II 

111TH CONGRESS 

1ST SESSION S. 1756 

To amend the Age Discrimination in Employment Act of 1967 to clarify 

the appropriate standard of proof. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 6, 2009 

Mr. HARKIN (for himself, Mr. LEAHY, Mr. DURBIN, Mr. SPECTER, Mr. KOHL, 

Mr. SCHUMER, Mr. FRANKEN, Mr. SANDERS, Mr. BROWN, Mr. CARDIN, 

Mr. MERKLEY, Mrs. FEINSTEIN, Mr. DODD, Mrs. BOXER, Mr. LAUTENBERG, Mr. KAUFMAN, and Mr. NELSON of Florida) 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 to clarify the appropriate standard of proof. 

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 PURPOSE. 

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


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1 (1) In enacting the Age Discrimination in Em2 ployment Act of 1967, Congress intended to elimi3 nate discrimination against individuals in the work4 place based on age. 

5 (2) In passing the Civil Rights Act of 1991, 

6 Congress correctly recognized that unlawful discrimi7 nation is often difficult to detect and prove because 

8 discriminators do not usually admit their discrimina9 tion and often try to conceal their true motives. 

10 (3) Congress has relied on a long line of court 

11 cases holding that language in the Age Discrimina12 tion in Employment Act of 1967, and similar anti13 discrimination and antiretaliation laws, that is near14 ly identical to language in title VII of the Civil 

15 Rights Act of 1964 would be interpreted consistently 

16 with judicial interpretations of title VII of the Civil 

17 Rights Act of 1964, including amendments made by 

18 the Civil Rights Act of 1991. The Supreme Court’s 

19 decision in Gross v. FBL Financial Services, Inc., 

20 129 S. Ct. 2343 (2009), has eroded this long-held 

21 understanding of consistent interpretation and cir22 cumvented well-established precedents. 

23 (4) The holding of the Supreme Court in Gross, 

24 by requiring proof that age was the ‘‘but for’’ cause 

25 of employment discrimination, has narrowed the 


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1 scope of protection intended to be afforded by the 

2 Age Discrimination in Employment Act of 1967, 

3 thus eliminating protection for many individuals 

4 whom Congress intended to protect. 

5 (5) The Supreme Court’s holding in Gross, rely6 ing on misconceptions about the Age Discrimination 

7 in Employment Act of 1967 articulated in prior de8 cisions of the Court, has significantly narrowed the 

9 broad scope of the protections of the Age Discrimi10 nation in Employment Act of 1967. 

11 (6) Unless Congress takes action, victims of age 

12 discrimination will find it unduly difficult to prove 

13 their claims and victims of other types of discrimina14 tion may find their rights and remedies uncertain 

15 and unpredictable. 

16 (b) PURPOSE.—The purpose of this Act is to ensure 

17 that the standard for proving unlawful disparate treat18 ment under the Age Discrimination in Employment Act 

19 of 1967 and other anti-discrimination and anti-retaliation 

20 laws is no different than the standard for making such 

21 a proof under title VII of the Civil Rights Act of 1964, 

22 including amendments made by the Civil Rights Act of 

23 1991. 


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1 SEC. 3. STANDARD OF PROOF. 

2 Section 4 of the Age Discrimination in Employment 

3 Act of 1967 (29 U.S.C. 623) is amended by adding after 

4 subsection (f) the following: 

5 ‘‘(g)(1) For any claim brought under this Act or any 

6 other authority described in paragraph (5), a plaintiff es7 tablishes an unlawful employment practice if the plaintiff 

8 demonstrates by a preponderance of the evidence that— 

9 ‘‘(A) an impermissible factor under that Act or 

10 authority was a motivating factor for the practice 

11 complained of, even if other factors also motivated 

12 that practice; or 

13 ‘‘(B) the practice complained of would not have 

14 occurred in the absence of an impermissible factor. 

15 ‘‘(2) On a claim in which a plaintiff demonstrates a 

16 violation under paragraph (1)(A) and a defendant dem17 onstrates that the defendant would have taken the same 

18 action in the absence of the impermissible motivating fac19 tor, the court— 

20 ‘‘(A) may grant declaratory relief, injunctive re21 lief (except as provided in subparagraph (B)), and 

22 attorney’s fees and costs demonstrated to be directly 

23 attributable only to the pursuit of a claim under 

24 paragraph (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. 

4 ‘‘(3) In making the demonstration required by para5 graph (1), a plaintiff may rely on any type or form of 

6 admissible circumstantial or direct evidence and need only 

7 produce evidence sufficient for a reasonable trier of fact 

8 to conclude that a violation described in subparagraph (A) 

9 or (B) of paragraph (1) occurred. 

10 ‘‘(4) Every method for proving either such violation, 

11 including using the evidentiary framework set forth in 

12 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 

13 shall be available to the plaintiff. 

14 ‘‘(5) Except as provided in paragraph (6), this sub15 section shall apply to any claim that the practice com16 plained of was motivated by a reason that is impermis17 sible, with regard to that practice, under— 

18 ‘‘(A) this Act, including subsection (d); 

19 ‘‘(B) any Federal law forbidding employment 

20 discrimination; 

21 ‘‘(C) any law forbidding discrimination of the 

22 type described in subsection (d) or forbidding other 

23 retaliation against an individual for engaging in, or 

24 interference with, any federally protected activity inVerDate Nov 24 2008 23:57 Oct 06, 2009 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1756.IS S1756

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1 cluding the exercise of any right established by Fed2 eral law (including a whistleblower law); or 

3 ‘‘(D) any provision of the Constitution that pro4 tects against discrimination or retaliation. 

5 ‘‘(6) This subsection shall not apply to a claim under 

6 a law described in paragraph (5)(C) to the extent such 

7 law has an express provision regarding a legal burden of 

8 proof applicable to that claim. 

9 ‘‘(7) In any proceeding, with respect to a claim de10 scribed in paragraph (5), the plaintiff need not plead the 

11 existence of this subsection. 

12 ‘‘(8) In this subsection, the term ‘demonstrates’ 

13 means meet the burdens of production and persuasion.’’. 

14 SEC. 4. APPLICATION. 

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

16 shall apply to all claims described in section 4(g)(5) of 

17 the Age Discrimination in Employment Act of 1967 (29 

18 U.S.C. 623(g)(5)) pending on or after June 17, 2009. 

Æ 


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