II 

112TH CONGRESS 

2D SESSION S. 2189 

To amend the Age Discrimination in Employment Act of 1967 and other 

laws to clarify appropriate standards for Federal antidiscrimination and 

antiretaliation claims, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 13, 2012 

Mr. HARKIN (for himself, Mr. GRASSLEY, and Mr. LEAHY) 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 antidiscrimination and antiretaliation claims, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Protecting Older 

5 Workers Against Discrimination Act’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

7 (a) FINDINGS.—Congress finds the following: 


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1 (1) In enacting the Age Discrimination in Em2 ployment Act of 1967 (referred to in this section as 

3 the ‘‘ADEA’’), Congress intended to eliminate work4 place discrimination against individuals 40 and older 

5 based on age. 

6 (2) In enacting the Civil Rights Act of 1991, 

7 Congress reaffirmed its understanding that unlawful 

8 discrimination is often difficult to detect and prove 

9 because discriminators do not usually admit their 

10 discrimination and often try to conceal their true 

11 motives. 

12 (3) Congress intended that courts would inter13 pret Federal statutes, such as the ADEA, that are 

14 similar in their text or purpose to title VII of the 

15 Civil Rights Act of 1964, in ways that were con16 sistent with the ways in which courts had inter17 preted similar provisions in that title VII. The Su18 preme Court’s decision in Gross v. FBL Financial 

19 Services, Inc., 129 S. Ct. 2343 (2009), departed 

20 from this intent and circumvented well-established 

21 precedents. 

22 (4) Congress disagrees with the Supreme 

23 Court’s interpretation, in Gross, of the ADEA and 

24 with the reasoning underlying the decision, specifi25 cally language in which the Supreme Court— 


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1 (A) interpreted Congress’ failure to amend 

2 any statute other than title VII of the Civil 

3 Rights Act of 1964 in enacting section 107 of 

4 the Civil Rights Act of 1991 (adding section 

5 703(m) of the Civil Rights Act of 1964), to 

6 mean that Congress intended to disallow mixed 

7 motive claims under other statutes; 

8 (B) declined to apply the Supreme Court’s 

9 ruling in Price Waterhouse v. Hopkins, 490 

10 U.S. 228 (1989), a part of which was subse11 quently approved by Congress, and enacted into 

12 law by section 107 of the Civil Rights Act of 

13 1991, as section 703(m) of the Civil Rights Act 

14 of 1964, which provides that an unlawful em15 ployment practice is established when a pro16 tected characteristic was a motivating factor for 

17 any employment practice, even though other 

18 factors also motivated the practice; 

19 (C) interpreted causation language and 

20 standards, including the words ‘‘because of’’ 

21 that are similar in their text or purpose to title 

22 VII of the Civil Rights Act of 1964, in a man23 ner that departed from established precedent; 

24 (D) held that mixed motive claims were 

25 unavailable under the ADEA; and 


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1 (E) indicated that other established causa2 tion standards and methods of proof, including 

3 the use of any type or form of admissible cir4 cumstantial or direct evidence as recognized in 

5 Desert Palace Inc. v. Costa, 539 U.S. 90 

6 (2003), or the availability of the analytical 

7 framework set out in McDonnell Douglas Corp. 

8 v. Green, 411 U.S. 792 (1973), might not apply 

9 to the ADEA. 

10 (5) Lower courts have applied Gross to a wide 

11 range of Federal statutes, such as the Americans 

12 with Disabilities Act of 1990 (42 U.S.C. 12101 et 

13 seq.). 

14 (6) The Gross decision has significantly nar15 rowed the scope of protections intended to be af16 forded by the ADEA. 

17 (7) Congress must restore and reaffirm estab18 lished causation standards and methods of proof to 

19 ensure victims of unlawful discrimination and retal20 iation are able to enforce their rights. 

21 (b) PURPOSES.—The purposes of this Act include— 

22 (1) to restore the availability of mixed motive 

23 claims and to reject the requirements the Supreme 

24 Court enunciated in Gross v. FBL Financial Serv25 ices, Inc., 129 S. Ct. 2343 (2009), that a comVerDate Mar 15 2010 23:45 Mar 13, 2012 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2189.IS S2189

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1 plaining party always bears the burden of proving 

2 that a protected characteristic or protected activity 

3 was the ‘‘but for’’ cause of an unlawful employment 

4 practice; 

5 (2) to reject the Supreme Court’s reasoning in 

6 Gross that Congress’ failure to amend any statute 

7 other than title VII of the Civil Rights Act of 1964, 

8 in enacting section 107 of the Civil Rights Act of 

9 1991, suggests that Congress intended to disallow 

10 mixed motive claims under other statutes; and 

11 (3) to establish that under the Age Discrimina12 tion in Employment Act of 1967 (29 U.S.C. 621 et 

13 seq.), title VII of the Civil Rights Act of 1964 (42 

14 U.S.C. 2000e et seq.), the Americans with Disabil15 ities Act of 1990 (42 U.S.C. 12101 et seq.), and the 

16 Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), 

17 complaining parties— 

18 (A) may rely on any type or form of ad19 missible evidence to establish their claims; 

20 (B) are not required to demonstrate that 

21 the protected characteristic or activity was the 

22 sole cause of the employment practice; and 

23 (C) may demonstrate an unlawful practice 

24 through any available method of proof, includ25 ing the analytical framework set out in McDonVerDate Mar 15 2010 23:45 Mar 13, 2012 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2189.IS S2189

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1 nell Douglas Corp. v. Green, 411 U.S. 792 

2 (1973). 

3 SEC. 3. STANDARDS OF PROOF. 

4 (a) AGE DISCRIMINATION IN EMPLOYMENT ACT OF

5 1967.— 

6 (1) CLARIFYING PROHIBITION AGAINST IMPER7 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 amend10 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 meth19 od of proof, a complaining party— 

20 ‘‘(A) may rely on any type or form of admis21 sible evidence and need only produce evidence suffi22 cient for a reasonable trier of fact to find that an 

23 unlawful practice occurred under this Act; and 


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1 ‘‘(B) shall not be required to demonstrate that 

2 age or an activity protected by subsection (d) was 

3 the sole cause of a practice.’’. 

4 (2) REMEDIES.—Section 7 of such Act (29 

5 U.S.C. 626) is amended— 

6 (A) in subsection (b)— 

7 (i) in the first sentence, by striking 

8 ‘‘The’’ and inserting ‘‘(1) The’’; 

9 (ii) in the third sentence, by striking 

10 ‘‘Amounts’’ and inserting the following: 

11 ‘‘(2) Amounts’’; 

12 (iii) in the fifth sentence, by striking 

13 ‘‘Before’’ and inserting the following: 

14 ‘‘(4) Before’’; and 

15 (iv) by inserting before paragraph (4), 

16 as designated by clause (iii) of this sub17 paragraph, the following: 

18 ‘‘(3) On a claim in which an individual demonstrates 

19 that age was a motivating factor for any employment prac20 tice, under section 4(g)(1), and a respondent demonstrates 

21 that the respondent would have taken the same action in 

22 the absence of the impermissible motivating factor, the 

23 court— 

24 ‘‘(A) may grant declaratory relief, injunctive re25 lief (except as provided in subparagraph (B)), and 


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1 attorney’s fees and costs demonstrated to be directly 

2 attributable only to the pursuit of a claim under sec3 tion 4(g)(1); and 

4 ‘‘(B) shall not award damages or issue an order 

5 requiring any admission, reinstatement, hiring, pro6 motion, or payment.’’; and 

7 (B) in subsection (c)(1), by striking ‘‘Any’’ 

8 and inserting ‘‘Subject to subsection (b)(3), 

9 any’’. 

10 (3) DEFINITIONS.—Section 11 of such Act (29 

11 U.S.C. 630) is amended by adding at the end the 

12 following: 

13 ‘‘(m) The term ‘demonstrates’ means meets the bur14 dens of production and persuasion.’’. 

15 (4) FEDERAL EMPLOYEES.—Section 15 of such 

16 Act (29 U.S.C. 633a) is amended by adding at the 

17 end the following: 

18 ‘‘(h) Sections 4(g) and 7(b)(3) shall apply to mixed 

19 motive claims (involving practices described in section 

20 4(g)(1)) under this section.’’. 

21 (b) TITLE VII OF THE CIVIL RIGHTS ACT OF

22 1964.— 

23 (1) CLARIFYING PROHIBITION AGAINST IMPER24 MISSIBLE CONSIDERATION OF RACE, COLOR, RELI25 GION, SEX, OR NATIONAL ORIGIN IN EMPLOYMENT


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1 PRACTICES.—Section 703 of the Civil Rights Act of 

2 1964 (42 U.S.C. 2000e–2) is amended by striking 

3 subsection (m) and inserting the following: 

4 ‘‘(m) Except as otherwise provided in this title, an 

5 unlawful employment practice is established under this 

6 title when the complaining party demonstrates that race, 

7 color, religion, sex, or national origin or an activity pro8 tected by section 704(a) was a motivating factor for any 

9 employment practice, even though other factors also moti10 vated the practice.’’. 

11 (2) FEDERAL EMPLOYEES.—Section 717 of 

12 such Act (42 U.S.C. 2000e–16) is amended by add13 ing at the end the following: 

14 ‘‘(g) Sections 703(m) and 706(g)(2)(B) shall apply 

15 to mixed motive cases (involving practices described in sec16 tion 703(m)) under this section.’’. 

17 (c) AMERICANS WITH DISABILITIES ACT OF 1990.— 

18 (1) DEFINITIONS.—Section 101 of the Ameri19 cans with Disabilities Act of 1990 (42 U.S.C. 

20 12111) is amended by adding at the end the fol21 lowing: 

22 ‘‘(11) DEMONSTRATES.—The term ‘dem23 onstrates’ means meets the burdens of production 

24 and persuasion.’’. 


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1 (2) CLARIFYING PROHIBITION AGAINST IMPER2 MISSIBLE CONSIDERATION OF DISABILITY IN EM3 PLOYMENT PRACTICES.—Section 102 of such Act 

4 (42 U.S.C. 12112) is amended by adding at the end 

5 the following: 

6 ‘‘(e) PROOF.— 

7 ‘‘(1) ESTABLISHMENT.—Except as otherwise 

8 provided in this Act, a discriminatory practice is es9 tablished under this Act when the complaining party 

10 demonstrates that disability or an activity protected 

11 by subsection (a) or (b) of section 503 was a moti12 vating factor for any employment practice, even 

13 though other factors also motivated the practice. 

14 ‘‘(2) DEMONSTRATION.—In establishing a dis15 criminatory practice under paragraph (1) or by any 

16 other method of proof, a complaining party— 

17 ‘‘(A) may rely on any type or form of ad18 missible evidence and need only produce evi19 dence sufficient for a reasonable trier of fact to 

20 find that a discriminatory practice occurred 

21 under this Act; and 

22 ‘‘(B) shall not be required to demonstrate 

23 that disability or an activity protected by sub24 section (a) or (b) of section 503 was the sole 

25 cause of an employment practice.’’. 


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1 (3) CERTAIN ANTIRETALIATION CLAIMS.—Sec2 tion 503(c) of such Act (42 U.S.C. 12203(c)) is 

3 amended— 

4 (A) by striking ‘‘The remedies’’ and insert5 ing the following: 

6 ‘‘(1) IN GENERAL.—Except as provided in para7 graph (2), the remedies’’; and 

8 (B) by adding at the end the following: 

9 ‘‘(2) CERTAIN ANTIRETALIATION CLAIMS.—Sec10 tion 107(c) shall apply to claims under section 

11 102(e)(1) with respect to title I.’’. 

12 (4) REMEDIES.—Section 107 of such Act (42 

13 U.S.C. 12117) is amended by adding at the end the 

14 following: 

15 ‘‘(c) DISCRIMINATORY MOTIVATING FACTOR.—On a 

16 claim in which an individual demonstrates that disability 

17 was a motivating factor for any employment practice, 

18 under section 102(e)(1), and a respondent demonstrates 

19 that the respondent would have taken the same action in 

20 the absence of the impermissible motivating factor, the 

21 court— 

22 ‘‘(1) may grant declaratory relief, injunctive re23 lief (except as provided in paragraph (2)), and attor24 ney’s fees and costs demonstrated to be directly atVerDate Mar 15 2010 23:45 Mar 13, 2012 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2189.IS S2189

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1 tributable only to the pursuit of a claim under sec2 tion 102(e)(1); and 

3 ‘‘(2) shall not award damages or issue an order 

4 requiring any admission, reinstatement, hiring, pro5 motion, or payment.’’. 

6 (d) REHABILITATION ACT OF 1973.— 

7 (1) IN GENERAL.—Sections 501(g), 503(d), and 

8 504(d) of the Rehabilitation Act of 1973 (29 U.S.C. 

9 791(g), 793(d), and 794(d)), are each amended by 

10 adding after the words ‘‘title I of the Americans 

11 with Disabilities Act of 1990 (42 U.S.C. 12111 et 

12 seq.)’’ the following: ‘‘, including the standards of 

13 causation or methods of proof applied under section 

14 102(e) of that Act (42 U.S.C. 12112(e)),’’. 

15 (2) FEDERAL EMPLOYEES.—The amendment 

16 made by paragraph (1) to section 501(g) shall be 

17 construed to apply to all employees covered by sec18 tion 501. 

19 SEC. 4. APPLICATION. 

20 This Act, and the amendments made by this Act, 

21 shall apply to all claims pending on or after the date of 

22 enactment of this Act. 

Æ 


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