What This Bill Does
This bill changes how federal employment discrimination cases are decided. It updates four major civil rights laws to make it easier for workers to prove they faced discrimination based on age, race, color, religion, sex, national origin or disability. The bill is called the "Protecting Older Workers Against Discrimination Act."
Who It Affects
Federal employees who claim age discrimination, federal employees who claim discrimination based on race/color/religion/sex/national origin, employees covered by disability discrimination laws, federal employees with disabilities, and employees covered by rehabilitation laws.
Key Provisions
• Age discrimination is proven when a worker shows their age was a motivating factor for an employment decision, even if other reasons also played a role (Sec. 2(a)(1))
• A worker can use any type of admissible evidence to prove discrimination and does not have to prove age was the only reason for the employer's decision (Sec. 2(a)(1))
• Race, color, religion, sex or national origin discrimination is proven when a worker shows it was a motivating factor for an employment decision, even if other factors also motivated it (Sec. 2(b)(1))
• A worker can prove disability discrimination by showing disability was a motivating factor for an employment practice, even though other factors also motivated the practice (Sec. 2(c)(2))
• When a worker proves a protected characteristic was a motivating factor but the employer proves it would have taken the same action anyway, the court may award attorney's fees and costs and injunctive relief but cannot award damages or order hiring, promotion or payment (Sec. 2(a)(2), 2(c)(4))
What Changes
The law changes what a worker must prove to win a discrimination case. Instead of proving that age, race, religion, sex, national origin or disability was the sole reason for an employment decision, workers now only have to show it was one motivating factor among possibly other reasons. The remedies available to workers also change when an employer proves it would have made the same decision anyway. Courts can award attorney's fees and certain relief but cannot award money damages or force hiring, reinstatement or promotion in those situations.
Important Definitions
The bill defines "demonstrates" to mean meeting the burdens of production and persuasion (Sec. 2(a)(3), 2(c)(1)).
Effective Date
This act applies to all discrimination claims filed on or after the date the law is passed (Sec. 3).
II
118TH CONGRESS
1ST SESSION
S. 1030
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 29, 2023
Mr. CASEY (for himself, Mr. GRASSLEY, Ms. HASSAN, Ms. COLLINS, Ms.
BALDWIN, and Ms. MURKOWSKI) introduced the following bill; which was
read twice and referred to the Committee 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
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•S 1030 IS
SEC. 2. STANDARDS OF PROOF.
1
(a) AGE DISCRIMINATION IN EMPLOYMENT ACT OF
2
1967.—
3
(1) CLARIFYING PROHIBITION AGAINST IMPER-
4
MISSIBLE CONSIDERATION OF AGE IN EMPLOYMENT
5
PRACTICES.—Section 4 of the Age Discrimination in
6
Employment Act of 1967 (29 U.S.C. 623) is amend-
7
ed by inserting after subsection (f) the following:
8
‘‘(g)(1) Except as otherwise provided in this Act, an
9
unlawful practice is established under this Act when the
10
complaining party demonstrates that age or an activity
11
protected by subsection (d) was a motivating factor for
12
any practice, even though other factors also motivated the
13
practice.
14
‘‘(2) In establishing an unlawful practice under this
15
Act, including under paragraph (1) or by any other meth-
16
od of proof, a complaining party—
17
‘‘(A) may rely on any type or form of admis-
18
sible evidence and need only produce evidence suffi-
19
cient for a reasonable trier of fact to find that an
20
unlawful practice occurred under this Act; and
21
‘‘(B) shall not be required to demonstrate that
22
age or an activity protected by subsection (d) was
23
the sole cause of a practice.’’.
24
(2) REMEDIES.—Section 7 of such Act (29
25
U.S.C. 626) is amended—
26
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•S 1030 IS
(A) in subsection (b)—
1
(i) in the first sentence, by striking
2
‘‘The’’ and inserting ‘‘(1) The’’;
3
(ii) in the third sentence, by striking
4
‘‘Amounts’’ and inserting the following:
5
‘‘(2) Amounts’’;
6
(iii) in the fifth sentence, by striking
7
‘‘Before’’ and inserting the following:
8
‘‘(4) Before’’; and
9
(iv) by inserting before paragraph (4),
10
as designated by clause (iii) of this sub-
11
paragraph, the following:
12
‘‘(3) On a claim in which an individual demonstrates
13
that age was a motivating factor for any employment prac-
14
tice under section 4(g)(1), and a respondent demonstrates
15
that the respondent would have taken the same action in
16
the absence of the impermissible motivating factor, the
17
court—
18
‘‘(A) may grant declaratory relief, injunctive re-
19
lief (except as provided in subparagraph (B)), and
20
attorney’s fees and costs demonstrated to be directly
21
attributable only to the pursuit of a claim under sec-
22
tion 4(g)(1); and
23
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•S 1030 IS
‘‘(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
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•S 1030 IS
‘‘(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
‘dem-
19
onstrates’ means meets the burdens of production
20
and persuasion.’’.
21
(2) CLARIFYING PROHIBITION AGAINST IMPER-
22
MISSIBLE
CONSIDERATION
OF
DISABILITY
IN
EM-
23
PLOYMENT
PRACTICES.—Section 102 of such Act
24
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•S 1030 IS
(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 need only produce evi-
15
dence sufficient for a reasonable trier of fact to
16
find that a discriminatory practice occurred
17
under this Act; and
18
‘‘(B) shall not be required to demonstrate
19
that disability or an activity protected by sub-
20
section (a) or (b) of section 503 was the sole
21
cause of an employment practice.’’.
22
(3) CERTAIN ANTI-RETALIATION CLAIMS.—Sec-
23
tion 503(c) of such Act (42 U.S.C. 12203(c)) is
24
amended—
25
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•S 1030 IS
(A) by striking ‘‘The remedies’’ and insert-
1
ing the following:
2
‘‘(1) IN GENERAL.—Except as provided in para-
3
graph (2), the remedies’’; and
4
(B) by adding at the end the following:
5
‘‘(2) CERTAIN
ANTI-RETALIATION
CLAIMS.—
6
Section 107(c) shall apply to claims under section
7
102(e)(1) with respect to title I.’’.
8
(4) REMEDIES.—Section 107 of such Act (42
9
U.S.C. 12117) is amended by adding at the end the
10
following:
11
‘‘(c) DISCRIMINATORY MOTIVATING FACTOR.—On a
12
claim in which an individual demonstrates that disability
13
was a motivating factor for any employment practice
14
under section 102(e)(1), and a respondent demonstrates
15
that the respondent would have taken the same action in
16
the absence of the impermissible motivating factor, the
17
court—
18
‘‘(1) may grant declaratory relief, injunctive re-
19
lief (except as provided in paragraph (2)), and attor-
20
ney’s fees and costs demonstrated to be directly at-
21
tributable only to the pursuit of a claim under sec-
22
tion 102(e)(1); and
23
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•S 1030 IS
‘‘(2) shall not award damages or issue an order
1
requiring any admission, reinstatement, hiring, pro-
2
motion, or payment.’’.
3
(d) REHABILITATION ACT OF 1973.—
4
(1) IN GENERAL.—Sections 501(f), 503(d), and
5
504(d) of the Rehabilitation Act of 1973 (29 U.S.C.
6
791(f), 793(d), and 794(d)), are each amended by
7
adding after ‘‘title I of the Americans with Disabil-
8
ities Act of 1990 (42 U.S.C. 12111 et seq.)’’ the fol-
9
lowing: ‘‘, including the standards of causation or
10
methods of proof applied under section 102(e) of
11
that Act (42 U.S.C. 12112(e)),’’.
12
(2) FEDERAL
EMPLOYEES.—The amendment
13
made by paragraph (1) to section 501(f) of the Re-
14
habilitation Act of 1973 (29 U.S.C. 791(f)) shall be
15
construed to apply to all employees covered by sec-
16
tion 501 of that Act (29 U.S.C. 791).
17
SEC. 3. APPLICATION.
18
This Act, and the amendments made by this Act,
19
shall apply to all claims pending on or after the date of
20
enactment of this Act.
21
SEC. 4. SEVERABILITY.
22
If any provision of this Act, an amendment made by
23
this Act, or the application of such provision or amend-
24
ment to any person or circumstance is held to be unconsti-
25
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•S 1030 IS
tutional, the remainder of this Act, the amendments made
1
by this Act, and the application of the provisions of such
2
to any person or circumstance shall not be affected there-
3
by.
4
Æ
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