 Jun 25, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.RFS H2062 kjohnson on DSK79L0C42PROD with BILLS 5 HR 2062 RFS ‘‘(m) Except as otherwise provided in this title, an 1 unlawful employment practice is established when the 2 complaining party demonstrates that race, color, religion, 3 sex, national origin, or an activity protected by section 4 704(a) was a motivating factor for any employment prac- 5 tice, even though other factors also motivated the prac- 6 tice.’’. 7 (2) FEDERAL EMPLOYEES.—Section 717 of 8 such Act (42 U.S.C. 2000e–16) is amended by add- 9 ing at the end the following: 10 ‘‘(g) Sections 703(m) and 706(g)(2)(B) shall apply 11 to mixed motive cases (involving practices described in sec- 12 tion 703(m)) under this section.’’. 13 (c) AMERICANS WITH DISABILITIES ACT OF 1990.— 14 (1) DEFINITIONS.—Section 101 of the Ameri- 15 cans with Disabilities Act of 1990 (42 U.S.C. 16 12111) is amended by adding at the end the fol- 17 lowing: 18 ‘‘(11) DEMONSTRATES.—The term ‘demon- 19 strates’ means meets the burdens of production and 20 persuasion.’’. 21 (2) CLARIFYING PROHIBITION AGAINST IMPER- 22 MISSIBLE CONSIDERATION OF DISABILITY IN EM- 23 PLOYMENT PRACTICES.—Section 102 of such Act 24 VerDate Sep 11 2014 08:23 Jun 25, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.RFS H2062 kjohnson on DSK79L0C42PROD with BILLS 6 HR 2062 RFS (42 U.S.C. 12112) is amended by adding at the end 1 the following: 2 ‘‘(e) PROOF.— 3 ‘‘(1) ESTABLISHMENT.—Except as otherwise 4 provided in this Act, a discriminatory practice is es- 5 tablished under this Act when the complaining party 6 demonstrates that disability or an activity protected 7 by subsection (a) or (b) of section 503 was a moti- 8 vating factor for any employment practice, even 9 though other factors also motivated the practice. 10 ‘‘(2) DEMONSTRATION.—In establishing a dis- 11 criminatory practice under paragraph (1) or by any 12 other method of proof, a complaining party— 13 ‘‘(A) may rely on any type or form of ad- 14 missible evidence; 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 08:23 Jun 25, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.RFS H2062 kjohnson on DSK79L0C42PROD with BILLS 7 HR 2062 RFS ‘‘(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 08:23 Jun 25, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.RFS H2062 kjohnson on DSK79L0C42PROD with BILLS 8 HR 2062 RFS (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 to any person or circumstance shall not be affected there- 24 by. 25 VerDate Sep 11 2014 08:23 Jun 25, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.RFS H2062 kjohnson on DSK79L0C42PROD with BILLS 9 HR 2062 RFS SEC. 5. STUDY AND REPORT TO CONGRESS. 1 Not later than 1 year after the date of the enactment 2 of this Act, the Secretary of Labor and the Equal Employ- 3 ment Opportunity Commission shall jointly conduct a 4 study to determine the number of claims pending or filed, 5 in addition to cases closed, by women who may have been 6 adversely impacted by age discrimination as a motivating 7 factor in workplace discrimination or employment termi- 8 nation. The Secretary of Labor and Chairman of the Com- 9 mission shall jointly submit to the Congress, and make 10 available to the public, a report that contains the results 11 of the study, including recommendations for best practices 12 to prevent and to combat gender and age discrimination 13 as it relates to women in the workplace. 14 SEC. 6. REPORTS. 15 The Chairman of Equal Employment Opportunity 16 Commission shall submit to the Committee on Education 17 and Labor of the House of Representatives and the Com- 18 mittee on Health, Education, Labor, and Pensions of the 19 Senate a report at 1-year intervals on the number of age 20 discrimination in employment claims brought under this 21 Act with the Equal Employment Opportunity Commission 22 in the period for which such report is submitted. 23 SEC. 7. REPORT. 24 (a) REPORT.—Not later than 2 years after the date 25 of enactment of this Act, the Equal Employment Oppor- 26 VerDate Sep 11 2014 08:23 Jun 25, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.RFS H2062 kjohnson on DSK79L0C42PROD with BILLS 10 HR 2062 RFS tunity Employment Commission shall submit to the Con- 1 gress, and make available to the public, a report that con- 2 tains analysis of any disparities that covered individuals, 3 as defined in subsection (b), face in pursuing relief from 4 discrimination in employment under the mixed motive evi- 5 dentiary standard. 6 (b) COVERED INDIVIDUALS DEFINED.—The term 7 ‘‘covered individuals’’ means individuals who face discrimi- 8 nation in employment based on characteristics protected 9 under the Age Discrimination in Employment Act of 1967 10 combined with one or more intersectional characteristics 11 protected under title VII of the Civil Rights Act of 1964, 12 the Americans with Disabilities Act of 1990, or the Reha- 13 bilitation Act of 1973. 14 Passed the House of Representatives June 23, 2021. Attest: CHERYL L. JOHNSON, Clerk. VerDate Sep 11 2014 08:23 Jun 25, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.RFS H2062 kjohnson on DSK79L0C42PROD with BILLS