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PROTECTING OLDER WORKERS AGAINST 

DISCRIMINATION ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

ON

H.R. 3721 

JUNE 10, 2010 

Serial No. 111–108 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

MELVIN L. WATT, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

WILLIAM D. DELAHUNT, Massachusetts 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TAMMY BALDWIN, Wisconsin 

JOHN CONYERS, JR., Michigan 

STEVE COHEN, Tennessee 

SHEILA JACKSON LEE, Texas 

JUDY CHU, California 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

TOM ROONEY, Florida 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

C O N T E N T S 

JUNE 10, 2010 

Page 

THE BILL 

H.R. 3721, the ‘‘Protecting Older Workers Against Discrimination Act’’ ............ 4 

OPENING STATEMENT 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1 

WITNESSES 

Ms. Jocelyn Samuels, Senior Counsel, U.S. Department of Justice, Civil 

Rights Division 

Oral Testimony ..................................................................................................... 10 

Prepared Statement ............................................................................................. 13 

Mr. Jack Gross, Des Moines, IA 

Oral Testimony ..................................................................................................... 52 

Prepared Statement ............................................................................................. 55 

Mr. Eric S. Dreiband, Partner, Jones Day 

Oral Testimony ..................................................................................................... 62 

Prepared Statement ............................................................................................. 65 

Ms. Helen Norton, Associate Professor, University of Colorado Law School 

Oral Testimony ..................................................................................................... 79 

Prepared Statement ............................................................................................. 81 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 109 

(1) 

PROTECTING OLDER WORKERS AGAINST 

DISCRIMINATION ACT 

THURSDAY, JUNE 10, 2010 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:05 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Nadler, Conyers, Watt, Scott, Johnson, 

Jackson Lee, Chu, and Franks. 

Staff present: Heather Sawyer, Majority Counsel; David 

Lachmann, Subcommittee Chief of Staff; and Paul Taylor, Minority 

Counsel. 

Mr. NADLER. This hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties will come to order. And to 

begin, the Chair will recognize himself for an opening statement. 

Today we examine H.R. 3721, the ‘‘Protecting Older Workers 

Against Discrimination Act.’’ 

H.R. 3721 corrects the Supreme Court’s decision in—and this is 

the second time we will have had to correct the Supreme Court. 

The last time being Ledbetter on a very similar issue, where the 

Supreme Court has deliberately, and I think purposefully, misread 

the intent of Congress and narrowly construing a statue so as to 

eviscerate it. 

In this decision, the Supreme Court by a slim five-four majority, 

made it harder for older workers to prove unlawful age discrimination by holding that ‘‘mixed-motive’’ claims are no longer available 

under the Age Discrimination in Employment Act, or ADEA. 

In a ‘‘mixed-motive’’ claim an employer is alleged to have acted 

for a mixture of lawful and unlawful reasons, and the burden shifts 

to the employer to prove that it acted lawfully once an employee 

proves that a protected characteristic was a motivating factor in an 

employment decision. 

After the Court’s decision in Gross, however, the burden of proof 

never shifts to the employer in a case under the ADEA, even if the 

employer admits that age was a factor in its decision, an improper 

factor, obviously. 

Instead, older workers always bear the burden of proving that 

age was the ‘‘but for’’ or determinative factor for a challenged employment decision, and therefore the person must always prove 

2 

that the employer would not have made the same decision if age 

had not been a factor. 

This new and substantially higher standard for victims of age 

discrimination departs from decades of precedent and from the 

statutory framework of Title VII, which allows for mixed-motive 

claims and previously had served as the model for proving discrimination under the ADEA as well as under other Federal discrimination and retaliation laws. 

Title VII, like the ADEA, prohibits discrimination because of certain protected characteristics. The Supreme Court, in Price 

Waterhouse v. Hopkins, interpreted this language to prohibit discrimination motivated in whole or in part by a protected characteristic, and recognized mixed-motive claims under Title VII. 

Congress approved and codified mixed-motive claims in the Civil 

Rights Act of 1991, and expressed its intent that the ADEA and 

other Federal laws should continue to be interpreted consistently 

with Title VII as amended by the 1991 Act. 

The five-justice majority in Gross ignored this unambiguous history, choosing instead to adopt an interpretation previously rejected 

both by the Court and by Congress. As a result, the exact same 

words, ‘‘because of,’’ now mean something different under the 

ADEA than they do under Title VII. 

But the damage does not end there. In reaching this result, the 

majority directed the lower courts to engage in a ‘‘careful and critical’’ examination before applying Title VII’s precedent and framework to any other Federal law, thus declaring open season on settled precedent. 

The lower courts have taken up this task and have applied Gross 

in a variety of contexts, including to claims of discrimination because of disability, jury service and the exercise of free speech 

rights. 

Coming from a Court whose chief judge voted with the five-member majority in Gross, but who believes that judges are like umpires, or who claims to believe that judges are like umpires, that 

their role is to call balls and strikes and not to pitch or bat, the 

Gross decision was quite a curve ball. 

Not only did the majority reject decades of settled precedent and 

the longstanding presumption, consistently endorsed and relied 

upon by Congress when drafting legislation, that Title VII should 

serve as a model for other Federal laws, it did so only by raising 

and resolving a different issue than the one presented to the Court, 

a question that was not briefed or argued by the parties or by the 

amici. 

Writing in dissent, Justice Stevens described the majority’s conduct as ‘‘an unabashed display of judicial lawmaking.’’ For Jack 

Gross, who is here with us today, the experience has shattered his 

trust in the judicial system. 

We can, and should, correct this. Left standing, the Gross decision provides less protection and makes it much harder for older 

workers to prove unlawful age discrimination. It also creates substantially different standards across and between civil rights laws, 

thus undermining their predictability, scope and effectiveness. 

The decision also makes Congress’ task in drafting legislation impossible by endorsing the ridiculous notion that the same language, 

3 

here the words ‘‘because of’’ or ‘‘on the basis of,’’ which have been 

used by Congress in countless Federal discrimination and retaliation laws to require a causal connection between a protected characteristic and an employment decision, can mean different things 

in different laws. 

H.R. 3721 rejects this reasoning. It seeks to restore the pre-Gross 

standard for proving age discrimination and to restore the longstanding presumption that Title VII’s framework and precedent applies to other Federal discrimination and retaliation laws. And that 

Congress can rely on that body of law when choosing the phraseology of amendments or new laws. 

We should act promptly to correct the Gross decision before more 

damage is done, and I look forward to hearing more about this 

from our witnesses today. 

Do you want to make a statement? Did you want to make a 

statement? No? 

There being no other opening statements, without objection all 

Members will have 5 legislative days to submit opening statements 

for inclusion in the record. Without objection the Chair will be authorized to declare a recess of the hearing. We will now turn to our 

first witness. As we ask questions of our witness and of our second 

panel of witnesses afterwards, the Chair will recognize Members in 

the order of seniority in the Subcommittee, alternating between 

majority and minority, provided the Member is present when his 

or her turn arrives. Members who are not present when their turns 

begin will be recognized after the other Members have had an opportunity to ask their questions. 

The Chair reserves the right to accommodate a Member who is 

unavoidably late or only able to be with us for a short time. 

[The bill, H.R. 3721, follows:] 

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Mr. NADLER. Our first witness, indeed our first panel, is Jocelyn 

Samuels, who is the senior counsel to the Assistant Attorney General for Civil Rights at the Department of Justice. Prior to joining 

the Justice Department in 2009 she was the vice president for education and employment at the National Women’s Law Center in 

Washington, D.C. 

Ms. Samuels also previously served as the labor counsel to the 

late Senator Ted Kennedy during his tenure as Chairman of the 

Senate Committee on Health, Education, Labor and Pensions and 

as a senior policy attorney at the Equal Opportunity Commission. 

Ms. Samuels earned her law degree from Columbia and her B.A. 

from Middlebury College. I am pleased to welcome you. Your written statement in its entirety will be made part of the record. I 

would ask you to summarize your testimony in 5 minutes or less. 

And to help you stay within that time there is a timing light at 

your table, although the Chair is generally pretty liberal in seeing 

the light. When 1 minute remains the light will switch from green 

to yellow and then to red when the 5 minutes are up. 

Before we begin, it is customary for the Committee to swear in 

its witnesses. 

Let the record reflect that the witnesses answered in the affirmative, and you may be seated. And you are now recognized. 

TESTIMONY OF JOCELYN SAMUELS, SENIOR COUNSEL, 

U.S. DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION 

Ms. SAMUELS. The light is on. Okay. It is an honor to appear before you today to address H.R. 3721, the ‘‘Protecting Older Workers 

Against Discrimination Act.’’ 

Legislation like H.R. 3721, which would overturn the Supreme 

Court’s decision in Gross v. FBL Financial Services, is necessary to 

ensure that victims of age and other types of intentional discrimination are accorded the same legal protections as those subject to 

discrimination based on race, color, sex, national origin and religion. 

The Gross decision upset that basic understanding, and legislation is critical to create unity in the law and to avoid the patchwork of inconsistent and unpredictable standards to which the Supreme Court’s decision opens the door. 

In Gross, the Court held that plaintiffs under the Age Discrimination in Employment Act may not rely on a mixed-motive analysis 

to hold their employers accountable for age discrimination. Instead, 

the Court held, plaintiffs must demonstrate that age was a ‘‘but 

for’’ factor in cause of an adverse employment decision. 

In reaching this conclusion, as Mr. Chairman you noted in your 

opening remarks, the Court rejected its prior construction of identical language in Title VII. In Price Waterhouse v. Hopkins, the 

Court had held that under Title VII a plaintiff showing that discrimination was a motivating factor in an employment decision 

then shifted the burden to the employer to show that it would have 

made the same decision even absent the discrimination. 

Under the Price Waterhouse decision, the employer was liable if 

it failed to make this showing. Under the ADEA after Gross, by 

contrast, a plaintiff who demonstrates that age motivated the emVerDate Aug 31 2005 14:33 Oct 06, 2010 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6601 H:\WORK\CONST\061010\56831.000 HJUD1 PsN: 56831
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ployer’s action is not entitled to the Price Waterhouse shift in burdens. 

Under Gross the burden never shifts at all, and an employer 

need not, to avoid liability, demonstrate that it would have made 

the same decision even had it not relied on age. Instead, the plaintiff must meet the substantially heightened burden of showing not 

only that the employer relied on age, but also that the employer 

would not have made the same decision absent its discrimination. 

The Gross decision raises issues that are far from merely technical. By substantially raising the burdens of proof imposed on age 

discrimination plaintiffs, the Court has effectively reduced the protections available to older workers. 

The decision puts plaintiffs in the difficult if not impossible position of having to prove a negative; that the employer would not 

have made the same decision had it not been for the discrimination 

based on information that is often in the employer’s sole possession. 

And if a plaintiff cannot make this showing Gross deprives courts 

of the power to enjoin even employment practices that have been 

proven to be tainted by age bias. 

Not surprisingly, Gross has led numerous courts to dismiss 

ADEA claims for a failure of proof. But courts have also applied the 

Gross decision to bar mixed-motive claims and impose greater burdens on plaintiffs under numerous other laws as well, including the 

Americans with Disabilities Act, Section 1983 of the Civil Rights 

Act of 1866, the Employee Retirement Income Security Act and the 

Jury Systems Improvement Act. 

Courts have further questioned whether Gross should be read to 

bar mixed-motive claims under other statues, including the Family 

and Medical Leave Act. And even where courts have not yet 

reached the inquiry, the interpretation of other anti-discrimination 

laws, such as the Fair Housing Act, could well be at risk. 

Under each of these laws, application of Gross can undermine the 

protections the laws were intended to provide. In addition, as these 

cases show, Gross has created and will continue to create confusion 

and unpredictability in the law, subjecting plaintiffs, and employers for that matter, to a patchwork of uncertain and potentially inconsistent interpretations of anti-discrimination standards. 

At a minimum, this creates inefficiency and the potential for 

years of litigation. More fundamentally, it undermines the basic 

premise that all victims of intentional discrimination should have 

the same tools to hold their employers accountable and that those 

tools should create effective deterrents to discrimination. 

Congress can respond to the Gross decision and ensure that the 

ADEA and other anti-discrimination laws are interpreted in the 

same way as Title VII. In the Civil Rights Act of 1991, Congress 

codified the mixed-motive approach for Title VII and made clear 

that plaintiffs can establish a violation of the law by demonstrating 

that discrimination is a motivating factor for an employer’s decision, even if other factors also motivated the decision. 

Under the 1991 Act, the burden of showing that the employer 

would have made the same decision rests appropriately on the employer. An employer that meets this standard may nonetheless 

limit the individual relief that is available to the plaintiff. 

12 

H.R. 3721 would adopt this standard for the ADEA and other 

laws. Legislation like this bill would strike an appropriate and 

workable balance between enabling courts to prevent and deter future violations of the law, on the one hand, and preserving employers’ freedom to make non-discriminatory decisions on the other. 

It would make clear that discrimination is prohibited in employment in whole or in part. It would provide the same protections 

from intentional discrimination that are available under Title VII 

to victims of discrimination on other bases. 

It would thereby create unity in the law, renew the ability of 

older workers and others to effectively challenge discrimination 

against them, and move us closer to realizing the law’s promise of 

equal employment opportunity. 

The Department of Justice looks forward to providing technical 

assistance on the bill and to working with the Committee to 

achieve these goals. 

Thank you again for inviting me to testify today. I look forward 

to your questions. 

[The prepared statement of Ms. Samuels follows:] 

13 

PREPARED STATEMENT OF JOCELYN SAMUELS


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Mr. NADLER. Thank you. I will begin the questioning by recognizing myself for 5 minutes. Ms. Samuels, as a practical matter, 

what does the Gross ruling mean in terms of the scope of protection 

against discrimination for older workers under ADEA and more 

broadly, given that the lower courts have already applied the Gross 

ruling and reasoning to a variety of other laws? 

Ms. SAMUELS. Thank you very much for that question, Chairman 

Nadler. As I mentioned in my statement, the Gross decision has 


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24 

had numerous troubling consequences, both under the ADEA and 

under the laws to which courts have extended it. 

Initially, of course, the Gross decision reduces the protections 

available to age discrimination plaintiffs. They are now subject to 

a new burden that they had never had to bear under all of the 

precedent that pre-dated the Gross decision. Namely the obligation 

to prove that age is a ‘‘but for’’ cause of discrimination. 

That makes it harder for plaintiffs to prevail in cases even in 

which employers admit that they have relied on age discrimination 

and reduces court’s power to enjoin age discrimination in the future. That, of course, also reduces the deterrent effect of the law. 

In addition, the fact that other courts have extended Gross to 

laws like the Americans With Disabilities Act or the Jury Systems 

Improvement Act, suggests that under those laws, protections for 

plaintiffs that Congress intended to protect will be similarly reduced. 

The decision also creates tremendous confusion and the possibility of endless litigation about the standards that should apply 

going forward. 

Mr. NADLER. Let me ask you at this point, if the ‘‘but for’’ standard were left alone in the law, does that basically preclude recovery 

in most cases? Is it like the strict scrutiny standard which almost 

nothing ever meets? 

Ms. SAMUELS. Well, I think that plaintiffs can prevail if they are 

able to show that age or another prohibited basis is a ‘‘but for’’ 

cause of discrimination, and that has long been an available theory 

of discrimination under Title VII and other laws. And plaintiffs 

have been able to win their cases. That said—— 

Mr. NADLER. But rarely. 

Ms. SAMUELS [continuing]. The Supreme Court decision in Gross 

makes it substantially more difficult to prevail in the all too common situation in which employers act based on a combination of 

quotas. 

Mr. NADLER. Now, we have talked about the fact that we now 

have different causation standards, apparently, in ADEA and Title 

VII, and a variety of different meanings for the same words in the 

same phrase because of we are ‘‘on the basis of.’’ Is there any good 

that can come of that? Is there any good reason to have different 

meanings ascribed in different laws passed for the same purpose, 

to the same phrase? 

Ms. SAMUELS. I think that unity in the law is a very important 

goal and one that has been recognized by the Court in prior cases. 

As Justice Stevens noted in his dissent, Title VII has provided the 

model for interpretation of the ADEA since the ADEA was enacted. 

And there is substantial indication that Congress has intended 

the ADEA and other anti-discrimination laws that use identical 

language to Title VII to be interpreted in the same way. 

Mr. NADLER. Now, do you think that H.R. 3721, as drafted, adequately restores the basic presumption that when Congress prohibits discrimination or retaliation because of or on the basis of the 

protective characteristic or conduct should be deemed irrelevant 

and not considered in whole or in part? I mean, is the language in 

this bill adequate to its purpose or should it be improved in some 

way? 

25 

Ms. SAMUELS. The Department of Justice would be delighted to 

work with the Committee. As you know, these are technical issues 

related to burdens of proof and the way in which courts conduct 

trials. We are very supportive of the goals of this legislation and 

would be delighted to provide assistance to make sure that it accomplishes Congress’ intent. 

Mr. NADLER. But you see no problem glaring out that will negate 

it. 

Ms. SAMUELS. I am sorry, no problem? 

Mr. NADLER. Glaring out. It is not on its face inadequate? 

Ms. SAMUELS. I think that the legislation is clear in its intent to 

overturn the Gross decision and to impose standards analogous to 

those under the Civil Rights Act of 1991 for Title VII and is effective in doing that. 

Mr. NADLER. Okay. Finally, in your testimony you say that although the bill is generally couched in terms of an amendment to 

the ADEA, we note that there is broader language at one point 

that suggests application to all Federal laws and constitutional provisions, barring employment discrimination and retaliation. 

‘‘Broader language that suggests,’’ do you think that language 

should be tightened up? 

Ms. SAMUELS. I think that, you know, as you noted in your statement and I did in mine, courts have extended the reasoning of the 

Gross decision to numerous other laws and it is important to address the effects of those laws. We would be happy to talk about 

the most effective way to ensure that the legislation addresses all 

of the ways—— 

Mr. NADLER. Adequately addresses then. 

Ms. SAMUELS [continuing]. That Gross has created problems. 

Mr. NADLER. All right, I think we will have to work together on 

that. And I think that is it. I thank you. I yield back the balance 

of my nonexistent time at this point. 

I now recognize the distinguished gentleman from Virginia, Mr. 

Scott. 

Mr. SCOTT. Thank you. Ms. Samuels, you indicated it is harder, 

but is it possible to prove a case if the defendant doesn’t admit or 

you have somebody on the inside admit that there was discrimination that would have made the difference? 

Ms. SAMUELS. Well, the problem with the Gross decision, of 

course, is that even if the employer does admit that it relied in part 

on age discrimination, there is nothing that a plaintiff can do about 

it because the Supreme Court has said that there is no mixed-motive framework. 

Certainly putting the burden on the plaintiff to prove that age 

was—that the employer would not have made the same decision 

anyway, requires the plaintiff to have access to information that is 

often only in the possession of the employer. 

Mr. SCOTT. So if the employer doesn’t admit or turn over evidence it would be virtually impossible under present standards to 

prove discrimination? 

Ms. SAMUELS. I don’t want to say it would be impossible because 

unfortunately under the Gross decision that is the situation that 

plaintiffs confront, but it is substantially more difficult for them. 

26 

Mr. SCOTT. Well, under the law in other cases if you have made 

your case and accused them of discrimination and they come back 

with an explanation which turns out to be bogus, a pretext, what 

happens in that case? 

Ms. SAMUELS. Well, that standard, which was the one adopted by 

the Supreme Court in the McDonnell Douglas decision says that 

there are shifting burdens of producing evidence. And if the plaintiff makes a prima facie case that a discriminatory basis was part 

of the reason, the employer gets to produce evidence of a legitimate 

nondiscriminatory reason. 

Under those cases the plaintiff has the burden of showing that 

the employer’s reason is in fact a pretext for discrimination. Unfortunately, the Court in Gross suggested that there might be some 

doubt about whether the McDonnell Douglas standard applies 

under the Age Discrimination in Employment Act, something that 

had not previously been questioned. 

Mr. SCOTT. And so if you have one of the other cases, if you show 

the pretext just wasn’t true then that can be used as evidence that 

there was in fact discrimination. Is that right? 

Ms. SAMUELS. Yes. 

Mr. SCOTT. And would this bill restore that idea? 

Ms. SAMUELS. This bill would make clear that that framework of 

analysis which has prevailed under Title VII for the last 40 years 

also clearly applies under the ADEA. 

Mr. SCOTT. Now, in terms of discrimination with faith-based organizations, it is—discrimination is allowable, but is it not faithbased organizations running Federal programs where they can be 

running a Federal program and decide not to hire Catholics or 

Jews if they don’t want to? Is that the present law? 

Ms. SAMUELS. Well, under Title VII religious organizations, and 

there is a, you know, very carefully defined universe of entities 

that would be qualified to be religious organizations, can restrict 

their hiring to co-religionists. That said, the often—— 

Mr. SCOTT. Or they can exclude people. I mean it is not just internal. 

Ms. SAMUELS. They can restrict hiring to co-religionists. They 

can’t discriminate based on sex, ethnic origin and—— 

Mr. SCOTT. Well, I mean they can hire everybody they want except certain groups. It is not inclusive. It is also exclusive. Is that 

right? 

Ms. SAMUELS. Title VII provides that authorization to religious 

organizations. 

Mr. SCOTT. Now, it used to be the law that if you are running 

a federally-funded program you had to comply with ordinary antidiscrimination provisions. Is that right? 

Ms. SAMUELS. Yes. 

Mr. SCOTT. And if you are running a federally-funded program 

today can the religious organizations running a federally-funded 

program discriminate based on religion? 

Ms. SAMUELS. Representative Scott, I am not able to tell you 

today what the state of the law is on that. I know that there have 

been concerns expressed about interpretations of the government, 

and I would be happy to take those concerns back. 

27 

Mr. SCOTT. What prohibition would there be? You said they are 

not covered by Title VII. They are not covered by Title VI. What 

is it—where would they be covered? It used to be Johnson’s executive order from 1965 that the Bush administration undermined in 

the early in their Administration. What prohibition is there against 

discrimination based on religion? 

Ms. SAMUELS. Well, there is obviously a constitutional level of 

protection that bars the government from establishing religion or 

from preventing the free exercise of religion. So to the extent that 

employment discrimination—— 

Mr. SCOTT. If someone were to come to your department and say 

that I was discriminated against when I applied for a job paid for 

with Federal money, and they told me that I wasn’t the right religion, what would your reaction be? 

Ms. SAMUELS. My reaction would be to consult my colleagues 

back at the Department of Justice so that we could provide assistance and input on that question. 

Mr. SCOTT. So you are not clear as to whether or not that is legal 

or not. 

Ms. SAMUELS. I am aware that the Office of Legal Counsel at the 

Department of Justice has issued an opinion on this question, and 

that that has been in existence for the last number of years. 

Mr. NADLER. Could you ask her to find out and let her submit 

it for the record? 

Mr. SCOTT. The Chairman has asked me to have you inquire to 

your colleagues to ascertain whether or not a faith-based organization running a federally-funded program can have a policy of not 

hiring Catholics and Jews. 

Ms. SAMUELS. I would be happy to take that inquiry back. 

Mr. NADLER. Would the gentleman yield? 

Mr. SCOTT. I yield. 

Mr. NADLER. Thank you. Let me add to that. Would there be 

anything to prevent a religious group, the whatchamacallit church, 

getting federally-funded grants to state that its religion bars hiring 

anybody over the age of 60? 

Ms. SAMUELS. As I mentioned, the exemption given in Title VII 

is only to permit religious organizations to hire co-religionists. It 

does not authorize—— 

Mr. NADLER. Oh, it is to hire—— 

Ms. SAMUELS [continuing]. Any other form of discrimination. 

Mr. NADLER [continuing]. Excuse me. I thought it was to not to 

enable them only to hire co-religionists, but to enable them not to 

have to hire people against their faith. 

Ms. SAMUELS. I—— 

Mr. NADLER. For example, I mean—for example, we don’t tell the 

Catholic Church you have got to hire women as priests. It is none 

of our business, obviously, and that is not co-religion. The women 

are Catholics, too. So it is not just co-religionists obviously. 

Ms. SAMUELS. Right. There is a specific ministerial exemption in 

the law for, for example, Catholic priests. But whether faith-based 

organizations could exclude people based on age, I am aware of no 

law that would authorize them to do that. 

Mr. NADLER. Thank you. 

Mr. SCOTT. Would the Chairman yield? 

28 

Mr. NADLER. Yes. I yield back the time to the gentleman from 

Virginia. 

Mr. SCOTT. Yes. If, however, it were a manifestation of the religion if you are hiring people from your youth choir, then you could 

essentially exclude people of age. If you are hiring people from just 

your co-religionists in a congregation that is racially homogeneous, 

that would have racial implications. Is that right? 

Ms. SAMUELS. I, you know, I think under the Age Act there is 

a reasonable factor other than age defense. How that would apply 

in that situation is something that I think we would have to look 

at. And obviously there is a disparate impact cause of action that 

is available under Title VII that would cover all of the bases covered by Title VII. 

Mr. SCOTT. Well, I think a lot of this will be—we will get to the 

bottom of this when you inquire with your colleagues whether or 

not a faith-based organization running a federally-funded program 

with Federal money, hiring people being paid for with Federal 

money, can have a policy of ‘‘we don’t hire Catholics and Jews.’’ 

Ms. SAMUELS. I would be delighted to inquire further on that 

matter. 

Mr. NADLER. Okay. Thank you. The gentleman’s time has expired, and if there are no further questions the witness is excused 

with our thanks. And we will ask the—oh, hold on. The Chairman 

wants to—— 

Mr. CONYERS. Well, I just wanted to ask permission for our counsel, Heather Sawyer—— 

Mr. NADLER. I am sorry. 

Mr. CONYERS [continuing]. To ask a couple questions? 

Mr. NADLER. I recognize our counsel. The witness has a few more 

questions. 

Ms. SAWYER. Okay, great. Thank you, Mr. Chairman. This is a 

treat indeed. Ms. Samuels, some commentators have suggested 

that plaintiffs and employees in age discrimination cases can actually be better off under the Gross ruling because it removes what 

has been termed ‘‘the same decision affirmative defense,’’ whereby 

an employer bears the burden of showing, as you explained, that 

it would have reached the same decision anyway. 

And I just wanted to give you the opportunity to explain whether 

or not there is any way in which you could see the Gross ruling 

both in the context of ADEA and more broadly being an advantage 

to employees? 

Ms. SAMUELS. Thank you for that question. I vehemently disagree that the Gross ruling is a boon to plaintiffs or are in any way 

advantages them in employment discrimination suits. What the 

Gross ruling does is to increase the burden on the plaintiff. 

Under pre-Gross treatment of the law by every Federal appellate 

court that had looked at it, the defendant, if the plaintiff showed 

that age was a motivating factor for a decision, the defendant had 

the burden of proving that it would have made the same decision 

anyway. 

That burden has now been put on the plaintiff. So the plaintiff 

has to prove the negative, that the employer would not have made 

the same decision absent the discrimination. This does not mean 

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the—eliminating the affirmative defense idea does not mean that 

the employer is—that the plaintiff therefore wins. 

What it means is the requirement of the showing whether the 

decision would have been made or not absent age has now been 

shifted to the plaintiff. It has not disappeared from the case. It is 

put on a party less well-equipped to make that showing than the 

employer. 

In cases following Gross numerous cases have dismissed claims 

in which age discrimination plaintiffs have relied on mixed-motive 

jury instructions. In those cases where courts have reversed trial 

court ruling for the defendants, plaintiffs have been able to prevail 

despite the Gross ruling, not because of it. 

Mr. NADLER. Do you have any questions? Okay. 

Thank you very much. Who? I am sorry. Counsel has one other 

question. 

[Laughter.] 

Ms. SAWYER. I am sorry about that. One last question, you had 

spoken at some length about the fact that the Gross decision has 

now spread out to laws beyond ADEA. And I was wondering 

whether or not you have seen the lower courts also applying that 

reasoning and ruling to claims where a plaintiff brings a claim that 

may allege multiple or more than one unlawful reason, so an age 

claim and a race claim, a claim that is age and gender. Have you 

seen that and how has it played out? 

Ms. SAMUELS. Well, I think that this is a particularly unfortunate extension of the Gross decision that there are various lower 

courts that have misinterpreted Gross, which held that age—plaintiffs had to prove that age was a ‘‘but for’’ factor, to instead mean 

that plaintiffs have to show that age is a full factor for the decision. 

This cuts particularly cruelly in cases in which a plaintiff alleges, 

and there have been some in the lower courts, that the employer’s 

decision is based on two prohibited considerations, age and race, for 

example. 

There is a case in which the court has dismissed the plaintiff’s 

age claims because the plaintiff also alleged race discrimination. 

And the court said that since the plaintiff had to show that age 

was the sole cause pursuant to Gross, she could no longer proceed 

with the age-based claim. 

Ms. SAWYER. And so that is something that is a new and different standard that has come out of this decision? 

Ms. SAMUELS. It is a new and different standard that imposes extraordinary constraints on plaintiffs, who in fact may have been 

subject to discrimination on multiple prohibited bases under the 

laws. 

Mr. NADLER. It sort of rewards a triple malefactor. 

Ms. SAMUELS. It creates that kind of incentive. 

Mr. NADLER. Okay. I thank you, and I thank the witness, and 

we will now proceed with our second panel. Oh, I am sorry. Wait 

a minute. 

I recognize another Member of the Subcommittee. I recognize for 

5 minutes the gentlewoman from California. 

Ms. CHU. Thank you, Mr. Chair. I wanted to ask about the fact 

that the Gross decision involved a claim under ADEA, but the 

Court also invited the lower courts to extend its reasoning beyond 

30 

the ADEA to other laws. Has this happened? Can you provide some 

examples of where Gross has been applied outside ADEA? 

Ms. SAMUELS. Yes, thank you, Congresswoman for that question. 

As I mentioned in my statement, the Gross decision has led to the 

dismissal of numerous ADEA claims, but it also quite unfortunately has been applied well beyond the ADEA, to the Americans 

with Disabilities Act, the Employee Retirement Income Security 

Act, to 42 USC Section 1983, to the Jury Service Improvements 

Act. 

And troublingly in some cases, even though courts have rejected 

the idea that Gross applies under the statutes, they have raised the 

question. So for example, under the Family and Medical Leave Act 

there are opinions that question whether or not a mixed-motive 

cause of action is still available under those laws. 

Ms. CHU. And let me ask about the increasing numbers of age 

discrimination claims. According to the AARP, 24,580 discrimination claims were filed in 2008, and that is 29 percent increase over 

2007. That is double the increase of overall discrimination charges, 

which include claims by race, sex and disability. 

Why was there such an increase in age discrimination claims in 

2008, and how does this compare to 2009? 

Ms. SAMUELS. Well, let me make clear, the Department of Justice 

doesn’t enforce the Age Discrimination in Employment Act, but the 

EEOC, which does enforce it, has testified that there has been a 

dramatic increase in the number of age discrimination charges that 

have been filed. 

I believe that they have submitted to the Senate Health, Education, Labor and Pensions Committee information on the levels of 

those charges in both 2008 and 2009. You know, obviously this is 

of tremendous concern, particularly in this economy where it is 

critical to ensure that protections against age discrimination are 

robust. 

Older workers, given the economy, may have to stay in the workforce longer and unfortunately there continues to be stereotypes 

and barriers that face older workers that the ADEA was intended 

to root out. And that is the reason that this legislation or legislation like it is so critical, to ensure that the protection under the law 

is as robust as Congress intended it to be. 

Ms. CHU. In fact, do you think the recession and all the layoffs 

played a part in the increase in these age discrimination complaints? 

Ms. SAMUELS. I have not seen studies to that effect, but I think 

that given the recession and the fact that numerous workers need 

to remain in the workforce longer makes it all the more critical 

that we ensure robust protection of the law. 

Ms. CHU. Okay, thank you. And I yield back. 

Mr. NADLER. Yes, thank you. And I just want to note before ending this panel that we will submit for the record the EEOC and 

Senate testimony and the EEOC and AARP Senate testimony for 

the record. 

[The information referred to follows:] 

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Mr. NADLER. And while I have said that we have been joined by 

yet another Member of the Subcommittee. 

I now recognize the gentleman from Georgia for 5 minutes. 

Mr. JOHNSON. Thank you, Mr Chairman, and I will defer my 

questions until the very end. 


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Mr. NADLER. This is the very end of this—— 

Mr. JOHNSON. Mr. Chairman is—— 

Mr. WATT. Well, since he is deferring could I just ask one question? 

Mr. NADLER. The gentleman from North Carolina. 

Mr. JOHNSON. Well, I will waive my right to speak after transferring it to my colleague from North Carolina. 

Mr. WATT. I just wanted one point of information, the number of 

cases that Justice has filed under the age discrimination provisions 

since the Gross decision? 

Ms. SAMUELS. The Department of Justice doesn’t have the authority to file cases under the Age Discrimination in Employment 

Act. Those cases are brought by the EEOC. 

Mr. WATT. Do you track how many cases the EEOC has filed? 

Ms. SAMUELS. We do not separately track that, but the EEOC 

certainly has that information. 

Mr. WATT. Okay. Without tracking it do you have some idea? I 

mean, do you have that information even though you don’t track 

it? 

Ms. SAMUELS. Well, I know that the Chair of the EEOC, Jacqueline Berrien, testified several weeks ago before the Senate 

Health, Education, Labor and Pensions Committee and did make 

note in her testimony and follow-up questions of the dramatic increase in the number of age discrimination charges that have been 

filed. 

Mr. WATT. That wasn’t the question I asked. I assume that that 

response was about the number of age discrimination charges that 

have been filed with the EEOC. I am asking the number of lawsuits that have been filed? 

Ms. SAMUELS. The number of age discrimination lawsuits that 

have been filed? 

Mr. WATT. Right. 

Ms. SAMUELS. I don’t know the answer to that, but I would be 

happy to take that back and look into the matter. 

Mr. WATT. That would be very helpful if you could do that and 

provide the information to us. Thank you. 

Ms. SAMUELS. I would be happy to do so. 

Mr. WATT. I yield back. 

Mr. NADLER. I thank the gentleman. And finally I will say the 

witness can be excused with our thanks. We will now proceed with 

our second panel. And I would ask the witnesses to take their 

place. In the interest of time I will introduce the witnesses while 

they are taking their seats. 

Jack Gross was—I am informed, was an intern once, to answer 

your question, but we will have to let that go by. Jack Gross was 

the plaintiff in the recent Supreme Court case Gross v. Farm Bureau Financial Services. 

In 2003 he was demoted from his position as director of claims 

administration at FBL. This was despite having performance reviews in the top 5 percent of the company for the prior 13 consecutive years. Mr. Gross filed his age discrimination suit in 2003 and 

won a jury verdict in 2005, which was subsequently overturned on 

appeal. Mr. Gross is a graduate of Drake University. 

Eric Dreiband—is that Dreiband or Dreiband? 

52 

Mr. DREIBAND. Dreiband. 

Mr. NADLER. Eric Dreiband is currently a partner at the Jones 

Day law firm. From 2003 to 2005, Mr. Dreiband served as the general counsel of the U.S. Equal Employment Opportunity Commission. 

Before becoming EEOC general counsel he served as deputy administrator of the U.S. Department of Labor’s Wage and Hours Division from 2002 to 2003. He earned a J.D. from Northwestern University Law School and a B.A. from Princeton University. 

Helen Norton is an associate professor at the University of Colorado Law School, where she teaches and writes on issues related 

to constitutional law, civil rights and employment discrimination 

law. 

Ms. Norton previously served as deputy assistant attorney general for civil rights at the U.S. Department of Justice, where she 

managed the Civil Rights Division employment litigation, educational opportunities and coordination and review sections. She 

holds a J.D. from Boalt School of Law at the University of California, Berkeley and a B.A. from Stanford University. 

I am pleased to welcome you all. Your written statements will be 

made part of the record in their entirety. I would ask each of you 

to summarize your testimony in 5 minutes. To help you stay within 

that time there is a timing light at your table. When 1 minute remains the light will switch from green to yellow, and then red 

when the 5 minutes are up. 

It is customary for the Committee to swear in its witnesses. 

Let the record reflect that the witnesses answered in the affirmative. You may be seated, and I will recognize first Mr. Gross. And 

please make sure the light is on at your mic. 

TESTIMONY OF JACK GROSS, DES MOINES, IA 

Mr. GROSS. There we go. Okay. Thank you, Chairman Nadler 

and Conyers for inviting me here to tell my story and state my position regarding the outcome of the Supreme Court in my case 

Gross v. FBL. 

It is an honor for me to be here and to be given this opportunity 

to speak out on behalf of millions of older workers, all too many 

of whom, like myself, have experienced age discrimination in the 

workplace. 

While my name has now become associated with age discrimination, my story is being duplicated millions of times across this 

country. I ask that you envision those millions of citizens who are 

depending on you as standing behind me today. I certainly never 

imagined that my case would end up here when it all started 7 

years ago. 

That is when my employer, Farm Bureau Insurance or FBL, suddenly demoted all claims employees who were over 50 and had supervisor or higher positions. I was included in that wholesale 

sweep, even though I had 13 consecutive years of performance reviews in the top 3 to 5 percent of my company, and had dedicated 

most of my working career to making Farm Bureau a better company. 

My contributions were exceptional, and they were well-documented for the jury. Since age was the obvious reason I filed a comVerDate Aug 31 2005 14:33 Oct 06, 2010 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6601 H:\WORK\CONST\061010\56831.000 HJUD1 PsN: 56831
53 

plaint and 2 years later a Federal jury spent a week listening to 

all the testimony, seeing all the evidence and being instructed in 

the law, your law, the ADEA. 

The verdict came back in my favor, and I thought the ordeal was 

over in 2005. As we now know, that was just the beginning. FBL 

appealed and the verdict came back, and the 8th Circuit overturned my verdict because I had received a mixed-motive jury instruction. 

And they said that required so-called direct evidence instead of 

just the preponderance of circumstantial evidence that we had provided. That left us no choice but to appeal it to the Supreme Court. 

We were elated when the Court accepted certiorari on that one 

issue because 30 years of precedent and legislation were overwhelmingly on our side. 

At the hearing, however, the Supreme Court broke with their 

own protocol and allowed the defense to advance an entirely new 

argument, one that had not been briefed nor had we been given an 

opportunity to prepare a rebuttal. 

In effect they pulled a bait and switch on us, accepting cert on 

our question and then ignoring it to water down the clear intent 

of the ADEA by creating a hierarchy of discrimination. 

Those that were specifically named in Title VII were at the top 

hierarchy and required a lower standard of evidence, and age and 

all the others were at a lower tier and now required a new and significantly higher standard of proof. 

I believe Congress, the branch of government closest to the people, intended to abolish discrimination in the workplace not to create exceptions for it. My wife and I came to D.C. last June believing our highest court would uphold the rule of law and consistently 

apply it to all areas of discrimination. 

We were disappointed and quite frankly disillusioned by their arrogance in putting their own ideology ahead of the clear will of 

Congress and decades of their own precedents. Since the Court’s 

decision I have been particularly distressed over the collateral 

damage that is being inflicted on others because of the Court’s ruling. 

I hate having my name associated with the pain and injustice 

that is now being inflicted not only on older workers, but now victims of many other types of discrimination, because it is nearly impossible to provide the level of proof now required by this Court. 

I have to keep reminding myself that I am not the one who 

changed your law. Five justices did. Congress has a long history of 

working together on a bipartisan basis to create and maintain a 

level playing field in the workplace. The ADEA is but one example. 

I urge you on behalf of myself and the millions of other older 

workers from both parties, who simply want to continue working, 

to again rise to the challenge in that same bipartisan spirit you 

demonstrated before on civil rights issues to pass the Protecting 

Older Workers Against Discrimination Act. 

I grew up in a small town in southern Iowa. My dad was a highway patrolman, my mother a school teacher. I overcame 25 years 

of chronic health problems to achieve my education and success. 

My wife, Marlene, to whom I have been married for 43 years and 

I, started with absolutely nothing but a strong work ethic and a deVerDate Aug 31 2005 14:33 Oct 06, 2010 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6601 H:\WORK\CONST\061010\56831.000 HJUD1 PsN: 56831
54 

termination to build a good life together. And we did so against all 

odds. We have two wonderful grown children and two granddaughters who are the great joys of our lives. 

I am here before you as a man who agonized over the decision 

to pursue this case. As much as I hate discrimination in all its 

forms, this was a company I had poured my heart and soul into for 

most of my adult life, and I knew that I would be burning my career bridges once I was labeled as litigious. 

Marlene and I prayed about it, decided it had to be done, and 

then left the outcome in God’s hands, never expecting he would 

bring us here. 

If my experience eventually prevents anyone else from having to 

endure the pain and humiliation of discrimination, I will always 

believe that this effort was part of God’s plan for my life. Thank 

you. 

[The prepared statement of Mr. Gross follows:] 

55 

PREPARED STATEMENT OF JACK GROSS


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Mr. NADLER. Thank you. 

Mr. Dreiband, you are recognized for 5 minutes. 

TESTIMONY OF ERIC S. DREIBAND, PARTNER, JONES DAY 

Mr. DREIBAND. Thank you. Good morning, Chairman Nadler and 

Chairman Conyers and Members of the Committee. My name is 


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Eric Dreiband and I thank you and the entire Committee for affording me the privilege of testifying today. 

I am here at your invitation to speak about the proposed Protecting Older Workers Against Discrimination Act. I do not believe 

the bill would advance the public interest. In particular, the bill as 

drafted will do nothing to protect workers from age discrimination, 

other forms of discrimination, retaliation or any other unlawful 

conduct. 

I say this for three reasons. First, the bill incorrectly asserts that 

the decision by the Supreme Court of the United States in Gross 

v. FBL Financial Services eliminated protections for many individuals. In fact, the Court’s decision does not eliminate any protection 

for victims. 

Before the decision, age discrimination defendants could prevail, 

even when they improperly considered a person’s age, if they demonstrated that they would have made the same decision or taken 

the same action for reasons unrelated to age. 

The Court’s decision stripped away this so-called ‘‘same decision’’ 

or same action defense and it therefore deprived entities that engage in age discrimination of this defense. For this reason, since 

the Gross decision, the Federal courts have repeatedly ruled in 

favor of discrimination plaintiffs and against defendants. 

In fact, the United States Courts of Appeals for the first, second, 

third, sixth, seventh, eighth, 9th, 10th and 11th Circuits have relied upon the Gross decision to rule in favor of alleged discrimination victims. 

Second, the bill, as written, will restore the ‘‘same action’’ defense eliminated by the Gross decision. As a result, discrimination 

victims may prove that a protected trait such as age was a motivating factor for the practice complained of, yet still lose their case. 

This is because the bill would deprive discrimination victims of 

any meaningful remedy in so-called ‘‘same action’’ cases. Their lawyers may receive payment for fees directly attributable to a motivating factor claim, but the alleged victim will get nothing, no job, 

no money, no promotion—nothing. 

A discrimination may win a moral victory perhaps, but nothing 

else. And the bill may enable some lawyers to earn more money, 

but who does this benefit? The answer is lawyers. Not discrimination victims, not unions and not employers. 

Third, the bill is overly broad, vague and ambiguous and may 

open up a Pandora’s box of litigation. The bill purports to apply to 

‘‘any Federal law forbidding employment discrimination,’’ and several other laws. But the bill does not identify which laws it will 

amend. 

And as a result discrimination victims, unions, employers and 

others will unnecessarily spend years or decades and untold 

amounts of money fighting in court about whether the bill changes 

particular laws. The public will have to wait years or decades until 

the matter trickles up to the Supreme Court to settle the question 

case by case about one law after another. 

In the meantime, litigants and courts will waste time, money and 

resources litigating this issue with no benefit for anyone. The 

threat of decades of litigation about these issues is not merely hypothetical. 

64 

Note in this regard that it took 38 years of litigation before the 

Supreme Court and the United States finally decided in 2005 that 

the Age Discrimination in Employment Act permits claims for unintentional age discrimination. 

Congress can fix this vagueness problem rather easily by amending the bill to apply solely to the Age Discrimination in Employment Act, the only statue at issue in Mr. Gross’ case, or at a minimum listing the laws that Congress intends to amend. 

I would note in this regard that the recently enacted Lilly 

Ledbetter Fair Pay Act of 2009 specifically identified the laws that 

it amended, and Congress can do the same here. 

Thank you. And I look forward to your questions. 

[The prepared statement of Mr. Dreiband follows:] 

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PREPARED STATEMENT OF ERIC S. DREIBAND


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Mr. NADLER. Thank you. 

And I recognize Ms. Norton for 5 minutes. 


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TESTIMONY OF HELEN NORTON, ASSOCIATE PROFESSOR, 

UNIVERSITY OF COLORADO LAW SCHOOL 

Ms. NORTON. And thank you, Mr. Chairman and Members of the 

Subcommittee for inviting me to testify today. The Supreme Court’s 

decision in Gross significantly undermines older workers’ ability to 

enforce their rights under the ADEA, and it threatens to do the 

same for workers seeking to enforce their rights under a wide 

range of other Federal anti-discrimination laws. 

In response, H.R. 3721 would replace the Court’s new rule in 

Gross with Title VII’s longstanding causation rule, a rule that more 

effectively furthers Congress’ interest in dismantling barriers to 

equal opportunity. 

Current Federal law prohibits job discrimination ‘‘because of’’ 

certain characteristics. For example, the ADEA prohibits employers 

from discriminating against an individual because of such individual’s age. Now, of course, employment decisions, like so many 

human decisions, are sometimes driven by multiple motives. 

And these mixed-motive cases raise a causation challenge. When 

multiple reasons motivate an employment decision, some of which 

are discriminatory and some of which are not, under what circumstances should we conclude that the employer made such a decision ‘‘because of’’ discrimination in violation of Federal law? 

The Supreme Court’s decision in Gross departed from nearly 20 

years of precedent on this question to articulate a brand new causation standard for the ADEA. And it vacated Mr. Gross’ jury 

award, a jury award that had been issued based on instructions 

that were consistent with longstanding case law. 

Under the Court’s new rule, which adopts an approach rejected 

both by an earlier Supreme Court in its 1989 Price Waterhouse decision and by Congress in the Civil Rights Act of 1991, the burden 

of persuasion always remains on the plaintiff, not only to prove 

that age motivated the decision, but also to prove that age was the 

‘‘but for’’ cause of the decision. 

Now, requiring the plaintiff to bear the burden of proving that 

age was the ‘‘but for’’ cause of an action requires him or her to not 

only prove that age was a motivating factor, but also to prove that 

the employer would not have taken the same adverse action if it 

had not engaged in age discrimination. 

Bearing the burden of proving what the employer would not have 

done in such an imaginary scenario is especially difficult for the 

plaintiff, as the defendant obviously has greater access to information about its state of mind in such a situation. 

As lower courts have repeatedly confirmed and emphasized, 

Gross now erects substantial new barriers in the path of older 

workers seeking to enforce their rights to be free from age discrimination. And as Mr. Gross’ own case makes clear, the Court’s new 

rule can strip discrimination victims. 

Mr. Gross proved that he was a victim of age discrimination. 

Nonetheless, the Court’s new rule can strip him and other victims 

of hard fought victories. And my written statement offers other examples as well. 

Moreover, the Gross rule undermines Congress’ efforts to stop 

and deter workplace discrimination by permitting an employer 

80 

under some circumstances entirely to escape liability for a workplace infected by bias. And here is an example. 

An older worker applies for a job for which she is qualified, only 

to be rejected after being told by her interviewer that he prefers 

not to hire older workers because he considers them to be less productive, less creative and generally less energetic. 

Suppose, too, that that employer ultimately hires another applicant who is arguably even more qualified for the position than the 

plaintiff. Under Gross, even if the plaintiff can prove that the employer relied on inaccurate and stigmatizing age-based stereotypes 

in its decision to reject her, the employer will escape ADEA liability altogether unless the plaintiff can also prove the employer 

would not have rejected her if it had not engaged in age discrimination. 

Unless the plaintiff can prove this hypothetical negative, the 

Gross rule permits an employer completely to avoid liability for its 

proven bias with no incentive to refrain from similar discrimination 

in the future. 

Gross threatens workers’ rights to be free from discrimination 

and retaliation in a wide range of other contexts as well. And in 

fact, lower courts increasingly understand Gross to be the default 

rule in Federal litigation. 

In other words, they increasingly interpret Gross to mean that 

mixed-motive claims are never available to plaintiffs under Federal 

statutes unless and until Congress expressly provides otherwise. 

And for this reason lower courts now apply Gross to a growing 

number of Federal statutes in addition to the ADEA. 

In response, H.R. 3721 would replace the Gross rule with a uniform causation standard that would apply to the ADEA and other 

Federal laws that prohibit discrimination and retaliation. It would 

replace Gross with the same standard adopted by Congress with respect to Title VII in 1991. 

H.R. 3721 thus rejects the Gross Court’s unreasonable demand 

that a plaintiff who successfully proves that discrimination did in 

fact motivate the decision, must bear the additional burden of proving that some other factor was not in the defendant’s mind. 

Furthermore, as Congress recognized in the Civil Rights Act of 

1991, this approach best prevents and deters future discrimination 

by ensuring that employers proven to have engaged in discrimination can be held liable for their actions. 

Again, thank you for inviting me to join you today, and I look forward to your questions. 

[The prepared statement of Ms. Norton follows:] 

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PREPARED STATEMENT OF HELEN NORTON


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Mr. NADLER. Thank you. And I will begin the questioning by recognizing myself for 5 minutes. Ms. Norton, unlike Title VII, the 

ADEA does not have a statutory provision recognizing mixed-motive claims. Can you explain briefly how and why mixed-motive 

claims previously were recognized under the ADEA? 


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Ms. NORTON. Yes, certainly. Most anti-discrimination statutes include a key phrase ‘‘because of.’’ In other words, they prohibit discrimination because an employee has a certain characteristic, like 

race or age, or because an employee engaged in a certain protected 

action like—— 

Mr. NADLER. Could you use perhaps Mr. Dreiband’s mic? Yours 

doesn’t seem to be functioning properly. Was she on the mic? And 

turn yours off. Okay. I am sorry, proceed. 

Ms. NORTON. It is commonplace for Federal law to prohibit discrimination ‘‘because of’’ a certain characteristic like race or age or 

because an employee engaged in a certain activity, like Federal 

jury service or reporting possibly illegal behavior. 

In Price Waterhouse in 1989, the Supreme Court interpreted that 

phrase, what does it mean for an employer to discriminate ‘‘because 

of’’ sex? And the Supreme Court held that that means an employer 

cannot rely on sex in whole or in part and created the motivating 

factor mixed-motive framework. 

The ADEA uses the same phrase. It prohibits employers from 

discriminating ‘‘because of’’ age. So not surprisingly and without 

dissent, since Price Waterhouse, all lower courts have assumed that 

Congress meant the same phrase to mean the same thing in different anti-discrimination statutes. 

Mr. NADLER. And also since Price Waterhouse Congress saw no 

necessity for spelling it out since it was clear. 

Ms. NORTON. Correct. And in fact, Congress codified that standard in the Civil Rights Act of 1991. 

Mr. NADLER. Now, Mr. Dreiband takes a position that plaintiffs 

are better off under the Gross ruling, and cites the several postGross rulings to support his claim. Are you familiar with those 

cases and do you reach the same or different conclusion as Mr. 

Dreiband’s? 

Ms. NORTON. I haven’t seen Mr. Dreiband’s statement for today, 

but I have seen his statement from the Senate, and I see that they 

are largely similar. I disagree. I disagree about all of those cases 

with care, and I do not believe they support the assertion for which 

they are cited. 

In fact, a number of them explicitly confirm the fact that Gross 

poses a more onerous, more stringent causation standard on plaintiffs than does Price Waterhouse. And they went on to rule for the 

plaintiffs because they found that the plaintiff’s evidence of discrimination was sufficiently strong that it could satisfy any causation standard, including the more onerous standard. 

Several of the other cases cited actually distinguish Gross, making clear that they will continue to rely on Price Waterhouse in 

statutes other than the ADEA. So rather than relying on Gross 

they, in fact, declined to rely on Gross. 

Mr. NADLER. So could you comment on the following couple of 

sentences in Mr. Dreiband’s testimony as to whether you agree or 

disagree and why? He said, ‘‘Before the Gross decision, age discrimination defendants could prevail, even when they improperly 

consider the person’s age, if they demonstrated that they would 

have made the same decision or taken the same action for additional reasons unrelated to age.’’ 

94 

The Court in the Gross case eliminated this ‘‘so-called same decision or same action defense.’’ For this reason and since the Gross 

decision issue, the Federal courts have repeatedly ruled in favor of 

age discrimination plaintiffs and against defendants. 

Ms. NORTON. Mr. Dreiband characterizes Gross as eliminating a 

defense that had been available to plaintiffs and that had been 

available to defendants. And he argues that that is beneficial to 

plaintiffs. But at what—it is important to understand what Gross 

did. 

It replaced the Price Waterhouse rule, the Price Waterhouse rule 

that required at some point the defendants to bear the burden of 

proving that they would have made the same decision absent age 

discrimination. If you are a litigant you want the other party to 

bear the burden of proof because that means the other party bears 

the burden of any uncertainty. 

You especially want the other party to bear the burden of proof 

when the other party is the one that has access to information that 

is key to that issue. For example, if the issue is the other party’s 

state of mind, you want the other party to bear the burden of proof 

as to his or her state of mind. 

So by eliminating the burden shifting mechanism that Price 

Waterhouse established and that Congress codified with respect to 

the Civil Rights Act of 1991, Gross ensured that the burden never 

shifts to the defendant. 

And the plaintiff must bear the burden not only of proving that 

age was a motivating factor, but also that some other factor did not 

or would not have motivated the employer’s decision in the hypothetical, the imaginary scenario in which age did not play a role. 

If I could just complete my earlier answer in terms of the cases 

cited in Mr. Dreiband’s Senate testimony, he also cites a number 

of cases in which the courts, lower courts cite Gross but then go 

on to decide for the plaintiffs under McDonnell Douglas. So they 

are certainly relying not on Gross but on longstanding ADEA and 

anti-discrimination law to reach its conclusion. 

There is one case that Mr. Dreiband dites in that statement that 

I do agree can be characterized as relying on Gross to find for 

plaintiffs, the Mora case. But I think if you look closely at that case 

that you will see that the plaintiff’s evidence in that case was so 

strong it would have survived any causation standard before or 

after Gross. 

And in fact the court in that case did rely on mixed-motive cases, 

Price Waterhouse cases, to reach that conclusion. 

Mr. NADLER. Can you submit the citations of these cases for the 

record? Or rather, I am sorry, can you cite your analysis of these 

cases for the record? 

Ms. NORTON. Yes, sir. 

Mr. NADLER. Thank you. I have one more question. Do you agree 

that there is no ‘‘meaningful remedy’’ where an employer succeeds 

in bearing the burden of proving the mixed-motive ‘‘same decision’’ 

defense? 

Ms. NORTON. No, sir, I do not agree. First of all, H.R. 3721 would 

provide to full relief, full relief damages, reinstatement, et cetera, 

so plaintiffs like Jack Gross and other victims like him who prove 

95 

that their employer acted based on age or some other prohibited 

discrimination. 

And where their employers, as was the case with Mr. Gross, cannot prove that they would have made the same decision absent age 

discrimination fully, that Mr. Gross prevailed under the existing 

Price Waterhouse instructions. He would have prevailed under H.R. 

3721. He would have been entitled to full relief. 

Even in those cases in which both the plaintiff and the defendant 

meet their burdens of proof under the framework articulated under 

H.R. 3721, so even those cases where the plaintiff, like Mr. Gross, 

proves that age was a motivating factor and the defendant, unlike 

the defendant in Mr. Gross’ case, can also prove that it would have 

made the same decision absent age. 

H.R. 3721, unlike the Gross rule, ensures that declaratory and 

injunctive relief and partial attorney’s fees and costs will still remain available. This is hugely important to achieving the deterrent 

purpose of anti-discrimination law. 

Anti-discrimination laws as the Supreme Court has repeatedly 

recognized, has two purposes: to compensate victims of discrimination for the losses that they have suffered because of discrimination, and to serve the larger public purpose of stopping and deterring discrimination. 

And as the Supreme Court has repeatedly emphasized, injunctive 

relief, which this bill would make possible once the plaintiff has 

proved that age played a role in the decision, injunctive relief is 

key to ensuring that—to vindicating the important public interest 

in deterring discrimination regardless from and apart from any 

monetary remedy to the plaintiff. 

Mr. NADLER. Thank you. I will now recognize—my time is expired. 

I will now recognize the gentleman from Arizona for 5 minutes. 

Mr. FRANKS. Well, thank you, Mr. Chairman. Thank you all for 

being here. 

Mr. Dreiband, let me, if I could, I was interested in if you had 

any response to Ms. Norton’s—some of her analyses of your own 

Senate testimony? Just give me an idea of what your response 

might be to that? 

Mr. DREIBAND. Let me see if this is on. Okay. Professor Norton 

and I, I think, respectfully disagree. The Mora case decision by the 

United States Court of Appeals to the 11th Circuit is an example 

I think where we may part company, as is Mr. Gross’ case itself. 

I would note that under the pre-existing Price Waterhouse standard a unanimous United States Court of Appeals ruled against Mr. 

Gross because the court said he failed to present direct evidence of 

discrimination, which is a necessary requirement established by 

the Price Waterhouse v. Hopkins decision that apparently Professor 

Norton thinks is a better rule than is the Supreme Court’s decision. 

He lost under that standard. And in the Mora case that Professor 

Norton cited, I would note that in that case the plaintiff was an 

individual named Josephine Mora, the chief executive officer of her 

employer made comments to her and about her that he needed 

someone younger than her. 

And yet under the pre-existing standard that governed her case, 

that is the standard that governed before the Gross decision, the 

96 

district court granted summary judgment in favor of the employer 

and said she did not even have a right to present her case to a 

jury. 

The United States Court of Appeals for the 11th Circuit read the 

Supreme Court’s decision in Gross and concluded that this so-called 

‘‘same decision’’ or same action defense that existed under the Price 

Waterhouse framework is no longer available to employers. And so 

the Court reversed the decision and sent the case back to the trial 

court for a trial. 

Now, let me clarify one other point that I think Chairman Nadler 

made about my remarks. I did not mean to suggest that Mr. Gross 

is better off today as a result of the Supreme Court’s decision than 

he was after the jury’s verdict. 

Certainly the Supreme Court did not reinstate the jury’s verdict 

that the court of appeals reversed, but nevertheless, the notion that 

the Gross decision is some, you know, part of some master plan to 

assault working people or to increase burdens on plaintiffs is simply not being borne out by the cases that we have seen since the 

decision came down. 

Mr. FRANKS. Well, like, I guess it is in a sense for me it is the 

scope of H.R. 3721 that concerns me. Despite its title, Protecting 

Older Workers, the bill seems to go far beyond simply adopting the 

mixed-motive Price Waterhouse mode of proof to the ADEA and 

protecting older workers in general. 

But it seems that in actuality the bill would adopt this standard 

to a range of Federal laws including the ADEA and any other ‘‘Federal law forbidding employment discrimination’’ at all or discrimination against an individual participating in any federally protected activities, like perhaps even the whistleblower law and perhaps statutes ranging from labor relations laws including those 

with extensive case law interpretive history such as the National 

Labor Relations Act and the Labor Management Reporting and 

Disclosure Act. 

You know, just innumerous whistleblower statutes in entirely 

different areas of law. I mean there is just a—it seems like there 

is a host of areas that this could affect. Can you give me some idea 

of whether or not you think this is or could be problematic, and 

why should we be cautious before taking such a sweeping act here 

in the form of H.R. 3721? 

Mr. DREIBAND. Yes. I think, yes. The bill does not identify the 

laws that it intends to amend. This is very different than the approach the Congress took in 2009 when Congress enacted the Lilly 

Ledbetter Fair Pay Act and explicitly identified the laws that Congress intended to change. 

It would not be difficult to amend the bill to simply list the statutes that Congress intends to amend as a result of the bill. That 

could be done very easily. 

I think if Congress decides not to do that and enacts the bill in 

this form, what we are likely to see then will be unnecessary litigation between the plaintiffs and defendants who will argue whether 

or not the bill amends to the particular law that they are litigating 

over. 

Let me give you an example. The Fair Labor Standards Act 

which sets standards for the minimum wage, for overtime payVerDate Aug 31 2005 14:33 Oct 06, 2010 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6601 H:\WORK\CONST\061010\56831.000 HJUD1 PsN: 56831
97 

ments, for child labor and other wage issues, does not explicitly say 

that this is a law forbidding employment discrimination. 

One section of the bill, though, prohibits employers from discriminating against people if they cooperate, for example, with the 

United States Department of Labor in an investigation or testify. 

The bill as written here it is unclear about whether this bill 

would apply to the Fair Labor Standards Act or not, or whether it 

might apply to parts of it or not. And I think if the bill is enacted 

in its current form what we are likely to see are several years of 

courtroom fights over that question and litigation over that question with no benefit to victims of discrimination. 

No benefit to unions or employers who have to spend unnecessarily amounts of money and attorney’s fees in order to get a decision ultimately from the Supreme Court and that could come, you 

know, decades later. And so I think it is a very real concern but 

one that I think Congress can fix very easily. 

Mr. FRANKS. Well, thank you, and thank you Mr. Chairman. I 

think I got my full 5 minutes, but the light didn’t go from green 

to red so I don’t know. 

I was just going to—I think I am fine. I think you kind of answered the question. Is there any additional examples of unintended negative consequences that could result when the laws 

other than ADEA might be impacted in a way by this legislation? 

Mr. DREIBAND. Well, I think, if I understand the question, I 

think the concern is that in many areas of the law like in the National Labor Relations Act, which regulates relationships between 

unions and employers, that the law is well-established on questions 

about the so-called mixed-motive framework. 

Very often that is a result of either statutes or case law, and I 

think that the bill is written because it does not identify the laws 

which it would amend, would call into question as to whether or 

not the existing state of the law is changed at all by this bill or 

not. 

And my own view is I don’t see how that, the uncertainty that 

that would create helps anybody. I mean, victims of unlawful conduct or unions or employers, but one I would encourage the Congress to think and give some thought to to correct if it can, if it 

will. 

Mr. FRANKS. Thank you. And thank you, Mr. Chairman for indulging me. I obviously have some concerns with the bill on broader terms, but it might be at least worth considering making sure 

it is specified as to what other statutes that this affects. 

Mr. NADLER. Thank you. 

I will now recognize the gentleman from North Carolina for 5 

minutes. 

Mr. WATT. Thank you, Mr. Chairman. 

Mr. Gross, you have been sitting there quietly as lawyers have 

been sparring. Can you just tell us what the current status of your 

case is? I assume you had to go back and re-litigate the—or was 

it resolved? 

Mr. GROSS. Yes. Actually what the Supreme Court did was to vacate what the 8th Circuit had done. And so that means we are basically headed back to a new trial. I think it is November 8th of 

this year. This is going to be nearly 8 years after the original act, 

98 

over 5 years since the first trial. And we don’t know right now 

what the standard of rule is going to be until Congress takes an 

action on this. 

Mr. WATT. Are you still employed by this employer? 

Mr. GROSS. I was until December of last year. 

Mr. WATT. You retired? 

Mr. GROSS. Yes, I had been experiencing retaliation since I filed 

this suit for 7 years, and my wife and I had to have a little heart 

to heart talk about whether the stress was still worth it or not. 

And we had decided to retire. 

Mr. WATT. Mr. Dreiband, I wasn’t clear from your testimony of 

whether you were of the opinion that we should be doing nothing 

legislatively or whether you just have some concerns about the content of this. What is your position on whether we should be trying 

to at least make consistent the standard in ADEA cases and other 

Title VII cases? 

Mr. DREIBAND. And in other—I am sorry, what was that? 

Mr. WATT. Title VII cases. 

Mr. DREIBAND. Well, as I understand the bill it would not change 

Title VII. 

Mr. WATT. No, I am not asking you what—— 

Mr. DREIBAND. Right. 

Mr. WATT [continuing]. Your understanding of the bill is. I am 

just asking you whether you think we should be doing anything in 

this area, or you think we should be doing nothing? 

Mr. DREIBAND. I don’t believe that the Supreme Court’s decision 

changes anything, so I, as a result, my recommendation would be 

to do nothing. 

Mr. WATT. So you are saying that a plaintiff like Mr. Gross 

should have to prove the negative that the employer would not 

have done this ‘‘but for’’ this. That is what you are saying? 

Mr. DREIBAND. That is not what I am saying. 

Mr. WATT. As opposed to the employer having to come forward 

and submit evidence on that? 

Mr. DREIBAND. No. No, that is not what I am saying. If I could 

clarify? 

Mr. WATT. Okay. Well, I am trying to get clarification. It is 

just—— 

Mr. DREIBAND. Right, okay. Well it is—— 

Mr. WATT [continuing]. It is not a trick question. I am just trying 

to find out what your—— 

Mr. DREIBAND. Right, I understand, but—— 

Mr. WATT [continuing]. Opinion is. 

Mr. DREIBAND. No. I don’t accept the premise of the question, respectfully. The standard that governs a so-called ‘‘but for’’ causation generally speaking means the plaintiff has to prove that the 

prohibited characteristic, in this case age, was a determining factor. The jury instructions in the 8th Circuit, which govern Mr. 

Gross’ case has defined determining factor as not the only factor. 

Mr. WATT. Mr. Dreiband, I appreciate your taking my 5 minutes 

to explain the laws to me. I am just asking a simple question. You 

don’t think the burden should ever shift to the defendant in the 

case when defendant has really access to the information about 

what their own motivation? 

99 

You don’t think that there should ever be a shifting of that, of 

that burden to the defendant? Is that what—or you do? 

Mr. DREIBAND. Well, there are times when the burden under affirmative defenses will shift to a defendant in a discrimination 

case. 

Mr. WATT. Okay. I am asking in this case, in Mr. Gross’ case, do 

you think there should—in ADEA cases should there ever be a 

time when that burden shifts? 

Mr. DREIBAND. Yes. 

Mr. WATT. Okay. All right, fine. Okay, that is all I am trying to 

find out. I don’t, so I mean so there is no sense in us arguing 

about—so now, let me just ask one other question and maybe you 

will be more direct. 

Do you think I am trying to trick you? I am not. I am just trying 

to make sure that I understand what the witnesses are saying and 

who are testifying here because we have got to make some decisions about this going forward. 

I didn’t understand the point you were making about this only 

benefitting lawyers as opposed to benefitting plaintiffs. Explain 

that to me. 

Mr. DREIBAND. The bill would essentially transform the Title VII 

mixed-motive framework into the Age Discrimination in Employment Act. What that means is that as a general matter, if a plaintiff proves the motivating factor standard and the employer carries 

its same action or ‘‘same decision’’ defense, the plaintiff wins nothing. 

The only award that the plaintiff gets is that the court will order 

the defendant to pay a portion of the attorney’s fees, which means 

the attorney may get some money, but the plaintiff doesn’t. 

Mr. WATT. But if the plaintiff wins the case you are saying there 

is no difference here? Or is there a difference? 

Mr. DREIBAND. If the plaintiff wins under a, let us call it the determining-factor standard, the plaintiff gets a job, money, promotion, potentially liquidated damages. If the plaintiff wins under 

the mixed-motive framework and the employer establishes its affirmative defense, that plaintiff, Mr. Gross in this case, will not get 

anything—nothing, no job, no money, no promotion, nothing. 

And—— 

Mr. WATT. Ms. Norton maybe you can help me understand that. 

I don’t for the life of me understand what Mr. Dreiband is saying. 

Maybe you understand it better. I mean I haven’t done any employment discrimination cases since at least 1992 when I got elected 

here. So maybe you understand better what he is saying. 

Ms. NORTON. I can’t speak for Mr. Dreiband. I will offer my observations with respect to Mr. Gross under this bill, if this bill is 

in effect by the time Mr. Gross’ new trial takes place. It is currently scheduled for November. 

The Supreme Court’s decision had the result of stripping him of 

his jury verdict of $47,000 in lost compensation and ordered him 

to undergo a new trial under the Gross rule’s more difficult causation standard. 

But if Congress is able to enact this bill before his new trial, he 

will be entitled to full relief if he has to do this again, if he again 

proves that age was a motivating factor in his demotion, and if his 

100 

employer again fails to prove that it would have demoted him even 

apart from his age. 

But even if—this is a hypothetical because it hasn’t happened— 

but even if his employer could prove, could have proved that it 

would have demoted him regardless of age, under H.R. 3721 that 

would ensure that he would get injunctive relief, stopping the employer from continuing discrimination and retaliation. 

As Mr. Gross testified, he remained employed, although demoted, 

at FBL at the time of his trial through the Supreme Court’s case 

and through this last December. Under H.R. 3721, he would have 

been protected by an injunction from continuing discrimination and 

retaliation. That is very valuable, and the public would have benefitted from a court order stopping that discrimination. 

Mr. WATT. Okay. I think I understand it now. I thank you, Mr. 

Chairman. 

I thank you, Mr. Dreiband. I am sure you made an effort. I just 

didn’t understand what you were saying. I wasn’t ignoring you or 

trying to cut you off. But I am just trying to understand what the 

state of the law is now, and so I yield back. 

Mr. NADLER. Thank the gentleman. 

I now recognize the gentleman from Virginia for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Ms. Norton, Mr. Dreiband suggested that the case didn’t do that 

much. Can you remind us about the damage done in this case? 

Ms. NORTON. I am sorry, Congressman. I didn’t hear you. 

Mr. SCOTT. What Mr. Dreiband said that the case didn’t do that 

much. Mr. Gross’ case didn’t do that much damage. Can you remind us of the damage the case did? 

Ms. NORTON. Well, in Mr. Gross’ case he lost his $47,000 jury 

verdict compensating him for lost pay and benefits and now will 

have to face retrial currently under a much more difficult causation 

standard. 

I will give you another example. Dr. LilliAnn Jackson, WilliamsJackson, a public school guidance counselor, alleged that she had 

been demoted because of her Federal jury service because she was 

away from work serving her civic duty as a juror and that her employer punished her as a result of it. And she alleged a violation 

of the Jury Systems Improvement Act. 

The trial court agreed that Dr. Jackson had substantially greater 

credibility than the defendant, and the trial court agreed that Dr. 

Jackson had proven that she was the victim of discrimination, that 

her jury service was in fact a motivating factor in her demotion. 

However, the trial court says, ‘‘We are obliged to apply Gross.’’ 

Gross requires Dr. Jackson to also prove that the jury service was 

the ‘‘but for’’ cause, and that Dr. Jackson could not bear the burden 

of proving there was not some other reason, like budgetary reasons, 

for her demotion. 

The trial court made clear that Gross was the difference between 

winning and losing for Dr. Jackson. 

Mr. SCOTT. Can you say a word about the requirement for direct 

evidence in the case? When is direct evidence needed? 

Ms. NORTON. Yes, sir. Sir, direct evidence is generally characterized as evidence that leaves no doubt as to the role of discrimination in the decision. It is basically a confession. When an employer 

101 

says, ‘‘I am firing you because of your age.’’ It is very powerful evidence, but as you can imagine, it is also very rare. 

Much more common in all types of cases, criminal cases, civil 

cases, employment discrimination cases, is circumstantial evidence, 

which can take any of a number of forms: suspicious timing, different comparative evidence, different folks treated differently 

when it doesn’t appear that they should be treated differently, hostile remarks, et cetera. 

In almost all areas of the law, plaintiffs are permitted to offer 

whatever evidence they have, and it is up to the fact finders, the 

jury to determine whether or not it is sufficient. This bill would 

make clear that that is also the case with respect to all employment discrimination complaints, including and not limited to Age 

Discrimination in Employment Act cases. 

There had been a split in the lower courts as to whether or not 

a plaintiff needed direct evidence of age discrimination to get a 

mixed-motive instruction. And this bill would clarify once and for 

all that circumstantial as well as direct evidence is sufficient for a 

plaintiff to establish that discrimination was a motivating factor. 

Mr. SCOTT. Can you say a word about the same decision, how 

that plays out? Whether or not that is a defense, if you have done 

the same thing to others? 

Ms. NORTON. This bill would make clear, first of all, that the 

plaintiff has established a violation once he or she has proved that 

discrimination was a motivating factor, there is a violation of law. 

It also permits, however, the employer not to escape liability but 

to limit its remedies if it can then bear the burden of proving that 

it still would have made the same decision even in the hypothetical 

situation in which it did not engage in age discrimination. 

If the employer is able to make out that defense then it doesn’t 

have to reinstate the plaintiff. It doesn’t have to pay out damages. 

It is subject to an injunction stopping it from any continuing discrimination or retaliation. And it is subject to partial attorney’s 

fees and costs to compensate the plaintiff for establishing discrimination. 

Mr. SCOTT. In Title VII. So that if you have a policy of discriminating but the plaintiff couldn’t prove that they were a victim of 

that policy you would essentially have no damages, but you can 

show that you can stop the ongoing discrimination. And that would 

be the benefit to the public. 

Ms. NORTON. Yes, sir. 

Mr. SCOTT. Mr. Dreiband, isn’t that a benefit if you have a policy 

of discrimination and the person who appears to be a victim but 

turns out can’t prove their case? Can’t prove his or her case? Isn’t 

it a benefit to enjoin the ongoing policy of discrimination? 

Mr. DREIBAND. Certainly if an employer has an ongoing policy or 

pattern or practice of discrimination, yes, I agree entirely that that 

practice or policy or pattern should be enjoined. 

I think the reality, though, is as we have seen in the Title VII 

context, is that because there are no damages available to the individuals that individuals, including the government, the Equal Employment Opportunity Commission, rarely if ever assert a mixedmotive claim. 

102 

I mean I, you know, when I served as general counsel at the 

Equal Employment Opportunity Commission I was involved in 

hundreds of cases. And I am not aware of a single mixed-motive 

Title VII that EEOC brought. And I have spoken with other EEOC 

lawyers who have served there for many years and theyr’e not 

aware of any cases either. 

So I agree with you and I agree with Professor Norton that certainly an injunction that prohibits such a policy is in the public interest. I have never seen a case where an employer maintains such 

a policy or pattern or practice of discrimination and a plaintiff 

couldn’t demonstrate that they were a victim of that. Normally 

they do demonstrate that. 

Mr. SCOTT. Well, but I think in Mr. Gross’s case they said they 

demoted everyone over a certain age. Isn’t that right Mr. Gross? 

Now, the individual plaintiff might not be able to show that their 

demotion was because of that policy. All they know is they were demoted along with everybody else. 

And so if they would bring the case, assuming that they would 

have benefits, but if it gets thrown out nobody else can enjoy the 

benefits of an injunction. 

Mr. DREIBAND. Well, but even in the kind of case that you have 

described there is a whole different essentially class action framework under a 1977 Supreme Court case. Not the mixed-motive 

framework but the so-called pattern or practice framework that 

governs those cases. 

And certainly the Supreme Court of the United States has said 

that in that kind of case that a court has authority separate and 

apart from the mixed-motive provisions to enjoin an ongoing pattern or practice of discrimination even if the particular or some individuals are not victimized by it and so that would be unaffected 

by the bill. 

Mr. NADLER. Would the gentleman yield for a moment? 

Mr. SCOTT. I yield the balance of my time. 

Mr. NADLER. Thank you. Ms. Norton, you said that there was on 

the question of direct and circumstantial evidence there was some 

split in the lower courts. I just want you to clarify in the Desert 

Palace v. Costa case, didn’t the Supreme Court clarify that at least 

with respect to Title VII cases the Court clarified that with respect 

to Title VII and mixed-motive case you could use direct or circumstantial evidence? 

Ms. NORTON. That is correct. 

Mr. NADLER. And the point is that H.R. 3721 would confirm that 

and extend it to non-Title VII or to all cases. 

Ms. NORTON. That is correct. And the Desert Palace case is also 

an excellent example in response to Congressman Scott’s question. 

It is an example of a plaintiff who brought a mixed-motive claim 

under Title VII, under the Congress’ 1991 standard, a mixed-motive claim, and proved that sex was a motivating factor in her termination. 

The employer could not prove that it would have fired regardless 

of her sex, and she received full relief. That is the standard that 

would be available to Mr. Gross and some of the plaintiffs under 

this bill as well. 

103 

So it is a further illustration of the fact that this bill in fact ensures that plaintiffs and the public have access to the full range 

of meaningful remedies once discrimination is proven. 

Mr. NADLER. Thank you. 

I now recognize the gentleman from Georgia for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mr. Dreiband, is it not a fact that the Title VII mixed-motive 

precedent, that that precedent did not apply to ADEA claims? That 

was not the reason why the U.S. Supreme Court granted certiorari. 

Is that true? 

Mr. DREIBAND. Yes. The Supreme Court—— 

Mr. JOHNSON. Not the—you say yes? 

Mr. DREIBAND. Well—— 

Mr. JOHNSON. I just need a yes or no answer to that question. 

Mr. DREIBAND. So is the question about whether the Title VII, 

if that applies to the age discrimination laws? 

Mr. JOHNSON. Yes. In other words the U.S. Supreme Court did 

not grant cert on that issue in the Gross case, is that correct? 

Mr. DREIBAND. If I understand the question, the answer is yes. 

Mr. JOHNSON. Okay. And in fact the Supreme Court granted cert 

to settle a circuit split on the issue of whether or not plaintiffs 

must present direct evidence in an ADEA case in order to receive 

a mixed-motive jury instruction. Is that correct? 

Mr. DREIBAND. Yes. 

Mr. JOHNSON. Then the U.S. Supreme Court without having the 

parties either brief the issue that was ultimately decided, which 

was that this mixed-motive framework does not apply to ADEA 

cases. Nobody briefed that issue before the Court, correct? 

Mr. DREIBAND. I believe that to be correct, although I have not 

personally reviewed all the briefs. But I believe that is correct. 

Mr. JOHNSON. Okay. Now, that to me, to take on a case for one 

reason and then to decide it based on another reason, that it is not 

what I would call properly before the Court, constitutes a clear case 

of judicial activism. Would you agree? 

Mr. DREIBAND. It certainly is unusual to do that. That I would 

agree. You know, whether you would call it judicial activism, I will 

leave that to others. It is unusual. 

Mr. JOHNSON. Yes. 

Ms. Norton, would you agree with that? 

Ms. NORTON. I agree it is ill-advised to decide an issue that has 

not been adequately briefed by all the parties in the case. 

Mr. JOHNSON. Do you think there is legislation could perhaps be 

imposed that would prevent the U.S. Supreme Court from engaging 

in this kind of practice which seems to be becoming a trend? 

Ms. NORTON. I will have to think about that. I know for sure that 

you can enact legislation that would solve the problem that the Supreme Court created in Gross with this bill. 

Mr. JOHNSON. Well, it goes a little beyond my question. Let me 

ask you, Mr. Dreiband, do you think that the legislative branch has 

the authority to prevent scenarios, procedural scenarios from occurring such as the one that we are speaking of that occurred in the 

Gross litigation? 

Mr. DREIBAND. I don’t—I think like Professor Norton, I am not 

sure. I don’t know whether Congress has the authority to do that 

104 

or not. It is possible. I just haven’t thought about that or looked 

at that question. 

Mr. JOHNSON. Yes. It seems rather disturbing to me that we 

could get a clear case of judicial activism which can go unrestrained, that we can ignore judicial and legislative precedent and 

legislative intent via unchecked judicial activism, which I would 

also say constitutes legislating from the bench. 

What do you have to say about that, Ms. Norton? Legislating 

from the bench, is this a clear case of that? 

Mr. DREIBAND. Well, it was the question directed at me or? 

Mr. JOHNSON. Well, yes, Ms. Norton. 

Mr. DREIBAND. Oh. 

Ms. NORTON. So I am hesitating because I am not sure what legislating from the bench means in this context. I agree that this—— 

Mr. JOHNSON. Well, it means overturning legislative intent in a 

case where that issue has not even been set forth by the parties 

to be decided by the Court. 

Ms. NORTON. Well, I certainly do wish very much that the Supreme Court had answered the question on which it granted cert. 

I wish it had answered the question that had divided the lower 

courts as to whether or not a plaintiff can get a mixed-motive instruction in an ADEA case with circumstantial evidence. 

If the Court had answered that question we wouldn’t be here 

today, and I am actually pretty confident Mr. Gross would still 

have his jury verdict. So I certainly wish that they had answered 

the question that they granted certiorari on. 

Mr. JOHNSON. Thank you. You are very diplomatic, Ms. Norton. 

Mr. Dreiband, if you would answer the question I would appreciate it. 

Mr. DREIBAND. Well, certainly I think there are times when the 

Supreme Court engaged in what you have described as legislating 

from the bench. This particular case is not unique in that respect. 

Mr. JOHNSON. And that is kind of troubling to me. Is it to you? 

Mr. DREIBAND. Well, it certainly is, you know, I would agree that 

it is troubling when the Supreme Court engages in the type of decision making that is—after the Congress of the United States. I certainly agree with that. 

Mr. JOHNSON. And you are disagreeing that the Congress of the 

United States should even deal with this particular issue to clarify 

it and to etch it into stone by way of legislation? 

Mr. DREIBAND. Well, that is not—no. That is not—I don’t think 

the bill is going to change a lot if it is enacted—— 

Mr. JOHNSON. Well, it should—— 

Mr. DREIBAND [continuing]. With the exception of the uncertainty 

that it will create because it doesn’t identify the laws it enacts. But 

in terms of what happens in actual cases, I think the Title VII 

mixed-motive framework is instructive, which is while there are occasional cases they are very rare. 

And what I would encourage the Committee to do is what you 

could easily do is go ask the Equal Employment Opportunity Commission how many mixed-motive cases the EEOC has brought since 

1991. And what you would find is it is—— 

Mr. JOHNSON. Well, it would certainly—— 

Mr. DREIBAND [continuing]. Almost none. 

105 

Mr. JOHNSON [continuing]. Mr. Gross and his lawyers brought 

one and actually prevailed. 

Mr. DREIBAND. Well, they—— 

Mr. JOHNSON. As other plaintiffs have done under the then current state of the law—— 

Mr. DREIBAND. If—— 

Mr. JOHNSON [continuing]. If it was changed by judicial activism, 

if you will. 

Mr. DREIBAND. Well, but that ignores what happened in the 

United States Court of Appeals, though. I mean, under the existing 

standard he lost in a unanimous decision before the Court of Appeals. 

That is my point. I mean, but as the bill is written, Congress can 

enact it, I mean, but what you will find in enacting it is that very 

few plaintiffs will pursue it. 

And the best example of that or the best evidence of that is that 

what we have seen from the Equal Employment Opportunity Commission in nearly 20 years since Title VII codified the mixed-motive 

standard, that that agency, which has brought thousands of cases, 

has filed very few mixed-motive cases, very few. 

Mr. JOHNSON. Yes. 

Mr. NADLER. Just on your observation that Mr. Gross lost in the 

Court of Appeals. He lost on the question of the direct versus the 

circumstantial evidence, but had the Court of Appeals followed the 

Title VII Price Waterhouse decision, I am sorry. 

Had the Court of Appeals followed the Desert Palace decision he 

would have won on that point, and this bill would clarify that the 

courts have to apply that standard from Title VII also. 

So had this bill been in—so had the court followed the Desert 

Palace case he would have won in the Court of Appeals. Had this 

bill been in effect he would have won in the Court of Appeals, correct, because this bill clarifies that the direct and circumstantial 

evidence can be used elsewhere as it is in Title VII? 

Ms. NORTON. I am sorry. Is that directed—— 

Mr. NADLER. I was asking Mr. Dreiband. I mean—— 

Mr. DREIBAND. I am sorry. Oh, I thought it was to Professor Norton. 

Mr. NADLER. No, I was asking you. I mean, you said that this 

bill would not have affected Mr. Gross’ situation because he lost in 

the Court of Appeals. 

The point is had the Court of Appeals followed the Desert Palace 

decision or had this bill been in effect, both of which, that is the 

Desert Palace decision and this bill, say that you apply the direct 

answer—you can use either direct or circumstantial evidence in 

other laws as you can in Title VII, he would have won the Court 

of Appeals. 

Mr. DREIBAND. Well, certainly—look, I agree the problem was 

the Price Waterhouse decision itself and this establishment of this 

direct evidence standard. So to that extent I encourage the Congress to act. That I agree with. 

Mr. NADLER. So you agree with that part of the bill. 

Mr. DREIBAND. Yes. The problem though is that very few cases 

will be brought under the mixed-motive standard as a result. I 

106 

mean, Mr. Gross is here. I would ask him if he prevails would he 

want to pursue this—— 

Mr. NADLER. Yes. Well, if that is the case what is wrong with 

allowing it? 

Mr. DREIBAND. What is that? 

Mr. NADLER. If very few cases will be brought under the mixedmotive provision, what is the harm of allowing it as the bill would 

do? 

Mr. DREIBAND. Oh, the only harm in that will happen if you 

enact the bill in my judgment is the fact that you don’t define 

which statues the Congress—— 

Mr. NADLER. All right. Then let me ask you my last question—— 

Mr. DREIBAND. Otherwise I agree. There is no harm. 

Mr. NADLER [continuing]. And with Mr. Johnson’s continued indulgence, let me ask you my last question which I was going to ask 

certainly. 

Mr. JOHNSON. Certainly, Mr. Chairman. 

Mr. NADLER. Thank you. You expressed, sir, concern that the legislation is not sufficiently specific with respect to the laws it 

reaches. You have said that several times. It is a valid point, but 

we are in a bit of a bind here. 

While Gross itself was an ADEA case, the Court did invite the 

lower courts to expand the ruling beyond the ADEA and placed no 

limit on the laws to be reached. As a result, we have seen decisions 

in a wide variety of contexts ranging from jury service to First 

Amendment to disability discrimination. 

Do you have any suggestions for how we might clarify in Title 

VII’s causation standard should apply broadly? 

Mr. DREIBAND. Is this question directed at me? 

Mr. NADLER. Yes. 

Mr. DREIBAND. Okay. Yes. What I think is that the Congress 

could simply list the statutes that it intends to enact in the same 

way that the Congress did last year in the Lilly Ledbetter—— 

Mr. NADLER. The problem with that—excuse me—but the problem with that, I mean, that is an obvious thing to do, but the problem with that is that in Gross the Court invited lower courts to expand the ruling wherever they want to expand it basically. 

It placed no limit on the laws to be reached. So if we name 10 

laws and if we say this is now to apply, the danger is that the 

courts will expand it to an 11th or 12th or 15th that we didn’t 

think of. How do we deal with that problem? That is my real question. 

Mr. DREIBAND. Yes, that is a legitimate concern. I think what I 

would say to the Congress, though, is who do you want making 

that decision? Do you want the Supreme Court that you don’t like 

because of the Gross decision, or can Congress itself make that decision? 

And that is the problem that I see here without identifying the 

laws is you are essentially condemning victims to spending money 

fighting over whether the bill applies to the law that they are seeking relief under or not. And I don’t see that doing any good for anyone. 

107 

Mr. NADLER. Well, what about a clause that says you shall apply 

broadly unless Congress specifically says otherwise? How would 

you feel about that? 

Mr. DREIBAND. It would say what, that it—— 

Mr. NADLER. There should be—the Gross standard, the Gross 

standard—the provision that we are writing into the bill shall be 

applied to all laws except where Congress specifically says otherwise, except where the statute by its terms specifically says no. 

Mr. DREIBAND. So it would apply to all laws in the United States 

Code unless the law says otherwise? Is that it? 

Mr. NADLER. All laws where this is applicable, in other words, 

where the question is causation and so forth. Or in other words all 

laws where the question is causation of discrimination, you have 

the ‘‘but for’’ standard, et cetera. Wherever that is the question this 

shall apply unless Congress specifically says to the contrary. 

Mr. DREIBAND. Okay. Well, I would have to give that some 

thought. The question I would have, though, is do you mean as I 

understand, as the Title VII standard currently exists that it would 

be an alternative. 

In other words you could assert a claim without mixed-motive 

and pursue the one framework which currently exists under Title 

VII or alternatively the mixed-motive. And so this would be an alternative under all the other laws or? 

Mr. NADLER. Okay. 

Mr. DREIBAND. But I would have to think about it and—— 

Mr. NADLER. All right. You are entitled to think about it. If you 

want to submit an opinion in writing after the Committee, after the 

hearing, we would be happy to review it. 

I thank you, and I yield back to the gentleman from Georgia. 

And I thank him for his indulgence. 

Mr. JOHNSON. And I yield the balance of my time, and thank 

you, Mr. Chairman. 

Mr. NADLER. Ah, okay. I think that is it. Well, thank you all. 

Without objection all Members will have 5 legislative days to submit to the Chair additional written questions for the witnesses 

which we will forward. And ask the witnesses to respond as 

promptly as they can so that their answers can be made part of the 

record. 

Without objection all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. And 

with that I want to thank the witnesses and the Members and this 

hearing is adjourned. 

[Whereupon, at 11:49 a.m., the Subcommittee was adjourned.] 

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