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S. HRG. 111–1122 

ENSURING FAIRNESS FOR OLDER WORKERS 

HEARING 

OF THE

COMMITTEE ON HEALTH, EDUCATION, 

LABOR, AND PENSIONS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

ON

EXAMINING S. 1756, TO AMEND THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967 TO CLARIFY THE APPROPRIATE STANDARD OF 

PROOF 

MAY 6, 2010 

Printed for the use of the Committee on Health, Education, Labor, and Pensions 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys/ 
COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

TOM HARKIN, Iowa, Chairman 

CHRISTOPHER J. DODD, Connecticut 

BARBARA A. MIKULSKI, Maryland 

JEFF BINGAMAN, New Mexico 

PATTY MURRAY, Washington 

JACK REED, Rhode Island 

BERNARD SANDERS (I), Vermont 

SHERROD BROWN, Ohio 

ROBERT P. CASEY, JR., Pennsylvania 

KAY R. HAGAN, North Carolina 

JEFF MERKLEY, Oregon 

AL FRANKEN, Minnesota 

MICHAEL F. BENNET, Colorado 

MICHAEL B. ENZI, Wyoming 

JUDD GREGG, New Hampshire 

LAMAR ALEXANDER, Tennessee 

RICHARD BURR, North Carolina 

JOHNNY ISAKSON, Georgia 

JOHN MCCAIN, Arizona 

ORRIN G. HATCH, Utah 

LISA MURKOWSKI, Alaska 

TOM COBURN, M.D., Oklahoma 

PAT ROBERTS, Kansas 

DANIEL SMITH, Staff Director 

FRANK MACCHIAROLA, Republican Staff Director and Chief Counsel 

(II) 
C O N T E N T S 

STATEMENTS 

THURSDAY, MAY 6, 2010 

Page 

Harkin, Hon. Tom, Chairman, Committee on Health, Education, Labor, and 

Pensions, opening statement ............................................................................... 1 

Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming, opening 

statement .............................................................................................................. 2 

Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont, statement ..... 4 

Berrien, Jacqueline, Chair, Equal Employment Opportunity Commission, 

Washington, DC ................................................................................................... 5 

Prepared statement .......................................................................................... 7 

Casey, Hon. Robert P., a U.S. Senator from the State of Pennsylvania ............. 15 

Hagan, Hon. Kay R., a U.S. Senator from the State of North Carolina ............. 18 

Gross, Jack, CPCU, CLU, ChFC, Des Moines, IA ................................................ 21 

Prepared statement .......................................................................................... 23 

Norton, Helen, Professor, University of Colorado Law School, Boulder, CO ...... 24 

Prepared statement .......................................................................................... 26 

Aldrich, Gail, Board of Directors, AARP, Genoa, NV ........................................... 34 

Prepared statement .......................................................................................... 35 

Dreiband, Eric S., Partner, Jones Day, Washington, DC ..................................... 39 

Prepared statement .......................................................................................... 40 

ADDITIONAL MATERIAL 

Statements, articles, publications, letters, etc.: 

Response to questions of Senator Harkin by: 

Jacqueline Berrien .................................................................................... 65 

Helen Norton ............................................................................................. 67 

Response to questions of Senator Enzi by: 

Helen Norton ............................................................................................. 75 

Eric S. Dreiband ........................................................................................ 76 

(III) 

(1) 

ENSURING FAIRNESS FOR OLDER WORKERS 

THURSDAY, MAY 6, 2010 

U.S. SENATE, 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, 

Washington, D.C. 

The committee met, pursuant to notice, at 10:19 a.m. in Room 

SD–430, Dirksen Senate Office Building, Hon. Tom Harkin, Chairman of the Committee, presiding. 

Present: Senators Harkin [presiding], Enzi, Franken, Casey and 

Hagan. 

OPENING STATEMENT OF SENATOR HARKIN

The CHAIRMAN. The Senate Committee on Health, Education, 

Labor and Pensions will please come to order. 

I apologize for being late. As you know, we had a vote on the 

floor that started at 10 o’clock. 

We have convened this hearing to examine the issue of employment discrimination against older workers and the need, in the 

face of a very misguided and harmful Supreme Court decision, to 

enact legislation to ensure that older workers are treated with the 

fairness they deserve. 

We will hear today from my fellow Iowan, Jack Gross. Jack devoted the prime of his life, over a quarter of a century of loyal service, to one company. And how did the company reward him for his 

dedication and hard work? It brazenly demoted him and other employees over the age of 50, and gave his job to a younger employee, 

who was significantly less qualified. 

Over 40 years ago, expressly to prevent this kind of discrimination, Congress passed the Age Discrimination in Employment Act. 

Very simply, that act made it unlawful to discriminate on the basis 

of age. 

When Mr. Gross sought to enforce his rights under this law, a 

jury ruled in his favor and concluded that age had been a motivating factor in his demotion. 

Yet, when his case was appealed to the Supreme Court, a slim 

activist majority of five justices overturned the jury verdict and decided to rewrite the law. 

For decades, the law was clear: If an employee showed that age 

was one factor in an employment decision, the burden was on the 

employer to show it had acted for a legitimate reason other than 

age. 
2 

The court, however, addressing a question it did not even grant 

certiorari on, tore up this decades-old standard and imposed a new 

standard that the Supreme Court itself had rejected in a prior case 

and which Congress had rejected when we enacted the Civil Rights 

Act of 1991. 

The timing of the court’s decision is particularly troubling. Older 

workers have been particularly hard hit by the tough economy. According to the Department of Labor, over 2-million workers over 

age 55 are unemployed, an all-time high since they began matching 

age and unemployment in 1948. The average duration of unemployment for older job seekers is twice as long as for other unemployed 

workers. 

According to EEOC statistics—and I think we’ll hear more about 

that from our witness—more than 45,000 charges of age discrimination were filed in 2008 and 2009. That’s three times more than 

just a decade ago. 

So for decades, we had a consistent standard. Unfortunately, because of the court’s decision, there’s now a far higher standard of 

proof for age than for other forms of discrimination. 

The legislation I have introduced—S. 1756, Protecting Older 

Workers Against Discrimination Act—would reverse the court’s 

deeply-flawed decision and restore the law to what it was for decades. 

The legislation would make certain that, once again, Mr. Gross, 

and all older workers in this country, enjoy the full protections of 

the law. 

And, with that, I’ll turn to Senator Enzi for an opening statement. 

OPENING STATEMENT OF SENATOR ENZI

Senator ENZI. Thank you, Chairman Harkin. I appreciate you 

calling the hearing for today. 

As the baby-boom generation phases into retirement, more and 

more of us are choosing to continue working past traditional retirement ages. In fact, the number of workers aged 55 and over is expected to increase by 47 percent over the next 7 years. Luckily, 

America’s employers will need us as well, because labor economists 

forecast a huge worker shortage in coming years. 

I was pleased Congress addressed the needs of older workers in 

the Pension Protection Act enacted in 2006. And, with the help of 

my colleagues on this committee, I look forward to improving the 

Workforce Investment Act, through reauthorization, to better meet 

the job-training needs of older workers this year. 

Today, the committee looks at the technically-complex issue of 

burden of proof in so-called mixed-motive, disparate-impact cases 

rising under the Age Discrimination in Employment Act, ADEA, in 

a case entitled Gross v. FBL Financial. 

The U.S. Supreme Court recently held that, in such cases, the 

burden remains with the plaintiff throughout the case. In effect, 

this means that even where there is some evidence that age may 

have been a factor in an adverse employment decision, it still remains the plaintiff’s burden to demonstrate that his or her age was 

the ‘‘but-for’’ reason for the adverse action. This allocation of bur-
3 

den is different than the one applicable under other Federal employment discrimination statutes, most notably title VII. 

In the Gross decision, however, the court found such differences 

to be grounded squarely in the specific statutory language used by 

Congress in the two laws and in the fact that, in 1991, Congress 

amended the title VII and specifically adopted a burden-shifting 

procedure for cases under that discrimination statute, but did not 

extend the same procedure to the ADEA. 

In trying to determine the best course of any future action, I look 

forward to reviewing the testimony of the experts who are here 

today as well as reviewing their answers to the questions that are 

asked of them. 

I won’t be able to stay for the entire hearing. I do have questions 

prepared and know that those answers will make a real difference 

in the legislation. 

However, before we hear from them, I would like to make a few 

brief comments. 

This is not the first time, nor will it be the last time, that there 

is legislation in Congress aimed directly at a decision of the Supreme Court. I don’t have any problem with this. Our system of 

checks and balances, quite correctly, always gives Congress this 

prerogative. 

What disturbs me lately, however, is the rhetoric that attaches 

itself to such efforts. That rhetoric manifests itself in two ways. 

First, there’s a direct attack on the competency of the court itself. 

Those who do not like a decision—most notably for transparently 

political reasons—immediately fire off the claim that the court got 

it wrong. 

What that really means, of course, is that the speaker doesn’t 

agree with the court, not that the court was objectively wrong. 

There’s obviously nothing wrong with disagreeing with the court 

and seeking to change the law. That’s an honest starting point for 

a fair debate on legal or public policy. To start by employing the 

rhetoric that the court is wrong, needlessly and unjustly, undermines the court’s integrity and the public’s confidence in the institution. 

We should have robust debate about our legal and public policies, 

but we shouldn’t predicate that debate on the claim that the Supreme Court got it wrong. That’s not only unjustified, it’s ultimately harmful. 

The second disturbing rhetoric overreach that now accompanies 

almost every public-policy disagreement is the reckless maligning 

of the opposition. This is particularly true when it comes to issues 

arising under our discrimination statutes. 

For example, those who earlier this Congress had legitimate concerns about largely eliminating the statute of limitations in paydiscrimination cases were promptly labeled as pro-discrimination 

and anti-feminist and worse. These claims are, of course, baseless. 

Yet, their effect is often as effective as it is transparent. 

The sad truth is that, in our sound-bite culture and our 24-hour 

news cycle, it’s always more effective to demonize the other side 

rather than to engage in constructive debate. That’s like the irony 

of calling a press conference to complain that the other side is politicizing an issue. 
4 

Although I sometimes hold different views than those of the current Administration, I believe the president was correct earlier this 

week when he noted that the overblown rhetoric of the public debate closes the door to compromise and undermines democratic deliberation. I hope that, going forward, the Administration and the 

Congress practice what they are now preaching. 

I look forward to hearing today’s witnesses and appreciate the 

time and testimony. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Enzi. 

I have a statement I would like to insert in the record from the 

Chairman of the Judiciary Committee, Senator Leahy, after our 

opening statements or any other statements that members of the 

committee want to insert for the record. 

[The prepared statement of Senator Leahy follows:] 

PREPARED STATEMENT OF SENATOR LEAHY

I am pleased to join Senator Harkin in supporting the ‘‘Protecting Older Workers Against Discrimination Act,’’ and I thank 

him for scheduling this hearing today so that we can move this important civil rights legislation. Our legislation is necessitated by 

the Supreme Court’s controversial decision in Gross v. FBL Financial, where five justices decided to change the standard that American workers must prove in age discrimination cases. 

In Gross, a divided Court thwarted congressional intent, overturned well-established precedent, and delivered a major blow to 

the ability of older workers to fight age discrimination, just as it 

eliminated Lilly Ledbetter’s claim to equal pay, until Congress 

stepped in to set the law right. After spending 32 years working 

for an Iowa subsidiary of a major financial company, Jack Gross 

was demoted, and his job duties were reassigned to a younger 

worker who was significantly less qualified. In his lawsuit under 

the Age Discrimination Act, a jury concluded that age had been a 

motivating factor in his demotion and awarded him nearly $50,000 

in lost compensation. 

However, a narrow majority of Court unabashedly rewrote civil 

rights laws, making it harder for workers facing age discrimination 

to enforce their rights. The Court ruled that it is no longer enough 

for a victim of discrimination to prove that age was a motivating 

factor in an adverse employment decision. Now, an employee must 

prove that it was the decisive factor. This means that victims of age 

discrimination face a higher burden than those alleging race, sex, 

national origin or religious discrimination. I am concerned that 

those protections will also be weakened by the Supreme Court as 

a result of their decision in Mr. Gross’ case. 

Mr. Gross appeared before the Senate Judiciary Committee last 

year. His compelling testimony reaffirmed the need for this important legislation. In these tough economic times, millions of Americans are concerned with the security of their jobs. We cannot let 

the Supreme Court’s wrong-headed decision stand in the way of the 

financial security of American families. I urge the committee to 

move without delay to protect our most experienced workers. 

The CHAIRMAN. So our first witness. We will hear from Jacqueline Berrien, Chairman of the EEOC. 
5 

Prior to joining the EEOC, Ms. Berrien served as the Associate 

Director—Counsel for the NAACP Legal Defense and Education 

Fund, and before that as a program officer in the Ford Foundation’s Peace and Social Justice Program. 

Ms. Berrien, your statement will be made a part of the record in 

its entirety. And if I could ask you to sum it up in five minutes 

or so, I would certainly appreciate it, but welcome back again. 

STATEMENT OF JACQUELINE A. BERRIEN, CHAIR, EQUAL 

EMPLOYMENT OPPORTUNITY COMMISSION, WASHINGTON, DC 

Ms. BERRIEN. Thank you so much. Thank you, Mr. Chairman, 

Ranking Member Enzi and distinguished members of the committee. 

I appreciate the opportunity to appear before you at this important hearing to discuss age discrimination and the Protecting Older 

Workers Against Discrimination Act, which would supercede the 

Supreme Court’s 2009 decision in Gross v. FBL Financial Services. 

This decision imposed new legal burdens on claimants bringing 

claims under the Age Discrimination in Employment Act of 1967. 

And the EEOC is here today to provide more details about some 

of the concerns that have emerged since the decision. 

At the heart of every Federal anti-discrimination statute the 

EEOC enforces is a congressional recognition that decisions in the 

workplace should not be driven by stereotypes or made on the basis 

of certain protected characteristics, including age. 

As Congress noted more than 40 years ago when the ADA was 

enacted, the purpose of the act is to promote employment of older 

persons based on their ability, rather than age, and prohibit arbitrary age discrimination in employment. Nevertheless, workers 

who are subjected to age discrimination today sometimes encounter 

undue resistance as they pursue their claims. 

For example, some courts or judicial opinions have dismissed 

age-based comments as merely stray remarks and consider them irrelevant to the question of whether age discrimination occurred. 

These remarks have included—and I am quoting them directly— 

calling a plaintiff the old guy in the department, stating that an 

age-discrimination victim looked old and tired, repeatedly referring 

to a plaintiff as an old man, saying that the company’s goal was 

to attract younger talent and stating that some workers were just 

too old to get the job done and that the company wanted to go to 

a young, aggressive group of people. 

It is difficult to reconcile judicial disregard of these kinds of 

statements with Congress’ express purpose in passing the ADEA, 

and this is the backdrop against which the Gross decision was announced. 

I would also like to refer you to a compelling example from the 

EEOC’s enforcement efforts. In the case EEOC v. Dawes County, 

the commission brought suit on behalf of Mr. Russell Hack, who, 

after working for the Dawes County Road Department for more 

than 30 years, was forced to retire at the age of 71. 

There was no evidence he was having any performance problems. 

He intended to continue to work for several more years, but the 

county told him that it was creating a stress test to determine 
6 

whether workers over the age of 70 could meet the physical requirements of their jobs. 

The county never administered the test to Mr. Hack, and, instead, Mr. Hack was forced to leave his job, based on their assumption that he would not be able to pass the test. 

As Mr. Gross will testify today himself, the U.S. Supreme Court 

decision in his case has created new hurdles which age-discrimination victims must now overcome in order to obtain relief. 

Specifically, the court held that age-discrimination plaintiffs 

must now prove that the defendant’s employer would not have 

taken a challenged-employment action, but for his or her age. 

As a result, unlike plaintiffs pursuing claims under Title VII of 

the Civil Rights Act of 1964, age-discrimination plaintiffs are no 

longer allowed to show that discrimination was because of age by 

showing that age was one of the factors that motivated an adverse 

employment decision. 

This creates a dichotomy between the ADEA and title VII that 

is confusing, unfortunate and unnecessary. Before Gross was decided, every court presented with this question concluded that agediscrimination plaintiffs should be able to proceed under the same 

standards as allowed in title VII cases; that is, under mixed-motive 

theories. 

Nothing in the legislative history or the statutory language of the 

age-discrimination act suggests that this Congress intended to subject victims of age discrimination to a more stringent standard 

than victims of the types of discrimination prohibited by title VII. 

The case is causing concrete hardships for workers. Although it 

appears to be an abstract set of principles, the hardships are real. 

And it’s expressed in decisions in the little under a year since the 

Gross case was decided where plaintiffs have been required to 

prove that—not only that age was the ‘‘but-for’’ cause of the employment action, but that it was the only reason for the employment action. So, in a short step, the standard has been elevated 

even further by some courts. 

It has also been the case, in at least one court, that the Gross 

decision was applied to limit relief for a plaintiff in an Americans 

With Disabilities Act case, although there is no evidence, again, 

that this Congress intended for a more stringent standard to apply 

to ADEA plaintiffs. 

As the Nation’s chief enforcer of Federal law prohibiting employment discrimination, the EEOC is especially concerned by these developments. Continued erosion of employment rights contravenes 

congressional intent, and we believe it is important for this Congress to act to correct it. 

Legislation like the Protecting Older Workers Against Discrimination Act would ensure that age-discrimination plaintiffs receive 

the same core protections and are subject to the same basic legal 

standards as title VII plaintiffs. Nothing more. Nothing less. 

We believe this would effectuate the congressional intent evident 

in the original passage of the Age Discrimination in Employment 

Act, namely, that discrimination on the basis of age—like discrimination on the basis of race, color, national origin, sex, religion—has 

no place in the Nation’s workplaces. 
7 

1 129 S. Ct. 2343 (2009). 

2 29 U.S.C. § 621(b). 3 In fiscal year 2008, the EEOC received 24,582 charges containing ADEA allegations (an increase from the 19,103 ADEA charges received in fiscal year 2007). See http://www.eeoc.gov/ 

eeoc/statistics/enforcement/charges.cfm. 4 In fiscal year 2009, the EEOC received 22,778 ADEA charges. See id. 5See Daniel Kohrman & Mark Hayes, Employers Who Cry ‘‘RIF’’ and the Courts That Believe 

Them, 23 HOFSTRA LAB. & EMP. L.J. 153, 160 (2005) (studies show that bias against older 

people is more deeply embedded than other forms of bias including race, gender, religion, and 

sexual orientation). 6See Remarks of Professor Michael Campion, EEOC Meeting of July 15, 2009: Age Discrimination in the 21st Century—Barriers to the Employment of Older Workers, http:// 

www.eeoc.gov/eeoc/meetings/7-15-09/campion.cfm. 7See id. 

The commission stands ready and eager to assist in any way 

with this legislation or future related legislation. 

Thank you again for inviting me, and I look forward to your 

questions. 

[The prepared statement of Ms. Berrien follows:] 

PREPARED STATEMENT OF JACQUELINE A. BERRIEN

INTRODUCTION

Mr. Chairman, and distinguished members of the committee, thank you for the 

opportunity to appear before you at this important hearing to discuss the ‘‘Protecting Older Workers Against Discrimination Act’’ (S. 1756), which would supersede 

the Supreme Court’s 2009 decision in Gross v. FBL Financial Services.1

The Supreme Court in Gross held that ‘‘mixed-motives’’ claims are not cognizable 

under the Age Discrimination in Employment Act of 1967 (ADEA), and that older 

workers cannot prevail on a claim of age discrimination unless they prove that age 

was the ‘‘but for’’ cause of the employment practice at issue. In practice, this means 

that an ADEA plaintiff will no longer have a valid claim, and therefore will be entitled to no relief whatsoever—even if a defendant admits that it took an adverse employment action in part because of the plaintiff’s age—unless the plaintiff can show 

that the defendant would not have made the same decision anyway (i.e., if the employer had not actually taken the victim’s age into account). 

The Gross decision was a startling departure from decades of settled precedent 

developed in Federal district and intermediate appellate courts. It erected a new, 

much higher (and what will often be an insurmountable) legal hurdle for victims 

of age-based employment decisions. Indeed, recent case law reveals that Gross already is constricting the ability of older workers to vindicate their rights under the 

ADEA, as well as other anti-discrimination statutes. 

The U.S. Equal Employment Opportunity Commission (EEOC or Commission) believes that legislation like S. 1756 is needed to restore and bolster the basic protections that applied to ADEA claims pre-Gross. This would more fully effectuate 

Congress’s original intent in passing the ADEA—to ‘‘promote employment of older 

persons based on their ability rather than age’’ and ‘‘to prohibit arbitrary age discrimination in employment.’’ 2

THE SURGE IN ADEA CHARGES AND THE STAYING POWER OF AGE-BASED STEREOTYPES

The Gross ruling could not have come at a worse time. More than 40 years after 

Congress passed the ADEA, age discrimination may be at historic highs. EEOC receipts of ADEA charges certainly are at or near record-levels. In fiscal year 2008, 

age discrimination charges jumped nearly 30 percent over the previous year, and 

represented nearly 26 percent of all charges the EEOC received that year.3 In 2009, 

age-based charges were at their second-highest level ever (exceeded only by the previous year), and constituted over 24 percent of all receipts.4

It is difficult to pinpoint the causes of this surge in age discrimination charges. 

It is clear, however, that negative stereotypes about older workers remain deeply 

entrenched.5 These stereotypes include unwarranted assumptions that older workers are more costly, harder to train, less adaptable, less motivated, less flexible, 

more resistant to change, and less energetic than younger employees.6 Employers 

also may be reluctant to invest in training and other developmental opportunities 

for older workers based on the perception that they have less time remaining in 

their careers.7
8 

8See id. (while older workers face stereotypes that job performance declines with age, extensive research actually shows that it improves with age); see also Towers Perrin, The Business 

Case for Workers Age 50+, Planning for Tomorrow’s Talent Needs in Today’s Competitive Envi- ronment (AARP), at 33 (Dec. 2005) (it is a myth that performance suffers over time, and ‘‘mounting evidence—both anecdotal and statistical—demonstrates that older workers bring experience, 

dedication, focus, stability and enhanced knowledge to their work, in many cases to a greater 

degree than younger workers’’); William McNaught & Michael C. Barth, Are Older Workers ‘‘Good Buys’’? A Case Study of Days Inns of America, SLOAN MGMT. REV. 53–63 (Spring 1992) 

(net cost of employing older reservations agents was nearly identical to the net cost of employing 

younger workers; with regard to flexibility, older workers were just as quick as younger workers 

to adapt to modern computer technology, and training times for the two groups were virtually 

identical). 9See Remarks of Professor Campion, supra note 6. 10 Id. 11 Id. 12 Id. 

While extensive research has shown that these negative age-based stereotypes 

have little basis in fact, they undoubtedly influence far too many employment decisions.8 For instance, as a result of these stereotypes, older persons with the same 

or similar qualifications typically receive lower ratings in interviews and performance appraisals than younger counterparts (and thus are apt to have more trouble 

finding or keeping a job or securing a promotion).9 Older workers also typically are 

rated as having less potential for development than younger workers, and thus are 

given fewer training and development opportunities.10

Further, it appears that age-based stereotypes operate to disadvantage older 

workers in corporate ‘‘downsizing’’ situations, in particular. Because the main goal 

of such downsizing is usually to cut costs, age-based stereotypes that older workers 

are more costly, harder to train, less flexible, or less competent may become much 

more prominent in the minds of the decisionmakers.11 To make matters worse, once 

older workers are laid off, they often are again vulnerable to age-based stereotyping 

as they attempt to find new jobs. It seems older workers who have been laid off are 

less likely to obtain reemployment than younger workers, take longer to find new 

jobs than younger workers, and generally fail to obtain jobs paying the same wages 

as their previous positions.12

The EEOC has brought numerous cases under the ADEA involving the manifestation of just these sorts of ageist stereotypes. These include: • EEOC v. Lockheed Martin Global Telecommunications, Inc. The EEOC alleged 

that the employer violated the ADEA by firing eight employees as part of a reduction-in-force. To determine who would be laid off, employees were placed in comparison groups, and with only one exception, the oldest employee within the comparison 

group was the one laid off. The RIF rated employees using subjective criteria that 

included the ‘‘ability to get along with others.’’ Again, with only one exception, the 

ratings for ‘‘ability to get along with others’’ corresponded to employee ages, with 

the youngest employees being ranked highest in this area and the oldest employees 

the lowest. This case was settled for $773,000. • EEOC v. Mike Albert Leasing, Inc. The charging party, aged 60, was the oldest 

area manager for a company that leased cars, trucks, and vans throughout several 

States. There was evidence that about a year before the charging party was fired, 

the company president commented at a sales meeting that the sales force was ‘‘old 

and aging’’ and that the company needed some fresh young blood. Shortly before firing the charging party, the company hired a 38-year-old male to take over the 

charging party’s accounts. The EEOC alleged that although the charging party’s job 

evaluations and sales numbers indicated he was outperforming the majority of his 

peers, the company fired him for his failure to meet ‘‘goals’’ that were intentionally 

unrealistic. This case was settled for $100,000. 

• EEOC v. Dawes County, Nebraska. After working for the respondent for more 

than 30 years, the charging party was fired at the age of 71 from his position with 

the county roads department, even though there was no evidence of performance 

problems. The EEOC alleged that the county decided to impose a stress test for 

workers 70 or older to determine whether they could meet the physical requirements of their job and the charging party was fired based on the assumption that 

he would not be able to pass the test. The respondent never actually implemented 

the stress test, and no one other than the charging party was fired because of the 

test. This case was settled for $50,000. 

THE UNFAVORABLE LEGAL CLIMATE FOR AGE DISCRIMINATION PLAINTIFFS

Unfortunately, older workers who are victims of such age-based decisionmaking 

now must seek to assert their ADEA rights in a legal landscape that increasingly 
9 

13Smith v. City of Jackson, 544 U.S. 228, 240 (2005). Of course, as already indicated, the 

Court’s statement seems to assume a closer correlation between age and inability than research 

suggests exists. See supra note 8. 14Luks v. Baxter Healthcare Corp., 467 F.3d 1049, 1055 (7th Cir. 2006). 15 Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 491 (7th Cir. 2007). 16 EEOC v. Republic Servs., Inc., 640 F. Supp. 2d 1267, 1286 (D. Nev. 2009). 17 Berquist v. Washington Mut. Bank, 500 F.3d 344, 351–52 (5th Cir. 2007). 18Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 304 (5th Cir. 2000). 19See Kohrman and Hayes, supra note 5, at 153 (data collected by the Administrative Office 

of the U.S. Courts for 1998–2001 shows that ADEA plaintiffs win 20.93 percent of bench trials 

while the win rate for bench trials in employment discrimination cases overall is 25.94 percent). 20 490 U.S. 228, 258 (1989). 21Desert Palace, Inc. v. Costa, 539 U.S. 90, 101–02 (2003). 22 Compare Gross v. FBL Fin. Servs., Inc., 526 F.3d 356, 360 (8th Cir. 2008) (ADEA plaintiff 

must produce direct evidence in order to obtain mixed-motives instruction), with Rachid v. Jack 

in the Box, Inc., 376 F.3d 305, 311 (5th Cir. 2004) (direct evidence not needed for mixed-motives 

instruction under ADEA). 

minimizes the significance of age discrimination. The prevailing judicial approach 

distinguishes ADEA claims from those brought under title VII of the Civil Rights 

Act of 1964, which prohibits discrimination based on race, color, sex, religion, or national origin. Notably, for example, in a statement that appears to reflect the erroneous but widespread stereotypes about older workers, the Supreme Court has said 

that a lower level of protection under the ADEA than under title VII is ‘‘consistent 

with the fact that age, unlike race or other classifications protected by title VII, not 

uncommonly has relevance to an individual’s capacity to engage in certain types of 

employment.’’ 13

This judicial antipathy to age discrimination claims also can be seen in lower 

court decisions in which courts apply crabbed interpretations of the ADEA to rule 

against plaintiffs even when plaintiffs present evidence of age-based comments by 

managers. For example, courts have dismissed as ‘‘stray remarks’’ not probative of 

age discrimination comments calling the plaintiff ‘‘he old guy in the department,’’ 14

stating that the plaintiff looked ‘‘old and tired,’’ 15 repeatedly calling the plaintiff 

‘‘old man,’’ 16 saying that the company goal was to ‘‘attract younger talent,’’ 17 and 

stating that some workers ‘‘were just too old to get the job done’’ and that the company ‘‘wanted to go to a young aggressive group of people.’’ 18

Given this relatively inhospitable legal climate, it is perhaps not surprising that 

while all discrimination plaintiffs face enormous challenges in proving their claims, 

success seems to be especially elusive for age discrimination plaintiffs.19

THE GROSS DECISION

Against this already-challenging legal backdrop, the Supreme Court’s recent ruling in Gross is particularly troubling. Gross is the latest, and in some respects the 

most problematic, in a string of judicial decisions that have weakened the ADEA 

significantly. Moreover, because lower courts have begun to extend Gross’s reasoning beyond the ADEA context, the decision threatens to undermine numerous 

other Federal anti-discrimination laws, as well. 

The Supreme Court granted certiorari in Gross to answer what appeared to be 

an arcane legal question—whether ‘‘direct evidence’’ is needed to obtain a ‘‘mixedmotives’’ jury instruction in an ADEA case. In the end, however, the Court’s ruling 

in Gross struck at the heart of the ADEA’s core anti-discrimination provision. 

In the 1989 decision in Price Waterhouse v. Hopkins, the Supreme Court had held 

that a title VII plaintiff who had shown that discrimination was a ‘‘motivating factor’’ in an employment decision could request a mixed-motives jury instruction, 

which would shift the burden of proof to the employer to show that it would have 

taken the same action in the absence of discrimination.20 The Supreme Court subsequently held that a title VII plaintiff could rely on either direct or circumstantial 

evidence to request such a mixed-motives instruction.21 While lower courts agreed 

that mixed-motives claims were cognizable under the ADEA, as well, the lower 

courts were split as to whether ADEA plaintiffs needed to present ‘‘direct evidence’’ 

to obtain a mixed-motives instruction (or whether, like title VII plaintiffs, they could 

present either direct or circumstantial evidence to justify the instruction).22

The majority in Gross ultimately decided that it was unnecessary to address this 

issue—the question on which the Court had granted certiorari—because it concluded 

that mixed-motives claims are never available under the ADEA at all. The Court 

held that in an ADEA case, the burden of proof never shifts to the employer to defend its action, and that an ADEA plaintiff must always prove that age was the ‘‘but 

for’’ factor in the adverse employment action. This issue was never briefed by the 

parties or amici, and counsel for the United States had urged the Court during oral 
10 

23Gross, 129 S. Ct. at 2353 n.2 (Stevens, J., dissenting). 24 Id. at 2355 & n.5 (collecting cases). 25 Id. (quoting 42 U.S.C. § 2000e-2(m)). 26Gross v. FBL Fin. Servs., Inc., 588 F.3d 614 (8th Cir. 2009). 27 Anderson v. Equitable Res., Inc., 2009 WL 4730230, at *14–15 (W.D. Pa. Dec. 4, 2009). 28 Kelly v. Moser, Patterson & Sheridan, L.L.P., 2009 WL 3236054 (3d Cir. Oct. 9, 2009) (unpublished). 29 Culver v. Birmingham Bd. of Educ., 646 F. Supp. 2d 1270, 1271 (N.D. Ala. 2009). 30Wardlaw v. City of Philadelphia Streets Dep’t, 2009 WL 2461890, at *7 (E.D. Pa. Aug. 11, 

2009). 31 Cf. Remarks of Cathy Ventrell-Monsees, EEOC Meeting of July 15, 2009: Age Discrimination in the 21st Century—Barriers to the Employment of Older Workers, http://www.eeoc.gov/ 

eeoc/meetings/7-15-09/ventrell-monsees.cfm (noting Gross ‘‘is extremely problematic for older 

women and older minorities who often bring claims under both the ADEA and title VII’’). 

argument not to reach the issue.23 And, as already indicated, lower courts had 

unanimously concluded that ADEA plaintiffs could indeed obtain a mixed-motives 

instruction and had only disagreed as to whether direct evidence was needed.24

NEED FOR LEGISLATION TO SUPERSEDE GROSS

While the Gross decision dealt with seemingly abstract concepts about causation 

and burdens of proof, it is having real-world implications for age discrimination litigants. Now, after Gross, ADEA plaintiffs are unable to prove age discrimination by 

showing that age was one factor (of perhaps several factors) that motivated the challenged employment practice, unless they can also prove that age was the ‘‘but for’’ 

factor for the decision. Thus, ADEA plaintiffs with cases involving ‘‘mixed motives’’ 

are subject to a more demanding standard of causation and burden of proof than 

similar title VII plaintiffs. 

When Congress enacted the Civil Rights Act of 1991, it confronted a similar issue. 

Congress responded by expressly ‘‘authorizing discrimination claims in which an improper consideration was ‘a motivating factor’ for an adverse employment decision.’’ 25

Similar to the negative impact Price Waterhouse had on victims of sex-based and 

race-based discrimination, the Supreme Court’s decision in Gross is damaging the 

ability of victims of age discrimination to vindicate their statutory rights. In the 

Gross case itself, the Eighth Circuit on remand reversed a jury verdict and nearly $47,000 in lost compensation the jury had awarded to Jack Gross.26 In addition to 

the adverse effect it had in Mr. Gross’s ADEA case, the Supreme Court’s ruling has 

begun to negatively impact other litigants. One district court affirmed summary 

judgment for the employer even though there was sufficient evidence for a jury to 

conclude that age was one of the factors that motivated the plaintiff’s termination. 

Relying on Gross, the court noted that ‘‘just because age may have played a role 

in the decision does not mean that it was a ‘but for’ cause of his termination.’’ 27

Similarly, the Third Circuit has concluded that a plaintiff could not prevail on his 

termination claim under the ADEA despite evidence that the employer wanted to 

get rid of ‘‘older and better paid’’ employees and to retain ‘‘younger and cheaper’’ 

employees. The court stated that such evidence showed at most that age was a ‘‘secondary consideration’’ in the plaintiff’s termination, not a ‘‘but for’’ factor as required by Gross.28

In addition, some courts now have interpreted Gross as not only requiring a plaintiff to prove that age was a ‘‘but for’’ cause, but also to show that it was the sole 

cause, for the challenged employment action. For example, in one case, the plaintiff 

was forced to choose between his title VII claim and his ADEA claim. The court concluded that, under Gross, the plaintiff was required to demonstrate that age was 

‘‘the only or the but-for reason for the alleged adverse employment action,’’ and 

thus, the plaintiff could not claim that the action was based on age while simultaneously claiming that there was another unlawful motive involved.29 Similarly, another court dismissed a plaintiff’s ADEA claim because she had alleged not only age 

discrimination but also discrimination based on gender, race, and disability. The 

court interpreted the Gross decision as requiring a plaintiff to present direct evidence that age was the sole reason for the challenged action.30 This particular interpretation of Gross would appear to preclude ‘‘intersectional’’ discrimination claims 

(e.g., those alleging that discrimination occurred because of a combination of two or 

more protected traits). This doctrinal development would upend decades of settled 

law allowing for such claims, and represent an alarming restriction on longstanding 

civil rights protections. 31

Finally, the Gross decision not only impedes the ability of older workers to successfully challenge various forms of age discrimination. It has also begun to undermine the enforcement of other Federal anti-discrimination statutes. For example, 
11 

32Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 964 (7th Cir. 2010). 33See, e.g., Lorillard v. Pons, 434 U.S. 575, 584 (1978) (noting the ‘‘important similarities’’ between the two statutes, ‘‘both in their aims—the elimination of discrimination from the workplace—and in their substantive provisions’’). 34McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 35 544 U.S. at 240. 36 Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, 499 U.S. 187, 199–200 (1991). 37 128 S. Ct. 2361, 2367 (2008). 38The transcript and other materials from this meeting can be found at http://www.eeoc.gov/ 

eeoc/meetings/7-15-09/index.cfm. 

the Seventh Circuit recently determined, citing Gross, that plaintiffs alleging discrimination under the Americans with Disabilities Act (ADA) now must show that 

disability is a ‘‘but for’’ cause of a challenged employment practice.32

Clarifying legislation will thus not only protect plaintiffs who bring claims under 

the ADEA, but also plaintiffs who seek redress under other anti-discrimination laws 

which may be similarly weakened by the application of the Gross decision. 

S. 1756

S. 1756 would legislatively overturn Gross to ensure that ADEA plaintiffs receive 

the same core protections and are subject to the same basic standards of causation 

with respect to disparate treatment claims as title VII plaintiffs. This aspect of the 

legislation would simply restore the law to the state of parity that existed between 

ADEA and title VII pre-Gross. Such parity reflects the Congressional intent evident 

in the original passage of the ADEA—namely, that age discrimination should be no 

more permissible than discrimination based on race, color, sex, religion, or national 

origin.33

The bill would make clear that the ADEA may be violated any time age is a motivating factor for the complained of practice; that plaintiffs can use any evidence, direct or circumstantial, to make that showing; and that every method of proof, including the McDonnell-Douglas 34 framework, can be used to prove a violation. In 

addition, the bill would have other important effects: 

• The bill would apply to the ADA and other Federal employment discrimination 

laws, thus ensuring more uniform standards and protection across various statutes. 

• The bill would apply to prohibitions against retaliation, including the protections against retaliation contained in title VII. 

• The bill would ensure that where an employer shows that it would have taken 

the same action in the absence of discrimination, plaintiffs will be entitled to the 

same remedies in mixed-motives cases under the ADEA and other employment discrimination laws as title VII plaintiffs now may recover. 

The EEOC believes, however, that a bill like S. 1756 is just the first step that is 

needed to ensure that older workers are protected against age discrimination. As already noted, Gross reflects the general view of the Supreme Court that age discrimination claims are qualitatively different than race or sex discrimination claims, and 

that protections and legal standards under the ADEA are not the same as those in 

title VII. For example, the Supreme Court recognized in Smith v. City of Jackson 

that the disparate impact theory of liability is available to age discrimination plaintiffs, but at the same time also determined that the scope of disparate impact liability is narrower under the ADEA than under title VII.35 Similarly, while the Supreme Court has held that a policy that facially discriminates on the basis of sex 

is unlawful even if an employer has benevolent motives for the policy,36 the Court 

upheld, in Kentucky Retirement System v. EEOC, a disability retirement plan that 

was explicitly based on age, reasoning that the differences in treatment were not 

‘‘actually motivated’’ by age.37 These decisions have placed victims of age discrimination at a legal and practical disadvantage compared with victims of other forms 

of discrimination, and thus have impeded effective enforcement of the ADEA. 

THE EEOC’S RESPONSE AND ENFORCEMENT ROLE

As the Nation’s chief enforcer of protections against age-based employment discrimination, the EEOC is especially concerned by these developments. In response, 

we have sought to determine how best to use our limited resources to counteract 

(or at least contain) the damage done by the deteriorating legal landscape for victims of age discrimination. 

The recent spate of case law restricting the rights of age discrimination plaintiffs, 

coupled with the rise in age discrimination charges, prompted the EEOC to hold a 

public Commission meeting on these issues in July 2009.38 At this meeting, wit-
12 

39These proposed regulations are available at http://edocket.access.gpo.gov/2010/2010- 

3126.htm. 

nesses discussed Supreme Court decisions, including Gross, that have significantly 

undermined the protections that Congress intended to confer when it enacted the 

ADEA. Experts at the meeting urged a variety of potential enforcement and policy 

solutions to counteract these adverse rulings, such as issuing regulations to fully define the components and burdens of pleading and proof of the ‘‘reasonable factor 

other than age’’ defense to an ADEA disparate impact claim, developing policy guidance to make uniform the relevance and weight of ageist comments, and using the 

EEOC’s rulemaking authority under the ADEA to clarify the factors announced by 

the Supreme Court in Kentucky Retirement. 

The EEOC is carefully evaluating these and other ideas, and implementing them 

as appropriate. In February 2010, the Commission issued a notice of proposed rulemaking to address an employer’s ‘‘reasonable factors other than age’’ defense to an 

ADEA disparate impact claim. This proposed regulation clarifies the circumstances 

under which an employer may adopt a facially neutral policy that disproportionately 

harms older workers. It also explains the steps that employers need to take to minimize the potential for age-based stereotyping when managers are granted wide discretion to engage in subjective decisionmaking.39

The Commission will continue to use all available means at its disposal—including issuing regulations and policy guidance, providing outreach and training, conducting administrative enforcement, and litigating ADEA cases—to safeguard equal 

employment opportunity for older workers. However, these tools alone may no 

longer be sufficient to the task. As some of the experts at the EEOC’s recent public 

meeting noted, a legislative response now is needed to overcome recent legal setbacks, and to restore the original potency and promise of the ADEA. 

To that end, the Commission stands ready and eager to help this committee with 

technical assistance on S. 1756—and on any future related legislation. 

CONCLUSION

Thank you again for inviting me here today to testify on this very important 

issue. I look forward to your questions. 

The CHAIRMAN. Thank you very much, Ms. Berrien. 

Let me turn to a part of your testimony and—I just want to get 

it straight here—that the Supreme Court—I’m referring to your 

written testimony. 

Ms. BERRIEN. Yes. 

The CHAIRMAN. The Supreme Court, as you said, subsequently 

held that a title VII plaintiff could rely on either direct or circumstantial evidence to request this mixed-motives instruction. 

That was in Desert Palace, Inc. v. Costa, a 2003 case. 

Then, you go on to point out that lower courts were split as to 

whether ADEA plaintiffs needed to present direct evidence to obtain a mixed-motives instruction. 

Is that not the reason that the court granted cert in the first 

place— 

Ms. BERRIEN. That’s correct. 

The CHAIRMAN [continuing]. Was to see whether or not they 

should be parallel with title VII in terms of direct or circumstantial 

evidence? 

Ms. BERRIEN. In that regard, yes. Yes, sir. 

The CHAIRMAN. Then I read in the next paragraph that the court 

didn’t even reach that question. 

Basically, you’re saying that this issue—the ‘‘but-for’’ issue, the 

one that comes before that— 

Ms. BERRIEN. Yes. 

The CHAIRMAN [continuing]. Was not even presented to the court. 

It was never briefed by the parties or amicus curiae briefs, and the 
13 

counsel for the United States urged the court, during oral argument, not to reach that issue. 

Ms. BERRIEN. That’s correct. The solicitor general in the argument before the court did raise the fact that the issue, but for causation, was not briefed and properly before the court and raised 

concerns about the decision or a possible decision that was based 

on that ground. 

The CHAIRMAN. I just wanted to clear that up just for the record. 

Now I want to get more into what’s happening out there. You say 

that there’s a big surge in ADEA charges and the increasing prevalence of age discrimination. Do you have good data on that at 

EEOC? I mentioned that there’s been a three-fold increase. Is that 

correct? 

Ms. BERRIEN. Yes. What our charge data shows is that, from the 

decade between 1999 and 2009, age discrimination charges, as a 

percentage of all charges of discrimination filed with the commission, have risen from about 18 percent of the charges we received 

to now being roughly one in four of the charges we have received 

or 25 percent. 

And perhaps of greatest interest, in relation to this bill, there 

has been a very dramatic increase in the number of age charges 

that stem from a firing or a discharge or a termination of employment, and that figure has increased 50 percent. 

The CHAIRMAN. Why does the EEOC need S. 1756? I know you’re 

supporting it, but can’t you do this without this bill? Can’t you take 

care of this at the EEOC? 

Ms. BERRIEN. We have concerns. I would say they are two-fold. 

One, beyond our immediate cases or impact on immediate cases 

that the commission is litigating, more broadly, we do follow the 

trends and developments in the law. And in the year since the 

Gross decision was announced, there are two worrisome developments from the standpoint of the commission and signs that the 

Gross decision not only will impact age-discrimination plaintiffs by 

raising the standards under which they must litigate, but also that 

it may affect other people who are victims of discrimination of 

other forms. 

Particularly the Seventh Circuit’s decision in the Serwatka case 

indicates that the Gross holding might now be applied in Americans With Disabilities Act cases. 

I also noted, in both my written testimony and my statement 

today, that there have been some courts that have moved from the 

Gross standard—which we believe is already demanding enough, 

more demanding than the prior standard—and have even elevated 

it further to say that age must be the sole cause for a discharge 

or for an adverse employment action. 

And one consequence of that is that people who have been discriminated against on multiple illegal grounds—for example, race 

and disability and age—are being forced, essentially, to choose and 

to abandon age claims, even if they might otherwise be valid 

claims. 

The CHAIRMAN. Thank you very much, Ms. Berrien. 

Ms. BERRIEN. Yes. 

The CHAIRMAN. Senator Enzi. 

Senator ENZI. Yes. Thank you. Your testimony is very helpful. 
14 

Ms. BERRIEN. Thank you. 

Senator ENZI. You gave the percentages there. It would be helpful if we had some more exact percentages and actual numbers as 

well. 

Ms. BERRIEN. Of course. 

Senator ENZI. I find sometimes when the economy is changing 

that some of those numbers are kind of forced, particularly in the 

percentage category. 

Ms. BERRIEN. Of course. We would be happy to provide any information you would like, Senator. 

Senator ENZI. Thank you. 

I do have a question that I am going to be asking people whenever we are having a labor issue, and that question is have you 

acted as an employer, manager in a private-sector, non-governmental-funded workplace? 

Ms. BERRIEN. I was a manager in the non-profit sector. 

Senator ENZI. OK. Thank you. 

As S. 1756 appears to provide that, even in a mixed-motive case 

where the employee has no remedy because the employer has proven it would have taken the complaintive action in any case, the employer’s lawyer may still be entitled to an award of his or her legal 

fees. 

Do you think there may be a risk that a provision awarding attorneys’ fees, even when the attorney has obtained no relief for his 

or her client, could artificially increase the amount of litigation or 

artificially reduce the likelihood of settlement? 

Ms. BERRIEN. Senator, I believe that the standard that would 

apply in order for a plaintiff’s lawyer to recover fees is that they 

had to establish—they have to be a prevailing party on a question 

of law in the case, although they may not receive monetary relief. 

In fact, in the commission’s cases, monetary relief is often a 

small part relative to the other forms of relief—injunctive relief, orders from courts or settlement agreements that are essentially designed to change practices going into the future. 

The lack of non-monetary relief is not at all, in my view—or in 

the view of the law, more importantly—equivalent to no relief. I 

think there may be a confusion of the standard in that respect. 

Senator ENZI. Appreciate that. I’ll take a closer look at it. 

Title VII cases and Age Discrimination in Employment Act— 

ADEA—cases, are both within the purview of the EEOC, but a 

number of statutes that would be affected by S. 1756 plainly are 

not, on its face, as S. 1756 would effect statutes such as the National Labor Relations Act that are enforced by independent agencies and the Family Medical Leave Act that are enforced by Cabinet-level departments. 

Do you think it’s prudent to consider legislation effecting all 

these agencies and departments without their input? 

Ms. BERRIEN. Senator, the testimony here concerns this legislation, and we have, indeed, indicated that if there is any form of assistance that we can provide to the committee, if any clarification 

would be useful or any additional concerns are raised, we stand 

ready to do that. 
15 

I believe that this legislation really does go precisely to the 

issues that were raised in the Gross case in the age-discrimination 

context. 

Senator ENZI. OK. To change again, can employment statistics 

alone constitute sufficient circumstantial evidence to prove an improper motive and under what circumstances? 

Ms. BERRIEN. I am sorry, Senator. I didn’t hear your question. 

Senator ENZI. Can employment statistics alone constitute sufficient circumstantial evidence to prove an improper motive? 

Ms. BERRIEN. No. And that is not the case in any of the existing 

law. The statistics are relevant. And the statistics may raise an inference of discrimination, but courts require more than a mere statistical showing, recognizing that the Congress has consistently indicated concerns about employers over-correcting and doing things 

that might be discriminating against other people in the workplace. 

Senator ENZI. Really appreciate your concise answers. 

I would mention that Senator Harkin earlier used statistics. 

That’s one of the reasons for this question. He said that older people have higher unemployment numbers. 

I remember when I was mayor—that was clear back when I was 

30—that most of the people that came to Gillette, Wyoming, which 

was having a boom, were young people. And I was kind of curious 

about that. 

The reason, as it turned out, is that most people that are older 

already have a house, have a lot of friends in the community that 

they are in and expect to be the first hired back. So they don’t 

move to where the job is. They stay where the unemployment is, 

and that drives up the statistics a little bit, too. 

I appreciate the chance to ask questions, and I am going to have 

to leave for another meeting. 

I would just say, my friend, that in cases like this, other things, 

the closer the statistics get to 100 percent, the more relevant they 

are. 

[Laughter.] 

The CHAIRMAN. Senator Casey. 

SENATOR CASEY

Senator CASEY. Thank you very much. 

I wanted to say, first of all, thank you for your testimony and 

your work. 

Just by way of background—and it informs some of the lines of 

questioning that I will pursue in the short amount of time we 

have—when I was a young lawyer, one of the first sets of cases 

that I worked on were cases like age cases or were age cases, were 

cases involving discrimination. 

At that time, I was working with a senior member of a small law 

firm in my home town of Scranton, Pennsylvania, and didn’t develop an expertise in this area, but was exposed enough to these 

kinds of cases that I had a sense of the statutory basis for age-discrimination cases, some of the case law. 

What really became apparent to me at that time—and I think it 

is relevant to this discussion—is how difficult these cases were to 

litigate from the perspective of the plaintiff all those years ago— 
16 

this would be in the early 1990s—even under the old standard 

where you didn’t have the case that we are discussing today. 

I want to first of all highlight one statement from your testimony. It is in the second paragraph, and I want to highlight this 

to make sure I understand this. 

Based upon your analysis of the state of law after Gross—you 

say, in the middle of that second full paragraph ‘‘—even if a defendant admits, ‘admits’, that it took an adverse employment action 

in part, ‘‘in part’’, because of the plaintiff’s age—unless the plaintiff 

can show that the defendant would not have made the same decision anyway—’’ that is the current state of the law. 

In other words, even if the plaintiff admitted that age was part 

of their decision-making process, that is not enough for the plaintiff 

to prevail. Is that correct? 

Ms. BERRIEN. That is correct. The defendant in the age case now 

could even admit that age was a factor, but if it is one among a 

number of factors, the plaintiff is still required to show that the decision would—It is very difficult to describe it concisely, but, essentially, the burden still remains with the plaintiff to essentially isolate age as the reason. 

The standard, before Gross, recognized that, where age was a 

motivating factor, that the burden ought to then be the employer’s 

to prove that it was not the reason for the action. 

Many employment cases do not present as there is only one reason or it is clear to isolate the reason and the discriminatory reason is alone and stands alone. 

As you will hear, I believe, from Mr. Gross, in his case, age was 

one of the reasons, but there were also other reasons cited, and it 

is that citation of other reasons that, in the past, would have shifted the burden to the employer and now remains the burden of the 

plaintiff. 

In effect, the plaintiff has to prove a negative, which is very difficult. 

Senator CASEY. As I said before, these are tough cases from the 

plaintiff’s side, even under the old standard. I think maybe the 

popular image of this kind of a case is that papers are filed at a 

courthouse and before you know it, you are in front of a jury and 

the rest is history. 

You have to file papers and you have to get a lawyer to do that 

before you file and then you have to be able to expend money 

ahead of time—either you or your lawyer—for discovery costs. 

The other thing, which is sometimes skipped over, is the fact 

that you do not just file in Federal court and then you are off to 

the races. You have to exhaust all your remedies. You have to file 

with the EEOC and go through that process—or with the relevant 

State agencies. So it’s a long process. 

Some may say, on the other side, well, that happens with a lot 

of cases. The length of the case does not tell you enough about it. 

One of the things which I think is not clear in the popular notion 

of what this is all about is you rarely have that statement that just 

jumps off the page in a deposition transcript where the employer 

says, I did not hire John because he was too old. It is always very 

subtle. 
17 

I think it is over time that a practiced or learned behavior by 

some employers—not all, but some employers—to avoid using language which is pretty clearly discriminatory. 

I think—and I am running out of time—but I have at least three 

problems with where the state of the law is. 

First of all, these cases are complex to begin with, even under 

the old standard. 

Secondly, have the economic trauma that workers are living 

through right now where older workers are losing their jobs at 

higher numbers and likely being discriminated against to a greater 

degree. 

The third complicating factor is, of course, the decision. I think 

what you said in your testimony—and I will end with just reading 

this, because I know we are out of time—but you said—in analyzing why we need this bill, you said, ‘‘S. 1756 would legislatively 

overturn Gross to ensure that ADEA plaintiffs receive the same 

core protection and are subject to the same basic standards of causation with respect to disparate treatment claims as title VII plaintiffs.’’ 

In essence, what we are trying to do is be consistent with other 

cases, principally title VII cases. We are returning to an old standard. The bill is not creating a new standard. It is really returning 

to an older standard, which I think even that standard was pretty 

tough for plaintiffs. 

Thank you for your testimony. 

Ms. BERRIEN. Thank you. 

The CHAIRMAN. Thank you, Senator Casey. 

Senator FRANKEN. Senator FRANKEN. Thank you, Ms. Berrien, for your work. 

Ms. BERRIEN. Thank you. 

Senator FRANKEN. I am going to do a hypothetical. You were saying that in the Seventh Circuit that they were applying the Gross 

standard to claims of discrimination because of disability. 

Ms. BERRIEN. Yes, in one case they have. 

Senator FRANKEN. And they have held that that was OK. 

Ms. BERRIEN. Yes. 

Senator FRANKEN. Let me do a hypothetical. Let us say you go 

in there and the employer says, in cross examination, Was there 

any reason for firing this person because of their age? 

Oh, yes, yes. That was about probably 30 percent of it. 

How about because of their disability? 

Oh, yes, that, too. That was about 30 percent. 

What was the other 40 percent? 

Inability to adapt. Social networking was not working well 

enough. Sales down. Something like that. 

Could that person, then, under the Gross ruling, just say, OK. 

You don’t prevail? 

Ms. BERRIEN. Senator, I think the way that it would often 

present is that a person will come in. They will file their charge 

with the commission. If and when they reach court and the case 

has not settled in the period it was with the commission, they will 

get to court and they will say, I was fired. I believe it was because 

of my age. And then they will present a range of evidence that they 

believe supports that claim. 
18 

They may say, for example, the kinds of statements that I included in my testimony earlier. I was regularly called the old guy 

in the office. The managers and the people who fired me said that 

I was not keeping up with the times and they needed some younger 

folks around to do that. That kind of evidence is one type of evidence. 

Senator FRANKEN. Yes. I am talking here about where the employer even acknowledges it, but he is saying it was not 100 percent. It seems, the logic of the Seventh Circuit and of the Gross decision that the employee would not be ruled in his favor. 

Ms. BERRIEN. Right. Before Gross, the kinds of facts you just suggested would have left the door open for the plaintiff’s lawyer to 

ask for—if it was a jury trial—a jury to be instructed about mixedmotives, meaning for the jury to hear that if age was one of the 

reasons—it doesn’t have to be the only reason—then you can find 

for this plaintiff. 

Senator FRANKEN. Right. But now— 

Ms. BERRIEN. Now, the standard, in the face of that same evidence, would be, if the employer is able to show that they would 

have made the same decision anyway—Yes, there was this agist 

comment, or, Yes, there was other evidence presented that age discrimination occurred, or that some action happened because of the 

plaintiff’s age, but, in fact, there was another problem, there was— 

Senator FRANKEN. The other problem was a disability, but, still, 

that was not enough, because the disability was not the ‘‘but-for’’ 

problem either. 

Ms. BERRIEN. If the employer— 

Senator FRANKEN. What I am saying is the logic of this seems 

pretty perverse. 

Let me move on to something. Last year, I passed an amendment 

to the Defense appropriations bill that prohibits taxpayer money 

from going to contractors who force their employees to arbitrate 

discrimination claims. This came out of the story of Jamie Leigh 

Jones, a young Texas woman who was gang raped by her coworkers while working for KBR in Iraq. 

Then she was told that she could not sue KBR for sexual assault 

and sexual harassment. She had to arbitrate it in a secret tribunal 

paid for by KBR. 

Does the EEOC have a position on mandatory arbitration of civil 

rights claims? I think it is harmful to enforcement of civil rights 

claims, as almost anything else is, the mandatory arbitration. Does 

EEOC have an opinion on that? 

Ms. BERRIEN. Yes. We have issued statements about mandatory 

arbitration and about the risk of rights—that mandatory arbitration agreements could interfere with the appropriate vindication of 

rights and the appropriate protection of rights under Federal law. 

Senator FRANKEN. Thank you very much, Mr. Chairman. 

The CHAIRMAN. Senator Hagan. 

SENATOR HAGAN

Senator HAGAN. Thank you. Thank you, Mr. Chairman. 

Mrs. Berrien, thank you for being here. 

Ms. BERRIEN. Thank you, Senator. 
19 

Senator HAGAN. I am concerned about how that the laws passed 

by Congress can impact small business, which are at this point in 

time, certainly the drivers of the economic growth and job creation. 

And some people believe that the Gross decision would actually be 

good for small business. 

My question is, in your opinion, how do you think the proposed 

legislation would impact small business, and could there be more 

paperwork, litigation, expense? Are there other ways that this legislation might actually impact small business, from your perspective? 

Ms. BERRIEN. In our experience, both small business and larger 

industries or employers look to the commission for guidance about 

how to comply with the laws that Congress has passed. We have 

a very targeted and widespread outreach program to try to reach 

those businesses, to try to inform them about what the law requires. 

One of the risks, frankly, of the Gross decision is it makes those 

standards more confusing. It sets one standard for age cases. It 

sets different standards for race, national origin, religion cases, for 

example. 

For a small business, that sort of difference in what kind of conduct would be possibly illegal or what kind of conduct might subject them to liability in court is actually a confusing possibility. 

We do aggressive outreach to try to make sure that all businesses understand what is required under all the laws we enforce, 

and I believe that businesses of all size are not only aware, but 

often in complete accord with us that workplaces that are inclusive 

and do not exclude employees for arbitrary reasons are what are 

ultimately best for business. 

Senator HAGAN. We certainly do not want age discrimination in 

small business at all, but I am glad to hear about your outreach, 

although I guess I am not that familiar with it. How prevalent is 

it? 

Ms. BERRIEN. We actually did many events that were specifically 

targeted to educating businesses and the public about age discrimination specifically. I would be happy to provide specific data about 

the number of events we have done around the country and in your 

State as well. 

Senator HAGAN. I think that that is good, because I think we 

have got to help educate especially the small businesses in this 

area. 

Ms. BERRIEN. I agree. 

Senator HAGAN. Sometimes businesses make a calculation to 

offer early retirement incentives to older workers when the businesses need to downsize. I believe it is important to give workers 

the ability to make their own financial calculations and leave the 

final decision up to the worker in those situations. 

Could this court case become a factor when companies are deciding about whether to offer early retirement plans or what kind of 

packages to offer? And, in this economy, I certainly would not want 

to see companies offer less generous early retirement packages to 

their older employees. 

Ms. BERRIEN. Yes. 

Senator HAGAN. Can you comment on that? 
20 

Ms. BERRIEN. One of the reasons we believe that the number of 

age charges has risen is in part because people are working longer, 

sometimes out of complete choice—free choice—sometimes out of 

economic necessity. And so we do have more older workers in the 

workforce. 

Your concern is an important one, and one of the things that the 

Age Discrimination in Employment Act recognizes is, first of all, 

while it is sometimes true that older workers are the top compensated workers or people for whom there may be economic interest in moving to a retirement status, that is not always true. There 

are older workers who are less well compensated. There are younger workers who are sometimes compensated more highly. 

The core of the Age Discrimination Act is that age is not the 

proxy for making what is essentially an economic decision, if that 

is what happens. 

Finally, there are protections, and employers are able, for example, to seek waivers where an employee chooses to retire or to accept some sort of an incentive retirement package and they do not 

have to do that at the risk of a later lawsuit if they obtain an appropriate waiver and the employee is informed properly about that. 

So there are protections, I believe, on both sides. 

Obviously, the laws in this area are balancing some very important interests, the legitimate employer prerogatives and economic 

interests on the one hand, but the right of the employees and 

workforces to be free from illegal discrimination. 

Senator HAGAN. Thank you. 

The CHAIRMAN. Thanks, Senator Hagan. 

Ms. Berrien, thank you very much for being here. Thank you for 

your testimony and in answering these questions. 

Ms. BERRIEN. Thank you. 

The CHAIRMAN. Moreover, I personally want to thank you for 

your great leadership at the EEOC. Keep up the good work. 

Ms. BERRIEN. Thank you very much. Thank you for the opportunity to be here. 

The CHAIRMAN. Thanks, Ms. Berrien. 

I will now turn to our second panel, and that is Mr. Jack Gross, 

Ms. Helen Norton, Gail Aldrich and Eric Dreiband (Dree-band) or 

Dreiband (Dry-band). I will have to ask him exactly how to pronounce that. 

I will introduce the panel then. Mr. Jack Gross was born and has 

lived his entire life in Iowa. He is a graduate of Drake University 

and worked for the Iowa Farm Bureau for over 30 years. 

He is here to testify about, obviously, his first-hand experience 

with age discrimination and his case that went before the Supreme 

Court. 

Ms. Helen Norton. Professor Norton is an Associate Professor at 

the University of Colorado School of Law. Prior to that, Professor 

Norton served as Deputy Assistant Attorney General for Civil 

Rights at the U.S. Department of Justice where she managed the 

Civil Rights Division’s Employment Litigation, Educational Opportunities and Coordination Review Sections. 

Gail Aldrich is a member of the AARP Board of Directors. Prior 

to joining AARP, Ms. Aldrich served as Chief Membership Officer 

for the Society for Human Resource Management and was Senior 
21 

Vice President and Chief Administrative Officer of the California 

State Automobile Association. 

Eric—is that Dreiband (Dree-band) or Dreiband (Dry-band)? 

Mr. DREIBAND. Dreiband (Dry-band). 

The CHAIRMAN. Dreiband. Eric Dreiband is a partner at the law 

firm of Jones Day. From 2003 to 2005, Mr. Dreiband served as a 

general counsel of the EEOC. Prior to becoming EEOC general 

counsel, Mr. Dreiband served as Deputy Administrator of the U.S. 

Department of Labor’s Wage and Hour Division. 

I thank you all for being here. Your written testimonies will be 

made a part of the record in their entirety, and I would like to ask 

if you could just sum up in 5 minutes as we go down the panel. 

First, we turn to Mr. Gross. I know you wish it were otherwise, 

but your name has now become—how would I say—engraved in 

those infamous—in the litany of Supreme Court cases that people 

refer to that changed some settled law and has now become the 

focus of legislative interest in changing and overcoming that Supreme Court decision. 

Mr. Gross, thank you for being here and please proceed. 

STATEMENT OF JACK GROSS, CPCU, CLU, ChFC, 

DES MOINES, IA 

Mr. GROSS. Thank you, chairman and committee members. I 

would like to say again, Senator Harkin, how pleased and proud 

I am to have a fellow Iowan leading the charge on this important 

cause. 

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

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

of whom, like myself, have experienced age discrimination. 

You invited me here to share my story, since I have become the 

name associated with age discrimination. Talk about unintended 

consequences. I certainly never imagined that my case would end 

up here. 

I would like for you to keep in mind that while I think my case 

is personal and unique, in effect, it is one that is being duplicated 

millions of times around the country almost every day and ask that 

you envision those millions of people, who are also depending on 

you, as standing behind me, at least in spirit. 

Seven years ago, much to my surprise, my employer, Farm Bureau Insurance or FBL suddenly demoted all claims employees who 

were 50 and over and who were supervisors and above. 

I was included in that sweep, even though I had 13 consecutive 

years of performance reviews in the top 3 to 5 percent of the company and had dedicated most of my career to making Farm Bureau 

a better company. My contributions were exceptional that were 

well documented and a jury had a chance to hear all of those. 

Since age was the obvious reason, I filed a complaint, and 2 

years later, a jury spent an entire week listening to all of the testimony, seeing all the evidence and being instructed on the law as 

you wrote it. 

The verdict came back in my favor, in spite of what my attorneys 

called a scorched-earth defense, and I thought the ordeal was over 

in 2005. As we now know, that was just the beginning. 
22 

After that, FBL appealed and got my jury verdict overturned. 

Even though I had proved my case by a preponderance of the evidence, the appeals court said that, in their opinion, I did not show 

the right kind of evidence or, as they said, so-called direct evidence. 

I am still not sure I know what all that means. 

That left us no choice but to appeal it to the Supreme Court, and 

we were obviously thrilled because getting to the Supreme Court 

is pretty hard to do, and when they accepted certiorari on our case, 

we were, quite frankly, very optimistic knowing that 30 decades of 

court precedent and legislative action had done nothing but reinforce the laws on age discrimination. 

When we got there, however, the Supreme Court broke with 

their own protocol and allowed defense to advance an entirely new 

argument when it had not been briefed, nor had we been given an 

opportunity to prepare a rebuttal. 

In other words, they highjacked my case as a vehicle to water 

down the Age Discrimination in Employment Act, a law written by 

the branch of government closest to the people when I was 19 years 

old. 

My wife and I—Marlene—came to DC last year believing our 

highest court would uphold the rule of law and consistently apply 

it to all areas of discrimination. Instead, in effect, they created an 

anarchy of discrimination, where title VII cases were one level or 

one tier and all other types of discrimination, including age, were 

a second lower tier and required a different level of proof. 

To me, discrimination is discrimination and it feels pretty much 

the same regardless of whether it was because of gender or race 

or because you happened to grow old, all things beyond a worker’s 

control. We interpreted the law to mean that there should be 

equality in the workplace as long as you are willing and able to do 

the job, regardless of circumstances that are beyond your control. 

Since the Supreme Court’s decision in my case, I have been particularly distressed over the collateral damage that has now been 

inflicted on others because of the court’s ruling. I hate having my 

name associated with the pain and injustice now being inflicted on 

older workers because it is nearly impossible to provide the level 

of proof now required by the court. 

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

changed the law. Five Supreme Court Justices did, and since it was 

a five-four split, you could probably argue one person actually 

changed it. 

I believe 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. It simply states that everyone has a right to be treated equal in employment. 

I am here to urge you, on behalf of myself and millions of older 

Americans who want to continue working to pass this bill in the 

same bipartisan spirit you have shown in the past. 

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. 

Marlene, my wife and I—to whom I have been married for 43 

years—started off with absolutely nothing but a strong work ethic 

and a determination to build a good life, and we did, against all 
23 

odds. We have two wonderful grown children and two delightful 

grandchildren who are the joys of our life. 

Frankly, I agonized over this decision from the start. My wife 

and I set down, we prayed about it. We decided it had to be done, 

that we left the outcome in God’s hands. And 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, and, by extension, perhaps 

also for yours. 

My advice from the folks back home was to just come out here 

and tell you to just get her done, and message delivered. 

Thank you very much. 

[The prepared statement of Mr. Gross follows:] 

PREPARED STATEMENT OF JACK GROSS, CPCU, CLU, CHFC 

I am honored to be here and to be given an opportunity to speak out on behalf 

of the baby boomer generation, many of whom like me, have experienced age discrimination. You invited me here to share my story since I have, because of a Supreme Court ruling, become the new name associated with age discrimination. I am 

happy to do so. 

To me, of course, my story is personal and unique. I ask you to keep in mind, 

however, that key aspects of my story have, and are being duplicated millions of 

times across this country. Please, envision those millions who are depending on you 

standing behind me today. In spirit, they are. 

I certainly never imagined that my case would end up here when it all started 

over 7 years ago. That is when my employer, Farm Bureau Insurance, or FBL, 

merged with the Kansas Farm Bureau. Apparently not wanting to add any more 

older workers, they offered the Kansas claims employees who were over 50 a buyout 

to purge them from the company. At the same time, they just demoted all claims 

employees in the Iowa operation who were 50 and over and had supervisory or higher positions. Only one person who was under 50, but approaching it, was demoted. 

Being 54 at the time, I was included in that sweep, even though I had 13 consecutive years of performance reviews in the top 3–5 percent of the company, and had 

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

contributions were exceptional and well documented. Not least was managing what 

Farm Bureau called its biggest undertaking ever. In 1997, I was asked to take all 

of our existing property and casualty policies, re-write them in a way they could be 

easily understood, and combine them into a totally unique package policy unlike 

anyone else had in our market. And, they asked me to do it in a year. I did, and 

it is still their exclusive and very popular modular product, upon which they are 

basing their future. That was only one of many valuable contributions I made to 

FBL, but my time is limited. The jury that decided my case heard all about them. 

Since age was the obvious reason, I filed a complaint, and 2 years later a Federal 

jury spent a week listening to all the testimony, seeing all of the evidence, and 

being instructed on the ADEA. They were also instructed to rule in my favor if I 

had proved by a preponderance of evidence that age was a motivating factor, and 

also that they should rule in favor of FBL if they could find any reason, other than 

age, for my demotion. The verdict came back in my favor, and I thought the ordeal 

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

After that, FBL appealed and got my jury verdict overturned on what I consider 

a technicality in the jury instruction. Apparently, most courts said that, in a socalled mixed motive case, any kind of evidence was sufficient. But, the 8th Circuit 

said I had to have so-called ‘‘direct’’ evidence. That left us no choice but to appeal 

it to the Supreme Court. 

We were optimistic and grateful when the court accepted cert on whether direct 

evidence was required to get a mixed-motive instruction. Precedent and legislation, 

we felt, were overwhelmingly on our side. At the hearing, however, the Supreme 

Court broke their own protocol and allowed the defense to advance an entirely new 

argument. It had not been briefed, nor had we been given an opportunity to prepare 

a rebuttal. To make a long story short, the court essentially hijacked my case and 

used it as a vehicle to water down the ADEA, a law written by the branch of government closest to the people. Editorials and bloggers dubbed me this year’s Lily 

Ledbetter. (I take that as a compliment.) 
24 

My wife and I came to this town last March expecting to see our high court at 

its best. We believed in the rule of law and its consistent application to all areas 

of discrimination. Needless to say, we were disappointed, disillusioned, and quite 

frankly embarrassed by the arrogance we witnessed. I felt the High Court had 

pulled a ‘‘bait and switch’’ on me. 

As it stands now, I have a new trial scheduled for November of this year, nearly 

8 years after the unjustified and unlawful demotion. In that time, witnesses have 

moved out-of-state, memories have faded, and the court has changed the rules. My 

trust in the judicial system is shattered. I used to believe that our courts tried to 

uphold and sanctify the decisions of our citizen juries, instead of second-guessing 

their ability to understand the letter and spirit of the law. 

That is the story of my discrimination experience. I do not have time to share 

much of my personal background, so I will be very brief. I grew up in a small town 

in southern Iowa. My dad was a highway patrolman and my mother a school teacher. I overcame chronic health problems to achieve my education and success. My 

wife, to whom I have been married for 43 years, and I started with absolutely nothing but a determination to build a good life, and we did against all odds. We have 

two wonderful grown children and two grandchildren who are the lights of our lives. 

I am very proud of my family and of my professional accomplishments. 

Since I was integrally involved in defending FBL for many years as a claims manager, I am probably an unlikely candidate to be here. We believe that is the reason 

FBL has defended this case so aggressively, and that it explains the intensity of the 

retaliation I endured over the past 7 years while the litigation proceeded. I finally 

retired last December because the stress of that retaliation was causing me health 

problems. 

Since the Supreme Court’s decision in my case, 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 now being inflicted on older workers, because it is nearly impossible to provide the level of proof 

now required by the Court. I have to keep reminding myself that I am not the one 

who changed the law. Five powerful men in black robes did it. 

As a citizen, I believe this body—Congress—has a long history of working together, on a bi-partisan basis, to create and maintain a level playing field in the 

workplace. The ADEA, and the ensuing legislation that reinforced its intent, is but 

one example. As a citizen, it clearly says to me that Congress intended to put an 

end to discrimination in employment practices. I believe the same is true for most 

jurors. We do not parse individual words the way judges and some attorneys do. We 

know what ‘‘is’’ is. The ADEA simply states that it shall be unlawful to discriminate 

because of age. We get it. This Supreme Court apparently does not. Justice Thomas 

challenged you to state that age has to be ‘‘a motivating factor’’ if that is what you 

intended. The Protecting Older Workers Against Discrimination Act does that, and 

I urge you, on behalf of myself and the millions of baby boomers behind me who 

have been paying the bills for a generation and want to continue working, to pass 

it in the same bipartisan spirit you have shown in the past. 

Finally, one of my jurors, during voir dire, said that she just could not understand 

how a man could sue a company that gave him a job. Her words resonated with 

me. I agonized over the decision to pursue this. The folks standing behind me understand. My wife and I prayed about it, decided it had to be done, and then we 

left the outcome in God’s hands. 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 CHAIRMAN. Mr. Gross, thank you very much, a very poignant 

and straightforward presentation. 

Ms. Norton, welcome and, again, please proceed. 

STATEMENT OF HELEN NORTON, PROFESSOR, UNIVERSITY OF 

COLORADO LAW SCHOOL, BOULDER, CO 

Ms. NORTON. Good morning. Thank you, Mr. Chairman, and 

thank you, Senator Franken, for the opportunity to join you today. 

The Supreme Court’s 2009 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 en-
25 

force their rights under a wide range of other Federal employment 

laws. 

In response, S. 1756 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 removing and deterring barriers to equal employment opportunity. 

As you know, current Federal law prohibits job discrimination 

because of certain characteristics. For example, the Age Act prohibits employers from discriminating against an individual because 

of such individual’s age, and these causation provisions require 

proof of a nexus or a connection between the defendant’s discriminatory behavior and the adverse action experienced by the plaintiff. 

Employment decisions, like so many human decisions, are sometimes driven by multiple motives, and these mixed-motive cases 

raise a challenging causation question: When multiple factors 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 that decision because of discrimination, in violation of Federal law? 

In answering this question, the Supreme Court’s decision in 

Gross departed from 20 years of precedent to articulate a brand 

new causation standard for the ADEA. Under the court’s new rule, 

which adopts an approach that had been rejected both by an earlier 

Supreme Court in 1989 in Price Waterhouse, and by Congress in 

the Civil Rights Act of 1991. 

Under the Gross rule, instead, 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. 

Proving that age was the ‘‘but-for’’ cause of an action requires us 

to imagine a situation identical to the identical facts that really 

happened, except that we remove the defendant’s wrongful behavior—here it is age discrimination—and then we ask whether the 

employer would have taken the same action even if it had behaved 

correctly in not considering age. 

Requiring the plaintiff to bear the burden of reconstructing that 

sort of hypothetical scenario is especially difficult after the fact 

when the defendant is in a much better position than the plaintiff 

to show how it would have acted and what was in its mind at the 

time of the decision. 

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 finds 

them less creative, less energetic and less productive. 

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

position. Under the court’s new rule, even if the plaintiff can prove 

that the employer relied on inaccurate and stigmatizing age-based 

stereotypes—and, in fact, in response to Senator Franken’s question, even if the employer admits that it relied on inaccurate and 

stigmatizing age-based stereotypes in its decision to reject the 

plaintiff—under the Gross rule, the employer will entirely escape 

liability, unless the plaintiff can also prove that the employer 

would not have made the same decision absent age discrimination. 
26 

By permitting the employer to escape liability altogether for its 

proven discrimination, and thus giving the employer no incentive 

to refrain from similar behavior in the future, the Gross rule undermines Congress’ efforts to stop and deter workplace bias. 

Not only does Gross significantly narrow the scope of protections 

available to older workers under the ADEA, it threatens workers’ 

rights to be free from discrimination and retaliation in a wide 

range of other contexts. Lower courts have already begun to apply 

the court’s new standard in Gross to claims involving other Federal 

employment protections. 

S. 1756 would replace the Gross standard with a uniform standard that furthers Congress’ interest in preventing and deterring 

workplace bias. More specifically, S. 1756 would apply the standard 

adopted by Congress with respect to title VII and the Civil Rights 

Act of 1991, a standard proven workable after nearly two decades 

in operation, to other Federal laws that prohibit job discrimination 

and retaliation. 

S. 1756 would thus make clear that a plaintiff establishes a violation of the ADEA or any other Federal employment anti-discrimination or anti-retaliation statute by proving that age or another 

protected characteristic was a motivating factor for an employment 

decision. 

The burden would then shift to the employer to prove that it 

would have taken the same action even absent discrimination. And 

if the employer satisfies that burden, a court cannot order hiring, 

reinstatement, promotion, back pay or damages. 

The employer, however, would still remain liable for declaratory 

and certain injunctive relief along with part of the plaintiff’s fees 

and costs, and, most importantly, this includes something that is 

valuable both to the plaintiff and to the public at large. This would 

empower the court to issue an injunction ordering the defendant to 

cease and desist from continuing to engage in discrimination in the 

future. 

If our focus is, as it should be, on stopping discrimination, empowering courts to enjoy continuing discrimination is one of the 

most important powers Congress can confer. 

As Congress recognized in enacting the Civil Rights Act of 1991, 

this approach helps prevent and deter discrimination by ensuring 

that an employer proven to have engaged in discrimination cannot 

completely escape liability for their actions while leaving employers 

free to make decisions based on ability or any other non-discriminatory factor. 

I thank you for the chance to join you today. 

[The prepared statement of Ms. Norton follows:] 

PREPARED STATEMENT OF HELEN NORTON

SUMMARY

The Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc. significantly undermines older workers’ ability to enforce their rights under the Age 

Discrimination in Employment Act, and threatens to do the same for workers seeking to enforce their rights to be free from discrimination and retaliation under a 

wide range of other Federal employment laws. Under the Court’s new rule—which 

adopts an approach rejected both by the Supreme Court’s earlier decision in Price 

Waterhouse v. Hopkins and by Congress in the Civil Rights Act of 1991—the burden 

of persuasion remains on the plaintiff not only to prove that age motivated the deci-
27 

1 129 S. Ct. 2343 (2009). 

2See 42 U.S.C. § 2000e-2 (Title VII of the Civil Rights Act of 1964); 29 U.S.C. § 623 (Age Discrimination in Employment Act); 42 U.S.C. §§ 12101 et seq. (Americans with Disabilities Act); 

42 U.S.C. § 2000ff-1(a) (Genetic Information Nondiscrimination Act). 3 29 U.S.C. § 623(a)(1) (emphasis added). 4 4 See, e.g., 42 U.S.C. § 2000e-3 (Title VII); 29 U.S.C. § 623(d) (ADEA). 

sion, but also to prove that age was the ‘‘but-for’’ cause of the decision. Moreover, 

lower courts have already begun to apply the Court’s new standard in Gross to 

claims under other Federal employment laws, requiring the plaintiff not only to 

prove that discrimination or retaliation motivated the decision, but also to bear the 

burden of proving that such discrimination was the ‘‘but-for’’ cause of the decision. 

S. 1756 would replace the causation rule articulated by the Gross Court with the 

causation standard long in place under title VII pursuant to the Civil Rights Act 

of 1991. More specifically, S. 1756 would make clear that a plaintiff establishes an 

unlawful employment practice under the ADEA (and any other Federal employment 

antidiscrimination or antiretaliation statute) by proving that age (or other protected 

characteristic) was a motivating factor for an employment decision. The burden of 

proof then shifts to the employer to establish that it still would have taken the same 

action absent its discrimination. If the employer satisfies that burden, it will be liable only for declaratory relief, certain injunctive relief, and part of the plaintiff’s attorney’s fees and costs, and a court may not order the hiring, reinstatement, or promotion of the individual, nor the payment of back pay to the individual. As Congress 

recognized in enacting the Civil Rights Act of 1991, this approach—which shifts the 

burden of proof to the employer to limit remedies rather than to defeat liability entirely—best achieves antidiscrimination laws’ key purposes of preventing and deterring future discrimination by ensuring that employers proven to have engaged in 

discrimination cannot completely escape liability for their actions. Indeed, this approach enables Federal courts to retain judicial power to order correction of the 

wrongful conduct in the form of declaratory and certain injunctive relief. Once the 

plaintiff proves that the employer engaged in discrimination and thus violated Federal law, the employer may still substantially limit the available remedies, however, 

by showing that it would have made the same decision in a workplace free from discrimination. 

Thank you for the opportunity to join you today. My testimony here draws from 

my work as a law professor teaching and writing about employment discrimination 

issues, as well as my experience as a Deputy Assistant Attorney General for Civil 

Rights in the Department of Justice during the Clinton administration, where my 

duties included supervising the Civil Rights Division’s employment discrimination 

enforcement efforts. 

The Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc.1 significantly undermines older workers’ ability to enforce their rights under the Age 

Discrimination in Employment Act, and threatens to do the same for workers seeking to enforce their rights to be free from discrimination and retaliation under a 

wide range of other Federal employment laws. S. 1756 would replace the causation 

rule articulated by the Gross Court with the causation standard long in place under 

title VII that more effectively furthers Congress’ key interest in removing and deterring barriers to equal employment opportunity. 

‘‘CAUSATION’’ IN THE CONTEXT OF FEDERAL ANTIDISCRIMINATION LAW

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

characteristics, such as race, color, sex, national origin, religion, age, genetic information, and disability.2 The Age Discrimination in Employment Act (ADEA), for example, provides that ‘‘[i]t shall be unlawful for an employer . . . to fail or refuse to 

hire or to discharge any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.’’ 3 Federal employment laws also frequently include antiretaliation provisions that prohibit an employer from discriminating against an individual ‘‘because’’ that individual reported 

potentially unlawful behavior, filed a charge of discrimination, or otherwise engaged 

in activity protected from retaliation under the statute.4 In short, these causation 

provisions require proof of a nexus or connection between the defendant’s discriminatory behavior and the adverse employment action experienced by the plaintiff. 

In many discrimination cases, the competing parties agree that a single factor 

‘‘caused’’ an adverse employment decision, but vigorously disagree in identifying 

that factor. This is the case, for example, when the plaintiff contends that his employer discharged him ‘‘because of ’’ his age, while the employer contends instead 
28 

5See, e.g., Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 143 (2000). 6 490 U.S. 228 (1989). 

7 Id. at 241 (plurality opinion) (‘‘It is difficult for us to imagine that, in the simple words ‘because of,’ Congress meant to obligate a plaintiff to identify the precise causal role played by legitimate and illegitimate motivations in the employment decision she challenges. We conclude, 

instead, that Congress meant to obligate her to prove that the employer relied upon sex-based 

considerations in coming to its decision. . . . When, therefore, an employer considers both gender 

and legitimate factors at the time of making a decision, that decision was ‘because of sex’ and 

the other, legitimate considerations—even if we may say later, in the context of litigation, that 

the decision would have been the same if gender had not been taken into account.’’); see also 

id. at 259–60 (White, J., concurring); id. at 265 (O’Connor, J., concurring). 8 Id. at 244–45 (plurality opinion); see also id. at 259–60 (White, J., concurring); id. at 261 

(O’Connor, J., concurring). 9See, e.g., H.R. REP. NO. 102-40(I), at 47 (1991), reprinted at 1991 U.S.C.C.A.N. 549, 585 (‘‘If 

Title VII’s ban on discrimination in employment is to be meaningful, victims of proven discrimination must be able to obtain relief, and perpetrators of discrimination must be held liable for 

their actions. Price Waterhouse jeopardizes this fundamental principle.’’); S. REP. NO. 315, 101st 

Cong., 2nd Sess. 48–49 (1990) (describing Congressional intent to replace the Price Waterhouse 

causation standard with one that better deters discrimination). 10See 42 U.S.C. § 2000e-2(m) (providing that ‘‘an unlawful employment practice is established 

when the complaining party demonstrates that race, color, religion, sex, or national origin was 

a motivating factor for any employment practice, even though other factors also motivated the 

practice’’); 42 U.S.C. § 2000e-5(g)(2)(B) (restricting the remedies available to plaintiffs proving 

violations under § 2000e-2(m) when the defendant proves that it would have taken the same action in the absence of the impermissible motivating factor). 

that it acted ‘‘because of’’ some nondiscriminatory reason like performance. In such 

cases, the plaintiff bears the ultimate burden of persuading the factfinder that the 

decision was made ‘‘because of ’’ age.5

Employment decisions—like so many decisions made by human beings—are sometimes driven by multiple motives. ‘‘Mixed-motive’’ claims thus raise a challenging 

causation question: when multiple motives inform 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 first addressed this question in 1989 in Price Waterhouse v. Hopkins,6 where six Justices interpreted title VII’s statutory language prohibiting 

job discrimination ‘‘because of ’’ race, sex, color, religion and national origin to prohibit adverse employment actions motivated in whole or in part by the plaintiff’s 

protected characteristic. In that case, more specifically, they concluded that a plaintiff successfully proves that an employer discriminated ‘‘because of sex’’ when he or 

she has proven that sex was a motivating or a substantial factor in the employer’s 

decision.7 Upon such a showing, they further ruled, the burden of persuasion then 

shifts to the employer, who may escape liability ‘‘only by proving that it would have 

made the same decision even if it had not allowed gender to play such a role.’’ 8

Congress then addressed this issue, along with several others, with the enactment 

of the Civil Rights Act of 1991 and its series of amendments to title VII. Congress 

adopted the Price Waterhouse Court’s burden-shifting framework, agreeing that the 

burden of proof should shift to the employer when the plaintiff proves that discrimination based on a protected characteristic was a motivating factor in the employer’s 

decision. Congress and the Price Waterhouse Court thus both concluded that the defendant employer is in a better position than the plaintiff employee to reconstruct 

history and prove whether an employer who has been proven to have engaged in 

discrimination would have taken the same action in a workplace uninfected by bias. 

Expressing concern, however, that the Price Waterhouse rule still did not sufficiently deter employers from discrimination, Congress further amended title VII to 

make clear that a plaintiff has established a violation once he or she proves that 

race, sex, color, religion, or national origin was a motivating factor in the employer’s 

decision.9 Upon such a showing, the burden of proof shifts to the employer not to 

escape liability but to substantially reduce the plaintiff’s relief. An employer that 

then proves that it would have made the same decision even absent discrimination 

can limit available remedies to declaratory relief, certain injunctive relief, and part 

of the plaintiff’s attorney’s fees and costs—relieving the employer from exposure for 

back pay, damages, or reinstatement.10 This framework ensures both that a plaintiff 

is no better off than he or she would have been absent any discrimination and that 

Federal courts retain the power to enjoin the defendant’s proven discrimination 

through declaratory and injunctive relief, thus encouraging equal employment opportunity in the future. 

The 1991 Act’s amendments with respect to title VII causation, however, did not 

expressly apply to the ADEA. For the approximately 20 years between Price 

Waterhouse and Gross, lower courts thus routinely interpreted the ADEA and other 
29 

11For examples of lower courts’ application of the Price Waterhouse causation standard to the 

ADEA in the years before Gross, see Febres v. Challenger Caribbean Corp., 214 F.3d 57 (1st 

Cir. 2000); Ostrowski v. Atlantic Mut. Ins. Co., 968 F.2d 171 (2nd Cir. 1992); Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089 (3rd Cir. 1995); EEOC v. Warfield-Rohr Casket Co., 364 

F. 3d 160 (4th Cir. 2004); Rachid v. Jack in the Box, Inc., 376 F. 3d 305 (5th Cir. 2004); Wexler 

v. White’s Fine Furniture, Inc., 317 F. 3d 564 (6th Cir. 2003); Hutson v. McDonnell Douglas 

Corp., 63 F. 3d 771 (8th Cir. 1995); Lewis v. YMCA, 208 F.3d 1303 (11th Cir. 2000). 12 129 S. Ct. 2343 (2009). 13For additional discussion of the Gross decision and its implications, see Melissa Hart, Procedural Extremism: The Supreme Court’s 2008–09 Labor and Employment Cases, 13 EMP. RTS. 

& EMP. POL’Y J. 253, 263–73 (2009); Martin J. Katz, Gross Disunity, 114 PENN ST. L. REV. 

857 (2010); Leigh A, Van Ostrand, A Close Look at ADEA Mixed-Motives Claims and Gross v. 

FBL Financial Services, Inc., 78 FORDHAM L. REV. 399 (2009). 14See Gross, 129 S. Ct. at 2349 (‘‘We cannot ignore Congress’ decision to amend title VII’s 

relevant provisions but not make similar changes to the ADEA. When Congress amends one 

statutory provision but not another, it is presumed to have acted intentionally.’’). 15See id. at 2351–52 (‘‘[I]t is far from clear that the Court would have the same approach 

were it to consider the question today in the first instance.’’). 16See id. at 2352 (‘‘Thus, even if Price Waterhouse was doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to 

ADEA claims.’’). 17 Indeed, the Price Waterhouse Court explicitly rejected such a ‘‘but-for’’ standard when interpreting title VII’s parallel prohibition of job discrimination ‘‘because of’’ sex: 

We take these words to mean that gender must be irrelevant to employment decisions. 

To construe the words ‘because of’ as colloquial shorthand for ‘but-for’ causation . . . is 

to misunderstand them. But-for causation is a hypothetical construct. In determining 

whether a particular factor was a but-for cause of a given event, we begin by assuming 

that that factor was present at the time of the event, and then ask whether, even if 

that factor had been absent, the event nevertheless would have transpired in the same 

way. The present, active tense of the operative verbs [in title VII] in contrast, turns 

our attention to the actual moment of the event in question, the adverse employment 

decision. The critical inquiry . . . is whether gender was a factor in the employment 

decision at the moment it was made. 

Price Waterhouse, 490 U.S. at 240–41 (plurality opinion) (emphasis in original). 

employment discrimination statutes that borrowed title VII’s language prohibiting 

discrimination ‘‘because of’’ a protected characteristic in a manner consistent with 

the Court’s interpretation of that identical language in Price Waterhouse. For example, during that time, lower courts uniformly understood Price Waterhouse as providing the causation standard for the ADEA’s prohibition of job discrimination ‘‘because of ’’ age, thus permitting a plaintiff who proves that age was a motivating factor in an employer’s decision to establish liability unless the employer could then 

prove that it would have made the same decision in a workplace free from age discrimination.11

THE DAMAGING CONSEQUENCES OF THE SUPREME COURT’S DECISION IN GROSS V. FBL

FINANCIAL SERVICES, INC. 

The Supreme Court’s 5–4 decision in Gross v. FBL Financial Services, Inc. 12

brought a dramatic—and unwelcome—change to this landscape. After receiving instructions consistent with Price Waterhouse and nearly 20 years of case law, a jury 

concluded that Mr. Gross had proved that age was a motivating factor in the defendant’s decision to demote him and that the defendant had not proved that it 

would have demoted him regardless of his age. It thus found that Mr. Gross had 

established that his employer had violated the ADEA, and awarded him approximately $47,000 in lost compensation. The Supreme Court, however, vacated his 

award. Departing from 20 years of precedent, it articulated a brand-new causation 

standard for the ADEA that erects substantial barriers in the path of older workers 

seeking to enforce their right to be free from discrimination.13

The Gross Court first characterized Congress’ 1991 decision to amend title VII’s 

causation standard—but not that of the ADEA—as evidence that Congress intended 

the two statutes to provide different levels of protection. 14 Next, after strongly suggesting that Price Waterhouse was wrongly decided,15 the Gross Court limited Price 

Waterhouse in any event as applicable only to title VII.16 It then insisted upon a 

new interpretation of the identical language under the ADEA, holding that the burden of persuasion never shifts to the defendant even after the plaintiff proves that 

age was a motivating factor in the decision. Under the Court’s new rule—a rule rejected both by the Price Waterhouse Court 17 and by Congress in the Civil Rights 

Act of 1991—the burden of persuasion always remains on the plaintiff not only to 
30 

18Gross, 129 S. Ct. at 2352 (‘‘We hold that a plaintiff bringing a disparate-treatment claim 

pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘butfor’ cause of the challenged adverse employment action. The burden of persuasion does not shift 

to the employer to show that it would have taken the action regardless of age, even when a 

plaintiff has produced some evidence that age was one motivating factor in that decision.’’). 19 Id. at 2359 (Breyer, J., dissenting); see also id. (explaining that Price Waterhouse permitted 

the employer an affirmative defense to liability, ‘‘not because the forbidden motive, age, had no 

role in the actual decision, but because the employer can show that he would have dismissed 

the employee anyway in the hypothetical circumstance in which his age-related motive was absent. And it makes sense that this would be an affirmative defense, rather than part of the 

showing of a violation, precisely because the defendant is in a better position than the plaintiff 

to establish how he would have acted in this hypothetical situation.’’) (emphasis in original). 20See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (‘‘It is the very essence of age 

discrimination for an older employee to be fired because the employer believes that productivity 

and competence decline with old age. . . . Congress’ promulgation of the ADEA was prompted 

by its concern that older workers were being deprived of employment on the basis of inaccurate 

and stigmatizing stereotypes.’’). 21See, e.g., Martino v. MCI Communications Services, Inc., 574 F.3d 447, 455 (7th Cir. 2009) 

(‘‘And if there were any doubt that Martino cannot survive summary judgment, it evaporates 

completely in the wake of the Supreme Court’s decision in Gross. The Court held that in the 

ADEA context, it’s not enough to show that age was a motivating factor. The plaintiff must 

prove that, but for his age, the adverse action would not have occurred. Martino cannot handle 

that. At best, he has done no more than show that his age possibly solidified the decision to 

include him in the RIF. But a reasonable jury could only conclude that he would have been fired 

anyway; age was not a but-for cause.’’) (citations omitted; emphasis in original); Geiger v. Tower 

Automotive, 579 F.3d 614, 621 (6th Cir. 2009) (‘‘Gross overrules our ADEA precedent to the extent that cases applied title VII’s burden-shifting framework if the plaintiff produced direct evidence of age discrimination.’’); Fuller v. Seagate Technology, 651 F. Supp. 2d 1233, 1248 (D. 

Colo. 2009) (‘‘[T]his Court interprets Gross as elevating the quantum of causation required 

under the ADEA. After Gross, it is no longer sufficient for Plaintiff to show that age was a motivating factor in Defendant’s decision to terminate him. Instead, Plaintiff must present evidence 

establishing that age discrimination was the ‘but for’ cause of Plaintiff’s termination.’ ’’). 

Some lower courts have relied on Gross to narrow the protections available for older workers 

even more dramatically. For example, some have misinterpreted the Court’s requirement that 

the plaintiff prove that age was the ‘‘but-for’’ cause of the adverse employment action to mean 

that the plaintiff must prove that age was the sole reason for the adverse action. See, e.g., Culver v. Birmingham Bd. Of Education, 646 F. Supp. 2d 1270, 1271–72 (N.D. Ala. 2009) (‘‘Gross 

holds for the first time that a plaintiff who invokes the ADEA has the burden of proving that 

prove that age motivated the decision, but also to prove that age was the ‘‘but-for’’ 

cause of the decision.18

Proving that age was the ‘‘but-for’’ cause of an action requires us to imagine a 

situation identical to the actual facts, except that we remove the defendant’s wrongful behavior—its age discrimination—and then ask whether the employer would 

have taken the same adverse action against the plaintiff even if it had behaved correctly. Requiring the plaintiff to bear the burden of reconstructing such a decisionmaking scenario is especially difficult after the fact, as the defendant is in a better 

position than the plaintiff to show how it would have acted in such a hypothetical 

situation. As Justice Breyer explained in his Gross dissent: ‘‘The answer to this hypothetical inquiry will often be far from obvious, and, since the employee likely 

knows less than does the employer about what the employer was thinking at the 

time, the employer will often be in a stronger position than the employee to provide 

the answer.’’ 19

Consider 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 finds them to be less energetic, less creative, and generally 

less productive. Suppose too that the employer ultimately hires another applicant 

who was arguably even more qualified than the plaintiff for the position. Under the 

Court’s new rule in Gross, even if the plaintiff can prove that the employer relied 

on inaccurate and stigmatizing age-based stereotypes in its decision to reject her,20

the employer will escape ADEA liability altogether if the plaintiff cannot also prove 

that the employer would have made the same decision even absent age discrimination. In this way, the Gross rule permits an employer to avoid liability altogether 

for its proven discrimination—indeed, even when there is ‘‘smoking gun’’ direct evidence of discrimination—when the challenged action, though infected by discrimination, is also supported by nondiscriminatory reasons. By permitting employers to escape liability altogether for such discriminatory conduct, with no incentive to refrain 

from similar discrimination in the future, the Gross rule thus undermines Congress’ 

efforts to stop and deter workplace discrimination through the enactment of Federal 

antidiscrimination law. 

Not only does Gross significantly narrow the scope of protections available to older 

workers under the ADEA,21 it threatens workers’ rights to be free from discrimina-
31 

the fact he is over 40 years old was the only or the but for reason for the alleged adverse employment action. The only logical inference to be drawn from Gross is that an employee cannot 

claim that age is a motive for the employer’s adverse conduct and simultaneously claim that 

there was any other proscribed motive involved.’’) (emphasis in original); Wardlaw v. City of 

Philadelphia, 2009 WL 2461890 at *7 (E.D. Pa. 2009) (‘‘The Supreme Court held in Gross that 

a plaintiff can only prevail on an age-related employment discrimination claim if that is the only 

reason for discrimination. Even if Wardlaw’s assertion that the City’s motion for summary judgment rests solely on unsubstantiated evidence is correct, the City has no burden to refute her 

claim until she presents direct evidence that her age was the sole reason for the discrimination 

and retaliation she alleges to have experienced. . . . Because she cites multiple bases for her discrimination claim, including her gender, race, and disability, Wardlaw is foreclosed from prevailing on a claim for age-related discrimination.’’); see also Bell v. Raytheon, Co., 2009 WL 

2365454 at *5 (N.D. Tex. 2009) (‘‘[T]he court will not shift the burden to the defendant to articulate a legitimate nondiscriminatory reason unless the plaintiffs show that age was the ‘‘but-for’’ 

cause of any adverse employment actions.’’). 22See Gross, 129 S. Ct. at 2349 (‘‘When conducting statutory interpretation, we ‘must be careful not to apply rules applicable under one statute to a different statute without careful and 

critical examination.’ ’’) (citation omitted). 23Serwatka v. Rockwell Automation, Inc. 591 F.3d 957, 961 (7th Cir. 2010) (‘‘Although the 

Gross decision construed the ADEA, the importance that the court attached to the express incorporation of the mixed-motive framework into title VII suggests that when another anti-discrimination lacks comparable language, a mixed-motive claim will not be viable under that statute.’’). 

Note that the ADA, properly construed, authorizes mixed motive claims consistent with the 

standards identified in the Civil Rights Act of 1991. The ADA’s enforcement provisions specifically incorporate the powers, remedies and procedures of title VII, including the title VII provision authorizing certain remedies where the plaintiff has proven mixed motive discrimination. 

42 U.S.C. §12117 (‘‘The powers, remedies, and procedures set forth in sections 2000e–4, 2000e– 

5, 2000e–6, 2000e–8, and 2000e–9 shall be the powers, remedies, and procedures this subchapter 

provides to . . . any person alleging discrimination on the basis of disability in violation of any 

provision of this chapter . . . concerning employment.’’). Thus, Congress clearly envisioned that 

relief would be available for mixed motive discrimination under the ADA, just as it is available 

under title VII. In addition, in amendments to the ADA in 2008, Congress changed the Act’s 

employment provisions to bar discrimination ‘‘on the basis of disability’’ rather than ‘‘because 

of’’ disability. ADA Amendments Act of 2008, Pub. L. No. 110–325, §5(a) (codified at 42 U.S.C. 

§12112(a)). This change to the ADA’s causation language was intended to align the ADA even 

more clearly with title VII. See, e.g., Senate Statement of Managers for Pub. L. No. 110–325; 

H. REP. NO. 110–730 (I), at 6 (2008). Despite these indications of congressional intent in both 

the original ADA, and the ADA Amendments Act, the Seventh Circuit, as noted above, relied 

on Gross to conclude that the original ADA does not permit such claims because the ADA’s employment title does not directly mirror title VII’s explicit scheme concerning mixed motive 

claims. The court noted, however, that it was not deciding whether the ADA Amendments Act 

of 2008 necessitated a different result, since the amendments did not control the case before 

it. Serwatka, 591 F.3d at 962 n.1. 24 e.g., Fairley v. Andrews, 578 F. 3d 518, 525–26 (7th Cir. 2009) (applying Gross to public 

employees’ claims under 42 U.S.C. §1983 and characterizing Gross as holding that, ‘‘unless a 

statute (such as the Civil Rights Act of 1991) provides otherwise, demonstrating ‘‘but-for’’ causation is part of the plaintiff’s burden in all suits under federal law.’’). 25 Nauman v. Abbott Laboratories, CA 04–7199 (N.D. Ill. April 22, 2010) (observing that, in 

light of Gross, ‘‘plaintiffs have apparently withdrawn their theory that defendants could be 

found liable for ERISA violations if plaintiffs proved an intent to interfere with benefits partially 

motivated defendants’ implementation of the spin and attendant policies. The court agrees with 

defendants that the Gross line of cases stands for the proposition that, unless a statute such 

as Title VII of the Civil Rights Act specifically provides for liability in a ‘mixed motive’ case, 

the prohibited motivation must be the motivating factor, rather than simply a motivating factor.’’) (citation omitted). 26Williams v. District of Columbia, 646 F. Supp. 2d. 103, 109 (D.D.C. 2009) (‘‘Thus, under 

Gross, Dr. Jackson must prove by a preponderance of the evidence that she was ‘excessed’ [involContinued 

tion and retaliation in a wide range of other contexts as well. Although Gross binds 

lower courts only with respect to the ADEA, the Court clearly signaled its unwillingness to interpret other statutes in a manner consistent with the Price Waterhouse 

Court’s interpretation of identical language, thus destabilizing courts’ longstanding 

expectation that Congress incorporated the same language in different employment 

laws because it intended consistent interpretation of those laws.22 For this reason, 

lower courts have already begun to apply the Court’s new standard in Gross to 

claims under other laws, requiring the plaintiff not only to prove that discrimination 

or retaliation motivated the decision, but also to bear the burden of proving that 

such discrimination was the ‘‘but-for’’ cause of the decision. These include cases alleging job discrimination because of disability in violation of the Americans with 

Disabilities Act,23 job discrimination because of protected speech under 42 U.S.C. 

§ 1983,24 interference with pension rights in violation of ERISA,25 and job discrimination based on an employee’s jury service in violation of the Jury Systems Improvement Act.26 Other courts have speculated about the application of the Gross 
32 

untarily transferred to a less desirable position] ‘by reason of’ her jury service—that is, that jury 

service was the ‘but-for’ cause of the decision to excess her. The Court has no doubt that Dr. 

Jackson’s jury service was a motivating factor behind Ms. Warley’s acceptance of the loss of a 

guidance counselor, who otherwise is of particular assistance to a principal in dealing with behavior and other student problems. What is lacking is any evidence that her jury service was 

‘the ‘‘but-for’’ cause,’ of the decision. . .’’) (emphasis in original). 27See, e.g., Brown v. J. Kaz, Inc., 581 F.3d 175, 187 (3rd Cir. 2009) (Jordan, J., concurring) 

(‘‘[I]t seems quite possible that, given the broad language chosen by the Supreme Court in Gross, a critical re-examination of our [section 1981] precedent may be in order.’’); Crouch v. J.C. 

Penney Corp., Inc., 337 Fed. Appx. 399, 402 n.1 (in the context of an FMLA case, noting that 

‘‘[t]he Supreme Court’s recent opinion in Gross raises the question of whether the mixed-motive 

framework is available to plaintiffs alleging discrimination outside of the Title VII framework’’) 

(citation omitted). 28S. 1756, § 3 (‘‘[A] plaintiff establishes an unlawful employment practice if the plaintiff demonstrates by a preponderance of the evidence that . . . an impermissible factor under that Act 

or authority was a motivating factor for the practice complained of, even if other factors also 

motivated that practice.’’). 29The availability of limited attorney’s fees and costs encourages individuals to act as private 

attorneys general in the public interest to vindicate Congress’ commitment to equal employment 

opportunity. See City of Riverside v. Rivera, 477 U.S. 561, 575 (1986) (‘‘[A] civil rights plaintiff 

seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms. And, Congress has determined that ‘‘the public as a whole has an interest in the 

vindication of the rights conferred by the statutes enumerated in § 1988 over and above the 

value of a civil rights remedy to a particular plaintiff. . . .’’) (citations omitted). 30 Id. 31See Albermarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975) (identifying title VII’s ‘‘primary purpose’’ as ‘‘prophylactic’’ in removing barriers that have operated in the past to limit 

equal employment opportunity). 

standard to still other Federal laws providing important employment protections, 

such as 42 U.S.C. § 1981 and the Family and Medical Leave Act.27

S. 1756 WOULD REPLACE THE GROSS STANDARD WITH A UNIFORM STANDARD THAT FUR- THERS CONGRESS’ INTEREST IN PREVENTING AND DETERRING JOB DISCRIMINATION

AND RETALIATION

S. 1756—the ‘‘Protecting Older Workers Against Discrimination Act’’—would apply 

the standard adopted by Congress with respect to Title VII in the Civil Rights Act 

of 1991 to make clear that a plaintiff establishes an unlawful employment practice 

under the ADEA (and any other Federal employment antidiscrimination or 

antiretaliation statute) by proving that age (or other protected characteristic) was 

a motivating factor for an employment decision.28 The burden of proof then shifts 

to the employer to establish that it still would have taken the same action absent 

its discrimination. If the employer satisfies that burden, it will be liable only for declaratory relief, certain injunctive relief, and part of the plaintiff’s attorney’s fees 

and costs,29 and a court may not order the hiring, reinstatement, or promotion of 

the individual, nor the payment of back pay to the individual.30

As Congress recognized in enacting the Civil Rights Act of 1991, this approach— 

which shifts the burden of proof to the employer to limit remedies rather than to 

defeat liability entirely—best achieves antidiscrimination laws’ key purposes of preventing and deterring future discrimination by ensuring that employers proven to 

have engaged in discrimination cannot completely escape liability for their actions.31

Indeed, this approach enables Federal courts to retain judicial power to order correction of the wrongful conduct in the form of declaratory and certain injunctive relief. 

Once the plaintiff proves that the employer engaged in discrimination and thus violated Federal law, the employer may still substantially limit the available remedies, 

however, by showing that it would have made the same decision in a discriminationfree environment. 

Return to our earlier example of an older worker who is rejected for a job opportunity because of invidious age discrimination but who nonetheless would not have 

been hired for other nondiscriminatory reasons as well. S. 1756 would provide a tool 

for remedying such proven discrimination by empowering the Federal court to enjoin 

the employer from engaging in such discrimination in the future, thus serving the 

important deterrent functions of antidiscrimination law, while leaving employers 

free to make decisions based on ability or any other nondiscriminatory factor. 

In enacting the Civil Rights Act of 1991, Congress wisely clarified the causation 

rule to be applied to title VII and its prohibition of discrimination because of race, 

color, gender, religion, and national origin. S. 1756 would apply the same causation 

standard—proven workable under title VII after nearly two decades in operation— 

to other Federal laws that that prohibit job discrimination because of age and other 

protected characteristics. Moreover, ensuring that the standard for proving unlawful 

disparate treatment under the ADEA (and other antidiscrimination and 
33 

32Gross, 129 S. Ct. at 2348. Indeed, the Supreme Court has granted certiorari on two different 

occasions on this question whether heightened evidentiary requirements should be applied to 

mixed-motive cases: in Desert Palace (with respect to title VII) and in Gross (with respect to 

the ADEA)). Lower courts’ division on this issue has been driven largely by the questions created by Justice O’Connor’s concurring opinion in Price Waterhouse that suggested the importance of direct evidence to a plaintiff’s ability to bring a mixed-motive claim under antidiscrimination law. See Price Waterhouse, 490 U.S. at 276 (O’Connor, J., concurring) (‘‘In my view, in 

order to justify shifting the burden on the issue of causation to the defendant, a disparate treatment plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in the decision.’’). 33See Gross, 129 S. Ct. at 2353 (Stevens, J., dissenting) (‘‘[T]he Court is unconcerned that the 

question it chooses to answer has not been briefed by the parties or interested amici curiae. Its failure to consider the views of the United States, which represents the agency charged with 

administering the ADEA, is especially irresponsible.’’). 34S. 1756, § 3. 35 539 U.S. 90 (2003). 36 Id. at 99–100 (citation omitted); see also id. (noting also that ‘‘we have never questioned 

the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof 

beyond a reasonable doubt is required.’’). 37See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (holding that the plaintiff’s 

demonstration of a prima facie case under title VII shifts the burden of production to the defendant to articulate a legitimate nondiscriminatory reason for its action, although the burden of 

persuasion remains on the plaintiff to prove that discrimination was the real reason). 38Gross, 129 S. Ct. at 2349 n.2 (‘‘[T]he Court has not definitively decided whether the evidentiary framework of McDonnell Douglas utilized in title VII cases is appropriate in the ADEA 

context.’’) (citation omitted). 39S. 1756, § 3. 40See, e.g., Geiger v. Tower Automotive, 579 F.3d 614, 622 (6th Cir. 2009) (‘‘The Supreme 

Court [in Gross] expressly declined to decide whether the McDonnell Douglas test applies to the 

Continued 

antiretaliation laws) tracks that available under title VII—as S. 1756 would do—also 

offers great practical value by establishing a principle of uniformity. Such a consistent approach to causation, moreover, is especially helpful in cases involving 

claims under multiple statutes—such as an older African-American plaintiff who 

brings claims under both title VII and the ADEA—by ensuring that the jury will 

receive the same ‘‘motivating factor’’ instruction for all claims. 

S. 1756 ALSO CLARIFIES FEDERAL ANTIDISCRIMINATION LAW IN OTHER IMPORTANT WAYS

S. 1756 also addresses an important question left unanswered by the Supreme 

Court’s opinion in Gross. The Gross Court actually granted certiorari to decide an 

issue that had divided lower courts: whether a plaintiff must present direct evidence 

of age discrimination to obtain a mixed-motive instruction under the ADEA or 

whether instead circumstantial evidence could suffice.32 The Court’s ultimate decision in Gross, however, failed to address this question and instead decided a very 

different matter that significantly undercut protections for older workers without 

the benefit of briefing by the parties or any development by the lower courts.33

S. 1756 provides valuable clarification of the law by finally answering the question 

that the Gross Court failed to address, making clear that plaintiffs seeking to prove 

discrimination in violation of the ADEA (or other Federal antidiscrimination or 

antiretaliation law) ‘‘may rely on any type or form of admissible circumstantial or 

direct evidence’’ to prove their claims.34 This standard tracks that under title VII, 

as confirmed by a unanimous Supreme Court in Desert Palace, Inc. v. Costa.35 As 

the Court observed in that case, circumstantial evidence is of great utility in discrimination cases and elsewhere: ‘‘The reason for treating circumstantial evidence 

alike is both clear and deep rooted: ‘Circumstantial evidence is not only sufficient, 

but may also be more certain, satisfying, and persuasive than direct evidence.’ ’’ 36

Indeed, as a practical matter, direct evidence is quite rare in discrimination cases, 

as employers who engage in discrimination rarely confess their bias and instead 

work hard to hide it. By codifying the traditional legal rule permitting plaintiffs to 

rely on any available probative evidence—circumstantial as well as direct—to establish discrimination, S. 1756 again not only ensures uniformity in the standards to 

be applied to Federal antidiscrimination laws, but provides the standard that most 

effectively advances the purposes of such laws. 

Finally, S. 1756 addresses an additional ambiguity created by the Gross Court’s 

suggestion that the application of McDonnell Douglas 37 evidentiary framework outside the context of title VII remains an open question.38 By making clear that the 

Supreme Court’s familiar McDonnell Douglas framework remains available for disparate treatment claims under the ADEA and other Federal laws that prohibit job 

discrimination and retaliation,39 S. 1756 would eliminate any confusion in the lower 

courts on this issue.40
34 

ADEA.’’); Bell v. Raytheon, Co., 2009 WL 2365454 at *4 (N.D. Tex. 2009) (‘‘Recently, however, 

the United States Supreme Court issued a decision that questions whether the McDonnell Douglas approach should be applied in ADEA cases.’’); Holowecki v. Federal Express Corp., 644 F. 

Supp. 2d 338, 352 (S.D.N.Y. 2009) (observing that ‘‘whether Gross, by implication, also eliminates the McDonnell Douglas burden-shifting framework in ADEA cases was left open by the 

Court’’). 

In sum, S. 1756 rejects the Gross Court’s significant narrowing of workers’ rights 

under the ADEA, along with the decision’s potential to do the same for a wide range 

of other Federal employment laws. S. 1756 would thus replace the causation rule articulated by the Gross Court with the causation standard long in place under title 

VII that more effectively furthers Congress’ key interest in removing and deterring 

barriers to equal employment opportunity. 

The CHAIRMAN. Thank you, again, very much, Ms. Norton, for 

your testimony, and for being here. 

Now, we’ll turn to Ms. Aldrich. Ms. Aldrich, please proceed. 

STATEMENT OF GAIL ALDRICH, BOARD OF DIRECTORS, AARP, 

GENOA, NV 

Ms. ALDRICH. Good morning, Chairman Harkin and Senator 

Franken. My name is Gail Aldrich and I am an AARP board member. I am pleased to testify today on behalf of older workers. 

Older workers have long been an AARP priority, and roughly 

half of AARP members are employed either full- or part-time. We 

advocate for older workers in Congress and before the courts to 

combat age discrimination. 

In addition, AARP participates in the Senior Community Service 

Employment Program, annually recognizes best employers for 

workers over age 50 and organizes job fairs allowing employers and 

older workers to find one another. 

Before I became an AARP board member, I was a business executive responsible for applying Federal and State employment laws 

on a day-to-day basis. I previously served as chief membership officer for the Society for Human Resource Management, and I have 

been the top HR leader for three organizations. As a result, I am 

familiar with the challenges of addressing age and other discrimination claims by employees. 

I want to thank you and all the members of the Health, Education, Labor, and Pensions Committee for extending AARP this 

opportunity to speak on the issue of protecting older workers 

against age discrimination and about the proposed legislation to 

address the U.S. Supreme Court’s troubling decision last year in 

Gross v. FBL Financial Services. 

AARP thinks this decision is wrong and that the court’s interpretation of what Congress meant when it enacted the ADEA is inaccurate. Unless corrected, this decision will have devastating consequences for older workers. 

The decision could not have come at a worse time for older workers who are experiencing a level of unemployment and job insecurity not seen since the late 1940s. This decision takes away vital 

legal protection at the very time that the economy does not give 

older workers the luxury of ignoring discrimination and simply 

finding another job. 

The unemployment rate for people over 55 has more than doubled since the start of the recession, rising from 3.2 percent in December of 2007 to 6.9 percent in March of 2010. Once out of work, 
35 

older job seekers face a prolonged and often very discouraging job 

search. 

The average duration of unemployment has soared since the 

start of the recession and is substantially higher for older workers. 

Over half of job seekers over 55 are found among the long-term unemployed, those who have been out of work for 27 weeks or more. 

Once out of work, older persons are more likely than the younger 

unemployed to stop looking for work and drop out of the labor 

force. 

Older workers need effective age-discrimination laws when employers choose to displace them based on their age due to stereotypes rather than performance or other legitimate business reasons. 

And, clearly, unfounded stereotypes about older workers linger. 

AARP attorneys have battled employer perceptions that older 

workers have less energy and are less engaged despite AARP research showing that actually older workers are more engaged in 

their jobs and are more reliable. 

Some employers believe older workers are a poor investment for 

participation in training. However, AARP research shows that they 

are more loyal to their current employers and may be better bets 

in terms of training investment. 

And, finally, some employers have outdated notions that older 

workers are unable to adapt in industries like computers and information technology, this despite baby boomers’ enthusiastic embrace 

of virtually all forms of rapidly-changing IT products and services. 

Failing to allow older workers a fair chance to fight age discrimination is directly contrary to other Federal policies envisioning that 

Americans will work longer. For instance, the 1983 Social Security 

Amendments increased the age of eligibility for full Social Security 

benefits to be paid. Eliminating discrimination is critical if older 

persons are to delay their date of retirement. 

Working longer is good for society as earners typically pay more 

in taxes than retirees. It is also good for workers who have more 

years to save and less time in retirement to finance, and it is good 

for employers who retain skilled and experienced employees. 

AARP strongly endorses S. 1756. It would eliminate the secondclass status for victims of age bias that the court, in Gross, seemed 

to embrace. In the worst economic conditions in decades for older 

workers, Congress should act now to correct this misguided ruling. 

Thank you. 

[The prepared statement of Ms. Aldrich follows:] 

PREPARED STATEMENT OF GAIL ALDRICH

Good morning Chairman Harkin and Ranking Member Enzi. My name is Gail Aldrich. I am a member of the Board of Directors of AARP and I am pleased to testify 

today on behalf of AARP. Older workers have long been an AARP priority, and 

roughly half of all AARP members are employed either full- or half-time. On behalf 

of AARP’s members and all older workers, we advocate for older workers both in 

Congress and before the courts to combat age discrimination. AARP also participates in the Senior Community Service Employment Program (SCSEP) in which we 

match lower-income older jobseekers and employers with available positions. We 

also annually recognize ‘‘Best Employers’’ for workers over age 50, and partner with 

employers stating a commitment to welcome older persons into their workforce as 

part of an AARP ‘‘National Employer Team.’’ We also organize job fairs allowing employers and older workers to find one another. 
36 

1M. Bendick, L.E. Brown, and K. Wall, ‘‘No Foot in the Door: An Experimental Study of Employment Discrimination against Older Workers, Journal of Aging & Social Policy, 1999 10(4), 

1999, PP. 5–23; J. Lahey, Age, Women, and Hiring: An Experimental Study (Chestnut Hill, MA: 

Center for Retirement Research at Boston College, 2006). 2 AARP, Staying Ahead of the Curve 2007: The AARP Work and Career Study (Washington, 

DC: AARP, 2008). 3 U.S. Equal Employment Opportunity Commission, April 29, 2010 at http://www.eeoc.gov/ 

eeoc/statistics/enforcement/index.cfm. 

I want to preface my remarks by noting that before I became an AARP Board 

member, I was formerly a business executive, responsible for applying Federal and 

State employment laws on a day-to-day basis. Specifically, I previously served as 

chief membership officer for the Society for Human Resources Management 

(SHRM). During my career, I also have been the lead human resources professional 

for three major organizations: the California State Automobile Association, Exponent, an engineering and scientific consulting firm, and the Electric Power Research 

Institute. As a result, I am quite familiar with the challenges of addressing age or 

other discrimination claims by employees. 

I want to thank you and all members of the Health, Education, Labor, and Pensions Committee for extending AARP this opportunity to speak on the issue of protecting older workers against age discrimination, and in particular, the topic of proposed legislation to address the U.S. Supreme Court’s troubling decision last year 

in Gross v. FBL Financial Services, Inc., No. 08–441, 129 S. Ct. 2343 (June 18, 

2009). In that decision the Supreme Court, by the narrowest of margins, announced 

5–4 that older workers challenging unfair treatment based on their age, under the 

Age Discrimination in Employment Act (ADEA), have lesser protection than other 

workers protected by Federal law against illegal bias. Older workers, the Court said, 

have to meet a higher standard to prove discrimination than workers facing bias 

based on their sex, race or national origin. In effect, the Court said that Congress 

intended—when it passed the ADEA back in 1967—to place older workers in a second-class category of protection from unfair treatment at work. We at AARP think 

this decision is wrong, and that the court’s understanding of what Congress meant 

when it enacted the ADEA is inaccurate. Unless corrected, this decision will have 

devastating consequences for older workers—workers who represent a growing 

share of the U.S. workforce and are increasingly critical to the Nation’s economic 

recovery. 

The Supreme Court’s decision in Gross v. FBL could not have come at a worse 

time for older workers, who are experiencing a level of unemployment and job insecurity not seen since the late 1940s. Over the past 28 months (December 2007 

through March 2010), finding work has proven elusive for millions of younger and 

older workers as employers have laid off workers and scaled back hiring due to reduced demand. However, older workers face another barrier—age discrimination. 

Age discrimination is difficult to quantify, since few employers are likely to admit 

that they discriminate against older workers. Available research does highlight, 

however, the extent to which younger job applicants are preferred over older ones, 

who more often fail to make it through the applicant screening process.1 Older 

workers themselves see age discrimination on the job: 60 percent of 45–74-year-old 

respondents to a pre-recession AARP survey contended that based on what they 

have seen or experienced, workers face age discrimination in the workplace.2 That 

percentage could well be higher if those workers were asked about age discrimination today. More age discrimination charges were filed with the Equal Employment 

Opportunity Commission (EEOC) in fiscal year 2008 and fiscal year 2009 than at 

any time since the early 1990s, according to the latest EEOC data.3

One of the ways in which the Gross decision already has affected older workers 

is to make it impossible in some circumstances to bring age discrimination claims. 

Some courts have interpreted the Gross Court’s language to require proof that age 

bias was a ‘‘sole cause’’ of an unfair termination, or as in Jack Gross’ case, an unfair 

demotion. Thus in one recent case in Alabama, the plaintiff alleged both race and 

age discrimination. Culver v. Birmingham Bd. of Education, 2009 WL 2568325 

(N.D. Ala. August 17, 2009). Relying on Gross, the court ordered Mr. Culver to either abandon his age claim or his race discrimination claim because ‘‘Gross h[eld) 

for the first time that a plaintiff who invokes the ADEA has the burden of proving 

that the fact that he is over 40 years old was the only . . . reason for the alleged 

adverse employment action.’’ This was never the law before Gross, and it makes no 

sense now. Surely Congress meant for victims of age and other bias to bring claims 

on whatever grounds they can assemble proof to support a charge of discrimination. 

Not to choose between one of several grounds of illegal unfair treatment. Similarly, 

in a case in Pennsylvania, a Federal court recently relied on Gross to force a plain-
37 

tiff to choose between claims of age and sex discrimination. Wardlaw v. City of 

Philadelphia Streets Dep’t, 2009 WL 2461890 (E.D. Pa. Aug. 11, 2009). The court 

cited the plaintiffs allegations that she was treated less favorably because she was 

an ‘‘older female’’ to conclude that her age was not the ‘‘but-for’’ cause of the discrimination she complained of According to this court, ‘‘The Supreme Court held in 

Gross that a plaintiff can only prevail on an age-related employment discrimination 

claim if that is the only reason for discrimination.’’ Once again, AARP submits this 

makes no sense and fundamentally misunderstands the ADEA. We cannot wait for 

these sorts of rulings to spread. This must end. 

Thus, AARP strongly endorses the Protecting Older Workers Against Discrimination Act or ‘‘POWADA’’, S. 1756, of which many members of this committee are a 

sponsor. POWADA would correct the wrong turn in the law that the Gross decision 

represents. It would eliminate the second-class status for victims of age bias that 

the Court in Gross seemed to embrace. It would tell lower courts not to treat older 

workers who face discrimination law differently, in key respects, than they treat 

workers who face bias on grounds of race or sex under Title VII of the 1964 Civil 

Rights Act. Congress, after all, consistently has followed title VII as the model for 

other employment discrimination laws, like the ADEA and the Americans with Disabilities Act. 

Let me say a few more words about the impact on older workers of this Court 

decision. It takes away a vital legal protection at the very time that the economy 

does not give older workers the luxury of ignoring discrimination and simply finding 

another job. 

The unemployment rate for persons aged 55 and over has more than doubled 

since the start of the recession, rising from 3.2 percent in December 2007 to 6.9 percent in March 2010. Although the unemployment rate for this age group has traditionally been and remains lower than that for younger persons, the increase in unemployment for older persons has been greater, thus significantly narrowing the age 

gap in unemployment. 

Once out of work, older job seekers face a prolonged and often discouraging job 

search. Newspapers and news programs have profiled many older jobs seekers who 

report sending out hundreds of resumes and receiving few if any responses from employers. Statistics back up the anecdotes of the job-seeking frustrations of older 

workers. Average duration of unemployment has soared since the start of the recession and is substantially higher for older job seekers than it is for their younger 

counterparts—38.4 weeks verse 31.1 weeks in March—a difference of nearly 2 

months. In December 2007, average duration of unemployment for older persons 

was 20.2 weeks. 

Older workers also are more likely to be found among the long-term unemployed—those who have been out of work for 27 or more weeks. Just over half (50.6 

percent) of job seekers aged 55 and over and 42 percent of those under age 55 could 

be classified as ‘‘long-term’’ unemployed in March. Once out of work, older persons 

are more likely than the younger unemployed to stop looking for work and drop out 

of the labor force. If they do find work, they are more likely than younger job finders 

to earn less than they did in their previous employment. 

Today, older workers are more likely than younger workers to be displaced. As 

of December 2009, 78 percent of unemployed workers aged 55 and over were out 

of work because they lost their jobs or because a temporary job ended. This compares to 65 percent of the unemployed under age 55. Job loss has risen substantially 

for both age groups since the start of the recession 2 years earlier and far more than 

it had in the 2 years before December 2007. (See Table 1.) 

Table I.—Percent of Workers Giving Job Loss or End of Temporary Job as the Reason They Were 

Unemployed, by Age, December 2005, December 2007, and December 2009 

Age and Reason for Unemployment December 2005 December 2007 December 2009 

Aged 55+ 

Job loser/on layoff .................................................................... 21.0 23.8 14.0 

Other job loser ......................................................................... 33.8 36.8 55.8 

Temporary job ended ............................................................... 8.3 8.2 8.6 

Total ................................................................................ 63.1 68.8 78.4 

Under Age 55 

Job loser/on layoff .................................................................... 13.7 13.2 11.0 

Other job loser ......................................................................... 25.9 26.9 43.9 

Temporary job ended ............................................................... 11.0 12.5 9.8 
38 

4 R.W. Johnson and C. Mommaerts, Social Security Retirement Benefit Awards Hit All-Time 

High in 2009, Fact Sheet on Retirement Policy (Washington, DC: Urban Institute, 2010). 5 EBR1, ‘‘The 2010 Retirement Confidence Survey: Confidence Stabilizing, but Preparations 

Continue to Erode,’’ EBRI Issue Brief, No. 340, March 2010 at www.ebri.org/pdf/briefspdf/ 

EBRIlIBl03-2010lNo340lRCS.pdf. 

Table I.—Percent of Workers Giving Job Loss or End of Temporary Job as the Reason They Were 

Unemployed, by Age, December 2005, December 2007, and December 2009—Continued 

Age and Reason for Unemployment December 2005 December 2007 December 2009 

Total ................................................................................ 50.6 52.6 64.7 

Source: AARP PPI calculations of data in the Current Population Survey. 

Hence, older workers need effective age discrimination laws when employers 

choose to displace them based on their age, due to stereotypes or other forms of bias, 

rather than their performance or other legitimate business reasons. And there can 

be no doubt that unfounded stereotypes about older workers linger. In cases in 

which AARP has played a role over the last decade, AARP attorneys have battled 

employer perceptions that older workers have less energy and are less engaged, despite AARP research data showing that on the contrary, older workers are more engaged in their jobs, as well as more reliable (i.e., less likely to engage in absenteeism). Some employers also still believe older workers are a poor investment and are 

disinclined to include them in training programs. Again, AARP research shows that 

older workers are more loyal to (i.e., less likely to leave) their current employers, 

and thereby may be better bets in terms of employer investments in training. And 

finally, some employers have outdated notions of older workers as incapable of 

adapting in industries—such as computers and information technology—requiring 

acquisition of new skills, despite Baby Boomers’ enthusiastic embrace of virtually 

all forms of rapidly changing IT products and services. 

Research also shows why failing to protect older workers from discriminatory exclusion from employment is not only unjust but also counterproductive for a nation 

facing enormous challenges supporting a growing aging population. That is, there 

is growing evidence that older persons need to work and that they would benefit 

financially from working longer: millions lack pension coverage, have not saved 

much for retirement, have lost housing equity, and have seen their investment portfolios plummet. Many have exhausted their savings and tapped their IRA and 

401(k) accounts while unemployed. Some workers seem to be opting for Social Security earlier than they might have otherwise. The Urban Institute (UI), for example, 

points to a surge in Social Security benefit awards at age 62 in 2009. To a large 

extent, this is a result of a sharp rise in the aged 62 population. However, the UI 

reports that the benefit take-up rate was substantially higher in 2009 than in recent 

years, which they say is likely due to an inability to find work.4 One out of four 

workers in the 2010 Retirement Confidence Survey maintains that their expected 

retirement age has increased in the past year, most commonly because of the poor 

economy (mentioned by 29 percent) and a change in employment situation (mentioned by 22 percent).5

Failing to allow older workers a fair chance to fight age discrimination is directly 

contrary to other Federal policies envisioning that Americans will work longer. Public policies such as the 1983 Social Security amendments that increased the age of 

eligibility for full benefits and the benefits for delaying retirement, as well as legislation in 2000 that eliminated the Social Security earnings test for workers above 

the normal retirement age, were designed to encourage longer work lives. Eliminating discrimination is critical if older persons are to push back the date of retirement. 

Working longer is good for society as earners typically pay more in taxes than retirees and contribute to the productive output of the economy. It is also good for 

workers, who have more years to save and less time in retirement to finance. And 

it is good for employers who retain skilled and experienced employees. This last advantage may be less clear in a deep recession; however, the economy will recover 

eventually—we hope sooner rather than later! With the impending retirement of the 

boomers, many experts predict sizable labor and skills shortages in many industries. 

In closing, I want to emphasize AARP’s commitment to vigorous enforcement of 

the ADEA and other civil rights law as one part of a broad-based strategy to serve 

the needs and interests of older workers consistent with the overall public interest. 

We recognize that prudent employers, indeed we hope most employers, follow the 

law and respect the rights of older workers. We also believe that the ADEA and 

other civil rights law must be preserved so that they act as a real deterrent, and 
39 

if need be, a tool for redress, when employers are tempted to discriminate or actually violate the rights of older workers. Unless POWADA returns the law to the 

state of affairs that existed before the Gross decision, legal advocates will have a 

very hard time defending older workers who encounter workplace bias. And we also 

urge Congress to make sure that POWADA protects older workers from the expansion of the reasoning in Gross to other employment laws. For instance, we are aware 

of decisions restricting application of other laws important to older workers—such 

as the ADA and ERISA, see Serwatka v. Rockwell Automation, Inc.,—F.3d—, 2010 

WL 137343 (7th Cir., January 15, 2010) (NO. 08-4010)(ADA) and Nauman v. Abbott 

Laboratories, CA 04-7199 (N.D. Ill. April 22, 2010)—based on the flawed logic of the 

narrow Supreme Court majority in Gross. 

We believe the Protecting Older Workers Against Discrimination Act (POWADA), 

S. 1756, is a vital and reasonable effort to restore the law to the state of play prior 

to the Gross decision. At that time, employers were able to manage their proof obligations in ADEA cases. Virtually no court in the U.S. believed age had to be the 

only reason for an employer terminating an older worker for the worker to have a 

claim under the ADEA. But now, based on Gross, some courts have been embracing 

this new and onerous interpretation. And the same view has been applied to other 

civil rights laws, to the detriment of older workers and other discrimination victims. 

This is not right. In the worst economic conditions in decades for older workers, 

Congress should act now to correct the misguided ruling in the Gross decision and 

pass POWADA. 

Thank you. 

The CHAIRMAN. Thank you very much, Ms. Aldrich. 

Mr. DREIBAND. 

STATEMENT OF ERIC DREIBAND, PARTNER, JONES DAY, 

WASHINGTON, DC 

Mr. DREIBAND. Good morning, Chairman Harkin and Senator 

Franken. My name is 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 protection for many individuals. The Gross decision, 

however, does not eliminate protections 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 action or same decision defense 

and it therefore deprives entities that engage in age discrimination 

of this defense. For this reason, since the Gross decision issue, 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, Ninth, Tenth and Eleventh Circuits have issued decisions in favor of discrimination plaintiffs and 

relied upon the Gross case to do so. 

Second, the bill will restore the so-called same-action defense 

eliminated by the Supreme Court in the Gross case. Discrimination 

victims, under the bill, may prove that a protected trait, such as 
40 

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 these same-action cases. Though 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 back pay, no front pay, no damages, no promotion, 

nothing. 

For example, Mr. Gross’ case is going to be retried after the Supreme Court’s decision and he will receive nothing even if he 

proves that age motivated his employer to demote him if his employer establishes its same-action defense. 

Now, the bill may enable some lawyers to earn more money, but 

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

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

open up a Pandora’s Box of litigation. It 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. 

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 in 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. Note in this regard that it took 38 years of litigation before the Supreme Court of 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 it solely to the Age Discrimination in Employment Act, which is the only statute at issue in Mr. Gross’ case, or, 

at a minimum, listing the laws that Congress intends to amend. 

The recently enacted Lilly Ledbetter Fair Pay Act of 2009 specifically identified the laws Congress intended to amend and Congress 

can do the same here. 

Thank you and I look forward to your questions. 

[The prepared statement of Mr. Dreiband follows:] 

PREPARED STATEMENT OF ERIC S. DREIBAND

I. INTRODUCTION

Good morning Chairman Harkin, Ranking Member Enzi, and members of the 

committee. I thank you and the entire committee for affording me the privilege of 

testifying today. My name is Eric Dreiband, and I am a partner at the law firm 

Jones Day here in Washington, DC. 

I previously served as the General Counsel of the United States Equal Employment Opportunity Commission (‘‘EEOC’’ or ‘‘Commission’’). As EEOC General Counsel, I directed the Federal Government’s litigation of the Federal employment discrimination laws. I also managed approximately 300 attorneys and a national litigation docket of approximately 500 cases. 

During my tenure at the EEOC, the Commission continued its tradition of aggressive enforcement. We obtained relief for thousands of discrimination victims, and 

the EEOC’s litigation program recovered more money for discrimination victims 
41 

1Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. 2See 110 CONG. REC. 2597 (1964) (remarks of Representative Celler (‘‘[Congress] do[es] not 

have sufficient information, concerning discrimination based on age, to act intelligently. I believe 

. . . it would be rather brash to rush into this situation without having sufficient information 

to legislate intelligently upon this very vexatious and difficult problem.’’). 3See H.R. Rep. No. 88–914, pt.1, at 15 (1963) (‘‘Sec. 718. The Secretary of Labor shall make 

a full and complete study of the factors which might tend to result in discrimination in employment because of age and of the consequences of such discrimination on the economy and individuals affected.’’). 

than at any other time in the Commission’s history. The Commission settled thousands of charges of discrimination, filed hundreds of lawsuits every year, and recovered, literally, hundreds of millions of dollars for discrimination victims. 

I am here today, at your invitation, to speak about the proposed Protecting Older 

Workers Against Discrimination Act, S. 1756. I do not believe that the bill would advance the public interest. 

First, the bill incorrectly asserts that the decision by the Supreme Court of the 

United States in Gross v. FBL Financial Services, Inc. eliminated ‘‘protection for 

many individuals whom Congress intended to protect.’’ In fact, the Gross decision 

will not eliminate protections at all. Before the Gross 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 additional reasons unrelated to age. The Court in the Gross case eliminated this so-called ‘‘same decision’’ or ‘‘same action’’ defense. For this reason, since 

the Gross decision issued, the Federal courts have repeatedly ruled in favor of age 

discrimination plaintiffs and against defendants. 

Second, the bill as proposed will enable age discrimination and other victims to 

prove a violation if an impermissible factor ‘‘was a motivating factor for the practice 

complained of, even if other factors also motivated that practice.’’ It will also restore 

the ‘‘same action’’ defense and may render the ‘‘motivating factor’’ standard nearly 

irrelevant. The proposed bill would deprive discrimination victims of any meaningful 

remedy in ‘‘same action’’ cases. Their lawyers may receive payment for fees ‘‘demonstrated to be directly attributable only to the pursuit of ’’ a ‘‘motivating factor’’ 

claim. But the alleged victim will get nothing—no job, no money, no promotion. Mr. 

Gross, for example, will receive nothing if he proves age motivated his employer to 

demote him and his employer establishes its same action defense. His lawyer, 

though, will receive some money. As a result, if enacted in its current form, the bill 

may enhance protections for lawyers, but do nothing for individuals. 

Third, the bill is overly broad, vague, and ambiguous. It purports to apply to ‘‘any 

Federal law forbidding employment discrimination,’’ and several other laws, but the 

bill does not identify which laws the bill will amend. As a result, discrimination victims, unions, employers, and others will unnecessarily spend years or decades, and 

untold amounts of money, fighting in court over whether the bill changes particular 

laws. This will have no positive consequences for anyone. Congress can fix this 

vagueness problem rather easily by amending the bill to apply solely to the Age Discrimination in Employment Act—the only statute at issue in the Gross case—or at 

a minimum listing the laws that Congress intends it to apply. 

II. BACKGROUND

A. Age Discrimination in Employment Act of 1967 

Congress enacted the Civil Rights Act of 1964 to make unlawful race and other 

forms of discrimination in employment and other areas. Title VII of that act prohibits employment discrimination based on race, color, religion, sex and national origin).1 Title VII also prohibits discrimination against any individual who has opposed 

unlawful discrimination or made a charge, testified, assisted, or participated in any 

manner in an investigation, proceeding, or title VII hearing. 

Title VII also created the EEOC. EEOC enforcement authority over title VII is 

plenary, with the exception of litigation against public employers. EEOC also enforces several other Federal employment discrimination laws, including the employment provisions of Americans with Disabilities Act, the Equal Pay Act, and the Age 

Discrimination in Employment Act (‘‘ADEA’’). 

During the debate that led to title VII’s enactment, Congress considered whether 

or not to include age as a protected class under title VII. Congress determined that 

it did not have sufficient information about age discrimination to legislate on the 

issue.2 So, Congress directed the Secretary of Labor to study the issue and to report 

to Congress.3

Then-Secretary of Labor W. Willard Wirtz studied age discrimination in employment, and on June 30, 1965, he issued his report to the Congress. The report be-
42 

4Secretary of Labor, The Older American Worker: Age Discrimination in Employment 1 

(1965). 5 Id. at 2, 5 (emphasis in original). See also Smith v. City of Jackson, 544 U.S. 228, 254–55 

(2005) (discussing Wirtz Report). 6 Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 to 634. 7 Id. at § 623(a). 8 411 U.S. 792 (1973). 

9 Id. at 802. 10 Id. 11 Id. at 804. 12 490 U.S. 228 (1989). 13 Id. at 233–34. 

came known as the ‘‘Wirtz Report.’’ 4 The Wirtz Report found that little age discrimination arose from dislike or intolerance of older people, but that arbitrary age discrimination was then occurring in the United States. Secretary Wirtz concluded that 

there was substantial evidence of arbitrary age discrimination, which he defined as 

‘‘assumptions about the effect of age on [an employee’s] ability to do a job when there 

is in fact no basis for these assumptions,’’ particularly in the hiring context.5

Secretary Wirtz suggested that Congress deal with the problem of arbitrary age 

discrimination by enacting a bill called ‘‘The Age Discrimination in Employment Act 

of 1967.’’ President Lyndon Johnson and majorities of both Houses of Congress 

agreed, and President Johnson signed the bill into law at the end of 1967. 

The ADEA prohibits employment discrimination based on age.6 Specifically, the 

ADEA makes it unlawful for employers, unions, and others to: 

(1) fail or refuse to hire or to discharge any individual or otherwise discriminate 

against any individual with respect to his compensation, terms, conditions, or 

privileges of employment, because of such individual’s age; 

(2) limit, segregate, or classify his employees in any way which would deprive 

or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or 

(3) reduce the wage rate of any employee in order to comply with the ADEA.7

The ADEA also contains protections against retaliation. The ADEA has never had 

any mixed motive provision. 

B. The Mixed Motive Doctrine 

There are two general ways to prove individual title VII claims. The Supreme 

Court established the first in 1973 when it decided McDonnell Douglas Corporation 

v. Green.8 In that case, an African-American employee of a manufacturing company 

alleged that his discharge and his employer’s general hiring practices were racially 

motivated and violated title VII. The Supreme Court in McDonnell Douglas clarified 

the proof structure that applies to a private, non-class action title VII case. The 

Court explained that a plaintiff in a title VII case must first establish a ‘‘prima 

facie’’ case of discrimination by proving that: 

(i) the plaintiff is a member of a protected class; 

(ii) the plaintiff applied and was qualified for a job for which the employer was 

seeking applicants; 

(iii) despite the plaintiff’s qualifications, the employer rejected the plaintiff; and 

(iv) after the employer rejected the plaintiff, the position remained open and the 

employer continued to seek applicants from persons of the plaintiff’s qualifications.9

If the plaintiff establishes a prima facie case of discrimination, the burden shifts 

to the defendant to articulate ‘‘some legitimate, nondiscriminatory reason for the 

employee’s rejection.’’ 10 The plaintiff then must be ‘‘afforded a fair opportunity to 

show that [the employer’s] stated reason for [plaintiffs] rejection was in fact pretext.’’ 11

In 1989, the Supreme Court established another way for a title VII plaintiff to 

prove a title VII violation. In Price Waterhouse v. Hopkins, the Court considered the 

case of Ann Hopkins.12 Ms. Hopkins was a female senior manager at an accounting 

firm. She alleged that the firm denied her a promotion because of her sex. Ms. Hopkins was very accomplished and competent. The Company cited her lack of interpersonal skills and abrasiveness as the reasons for its decision not to promote her.13

The Supreme Court in Price Waterhouse explained that a plaintiff may prove a 

title VII violation when a challenged decision is the product of both permissible and 

impermissible considerations. When a title VII plaintiff proves that an illegitimate 

factor such as race or sex plays a motivating or substantial part in the employer’s 

decision, the Court decided, the burden of persuasion shifts to the defendant to show 

by a preponderance of evidence that it would have made the same decision even in 
43 

14 Id. at 258. 15 Id. at 276 (O’Connor, J., concurring). 16Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989). 17 42 U.S.C. § 2000e-2(m). 18 18 42 U.S.C. § 2000e-5(g)(2)(A). 19See, e.g., Pub.L. 102–166, Title I, § 115, Nov. 21, 1991, 105 Stat. 1079 (eliminating tolling 

period). 20 530 U.S. 133 (2000). 21 Id. at 141. 22 Id. at 142. 23 Id. at 137. 24 Id. at 146–48. 

the absence of the illegitimate factor.14 The Court also determined that to shift the 

burden of persuasion to the employer, the employee must present ‘‘direct evidence 

that an illegitimate criterion was a substantial factor in the [employment] decision.’’ 15

The ‘‘same decision’’ defense created by Price Waterhouse was a complete defense 

to liability. The Court explained: 

[W]hen a plaintiff in a title VII case proves that her gender played a motivating 

part in an employment decision, the defendant may avoid a finding of liability 

only by proving by a preponderance of the evidence that it would have made 

the same decision even if it had not taken the plaintiff’s gender into account.16

Two years after the Court decided Price Waterhouse, Congress enacted the Civil 

Rights Act of 1991. As part of the 1991 Act amendments, Congress codified the 

mixed motive concept first described by Price Waterhouse. Congress added the following to title VII: 

Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.17

The Civil Rights Act of 1991 modified the Price Waterhouse ‘‘same action’’ defense 

slightly, as follows: 

On a claim in which an individual proves a violation under section 2000e-2(m) 

of this title and a respondent demonstrates that the respondent would have 

taken the same action in the absence of the impermissible motivating factor, the 

court— 

(i) may grant declaratory relief, injunctive relief (except as provided in 

clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; 

and 

(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph 

(A).18

The Civil Rights Act of 1991 also amended the ADEA.19 It did not add any ‘‘motivating factor’’ claim or ‘‘same action’’ defense to the ADEA, nor has Congress ever 

done so. 

Nine years later, in 2000, the Supreme Court decided Reeves v. Sanderson Plumbing Products, Inc. and applied the McDonnell Douglas burden shifting framework 

to the ADEA.20 In Reeves, a discharged employee alleged that his employer unlawfully fired him because of his age. The Court recognized that ‘‘Courts of Appeals . . . 

have employed some variant of the framework articulated in McDonnell Douglas to 

analyze ADEA claims that are based principally on circumstantial evidence.’’ 21 The 

Court assumed that the McDonnell Douglas framework applies to ADEA claims 22

and addressed ‘‘whether a defendant is entitled to judgment as a matter of law 

when the plaintiff’s case consists exclusively of a prima facie case of discrimination 

and sufficient evidence for the trier of fact to disbelieve the defendant’s legitimate, 

nondiscriminatory explanation for its action.’’ 23 The Court concluded that the employee presented sufficient evidence to show that the defendant violated the 

ADEA.24

C. Gross v. FBL Financial Services, Inc. 

Jack Gross sued his employer, FBL Financial Group, Inc. for alleged ADEA violations. Mr. Gross alleged that his employer violated the ADEA when it demoted him 

in January 2003 because of his age. 

Mr. Gross began his employment with the Company in 1971, and he received several promotions over the years. By 2003, he held the position of claims administra-
44 

25 Eighth Circuit Model Jury Instruction 5.11A (applying to determining factor cases); Gross 

v. FBL Financial Services, Inc. No. 4:04-CV-60209, 2006 WL 6151670 (S.D. Iowa June 23, 2006), 

Def. Proposed Jury Instr. No. 10, filed Oct. 30, 2005. 26 Eighth Circuit Model Jury Instruction 5.11B (applying to motivating factor/same decision 

cases); Gross, 2006 WL 6151670, Pl. Proposed Jury Inst. p. 16, filed Oct. 25, 2005. 27 Id. Final Jury Instr. No. 11. 28 Id. at *1–14. 

tion director. In that year, when he was 54 years old, the Company reassigned Mr. 

Gross to the position of claims project coordinator. At that same time, FBL transferred many of his job responsibilities to a newly created position—claims administration manager. The Company gave that position to Lisa Kneeskern, a former subordinate of Mr. Gross. Ms. Kneeskern was also younger than Mr. Gross. She was 

then in her early forties. Mr. Gross and Ms. Kneeskern received the same pay, but 

Mr. Gross considered the reassignment a demotion because FBL reallocated his 

former job responsibilities to Ms. Kneeskern. 

Mr. Gross sued FBL in 2004. Before the case went to the trial, counsel for both 

sides asked the trial judge to instruct the jury about the burden of proof. FBL’s lawyer requested that the judge tell the jury the following: 

Your verdict must be for Plaintiff if both of the following elements have been 

proven by the preponderance of the evidence: 

(1) Defendant demoted Plaintiff to claims project coordinator effective January 1, 2003; and 

(2) Plaintiffs age was the determining factor in Defendant’s decision. 

If either of the above elements has not been proven by the preponderance of 

the evidence, your verdict must be for Defendant. 

‘‘Age was a determining factor’’ only if Defendant would not have made the employment decision concerning plaintiff but for his age; it does not require that 

age was the only reason for the decision made by Defendant.25

Mr. Gross’ attorney asked the trial judge to tell the jury the following: 

Your verdict must be for plaintiff on plaintiffs age discrimination claim if all 

the following elements have been proved by the preponderance of the evidence: 

First, defendant demoted plaintiff; and 

Second, plaintiffs age was a motivating factor in defendant’s decision to demote plaintiff. 

However, your verdict must be for defendant if any of the above elements has 

not been proved by a preponderance of the evidence, or if it has been proved 

by the preponderance of the evidence that defendant would have demoted plaintiff regardless of his age. You may find age was a motivating factor if you find 

defendant’s stated reasons for its decision are not the real reasons, but are a 

pretext to hide age discrimination.26

The trial judge generally agreed with Mr. Gross’ lawyer and told the jury the following: 

Your verdict must be for the plaintiff if all the following elements have been 

proved by a preponderance of the evidence: 

First, defendant demoted plaintiff to claims project coordinator effective January 1, 2003; and 

Second, plaintiff’s age was a motivating factor in defendant’s decision to demote 

plaintiff. 

However, your verdict must be for the defendant if any of the above elements 

has not been proved by the preponderance of the evidence, or if it has been 

proved by the preponderance of the evidence that defendant would have demoted plaintiff regardless of his age. You may find age was a motivating factor 

if you find defendant’s stated reasons for its decision are not the real reasons, 

but are a pretext to hide age discrimination.27

The jury found in favor of Mr. Gross and awarded him $46,945. After the trial, 

FBL asked the trial judge to overturn the jury’s verdict. The court declined.28 The 

court applied a McDonnell Douglas analysis and upheld the jury’s verdict. The court 

found that Mr. Gross had established a prima facie case of age discrimination, that 

FBL had presented a legitimate, nondiscriminatory reason for the change in Mr. 

Gross’ responsibilities, and that the jury nonetheless could have reasonably found 

that FBL’s stated reason for the demotion was not credible. 

FBL appealed to the United States Court of Appeals for the Eighth Circuit. The 

Eighth Circuit reversed and remanded for a new trial because it found that a mixed 

motive jury instruction was not proper. The court applied Price Waterhouse and held 
45 

29 Id. at 359–60. 30Gross v. FBL Financial Services, Inc., 526 F.3d 356 (2008). 31Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009). 32Gross, 129 S.Ct. at 2352. 33Gross, 129 S.Ct. at 2348. 34 Id. at 2348–49. 35 Id. at 2350–51 (quotations omitted and emphasis added). 36 Id. 37 Id. at 2352 (citing Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1179 (2d Cir. 1992) (referring to ‘‘the murky water of shifting burdens in discrimination cases’’); Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 661 (7th Cir. 1991) (en banc) (Flaum, J., dissenting) (‘‘The 

difficulty judges have in formulating [burden-shifting] instructions and jurors have in applying 

them can be seen in the fact that jury verdicts in ADEA cases are supplanted by judgments 

notwithstanding the verdict or reversed on appeal more frequently than jury verdicts generally’’); and Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 47, (1977) (reevaluating 

precedent that was subject to criticism and ‘‘continuing controversy and confusion’’); and Payne v. Tennessee, 501 U.S. 808, 839–844 (1991) (Souter, J., concurring)). 

that a mixed motive jury instruction was improper because Mr. Gross did not 

present ‘‘direct evidence’’ of age discrimination.29 According to the court, the trial 

judge should have instructed the jury consistent with the McDonnell Douglas framework.30

The Supreme Court granted certiorari and vacated and remanded the Eighth Circuit’s opinion. The Court decided that a plaintiff who brings an intentional age discrimination claim must prove that age was the ‘‘but-for’’ cause of the challenged adverse employment action.31 The Court determined that the burden of persuasion 

does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.32

The Court identified the issue as ‘‘whether the burden of persuasion ever shifts 

to the party defending an alleged mixed-motives discrimination claim brought under 

the ADEA.’’ 33

The Court held that the burden does not shift. Title VII explicitly sets forth the 

motivating factor and same action burdens, but, the Court explained, the ADEA 

says nothing about any motivating factor or same action defense. The Court observed that when Congress amended title VII in 1991 and added the motivating factor and same action provisions, it did not add those provisions to the ADEA, even 

though it made other changes to the ADEA.34

The Court observed that the ADEA makes it ‘‘ ‘unlawful for an employer . . . to fail 

or refuse to hire or to discharge any individual or otherwise discriminate against 

any individual with respect to his compensation, terms, conditions, or privileges of 

employment, because of such individual’s age.’ ’’ 35 The Court then applied what it 

said was the ordinary meaning of ‘‘because of,’’ and reasoned that the ADEA’s ‘‘because of ’’ standard requires a plaintiff who alleges intentional age discrimination to 

‘‘prove that age was the ‘but-for’ cause of the employer’s adverse action.’’ 36

The Court rejected the contention that Price Waterhouse’s ‘‘motivating factor,’’ 

‘‘same decision,’’ and ‘‘direct evidence’’ standards should govern ADEA cases. The 

Court observed that Price Waterhouse’s burden-shifting framework is ‘‘difficult to 

apply’’ and that the ‘‘problems’’ associated with Price Waterhouse’s ‘‘application have 

eliminated any perceivable benefit to extending its framework to ADEA claims.’’ 37

III. THE PROTECTING OLDER WORKERS AGAINST DISCRIMINATION ACT

If enacted in its current form, the Protecting Older Workers Against Discrimination Act will do nothing to protect workers from age discrimination, other forms of 

discrimination, retaliation, or any other unlawful conduct. Individual employees who 

prove an unlawful motive will win nothing when the defendant establishes the same 

action defense. They will ‘‘win’’ a moral victory, perhaps, but nothing else. 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. Furthermore, the bill will hurt victims, unions, employers, and others because it will force 

these individuals and entities to spend years or decades fighting in court about 

whether the bill applies to what the bill vaguely describes as various laws that 

‘‘forbid[] employment discrimination.’’ The bill will thus help empty the bank accounts of plaintiffs and defendants alike, and it will unnecessarily consume the limited resources of the Federal courts. 

Section 2—Findings and Purpose. The bill asserts that the Gross decision ‘‘has 

narrowed the scope’’ of the ADEA’s protection and that Gross ‘‘rel[ied] on misconcep-
46 

38Protecting Older Workers Against Discrimination Act, S. 1756, 111th Cong. § 2(a)(4)-(5) 

(2009). 39 29 U.S.C. § 623; Gross, 129 S. Ct. at 2350–51; Secretary of Labor, The Older American 

Worker: Age Discrimination in Employment 21–22 (1965). 40 29 U.S.C. § 623(a)(1)-(2), (b), (c)(1)-(2). 41See Gross, 129 S. Ct. at 2350-51 & n.5. 42Protecting Older Workers Against Discrimination Act, S. 1756, 111th Cong. § 2(a)(6) (2009). 43Federal courts of appeal have also applied Gross in favor of plaintiffs alleging discrimination 

under other employment statutes. See, e.g., Serafinn v. Local 722, Int 1 Bhd. Of Teamsters, 597 

F.3d 908, 914–15 (7th Cir. 2010) (Labor Management Reporting and Disclosure Act; citing Gross 

to reject defendant’s challenge to jury instructions); Fleming v. Yuma Regl Med. Ctr., 587 F.3d 

938, 943–44 (9th Cir. 2009) (Rehabilitation Act; citing Gross to conclude that § 504 covers independent contractors). 44 No. 08-6071, 2010 WL 826879, at *2-*3 (2d Cir. Mar. 11, 2010). 45 597 F.3d 1201, 1202 (11th Cir. 2010). 46 Id. at 1204. 47 585 F.3d 441, 447 n.2 (1st Cir. 2009). 48 Id. at 449. 49 581 F.3d 684, 688 (8th Cir. 2009). 

tions about the [ADEA].’’ 38 These assertions are incorrect. Nothing in the text or 

legislative history of the ADEA authorizes mixed-motive discrimination claims.39

The ADEA prohibits employment discrimination ‘‘because of’’ an individual’s age.40

And, because Gross actually strips away the same action defense, Gross deprives entities that engage in age discrimination from a defense previously thought available.41

The bill also asserts that unless Congress takes ‘‘action,’’ age discrimination victims will ‘‘find it unduly difficult to prove their claims and victims of other types 

of discrimination may find their rights and remedies uncertain and unpredictable.’’ 42 This assertion is also incorrect. The ‘‘but for’’ causation standard does not 

render discrimination victims helpless, nor does that standard mean that victims 

will lose their cases. 

For example, in the Gross case itself, the trial judge applied the McDonnell Douglas standards after the trial, overruled the defendant’s request the court overrule 

the jury, and sustained the verdict. Moreover, since the Gross decision issued, the 

Federal courts have repeatedly ruled in favor of age discrimination plaintiffs.43 Consider: 

• In Hrisinko v. New York City Department of Education, decided 2 months ago, 

the United States Court of Appeals for the Second Circuit reversed the district 

court’s grant of summary judgment and ruled in favor of an age discrimination 

plaintiff. The court noted that the plaintiff ‘‘faced changes in the terms and conditions of her employment that rise to the level of an adverse employment action,’’ 

and therefore she ‘‘has set forth a prima facie case of age discrimination [under the 

McDonnell Douglas framework].’’ 44

• In Mora v. Jackson Memorial Foundation, Inc., also decided this year, the 

United States Court of Appeals for the Eleventh Circuit observed that Gross established that ‘‘no ‘same decision’ affirmative defense can exist.’’ The court reversed the 

district court’s grant of summary judgment in favor of the employer and instead 

ruled in the plaintiff’s favor.45 The court concluded that ‘‘a reasonable juror could 

accept that [the employer] made the discriminatory-sounding remarks and that the 

remarks are sufficient evidence of a discriminatory motive which was the ’but for’ 

cause of [the plaintiff’s] dismissal.’’ 46

• Last year, the United States Court of Appeals for the First Circuit similarly reversed a district court’s pro-employer summary judgment decision and found in 

favor of the plaintiff. In Velez v. Thermo King de Puerto Rico, Inc., the court applied 

the McDonnell Douglas framework,47 and noted that that ‘‘several aspects of the evidence . . . are more than sufficient to support a factfinder’s conclusion that Thermo 

King was motivated by age-based discrimination . . . . These include Thermo King’s 

shifting explanations for its termination for Velez, the ambiguity of Thermo King’s 

company policy . . ., and, most importantly, the fact that in response to arguably 

similar conduct by younger employees, Thermo King took no disciplinary action.’’ 48

• In Baker v. Silver Oak Senior Living Management Company, the United States 

Court of Appeals for the Eighth Circuit reversed the district court’s pro-employer 

grant of summary judgment, cited Gross decision, and ruled for the plaintiff. The 

court concluded that ‘‘[the plaintiff] . . . presented a submissible case of age discrimination for determination by a jury’’ when she introduced evidence that senior executives stated that they had a ‘‘preference for younger workers.’’ 49
47 

50Serafinn v. Local 722, Int’l Bhd. Of Teamsters, 597 F.3d 908 (7th Cir. 2010); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d Cir. 2010); Bolmer v. Oliveria, 594 F.3d 134 (2d Cir. 

2010); Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938 (9th Cir. 2009); Leibowitz v. Cornell Uni., 584 F.3d 487 (2d Cir. 2009); EEOC v. TIN, Inc., 349 F. App’x 190 (9th Cir. Oct. 20, 2009); Brown v. J. Kaz, Inc., 581 F.3d 175 (3d Cir. 2009); Thompson v. Weyerhaeuser Co., 582 F.3d 1125 (10th 

Cir. 2009); Hunter v. Valley View Local Schs., 579 F.3d 688 (6th Cir. 2009). The following courts 

cited Gross and found in favor of the defendant: Serwatka v. Rockwell Automation, Inc., 591 

F.3d 957 (7th Cir. 2010); Reeder v. Wasatch County Sch. Dist., No. 08-4048, 2009 WL 5031335 

(10th Cir. Dec. 23, 2009); Senske v. Sybase, Inc., 588 F.3d 501 (7th Cir. 2009); Philips v. Centrix 

Inc., 354 F. App’x 527 (2d Cir. Dec. 1, 2009); Spencer v. UPS, 354 F. App’x 554 (2d Cir. Dec. 

1, 2009); Kelly v. Moser, Patterson & Sheridan, LLP, 348 F. App’x 746 (3d Cir. Oct. 9, 2009); 

Milby v. Greater Phila. Health Action, 339 F. App’x 190 (3d Cir. July 27, 2009). 51Protecting Older Workers Against Discrimination Act, S. 1756, 111th Cong. § 3 (2009). 52 Id. § (3); cf. id. § 2(b). 53 Id. § (3); cf. id. § 2(a). 54 42 U.S.C. § 2000e-5(g)(2)(B). 55 Id. § 2000e-5(g)(2)(B)(ii). 56See, e.g., Coe v. N. Pipe Products, 589 F. Supp. 2d 1055, 1097–98 (N.D. Iowa 2008) (‘‘Thus, 

although the trier of fact may well find liability on a ‘mixed motives’ claim, the plaintiff may 

ultimately recover nothing if the trier of fact also finds for the defense on the ‘same decision’ 

defense. When faced with the real possibility of passing through the gauntlet of an employment 

discrimination trial, this court doubts that many plaintiffs would be willing to run the risk of 

prevailing on liability, but still receiving no monetary compensation for their efforts. This court 

also doubts that many plaintiffs would be happy to find that insult is added to injury, when 

they will receive nothing, but their lawyers will be compensated by the employer.’’). 57See, e.g., Thibeaux v. Principi, No. 04-1609, 2008 WL 2517170, at *5 (W.D. La. June 20, 

2008) (finding injunctive relief inappropriate because employee no longer reported to supervisor 

about whom she complained and did not allege any ongoing discrimination); Crosby v. Mobile 

County, No. 04–0144, 2007 WL 4125885, at *3 (S.D. Ala. Nov. 14, 2007) (‘‘declaratory and injunctive relief is granted only to the extent that the court will declare that [defendant] engaged 

in discriminatory conduct . . .’’); Templet v. Hard Rock Constr. Co., No. 02–0929, 2003 WL 

22717768, at *1 (E.D. La. Nov. 17, 2003) (finding that plaintiff is entitled to a judgment declaring that defendant violated law but finding no injunctive relief appropriate). 58See, e.g., Cooper v. Ambassador Personnel, Inc., 570 F. Supp. 2d 1355, 1359–60 (M.D. Ala. 

2008) (holding that no injunctive relief is appropriate because plaintiff is no longer employed 

at the company). 59See id. at 1360 (stating that ‘‘injunctive and declaratory relief might be appropriate . . . 

where, for example, the company engaged in widespread gender discrimination of the type challenged or had an official policy for such or where the company continued to engage in such gender discrimination’’). 60Protecting Older Workers Against Discrimination Act, S. 1756, 111th Cong. § 3 (2009) (proposed to be codified at 29 U.S.C. § 623(g)(5)(B)). 

Several other courts, including the Third, Sixth, Seventh, Ninth, and Tenth Circuits, relied upon Gross to rule in favor of plaintiffs.50

Section 3—Standard of Proof. The Protecting Older Workers Against Discrimination Act would amend the ADEA to make an employment action unlawful if a 

plaintiff proves that an improper factor such as age motivated the employment action, even if other, legitimate factors were also motivators.51 But if a defendant can 

show that it would have taken the same action despite the improper factor, the 

plaintiff loses his or her right to damages, reinstatement, hiring, promotion, or payment.52 In the end, only the lawyers win; the Protecting Older Workers Against Discrimination Act would allow courts to award certain attorney’s fees and costs and 

would do nothing to enhance the ADEA’s protections of victims of discrimination.53

Title VII cases provide sobering examples of how the mixed motive framework 

turns winning plaintiffs into losers. Like the bill, title VII’s mixed motive framework 

contains a same action defense and prevents victims from receiving a job, money, 

or anything else, other than money for their lawyers.54 The types of injunctive relief 

that plaintiffs want, such as a job or back pay, are expressly excluded.55 And, in 

fact, since the 1991 amendments to title VII, mixed motive plaintiffs have received 

nominal injunctive relief, or nothing.56 Some plaintiffs ‘‘won’’ only a hollow declaration that he or she prevailed.57 To add insult to injury, former employees are unlikely to receive any form of meaningful relief at all, as courts have found that even 

injunctive relief is not warranted when the plaintiff is a former employee.58 And, 

while some courts have suggested that injunctive relief may be appropriate when 

there is widespread discrimination or an employer maintains a discriminatory policy, the courts may issue only an order to comply with the law—something the law 

already requires even if no such order issues.59

Section 3—Application of Amendment. The Protecting Older Workers Against 

Discrimination Act does not identify the laws to which it applies. Section 3 of the 

bill simply states that the mixed motive proof structure would apply to ‘‘any Federal 

law forbidding employment discrimination.’’ 60 This language is hopelessly 
48 

61 29 U.S.C. § 215. 62 29 U.S.C. § 2612(a). 63 Nevada v. Hibbs, 538 U.S. 721, 737 (2003)(‘‘By setting a minimum standard of family leave 

for all eligible employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family caregiving, thereby reducing employers’ incentives to engage in discrimination by basing hiring and promotion decisions on 

stereotypes’’). 64Smith v. City of Jackson, 544 U.S. 228 (2005). 65Pub. L. No. 111–2, § § 3–5, 123 Stat. 5, 5–7 (2009). 

overbroad, vague and ambiguous, and would open up a Pandora’s Box of litigation 

dedicated to deciphering this section. 

For example, will the bill cover the Fair Labor Standards Act, which prescribes 

standards for the basic minimum wage and overtime pay? Or, will it cover only Section 15 of the Fair Labor Standards Act because that is the only section of the act 

that uses the word ‘‘discriminate?’’ 61

Consider also the Family and Medical Leave Act. That law, known as the 

‘‘FMLA,’’ provides eligible employees with up to 12 weeks of unpaid leave each year 

for several reasons, including for the birth and care of a newborn child of the employee; placement with the employee of a son or daughter for adoption or foster care; 

to care for a spouse, son, daughter, or parent with a serious health condition; to take 

medical leave when the employee is unable to work because of a serious health condition; or for qualifying exigencies that occur because the employee’s spouse, son, 

daughter, or parent is on active duty or is called to active duty status as a member 

of the National Guard or Reserves in support of a contingency operation.62

The FMLA’s terms are gender neutral, and the act protects both men as well as 

women.63 Is the FMLA a ‘‘Federal law forbidding employment discrimination’’ under 

the Protecting Older Workers Against Discrimination Act? If the bill is enacted in 

its current form, the public will have to wait years or decades until the issue trickles up to the Supreme Court to settle the issue. 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. 

Note in this regard that it took 38 years of litigation before the Supreme Court finally decided, in 2005, that the ADEA permits claims for unintentional age discrimination in certain circumstances.64 The Protecting Older Workers Against Discrimination Act, as currently proposed, will create litigation, confusion, and needless 

wasted resources and money because it does not precisely identify the laws it purports to amend. No victim of employment discrimination will benefit from any of 

this, and many will be hurt as will unions and employers. At a minimum, the bill 

should identify specifically the laws that it amends. The recently-enacted Lilly 

Ledbetter Fair Pay Act of 2009 specifically identified the laws it amended, and Congress can do the same here.65

IV. CONCLUSION

I respectfully suggest that Congress re-examine the bill and its impact on Mr. 

Gross and other litigants. The bill will not restore any pre-Gross protections because 

Gross did not narrow the ADEA’s protections. In fact, Mr. Gross already lost under 

those standards: the U.S. Court of Appeals for the Eighth Circuit applied the Price 

Waterhouse standard and overturned the jury’s verdict in Mr. Gross’ favor. Mr. 

Gross and many others will likewise gain nothing if the bill passes in its current 

form. The bill may provide greater income for some lawyers, but it will do so at a 

terrible cost. Discrimination victims, unions, employers, and others will become embroiled in years of unnecessary litigation about the bill’s meaning. None of this is 

necessary, and I request that the Congress resist the urge to enact the bill as proposed. 

The CHAIRMAN. Well, thank you very much, Mr. Dreiband. Mr. 

Dreiband, I’ll start with you then. You state that my bill will actually harm, not help, plaintiffs because the bill would apply the 

same standard that Congress enacted on a bipartisan basis as part 

of the 1991 Civil Rights Act, whereby a plaintiff who proceeds in 

a mixed-motive case is only eligible for injunctive relief and attorneys’ fees. 

I want to emphasize that under my bill the plaintiff has a choice 

of whether to proceed with the traditional causation standard or 
49 

proceed as a mixed-motive case where remedies, as you know, 

would be limited. Is your issue not with my legislation but rather 

with the compromise that was forged as part of the 1991 Civil 

Rights Act? 

Mr. DREIBAND. No. The mixed-motive provision of title VII has 

largely become a dead letter. I will tell you I have been litigating 

cases, both on behalf of the United States Government, when I 

served at the Equal Employment Opportunity Commission, and in 

private practice on behalf of both plaintiffs and defendants, and in 

nearly 20 years since that bill was amended, plaintiffs have almost 

never invoked the mixed-motive framework, and the reason they’ve 

not done that is because the affirmative defense deprives them of 

any meaningful remedy, even if they win. 

Even with respect to injunctive relief, the Federal courts have 

routinely held that in cases in which former employees are involved—that is, somebody gets fired—that injunctive relief is not 

appropriate for them. And so, as a result, what we see in title VII 

cases since the 1991 Act is that the mixed-motive framework is almost never invoked. 

I mean, I can tell you in hundreds of cases that I litigated when 

I served as EEOC’s general counsel, I was not aware of—and I was 

involved in many of them—not a single case in which the EEOC 

itself asserted a mixed-motive claim in a title VII case, and the reason for that is simply there is no remedy available or limited remedies available if you win. 

The CHAIRMAN. Let me ask then, Would you be in favor of compensatory and punitive damages for suits under both ADEA as well 

as title VII? 

Mr. DREIBAND. Certainly Congress could amend the Age Discrimination in Employment Act to provide for those damages. Right 

now, the Age Discrimination in Employment Act provides for full 

back pay, front pay and liquidated damages, and that’s the remedy 

that has been available since the law was enacted. 

The CHAIRMAN. How about in title VII cases? Would you be in 

favor of compensatory and punitive damages, then, to make them 

even’ 

Mr. DREIBAND. Title VII currently permits compensatory and punitive damages under certain circumstances. 

The CHAIRMAN. And you say that should apply to ADEA also. 

Mr. DREIBAND. The Congress can certainly do that and I would 

leave that to you to decide whether you think that’s in the public 

interest or not. 

The CHAIRMAN. Let me go to Ms. Norton. Mr. Dreiband has 

raised some issues here which I think need to be looked at. Basically, the bill, S. 1756, would return the law to what it was last 

June, apply the standard that has been in place for 20 years and 

remains in place for claims under Title VII in the Civil Rights Act. 

The heart of the bill is modeled on the Civil Rights Act for 1991 

which codified the motivating factor framework for race, sex, national origin, and religion discrimination under title VII. 

Now, you heard Mr. Dreiband’s explanation there. Can you address yourself to that and to whether or not we are actually harming plaintiffs under this bill? 
50 

Ms. NORTON. You are not, chairman. Let me give you a couple 

of examples. We can start with Mr. Gross himself. Under the Price 

Waterhouse standard that was in effect for 20 years, Mr. Gross 

won. If S. 1756 were in effect at the time of his trial, Mr. Gross 

would have won. 

Only under the Supreme Court’s new rule did Mr. Gross lose his 

verdict, and now he faces the prospect of a new trial in which he 

will bear the burden of proving what was not in his employer’s 

mind at the time of his decision. 

A couple of other examples since Gross. The Federal Jury System 

Improvement Act prohibits employers from punishing employees 

for engaging in their civic duty of jury service. Plaintiff brought a 

claim under that case. The trial court applied Gross, found that the 

plaintiff was more credible than her employer, found that the 

plaintiff had proved that her jury service was a motivating factor 

in her decision, but, nonetheless, applying Gross, found that the 

plaintiff could not prove that other factors also motivated the decision. 

Under Gross, she gets nothing. Under S. 1756, at a minimum, 

she would get declaratory relief, injunctive relief, a court order enjoining the defendant from engaging in future discrimination 

against folks for serving jury duty, and she would bear the prospect 

of additional relief, depending on whether the employer could bear 

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

absent discrimination. We’ve seen similar outcomes under the 

Americans With Disabilities Act and other statutes as well. 

The CHAIRMAN. I am going to ask Mr. Dreiband to respond to 

that. 

Mr. DREIBAND. All right. Certainly, the notion that the Price 

Waterhouse v. Hopkins case was some great boon to plaintiffs, I 

think, is proven exactly by Mr. Gross’ case that it was not. 

In Mr. Gross’ case, the United States Court of Appeals of the 

Eighth Circuit applied the Price Waterhouse standard—that’s a 

1989 Supreme Court case that established the mixed-motive framework—and concluded that, under that standard, that Mr. Gross 

had failed to present direct evidence of discrimination, which is 

what, according to the court, his lawyer conceded at oral argument. 

As a result, the employer completely escaped liability, despite the 

fact that the jury had found that the employer had discriminated 

against him. 

I think, no. 1, I would say that the Price Waterhouse standard 

wasn’t, in my view, any great benefit to victims of discrimination, 

and the 1991 amendments certainly partially abrogated the decision in Price Waterhouse. But because they have stripped away any 

meaningful remedy, plaintiffs rarely, if ever, pursue it. Rarely. 

I think the other thing I would say is that, since the Gross decision, what we have seen is that because employers no longer have 

this so-called same-action defense under the age-discrimination 

law, the United States Courts of Appeals are frequently and routinely ruling in favor of plaintiffs. 

What happened before the Gross decision was very often that 

Federal district courts would rule in favor of defendants and say 

that the employer had established, as a matter of law, its same- 
51 

action defense and the plaintiff could not even get a jury trial out 

of it. 

Now, the courts are saying that that defense is no longer available to employers and so the case should be scheduled for trial. 

The other thing I would say is the notion that ‘‘but-for’’ causation 

has something—requires that age or the other characteristic be the 

only factor is simply untrue. The standard—and it’s included as described by the Supreme Court in the Gross case—is that determining factor, and that can be one of other factors, including—At 

issue in the decision itself, the court stressed there was no heightened burden for plaintiffs in age-discrimination cases. 

The CHAIRMAN. Ms. Norton, I feel like I am back in law school. 

[Laughter.] 

Ms. NORTON. A couple of points, Mr. Chairman. First, I want to 

be very clear about what happened in Mr. Gross’s case. The trial 

court applied Price Waterhouse to his claim and he won. 

The CHAIRMAN. Right. 

Ms. NORTON. The Eighth Circuit ruled that the Price Waterhouse 

instruction was inappropriate because he did not have direct evidence, and the Supreme Court took cert on that issue, whether or 

not he should have gotten the Price Waterhouse instruction absent 

direct evidence. If the Supreme Court had answered the question 

on which it granted cert, I very much doubt that we would be here 

today. 

Instead, the Supreme Court articulated a brand new rule that 

not only stripped Mr. Gross of his verdict but imperiled the verdicts of many other plaintiffs as well. 

Mr. Dreiband seems to be arguing—quarreling with S. 1756 in 

that it does not go far enough in terms of providing damages to 

plaintiffs, and I certainly would be open to enhancing the damages 

available to victims of discrimination. 

If instead what we are posed with a choice of today is the choice 

between S. 1756 or the status quo under Gross, is there any question about which standard is better for employment victims, victims of employment discrimination? Absolutely none. S. 1756 dramatically improves the protections available to those victims. 

The CHAIRMAN. Thank you both. I have some questions for Mr. 

Gross, also Ms. Aldrich, but I have gone over my time. I would recognize the Senator from Minnesota, if you want to jump in on this. 

Senator FRANKEN. Yes. I would like to ask Mr. Gross, are you 

surprised by Mr. Dreiband’s assertion that you are better off because of the decision in your case? 

Mr. GROSS. First of all, I am not an attorney. I stayed at Holiday 

Inn once, but this is a little bit beyond my level of understanding, 

although, you know, I studied the situation— 

Senator FRANKEN. Your case, I would think. 

Mr. GROSS [continuing]. Of every case. 

Senator FRANKEN. Yes. 

Mr. GROSS. Yes, I am quite surprised by that because I agree 

that if the Supreme Court had answered the question that was 

brought before it that my verdict would have been reinstated, and 

I cannot see how I can be anything but better off if that had happened. 
52 

Senator FRANKEN. An interesting thing, Ms. Norton, is that the 

case that was brought before the court that they took cert on was 

different than what they decided on, right? 

Mr. GROSS. That’s right. 

Senator FRANKEN. Ms. Norton? 

Ms. NORTON. Yes, Senator, that’s quite right. The court granted 

cert on the question that had divided the lower courts, whether or 

not a plaintiff, a victim like Mr. Gross, needed to have direct evidence of discrimination before he could get the Price Waterhouse instruction or whether circumstantial evidence would suffice. 

That question had divided the lower courts, and guidance from 

the Supreme Court on that would have been most welcome. Instead, they decided a very different question and articulated a rule 

that is much more punishing of age-discrimination victims. 

Senator FRANKEN. Is it unusual for the Supreme Court to make 

a decision based on an issue that has not even been briefed? 

Ms. NORTON. It is unusual. The issue was raised for the very 

first time by the defendant’s brief in the Supreme Court. After Mr. 

Gross’ attorney had already submitted their briefs, after the United 

States Government had already submitted its amicus brief, after 

the AARP had already submitted their amicus brief, the defendants 

offered that argument for the very first time. 

And as the chair of the EEOC noted, the solicitor general noted 

this at oral argument and urged the court not to address an issue 

that had not been fully and adequately briefed. 

Senator FRANKEN. Now, it seems to me that, given the decision 

by the Supreme Court, that it is hard for a worker to prove what 

an employer was thinking, but, now, after the Gross decision, the 

worker has to present some sort of smoking gun to show that age 

was the determinative factor for the firing or the demotion. 

As an attorney who has litigated these cases, can you tell me 

what the smoking gun looks like, what it is supposed to look like, 

what it has to look like? Because most people do not write memos, 

And we fired Jane because she has a sick granddaughter, but mostly because she was old. How do you find a smoking gun? 

Ms. NORTON. You are quite right. It is rare. I think what is especially pernicious about the Gross decision is that even if you have 

a smoking gun as a plaintiff, you may still lose. 

For example, I offered the example—and this is borne out by the 

anecdotes that Chair Berrien offered. If an employer admits that 

it rejected an employee because of its stereotypes that older workers are less productive than others, even—that is smoking-gun evidence, a confession. 

Even if that plaintiff has that, he or she will still lose and get 

nothing unless he or she can also prove that the employer had no 

other non-discriminatory reason that would have justified the decision at the same time. And it is very hard for that plaintiff to go 

into that employer’s head and explain what was not there at the 

time of the decision. 

Senator FRANKEN. It just seems like to me that there is a higher 

wall to climb. And that is why I was so taken that Mr. Dreiband 

seemed to be saying that, after Gross, that plaintiffs have been advantaged, and he seemed to present some sort of evidence of that. 
53 

Did the evidence that he presented seem anecdotal or was it based 

on some kind of statistics— 

Ms. NORTON. I hope very much that he was not saying that 

Gross advantaged plaintiffs, because that is certainly not the case. 

I understood him to be saying that some age-discrimination plaintiffs still do win after Gross, and I would agree with that. Some 

age-discrimination victims still do win, but many more do not. It 

is harder for them to do so. 

Senator FRANKEN. He seemed to be saying that actually they had 

been advantaged by it. Is that what you were saying, sir? 

Mr. DREIBAND. I think it depends on the case, but there are cases 

that have come down since the Gross decision happened where the 

Federal courts of appeals have concluded that the standard is more 

favorable to plaintiffs than to defendants under the decision issued 

by the Supreme Court— 

Senator FRANKEN. Would those be greater than the number of 

cases under which the opposite is true? Because I think that is part 

of the issue here. I mean, in your testimony, you seemed to be implying that it is a lower bar now and that the number of decisions 

for the plaintiff have increased rather than decreased, and there 

seemed to be a number of subsets here. 

It feels to me, while there may be a subset where the plaintiffs 

have prevailed under this new standard where they may not have 

before, that that subset is much smaller than the subset of plaintiffs who have not prevailed because of this. Which would you say 

is the greater subset, sir? 

Mr. DREIBAND. What I have seen is that the majority of Federal 

court of appeals cases decided since the Gross decision have been 

more favorable to plaintiffs. 

Senator FRANKEN. And is that— 

Mr. DREIBAND. Including non-Federal circuit courts out of 12. 

Senator FRANKEN. [continuing]. Is that your experience, as you 

read it, Ms. Norton? 

Ms. NORTON. No. If you look at those cases, it is true that, in 

those cases, the age-discrimination victim won, but it is not because the Gross rule helped them win. They won despite the Gross 

rule, not because of the Gross rule. I think that is very different 

than saying that the Gross rule advantages plaintiffs just because 

a few plaintiffs can still survive it. 

Senator FRANKEN. OK. Is there a statistical way of doing some 

kind of analysis on that? Because I just want to see who— 

Ms. NORTON. I am saying there is no subset in which plaintiffs 

are advantaged by Gross. So the statistics are easy from my standpoint. 

Senator FRANKEN. OK. I would love to see some statistical analysis of Mr. Dreiband’s assertion. Is that OK? From both of you? 

Would both of you agree to do that? 

Mr. DREIBAND. Certainly. I am happy to provide any information 

I can to the committee. 

Senator FRANKEN. Thank you. I really would appreciate that. 

Mr. DREIBAND. In terms of statistical analysis, what kind are you 

asking for? 

Senator FRANKEN. I was talking about two subsets. One was a 

subset of which plaintiffs have been clearly advantaged because of 
54 

the Gross standard. And the other is where they have been disadvantaged. Your very strong assertion was that the first subset is 

much larger than the second. 

Ms. Norton’s assertion is that the first subset is non-existent. 

[Laughter.] 

I think it should be pretty easy to establish whose testimony is 

more persuasive, shall we say? 

Thank you very much. 

The CHAIRMAN. Let’s try to get a little bit further on on what 

Senator Franken brought up here and what I think Mr. Dreiband 

talked about earlier, about who is disadvantaged and who is not 

disadvantaged. I want something cleared up for the record here for 

me personally. 

When Mr. Gross brought his case—when the jury decided for Mr. 

Gross, Mr. Gross got compensatory damages, I believe. I don’t know 

if you got punitive damages. 

Mr. GROSS. No. 

The CHAIRMAN. Compensatory damages? 

Mr. GROSS. Yes. 

Ms. NORTON. Lost compensation. 

The CHAIRMAN. Pardon? 

Ms. NORTON. Sir, not pain and suffering damages. Lost compensation. 

The CHAIRMAN. Lost compensation. 

Was there also injunctive relief, too, or just compensatory damages, but not injunctive relief— 

Ms. NORTON. I actually don’t recall if there was injunctive relief. 

And, again, I don’t mean to quibble, but compensatory damages, 

pain and suffering damages are not available under the Age Act. 

He did get damages for his lost pay raises and lost stock options. 

The CHAIRMAN. Isn’t that compensatory— 

Ms. NORTON. Technically, compensatory means pain and—noneconomic damages. 

The CHAIRMAN. I mean economic damages. 

From hearing what Mr. Dreiband said, under S. 1756 Mr. Gross 

would not be eligible to get lost wages, and my counsel says that 

that is not so. Mr. Gross would still be able to get those kinds of 

damages. Can you enlighten me on that? 

Ms. NORTON. Yes, absolutely. So Mr. Gross received the Price 

Waterhouse instruction, the 20-year-old Price Waterhouse instruction, which required him to prove—to persuade the jury that age 

was a motivating factor in his decision, and he did so convince the 

jury. 

Then the defendant was permitted to try to prove—to try to persuade the jury that it would have made the same decision even absent age discrimination, and the defendant did not so persuade the 

jury. That’s Price Waterhouse. 

Under S. 1756, same set of instructions, first, Jury, do you find 

that Mr. Gross has proved that age was a motivating factor in your 

demotion? 

Jury says, Yes. That means that, under your bill, for sure now 

we know that Mr. Gross will get declaratory and injunctive relief 

and part of his fees and costs. 
55 

Then the jury is asked a second question: Jury, do you find that 

the defendant proved, nonetheless, that it still would have demoted 

Mr. Gross absent age discrimination? 

Presumably the same answer, no. So he gets to keep—Also, then 

he is entitled to whatever back pay and other relief he can prove 

under your bill. Exactly the same result under your bill. 

The CHAIRMAN. Well, you disagree with that, Mr. Dreiband? 

Mr. DREIBAND. The way Professor Norton described it, no, I don’t 

agree. I do agree entirely with what she just said. What I don’t 

think we would agree about, though, is why any plaintiff would 

pursue a mixed-motive theory under the bill. 

The reality is, under title VII, which has very similar language, 

a plaintiff can pursue a claim for what—the because-of standard 

described by Gross under Section 703 of Title VII and not invoke 

the mixed-motive provision of title VII, which is a separate section. 

In my experience both as general counsel of the Equal Employment Opportunity Commission and representing plaintiffs and defendants in title VII cases, plaintiffs or victims of title VII discrimination almost never—and, in my experience, never—invoke the 

mixed-motive, burden-shifting scheme, because there is a risk that, 

even if they prove discrimination happened, there is the chance 

that the defendant can prove this defense and then they get nothing. 

As a result, what happens in the real practice of law is that 

plaintiffs tend not to pursue that theory. The cases are extremely 

rare as a result and it is because of the defense that that has made 

available. 

The CHAIRMAN. Still, under S. 1756 they have that choice, right? 

Ms. NORTON. Of course. I guess a lot depends on what we are 

comparing this to. Could you come up with a bill that has even 

greater damages for plaintiffs? You bet. 

The CHAIRMAN. Sure. 

Ms. NORTON. Is this bill better than Gross? You bet. It is also 

an improvement on Price Waterhouse. It is more plaintiff-friendly 

than Price Waterhouse is. And Mr. Gross sought a Price Waterhouse 

instruction. 

We saw folks seeking Price Waterhouse instructions under the 

ADEA case that you mentioned with respect to the Seventh Circuit. 

They lost under Gross, under the jury case that I asked—a Price 

Waterhouse mixed-motive instruction. There is no reason to believe 

they wouldn’t also seek that instruction under your bill. 

The CHAIRMAN. I just want to understand. Our bill does not take 

that right away from them. 

Mr. DREIBAND. Let me give you—if I could, Senator Harkin—give 

an example. In the case of Josephine Mora, her case went to the 

United States Court of Appeals, to the Eleventh Circuit, just this 

year. 

She worked for her employer and the chief executive officer of 

that company said to her, I need someone younger who I can pay 

less. Also said to her, allegedly, You are very old. You are very 

inept. What you should be doing is taking care of old people. 

The employer asserted, as a defense, that her performance was 

poor, and, under the Price Waterhouse mixed-motive standard, that 
56 

it had a—even if it considered age of Ms. Mora—that it would have 

taken the same action because of her poor performance. 

The district court in that case threw the case out at the summary-judgment stage. Said there was not even enough evidence, 

despite these statements by the chief executive officer of the company, because, under the Price Waterhouse standard—that is, the 

so-called same action—that the employer would have taken the 

same action—she loses. 

The United States Court of Appeals for the Eleventh Circuit this 

year, a couple of months ago, read the Gross decision and reversed 

the district court’s decision in favor of the defendant and ruled in 

favor of Josephine Mora, because the court said that the Gross decision removed this so-called defense that employers have. 

If I could just clear up one other point very quickly that Senator 

Franken made, I did not mean to suggest that Mr. Gross is better 

off because he lost in the Supreme Court or in the United States 

Court of Appeals for the Eighth Circuit. He would have been better 

off if the Price Waterhouse decision had not required direct evidence of discrimination. And, in my view and my review of the 

record, it looked to me like harmless error. 

I think the real problem in the case was the concession at the 

court of appeals that there was no direct evidence, and the whole 

issue was framed in that basis, rather than the fact that there was 

admissible evidence of discrimination that he and his lawyers presented at the trial. So I just wanted to clear that point up. Thank 

you. 

The CHAIRMAN. I hate to keep this ping-pong game going, but, 

Ms. Norton, do you have a response on that? 

Ms. NORTON. I do wish that the Supreme Court had actually answered the question that it had taken cert on, because I actually 

am quite confident—who knows. I would predict that the Supreme 

Court, again, would side with Mr. Gross to rule that direct evidence is not required, because it is so unusual in the law to require 

unusual types of evidence, and the court is very reluctant to require that unless and until Congress instructs it to do so. 

There’s nothing in the Age Act that requires direct evidence as 

opposed to circumstantial evidence. And your bill would fix that. 

The CHAIRMAN. Mr. Gross, you have been listening to all this 

back and forth on this and the legal ramifications of it. You are 

going back to another trial this November, right? 

Mr. GROSS. That’s right. 

The CHAIRMAN. You are not a lawyer. I understand that. It 

seems to me under the Supreme Court decision now, you have to 

prove that age discrimination was really—what? 

Ms. NORTON. The ‘‘but-for’’. He certainly can prove that it was 

a motivating factor. He has done it already, but then he must also 

prove that the employer would not have made the same decision 

even absent age discrimination. He has to explain what was in the 

employer’s head, along with age discrimination, and how that motivated the decision. 

The CHAIRMAN. That but for his age, the employer would not 

have made that decision. 

Mr. GROSS. Yes. 
57 

The CHAIRMAN. How do you prove that? I mean, I do not know 

how you prove something like that. You are almost trying to prove 

a negative. 

Mr. GROSS. That is the problem with the whole definition of direct evidence and what is a smoking gun. 

We did have a memo that had been produced, I think about a 

year before, identifying people who were going to get demoted, and 

we noticed that there was only one common denominator. We were 

all over 50. 

The CHAIRMAN. Yes. 

Mr. GROSS. That evidently was not a smoking gun. We did not 

know about it. There is nothing we could have done to have 

changed it performance-wise. 

The CHAIRMAN. Yes. I think that, to me, distills it down, Mr. 

Dreiband, and that is that, in these cases you have cited—that one 

you just cited and read from—not too often do you really have that 

smoking gun. Maybe in a few cases you do, and, obviously, those 

seem to be the cases that made it to the circuits where you really 

had a definite smoking gun. In most cases, you do not have that. 

What you have done is you set this really high bar. If you have 

a smoking gun, you are going to win, even under the Gross decision. 

That does not happen that often. 

What we have said in the past is that if you can show that age 

was one of the factors—if you can show that—and that is a burden 

on the plaintiff. They have to show that. They showed it because 

all of the people that had been demoted were over the age of 50. 

That was the one characteristic they had in common. 

The burden then goes to the employer to say, We have this evidence. The employer has all the documentation. You have the 

records. You have their performance standards. You have all this 

stuff on your employees. You can come back in and show that that 

was not the decisive factor. There were other reasons why you demoted Mr. Gross. 

They can do that. They have all of the data. But for Mr. Gross 

to show that ‘‘but-for’’ that they would have made a different decision, that is almost impossible, unless he has a smoking gun. 

It seems to me—from a layman’s standpoint, that is the difference between your approach and Ms. Norton’s approach or, I 

think, perhaps our approach here. We do not want to just limit this 

to smoking-gun cases. We want this more broadly applied, because 

we know, in real life—in real life—you do not often get that smoking gun. 

Therefore, we have said if you can show that this was a factor, 

burden shifts. Employer, you show, now, that it was not just ‘‘butfor’’ his age that you demoted or fired Mr. Gross. Isn’t that really 

the essence of what we are talking about? 

Mr. DREIBAND. With all due respect, Senator Harkin, no, I am 

not suggesting and do not mean to imply that a plaintiff in a discrimination case needs some kind of smoking gun in order to prevail. 

The Supreme Court of the United States, in 1973, established 

the burdens and the burden shifting that happens in title VII cases 

that courts have applied to age-discrimination cases in cases in 
58 

which there is not a smoking gun. Litigants have been operating 

under that standard, under this so-called because-of race or sex 

standard, for nearly 40 years and have been winning cases without 

any kind of smoking gun. Typically, the evidence includes things of 

the sort that Mr. Gross presented in his case. 

For example, in Mr. Gross’ case, according to the district court’s 

opinion, there was evidence that a former subordinate of Mr. Gross 

was put in the position that he held, that a former supervisor testified that, in Mr. Gross’ case, Mr. Gross was much more qualified 

than that younger former subordinate. Mr. Gross provided similar 

testimony. So the evidence may not have included a smoking gun 

or what the court of appeals described as direct evidence. 

Under that standard, Mr. Gross prevailed in front of the jury. I 

think he would prevail again if the evidence is as described by the 

district court. And so I did not, in any way, mean to imply that a 

smoking gun is necessary. 

The point I would make, though, is that because of the framework of the bill, no. 1, it fails to identify the laws that the Congress 

proposes to amend. Litigants, including victims, are going to be left 

fighting over that issue unnecessarily for many years. 

No. 2, because there is no meaningful remedy available, if an employer proves this so-called same-action defense, in the same way 

that title VII does not provide that kind of meaningful remedy to 

victims, most victims of discrimination will not pursue the mixedmotive framework. That is what we have seen under title VII, and 

I think that is what we will see if the bill is enacted in its current 

form. 

The CHAIRMAN. It is like preponderance of evidence. The preponderance in this case, of the legal experts that my counsel has 

talked to—who is also a pretty good legal expert in his own right— 

and others say that Mr. Gross is not in as good a position going 

back into the trial as he was before. You were saying he is actually 

in a better position. 

As I said, almost all the legal experts in the EEOC and others 

that we have contacted about this in drafting this legislation said 

this will put Mr. Gross in a better position. It will put him in at 

least an equal position to what he was before. 

Am I wrong in that, Ms. Norton? Will S. 1756—if we could pass 

it today and get the president to sign it, would this put him basically in a similar kind of a situation he was before or will he be 

in a worse position? 

Ms. NORTON. He will certainly be in a— 

The CHAIRMAN. He’s going back to trial in November. OK? 

Ms. NORTON. Yes. If you pass this before he goes back to trial, 

he will be in a better position than he is today, under Gross. That 

is absolutely true. 

The CHAIRMAN. That is what I keep hearing from everybody, but 

you do not agree with that. 

Mr. DREIBAND. No. Maybe I have not been clear. I mean, what 

I would encourage the committee to do is go ask the EEOC how 

many mixed-motive cases under title VII they have litigated since 

1991. You are going to find that the answer is almost none. And 

the question I would have is why. 
59 

The answer is because neither the government nor victims of discrimination can prevail, even if they win—or at least the possibility 

is they will not prevail, because even if they prove discrimination, 

there are no damages available—no back pay, no front pay, no job, 

no reinstatement, nothing. 

As a result, most victims of discrimination, given the choice, will 

pursue the other alternative framework under title VII. 

The CHAIRMAN. Mr. Dreiband, are you in disagreement—maybe 

I am wrong—that under S. 1756, if it were passed, Mr. Gross could 

still get—maybe I am wrong in my use of terms, not compensatory 

damages, but could get back pay and loss of wages and that kind 

of thing. Am I wrong on that? 

Mr. DREIBAND. He could get liquidated damages and back pay 

only if the employer fails to prove the defense. So that is true. 

Ms. NORTON. That is what happened before at trial. 

The CHAIRMAN. That is what happened. 

Ms. NORTON. That is what happened at trial. 

Mr. DREIBAND. Right. 

The CHAIRMAN. That is what happened in the first trial. 

Mr. DREIBAND. It did happen. And the question, though, is— 

The CHAIRMAN. Why wouldn’t that happen again? 

Mr. DREIBAND. It may happen again. 

The CHAIRMAN. Then, why would he be disadvantaged under 

S. 1756? 

Mr. DREIBAND. Because it may not happen. Whereas, if you 

can— 

The CHAIRMAN. It may not happen. I will tell you what, under 

the law right now—the Supreme Court decision, not our law, but 

the Supreme Court decision—he is going to have a dickens of a 

time proving his case. How can he prove this? He can’t. 

Mr. DREIBAND [continuing]. He will bring in the same evidence 

that was brought in—Look, let me say this: He would have been 

better off if his verdict had not been reversed. I do not mean to 

suggest otherwise. If the U.S. Court of Appeals had not reversed 

the verdict, he would be in a better position, but— 

The CHAIRMAN. OK. What we are trying to do with S. 1756 is to 

put it back sort of the way it was before. You are saying we are 

not doing that? 

Mr. DREIBAND [continuing]. The bill does not exactly mirror the 

standards that governed at the time of the jury trial in this case. 

There are changes. For example, I think as Professor Norton mentioned—or somebody mentioned—there’s no longer the direct-evidence requirement in a mixed-motive case, that the bill would 

change. The question, though, is why someone would want to pursue it. 

It is true that the jury did reject, in this case, the employer’s 

same action defense and may do so again. 

The CHAIRMAN. I do not think Mr. Gross—I don’t know. I am not 

his lawyer. He is not going to pursue a mixed-motive case, is he? 

[Discussion off the record.] 

The CHAIRMAN. We don’t know. I don’t know. I mean, that is up 

to him and his attorney, whether he is going to pursue a mixedmotive course of action. 
60 

I assume in the previous case it was a mixed motive or was it 

just simply straightforward age discrimination? 

Mr. GROSS. It was a mixed-motive instruction— 

The CHAIRMAN. To the jury. 

Mr. GROSS [continuing]. Yes. Accompanied by that, and from a 

lay perspective, they also got an instruction that said if Farm Bureau could show any evidence—any evidence—that they would 

have taken the same action in absence of my age, then they should 

find in favor of Farm Bureau. 

Now, to me, that—as a lay person, that is a ‘‘but-for’’ causation. 

The CHAIRMAN. That is right. 

Mr. GROSS. I am not sure I, as a lay person, understand, the intricacies of the way this language is getting parsed back and forth. 

The CHAIRMAN. Um-hum. 

Ms. NORTON. I will just add that is a very good question, and the 

burden of proof matters. It mattered that, at trial, the employer 

had the burden of proof. 

Gross flips that such that the burden of proof never shifts to the 

employer, even if the plaintiff can prove discrimination. 

Your bill would return it to the status quo, where once the plaintiff—like Mr. Gross—proves that discrimination played a role in 

the decision, the burden of proof shifts to the employer, and that 

matters. 

The CHAIRMAN. What would the instructions to the jury be under 

the Supreme Court decision right now? 

Ms. NORTON. Under the Supreme Court decision? 

The CHAIRMAN. Right. As it stands right now, what would their 

instructions to the jury be? 

Ms. NORTON. Do you find that Mr. Gross proved, by a preponderance of the evidence, that age was the ‘‘but-for’’ cause of your demotion? 

The CHAIRMAN. But for that, he would not have been demoted. 

Would a jury understand that? I have a hard time understanding 

that. 

Mr. DREIBAND. Well, Senator Harkin, if I could clarify a little bit 

on that question, the defense lawyers in the case did propose a socalled ‘‘but-for’’ causation standard, the model jury instruction by 

the U.S. Court of Appeals in that circuit, and that instruction explains that so-called ‘‘but-for’’ causation does not mean that age, in 

this case, has to be the only reason for the decision. Rather, the 

jury instruction explains it has to be a determining factor. What 

you ultimately are arguing about is is it determining factor or motivating factor and whether or not there is a difference between 

those two standards. 

Discrimination plaintiffs have been winning cases for decades 

under the determining-factor standard that the Gross decision sets, 

and this notion that it somehow has created this impossible burden 

is simply untrue. It is not what we are seeing in the courts, and 

it is not true under title VII. 

Ms. NORTON. Just to briefly respond, I guess we can take solace 

in the fact that we do know how the Civil Rights Act of 1991 standard has worked. 

The CHAIRMAN. I am sorry. Say that again. 
61 

Ms. NORTON. The standard that you are proposing is one that 

has been in place for 20 years under title VII. So we know how it 

has worked. It has been in place for 20 years. 

I know, too, that it was also the position taken by the Reagan 

Department of Justice during the Price Waterhouse litigation. They 

adopted the standard that you are proposing in the briefing of the 

Price Waterhouse case in 1988. 

And, of course, the first President Bush also endorsed the same 

standard in enacting the Civil Rights Act of 1991. It appropriately 

balances the interests of both employees to be free from discrimination and the interests of employers in considering non-discriminatory factors in making employment decisions. 

The CHAIRMAN. Ms. Aldrich, you have been very patient with all 

this going on here. 

Ms. ALDRICH. Yes. I also am not an attorney by background, but 

I would say that, from my perspective in looking at this, it just 

seems, thinking about all the potential employees who have agediscrimination cases, this sets a tougher and different standard for 

those cases. 

You have heard from Mr. Gross how difficult it is to come forward on age-discrimination cases, the pressure, the loyalty. Older 

workers are my loyal. Older workers have a hard time coming forward anyway, and then to have to make a tougher standard seems 

to me to be very unfair. I also think it is important for us to put 

it in the context of what is going on right now. 

We did a survey at AARP—this is a pre-recession. I am sure the 

numbers would be higher now—where older workers said that they 

have seen or experienced discrimination in the workplace. These 

are workers between 45 and 74. Sixty percent said— 

I think age discrimination is extremely important, and I would 

like to see us restore the standard that is similar for other discrimination cases. 

The CHAIRMAN. I think that is really what we are trying to do 

here. I was quite taken aback to think that what we were doing 

was not helping, and that somehow older workers are in much better position because of the Supreme Court decision. I just find that 

very hard to understand, Mr. Dreiband. 

I know these are fine legal points, but it comes down to that trial 

court and what the instructions to the jury are. It seems to me the 

instructions to the jury, under the previous law, were much more 

clear cut. It did put the burden on the defendant after he proved— 

after he got over the first hurdle, and the jury said no, they did 

not show that there was any other reason, that age was the factor. 

Now, it is all on him as he goes back to trial court. The Defendant does not have to do anything. The plaintiff just has to show everything. And I suppose if he has a letter from his employer saying, 

You old goat, we want you out of here, you know, that could be a 

smoking gun, I suppose, or something like the things you said that 

were in these other cases, but that just does not happen that often. 

As for the other reason that Ms. Aldrich pointed out, how tough 

it is for older workers who have been in a company a long time and 

loyalty and you have friends there, you know, to raise that bar up 

again, it would seem to me it would tend—just the way things are 

right now—would tend to say to an older employee who is facing 
62 

that kind of discrimination that, you know, better not to fight. Better just to leave and do something else and not put up a fuss about 

it. 

That is not the right way to do things. I mean, that would just 

be giving in to discrimination. You have to have people with the 

guts and the courage of their convictions, like Mr. Gross, who understands it is not just about him. It is about a lot of other people, 

too. 

Ms. ALDRICH. About a lot of other people. 

The CHAIRMAN. A lot of other people getting hit by this. There 

are a lot of other people, other than Mr. Gross, who are effected 

by this, but, for whatever reason, they decided not to go forward. 

I do not mean to look into anybody’s motives, but I think Mr. 

Gross understood, if I do not do this, if I do not stand up, who is 

going to stand up? 

Mr. GROSS. That is right. 

The CHAIRMAN. Who is going to go up and say, Wait a minute, 

this is wrong. This is not the right way to proceed in our society, 

and that the laws ought to mean something if they are going to 

protect people against discrimination. 

This is why I think we have to get back to where we were, back 

to a semblance of where someone like a Mr. Gross can come forward, even though he does not have a smoking gun, but he has a 

preponderance of evidence and he can show that age was a factor. 

Then let the defendant—as we have said in the past—show that 

that was not the overriding—there were other reasons, all these 

other reasons why they demoted or fired or got rid of somebody. 

It seems to me that is what we are trying to get to. Am I wrong? 

Mr. DREIBAND. Senator Harkin, may I just briefly respond? 

The CHAIRMAN. Yes, of course. 

Mr. Dreiband. With respect to any of my remarks, I want to be 

clear, age discrimination in employment is a terrible problem in the 

United States and has been one for a long time. And I did not, in 

any way, mean to suggest by any of my remarks that I thought or 

that I think that age-discrimination victims should have some kind 

of increased or heightened burden to prove their case. 

When I served as the general counsel of the Equal Employment 

Opportunity Commission, we litigated hundreds of cases. I personally intervened and argued on behalf of victims of age discrimination in several cases, both to authorize those cases on the front 

end, including several class-action cases against major employers, 

major law firms. 

I argued cases on behalf of victims in the United States Courts 

of Appeals and worked with the solicitor general on behalf of victims in Supreme Court cases. 

We recovered more money for discrimination victims through 

EEOC’s litigation program during my tenure than at any other 

time before or since in the EEOC’s history. I am very proud of that 

service and feel very honored to have served with many of the people who are still at the EEOC. 

I just want to be clear that I did not, in any way, mean to suggest that age discrimination is not a problem or that victims of discrimination should have some onerous burden to prove their case. 
63 

That is not what I intended to imply, and I just wanted to make 

the record clear on that. 

Thank you. 

The CHAIRMAN. I never inferred that from any of your statements. There seems to be different approaches on how to do this. 

Our job here is to try to figure out which is the best approach. 

I try to go out to all the experts. We go out to different groups 

and try to figure out what is the best approach. All I can say is 

that, maybe we can make it tougher. I don’t know. I also have to 

look at the reality of what we can do here in a legislative sense. 

It just seems to me that what was happening before, and the fact 

that you were successful in prosecuting all the cases, that whatever 

the law was before seemed to work pretty well. 

Since the Gross decision, it has created a turmoil. It has created 

a lot of uncertainties, and from what I understand, it is going to 

create a higher burden of proof for plaintiffs than what we have 

had in the previous 20 years. 

If that is the case, then we want to—I do not want to have a 

higher burden of proof for plaintiffs. I think they already have a 

burden of proof. I think the logic of the law that we have had for 

the last 20 years has been pretty good, seems to me. 

But, no, I did not infer that you were anything but opposed to 

age discrimination. It seems to me two different viewpoints on how 

to get to the solution of this, which always raises questions around 

and in our legislative process. 

This is very interesting. Do we have anything else that anybody 

wanted to say before we close? 

Mr. DREIBAND. Can I make one small point? 

The CHAIRMAN. Sure. 

Mr. DREIBAND. Something we have not focused on that I do think 

the Congress could easily fix is the problem in the bill of ambiguity 

in terms of which laws the bill would amend. 

The law says it would amend or apply to any Federal employment discrimination law, and by not listing those laws, it creates 

a lot of uncertainty that I think could easily be clarified by the 

Congress if it wanted to just simply list the laws that Congress intends to amend. I would encourage the committee and the Congress to focus on that. 

The CHAIRMAN. I have been through that, Mr. Dreiband. I have 

been through that. What was the recent case that you told me 

about that? 

[Discussion off the record.] 

The CHAIRMAN. My counsel tells me that there was a case where 

the court decided that it did not apply to the Jury Systems Improvements Act. I never heard of the Jury Systems Improvements 

Act. 

Here is what I remember about specifically. I remember when we 

were passing the Americans With Disabilities Act. Now, this may 

not be on point in a legal sense, but I remember when we were 

passing the Americans With Disabilities Act, there was a move by 

some that said that we could not leave it as broad as it was. We 

had to specify every single disability. 

That is an impossibility, because there are permutations of all 

kinds of different kinds of disabilities. Well, it may have been—you 
64 

might have listed one, but maybe this was a subset of that that 

didn’t really apply. 

It seems to me that if we do not leave this broad and we try to 

specify every—I will bet we would have not looked at the Jury Systems Improvements Act. Hundreds of different things out there 

that Congress has passed. What if we forget one? Then we have to 

come all the way back here and pass another law to cover that? 

That is why this idea of specificity and specifying every single 

law just does not work. That is why we leave it broad, and we 

leave it up—need I say this?—to the courts to say what was Congress’ intent. 

We will have plenty of written and also in our record, our hearing records, as I am making today, and we will have it in terms 

of our report language that we intend to have this applied broadly—broadly. 

That is what we said in the Americans With Disabilities Act. We 

intend for this to be applied broadly in terms of disabilities, and 

that is what I think we have to do here. As I said, I just don’t think 

we can specify every law. That is my response on that. 

Thank you very much. This has been very enlightening. As I 

said, boy, I wish I would have paid more attention in law school 

now. 

[Laughter.] 

It was very enlightening and I thank you very much for this. 

The record will be kept open for 10 days for other questions to 

be submitted by Senators who, for one reason or another, could not 

be here today. 

Thank you, again, very much. 

The committee will stand adjourned. 

[Additional material follows.] 
65 

1During the first two quarters of fiscal year 2010, the Agency received 11,381 ADEA charges. 

2See, e.g., Vincent J. Roscigno, Sherry Mong, Reginald Byron, Griff Tester, Age Discrimination, Social Closure and Employment, 86 SOCIAL FORCES 313, 319 (Sept. 2007) (opining that 

age discrimination charges, or cause findings, represent a ‘‘significant underestimate’’ of workplace age discrimination). 3Towers Perrin, The Business Case for Workers Age 50+, Planning for Tomorrow’s Talent 

Needs in Today’s Competitive Environment (AARP) (Dec. 2005), at 33–43. (‘‘Mounting evidence— 

both anecdotal and statistical—demonstrates that older workers bring experience, dedication, 

focus, stability and enhanced knowledge to their work, in many cases to a greater degree than 

younger workers;’’ it is a myth that performance suffers over time; rather, older workers’ ‘‘commitment and knowledge that comes with experience are far more important drivers of workplace 

contribution’’); Posthuma & Campion, at 166 (Although some skills may deteriorate with age, 

older workers’ knowledge and expertise compensate so that productivity generally does not decline with age, and may, in fact, improve.). 4 REPORT OF THE SECRETARY OF LABOR, THE OLDER AMERICAN WORKER: AGE 

DISCRIMINATION IN EMPLOYMENT 8-9 (June 1965) (finding ‘‘The competence and work performance of older workers are, by any general measure, at least equal to those of younger workers.’’). 

ADDITIONAL MATERIAL

RESPONSE TO QUESTION OF SENATOR HARKIN BY JACQUELINE A. BERRIEN

Question. In your testimony, you referred to the ‘‘surge’’ in ADEA charges and the 

increasing prevalence of workers facing age discrimination. Can you describe in 

more detail the trends the EEOC has seen with respect to age discrimination in the 

workplace? 

Answer. Over the last 5 years, from fiscal year 2005 to fiscal year 2009, there was 

a 37 percent increase in ADEA charge receipts. The EEOC received 16,585 ADEA 

charges in fiscal year 2005 and the number climbed to 24,582 charges in fiscal year 

2008, with only a slight decline (to 22,778) in fiscal year 2009. This is consistent 

with the overall 2.2 percent decline in charge receipts between fiscal year 2008 and 

fiscal year 2009.1 As a percentage of charges filed, ADEA charges went from 22.5 

percent of charge receipts in fiscal year 2005 to 25.8 percent of charge receipts in 

fiscal year 2008 to 24.4 percent of all charges received in fiscal year 2009. Over the 

last 10 years, from fiscal year 1999 to fiscal year 2009, there has been a 61 percent 

increase in ADEA charge receipts. In fiscal year 1999, the Agency received 14,141 

ADEA charges, which comprised 18.3 percent of all charges filed. 

Of course, charge data only measures the number of filed charges of discrimination. Many victims of age discrimination do not file charges 2 and not all charges 

are meritorious. The ‘‘merit factor’’ rate is a closer measure of the percentage of 

meritorious claims filed with EEOC because it represents all charge resolutions in 

which the charging party received a benefit (including negotiated settlements, 

conciliations, and withdrawals where the parties have reached a private settlement). 

Since fiscal year 2005, the merit factor rate for ADEA charges has averaged 19.2 

percent. 

On July 15, 2009, the Commission held a hearing on Age Discrimination in the 

21st Century—Barriers to the Employment of Older Workers, in which witnesses testified that negative stereotypes about older workers are still prevalent in the workplace. However, many researchers have found assumptions about declining productivity of older workers to be false.3 These findings have been consistent since the 

Department of Labor’s 1965 study that served as the impetus for the ADEA.4
66 

The total of individual percentages may not always sum to 100 percent due to 

rounding. 

EEOC total workload includes charges carried over from previous fiscal years, new 

charge receipts and charges transferred to EEOC from Fair Employment Practice 

Agencies (FEPAs). Resolution of charges each year may therefore exceed receipts for 

that year because workload being resolved is drawn from a combination of pending, 

new receipts and FEPA transfer charges rather than from new charges only. 

Definitions of Terms 

Historical Data 
67 

The total of individual percentages may not always sum to 100 percent due to 

rounding. 

EEOC total workload includes charges carried over from previous fiscal years, new 

charge receipts and charges transferred to EEOC from Fair Employment Practice 

Agencies (FEPAs). Resolution of charges each year may therefore exceed receipts for 

that year because workload being resolved is drawn from a combination of pending, 

new receipts and FEPA transfer charges rather than from new charges only. 

Definitions of Terms 

Historical Data 

RESPONSE TO QUESTIONS OF SENATOR HARKIN BY HELEN NORTON

Question 1. The legislation I introduced, the Protecting Older Workers Against 

Discrimination Act, is intended to return the law to what it was before the Court’s 

decision in Gross v. FBL Financial. The bill would codify the motivating factor 

standard of causation in mixed motive cases that had been in place since Price 
68 

1See Christopher B. Mueller & Laird C. Kirkpatrick, EVIDENCE 105 (3d ed. 2003) (describing the appropriateness of shifting the burden of proof to the defendant on a contested issue 

when the defendant has greater access to evidence probative of that issue). 2Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2359 (2009) (Breyer, J., dissenting) 

(emphasis in original). 3 Indeed, the Gross Court signaled its unwillingness to interpret other statutes in a manner 

consistent with the Price Waterhouse Court’s interpretation of identical causation language, thus 

destabilizing the longstanding expectation that Congress incorporated the same language in different antidiscrimination laws because it intended consistent interpretation of those laws. See 

Gross, 129 S. Ct. at 2349 (‘‘When conducting statutory interpretation, we ‘must be careful not 

to apply rules applicable under one statute to a different statute without careful and critical 

examination.’ ’’) (citation omitted). 4Fairley v. Andrews, 578 F. 3d 518, 525–26 (7th Cir. 2009); see also Serwatka v. Rockwell 

Automation, Inc., 591 F.3d 957, 963 (7th Cir. 2010) (emphasizing ‘‘the import of explicit statutory language rendering an employer liable for employment decisions that were motivated in 

part by a forbidden consideration but which the employer still would have made in the absence 

of that proscribed motive. In the absence of such language, the limited remedies that title VII 

otherwise makes available to plaintiffs in such cases . . . are foreclosed.’’); Serafinn v. Local 722, 

Int’l Brotherhood of Teamsters, 597 F.3d 908, 915 (7th Cir. 2010) (holding that, after Gross, 

Waterhouse v. Hopkins. It is also the standard that remains in place for claims 

under Title VII of the Civil Rights Act. 

Why do you believe the motivating factor standard is the appropriate causation 

standard for mixed motive cases, including those under the ADEA? 

Answer 1. Once the plaintiff has proven that discrimination was a motivating factor in the defendant’s employment decision, the ‘‘motivating factor’’ standard shifts 

the burden of proof to the defendant to show that it would have made the same decision even absent discrimination. Such burden-shifting appropriately recognizes and 

responds to employers’ and employees’ asymmetric access to information about the 

employer’s state of mind. Indeed, defendants’ greater access to information that is 

key to proving or disproving an element of a particular claim commonly triggers 

burden-shifting in many other areas of the law.1 Such burden-shifting is especially 

appropriate, moreover, when the uncertainty in determining the ‘‘but-for’’ cause of 

the decision has been created by the defendant’s discriminatory consideration of protected status or activity in its decisionmaking. As Justice Breyer explained in his 

Gross dissent: 

It is one thing to require a typical tort plaintiff to show ‘‘but-for’’ causation. In 

that context, reasonably objective scientific or commonsense theories of physical 

causation make the concept of ‘‘but-for’’ causation comparatively easy to understand and relatively easy to apply. But it is an entirely different matter to determine a ‘‘but-for’’ relation when we consider, not physical forces, but the mindrelated characterizations that constitute motive. Sometimes we speak of determining or discovering motives, but more often we ascribe motives, after an 

event, to an individual in light of the individual’s thoughts and other circumstances present at the time of decision. In a case where we characterize an 

employer’s actions as having been taken out of multiple motives, say both because the employee was old and because he wore loud clothing, to apply ‘‘butfor’’ causation is to engage in a hypothetical inquiry about what would have 

happened if the employer’s thoughts and other circumstances had been different. The answer to this hypothetical inquiry will often be far from obvious, 

and, since the employee likely knows less than does the employer about what 

the employer was thinking at the time, the employer will often be in a stronger 

position than the employee to provide the answer.2

Question 2. The Protecting Older Workers Against Discrimination Act makes clear 

that the motivating factor framework applies to all anti-discrimination and anti-retaliation laws—treating all workers, and all forms of discrimination, equally. 

In your testimony, you emphasized that the Supreme Court’s decision in Gross 

has been applied to statutes beyond the Age Discrimination in Employment Act 

(ADEA). 

Based on your review of the Court’s decision in Gross, your knowledge of other 

civil rights statutes, and application of Price Waterhouse and Gross by lower courts, 

why do you think the part of the bill applying it beyond the ADEA is important? 

Answer 2. Lower courts now increasingly understand Gross to mean that the motivating factor framework is never available to plaintiffs under Federal antidiscrimination and antiretaliation statutes unless and until Congress expressly provides 

otherwise.3 The Seventh Circuit, for example, describes Gross as holding that ‘‘unless a statute (such as the Civil Rights Act of 1991) provides otherwise, demonstrating ‘‘but-for’’ causation is part of the plaintiff’s burden in all suits under Federal law.’’ 4
69 

‘‘[m]ixed-motive theories of liability are always improper in suits brought under statutes without 

language comparable to the Civil Rights Act’s authorization of claims that an improper consideration was ‘a motivating factor’ for the contested action.’’). 5Serwatka v. Rockwell Automation, Inc. 591 F.3d 957, 961 (7th Cir. 2010). 6 e.g., Fairley v. Andrews, 578 F. 3d 518, 525–26 (7th Cir. 2009). 7Williams v. District of Columbia, 646 F. Supp. 2d. 103, 109 (D.D.C. 2009). 8See, e.g., Brown v. J. Kaz, Inc., 581 F.3d 175, 187 (3rd Cir. 2009) (Jordan, J., concurring) 

(‘‘[I]t seems quite possible that, given the broad language chosen by the Supreme Court in Gross, 

a critical re-examination of our [section 1981] precedent may be in order.’’); Crouch v. J.C. 

Penney Corp., Inc., 337 Fed. Appx. 399, 402 n.1 (5th Cir. 2009) (in the context of an FMLA case, 

noting that ‘‘[t]he Supreme Court’s recent opinion in Gross raises the question of whether the 

mixed-motive framework is available to plaintiffs alleging discrimination outside of the Title VII 

framework’’) (citation omitted); Burgess v. JHM Hotels, 2010 WL 1493132 (D.S.C. 2010) (same). 9Williams, 646 F. Supp. 2d. at 106, 109 (quoting Gross) (emphasis in original). 10 In contrast, under S. 1756, Dr. Williams-Jackson would have been entitled to injunctive and 

declaratory relief and partial attorney’s fees and costs, plus the possibility of additional relief 

(such as back pay and reinstatement) if the employer could not bear its burden of proving that 

it would have demoted her regardless of her jury service. 11Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010). 12The ADA’s enforcement provisions specifically incorporate the powers, remedies and procedures of title VII, including the title VII provision authorizing certain remedies where the plaintiff has proven mixed motive discrimination. 42 U.S.C. § 12117 (‘‘The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 shall be the powers, remedies, and procedures this subchapter provides to . . . any person alleging discrimination 

on the basis of disability in violation of any provision of this chapter . . . concerning employment.’’). 

For this reason, lower courts now apply Gross to a growing number of Federal 

antidiscrimination and antiretaliation statutes in addition to the ADEA, requiring 

the plaintiff not only to prove that discrimination or retaliation motivated the decision, but also to bear the additional burden of proving that such discrimination was 

the ‘‘but-for’’ cause of the decision. Examples include cases alleging job discrimination because of disability in violation of the Americans with Disabilities Act,5 job 

discrimination because of protected speech under 42 U.S.C. § 1983,6 and job discrimination based on an employee’s jury service in violation of the Jury Systems Improvement Act.7 Other courts have speculated about the application of the Gross 

standard to still other Federal laws providing important employment protections, 

such as 42 U.S.C. § 1981 and the Family and Medical Leave Act.8

In these contexts, too, the Gross rule has deprived plaintiffs of victory. Consider 

the experience of Dr. LilliAnn Williams-Jackson, a public school guidance counselor 

who alleged a violation of the Jury Systems Improvement Act and who successfully 

proved that her jury service was a motivating factor in her employer’s decision to 

cut her position. The trial court nonetheless rejected Dr. Williams-Jackson’s claim 

in light of the more stringent causation standard under Gross: 

This is a close case of mixed motives leading to the decision to ‘‘excess’’ Dr. 

Jackson from [the school] and one in which Dr. Jackson’s credibility is distinctly 

superior to her former principal. Nonetheless, the Court concludes that Dr. 

Jackson has not carried her burden to prove that her jury service ‘‘was the ‘butfor’ cause of the challenged employment action.’’ 

. . . 

[U]nder Gross, Dr. Jackson must prove by a preponderance of the evidence that 

she was ‘‘excessed’’ ‘‘by reason of’’ her jury service—that is, that jury service was 

the ‘‘but-for’’ cause of the decision to excess her. The Court has no doubt that 

Dr. Jackson’s jury service was a motivating factor behind [the principal’s] acceptance of the loss of a guidance counselor, who otherwise is of particular assistance to a principal in dealing with behavior and other student problems. 

What is lacking is any evidence that her jury service was ‘‘the ‘but-for’ cause’’ 

of the decision . . . .’’ 9

Under the Gross standard, Dr Williams-Jackson receives nothing, and her employer remains unsanctioned even though it was proven to have punished her for 

her jury service.10

The Seventh Circuit similarly applied the Gross rule in an Americans with Disabilities Act case to strip a plaintiff of relief that she had been awarded by the trial 

court.11 There the jury concluded that the plaintiff had proven that defendant fired 

her based on its perception that she had a disability, and also found that the defendant still would have fired her absent her perceived disability. Applying title 

VII’s motivating factor framework to the ADA,12 the district court then awarded the 

plaintiff declaratory and injunctive relief along with some of her attorney’s fees and 

costs (for a total of approximately $30,000). The employer appealed this award of 
70 

13Serwatka, 591 F.3d at 963–64. 14Febres v. Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir. 2000) (internal citations 

omitted). 

partial costs, fees, declaratory, and injunctive relief, arguing that the Gross causa- tion rule should apply instead. The Seventh Circuit agreed: 

[The plaintiff] did not show that her perceived disability was a but-for cause of 

her discharge. Although the jury agreed with her that [the employer’s] perception of her limitations contributed to the discharge, it also found that [the employer] would have terminated [the plaintiff] notwithstanding the improper consideration of her (perceived) disability. Relief is therefore not available to her 

under the ADA, and [the employer] was entitled to judgment in its favor . . . . 

[I]n view of the Court’s intervening decision in Gross, it is clear that the district 

court’s decision to award [the plaintiff] declaratory and injunctive relief along 

with a portion of her attorney’s fees and costs cannot be sustained.13

Once again, the Gross rule left the plaintiff with nothing, and her employer remains unsanctioned even though it was proven to have discriminated against her 

based on disability. 

S. 1756 responds by clarifying Congress’ commitment to a uniform causation 

standard, making title VII’s longstanding motivating factor framework available 

under all Federal laws that protect workers from discrimination or retaliation based 

on a protected characteristic (e.g., age) or protected activity (e.g., engaging in Federal jury service or reporting or challenging discriminatory behavior). For the reasons discussed above, the motivating factor standard not only most appropriately 

shifts the burden of proof to the party with the best access to the key information, 

but also best effectuates Congress’ commitment to deterring workplace discrimination. Ensuring uniform application of this standard across relevant Federal law, 

moreover, offers a wide range of practical advantages—for example, by ensuring 

that courts, litigants, and jurors will proceed under the same ‘‘motivating factor’’ instruction for all claims in cases involving claims under multiple statutes (such as 

an older African-American plaintiff who brings claims under both title VII and the 

ADEA). 

Question 3. Mr. Dreiband, in his testimony before the committee, wrote that 

‘‘since the Gross decision [was] issued, the Federal courts have repeatedly ruled in 

favor of age discrimination plaintiffs and against discrimination.’’ He further stated 

that courts ‘‘have issued decisions in favor of discrimination plaintiffs and relied 

upon the Gross case to do so.’’ 

In support of this notion, he points to several cases, including: Hrisinko v. New 

York City Department of Education, 2010 WL 826879 (2d Cir. Mar. 11, 2010); Mora 

v. Jackson Memorial Foundation, Inc., 597 F.3d 1201, 1202 (11th Cir. 2010); Velez 

v. Thermo King de Puerto Rico, Inc., 585 F.2d 441 (1st Cir. 2009); Baker v. Silver 

Oak Senior Living Management Company, 581 F.3d 684 (8th Cir. 2009). 

Do you agree with Mr. Dreiband that Gross has been beneficial to age discrimination plaintiffs? 

Answer 3. No. Under Price Waterhouse and before Gross, the ADEA burden of persuasion shifted to the defendant once the plaintiff proved discrimination. As the 

First Circuit explained, ‘‘most plaintiffs perceive the Price Waterhouse framework 

and its concomitant burden-shifting as conferring a profound advantage. In the average case, the employee thirsts for access to it, while the employer regards it as 

anathema.’’ 14 In stark contrast, after Gross and its rejection of the Price Waterhouse 

framework, the burden never shifts to the defendant—a dynamic that makes it 

much easier for defendants to prevail. 

Indeed, as Mr. Gross’s own case makes painfully clear, the Gross rule can strip 

discrimination plaintiffs of hard-fought victories. Mr. Gross won under the Price 

Waterhouse motivating factor standard, and he would have won under S. 1756’s motivating factor standard. Only under the Gross Court’s new ‘‘but-for’’ causation rule 

did he lose his verdict. 

More specifically, recall that Mr. Gross’s lawyers requested and received the Price 

Waterhouse motivating factor instruction. A jury then applied those instructions to 

conclude that Mr. Gross had proved that age was a motivating factor in the defendant’s decision to demote him and that the defendant had not proved that it would 

have demoted him regardless of his age. It thus found that Mr. Gross had established that his employer had violated the ADEA, and awarded him approximately 

$47,000 in lost compensation. 

On appeal, the defendant employer challenged the trial judge’s decision to use the 

Price Waterhouse instruction, arguing that such a motivating factor instruction is 
71 

15See, e.g., Marquez v. Drugs Unlimited, Inc., 2010 WL 1133803 (D. Puerto Rico 2010) (‘‘The 

Court declared in Gross that this ‘but for’ standard is a much higher standard than that which 

has been applied in Title VII cases.’’); Miller v. Nat’l Ass’n of Securities Dealers, Inc., 2010 WL 

1371029 (E.D.N.Y. 2010) (‘‘According to Gross, the burden of persuasion required by the ADEA 

is more onerous’’ than that under Title VII); Mojica v. El Conquistador Resort and Golden Door 

Spa, 2010 WL 1992575 at *1 (D. Puerto Rico 2010) (observing that Gross ‘‘in some aspects raised 

the standard for proving an ADEA claim’’); see also Baker v. Silver Oak Senior Living Management Co., 581 F.3d 684, 689–90 (8th Cir. 2009) (describing the motivating factor causation 

standard under Missouri State antidiscrimination law as ‘‘less demanding’’ for age discrimination plaintiffs than that under the ADEA after Gross); Dudley v. Lake Ozark Fire Protection 

Dist., 2010 WL 1992188 at *5 (W.D. Mo. 2010) (same). 16 Bolmer v. Olviera, 594 F.3d 134, 148–49 (2nd Cir. 2010). 17Fuller v. Seagate Technology, 651 F. Supp. 2d 1233, 1248 (D. Colo. 2009). 18 581 F.3d 684, 689 (8th Cir. 2009) (concluding that the plaintiff’s evidence of age discrimination was sufficiently strong to survive summary judgment under either causation standard). 19 597 F.3d 908, 914 (7th Cir. 2010) (observing that the defendant’s proposed mixed-motive 

and motivating factor instruction was ‘‘ill-advised’’ because it is ‘‘disadvantageous to the local 

[defendant] if the evidence was in equipoise. Both the but-for instruction and the [defendant’s] 

proposed composite instruction score complete victory for the [defendant] if a jury finds that the 

[defendant] would have prosecuted [the plaintiff] regardless of his outspoken politics. But whereas the but-for cause instruction maintains the burden of persuasion on the plaintiff, giving a 

tie to the [defendant], the [defendant’s] proposed composite instruction shifts the burden of persuasion to itself, giving a tie to [the plaintiff].’’) (citations omitted). 20 594 F.3d 134, 148–49 (2nd Cir. 2010) (declining to decide whether Gross applied to a claim 

under Title II of the ADA because it concluded that the plaintiff’s evidence of disability discrimination was sufficiently strong to survive either causation standard). 

appropriate only when the plaintiff has direct evidence of discrimination and that 

Mr. Gross did not have such evidence. The Eighth Circuit agreed. Note that the 

Eighth Circuit ruled against Mr. Gross not because he could not satisfy the motivating factor standard—in fact he did—but instead because it found that the Price 

Waterhouse motivating-factor instruction is only available in cases when the plaintiff has direct evidence of age discrimination (e.g., where the employer acknowledges 

its discrimination, which of course is very rare). Other courts had ruled, in contrast, 

that the Price Waterhouse instruction is available in ADEA cases when the plaintiff 

proves that age was a motivating factor by any available evidence, circumstantial 

or direct. 

The Supreme Court granted certiorari in Gross to resolve that controversy. Its actual decision, however, failed to address this question. Instead it vacated Mr. 

Gross’s jury verdict, and articulated a brand-new causation standard that significantly undercut protections for older workers without the benefit of full briefing by 

the parties or development by the lower courts. Unless this legislation is enacted, 

upon re-trial Mr. Gross will bear the burden of proving not only that his age was 

a motivating factor, but additionally that it was the ‘‘but-for’’ factor for his demotion. 

As explained above, the plaintiff is not as well-positioned as the employer to prove 

what the employer would have done in a hypothetical workplace without discrimination—so Mr. Gross will be at a disadvantage if his case is re-tried under the Court’s 

new rule rather than under S. 1756. 

Lower courts, moreover, have repeatedly observed that Gross adds to the challenges faced by workers seeking to enforce their right to be free from discrimination 

under the ADEA.15 The Second Circuit, for example, explained Gross as imposing 

‘‘a more stringent causation standard’’ on plaintiffs than that under Price 

Waterhouse; 16 another Federal court described Gross ‘‘as elevating the quantum of 

causation required under the ADEA.’’ 17

In contrast, the cases listed in Mr. Dreiband’s testimony do not support the assertion that Gross is beneficial to plaintiffs. Indeed, several of the cases that Mr. 

Dreiband’s written testimony cites as examples of courts that ‘‘relied upon Gross to 

rule in favor of plaintiffs’’ (see pages 10–11 and notes 43 and 50) actually confirm 

the additional barriers that Gross places in the path of workers seeking to vindicate 

their antidiscrimination rights. These include Baker v. Silver Oak Senior Living 

Management, Co., in which the Eighth Circuit describes motivating factor causation 

standards as ‘‘less demanding’’ for age discrimination plaintiffs than the Gross ‘‘butfor’’ standard; 18 Serafinn v. Local 722, International Brotherhood of Teamsters, in 

which the Seventh Circuit explains how the ‘‘but-for’’ standard benefits defendants 

in close cases; 19 and Bolmer v. Oliveira, in which the Second Circuit characterizes 

Gross as imposing a ‘‘more stringent causation standard’’ than that under Price 

Waterhouse.20

Mr. Dreiband’s written statement also lists as examples of courts that ‘‘relied 

upon Gross to rule in favor of plaintiffs’’ several decisions that in fact ruled for the 

plaintiff only after distinguishing, and thus refusing to rely upon, Gross. These include Thompson v. Weyerhauser Co., in which the 10th Circuit refused to rely on 
72 

21 582 F.3d 1125, 1131 (10th Cir. 2009) (‘‘We are not persuaded by Weyerhauser’s argument. 

Gross does not involve the pattern-or-practice procedure at issue here.’’). 22 581 F.3d 175, 182–83 & n.5 (3rd Cir. 2009) (concluding that the plaintiff survived summary 

judgment on her claim under 42 U.S.C. § 1981 based on the Price Waterhouse motivating factor 

framework after noting that ‘‘the parties agreed that Gross . . . has no impact on this case’’). 23 579 F.3d 688, 692 (6th Cir. 2009) (distinguishing, rather than relying on, Gross as inapplicable to FMLA retaliation claims and concluding that the plaintiff survived summary judgment 

under the motivating factor standard: ‘‘[W]e continue to find Price Waterhouse’s burden-shifting 

framework applicable to FMLA retaliation claims.’’). 24Fleming v. Yuma Regional Medical Ctr., 587 F.3d 938, 943–44 (9th Cir. 2009) (concluding 

that the Rehabilitation Act should not be interpreted to track the ADA’s exclusion of independent contractors from its job discrimination provisions). 25See Hrisinko v. New York City Dep’t of Ed., 2010 WL 826879 at * 1–3 (2nd Cir. 2010) (concluding that the plaintiff had sufficient evidence of pretext under McDonnell Douglas to survive 

summary judgment); Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 447–48 (1st Cir. 

2009) ( same); Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 106–07 (2nd Cir. 2010) (same); 

Liebowitz v. Cornell Univ., 584 F.3d 487, 503–05 (2nd Cir. 2009) (same); EEOC v. TIN, 349 Fed. 

Appx. 190 (9th Cir. 2010) (same). 26See Mora v. Jackson Memorial Hosp., 597 F.3d 1201, 1203–04 (11th Cir. 2010). 27 Id. at 1205. 

Gross in an ADEA pattern-or-practice (as opposed to individual disparate treatment) 

case; 21 Brown v. J. Kaz, Inc., in which the Third Circuit applied the motivating factor framework to a section 1981 case after noting that that parties agreed that 

Gross did not apply; 22 and Hunter v. Valley View Local Schools, in which the Sixth 

Circuit declined to apply Gross to an FMLA case. 23 Another relied on Gross only 

for the proposition that courts should not reflexively apply rules applicable under 

one statute to another without examination, rather than for any proposition related 

to causation standards (much less for the proposition that the Gross causation 

standard benefits plaintiffs).24

Moreover, all but one of the remaining decisions cited in Mr. Dreiband’s statement 

as ‘‘relying’’ on Gross to find for plaintiffs instead simply cite Gross before instead 

relying on the longstanding McDonnell Douglas analysis for pretext cases.25 In other 

words, these courts relied on the standards in existence before Gross, and thus cannot be characterized as cases in which plaintiffs benefited from Gross. Indeed, only 

one of the cases cited in Mr. Dreiband’s written statement in fact purports actually 

to ‘‘rely’’ on the Gross causation standard to find for the plaintiff.26 But even in that 

case, the plaintiff’s evidence of age discrimination—which included testimony by the 

plaintiff and a co-worker that the chief executive told the plaintiff that she was too 

old and that he needed a younger employee—was sufficiently strong that she should 

have survived summary judgment under any causation standard (and in fact the 

court characterized mixed-motive cases decided before Gross in which the plaintiff 

prevailed as ‘‘instructive’’ to its finding).27 Winning after or despite the Court’s decision in Gross is not the same as winning because of it; that some plaintiffs have 

survived Gross does not mean that they have benefited from the decision. 

Question 4a. Mr. Dreiband, in his testimony before the committee, wrote that ‘‘[i]f 

enacted in its current form, the Protecting Older Workers Against Discrimination 

Act will do nothing to protect workers from age discrimination, other forms of discrimination, retaliation, or any other unlawful conduct.’’ He further claims that ‘‘[i]n 

the end, only the lawyers win; the Protecting Older Workers Against Discrimination 

Act would allow courts to award certain attorney’s fees and costs and would do nothing to enhance the ADEA’s protections of discrimination.’’ In fact, Mr. Dreiband asserts, ‘‘Mr. Gross and many others will gain nothing if this bill passes in its current 

form.’’ He testified that ‘‘though lawyers may receive payment for fees directly attributable to a motivating-factor claim . . . the alleged victim will get nothing—no 

job, no money, no back pay, no front pay, no damages, no promotion, nothing.’’ 

Rather than helping age discrimination plaintiffs, Mr. Dreiband testified that the 

Protecting Older Workers Against Discrimination Act will, in fact, ‘‘deprive discrimination victims of any meaningful remedy’’ in mixed motive cases. 

Do you agree with Mr. Dreiband that the Protecting Older Workers Against Discrimination Act will do nothing to protect older workers like Jack Gross? Why or 

why not? 

Answer 4a. No. Under S. 1756, Mr. Gross would have retained the $47,000 in lost 

compensation that the jury awarded him because he proved that age was a motivating factor in his demotion and his employer failed to prove that it would have 

demoted him in the absence of age discrimination. Also under Gross, as discussed 

above, Dr. Williams-Jackson and Ms. Serwatka received nothing even though they 

proved that discrimination motivated their employers’ adverse actions against them. 

Under S. 1756, in stark contrast, Dr. Williams-Jackson would have been entitled at 
73 

28 Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 (1968); see also Blanchard v. 

Bergeron, 489 U.S. 87, 95–96 1989) (‘‘The intention of Congress was to encourage successful civil 

rights litigation, not to create a special incentive to prove damages and shortchange efforts to 

seek effective injunctive or declaratory relief . . . . Congress has elected to encourage meritorious 

civil rights claims because of the benefits of such litigation for the named plaintiff and for society at large, irrespective of whether the action seeks monetary damages.’’). 29 City of Riverside v. Rivera, 477 U.S. 561, 574 (1986) (citations omitted). Notes 57–58 of Mr. 

Dreiband’s testimony cites several cases in which the court found that the plaintiff had proved 

that discrimination was a motivating factor in the employer’s decision, but declined to award 

injunctive relief because the plaintiff was no longer employed by the defendant or because the 

offending defendant was no longer employed by the employer. But injunctive relief is especially 

important when the plaintiff is still employed by the defendant or might otherwise face a very 

real threat of continuing discrimination or retaliation. Note, for example, that Mr. Gross still 

works for the employer that he proved to have engaged in age discrimination. Moreover, as one 

of the decisions cited in Mr. Dreiband’s testimony observes, ‘‘injunctive and declaratory relief 

might be appropriate . . . where, for example, the company engaged in widespread gender discrimination of the type challenged or had an official policy for such or where the company continued to engage in such gender discrimination.’’ Cooper v. Ambassador Personnel, Inc., 570 F. 

Supp. 2d 1355, 1360 (M.D. Ala. 2008). 

a minimum to injunctive and declaratory relief and partial attorney’s fees and costs, 

plus the possibility of additional relief (such as back pay and reinstatement) if her 

employer could not bear its burden of proving that it would have demoted her regardless of her jury service. And, under S. 1756, Ms. Serwatka would have retained 

the relief awarded her by the trial court: declaratory and injunctive relief along with 

some of her attorney’s fees and costs (for a total of approximately $30,000). 

Moreover, S. 1756 additionally protects older workers from discrimination by sending the strong deterrent message that an employer will be liable for its discrimination once the plaintiff has proved that discrimination has played a motivating role 

in his or her employer’s decision. More specifically, S. 1756 ensures that Federal 

courts retain the power to enjoin the defendant’s proven discrimination through declaratory and injunctive relief, thus ensuring equal opportunity in the future. 

Question 4b. If the Protecting Older Workers Against Discrimination Act became 

law, what damages would be available to a plaintiff like Jack Gross? 

Answer 4b. If S. 1756 had been in effect at Mr. Gross’s trial, the jury would have 

been instructed that the plaintiff is entitled to full relief under the ADEA if he can 

prove that age was a motivating factor and if the defendant cannot prove that it 

would still have demoted him absent age discrimination. Indeed, Mr. Gross’s jury 

so found, and awarded him $47,000 in lost compensation. 

Question 4c. Do you agree with Mr. Dreiband that, rather than helping age discrimination plaintiffs, the Protecting Older Workers Against Discrimination Act will 

actually hurt victims of age discrimination by ‘‘depriv[ing]’’ them of ‘‘any meaningful 

remedy?’’ 

Answer 4c. No. As discussed above, Mr. Gross would still have his $47,000 jury 

verdict if S. 1756 had been law at the time of his trial. Other plaintiffs will similarly 

be entitled to full relief under the act when they—like Mr. Gross—prove that age 

was a motivating factor and the defendant fails to bear its burden under S. 1756 

of proving that it would still have taken the same action absent age discrimination. 

Even when both parties meet their burden under S. 1756 (i.e., when the plaintiff 

proves that age was a motivating factor and the defendant proves that it would 

have made the same decision even absent age discrimination), the bill ensures the 

continued availability of injunctive and declaratory relief and partial attorney’s fees 

and costs—remedies that are enormously important in serving the deterrent functions of antidiscrimination law. Indeed, court-ordered injunctions requiring that the 

defendant cease a particular discriminatory practice have proven a powerful and effective tool throughout the history of the civil rights movement, and thus are among 

the remedies that Federal enforcement agencies most frequently seek. For this reason, the Supreme Court has repeatedly emphasized the value of injunctive relief in 

vindicating the important public interest in effective civil rights enforcement: ‘‘If 

[the plaintiff] obtains an injunction, he does so not for himself alone but also as a 

‘private attorney general,’ vindicating a policy that Congress considered of the highest priority.’’ 28 Indeed, as the Court has further observed, ‘‘a civil rights plaintiff 

seeks to vindicate important civil and constitutional rights that cannot be valued 

solely in monetary terms. And, Congress has determined that ‘the public as a whole 

has an interest in the vindication of the rights conferred by the statutes enumerated 

in § 1988 over and above the value of a civil rights remedy to a particular plaintiff 

. . . .’ ’’ 29
74 

30 H.R. REP. NO. 102–40(I) at 46–47, 1991 U.S.C.C.A.N. at 584–85 (quoting Jane Lang, 

former General Counsel of the United States Department of Housing and Urban Development). 31 539 U.S. 90 (2003). 32 Id. 33 Id. at 96. 34 Id. at 96–97. 35 Id. at 97. 36 Id. at 101–02. 

An example helps illustrate the point: An older worker proves that she 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 finds them to be less 

energetic, less creative, and generally less productive. Suppose too that the employer 

proves that it ultimately hired another applicant who was even more qualified for 

the position than the plaintiff. Under the Court’s new rule in Gross, the employer 

will escape ADEA liability altogether and the plaintiff gets nothing. Under S. 1756, 

in contrast, she—and, perhaps more important, the public as a whole—receive something very important: a court order putting a stop to the practice and enjoining its 

continuation. 

Indeed, as the House Committee Report emphasized in explaining the motivating 

factor framework standard as adopted in the Civil Rights Act of 1991 (the same 

standard proposed by S. 1756): 

[I]t is important to remember the dual purpose of private enforcement of title 

VII. On the one hand, the object is to make whole the individual victims of unlawful discrimination . . . But this is only part of it. The individual title VII litigant acts as a ‘‘private attorney general’’ to vindicate the precious rights secured by that statute. It is in the interest of American society as a whole to 

assure that equality of opportunity in the workplace is not polluted by unlawful 

discrimination. Even the smallest victory advances that interest.30

Question 5. In support of his argument, Mr. Dreiband claims that ‘‘Title VII cases 

provide sobering examples of how the mixed motive framework turns winning plaintiffs into losers.’’ 

Do you agree that victims of discrimination under title VII have been disadvantaged by the mixed motive framework enacted as part of the Civil Rights Act of 

1991? Why or why not? 

Answer 5. No. Plaintiffs can and do prevail and secure full relief under title VII’s 

motivating factor instruction, when they—like Mr. Gross—prove that discrimination 

was a motivating factor and the defendant fails to bear its burden of proving that 

it would still have taken the same action absent age discrimination. 

The Supreme Court’s decision in Desert Palace, Inc. v. Costa 31 offers a particularly helpful illustration of plaintiffs’ success under the motivating factor framework 

enacted in the Civil Rights Act of 1991. At trial, the defendant maintained instead 

that the plaintiff, Ms. Costa, had been fired for disciplinary infractions.32 The plaintiff offered evidence that she was instead fired because of her sex, including evidence that she was disciplined more harshly than her male counterparts for the 

same conduct, was treated less favorably than men in overtime assignments, and 

was the target of repeated gender-based slurs.33 Over the defendant’s objections, the 

trial court gave the jury the motivating factor instruction under the Civil Rights Act 

of 1991.34 The jury found that Ms. Costa had proved that sex was a motivating factor in her firing, and that her employer had not proved that it would have fired her 

absent sex discrimination. It thus awarded her back pay, compensatory, and punitive damages,35 and the Supreme Court ultimately upheld the verdict.36

Question 6. Under the standard announced in Gross v. FBL Financial, a plaintiff 

must establish that a plaintiff’s age was the ‘‘but for’’ cause of the adverse employment action complained of. At the hearing, there was a great deal of discussion regarding what type of proof was necessary to meet this standard, including ‘‘smoking 

gun’’ evidence. At the hearing, you testified, that ‘‘what’s especially pernicious about 

the Gross decision is that even if you have a smoking gun as a plaintiff, you may 

still lose.’’ 

Why do you believe even so called ‘‘smoking gun’’ evidence would be insufficient 

under the standard announced in Gross? 

Answer 6. Recall our earlier example of an older worker who applies for a job for 

which she is qualified, only to be rejected after being told by her interviewer that 

he will not hire workers of her age because he finds them to be less energetic, less 

creative, and generally less productive. This is direct evidence of age discrimination. 

But under the Gross Court’s new rule, the plaintiff will lose and the employer will 

escape ADEA liability altogether unless the plaintiff can also prove that the em-
75 

37 Note too that the motivating factor framework adopted by Congress with respect to Title 

VII in the Civil Rights Act of 1991—and proposed in S. 1756—was also urged by the Reagan 

Administration’s Department of Justice in its briefing of the Price Waterhouse case. See Brief 

for the United States as Amicus Curiae at 23—24, Price Waterhouse v. Hopkins, 490 U.S. 228 

(1989) (No. 87–1167) (citations omitted) (‘‘[I]t is proper to place the burden on the defendant 

to prove that a given employment decision would have been the same in a discrimination-free 

environment. If the defendant makes such a showing, the plaintiff is made whole by an award 

of attorney’s fees and an in junction against future discrimination. In effect, the defendant is 

ordered to cease discriminatory activity, which enhances the plaintiff’s employment opportunities in the future. But the defendant need not hire, reinstate, promote or provide back pay to 

the plaintiff . . .’’). 

ployer would not have taken the adverse action if it had been free of age discrimination. In other words, Gross entirely insulates from liability even an employer who 

confesses discrimination so long as that employer had another reason for its decision. By permitting employers to escape liability altogether even for a workplace admittedly infected by discrimination, with no incentive to refrain from similar discrimination in the future, the Gross rule thus undermines Congress’ efforts to stop 

and deter workplace discrimination. 

Question 7. Do you believe the Protecting Older Workers Against Discrimination 

Act will prevent employers from making legitimate business and cost cutting decisions? 

Answer 7. No. Nothing in S. 1756 interferes with an employer’s ability to make 

decisions based on nondiscriminatory factors of any type. S. 1756 prohibits only employment decisions that are motivated by discrimination (and requires the plaintiff 

to bear the burden of proving such motivation). Return once again to our example 

discussed above: even after the plaintiff proves that age was a motivating factor in 

the decision not to hire her, if the employer can nonetheless show that it would not 

have hired her in any event because it hired a more qualified candidate, S. 1756 

would not require the employer to hire or provide back pay to the plaintiff. S. 1756 

thus strikes an appropriate balance between employers’ and employees’ rights.37

RESPONSE TO QUESTIONS OF SENATOR ENZI BY HELEN NORTON

Question 1. Please provide the committee with a list of those Federal employment 

statutes that you believe are affected by S. 1756, and another list of those which you 

believe are not. 

Answer 1. The bill’s findings and purposes section indicates its intent to cover all 

Federal antidiscrimination and antiretaliation laws—i.e., those that prohibit discrimination because of an individual’s statutorily protected class status (such as 

age) and those that prohibit discrimination because an individual has engaged in 

statutorily protected activity (such as reporting potentially unlawful behavior, attempting to assert pension rights, engaging in Federal jury service, taking family 

or medical leave, etc.). This appropriately responds to lower courts’ interpretation 

of Gross to mean that the motivating factor framework is never available to plaintiffs under Federal antidiscrimination and antiretaliation statutes unless and until 

Congress expressly provides otherwise. The Seventh Circuit, for example, characterizes Gross as holding that ‘‘unless a statute (such as the Civil Rights Act of 1991) 

provides otherwise, demonstrating ‘‘but-for’’ causation is part of the plaintiff’s burden in all suits under Federal law.’’ Fairley v. Andrews, 578 F. 3d 518, 525–26 (7th 

Cir. 2009). 

Question 2. Have you acted as an employer or manager in a private sector, nongovernment funded workplace? Please describe the extent of your personal experience in either developing or implementing personnel policies or decisions with regard to the hiring, firing, disciplining, promoting, demoting, laying off or evaluating 

of employees, the granting of time-off, the assignment of duties to employees, and 

any other matters relating to the direction and supervision of any private sector 

workforce. 

Answer 2. I served as Director of Legal and Public Policy for the National Partnership for Women and Families, where I engaged in the day-to-day direction, evaluation, and supervision of attorneys, program staff, and support staff. Together with 

the organization’s President, Executive Vice-President, and General Counsel, I also 

participated in hiring decisions, and the development and implementation of various 

personnel policies. Moreover, as President of the Board of Directors of the YWCA 

of the National Capital Area, I led the board responsible for hiring and evaluating 

the organization’s executive director. 
76 

Question 3. Can employment statistics alone constitute sufficient circumstantial 

evidence to prove an improper motive? If you answer that they can, under what circumstances? 

Answer 3. The Supreme Court has repeatedly made clear that statistical evidence 

is a type of circumstantial evidence, and that the strength of any and all types of 

circumstantial evidence—including, but not limited to, statistical evidence—depends 

on the circumstances. Whether evidence of any type is sufficient to prove improper 

motive is subject to rebuttal by the defendant and ultimately remains for the factfinder to assess. 

The Supreme Court addressed this question in detail in Teamsters v. United 

States, 431 U.S. 324 (1977). In response to the defendant employer’s contention that 

‘‘statistics can never in and of themselves prove the existence of a pattern or practice of discrimination,’’ the Court stated: 

[O]ur cases make it unmistakably clear that ‘‘(s)tatistical analyses have served 

and will continue to serve an important role’’ in cases in which the existence 

of discrimination is a disputed issue. We have repeatedly approved the use of 

statistical proof, where it reached proportions comparable to those in this case, 

to establish a prima facie case of racial discrimination in jury selection cases. 

Statistics are equally competent in proving employment discrimination. We caution only that statistics are not irrefutable; they come in infinite variety and, 

like any other kind of evidence, they may be rebutted. In short, their usefulness 

depends on all of the surrounding facts and circumstances. 

Id. at 339–40 (citations omitted). As the Court explained more specifically: 

Petitioners argue that statistics, at least those comparing the racial composition 

of an employer’s work force to the composition of the population at large, should 

never be given decisive weight in a Title VII case because to do so would conflict 

with s 703(j) of the Act. That section provides: ‘‘Nothing contained in this subchapter shall be interpreted to require any employer . . . to grant preferential 

treatment to any individual or to any group because of the race . . . or national 

origin of such individual or group on account of an imbalance which may exist 

with respect to the total number or percentage of persons of any race . . . or national origin employed by any employer . . . in comparison with the total number 

or percentage of persons of such race . . . or national origin in any community, 

State, section, or other area, or in the available work force in any community, 

State, section, or other area.’’ The argument fails in this case because the statistical evidence was not offered or used to support an erroneous theory that Title 

VII requires an employer’s work force to be racially balanced. Statistics showing 

racial or ethnic imbalance are probative in a case such as this one only because 

such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices 

will in time result in a work force more or less representative of the racial and 

ethnic composition of the population in the community from which employees 

are hired. Evidence of longlasting and gross disparity between the composition 

of a work force and that of the general population thus may be significant even 

though s 703(j) makes clear that Title VII imposes no requirement that a work 

force mirror the general population. Considerations such as small sample size 

may, of course, detract from the value of such evidence, and evidence showing 

that the figures for the general population might not accurately reflect the pool 

of qualified job applicants would also be relevant. 

Id. at n.20 (citations omitted). The Supreme Court repeated this observation in 

Hazelwood School District v. United States, 433 U.S. 299, 308 (1977); see also Richmond v. J.A. Croson Co., 488 U.S. 469, 501–02 (1989) (‘‘In the employment context, 

we have recognized that for certain entry level positions or positions requiring minimal training, statistical comparisons of the racial composition of an employer’s work 

force to the racial composition of the relevant population may be probative of a pattern of discrimination.’’). 

RESPONSE TO QUESTIONS OF SENATOR ENZI BY ERIC S. DREIBAND

Question 1a. Proponents of S. 1756 have argued that the Supreme Court decision 

in March 2009 makes it extremely difficult to bring and win cases under the Age 

Discrimination in Employment Act (ADEA). 

As a practitioner who follows these types of cases closely, what is your view of 

that claim? 

Answer 1a. I do not believe the Supreme Court’s decision in Gross v. FBL Financial Services, Inc., makes it any more difficult for plaintiffs to bring and win cases 

under the Age Discrimination in Employment Act than before Gross was decided. 
77 

Question 1b. Have plaintiff’s been able to bring successful age discrimination 

claims since the decision? 

Answer 1b. Yes. Since the Gross decision issued, the Federal courts have repeatedly ruled in favor of age discrimination plaintiffs. See Hrisinko v. New York City 

Department of Education, No. 08-6071, 2010 WL 826879, at *2–*3 (2d Cir. Mar. 11, 

2010); Mora v. Jackson Memorial Foundation, Inc., 597 F.3d 1201, 1202 (11th Cir. 

2010); Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 447 n.2 (1st Cir. 

2009); Baker v. Silver Oak Senior Living Management Company, 581 F.3d 684, 688 

(8th Cir. 2009). Several other courts, including the Third, Sixth, Seventh, Ninth, 

and Tenth Circuits, also relied upon Gross to rule in favor of plaintiffs in employment cases that did not involve age. Kodish v. Oakbrok Terrace Fire Prot. Dist., 604 

F.3d 490 (7th Cir. 2010); Serafinn v. Local 722, Int’l Bhd. Of Teamsters, 597 F.3d 

908 (7th Cir. 2010); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d Cir. 2010); 

Bolmer v. Oliveria, 594 F.3d 134 (2d Cir. 2010); Fleming v. Yuma Reg’l Med. Ctr., 

587 F.3d 938 (9th Cir. 2009); Leibowitz v. Cornell Uni., 584 F.3d 487 (2d Cir. 2009); 

EEOC v. TIN, Inc., 349 F. App’x 190 (9th Cir. Oct. 20, 2009); Brown v. J. Kaz, Inc., 

581 F.3d 175 (3d Cir. 2009); Thompson v. Weyerhaeuser Co., 582 F.3d 1125 (10th 

Cir. 2009); Hunter v. Valley View Local Schs., 579 F.3d 688 (6th Cir. 2009). 

Question 2. Given that employment cases currently occupy such a large, indeed 

by some estimates, the largest proportion of our already over-burdened Federal 

court docket, should we be encouraging even more litigation, particularly where that 

litigation has no tangible benefit to a given plaintiff, but only seems to profit the 

plaintiff bar? 

Answer 2. Section 8, Article I of the United States Constitution requires, among 

other things, that the Congress ‘‘provide for the common defense and general welfare of the United States.’’ As a result, a law that does not provide for the common 

defense and general welfare of the United States because it only profits certain 

members of the bar may run afoul of Section 8, Article I. 

Question 3. What other statutes currently provide attorneys’ fees to private counsel in cases where the disposition results in no award to the represented plaintiff? 

Answer 3. I am not aware of any statutes that provide attorneys’ fees to private 

counsel under these circumstances, other than Title VII of the Civil Rights Act of 

1964. 

[Whereupon, at 12:17 p.m., the hearing was adjourned.] 

Æ