II 

113TH CONGRESS 

1ST SESSION S. 1391 

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. 

IN THE SENATE OF THE UNITED STATES 

JULY 30, 2013 

Mr. HARKIN (for himself, Mr. GRASSLEY, and Mr. LEAHY) introduced the following bill; which was read twice and referred to the Committee on 

Health, Education, Labor, and Pensions 

A BILL 

To amend the Age Discrimination in Employment Act of 

1967 and other laws to clarify appropriate standards 

for Federal 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, 

3 SECTION 1. SHORT TITLE. 

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

5 Workers Against Discrimination Act’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

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


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1 (1) In enacting section 107 of the Civil Rights 

2 Act of 1991 (adding section 703(m) of the Civil 

3 Rights Act of 1964), Congress reaffirmed its under4 standing that unlawful discrimination is often dif5 ficult to detect and prove because discriminators do 

6 not usually admit their discrimination and often try 

7 to conceal their true motives. Section 703(m) of the 

8 Civil Rights Act of 1964 expressly approved so9 called ‘‘mixed motive’’ claims, providing that an un10 lawful employment practice is established when a 

11 protected characteristic was a motivating factor for 

12 any employment practice, even though other factors 

13 also motivated the practice. 

14 (2) Congress enacted amendments to other civil 

15 rights statutes, including the Age Discrimination in 

16 Employment Act of 1967 (referred to in this section 

17 as the ‘‘ADEA’’), the Americans with Disabilities 

18 Act of 1990, and the Rehabilitation Act of 1973, but 

19 Congress did not expressly amend those statutes to 

20 address mixed motive discrimination. 

21 (3) In the case of Gross v. FBL Financial Serv22 ices, Inc., 557 U.S. 167 (2009), the Supreme Court 

23 held that, because Congress did not expressly amend 

24 the ADEA to address mixed motive claims, such 

25 claims were unavailable under the ADEA, and inVerDate Mar 15 2010 20:52 Aug 01, 2013 Jkt 029200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1391.IS S1391

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1 stead the complainant bears the burden of proving 

2 that a protected characteristic or protected activity 

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

4 practice. This decision has significantly narrowed 

5 the scope of protections afforded by the statutes that 

6 were not expressly amended in 1991 to address 

7 mixed motive claims. 

8 (b) PURPOSES.—The purposes of this Act are— 

9 (1) to clarify congressional intent that mixed 

10 motive claims shall be available, and that a com11 plaining party need not prove that a protected char12 acteristic or protected activity was the ‘‘but for’’ 

13 cause of an unlawful employment practice, under the 

14 ADEA and similar civil rights provisions; 

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

16 the Gross decision that Congress’ failure to amend 

17 any statute other than title VII of the Civil Rights 

18 Act of 1964 (with respect to discrimination claims), 

19 in enacting section 107 of the Civil Rights Act of 

20 1991, suggests that Congress intended to disallow 

21 mixed motive claims under other statutes; and 

22 (3) to clarify that complaining parties— 

23 (A) may rely on any type or form of ad24 missible evidence to establish their claims of an 

25 unlawful employment practice; 


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1 (B) are not required to demonstrate that 

2 the protected characteristic or activity was the 

3 sole cause of the employment practice; and 

4 (C) may demonstrate an unlawful employ5 ment practice through any available method of 

6 proof or analytical framework. 

7 SEC. 3. STANDARDS OF PROOF. 

8 (a) AGE DISCRIMINATION IN EMPLOYMENT ACT OF

9 1967.— 

10 (1) CLARIFYING PROHIBITION AGAINST IMPER11 MISSIBLE CONSIDERATION OF AGE IN EMPLOYMENT

12 PRACTICES.—Section 4 of the Age Discrimination in 

13 Employment Act of 1967 (29 U.S.C. 623) is amend14 ed by inserting after subsection (f) the following: 

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

16 unlawful practice is established under this Act when the 

17 complaining party demonstrates that age or an activity 

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

19 any practice, even though other factors also motivated the 

20 practice. 

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

22 Act, including under paragraph (1) or by any other meth23 od of proof, a complaining party— 

24 ‘‘(A) may rely on any type or form of admis25 sible evidence and need only produce evidence suffiVerDate Mar 15 2010 18:13 Aug 01, 2013 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1391.IS S1391

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1 cient for a reasonable trier of fact to find that an 

2 unlawful practice occurred under this Act; and 

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

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

5 the sole cause of a practice.’’. 

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

7 U.S.C. 626) is amended— 

8 (A) in subsection (b)— 

9 (i) in the first sentence, by striking 

10 ‘‘The’’ and inserting ‘‘(1) The’’; 

11 (ii) in the third sentence, by striking 

12 ‘‘Amounts’’ and inserting the following: 

13 ‘‘(2) Amounts’’; 

14 (iii) in the fifth sentence, by striking 

15 ‘‘Before’’ and inserting the following: 

16 ‘‘(4) Before’’; and 

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

18 as designated by clause (iii) of this sub19 paragraph, the following: 

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

21 that age was a motivating factor for any employment prac22 tice, under section 4(g)(1), and a respondent demonstrates 

23 that the respondent would have taken the same action in 

24 the absence of the impermissible motivating factor, the 

25 court— 


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1 ‘‘(A) may grant declaratory relief, injunctive re2 lief (except as provided in subparagraph (B)), and 

3 attorney’s fees and costs demonstrated to be directly 

4 attributable only to the pursuit of a claim under sec5 tion 4(g)(1); and 

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

7 requiring any admission, reinstatement, hiring, pro8 motion, or payment.’’; and 

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

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

11 any’’. 

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

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

14 following: 

15 ‘‘(m) The term ‘demonstrates’ means meets the bur16 dens of production and persuasion.’’. 

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

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

19 end the following: 

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

21 motive claims (involving practices described in section 

22 4(g)(1)) under this section.’’. 

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

24 1964.— 


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1 (1) CLARIFYING PROHIBITION AGAINST IMPER2 MISSIBLE CONSIDERATION OF RACE, COLOR, RELI3 GION, SEX, OR NATIONAL ORIGIN IN EMPLOYMENT

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

5 1964 (42 U.S.C. 2000e–2) is amended by striking 

6 subsection (m) and inserting the following: 

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

8 unlawful employment practice is established under this 

9 title when the complaining party demonstrates that race, 

10 color, religion, sex, or national origin or an activity pro11 tected by section 704(a) was a motivating factor for any 

12 employment practice, even though other factors also moti13 vated the practice.’’. 

14 (2) FEDERAL EMPLOYEES.—Section 717 of 

15 such Act (42 U.S.C. 2000e–16) is amended by add16 ing at the end the following: 

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

18 to mixed motive cases (involving practices described in sec19 tion 703(m)) under this section.’’. 

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

21 (1) DEFINITIONS.—Section 101 of the Ameri22 cans with Disabilities Act of 1990 (42 U.S.C. 

23 12111) is amended by adding at the end the fol24 lowing: 


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1 ‘‘(11) DEMONSTRATES.—The term ‘dem2 onstrates’ means meets the burdens of production 

3 and persuasion.’’. 

4 (2) CLARIFYING PROHIBITION AGAINST IMPER5 MISSIBLE CONSIDERATION OF DISABILITY IN EM6 PLOYMENT PRACTICES.—Section 102 of such Act 

7 (42 U.S.C. 12112) is amended by adding at the end 

8 the following: 

9 ‘‘(e) PROOF.— 

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

11 provided in this Act, a discriminatory practice is es12 tablished under this Act when the complaining party 

13 demonstrates that disability or an activity protected 

14 by subsection (a) or (b) of section 503 was a moti15 vating factor for any employment practice, even 

16 though other factors also motivated the practice. 

17 ‘‘(2) DEMONSTRATION.—In establishing a dis18 criminatory practice under paragraph (1) or by any 

19 other method of proof, a complaining party— 

20 ‘‘(A) may rely on any type or form of ad21 missible evidence and need only produce evi22 dence sufficient for a reasonable trier of fact to 

23 find that a discriminatory practice occurred 

24 under this Act; and 


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

2 that disability or an activity protected by sub3 section (a) or (b) of section 503 was the sole 

4 cause of an employment practice.’’. 

5 (3) CERTAIN ANTIRETALIATION CLAIMS.—Sec6 tion 503(c) of such Act (42 U.S.C. 12203(c)) is 

7 amended— 

8 (A) by striking ‘‘The remedies’’ and insert9 ing the following: 

10 ‘‘(1) IN GENERAL.—Except as provided in para11 graph (2), the remedies’’; and 

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

13 ‘‘(2) CERTAIN ANTIRETALIATION CLAIMS.—Sec14 tion 107(c) shall apply to claims under section 

15 102(e)(1) with respect to title I.’’. 

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

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

18 following: 

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

20 claim in which an individual demonstrates that disability 

21 was a motivating factor for any employment practice, 

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

23 that the respondent would have taken the same action in 

24 the absence of the impermissible motivating factor, the 

25 court— 


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1 ‘‘(1) may grant declaratory relief, injunctive re2 lief (except as provided in paragraph (2)), and attor3 ney’s fees and costs demonstrated to be directly at4 tributable only to the pursuit of a claim under sec5 tion 102(e)(1); and 

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

7 requiring any admission, reinstatement, hiring, pro8 motion, or payment.’’. 

9 (d) REHABILITATION ACT OF 1973.— 

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

11 504(d) of the Rehabilitation Act of 1973 (29 U.S.C. 

12 791(g), 793(d), and 794(d)), are each amended by 

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

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

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

16 causation or methods of proof applied under section 

17 102(e) of that Act (42 U.S.C. 12112(e)),’’. 

18 (2) FEDERAL EMPLOYEES.—The amendment 

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

20 construed to apply to all employees covered by sec21 tion 501. 


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1 SEC. 4. APPLICATION. 

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

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

4 enactment of this Act. 

Æ 


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