Protecting Older Workers Against Discrimination Act

II 116TH CONGRESS 1ST SESSION S. 485 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 FEBRUARY 14, 2019 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. FINDINGS AND PURPOSES. 6 (a) FINDINGS.—Congress finds the following: 7 VerDate Sep 11 2014 04:00 Feb 22, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S485.IS S485 kjohnson on DSK79L0C42 with BILLS 2 •S 485 IS (1) In enacting section 107 of the Civil Rights 1 Act of 1991 (adding section 703(m) of the Civil 2 Rights Act of 1964), Congress reaffirmed its under- 3 standing that unlawful discrimination is often dif- 4 ficult to detect and prove because those who dis- 5 criminate do not usually admit their discrimination 6 and often try to conceal their true motives. Section 7 703(m) of the Civil Rights Act of 1964 expressly ap- 8 proved so-called ‘‘mixed motive’’ claims, providing 9 that an unlawful employment practice is established 10 when a protected characteristic was a motivating 11 factor for any employment practice, even though 12 other factors also motivated the practice. 13 (2) Congress enacted amendments to other civil 14 rights statutes, including the Age Discrimination in 15 Employment Act of 1967 (referred to in this section 16 as the ‘‘ADEA’’), the Americans with Disabilities 17 Act of 1990, and the Rehabilitation Act of 1973, but 18 Congress did not expressly amend those statutes to 19 address mixed motive discrimination. 20 (3) In the case of Gross v. FBL Financial Serv- 21 ices, Inc., 557 U.S. 167 (2009), the Supreme Court 22 held that, because Congress did not expressly amend 23 the ADEA to address mixed motive claims, such 24 claims were unavailable under the ADEA, and in- 25 VerDate Sep 11 2014 04:00 Feb 22, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S485.IS S485 kjohnson on DSK79L0C42 with BILLS 3 •S 485 IS stead the complainant bears the burden of proving 1 that a protected characteristic or protected activity 2 was the ‘‘but for’’ cause of an unlawful employment 3 practice. This decision has significantly narrowed 4 the scope of protections afforded by the statutes that 5 were not expressly amended in 1991 to address 6 mixed motive claims. 7 (b) PURPOSES.—The purposes of this Act are— 8 (1) to clarify congressional intent that mixed 9 motive claims shall be available, and that a com- 10 plaining party need not prove that a protected char- 11 acteristic or protected activity was the ‘‘but for’’ 12 cause of an unlawful employment practice, under the 13 ADEA and similar civil rights provisions; 14 (2) to reject the Supreme Court’s reasoning in 15 the Gross decision that Congress’ failure to amend 16 any statute other than title VII of the Civil Rights 17 Act of 1964 (with respect to discrimination claims), 18 in enacting section 107 of the Civil Rights Act of 19 1991, suggests that Congress intended to disallow 20 mixed motive claims under other statutes; and 21 (3) to clarify that complaining parties— 22 (A) may rely on any type or form of ad- 23 missible evidence to establish their claims of an 24 unlawful employment practice; 25 VerDate Sep 11 2014 04:00 Feb 22, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S485.IS S485 kjohnson on DSK79L0C42 with BILLS 4 •S 485 IS (B) are not required to demonstrate that 1 the protected characteristic or activity was the 2 sole cause of the employment practice; and 3 (C) may demonstrate an unlawful employ- 4 ment practice through any available method of 5 proof or analytical framework. 6 SEC. 3. STANDARDS OF PROOF. 7 (a) AGE DISCRIMINATION IN EMPLOYMENT ACT OF 8 1967.— 9 (1) CLARIFYING PROHIBITION AGAINST IMPER- 10 MISSIBLE CONSIDERATION OF AGE IN EMPLOYMENT 11 PRACTICES.—Section 4 of the Age Discrimination in 12 Employment Act of 1967 (29 U.S.C. 623) is amend- 13 ed by inserting after subsection (f) the following: 14 ‘‘(g)(1) Except as otherwise provided in this Act, an 15 unlawful practice is established under this Act when the 16 complaining party demonstrates that age or an activity 17 protected by subsection (d) was a motivating factor for 18 any practice, even though other factors also motivated the 19 practice. 20 ‘‘(2) In establishing an unlawful practice under this 21 Act, including under paragraph (1) or by any other meth- 22 od of proof, a complaining party— 23 ‘‘(A) may rely on any type or form of admis- 24 sible evidence and need only produce evidence suffi- 25 VerDate Sep 11 2014 04:00 Feb 22, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S485.IS S485 kjohnson on DSK79L0C42 with BILLS 5 •S 485 IS cient for a reasonable trier of fact to find that an 1 unlawful practice occurred under this Act; and 2 ‘‘(B) shall not be required to demonstrate that 3 age or an activity protected by subsection (d) was 4 the sole cause of a practice.’’. 5 (2) REMEDIES.—Section 7 of such Act (29 6 U.S.C. 626) is amended— 7 (A) in subsection (b)— 8 (i) in the first sentence, by striking 9 ‘‘The’’ and inserting ‘‘(1) The’’; 10 (ii) in the third sentence, by striking 11 ‘‘Amounts’’ and inserting the following: 12 ‘‘(2) Amounts’’; 13 (iii) in the fifth sentence, by striking 14 ‘‘Before’’ and inserting the following: 15 ‘‘(4) Before’’; and 16 (iv) by inserting before paragraph (4), 17 as designated by clause (iii) of this sub- 18 paragraph, the following: 19 ‘‘(3) On a claim in which an individual demonstrates 20 that age was a motivating factor for any employment prac- 21 tice, under section 4(g)(1), and a respondent demonstrates 22 that the respondent would have taken the same action in 23 the absence of the impermissible motivating factor, the 24 court— 25 VerDate Sep 11 2014 04:00 Feb 22, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S485.IS S485 kjohnson on DSK79L0C42 with BILLS 6 •S 485 IS ‘‘(A) may grant declaratory relief, injunctive re- 1 lief (except as provided in subparagraph (B)), and 2 attorney’s fees and costs demonstrated to be directly 3 attributable only to the pursuit of a claim under sec- 4 tion 4(g)(1); and 5 ‘‘(B) shall not award damages or issue an order 6 requiring any admission, reinstatement, hiring, pro- 7 motion, or payment.’’; and 8 (B) in subsection (c)(1), by striking ‘‘Any’’ 9 and inserting ‘‘Subject to subsection (b)(3), 10 any’’. 11 (3) DEFINITIONS.—Section 11 of such Act (29 12 U.S.C. 630) is amended by adding at the end the 13 following: 14 ‘‘(m) The term ‘demonstrates’ means meets the bur- 15 dens of production and persuasion.’’. 16 (4) FEDERAL EMPLOYEES.—Section 15 of such 17 Act (29 U.S.C. 633a) is amended by adding at the 18 end the following: 19 ‘‘(h) Sections 4(g) and 7(b)(3) shall apply to mixed 20 motive claims (involving practices described in section 21 4(g)(1)) under this section.’’. 22 (b) TITLE VII OF THE CIVIL RIGHTS ACT OF 23 1964.— 24 VerDate Sep 11 2014 04:00 Feb 22, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S485.IS S485 kjohnson on DSK79L0C42 with BILLS 7 •S 485 IS (1) CLARIFYING PROHIBITION AGAINST IMPER- 1 MISSIBLE CONSIDERATION OF RACE, COLOR, RELI- 2 GION, SEX, OR NATIONAL ORIGIN IN EMPLOYMENT 3 PRACTICES.—Section 703 of the Civil Rights Act of 4 1964 (42 U.S.C. 2000e–2) is amended by striking 5 subsection (m) and inserting the following: 6 ‘‘(m) Except as otherwise provided in this title, an 7 unlawful employment practice is established under this 8 title when the complaining party demonstrates that race, 9 color, religion, sex, or national origin or an activity pro- 10 tected by section 704(a) was a motivating factor for any 11 employment practice, even though other factors also moti- 12 vated the practice.’’. 13 (2) FEDERAL EMPLOYEES.—Section 717 of 14 such Act (42 U.S.C. 2000e–16) is amended by add- 15 ing at the end the following: 16 ‘‘(g) Sections 703(m) and 706(g)(2)(B) shall apply 17 to mixed motive cases (involving practices described in sec- 18 tion 703(m)) under this section.’’. 19 (c) AMERICANS WITH DISABILITIES ACT OF 1990.— 20 (1) DEFINITIONS.—Section 101 of the Ameri- 21 cans with Disabilities Act of 1990 (42 U.S.C. 22 12111) is amended by adding at the end the fol- 23 lowing: 24 VerDate Sep 11 2014 04:00 Feb 22, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S485.IS S485 kjohnson on DSK79L0C42 with BILLS 8 •S 485 IS ‘‘(11) DEMONSTRATES.—The term ‘demon- 1 strates’ means meets the burdens of production and 2 persuasion.’’. 3 (2) CLARIFYING PROHIBITION AGAINST IMPER- 4 MISSIBLE CONSIDERATION OF DISABILITY IN EM- 5 PLOYMENT PRACTICES.—Section 102 of such Act 6 (42 U.S.C. 12112) is amended by adding at the end 7 the following: 8 ‘‘(e) PROOF.— 9 ‘‘(1) ESTABLISHMENT.—Except as otherwise 10 provided in this Act, a discriminatory practice is es- 11 tablished under this Act when the complaining party 12 demonstrates that disability or an activity protected 13 by subsection (a) or (b) of section 503 was a moti- 14 vating factor for any employment practice, even 15 though other factors also motivated the practice. 16 ‘‘(2) DEMONSTRATION.—In establishing a dis- 17 criminatory practice under paragraph (1) or by any 18 other method of proof, a complaining party— 19 ‘‘(A) may rely on any type or form of ad- 20 missible evidence and need only produce evi- 21 dence sufficient for a reasonable trier of fact to 22 find that a discriminatory practice occurred 23 under this Act; and 24 VerDate Sep 11 2014 04:00 Feb 22, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S485.IS S485 kjohnson on DSK79L0C42 with BILLS 9 •S 485 IS ‘‘(B) shall not be required to demonstrate 1 that disability or an activity protected by sub- 2 section (a) or (b) of section 503 was the sole 3 cause of an employment practice.’’. 4 (3) CERTAIN ANTIRETALIATION CLAIMS.—Sec- 5 tion 503(c) of such Act (42 U.S.C. 12203(c)) is 6 amended— 7 (A) by striking ‘‘The remedies’’ and insert- 8 ing the following: 9 ‘‘(1) IN GENERAL.—Except as provided in para- 10 graph (2), the remedies’’; and 11 (B) by adding at the end the following: 12 ‘‘(2) CERTAIN ANTIRETALIATION CLAIMS.—Sec- 13 tion 107(c) shall apply to claims under section 14 102(e)(1) with respect to title I.’’. 15 (4) REMEDIES.—Section 107 of such Act (42 16 U.S.C. 12117) is amended by adding at the end the 17 following: 18 ‘‘(c) DISCRIMINATORY MOTIVATING FACTOR.—On a 19 claim in which an individual demonstrates that disability 20 was a motivating factor for any employment practice, 21 under section 102(e)(1), and a respondent demonstrates 22 that the respondent would have taken the same action in 23 the absence of the impermissible motivating factor, the 24 court— 25 VerDate Sep 11 2014 04:00 Feb 22, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S485.IS S485 kjohnson on DSK79L0C42 with BILLS 10 •S 485 IS ‘‘(1) may grant declaratory relief, injunctive re- 1 lief (except as provided in paragraph (2)), and attor- 2 ney’s fees and costs demonstrated to be directly at- 3 tributable only to the pursuit of a claim under sec- 4 tion 102(e)(1); and 5 ‘‘(2) shall not award damages or issue an order 6 requiring any admission, reinstatement, hiring, pro- 7 motion, or payment.’’. 8 (d) REHABILITATION ACT OF 1973.— 9 (1) IN GENERAL.—Sections 501(f), 503(d), and 10 504(d) of the Rehabilitation Act of 1973 (29 U.S.C. 11 791(f), 793(d), and 794(d)), are each amended by 12 adding after the words ‘‘title I of the Americans 13 with Disabilities Act of 1990 (42 U.S.C. 12111 et 14 seq.)’’ the following: ‘‘, including the standards of 15 causation or methods of proof applied under section 16 102(e) of that Act (42 U.S.C. 12112(e)),’’. 17 (2) FEDERAL EMPLOYEES.—The amendment 18 made by paragraph (1) to section 501(f) shall be 19 construed to apply to all employees covered by sec- 20 tion 501. 21 VerDate Sep 11 2014 04:00 Feb 22, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S485.IS S485 kjohnson on DSK79L0C42 with BILLS 11 •S 485 IS SEC. 4. APPLICATION. 1 This Act, and the amendments made by this Act, 2 shall apply to all claims pending on or after the date of 3 enactment of this Act. 4 Æ VerDate Sep 11 2014 04:00 Feb 22, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\S485.IS S485 kjohnson on DSK79L0C42 with BILLS