IIB 

117TH CONGRESS 

1ST SESSION H. R. 2062 

IN THE SENATE OF THE UNITED STATES 

JUNE 24, 2021 

Received; read twice and referred to the Committee on Health, Education, 

Labor, and Pensions 

AN ACT 

To amend the Age Discrimination in Employment Act of 

1967 and other laws to clarify appropriate standards 

for Federal employment discrimination and retaliation 

claims, and for other purposes. 

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


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1 SECTION 1. SHORT TITLE. 

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

3 Workers Against Discrimination Act of 2021’’. 

4 SEC. 2. STANDARDS OF PROOF. 

5 (a) AGE DISCRIMINATION IN EMPLOYMENT ACT OF

6 1967.— 

7 (1) CLARIFYING PROHIBITION AGAINST IMPER8 MISSIBLE CONSIDERATION OF AGE IN EMPLOYMENT

9 PRACTICES.—Section 4 of the Age Discrimination in 

10 Employment Act of 1967 (29 U.S.C. 623) is amend11 ed by inserting after subsection (f) the following: 

12 ‘‘(g)(1) Except as otherwise provided in this Act, an 

13 unlawful practice is established under this Act when the 

14 complaining party demonstrates that age or an activity 

15 protected by subsection (d) was a motivating factor for 

16 any practice, even though other factors also motivated the 

17 practice. 

18 ‘‘(2) In establishing an unlawful practice under this 

19 Act, including under paragraph (1) or by any other meth20 od of proof, a complaining party— 

21 ‘‘(A) may rely on any type or form of admis22 sible evidence; and 

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

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

25 the sole cause of a practice.’’. 


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

2 U.S.C. 626) is amended— 

3 (A) in subsection (b)— 

4 (i) in the first sentence, by striking 

5 ‘‘The’’ and inserting ‘‘(1) The’’; 

6 (ii) in the third sentence, by striking 

7 ‘‘Amounts’’ and inserting the following: 

8 ‘‘(2) Amounts’’; 

9 (iii) in the fifth sentence, by striking 

10 ‘‘Before’’ and inserting the following: 

11 ‘‘(4) Before’’; and 

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

13 as designated by clause (iii) of this sub14 paragraph, the following: 

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

16 that age was a motivating factor for any employment prac17 tice under section 4(g)(1), and a respondent demonstrates 

18 that the respondent would have taken the same action in 

19 the absence of the impermissible motivating factor, the 

20 court— 

21 ‘‘(A) may grant declaratory relief, injunctive re22 lief (except as provided in subparagraph (B)), and 

23 attorney’s fees and costs demonstrated to be directly 

24 attributable only to the pursuit of a claim under sec25 tion 4(g)(1); and 


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

2 requiring any admission, reinstatement, hiring, pro3 motion, or payment.’’; and 

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

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

6 any’’. 

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

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

9 following: 

10 ‘‘(m) The term ‘demonstrates’ means meets the bur11 dens of production and persuasion.’’. 

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

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

14 end the following: 

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

16 motive claims (involving practices described in section 

17 4(g)(1)) under this section.’’. 

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

19 1964.— 

20 (1) CLARIFYING PROHIBITION AGAINST IMPER21 MISSIBLE CONSIDERATION OF RACE, COLOR, RELI22 GION, SEX, OR NATIONAL ORIGIN IN EMPLOYMENT

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

24 1964 (42 U.S.C. 2000e–2) is amended by striking 

25 subsection (m) and inserting the following: 


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

2 unlawful employment practice is established when the 

3 complaining party demonstrates that race, color, religion, 

4 sex, national origin, or an activity protected by section 

5 704(a) was a motivating factor for any employment prac6 tice, even though other factors also motivated the prac7 tice.’’. 

8 (2) FEDERAL EMPLOYEES.—Section 717 of 

9 such Act (42 U.S.C. 2000e–16) is amended by add10 ing at the end the following: 

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

12 to mixed motive cases (involving practices described in sec13 tion 703(m)) under this section.’’. 

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

15 (1) DEFINITIONS.—Section 101 of the Ameri16 cans with Disabilities Act of 1990 (42 U.S.C. 

17 12111) is amended by adding at the end the fol18 lowing: 

19 ‘‘(11) DEMONSTRATES.—The term ‘demon20 strates’ means meets the burdens of production and 

21 persuasion.’’. 

22 (2) CLARIFYING PROHIBITION AGAINST IMPER23 MISSIBLE CONSIDERATION OF DISABILITY IN EM24 PLOYMENT PRACTICES.—Section 102 of such Act 


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1 (42 U.S.C. 12112) is amended by adding at the end 

2 the following: 

3 ‘‘(e) PROOF.— 

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

5 provided in this Act, a discriminatory practice is es6 tablished under this Act when the complaining party 

7 demonstrates that disability or an activity protected 

8 by subsection (a) or (b) of section 503 was a moti9 vating factor for any employment practice, even 

10 though other factors also motivated the practice. 

11 ‘‘(2) DEMONSTRATION.—In establishing a dis12 criminatory practice under paragraph (1) or by any 

13 other method of proof, a complaining party— 

14 ‘‘(A) may rely on any type or form of ad15 missible evidence; and 

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

17 that disability or an activity protected by sub18 section (a) or (b) of section 503 was the sole 

19 cause of an employment practice.’’. 

20 (3) CERTAIN ANTI-RETALIATION CLAIMS.—Sec21 tion 503(c) of such Act (42 U.S.C. 12203(c)) is 

22 amended— 

23 (A) by striking ‘‘The remedies’’ and insert24 ing the following: 


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1 ‘‘(1) IN GENERAL.—Except as provided in para2 graph (2), the remedies’’; and 

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

4 ‘‘(2) CERTAIN ANTI-RETALIATION CLAIMS.— 

5 Section 107(c) shall apply to claims under section 

6 102(e)(1) with respect to title I.’’. 

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

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

9 following: 

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

11 claim in which an individual demonstrates that disability 

12 was a motivating factor for any employment practice 

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

14 that the respondent would have taken the same action in 

15 the absence of the impermissible motivating factor, the 

16 court— 

17 ‘‘(1) may grant declaratory relief, injunctive re18 lief (except as provided in paragraph (2)), and attor19 ney’s fees and costs demonstrated to be directly at20 tributable only to the pursuit of a claim under sec21 tion 102(e)(1); and 

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

23 requiring any admission, reinstatement, hiring, pro24 motion, or payment.’’. 

25 (d) REHABILITATION ACT OF 1973.— 


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

2 504(d) of the Rehabilitation Act of 1973 (29 U.S.C. 

3 791(f), 793(d), and 794(d)), are each amended by 

4 adding after ‘‘title I of the Americans with Disabil5 ities Act of 1990 (42 U.S.C. 12111 et seq.)’’ the fol6 lowing: ‘‘, including the standards of causation or 

7 methods of proof applied under section 102(e) of 

8 that Act (42 U.S.C. 12112(e)),’’. 

9 (2) FEDERAL EMPLOYEES.—The amendment 

10 made by paragraph (1) to section 501(f) of the Re11 habilitation Act of 1973 (29 U.S.C. 791(f)) shall be 

12 construed to apply to all employees covered by sec13 tion 501 of that Act (29 U.S.C. 791). 

14 SEC. 3. APPLICATION. 

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

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

17 enactment of this Act. 

18 SEC. 4. SEVERABILITY. 

19 If any provision of this Act, an amendment made by 

20 this Act, or the application of such provision or amend21 ment to any person or circumstance is held to be unconsti22 tutional, the remainder of this Act, the amendments made 

23 by this Act, and the application of the provisions of such 

24 to any person or circumstance shall not be affected there25 by. 


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1 SEC. 5. STUDY AND REPORT TO CONGRESS. 

2 Not later than 1 year after the date of the enactment 

3 of this Act, the Secretary of Labor and the Equal Employ4 ment Opportunity Commission shall jointly conduct a 

5 study to determine the number of claims pending or filed, 

6 in addition to cases closed, by women who may have been 

7 adversely impacted by age discrimination as a motivating 

8 factor in workplace discrimination or employment termi9 nation. The Secretary of Labor and Chairman of the Com10 mission shall jointly submit to the Congress, and make 

11 available to the public, a report that contains the results 

12 of the study, including recommendations for best practices 

13 to prevent and to combat gender and age discrimination 

14 as it relates to women in the workplace. 

15 SEC. 6. REPORTS. 

16 The Chairman of Equal Employment Opportunity 

17 Commission shall submit to the Committee on Education 

18 and Labor of the House of Representatives and the Com19 mittee on Health, Education, Labor, and Pensions of the 

20 Senate a report at 1-year intervals on the number of age 

21 discrimination in employment claims brought under this 

22 Act with the Equal Employment Opportunity Commission 

23 in the period for which such report is submitted. 

24 SEC. 7. REPORT. 

25 (a) REPORT.—Not later than 2 years after the date 

26 of enactment of this Act, the Equal Employment OpporVerDate Sep 11 2014 08:23 Jun 25, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.RFS H2062

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1 tunity Employment Commission shall submit to the Con2 gress, and make available to the public, a report that con3 tains analysis of any disparities that covered individuals, 

4 as defined in subsection (b), face in pursuing relief from 

5 discrimination in employment under the mixed motive evi6 dentiary standard. 

7 (b) COVERED INDIVIDUALS DEFINED.—The term 

8 ‘‘covered individuals’’ means individuals who face discrimi9 nation in employment based on characteristics protected 

10 under the Age Discrimination in Employment Act of 1967 

11 combined with one or more intersectional characteristics 

12 protected under title VII of the Civil Rights Act of 1964, 

13 the Americans with Disabilities Act of 1990, or the Reha14 bilitation Act of 1973. 

Passed the House of Representatives June 23, 2021. 

Attest: CHERYL L. JOHNSON, 

Clerk. 


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